Toscano v Toscano

[2017] NSWSC 419

Supreme Court

New South Wales

Medium Neutral Citation:	Toscano v Toscano [2017] NSWSC 419
Hearing dates:	19 – 20 October 2016
Decision date:	20 April 2017
Jurisdiction:	Equity
Before:	Robb J
Decision:	The court directs the parties to bring in short minutes of order to give effect to these reasons for judgment.
Catchwords:	PROCEDURE – Issue estoppel – Abuse of process – Consent orders – Where plaintiff claimed property was part of deceased’s notional estate – Where defendant agreed to consent orders designating property as part of the deceased’s notional estate in a related application for family provision orders – Whether the defendant’s consenting to orders constituted an admission that the property was part of the deceased’s notional estate – Where related proceedings and current proceedings were heard together with evidence in one being evidence in the other – Whether consent orders created an issue estoppel – Whether it is an abuse of process for the defendant to deny that the property is part of the deceased’s notional estate.   SUCCESSION – Family provision – Whether adequate provision has been made for the proper maintenance, education and advancement in life of the plaintiff – Where plaintiff was the estranged son of deceased – Consideration of ‘community standards’ – Where deceased transferred interests in property to his other son and a daughter between one and three years before his death – Whether property should be designated as part of the deceased’s notional estate – Whether deceased transferred property wholly or partly to deny or limit provision being made out of his estate – Significance of burden of evidence shifting to defendant to call evidence to dispel the appearance that deceased was partly actuated by an intention justifying designation of property as notional estate.
Legislation Cited:	Succession Act 2006 (NSW) s 80(2)(a).
Cases Cited:	Alexander v Jansson [2010] NSWCA 176 Aubrey v Kain [2014] NSWSC 15 Blair v Curran (1939) 62 CLR 464 Butler v Morris [2012] NSWSC 748 Courtney v Powell [2012] NSWSC 460 Kastrounis v Foundourakis [2012] NSWSC 264 McCosker v McCosker (1957) 97 CLR 566 O’Shane v Harbour Radio Pty Limited (2013) 85 NSWLR 698 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Stojanovski v Stojanovski [2016] NSWSC 976 Underwood v Gaudron [2014] NSWSC 1055 Wardy v Salier [2014] NSWSC 473 Watson v Foxman (1995) 49 NSWLR 315 West v Mann [2013] NSWSC 1852 Zagame v Zagame [2014] NSWSC 1302
Texts Cited:	Succession Law and Practice New South Wales (Butterworths).
Category:	Principal judgment
Parties:	Victor Toscano (plaintiff) Anthony John Toscano (first defendant) Katrina Carmel Morabito (second defendant)
Representation:	Counsel: A Blank (plaintiff) L Ellison SC (first and second defendants)   Solicitors: Hudson Law (plaintiff) Mills Oakley (first and second defendants)
File Number(s):	2015/329067
Publication restriction:	None

Judgment

Introduction

1. The plaintiff, Victor Gerard Toscano (Victor), commenced these proceedings for an order under s 59 of the Succession Act 2006 (NSW) (the Act), by summons filed on 9 November 2015.

2. The claim is made in respect of the estate of Victor’s late father, Vittorio Emanuele, also called Victor, Toscano (the deceased), who died on 12 March 2015.

3. The plaintiff is entitled to make this application, as he is an eligible person under s 57(1)(c) of the Act, and commenced the proceedings within the time required by s 58(2) of the Act.

4. The first defendant, Anthony John Toscano (Anthony), is the executor of the deceased under a will dated 14 October 2013, and his eldest son.

5. The second defendant, Katrina Carmel Morabito (Katrina), is the youngest daughter of the deceased. She was joined as a defendant because Victor asked the court to make a notional estate order under s 79 of the Act, in respect of property transferred by the deceased to Anthony and Katrina shortly before the date on which he made his last will.

6. The deceased had two additional children, being daughters Maria Luigia Santoro (Maria) and Jeanette Anne Millauro (Jeanette).

7. The deceased left a second wife, Anna Johanna Toscano (Anna).

8. The deceased’s first wife, who was the mother of all of the deceased’s children, predeceased him.

The deceased’s will

9. Probate of the will of the deceased dated 14 October 2013 was granted by the Supreme Court of New South Wales to Anthony on 23 September 2015.

10. The dispositive parts of the deceased’s will provide for:

1. a gift of $500 to Jeanette (cl 4(a));

2. a gift of $500 to Victor (cl 4(b));

3. the transfer of the deceased’s motor vehicle to Anna (cl 4(c);

4. the transfer of the deceased’s interest in a property known as 27 Colston Street, Ryde (the Ryde property), together with all furniture and personal effects, to Anna (cl 4(d));

5. the transfer of the deceased’s interest in a property known as 97 Mulga Road, Oatley (the Oatley property), together with all furniture and personal effects, to Anthony and Katrina as tenants in common in equal shares (cl 4(e)); and

6. a gift of the residue to Anthony (cl 4(f)).

11. The will contained an explanation of the deceased’s reasons for not making provision for Maria. It said that Maria had already received $8000 from the deceased in his lifetime, which he considered to be the share of his estate that she was entitled to.

12. There was no explanation of the reasons for the other gifts made by the will, including the legacy of $500 to Victor.

The deceased’s property

13. The affidavit of executor dated 7 August 2015 filed by Anthony in the application for probate disclosed that the estate had a gross value of $621,612, and a net value, after payment of the debts of the deceased, of $600,935.82.

14. The inventory of property valued the interest in the Ryde property left to Anna under the will at $600,000; there was an amount in the bank of $1000; the deceased’s motor vehicle was valued at $10,000; he had a parcel of shares worth $5612; and the furniture and effects were given a value of $5000.

15. The affidavit contained an explanation in par 8 that, notwithstanding the provision in the will for the transfer of the Oatley property to Anthony and Katrina, on 1 July 2013 the deceased transferred that property to Anthony and Katrina as tenants in common in equal shares. The affidavit explained that Anthony and Katrina paid the stamp duty on the transfer of $32,615 in equal shares.

16. Anthony swore an updating affidavit of executor on 10 February 2016, which explained that, on 1 September 2013, the deceased transferred a one half share of the Ryde property to Anthony, and that Anthony paid the sum of $15,740 stamp duty in respect of the transfer.

17. The affidavit contained an estimate of the current market value of the Oatley property, which was supported by a market appraisal by an estate agent dated 11 January 2016, at $975,000. Anthony stated that he understood that the current market value of the Ryde property remained approximately $1,200,000.

18. The final updating affidavit sworn by Anthony in these proceedings is dated 8 September 2016. It suggests in par 9 that the total value of the estate at the time of the affidavit was $340,685, and the total value of the notional estate was $2,700,000.

19. Anthony and Katrina do not concede that the interests in the Ryde and Oatley properties should be treated as notional property for the purposes of the claim made by Victor, but Anthony has included their values in his affidavit on the basis that they arguably form notional property of the deceased.

20. The estate’s half interest in the Ryde property is valued at $600,000 (as in the original inventory of property). Shares worth $5641, cash of $1163 and the estimated value of furniture and effects of $5000 are added. (The estimate of the value of the estate excludes the value of the deceased’s motor vehicle, which was transferred to Anna on 19 June 2015, in accordance with the deceased’s will).

21. The following expenses and obligations are deducted from the value of the estate’s assets, to give the net value of the estate:

1. Sundry expenses including administration costs, say $40,000;

2. The estate’s legal fees as at 2 September 2016, $88,543;

3. The estate’s estimated future legal fees, $42,000;

4. A bequest made to Maria pursuant to orders made by the court on 4 May 2016; $70,576; and

5. Maria’s legal costs (still subject to negotiation), say $30,000.

22. The total amount of the estate’s costs and expenses has therefore been estimated at $271,119.

23. Victor has not challenged the calculation of the value of the estate, particularly its costs and expenses, and it will be appropriate to accept the figures given by Anthony, subject to the adjustments that I will consider below.

24. It thus appears from the evidence that the only significant asset of any value in the estate was the half share in the Ryde property that was retained by the deceased at the date of his death, and was left to Anna under the terms of his will.

25. The notional estate is given a value of $2,700,000, which is apparently calculated by assigning a present value of $1,500,000 to the Ryde property and $1,200,000 to the Oatley property. I will accept the increased estimates of the value of the two properties, as the parties conducted the case on that basis.

26. There appears to be arithmetical errors in the calculation of the value of the deceased’s estate and notional estate, as set out in Anthony’s final updating affidavit as executor.

27. The half interest in the Ryde property held by the estate is given an estimated value of $600,000, but if the current value of the Ryde property is $1,500,000, the estate’s interest should be valued at $750,000. The estimate of the net value of the estate should therefore be increased by $150,000 to $490,685.

28. The value of the notional estate should be $750,000 for the half interest in the Ryde property transferred by the deceased to Anthony, and $1,200,000 for the Oatley property transferred to both Anthony and Katrina. The total value of the notional property would therefore be $1,950,000, not $2,700,000.

Related family provision applications

29. Anna commenced proceedings in this court for a family provision order against the estate of the deceased on 11 August 2015. So did Maria, on 10 November 2015.

30. On 13 November 2015, Brereton J made an order that the three proceedings be heard together, with evidence in one being evidence in the others.

31. Maria’s claim was settled, and the settlement was reflected in orders made by Hallen J on 4 May 2016. Hallen J noted that the consent order upon which his orders were based had been signed by Victor and the legal representative for Anna. The consequence was that Victor and Anna both consented to the terms of the settlement of Maria’s claim.

32. Relevantly, Hallen J made the following orders:

3. Orders…

(4) Plaintiff to have a lump sum of $70,001 out of the notional estate of the Deceased.

(5) Interest as for a Legacy under the Probate and Administration Act 1898 to run on so much of the provision herein as remains unpaid for more than 28 days after the making of the Orders herein.

(6) Plaintiff’s costs on the ordinary basis to be paid out of the notional estate of the Deceased.

(7) Defendants’ costs on an indemnity basis to be paid out of the notional estate of the Deceased.

4. Orders that the whole of the realty comprised in folio identifiers 4/25560 and 5/25560, to the extent necessary to meet the orders in Paragraphs 4, 5, 6 and 7 hereof, be designated as notional estate of the deceased.

33. The two folio identifiers referred to in order 4 are the title references to the two properties that constitute the Oatley property. The reference to paragraphs 4, 5, 6 and 7 is evidently to those sub-paragraphs of order 3.

34. The $70,576 bequest to Maria referred to by Anthony in his last executor’s affidavit is apparently the bequest of $70,001, plus a small amount of interest.

35. Anthony and Maria have not yet agreed the amount of the costs that are to be paid out of the notional estate of the deceased on the ordinary basis; and Anthony has made an allowance of $30,000.

36. Anthony has not made a separate allowance for the defendants’ costs on the indemnity basis referred to in order 3(7). It is probable that, as the three proceedings were being conducted together, the costs of defending Maria’s claim are included in the estimates of the estate’s legal fees given by Anthony. Be that as it may, there is no evidence of any additional costs of defending Maria’s claim that are required to be paid out of the deceased’s notional property.

37. One effect of the orders made in settlement of Maria’s case is that the amounts payable to her should not be deducted from the value of the assets in the estate, but should be deducted from the value of the notional estate. Accordingly, the estimates of the values of the estate and the notional estate given in pars 27 and 28 above should be adjusted by increasing the value of the estate by $100,576, and reducing the value of the notional estate by the same amount. The result would be to give the estate a value of $591,261, and the notional estate a value of$1,849,424.

38. These figures will also require adjustment to take account of the result of the proceedings commenced by Anna.

39. The proceedings commenced by Anna were also settled. The orders necessary to implement the settlement were made on 19 October 2016, which was the first day of the hearing in Victor’s proceedings. I made the orders by consent. A consent order embodying the terms of the settlement was not signed on behalf of Victor, but Victor was represented when the court was asked to make the orders. He did not oppose those orders being made. As I understood observations made by counsel for Victor during the hearing, Victor’s legal representatives were not shown the terms of the settlement reached between Maria and the defendants.

40. Victor’s outline submissions, served before the commencement of the hearing, acknowledged in par 8.2 that, on 13 October 2015, Victor was advised that Anna’s proceedings had settled, but the terms of the settlement had not been made available by the time the outline was prepared. Victor stated in par 8.2 of his final written submissions that, on 13 October 2015, he was advised that Anna’s proceedings had settled on the basis that the Ryde property would be sold, with Anna to receive 70% of the proceeds and Anthony to receive the balance.

41. The orders made by the court in settlement of Anna’s claim including the following:

1. In addition to the provision the plaintiff receives under the will of the late Victor Toscana (“the deceased”), the half share of the property comprised in Folio Identifier 3/574715 at 27 Colston Street, Ryde, NSW (“the Ryde property”) that has been transferred to Anthony Toscano be designated as notional estate of the deceased for the purposes of satisfying order 2 and the costs order in order 8.

2. The half share of the Ryde property that is designated notional estate be transferred to the plaintiff, subject to the following orders and notations.

[Orders 3 and 4 provide for the sale of the property by Anna within 3 months of the date of the transfer]

5. The Court notes the agreement of the parties that within two weeks of settlement of the sale of the Ryde property the plaintiff is to pay the first defendant an amount equal to 30% of the net proceeds of sale of the Ryde property… (“the first defendant’s share”) subject to the following orders and notations.

6. The court notes the agreement of the parties that prior to the calculation of the net proceeds of sale as referred to in order 5 of these orders, Anthony John Toscano is to be reimbursed (a) $15,740 for stamp duty paid out; (b) such amounts as have been paid by him for Council rates, water rates, and insurance in respect of the Ryde Property after 1 September 2013.

7. No order as to the costs of the plaintiff to the intent that she bears her own costs of these proceedings.

8. The costs of the defendants be paid out of the first defendant’s share.

42. If the Ryde property is sold for the estimated value of $1,500,000, Anna will be required to deduct the agent’s commission, the conveyancing costs, the $15,740 for the stamp duty paid by Anthony, and an amount to cover the rates and insurance paid by him, before 30% of the balance is paid to Anthony.

43. There is no evidence as to what the total deduction from the sale price is likely to be before the 30% balance is calculated. I will assume that the estate agent’s commission will be 2.2%, and on that basis I will estimate a reduction in the sale price of the Ryde property of $75,000 (which involves guesswork concerning the amount of some of the minor costs the subject of the formula in order 6), before the 30% is calculated. On this assumption the 30% will be $427,500.

44. One aspect of the orders made by Hallen J in settlement of Maria’s claim was that the whole of the Oatley property, to the extent necessary to meet the other orders made, was designated as notional estate of the deceased. That order was evidently agreed between the parties to the settlement in order to provide a fund to meet the payment to be made to Maria and the costs of the parties, without disturbing the assets of the estate that were the subject of the claims by Anna and Victor.

45. It was also an aspect of the orders that I made by consent settling Anna’s claim that the half interest in the Ryde property that had been transferred by the deceased to Anthony was the subject of an order designating it as notional estate of the deceased. The making of that order was evidently thought appropriate by the parties to the settlement, in order to facilitate the agreement noted whereby Anna would sell the whole of the property and then distribute 30% of the sale price to Anthony, after making certain adjustments, and then retaining 70% for herself.

46. The orders made by the court in the settlement of Anna’s case have given rise to a potential procedural problem that was not appreciated at the time when the orders were made. The problem stems from the form in which the orders were made.

47. The primary effect of the words used in the orders appears to be (1) to confirm Anna’s entitlement to the gift of the deceased’s half interest in the Ryde property under the will (which in practical terms constituted the whole of the remaining estate, their being nothing of significant value in the residual estate); and (2) to give Anna a share in the other half of the Ryde property that the deceased had earlier transferred to Anthony, by the mechanism of that half of the property being designated by consent as notional property of the deceased’s estate.

48. In so-far-as family provision orders affect the operation of the will, they should usually be formulated in terms of an appropriate amendment to the will, or as an order as to how the will is to take effect.

49. In principle, it would have been possible for the parties to Anna’s proceedings to deal with the half interest in the Ryde property that Anna received under the will by saying nothing about it in the consent orders. Anna would then simply have received that interest by the ordinary operation of the will.

50. If that had been done, the terms of the will would have been undisturbed in relation to the half interest in the Ryde property that the deceased retained at the date of his death, and that interest would have been part of the estate, and would have remained available to be the subject of a family provision order in favour of Victor on his application.

51. However, the consent orders did not take this form. Order 1 commenced: “In addition to the provision the plaintiff receives under the will of the late Victor Toscano…” That wording gives rise to an argument that Anna became entitled to retain the half interest in the Ryde property given to her under the will by force of the orders.

42. This is not a merely theoretical argument because the collective effect of the orders and the agreements concerning the sale of the whole of the Ryde property clearly contemplated that Anna would be entitled to the whole of the property and would sell it. She was only required to pay 30% of the net sale price to Anthony.

43. That is at least arguably inconsistent with the effect of the consent orders in Anna’s case having the result that the half interest in the Ryde property bequeathed to Anna under the will would remain within the estate for the purpose of being the subject of a family provision order in favour of Victor.

44. As a result of the making of the consent orders, Anna’s proceedings were determined. She ceased to be a party in the proceedings that were ordered to be heard together with Victor’s proceedings. Anna ceased to be represented in the combined proceedings. She was therefore not able to put any submissions to the effect that the half interest in the Ryde property that she received under the deceased’s will was no longer available to be the subject of a family provision order in favour of Victor.

45. I now appreciate that it is the practice of Hallen J, who is the Family Provision List judge, when a settlement is agreed in one proceedings that have been ordered to be heard together with other proceedings that all involve claims for the making of family provision orders out of the one estate, to invite the parties to the proceedings that have not settled to consent to the settlement that has been reached, before orders are made to implement the settlement.

46. That course is appropriate, as one of the purposes in ordering that all of the proceedings be heard together, is to facilitate consistent results in respect of all of the claims, and to avoid the possible unexpected consequences of resolving multiple claims for family provision orders out of the one estate piecemeal, where in some cases the effect of earlier settlements may be to preclude the making of appropriate orders in the determination of later cases.

47. The same considerations should apply in cases where one of a number of claims that have been ordered to be heard together is settled immediately before, or during, the hearing of other claims that must be determined by the court. The parties to the claim that has been settled should give the parties to the other claims fair notice of the terms of the settlement, and the legal representatives of the remaining claimants should ensure that they have an opportunity to consider the consequences of any orders that may be made in implementation of the settlement, to ensure that the effect of the court’s orders is not to impinge on the rights of the parties to the remaining claims.

48. This problem may arise in many ways, and it is probably not possible to prescribe in advance what should be done in all cases to avoid inconvenient or unfair consequences. The cases should be dealt with on the basis of their individual circumstances. Ultimately, it is not the duty of the court to protect the parties to the claims that have not resolved from the consequences of the settlement of some but not all claims for family provision orders out of the one estate. It is a matter for the legal advisers of the parties to the remaining claims to be vigilant.

49. Nevertheless, after I reserved judgment in these proceedings, I became concerned about the possible relevance of the terms of settlement in the proceedings commenced by Maria and Anna to the resolution of Victor’s claim, which had not been settled. One issue was whether the fact that orders had been made in the proceedings that had been settled designating each of the Oatley property and Anthony’s half interest in the Ryde property as part of the notional estate of the deceased had any bearing on those issues in so far as they arose in the determination of Victor’s claim. I invited both Victor and the defendants to make supplementary submissions on this issue, and both did so. I will deal with those submissions when I consider the question of whether the court ought to make any order designating property to be part of the notional estate of the deceased in this matter.

50. Another issue was whether the effect of the orders made in settlement of Anna’s proceedings was to preclude any estate being available to meet any family provision order that would otherwise have been made in favour of Victor. In my view, these circumstances may have created a problem for the court’s determination of Victor’s case, if he had maintained a claim that a family provision order should be made in his favour against the deceased’s estate, which would necessarily have to be borne by the deceased’s half interest in the Ryde property that was left to Anna under the will.

51. On the basis of the principles concerning the joinder of interested parties to proceedings that were laid down by the High Court in John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19, Anna would in my view be a necessary party to Victor’s proceedings, if Victor sought any family provision order that disturbed the practical effect of the orders made in settlement of Anna’s proceedings. Anna would have an interest in contending that the effect of the orders made in her proceedings was to confirm her entitlement to the half interest in the Ryde property that she received under the deceased’s will, as well as an additional 20% of the net sale price of the whole of the property.

52. It appears to me, however, from a review of the submissions made on behalf of Victor, that he does not in his proceedings seek any order that would interfere with the implementation of the orders made in settlement of Anna’s proceedings, on the assumption that Anna was to remain entitled to the whole of the half share in the Ryde property given to her under the deceased’s will, as well as the other benefits from the agreement between the parties to those proceedings that were noted by the court.

53. I have reached those conclusions for the following reasons. First, Victor has not made any positive submission that he is entitled to the making of a family provision order that should be borne by the estate of the deceased in-so-far as it was left to Anna under the terms of the deceased’s will. Secondly, in par 11.4 of his final written submissions, Victor made the submission: “Whether the Court will be required to make an Order designating property as Notional Estate will ultimately depend on whether the adjustment made can be paid comfortably out of the residue and if not, the Plaintiff submits that s 78(a) and or (b) would be enlivened”. This submission, made in the context of the notional estate provisions in the Act, appears to make it clear that Victor accepts that a family provision order should be made in his favour out of the estate, if there are assets in the residue to which Anthony is entitled under the will, which appears to be inconsistent with a claim for a family provision order out of the part of the estate that was left to Anna. Thirdly, Victor acknowledged in par 2 of the submissions, made in response to the court’s request for further submissions, that he did not oppose the orders being made in Anna’s case “resulting in the depletion of the estate”. It must be recognised that Victor explained this response, in par 3, on the basis that he did not have a ground for resisting the making of the orders in Anna’s proceedings, because he was not a party to those proceedings. As I have noted above, for procedural reasons, the court may have accorded Victor some standing to make submissions concerning at least the timing of the making of the orders in Anna’s proceedings, in-so-far as those orders may have impinged upon Victor’s claim.

54. I should record for completeness that, in par 4 of the defendants’ further submissions in response to the invitation made by the court, the defendants observed that the only significant asset of the actual estate was the deceased’s remaining half interest in the Ryde property and: “This passed by the deceased’s Will to Anna absolutely. That half interest was not part of any settlement of Anna’s family provision claim. It was the other half which, for the purposes of Anna’s settlement, was brought into the settlement of Anna’s claim by way of designating order”.

55. This submission makes clear that it is the defendants’ position that the initial words of order 1 made in settlement of Anna’s claim were not intended to have the effect of giving the imprimatur of an order of the court to the term of the will giving the deceased’s half interest in the Ryde property to Anna.

56. While that submission may well be correct, it is a submission made on behalf of the defendants, and not a concession by Anna, who ceased to be a party to any proceedings before the court when the orders were made determining her claim.

57. Although the court does not have the benefit of any submissions from Victor on this issue, it is at least understandable, given the nature of the claim made by Victor, which will be explored below, that he would not have asked the court to make a family provision order in his favour that was to be borne out of Anna’s gift under the deceased’s will, given that she is the deceased’s widow, and the total effect of the orders made in her case is that she will receive only 70% of the sale price of the matrimonial home.

58. I am satisfied in these circumstances that it will be proper for me to determine Victor’s application on the assumption that Victor does not make any claim that would impinge upon the practical effect of the orders made in favour of Anna in settlement of her proceedings.

59. The practical consequences of all of these observations is that Victor is making a claim for a family provision order that cannot be met out of the estate of the deceased, and even if he otherwise establishes that he would have been entitled to the benefit of a particular order, that entitlement will not avail him unless the court is able to make an order designating property to be notional estate of the deceased that is sufficient to meet the order in Victor’s favour.

Principles governing making of family provision order

70. It is now necessary to consider whether Victor has demonstrated that he is entitled to the benefit of a family provision order, and if so, what the terms of that order should be. Section 78(1)(a) of the Act has the effect that the court may only make an order designating property as notional estate for the purposes of a family provision order to be made under Part 3.2. Accordingly, it is necessary to determine whether a family provision order should be made in Victor’s favour.

71. Victor’s entitlement to a family provision order is governed by the terms of ss 59(1)(c) and (2), and 60, of the Act. The first relevantly provides:

(1)   The Court may…make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that…

(c)   at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person…

72. “Family provision order” is defined in s 3 of the Act to mean:

an order made by the Court under chapter 3 in relation to the estate or notional estate of a deceased person to provide from that estate for the maintenance, education or advancement of an eligible person.

73. Section 59(2) then provides:

(2)   The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.

74. In the present case the provision made by the deceased in his will in favour of Victor was a pecuniary legacy of only $500.

75. The next step is whether the court is satisfied, at the present time, that the provision is not adequate for the proper maintenance, education or advancement in life of the applicant. That question arises out of the terms of s 59(1) of the Act. I propose to treat this question as being a separate question to that raised by s 59(2) of the Act, and for that purpose will follow the conclusions stated by Hallen J in Underwood v Gaudron [2014] NSWSC 1055 at [163] - [165].

76. Hallen J has set out important principles relevant to determining the answer to this question in Underwood v Gaudron at [130]-[153], which his Honour has repeated in many subsequent cases. I respectfully adopt those statements of principle, and will state in summary form the principles that I consider to be material to the present application.

77. In the present case Victor is not in need of additional education, but his claim for an additional provision comes within the concepts of maintenance and advancement in life.

78. Section 59(1)(c) requires that the court determine whether the will has not made adequate provision for the proper maintenance, education or advancement in life of Victor. The question is not simply whether the provision is adequate. The meaning of the terms “adequate” and “proper” are crucial. As Hallen J stated in Aubrey v Kain [2014] NSWSC 15 at [63]:

“The word ‘adequate’ connotes something different from the word ‘proper’. ‘Adequate’ is concerned with the quantum, whereas ‘proper’ prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 W.A. are 127, per Buss JA, at 145 [72], [77].”

79. Hallen J set out extracts from authorities that have considered the difference in meaning of the two words at [63]-[70].

80. It will be sufficient to set out the following extract from the judgment of Dixon CJ and Williams J in McCosker v McCosker (1957) 97 CLR 566, at 571-572, in relation to how the court should apply the concept of “proper”:

“It means ‘proper’ in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator’s ability to meet such claims having regard to the size of his fortune. If the Court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the Court has jurisdiction to remedy the breach and for that purpose to modify the testator’s testamentary dispositions to the necessary extent.”

81. In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), said at [18]:

‘Proper maintenance’ is not limited to the bare sustenance of a claimant…but requires consideration of the totality of the claimant’s position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility.

82. The court must assess the provision made by the testator from the perspective of whether it is “wise and just”. Testamentary power lies principally in the testator. The size of the estate available is an important consideration, because the testator is limited in his or her determination of what is wise and just by the extent of the property available for distribution, and accordingly a provision may be “proper” in the circumstances of a particular estate, when that would not be so if the testator had available more assets for distribution. The testator is also entitled, and required, to consider all of the competing claims upon his or her bounty and their relative urgency.

83. As Hallen J noted in Aubrey v Kain at [50], in cases identified by his Honour, judges of this court have used the following expressions to describe the mental process involved in deciding whether a provision made by a testator is relevantly adequate and proper; being that the state of satisfaction “depends upon a multi-faceted evaluative judgment” (Basten JA); it involves “an intuitive assessment” (White J); and it is “an evaluative determination of a discretionary nature, not susceptible of complete exposition”; and one which is “inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific” (Stevenson J).

84. In Butler v Morris [2012] NSWSC 748 at [106], Hallen J set out principles that are “useful to remember” that may be relevant where the applicant for a family provision order is an adult child. I respectfully agree with the observations that his Honour made. I will limit the following extract from his Honour’s observations to the factors that are relevant to the present case:

[106] In relation to a claim by an adult child, the following principles are useful to remember:

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

(b)   It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child…The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his or her children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801.

(c)   Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child’s life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so... But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia…

(e)   There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45.

(f)   The adult child’s lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003) at [181] and [182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17].

(g)   The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd at 149.

(h)   Although some may hold the view that equality between children requires that “adequate provision” not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the Court’s determination of an applicant’s case.

85. If the requirement in s 59(1)(c) is satisfied, then the court is empowered by s 59(2) of the Act in terms that it “may make such order for provision out of the estate of the deceased person as the court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the court at the time the order is made.” It is clear that the effect of the inclusion of the word “may” is that the Court has a true discretion as to whether any order should be made, and if so what order ought to be made: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 212 per Mason CJ, Deane and McHugh JJ.

86. Section 60(2) of the Act sets out a list of factors that the court “may” consider in determining whether to make a family provision order, and the nature of any such order. The matters that are listed in s 60(2) are a helpful list of factors that may be taken into account, but the section makes plain that the court can have regard to any other matter that it considers relevant, and the factors are not necessarily determinative in any case: West v Mann [2013] NSWSC 1852 at [12(10)].

87. In a general way, many of the matters listed in s 60(2) are material to Victor’s application:

The following matters may be considered by the Court:

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

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

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

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

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

…

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

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

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

…

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

88. I have omitted the paragraphs contained in s 60(2) that do not appear to me, and were not submitted to be, significant to the present application.

89. A feature of the present case that requires special consideration is the almost total estrangement of Victor from his father for a period of many years before the deceased’s death.

90. The general principles concerning the significance of estrangement were, with respect, correctly summarised by Hallen J in Underwood v Gaudron at [230] - [244]. This summary of principle was not disturbed on appeal and was referred to by Ward JA (with whom Meagher JA agreed) in Burke v Burke [2015] NSWCA 195 at [95]. In the circumstances it will be convenient to set out only the following part of his Honour’s reasons:

[231] Because, in this case, there is a factor raised by the deceased (and by Mary and Kathryn) that bears on the quality of the relationship, being that Helen was estranged from the deceased for about 20 years before death, it is necessary to set out some other general principles which should be remembered:

(a)   The word “estrangement” does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties to the relationship. Whether the claim of the applicant on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case: Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Deceased) v Lathwell [2008] WASCA 256, at [33].

(b)   The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361, at [88]–[94]; Foley v Ellis. In Palmer v Dolman, Ipp JA, after a review of the cases, observed, at [110], that:

… the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act.

(c)    There is no rule that, irrespective of a Plaintiff’s need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to “ample“ provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases.

(d)   The Court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one “who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility": Ford v Simes [2009] NSWCA 351, at [71], per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed…

(f) Even if the applicant bears no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the Court’s discretion under s 59(2) of the Act to make a family provision order where the jurisdictional requirements of s 59(1) are met. That the applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them the love, companionship and support present in normal parent/child relationships, during those years, is a relevant consideration: Keep v Bourke [2012] NSWCA 64, per Macfarlan JA, at [3].

(g)   The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, may operate to restrain the amplitude in the provision to be made: Keep v Bourke, per Barrett JA, at [50].

(h) Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. In addition, s 60(2)(m) permits the Court to consider the character and conduct of the applicant at the second stage of the process. Care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a Courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time: Foley v Ellis, at [102].

Section 60 matters to be considered by the court

91. Section 60(1) of the Act permits the court to have regard to the matters set out in s 60(2) for the purpose of determining whether to make a family provision order in favour of Victor and the nature of any such order.

92. It will be convenient to deal with the matters listed in s 60(2) that are relevant to Victor’s application.

Relationship between Victor and the deceased – s 60(2)(a)

93. In response to the provision in s 60(2)(a) of the Act, that any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, may be considered by the court, for the purpose of determining whether to make a family provision order, and the nature of any such order, Victor candidly stated in his 20 January 2016 affidavit:

I did not have a good relationship with my father. It was not a loving father/son relationship, but one where I considered him to be an aggressive, controlling brute. I was in constant fear of physical beatings and verbal abuse…

94. Victor developed his explanation for the estrangement between himself and the deceased at some length in his affidavit.

95. At the time of Victor’s birth, his parents operated a combined fruit shop and milk bar at the Oatley property. The family lived in a residence at the rear of the property.

96. Victor gave evidence of working in the Oatley business from when he was around five years of age. The Oatley business was sold when Victor was about 10 or 11 years of age. The deceased kept the Oatley property, and leased it to the operators of the business. Victor continued to do household chores, until he was about 12 years of age, when the deceased bought an established fruit shop business at Wentworthville. Victor then returned to working in the business until he was about 16 years of age, after he had completed year 10. The business operated for long hours, and the work required of Victor was onerous. Victor was not paid for this work.

97. Victor said that he understood that the deceased expected him to continue working for the deceased in the business. Victor wanted to pursue an apprenticeship in carpentry or as a builder. He raised this desire with the deceased on several occasions throughout 1975, and the deceased said: “Okay, but you will need to work in the fruit shop until you find a job as an apprentice”. However, from late 1975 to early 1976, when Victor showed the deceased advertisements for positions as an apprentice in carpentry, the deceased said: “No, you can’t do an apprenticeship. You have to stay in the family business”. This response led to considerable acrimony between Victor and his father. Victor continued to work in the business without pay, or pocket money, as he had no money and was scared of his father, and felt he had no choice but to stay in the family home and to work in the Wentworthville business.

98. In an affidavit sworn by Maria in her proceedings, part of which was read by Victor, Maria said that, after she had completed year 10, she asked her father whether she could try to obtain an apprenticeship as a hairdresser, but he refused permission. Maria continued to work in the family business.

99. Victor said that his memory of physical beatings and verbal abuse extended from his early childhood years through to when he left home at 19 years of age to join the Navy. One of his early and traumatic childhood memories from when he was about 4 or 5 years of age was being badly beaten by the deceased. He said that he remembers being curled up on the bathroom floor as his father pounded his fists into his body and kicked him. He said that he remembered his mother rushing towards him and throwing her body over his to protect him from the blows. This only further enraged the deceased, and he violently beat Victor’s mother for trying to protect him. He said that he considered his father to be a cruel, angry, abusive and violent man, who believed that his children owed him for everything.

100. Victor also said that he remembers when he was a child, the deceased used to pull his hair and twist his ears so badly that Victor could hear them cracking. The deceased used to throw furniture around, and break crockery and glasses.

101. Victor said that life was always harsh and unbearable due to the violent nature of the deceased. In the years after Victor left high school after completing year 10, he decided he could not continue to live with his father. In around 1976, when Victor was around 17 years of age, he said that he became so hopeless that, one Saturday night, he walked out the door of the Ryde home in the hope of finding somewhere safer to live. He had no money or belongings, just the clothes that he wore. He ended up in a hostel somewhere, which was very run down. He decided that he could not stay in the hostel, so he decided to return home and explore other options of escape.

102. In around 1977 or 1978, Victor decided that joining the Navy was the best option for him to escape. In 1978, Victor applied for a position in communications as a radio operator in the Navy. After selection interviews, and medical and psychological assessments, Victor was accepted by the Navy for training due to commence in October 1979.

103. Soon after Victor was accepted by the Navy, he had a conversation with the deceased to the following effect:

I said:   I have applied to join the Navy and my application has been accepted. I will be leaving on 15 October 1979 to start training at HMAS CEREBUS, Westernport, Victoria.

He said:   You will not leave. You are gutless. If you leave then you are dead to me. You will be dead to the family and you will never be allowed to see or speak to your mother or brother and sisters again.

104. Anthony’s position, as stated in his outline opening submission, is that there is no corroboration of Victor’s claim that the deceased was a terrible father, and in particular, that Anthony and Katrina do not corroborate that claim. In final submissions, Anthony categorised the relationship between Victor and the deceased by suggesting that this was a case where the two adults decided that they would live their lives without involving the other. They just got on with their own lives, without spending too much time worrying about the other.

105. Victor denied in cross-examination that the only discipline that he ever had from his father was a stick or a strap across the legs or being spanked with a hand (T 24.25).

106. Victor’s evidence concerning the deceased’s violent and aggressive nature is supported by evidence given by Maria, concerning an incident after the deceased met Anna. After Maria made a comment to the deceased that he treated Anna better than he had treated Maria’s mother, the following occurred:

He said:   Anne (sic) is a lady and she knows how to treat a man. You’re not. You’ve got balls on your chest.

My father then slapped me across the face and said: “What are you going to do”?

I did not respond. I just walked out.

107. Anthony’s primary response to Victor’s claim concerning the deceased’s violence was to say, in par 22 of his 18 March 2016 affidavit:

My father was a hard man but I stuck by him. I considered he was a strict Italian father and I rarely challenged him. Whereas my other siblings were more outspoken, particularly Victor, and I observed they engaged in greater conflict with my father, before they ultimately stayed away, permanently. I don’t recall the beatings Victor and Maria depose to suffering at my father’s hands (or my mother being severely beaten by him) although they did argue with my father more than I. I recall my father hit my mother on two occasions but not as described by Victor and Maria in these proceedings. My father’s usual punishment was to hit us across the back of the legs with a belt for serious misbehaviours, or otherwise he and my mother both pulled our hair and twisted our ears. I did not consider such behaviour to be a “beating” but was what I understood to be discipline by strict Italian parents of the time…

108. Anthony confirmed (at par 24) that when Victor was leaving home, he heard the deceased say to Victor words to the effect: “If you leave, don’t come back”. Anthony said that the deceased later explained this statement by saying to Anthony that he wanted the family to stay together, and that if he told them not to come back, they would stay.

109. Anthony confirmed in cross-examination that the deceased “was from the old school. He was very hard and strict” (T 40.40). He said: “If you challenged him, you’d get into trouble”, and the deceased would hit you (T 41.2). He agreed that the deceased would sometimes twist his children’s ears (T 43.13). He agreed that his father would beat his children on the legs with a belt for serious behaviour (such as Anthony leaving the fruit shop for a while and not helping in the shop (T 43.37)). He also agreed that the deceased would discipline his children (he was harder on his older children) using a “broom handle, a stick, whatever he could grab” (T 44.26).

110. In response to a question as to whether the deceased was a very controlling man, Anthony conceded that “he was a little bit controlling” (T 45.4).

111. Significantly, when asked whether he saw Victor challenging the deceased, Anthony said (T 41.15): “Yeah. Well, he stood up a little bit more than me”.

112. Anthony conceded that he thought about leaving himself, but he did not do so (T 45.14).

113. I accept the substance of the evidence given by Victor concerning the nature of his relationship with the deceased up to the time when Victor joined the Navy, as well as the deceased’s response when told by Victor that he had joined. I accept that Victor’s evidence was given truthfully. His evidence was not significantly challenged in cross-examination concerning the violent nature of the deceased’s conduct, save for the attempt to get Victor to concede that the conduct was not quite as extreme as Victor had claimed. Anthony conceded that he was not always present, and that more violent conduct on the deceased’s part could have occurred without Anthony knowing of it.

114. I also accept Anthony to be a witness of truth. The evidence given by Anthony concerning the conduct of the deceased does not, in any case, differ much from that given by Victor, except perhaps as a matter of degree.

115. The evidence paints a picture of the deceased being a very hard disciplinarian, who regularly engaged in relatively extreme violence towards his wife and children when challenged or enraged. He required complete obedience. Any disobedience was visited by beatings with a broom handle, or a strap, or a hand. The deceased imposed upon his children an extremely onerous requirement that they work in his business for long hours without pay, or even pocket money. He prohibited Victor and Maria from obtaining apprenticeships that would give them a trade that would enable them to make their own way in life.

116. The evidence is clear (as substantially confirmed by Anthony) that, when Victor informed the deceased that he had joined the Navy, the deceased said: “If you leave then you are dead to me. You will be dead to the family and you will never be allowed to see or speak to your mother or brother and sisters again”.

117. In Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 White J made the following observations:

[124] It is often said that the judgment required by s 59(1)(c) as to whether adequate provision has been made for the proper maintenance, education or advancement in life of the eligible applicant is to be assessed having regard to “community standards” or “community values”. Thus, in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, Allsop P described the section as requiring a “broad evaluative judgment based necessarily upon community values” (at [14]; 660). Barrett JA said (at [97]; 679–680):

… the clear need for the court … to recognise community expectations is undiminished.

[125] I know of no way of determining what the community would expect, or what its standards are, or values would be. I do not know, but suspect, that the expectations of individual members of the community would vary widely. It may be that the Act itself, at least in so far as it goes beyond allowing provision to be made in favour of spouses and minor or disabled children, runs counter to community expectations about freedom of testamentary disposition. As Basten JA said in Andrew v Andrew (at [36]; 664), the only guiding light, consistent with the rule of law, for the identification of community standards are those reflected in current legislation. No legislation other than the Succession Act itself is relevant to the present case. Attempts to identify particular community standards, for example, that a testator need not make provision for an able bodied son, or that a widow’s claim is paramount, have been rejected (Hunter v Hunter (1987) 8 NSWLR 573 at 580; Golosky v Golosky [1993] NSWCA 111; Bladwell v Davis [2004] NSWCA 170 at [12]–[19]). To say that the court itself is the spokesman for the fair and reasonable man or woman in the community (Kearns v Ellis (Supreme Court of New South Wales, Court of Appeal, 5 December 1984, unreported, BC8400149) is to acknowledge that in truth there is no ascertainable external community standard to guide the decision.

118. While these observations of White J deserve very considerable respect, because of their self-evident wisdom, there are occasions, of which the present is one, where in my view it is reasonably safe for the court to recognise relevant “community standards” or “community values”, that are pertinent to the determination of whether adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person.

119. Whatever may have been the case in former generations, modern community values would now reject decisively the level of disciplinary violence that the evidence shows the deceased engaged in with his children. The modern community might still value, but not expect, children to work in the family business. The community would reject any paternal expectation that children work in the family business to a degree that jeopardised their schooling, and excessively diminished the enjoyment of their childhood. The community would reject a paternal expectation that children work in the family business except of their own volition, and for proper and adequate financial reward.

120. More relevantly, modern community standards would reject the moral entitlement of a father to intentionally banish a child from his and the family’s support, love and affection, either as a punishment for exercising the child’s freedom to choose a career, and a way of life, different from that decided upon by the father; or alternatively as a threat to achieve an enforced family communal life of the father’s own choosing.

121. While the expression of these conclusions does involve the court being “the spokesman for the fair and reasonable man or woman in the community”, and even though it is true in this case that “there is no ascertainable external community standard to guide the decision”, the absence of any objective standard or any scientific process for rationally identifying community standards and values does not prevent the court, in a reasonably clear case, from relying upon its holistic experience of community expectations to decide that some material community standards and values do exist with sufficient substance to merit reliance upon them in the process of determining a family provision application.

122. Victor gave evidence of occasional meetings with the deceased after Victor initially left home to join the Navy. Those meetings were unsuccessful in promoting any reconciliation between Victor and his father. In the 1980s Victor on a few occasions attended a restaurant at which the deceased played in a band. Victor did so at the invitation of another member of the band. He said that the situation was “tense and awkward”. Victor did not feel that the deceased wanted him around or wished to reconcile with him. The meetings did not continue. Victor met his father in 1991 and early 2000, but the meetings were unsuccessful, and on one occasion when the deceased and Anna were visiting Victor at his home, according to Victor the deceased was abusive and ridiculed and belittled Victor’s deceased mother. Victor decided to end all contact with the deceased. In 2002, when Victor and his father attended Maria’s 50th birthday party, the deceased according to Victor unexpectedly attempted to strike him, but missed.

123. Victor acknowledged that he declined to visit his father when he was dying, as he no longer had any feelings for the deceased.

Nature and extent of the deceased’s obligations – s 60(b)

124. It cannot be said that the deceased owed any obligations to Victor as such. It is likely that the deceased owed an obligation of support to his wife, Anna. The nature and extent of that obligation was not explored in the evidence in these proceedings.

125. In a practical sense, the deceased’s obligation to Anna is now manifested in the terms of settlement of Anna’s claim, which are set out at the par 41 above. As I have stated at par 27, the net value of the deceased’s estate, after various necessary adjustments, appears to have been about $490,000. That is the amount that would have been available to meet Victor’s claim for a family provision order, without the need for an order designating property to be the notional estate of the deceased. The effect of the terms of settlement, primarily by reason of the designation of the deceased’s interest in the Ryde property as being part of his notional estate, and the requirement that Anthony’s costs be paid out of the notional estate, was to increase the net value of the estate to about $590,000, as shown in par 37.

126. However, as I have discussed in pars 55 to 62 above, my understanding of Victor’s response to the settlement of Anna’s claim is that he accepts that the terms of settlement must be given effect, and the consequence will be that no part of the deceased’s estate remains available to meet any family provision order that the court considers should be made in Victor’s favour.

Nature and extent of the deceased’s estate – s 60(2)(c)

127. For the reasons given above, no part of the deceased’s estate is available to meet a family provision order in Victor’s favour.

128. Victor can only succeed if he establishes that the Oatley property should be designated as notional estate of the deceased, or that some part of the 30% of the net sale price of the Ryde property should be designated as notional estate.

Financial resources and needs of family members – s 60(2)(d)

129. As Anna and Maria have settled their claims for family provision orders, it is not necessary to consider their financial resources or needs.

130. The deceased made a pecuniary bequest of only $500 to Jeanette. Jeanette has not made an application for a family provision order. As Meagher JA (with whom Basten and Campbell JJA agreed) noted in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [94]: “… The fact that an executor has not led evidence as to the financial position of any beneficiary or beneficiaries will often provide a basis for the court to infer that each has sufficient income and resources to meet his or her needs”.

131. The court must therefore consider the financial resources and needs of Victor, Anthony and Katrina.

Victor Toscano

132. Victor is now 56 years of age. He got married in 1986 and had two children, Nicole in 1989, and Allan in 1992. Both of these children are therefore now adults. Victor and his first wife divorced in 1998. He said in his evidence that the house and the car and most other assets were given to his ex-wife in the property settlement, and he was left with very little, and had to pay child support until each of his children reached 18 years of age.

133. Victor remarried in 2000 and separated in 2015. Victor and his second wife, Sharon, have not yet agreed a property settlement in respect of the assets of the marriage.

134. Victor pursued his career in the Navy for about 20 years until 1999, and received a commission in 1995.

135. After he left the Navy in 1999, Victor moved to Sydney and became employed as a technical writer, trainer and training developer. In 2008, Victor began studying science at the University of Wollongong, and graduated in 2010 with a science degree, majoring in geology. He secured employment as a geologist with BHP and moved to Western Australia in January 2011. With the downturn in the mining industry, Victor lost his job as a geologist in August 2014. In September 2014, Victor gained employment as a technical writer with an engineering company, but the company went into liquidation within two months of his contract. In January 2015, Victor secured a technical writer role with a company in Sydney, and he worked in Sydney from January to May 2015. In May 2015, Victor returned to Perth to trial a remote working arrangement, which has been successful and is ongoing.

136. Victor’s present employer is BAE Systems Australia. The company’s office is at Henderson, Western Australia. Victor lives at Kinross, which is approximately 75 km away. He drives a 150 km round trip every day to attend work.

137. Victor’s present position is a permanent position but it is project based. That means that he is employed for a particular project. The project that Victor is currently working on has recently been extended by two years. When that period is complete, there is a prospect that Victor will be retrenched. The company is currently laying off staff members, and Victor is not guaranteed a job into the future, as this will be dependent on factors including whether the company obtains any new projects suitable for Victor’s skill set.

138. Victor would like to move closer to work at Henderson in Western Australia, or surrounds. He said that he would require two-bedroom accommodation, as he works from home on occasions and needs a home office. He also has a dog, and would prefer to keep his pet and for that reason would prefer a house rather than an apartment.

139. Victor tendered printouts from domain.com for properties near Henderson, to indicate the price range of properties that might be suitable for him. They included a two-bedroom house (best offer over $849,000), a two-bedroom house ($495,000 to $580,000) and a two-bedroom villa ($315,000).

140. As at 9 September 2016, Victor’s gross monthly income was $9327. His net monthly income was $6936, consisting of $5640 from his salary, and $1296 from a Defence Force Retirements and Death Benefits Scheme. Victor’s total net annual income is $83,232.

141. Victor’s total living expenses are $6878 per month, or $81,220 per annum. That amount includes $29,400 per annum in repayment of Victor’s home loan. (There is some basis for suggesting that some of these expenses might be slightly higher than is necessary – including a cost of $3768 per annum as pet expenses in respect of Victor’s dog, which is apparently sick – but Victor has been living within his income).

142. As at 9 September 2016, Victor’s assets and liabilities were as follows:

Asset	Value
5 Bennevis Turn, Kinross WA	$500,000
Home loan	($369,571)
Bank account	$4000 to $5000
Motor vehicle	$32,000
Car loan	($19,765)
Household furniture	$15,000
Superannuation	$325,000
Credit card debt	($4328)
Total	$482,336 to $483,336

143. Victor said that, to the best of his knowledge, Sharon’s assets consist of superannuation of $173,000, plus additional assets valued at about $17,000, with a credit card liability of $15,000.

144. Victor is in the course of negotiating a property settlement with his ex-wife. That negotiation has been suspended pending the outcome of these proceedings. Victor believes that a broad agreement has been reached that the net proceeds of the house at Kinross will be split 50/50. That will require the house to be sold. The issue of superannuation is under negotiation.

145. If the net value of the house at Kinross is split 50-50, then Victor will have about $65,215 in cash. The balance of his assets and liabilities is inconsequential. The court cannot make any assessment of what the outcome is likely to be in relation to Victor’s superannuation. (It may be that Victor will be required to pay more of the net value of the house to his ex-wife to even up their financial situation having regard to their different amounts of superannuation). Victor should not be able to access his superannuation until he reaches 65 years of age.

Anthony Toscano

146. Anthony is presently 62 years of age. He is married to Rosa. They have two sons, Victor Paul Toscano born on 10 August 1981, and Robert Anthony Toscano born on 24 October 1985. Victor is now married with three children. Robert has recently returned to live with Anthony and Rosa.

147. Anthony’s income from his business as a fruit seller is estimated at $30,000 per annum.

148. His estimated weekly expenditure is a relatively frugal $489 or $25,428 per annum. Anthony appears to live within his means.

149. In his final updating affidavit, Anthony estimated the assets and liabilities of himself and his wife, Rosa, as being $3,491,800, as follows:

Ownership	Asset	Value
Anthony & Rosa	11 Lansdowne Street, Concord & contents	$1,800,000
Anthony	Half share in Ryde property	$750,000
Anthony	Half share in Oatley property	$600,000
Anthony & Rosa	Cash at bank	$9000
Anthony & Rosa	Credit card liability	($200)
Anthony & Rosa	Superannuation	$333,000
Total	$3,491,800

150. This estimate of assets and liabilities was given after the settlement of Maria’s claim, but before the settlement of Anna’s claim. It does not allow for the consequences of either claim.

151. The amount payable to Maria is estimated at $100,576. That is payable out of the Oatley property. There is no evidence as to how that amount is to be borne, but it seems reasonable that it would be split equally between Anthony and Katrina. If so, Anthony’s interest in the Oatley property should be reduced by $50,288 to $549,712.

152. I have estimated above that, after the sale of the Ryde property by Anna, the 30% of the net sale price calculated in accordance with the orders made by the court should be about $427,000. That is a reduction of $323,000 from the $750,000 included by Anthony in the table set out above.

153. There is also the problem of what to do with the estimated costs and expenses of the estate, as the effect of the settlement with Anna is that there will be no assets in the estate to meet that cost. The total amount is $170,543. There was no evidence as to how that amount will be paid. As Anthony has given evidence that he has already paid much of the costs that have been incurred to date, and as he is the executor, it seems to be reasonable to assume that Anthony will have to bear any expenses of the estate that cannot be recovered from its assets.

154. The net effect of these considerations is that the net assets of Anthony and Rosa should be reduced by the total of $50,288, $323,000 and $170,543, which is $543,831.

155. Bearing in mind that these calculations involve estimates and assumptions, if no order is made in favour of Victor, Anthony and Rosa would have their home at Concord valued at $1,800,000, a half interest in the Oatley property valued at $600,000, cash from the sale of the Ryde property reduced from $750,000 to $206,169 (to fund the $543,831 referred to in the preceding paragraph), superannuation of $333,000, cash at bank of $9000, less a minimal credit card liability. The total is about $3 million.

156. Anthony gave evidence that, as at 18 March 2016, the monthly rental for the Oatley property was $6028.35 in total. Anthony will be entitled to receive half of this rent, being $3014.17, or $36,170 per annum. That will effectively double Anthony’s annual income.

157. If Anthony were to cease work, he would still be entitled to the rent, plus whatever he could earn from the investment of the $206,169 left over from his share of the net proceeds of sale of the Ryde property, and upon retirement he will be able to enjoy the income earned from his $330,000 in superannuation.

Katrina Morabito

158. Katrina is 50 years of age. She is married to David Morabito, and they have two children, namely Sean aged 14 years and Alicia aged 13 years.

159. The total gross family income is estimated at $66,168 per annum, of which Katrina earns $1560.

160. The estimated weekly family expenditure is $942 or $48,984 per annum. The family lives within its means, and the expenses are reasonable.

161. The table of assets and liabilities given by Katrina excludes the interest in the Oatley property given to her under the deceased’s will. I will insert the value of that interest in the table below, reduced by Katrina’s $50,288 share of the amount payable under the settlement with Maria.

Ownership	Asset	Value
Katrina & David	33 Belmont Grove, Grose Vale	$1,450,000
Katrina & David	Mortgage over Grose Vale	($625,000)
David	Share in business	Nominal
David	Speedboat	$60,000
Katrina & David	Cash at bank	$3550
Katrina & David	Credit card liability	($7500)
David	Superannuation	$357,000
Katrina	Superannuation	$59,500
Katrina	Half share in Oatley property	$549,712
Total	$1,847,262

162. Katrina’s income will also be increased by her $3014.17 per month share in the rent from the Oatley property, or $36,170 per annum.

Cohabitation with another person – s 60(2)(e)

163. Victor is no longer cohabiting with his wife, Sharon, as they are separated and in the process of entering into a marital property settlement. In the manner that I have considered above, the divorce is likely to reduce Victor’s assets, although the terms of the final marital property settlement are not known.

Victor’s age – s 60(2)(g)

164. As I have recorded above, Victor is now 56 years of age. He is in full time employment, but he says that his prospects of continuing in that employment until retirement age are doubtful.

165. Significantly, Victor only has in the order of nine years until normal retirement age. Given the likely consequences of his impending marital property settlement, it is improbable that Victor will be able to make savings from his income that significantly improves his present asset position.

Contribution by Victor to the deceased’s estate – s 60(2)(h)

166. The evidence establishes that Victor contributed to the acquisition of the deceased’s estate by the unpaid work that he did for his father at the Oatley and Wentworthville businesses from about the age of 5 to 11, and then from 12 to about 16. The nature and extent of that work has been considered above. A value cannot be placed on the work, but it should be treated as a significant contribution to the ability of the deceased to acquire the Ryde and Oatley properties, given that unpaid and involuntary work by a child should be treated as being of special value.

167. Anthony also contributed to the acquisition of the deceased’s estate in the same manner as did Victor, and in Anthony’s case the contribution continued for a much longer period and was clearly much more significant.

168. Katrina did not give evidence of having worked for substantial periods in the deceased’s businesses.

Provision for Victor made by the deceased

169. The deceased effectively provided little or no provision for Victor during the deceased’s lifetime, save for board and lodging during Victor’s childhood.

170. The pecuniary legacy of $500 that the deceased left Victor in his will is inconsequential.

Has adequate provision for Victor been made by the deceased?

171. The amount $500 should be measured against the provision of half of the value of the Oatley property to Anthony and Katrina, and half of the value of the Ryde property to Anthony.

172. It is clear that the deceased was very selective in relation to the provisions that he made in favour of the members of his family in accordance with his idiosyncratic views concerning their respective calls on his bounty. In determining the provisions that he should make, the deceased effectively rewarded the children who persisted in their relationship with him, notwithstanding his egregious conduct, and who bowed to his will. Anthony was given particular preference because of the exceptional amount of time that he assisted his father in operating the father’s businesses.

173. The estrangement between Victor and the deceased was effectively absolute, but the evidence justifies a positive finding that the estrangement was the fault of the deceased, and that it was not unreasonable for Victor, given his particular temperament, to fall out with his father.

174. It was entirely legitimate for Victor to seek an occupation that would provide him an independent life, and it was proper for Victor to leave home to join the Navy.

175. The evidence establishes that, when Victor told the deceased that he had been accepted into the Navy, the deceased told Victor that if he left, Victor would be “dead to me” and to the family, and would never be allowed to see or speak to his mother or siblings.

216. Even though an argument based upon the avoidance of an abuse of process may have provided a remedy for Victor’s inability to assert an estoppel against the defendants, it is not available in the present case because the court was not required to determine the issue of whether the properties formed part of the notional estate of the deceased, when it made the orders in Anna’s and Maria’s cases.

217. I also do not accept the argument put by Victor that the consent by the defendants to the orders made in respect of Anna’s and Maria’s claims constitute admissions by the defendants that the properties formed part of the deceased’s notional estate for the purposes of Victor’s claim. The conduct by a party in consenting to the making of an order in one case designating property of the deceased as part of the notional estate of the deceased, for the purposes of settling the claim made in that case, should not be taken to be an admission that the criteria required to be satisfied before the property can be designated as notional estate have been satisfied. Where the orders consented to are made as part of a settlement, in the absence of some express admission, the court should not treat the act of consenting to the order as being an admission of any matter of fact or law.

218. In any event, the power of the court to make an order designating property formerly owned by a deceased as part of the deceased’s notional estate is sensitive to the facts and circumstances of each individual claim that is made in respect of the deceased’s estate by different claimants: see s 87(b) of the Act, which prohibits the court from making an notional estate order unless it has considered the substantial justice and merits involved in making or refusing to make the order. That provision may have the result that property is designated as notional estate of the deceased on one party’s claim, but not on a claim made by another party.

219. The court must therefore determine whether any property formerly owned by the deceased, which remains available to be designated as his notional estate, should be so designated for the purpose of meeting the pecuniary legacy and order for costs that the court would otherwise make in favour of Victor.

220. The transfers of each of the Ryde and Oatley properties were relevant property transactions under s 75(1) of the Act, because the deceased did an act in each case (being the execution of a transfer) that resulted in each of the interests that he transferred “being (a) held by another person (whether or not as trustee)”. Anthony and Katrina came to hold the whole of the Oatley property as registered proprietors, and Anthony came to hold a half interest in the Ryde property as registered proprietor.

221. The transfers that are in evidence show that the consideration for each transfer was $1, which is plainly not full valuable consideration: see Kastrounis v Foundourakis [2012] NSWSC 264 at [95]. I accept the evidence that in each case the transferee paid the requisite stamp duty, but that was the payment of an obligation imposed upon the transferee by the Duties Act 1997 (NSW), and was not consideration given to the deceased.

222. For the purposes of s 77(1) of the Act, the relevant property transaction occurred on 1 July 2013 in the case of the Oatley property, and 1 September 2013 in the case of the Ryde property, which was the date of the transfer in each case.

223. As each relevant property transaction occurred more than one year, but less than three years, before the date of the death of the deceased, the effect of s 80(2)(a) of the Act is that the court may only make an order designating each property as notional estate of the deceased, if each transaction was entered into with the intention, wholly or partly, of denying or limiting provision being made out of the estate of the deceased person for the maintenance, education or advancement in life of any person who is entitled to apply for a family provision order.

224. In Kastrounis v Foundouradakis [2012] NSWSC 264, Hallen AsJ (as his Honour then was) said of the application of s 80(2)(a) of the Act:

[108] Section 80(2)(a) requires the relevant property transaction to be entered into with the intention, wholly or partly, of denying or limiting provision being made out of the estate of the deceased for the maintenance, education or advancement in life of any person who is entitled to apply for a family provision order. Interestingly, the section does not identify whose intention it is, but it must be the deceased’s intention that is to be proved: Hildebrandt v Soncini [2007] NSWSC 1227 at [21]–[28].

[109] In Hinde & Hinde [2008] FamCA 24, Carmody J, in another context, said:

The ordinary natural meaning of the word “intends” is to mean, to have in mind. Relevant definitions in the Shorter Oxford English Dictionary show that what is involved is the directing of the mind, having a purposeful design. Intention is not the same as motive or desire. A person may do something fully intending to do it without desiring it at all. Euthanasia is an example. A motive is having a reason to do or not to do something. It is a subjective state of mind which can not be conclusively established as a fact except perhaps by truthful admission.

[110] However, more than mere contemplation by the deceased is necessary. In Cunliffe v Goodman [1950] 2 KB 237, a decision of the English Court of Appeal, Asquith LJ, again, in another context, considered, in some detail, the meaning of the term “intention”. His Lordship said at 253:

An “intention”, to my mind, connotes a state of affairs which the party “intending” — I will call him X. — does more than merely contemplate. It connotes a state of affairs which, on the contrary, he decides, so far as in him lies, to bring about, and which, in point of possibility, he has a reasonable prospect of being able to bring about, by his own act of volition. X. cannot, with any due regard to the English language, be said to “intend” that it shall be a fine day to-morrow. At most he can hope or desire or pray that it will. Nor, short of this, can X. be said to “intend” a particular result if its occurrence, though it may be not wholly uninfluenced by X’s will, is dependent on so many other influences, accidents, and cross currents of circumstance that not merely is it likely not to be achieved at all, but, if it is achieved, X’s volition will have been no more than a minor agency collaborating with, or not thwarted by, the factors which predominately determine its occurrence.

[111] Whether the deceased has the necessary intention is a question of fact to be decided upon consideration of all the circumstances. One might expect there to be some language, written or oral, used, or adopted, by the deceased, from which the court is able to find, as a fact, the necessary intention prior to, or at, the time of, the relevant property transaction.

[112] It is the intention with which the transaction was entered into, rather than the effect of that transaction, which is important. If that intention cannot be established, that the effect of the transaction is to wholly or partly, deny, or limit, provision, does not matter. It is not enough that the relevant property transaction has that particular result. In other words, what the subsection requires is not cause and effect, but intention and effect: Wilson v Wright (NSWSC, 25 February 1992, unreported), per Windeyer J.

226. These observations were repeated in Zagame v Zagame [2014] NSWSC 1302 at [171], and Stojanovski v Stojanovski [2016] NSWSC 976 at [303].

227. In Stojanovski v Stojanovski, Hallen J also said:

[208] It is always difficult to assess the intentions of a person who has left no specific directions, or indications of that intention. The Court, in those circumstances, looks at such facts and circumstances as are available, in order to determine what was more likely to have been intended by the deceased. Regard may be had to all of the circumstances (whether before or after the time of the transaction) in determining whether, at the time of the transaction, the Court is satisfied that the deceased had the relevant intention.

[209] It is for the party relying upon the section to establish clear and convincing proof that the deceased, by some act or words, demonstrated that it was her, or his, then intention to deny, or limit, the provision that might be ordered in a claim brought by an eligible person.

228. Even where a deceased did in fact have the intention, when making a relevant property transaction, that would attract the application of s 80(2)(a), it may in some cases be very difficult for a claimant for a family provision order against the estate of that deceased to satisfy the burden of proving that the intention existed. The reason for the existence of this difficulty is obvious, as an intention is a subjective matter, and the content of the deceased’s intention, particularly when that intention may have been directed to numerous objectives, may well not emerge obviously out of a consideration of the objective circumstances in which the transaction was put into effect. There may be no documents that record the deceased’s intention. If the deceased made oral statements as to their intention, the statements may have been made to persons who have no interest in disclosing the content of the statements for the benefit of the claimant, or the statements may have been made to the professional advisers of the deceased, who may feel or be subject to professional inhibitions against disclosing confidential information provided to them by the deceased. There is therefore a real chance that the objective of s 80(2)(a) will be thwarted in many cases because of difficulties of proof faced by claimants, who were not privy to the making of the relevant property transaction.

229. With respect to the view expressed by Hallen J, at [209] of Stojanovski v Stojanovski, that the applicant for a family provision order who seeks to rely on s 80(2)(a) of the Act must prove that the deceased had the requisite intention by establishing “clear and convincing proof”, his Honour did not mean, to my understanding, that the applicant has to do anything more than to establish the existence of the intention to the ordinary civil standard of proof that requires that the court be satisfied on the balance of probabilities that the deceased had the intention. Hallen J’s reference to “clear and convincing proof” is a reference to the process of judicial reasoning, and the level of satisfaction required, before a court should find a particular fact or issue proved.

230. Section 80(2)(a) of the Act should not be interpreted in a manner that requires an applicant for a family provision order to establish any pre-requisite for the making of an order designating property as notional estate of the deceased with any heightened standard of proof. The notional estate provisions are at least in part intended to have a remedial effect by limiting the ability of persons to avoid their testamentary obligations that are reflected in ss 59 and 60 of the Act, by transferring property before their deaths.

231. The present situation is not equivalent to that considered by McClelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 319, where his Honour said:

Each element of the cause of action must be proved to the reasonable satisfaction of the Court, which means that the Court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not ... attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding" (Helton v Allen 63 CLR 691 at 712).

232. McClelland CJ in Eq was dealing with a civil claim of misleading and deceptive conduct where the claimant was relying upon spoken words as the foundation of the cause of action, and there was an absence of any reliable contemporaneous record or other satisfactory corroboration. Where a claimant alleges that they have been injured by misleading and deceptive oral statements, the claimant is making a claim in the claimant’s own interests relying upon evidence of the claimant’s own recollection of the statements. It is natural in that context for the court to require a level of proof that allows the court to feel an actual persuasion of the making and terms of the statements. The situation may be quite different where a claimant for a family provision order will be defeated because of the absence of property within the estate of the deceased, and it is necessary for the claimant to prove the subjective intention of the deceased at a time up to 3 years before the date of the deceased’s death, where the claimant will often, if not usually, be a stranger to the relevant property transaction. I see no reason why the law should impose upon the claimant for a family provision order any special standard of proof, and the question should always be whether the court is satisfied on the balance of probabilities that the deceased had the requisite intention.

233. In Courtney v Powell [2012] NSWSC 460, Ball J said:

[68] Where property is transferred, an inevitable effect of the transfer is that, absent a notional estate order, the property will not be available to meet a claim for a family provision order. But effect, even inevitable effect, is different from intention. Intention requires that the relevant result (denying or limiting provision being made out of the deceased’s estate) is one that is sought to be secured by the transaction in question, although again that intention may be inferred from the consequence.

234. I respectfully accept these propositions, and note that while the intention to prevent the property transferred being available to meet a claim for a family provision order does not follow from the transfer having that effect, the consequence may be one factor that may assist in the court in drawing the inference that the intention existed.

235. One procedural rule that may in some cases ameliorate the difficulty faced by claimants is that, where on the evidence available to the claimant the claimant is able to establish a sufficient appearance that the required intention existed, to call for a response by the defendant executor, a burden of adducing evidence may shift to the defendant. That is at least so in cases where it appears that evidence should be available to the defendant to counter the conclusion that would otherwise be reached on the basis of the claimant’s evidence. In my view this principle should apply as much to the issue of proving the presence of the intention required by s 80(2)(a) as it has been held to apply to the requirement in s 75(1) of the Act that a transaction is only a relevant property transaction if full valuable consideration has not been given. As to this latter requirement, Hallen J said in Zagame v Zagame [2014] NSWSC 1302:

[162] The onus of establishing that full valuable consideration was not given, it seems to me, lies on the party asserting that proposition. Where, however, that party establishes a prima facie case of inadequacy of the valuable consideration given, the evidential burden will pass to the other party to establish that there was, indeed, consideration given, and the extent of that consideration. (I expressed this view in Kastrounis v Foundouradakis [2012] NSWSC 264 at [99]. Stevenson J agreed in de Blac v Lo [2014] NSWSC 142, at [98].)

236. Section 80(2)(a) of the Act refers to an intention “of denying or limiting provision being made… for… any person who is entitled to apply for a family provision order”. Read literally, the sub-section would be satisfied if the applicant could show that the intention existed in respect of some person, even if that person was not the applicant. If the deceased had the intention in respect of any person, then the relevant property could be designated notional property for the purpose of facilitating the satisfaction of a family provision order made in favour of some other applicant who the deceased did not have in mind at all.

237. The question is whether the Act should be read in this way, or whether the particular applicant for a family provision order is required to establish that the transaction was entered into by the deceased with the intention of denying or limiting provision being made out of the deceased’s estate in favour of the applicant.

238. It is to be noted that the provision of the Family Provision Act 1982 (NSW) (the Former Act) which corresponded to s 80 of the Act is s 23. In particular, s 23(b)(i), which is the equivalent provision to s 80(2)(a), used the words “that [referring to the applicant] or any other eligible person”. That made it clear that, under the Former Act, it would be sufficient to show that the deceased entered into the transaction with the required intention in relation to any possible applicant for a family provision order.

239. The authors of Succession Law and Practice New South Wales (Butterworths looseleaf) at [s 80.3.2] suggest that s 80 of the Act is to the same effect as s 23 of the Former Act, except in ways that are not presently material.

240. In Wardy v Salier [2014] NSWSC 473, White J (as his Honour than was) said in relation to a different provision of the Act:

[132] It appears from the report of the New South Wales Law Reform Commission to which I refer at [114] above that no substantive change was intended by the change in the wording of the legislation. However, that is relevant only if it assists in fixing a meaning to the text of the statute. The inquiry begins and ends with a construction of the text. Where more than one construction is open, a construction which will promote the purpose of extending the powers of the court to the full range of benefits and advantages controlled by testators will be preferred.

241. In its Report 110 Uniform Succession Laws: Family Provision, the NSW Law Reform Commission commented on the proposed cl 31 (which is materially in the same terms as s 80 of the Act) that the clause is based on s 23 of the Former Act: see [3.27]. The Commission noted, at [3.28], one difference between the two provisions (being a difference that is not presently material), but did not suggest that any other change in wording was intended to create any different result.

242. I am satisfied that the expression “any person” in s 80(2)(a) of the Act must be applied literally so that property may be designated as notional estate of the deceased if the deceased had the intention, wholly or partly, of denying or limiting provision being made out of the deceased’s estate for the benefit of the claimant for a family provision order, or by any other possible claimant.

243. This conclusion is consistent with the reasoning of Ball J in Courtney v Powell [2012] NSWSC 460, where his Honour made an order in favour of two brothers designating as notional estate of the deceased a property transferred by the deceased to his daughter before his death with the intention, in part, of preventing only one of his sons being able to make a claim in respect of the property: see [69]-[71].

244. The use of the expression “with the intention, wholly or partly” in s 80(2)(a) of the Act has the effect that property may be designated as notional property of the deceased, if the deceased intended to achieve other objectives, even if those other objectives represented the deceased’s primary purposes, provided some real part of the outcome that the deceased intended to achieve was to deny or limit provision being made in the manner described by s 80(2)(a): see Courtney v Powell at [69].

245. It is clear that the deceased had Victor in mind when he made his will, notwithstanding the length of his estrangement from his son, because he gave Victor a pecuniary legacy of $500.

246. There is no direct evidence that the deceased executed the transfers of interests in the Ryde and Oatley properties with the intention of denying or limiting provision being made out of his estate in favour of Victor. In particular, there is no evidence that the deceased had in mind at the time of the transactions that there was a realistic possibility that Victor might be entitled to a family provision order out of his estate.

241. There was evidence that supports a finding that the deceased had a strong desire that the properties that he had acquired should never be sold, and should be retained in the ownership of his immediate family.

242. In about 1973, the deceased and his then wife purchased 14 Samuel Street, Ryde. They built a home on the property, and subsequently subdivided it, thereby creating the Ryde property. Anthony gave evidence that the deceased promised to transfer the Samuel Street property to him in return for the long period of work by Anthony in his father’s business, for very little wages. Anthony married his wife, Rosa, in 1977, and shortly thereafter moved into the Samuel Street property. Anthony said that the deceased changed his mind about giving the Samuel Street property to Anthony, and said words to the effect:

I’m not transferring the house [at Samuel Street] to you in case your wife tries to sell it. I want to keep it in the family.

249. This evidence must be balanced against the fact that, in about 2009, the deceased gave the Samuel Street property to Anthony’s son, Victor, as a wedding present.

250. Anthony gave evidence that, in late 2012 or early 2013, the deceased said to him words to the effect:

I want you and Katrina to have the Oatley property. I want you to get more though because of your work in the businesses all of these years. I want to transfer 60% to you and 40% to Katrina. I don’t want you to sell the property ever. Our family grew up there since we built it in 1954.

251. Notwithstanding the suggested disparity in the ownership shares, the deceased transferred the Oatley property to Anthony and Katrina in equal shares.

252. This evidence is also consistent with the deceased having a desire to keep the family property within the family.

253. Anthony also gave evidence that, in the middle of September 2013, when he was visiting his father and Anna, the deceased said to Anna in his presence words to the effect:

I’m giving my half share in Ryde to Tony. He’s worked in the business so long.

254. As I understand the evidence, the deceased was the sole owner of the Ryde property. If he referred to his “half share” in the property, as suggested by Anthony, he must have had in mind that his wife, Anna, had, upon some unidentified basis, a right to the other half share, and only that amount.

255. I am satisfied on the evidence that the primary intention of the deceased when he transferred the Oatley property to the defendants and a half share in the Ryde property to Anthony was to confer benefits on them out of love and affection and, in Anthony’s case, to reward him for his long service in assisting the deceased to conduct his businesses.

256. I am also satisfied that the deceased had a subsidiary intention of trying to ensure that as much of his property as possible was retained by his children who had remained close to him on a long-term basis.

257. The question is whether the evidence requires a finding, on the balance of probabilities, that the deceased also had an intention to prevent his primary objectives being thwarted by the making of a family provision order in favour of some person.

258. The most likely person to be the subject of any such intention on the deceased’s part, even if only a subsidiary intention was his wife, Anna. There is no evidence of the deceased’s knowledge of the entitlement of a man’s wife to a proper provision out of his assets, whether upon divorce or death. However, it is difficult to accept in the modern world that any person could escape at least some level of knowledge that a spouse has obligations of maintenance and support to the other spouse that can be enforced by orders of the Family Court of Australia upon separation or divorce, or by application for a family provision order if inadequate provision is made in the deceased spouse’s will (even if knowledge of the existence of such rights is not understood in any precise detail). It is less likely that the deceased would have had the intention required by s 80(2)(a) of the Act in relation to Victor, as the deceased could well have regarded himself as having no enforceable obligation to Victor in relation to the disposition of his estate, by reason of the estrangement, and that Victor was an adult child who was capable of looking after himself.

259. In my view the facts that were established by Victor on the evidence established a sufficient likelihood that the deceased did have such an additional intention to, at least in relation to any application that might be made by Anna, call for the defendants to lead evidence that ought to have been available to them to displace a finding by the court that the deceased did have that intention, or alternatively to explain why the circumstances did not permit the defendants to lead such evidence.

260. The two transfers were made by the deceased shortly before he made his will; by some 3 ½ months in the case of the Oatley property, and 1 ½ months in the case of the Ryde property. He could have achieved the same result as he achieved by making the transfers by leaving the properties to the transferees in his will.

261. The deceased’s decision to transfer the properties during his lifetime, rather than to leave the properties to the transferees in his will, might have been explicable on the basis that he wanted the transferees to enjoy the benefits of ownership of the properties immediately, rather than to have to wait until his death.

262. However, Anthony gave evidence that, following the transfer of the Oatley property, the deceased opened a bank account in the names of himself, Katrina and Anthony, into which the net rents received from the managing agent were paid, and out of which expenses associated with the property were paid. Anthony accepted in his evidence that, until the death of the deceased, the only person to draw money out of the account for personal purposes was the deceased.

263. The tax returns of the deceased on the one hand, and Anthony and Katrina on the other, reflect the income from the rent payable by the lessees of the Oatley property being income of the deceased, and not income of Anthony and Katrina.

264. Additionally, following the transfer of the half interest in the Ryde property to Anthony, the deceased continued to live in that property until his death, without making any payment to Anthony to reflect Anthony’s half ownership of the property.

265. Consequently, the transfers of the interests in the two properties to the transferees did not have the practical effect of giving them any benefits from the transfers, in advance of what they would have enjoyed if the interests had been left to them in the deceased’s will.

266. The question the court must ask itself is: as the transfers made by the deceased were virtually contemporaneous with the making of his will, and as he did not make the transfers so that the defendants could immediately enjoy the benefits of ownership, what intention could the deceased rationally have had other than to ensure that the defendants became owners by means of the transfers and not by means of his will? And if that was the case, what intention could he have had other than to protect his estate from the making of a family provision order or orders in favour of other members of his family?

267. Apart from the evidence given above at pars 250 and 253 of brief statements by the deceased concerning his intention to transfer each of the properties, the defendants did not lead any evidence of any conversations with the deceased to explain why he transferred the properties to the defendants in circumstances where he continued to use both of the properties as if they were his own. The defendants did not give evidence that there were no such conversations, and it is highly probable that there were.

268. If the deceased made statements to the defendants concerning his reasons for making the transfers while retaining all the benefits of ownership, and those statements provided evidence of an intention on the part of the deceased that excluded an intention to deny or limit provision being made in favour of any other member of his family by means of a family provision order, the defendants ought to have given evidence of those statements, but they did not.

269. There is also the question of why the deceased transferred half of his interest in the Ryde property to Anthony, and then included a term in his will giving his (remaining) interest in that property to Anna.

270. The deceased had been the sole owner of the Ryde property, and the making of the transfer of half of the title to the property to Anthony, leaving the other half to pass to the deceased’s wife under the will, must have been done by the deceased for the purpose of attempting to ensure what proportion of his total assets were received by his wife.

271. The deceased could have achieved the outcome that he wished by executing a will that left half of his interest in the Ryde property to Anna and half to Anthony.

272. Again the question must be asked: what could the deceased’ intention have been when he transferred his half interest in the Ryde property to Anthony 1 ½ months before he made his will, given that he continued to live in the Ryde property as if he was the sole owner, if that intention was not to be able to control what proportion of his property would be received by his wife on his death?

273. The defendants did not tender any evidence of any conversations with the deceased that could explain that his intentions did not include preventing Anna obtaining anything more than half of the deceased’s interest in the Ryde property.

274. I accept that the defendants did not know what the terms of the deceased’s will were until after his death, but the defendants ought to have been able to give evidence of discussions with the deceased concerning the transfer of the properties in circumstances where the deceased retained all of the fruits of ownership, as the cooperation of the defendants was necessary to enable the deceased to do so.

275. I note that the deceased’s will was apparently drawn by Levy Partners, solicitors of Ryde, and that no evidence was called from any member of that firm, and no documents tendered from the firm’s file, concerning any instructions given by the deceased for his will, or any explanation for his actions.

276. The two transfers may have been prepared by a solicitor. The solicitor responsible for the transfer of the Oatley property is identified as Daniel Saad. No solicitor was called to give evidence.

277. As Anthony is the executor of the deceased estate, the defendants ought to have been in a much better position than was Victor to interview the solicitors who prepared the transfers and the deceased’s will to enquire whether the deceased made any statements to the solicitors

278. I am satisfied that the court should draw an inference that the deceased had an intention, albeit a subsidiary intention, to transfer a half interest in the Ryde property and the whole of the title to the Oatley property in the proportions that he chose, to the two of his children who had remained closest to him, in a manner that would allow him to determine the disposal of his estate, and to reduce the chance that his intentions would be thwarted by any legal proceedings, being in fact an application for a family provision order. It is most likely that the deceased’s subjective intention was directed towards the position of his wife, Anna, but it is also reasonably likely that he was concerned with all of the members of his family who he did not consider to be close to him.

279. I therefore conclude that the properties the subject of both of the transfers are available for the making of orders designating them as notional estate of the deceased for the purpose of meeting the proposed order for the provision of a pecuniary legacy and order for costs that I have decided should be made in favour of Victor, in so far as the designation requires the satisfaction of the criteria in s 80(2)(a) of the Act.

280. As I understand the defendants’ submissions, they do not argue that the order designating the properties as notional estate of the deceased should not be made because some provision of the Act, other than s 80(2)(a), has not been satisfied. In any event, I am satisfied: (1) that the two relevant property transactions directly disadvantaged the estate of the deceased (s 83(1)); (2) the designation of the properties as notional estate of the deceased would not significantly interfere with the reasonable expectations of Anthony and Katrina (s 87(a)); (3) the designation is not inconsistent with the substantial justice and merits of the case (s 87(b)); and (4) the deceased’s estate, after allowing for the settlement of Anna’s claim, is insufficient to meet the making of the proposed family provision order and order for costs in favour of Victor (s 88(b) and (c)).

281. In my view it will be proper and just for the pecuniary legacy and order for costs in favour of Victor to be borne equally by Anthony and Katrina, in relation to the property transferred to them, which will be designated as notional property of the deceased. That will have the effect that Anthony’s share could be borne by the money he receives from the implementation of the settlement of Anna’s claim, or his half interest in the Oatley property. Katrina’s share will have to be borne by her half interest in the Oatley property.

282. I have decided that Anthony and Katrina should be required to bear the pecuniary legacy and order for costs in favour of Victor equally, notwithstanding that Anthony overall received a greater share of the deceased’s property than did Katrina, because it appears that Anthony, as the sole executor, will have to bear various costs that I have considered above, which he will not be able to recover from the estate, because the effect of the settlement of Anna’s claim is that she will receive all of the assets in the estate.

283. I propose to invite the parties to suggest appropriate short minutes of order to give effect to these reasons for judgment. That will in particular give Anthony and Katrina an opportunity to decide how they wish to fund the orders that will be made in favour of Victor, as, particularly in Katrina’s case, she may not want the Oatley property to be sold to fund the orders.

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Decision last updated: 16 April 2018