Underwood v Gaudron - [2014] NSWSC 1055

Supreme Court

New South Wales

Medium Neutral Citation: Underwood v Gaudron [2014] NSWSC 1055
Hearing dates: 22 and 24 July 2014
Decision date: 07 August 2014
Jurisdiction: Equity Division
Before: Hallen J
Decision:
(a) The Plaintiff's amended Summons is dismissed.
(b) Subject to any submissions, there be no order as to either party's costs, to the intent that she, and they, are to pay her, and their, own costs of the proceedings.
(c) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10), and Practice Note SC Gen 18 (Para 26) following the determination of the costs of the proceedings.

Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiff, a daughter of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendants also children of the deceased - Deceased left Will in which no provision made for the Plaintiff - Explanation given - 20 years of no contact between Plaintiff and the deceased - Small estate - Estate distributed - Proceedings not commenced within time - Whether sufficient cause shown - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and, if so, the nature and quantum of the provision to be made - Whether property to be designated as notional estate - Whether "special circumstances"
Legislation Cited: Civil Procedure Act 2005 (NSW)
Family Provision Act 1982 (NSW)
Practice Note SC Eq 7
Practice Note SC Gen 18
Succession Amendment (Family Provision) Act 2008 (NSW)
Succession Act 1981 (QLD)
Succession Act 2006 (NSW)
Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Allardice v Allardice; In re Allardice (1910) 29 NZLR 959
Allen (Deceased); Allen v Manchester [1922] NZLR 218
Andre v Perpetual Trustees WA Ltd as Executor of the Will of Barbara Helen Owen Stewart [2009] WASCA 14
Andrew v Andrew [2011] NSWSC 115
Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Aubrey v Kain [2014] NSWSC 15
Barna v Barna [2008] NSWSC 1402
Bartlett v Coomber [2008] NSWCA 100
Baychek v Baychek [2010] NSWSC 987
Blyth v Spencer; Spencer v Neville [2005] NSWSC 653
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Buckland, Deceased, Re [1966] VR 404
Buggle v Buggle [2012] NSWSC 1009
Bull, Re [2006] VSC 113
Burke v Burke [2014] NSWSC 1015
Butcher v Craig [2009] WASC 164
Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748,
Campbell v Chabert-McKay McKay [2010] NSWSC 859
Cameron v Cameron [2009] SASC 27
Carstrom v Boesen [2004] NSWSC 1109
Cetojevic v Cetojevic [2007] NSWCA 33
Charnock v Handley [2011] NSWSC 1408
Christie v Manera [2006] WASC 287
Coates v National Trustees Executors and Agency Co. Ltd [1956] HCA 23; (1956) 95 CLR 494
Collicoat v McMillan [1999] 3 VR 803.
Collins v McGain [2003] NSWCA 190
Coventry (Deceased), Re [1979] 3 All ER 815
Crossman v Riedel [2004] ACTSC 127
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Dobb v Hacket (1993) 10 WAR 532
Donaldson v Lawless [2013] NSWSC 861
Doshen v Pedisich [2013] NSWSC 1507
Dunne v Dunne [2013] NSWSC 1911
Dunne v The Nominal Defendant (1954) 71 WN (NSW) 87
Evans v Levy [2011] NSWCA 125
Flathaug v Weaver [2003] NZFLR 730
Foley v Ellis [2008] NSWSC 288
Ford v Simes [2009] NSWCA 351
Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep)
Gardiner v Gardiner [2014] NSWSC 435
Gilbert, F B (Deceased), In re the Will of (1946) 46 SR (NSW) 318
Goldsmith v Goldsmith [2012] NSWSC 1486
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Goodsell v Wellington [2011] NSWSC 1232
Gorton v Parks (1989) 17 NSWLR 1
Grey v Harrison [1997] 2 VR 359
Hampson v Hampson [2010] NSWCA 359
Harrison v Harrison [2011] VSC 459
Hawkins v Prestage (1989) 1 WAR 37
Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Hunter v Hunter (1987) 8 NSWLR 573
Hyland v Burbidge [2000] NSWSC 12
John v John [2010] NSWSC 937
Kay v Archbold [2008] NSWSC 254
Kavalee v Burbidge; Hyland v Burbidge [1998] NSWSC 111; (1998) 43 NSWLR 422
Keep v Bourke [2012] NSWCA 64
Khreich v NSW Trustee & Guardian [2012] NSWSC 1299
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Lewis v Lewis [2001] NSWSC 321
Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Deceased) v Lathwell [2008] WASCA 256
MacGregor v MacGregor [2003] WASC 169
Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146
Marks v Marks [2003] WASCA 297
Marras, In the Estate of the late Anthony [2014] NSWSC 915
Mayfield v Lloyd-Williams [2004] NSWSC 419
McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566
McGrath v Eves [2005] NSWSC 1006
McKenzie v Topp [2004] VSC 90
Moore (bht the NSW Trustee & Guardian) v Randall [2012] NSWSC 184
Morris v Smoel [2014] VSC 32
Palaganio v Mankarios [2013] NSWSC 61
Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361
Phillips v James [2014] NSWCA 4
Pogorelic v Banovich [2007] WASC 45, [62]; Butcher v Craig [2009] WASC 164
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Puckridge, Deceased, In the Estate of (1978) 20 SASR 72
R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808
Salmon, Deceased, Re [1981] Ch 167
Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473
Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100
Sergi v Sergi [2012] WASC 18
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Slack v Rogan; Palffy v Rogan [2013] NSWSC 522
Slack-Smith v Slack-Smith [2010] NSWSC 625
Smith v Woodward (Supreme Court (NSW), Macready M, 9 September 1994, unrep)
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Szypica v O'Beirne [2013] NSWSC 297
Taylor v Farrugia [2009] NSWSC 801
Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572
Thompson v Public Trustee of NSW [2010] NSWSC 1137
Tobin v Ezekiel [2012] NSWCA 285
Twomey v McDonald [2012] NSWSC 22
Vasconelos v Bonetig [2011] NSWSC 1029
Verzar v Verzar [2012] NSWSC 1380
Verzar v Verzar [2014] NSWCA 45
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep)
West v Mann [2013] NSWSC 1852
Wilcox v Wilcox [2012] NSWSC 1138
Williams v Aucutt [2000] 2 NZLR 479
Zannetides v Spence [2013] NSWSC 2032
Zirkler v McKinnon [2002] NSWSC 285
Texts Cited: Rosalind Atherton, 'The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?' (1999) 5 Australian Journal of Legal History 5
J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths)
Macquarie Dictionary
Oxford Dictionary
Category: Principal judgment
Parties: Helen Underwood (Plaintiff)
Mary Genevieve Gaudron (first Defendant)
Kathryn Terese Gaudron (second Defendant)
Representation: Counsel:
Ms T Catanzariti (Plaintiff)
Mr B Skinner (Defendants)
Solicitors:
Cranston McEachern Lawyers (Plaintiff)
Licardy & Company (Defendants)

File Number(s): 2013/326127

Judgment

The Claim

HIS HONOUR: These reasons relate to proceedings, in which, now, a family provision order, pursuant to the Succession Act2006 (NSW) ("the Act"), consequential relief, and costs are sought by the Plaintiff, Helen Underwood (formerly Margaret Helen Gaudron), out of the estate and/or notional estate of her mother, Grace "Bonnie" Gaudron ("the deceased"). A family provision order is an order made by the court in relation to the estate, or notional estate, of a deceased person, to provide from that estate and/or notional estate, for the maintenance, education, or advancement in life, of an eligible person.

The Plaintiff commenced the proceedings by Summons filed on 29 October 2013, which was more than three years after the date of the deceased's death. As will be read, the Act provides that an application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the court otherwise orders on sufficient cause being shown. In these circumstances, the Plaintiff sought an order extending the time for the making of her application.

The Summons appears to have been prepared by the Plaintiff herself. This may explain the references in it to the Family Provision Act 1982 (NSW) ("the former Act"). The former Act applies in respect of the estate of a person who died before 1 March 2009. The former Act was repealed, effective from 1 March 2009, and was replaced by the Act, which applies in respect of the estate of a person who died on, or after, 1 March 2009. The provisions of the former Act referred to in the relief claimed in the Summons, therefore, were misconceived.

Other relief was claimed in the Summons (to some of which I shall refer later in another context). At the commencement of the proceedings, counsel for the Plaintiff, Ms T M Catanzariti, stated that the only relief the Plaintiff was now seeking was an order extending time for the making of the Plaintiff's application, a family provision order, a notional estate order, and an order for costs. Subsequently, counsel sought leave to file an amended Summons, which leave was granted, there being no objection by the Defendants.

An amended Summons seeking the relief identified by counsel was filed following the long adjournment on the first day of the hearing.

The Defendants named in the proceedings are Mary Genevieve Gaudron and Kathryn Teresa Gaudron, each of whom is also a daughter of the deceased, and a sister of the Plaintiff.

Without intending to convey undue familiarity, with no disrespect intended, and for convenience and clarity, I shall refer, hereafter, to the parties, family members, and witnesses, after introduction, by her, or his, given name or to Mary and Kathryn jointly, where appropriate, as "the Defendants". I shall refer to the Plaintiff as "Helen" as that is the name that she currently uses and has used since about 1990.

The Hearing

The hearing proceeded with the reading of the affidavit evidence; then, the objections to parts of the affidavits read were made and ruled upon; the cross-examination of Helen and of Mary then occurred; and, finally, counsel made submissions that supplemented the written submissions that each had filed. The estimated duration of the hearing was one day, but the proceedings were not concluded within that time. As both counsel were otherwise engaged on the following day, the matter was completed on the day after.

Helen's counsel indicated that, in order to save costs, it was unlikely that Helen, or her solicitor, Mr M P J Deed, would remain in Sydney for the second day of the hearing. In all the circumstances, this did not seem to be unreasonable, and there was no discourtesy to the court by both not attending.

On the second day, the balance of the submissions made on behalf of Helen concluded and Mr B J Skinner made submissions on behalf of the Defendants. Helen's counsel then made submissions in reply. The case concluded just before the long adjournment on the second day.

Formal Matters

The following facts are uncontroversial.

The deceased died on 21 August 2010. She was then aged 92 years, having been born in February 1918.

The deceased was married to Edward John Michael Gaudron in May 1942. (There were several separations during the marriage, but it is unnecessary to detail the history of the marriage as Edward predeceased the deceased, having died in April 1982.)

There were five children of the marriage, namely Mary, born in January 1943; Robert James Gaudron, born in March 1944, and who died in December 1944; Helen, born in April 1948; Kathryn, born in October 1949; and Paul Edward Gaudron, born in June 1953.

Mary caused to be published details of the deceased's death in the Sydney Morning Herald on 26 August 2010.

The deceased left a duly executed Will that she made on 13 April 2007 Letters of Administration with that Will annexed, was granted, by this Court, to Mary and Kathryn, on 14 March 2011. (John Robert Fogarty, the executor appointed in the Will, renounced probate on 18 September 2010. He is the son-in-law of the deceased, and the husband of Mary.)

By her Will, after the revocation of all former wills and other testamentary dispositions (Clause 1), the deceased provided for:

(a) The conversion of her estate into money and for the payment of debts, funeral and testamentary expenses (Clause 3);

(b) A specific bequest of two identified portraits to Mary (Clause 4(a));

(d) A pecuniary legacy of $5,000, to each of four named grandchildren (Clause 4);

(e) The bequest of the rest and residue equally to Mary and Kathryn for her own use and benefit absolutely (Clause 5).

The deceased, in the Will, was not silent as to the reasons for not making any provision for her two other children. The Will stated:

"6. In further definition of my wishes under this will I say that I have expressly made no provision for my other daughter MARGARET HELEN GAUDRON as I have had no contact with her since 1990 and our relationship has broken down and I do not have any moral obligation to see to her welfare.

7. In addition I say that I have similarly made no provision in this my will for my son PAUL EDWARD GAUDRON with whom I had no contact from 1998 until recently. Over the years I have lent him thousands of dollars which he has never repaid and in that year 1998 he received a large compensation payment for a railway accident and I do not have any moral obligation to see to his welfare."

According to the Inventory of Property, a copy of which was placed inside, and attached to, the Letters of Administration, the property owned solely by the deceased at the date of her death, was disclosed as having an estimated (or known) gross value of $350,000. At the date of death, her estate was said to consist of an unencumbered home unit in Birrong, a suburb of Sydney ($340,000), and money in a current bank account ($10,000). (I have omitted any reference to cents in the amounts and shall continue to do so. This may appear to result in minor mathematical miscalculations in the figures set out below.)

The deceased's household furniture and the paintings identified in the Will were said to be of "no commercial value". I should also mention that the glory box and its contents referred to was the subject of an inter vivos gift by the deceased. It, too, was said to be of no commercial value.

As it was a matter that had been raised by Helen in the Summons drafted by her, I should note the unchallenged evidence of the Defendants that the only income of the deceased was an aged pension and that she "had no income entitlements from State Rail". In addition, the deceased was not the owner of any property, jointly with any other person, at the time of her death. The deceased had purchased the Birrong home unit in about 1984.

No liabilities were disclosed in the Inventory of Property. Funeral expenses were paid out of moneys withdrawn by Kathryn, at the rate of $1,000 per day, from a bank account, at the request of the deceased, in the week before her death.

The amount actually transmitted to the Defendants' solicitor's trust account in April 2011 from the bank account was, in fact, $9,820. The costs of obtaining administration ($5,292) were paid out of the cash in the estate on 21 April 2011.

The Birrong home unit was sold in mid-2011, for a gross price of $360,000. The net proceeds of sale received into the solicitors' trust account, on 22 June 2011, were $349,890. Legal costs and disbursements of sale were paid ($3,448); some disbursements ($291) were paid; each of Mary and Kathryn was reimbursed expenses they had paid (in total $5,745); the four legacies, each of $5,000, were distributed on or about 29 June 2011; and the costs and disbursements of "final administration and Deed" ($3,245) were also paid at or about that time.

The parties agreed that the net actual estate available for distribution, in August 2011, was $321,766 and that it consisted solely of cash held in the trust account of the solicitors acting for the Defendants.

(At the hearing, Helen accepted that she did not wish to disturb the distributions made to the grandchildren of the deceased.)

Notice of intention to distribute the estate was published in the Sydney Morning Herald on 1 July 2011.

The contemporaneous trust account records of the solicitors acting for the Defendants reveal that a cheque for $160,883 was drawn, in favour of Kathryn, on 11 August 2011 and that, on the same date, two cheques, each for $80,441, were drawn, one in favour of each of Mary and Paul. (I shall return to why this was done later in these reasons.) It is clear that the estate, then, was fully administered and no further assets have been located as available for distribution.

It follows that there is no actual estate of the deceased at the date of hearing, since all of the property in the estate has been distributed. Thus, an issue for determination is whether any of the property that was distributed, or any other property (as to which see later) held by Mary or by Kathryn should be designated as notional estate.

During the course of submissions, I raised with the parties the question whether, in the event that Helen were successful in the proceedings, a notional estate order should be made in respect of specific property, or whether the court should not make, immediately, a notional estate order, but allow Mary and/or Kathryn an opportunity to indicate how they, or she, would satisfy any order for provision and any order for costs that was made in favour of the Plaintiff. The parties agreed that I should allow the Defendants an opportunity to do so and, if agreement could not be reached, a notional estate order could subsequently be made.

Paul has not participated in the proceedings. This may not matter because counsel for the Plaintiff submitted that Helen does not seek to designate any property held by Paul as notional estate. She submitted that any amount that had been paid to him should be treated as part of Mary's share of the estate that she, herself, had directed to be paid to Paul.

In calculating the value of the estate, actual or notional, finally available for distribution, the costs of the present proceedings should also be considered, since Helen, if successful, normally, will be entitled to an order that her costs and disbursements, calculated on the ordinary basis, be paid, whilst the Defendants, as the administrators representing the estate in the proceedings, irrespective of the outcome of the proceedings, normally, will be entitled to an order that their costs, calculated on the indemnity basis, be paid out of the estate and/or notional estate, of the deceased.

Helen's solicitor, Mr Deed, estimated Helen's costs and disbursements of the proceedings, including counsel's fees, calculated on the ordinary basis, to be about $34,144 (inclusive of GST and upon the basis of a one day hearing). (He estimated her costs and disbursements, calculated on the indemnity basis, to be $44,915 (inclusive of GST and upon the basis of a one day hearing).) She had paid $1,815, on account of disbursements, leaving $2,994, consisting of the Summons filing fee ($999) and the allocated hearing fee ($1,995) to be paid.

In the event that Helen obtains an order for her costs and disbursements, her financial position may be improved by the amount she has paid if she is reimbursed.

Their solicitor, Mr R A Licardy, estimated the Defendants' costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis, to be about $35,000 (inclusive of GST and upon the basis of a one day hearing). He stated that Mary has paid $10,000 on account of these costs and disbursements.

Neither party provided any updated costs estimate on the second day of the hearing.

On the topic of costs, I note that there is evidence of an "open offer" made by Helen to settle proceedings for $100,000, inclusive of costs.

The parties agreed that the only eligible person who has commenced proceedings under the Act is Helen. Each of the other surviving children of the deceased is an eligible person also. Paul has been served with a prescribed notice and Mary and Kathryn is each a party, but none of them has commenced proceedings.

In the case of each of Mary and Kathryn, the court will not disregard her interests as a beneficiary named in the Will of the deceased. Later in these reasons, I shall refer to the competing claim of each as a beneficiary. On this topic, I should mention, however, that, in a letter dated 25 June 2014 from the Defendants' solicitor to Helen's solicitor, the following passage appears:

"Our clients are not seeking to defend the distributions to them under the Will of the deceased on the basis of alleged needs. They have never made such assertion and do not intend to do so."

Additional Facts

In an affidavit sworn by Mary, and affirmed by Kathryn, on 28 January 2014, both gave evidence that, by letter dated 9 February 2011, Paul requested a copy of the deceased's Will from Mr V A Bizannes, who was the Defendants' solicitor on the application for the grant of Letters of Administration.

Mr Bizannes swore an affidavit on 3 February 2014, read by Helen in the proceedings, in which he stated "... a claim was instituted on behalf of Paul... in March 2011 by Lovett & Green, solicitors under the ... Act. The claim was resolved in August 2011 by payment to Paul ...".

The evidence of Mr Bizannes quoted does not appear to be completely accurate, as the parties agreed that, in fact, Paul did not commence proceedings, in any court, for a family provision order. Accordingly, I propose to read the quoted statement by Mr Bizannes as meaning that, following the receipt of a copy of the deceased's Will, Paul threatened to commence proceedings. Negotiations then took place between the Defendants and Paul, which resulted in Mary, pursuant to an agreement embodied in an undated Deed of Settlement in which she, Kathryn and Paul were parties, making a payment of $80,441, to him, from her share of the residuary estate. (Bearing in mind the net value of the deceased's estate, this equated to one quarter of the net estate available for distribution.)

Because some points were made about inferences to be drawn from this Deed, it is necessary to set out some of the passages contained in it:

"E. Mary is desirous of sharing her interest in her mother's estate with Paul on the basis that he and she should each receive one quarter of the net residue of the estate on terms that Paul enters into this deed of release.

...

NOW THIS DEED WITNESSETH that in consideration of the payment of the sum of $80,441.59 to Paul;

1. Paul hereby releases and indemnifies Mary and Kathryn as administrators of the Estate of Grace Gaudron from all claims, demands and/or causes of action pursuant to part 3.2.7 of the Succession Act 2006 (NSW) or hereunder relating to the will of Grace Gaudron and the administration of her estate.

2. Paul hereby further releases and indemnifies Mary and Kathryn jointly and separately from all claims, demands and causes of action whatsoever arising in relation to the dealings with one and other and/or any relationship past or present between them and/or any of them.

...

5. Each party further agrees that each may plead this deed as a complete defense to any action proceeding or suit which may hereunder be commenced in or in connection with [or] incidental to the subject matter of the deed."

Counsel for Helen asked no questions in the cross-examination of Mary going to the reasons for the form of the Deed or the circumstances in which it was entered. I shall return to some submissions made on behalf of Helen concerning the terms of the Deed and the inferences that were suggested should be drawn from its terms.

Additional Facts regarding the relationship of Helen and the deceased

There are a number of other facts that are not in dispute, or which have been established to my satisfaction, which are important to the determination of the proceedings.

On 12 March 1987, the deceased commenced proceedings, in this court, against Helen, seeking possession of the Birrong home unit and an order that Helen be restrained from entering that property without the deceased's prior express invitation. The Summons was returnable on 31 March 1987.

In support of that Summons, the deceased swore two affidavits, one of which was on 5 March 1987. That affidavit included the following paragraphs:

"2. The Defendant, my daughter, who is aged 38, has occupied the abovementioned premises with me for approximately two years. At no time has she paid me rent or an occupation fee. She has paid me money only for food and electricity and the telephone.

3. On Sunday 25th January 1987, I orally requested the Defendant to vacate the subject premises by 28th February 1987.

4. On 13th February 1987, I verily believe that, upon my instructions, my Solicitors forwarded a letter to the Defendant requesting her to vacate the premises within seven days.

5. As at the date of swearing this my Affidavit the Defendant has failed to vacate the premises.

6. I have not lived in the premises since 26th January 1987 as I fear for my safety and peace.

7. Since July 1986 there have been a number of arguments during which the Defendant has screamed at me and used abusive language to me.

8. On 26th January 1987, she threw a half jug of coffee over me.

9. I am currently aged 69 and I have been deprived of the use and enjoyment of my home as a result of which I have suffered loss and damage."

In her subsequent affidavit, sworn by the deceased on 31 March 1987, she added:

"8. Since 26 January, 1987 I have noticed that my house and its surrounding gardens have commenced to deteriorate. I have observed that my daughter has done no housework and the house is very untidy and dirty. The garden apart from a small amount of watering which I have been able to do in my daughter's absence during the day has not been touched by her."

In a handwritten affidavit sworn 31 March 1987, Helen responded:

"3. I advise having contributed towards the following outgoings in relation to the property since occupying the said premises

(a) $550 for purchase of tilt-a-door for garage

(b) $100 towards having a side door put on the garage

(c) $50 towards body corporation maintenance

(d) $50 towards water rates

(e) $300 for the purchase of an automatic washing machine

4. As regards the screaming at and throwing of a half jug of coffee over the Plaintiff, I contend that these instances occurred due to provocation on the Plaintiff's behalf.

5. Financially I am not in a position to even look for alternative accommodation prior to [the] end of May 1987 for the following reasons.

a) Cash at bank approx $45.00

b) Other assets - Furniture (stored in the garage)

- Car value approx $1,000.00.

c) I have just incurred medical expenses resulting from an accident resulting in hospitalisation. The cost of these expenses are estimated to be approx $1,000.

d) Car registration and insurance of approx $1,000 are due to be paid by the end of April.

e) I am not eligible for Housing Commission accommodation.

f) I am not eligible for Legal Aid.

6. As there has been no service of documents I am entitled to request the court to dismiss this matter and seek that the Plaintiff pay her own costs and reimburse me for loss of salary incurred as a result of attending the hearing of this matter.

7. I further say that whilst [I am in occupation of] the premises belong[ing] to the Plaintiff, she is not without accommodation in the short term. She has been residing for a period of in excess of 12 months with either of her other daughters - Mary Gaudron at xx xxxxxx, Coogee or Kathryn Witts at xx xxxxxx, Carringbah.

8. I respectively ask that the court, in lieu of my waiving service of the Documents, make an order allowing me stay in the premises until approx of middle of June, 1987 enabling me to find alternative accommodation.

9. I respectfully ask that the court order that the Plaintiff pay her own costs in this matter."

When cross-examined by counsel for the Defendants about those proceedings, and, in particular, the allegation that Helen had thrown a half jug of coffee over the deceased, Helen said, first, that she did not recall the incident. She had stated in her affidavit read in these proceedings, "the events may have occurred however I do not have a full recollection of it".

When she was reminded by the Bench of the contents of the affidavit that she had sworn in opposition to the evidence of the deceased in the possession proceedings, Helen accepted that she had had thrown a half jug of coffee over the deceased, but still maintained that she could not remember the incident. Strangely, and somewhat remarkably, as if by way of justification, she was able to say when further tested by counsel for the Defendants, that it "was not hot coffee".

Helen also states that she was very upset that the deceased went into her room "and went through my personal papers". She described the deceased doing this as "a serious intrusion on my personal privacy."

Although what occurred on 31 March 1987 (the return date of the Summons for possession) was not stated in the evidence, I gather from Helen's evidence that the result of the possession proceedings was that an order was made and that Helen vacated possession of the Birrong home unit. By that time, she had lived with the deceased for about 2 years.

Having vacated the Birrong home unit, on a date not disclosed in the evidence, Helen travelled to the far north coast of New South Wales and, then, to Queensland, where she has lived since then. She says that she tried to contact the deceased after she moved out of the Birrong home unit and before she left Sydney, but that she was met "with a brick wall". She says that she went to see the deceased four or five times and tried to contact her, by telephone, as well, but was unsuccessful in her attempts. She says that one "could have had a better conversation with a total stranger than I was able to have with my mother".

Helen suggests, but I do not accept, that the possession proceedings and the events referred to were not the principal cause of what followed. She asserts that the problems within the family had arisen upon the death of her father. She says "all family relationships disintegrated into estrangement from this time". This assertion does not sit comfortably with the fact that Helen lived in the Birrong home unit, with the deceased, after the death of her father, or with the contents of the deceased's affidavit, which refers to the events of 1986 and 1987.

In not accepting the evidence, I should mention that Helen commenced Probate proceedings in which she named Mr Bizannes as a defendant. Those proceedings were, apparently, discontinued. Although the Statement of Claim filed in those proceedings was not in evidence, Helen admitted, in cross-examination, that, in the Statement of Claim, she had asserted that "the reason for estrangement from [the deceased] was the commencement of the eviction proceedings in 1987" (T39.8 - 39.11).

Clearly, the deceased wished to disclose the reasons that actuated her to make the dispositions she had made. The court will consider any explanations given by the deceased in the Will, or elsewhere, explaining why she made her Will as she did. However, such explanations do not relieve the court from engaging in the enquiry required by the Act: Slack-Smith v Slack-Smith [2010] NSWSC 625, at [27]. What an explanation may do is cast light on the relationship between the deceased and that person, at least from the deceased's perspective.

In 1990, Helen started using the name "Helen" instead of "Margaret". She also changed her last name from "Gaudron" to "Audron", which she says was "because I was so upset by what my mother had done and as part of starting a new life". ("What my mother had done", in the context of Helen's affidavit, could only refer to the claim made in the possession proceedings. I cannot imagine that it could refer to Helen's seemingly petty assertion regarding a breach of her privacy.)

From 1990, Helen did not have anything more to do with the deceased. She accepted that she had not sent any Christmas cards or birthday cards to the deceased. She agreed that, when she married Dennis Underwood in 1994/1995, she did not inform the deceased of her marriage or invite her to the wedding. She did not, at any time, inform the deceased, that she had started to use the name "Helen" or that she had adopted her husband's last name following their marriage. She did not tell the deceased where she was living, or provide her with any information to enable contact to be made with her.

On the other hand, there appears to be no dispute that the deceased continued to live in the Birrong home unit and continued to have the same telephone number until shortly before her death in 2010.

Kathryn says that she "had no knowledge as to the exact whereabouts of the Plaintiff" although she "had heard that she had changed her name to Helen Audron and that she had remarried and was living in Brisbane". Precisely when she came to know of these matters was not disclosed in the evidence and Kathryn was not cross-examined.

Mary gave evidence that she had little contact with Helen from the time of Helen's first marriage in 1975 until she moved into the Birrong home unit in 1985. In relation to the incident in 1986, she stated that Helen arrived and became very angry that some of her furniture had been moved. She states the deceased's response was "You had all better leave. Things will only get worse if you stay". After that, she did not see, or speak to, Helen.

Mary gave evidence that, even prior to this incident, she had observed the relationship between Helen and the deceased deteriorate and that there was "a marked reluctance on the part of my mother to return to her home at Birrong". She observed, also, that the deceased "started to spend more time at my home and at the home of her sister-in-law, Evelyn Gaudron". When Mary asked the deceased about the cause of any problem between the deceased and Helen, the deceased responded "Stay out of it".

Mary acknowledged that, at some time in the 1990s, she had "heard that the Plaintiff had changed her name to 'Audron' and was living in Brisbane". She was asked no questions, during cross-examination, about when, precisely, she might have heard these things or from whom.

Helen asserted, but I do not accept, that the deceased could have found out about her whereabouts by asking Jane Fuss, Helen's daughter. Ms Fuss, who made an affidavit on 28 January 2014, and who was not cross-examined by Helen's counsel, stated that she did not see Helen between 1990 and when Helen married Mr Underwood in 1994/1995, and that she had not seen Helen at all since the marriage.

She also stated that, although her father had given Helen Ms Fuss' telephone number, and although she had received some telephone calls from Helen between 1999 and 2002, it had been necessary, in December 2002, for her to change the telephone provider because of the nature of the telephone calls she had received from Helen. Finally, Ms Fuss stated that she "lost all contact with my mother until June 2013, when I received a card at my current address". (A copy of the card was annexed to her affidavit. On it was a P.O. Box number and two telephone numbers, one home and one mobile, for Helen. On the envelope, the name "Helen Underwood" appears above same P.O. Box number.)

Finally, Ms Fuss recalled a conversation with the Defendants, on an occasion when she visited the deceased in hospital in 2010, in which they asked her whether she "had contact details for [her] mother". She responded "I have no idea where she is".

Helen also gave evidence that, from about 1999, she had "thoughts and contemplations" about contacting the deceased, but "had not gotten around to it". This seems extraordinary bearing in mind that so many years passed with no contact being made. It is more likely, had she wished to contact the deceased, that she would have done so.

Despite these matters, Helen asserted, for the first time in the witness box ("I am saying it now"), that it was the deceased who had made the decision not to have anything to do with Helen. The following passage in the transcript is instructive:

"Q. Ms Underwood, You were asked a number of questions by Mr Skinner and you said that you were saying now that it was your mother who wished to end the relationship?

A. Yes.

Q. Are the following facts correct? That you left New South Wales and went to Queensland?

A. I didn't initially go to Queensland, I went to the North Coast of New South Wales.

Q. You went to the North Coast of New South Wales and then went to Queensland?

A. Yes.

Q. Did you tell your mother you were going to either place?

A. No I didn't.

Q. Did you tell your mother you were getting married?

A. No.

Q. So after your marriage, in the events that occurred, having changed your name to your husband's name, she wouldn't have known what your married name was?

A. My mother wouldn't have but my daughter did.

Q. Your mother I'm talking about?

A. Yes.

Q. So far as you were concerned, you knew her address?

A. Yes.

Q. And when you left you knew where she was living at the time you left?

A. Yes.

Q. Leaving aside your daughter, and there seems to be some dispute about whether your daughter knew where you were, is it correct to think that it was impossible for your mother to know where you were?

A. No.

Q. How could she have found out?

A. My daughter.

Q. Other than through your daughter?

A. I don't know. I don't know is the answer but."

I am satisfied that it was Helen who chose to place distance, geographical and otherwise, between herself and the deceased. Undoubtedly, the deceased accepted the position, but it is difficult to know, in the circumstances, how she could have avoided it, if she had wanted to.

Yet, there is no evidence that the deceased took any steps to locate Helen during the period between 1990 and the date of her death or that she sought any information from any other person of her, or his, knowledge of Helen.

However, it does not assist Helen very much to say that the deceased also abandoned the relationship and did not take any steps to resurrect it. As is clear from the above evidence, the deceased did not know, directly, where Helen was living because, intentionally, Helen did not tell her. The deceased did not know, directly, that she had changed her name both before, and after, her marriage, because, again, Helen intentionally did not tell her. It is not surprising, in my view, that the deceased did not make contact with Helen. To my mind, leaving aside anything else, it is understandable that the deceased did not do so.

Bearing in mind the duration of the lack of contact between Helen and the deceased, I find that this was not a short-term estrangement or a case where an otherwise long and loving relationship between a daughter and her mother had been ruptured shortly prior to death. It was not a temporary, but a longstanding, estrangement. For about 20 years, there was a complete and unequivocal severance of ties between the deceased and Helen. Thus, its occurrence and its deep-seated nature are clearly established.

Also, this is not a case, unlike some, in which an applicant for provision, prior to the estrangement, has made personal, or financial, sacrifices in caring for the deceased, or in contributing to the deceased's estate. On the contrary, it was the deceased who took Helen into her home in about 1985, and allowed her to live there, for about two years, during which, it would seem, Helen did not pay the deceased any rent or occupation fee.

Accepting that the "outgoings" referred to by Helen in her affidavit, to which I have referred, were paid, the total of those outgoings is $1,050. Accepting that, in addition, Helen "paid [the deceased] money ... for food and electricity and the telephone", it was not a substantial amount that she paid for board and accommodation. (Helen accepts that she "did not pay rent as such" but says that she "contributed to food and drove [the deceased] around, including driving her to Mary's house".)

I accept that it was during part of this period (from about July 1986 until early 1987) that there were a number of arguments during which Helen "screamed at the deceased and used abusive language to her". I also accept that the coffee incident occurred.

Thus, the evidence corroborates the reasons given by the deceased for not making provision for Helen. The deceased, who was then 69 years of age, appears to have been so concerned about Helen's conduct that she had not lived in the Birrong home unit from 26 January 1987 because she "feared for her safety and peace". Litigation in this Court was required to have Helen vacate possession of the Birrong home unit so that the deceased could move back into her home, which, to my mind, demonstrates the seriousness of the events. Then, at the date of her Will (17 years later), there had been no contact with Helen from 1990, confirming that their relationship had, indeed, "broken down".

Evidence about the extension of time

Helen was not informed of the deceased's death and did not know about it. She points to the fact that Ms Fuss did not tell her, but I have dealt with the evidence given by Ms Fuss about her knowledge of Helen's whereabouts at about the time of the deceased's death and subsequently.

It was not until November 2011, when she was doing an internet search of the deceased's name, that Helen found out the deceased had died. She gave instructions to her solicitors to contact her sisters and set about obtaining the Exemplification of the Letters of Administration. (It is to be noted that Helen gives evidence that the internet search followed "discussions with my Solicitor concerning other legal matters [during which he] mentioned that I should attempt to mend my estrangement with my mother".)

It appears that Helen received the Exemplification on, or shortly after, 23 November 2011. The certified document she received from the Registry of this Court (a copy of which was in evidence) contained sealed particulars of the grant (of the Letters of Administration) and a sealed copy of the deceased's Will, but did not include a copy of the Inventory of Property. The "With Compliments" slip included the handwritten statement:

"Please be advise [sic] that Helen Underwood is not an executor or beneficiary under the Will. Therefore an Inventory of Property will not be issued."

In a letter dated 28 November 2011, (by which date the Exemplification must have been in her possession), Helen's solicitors, Cranston McEachern (Mr Deed), wrote to each of Mary and Kathryn in the following terms:

"We act on behalf of Ms Helen Underwood (formerly Gaudron) the daughter of the deceased Grace Gaudron who died in Sydney on the 21st August, 2010.

We have a copy of the Letters of Administration issued by the Registry of the Supreme Court of New South Wales indicating that the sealed Grant of Letters of Administration with Will annexed was issued on the 14th March, 2011.

We have firm instructions from our client that she, in accordance with the Will, has been disinherited by her late mother and that she will seek to make a claim on the estate.

We therefore formally provide you with notice of same and require you not to distribute any of the assets of the estate.

Could you please confirm that you have received this letter and formal notice of the claim."

In a letter dated 2 December 2011, Mary's and Kathryn's solicitors, Bizannes & Associates (Mr Bizannes), responded in the following terms:

"We are the solicitors for the estate having obtained Letters of Administration with Will annexed in the matter on behalf of Mrs. Underwood's sisters Mary Genevieve Gaudron and Katherine [sic] Theresa [sic] Gaudron. Your letter of the 28th November 2011 has been referred to us for reply and comment.

The Will of the late Grace Gaudron made no reference to your client and the steps taken by our clients were in accordance with Section 92 of the Probate and Administration Act 1898 (NSW). Our clients advised us that they received no notification from your client of any intended claim within the period following the death of the late Mrs. Gaudron on the 21st August 2010. Your letter is the first indication of any contemplated claim.

I have to advise that the estate has been distributed in full and accordingly there are no funds available to meet the claim vested in the estate assets. Our clients have concluded their obligations as administrators well prior to the receipt of your letter."

There was no response to this letter from Helen's solicitors, or from Helen, and, as stated, the Summons commencing the proceedings was not filed until 29 October 2013, which is almost two years later. The prescribed period had expired on 21 August 2011. Accordingly, the claim was made about 2 years and 2 months out of time.

Helen states that, following receipt of the letter dated 2 December 2011 from Bizannes & Associates, Mr Deed informed her that "he could not handle the case from Brisbane where his practice was located". This statement, which is found in Helen's principal affidavit, appears to me to be inconsistent with other evidence Helen gave at the hearing. In cross-examination, she stated that Mr Deed told her that, since the estate had been distributed, that was "the end of the story". Yet, the only "case" that was the subject of their discussion to be "handled" in Sydney was one in which Helen would seek provision out of the deceased's estate. Had Mr Deed said that it was "the end of the story", following receipt of the letter dated 2 December 2011, there would have been no case to handle from Brisbane.

Helen then gave evidence in her affidavit of 16 December 2013 as follows:

"73. In early 2012, I contacted Barry Beilby at Beilby Poulden Costello. Barry had acted for me in my divorce. I asked if he had a copy of the Deceased's earlier will and if he could refer me to a solicitor. However, he said that he did not have the Deceased's will. He said that he acted for Mary and for the Deceased and he had a conflict and could not even refer me to someone."

74. At the same time, I was involved in a very protracted dispute with the Department of Housing. The matter started as [an] eviction and has included [issues concerning] right to abatement of rent, right to information and scope of legal privilege. The case went through the QCAT, then on appeal to QCATA, then to the Queensland Court of Appeal, then to the High Court. I have been self represented in many of the cases and have had to do extensive research - Underwood v State of Queensland Department of Communities (Housing and Homeless Service) [2011] QCATA 275; Underwood v Department of Housing and Public Works [2013] QCATA 130; Underwood v Department of Housing and Public Works [2013] QCATA 132; Underwood v Queensland Department of Communities (State of Queensland) [2012] QCA 158; Underwood v Department of Communities [2013] QCA 234; Underwood v Queensland Department of Communities [2012] HCASL 179 (12/12/2012); Underwood v Queensland Department of Communities [2013] HCASL 56 (10/4/2013) (re-opening).

75. In November 2012, I came down to Sydney with a set of documents to file. However, the Registrar of the NSW Supreme Court refused to let me file them. She said that I had followed the wrong process and the documents were not in order. She suggested that I talk to the NSW Law Society and NSW Bar Association.

76. In November 2012, I spoke to the NSW Law Society. They said that I needed to apply for Legal Aid and get a refusal from Legal Aid before they would consider providing me with pro bono legal advice. On 28 November 2012, I applied to Legal Aid. On 4 December 2012, Legal Aid was refused ...

77. After I received the letter from Legal Aid, I applied to the NSW Law Society for pro bono assistance. On 16 January 2013, they advised that there were no solicitors on the panel who could assist ...

78. I then applied to the NSW Bar Association for assistance. On 1 February 2013, they advised that they would not provide assistance because the NSW Law Society said that my application lacked reasonable prospects of success. This was incorrect - the NSW Law Society never said that my application lacked reasonable prospects of success ...

79. Therefore, I had to do the work and research myself. It was very difficult for me to do the work. When I asked people at the NSW Supreme Court Registry for assistance, such as asking them what forms to fill out, they said that they could not give me legal advice.

80. I used LIAC (Legal Information Access Centre) at Mitchell Library. I would contact them by email and phone and they would send me things that I needed. I also used the Mason and Handler Succession Law Practice which was in the Queensland Supreme Court library. I was not able to borrow the Practice and the library is only open Monday to Friday from 8:30am to 4:30pm.

81. I was also still involved in my dispute with the Department of Housing."

Helen was not cross-examined about the steps she stated that she had taken following the letter from the Defendants' solicitor in December 2011. It is to be noted that, if she did attend the court in November 2012 with documents to be filed, this does not assist her, as it cannot be said that she acted promptly thereafter, since it took her almost another 12 months to commence the proceedings.

Also, as she had taken all these steps, it might be inferred either that Mr Deed did not give her the advice she stated he had given her, or she was not prepared to accept Mr Deed's advice. In any event, it is clear that she sought to persist with her claim against the deceased's estate, albeit very slowly. Her delays in bringing the claim are neither short nor readily explicable.

Helen accepted that she had not informed Mary or Kathryn, or their solicitors, of her intention to commence proceedings at any time following the letter dated 2 December 2011, which was received by Helen's solicitors on about 12 December 2011. Her answers to questions from the Bench included the following:

"Q. Am I right in thinking that you never told either Defendant that, even though you did not commence proceedings, you intended to commence proceedings at some time in the future?

A. I never actually communicated that but it was always my intention.

Q. You never communicated that?

A. No. Am I able to clarify?

Q. Yes?

A. It was my intention but until I had managed to do the necessary research and discovered that I could in fact make a claim which was getting towards when I came down to lodge the first application in 2012.

Q. You better keep your voice up so Mr Skinner can hear you.

A. Sorry. I was doing the research, until I researched and discovered that I could still make a claim after that 12 months and that was getting close to when I came down to file the first documents which were not accepted in 2012.

Q. But you never told your sisters?

A. No.

Q. That you were investigating ways of whether you could commence proceedings?

A. No.

Q. Or anything else?

A. No I thought it may be hostile."

Counsel submitted that her answers demonstrated that, because of her relationship with her sisters, particularly Mary, it was likely that she would not receive "a sympathetic response". Yet, one might have thought that it was the very likelihood of an unsympathetic response that would prompt her to inform the Defendants that she intended to make a claim as soon as she was able to.

I should mention that Mr Deed had sworn two affidavits in the proceedings but in neither had he given any evidence about the events of November and December 2011 and what had occurred thereafter until the commencement of the proceedings. He was not cross-examined by counsel for the Defendants.

Mary was asked, in cross-examination, whether she had ever instructed Mr Bizannes to write a follow up letter asking Helen's solicitors whether Helen would be making any claim or whether there would be any response to the letter of 2 December 2011. She agreed that she had not.

Counsel for Helen did not put any reasons to Mary for not writing to Helen prior to the letter of 2 December 2011. For example, she did not put that, as an executor, Mary had a duty to locate, and inform, all potential claimants of the fact of the deceased's death. (In referring to this example, it should not be thought that such a duty exists.) Nor did counsel put to Mary that she held a suspicion, at the time of the distribution, that Helen was likely to be a claimant.

With all of the evidence on this topic in mind, Helen has not satisfied me that she did not know of her rights to bring a claim out of time. Then, a question is whether the fact that she was involved in other litigation, which was occupying her time and resources, is a sufficient explanation for allowing almost two years to pass before the proceedings were brought. Of course, the answer to that question will not, on its own, provide an answer to the question whether the court should otherwise order on sufficient cause being shown.

Leave to Re-open

During the course of submissions, it was pointed out that certain evidence had not been advanced, and that a number of witnesses had not been cross-examined. In particular, the Defendants' counsel had not cross-examined Mr Deed upon his affidavits and Helen's counsel had not cross-examined Mary on certain aspects of her evidence going to "reasonable expectations" (as to which see later). Kathryn had not been cross-examined at all.

It was also noted, whilst each of Mary and Kathryn had stated the money distributed to her had been spent, that neither had given any evidence of when, or over what period, the spending had occurred. (I omit from the last statement the payment made to Paul by Mary out of her share of the estate, the date of which payment has earlier been identified.)

After the conclusion of the submissions by counsel for Helen, counsel for the Defendants made an application to re-open the Defendants' case to call evidence on when the money distributed to each of them had been spent. Counsel for Helen, unsurprisingly, opposed the application for leave to re-open, upon the basis that Helen would be prejudiced by the calling of this evidence at that stage, when, for example, there would be no opportunity to investigate the evidence that was proposed to be given. It was also pointed out that neither Helen nor her solicitor was in court to hear the evidence that was to be given.

Whilst I identified my principal reasons for doing so when I refused the Defendants' application, I said that I would include more detailed reasons for doing so in my reasons for judgment. I do so now.

The principle that guides the court in determining whether to grant an application for leave to re-open is whether the interests of justice, taken as a whole, are better served by allowing, or by dismissing, the application. In this regard, the court considers the ultimate effect on the interests of all parties. In doing so, the court considers a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the case earlier.

Usually, an application to re-open is based on the failure to call evidence caused by accident, mistake, including mistaken apprehension of the facts or law, want of foresight, recency of finding the evidence, or calculated decision. In this case, no explanation at all was provided for not calling the evidence during the course of the proceedings.

It is clear that the evidence was not "fresh evidence" in the sense that it was unavailable or not reasonably discoverable before the application was made. The case was one in which the Defendants were relying upon the fact that distribution of the whole of the deceased's estate had taken place and were resisting Helen's claim for an order designating the distributed property as notional estate.

In Mary's affidavit affirmed on 23 June 2014, for the first time, she stated that she had "used the monies from my late mother's estate to modify access to my house". In Kathryn's affidavit sworn on 23 June 2014, for the first time, she stated that she had "used the bulk of the monies from my mother's estate in the renovation and furnishing of the property in which I live and on gardening improvements. The residue was used for personal expenditure and general living expenses". Kathryn also stated that "[i]f the money received by me were designated notional estate for the purpose of making provision for the Plaintiff out of the estate of my late mother, I would have no option but to sell my place of residence."

There was unlikely to have been a misapprehension of the facts or of the law. In addition, other evidence suggests that the further evidence had been always available and could have been stated before the commencement of the hearing.

I accepted the submission that the evidence could be of importance in the Defendants' case on prejudice (as to which see later). But this suggests that it must have been obvious to the Defendants' legal representatives that the question of prejudice to each of Mary and Kathryn, if time was extended or if a designating order were made, would loom large in the determination of Helen's case. It follows that when, or over what period, each had spent the monies that had been distributed ought reasonably to have been foreseen.

I also accepted the submission that to allow the evidence would prejudice Helen, since she would have no immediately available method of testing the evidence given. For example, had the evidence been given earlier, a notice to produce financial records, or a subpoena addressed to the relevant financial institution, could have been served. Furthermore, Helen's legal representatives were entitled to know all of the evidence that she had to meet in making forensic decisions as to cross-examination, including whether or not to cross-examine.

To make the application following each party having closed her, or their, case, and after the submissions for Helen had been completed, required a good reason to permit the application, and, in this case, none was suggested. In addition, Helen was not present to see, and hear, the evidence if it were permitted to be given.

To adjourn the proceedings to remedy any prejudice to Helen, taking into account the costs, and the delay, consequences thereof, was not warranted, bearing in mind the value of the property sought to be designated as notional estate.

In making the order to dismiss the application for leave to re-open, I did not forget s 56(1) of the Civil Procedure Act 2005 (NSW) which provides that the overriding purpose of that Act and of rules of court is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

Taking into account all of the matters that one would consider on such an application, I concluded that the interests of justice did not favour the grant of leave to re-open. Accordingly, I dismissed the application.

The Statutory Scheme - The Act

Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out most of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is equally important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in the application.

The wording of the Act is similar to the wording of the former Act. (I shall refer to some of the differences later in these reasons.) However, it is necessary to remember the warning of Kirby P in Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100, at 76,304:

"Purposive construction of the Act

There is always a danger where a reformed Act borrows heavily upon ideas which previously existed in the common law or in an earlier statute, that lawyers will approach the construction of the Act affected by the previous law. Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 2 NSWLR 475, 478. That danger is but an illustration, in the specialised activity of law, of a universal phenomenon of psychology long established in relation to human perception generally. We tend to perceive what we expect. We expect that with which we are familiar.

There is a particular danger in the case of the Family Provision Act in construing its terms by reference to the law which developed around the Testators' Family Maintenance and Guardianship of Infants Act 1916. That Act was passed in earlier times to govern the entitlements of a testator's family, as narrowly defined. The definition by s 3(1) of that Act confined applications to those made by 'the widow, husband or children of such persons'. There was no mention in it of former spouses. Doubtless this was because, for the early part of this century, divorce was relatively infrequent and then based upon concepts of matrimonial fault which would make interference in the testamentary disposition of the deceased unlikely. When enacted, the statute was a radical interference in the power of testamentary disposition. That was a significant power over private property, the disturbance of which was regarded as highly exceptional."

The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008 (NSW). A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers, upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, Will. It is only if the statutory conditions are satisfied that the court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate (or the disposition on intestacy), to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary.

Extension of time for the making of the application

Section 58(2) of the Act provides that an application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the court otherwise orders on sufficient cause being shown. (Consent is no longer referred to as it was in the former Act.)

There is little doubt that the time limit imposed by s 58(2) of the Act has the obvious purpose of ensuring that an application for provision out of an estate does not unduly interfere with prompt administration of the deceased's estate: Andre v Perpetual Trustees WA Ltd as Executor of the Will of Barbara Helen Owen Stewart [2009] WASCA 14, per Steytler P (with whom Pullin and Buss JJA agreed), at [38].

There is also the purpose of ensuring that beneficiaries, adopting the language of McHugh J in relation to limitation periods in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 552 "... should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against [the estate]."

Clearly, permitting the court to "otherwise order" was included in the legislation to avoid the section becoming an instrument of injustice. It also makes the decision to extend time a discretionary one upon sufficient cause being established: Vasconelos v Bonetig [2011] NSWSC 1029, per White J, at [16].

Yet "[T]he time constraint imposed by s 58(2) on the making of a family provision application is not a mere formality": Verzar v Verzar [2012] NSWSC 1380, at [98]. It is "a substantive provision laid down in the Act itself and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules": Re Salmon, Deceased [1981] Ch 167, at 175.

In Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146, Pembroke J, at [23] - [24], put it more strongly:

"...Section 58(2) reveals a clear legislative intention to limit applications for family provision orders to those made within a defined, and strictly confined, period. An application is made by filing an originating process commencing proceedings in the registry of the court: Section 58(3).

The short time period imposed by Section 58(2) reflects the judgment of parliament that the welfare of society in connection with the administration of deceased estates is best served by imposing a strictly limited time for making applications. This is not unreasonable. In most cases the putative claimant will be well aware of the testator's death and the (allegedly) insufficient provision made for him or her. There will only occasionally be a good excuse for not making a claim within time. In fact, experience indicates that the deceased's relatives usually pay uncommonly close attention to such matters. That is not to say that cases will not arise where, for legitimate reasons, a claimant is quite unaware of the death, or of his or her legal right to make a claim, and is unable to comply with the 12 month time limitation. In those circumstances, the statutory exception requiring 'sufficient cause' may well apply."

White J in Vasconelos v Bonetig, at [20], noted that "The policy behind s 16(2) would be put at nought if an applicant could decide, at his or own choosing, how long he or she should wait before plucking up the strength to institute proceedings." (Section 58(2) is in terms similar to s 16 of the former Act, except that the words "for the application not having been made within that period" are not included after the words "sufficient cause being shown".)

In Moore (bht the NSW Trustee & Guardian) v Randall [2012] NSWSC 184, White J, at [39], wrote that the expression "sufficient cause" "means sufficient explanation or sufficient justification or excuse for the application not having been made within the prescribed period". That is to say, the sufficient cause or reason to which s 58(2) is directed is that for allowing an application to be made out of time: Verzar v Verzar [2014] NSWCA 45, per Meagher JA, at [24].

In Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572, at [84] - [90], I set out the applicable legal principles relating to an application to extend the time, as follows:

"The decision of the court to extend time is a discretionary decision. Other than 'sufficient cause being shown', there are no statutory criteria that must be taken into account. There are no rigid rules in regard to the exercise of the discretion.

The principles governing that exercise of discretion under the Act are clear. Apart from the reason(s) for the lateness of the claim, the factors to which the court must look, include whether beneficiaries under the Will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by either side; and, finally what is the strength of the claim made by the party seeking an extension of time: see, for example, John v John; John v John [2010] NSWSC 937 at [37]- [51] per Ward J; Campbell v Chabert-McKay [2010] NSWSC 859 at [45]-[47] per White J; Durham v Durham [2010] NSWSC 389 at [15] per Ball J; Taylor v Farrugia [2009] NSWSC 801 at [14] per Brereton J; Burton v Moss [2010] NSWSC 163 at [31] ff, per Macready AsJ, in which the relevant earlier cases are referred to.

The onus lies on the applicant to establish sufficient cause. It will be for the court to determine the strength of the applicant's claim.

The prejudice to which the section looks is any prejudice occasioned by the delay in lodging the claim rather than any disappointment that might occur consequent upon readjustment of the interests under the will in order to make provision for the applicant: Cetojevic v Cetojevic [2006] NSWSC 431; McCann v Ward & Anor [2010] VSC 452 at [11]. Where there has been a long period since the deceased died, the lapse of time, itself, might create prejudice in any fact-finding exercise: Vasconelos v Bonetig [2011] NSWSC 1029 at [21].

In De Winter v Johnstone (NSWCA, 23 August 1995, unreported), Sheller JA held that the concept of 'unconscionable conduct' referred to above was 'directed towards a deliberate holding off [in bringing proceedings] designed to lull the beneficiaries into a false sense of security'. Cole JA, whilst not expressing a concluded view, said that it must be doubted whether a change of mind (because of some change in the financial and material circumstances of the Plaintiff which has occurred after the expiry of the limitation period) constitutes unconscionable conduct.

As to the strength of the claim, in De Winter v Johnstone, Powell JA considered that as an application for extension of time was invariably dealt with at the time of the application for substantive relief, no extension of time ought to be granted unless it was established that the applicant seeking an extension of time would, in the event of the extension being granted, be entitled to an order for substantive relief. By contrast, Sheller JA considered that it was only necessary for the applicant to show that the application was not bound to fail.

Where the delay is not unduly long and the estate remains undistributed, ignorance during the period within which proceedings are to be commenced, of the right to claim, followed by a prompt application to extend the time once the right to claim becomes known, will usually be a sufficient explanation: Clark v Burns [2011] VSC 394 at [6]."

The decision was followed, by Nicholas J in Twomey v McDonald [2012] NSWSC 22, at [8], and by Ball J in Donaldson v Lawless [2013] NSWSC 861, at [27]. I maintain the views expressed in that decision.

Following on from the last paragraph quoted above, I would add that the extent of the delay is also relevant. That may not be invariably the case, but it seems that a short delay may be sufficiently excused more readily and for less weighty reasons than a long delay: Dunne v The Nominal Defendant (1954) 71 WN (NSW) 87.

A judicial discretion, which is not confined, must be exercised and all the relevant circumstances must be taken into account in order to assess the justice of the particular case under consideration. No one factor is necessarily determinative. There is no limit to the length of the extension a court may grant in appropriate circumstances.

Therefore, as well as taking into account the reasonableness of the conduct of the applicant, the reasons for the delay being personal to her as the person responsible for the delay, the court may take into account the size and nature of the estate, whether any part of the estate has been distributed, the position of the individual applicant, the rightful expectations of those already interested under the Will, and, to some extent at least, the importance that there be some finality and certainty in the administration of a deceased person's estate: Harrison v Harrison [2011] VSC 459, per Kaye J, at [292].

It is important, also, that in Harrison v Harrison, his Honour noted that, as the applicant was seeking an indulgence, he or she should apply promptly for an extension of time. Relevantly to New South Wales, this translates to filing the Summons promptly. Thus, in my view, in considering "sufficient cause", the court must consider not only the period prescribed by the Act for the making of the application, but also the period after the twelve months had expired but before the Summons was filed. The lapse of time, should, ordinarily, entitle executors and beneficiaries to assume that there will be no challenge to the Will: Andre v Perpetual Trustees WA Ltd as Executor of the Will of Barbara Helen Owen Stewart, at [38].

As I repeated in Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748, at [117]:

"[U]ltimately, justice is the paramount consideration in determining whether to extend the time for making an application ..."

In John v John [2010] NSWSC 937, at [44] Ward J (as her Honour then was) considered that sufficient explanation given for the failure to commence proceedings in time was a "threshold requirement" that had to be met before considering the other discretionary factors.

In Verzar v Verzar [2014], in the Court of Appeal, at [33] - [35], Macfarlan JA noted:

"There are at least two respects in which the strength of the application sought to be made out of time may be relevant to whether there is 'sufficient cause' to extend the time for making it. The first is whether the application as made has sufficient prospects of success to justify an extension. That assessment should be of the application viewed at the time it is or is likely to be heard because of the provisions of s 59(1)(c) and (2)....

The second respect in which the strength of the application may be relevant is if allowing the out of time application to proceed would or may have the effect of improving the applicant's position from that which would have obtained had the application been made in a timely manner. That is the consideration referred to by Tobias JA in Durham v Durham at [24], [37] when confirming the correctness of the approach adopted by the judge in that case and by Bryson J in Davison v Staley (unreported, Supreme Court of NSW, 21 August 1996)....

Because the assessment of adequacy of provision for proper maintenance, education and advancement in life is to be made at the time the Court is hearing the application (ss 59(1)(c) and (2)), when addressing this question it is necessary first to consider when the application would have been likely to have been heard if made in a timely manner and then to compare the position in that event with the position in fact, namely that the application has been made out of time. Ordinarily, this analysis would assume, as is usually the case and as happened in this proceeding, that the application for an extension of time and the application for substantive relief are made in one proceeding and dealt with in a single hearing. (That was not the case with applications for extensions of time made under the Testator's Family Maintenance and Guardianship of Infants Act 1916: see De Winter v Johnstone [1995] NSWCA 120 at p 17 per Powell JA)."

In dealing with prejudice, the court will consider the causal relationship between the period of the delay and the claimed prejudice. In this case, the principal prejudice is that the estate had been distributed and had been spent. However, it is to be noted that the estate was distributed shortly before the period prescribed by the Act for making the claim had expired. Any order made now will require the Defendants, or one of them, to satisfy it, together with any order for costs that is made.

Eligibility and Inadequacy of Provision

The key provision is s 59 of the Act. The court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made.

In this case, the Plaintiff relies upon the category of eligibility referred to in s 57(1)(c) of the Act, namely that she is a child of the deceased. The language of the relevant section is expressive of the person's status, as well as her relationship to the deceased. There is no age limit placed on a child making an application. There is no dispute that Helen is an eligible person. She has the standing to bring the present proceedings.

Relevantly to this case, it is only if eligibility is found, that the court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, the operation of the intestacy rules being irrelevant in this case: (s 59(1)(c)). It is this mandatory legislative imperative that drives the ultimate result, and it is only if the court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). Only then may "the Court ... 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".

Other than by reference to the provision made by the operation of the Will in relation to the estate of the deceased, s 59(1)(c) of the Act leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for the applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the court to the provision actually made by the Will, on the one hand, and to the requirement for maintenance, education and advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant.

In Grey v Harrison [1997] 2 VR 359, at 366-367, Callaway JA observed:

"There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."

It was said in the Court of Appeal (by Basten JA) in Foley v Ellis [2008] NSWCA 288, at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J has described it as "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": Szypica v O'Beirne [2013] NSWSC 297, at [40].

Under s 59(1)(c) of the Act, the time at which the court gives its consideration to the question of inadequacy of provision is the time when the court is considering the application.

"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89, at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".

Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act.

In J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths), at 542, the learned authors comment upon the difference between the concepts of maintenance and advancement:

"The essential difference between 'maintenance' and 'advancement' is that 'maintenance' denotes a periodical payment or a payment which could validly be made periodically, whereas 'advancement' denotes a definite unique outlay for a specific purpose. Recipients of maintenance must, practically speaking, be infants, but adults may be recipients of an advancement.

(e) On the question of "special circumstances", Helen relied upon all of the matters identified in her written submissions for an extension of time to be granted.

On the issue of extension of time, Helen submitted:

(a) She had a strong claim for provision - Helen concedes that she was estranged from the deceased, but she has very weak financial circumstances with limited assets, no earning capacity, a disability pension and significant health issues.

(b) She provided a number of explanations why the application was not made within time. First, she was not aware of the deceased's death, and only became so aware after the time for the making of the application had expired. Even then, she did so as a result of her own searches.

(c) The only evidence given by Kathryn is that they asked Ms Fuss, in about June 2010, when the deceased was in hospital, if she knew where Helen was. There is no evidence that either made any other attempt to locate or contact Helen thereafter. Kathryn acknowledged that she had details of Helen's last name.

(d) When Helen contacted the executors, the executors' solicitor sent her a letter that suggested that she was not able to bring proceedings because the estate had already been distributed and there were no funds available to meet any claim.

(e) Helen may have been aware that she had rights to make a claim in November 2011. However, she was not aware that it was possible to make a claim even though the estate had been distributed until some time after November 2011. Notably, Helen was living in Queensland, and there are no provisions in the Succession Act 1981 (Qld) that enable a court to designate distributed property as notional estate. In Thompson v Public Trustee of NSW [2010] NSWSC 1137, reference was made to Coates v National Trustees Executors and Agency Co. Ltd [1956] HCA 23; (1956) 95 CLR 494, and the principle that an extension of time may be granted when the applicant was unaware of the right to apply.

(f) Helen gave evidence, during cross-examination, of the nature of the legal advice that she received at the relevant time, namely that, as the estate had been distributed, that was the "end of the story". Whilst Mr Deed continued to act for Helen until July 2012, he did so in unrelated proceedings concerning Helen's housing commission house.

(g) Helen gave the evidence of the content of the legal advice during her cross-examination, and it was not necessary for Mr Deed to also give that evidence. Notably, Mr Deed was originally requested to be available for cross-examination and was, in fact, available, but the Defendants ultimately elected not to cross-examine him.

(h) Helen was involved in protracted litigation with her landlord, the Department of Housing, the Department of Communities, and Minister for Communities and Housing. She gave evidence in cross-examination that she gave this protracted litigation priority because the issues included flooding from sewerage in her house.

(i) When Helen commenced proceedings, she was self-represented and had limited access to NSW legal resources in Queensland. She made many unsuccessful attempts to obtain assistance.

(j) The fact that the Defendants would have to find a way of satisfying an order for provision is not in itself "prejudice". This is because the provision would have had to be satisfied even if the application was made in time. The prejudice which the cases discussed was "prejudice occasioned by the delay in lodging the claim rather than disappointment consequent on re-adjustment of interests": Cetojevic v Cetojevic.

(k) Mary and Kathryn each asserted that she would be prejudiced because she has spent the money that was distributed. Kathryn's evidence was that she spent the money on renovating and landscaping her house, on personal expenditure and on general living expenses, and that she would have to sell her house if she had to make provision for Helen because she has no savings. However, Kathryn acknowledged, throughout the proceedings, that she was not putting her financial circumstances in issue. She had not disclosed her financial circumstances even though requests for categories of documents revealing her financial position have been served.

Similarly, Mary's evidence was that she had spent the money to modify her house to make it more accessible for her husband. However, Mary conceded that she lent $400,000 to her daughter after these proceedings commenced. Mary also stated that she is not putting her financial circumstances in issue. This was hardly surprising bearing in mind the facts identified in Ex. 1 (to which I shall later refer).

(l) In relation to unconscionable conduct, Helen submitted that the fact that she did not contact the Defendants while she was researching and preparing her claim was not unconscionable. She wrote: "Unconscionability is a broad concept involving moral obloquy." There was no evidence that she deliberately held off making a claim and it was not put to her in cross-examination that she had any "design" to lull the beneficiaries into a false sense of security.

(m) In failing to contact Helen when the deceased died, and in settling Paul's claim against the estate without notifying Helen, as another potential claimant upon the estate, it was suggested that the Defendants' conduct was unconscionable.

The Defendants' Submissions

The Defendants' general submission was to the effect that Helen perceived that an equal (or almost equal) distribution of the estate should take place. In this regard, the open offer, identified by Helen's counsel, during her submissions, of $100,000, inclusive of costs, supported such a view. When one considers "reasonable community expectations" one could not do other than conclude that Helen's claim should be dismissed.

On the issue of estrangement, counsel for the Defendants submitted:

(a) Helen made a deliberate decision to disappear out of the lives of the deceased and the Defendants. Here there was a deliberate abandonment of the deceased by Helen.

(b) Whilst "estrangement" is not a term used in the Act, it was a condition that the court was entitled to take into consideration in determining the case being brought by Helen.

(c) There was no explanation, in her affidavit, which she sought to remedy in her oral evidence, of the cause for her own conduct vis-a- vis the deceased. Although she had alleged it was due to the commencement of the possession proceedings, at the hearing, she endeavoured to blame the deceased.

On the issue of designating distributed property as notional estate, the Defendants submitted:

(a) When one considered s 87 and what the court was required to consider, there were no facts that justified the making of a notional estate order. The fact that she delayed almost two years, after threatening to make a claim, engendered reasonable expectations on the part of both Mary and Kathryn that no claim would be made.

(b) There were no "special circumstances" under s 90 of the Act. That each had spent the monies she had received would suggest a "special circumstance" for not making an order.

On the issue of extension of time, the Defendants submitted:

(a) The Court should not accept Helen's evidence regarding what Mr Deed had told her in circumstances where there was no evidence from him as to his explanation of the rights Helen had to make a claim for provision.

(b) The explanation proffered by Helen in her affidavit was not one of ignorance of rights but, rather, that she was engaged in other litigation that had occupied her time.

(c) At no time did Helen inform either Mary or Kathryn of her intention to proceed under the Act after the letter dated 2 December 2011, sent by their solicitors. It was then almost two years later that the Summons was filed.

(d) Each of the Defendants would be prejudiced if an order for provision were made since all of the money distributed had been spent.

Further Additional Facts

I now set out the additional facts I am satisfied are either not in dispute, or that, in my view, the evidence establishes. I do so by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar [2012], at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered.

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

Helen is a daughter of the deceased. There is no detailed evidence about the relationship between her and the deceased until about the 1980's.

All that Helen says about her relationship with the deceased before about 1986 is that she "always had an uneasy relationship with my mother going back to my early childhood"; that Mary was "favoured" with the consequence that she (Helen) "was treated as an unwanted child of the marriage. Theis caused friction between my mother and I over many years."

Helen also states that during acrimonious custody proceedings involving her former husband, that the deceased and Kathryn "got involved" and "they applied for custody on the basis that I was not a fit and proper person to look after Jane". She also asserts that "I had to fight both my ex-husband on the one hand, and my mother and sister on the other".

Kathryn denies the allegations made and states "... at no time did my mother or I ever consider seeking custody of Jane". She also states that she and the deceased looked after Jane for about one month. There is no reason to reject this evidence, particularly as Kathryn was not cross-examined.

(There were no documents produced by Helen to corroborate her assertions about an application by the deceased and Kathryn to seek custody of Jane. I tend to the view that, had such an application been made, there would be some documents. For that reason also, it is difficult to accept the assertions of Helen in this regard.)

I have earlier dealt with the relationship between them after about 1986. There was verbal abuse and, on one occasion, physical abuse. From 1990, there was no contact whatsoever. The very long period of lack of contact was not marked by apparent anger or recrimination. There was simply no contact at all.

Even the decision to contact the deceased in 2011, appears to have been at the behest of her solicitor, who suggested that Helen might wish to mend their 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

There is no definition of the words "obligations" or "responsibilities" to which the sub-section refers in the Act. Importantly, the Act does not expressly refer to, or identify, any "moral duty". Yet, one might conclude that what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities.

This factor requires a balancing of potentially competing obligations as between the applicant and each of the beneficiaries.

Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to each of her children, as an adult, imposed upon her by statute or common law.

Yet, an obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child. In Flathaug v Weaver [2003] NZFLR 730, at 737, the origin of the obligation which underpins the Act's recognition of the duty owed by a parent to a child was put in this way:

"The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives."

The fact that the applicant was financially independent of the deceased, for many years, before the deceased's death, is a relevant consideration in determining the extent of any obligation or responsibility owed. The size of the deceased's estate is also relevant to the extent of the obligation or responsibility.

(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

I have earlier dealt with these matters. The maximum gross value of the actual estate is nil. The maximum amount that may be designated as notional estate is $321,756.

(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

Helen's income is $1,886 per month, made up of a Centrelink age pension and a carer's pension obtained as a result of her caring for her former spouse, Dennis Underwood. She has limited assets, being household furniture ($3,000), and a car that is 15 years old ($2,500). Her expenditure equals her income.

She lives in a housing commission house. However, she has had protracted disputes with the relevant Queensland Department, and has been served with an eviction notice. She states that she may be evicted at any time.

In December 2013, she had a debt of $990 to Centrelink. There is no evidence of any amount currently owing.

Helen trained as an accountant and had worked as an accountant in Sydney. She has not worked as an accountant since she moved to Queensland.

She does not currently work. I am satisfied that she probably does not have any earning capacity.

She says that she would like to rent privately but does not have sufficient savings for a rental bond and would need to supplement her age pension to afford rent. She does not have sufficient income to pay for private health care. She would like to update her car.

Although it was submitted that each of Mary and Kathryn had chosen not to disclose her financial circumstances, I am satisfied that there has been at least some disclosure. For example, in relation to Mary, her financial position, as set out in Ex. 1 (a Statement of Agreed Facts) is as follows:

"4 She currently receives a judicial pension of at least $290,000 per annum.

5 She and her husband own an apartment at xxxx Lilyfield NSW ("Lilyfield") as joint tenants.

6 The estimated value of Lilyfield is at least $900,000.

7 Mary's husband owns all of the shares of a company John Fogarty Consulting Pty Ltd ("John's Company").

8 John's Company owns a house at xxxx Great Mackerel Beach NSW ("Mackerel Beach").

9 The estimated value of Mackerel Beach is between $450,000 and $550,000

10 She sold an apartment at xxxx Elizabeth Bay for $440,000 in July 2010 subject to a mortgage.

11 She is currently a director of Hefeno Pty Ltd.

12 Hefeno Pty Ltd owns 15 apartments in a block of apartments at xxxx Newtown.

13 Mary's ex-husband conducted a hardware business at 249 Glebe Point Road, Glebe NSW trading as Metropolitan Hardware at some point in time."

In an affidavit affirmed in January 2014, Mary had stated that she owned a property in France and that she had savings of $400,000 (which amount was invested on fixed deposit and provided some additional income). This amount was being held "should it be necessary for a bond to be paid in the event that [her] husband was required to return to a residential facility".

However, in her most recent affidavit, Mary stated that she had lent the amount of $400,000 to her daughter to enable her daughter to purchase real estate. The amount was repayable in the event that Mary's husband is required to return to a residential facility.

Mary states that she has "some funds available to meet costs of the present proceedings but doubt[s] they would extend beyond that to meet an order for provision in favour of the Plaintiff should the monies paid to me out of my mother's estate be designated as notional estate for the purpose of making provision for the Plaintiff out of the estate".

The value of the property in France and the amount of income was not disclosed in the affidavit or otherwise.

Kathryn disclosed that she owned a townhouse at Carlingford. She says that, if a notional estate order were made for the purpose of making provision for Helen, she would have no option but to sell her real estate. (Other parts of her evidence, in this regard, were successfully objected to and rejected.)

I note, of course, what the Defendants' solicitors had written about "not seeking to defend the distributions to them under the will of the deceased on the basis of alleged needs."

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

There is no evidence that Helen is cohabiting with any person.

(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated

Helen has a number of physical conditions including fibromyalgia, high blood pressure, sleep apnoea, osteoarthritis in her knees, irritable bowel syndrome/incontinence and stress/anxiety (treated by a clinical psychologist).

There was no evidence from the clinical psychologist.

Mary gave evidence of having recently been diagnosed with what is described in the report annexed to her affidavit as "Pure akinesia with gait freezing which is commonly related to a tau pathology". The report states that "[t]he mean duration of symptoms of this condition is over 10 years with increasing difficulties in independent living occurring only over the latter part of this period. Normally cognition is preserved ...".

Kathryn gives no evidence of any physical, intellectual or mental disability.

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

Helen was born in April 1948 and is 66 years of age.

(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

Helen does not suggest that she made any contribution of the type referred to.

(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

Helen acknowledges that the deceased allowed her to live in the Birrong home unit between about 1985 and 1987. (I have earlier referred to what was written by each in an affidavit filed in the possession proceedings about what payments were not made, or made, as the case may be, whilst Helen lived with the deceased.)

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

There is no evidence about testamentary intentions other than as disclosed in the Will of the deceased. I have earlier referred to Clause 6 of the Will.

(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so

The deceased did not maintain Helen wholly or partly before death and for at least 20 years before her death.

(l) whether any other person is liable to support the applicant

Apart from the Commonwealth government's responsibility to continue to provide Helen with a pension, there is no other person with a liability to support her.

(m) the character and conduct of the applicant before and after the date of the death of the deceased person

An evaluation of "character and conduct" may be necessary, not for the sake of criticism, but to enable consideration of what is "adequate and proper" in all the circumstances. Importantly, the Act does not limit the consideration of "conduct" to conduct towards the deceased.

In In re the Will of F B Gilbert (Deceased) (1946) 46 SR (NSW) 318, Jordan J, at 321, wrote (in relation to the Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW)):

"Section 3(2) of the Act provides that the Court may refuse to make an order in favour of any person whose character or conduct is such as to disentitle him to the benefit of such an order. I think that this means character or conduct relevant to the purposes which the Act is intended to serve, for example, misconduct towards the testator, or character or conduct which shows that any need which an applicant may have for maintenance is due to his or her own default."

More recently, in Collicoat v McMillan [1999] 3 VR 803, at 817, Ormiston J wrote, in relation to the manner in which an applicant's behaviour towards the deceased is to be considered:

"... Ordinarily each of the persons who have a statutory right to make application are entitled to have their position considered by a testator but their behaviour (right or wrong) towards the testator may only provide a basis for measuring appropriately the testator's obligation to make provision for each of those applicants. Their sins are irrelevant except insofar as a testator might properly take exception to their behaviour."

I have earlier referred to Helen's conduct vis-a-vis the deceased.

There was some evidence about the relationship of Helen and Mary. Helen described it as "a difficult relationship". There is a thread of complaint made about Mary's achievements and her parent's favouring of Mary, but I do not think this is relevant.

However, I have earlier referred to the Summons prepared by Helen. In the Summons, she sought an order that the Defendants "replenish funds wrongfully depleted by them". She also sought an order that they account for what they actually received and for what might have been received but for the default and their disbursement and distribution of the estate. She alleged, in this respect, that "some part of the deceased's estate has been falsified".

In answer to some questions from the bench, Helen gave the following evidence:

"Q. Could you tell me, when you asserted in paragraph 5 that part of the deceased's estate had been falsified, did you know that that was a very serious allegation to make against each of your sisters?

A. ...I was researching all of this. Some of those words are copied straight out of Mason & Handler.

Q. Could you answer my question? Did you know that these allegations in paragraph 5, firstly that some part of the deceased's estate had been falsified and/or ought to have been included and might have been received were very serious allegations being made against each of your sisters?

A. Well, it's serious to the extent... that I was endeavouring to ascertain the assets of the estate.

Q. I will ask again. Did you know that the allegation that some part of the deceased's estate had been falsified and/or ought to have [been] included and might have been received was a very serious allegation to make against each of your sisters?

A. It's serious. I wouldn't say it was very serious.

Q. Did you also know at the time you filed this Summons that the allegation that each of your sisters had wrongfully depleted funds was a serious allegation to make against each of them?

A. It is somewhat serious.

Q. And, as I understand it, the basis for each of those serious allegations was something that your sister in law you allege had told you, is that the position?

A. Well, we'd been discussing the estate, yes.

Q. And that was it?

A. Yes."

In my view, there was an insufficient basis for making any of the allegations about either of the Defendants. They should not have been made and in the events that have happened, appear to have been without substance. However, I note that they have, now, been withdrawn.

Helen asserted, in her affidavit, that Paul had told her that Mary said that Helen was not to be notified of the deceased's death. Mary denied that she had said any such thing. Helen did not call Paul to give evidence on this topic and Mary was not cross-examined upon her denial. To the extent that it is necessary to express a view, I accept Mary's denial.

I also note the evidence of Ms Fuss, referred to earlier, regarding her conversation with the Defendants at the hospital.

(n) the conduct of any other person before and after the date of the death of the deceased person

Although it was submitted that there was no evidence about the conduct of either of the Defendants, vis-à-vis the deceased, I note that Helen herself gave evidence of the relationship of Mary and the deceased, stating that the deceased had an extremely close relationship with Mary.

There was evidence, which I accept, that in 1986 and 1987, the deceased had stayed, at different times, at the home of each of Mary and Kathryn.

The deceased chose Mary and Kathryn as the major beneficiaries of her estate. That, on its own, may speak to the nature of her relationship with each of them.

(o) any relevant Aboriginal or Torres Strait Islander customary law

This factor is not applicable.

(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

There is no other matter that I consider relevant.

Determination

There is no dispute that Helen, as a child of the deceased, is an eligible person within the meaning of that term in s 57(1)(c) of the Act.

I shall deal, firstly, with whether, at the time when the court is considering the application, adequate provision for the proper maintenance, education or advancement in life of Helen, has not been made by the Will of the deceased and, if so, whether an order for provision ought be made. (The answer to these questions will assist in determining the answer to the other questions that are to be decided, namely whether to extend the time for the making of her application, and whether to make an order designating property as notional estate.)

No provision was made for Helen in the deceased's Will.

Ultimately, Helen's submissions, in summary, amount to the following propositions: that she is an adult child of the deceased; that she has established a need for provision because of her limited financial means; and that those for whom the deceased provided do not have a need. In my view, that is not enough.

Judged by quantum and looked at through the prism of her financial and material circumstances, adequate provision for Helen's proper maintenance or advancement in life was not made by the Will of the deceased. Whilst an additional lump sum, by way of advancement in life, in other circumstances, would be appropriate, that is not all that the court is required to consider. In no particular order of priority, the size of the estate, whether it has been distributed, the totality of the relationship of Helen and the deceased, Helen's conduct, before and after the death of the deceased, the age and capacities of other beneficiaries, the claim of each on the bounty of the deceased, and the freedom of testation, are also relevant factors in determining the answer to the question of inadequacy of provision. I have set out the facts pertinent to this case, to which reference should be made.

As stated previously, the value of the property that may be designated as notional estate is very small. The property of the deceased was all distributed by the time Helen commenced her proceedings, some two years after giving notice of her intention to do so. The scheme of the Will is rational on its face. There was no suggestion that the deceased was not of sound mind when she made it. Its terms suggest that the deceased addressed the entitlements of each of those persons with a claim on her bounty and made provision for them in a manner that she thought was appropriate.

I have also discussed the nature of Helen's relationship with the deceased. It appears that Helen demonstrated a complete indifference to, and neglect of, the deceased for the last 20 years of the deceased's life. As she stated, she "wanted to start a new life", one which, so it would seem, did not involve the deceased and other members of the family. She even changed her name (before her marriage), which, no doubt, provided further disconnection with the deceased and Helen's siblings. The alienation of the deceased existed for a long period - in fact for about one third of Helen's life.

Helen's suggestion that the deceased was the cause of the breakdown of the relationship is not supported by the whole of the evidence. She could only speculate, as can the court, on what the deceased's response might have been had contact been made at some time during the 20 year period. The simple fact is that, despite contemplating doing so, from 1999 (9 years after she had last contacted the deceased), she did not do so for another 11 years. Even when Helen searched the Internet in 2011, she did so, not to give effect to the thoughts and contemplations that she said that she had, but following her solicitor suggesting that she might seek to repair the rift between her and the deceased.

To suggest that the deceased was, in some way, acting unreasonably in commencing proceedings for possession, is not supported by the events, which were not disputed, which preceded the proceedings. That Helen sought to justify her own conduct in relation to those events demonstrates a somewhat uncompromising, and self-absorbed, view of the events that led to the proceedings being instituted.

Ultimately, of course, the important matter is not who is at fault, or who is to blame for the relationship, but whether, in all the circumstances, it would be expected by the community that the deceased would have to make a greater benefaction than she, in fact, did, to constitute adequate and proper provision for the applicant.

The deceased, understandably, and not unreasonably, took the stated view that their relationship had broken down and that she no longer had any obligation to provide for Helen. That relationship was on terms determined by Helen. No reconciliation occurred prior to the death of the deceased. In making her Will, and in determining how she should accommodate the competing claims on her bounty, the deceased was entitled to, and did, take Helen's behaviour into account. She was also entitled, in those circumstances, when also considering the nature and value of her estate, and the competing claim of each of Mary and Kathryn, with whom she had a close and apparently supportive relationship, to conclude that no provision ought to be made for Helen.

Remembering, also, that the task of the court is to make a determination "according to the feeling and judgment of the fair and reasonable man in the community, the spokesman of which is, and must be, the court itself", I am of the view that there was no failure, on the part of the deceased, to make proper provision for Helen. I am unable to conclude that 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. That finding ends the matter and must lead to the dismissal of Helen's proceedings.

However, even if I were wrong in coming to that conclusion, the same considerations would, at the second stage, produce the result that, as a matter of discretion, I would not be satisfied that a family provision order ought to be made in favour of Helen.

Given the conclusions that I have reached above, it is not strictly necessary for me to deal with the question of an extension of time or notional estate. However, I shall do so since the parties spent so much time on these two matters.

The conclusions, naturally, lead to the view that the strength of Helen's case does not support an order extending time for the making of Helen's application. In fact, the authorities are clear that, if the claim is to be dismissed, there is no purpose in extending the time for the making of the application.

In any event, I consider that there has not been any satisfactory explanation for delaying the commencement of the proceedings until October 2013. Whilst being unaware of the death of the deceased may have been a relevant consideration to explain why proceedings were not commenced within the 12 month period after the deceased's death, as prescribed by the Act, the reasons for the lack of Helen's knowledge must also be considered. Then, to delay the commencement of the proceedings for almost two years after finding out and making the threat that proceedings would be commenced, whilst keeping the beneficiaries completely in the dark about the continued intention to commence the proceedings, is not satisfactorily explained by Helen.

I do not accept Helen's explanation for not commencing the proceedings and for not informing the Defendants of her intention to do so. Even if Helen did not intend, by not informing the beneficiaries of her intention to commence proceedings, to lull them into a false sense of security, the likelihood must have been, with each passing day, that the beneficiaries would have thought that proceedings would not be commenced. As Sir Robert Megarry VC explained in Re Salmon, at 176, there is a substantial difference between depriving beneficiaries of the prospect of receiving a benefit under the Will and taking money from them, which they have already received, and begun to enjoy. He wrote:

"So far as the beneficiaries are concerned, there will usually be a real psychological change when the estate is distributed. Before the distribution, they would have only the expectation of payment; and if they are entitled to a share of residue, they will often have a considerable degree of uncertainty as to the amount. After the distribution, they have the money itself, and know the exact amount. If an order is made under the Act, the difference will be the difference between the prospect of receiving in due course less than they had hoped, and on the other hand having something that they had already received and regarded as their own take[n] away from them. For most people, there is a real difference between the bird in the hand and the bird in the bush. In addition, of course, the beneficiaries are more likely to have changed their position in reliance on the benefaction if they have actually received it than if it lies merely in prospect. If it is always prejudicial to claimants not to receive money that they are entitled to receive at the earliest possible moment, it is likely to be even more prejudicial to have taken away from them money that they have actually received and have begun to enjoy. The point is strengthened if they have changed their position in reliance on what they have received, as by making purchases or gifts that they otherwise would not have made."

In this case, whilst there is no evidence of precisely when each of the Defendants changed her position by spending the money distributed to her (except in Mary's case in respect of the amount paid to Paul), that each changed her position is clear on the evidence. Each gave evidence that the money received had been spent. The court determines the question whether sufficient cause has been shown at the time when the court is considering the application.

Following the letter of 2 December 2011, there was complete silence on Helen's part. The Defendants were, in those circumstances, entitled to continue with their lives and were not required to exist in a state of suspended economic animation in regard to what each had received pending Helen's decision to commence proceedings under the Act.

The fault for the delay, after the letter of 2 December 2011, is wholly on Helen's side: none of the delay, thereafter, can be laid at the feet of the Defendants, or on extraneous factors over which Helen had no control.

Nor is this a case where an applicant, who had hitherto, understandably, not wished to litigate against members of her family, eventually decided that proceedings were appropriate and necessary. Helen stated she always intended to pursue proceedings. It is also not a case where the applicant has made a decision not to pursue a claim based on any mistake as to the value of the estate and as to the value of the property in the estate at the date of death.

In my view, Helen could have done much more to protect her own interests as well. She could have commenced the proceedings by filing the Summons. If she was engaged in other litigation, she could have sought a stay of the proceedings until the other litigation was concluded. If she did not wish to commence proceedings until the other litigation was concluded, she could have informed the Defendants that she was carrying out research, that she had other litigation on foot, and that she would commence the proceedings as soon as she was able. At least, in this way, notice of her continued intention to commence the proceedings would have been communicated. She did none of these things with the result that the Defendants were left to assume, for almost two years, that no proceedings were going to be commenced.

In all the circumstances, I am also not satisfied that there is sufficient cause to extend the time for the making of Helen's application.

If what I have concluded above were not enough, I would not have been satisfied that there were "special circumstances" to make a notional estate order, even though I am satisfied that the deceased's actual estate is insufficient for the making of the family provision order, or any order as to costs, and that, as a result of the distribution of the deceased's estate, property (whether or not the subject of the distribution) became held by each of the Defendants and by Paul. There is nothing in this case, that I consider could be described as "special circumstances". (Helen only relied upon the matters identified in the written submissions for an extension of time to be granted.)

In all the circumstances, Helen's amended Summons should be dismissed.

I shall hear the parties on the costs of the proceedings. My present inclination is to make no order as to costs to the intent that each party is to bear her, or their, own costs of the proceedings. In the event that neither party wishes to argue for a different costs order, the orders made are that:

(a) The Plaintiff's amended Summons be dismissed.

(b) There be no order as to either party's costs, to the intent that she, and they, are to pay her, and their, own costs of the proceedings.

(c) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10), and Practice Note SC Gen 18 (Para 26) following the determination of the costs of the proceedings.

**********

Decision last updated: 07 August 2014

Medium Neutral Citation:	Underwood v Gaudron [2014] NSWSC 1055
Hearing dates:	22 and 24 July 2014
Decision date:	07 August 2014
Jurisdiction:	Equity Division
Before:	Hallen J
Decision:	(a) The Plaintiff's amended Summons is dismissed. (b) Subject to any submissions, there be no order as to either party's costs, to the intent that she, and they, are to pay her, and their, own costs of the proceedings. (c) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10), and Practice Note SC Gen 18 (Para 26) following the determination of the costs of the proceedings.
Catchwords:	SUCCESSION - FAMILY PROVISION - The Plaintiff, a daughter of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendants also children of the deceased - Deceased left Will in which no provision made for the Plaintiff - Explanation given - 20 years of no contact between Plaintiff and the deceased - Small estate - Estate distributed - Proceedings not commenced within time - Whether sufficient cause shown - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and, if so, the nature and quantum of the provision to be made - Whether property to be designated as notional estate - Whether "special circumstances"
Legislation Cited:	Civil Procedure Act 2005 (NSW) Family Provision Act 1982 (NSW) Practice Note SC Eq 7 Practice Note SC Gen 18 Succession Amendment (Family Provision) Act 2008 (NSW) Succession Act 1981 (QLD) Succession Act 2006 (NSW) Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Alexander v Jansson [2010] NSWCA 176 Allardice v Allardice; In re Allardice (1910) 29 NZLR 959 Allen (Deceased); Allen v Manchester [1922] NZLR 218 Andre v Perpetual Trustees WA Ltd as Executor of the Will of Barbara Helen Owen Stewart [2009] WASCA 14 Andrew v Andrew [2011] NSWSC 115 Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 Aubrey v Kain [2014] NSWSC 15 Barna v Barna [2008] NSWSC 1402 Bartlett v Coomber [2008] NSWCA 100 Baychek v Baychek [2010] NSWSC 987 Blyth v Spencer; Spencer v Neville [2005] NSWSC 653 Bondelmonte v Blanckensee [1989] WAR 305 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Buckland, Deceased, Re [1966] VR 404 Buggle v Buggle [2012] NSWSC 1009 Bull, Re [2006] VSC 113 Burke v Burke [2014] NSWSC 1015 Butcher v Craig [2009] WASC 164 Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748, Campbell v Chabert-McKay McKay [2010] NSWSC 859 Cameron v Cameron [2009] SASC 27 Carstrom v Boesen [2004] NSWSC 1109 Cetojevic v Cetojevic [2007] NSWCA 33 Charnock v Handley [2011] NSWSC 1408 Christie v Manera [2006] WASC 287 Coates v National Trustees Executors and Agency Co. Ltd [1956] HCA 23; (1956) 95 CLR 494 Collicoat v McMillan [1999] 3 VR 803. Collins v McGain [2003] NSWCA 190 Coventry (Deceased), Re [1979] 3 All ER 815 Crossman v Riedel [2004] ACTSC 127 de Angelis v de Angelis [2003] VSC 432 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54 Dobb v Hacket (1993) 10 WAR 532 Donaldson v Lawless [2013] NSWSC 861 Doshen v Pedisich [2013] NSWSC 1507 Dunne v Dunne [2013] NSWSC 1911 Dunne v The Nominal Defendant (1954) 71 WN (NSW) 87 Evans v Levy [2011] NSWCA 125 Flathaug v Weaver [2003] NZFLR 730 Foley v Ellis [2008] NSWSC 288 Ford v Simes [2009] NSWCA 351 Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep) Gardiner v Gardiner [2014] NSWSC 435 Gilbert, F B (Deceased), In re the Will of (1946) 46 SR (NSW) 318 Goldsmith v Goldsmith [2012] NSWSC 1486 Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 Goodsell v Wellington [2011] NSWSC 1232 Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison [1997] 2 VR 359 Hampson v Hampson [2010] NSWCA 359 Harrison v Harrison [2011] VSC 459 Hawkins v Prestage (1989) 1 WAR 37 Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 Hunter v Hunter (1987) 8 NSWLR 573 Hyland v Burbidge [2000] NSWSC 12 John v John [2010] NSWSC 937 Kay v Archbold [2008] NSWSC 254 Kavalee v Burbidge; Hyland v Burbidge [1998] NSWSC 111; (1998) 43 NSWLR 422 Keep v Bourke [2012] NSWCA 64 Khreich v NSW Trustee & Guardian [2012] NSWSC 1299 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Lewis v Lewis [2001] NSWSC 321 Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Deceased) v Lathwell [2008] WASCA 256 MacGregor v MacGregor [2003] WASC 169 Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146 Marks v Marks [2003] WASCA 297 Marras, In the Estate of the late Anthony [2014] NSWSC 915 Mayfield v Lloyd-Williams [2004] NSWSC 419 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Moore (bht the NSW Trustee & Guardian) v Randall [2012] NSWSC 184 Morris v Smoel [2014] VSC 32 Palaganio v Mankarios [2013] NSWSC 61 Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 Phillips v James [2014] NSWCA 4 Pogorelic v Banovich [2007] WASC 45, [62]; Butcher v Craig [2009] WASC 164 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 Salmon, Deceased, Re [1981] Ch 167 Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100 Sergi v Sergi [2012] WASC 18 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522 Slack-Smith v Slack-Smith [2010] NSWSC 625 Smith v Woodward (Supreme Court (NSW), Macready M, 9 September 1994, unrep) Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Szypica v O'Beirne [2013] NSWSC 297 Taylor v Farrugia [2009] NSWSC 801 Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 Thompson v Public Trustee of NSW [2010] NSWSC 1137 Tobin v Ezekiel [2012] NSWCA 285 Twomey v McDonald [2012] NSWSC 22 Vasconelos v Bonetig [2011] NSWSC 1029 Verzar v Verzar [2012] NSWSC 1380 Verzar v Verzar [2014] NSWCA 45 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) West v Mann [2013] NSWSC 1852 Wilcox v Wilcox [2012] NSWSC 1138 Williams v Aucutt [2000] 2 NZLR 479 Zannetides v Spence [2013] NSWSC 2032 Zirkler v McKinnon [2002] NSWSC 285
Texts Cited:	Rosalind Atherton, 'The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?' (1999) 5 Australian Journal of Legal History 5 J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths) Macquarie Dictionary Oxford Dictionary
Category:	Principal judgment
Parties:	Helen Underwood (Plaintiff) Mary Genevieve Gaudron (first Defendant) Kathryn Terese Gaudron (second Defendant)
Representation:	Counsel: Ms T Catanzariti (Plaintiff) Mr B Skinner (Defendants) Solicitors: Cranston McEachern Lawyers (Plaintiff) Licardy & Company (Defendants)
File Number(s):	2013/326127