Vella v Vella; Vella v Vella

[2020] NSWSC 849

Supreme Court

New South Wales

Medium Neutral Citation:

Vella v Vella; Vella v Vella [2020] NSWSC 849

Hearing dates:

22, 23 and 24 April 2020

Date of orders:

2 July 2020

Decision date:

02 July 2020

Jurisdiction:

Equity - Family Provision List

Before:

Williams J

Decision:

In proceeding 2018/385260, the plaintiff is entitled to provision in a lump sum of $150,000 for her maintenance, education and advancement in life out of the estate of the late Laura Anna Delores Vella, in lieu of the provision of $2,000 made in the last will of the late Laura Anna Delores Vella dated 11 December 2017.

In proceeding 2018/385260, the plaintiff’s application for provision out of the estate of the late Laura Anna Delores Vella is dismissed.

Catchwords:

SUCCESSION – family provision – claim by adult child of the deceased for provision out of the deceased’s estate – where deceased’s last will left to the adult child some clothing and a legacy in the sum of $2,000 – where residue of the deceased’s estate bequeathed to the defendant – where adult child suffers from permanent intellectual disability – where adult child is retired and is not capable of independent living – where adult child presently entitled to disability income – where disability pension only just sufficient to cover her accommodation and other living expenses – where defendant accepts that adult child is entitled to further provision out of the deceased’s estate – where estimating future needs of the adult child’s care is imprecise – further provision ordered to be paid out of the deceased’s estate in the sum of $150,000

SUCCESSION – family provision – claim by adult child of the deceased for provision out of deceased’s estate – where deceased’s last will left to the adult child a legacy in the amount of $1,000 – where residue of the deceased’s estate bequeathed to the defendant – where relationship between adult child and deceased was not close and at times estranged – where assets held jointly by adult child and his partner greatly exceed the value of the deceased’s estate – where adult child made only modest contributions to the welfare of the deceased during her lifetime – where there is a strong competing claim by other adult child – where the deceased enjoyed a strong and close relationship with defendant prior to her death – family provision claim dismissed

Legislation Cited:

Aged Care Act 1997 (Cth), Sch 1 and s 41–3

Civil Procedure Act 2005 (NSW), s 77

National Disability Insurance Scheme Act 2013 (Cth), s 29

NSW Trustee and Guardianship Act 2009 (NSW)

Practice Note SC Eq 7, cl 21

Succession Act 2006 (NSW), ss 57, 58, 59, 60 and 61

Cases Cited:

Amos v Hogg [2018] NSWSC 1226

Blendell v Byrne [2019] NSWSC 583

Bowditch v NSW Trustee and Guardian [2012] NSWSC 275

Chan v Chan [2016] NSWCA 222

Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392

Foley v Ellis [2008] NSWCA 288

Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843

Hampson v Hampson [2010] NSWCA 359

Harris v Carter [2020] NSWSC 196

Lumsdon v Gargano [2012] NSWSC 1169

Page v Hull–Moody [2020] NSWSC 411

Russell v Rail Infrastructure Corp [2007] NSWSC 447

Sgro v Thompson [2017] NSWCA 326

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

Category:

Principal judgment

Parties:

In proceeding 2018/385260:
Sandra Vella (Plaintiff)
Vanessa Vella (Defendant)

In proceeding 2018/369508:
Vincent Tyronne Vella (Plaintiff)
Vanessa Vella (Defendant)

Representation:

In proceeding 2018/385260:
Counsel:
Ms K E Burke (Plaintiff)
Ms L M Clarke (Defendant)

Solicitors:
Chamberlains (Plaintiff)
Cunningham Legal (Defendant)

In proceeding 2018/369508:
Counsel:
Ms R Bianchi (Plaintiff)
Ms L M Clarke (Defendant)

Solicitors:
Armstrong Legal (Plaintiff)
Cunningham Legal (Defendant)

File Number(s):

2018/385260; 2018/396508

Publication restriction:

On 23 April 2020, the Court made an order pursuant to s 8(1)(a) and/or (1)(e) of the Court Suppression and Non–publication Orders Act 2010 (NSW) that the NDIS number in the document marked as Exhibit 2 not be published.

Judgment

INTRODUCTION

1. Laura Anna Delores Vella (the deceased) died on 16 December 2017, aged 79 years. Her husband died in May 2008. She is survived by her five children Patricia Watson (aged 63 years), Sandra Vella (also known as Alexandra, aged 62 years), Christopher Vella (aged 57 years), Vanessa Vella (aged 48 years) and Vincent Vella (now aged 47 years). Sandra Vella suffers from an intellectual disability as a result of contracting meningitis as a child. Her estate is managed by the NSW Trustee and Guardian pursuant to a financial management order made on 30 April 1997.

2. On 23 March 2018, this Court granted probate of the deceased’s last will dated 11 December 2017 to Vanessa Vella, who is named in that will as the executor.

3. Vincent Vella and Sandra Vella (by her tutor, the NSW Trustee and Guardian) commenced proceedings on 30 November 2018 and 14 December 2018 respectively. Each of them claims an order that provision be made out of the deceased’s estate and/or notional estate for their maintenance education and advancement in life pursuant to s 59 of the Succession Act 2006 (NSW), orders designating as notional estate such property as the evidence may disclose and an order that the parties’ costs be paid out of the estate. At the hearing, neither plaintiff sought to designate any property as notional property of the estate.

4. Vanessa Vella, as the executor of the will to whom probate has been granted, is the defendant in both proceedings.

5. The Summons filed on behalf of Sandra Vella also sought an order revoking the grant of probate of the deceased’s will dated 11 December 2017 and granting probate of an earlier will dated 6 May 2008. However, that claim for relief was abandoned at an early stage of the proceedings, well before the commencement of the final hearing.

6. The two proceedings were heard together over three days, commencing on 22 April 2020. At the commencement of the hearing, I made an order that evidence in one proceeding be evidence in the other.

7. As the two plaintiffs and the defendant have the same surname, these reasons refer to them by their first names Vincent, Sandra and Vanessa. No disrespect is intended.

8. A copy of the grant of probate with the will annexed was in evidence. [1] Under her last will dated 11 December 2017, the deceased:

   1. Court Book, pages 559–565.

1. gave $1,000 to each of Vincent, Patricia Watson, and Christopher Vella;

2. gave her clothing and $2,000 to Sandra;

3. gave her watches and porcelain doll collection to her granddaughter Bianca Mazelli (the daughter of Vanessa); and

4. gave the residue of her estate to Vanessa.

9. By the end of the hearing before me, Vincent, Sandra and Vanessa had reached agreement that the value of the estate as at the date of the hearing was $758,558. With the exception of a motor vehicle worth approximately $2,000, the net assets are cash (including the proceeds of sale of the deceased’s residence and rental income earned from that property prior to sale).

10. The parties’ costs of these proceedings may reduce the value of the estate that is available for distribution after the determination of these proceedings. If either Vincent or Sandra is successful in their claims, their costs would typically be ordered to be paid out of the estate on an ordinary basis and Vanessa’s costs as executor would typically be ordered to be paid out of the estate on an indemnity basis. All parties made some submissions about costs in these proceedings, but urged me to hear the parties about costs once Vincent’s and Sandra’s claims have been determined. The Court was informed that:

1. Vincent’s costs of the proceedings up to and including the conclusion of the three day hearing are $112,000 on an indemnity basis or $80,000 on an ordinary basis. Both amounts include GST, but do not include an uplift fee of 10% that will be payable to the solicitors if Vincent’s family provision claim is successful. Vincent has not yet paid any of these costs, but he has paid amounts totalling $3,403 for the filing fee and hearing allocation fee;

2. Sandra’s costs of the proceedings up to and including the conclusion of the hearing are $105,000 on an indemnity basis or $81,000 on an ordinary basis. Approximately $30,486 of these costs have already been paid to Sandra’s legal representatives. All figures include GST; and

3. Vanessa’s costs of the proceedings up to and including the conclusion of the hearing are $59,573 on an indemnity basis and $41,701 on an ordinary basis. Again, all figures include GST. I was informed that Vanessa did not have legal representation for some time after the proceedings were commenced.

11. Vincent and Sandra each commenced their family provision claim within the time permitted by s 58(2) of the Succession Act.

12. It is not in dispute that, as children of the deceased, each of Vincent and Sandra are eligible persons: s 57(1)(c) of the Succession Act.

13. Vincent seeks an order for provision in the amount of $70,000 out of the estate. Vanessa contends that Vincent’s application should be dismissed, with no order as to costs.

14. Sandra seeks an order for provision in the amount of $150,000 to assist her to provide for herself for the remainder of her life, taking into account her intellectual disability and her need to live in assisted care facilities. Vanessa accepts that further provision should be made for Sandra, but contends that it should be in the amount of $70,000.

15. The submissions filed on behalf of Vanessa raised her financial circumstances as a competing claimant and an affidavit to that effect was read on the first day of the hearing. However, during her evidence in chief on the second day of the hearing, Vanessa stated that the affidavit had been filed without her instructions or authority. After a short adjournment, Ms Clarke of counsel, who appeared for Vanessa, announced that Vanessa did not wish to raise her financial circumstances as a competing claimant and that the relevant submissions were withdrawn. Leave was also granted to withdraw the relevant affidavit. [2] Thereafter, no cross–examination was directed to the remaining evidence concerning Vanessa’s financial resources or needs [3] and no submissions were directed to that subject by any party. Such evidence would only have been relevant to a competing claim by Vanessa based on her financial circumstances, and I disregard it as irrelevant now that the competing financial claim has been withdrawn. I proceed on the assumption that Vanessa has sufficient resources to meet her needs. However, I must have regard to the fact that the deceased preferred to leave the residue of her estate, after the small gifts to others referred to above, to Vanessa. Vanessa’s interests as the chosen object of the deceased’s testamentary bounty, her relationship with the deceased and any other relevant circumstances pertaining to Vanessa that do not concern her financial resources and needs are therefore relevant to the determination of the claims made by Vincent and Sandra: s 61 of the Succession Act; Blendell v Byrne [2019] NSWSC 583 at [113]–[118] and the authorities there cited.

    2. Transcript, pages 128 (line 38) – 130 (line 25).

    3. Affidavit of Vanessa Vella affirmed 28 February 2019, paragraphs 104–113 (filed in proceeding 2018/369508 concerning Vincent’s claim); affidavit of Vanessa Vella affirmed 1 March 2019, paragraphs 104–113 (filed in proceeding 2018/385260 concerning Sandra’s claim); affidavit of Vanessa Vella affirmed 12 April 2020, paragraphs 4–14 (filed in proceeding 2018/385260 concerning Sandra’s claim).

16. The deceased’s other two children Patricia Watson and Christopher Vella are the only eligible persons who are not parties to these proceedings. They have been notified of the plaintiffs’ claims and that the Court may determine those claims without regard to any possible claim by them. [4] Notice to the same effect was given to one of the deceased’s grandchildren, Bianca Mazelli, presumably because she is a beneficiary under the deceased’s will. [5] The recipients of the notices did not make any claim for provision in excess of that made for them in the deceased’s last will. In determining the claims of Vincent and Sandra, the Court may disregard the interests of Patricia Watson, Christopher Vella and Bianca Mazelli, save to the extent that they have an interest in receiving the gift left to them under the deceased’s will: Succession Act, s 61; Lumsdon v Gargano [2012] NSWSC 1169 at [38].

    4. Affidavit of Jaimi Gardiner affirmed on 26 March 2019.

    5. Affidavit of Nadine Rahhal sworn on 20 June 2019.

17. As noted above, all parties submitted that I should hear from them in relation to costs after determining the claims of Vincent and Sandra, and so for present purposes I do no more than record the following contentions made by the parties during the hearing. Vanessa contends that the amount of Sandra’s legal costs should be capped at $40,000. If any family provision order is made in respect of Vincent, Vanessa contends that his legal costs should be capped at $30,000. Sandra and Vincent both submit that their costs should not be capped. Vincent submitted that Vanessa’s costs should be paid out of the estate on an indemnity basis, but Sandra contended that not all of Vanessa’s costs should be paid out the estate.

APPLICABLE LEGAL PRINCIPLES

18. The legal principles applicable to family provision claims under Chapter 3 of the Succession Act have recently been set out by Hallen J in Harris v Carter [2020] NSWSC 196 at [106]–[164]. His Honour has drawn together numerous judgments of this Court, the Court of Appeal and other courts through which principles guiding the exercise of the jurisdiction under Chapter 3 have been developed. I gratefully adopt his Honour’s careful and detailed summary, which enables me to state the principles of particular relevance to these proceedings succinctly.

19. As noted above, there is no dispute that the two plaintiffs, Sandra and Vincent, are each eligible persons and that their applications were made within time: Succession Act, ss 57(1)(c), 58. The Court’s power to make an order under s 59 of the Succession Act for provision out of the deceased’s estate for Sandra and/or Vincent therefore turns on whether the Court is satisfied, at the time of determining their applications, that the deceased’s will did not make adequate provision for their proper maintenance, education or advancement in life. As Hallen J said in Harris v Carter, this is a question of objective fact which requires a multi–faceted evaluation: Harris v Carter (supra) at [111]–[112] and the authorities there cited.

20. The adequacy of the provision made by the deceased’s will is concerned with quantum, whereas proper prescribes the standard of maintenance, education and advancement in life. The inquiry into adequacy is not limited to considering whether the plaintiff has enough to survive or to live comfortably without provision (or further provision, as the case may be) from the deceased’s estate. Adequacy is a broader concept that requires consideration of matters necessary to guard against unforeseen contingencies. In deciding whether adequate provision has been for the plaintiff’s proper maintenance, education or advancement in life, attention may be given to how the parties lived and might reasonably have expected to live in the future. The concepts of adequate and proper are not assessed in a vacuum, but in the context of all of the circumstances of the case, including the plaintiff’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the plaintiff and the deceased and the relationship between the deceased and other persons who have legitimate claims on the deceased’s estate: Harris v Carter (supra) at [114]–[122] and [149]–[154] and the authorities there cited.

21. If the multi–faceted evaluation referred to above satisfies the Court that adequate provision has not been made by the deceased’s will for the plaintiff’s proper maintenance, education or advancement in life, the question is whether the Court should exercise the power under s 59(2) of the Succession Act to make an order for provision and, if so, what provision ought to be made out of the deceased’s estate for the maintenance, education or advance in life of the plaintiffs having regard to all the circumstances of the case.

22. Section 60 of the Succession Act provides that the Court may consider the following matters for the purpose of determining whether to make an order under s 59 and the nature of any such order:

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

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

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

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

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

(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,

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

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

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

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

(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,

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

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

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

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

(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.”

23. The matters in s 60(2) are relevant to ss 59(1)(b) and (c), and 59(2) and 60 of the Succession Act: Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [7] (Basten JA, Gleeson JA agreeing); Chan v Chan [2016] NSWCA 222 at [21] (Basten JA, Simpson and Payne JJA agreeing).

24. The financial needs that may be considered under s 60(2)(d) must be more than simply wants, desires or demands, but are not limited to the necessities of life: Harris v Carter (supra) at [124]–[128] and the authorities there cited.

23. Although financial needs are an important matter to be considered by the Court, the jurisdiction is not exclusively needs–based: Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [124]–[132] (Brereton JA, Simpson AJA agreeing). As Hallen J said in Harris v Carter (supra) at [133]:

“The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed are, necessarily, of decisive significance, and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender. The subsection makes clear, since other matters may be taken into account, that the jurisdiction is not exclusively needs–based.”

26. As Basten JA said (with the concurrence of Simpson and Payne JJA) in Chan v Chan (supra) at [22] (my emphasis added):

“A significant set of factors in many cases is that identified as ‘the financial resources (including earning capacity) and financial needs, both present and future, of the applicant …’. However, it is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. The background to any consideration of the appellant’s needs require[s] determination of the size of the estate and the claims of others on the beneficence of the testator.”

27. The Court gives considerable weight to the deceased’s testamentary wishes. However, there is no predisposition against (or in favour of) making an order for provision. The jurisdiction is exercised in accordance with the terms of Chapter 3. The Court is not engaged an exercise in achieving “fairness” or “equality” between beneficiaries and claimants on the deceased estate, or addressing wounded feelings or disappointed expectations: Harris v Carter (supra) at [138]–[152] and the authorities there referred to, including Steinmetz v Shannon (supra) at [89]–[90], [95]–[97] (Brereton JA, Simpson AJA agreeing); Sgro v Thompson [2017] NSWCA 326 at [83]–[87] (White JA, McColl and Payne JJA agreeing).

28. As I have already mentioned above, the interests of other claimants on the deceased’s estate, and of beneficiaries entitled to a share of the estate under the will, are relevant to the Court’s consideration of the propriety and adequacy (or inadequacy) of any provision for the plaintiff, both for the purpose of s 59(1)(b) and (c) and when determining whether any provision order should be made and the nature of any such order: ss 59(2), 60(2)(b) and 61 of the Succession Act; Sgro v Thompson (supra) at [71]–[74] (White JA, McColl and Payne JJA agreeing); Foley v Ellis [2008] NSWCA 288 at [9] (Basten JA) and [86]–[89] (Sackville AJA, Beazley JA agreeing) and the authorities there cited.

29. Although the determination of what is adequate and proper will necessarily depend on all the circumstances of the case, certain general principles were identified by Hallen J as useful to remember in cases involving claims by adult children of the deceased in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [111] (cited with approval in Chapple v Wilcox (supra) at [21] (Basten JA, Gleeson JA agreeing)) and in Page v Hull–Moody [2020] NSWSC 411 at [176]. It is convenient to set out in full the principles as articulated by his Honour in Page v Hull–Moody (supra):

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

(b)   It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, “… ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life — such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, child up in a position where she or he can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation”: Taylor v Farrugia [2009] NSWSC 801 at [57] (Brereton J); McGrath v Eves [2005] NSWSC 1006 at [67]–[71] (Gzell J); Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond (2015) 14 ASTLR 442 at 463 [109]–[110]; [2015] NSWCA 42 at [109]–[110] (Beazley P, McColl and Gleeson JJA agreeing).

(c)   Generally, also, “… the community does not expect a parent to look after his or her children for the rest of [the child’s life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute”: Taylor v Farrugia at [58] (Brereton J).

(d)   There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker at 576 (Dixon CJ and Williams J); Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 545–546 (Holland J); Bondelmonte v Blanckensee [1989] WAR 305 at 309–310 (Malcolm CJ, Nicholson J agreeing); Hawkins v Prestage (1989) 1 WAR 37 at 44–45 (Nicholson J); Taylor v Farrugia at [58].

(e)   The adult child’s lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]–[182] (Templeman J); Crossman v Riedel [2004] ACTSC 127 at [49] (Gray J). Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43] (Wheeler J, albeit in dissent in the result). In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287 at [74]–[90] (Martin CJ); Butcher v Craig [2009] WASC 164 at [17] (Sanderson M).

(f)   The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 149 (Gibbs J, Mason and Aickin JJ agreeing); [1979] HCA 2.”

30. Of course, these are not inflexible principles or rules of law. There is no predisposition for, or against, the making of an order for provision in favour of an adult child: Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843 at [167]–[170] and the authorities there cited; Page v Hull–Moody (supra) at [178]–[185] and the authorities there cited.

31. An order for provision in favour of a child of the deceased is not made for the purpose of punishing the deceased, or compensating the applicant, for the deceased’s past conduct or limitations as a parent. However, the deceased’s past conduct may be relevant where it has had the effect of depriving the applicant of opportunities in life, or there is some other causal connection between that conduct and the applicant’s need for provision: Harris v Carter (supra) at [157]–[159] and the authorities there referred to.

32. The significance of any estrangement between the child applicant and the deceased parent to the child’s family provision claim will depend on the all the facts of the case. The length of the period of estrangement, the circumstances in which it occurred and the reasons for it will be relevant, together with all of the other relevant factors referred to above. There is no rule that a plaintiff who has been estranged from the deceased is not entitled to provision, irrespective of the plaintiff’s needs, the size of the estate and the existence or absence of other claims on the estate. On the other hand, there are circumstances in which the Court may need to recognise that the deceased was entitled to make no provision for a child, such as where the child has callously withheld love and support from the deceased in their declining years without proper justification, or been hostile to the deceased: Amos v Hogg [2018] NSWSC 1226 at [238]–[252] and the authorities there cited.

NARRATIVE

33. The narrative that follows is drawn from the affidavit, oral and documentary evidence adduced by the parties. Where matters referred to are in dispute, I have identified the dispute and incorporated within the narrative my findings of fact in relation to those disputed matters. The evidence concerning the present and future financial resources, earning capacity and financial needs of Vincent and Sandra is summarised separately at the conclusion of the narrative.

34. The deceased and her husband raised their five children in their home in the Sydney suburb of Kings Langley.

35. The deceased’s eldest child, Patricia, moved out of the family home when she married at the age of 18, in about 1974.

36. Sandra is the second eldest of the deceased’s five children. She left the family home at the age of 20 years, in 1978. Vanessa and Vincent were aged 7 and 5 years, respectively, at that time. Sandra then lived in various boarding houses and group homes with assisted care services. She has lived in her current group accommodation since 2001. In her affidavit affirmed on 29 February 2019, Vanessa deposed that Sandra telephoned her parents, and travelled by public transport to visit them occasionally, after moving out of home. By contrast, Vanessa gave evidence that the deceased (and her husband, when he was alive) did not visit Sandra often. Vanessa said: “My mother didn’t like to go there, I think.”

37. Ms Burke of counsel, who appeared for Sandra, acknowledged that little else is known of Sandra’s relationship with the deceased. However, there are some indications in the reports of Mr Robert Pringle, clinical psychologist, referred to below that she had, and continues to feel, an emotional connection to both her deceased parents. Mr Pringle’s reports refer to anti–depressants being prescribed to Sandra as a result of her distress concerning her mother’s death. Mr Pringle also states that part of the assistance that Sandra currently receives under the National Disability Insurance Scheme (NDIS) is personal assistance to enable her to pay a monthly visit to the cemetery where her parents are buried.

38. It is not clear from the evidence when the deceased’s third child, Christopher, moved out of home. In her affidavit affirmed on 29 February 2019, Vanessa deposed that Christopher moved out of the family home and into rental accommodation after he was told to leave for not performing his chores. According to Vanessa, Christopher’s relationship with his parents was erratic and, towards the end of their lives, non–existent. Vanessa described her own relationship with Christopher in the same terms, and said that he had ceased communication with her in about 2004.

39. Vanessa, the deceased’s fourth child, had a twin sibling who died at birth. Vanessa left the family home at about the age of 19 in 1990 to join the Royal Australian Navy.

40. Vincent is the youngest of the deceased’s five children. In his affidavit affirmed on 29 November 2018, Vincent gave an account of a happy home life with his parents and family during his childhood and teenage years. He described helping his father with his work as a postal worker, and helping his mother with gardening. He said that both of his parents instilled in him their hard work ethic and many key moral values which gave him a good start in adult life and which have guided him through his adult life.

41. Vincent left school at the age of 17 to commence an apprenticeship as a hairdresser, but he continued to live at home “on and off” until 1999. He paid weekly board from the age of 15 years, commencing with $10 per week and increasing to $100 per week some time before 1999, when he moved out of the family home permanently at the age of 25 years.

42. As Vincent moved out of the family home in 1999, Vanessa moved back in for a period after her first marriage ended. Vanessa assisted with household tasks and paid board during this time. According to Vanessa, she lived at the family home for about one year at this time. Vincent’s evidence was to the effect that Vanessa lived at the family home from 1999 until 2001. However, nothing material turns on this discrepancy between their respective accounts of these historical details.

43. When Vincent moved out of home in 1999, he opened his own barber shop approximately one to one and a half kilometres down the road from the Kings Langley family home. He worked out of these premises until 2008.

44. Vincent gave evidence that, after he moved out of the family home, he kept in contact with the deceased by telephone, usually weekly. He also visited the deceased at her home once or twice a week, and would often help her with household tasks while visiting. However, during the period that Vanessa was living in the Kings Langley family home, he timed his visits to avoid seeing Vanessa at the home. According to Vincent, he did not enjoy a good relationship with Vanessa at this time. Vanessa’s evidence described the deterioration of her relationship with Vincent as beginning somewhat later, in about 2003. Again, nothing material turns on this discrepancy.

45. Vincent said that, in addition to assisting the deceased with household tasks when he visited her after leaving home, he occasionally assisted her with paying bills as she was a pensioner with limited financial means. He said that these payments did not exceed more than a few hundred dollars at a time.

46. Vincent gave evidence that, with the exception of special occasions, the deceased generally left it to Vincent to contact her. She rarely called Vincent or visited him at his home. However, they always exchanged cards or gifts on occasions such as birthdays, Christmas or Mothers’ Day.

47. In his affidavit affirmed on 29 November 2018, Vincent deposed that the deceased would also drop in to his barber’s shop to see him when she was out shopping during the period after 1999. It is a little difficult to reconcile this with his evidence in the same affidavit that the deceased generally left it to Vincent to contact her. In cross–examination, Vincent said that he had contact with the deceased when she would bring his father to his barber’s shop for a haircut in the period before his father passed away in 2008. The occasions when Vincent saw the deceased at his barber’s shop therefore appear to be associated with his father’s need for a haircut rather than the deceased and Vincent catching up with one another.

48. Vanessa met her present husband, Mr George Mazelli, in 1999. They had their first child, Cody, in 2002 and their second child, Bianca, in 2006. The deceased and her husband visited Vanessa and Mr Mazelli at their home weekly or even more frequently, or they met at other pre–arranged locations such as cafes. Vanessa’s evidence described the deceased and her husband as enjoying time with their new grandchildren and forming strong bonds with them.

49. In about 2001, Vincent met and began a relationship with Ms Megan Signorelli. They began living together in late 2001 and purchased a home together at Windsor Downs in March 2003. They continue to live in that home today.

50. Vincent said that the deceased was initially disapproving of his relationship with Ms Signorelli because she has three children from a previous relationship. However, as she got to know Ms Signorelli better, the deceased became “very approving” of the relationship.

51. During the period from 2004 until the death of his father in May 2008, there was a period of almost complete estrangement between Vincent and the deceased. According to Vincent’s evidence in cross–examination, he was “not completely” estranged from the deceased during this time because he still saw her when she brought Vincent’s father to his barber’s shop for a haircut and she would sometimes come in and say hello on those occasions. This was the only contact with the deceased that Vincent referred to when it was put to him in cross–examination that he did not see the deceased between 2004 and his father’s death in May 2008. There is no evidence about the cause of this estrangement.

52. On 4 May 2008, the deceased’s husband passed away. His estate passed to the deceased. On 6 May 2008, the deceased made a new will, in which she left $20,000 to each of Vanessa’s two children, $75,000 to Sandra and the remainder of her estate to Vanessa. The deceased included notes in the will explaining why she had made no provision for Patricia, Christopher and Vincent. In relation Vincent, the note stated:

I have not provided for my son VINCENT TYRONNE in this my last will and testament because he has not showed me the love and/or support reasonably expected by a parent from their child. I haven’t seen or spoken to my son VINCENT TYRONNE since on or about Christmas 2004. Currently, my son VINCENT TYRONNE works about five hundred metres (500m) down the road from where I reside and he has never bothered to come past and visit me or to call to check up on me. I have provided my son VINCENT TYRONNE with financial support over the years and now consider him able to look after himself and further he does not require any financial assistance from me. I further direct that given the breakdown in our relationship should our relationship be rekindled I still do not wish to provide for him under this my last will and testament in the first instance for the reasons already outlined by me and for all the pain and suffering he has caused me and for the fact that as far as his life is concerned I feel as though I am non existent.

53. Vincent denies that he had not seen or spoken to the deceased between Christmas 2004 and May 2008. However, it is clear from his evidence in cross–examination that his contact with the deceased during that period was limited to the occasional contact at his barber’s shop that I have referred to above. It is clear from the deceased’s note in her will made on 6 May 2008 that she regarded that contact as falling far short of the kind of interactions that she as a parent wished to have with her child.

54. Vincent said that the loss of his father took a heavy emotional toll on the family, and he comforted and consoled his mother as best he could during this time. Vincent deposed that he moved in with his mother during the period from June to August 2008 in order to help and support her, and that he paid board of $100 per week during that period. However, Vanessa gave evidence that the deceased relied on Vanessa and her husband for assistance during this period, and that they visited the Kings Langley home at least weekly to help her with work around the house and garden and other matters. Vanessa deposed that she did not believe that anyone else was living with her mother at that time, given the extent of the things that needed to be done on their weekly visits. Vincent maintained that he did move in with the deceased between June and August 2008, and said that Vanessa did not visit weekly or provide assistance to the deceased during that period. Neither Vincent nor Vanessa were cross–examined about this issue and so it is not possible to resolve this factual dispute between them. However, precisely what occurred during this three month period almost ten years prior to the death of the deceased is not material to the outcome of Vincent’s family provision claim.

53. During the period from about mid–2009 until early 2010, the deceased and Vanessa had a series of conversations about the possibility of the deceased moving to a larger property in a more rural location that Vanessa and Mr Mazelli were planning to purchase at East Kurrajong. As explained by Vanessa in her affidavit affirmed on 28 February 2019 and in cross–examination, the proposal involved selling the deceased’s home in Kings Langley and using the sale proceeds, together with a bank loan, to fund the purchase of the new property and complete renovations and the construction of a house or granny flat on the land for the deceased to live in. During this renovation and construction work, the deceased would live with Vanessa and Mr Mazelli at their home in Rouse Hill. The Rouse Hill property would be sold once the work at East Kurrajong had been completed. Vanessa’s family and the deceased would move to East Kurrajong and the proceeds of the sale of the Rouse Hill property would be used to pay to the deceased an amount equivalent to the sale proceeds of the Kings Langley home less the costs of constructing the deceased’s new residence at East Kurrajong. Vanessa expected that the deceased would be paid approximately $400,000. Living together on the same property would enable Vanessa to care for the deceased as she aged.

54. The deceased approved of the proposal. Her home at Kings Langley was sold for $558,000 and the deceased moved into Vanessa and Mr Mazelli’s Rouse Hill home in August 2010. The East Kurrajong property was purchased using $492,000 of the Kings Langley sale proceeds. It is not entirely clear what happened to the remaining $66,000 sale proceeds but, as will become apparent below, Vanessa ultimately paid to the deceased an amount representing the sale proceeds of Kings Langley less the cost of work done towards the residence for the deceased at East Kurrajong.

55. Vincent gave evidence that the deceased did not tell him about any agreement that his mother had reached with Vanessa and Mr Mazelli concerning the sale of the Kings Langley home and the purchase of the East Kurrajong property. Indeed, he denied that any such agreement existed. He did not understand why the deceased allowed her funds to be used to purchase property in Vanessa’s name, and attributed it to “the influence of Vanessa and her husband”.

56. I accept Vanessa’s evidence that she and the deceased did have an agreement or understanding to the effect that she described in her evidence. The deceased may have had many reasons for not informing Vincent about the arrangement. The fact that she did not do so does not cast doubt on Vanessa’s evidence about the arrangement. Under cross–examination, Vanessa presented as a witness who was giving candid and truthful evidence to the best of her recollection concerning the matters about which she was questioned. This included the difficult period in her relationship with the deceased from 2011 to 2015 that is referred to below. Vanessa did not attempt to downplay or trivialise the strain in their relationship during that period. Vanessa was cross–examined about the arrangement and gave detailed evidence that was consistent with the evidence in her affidavits. It was not put to her that the arrangement had not in fact been discussed or entered into with the deceased, or that it was a recent invention.

57. After the East Kurrajong property was purchased, Vanessa and Mr Mazelli worked more or less full–time on renovating it and undertaking preliminary work to construct the deceased’s residence on that property, such as land clearing, survey work and preparation of building plans.

58. In about early 2011, the deceased changed her mind about moving to East Kurrajong with Vanessa and Mr Mazelli and told Vanessa that she wanted her money. Vanessa, Mr Mazelli and the deceased were still living in the Rouse Hill property at this time, while work was being done on the East Kurrajong property. Vanessa needed to sell the Rouse Hill property in order to pay the deceased. The property was listed for sale in October 2011 and ultimately sold in April 2012. Vanessa paid the deceased $535,000. In cross–examination, Vanessa said that the sum of $535,000 represented the net sale proceeds of the deceased’s Kings Langley home (after agent’s commission and conveyancing costs) less the costs paid towards the construction of the deceased’s residence on the East Kurrajong property before the deceased changed her mind.

59. At some time during 2011 or early 2012, the deceased had commenced court proceedings against Vanessa and Mr Mazzelli to recover her funds from the sale of the Kings Langley property. However, the deceased continued to live in the Rouse Hill home of Vanessa and Mr Mazelli until May 2012. In her affidavit affirmed on 28 February 2019, Vanessa deposed:

“The relationship between my mother and I slowly became strained and I sought counselling to help cope with my mother’s silence, alienation and uncooperativeness to me whilst living in my home. I still don’t not understand [sic] where all this came from. I was prescribed anti–depressants and took them for about 6 months …”

62. The court proceedings were resolved with the payment of $535,000 to the deceased.

63. Vincent’s evidence about the nature and extent of his contact with the deceased during the period in which she lived at Rouse Hill is riddled with inconsistencies. On the one hand, Vincent deposed in his affidavit affirmed on 29 November 2018 that his contact with the deceased gradually decreased, and that most communication had to be by phone because Vincent did not feel comfortable visiting his mother at Vanessa’s home as he was not on good terms with Vanessa. On the other hand, Vincent deposed in the same affidavit and his affidavit affirmed on 31 May 2019 that his mother began visiting him regularly during this period. Vincent also deposed in his affidavit affirmed on 29 November 2018 that his mother moved into his home in mid–2011 “on a permanent basis”. In the same affidavit, Vincent deposed that this move was only until the deceased was able to move into her own home in mid–2012. In reply to this evidence, Vanessa deposed in her affidavit affirmed on 28 February 2019 that the deceased had lived at the Rouse Hill property until May 2012, annexing correspondence dated April 2012 from the deceased’s solicitors addressed to the deceased at the Rouse Hill property. Vincent then affirmed his 31 May 2019 affidavit in which deposed: “I confirm that my mother lived with me at my Windsor Downs home from around March 2012 to July 2012”.

64. Given these inconsistencies, which were not explored in cross–examination, I regard Vincent’s evidence about this period as unreliable. Vanessa’s evidence about the timing of the deceased’s move to Vincent’s property is more reliable, being consistent with the solicitor’s letter having been sent to the deceased at the Rouse Hill property in April 2012. I find that there was some contact between Vincent and the deceased during the period from August 2010 until May 2012, and that the deceased moved into Vincent’s Windsor Downs home in May 2012. The unreliable state of the evidence does not permit findings to be made about the extent or nature of the contact between the deceased and Vincent during the period from August 2010 to May 2012.

65. In July 2012, the deceased purchased and moved into a property at Seven Hills. The deceased resided at the Seven Hills property until she was hospitalised in October 2017 in the circumstances referred to below.

66. Vanessa gave evidence that, from the time the deceased moved out of the Rouse Hill property in May 2012, their relationship remained strained and they did not speak like they used to until about 2015. However, during this period, they continued to have contact for the purpose of Vanessa arranging for her children to see the deceased. As time went on, Vanessa and the deceased began communicating again as they had previously, including visiting one another’s homes.

67. There is a dispute between Vincent and Vanessa about the extent to which Vincent visited and assisted the deceased with gardening, painting the house, kitchen renovations and other matters during the period after July 2012 until the deceased’s illness in October 2017. Vincent gave evidence that he visited the deceased every few weeks and helped her in this way. Vanessa gave evidence that the deceased had told her that Vincent did not contact her for two years. I infer that this conversation occurred at some time after 2015, when Vanessa and the deceased had resumed their normal communications.

68. It is unclear from the evidence when this two year period of estrangement between Vincent and the deceased is said to have occurred. It was put to Vincent in cross–examination that he had not contacted his mother for two years after she moved out of his home in mid–2012, and Vincent denied this.

69. In his affidavit affirmed on 29 November 2018, Vincent deposed that the deceased would often spend Christmas Day with him and his family, and that these were always jovial family occasions. In her affidavit in reply affirmed on 28 February 2019, Vanessa deposed that she believed that this occurred only whilst she and the deceased were not on speaking terms. Such Christmas gatherings at Vincent’s home during the period 2012 to 2015 are inconsistent with a two year period of estrangement after 2012. The limited nature of the communication between Vanessa and the deceased between 2012 and 2015 is such that Vanessa could not have formed any impression at the time of the extent of Vincent’s contact with the deceased during that period.

70. It does not necessarily follow that the deceased did not complain to Vanessa that Vincent had not contacted her. Such a complaint, made after the deceased and Vanessa’s relationship had recovered from the strain that had begun in 2011, may well have been made at a time when the deceased was “up” in her relationship with Vanessa and “down” in her relationship with Vincent in the manner that Vanessa explained in cross–examination:

“My mother would have feelings about members of her family. She wouldn't encourage us to sort of spend time with each other, as much as what I thought she should. So we weren't sort of, you know, there was no celebrations where we would invite, where she would invite other members of the family to come and join in, like birthdays and things like that. So, she raised our family different to say how I would raise, how I'd be raising my family, so. I tried to make everyone included, and she sort of was up and down, I guess, with you know, preferences for certain children and how she felt with them at the time, what was happening in their lives, what's happening in her life.”

71. For those reasons, I am not satisfied on the balance of probabilities that there was any period of estrangement between Vincent and the deceased during the period after 2012. However, given the unreliability of Vincent’s evidence about the nature and extent of his contact with the deceased during the period from August 2010 until May 2012 as referred to above, I make no findings about the frequency of their contact during this period or the extent of assistance that Vincent provided to the deceased during this period. Such findings are not necessary in order to assess the relationship between Vincent and the deceased for the purpose of determining Vincent’s family provision claim. As Campbell JA said in Hampson v Hampson [2010] NSWCA 359 at [79] (Giles JA and Handley AJA agreeing):

“The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad–brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge.”

As will become apparent below, it is Vincent’s conduct in the weeks prior to the deceased’s death, rather than any chores done and assistance rendered in several years earlier, that speaks to the nature of their relationship, in my opinion.

72. On 10 November 2017, the deceased was hospitalised. Investigations revealed that the deceased was suffering from terminal cancer. She remained in hospital until 30 November 2017. During this period, Vanessa and her family visited the deceased in hospital. Vanessa liaised with the hospital staff about her mother’s treatment.

73. Vanessa gave evidence that she left a telephone message for Vincent informing him that the deceased was in hospital, and of her prognosis, but that Vincent did not return her call. In cross–examination, Vincent acknowledged receiving the telephone message. Although he was aware that the deceased was terminally ill, Vincent visited her in hospital only once during her 20 day admission.

74. On 30 November 2017, the deceased was discharged from hospital and went to stay with Vanessa and her family, who cared for her. This included purchasing or hiring equipment to make the deceased comfortable, administering medication, liaising with the hospital’s pain management team and community nurses, attending to the deceased’s intimate personal needs, comforting her when she was in distress during the night and providing company for her and taking her on outings in her wheelchair during the day.

75. In his affidavit affirmed on 29 November 2018, Vincent said that he could not understand why his mother went to stay with Vanessa after their property dispute and estrangement. As I have referred to above, the relationship between Vanessa and the deceased was strained rather than estranged during the period from 2011 to 2015. The deceased continued to live with Vanessa until May 2012 and Vanessa continued to make the effort thereafter to ensure that her children maintained their contact with the deceased even though her own relationship with the deceased was strained. The passage of time enabled Vanessa and the deceased to repair their relationship, but it is clear from Vincent’s evidence that he was not willing to move on from his own feelings about the events of 2011 and 2012, even as his mother was dying.

76. Both Vanessa and Vincent gave evidence that Vincent did not contact his mother while she was staying with Vanessa after being discharged from hospital. In his affidavit affirmed on 31 May 2019, Vincent said:

“After my mother was discharged from hospital and taken to [Vanessa’s] house, I was no longer able to contact her as all communication would have to go through [Vanessa], with whom I was not on good terms.”

77. I do not accept that Vincent was unable to contact his mother while she was staying at Vanessa’s home in the last weeks of her life. Vanessa had taken the step of contacting Vincent to let him know about their mother’s hospitalisation as referred to above. There is no evidence to suggest that Vincent had any basis to believe that Vanessa would not have allowed him to see or speak to the deceased if he had visited or telephoned Vanessa’s home. In her affidavit affirmed on 20 June 2019, Vanessa deposed that she would not have precluded Vincent from speaking with the deceased, and that she had in fact suggested to the deceased that she telephone Vincent during this time but the deceased had declined. Vanessa was not challenged on this evidence in cross–examination. I find that Vincent chose not to attempt to contact the deceased during the last weeks of her life because he did not wish to have any contact with Vanessa.

78. By contrast, Sandra did make contact with the deceased during the last weeks of her life at Vanessa’s home. Vanessa gave evidence that Sandra and the deceased had some emotional telephone conversations.

79. On 15 December 2017, the deceased was re–admitted to hospital. Vanessa stayed with her until 2:00am. She returned early the next morning and remained until 1:00am the following morning. The deceased passed away shortly before midnight on 16 December 2017, five days after making her last will.

80. The provisions of the deceased’s last will have been summarised in [8] above.

81. In his affidavit affirmed on 29 November 2018, Vincent deposed:

“I do not understand my mother’s intentions in dividing her estate the way she did. I can only attribute her actions to the influence of Vanessa and her husband, who had exerted considerable control over her financial affairs in the past.”

82. Vanessa gave evidence that she took the deceased to see a solicitor on 11 December 2017 so that her mother could make a will. However, Vanessa was not present when the deceased conferred with the solicitor. Vanessa had been aware of the contents of the will that the deceased made in May 2008, as the deceased had shown her the will shortly after making it and asked Vanessa what she thought. According to Vanessa’s evidence, the only influence that she attempted to exert over the deceased’s will made in December 2017 was that she said to the deceased:

“Mum, please leave some money for everyone this time as I don’t want there to be any trouble and I don’t want to have to go to court.”

83. It was not put to Vanessa in cross–examination that this conversation had not occurred or that she had attempted to influence the deceased’s will in any other way.

84. There is no evidence that would support a finding that Vanessa influenced the deceased not to make provision in her last will for Vincent or her other siblings beyond the small amounts left to them. The evidence does not establish that Vanessa and her husband “exerted considerable control” over the deceased’s financial affairs in the past, as Vincent asserted. Rather, as I have found above, there was a financial arrangement between Vanessa and the deceased to facilitate the construction of a new residence for the deceased on the East Kurrajong property. One purpose, perhaps the principal purpose, of that arrangement was to enable Vanessa to care for the deceased as she aged. When the deceased decided not to go ahead with the arrangement after the East Kurrajong property had already been purchased and work had commenced, it took time for Vanessa and her husband to return the deceased’s money to her because they needed to sell their Rouse Hill property in order to do so. This did in fact occur.

85. In May 2008, the deceased had chosen to make no provision for Vincent in her will, at a time when I have found that they were estranged other than occasional contact in his barber’s shop when his father needed a haircut. Counsel for Vincent put to Vanessa in cross–examination that she had nothing to do with the preparation of the deceased’s May 2008 will and she confirmed that she did not. When the deceased made her last will in December 2017, she was again estranged from Vincent during the last weeks of life suffering from terminal cancer. I have found that Vincent visited the deceased only once in hospital after being made aware that she was terminally ill, that he chose not to attempt to contact her during the last weeks of his life because he did not wish to have any contact with Vanessa, and that the deceased also chose not to contact Vincent during that period. In my opinion, this lack of contact at what they both knew to be the end of the deceased’s life reflects a relationship between Vincent and the deceased that was not a close or strong relationship, and most likely had not been so for some period of time prior to the deceased’s death in addition to the period between 2004 and 2008.

VINCENT’S FINANCIAL RESOURCES, EARNING CAPACITY AND NEEDS

86. In her will prepared in May 2008, the deceased stated that she had provided Vincent with financial support over the years, but there is no evidence of what that support entailed beyond providing him with a home for the first 25 years of his life. Vincent said that the deceased made no further provision for him after he moved out of the family home in 1999. Vincent received no provision from his father’s estate. The deceased made a very small provision for Vincent in her will, leaving him a gift of $1,000.

87. Vincent’s cross–examination revealed several inaccuracies in his evidence concerning his current financial resources. It was not submitted that Vincent’s claim should be dismissed on the basis of these inaccuracies alone. The summary below reflects the state of the evidence at the conclusion of Vincent’s cross–examination.

88. As referred to earlier in these reasons, Vincent is now 47 years of age.

89. In June 2014, Vincent suffered a heart attack. He had emergency surgery to insert four stents. He says that, as a result, he is now unable to perform strenuous activities, but he can still get along. Under cross–examination, Vincent described his health in the period after having the stents put in as “fair” and “relatively good”. He attends regular medical check ups. A report by Dr Shalaby, consultant cardiologist, annexed to Vincent’s affidavit affirmed on 17 March 2020 describes Vincent as clinically stable, but having some residual myocardial injury which reduces his exercise tolerance. The report states that Vincent requires ongoing surveillance and will likely need intervention in the future.

90. Vincent has been employed as a refrigeration mechanic since about 2017, and intends to continue working. Prior to 2017, he had been employed for warehouse duties with a refrigeration company since about 2010. He had commenced an apprenticeship as a refrigeration mechanic after leaving hairdressing in 2008, but his position had been terminated after three months and he had returned to hairdressing after that until 2010.

91. In his affidavit affirmed on 29 November 2018, Vincent described himself as a “low income earner with substantial debts” and his lifestyle as one of “substantial frugality”. However, in cross–examination and re–examination, Vincent acknowledged that this was no longer an accurate description of his lifestyle and that his financial position and that of his family had improved since he commenced working as a refrigeration mechanic in 2017. In my opinion, having regard to the standard of accommodation in which Vincent and his family live, it is somewhat doubtful whether the description in his affidavit accurately portrayed their financial resources prior to 2017. However, it is Vincent’s financial resources and needs at the time of the hearing that are relevant to the determination of his family provision claim.

92. In his affidavit affirmed on 29 November 2018, Vincent deposed that his gross income is $60,000 per annum. In his affidavit affirmed on 31 May 2019, Vincent deposed that is annual gross income is “around $65,000”. In his affidavit affirmed on 17 March 2020, Vincent deposed that his annual gross income is $88,342. Notices of assessment annexed to that most recent affidavit reveal that Vincent’s annual taxable income during the last three financial years was $93,211 in the year ended 30 June 2017, $113,517 in the year ended 20 June 2018 and $88,342 in the year ended 30 June 2019. Vincent acknowledged in cross–examination that his evidence in his earlier affidavits about his annual gross income was incorrect. There is no evidence about the reason for the significant discrepancy between the income recorded on the notices of assessment and Vincent’s evidence in his affidavits affirmed on 29 November 2018 and 31 May 2019. In the financial year ended 30 June 2019, being the most recent information available, the tax payable on Vincent’s gross income of $88,342 was $20,258, leaving him with net income of $68,084.

93. Ms Signorelli’s gross income in the financial year ended 30 June 2018 was $74,720. Tax of $15,831 was payable, leaving her with net income of $58,889 in that year. No more recent income figures were in evidence for Ms Signorelli.

94. That gives Vincent and Ms Signorelli a current combined annual net income of approximately $126,973.

95. In his affidavit affirmed on 17 March 2020, Vincent deposed that their combined annual expenditure is $117,211. In cross–examination, he said that Ms Signorelli pays the mortgage expenses and Vincent pays the balance of the expenses. In his affidavit, the mortgage expenses are said to be $36,400 per annum. However, under cross–examination, Vincent conceded that this was not correct. The required monthly repayments are currently $2,211 per month, although this amount varies according to changes in the variable interest rate from time to time. From at least 1 July 2017, Ms Signorelli was paying $700 per week to the mortgage account, which amounts to $36,400 per annum. However, in February 2018, she reduced those payments to $600 per week or $31,200 per annum. Vincent said that Ms Signorelli had chosen to pay a lower amount per month to the mortgage and to pay the difference to reduce credit cards, which have a higher rate of interest. Their combined annual credit card repayment expenses are $20,800, according to Vincent’s affidavit affirmed on 17 March 2020. Accordingly, their total annual expenses are slightly overstated by $5,200 and their actual annual expenses are $112,011.

96. As referred to earlier in these reasons, Vincent and Ms Signorelli continue to live together in the home that they purchased in 2003. The home is located on a one acre block and has four bedrooms, 2 bathrooms, 3 garages and a swimming pool. This is their principal asset, and its value is approximately $1,400,000. The balance owing under the loan secured by mortgage against the home is $306,291, resulting in net equity of approximately $1,093,709. The property is owned in their joint names and Vincent gave evidence that he owns a 10 per cent share of the property and Ms Signorelli owns the remaining 90 per cent. Vincent gave evidence in cross–examination that this reflects the proportion in which he and Ms Signorelli contributed their funds to the purchase of the property in 2003. Since that time, they have arranged their finances so that Ms Signorelli makes all of the mortgage repayments, but Vincent pays the other expenses. The current mortgage repayments of $31,200 per annum plus the additional sum of $100 weekly paid to credit card debts amount to only approximately 32% of their total annual expenditure of $112,011.

97. Vincent’s assets other than the home are superannuation, a motor vehicle, approximately $1,000 in bank accounts, and personal items and household contents.

98. Vincent’s superannuation account had a balance of $51,505 as at 30 June 2019.

99. In his affidavit affirmed on 17 March 2020, Vincent estimated the value of his motor vehicle as $23,300, being the lower end of the range for private vehicle sales for vehicles of that kind published in redbook.com.au. In cross–examination, Vincent said that the vehicle was possibly insured for about $35,000, but there is no evidence that would allow me to conclude that the insured amount is a better indication of the value of the vehicle than the redbook.com.au private sale price range. This would depend on whether or not Vincent had reduced the value for which the vehicle was insured over time when renewing the policy annually, and whether the vehicle has any modifications or special features that would attract an increased price on re–sale. There was simply no evidence of any of these matters.

100. In his affidavit affirmed on 17 March 2020, Vincent deposed that his and Ms Signorelli’s personal items and household contents had a nominal value. However, in cross–examination, Vincent accepted that those items and contents were insured for approximately $110,000. I infer that there is one insurance policy and that the insured value of $110,000 relates to the personal items and household contents of both Ms Signorelli and Vincent. The insured value may or may not reflect the current value of that property, depending on the extent to which Vincent and Ms Signorelli have adjusted the value for which they are insured over time to take into account usual wear and tear and depreciation. However, the insured value strongly suggests that it is highly unlikely that those items and contents have only a nominal value. Conservatively, I assume that their value is in the vicinity of $50,000 for the purpose of assessing their financial resources.

101. Ms Signorelli’s assets other than the home and personal items and household contents comprise superannuation and approximately $1,500 in bank accounts.

102. As at 30 June 2019, the combined balance of Ms Signorelli’s two superannuation accounts was $125,901.

103. Vincent’s liabilities other than the home loan are a credit card debt of $1,158 and a car loan under which $11,895 is owing.

104. Ms Signorelli’s liabilities other than the home loan are credit cards totalling $37,246.

105. Taking into account all of the evidence referred to above, the financial resources of Vincent and Ms Signorelli may be summarised as follows:

Assets and liabilities   

Vincent	Ms Signorelli	Combined
Assets	Home (10%)$140,000	Home (90%)$1,260,000	Home$1,400,000
Vehicle$23,300	VehicleN/A	Vehicle $23,300
Super$51,505	Super$125,901	Super$177,406
Bank accounts$1,000	Bank accounts$1,500	Bank$2,500
Contents$50,000
Total assets	$215,805	$1,387,401	$1,653,206
Liabilities	Mortgage$306,921
Car loan$11,895	Car loanN/A	Car loan$11,895
Credit cards$1,158	Credit cards$37,246	Credit cards $38,404
Total liabilities	$13,053 (excl mortgage)	$37,246 (excl mortgage)	$357,220
Net assets	$1,295,986

Income and expenditure   

Vincent	Ms Signorelli	Combined
Net income	$68,084	$58,889	$126,973
Expenditure	$75,611	$36,400	$112,011
Surplus (deficit)	($7,527)	$22,489	$14,962

106. It can been seen from the above analysis that Vincent has net assets of about $200,000, before taking into account his liability under the mortgage secured against the Windsor Downs home, which I assume is a liability that Vincent and Ms Signorelli owe jointly. The relatively modest assets of Vincent compared to Ms Signorelli’s assets is attributable to the fact that the home is held by them in proportions that reflect their initial contributions to its purchase, notwithstanding that Vincent has been paying the majority of the expenses of their joint household.

107. However, Vincent gave evidence that he and Ms Signorelli are mutually dependent on one another for financial support, and there was no evidence suggesting that this is likely to change in the future. It is therefore more meaningful to look at their combined financial resources, which reveals that they have net assets almost twice the total value of the deceased estate and a modest surplus of annual income over expenditure.

108. There are no children of the relationship between Vincent and Ms Signorelli. Ms Signorelli’s three children from her previous relationship are now aged 31, 26 and 21 years and are no longer dependent on Vincent and Ms Signorelli.

109. Vincent gave evidence to the effect that he has no substantial savings, he considers that his superannuation will not be sufficient to sustain his retirement, and he is concerned about whether he could be unable to pay his ongoing living expenses in the future.

110. At the age of only 47 years and given his relatively good state of health, it is to be expected that Vincent will continue working until retirement age and increasing the balance of his superannuation account to fund his retirement. There is no evidence to suggest that Ms Signorelli will not do the same, or that they will not provide mutual financial support to one another in retirement as they do presently.

111. The basis for Vincent’s concern that he may be unable to pay his ongoing living expenses in the future was not articulated. As revealed by the analysis of the evidence above, Vincent and Ms Signorelli’s household currently has annual income of approximately $15,000 in excess of annual expenditure. This is so, notwithstanding that Vincent’s income has reduced over the past three years for reasons that are not explained by the evidence.

112. Vincent said that, if the Court made an order in his favour for provision out of the deceased’s estate, he would use the provision to:

1. pay down the mortgage on the property that he owns with Ms Signorelli so as to free up a substantial portion of his income, thereby allowing him to meet his general living expenses;

2. add to his superannuation fund so as to make more adequate provision for his retirement; and

3. put funds aside in an interest–bearing account as a fund upon which he could draw to meet basic living costs, pay any unexpected expenses and guard against the vicissitudes of life.

SANDRA’S FINANCIAL RESOURCES, EARNING CAPACITY AND NEEDS

113. The summary that follows is drawn from the affidavit and oral evidence adduced by the parties and the clinical psychologist reports included in the evidence adduced by Sandra.

114. Sandra is now 62 years old. As referred to earlier in these reasons, she has intellectual disabilities as a consequence of childhood meningitis and her estate is managed by the NSW Trustee and Guardian (NSW Trustee) pursuant to a financial management order made on 30 April 1997.

115. Until a few years ago, Sandra worked in a sheltered workshop at Marrickville. She is now retired.

116. Sandra is single. There is no other person liable to support her and she lives in group home with four other women who also have disabilities. The home is part of the St George Community Housing Program, and is currently managed by disability support organisation “After Care”. Sandra has lived there since 2001.

117. Sandra was not being maintained by the deceased prior to the deceased’s death. There is no evidence that the deceased made any provision for Sandra during her lifetime, other than by providing a home for Sandra to live in for the first 20 years of her life. The deceased made a small provision for Sandra in her will, leaving her a gift of $2,000.

118. At the time of the hearing, Sandra had $52,115 in an account managed by the NSW Trustee and approximately $37 in another bank account. These are Sandra’s only assets. As at early 2019, Sandra’s account managed by the NSW Trustee held approximately $78,000. This was reduced to $52,115 by the time of the hearing in April 2020, principally as result of the payment of legal expenses incurred in connection with these proceedings.

119. Sandra receives a disability support pension of $2,142 per month and a transport allowance of $204 per month under the NDIS. As referred to above, Sandra is retired, and the disability pension is her only source of income.

120. Sandra’s expenses paid out of her pension by the NSW Trustee on her behalf for accommodation, management and accounting keeping fees, pharmacy and personal expenses amount to approximately $1,977 per month. The majority of this monthly expenditure relates to accommodation, which costs $550 per fortnight (or approximately $1,100 per month or $13,200 per annum). Other than these ongoing expenses, Sandra has no other liabilities.

121. Sandra is entitled to NDIS support funding paid directly to third party service providers for support services provided to Sandra. There was some lack of clarity in the evidence about the amount of that funding that Sandra is currently entitled to. Mr Rajnesh Chandra, the Manager Service Centre for the NSW Trustee, explained in cross–examination that NDIS do not provide this information to the NSW Trustee for privacy reasons. It appears from the reports of Mr Pringle referred to immediately below, which were prepared with the benefit of reviewing Sandra’s NDIS plan, that Sandra may currently be entitled to NDIS support funding of $12,736 per annum. This is in addition to the NDIS transport allowance referred to above, and disability pension.

122. Mr Robert Pringle, clinical psychologist, provided two reports based on interviews conducted with Sandra, a review of her NDIS plan and various other plans and reports relating to Sandra. These reports were annexed to affidavits affirmed by Mr Chandra and adduced as evidence in support of Sandra’s claim in reliance on cl 21 of Practice Note SC Eq 7.

123. According to Mr Pringle, Sandra is in reasonably good health, but has a number of acute risk factors, including obesity, hypertension, dyslipidemia and pre–diabetes. Her obesity makes it difficult for her to walk significant distances and she uses a walking frame to assist her mobility. Sandra also has chronic kidney disease and is at increased risk of cardiovascular disease. She was distressed by the death of the deceased and has been prescribed anti–depressants for some time to assist her to cope with her mother’s passing.

124. Mr Pringle described his impression of Sandra’s functioning based on his interview with her in February 2020. Mr Pringle’s impression was that Sandra has a stable mental state and appropriate affect. He found that she was able to communicate her needs or concerns reasonably well. Although she is independent in her daily living activities, she is incapable of independent living and requires prompting to undertake some basic personal care tasks. Sandra has limited capacity to read, write or count money and limited ability to solve problems or learn new tasks. She needs assistance with decision–making. Sandra is dependent on the group home environment to assist her to live a structured day. There are some interpersonal or communication issues between Sandra and her housemates.

125. Mr Pringle considers that Sandra will need to remain in a residential care facility for the rest of her life. He is of the view that her current care and accommodation arrangements are of a good standard, but Sandra has expressed a desire to move to a smaller facility and this could be in her best interests at some stage in the future.

126. According to Mr Pringle, Sandra’s entitlement to NDIS support funding will cease when she turns 65 years of age. Sandra will then need to apply for the same or similar services under a My Aged Care plan, and would be obliged to contribute to the cost of that care if able to do so. Mr Pringle was unable to estimate the amount of funding that Sandra would receive under a My Aged Care plan, but considered that it was reasonable to assume that she would receive less than the $12,736 per annum currently available to her under the NDIS.

127. In cross–examination, Mr Chandra acknowledged that it is now possible in some circumstances for persons entitled to NDIS support funding to continue to receive that entitlement rather than applying for alternative support under a My Aged Care plan. Mr Chandra was unable provide a definite answer to the question whether Sandra would be able to continue with an NDIS support package after the age of 65. He said that an assessment would need to be made at that time, and it would depend on what sort of accommodation Sandra lived in after the age of 65.

128. Counsel for Vanessa referred me to s 29 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) and urged me to find that Sandra’s entitlements under the NDIS will continue for the rest of her life.

129. Section 29, by itself, does not support any such finding, in my opinion. It provides:

“(1)    A person ceases to be a participant in the National Disability Insurance Scheme launch when:

(a)    the person dies; or

(b)    the person enters a residential care service on a permanent basis, or starts being provided with home care on a permanent basis, and this first occurs only after the person turns 65 years of age; or

(c)    the person’s status as a participant is revoked under section 30; or

(d)   the person notifies the CEO in writing that he or she no longer wishes to be a participant.

Note: Residential care service and home care have the same meanings as in the Aged Care Act 1997.

(2)   A person is not entitled to be paid NDIS amounts so far as the amounts relate to reasonable and necessary supports that would otherwise have been funded in respect of a period after he or she ceased to be a participant.”

130. Whether accommodation is a “residential care service” within the meaning of the Aged Care Act 1997 (Cth) depends, amongst other things, on whether the accommodation is a facility that primarily provides care to people who are not frail and aged and whether the care provided meets the requirements of the “Subsidy Principles”: Aged Care Act, Sch 1 (Dictionary definition of “residential care service”) and s 41–3. If Sandra’s current accommodation primarily provides care to persons who are disabled, but not frail or aged, then any change in her accommodation as she ages may result in her ceasing to be an NDIS participant under s 29(1)(b) of the NDIS Act. No submissions were directed to the application of s 29 of the NDIS Act to Sandra’s particular circumstances.

131. Mr Pringle expressed the view that, assuming that Sandra’s income remains unchanged, her current assets of $52,115 are unlikely to be adequate to fund her future basic physical, medical, personal and social needs.

132. There is necessarily an element of uncertainty involved in identifying what care requirements Sandra may have in the remaining years of her life, which Mr Pringle assumed would be approximately 15 years having regard to her current state of health. Mr Pringle expressed the view that Sandra may require enhanced care arrangements, that it was very likely that she would have increased medical expenses, it was also likely that she would incur some capital expenditure for mobility equipment and that she may require nursing home care.

133. In relation to enhanced care arrangements, Mr Pringle expressed the view in his second report dated 3 March 2020 that Sandra may require the following care, over and above the care that she is currently receiving:

1. regular weekly sessions with an exercise physiologist or trainer to assist with exercise and weight control;

2. sessions with a dietician and podiatrist on an as needs basis, which Mr Pringle considered was unlikely to be covered by Medicare;

3. individual counselling sessions with a psychologist approximately monthly to address interpersonal communication or conflict issues;

4. a day program or recreational activity; and

5. one to one personal assistance beyond the scope of the assistance provided under Sandra’s current NDIS plan.

134. Mr Pringle said in his second report that the cost of these additional care arrangements could total approximately $5,000 per year each (or $75,000 each over fifteen years).

135. This evidence is inconsistent with Mr Pringle’s first report dated 28 January 2019, in which he identified only two enhanced care serves that Sandra may require in the future, namely fortnightly sessions with an exercise physiologist and sessions with a dietician on an as needs basis. In his first report, Mr Pringle estimated that the cost of those potential enhanced care arrangements could be approximately $2,000 per year.

136. In his second report, Mr Pringle sets out more detailed information about Sandra’s state of health compared to his first report, including that Sandra has hypertension, dyslipidemia and pre–diabetes and is at increased risk of cardiovascular disease. This may explain the increased range of potential enhanced care services identified in Mr Pringle’s second report compared to his first report. It is unclear whether the different types of services identified in the second report also accounts for the increase in the estimated annual cost of enhanced care services from $2,000 per service in the first report to $5,000 per service in the second report. The estimated costs are not supported by any reference to published data or research. Mr Pringle is a clinical psychologist and there is no evidence that he has any expertise that would allow him to reliably estimate the costs of the kinds of services he refers to in the two reports.

137. In relation to medical needs, Mr Pringle expressed the view that it was very likely that Sandra would have increased medical needs, and it could not be assumed that all of the medical services required would be bulk billed. The cost of those future services was difficult to estimate, but was likely to amount to several thousands of dollars per year, so that “a figure of around $35,000 may meet such a potential need” over Sandra’s lifetime.

138. In relation to future capital expenditure, Mr Pringle formed the view that mobility equipment such as a wheelchair, aids and hoists was likely to be required for Sandra “sometime in the future” and that this equipment may need to be privately funded. Again, Mr Pringle found it difficult to estimate the amount of additional funds required to meet such capital expenditure, but stated that a figure of about $25,000 over 15 years “would be reasonable”.

139. In relation to Sandra’s future accommodation, Mr Pringle stated that it may be necessary for Sandra to move to a facility offering more intensive care than the current group home or to a nursing home if she becomes incapacitated to an extent the care arrangements in the group home were no longer adequate for her. Given the uncertainty surrounding whether or when this would occur, Mr Pringle stated that it was not possible to estimate an amount of funds that would be required to meet this contingency. However, he stated that an amount of between $50,000 and $100,000 would provide for care beyond the basic accommodation fee. Mr Chandra gave evidence that the current basic accommodation fee for aged care is $51 per day, which equates to $18,615 per annum ($5,415 more than the $13,200 annual cost of Sandra’s current accommodation). Mr Chandra emphasised that additional support that a person may require to be comfortable within the aged care facility involved additional cost.

140. In summary, Mr Pringle estimated that the total cost of Sandra’s care over the next 15 years would be between approximately $185,000 and $235,000, being approximately $75,000 for enhanced care arrangements, $35,000 for medical expenses, $25,000 for mobility equipment and between $50,000 to $100,000 for care services within a nursing home. Mr Pringle therefore concluded that Sandra would require an amount of approximately $132,000 to $182,000 in addition to her existing assets of approximately $53,000 to meet her projected future needs. I note that, by allowing a total of approximately $75,000 for enhanced care arrangements in this estimate, Mr Pringle has assumed that Sandra does not require all of the various types of enhanced care that he identified that she may require, as he estimated in his second report that each type of enhanced care may cost $75,000 over the remainder of Sandra’s life: see [133]–[134] above.

141. In his first report dated 28 January 2019, Mr Pringle estimated that an inheritance would only affect Sandra’s entitlement to the disability support pension if the inheritance was greater than approximately $200,000. In his second report dated 3 March 2020, this threshold had increased to $475,000. Mr Chandra said that these thresholds change frequently and he was unable to confirm the amount of the threshold that currently applied. There is no reason to suspect that the $475,000 threshold referred to in Mr Pringle’s latest report is inaccurate. In any event, as submitted on behalf of Sandra, if the Court were to make an order for provision in favour of Sandra within the $132,000 to $182,000 range estimated by Mr Pringle, this would not affect her continuing eligibility for the disability support pension or for the aged care pension even if the much lower threshold of $200,000 referred to in his first report continued to apply.

142. No objection was taken to the admissibility of Mr Pringle’s reports, and he was not required for cross–examination. However, it was submitted on behalf of Vanessa that I should place limited weight on Mr Pringle’s evidence, particularly his calculations of future costs that are not supported by reliable financial calculations backed by data or by recognised expertise in relation to the costing of the care and services discussed in the reports.

CONSIDERATION AND DETERMINATION: VINCENT’S CLAIM

143. The Court has power to make an order for provision out of the deceased’s estate in favour of Vincent only it is satisfied of the three matters in s 59 of the Succession Act.

144. As to the first matter, I am satisfied that Vincent, as a child of the deceased, is an eligible person: ss 57(1)(c) and 59(1)(a) of the Succession Act. This was not in dispute.

145. The second matter in s 59(1)(b) is not relevant to Vincent’s application.

146. The third matter of which the Court must be satisfied is that, at the time of considering the application, adequate provision has not been made by the deceased’s will for Vincent’s proper maintenance, education or advancement in life: s 59(1)(c) of the Succession Act.

147. For the following reasons, I am not satisfied that the deceased’s will did not make adequate provision for Vincent’s proper maintenance, education or advancement in life. Vincent’s claim will therefore be dismissed.

148. The relationship between Vincent and the deceased was not a close relationship. On Vincent’s own evidence, there was a period of approximately four years between 2004 and May 2008 when his only contact with the deceased occurred when she occasionally came into his barber shop when bringing his father to have a haircut: see [51]–[53] above. Ms Bianchi of counsel, who appeared for Vincent, submitted that Vincent and the deceased were not estranged in the years leading up to 2008. However, I find on the basis of Vincent’s evidence that the period from 2004 to May 2008 was a period of almost complete estrangement. Whilst Vincent and the deceased had contact with one another after May 2008, Vincent provided some assistance to the deceased during this period and the deceased even lived in Vincent’s home between about May and July 2012, their conduct in the last weeks of the deceased’s life demonstrates that their relationship was not close: see [71]–[85] above.

149. In my opinion, Vincent’s failure to visit his mother in hospital more than once, and his failure to contact her during her stay at Vanessa’s home, notwithstanding that he knew that his mother was dying, was callous. He withheld love and support from the deceased in her last weeks, merely because he did not wish to have contact with Vanessa.

150. Vincent is an adult child of the deceased. The deceased and her husband supported him into early adulthood. The value of the deceased estate is $758,558. The value of the net assets of Vincent and his partner is significantly greater, being approximately $1,295,986: see [105] above.

151. Ms Bianchi submitted that Vincent has little in the way of superannuation and only a nominal amount in savings. It was submitted that Vincent’s needs are to reduce his liability under his mortgage, add to his superannuation fund and create a fund for the vicissitudes of life. However, at age 47, Vincent has approximately 20 more years to work and accumulate superannuation. In addition to the equity of approximately $1,100,000 in their home, he and his partner have surplus funds of approximately $14,962 per annum that could be applied to reducing their liability under the mortgage, paid into Vincent’s superannuation to provide for retirement or to set aside in a savings fund for the vicissitudes of life: see [105] above.

152. Ms Bianchi also submitted that, although Vincent is currently employed, his means of earning an income are limited by his trade and his health. However, there was no evidence of this. Vincent’s condition limits his exercise tolerance, but there was no evidence that this interfered with his work. Vincent obtained his qualification as a refrigeration mechanic and began working in that capacity in 2017, after his heart attack and surgery in July 2014. Vincent had been aspiring to work as refrigeration mechanic since 2008. All of this evidence points strongly to the conclusion that Vincent’s health does not limit his ability to work in his chosen trade: see [89]–[91] above.

153. The value of Vincent and his partner’s four bedroom home with swimming pool on a one acre block in Windsor Downs is approximately $1,400,000. By contrast, the deceased’s Kings Langley home was sold in 2010 for $558,000 and her Seven Hills home was sold by Vanessa as executor in November 2019 for $764,000. [6] The sale proceeds of the Seven Hills home account for the vast majority of the assets of the deceased’s estate. I infer that Vincent and his partner enjoy a standard of accommodation superior to that enjoyed by the deceased and her husband. The provision that the deceased made for Vincent during her lifetime while he was living in the family home was sufficient to equip Vincent to enter into adult life and provide for himself to a better standard than the standard to which he had become accustomed whilst living with his parents.

     6. Affidavit of Vanessa affirmed on 26 May 2019, paragraph 3.

154. Ms Bianchi submitted that Vincent had contributed to the deceased’s estate, and also to her welfare.

155. There is evidence that Vincent paid a modest amount of board or rent whilst living in the Kings Langley family home as a young adult and for the three months that he says he lived with the deceased immediately after the death of his father in May 2008, and that he occasionally assisted her with paying bills: see [41], [45], [54] above. Vincent also provided some level of assistance to the deceased at times: see [44], [67]–[71] above. He provided accommodation for the deceased in his home in May 2012 when she moved out of Vanessa’s Rouse Hill home until July 2012: see [63]–[65] above.

156. However, I do not consider that these modest financial contributions and assistance provided to the deceased at times over the years justifies the conclusion that the deceased made inadequate provision for Vincent in her will, taking into account the absence of a close relationship between them, Vincent’s conduct in the last weeks of the deceased’s life, Vincent’s financial resources, the size of the estate and the interests of Sandra and Vanessa as referred to immediately below.

157. In addition, it must be borne in mind that the deceased expressed her testamentary wish shortly before she died to make provision of only $1,000 for Vincent. There is no evidence to suggest that the deceased was suffering from any mental incapacity when she made her last will, or that she was acting under the influence of any other person when she made her will: see [80]–[84] above.

158. Ms Bianchi acknowledged that the question whether the deceased’s will made adequate provision for Vincent’s proper maintenance, education or advancement in life must be considered in the context of Sandra’s competing claim and the interests of Vanessa as the residuary beneficiary.

159. Sandra has a strong competing claim and I have concluded for the reasons addressed below that an order for provision should be made in favour of Sandra in the sum of $150,000.

160. Viewed in its totality, the relationship between Vanessa and the deceased was a strong and close relationship. The relationship was not without difficulty. However, the dispute and period of strain that began in early 2011 had its genesis in Vanessa’s proposal to create living arrangements that would enable her to care for the deceased as she aged: see [55] above. The deceased agreed with the proposal, and subsequently changed her mind. Having purchased the East Kurrajong property, and mid–way through the process of making it ready for the deceased and Vanessa’s family to live in, the deceased’s decision caused Vanessa and her husband to change their course and raise the funds to repay the deceased the funds that she had contributed to the proposal. This took time, as the funds had to be raised from the sale of their Rouse Hill home, in which they were still living while the East Kurrajong property was prepared. The delay resulted in court proceedings and strained the relationship significantly, almost to the point of estrangement by 2012. However, even during the period in which their relationship was most damaged, Vanessa maintained contact with the deceased so as to ensure that the deceased could have an ongoing relationship with her grandchildren. With the passage of time, the relationship between Vanessa and the deceased healed: see [56]–[62], [66] above.

161. Neither the deceased nor Vanessa allowed this difficult period to define their relationship. The enduring close and loving nature of their relationship is evident from Vanessa’s ongoing efforts to ensure that the deceased maintained her relationship with her grandchildren during the difficult period, and Vanessa’s care for the deceased in the last weeks of her life: see [72]–[74] above.

162. Whilst the deceased’s testamentary wishes are not determinative, I accept the submission made on behalf of Vanessa that the deceased’s last will reflects her view that Vanessa was the most worthy recipient of her estate in view of the totality of their relationship. Considerable weight must be afforded to those testamentary wishes. Vincent may feel wounded by the deceased’s last will, particularly as he believes that Vanessa influenced the deceased not to make more generous provision for him. However, as I have found above, there is no evidence of Vanessa having exerted any such influence: see [81]–[84] above. The Court’s role in determining family provision claims is not to address wounded feelings: see [27] above.

163. For all of those reasons, the Summons filed by Vincent is dismissed.

CONSIDERATION AND DETERMINATION: SANDRA’S APPLICATION

164. I am satisfied (and it was common ground between the parties) that Sandra is an eligible person by reason of being a child of the deceased: ss 57(1)(c) and 59(1)(a) of the Succession Act. It follows that s 59(1)(b) of the Succession Act is not relevant to Sandra’s application.

165. The Court must be satisfied that, at the time of considering the application, adequate provision has not been made by the deceased’s will for Sandra’s proper maintenance, education or advancement in life: s 59(1)(c) of the Succession Act.

166. Vanessa accepted that the deceased’s will did not make adequate provision for Sandra’s proper maintenance, education or advancement in life. I am satisfied that the provision of $2,000 was inadequate, for the following reasons.

167. Despite her intellectual disability, Sandra made an effort to maintain contact with her parents after she moved out of home. There is evidence suggesting that she maintained an emotional bond with both of her parents throughout her life, and continues to feel that bond now that they are deceased. Vanessa gave evidence of emotional telephone conversations between Sandra and the deceased in the last weeks of the deceased’s life: see [36]–[37], [78] above.

168. Sandra has an intellectual disability that means that she is incapable of independent living and needs to be accommodated in a residential care facility for the rest of her life: see [124]–[125] above.

169. In addition to her intellectual disability, Sandra suffers from physical health problems: see [123] above.

170. Sandra’s sole source of income is a disability pension that is only just sufficient to cover her expenses: see [119]–[120] above. She is retired, and has no capacity to work in order to supplement that income. She receives some support services that a funded by the NDIS, for which she does not have to pay out of her pension: see [121] above.

171. Sandra has a fund of approximately $52,000 available to her in addition to her disability pension income: see [118] above.

164. However, Sandra is vulnerable to being unable to meet her present and future needs as she ages or if her circumstances change. For example, if the cost of Sandra’s current accommodation increased without a corresponding increase in her pension, or if she required nursing home accommodation or other accommodation more expensive than her current group home in the future, her income would be inadequate to pay her expenses and she would then need to draw on her fund regularly just to meet her expenses: see [139] above. If her medical or support needs increase, those increased needs may or may not be met through Medicare or the NDIS. Much would depend on the nature of the needs and the eligibility rules for Medicare or NDIS funding at the time, and a review of Sandra’s NDIS plan. There is also some uncertainty about whether Sandra’s needs will continue to be funded by the NDIS, or will have to be funded under a My Aged Care plan, after she turns 65 years of age. It is not known what level of funding will be available under any My Aged Care plan: see [126]–[130].

165. Sandra’s vulnerability is compounded by the fact that she is single, and there is no other person to support her.

166. The estate is of sufficient size to honour the deceased’s testamentary intention to provide a legacy for Vanessa recognising their close relationship, but also to make some provision for Sandra to reduce her vulnerability by enabling her to meet her potential future needs to the extent that those needs are not met by publicly–funded support services, to provide her with a buffer to cope with the vicissitudes of life and perhaps to improve or advance or circumstances somewhat. In my view, the community would expect that the deceased would make such provision for her disabled child.

167. For those reasons, the Court has power under s 59 of the Succession Act to make a family provision order in respect of Sandra. The question is what provision ought to be made in all the circumstances of this case for Sandra’s maintenance, education or advancement in life.

168. Ms Clarke of counsel, who appeared for Vanessa, submitted that the evidence demonstrates that Sandra’s current needs are being met. This is correct, but Sandra’s pension affords her no buffer against even minor unforeseen expenses or contingencies, as I have referred to above. She is barely subsisting on government support, as Ms Burke submitted.

169. In any event, as I have already noted, Vanessa accepted that some lump sum provision should be ordered in favour of Sandra.

170. Ms Clarke submitted that Mr Pringle’s reports were unsatisfactory because they went no further than identifying possible future needs that Sandra may have and because there was no data, reasoning process or relevant expertise underpinning his estimates of the potential costs of those future needs. These criticisms are valid, and they do affect the weight to be given to Mr Pringle’s reports when determining the amount of the provision that should be made for Sandra.

171. However, it is important to bear in mind that an assessment of future needs of any applicant for family provision is often an inherently uncertain exercise. Sandra is no different to any other family provision applicant, in this respect. Mr Pringle’s opinions about her potential future needs provides some assistance to the Court in determining what is an adequate provision because it is based on the information that he has gathered about Sandra, her accommodation preferences and her state of health.

172. The amount of adequate provision depends not only on Sandra’s potential future needs, but also on an assessment of the likely cost of meeting those needs in order to arrive at an amount that will afford Sandra a reasonable opportunity to be properly maintained as she ages, and perhaps some advancement in life. The cost of meeting Sandra’s potential future needs will depend, amongst other things, on the time at which any such needs arise, the particular medical practitioner or service provider to whom Sandra is referred to meet those needs, the fees charged by that practitioner or service provider at that time, and the level of any government funding available to meet the cost or part of the cost of those needs at that time. Mr Pringle’s cost estimates provide some very limited guidance to the Court that can be factored into an assessment of what is an adequate provision. This is not an exercise that requires the Court to strive for mathematical precision to meet only Sandra’s basic medical and physical needs: see [24] above.

173. At the same time, it is important to note that neither Mr Pringle’s report nor the submissions made on behalf of Sandra advocated for provision in an amount that assumed that every potential future need identified by Mr Pringle arises and costs an amount estimated by Mr Pringle.

174. Ms Burke of counsel, who appeared for Sandra, submitted that her potential future needs addressed in Mr Pringle’s reports reflect what is reasonably necessary to maintain and provide some improvement to Sandra’s quality of life. These are not mere “wish list” items. The range of between $132,000 and $182,000 reflects the cost of meeting Sandra’s likely future needs, with some allowance for contingencies, and is a fair and reasonable assessment for a 62 year old woman who is in a very vulnerable position due to her disability. It was submitted that the Court should make an order in favour of Sandra for provision out of the deceased’s estate in the amount of $150,000, being the mid–point of Mr Pringle’s range. As I have already noted, Mr Pringle’s range is based on an assumption that Sandra has a reduced life expectancy of 15 years by reason of her physical health problems and assumes that Sandra will need to pay for only one of the enhanced care services that he has opined she may need in the future: see [132], [140] above.

175. It was submitted on behalf of Vanessa that a lump sum provision of $70,000 for Sandra was appropriate. [7] This submission was not supported by any assessment of the adequacy of this amount as a provision for Sandra’s maintenance and advancement in life, having regard to her potential future needs.

     7. Transcript, page 185 (lines 18–20).

176. In my opinion, a lump sum provision of $150,000, pooled together with Sandra’s existing funds of approximately $52,000 (noting that depending on the costs orders that are made in these proceedings, those existing funds may be replenished and increased to approximately $78,000), would provide Sandra with a fund that is adequate provision for Sandra’s proper maintenance and advancement in life. The adequacy of this amount can be assessed by reference to range of potential future scenarios, bearing in mind the uncertainty surrounding precisely what Sandra’s future needs will be and using Mr Pringle’s cost estimates and the evidence about the current daily basic accommodation fee for aged care accommodation as a rough guide only:

1. If Sandra wishes to move to a smaller residential facility, or needs to move to a facility which provides additional services to those that she currently receives or to an aged care facility, this may result in an additional accommodation cost in the order of approximately $5,415 per annum: see [125] and [139] above. That is a total additional cost of over the assumed remaining 15 years of Sandra’s life of approximately $81,225, that could not be funded from Sandra’s current pension income. If Sandra also requires additional enhanced care services as she ages and some of those services are not publicly funded, she would incur further costs of approximately between $60,000 and $150,000 over 15 years. This is a very rough estimate, assuming two additional services at an annual cost of between $2,000 and $5,000 each: see [133]–[136] above. If the cost is at the upper end of that range, the total cost of different accommodation and enhanced care services over 15 years would be approximately $231,225, which would exhaust all of Sandra’s current funds plus a lump sum provision of $150,000, even before allowing for any additional medical expenses or future capital expenditure on mobility equipment and the like.

2. Alternatively, if Sandra remains in her current accommodation but requires a greater range of enhanced care services that are not funded by government support, the cost over 15 years would be approximately between $120,000 to $300,000. This is a very rough estimate, assuming four additional services at an annual cost of between $2,000 and $5,000 each: see [133]–[136] above. If the cost is at the upper end of that range, it would significantly exceed Sandra’s current funds plus a lump sum provision of $150,000. If the cost is at the lower end of that range, Sandra would have funds remaining of between approximately $82,000 and $108,000. Those funds would be available to meet additional medical expenses that Sandra incurs as she ages and as her physical health problems persist or become more pronounced with age, and to purchase any mobility equipment that she may require. Those costs may be in the order $60,000 (see [137]–[138]) above, and Sandra may be left with an additional fund of between approximately $22,000 and $48,000 to improve her life or to provide her with a buffer for contingencies.

185. Irrespective of whether Sandra continues to be eligible to participate in the NDIS or becomes reliant on aged care funding (see [126]–[130] above), she is vulnerable by reason of her dependence on government support, her intellectual disability, her age and physical health problems, and the inadequacy of her current funds of between $52,000 and $78,000 to meet her future needs and provide her with a buffer against contingencies. For the reasons set out immediately above, I am of the view that a lump sum provision of $150,000 ought to be made to provide Sandra with some protection from this vulnerability by putting her financial manager in a position to ensure that Sandra is maintained in appropriate and comfortable accommodation and that her needs are cared for as she ages. The lump sum provision of $150,000 will be in lieu of the $2,000 provision made by the deceased in her last will. To the extent that Sandra does not ultimately need to draw on all of these funds to meet her needs in the future, it is not inconsistent with community expectations that the provision out of the deceased’s estate affords Sandra the ability to exercise some choice in how her needs are met (for example, by choosing to move to a smaller residential facility, which she has already expressed a wish to do, or consulting a medical practitioner of her choosing if this involves expense not reimbursed by Medicare), or affords her some advancement in life such as the ability to participate in additional activities with the benefit of the support required to do so.

186. Ms Clarke submitted that Sandra had lived independently of the deceased since the age of 20, and that the deceased therefore did not have a moral obligation to provide for Sandra’s every need for the remainder of her life. It is true that Sandra has lived independently of the deceased, but she has not lived independently. She requires assistance, and is reliant on government support to afford that assistance. The object of the lump sum provision that I have decided should be made is not to meet Sandra’s every need, but to provide her with a fund to cushion her against her vulnerability having regard to her disability, her potential future needs that may not otherwise be able to be met, and the absence of any other person on whom she can rely for financial support.

187. I accept Ms Burke’s submission that the evidence indicates that a lump sum provision of $150,000 would not put Sandra’s ongoing entitlement to the disability pension at risk: see [141] above.

188. If orders are made in due course for the payment of Vanessa’s costs out of the estate on an indemnity basis ($59,573) and for the payment of Sandra’s costs out of the estate on an ordinary basis ($81,000), a lump sum provision of $150,000 in favour of Sandra leaves Vanessa as the residual beneficiary with a legacy of $464,805, after paying the $1,000 legacies to each of Vincent, Patricia Watson and Christopher Vella. [8] If different costs orders are made, the legacy for Vanessa may be somewhat less or somewhat greater.

     8. $758,558 (the agreed value of the estate), less ($150,000 + $59,573 + $81,000 + $3,000).

189. Assuming that Vanessa has sufficient resources to meet her needs (see [15] above), and taking into account all of the circumstances of this case (including Vanessa’s close relationship with and care for the deceased and Sandra’s disability, vulnerability and potential future needs), I do not consider that a lump sum provision of $150,000 for Sandra interferes with the deceased’s testamentary freedom to an extent greater than is reasonably necessary to make adequate provision for Sandra’s proper maintenance and advancement in life.

190. Under s 77(2) of the Civil Procedure Act 2005 (NSW), all moneys recovered pursuant to a judgment or order of the Court in any proceedings on behalf of a person whom the Court has found, during the course of the proceedings, to be incapable of managing her own affairs are to be paid into Court. I have not made any such finding during these proceedings, but it has not been in dispute that Sandra is incapable of managing her own affairs and has been the subject of a financial management order since 30 April 1997. Subsection (3) confers power on the Court, despite subsection (2), to order that the money be paid to some person as the Court may direct. I am asked to direct that the judgment moneys be paid to the NSW Trustee as the financial manager of the estate of Sandra, to be managed as part of her estate in accordance with the NSW Trustee and Guardianship Act 2009 (NSW). I consider that this order is appropriate in this case. In circumstances where the NSW Trustee commenced the family provision claim as Sandra’s tutor, I infer that the NSW Trustee consents to receive and hold the money as financial manager of Sandra’s estate, and I do not consider that it is necessary to have further evidence of that consent. [9]

     9. Compare Russell v Rail Infrastructure Corp [2007] NSWSC 447 at [12].

THE COSTS OF THE PROCEEDINGS

191. The parties have made some submissions concerning costs that are referred to in these reasons. However, the parties requested me to defer making any determination as to costs, as there are some matters that may be relevant to that determination that could not be disclosed at the hearing.

ORDERS

192. For the reasons set out herein, I make the following orders:

Orders in proceeding 2018/385260 (Sandra Vella)

1. Order pursuant to s 59 of the Succession Act 2006 (NSW) that provision in a lump sum of $150,000 be made for the plaintiff’s maintenance, education and advancement in life out of the estate of the late Laura Anna Delores Vella, in lieu of the provision of $2,000 made in the last will of the late Laura Anna Delores Vella dated 11 December 2017.

2. Order pursuant to s 77 of the Civil Procedure Act 2005 (NSW) that the lump sum referred to in Order 1 be paid to the NSW Trustee and Guardian as the financial manager of the estate of the plaintiff, to be managed as part of that estate in accordance with the NSW Trustee and Guardianship Act 2009 (NSW).

3. Direct that, within 14 days of the date of these orders, the parties file and serve written submissions addressing the orders for which they contend in relation to the costs of this proceeding, together with any affidavit evidence relied on in support of those submissions.

4. Direct that, in the event that the defendant maintains the contention raised during the hearing that the Court should make an order authorising the payments that have been made by the NSW Trustee and Guardian out of the plaintiff’s estate towards the plaintiff’s legal costs of this proceeding, that contention is to be made by notice of motion filed and served within 7 days of the date of these orders on the NSW Trustee and Guardian (together with a copy of these orders), which is to be a respondent to that notice of motion.

5. Direct that, in the event that the defendant files and serves a notice of motion in accordance with Order 4 above, the defendant’s submissions referred to in Order 3 above are to include the submissions on which the defendant relies in support of the notice of motion and those submissions are to be served on the NSW Trustee and Guardian within 14 days of the date of these orders.

6. Direct that, within 14 days after service of any notice of motion pursuant to Order 4 above (and within 7 days after service of any submissions pursuant to Order 5 above), the NSW Trustee and Guardian is to file and serve its written submissions in relation to the notice of motion and any affidavit evidence on which it relies in support of those submissions.

7. Direct that the question of the costs of this proceeding, and any notice of motion filed and served in accordance with Order 4 above, be determined on the papers unless any party informs the Court that they consider that procedural fairness requires an oral hearing to supplement the written submissions.

Orders in proceeding 2018/369508 (Vincent Vella)

1. Order that the Summons filed on 30 November 2018 is dismissed.

2. Direct that, within 14 days of the date of these orders, the parties file and serve written submissions addressing the orders for which they contend in relation to the costs of this proceeding, together with any affidavit evidence relied on in support of those submissions.

3. Direct that the question of the costs of this proceeding be determined on the papers unless any party informs the Court that they consider that procedural fairness requires an oral hearing to supplement the written submissions.

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Endnotes

Decision last updated: 02 July 2020