Watton v MacTaggart

Case •

[2020] NSWSC 1233

•

11 September 2020

Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Watton v MacTaggart [2020] NSWSC 1233
Hearing dates: 18-20 and 27 May 2020
Date of orders: 11 September 2020
Decision date: 11 September 2020
Jurisdiction:Equity
Before: Ward CJ in Eq
Decision:

1.   Extend the time for the filing of the plaintiff’s summons to 11 March 2019.

2. Pursuant to s 59 of the Succession Act 2006 (NSW), order that provision be made out of the estate of the deceased in favour of the plaintiff in the sum of $300,000 in lieu of the provision made for the plaintiff under the deceased’s will dated 28 November 2017.

3.   Order that the burden of the provision ordered by order 2 above be borne out of the one-half share of the deceased’s estate that was left equally as between the nineteen named beneficiaries (but excluding Lynette Maroney, Leigh MacTaggart and Tracey Watton), such that the net residuary estate be distributed as follows and in the following order:

(i)   one-half share of the residuary estate to the defendant (David MacTaggart);

(ii)   a one-nineteenth share of the balance of the residuary estate to each of Lynette Maroney, Leigh MacTaggart and Tracey Watton;

(iii)   a lump sum of $300,000 to the plaintiff (Jannette Watton) in lieu of the provision made for her under the Will;

(iv)   the balance divided equally amongst the named beneficiaries to whom the deceased left the other one-half share of the residuary estate (including David MacTaggart but excluding Lynette Maroney, Leigh MacTaggart, Tracey Watton and Jannette Watton).

4.   Direct the parties to file and serve brief written submissions as to costs within seven days, with the issue of costs to be dealt with on the papers.

5.   Note that order 2 has been premised on the usual costs orders for claims of this kind being made and may need to be revised having regard to the forthcoming submissions as to costs.

6.   Liberty to apply if there is any issue arising in relation to the implementation of the above orders.

Catchwords:

SUCCESSION — Family provision — Claim by adult child for provision from deceased father’s estate

Legislation Cited:

Evidence Act 1995 (NSW), ss 76, 79, 135, 136, 140

Family Law Act 1975 (Cth), ss 72, 75

Long Service Leave Act 1955 (NSW)

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

Uniform Civil Procedure Rules 2005 (NSW), r 31.28

Cases Cited:

Ahmad v Ahmad [2002] NSWSC 579

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

Banks v Goodfellow (1870) LR 5 QB 549

Bowditch v NSW Trustee and Guardian [2012] NSWSC 275

Bowers v Bowers [2020] NSWSC 109

Briginshaw v Briginshaw (1938) 60 CLR 336

Burke v Burke [2015] NSWCA 195

Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) [2006] FCA 446; (2006) 229 ALR 136

Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397; [2007] FCAFC 70

Camernik v Reholc [2012] NSWSC 1537

Cameron v Cameron [2009] SASC 27

Carroll v Cowburn [2003] NSWSC 248

Chapple v Wilcox [2014] NSWCA 392

Coffey v Murrumbidgee Local Health District formerly known as Greater Murray Area Health Service [2018] NSWSC 1621

Collings v Vakas [2006] NSWSC 393

Cowap v Cowap [2019] NSWSC 1104

Cringle v Cringle [2018] NSWSC 1558

Curran v Harvey [2012] NSWSC 276

D H Singh v G K Singh [2015] NSWSC 1457

Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21

Edward Jones (a pseudonym) v Constance Smith (a pseudonym) [2016] VSCA 178

Evans v Levy [2010] NSWSC 504

Foye v Foye [2008] NSWSC 1305

Frederick & Frederick [2019] FamCAFC 87

Gail Patricia Stone v Michael John Stone [2019] NSWSC 233

Gersbach v Gersbach [2018] NSWSC 1685

Hampson v Hampson [2010] NSWCA 359

Henry v Hancock [2016] NSWSC 71

Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29

In the Estate of the late Anthony Marras [2014] NSWSC 915

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Leary v NSW Trustee and Guardian [2017] NSWSC 1113

M v M (1988) 166 CLR 69; [1988] HCA 68

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305

Mayfield v Public Trustee [2009] NSWSC 330

Nagy v Marton [2014] NSWSC 540

Nicholas v Tubb [2016] TASSC 53

Nielsen v Kongspark [2019] NSWSC 1821

Page v Hull-Moody [2020] NSWSC 411

Page v Page [2016] NSWSC 1218

Parker v Payne [1976] 1 NSWLR 191

Penfold v Predny [2016] NSWSC 472

Re Estate McNamara [2018] NSWSC 1661

RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56

Sammut v Kleemann [2012] NSWSC 1030

Sgro v Thompson [2017] NSWCA 326

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

Taylor v Farrugia [2009] NSWSC 801

Toscano v Toscano [2017] NSWSC 419

Towson v Francis [2017] NSWSC 1034

Tuite v The Queen (2015) 49 VR 196; [2015] VSCA 148

Underwood v Gaudron [2014] NSWSC 1055

Williamson v Williamson [2011] NSWSC 228

Wilson v Vine [2003] NSWSC 341

Woodleigh v Williams [2016] NSWSC 979

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

Category:Principal judgment
Parties: Jannette Dorothy Watton (Plaintiff)
David John MacTaggart (Defendant)
Representation:

Counsel:
M Bridger (Plaintiff)
B Regener (Defendant)

Solicitors:
Williamson Isabella Lawyers (Plaintiff)
Young & Muggleton (Defendant)
File Number(s): 2019/00077940
Publication restriction: Nil

Judgment

  1. HER HONOUR: This matter involves an application by the plaintiff (Jannette Dorothy Watton) for an order pursuant to s 59 of the Succession Act 2006 (NSW) (Succession Act) for provision out of the estate and/or notional estate of her deceased father, the late Ronald Bruce MacTaggart (the deceased).

  2. The deceased died on 19 February 2018 aged 96 years, leaving two surviving children: his daughter, Jannette, who is now almost 69 years old, and the defendant, his son David John MacTaggart, who is six years younger than her. Another two sons of the deceased (Don and Bruce) had predeceased him. Without intending any disrespect, I shall generally refer to the family members in this judgment by their first names.

  3. The deceased left a Will dated 28 November 2017 (the Will). Probate of that Will was granted to the defendant on 20 June 2018. Under the Will, the deceased’s residuary estate was divided into two equal parts. The deceased left a half share of his residuary estate to David and the remaining half share was to be divided equally amongst 19 beneficiaries (comprising Jannette, David, and 17 named grandchildren and great-grandchildren living at the time of the deceased’s death). Effectively, therefore, under the Will, David is to receive a 50% share of the residuary estate together with a further 1/19th share (i.e., a 20/38th share of the residuary estate); and Jannette is to receive a 1/38th share (which she calculates as being approximately $79,035 of the gross distributable estate, but which David calculates as being closer to $60,000).

Procedural matters

  1. On 11 March 2019, Jannette filed her summons seeking further provision from the estate pursuant to s 59 of the Succession Act. David points out that the summons was not filed within the time prescribed by s 58(2) of the Succession Act (being filed just over 12 months from the date of the deceased’s death), and hence an extension of time for the filing of the summons is necessary (as to which David did not wish to be heard). The delay was minor and I will give leave for the requisite extension of time having regard, in particular, to Jannette’s circumstances which I set out in more detail below.

  2. There is no dispute that Jannette, as a child of the deceased, is an eligible person as defined by s 57(1)(c) of the Succession Act. The only other potentially eligible persons are said to be David (who has not made a claim for provision) and Lynette Maroney, a granddaughter of the deceased (and daughter of his late son, Don) and beneficiary of the estate, who lived with the deceased from the time she was 4 until she was 26 (see T 68.1) (and who has also not made a claim for provision).

  3. Two of the beneficiaries (other than Jannette and David) have put their financial circumstances in issue; each of those being a granddaughter of the deceased: Leigh MacTaggart (another daughter of the deceased’s late son, Don) and Tracey Watton, (being Jannette’s estranged daughter). On the basis that their affidavits also put their respective children’s circumstances into account, there are thus eight beneficiaries whose financial circumstances have been put in issue and eleven so-called “silent” beneficiaries.

  4. By way of procedural background, it is relevant to note that, shortly before the hearing, on 8 May 2020, David filed a notice of motion to adjourn the hearing on the ground that he had been taken by surprise about matters in issue and had been confronted by unanticipated late evidence served by Jannette. That adjournment application was heard and dismissed by Hallen J on 12 May 2020. It was raised in the context of the subsequent hearing before me by way of objection to certain of the evidentiary material sought to be relied upon by Jannette (as I will explain in due course). (It was also raised in the context of a submission in support of the tender by David, immediately prior to oral closing submissions, of a Sales History Report which was ultimately admitted as part of Ex 14), namely the submission that an adjournment had been sought when David became on notice that valuation of the family home (the Tennyson Point Property – see below) was in issue – see T 225; but that submission was not borne out by the transcript of the application brought before Hallen J.)

The deceased’s Will

  1. I have indicated above broadly the effect of the provisions under the deceased’s Will. Slightly more than half the deceased’s estate (a half share of the residue of his estate, his personal effects, and an additional 1/38th share of the residue) is left to David; approximately 16% of his estate is left to Jannette, her 2 children (one of whom is Tracey) and 3 grandchildren; approximately 13% of his estate is left to Don’s 2 children (Leigh and Lynette) and 3 grandchildren; and approximately 18% of his estate is left to Bruce’s 2 children and 5 grandchildren. Other than David, each of the immediate and extended family members receives a 1/38th share of the residue of the estate.

The deceased’s estate

  1. The deceased’s estate (see the Agreed Schedule of Assets and Liabilities dated 8 May 2020) is comprised mainly of a property at Tennyson Point (the Tennyson Point Property) that is presently occupied by David (and in which he has lived for almost all of his life).

  2. Neither party adduced expert valuation evidence in relation to the Tennyson Point Property. (It was argued for David that the deceased, as an owner of the property, had specialised lay expertise in the value of the property and hence was able to express an opinion as to its value – see T 269.35ff). Rather, as permitted in matters of this kind, there were competing market appraisals of the Tennyson Point Property (David relying on a market appraisal of the property dated 15 May 2019, which valued the property at $2,050,000; Jannette relying on a market appraisal dated 24 April 2020, which valued the property at $2,700,000-$2,900,000). The midpoint of those appraisals puts the value of the property at $2,425,000; and this has been taken by the parties as the agreed value of the property (see T 235.16).

  3. Other than the Tennyson Point Property, the only assets of the estate comprised cash in two interest bearing accounts held with Nexus Mutual. (I note here that it appears from the cross-examination of David that at least one asset of the estate (the deceased’s car) was omitted from the schedule of assets of the estate (see T 147.43ff) (David says it was in need of repair and he gave it to a friend) but little if anything turns on this.)

  4. The now agreed gross value of the estate (the Tennyson Point Property plus a sum of $207,588) is $2,632,588.

  5. Net of Jannette’s legal costs (amounting to $75,000 on the ordinary basis) and David’s legal costs (amounting to $68,000 on the indemnity basis), as well as the estimated conveyancing costs of $67,000 on a sale of the Tennyson Point Property, the agreed net value of the estate is $2,422,588 (see the Agreed Schedule of Assets and Liabilities dated 20 May 2020).

  6. It is said by David that if Jannette had not brought this claim, she could have expected to receive provision in the amount of $67,515.47 from the estate whereas now, as a result of the costs incurred in these proceedings, the value of her share is calculated by David at $63,752. Such an observation might be made in most, if not all, applications of this kind. Equally, it might be observed that, on any view of the matter, it must have been inevitable that the Tennyson Point Property would have to be sold in order to meet the claims of the residuary beneficiaries other than David (unless some arrangement could have been reached for David to finance the acquisition of the almost half share of the estate that was left to others under the Will). (David’s affidavit evidence to the effect that he does not understand why he was not left a life estate is not to the point.) In those circumstances (and accepting that it was David’s duty as executor to uphold the Will), it is unfortunate that the family members could not have reached an acceptable outcome in mediation to avoid the continued incurring of legal costs of a contested hearing, as has now occurred, but again that is not uncommon in matters of this kind.

Background

  1. The deceased married his late wife, Dorothy, in 1944. Dorothy died in about 2002. The couple had 4 children: Don born in 1945, who died in March 2009; Bruce born in 1947, who died in November 2007; Jannette born in November 1951; and David born in December 1957. In about 1954, the deceased and Dorothy bought the Tennyson Point Property where the family then lived and where David remains living.

Personal circumstances of Jannette

  1. Jannette lived at the family home until she married Robert Watton in 1972. Jannette and Robert separated in 1996 but they have not ever divorced. They have two adult children, a daughter (Tracey) born in 1973, who gave evidence in the proceedings; and a son (John) born in 1976, who was not involved in these proceedings. Jannette is estranged from both her children (as she seems to be from all her immediate family).

  2. Jannette and Robert owned a home at Eastwood. After their separation, the home was sold and Jannette says she received about $200,000 from the sale proceeds. In December 1998, Jannette bought a property at Glossodia from her parents (the Glossodia Property), about which there was much contention in these proceedings; not least because of the evidence that the deceased was very upset when Jannette later sold the property – see below. The contract for sale specified the contract price as $165,000. Stamp duty was paid, one would assume by reference to that amount (see the argument as to this below). Jannette’s evidence (about which she was cross-examined) was that her parents sold the Glossodia Property so that they could have the benefit of the aged pension. David’s argument is that this makes no sense unless the property was sold at less than market value (and hence that Jannette received a “gift” by reference to the acquisition of the property at an undervalue). Jannette says she borrowed about $85,000 to assist with the purchase of the Glossodia Property.

  3. In August 2003, some seven or eight months after Dorothy’s death, the Glossodia Property was sold for the sum of $640,000. Jannette bought a property at Wilberforce with Tracey, and Tracey’s then partner, for $695,000 (the Wilberforce Property) (increasing her mortgage debt from $125,000 to $250,000). Jannette says she contributed her funds from the sale of the Glossodia Property to the purchase of the Wilberforce Property. As noted, a sum of $250,000 was borrowed from the ANZ Bank to assist with the purchase. The Wilberforce Property was later sold in April 2006 for $735,000. After the discharge of the ANZ mortgage, the sale moneys were shared between Jannette and her co-owners (Tracey and Tracey’s now ex-partner). Jannette says she received about $400,000 or $430,000 out of the proceeds of sale. (Tracey maintains that Jannette received closer to $480,000.)

  4. After the sale of the Wilberforce Property, Jannette rented and lived on rural rental properties, initially at Camden and then at Badgery’s Creek, until about 2011. Since 2011, Jannette has lived with friends in their homes. She presently has accommodation (rent-free) on the property of Mr Peter Townsend (who gave evidence in the proceedings), moving there when Mr Townsend’s late wife, also a friend of Jannette’s, was alive. The nature of their relationship was the subject of some challenge in cross-examination – see below.

  5. Jannette has been employed in various capacities over the years but has been unemployed since around 2005. For some time until 1998 she operated a small hairdressing salon (as to the ownership of which she was cross-examined about in the proceedings). For a short time after the acquisition of the embroidery business to which I have referred above, she worked embroidering logos on sporting wear at horse shows. Between about 1998 and 2005 she was employed by Woolworths. Jannette’s evidence is that, since childhood, she has had a continuing interest in horses; and that much of her income has been spent (or, in her words, “wasted”) on her horses. Jannette has not been in employment since 2006 and she says she is unlikely to return to employment.

  6. Jannette has no dependants and has been separated from her husband, Robert, since 1996. Her evidence is that she is not in a de facto or domestic relationship and has not “re-partnered” since her separation. (As adverted to above, this was the subject of some contention in the proceedings.)

  7. Jannette estimates that her assets total about $27,000, comprising a 1995 Toyota Landcruiser, horse float, 8 horses and household effects. Jannette’s liabilities comprise a credit card debt to the St George Bank of $3,000, a credit card debt to the National Australia Bank, and a loan of $1,200 from moneys borrowed from Centrelink against her aged pension.

  8. Jannette’s only income is the aged pension, including energy and pension supplements, of $933.40 a fortnight. Jannette estimates her weekly expenses are $464. (David submits that the receipt by Jannette of an aged pension means that she is considered secure in her income (referring to Nielsen v Kongspark [2019] NSWSC 1821 (Nielsen v Kongspark) at [298]).

  9. Jannette’s evidence is that, from her marriage in the early 1970’s until the deceased’s death, she had little contact with the deceased (see her affidavit sworn 10 April 2019 at [27]). She has deposed that this was because the deceased acted inappropriately and suggestively towards her, starting when she was 9 (see her affidavit sworn 10 April 2019 at [13]-[16]). This was the subject of contention in the proceedings. Jannette also says that her children had little contact with the deceased (see her affidavit sworn 10 April 2019 at [28]). This was disputed by her estranged daughter, Tracey, and was also the subject of contention in the proceedings.

  10. Jannette has deposed to her present and future needs, including: accommodation (see in particular her affidavit sworn 15 April 2020); new furniture at a cost of $10,000 (her affidavit sworn 10 April 2019 at [60](iii)); and an overseas holiday at a cost of $15,000-$20,000 (her affidavit 10 April 2019 at [60](i)); health insurance; medical expenses; a four wheel-drive that has a towing capacity of at least 2 tonnes and is capable of towing a horse float, at a cost of between $15,000-$25,000 (see her affidavit sworn 15 April 2020 at [18]) and has deposed that vehicle and horse float registration fees amount to $1,772 (see her affidavit 10 April 2019 at [18], [14](d)).

  11. As to Jannette’s stated need for accommodation, Jannette has deposed that she would like to purchase a home in a retirement village. David points to the concession by Jannette in cross-examination that the reason she had selected the properties nominated in her affidavit sworn 15 April 2020 at [15] and [16], including one in Lake Conjola, is because they “were advertising on television and it was easy access to get their details” (T 45.33). It is said that there is no evidence that Jannette has visited either property or has any serious intention of purchasing one of the units. It is noted that she conceded in cross-examination that, if awarded further provision, she would also look at other locations, in places to which she conceded she had no particular connection (see at T 45.48ff). David submits that the reason that Jannette has not properly investigated accommodation options for herself is because she is presently secure in her accommodation and has no “unmet” need for accommodation.

  1. As to her claimed needs, David points to the reservations expressed by Jannette’s general practitioner as to the safety of her driving (said to be because of her misuse of prescription medicines – although I note that these comments were made in 2017 and may be no longer applicable) (see Ex 5 p 17) and it is noted that Jannette no longer rides horses (see T 40.5). It is noted that Jannette has conceded that she will need to sell her horses or put them down if she moves out of Mr Townsend’s house (see her affidavit sworn 15 April 2020 at [17]). On that basis, David submits that the need for a vehicle to tow a horse float appears to be based on her continuing to live with Mr Townsend.

  2. It is further noted by David that, in cross-examination, Jannette accepted that she did not need private health insurance at a cost of $206 a month (T 43.14). It is said that insofar as Jannette also nominated nominal out of pocket expenses for physio and two psychologist appointments a year (T 42), those needs would be covered by the provision already made for Jannette by the deceased.

Personal circumstances of David

  1. David is 62 years old. He has never been married and has no dependants. He is a low income earner, with a gross yearly income of around $57,972.20, including superannuation (Ex E; Ex 10). He is employed by the Inner West Council as a road sweeper.

  2. David lived with his parents all his life, excluding brief periods many years ago, and was, until the deceased’s death, dependent on the deceased for accommodation (see David’s second affidavit sworn 30 May 2019 at [25]). Excluding his interest under the Will, David has deposed that he has assets including $104,000 in bank savings, plus superannuation of around $80,000, as well as 5 cars (including 2 vintage cars) (see his second affidavit sworn 30 May 2019 at [22]). David continues to reside in the Tennyson Point Property, paying the outgoings, caring for the deceased’s Kelpie dog “Sally”, and attending to maintenance (in lieu, he says, of rent to the estate).

  3. David’s evidence is that, from 2012, in the 6 years prior to the deceased’s death, as the deceased’s health deteriorated he became (in addition to being a loving son) the deceased’s primary carer (see his second affidavit sworn 30 May 2019 at [32]).

  4. David says that he “ran down” his long service leave balance in connection with the deceased’s death and is also in need of a holiday (see his fourth affidavit at [39]). As to the long service leave issue, it is noted that the Long Service Leave Act 1955 (NSW) entitles workers in NSW to paid long service leave on completion of 10 years of service. As David commenced employment on 16 December 2009, it is said that he should have a long service leave balance of 9 weeks but that, instead, he has a balance of 3 weeks (or 104.10 hours at 35 hours a week). David says that he has made various contributions to the deceased’s estate expenses (see his second affidavit sworn 30 May 2019 at [33]). I deal with these in due course.

  5. On 10 February 2020, David suffered a heart attack (see his affidavit sworn 8 April 2020 at [2]). He is a diabetic and suffers from, inter alia, osteoarthritis in his left knee, for which his evidence is that he requires a knee reconstruction, with an estimated cost of $38,000 (see his second affidavit sworn 30 May 2019 at [37]). His general practitioner (Dr Damien Lindall) has expressed the opinion that, because of David’s various ailments, David will face premature retirement and may need increased disability support and physical therapy in future (see the annexure to David’s affidavit sworn 8 April 2020 at p 5).

  6. David’s evidence is that he is stressed about the prospect of having to leave the Tennyson Point Property (see his second affidavit sworn 30 May 2019 at [26]). (He says that, out of respect for his father’s wishes, he has not brought his own claim for further provision.) Although he has deposed in his affidavit evidence to not understanding why his father did not leave him a life estate, it appears from his Counsel’s submissions at the hearing that he accepts that it will be necessary for the Tennyson Point Property to be sold in order to meet the bequests under the Will (which rather begs the question as to why he raised the subject of a life estate in his affidavit in the first place). David says he needs funds sufficient to enable him to buy a property in Sydney suitable for his 5 cars and the deceased’s dog.

Relevant Principles

  1. Section 59 of the Succession Act empowers the making of a family provision order in relation to the estate of a deceased person if the Court is satisfied of the matters set out in s 59(1) of the Succession Act (see the principles articulated by Hallen J in Page v Hull-Moody [2020] NSWSC 411 (Page v Hull-Moody) from [120]).

  2. A determination of whether a claimant has been left without adequate provision for his or her proper maintenance and advancement in life involves an evaluative judgment. Relevantly, the question is whether the Court is satisfied that “adequate provision for the proper maintenance, education or advancement in life” has not been made for the claimant (here, Jannette). The time at which the adequacy of provision is to be tested is the time the Court is considering the application (s 59(1)(c) of the Succession Act).

  3. If, at the time the application is determined, it is found that the deceased did not make adequate provision for the plaintiff’s proper maintenance and advancement in life, the Court is required to determine whether and what provision it ought to make for the plaintiff.

  4. Pursuant to s 60(1) of the Succession Act, the Court may have regard to the matters set out in s 60(2) of the Succession Act for the purpose of determining whether to make a family provision order and the nature of any such order. Those matters may be relevant both to the question of any inadequacy of provision and, if the provision is found to be inadequate, to the question whether, and if so what, order for provision should be made.

  5. In Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, when considering the predecessor legislation to the Succession Act, the majority of the High Court said that the words “adequate” and “proper” are relative and require the formation of opinions upon the basis of its own general knowledge and experience of current social conditions and standards (at 211, per Mason CJ, Deane and McHugh JJ). More recently, in Sgro v Thompson [2017] NSWCA 326 (Sgro v Thompson), White JA (with whom each of McColl JA and Payne JA agreed) said (at [86]):

  1. … The most important word in s 59(1)(c) is “proper”. Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties’ financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court’s assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate.

    1. There have been a number of cases in which the question of what is proper provision for an adult child has been considered. Suffice it to make clear that there are no special rules or principles applicable to claims of adult children (nor any presumption for or against there being a moral obligation to make provision for an adult child), as Hallen J recognised in Towson v Francis [2017] NSWSC 1034 (Towson v Francis) (see at [78]-[80], there citing Burke v Burke [2015] NSWCA 195; Nicholas v Tubb [2016] TASSC 53; Toscano v Toscano [2017] NSWSC 419; and Underwood v Gaudron [2014] NSWSC 1055). Each case must be considered by reference to its particular facts and circumstances (though see the summary of principles in Camernik v Reholc [2012] NSWSC 1537 per Hallen J (at [159]).

    2. I consider in due course the evidence in the present case as to estrangement. As to estrangement in the context of family provision cases, I refer to what was said by Basten JA (with whom Allsop P, as his Honour then was, agreed) in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 (at [40]; [49]). Hallen J also addressed that issue in Nielsen v Kongspark at [233]-[237], including in particular his Honour’s consideration of the relevant principles at [233].

    3. The explanation given by Jannette for the admitted estrangement between herself and the deceased was her account of sexual misconduct towards her by the deceased in her childhood. The relevance of historical sexual abuse allegations to applications for family provision orders was considered by Hallen J in Page v Page [2016] NSWSC 1218 (Page v Page). His Honour there said (at [58]) that such proceedings should not be the vehicle by which allegations of sexual abuse should be determined. Reference may also be made in this context to Re Estate McNamara [2018] NSWSC 1661 (Re Estate McNamara) at [36]-[43], per Lindsay J.

    4. At [59]-[60], his Honour repeated what he had earlier said in Williamson v Williamson [2011] NSWSC 228 (Williamson) (at [124]-[127]) to the effect that a claim under the Succession Act does not encompass reparation, or compensation to an applicant for the deceased (parent) having failed in his, or her, legal, or moral, duty to be a good and responsible parent of the child. Earlier in Curran v Harvey [2012] NSWSC 276 at [124], his Honour had emphasised it is not the function of the Court to provide a legacy, by way of damages, for such conduct as abuse by, or immoral conduct of, the deceased (albeit that such conduct may provide a necessary explanation for the conduct of a claimant towards the deceased and that it may give rise to additional needs on the part of the claimant, but noting that such conduct does not provide the yardstick by which provision for the claimant should be measured – citing Cameron v Cameron [2009] SASC 27; and Williamson at [125]). In Edward Jones (a pseudonym) v Constance Smith (a pseudonym) [2016] VSCA 178 (Jones v Smith), the Victorian Court of Appeal considered the effect of allegations of sexual abuse by the claimant on the assessment of any further provision to be made for the claimant. Ferguson JA, as her Honour then was, (with whom Whelan and Kaye JJA agreed) said that (at [40]):

  2. Finally, the provisions of Part IV do not create an alternative means of obtaining compensation or damages for a wrong done to a person by the testator or for which the testator bears some blame. Nevertheless, the testator’s conduct may explain why the claimant has a particular financial need.

    1. This approach has been endorsed by the NSW Court of Appeal in Page v Page (albeit in dicta). After quoting the above passage from Jones v Smith, Sackville AJA (at [120]) opined that:

  3. The latter part of this passage, not expressly referred to by the primary Judge, suggests that historic sexual abuse may be relevant to a family provision claim. This may be the case, for example, if the evidence establishes that the abuse caused the claimant to suffer a physical or psychological disability impairing his or her capacity to earn an adequate income. Since no challenge was made to the correctness of the Victorian Court of Appeal’s observations, it may not have been a sufficient answer to the appellant’s claim that the allegations of sexual abuse related more to damages or compensation than to whether factors are present warranting a family provision application.

Evidentiary Rulings

  1. Before turning to a consideration of the relevant factors to be taken into account when determining whether proper provision was made for Jannette under the Will and, if not, whether any further provision should now be made (and, if so, what provision), I address the following evidentiary rulings and make certain factual findings as to contentious issues that arose in the hearing.

Admissibility of the Report of Dr Sanjay Chalissery

  1. The report of Dr Chalissery (Jannette’s general practitioner) was provisionally allowed subject to objection (T 13.1). The objections by David to that report were ultimately confined to the following letters attached to the report and references to them in the body of the report (being the first three paragraphs on p 2 of the report): first, the letters dated 17 September 2018, 11 December 2017, and 20 September 2017 from Dr Bardulis, psychiatrist, to Dr Chalissery, which contain unparticularised references to “past childhood traumas” and “childhood experiences”; second, a letter dated 26 March 2018 from Cherie McCafferty, psychologist, to a general practitioner, Dr Vishnoi, which contains an unparticularised reference to “family relationship problems and sexual abuse”.

  2. For David, it is submitted that these letters, and the references to them in the body of the report, should not be admitted (or, if admitted, should be subject to a limitation under s 136 of the Evidence Act 1995 (NSW) (Evidence Act) that they not be used for a hearsay purpose).

  3. It is noted that the report of Dr Chalissery was first served on 15 April 2020, eight months after directions were made for its service (referring to what was said at the directions hearing before Hallen J on 12 May 2020 in that regard; see T 8.1-10; T 8.29, 12/5/20). (The unsuccessful May 2020 adjournment application was made on grounds which included David’s stated inability to deal with the report.) It is further noted by David that the report was first foreshadowed in Jannette’s first affidavit sworn 10 April 2019 (at [46]):

  1. I am awaiting receipt of a report from my GP Dr Chalissery and will file same [sic] as soon as it is to hand.

    1. David complains that Jannette has not offered any explanation as to why the report was served late, more than a year after it was first mentioned in her first affidavit. It is also noted that the report states that it was requested by letter dated 8 April 2020 but David says that that letter has not been produced by Jannette despite repeated requests (see T 13.49; it being then said that the letter would be emailed directly – see T 14.41). Complaint was made to the reference to “arthritis” (notwithstanding that earlier affidavits referred to knee problems) and to the description of Jannette’s anxiety as “severe” (notwithstanding that David himself relies on Jannette’s addiction to prescription drugs) (see T 11.32).

    2. David submits that the letters are inadmissible (as hospital records) under r 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) because they were filed in breach of orders for the service of evidence made by Hallen J (referring again to the transcript of 12 May 2020 at T 8.1-10). Accordingly, it is said that, in accordance with r 31.28(4) of the UCPR, unless Jannette can show “exceptional circumstances” they are inadmissible; and it is said that exceptional circumstances have not here been shown. (Reference is made in that regard to Coffey v Murrumbidgee Local Health District formerly known as Greater Murray Area Health Service [2018] NSWSC 1621 where Harrison J considered that it would be an exceptional circumstance to grant the leave that had there been sought).

    3. David says that the late service of these letters causes real prejudice to him because he was not previously on notice of the existence of either Mr Bardulis or Ms McCafferty as treating professionals of Jannette. It is noted that, at the hearing of the adjournment application on 12 May 2020, Hallen J suggested that Jannette might ultimately be faced with a choice (either that the adjournment be granted or that Jannette not be allowed to read the evidence (see at T 8.45)) but his Honour expressly left the question of admissibility of the report to the trial. It is noted by David that his Honour said, in reference to Dr Chalissery’s report (at T 13.4), “you can assume I will not allow you to read her report if she is not available for cross-examination. That would be grossly unfair to the defendant”. It is said by David that that comment is equally apposite to the reports of Mr Bardulis and Ms McCafferty, neither of whom was made available for cross-examination.

    4. David says that the unparticularised references to “childhood traumas” in these reports are precisely the type of “inexact proofs, indefinite testimony, or indirect interferences” against reliance on which caution has been raised (see for example per Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw v Briginshaw) at 362). It is said that the material is prejudicial because Jannette seeks to use these unparticularised references to childhood trauma as references to the allegations made by her in these proceedings in order to bolster her credibility, when David has had no opportunity to explore in cross-examination whether this is in fact the case and whether there is any connection between these references and the allegations made in these proceedings.

    5. It is submitted that there was insufficient time before the trial (in the context of the COVID-19 “shutdowns”) to subpoena Mr Bardulis’ and Ms McCafferty’s records and to obtain proofs of evidence from them; nor was there time to obtain expert evidence directions for Jannette to be assessed and to obtain an expert report from a psychiatrist, which would explore the credibility or otherwise of Jannette’s allegations, including whether she might suffer from “false memory syndrome” in connection with her treatment by Ms McCafferty. Reference is made in that regard to the situation before the court in Gersbach v Gersbach [2018] NSWSC 1685, where there was reference in expert evidence to “false memory syndrome” (and see the observations of Garling J at [385]-[386]).

Ruling as to admissibility of the two sets of letters to which objection was taken

  1. I accept that the report of Dr Chalissery was served late (without any, or any adequate, explanation) but it is not the case that David did not have an opportunity to test Dr Chalissery as to the nature of the childhood traumas and experiences to which reference is there made, at least insofar as I was informed that arrangements had been made for Dr Chalissery to be available for cross-examination. It appears that on the first day of the trial a forensic decision was made (by David’s legal representatives) that he would not be required for cross-examination (T 34).

  2. That said, I accept that exceptional circumstances have not been established for the admission of the two sets of letters (which ultimately were the only parts of the report to which objection was taken). In those circumstances, as a matter of procedural fairness I will not admit into evidence the two sets of letters in respect of which complaint has been taken. That said, even had I admitted them, I would have limited their use simply to the fact that a history had at some earlier stage been given by Jannette as to family relationship problems and the like. The letters would not establish that such abuse had in fact occurred. Nor can much weight be placed on the fact that the letters refer to earlier reports of that kind when the nature of what is alleged to have happened is not made clear.

Admissibility of hospital reports: Exhibits B and D

  1. The hospital reports (Ex B and Ex D) were also only provisionally admitted, subject to objection (T 17-18).

  2. Exhibit D is a Nepean Hospital Mental Health Assessment dated 17 March 2009, signed by an “RN” (presumably, a registered nurse) K Hutchinson. It is said to have been tendered by Jannette purely for the consistency of the history recorded therein (see T 242.11), relying upon the notation (see at CB 169) that:

Hx of CSA perpetrated by father and two older brothers.

  1. Ex B is a Hospital Progress Note dated 20 August 2009, by “Anwan” (who appears from the note to be a Registrar). Jannette similarly relies upon Ex B chiefly (see T 241.32) in respect of a notation (appearing at CB 162), again as to the consistency of allegations of abuse (see T 241.13). This notation reads:

pt informed us that she had been allegedly sexually abused by her father and two brothers

  1. Those documents were first served on 13 May 2020, four days before the trial, with the Court Book. Being hospital reports, it is again noted by David that, in accordance with r 31.28 of the UCPR, they are inadmissible without leave of the Court because they were served later than 28 days before the hearing (see r 31.28(1)(c); r 31.28(3)(a) of the UCPR); and that leave is not to be given unless there are “exceptional circumstances” (r 31.28(4)(a) of the UCPR). It is again submitted that Jannette has not adduced any evidence of exceptional circumstances and that there are no exceptional circumstances which would justify such leave. Again, it is submitted that the Exhibits should not be admitted or, if they are admitted, they should be subject to a limitation under s 136 of the Evidence Act that they not be used for a hearsay purpose.

  2. For David, it is submitted that “[i]t is hard to overstate the prejudice to the defendant of admitting them for any purpose”. I do not accept this. True it is that, because of the lateness of time at which the reports were served, there was as a practical matter little or no time (David says the latter) for David’s legal representatives to obtain proofs from the authors of the reports, or to obtain an expert report from a psychiatrist, exploring the credibility or otherwise of the history set out in these hospital reports; nor were the authors of the reports made available for cross-examination. However, in circumstances where it was accepted that their use be limited, in effect, to dispelling any allegation of recent invention, it surely cannot have been necessary (nor would it have been consistent with the just, quick and cheap resolution of the real issues in dispute) for there to be an excursus into the veracity of the allegations of sexual abuse, nor for cross-examination of the makers of the reports as to the taking of the patent’s history (and it seems highly unlikely that the latter would have advanced matters greatly, if at all). It is also relevant to note that the hospital records were produced in answer to a subpoena issued on David’s behalf (see T 16).

  3. David points out that the history given in Ex B is inaccurate in that it includes the statements “younger brother died due to bowel cancer” and “elder brother lives with father”, whereas Jannette’s younger brother is David (who did not die of bowel cancer; rather, it was her two older brothers who were dead when Ex B was created) (see Jannette’s affidavit sworn 10 April 2019 at [7]); and Jannette’s elder brother was not living with her father; rather it was her younger brother (David) who was living with their father (see David’s second affidavit sworn 30 May 2019 at [30]).

  4. David argues that the conclusions set out in Ex B and Ex D (noting that these contain no particulars to support them) could not be adduced as prior consistent statements in these proceedings in circumstances where Jannette has never alleged that her two older brothers sexually abused her; and the allegations that have been made against the deceased contain “no particulars of any sexual intercourse, digital or other penetration, erection or climax”. (If the latter suggests there can be no sexual abuse without sexual intercourse, penetration, erection or climax, it seems to me to be unarguably wrong, as numerous cases in the Court of Criminal Appeal would attest, but it is not necessary here to explore that issue.)

  5. It is said that, taken together, Ex B and Ex D suggest that Jannette was sexually abused by an older brother who lived with her father, “placing the stain of suggestion on the defendant, notwithstanding the fact that he is her younger brother and the history is clearly inaccurate”; and that, on this ground alone, Ex D and Ex B should be excluded under s 135 of the Evidence Act, on the basis that their probative value is substantially outweighed by the danger that the evidence may be unfairly prejudicial to David, or misleading and confusing. (Pausing here, I emphasise that there was no such allegation made against David in the proceedings; and there was no sensible risk in my opinion that the tribunal of fact – here a judge not a jury – would be misled or confused into believing that such an allegation had been made simply by reference to the notes in the hospital reports here in evidence.)

  6. Further, it is said that David has adduced unchallenged evidence that, at around the time Ex D was created, Jannette attended her brother Don’s funeral “where she was so high on drugs she was rambling and calling her own son ‘Don’, being the name of the brother whose funeral she was attending” (referring to Tracey’s affidavit sworn 11 May 2020 at [41]), which it is said raises a further “question mark” about Jannette’s capacity as a historian at a proximate time. (I interpose to note that there is at the very least a “question mark” over other portions of Tracey’s evidence itself, given that she deposes to her non-observation of events at a time before she was born – see below; but in any event, the relevant notations in the hospital records are not here relied upon by Jannette for the truth of the allegations but for the fact that she has previously made allegations of that kind.)

Ruling

  1. Again, I accept that these reports were served late and without any, or any adequate, explanation. And I accept that the reliability of the history there recorded in the notes has been shown to be unreliable at least in relation to the matters to which David points in Ex B.

  2. However, I do not accept that the Exhibits should be excluded under s 135 of the Evidence Act. Their probative value lies in the fact that there is evidence the fact that Jannette has previously made allegations of sexual abuse within the family and, particularly, against the deceased. Albeit that the particulars of the alleged abuse are not there set out, the documents go to dispel any suggestion of recent invention of such an allegation. If limited to the fact that Jannette made such a complaint at some stage in the past, I do not see that there is a danger that the evidence may be unfairly prejudicial to David (against whom no allegation of sexual misconduct has here been made) or that it is misleading or confusing.

  3. I accept that the weight that can be placed on such notes may be limited, in that it is possible that the maker(s) of the notes might have erroneously recorded information in them; and that the reliability of Jannette’s memory is already in issue (by other evidence such as her recollection of matters such as the time when her mother died – although that is recorded correctly in the notes where it is said that “mother died 06 years ago with liver failure” – and as to the purchase details for the Glossodia Property).

  4. However, particularly in circumstances where Jannette raises the sexual abuse allegations to explain her estrangement from her father, and David (including through Tracey who was not even alive when the alleged sexual misconduct commenced, yet felt able to depose to not having observed any such conduct) has challenged Jannette’s evidence of such misconduct, I consider that the probative value of evidence as to some kind of complaint having been made in the past (to dispel any suggestion of recent invention) does substantially outweigh the danger that the evidence may be unfairly prejudicial to David or misleading and confusing (particularly if a limitation is placed on the use of that evidence – as has been suggested in the alternative submission made for David).

  5. Insofar as exceptional circumstances are required for leave to rely upon a hospital report served late, I am satisfied that the exceptional circumstances here lie in the evidence served (also very late) to rebut the allegations of sexual misconduct; namely that of Tracey.

  6. Therefore, I admit Ex B and Ex D, subject to the ruling pursuant to s 136 of the Evidence Act, that the evidence is admitted only as evidence of previous complaint of child sexual abuse having been made; not as to the truth of the allegation nor as to the content of the alleged abuse.

Exhibit 13 – 2003 Letter

  1. Admitted into evidence (without any order under s 136 of the Evidence Act limiting its use – see T 220.50) was a copy of an incomplete handwritten letter dated 16 July 2003 (Ex 13) (the 2003 Letter). It is said by David that, since this was admitted into evidence without any limitation, the statements made in the 2003 Letter can be relied upon as proof of the facts there recorded (in order to establish the truth of what was said and the history recorded). (Pausing here, I accept that the 2003 Letter is evidence of the deceased’s assertions, and as to his stated belief(s), at the relevant time. It can rise no higher than that.)

  2. The 2003 Letter was identified as containing the deceased’s handwriting by both Tracey and David (see T 196.2; T 140.41). Jannette said in cross-examination that she did not recognise the handwriting (T 61.29), and denied ever receiving the letter (T 61.42). David denied having seen the letter before (T 140.47).

  3. Tracey’s evidence is that she recalled seeing the letter when Jannette received it (see at T 196.11). David says that Tracey’s evidence that she saw Jannette receive the 2003 Letter was not challenged and should be accepted (given Jannette’s lack of recall with respect to proximate events such as her mother’s death) but, in any event, it is submitted that the force of the words in the 2003 Letter stands regardless of whether or not Jannette received it.

  4. Tracey’s evidence is that she did not know that she had the 2003 Letter in her possession and that she found it in her filing cabinet when she was looking for letters from her grandfather to her (see at T 204.33). Her evidence was that she was not sure how the letter came to be in her possession and that “it may have been put in my filing cabinet when we all lived together at Ebenezer” (by which I understand her to be referring to the Wilberforce Property) (see at T 196.15). Her evidence is that she did not know what had happened to page 1 of the letter (T 203.49).

  5. For David, it is submitted that the absence of the first page of the 2003 Letter does not detract from an understanding of the remaining portions of the letter, which it is said contain complete sentences on discrete topics. It is said that the most that might be done with respect to the missing page is to draw a Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 (Jones v Dunkel) inference that it would not assist David, although in David’s submission this would be unfair as Tracey’s evidence establishes that David had no knowledge of the content or whereabouts of the first page of the 2003 Letter.

  6. It is submitted for David that the 2003 Letter is a contemporaneous document which provides the best evidence of the deceased’s reasons for not making further provision for Jannette in the Will; and it is said that the deceased’s statements about Jannette in the letter must be considered even if they are not given determinative weight (citing Nielsen v Kongspark at [336], per Hallen J).

  7. As to the 2003 Letter, I do not consider that any adverse Jones v Dunkel inference should here be drawn against David, in circumstances where it is not established that David had any knowledge of this letter. However, I do consider that the fact that the letter is incomplete affects the weight that can be placed on the letter. It is impossible to know what was said in the missing first page or how that might shed light on the statements made in the balance of the letter (or on the issues more generally in the proceedings).

  8. I certainly accept that it is likely that the letter was addressed to Jannette (since the contents of the letter relate principally if not wholly to her), but it is impossible to know whether it was addressed only to her; and there is only Tracey’s evidence (about which I exercise some caution for the reasons set out below) to support the proposition that this was a letter that was ever actually sent to Jannette (let alone that it was received by her). For all I know it was a letter written by the deceased but not sent and simply left (complete or incomplete) with his papers which somehow found their way to Tracey’s possession; or a letter written by the deceased and given to Tracey for some reason.

Glossodia Property - value of the “gift” received by Jannette in 1998

  1. A vexed issue in the proceedings related to the market value of the Glossodia Property. There is no doubt that in 1998 the deceased and his wife transferred the Glossodia Property (a farm) to Jannette for the contract price of $165,000 (Ex 4) (though Jannette initially deposed, incorrectly, that she bought it for $195,000 – see her affidavit sworn 10 April 2019 at [32]). The Glossodia Property was located at Boundary Road, Glossodia, near Windsor (see T 202.46) and was a property of 6¼ acres (see T 65.22; and Jannette’s affidavit sworn 10 April 2019 at [30]).

  2. David notes that in oral submissions it was contended for Jannette (on the basis of a highlighted schedule of stamp duty charges tendered with the transfer at Ex Q), that the market value of the farm at the time was $180,000 (as the stamp duty paid “matches up” with a value of $180,000 highlighted in the schedule) (T 265). For David, emphasis is placed on the fact that the schedule bears a copyright date of 1992 and a disclaimer to the effect that it is provided as a guide only and that no responsibility is accepted for any inaccuracy or duty charges from March 1994. David says that Jannette has adduced no evidence, other than from the bar table, as to the provenance of this schedule, and hence says that there could be no confidence that there is any relationship between the schedule and the transfer. It is noted that there is no other evidence of stamp duty rates in 1998 before the Court. David further submits that all that Ex Q does is establish that, even on Jannette’s case, the Glossodia Property was transferred to her at $15,000 its market value of $180,000 below (on this hypothesis).

  3. Jannette’s evidence is that she borrowed $85,000 for the property, relocating a house onto it (which Tracey accepted she had done – there being only a garage on it when Jannette acquired – see T 207–208), and making other improvements (see Jannette’s affidavit sworn 10 April 2019 at [32]). David’s evidence is that the deceased also contributed his labour to these improvements made to the property (see his first affidavit sworn 30 May 2019 at [10](d)).

  4. In 2003, Jannette sold the Glossodia Property for $640,000. As noted above, David says that this is an extraordinary capital gain (of $390,000, or 164%, in five years). David says that at present, some seventeen years later, the property has an estimated value of $1,050,000 to $1,100,000, according to a kerbside appraisal by a real estate agent, Mr Adam Buchert of Starr Partners Windsor (part of Ex 14), which it is said equates to a capital gain of only $460,000 (or roughly 71%) in the following seventeen years. (The relevance of the current value is said to be to show that, had Jannette retained the property, she would had the benefit of that capital gain.) Further, for David it was argued, in effect, that Jannette’s evidence that she had to sell the Glossodia Property as she was in financial difficulties is inconsistent with her obtaining a larger mortgage when she bought the Wilberforce Property with Tracey and her partner.

  5. David refers to Tracey’s evidence that in 1998 Tracey was looking for properties to purchase with her then partner (see T 206.4), using money she had received from a car accident (T 206.18), and that she also looked at properties for her mother to purchase other than the Glossodia Property (T 208.25).

  6. Tracey gave evidence that in 1998 the market value of 6.5 acre properties in Glossodia was around the $330,000 to $350,000 price range (and that if it had a house it was worth more) (see T 202.16ff). Insofar as it was suggested to Tracey in cross-examination that she had adopted the value of $325,000 from the 2003 Letter, David says that Tracey never adopted the figure of $325,000; rather, that her evidence was that the value of a 6.5 acre property in Glossodia was in the $330,000 to $350,000 range. (Nevertheless, it may well be that the figure in the 2003 Letter in some way has influenced Tracey’s recollection of values in the area at the time – since there is nothing otherwise to suggest the basis for her ability to recall this range of values. I draw nothing from this either way.)

  7. It is submitted for David that Tracey gave this evidence based on her “specialised knowledge” of property prices in the Glossodia area in 1998, based on her experience looking for properties with both her mother and her partner. (Tracey’s evidence seemed to be that she was looking for properties with her mother and then partner in 2003 not in 1998, but that she was also looking at properties earlier in 1998 after she had received money following a car accident – see at T 202-206). It is submitted that Tracey’s opinion was wholly or substantially based on specialised knowledge (“namely her experience as an active participant in the relevant market”), and that therefore she was qualified to give opinion evidence for the purposes of s 79 of the Evidence Act (and able to give expert opinion evidence as an exception to s 76 of the Evidence Act); and that the provisions of the UCPR with respect to expert evidence did not apply to her evidence, as the evidence was adduced in cross-examination.

  8. David submits that Tracey’s evidence of the range of $330,000 to $350,000 (which as noted she said was for land value only) was “remarkably consistent” with the Sales History Report, prepared by Nicole Gerber on 20 May 2020 (noting that on pp 5-6 there is a list of properties sold between 1 July 1998 and 30 June 1999 in Glossodia, with a land size of 2-5 hectares, being between 4.9 and 12.35 acres) (also part of Ex 14). It is noted that the price range was $290,000 to $375,000, with the only property of 7 acres sitting well outside the range being the Glossodia Property (for $165,000).

  9. It is submitted that the 2003 Letter is also contains a contemporaneous record of what the deceased said the market value of the property was in 1998, namely (at pages 2 and 4):

In regards to the Land you offered to sell it to me. Tracey was a witness. I asked you to let me know the sale price but you did not. I have since found out the price and it is top money. I sold you this land at the lowest price possible $165,000 to help you get established not at the market value $325,000. A lot of difference [emphasis as per Counsel’s submissions]

…

Now after 5 years you have received a large capital gain from the start I gave you, what are your thoughts.

  1. It is submitted that this is either the deceased’s opinion of the market value, based on his “specialised knowledge” as the owner of the property, or evidence from which an inference can be drawn that a valuation of $325,000 had been provided to him. It is said that, in addition to the 2003 Letter, an inference can be drawn that a valuation had been provided to the deceased from Jannette’s evidence (at T 54.5) that the price of $165,000 which she paid for the property “was the price, that my father said, that the pension people would allow them to sell it and get their pension”, and her acceptance that “they told me they were told” that it was below the market value of the property (see at T 54ff).

  1. Order that the burden of the provision ordered by order 2 above be borne out of the one-half share of the deceased’s estate that was left equally as between the nineteen named beneficiaries (but excluding Lynette Maroney, Leigh MacTaggart and Tracey Watton), such that the net residuary estate be distributed as follows and in the following order:

  1. one-half share of the residuary estate to the defendant (David MacTaggart);

  2. a one-nineteenth share of the balance of the residuary estate to each of Lynette Maroney, Leigh MacTaggart and Tracey Watton;

  3. a lump sum of $300,000 to the plaintiff (Jannette Watton) in lieu of the provision made for her under the Will;

  4. the balance divided equally amongst the named beneficiaries to whom the deceased left the other one-half share of the residuary estate (including David MacTaggart but excluding Lynette Maroney, Leigh MacTaggart, Tracey Watton and Jannette Watton).

  1. Direct the parties to file and serve brief written submissions as to costs within seven days, with the issue of costs to be dealt with on the papers.

  2. Note that order 2 has been premised on the usual costs orders for claims of this kind being made and may need to be revised having regard to the forthcoming submissions as to costs.

  3. Liberty to apply if there is any issue arising in relation to the implementation of the above orders.

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Decision last updated: 11 September 2020

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Cases Citing This Decision

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Armouti v Nenes [2022] ACTCA 3
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Cases Cited

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Statutory Material Cited

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Towson v Francis [2017] NSWSC 1034
Burke v Burke [2015] NSWCA 195
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