Weisbord v Rodny (No 4)

[2022] NSWSC 1726

Supreme Court

New South Wales

Medium Neutral Citation:

Weisbord v Rodny (No 4) [2022] NSWSC 1726

Hearing dates:

Proceedings remitted to the Equity Division by the Court of Appeal on 16 March 2020; final written submissions delivered on 15 December 2021

Decision date:

16 December 2022

Jurisdiction:

Equity

Before:

Robb J

Decision:

Claim by Jeanette Weisbord for further family provision dismissed

Claims by Joel Weisbord and Alexander Weisbord for further family provision allowed — see [169] – [171] below

As to costs see [184] below

Catchwords:

SUCCESSION — family provision — claims by adult child and adult grandchildren for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — consideration of significance of concession in related proceedings for probate of an alleged informal will of the deceased concerning the subject document expressing the testamentary intentions of the deceased — consideration of the significance of the reasoning of the Court of Appeal in determining that the subject document should not be admitted to probate in relation to the determination of the testamentary intentions of the deceased — finding that the subject document did express the testamentary intentions of the deceased — finding that by reason of the value of her assets and the gift received in the will of the deceased that was admitted to probate that the adult child had not satisfied the jurisdictional requirement in s 59(1)(c) that adequate provision has not been provided at the present time for her proper maintenance, education or advancement in life by the will of the deceased — significance to the adult child’s case of her not having provided evidence of her needs having regard to her existing assets — finding that the adult grandchildren had satisfied the jurisdictional requirement — consideration of the application of s 59(2) in circumstances where the Court did not have evidence of the additional costs incurred by the parties in relation to the appeal or the effect of costs orders on the estate and the Court did not have evidence of possible changes in the value of the assets in the estate since the Court reserved judgment at the end of the primary hearing at first instance — requirement for further submissions as to the terms of the orders for further provision under s 59(2) that should be made in favour of the grandchildren

Legislation Cited:

Evidence Act 1995 (NSW), s 140

Family Provision Act 1982 (NSW), s 16

Succession Act 2006 (NSW), Ch 3, ss 3, 8, 57, 58, 59, 60

Cases Cited:

Bassett v Bassett [2021] NSWCA 320

Bowditch v NSW Trustee and Guardian [2012] NSWSC 275

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

Chisak v Presot [2021] NSWSC 597

Chisak v Presot [2022] NSWCA 100

Churton v Christian (1988) 13 NSWLR 241; [1988] NSWCA 23

Graham v Graham [2011] NSWSC 504

Haertsch v Whiteway (2020) 102 NSWLR 386; [2020] NSWCA 133

Hayes v Marquis [2008] NSWCA 10

Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474

Madden-Smith v Madden (Estate of late Doris Linda Madden) [2012] NSWSC 146

McDonald v O’Connor [2019] NSWSC 261

Megerditchian v Khatchadourian [2020] NSWCA 229

Purnell v Tindale [2020] NSWSC 746

Re Filomena Rodi, deceased [2016] NSWSC 1696

Re Fulop Deceased (1987) 8 NSWLR 679

Rodny v Weisbord (2020) 102 NSWLR 403; [2020] NSWCA 22

Sadiq v NSW Trustee & Guardian [2015] NSWSC 716

Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522

Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17

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

Stojanovski v Stojanovski [2019] NSWSC 1713

Stojanovski v Stojovski [2016] NSWSC 976

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

Weisbord v Rodny (No 2) [2019] NSWSC 739

Weisbord v Rodny (No 3) [2021] NSWSC 458

Weisbord v Rodny; Rodney v Weisbord [2018] NSWSC 1866

Yee v Yee [2017] NSWCA 305

Yesilhat v Calokerinos [2021] NSWCA 110

Category:

Principal judgment

Parties:

Proceedings 2015/324982:
Jeannette Weisbord (Plaintiff)
Laurence Rodny (Defendant)

Proceedings 2015/324966:
Joel Weisbord (Plaintiff)
Laurence Rodny (Defendant)

Proceedings 2015/324977:
Alexander Weisbord (Plaintiff)
Laurence Rodny (Defendant)

Representation:

Proceedings 2015/324982; 2015/324966; 2015/324977:

Counsel:
V Culkoff (Plaintiffs)
L Ellison SC (Defendant)

Solicitors:
Kramer & Kramer (Plaintiffs)
Norbert Lipton & Co (Defendant)

File Number(s):

2015/324982; 2015/324966; 2015/324977

Judgment

1. Mrs Rose Rodny died on 24 August 2014 aged 92 years old. The parties to this litigation are Mrs Rodny’s daughter, Ms Jeanette Weisbord, and her sons, Mr Joel Weisbord and Mr Alexander Weisbord, on the one hand, and the deceased’s son, Mr Laurence Rodny, on the other. Without meaning any disrespect, I will refer to the parties and other members of Mrs Rodny’s family by their first names, except for Mrs Rodny who I will refer to as the deceased.

2. Jeannette, Joel and Alexander have each brought family provision applications under s 59 of the Succession Act 2006 (NSW). That section empowers the Court to order that further provision be made out of a deceased person’s estate for certain classes of applicants in circumstances where an applicant has not been left with adequate provision by the deceased person’s will for their proper maintenance, education or advancement in life. Laurence, as the executor of the deceased’s last will, opposes these applications.

Procedural history

3. These reasons comprise the fifth judgment in the litigation between the parties. On 6 December 2018 I delivered the primary judgment in Weisbord v Rodny; Rodney v Weisbord [2018] NSWSC 1866 (Weisbord (No 1)) and on 19 June 2019 I delivered the costs judgment in Weisbord v Rodny (No 2) [2019] NSWSC 739 (Weisbord (No 2)). The proceedings raised two issues, the first being whether a document should be admitted into probate as an informal will under s 8 of the Succession Act, and the second being whether further provision ought to be ordered from the deceased’s estate in favour of Jeannette, Joel and Alexander under s 59 of the Succession Act.

4. I decided in Weisbord (No 1) that the document referred to in that judgment as the “2008 document” and later by the Court of Appeal as the “second typewritten draft” was to be admitted into probate. Relevantly, the formal declarations and orders of the Court made on 11 February 2019 were:

1   Order that the grant of probate 2015/00369180 made by the Supreme Court of New South Wales on 15 January 2016 to Laurence Rodny of the will of the late Rose Rodny made on 19 December 1997 be revoked.

2   Order that the grant of probate specified in Order 1 be delivered to the Court Registry.

3   Declaration the Court is satisfied that the document annexed hereto as Exhibit A (“2008 Will”) forms the deceased’s last Will and that the deceased intended it to form her last Will.

4   Declaration the Plaintiffs are entitled to an order granting probate of the 2008 Will.

5   Order that probate of the 2008 Will be granted jointly to Laurence Rodny and Jeannette Weisbord.

6   Order the Defendant’s Cross Claim be dismissed.

7   Order upon Orders 1 and 5 being made, each of the Plaintiff’s claims for family provision orders be dismissed.

8   Order that the matter be remitted to the Registrar to complete the grant of probate specified in Order 5.

5. Following the publication of Weisbord (No 2) I made orders on 1 July 2019 concerning the costs of the proceedings. The orders accommodated the fact that the plaintiffs had succeeded on their probate claim and that their family provision claims had been dismissed, but only on the basis that the success of the probate claim had the result that the plaintiffs did not need any orders for additional provision out of the deceased’s estate. Laurence accepted during the costs hearing that it was appropriate that a single set of costs orders be made in the proceedings. The cost orders included:

1.   Order that the Executor’s scale costs of obtaining a Grant of Probate be paid out of the estate of the deceased (“Estate”).

2.   Order that that Plaintiffs’ reasonable costs of the proceedings be paid on the ordinary basis out of the Estate.

3.   Order that the Defendant’s reasonable costs of the proceedings be paid on the ordinary basis out of the Estate.

4.   Orders 2 and 3 are stayed pending the decision of the Court of Appeal in relation to the defendant’s appeal from the judgment Weisbord v Rodny [2018] NSWSC 1866 (“Appeal”).

6. As I noted in Weisbord (No 2), Laurence’s costs of defending the proceedings had already been paid out of the deceased’s estate.

7. On 27 February 2020, the Court of Appeal allowed an appeal from Weisbord (No 1) in Rodny v Weisbord (2020) 102 NSWLR 403; [2020] NSWCA 22 (Appeal Decision). The orders made by the Court of Appeal were:

1.   Appeal allowed.

2   Set aside orders 1, 2, 3, 4, 5, 6 and 8 made on 11 February 2019 and entered on 12 February 2019.

3   Order that a grant of probate in solemn form of the will of Rose Rodny dated 19 December 1997 be made to Laurence Rodny.

4   Order that the costs of the appeal of the appellant and the respondents, assessed on the ordinary basis, be paid out of the estate of Rose Rodny.

5   Direct that the parties attempt to agree on the order to be made dealing with order 7 made by the primary judge and further direct that in the absence of such agreement they exchange written submissions, in the case of each party not to exceed three pages, and provide those submissions to the associate to Meagher JA by 12 March 2020. The dispute in relation to the disposition of that order will then be dealt with on the papers.

8. In respect of order 5, the Court of Appeal, by order made on 16 March 2020, remitted the proceedings to me or some other judge in the Equity Division for case management to determine the three family provision applications that were left undecided in Weisbord (No 1), and which are the subject of these reasons.

9. As I understand the Court’s file, the Court of Appeal did not make any order to set aside costs orders 2 and 3 made by me on 1 July 2019 and ordered that all parties’ costs of the appeal be paid out of the deceased’s estate on the ordinary basis. The effect of these costs orders will be that all of the parties’ costs of the whole of the proceedings will be paid out of the deceased’s estate unless any contrary order is made as a result of the outcome of the plaintiffs’ outstanding family provision claims.

10. On 30 April 2021, I published reasons in Weisbord v Rodny (No 3) [2021] NSWSC 458 (Weisbord (No 3)) in which I explained why at first instance I determined only the first issue and not the second issue. In essence, I was concerned that the determination of the plaintiffs' family provision applications might prove to be futile if the Court of Appeal overturned significant findings of fact that I had made in Weisbord (No 1), and the range of possible ultimate findings was so wide that I was not sufficiently confident that I could predict the ultimate basis upon which it would be necessary to decide the family provision applications. As will be seen below when I discuss the reasoning in the Appeal Decision, subsequent events have shown that my concerns were probably misplaced, as the Court of Appeal did not significantly disturb the findings of fact that I made in Weisbord (No 1).

11. The essence of my decision in Weisbord (No 3) was that I rejected Laurence's application to reopen his case to tender new evidence concerning the plaintiffs' circumstances, as I took the view that the Court had reserved judgment on the basis of the evidence relevant to the plaintiffs' family provision claims that had been tendered during the hearing, and the appropriate course, given the remittance of the claims for determination, was that I decide those claims on the basis of the evidence that was available when judgment was reserved. I also invited the parties to deliver further written submissions on the issue of the extent to which the reasoning in the Appeal Decision should influence the Court's determination of the family provision applications. The Court received submissions from the parties on that issue in due course.

12. I have referred at the outset to the effect of my decision in Weisbord (No 3) in order to acknowledge the reality that, even though I declined to permit any reopening that would allow the admission of new evidence on the substantive issues, and the possible re-enlivening of the dispute, there may be some subsequent events that the Court cannot properly ignore in determining the plaintiffs' family provision claims, if it should decide that the plaintiffs, or some of them, should succeed on those claims. As I have explained above, the Court was told that Laurence had caused his legal costs to be paid out of the estate. Costs orders were made at first instance and on the appeal in favour of the plaintiffs. The Court does not know what has been done in relation to the payment of those costs, or whether the amounts payable have finally been assessed.

13. The hearing that led to the publication of Weisbord (No 1) was completed on 12 April 2018, when judgment was reserved. As noted in various places in the judgment, the Court had received evidence concerning the value of the assets in the deceased's estate. Common sense requires the Court to determine the plaintiffs' family provision applications on the basis that it may have been necessary for Laurence, as executor, to have realised assets in the estate for the purpose of its administration, and the value of the assets that remain in the estate may have changed since the Court reserved its judgment. I will return to this issue below, but I foreshadow that it may be appropriate to formulate any orders for further family provision that are proposed to be made in favour of the plaintiffs in percentage terms in relation to the current actual value of the estate, rather than in specific terms, by reference to individual properties or historical values that may by now have been superseded by events.

14. It will be necessary first to determine how and to what extent, if any, the procedural history of this litigation influences or constrains the manner in which the Court must now determine the family provision claims. This course may require some repetition and elaboration of the introductory observations that I have just made.

Consequences of the Appeal Decision in respect of these reasons

15. In Weisbord (No 3) I drew attention to two ways in which the Appeal Decision would influence the determination of the family provision claims. The first was that the Court would need to determine the family provision claims on the basis of the evidence that was before the Court when it reserved judgment in Weisbord (No 1): Weisbord (No 3) at [19]-[26]. On that basis I rejected the defendant’s application to serve further updating evidence relevant to the family provision claims: Weisbord (No 3) at [18]. As I noted in Weisbord (No 3) at [11], the plaintiffs’ applications for further provision were fully contested at the hearing.

16. The second way relates to the way in which the Court is now to proceed in respect of findings of fact which could bear relevantly on the determination of the family provision claims. I stated the problem in these terms in Weisbord (No 3) at [28]:

[28] In my primary judgment, I found in favour of the plaintiffs on the application based on s 8 of the Succession Act on the basis of various findings of fact concerning the intentions and state of mind of the deceased. Had I dealt with the plaintiffs’ applications for further family provision in the primary judgment, I would have done so on the basis of the facts that I found in dealing with the first issue. Those findings would have influenced my process of reasoning in considering the factors that the Court is required to take into account in the application of s 59 of the Succession Act. There is now in principle a question about whether, and if so in what respects, the reasoning of the Court of Appeal should influence the Court’s determination of the family provision applications. It will not be conducive to the just, quick and cheap resolution of those applications if I proceed on a basis that is inconsistent with the reasoning of the Court of Appeal. This issue may go further than the question of whether the Court of Appeal held that I had made errors in the fact-finding process in the primary judgment, and may extend to whether the reasons why the Court of Appeal held that the requirements of s 8 of the Succession Act were not satisfied should now influence the application of s 59 of that Act.

The parties’ submissions

17. I invited additional submissions from the parties on this problem. The plaintiffs submit that the only error in Weisbord (No 1), the error on which the Appeal Decision turned, was that I did not appropriately recognise the need for a specific or particular document to be identified when making my determination of the s 8 issue. The plaintiffs submit that the Court of Appeal did not otherwise disturb any of my prior findings of fact, and that the Court of Appeal’s decision could only be said to reinforce a number of my findings on the deceased’s intentions to provide for the plaintiffs and on issues of credit against Laurence’s interests.

18. Laurence’s submission is multi-pronged. The first aspect is that any prior factual findings and rulings that I made in Weisbord (No 1) that are relevant to the determination of the family provision claims that were not disturbed in the Appeal Decision may be relied upon in determining those claims. That appears to square broadly with the plaintiffs’ submission. This aspect of the submission was made subject to the following further aspects.

19. The second aspect of Laurence’s submission is that my determination of the family provision claims should be influenced by those parts of the Appeal Decision that note what he submits is the impossibility of making any findings as to why the deceased did not sign the second typewritten draft. Laurence refers to the judgment of Meagher JA at [54], [55] and [61], and the judgment of White JA at [148], the latter of which encapsulates the sense of Laurence’s submission:

[148] On balance I do not think that the evidence rises above a choice between speculative possibilities. It does not establish on the balance of probabilities the deceased intended a particular document to form her will.

20. Laurence submits that these parts of the Appeal Decision, that he says recognise the impossibility of finding why the deceased did not sign the second typewritten draft, should cause the Court to entertain the possibility that the deceased did not retain the testamentary intentions that gave rise to the preparation of the second typewritten draft.

21. The plaintiffs oppose this submission on the grounds that the evidence offered by the second typewritten draft is also provided in the witness evidence of Mr Lloyd and Mr Price, the acceptance of which the plaintiffs say the Court of Appeal did not disturb in the Appeal Decision. In essence, the plaintiffs say that the document is one of many pieces of evidence from which the Court can infer that the deceased intended to benefit the plaintiffs further than under the terms of her last will.

22. The third aspect is that my finding in Weisbord (No 1) at [374] was made under a misapprehension as to the meaning of Laurence’s outline written submissions provided at the hearing. The relevant paragraph of Laurence’s outline written submissions reads as follows:

[5.33] The Defendant accepts the 2008 document is both a document and embodies testamentary intention. He denies the deceased intended the document to operate as a Will.

23. My finding in Weisbord (No 1) at [374] was as follows:

[374] Laurence accepted at par 5.33 of his outline written submissions in response to the requirements of s 8 of the Succession Act, as expounded by Powell JA in Hatsatouris, that the 2008 document is both a document and embodies Mrs Rodny's testamentary intention. He denied, however, that Mrs Rodny intended the document to operate as a will.

24. Laurence accepts that the Court of Appeal explicitly took up that finding. Meagher JA (with whom McCallum JA, as her Honour then was, agreed at [150]) wrote, in the Appeal Decision at [12], [15], and [31]:

[12] The appellant accepted that the second typewritten draft will was a document that stated the deceased’s testamentary intentions ([374]), thereby satisfying s 8(1)(a).

…

[15] Section 8 is a general dispensing power which allows the Court to admit a document to probate notwithstanding that it has not been executed in accordance with the requirements of the Succession Act. For its operation two matters must be established in relation to the “document” sought to be the subject of a grant of probate. First, it must purport to state the testamentary intentions of the deceased: s 8(1)(a). That is not in issue here in relation to the second typewritten draft will prepared on 15 August 2008.

…

[31] It was not argued before the primary judge that the first typewritten draft will prepared on 14 August 2018 did not correctly state the deceased’s testamentary intentions in any respect, other than in relation to a failure to include what became cl 6 of the second draft. …

25. White JA wrote, at [146], relevantly:

[146] … Surprisingly, it was common ground that the second draft of the deceased’s will gave effect to her instructions and represented her testamentary intentions. This was a surprising concession by Laurence. As Meagher JA points out (at [31]), Mr Lloyd’s evidence was that his instructions included changes to the gifts of jewellery. Those instructions were not reflected in the final draft …

26. This aspect of Laurence’s submission is that he accepted that the second typewritten draft embodied testamentary intentions, but that this was not an acceptance that the document embodied the deceased’s final testamentary intentions so as to influence the determination of the family provision claims.

27. The plaintiffs oppose this submission on the basis that it is tantamount to calling for an appeal from Weisbord (No 1) by a single judge of this Court, and that the Court of Appeal was under no misapprehension as to what Laurence submitted in par 5.33 of his outline written submissions.

28. The final aspect of Laurence’s submission is that, in any case, the matter of the deceased’s testamentary intentions is merely one of the many considerations relevant to determining the family provision claims, and that this matter is one of minimal influence on the determination in this case.

Consideration

29. The parties’ submissions on the problem I raised in Weisbord (No 3) at [28] give rise to a number of issues which must be determined before the Court can safely proceed to consider the central jurisdictional questions posed by s 59 of the Succession Act.

30. The first aspect of Laurence’s submission is on all fours with the primary submission of the plaintiffs; that is, any prior factual findings and rulings that I made in Weisbord (No 1) that are relevant to the determination of the family provision claims that were not disturbed in the Appeal Decision may be relied upon in determining those claims. I accept that position. Where the evidence before the Court in respect of the probate and family provision issues is the same, it would be irrational for the Court to make findings in respect of the family provision issue inconsistent with those made in respect of the probate issue on the basis of that same evidence.

31. The final aspect of Laurence’s submissions is also uncontroversial law. Section 60(2) of the Succession Act provides that in determining family provision claims the Court may consider any of the 15 matters enumerated in that subsection as well as any other matter the Court considers relevant. One of those 15 matters, explored in greater detail below, is evidence of the deceased person’s testamentary intentions: Succession Act, s 60(2)(j). It is clear that none of the matters is determinative of a given claim and that the Court weighs all relevant circumstances in an evaluative judgment of whether adequate and proper provision has been made for an applicant: Megerditchian v Khatchadourian [2020] NSWCA 229 at [43] (Payne JA, with whom Macfarlan JA and Emmett AJA agreed at [1] and [71] respectively).

32. The second aspect of Laurence’s submission grapples with the question begged when the first aspect is accepted: which findings in Weisbord (No 1) were disturbed in the Appeal Decision, and which were not?

33. It is convenient to begin by observing that, in the Appeal Decision at [67]-[94], Meagher JA considered ten grounds of appeal directed towards my finding that the deceased made statements that she had executed a new will, an effect of which was to leave her property at 102 Balfour Road, Bellevue Hill to Alexander and Joel and their sisters. The grounds were numbered 3 through 12, and were summarised by Meagher JA at [28], relevantly:

[28] Ground 6 challenges the primary judge’s acceptance of the evidence of Jeanette and Avi as to the deceased’s statements in mid-August 2008 about having made a new will ([398]); and grounds 3, 4, 5, 7, 8 and 9 challenge the primary judge’s acceptance of Mr Price’s evidence of his conversations with Laurence concerning Mrs Rodny’s will ([298]). The acceptance of that evidence involved the rejection of Laurence’s evidence denying those conversations, which was based in part on the primary judge’s acceptance of the attacks on Laurence’s credibility, including in relation to his evidence as to the administration of his aunt’s estate. Those matters are the subject of grounds 10, 11 and 12. …

34. Meagher JA rejected all ten grounds: see Appeal Decision at [83], [88], [91]-[94]. McCallum JA agreed expressly at [150] with Meagher JA’s consideration of all these grounds. White JA agreed with Meagher JA’s consideration of grounds 3, 4, 5, 7, 8 and 9 (those concerning Mr Price’s evidence) at [129] but did not expressly consider the remaining four grounds. The Court can therefore proceed on the basis that the findings made in Weisbord (No 1) that were addressed in the Appeal Decision at [67]-[94] continue to be sound.

35. Laurence did, however, succeed on grounds 1 and 2 of his appeal, which were considered by Meagher JA at [30]-[66], the reasons of whom McCallum JA agreed at [150], and by White JA at [99]-[149]. Meagher JA said of these grounds at [27] and [29], relevantly:

[27] … Grounds 1 and 2 challenge the primary judge’s conclusion that the deceased intended the second typewritten draft to form her will, in circumstances where she “had not seen the document, it was not sent to her and the draft of the document was only completed after she left the office of [the] solicitor Lloyd” (ground 1).

…

[29] It is convenient first to deal with grounds 1 and 2 which do not depend on the success of the challenges to the primary judge’s finding based on his acceptance of the evidence of Jeanette, Avi and Mr Price. … The primary judge held that although he could not “identify on the balance of probabilities the specific document that Mrs Rodny had in mind when she made those statements” the “2008 will conforming to her instructions to Mr Lloyd was the only candidate subject of her belief” ([396]). That finding assumes that Mrs Rodny had a specific document in mind and that the contents of that document in fact corresponded with her testamentary intentions.

36. Meagher JA subsequently identified the following errors in, or expressed the following reservations in respect of, my reasoning:

1. My finding in Weisbord (No 1) at [474] that the deceased intended the 2008 will to form her will within the meaning of s 8(2)(a) of the Succession Act “at this point in his Honour’s reasons was not justified if read as being that [the deceased’s] intention was directed to any particular “document” operating as her will. It could only be justified as a finding that her testamentary intentions corresponded with the terms of the second typewritten draft will”: Appeal Decision at [14].

2. My conclusion in Weisbord (No 1) at [523] that I was satisfied “that document was “capable” of being a document of the kind referred to in s 8(2)(a) […] implicitly recognise[d] that the evidence did not, and could not, justify a finding that the deceased then or at some later (unspecified) time intended that particular document to operate as her last will”: Appeal Decision at [14].

3. The evidence did not permit any finding as to whether there was any particular document which was the subject of the deceased’s belief that she had executed a new will, whether that belief was correct or mistaken, “and if so whether that document was the or a version of the second typewritten draft will which conformed to her instructions to Mr Lloyd”: Appeal Decision at [33]; cf Weisbord (No 1) at [368], [395].

4. The reference in Weisbord (No 1) at [413] to the deceased’s belief that she had “made a will in the terms of the 2008 will” was “only correct if understood as being to a will which she believed was in accordance with her instructions to Mr Lloyd. In other words, her belief was as to her having given effect to her testamentary intentions”: Appeal Decision at [36].

5. My finding in Weisbord (No 1) at [413] that the deceased held that belief did “not include that she believed she had done so by the execution or adoption of a particular document which in fact conformed to those intentions”: Appeal Decision at [36].

6. As to my “finishing position” in Weisbord (No 1) at [414], namely “my finding that [the deceased] told Jeannette, Avi and also Laurence that she had made a will that on the evidence could only be the 2008 will”, “the observation that “on the evidence” the will [the deceased] believed that she had made “could only be the 2008 will” was “to be understood as no more than an observation that the second typewritten draft was the only document which could have correctly accorded with [the deceased’s] belief because it was the only document which recorded her testamentary intentions. It did not follow that there was a specific document which was the subject of her belief, and that it accorded with her instructions to Mr Lloyd”: Appeal Decision at [38].

7. My analysis in Weisbord (No 1) at [413]-[467] (within the section titled “The events following Mrs Rodny’s instructions to Mr Lloyd”) should be taken as a consideration merely of the possibilities, in light of my observation “at the outset that the evidence did not permit the Court to make reliable findings of fact, even on the balance of probabilities, as to what happened and how the deceased came to think she had made a new will which conformed to her instructions”: Appeal Decision at [48], see also [39]-[47]; cf Weisbord (No 1) at [413]-[414], [417], [420], [423]-[426], [430], [444]-[445], [448]-[449], [461], [467].

8. Whereas I stated in Weisbord (No 1) at [417] and [420] that the ““more likely” of two alternative possibilities (identified at [417]) was that [the deceased] (perhaps accompanied by her friend Mrs Parker) gave instructions to Mr Lloyd on 14 August 2008 “with the intention that she would return the following day to execute the will, the first draft was prepared in error by Mr Lloyd, [the deceased] returned on 15 August 2008 and signed the appointment of enduring guardians, but in some manner the error in the draft will was discovered, so that the second draft had to be prepared”” [Appeal Decision at [40]], Meagher JA observed at [48], relevantly:

[48] … Secondly, the primary judge’s most likely ‘possible’ scenario is one in which the deceased may have seen and signed the first typewritten draft but more likely did not. And yet in that scenario the deceased came to believe that she had implemented her intention to make a will conforming to her instructions. To the extent that the deceased believed that she had done so by executing a document conforming to her instructions, the evidence indicates that she would have been mistaken, both as to execution and as to what she had signed. Whilst it was not possible to identify on the balance of probabilities any particular “document” which was the subject of that mistaken belief, the documents which could have formed the basis of that belief in this “most likely” scenario were the first typewritten draft and the appointment of enduring guardians. …

9. “The evidence did not permit a finding as to what might have happened which could have caused [the deceased] to believe she had complied with all the formalities” in circumstances where “in mid-August 2008 the deceased’s intention was to make a new will by executing a document conforming to her instructions, as she had done on at least three earlier occasions and proposed to do on this occasion” and where “[a]t that time she had no intention that a document conforming to her instructions should without more form her will”: Appeal Decision at [48].

10. As to my observation in Weisbord (No 1) at [467], there were “difficulties with treating the statement “that [the deceased] intended the final draft of the 2008 will to operate as her will” as supporting a conclusion that at some point in time and without more she intended that unexecuted document to constitute her will (cf s 8(2)(a))”: Appeal Decision at [50]; those difficulties being, relevantly:

[50] … [The deceased’s] intention as established by the evidence was to execute a document when prepared which conformed to her instructions to Mr Lloyd. In his Honour’s “most likely” scenario the deceased did not see the second typewritten draft will, and there is no basis for finding that she was expecting to receive it. And in that “most likely” scenario [the deceased] is not shown from some point in time to have mistakenly believed that she had executed that document, so as to support an argument that she thereupon intended it to have a present operation, consistently with her intention being that it was to constitute her will only when it had been executed. To this point, neither the evidence nor his Honour’s analysis justified a finding that [the deceased] intended that the second typewritten draft prepared on 15 August 2008 and found in Mr Lloyd’s file should without more be her operative will.

11. My finding in Weisbord (No 1) at [469] that the deceased believed “in or after August 2008 that she had made a new will in terms of the final draft of the 2008 will” was “not supported by the reasoning that precedes it if understood as saying more than that at some time in or after August 2008 [the deceased] believed she had made a will conforming to her instructions to Mr Lloyd”: Appeal Decision at [51].

12. “[T]he evidence did not permit findings as to how [the deceased] came to have” the belief that she had made a will that “conformed to her instructions to Mr Lloyd”: Appeal Decision at [51].

13. The evidence did not permit “a finding that [the deceased] had any specific document in mind, or that any such document was a will and conformed to her instructions to Mr Lloyd” in the context of my ““most likely” scenario in which the document [the deceased] may have believed she had executed was either the appointment of enduring guardians, or the first typewritten draft of the will”: Appeal Decision at [51]; cf Weisbord (No 1) at [396], [413], [423], [467].

14. My finding in Weisbord (No 1) at [474] that the deceased “intended the 2008 will to form her will within the meaning of [s 8(2)(a)] of the Succession Act”, acknowledging “the reference to “the 2008 will” to be a reference to the second typewritten draft prepared on 15 August 2008”, did “not follow from the finding that [the deceased] believed she had made a will which conformed to her instructions to Mr Lloyd”, and nor was it “justified either by the evidence or his Honour’s earlier reasoning”: Appeal Decision at [54].

15. My finding that the deceased believed that she had made a will left “unanswered questions as to whether there was any particular document which was the subject of her belief and, if so, whether that document was a will which accorded with her instructions; as well as questions as to how and when she came to have that belief”: Appeal Decision at [54].

16. The absence of findings addressing the questions just set out in turn left unanswered “how [the deceased] came to intend that a particular unsigned document should, without more, constitute her will when her apparent intention was to give effect to her testamentary intentions by executing a will”: Appeal Decision at [54].

17. My analysis in Weisbord (No 1) at [517]-[523] (the section entitled “Preparation of will after instructions given”) involved the making of further findings which were “not supported by the evidence” and which were “inconsistent with his Honour’s earlier analysis”: Appeal Decision at [55]. The errors in respect of that section were that:

1. “The statement in the first part of the second sentence [of [522] of Weisbord (No 1)] that his Honour had “not accepted Mr Lloyd’s evidence” as to when he noticed the omission in the first draft, and corrected it without [the deceased] being aware [did] not accord with his Honour’s observations at [424]-[427] and his assessment at [467] that there “is a probability that [the deceased] did not actually see [the second typewritten draft] as it is likely that Mr Lloyd corrected his error after [the deceased] left his office”: Appeal Decision at [60].

2. The inference that I drew on the balance of probabilities in the fifth sentence of [522] of Weisbord (No 1), namely that the deceased “would have understood that the first draft implemented all of her testamentary instructions except for one, which would be corrected in the second draft” was not supported by a number of observations I made in Weisbord (No 1) at [423], [424], [425], [426], [430], and [467], and my “observation and finding as to what [the deceased] understood could be no more than speculation as to the possibilities”: Appeal Decision at [61].

3. The evidence did not support “the finding in the sixth sentence [of [522] of Weisbord (No 1) that “whenever, and by whatever means, [the deceased] formed the actual intention that the 2008 will would operate as her will [and] she would have expected the revised draft to have corrected the one omission made in the first draft”; and was furthermore “inconsistent with his Honour’s “most likely” scenario, the outcome of which was that the deceased believed as a result of something done on and not after 15 August 2008 that she had “effectively implemented her intention to make a new will””: Appeal Decision at [62].

4. “Even if [the foregoing] finding as to the deceased’s expectation on 15 August 2008 [were] made, it [did] not, taken with the other evidence, justify a conclusion that on the balance of probabilities [the deceased] intended the second typewritten draft without more operate as her will”: Appeal Decision at [63].

5. There was an assumption in my reasoning, “unsupported by the evidence, […] that at some point, apparently after 15 August 2008, [the deceased] came mistakenly to believe that she had executed the second typewritten draft and from that point intended that it should take effect, believing that she had signed it”; that assumption being “inconsistent with the primary judge’s most likely scenario for explaining the deceased’s belief, which does not include any mistake or misapprehension as to the execution of the second typewritten draft” because “[i]n that scenario [the deceased’s] mistake concerned the execution of the appointment of enduring guardians which is not the document propounded and did not contain her testamentary intentions”: Appeal Decision at [64].

37. The errors identified and reservations made by White JA broadly aligned with those set out by Meagher JA. They were:

1. “[T]he evidence did not establish on the balance of probabilities that the deceased had seen the final draft of the 2008 will, or even knew whether it had been created”: Appeal Decision at [108].

2. It did not follow “from the fact that [the deceased] believed she had made her will and that there [was] only one document which could be the subject of her belief, that she intended that the document to be prepared by Mr Lloyd would, when prepared, be operative as her will if it accorded with her instructions: Appeal Decision at [147]. This was because:

[147] … The evidence of Jeanette, and Avi, and Laurence’s admissions to Mr Price, do not establish that [the deceased] intended that any specific document, either already created or to be created, would form her will. It is at least equally likely that she believed that she had made her will because she had given instructions to Mr Lloyd, without turning her mind to any particular document.

3. The evidence did not rise above “a choice between speculative possibilities. It [did] not establish on the balance of probabilities the deceased intended a particular document to form her will”: Appeal Decision at [148].

38. As White JA observed at [147], this was a difficult case.

39. It immediately bears noting that I have borne in mind the errors and reservations identified by Meagher and White JJA enumerated above in coming to the findings that follow in these reasons. I have also borne in mind the issue raised by Meagher JA at [1] that my description in Weisbord (No 1) of the relevant document as “the 2008 will” has the capacity to mislead, and I propose to refer to the two typewritten drafts in a way consistent with the Appeal Decision.

40. I can now turn to the second aspect of Laurence’s submission directly. This second aspect raises three questions:

1. Did the Appeal Decision recognise the impossibility of making any finding as to why the deceased did not sign a document that gave effect to her testamentary intentions?

2. If so, should that impossibility influence the determination of the family provision applications by causing the Court now to entertain the possibility that the deceased did not retain the testamentary intentions that gave rise to the preparation of the 2008 will in either of its draft forms?

3. Regardless of either answer, what bearing do these two considerations have on the operation of s 59 of the Succession Act?

41. The answer to question (1) is in the negative. The crux of the question is in the word ‘why’, that being a question of the reason for which the deceased did not execute a draft of the 2008 will. The Appeal Decision was not concerned with that reason, whatever it may have been. The essential legal proposition on which the Appeal Decision turned was that s 8(2)(a) of the Succession Act “requires a finding of intention concerning the operation of the document which is the subject of the application for the grant of probate”: Appeal Decision at [54] (Meagher JA), see also [147]-[148] (White JA). That is, there must be the “adoption [by the testator] of a particular document”: Appeal Decision at [36] (Meagher JA). The errors and reservations identified above were directed at the incapacity of the evidence to establish whether the deceased did or did not manifest the relevant intention in respect of a particular document. The deficiency was in the merely speculative position of the Court as to what the deceased believed she had or had not done and in respect of what document or documents. Belief in what the deceased had or had not done is a different matter to the reason for not doing that thing. I do not consider that the Appeal Decision made any determination on the impossibility or otherwise of the Court finding some reason as to why the deceased did not execute a particular document.

42. Even if I were wrong in that consideration, the answer to question (2) would be in the positive, but in a completely unhelpful way. It is a matter of logic that if the evidence permits no finding either way, on the balance of probabilities, as to the reason why the deceased did not execute a will in 2008, the Court cannot then make a finding on the balance of probabilities that the or a reason for the deceased not doing so was because she did not retain the intentions embodied in her instructions to Mr Lloyd. The most the Court could then do is to determine possibilities for the deceased not doing so, and I accept to that extent alone that there is a possibility that the deceased did not retain the intentions on which she instructed Mr Lloyd. But that consideration is of no use to the Court. The Court can only determine the family provision applications before it on the basis of facts established on the balance of probabilities: Evidence Act 1995 (NSW) s 140(1). Furthermore, the Court of Appeal has recently affirmed in Bassett v Bassett [2021] NSWCA 320 at [80]-[81], [116] (Bell P, as his Honour then was, Leeming and Payne JJA) that the terms of s 59(2) of the Succession Act require the Court to exercise its discretion “having regard to the facts known to the Court”, not to matters of speculation. The Appeal Decision itself affirmed the risk of error in the Court relying on possibilities alone in making findings of fact or law: see Appeal Decision at [39]-[48], [61] (Meagher JA); [137], [148] (White JA).

43. However, the most significant consideration is the answer to question (3). What I take to be the principal point of this aspect of Laurence’s submission is that the determination of family provision claims is not influenced, or is only influenced to a limited extent, by evidence of testamentary intentions that are not the final testamentary intentions of the deceased. I reject the substance of that submission. It is necessary at this point to set out the law governing the Court’s ability to consider evidence of testamentary intentions in family provision claims.

44. As adverted to above, s 60(2)(j) of the Succession Act provides that one of the matters the Court may consider in determining a family provision claim is “any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person” (emphasis added). The Court of Appeal recently observed the following of that provision in Bassett v Bassett at [185] (Bell P, Leeming and Payne JJA):

[185] Section 60(2)(j) of the Succession Act permits “any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person” to be considered by the Court. Where a deceased person has made a will, that will be the obvious place where his or her testamentary intention is to be found. Section 60(2)(j) recognises, however, that a person’s “testamentary intentions” may also be evidenced in statements made by that person outside of his or her will. Such statements will most often assume significance in cases where an application for family provision is made in respect of an intestate estate. But there may be other cases, of which the present is an example, where the deceased person has made a will but subsequently expressed or contemplated a different testamentary intention …

45. It is apparent from this observation, and from the words of the provision itself, especially the word “any”, that s 60(2)(j) renders relevant any evidence of testamentary intentions, no matter the timing of those intentions relative to the creation of any wills by the deceased person, and no matter their timing relative to the deceased person’s death.

46. It follows that s 60(2)(j) allows the Court to consider evidence of testamentary intentions that are not the final intentions of the deceased person. Support for this position is found in statements that Hallen J has adopted in a number of decisions, most recently that of McDonald v O’Connor [2019] NSWSC 261 at [149]-[150]:

[149] In Amos v Hogg [2018] NSWSC 1226, at [60]-[62], I wrote:

“In Steinmetz v Shannon [2018] NSWSC 1090, Pembroke J, after referring to an earlier Will of the deceased in that case, which had made much more generous provision for the applicant, stated that “the proximity of death and the clear light of perspective sometimes focus [sic] the mind; providing a final opportunity for considered reflection. The only will that matters is the deceased’s last will.”

Whilst the last sentence quoted is, undoubtedly, correct so far as the determination of the principal questions for determination under the Act, the earlier testamentary intentions of the deceased, as disclosed in a prior Will, or Wills, are also relevant, particularly if there was a long standing testamentary intention revealed by the earlier Will or Wills, and where there has been an incident that has, or incidents that have, caused a change to those long held testamentary intentions.

It may also demonstrate the recognition, by the deceased, at the time, of a degree of testamentary duty owed by her towards the Plaintiff. Also, as will be read, one of the matters to which the Court may have regard, is “any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person”: s 60(2)(j) of the Act.”

[150] (I should note that an appeal in Steinmetz v Shannon has been heard by the Court of Appeal and judgment is reserved.)

47. As an aside, the Court of Appeal did allow the appeal in Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114. At [91], Brereton JA doubted the conclusion of Pembroke J that the testator in that case had made a carefully considered decision, a statement which might be said to bear adversely on the statement of Pembroke J extracted in Hallen J’s reasons immediately above. That is of little moment, however, since it is the contrasting statements of Hallen J himself that I adopt in considering the issue at hand.

48. It is also apparent from the statement of Bell P, Leeming and Payne JJA in Bassett v Bassett at [185], extracted above, that the Court is able to consider evidence of testamentary intentions of the deceased notwithstanding that those intentions were embodied in a document that was not admitted into probate, in this case by virtue of the defendant’s successful appeal, and notwithstanding that another document of earlier origin was admitted into probate.

49. Further and more focused support for this approach is found in the decision of White J (as his Honour then was) in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522. In that case, the testatrix made a will in 2003 which broadly benefited her nephew, Mr Slack. The testatrix made another will in 2007 which revoked all previous wills and left her estate to two of her grandchildren. Mr Slack claimed that the 2007 will had been revoked, and that the 2003 will had been revived, by an informal will of 2008. White J upheld that claim. Mr Slack had made a family provision application in the alternative that he was unsuccessful, which White J considered in obiter in the alternative that his Honour had erred. White J stated relevantly at [137]:

[137] … had I concluded that the grant of probate of the 2007 will should not be revoked, I would nonetheless have made an order for provision in favour of Mr Slack whereby he should receive the whole of the residue of the estate, subject to the legacy to be ordered in favour of Mr Palffy. Such an order would be required for Mr Slack's proper maintenance and advancement in life to give effect to Mrs Rogan's testamentary intentions (s 60(2)(j)). For the reasons above, her grandchildren would not have had competing claims that would justify the diminution of Mr Slack's claim on the estate.

50. White J’s reference to “testamentary intentions”, in its context, can only refer to the intentions embodied in the informal 2008 will that his Honour admitted into probate, and not the 2007 will which would otherwise have been admitted into probate and which would have been the relevant will upon which the family provision order would have operated. In other words, in this alternative scenario, White J acknowledged that an informal will not admitted into probate would have embodied the testamentary intentions of the testatrix, and that those intentions would have justified the making of an order for further provision in accordance with or in the spirit of those intentions.

51. Slack v Rogan; Palffy v Rogan and Bassett v Bassett might be said to contrast in at least one relevant regard; that is, the weight to be attributed to statements of testamentary intention made subsequent to the deceased’s last will may differ in each case. In White J’s alternative finding in Slack v Rogan; Palffy v Rogan extracted above, his Honour would have attributed significant weight to such statements, whereas in Bassett v Bassett at [192], the Court of Appeal did not “attach any particular weight” to the relevant conversation in which the deceased’s subsequent testamentary intentions were expressed. That that difference is possible is consistent with the evaluative nature of the jurisdictional question in s 59(1)(c), and the permissive but not mandatory nature of the considerations in s 60(2), of the Succession Act: see Bassett v Bassett at [192], [198] (Bell P, Leeming and Payne JJA).

52. It now remains to consider the third aspect of Laurence’s submission. I have set out above the references in Weisbord (No 1) at [374], and to the Appeal Decision at [12], [15], [31] and [146] in which Meagher, White and McCallum JJA expressed their Honours’ understanding that it was agreed by the parties that the second typewritten draft represented the deceased’s testamentary intentions. In circumstances where the Court of Appeal unanimously expressed that view and determined the appeal on the basis of that view, I consider myself bound not to derogate from it. In any event, I respectfully agree with the conclusion reached by their Honours.

53. To round out the consideration of these issues, it is worth noting some statements in the Appeal Decision that I have relied upon in the reasons that follow. At [63], Meagher JA stated, relevantly:

[63] … [The deceased] still intended to make a further will, and to do so by executing a document. …

54. Most significantly, his Honour then stated at [80]-[81] (emphasis added):

[80] The second part (ground 7) contends that the primary judge erred in finding that the statements made by Laurence to Mr Price were “in tune” with the terms of the 2008 will, in circumstances where there was no evidence of any specific reference by Mrs Rodny to her leaving the home unit property to her grandchildren, and no evidence that she was making any provision for them. The statement as to the absence of specific evidence directed to the home unit property is correct, although the more general evidence as to Mrs Rodny’s intentions was wholly consistent with that being the position. The latter statement as to there being no evidence that she was making provision for the grandchildren is not correct.

[81] Mr Price’s evidence included reports of Mrs Rodny saying that she had “grandchildren who needed to be looked after”; and that she was leaving “most of her will to my sister and the grandkids”. It also included Laurence’s statements in relation to the grandchildren that “they will just blow it all” and that she had left “more of her estate to my sister and her grandchildren”. Whilst there is no specific reference to the Balfour Road property, the references to the grandchildren receiving “part of the will” could only be understood as referring to that property in circumstances where Carramar had been sold, and it was always understood and contemplated that the deceased’s residence would be left to Jeanette and the shares in Karod Investments would be left to Laurence.

Relationship between the parties

55. Before turning to the factual history of this case, one matter deserves some discussion which has continuing relevance for the conduct of family provision applications in general. This was a matter that I addressed in Weisbord (No 1) at [311]-[330], but on which there are principles applicable to the family provision applications.

56. Quite clearly, the enmity between the parties in this case is palpable. A not insignificant part of the plaintiffs’ case focused on what they depicted to be the aggressive and conniving conduct of their brother and uncle against not only the deceased but against them. Though s 60(2)(n) of the Succession Act permits the Court to consider the conduct of persons other than applicants when determining family provision applications, the central focus in these cases is on the familial relationship between a deceased person and the applicant: see Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [12] (Gleeson CJ).

57. Given the Court’s focus on the relationship between the deceased and the applicant, and the relationships between the deceased and any beneficiary or other person, evidence of acrimonious behaviour between the applicant and those other persons independent of the deceased can in many cases be of doubtful value in determining the jurisdictional question in s 59 of the Succession Act. Chapter 3 of the Succession Act is not directed towards righting the wrongs of one sibling against another. In this respect, the warning of Hallen AsJ (as his Honour then was) in Graham v Graham [2011] NSWSC 504 at [198] remains relevant:

[198] I point out, for the benefit of those reading this judgment, that though conduct and family relationships may, in some cases, have relevance, the court disapproves of attempts by litigants in cases in which a family provision order is sought to blacken each other's character. Allegations and counter-allegations about incidents that occurred years before the deceased's death are, generally, unlikely to advance either party's case, and when it is sought to support them by lengthy affidavits in chief, which prompt equally lengthy affidavits in reply, they may merely deepen rifts in the family, dishonour the memory of the deceased and unnecessarily prolong the litigation: Re Meier (deceased ) [1976] 1 NZLR 257 at 258, which was cited with approval in The Auckland City Mission v The Salvation Army & Ors [2002] NZCA 33 at [15]. Counsel and solicitors bear a responsibility to their clients, as well as to the court, in this respect.

58. Evidence of the parties with respect to their relationships with one another in this case is therefore only deserving of any real weight where it bears on the jurisdictional question in s 59. That will be the case, for example, where such evidence bears upon the relationships of the deceased with those persons and, accordingly, her moral duty to them (see Vigolo v Bostin at [25] (Gleeson CJ), [121] (Callinan and Heydon JJ)); or where it bears upon one or another party’s circumstances in life. Such evidence may also bear naturally on the credibility of the parties in giving their evidence.

59. For present purposes, it bears repeating in particular what I stated in Weisbord (No 1) at [319]-[320] and [324]:

[319] The plaintiffs alleged that Laurence took advantage of his control over [the deceased] to exert pressure on her to execute the 1997 will (by which he received a disproportionate share of [the deceased’s] estate) (written submissions par 81).

[320] It was submitted that Laurence used his power over [the deceased] to cause her to agree to Laurence receiving his father’s half share in Karod (written submissions pars 231-237), and that he imposed upon [the deceased] to sell Carramar Avenue for the purpose of effectively disinheriting his nephews and nieces (written submissions pars 217-222).

…

[324] Almost all of these matters were essentially irrelevant to the issues that call for determination in these proceedings. I will not review the evidence or attempt to resolve the forensic disputes in this area. Parties to litigation cannot expect courts to devote precious and limited time to resolve long-standing emotional disputes between parties that are not germane to the issues that the court is required to decide.

Factual history

60. Many facts relevant to the determination of the family provision applications have been canvassed in the earlier judgments in this litigation. Subject to the consideration above as to the consequences of the Appeal Decision on the findings I made in Weisbord (No 1), the facts that I found to be the case in Weisbord (No 1) remain correct. I will refer to corresponding paragraphs in Weisbord (No 1) while supplementing the facts with other evidence where relevant.

60. I addressed the credibility, and the evidence generally, of the principal witnesses in the proceedings at the following parts of Weisbord (No 1): Mr Lloyd at [135]-[165], Jeannette at [206]-[241], Avi at [242]-[257], Joel and Alexander at [258]-[262], Mr Price at [263]-[310], and Laurence at [331]-[364]. My findings as to credibility continue to colour the evidence given by the witnesses in light of the consideration of the Appeal Decision above.

61. As explained above, one effect of Weisbord (No 3) is that the Court must now determine the family provision applications on the evidence that was before the Court when it initially reserved judgment: see Weisbord (No 3) at [18], [26]. Though these reasons are rendered in the present tense, it is to be borne in mind that the facts are present as of 2018.

The deceased’s life and family

63. The deceased was born on 3 July 1922 and died on 24 August 2014, aged 92 years: Weisbord (No 1) at [2].

64. The deceased was married to Karel. The deceased and Karel operated a fur manufacturing business and retail outlet in Sydney from the 1960s until Karel’s death in 1989: Weisbord (No 1) at [4].

65. The deceased and Karel had two children. Jeannette was born in 1952 and was aged 66 years at the hearing. Laurence was born in 1956 and was aged 62 years at the hearing: Weisbord (No 1) at [5].

66. Jeannette is married to Abraham Weisbord, who goes by Avi. They have four children: Alexander, born in 1985 and aged 32 years at the hearing; Joel, born in 1988 and aged 30 years at the hearing; Karly, born in 1990 and aged 27 years at the hearing; and Jordana, born in 1993 and aged 24 years at the hearing: Weisbord (No 1) at [6].

The deceased’s estate

67. Four parcels of real property are relevant to the deceased’s last will and to her testamentary intentions. There was some dispute as to the respective values of these properties which was resolved by the end of the hearing: Weisbord (No 1) at [20].

68. The first property is a residential property at 77 Balfour Road, Bellevue Hill (77 Balfour Road) which was the deceased’s home. The parties agree that the property is valued at $4,000,000: Weisbord (No 1) at [21].

69. The second property comprises four large home units at 102 Balfour Road, Bellevue Hill (102 Balfour Road). The parties agree that the property is valued at $5,100,000: Weisbord (No 1) at [21].

70. The third property comprises eight two-bedroom flats on a single title at 87 Sproule Street, Lakemba (87 Sproule Street). The parties agree that the value of the underlying property is $3,000,000: Weisbord (No 1) at [21]. The Lakemba Property is owned by a company called Karod Investments Pty Ltd (Karod).

71. The fourth property comprises nine flats on a single title at 23 Carramar Avenue, Carramar (23 Carramar Avenue). The deceased owned 23 Carramar Avenue until it was sold in September 2003. The plaintiffs did not appear to challenge Laurence’s evidence that the property sold for $1,250,000. As of 2002, 23 Carramar Avenue was earning approximately $65,000 per annum in rent: Weisbord (No 1) at [22].

72. I outlined the issues concerning the deceased’s estate in Weisbord (No 1) at [18]-[19]:

[18] Through their enterprise, [the deceased] and her husband acquired significant assets. The value of [the deceased’s] estate for probate purposes was stated to be $9,878,628.91. In addition, [the deceased] was entitled to an interest in the residuary estate of her sister-in-law, Sarolta Singer, which at 3 March 2016 had a value of approximately $541,000. As at the date of the hearing in this matter, Laurence, as [the deceased’s] executor, valued the estate at approximately $11,116,227.

[19] The plaintiffs initially claimed that the estate has a significantly higher value than the amount deposed to by Laurence. By the end of the hearing, the parties had substantially agreed as to the value. Their agreement was embodied in a document that became Exhibit 8. The value was $11,591,775, subject to two reservations of the plaintiffs. One of the reservations was to the effect that, instead of [the deceased’s] shares in a company called Karod Investments Pty Ltd (Karod) being worth $1,500,000, as set out in the document, the estate was entitled to $3,000,000, on the ground that the other shares in Karod, also worth $1,500,000, and held by Laurence, were held by Laurence on trust for the estate. The second reservation was that the plaintiffs do not accept that the estate’s interest in the estate of Mrs Singer is now worth $558,366, as set out in the document. The plaintiffs simply say that the interest is more valuable because Laurence has not accounted for all of the assets in Mrs Singer’s estate.

73. With respect to the two reservations mentioned in Weisbord (No 1) at [19], I made further passing references to these issues at [21], [320], and [339]. I resolved upon the following view in Weisbord (No 1) at [536] and I continue to adhere to that view:

[536] I should record that during the course of the hearing the plaintiffs put in issue whether Laurence holds the 50% of the shares in Karod that were originally transferred to him on trust for [the deceased’s] estate, and whether the true value of Mrs Singer’s estate is more than the amount recognised by Laurence. Those issues are significant and complex. They were not raised on the pleadings. I do not consider them to have been fully or adequately explored in the evidence and the submissions. Accordingly, I will not make any findings in relation to those issues.

74. The effect of that conclusion is that the gross value of the deceased’s estate, at the time of the hearing, was $11,591,775, as is set out in Exhibit 8, and without the two reservations: Weisbord (No 1) at [19]. The inventory set out is as follows:

ESTATE OF THE LATE ROSE RODNY

VALUES AS AT 31 March 2018

PROPERTY  VALUE

77 Balfour Road Rose Bay               4,000,000

102 Balfour Road Rose Bay               5,100,000

Furniture and art works               100,000

Jewellery  80,000

Cash with CBA [account A]               124,047

Cash with CBA [account B]               30,583

Cash with ANZ                  11,779

2,000 fully paid shares in American Fur Co Pty Ltd      42,000

1 “A” Class share and 1 “B” Class share in [Karod]      1,500,000

Debt owed by Jeannette Weisbord            30,000

Debt owed by Laurence Rodny            15,000

Interest in estate of Sarolta Singer            558,366

TOTAL  $11,591,775

The deceased’s wills and testamentary intentions

75. The deceased made three wills after her husband died, dated 15 May 1990, 17 June 1997, and 19 December 1997 respectively. Probate of the December 1997 will was granted to Laurence on 15 January 2016: Weisbord (No 1) at [23]. The order of the Court in Weisbord (No 1) revoking the grant of probate was set aside by the Appeal Decision. As such, the December 1997 will is the last will of the deceased.

76. I described the preparation and effect of the three wills in Weisbord (No 1) at [26]-[29]:

[26] [The deceased] made a will dated 15 May 1990. She appointed Laurence and Jeannette as her executors. She gave 77 Balfour Road to Jeannette, and 102 Balfour Road to Laurence, both free of any mortgages. She divided the residue between Jeannette and Laurence equally.

[27] On 17 June 1997, [the deceased] made a further will. Again she appointed Laurence and Jeannette to be her executors. She gave 77 Balfour Road to Jeannette and 102 Balfour Road to Laurence, both free of any mortgages. She gave 87 Sproule Street, Lakemba to Laurence, free of any mortgage. This gift was based upon a misconception, as the company Karod owned this property. Mrs Rodny then gave Carramar Avenue free of any mortgage to be held on trust for such of her grandchildren as survived her. The residue was given equally to Jeannette and to Laurence.

[28] The will that was admitted to probate was the 1997 will, made on 19 December 1997. It appointed Laurence as the sole executor. It again gave 77 Balfour Road to Jeannette and 102 Balfour Road to Laurence. The gift of 77 Balfour Road to Jeannette was made free of any mortgage, but the gift of 102 Balfour Road to Laurence was made subject to any mortgage. The shares in Karod were given to Laurence. Carramar Avenue was given to the trustee, free of any mortgage, to be held for [the deceased’s] grandchildren, who survived her and attained the age of 25 years. [The deceased] gave the residue of her estate to Laurence to assist him to discharge the mortgage over 102 Balfour Road, and taking into account that the property may be subject to a CGT liability that was to be borne by Laurence.

[29] All of these wills were prepared on behalf of [the deceased] by Mr Norbert Lipton, a solicitor.

77. Between 2006 and 2008, the deceased set out to make a new will. As has been seen, it is the events of this attempt that comprised the bulk of the consideration in Weisbord (No 1) and the Appeal Decision. Meagher JA summarised the events surrounding second typewritten will in the Appeal Decision at [4]-[9]:

[4] [The deceased] first approached Mr Lloyd in December 2006, when the solicitor created a file described as “RODNY – WILLS/POWER OF ATTORNEY”. By that time the Carramar property had been sold. A land title search of the home unit property in Balfour Road was undertaken, but it would seem nothing else was done.

[5] On 14 August 2008 [the deceased] saw Mr Lloyd at his office. She provided him with a copy of the December 1997 will, advised that the Carramar property had been sold and told him that she wished to leave the home unit property in Balfour Road to her four grandchildren, and her residuary estate to Laurence and Jeanette equally. Thus the principal differences between the existing will and that proposed were that the four grandchildren were to receive the home unit property in Balfour Road instead of Laurence, and that the residuary estate was to be shared equally between Laurence and Jeanette rather than going only to Laurence.

[6] [The deceased] saw Mr Lloyd again on 15 August 2008, when she signed a form of appointment of enduring guardians which had been prepared on that day ([75], [153]).

[7] After receiving instructions on 14 August 2008, Mr Lloyd’s office prepared a first typewritten draft will. On the following day it was discovered that this draft had omitted the clause which became cl 6 of the second typewritten draft, the relevant parts of which are extracted below. The omission of that clause was recorded in handwriting on a copy of the first typewritten draft by the following notation:

“6. < Give all the right title + interest in all my shares in Karod Investments Pty Ltd to Laurence Robert Rodney (sic)”

[8] The second typewritten draft will relevantly provided ([30]):

1. I REVOKE all previous wills and testamentary dispositions.

…

3. I APPOINT JEANNETTE WEISBORD…and LAURENCE ROBERT RODNEY (sic)… as executor and executrix and trustees…

4. I GIVE to my Grandchildren ALEXANDER BENJAMIN WEISBORD, JOEL ADAM WEISBORD, KARLY JUDITH WEISBORD and JORDANA TAMMY WEISBORD my property known as 102 Balfour Road, Rose Bay NSW…free of all duties and taxes, in equal shares as tenants-in-common when they shall each attain the age of Eighteen (18) years…

5. I GIVE to my Daughter JEANNETTE WEISBORD…all my right title and interest in my property at 77 Balfour Road, Rose Bay NSW…free of all duties and taxes PROVIDED THAT if she should predecease me I GIVE the said property at 77 Balfour Road, Rose Bay to my said daughter’s children…

6. I GIVE all my right title and interest in all my shares in Karold (sic) Investments Pty Ltd to LAURENCE ROBERT RODNEY free of all duties and taxes.

7. I GIVE all the balance of my estate remaining after the gifts referred to in Clauses 4, 5 and 6 of this my Will to my Trustees…

(b) to give the balance remaining on the following trusts:

(i) To my children JEANNETTE WEISBORD and LAURENCE ROBERT RODNY as tenants-in-common equally…

[9] Mr Lloyd’s file contained a copy of this second typewritten draft and a file copy of a letter addressed to [the deceased] dated 15 August 2008. That letter ([114]) described itself as enclosing the draft will “prepared pursuant to instructions received from you” and asked that [the deceased] peruse it and “advise whether the contents meet with your approval”. In doing so it contemplated the preparation of a final version of the will for execution. Consistently with that being the position, cl 11 of the draft is incomplete, imposing an obligation on the deceased’s trustees to pay any capital gains tax “as follows:”, without further explication. The primary judge found that the original of this letter and a copy of the 2008 will were never sent to the deceased ([444], [467]).

78. As to the events of the deceased’s meeting with Mr Lloyd, I stated in Weisbord (No 1) at [138]-[139]:

[138] Mr Lloyd gave evidence that [the deceased] said to him: “I want to change my will… My son’s got enough and one of the properties have been sold and I want to give it to my grandchildren” (T-A 19.5). Mr Lloyd repeated his evidence that [the deceased] told him that Laurence already had enough (T-A 34.16, 439.15). He also repeated his evidence that [the deceased] instructed him that she wanted to substitute another property by way of gift to her grandchildren for the property given to them by the earlier will that had been sold (T-A 29.12, 439.23). Mr Lloyd also said that [the deceased] told him that she did not want Mr Lipton to know about the new will, and Mr Lloyd accepted the suggestion of counsel that this instruction was probably because of the association between Mr Lipton and Laurence, so [the deceased] probably did not want the information to come to the attention of Laurence (T-A 45.20).

[139] I find this aspect of Mr Lloyd’s evidence to be a genuine recollection. As Mr Lloyd had not previously cooperated with the plaintiffs, he did not have any opportunity at all to learn anything about the issues in this case. Mr Lloyd could not have learned of this information, which fits neatly into the facts of this case, in-so-far as it reflects the principal reason for [the deceased] to go to the trouble of making a new will, unless he had been told these matters by [the deceased]. This aspect of Mr Lloyd’s evidence also finds some support in the terms of the draft will that Mr Lloyd prepared for [the deceased].

79. The events following the deceased’s meeting with Mr Lloyd was summarised by Meagher JA in the Appeal Decision at [10]:

[10] Between 19 and 28 August [the deceased] was admitted to Wolper Hospital in Sydney ([168]), apparently because of acute groin pain and reduced mobility. Subsequently on 2 September 2008 Mr Lloyd’s office undertook a title search of the Sproule Street property owned by Karod Investments, having already ordered an ASIC search of that company on 15 August (cf [126]). Mr Lloyd’s electronic diary for 3 September 2008 included an appointment with [the deceased]. Mr Lloyd could not recall seeing her on that day ([128]), the primary judge later describing what happened on that date as “entirely unknown” ([447]). On 4 September 2008, Mr Lloyd’s office prepared a draft general power of attorney, which described [the deceased] as the principal and Laurence as the attorney ([75], [129], [130]). That document was never executed.

Events following the deceased’s death

80. There is evidence of events following the deceased’s death, in particular of the reading of the December 1997 will, which I relayed in Weisbord (No 1) at [181]-[204], and which I relay here, relevantly:

[181] As I have said, [the deceased] died on 24 August 2014. A reading of her will was not conducted until 9 December 2014, when a reading took place in Mr Lipton’s office. Mr Lipton conducted the reading. Jeannette and Laurence were present. Mr Lipton read the 1997 will, as that was the latest will made by [the deceased] that had been prepared by him and of which he had retained the original in safe keeping.

[182] Jeannette gave evidence, at pars 303 to 307 of her 14 March 2016 affidavit, of her recollection of what happened during the reading of the 1997 will on 9 December 2014, in support of her family provision claim, and in the context of explaining the reasons for her delay in commencing her claim.

[183] After explaining that she was told by Mr Lipton that she had been left 77 Balfour Road, and that Laurence had been given the rest of the estate, Jeannette said: “I broke down psychologically upon hearing this. I was crying hysterically and then couldn’t stop sobbing”.

[184] Jeannette also gave evidence of being told by Laurence that she was unable to do anything about the 1997 will. This evidence was denied by Mr Lipton in cross-examination.

[185] Jeannette gave evidence concerning what happened at the will reading in pars 164 and 166 of her 23 September 2016 affidavit. The evidence was given in reply to par 67(11) of Laurence’s 28 July 2016 affidavit, which itself was given in response to the evidence in Jeannette’s 14 March 2016 affidavit in the family provision proceedings in respect of [the deceased’s] testamentary intentions. Laurence’s evidence was to the effect that he had not seen any of [the deceased’s] wills prior to reading Jeannette’s affidavit. (In the following extract the expression “[Rejected]” is inserted in place of evidence that the Court rejected).

[186] Jeannette said:

163. [Rejected]

164. I mentioned the 2008 will as soon as Lipton disclosed the contents of the 1997 will, saying: “What about mum’s other Will? I thought mum prepared another will in 2008 when she went to see John Lloyd”. [Rejected]

165. [Rejected]

166. [Rejected] During or after the reading of mum’s 1997 will, when it became apparent to me that neither was going to mention or deal with the 2008 Will, and it appeared to me that the 2008 will was just going to be brushed under the carpet, I raised it, using the above words.

[187] Mr Lipton swore an affidavit on 20 June 2016, in which he responded to relevant aspects of Jeannette’s 14 March 2016 affidavit. He made specific responses to each aspect of Jeannette’s evidence concerning what happened at the reading of the 1997 will. His recollection was inconsistent with much of the evidence given by Jeannette. Mr Lipton said that, when Jeannette asked him whether anything had been left to her children, he explained that Carramar Avenue had been sold so there was nothing left for the children. Mr Lipton said that he explained to Jeannette that all of [the deceased’s] cash would be part of residue and go to Laurence. He said that there was a relatively lengthy discussion between Jeannette and Laurence concerning a proposal by her to live in 77 Balfour Road and sell her existing home and live on the proceeds of the investment of the money received and on the rent from Jeannette’s property in North Bondi.

[188] As to Jeannette’s response to the reading of the will, and the conversation that took place, Mr Lipton said in par 16: “… I had the impression from Jeannette’s demeanour and her statements and questions that she was surprised and mildly shocked by the fact that there was not more cash, but she gave no indication of any intention to challenge the Will or to take any other action in relation to the Estate… There certainly was not any crying on Jeannette’s part”. Mr Lipton annexed a file note of the conference, which recorded that it went for 1 ¼ hours. It recorded briefly what Jeannette intended to do with the property devised to her, and does not record any unusual behaviour on Jeannette’s part.

[189] Mr Lipton also gave evidence that, after the conference ended, Laurence telephoned him and asked him to write to Mr Lloyd about the possibility that there was a later will. Mr Lipton made a file note that recorded Laurence as having said: “Jeannette has already rung Lloyd who said he prepared a Will but it was never signed & Lloyd said he’d send it to her. He wants me to write to Lloyd”.

[190] In a later affidavit, sworn on 24 November 2016, Mr Lipton denied that during the course of the conference on 9 December 2014 Jeannette said anything about [the deceased] seeing another solicitor about another will. He said that he first heard about the possibility that there was a later will when he spoke to Laurence on 9 December 2014, sometime after the conference finished, or alternatively he learned of the possibility from speaking to his wife, who worked in his office, after the events recorded below concerning Ms Lipton’s evidence.

132. The deceased died on 24 April 2014. The plaintiffs filed their family provision summons on 5 November 2015, which was about 2 1/2 months after the end of the 12-month period stipulated in s 58(2) for the commencement of the proceedings.

133. Although each application must depend upon its own facts, where the application is commenced only a very short time after the end of the 12 month period, the Court should bear in mind the truth of the observation made by Pembroke J in Madden-Smith v Madden (Estate of late Doris Linda Madden) [2012] NSWSC 146 at [23]-[24] that is extracted by Hallen J in Stojanovski v Stojovski that is set out above, that the application must be "made within a defined, and strictly confined period" and that s 58(2) imposes a "short time period". Events may occur within this relatively short period that impose understandable impediments on applicants in commencing their applications within the specified time limit.

134. I am satisfied that, in the first instance, the plaintiffs have shown sufficient cause for their delay in this case in making their application. The references in the following explanation are to paragraphs in Weisbord (No 1).

135. The December 1997 will was not read by Mr Lipman, the solicitor for Laurence as executor, until 9 December 2014: [181]. That meant that the plaintiffs lost some 3 1/2 months before they knew the terms of the December 1997 will for which Laurence proposed to seek a grant of probate.

136. I am satisfied that Jeannette was devastated by her disappointment in the terms of the December 1997 will, particularly in respect of the fact that her children did not receive the inheritance that she understood from the statements made to her by the deceased that they would receive: [183]. It may be that Jeannette did not burst into tears during the will reading, but I am satisfied that she did so shortly afterwards when she fully realised the effect of the December 1997 will: [188], [192], and the evidence given by Joel at [T-A 324.45].

137. There is in my view, a significant likelihood that all of the plaintiffs were diverted in determining what their proper response should be to the terms of the December 1997 will by the steps taken by both Jeanette and Mr Lipman to communicate with Mr Lloyd concerning what had happened in about August 2008 in respect of the deceased making a new will. Mr Lloyd advised Mr Lipman on 9 December 2014 that the deceased had not executed her draft will: [199]; but Mr Lloyd did not make his final reply to Mr Lipman until 3 February 2015: [201]. Jeanette accepted that she had received a copy of one of the type-written draft wills from Mr Lloyd in December or January 2015: [204]. It is likely that these investigations impeded the plaintiffs' determination of how they should respond to their learning of the terms of the December 1997 will.

138. There is an issue as to whether either Laurence or Mr Lipman advised the plaintiffs or some of them that they had no right to challenge the December 1997 will. Jeanette claimed that Mr Lipman advised her that the December 1997 will could not be challenged, but this evidence was denied by Mr Lipman: [184]. Joel accepted in cross-examination that Laurence did not inform him that the December 1997 will could not be challenged: [T-A 327.43]. On the other hand, Alexander was quite definite that Laurence had told him that the will could not be challenged: [T-A 340.49, 341.7].

139. I am satisfied that, by reason of the general disabilities from which they suffered and their personalities, the plaintiffs are not decisive people, and they would have found it difficult to organise themselves and act promptly in their response to learning of the terms of the December 1997 will. The evidence justifies a finding that the plaintiffs had limited funds, and the enquiries that were made concerning the possible retention of legal representation were sporadic and ineffective until, according to Joel, he chanced to communicate with the plaintiffs' present solicitor in October 2015: [T-A 328.27].

140. I exercise my discretion in favour of permitting the plaintiffs to commence their family provision applications out of time. Laurence has not suggested that he has suffered any prejudice as a result of the short delay in the proceedings being commenced after the end of the requisite 12-month period. It is plain that no relevant prejudice has occurred, as nothing material changed in the 2 1/2 months.

141. The claims made by Alexander and Joel satisfy the requirement that they have sufficient prospects of success to justify leave being given to commence their claims out of time, as I have decided that both grandsons have established their claims for orders for further provision out of the deceased’s estate. Although I have not found that Jeannette has established a good claim for further family provision in the particular circumstances of this case, I consider that the delay in the commencement of her claim was so brief that it is not the appropriate course to refuse a retrospective order permitting her claim to be made.

Whether Joel and Alexander eligible to make family provision applications

143. It will be convenient to consider the applications for further family provision made by Joel and Alexander before the application made by Jeanette, as I will make orders for further family provision in their favour, and the quantum of those orders will be relevant to the determination of Jeanette's application.

144. The claims made by the two brothers can conveniently be dealt with at the one time, as the evidence shows they were always treated equally by the deceased, both in relation to emotional and financial support on the one hand, and the accommodation on the other, that the deceased provided to them.

145. The relationship between Joel and Alexander and the deceased was unusual in respect of the level of financial provision that the deceased made for her grandsons and the frequency and length of time that they lived in her home rather than their parents' home. That was not only a function of the deceased's generosity, but was a result of the limited income enjoyed by Jeanette and Avi, which was not sufficient to provide for the material needs of the brothers, and also Jeanette's psychological and behavioural problems which inhibited her ability to maintain an orderly and nurturing household that was suitable as a home for the brothers.

146. I accept in substance the evidence given by both Joel and Alexander in their primary affidavits on 5 November 2015. I reject Laurence’s claim that in reality Joel and Alexander lived a separate existence at No 77 Balfour Street in what they called the downstairs granny flat. In the context of the whole of the evidence of the relationship between the deceased and her grandsons, it is extremely unlikely that the grandsons did not take advantage of their proximity to the deceased to spend time with her and to use the facilities in the main part of the home.

147. Joel gave evidence that during his childhood he took turns with his siblings to live at the deceased's house over weekends, when the siblings would often sleep in bed next to the deceased. He visited the deceased after school four or five times per week on average. When Joel returned from Israel in 2007, he moved in to the deceased's home for approximately a year, and returned to her house when he returned again in 2011 from religious studies overseas to live there until she passed away.

148. Joel said that one reason for his living with his grandmother was that Jeanette never cooked and both he and Alexander grew up eating instant food. The only real home-cooked food that they enjoyed was food made by the deceased for them. Joel said that his parents' home was in what he described as a terrible condition. The deceased agreed to allow Joel to move into the downstairs granny flat. Joel said that he ate almost every meal at the table with the deceased during this period. Joel continued living with the deceased until the day she died.

149. In cross-examination, Joel maintained that he used to live with the deceased in her home and he did not just visit her. He said at [T 314.50]: "No, it wasn't a sleepover, I lived with her, it was my home, and I had problems with mum, I ran to grandma." He did not just stay in the granny flat downstairs. He was upstairs every day using the kitchen and bathroom: [T 316.40-45]. Joel said he could not move back to his parents’ home as it involved "sleeping on a couch and eating food infested with cockroaches": [T 321.25].

150. Joel said that as a child he was dependent on the deceased to provide finance for matters that his parents were unable to afford, as follows:

• Costs of private school kindergarten and 12 years of private school education at Moriah College at a cost of approximately $10,000-$15,000 per annum.

• Costs of occupational therapy and speech therapy at school throughout kindergarten for nine years at a cost of approximately $2,000 per annum.

• Costs of weekly English coaching at the family home throughout primary and high school for nine years at a cost of approximately $2,000 per annum.

• Costs of weekly mathematics coaching at the family home throughout primary and high school for nine years at a cost of approximately $2,000 per annum.

• Costs of weekly piano tutoring at the family home for three years at a cost of approximately $1,500 per annum.

• New clothing and shoes to the value of approximately $500 per annum.

• Approximately once a week the deceased took Joel and his brother on outings, for example, the movies, live shows, fairs and other day trips.

• Almost every day the deceased picked Joel up from school and fed and looked after him until his parents picked him up.

• The deceased regularly gave Joel and Alexander spending money on birthdays, holidays and weekends.

• When Joel turned 13 years old, the deceased paid for his Bar Mitzvah at an estimated cost of $12,000-$15,000.

• The deceased paid for Joel's healthcare premiums for his whole life.

• The deceased also paid for school holidays, sports camps and gym membership and provided bus passes for Joel and Alexander.

• The deceased also assisted Joel in paying off his credit cards, usually in amounts of $100-$200 at a time. The deceased also provided Joel with money in periods when he was in Israel.

151. Alexander unsurprisingly gave similar evidence given his equal treatment by the deceased. When he was in preparatory and primary school he took turns with Joel living with the deceased over the weekends, when he slept in bed next to her. At about the age of 14 or 15 years, the deceased gave Alexander Laurence's old room, and Alexander has since lived in the deceased's home on a weekly basis, only spending some weekends at home with his parents. Alexander would sit next to the deceased at every meal. Alexander moved into the deceased's home full-time when he was 14. He said that he was "having issues at home with my parents and they effectively threw me out."

152. While Alexander was at school, the deceased would give him money to buy lunch at school every day, which Alexander believed amounted to approximately $1,000 per annum. The deceased would take Alexander to the supermarket to make sure that she was getting healthy food for him that he would actually eat. Because of Alexander's health condition he was a selective eater. The deceased bought Alexander bus tickets every week until he stopped needing public transport for school and college. In 2007, the deceased gave Alexander money to purchase a second-hand Holden Commodore for his 21st birthday. The deceased gave Alexander and his brother birthday money of approximately $500-$1,000 when they were younger, and approximately $200 when they were in their teens. The deceased also paid for Alexander's Bar Mitzvah when he turned 13.

153. Alexander said that the deceased arranged for Alexander to get the best medical and rehabilitation treatments and support.

154. As did Joel, Alexander provided a specific list of financial aid provided to him by the deceased, as follows:

• Costs of private school kindergarten and 12 years of private school education at approximately $10,000-$15,000 per annum.

• Costs of Alexander's further education, including but not limited to 2 and a half years at an expensive private college at approximately $9,000-$12,000 per annum.

• Costs of school tutoring and music lessons from grades 4-10 at approximately $2,000 per annum.

• Costs of music/piano lessons weekly at the family home from ages 8 to 16 at approximately $1,500 per annum.

• Costs of swimming squad for four years at approximately $200 per annum.

• Costs of private swimming lessons at the deceased's home by a private coach over two annual seasons at approximately $1,300 per season.

• The deceased spent approximately $800 per annum on clothes and shoes for Alexander.

• The deceased took Alexander and his brother on various outings, including movies, live shows, fairs and other trips at least once a week.

• The deceased picked up Alexander and his brother from prep school almost every day and would provide dinner to them.

• When Alexander was younger, and up until the age of about 23, the deceased used to buy him a book at least every two weeks.

155. Significantly, Alexander said in his affidavit:

42. When I was about 20 or 21, I remember her promising my brother and I a unit in a block of flats she owned across the road. I recall her saying words to the effect of, "I don't want my grandchildren to ever have to worry about having a roof over their heads. You should only focus on your health. Your parents will one day be living in my house, just down the road from the children."

156. Joel's and Alexander's sister, Karly, confirmed in cross-examination at [T 363.20] that her brothers were "living with grandma. They lived with grandma on and off, and most of my childhood and my grown life". She described the deceased as a second parent to her grandchildren and that her home was their second home: [T 363.40].

157. I would not expect Joel and Alexander to now be able to provide evidence in specific detail of the respective periods when they lived in the deceased’s house as compared to other places, and I am satisfied that their evidence broadly reflects the true position that they lived in her house as their home for substantial, relatively unbroken periods during their adulthood.

158. I am satisfied for the purposes of s 57(1)(e)(i) of the Succession Act that, for most of their lives while the deceased was alive, both Joel and Alexander were partly dependent on the deceased, who provided to them a substantial level of accommodation and financial and emotional support, for much of the time largely eclipsing the support provided by their parents.

159. I am also satisfied for the purposes of s 57(1)(f) of the Succession Act that both Joel and Alexander were living in a close personal relationship with the deceased at the time of her death.

160. The evidence clearly satisfies me for the purposes of s 59(1)(b) of the Succession Act that there are factors which warrant the making of the application for further family provision by both Joel and Alexander. I accept that the deceased encouraged both of her grandsons to believe that they would, on her death, receive a share in No 102 Balfour Street that would entitle them to a unit so that they would have an independent home. The relationship between the deceased and her grandsons, as appears from the evidence summarised above, was such that they were natural objects of testamentary recognition by the deceased at the time of her death. The gift included by the deceased in the second typewritten draft will in 2008 in favour of her grandchildren speaks eloquently of the truth of the proposition that the deceased herself recognised Joel and Alexander as being objects of testamentary recognition by her. That conclusion is reinforced by the fact that the deceased included a gift in favour of her grandchildren in the December 1997 will that has been admitted to probate that was only ineffective because it has been adeemed as a result of the deceased’s need to sell the property to provide a fund for her living expenses.

Whether adequate provision made for Joel and Alexander

161. The deceased had a testamentary intention at the time the second typewritten draft will was prepared to provide one quarter of No 102 Balfour Road to each of Joel and Alexander, and there is no evidence that she ever abandoned that intention. I am satisfied that Joel and Alexander have established for the purposes of s 59(1)(c) of the Succession Act that, at the present time, adequate provision for the proper maintenance, education or advancement in life of both brothers has not been made in the will of the deceased. That flows from the fact that the provision for those claimants in the December 1997 will was adeemed when the property the subject of the gift to them was sold by the deceased. The evidence that I have outlined above concerning the medical, psychological and material circumstances of both Joel and Alexander satisfy me that, in the circumstances, the absence of any effective provision for them in the December 1997 will has had the result that the provision was not adequate. Although the community would ordinarily expect Joel's and Alexander's parents to take primary responsibility for the proper maintenance, education or advancement in life of their sons, I am satisfied that, in the special circumstances of the present case, the community would also expect the deceased to make some appropriate provision for her grandsons. Although both applicants have a prospect of receiving a significant inheritance from their parents in due course, that will hopefully be many years in the future. In the meantime, Joel and Alexander have a strong call on their grandmother's testamentary beneficence. That is a call which the deceased apparently recognised, although, for reasons that are lost to history, she failed to put her testamentary intentions into effect.

162. In being satisfied that Joel and Alexander have satisfied the jurisdictional requirement for the Court to be empowered to make orders for further family provision in their favour, I have had regard to the circumstances that Jeanette is entitled to the assets that I have discussed above, that their sisters have not joined in making a claim for further family provision even though they have received nothing under the deceased’s December 1997 will, and Laurence has not put his circumstances in issue in a context in which the evidence justifies the Court in forming a broad view that Laurence is reasonably wealthy and not significantly dependent for his financial well-being on the receipt of the gifts made in his favour in the December 1997 will.

163. In Bassett v Bassett, the Court of Appeal said:

[97] In a recent decision, Hallen J has emphasised the importance of counsel for the claimant in a family provision case being in a position to assist the Court with an identification of what provision is being sought: Limberger v Limberger [2021] NSWSC 474 at [66] (Limberger). This is a matter to which legal practitioners conducting family provision claims should have given consideration even before proceedings have commenced, and a meaningful response (even if expressed approximately or within a range) is important not only to assist the Court in its determination but also as a matter of fairness to other parties whose own interests could be affected by the making of an order in a particular amount, or an order structured in a particular way. As Hallen J explained in Limberger at [66(d)–(e)]:

“(d) The Court is able to then enquire how the estimate of quantum of the provision stated has been reached, and ventilate the features identified that are relied upon in reaching that quantum. In so doing, the Court is able to consider different processes of reasoning and come to properly understand the true force of the submissions on how the case should be decided. In addition, the Court may avoid what may be a wrong method of approach in determining what result should follow from the application of the provisions of the Act to the facts of the case.

(e) Whilst the range suggested by counsel does not bind any of the parties, or the Court, it enables the Court to consider whether any preliminary evaluative assessment of the nature and quantum of provision, is within, or outside, the parameters of the professional opinion of experienced counsel. It also enables the Court to consider whether, in reaching any preliminary assessment, there has been some misapplication of facts or of principle. It enables counsel to make submissions that will lead to the correction, or modification, of any preliminary assessment and enable the other party or other parties, during final submissions, to be heard in response to the submission on quantum”.

164. Section 59(1)(c) of the Succession Act creates a jurisdictional threshold that depends upon the Court being satisfied of a matter that the applicant for a family provision order has the burden to establish. In a particular case, proof that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made may necessitate reasonably specific evidence from the applicant that explains what the relevant needs of the applicant are and why the present resources available to the applicant are not sufficient to meet those needs. That may require the applicant to engage with the question of why the applicant’s needs cannot be met by the available resources, having regard to how those resources may be utilised. That exercise may require a sufficient level of detail measured in money terms. Similarly, when the Court comes to consider what order for further family provision should be made in favour of the applicant, the proper exercise of the Court’s discretion may require evidence in detail of the applicant’s needs and the costs of satisfying those needs. Absent that evidence, the Court may not be able to perform its duties properly, particularly when satisfaction of the proper needs of the applicant will have the effect of reducing the capacity of a limited estate to satisfy the proper needs of other parties having a good call on the deceased’s beneficence.

165. Consequently, applicants for family provision orders take a forensic risk when they do not provide this evidence in reasonable detail. I mention this issue because neither Joel nor Alexander provided detailed evidence of their ongoing needs or estimates of the costs of satisfying those needs. In the particular circumstances of the claims made by Joel and Alexander, I have not found this absence to be an impediment to the Court being satisfied that Joel and Alexander have established the jurisdictional requirement in s 59(1)(c). That is because of the obviousness of their respective needs in relation to their medical conditions and disabilities, and their relatively limited income earning capacities and access to capital. Having regard to the expressed testamentary intentions of the deceased, the amount that could reasonably be made the subject of family provision orders in favour of each applicant will not be sufficient of itself to make adequate provision for their proper maintenance for the balance of their lives, or even until they receive inheritances from their parents. In these circumstances, the Court has been able to satisfy itself that it has jurisdiction without the need to be able to make relatively precise judgments concerning needs and the cost of satisfying those needs.

Further provision for Joel and Alexander

166. At the centre of debate in this case has been the significance of the evidence of the deceased’s testamentary intentions, being a factor in the Court’s consideration made relevant by s 60(2)(j) of the Succession Act. This is an unusual case because, as explained above, the gift that the deceased made in favour of her grandchildren in the December 1997 will that has been admitted to probate has failed by ademption and the deceased’s attempt to rectify the consequences by making a new will substantially in the terms of the second typewritten draft will in 2008 failed for reasons that cannot be discerned. Yet the solicitor who prepared the second typewritten draft clearly remembered that the deceased firmly intended to order her testamentary affairs substantially in accordance with the second typewritten draft. There is no evidence at all that the deceased ever changed her testamentary intentions. There was evidence recorded in Weisbord (No 1) that the deceased believed that she had effectually implemented her testamentary intentions. As has been explained above, both I in Weisbord (No 1) and the Court of Appeal in the Appeal Decision found that Laurence had correctly conceded that the second typewritten draft recorded the true testamentary intentions of the deceased, at least in respect of her intended gift to her grandchildren.

167. In these circumstances, I consider that it will be proper for the Court in the exercise of its discretion under s 59(2) of the Succession Act to give exceptional force to the evidence of the deceased’s testamentary intentions. The deceased was the best judge of how to dispose of her testamentary bounty and it is clear that she exercised care in deciding to correct the consequences of her sale of the property that was the subject of the gift to her grandchildren in her December 1997 will.

168. In this case, the prominence that should be given to the deceased’s testamentary intentions is not to any significant degree diluted by a consideration of the other factors made relevant by s 60(2) of the Succession Act. Although Jeanette makes the claim that will be considered below, she has assets valued at $8.6-$8.8 million. Laurence resists the application made by Joel and Alexander but has not put forward circumstances that permit the Court to properly weigh his claim for adequate provision for his proper maintenance, education or advancement in life by the will of the deceased against the claims made by Joel and Alexander. The granddaughters of the deceased have not made a claim. Consequently, there is little evidentiary barrier to the factors made relevant by s 60(2)(a), (b), (d) and (f) of the Succession Act, and which have generally been considered above, reinforcing the significance of the evidence of the deceased’s testamentary intentions.

169. If the deceased had succeeded in leaving a will that contained the proposed gift to the grandchildren in the second typewritten draft, the four grandchildren would have become entitled to equal shares in a property worth $5.1 million, so that each would have received $1.275 million. I do not think that it would be appropriate for the Court to make an order for further provision in favour of Joel and Alexander that gave them the same outcome as if the deceased had succeeded in making a formally valid will that had that effect. However, in this case, I consider that only a small discount is necessary to allow for uncertainties that arise in respect of the deceased’s failure to have executed a valid will embodying her apparent testamentary intentions. All other things being equal, I would have made an order in the exercise of my discretion that a lump sum legacy of $1.0 million be paid to each of Joel and Alexander out of the deceased’s estate. That legacy would represent 80% of the gift that those applicants would have received under a validly executed will in the terms of the second typewritten draft will.

170. However, as I have explained above, I decided in Weisbord (No 3) that the Court should not permit Laurence to reopen the evidence to introduce new issues concerning the need of Joel and Alexander for further family provision after the Court reserved judgment at the primary hearing. Notwithstanding that position, the Court cannot ignore the consequences of the costs of the proceedings being paid out of the deceased’s estate, particularly as the amount of some of those costs is not known to the Court. Further, the Court has no evidence of changes in values of the estate’s properties since judgment was reserved on 12 April 2018. The amount of the legacy that should be paid to Joel and Alexander may decrease to the extent that they should bear a share of the burden of the costs to be paid out of the estate. The amount of the legacy may increase in response to increases in the value of the properties in the estate, particularly No 102 Balfour Road. If the Court were simply to order now that legacies of $1.0 million be paid to each applicant, the Court might in ignorance of relevant circumstances impose unfairness on the applicants or other beneficiaries.

171. In the circumstances, I will publish these reasons for judgment and invite Joel and Alexander on the one hand and Laurence on the other to provide brief written submissions as to whether the Court should vary its stated intention to order that legacies of $1.0 million be paid to each of Joel and Alexander, and, if so, what the nature of that variation should be. The variation that I contemplate will be limited to some rational and fair proportional adjustment from the starting position of $1.0 million to reflect the effect of the payment of costs on the estate as a whole and possible increases in the value of relevant properties. I appreciate that some evidence as to the costs incurred, the effect of payment of costs on the estate, and the value of relevant properties may be necessary. I presently do not intend to entertain a further contentious hearing and I propose in the first instance to attempt to determine the final amount of the legacies on the basis of brief written submissions and limited evidence on the papers. I will, however, entertain submissions as to why this proposed course is not appropriate. Given the date when this judgment will be delivered, I will not expect that my Associate will receive the further information referred to in the preceding paragraph until 30 January 2023.

Whether adequate provision made for Jeannette

172. The determination of Jeanette's claim for further family provision must start with the jurisdictional requirement in s 59(1)(c) of the Succession Act, which has the effect that the Court cannot make an order for further family provision in favour of Jeanette unless it is first satisfied that, at the present time, adequate provision for the proper maintenance, education or advancement in life of Jeanette has not been made by the deceased's will.

173. The framework in which that jurisdictional requirement must be satisfied is that the Court has evidence that the total value of the deceased's estate is $11,591,775 and the gift of 77 Balfour Road to Jeanette has a value of $4 million. I have found above in response to the applications of Joel and Alexander for further family provision that orders should be made in their favour for lump sum payments in the order of $2 million in total. After payment of those lump sums, the remaining value of the estate would be about $9.5 million.

174. As I recorded in Weisbord (No 2) at [70], the evidence then before the Court was that the plaintiffs' legal costs to that time were $1,444,171.40 (including GST). At [74], I recorded that Laurence's costs were $706,724 (including GST). The total was $2,150,895.40. The Court has no evidence as to the magnitude of the costs incurred by the parties after the hearing that led to the publication of Weisbord (No 2) or the costs of the appeal. The Court also has no information about the assessment process in relation to the parties' costs, and thus what final amount will have to be paid out of the estate for costs. The payment of the whole of the known costs out of the estate after satisfying the lump sums that will be payable to Joel and Alexander would leave about $7.5 million in the estate. That, of course, overstates the amount that will be available because no allowance has been made for the unknown costs.

175. On the assumptions just made, the $4 million gift of 77 Balfour Road represents over 50% of the estate of the deceased that remains available for distribution as between Jeanette and Laurence.

176. To the extent that the testamentary intention of the deceased as displayed in the second typewritten draft is relevant, the only additional gift in favour of Jeanette that the deceased intended to make over the effect of the December 1997 will was half of the residue, which is about $500,000. The residue of the estate should be the first part of the estate to be consumed by payment of the costs of the proceedings. It will be necessary for the specific gifts of property to beneficiaries to bear the balance of the costs. Further, it is probable that other presently unknown costs of the administration have been paid out of residue.

177. As I have already explained above, the nominal value of the property to which Jeanette would be entitled after she received 77 Balfour Road would be $8.6-$8.8 million, which is likely to be reduced by an amount that represents the share of the balance of the costs that will be met out of Jeanette's share of the estate.

178. Even though Jeanette has the psychological and behavioural difficulties that have been established by the evidence, which have the result that she has no significant earning capacity and does not have a cash fund, the value of the assets to which Jeanette will be entitled is sufficiently large, when measured against her essential needs, that there is no justification for making an order for substantial further family provision in her favour, given that any such provision will have to be satisfied out of the share of the estate to which Laurence is entitled under the December 1997 will. The Court should give due weight to the fact that it is the December 1997 will that has been admitted to probate, and that the major change to the deceased's testamentary intention that is evidenced by the second typewritten draft was the proposed gift of 102 Balfour Road to the deceased's grandchildren.

179. In these circumstances, I am not satisfied that Jeanette has established that adequate provision for her proper maintenance, education or advancement in life has not been made by the will of the deceased. Consequently, Jeanette has not satisfied the jurisdictional requirement to this Court making an order for further family provision in her favour.

180. I add that Jeanette did not provide any specific evidence concerning her needs for future maintenance or what the costs of the provision of that maintenance would be as is required by the extract from the judgment of the Court of Appeal in Bassett v Bassett that is set out above.

181. Jeanette also did not provide evidence that took into consideration her residential needs and then how her surplus assets could be realised in a way that would provide maintenance for her on a long-term basis. The absence of evidence of this nature may have less serious consequences for some family provision applications than is the case for Jeanette’s present claim. As Jeanette will have access to assets worth a number of millions of dollars, whichever home she chooses to live in, the complete absence of any evidence concerning the plans that she may have to utilise her existing assets has undermined her ability to establish that adequate provision has not been made for her proper maintenance. Not only has the Court not been able to find that adequate provision for proper maintenance has not been made, but any judicial contemplation of what additional provision might be justified would involve total guesswork on the part of the Court.

Orders

182. I will not be able to make orders on the claims made by Joel and Alexander until the process explained at [171] has been completed.

183. An order will be made that Jeanette's application for further family provision is dismissed.

184. As to the costs of the proceedings, it is my understanding, as explained above, that most, if not all, of the costs of these proceedings and the probate proceedings are already the subject of the costs orders made by me and the Court of Appeal and that those orders remain valid and in effect. It will be appropriate, however, to give the parties an opportunity to make brief submissions on the issue of costs to ensure that my understanding of the position is correct. Given the time at which these reasons for judgment will be published, I will give the parties until 30 January 2023 to deliver submissions limited to 3 pages to my Associate.

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Decision last updated: 16 December 2022