Wild v Meduri & Ors; Meduri & Anor v Neal & Anor; Meduri v Meduri & Ors

[2023] NSWSC 113

Supreme Court

New South Wales

Medium Neutral Citation:

Wild v Meduri & Ors; Meduri & Anor v Neal & Anor; Meduri v Meduri & Ors [2023] NSWSC 113

Hearing dates:

1, 2, 3, 8, 9, 10, 21 November, 6, 7, 8, 13 December 2022

Date of orders:

23 February 2023

Decision date:

23 February 2023

Jurisdiction:

Equity

Before:

Hallen J

Decision:

The parties shall be given the opportunity to consider these reasons. During the period between the delivery of the reasons, consideration should also be given to the issue of costs and if that issue cannot be resolved how best to proceed with the determination of that issue in accordance with s 56 of the Civil Procedure Act.

During that period also, the parties should consider the form of orders, other than any orders for costs, so that upon the return date, the duration of any costs hearing, and any other procedural, or other, disputes that then exist may be determined.

Each of the proceedings will be adjourned to a date to be agreed by the parties, and convenient to the Court, when these reasons are published, solely for the purpose of determining how much additional time will be required and to enable the parties to agree upon the orders to be made (other than any orders for costs).

Catchwords:

CIVIL PROCEDURE — Hearings — Three separate proceedings, each seeking different relief and involving the same estate — Agreement by parties that all proceedings should be heard consecutively, with the evidence in one being evidence in the other — Uniform Civil Procedure Rules 2005 (NSW) r 28.5 — Proceedings involve “a common question” and otherwise “desirable to make an order” under the rule — Order that proceedings be heard consecutively

LEGAL PRACTITIONERS — Undesirability of solicitor acting for a party when he, or she, is a material witness in proceedings — Question whether risk posed to the administration of justice when solicitor formerly on record is also a witness — Need to protect the administration of justice

SUCCESSION — Contested probate — Lack of testamentary capacity and lack of knowledge and approval asserted — Suspicious circumstances — Application of the test in Banks v Goodfellow —Consideration of evidence of the solicitor to whom instructions given — No contemporaneous file notes available due to destruction of the Will file after 7 years

ESTOPPEL — Equitable estoppel – estoppel by encouragement – estoppel by acquiescence – Requirements – Family relationship – Sons expend capital renovating property – Quantum of capital expenditure on renovations unsubstantiated by documentary evidence of expenditure – Sons claim to have done so upon representations by parents, both since deceased, that they would become sole owners of property – Sons reside on the property between 1989 and the date of death in 2020 and thereafter – Onus of proof on sons to prove reliance – Whether deceased aware of intended reliance – Whether Court satisfied that any promise or assurance to give property to sons made – Whether detrimental reliance established

EVIDENCE – Principles requiring caution when relying on uncorroborated statements said to have been made by deceased person – Father and mother both deceased prior to commencement of proceedings – No contemporaneous or near contemporaneous documents – Credibility of each son’s evidence when events alleged to have taken place many years before claim made – Property held by father and mother as joint tenants and passes to mother by survivorship – Will made by mother devises property to the sons –

Challenge to validity of mother’s Will – Will made by father provides substitutionary devise of property to sons

SUCCESSION — Claims for family provision order under the Succession Act 2006 (NSW), Ch 3 — Claim by adult sons of the deceased — Whether adequate and proper provision not made in the Will of the deceased for each applicant and, if so, the nature and quantum of the provision to be made for him, respectively

Legislation Cited:

Births, Deaths and Marriages Registration Act 1995 (NSW) s 49(2)

Civil Procedure Act 2005 (NSW) ss 3, 56

Evidence Act 1995 (NSW) s 140(2)

Family Provision Act 1982 (NSW) s 16

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 r 27

Probate and Administration Act 1898 (NSW) ss 84A(3), 86

Succession Act 2006 (NSW) Pt 3.3, ss 3(1), 6, 57, 58, 59, 60, 61(1), 63(5), 72(1), 84, 88, 89, 99, 127

Supreme Court Rules 1970 (NSW) r 78.66

Uniform Civil Procedure Rules 2005 (NSW) Sch 7, r 28.5, 31.18, 33.12

Cases Cited:

Alexander v Jansson [2010] NSWCA 176

Anderson v Teboneras [1990] VR 527

Andrew v Andrew (2012) 81 NSWLR 656; [2021] NSWCA 308

Annason v Phillips (Supreme Court (NSW), Young J, 4 March 1988, unrep)

Armagas Ltd v Mundogas SA (The “Ocean Frost”) [1985] 1 Lloyd’s Rep 1

Ashkettle v Gwinnett [2013] EWHC 2125 (Ch)

Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12

Ashton v Pratt (No 2) [2012] NSWSC 3

Australian Securities and Investments Commission (ASIC) v Hellicar (2012) 247 CLR 345; [2012] HCA 17

Azzopardi v Smart (The Estate of Alice Ann Smart) (1992) 27 NSWLR 232

Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21

Baker v Dening (1838) 8 Ad & El 94

Ballard v Multiplex [2012] NSWSC 426

Banks v Goodfellow (1870) LR 5 QB 549

Beatson v Perry (1906) 6 SR (NSW) 167

Benz v Armstrong [2022] NSWSC 534

Blendell v Blendell [2020] NSWCA 154

Blendell v Byrne; Estate of Noeline Joan Blendell [2019] NSWSC 583

Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49

Bolinger v Bell (No 2) [2022] NSWSC 1495

Bowers v Bowers [2020] NSWSC 109

Brown v NSW Trustee and Guardian [2012] NSWCA 431

Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748

Carey v Robson (No 2) [2009] NSWSC 1199

Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65

Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222

Chant v Curcuruto; Chant v Curcuruto [2021] NSWSC 751

Chisak v Presot [2021] NSWSC 597

Chisak v Presot [2022] NSWCA 100

Clarke v Clarke [2022] NSWSC 1721

Clay v Karlson (1997) 17 WAR 493

Connor v Blacktown District Hospital [1971] 1 NSWLR 713

Daniel v Athans [2022] NSWSC 1712

Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235

Diver v Neal [2009] NSWCA 54

Doulaveras v Daher (2009) 253 ALR 627; [2009] NSWCA 58

Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218

Elayoubi v Zipser [2008] NSWCA 335

Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786

Estate of Radziszewski (1982) 29 SASR 256

ET-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24

Evans v Braddock [2015] NSWSC 249

Evans v Evans [2010] NSWSC 170

Flourentzou v Spink [2019] NSWCA 315

Foley v Ellis [2008] NSWCA 288

Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195

Fulton v Fulton [2014] NSWSC 619

Georgopoulos v Tsiokanis [2022] NSWSC 563

Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm)

Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430

Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10

Gooley v NSW Rural Assistance Authority (No 3) [2019] NSWSC 1314

Gould v Gould [2005] NSWSC 914

Gregory v Phillip Morris Ltd (1987) 74 ALR 300

Grey v Harrison [1997] 2 VR 359

Gulic v Boral Transport Ltd [2016] NSWCA 269

Harkness v Harkness (No 2) [2012] NSWSC 35

Hawes v Burgess [2013] EWCA Civ 74

Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160

Humphreys v Newport Quays Stage 2A Pty Ltd [2009] FCA 699

In Re Male [1934] VLR 318

In the Estate of Muirhead, Deceased [1971] P 263

In the Estate of Robin Michael (Deceased) (2016) 126 SASR 299; [2016] SASC 164

In the matter of Colorado Products Pty Ltd (in prov liq) (2014) 101 ACSR 233; [2014] NSWSC 789

In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547

Jeffrey v Associated National Insurance Co Ltd [1984] 1 Qd R 238

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

Kenny v Wilson (1911) 11 SR (NSW) 460

Kensey (bht NSW Trustee and Guardian) v Thomas [2011] NSWSC 1434

Kogan v Martin [2019] EWCA Civ 1645

Lachaux v Lachaux [2017] 4 WLR 57; [2017] EWHC 385 (Fam)

Legal Services Board v Forster (2010) 29 VR 277; [2010] VSC 102

Lim v Lim [2022] NSWSC 454

Longman v R (1989) 168 CLR 79; [1989] HCA 60

Lowe v Lowe [2014] NSWSC 371

Lumb v McMillan [2007] NSWSC 386

Manning v Hughes; Estate of Ludewig [2010] NSWSC 226

Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150

Matthews v Wear [2011] NSWSC 1145

Mekhail v Hana; Mekail v Hana [2019] NSWCA 197

Milling v Hardie [2014] NSWCA 163

Moore v Aubusson [2020] NSWSC 1466

Morton v Copeland (1855) 16 CB 517

Nadilo v Souris [2019] NSWSC 108

Neale v Bank of Western Australia [2014] NSWSC 315

Neville v Lam (No 3) [2014] NSWSC 607

Newman v Brinkgreve; The Estate of Floris Verzijden [2013] NSWSC 371

Nguyen v Cosmopolitan Homes [2008] NSWCA 246

Nicholson v Knaggs [2009] VSC 64

No 1 Victoria Dragons Pty Ltd v AEN Developments Pty Ltd [2022] NSWSC 1345

Nominal Defendant v Saleh [2011] NSWCA 16

Nominal Defendant v Smith [2015] NSWCA 339

Onassis and Calegoropoulos v Vergottis [1968] 2 Lloyd’s Rep 403

O'Neill v Williams [2006] NSWSC 707

Page v Hull-Moody [2020] NSWSC 411

Papas v Co [2018] NSWSC 1404

Pates v Craig & Public Trustee (Estate of the late Joyce Jean Cole) (Supreme Court (NSW), Santow J, 28 August 1995, unrep)

Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275

Phelan v Melbourne Health [2019] VSCA 205

Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14

Plus One International Pty Ltd v Ching (No 3) [2020] NSWSC 1598

Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107

Q (a pseudonym) v E Co (a pseudonym) (2020) 383 ALR 469; [2020] NSWCA 220

Re Allen (deceased) [1922] NZLR 218

Re Crooks Estate; Akerman v Brown (Supreme Court (NSW), Young J, 14 December 1994, unrep)

Re Estate of Paul Francis Hodges Deceased; Shorter v Hodges (1988) 14 NSWLR 698

Re Estate Sue [2016] NSWSC 721

Re Salmon, Deceased [1981] Ch 167

Re Stojanovska; Stojevski v Stojevski [2020] VSC 702

Re Theodoulou [2018] VSC 601

Regina v Moore, ex parte Myers (1884) 10 VLR 322

Richardson v Armistead [2000] VSC 551

Robertson v Barker [2021] NSWSC 1682

Robertson v Byrne [2022] NSWSC 171

Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007

Saitannis v Katsolos [2022] NSWSC 1468

SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd (2017) 345 ALR 633; [2017] NSWCA 132

Sammut v Kleemann [2012] NSWSC 1030

Saravinovska v Saravinovski (No 6) [2016] NSWSC 964

Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219

Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19

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

Spink v Flourentzou [2019] NSWSC 256

Starr v Miller [2022] NSWCA 46

Starr v Miller; Starr v Miller [2021] NSWSC 426

State of Queensland v Masson (2020) 94 ALJR 785; [2020] HCA 28

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

Stern v Sekers; Sekers v Sekers [2010] NSWSC 59

Strang v Steiner [2019] NSWCA 143

Sun v Chapman [2022] NSWCA 132

The Estate of Milan Zlatevski; Geroska v Zlatevski [2020] NSWSC 250

The Estate of Yunupingu [2022] NTSC 4

The Queen v Silverstein [2020] VSCA 233

Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572

Timbury v Coffee (1941) 66 CLR 277; [1941] HCA 22

Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285

Van Dyke v Sidhu (2013) 301 ALR 769; [2013] NSWCA 198

Verzar v Verzar [2012] NSWSC 1380

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

Vinden v Vinden [1982] 1 NSWLR 618

Vukic v Grbin; Estate of Zvonko Grbin [2006] NSWSC 41

Wantagong Farms Pty Ltd as Trustee for the Bulle Family Trust v Bulle [2015] NSWSC 1603

Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123

Watson v Foxman (1995) 49 NSWLR 315

Webb v Ryan [2012] VSC 377

Wharton v Bancroft [2011] EWHC 3250 (Ch)

White v Barron (1980) 144 CLR 431; [1980] HCA 14

Xiang bht Cao v Tong [2021] NSWSC 44

Zahra v Francica [2009] NSWSC 1206

Texts Cited:

A Learmonth KC, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed, 2021, Sweet & Maxwell)

G E Dal Pont and K F Mackie, Law of Succession (2nd ed, 2018, LexisNexis Butterworths)

G E Dal Pont, Lawyers’ Professional Responsibility (7th ed, 2021, Lawbook Co)

P McClellan “Who Is Telling the Truth? Psychology, Common Sense and the Law” (2006) 80(10) ALJ 655

P W Young, C E Croft and M L Smith, On Equity (2009, Thomson Reuters)

Practice Note SC Eq 7

R Jennings KC and J C Harper, Jarman on Wills (8th ed, 1951, Street & Maxwell)

R Atherton, “The Concept of Moral Duty in the Law of Family Provision – a Gloss or Critical Understanding?” (1999) 5 Aust J Leg Hist 5

Category:

Principal judgment

Parties:

2020/239852:
Rose Marie Wild (Plaintiff)
Dominic Meduri (first Defendant)
John Meduri (second Defendant)
Richard John Neal (third Defendant)

2021/91132:
Dominic Meduri (first Plaintiff)
John Meduri (second Plaintiff)
Richard John Neal (first Defendant)
Rose Marie Wild (second Defendant)

2021/144417:
Joseph Meduri (Plaintiff)
Dominic Meduri (first Defendant)
John Meduri (second Defendant)
Richard John Neal (third Defendant)

Representation:

Counsel:
2020/239852:
Mr M Condon SC with Mr N Kirby (Plaintiff)
Ms J Needham SC with Mr A Joseph (first and second Defendants)
Mr C Tam (third Defendant)

2021/91132:
Ms J Needham SC with Mr A Joseph (first and second Plaintiffs)
Mr C Tam (first Defendant)
Mr M Condon SC with Mr N Kirby (second Defendant)

2021/144417:
Ms P Muscat (Plaintiff)
Ms J Needham SC with Mr A Joseph (first and second Defendants)
Mr C Tam (third Defendant)

Solicitors:
2020/239852:
McIntyre Legal (Plaintiff)
Puleo Lawyers (first and second Defendants)
Teece Hodgson and Ward (third Defendant)

2021/91132:
Puleo Lawyers (first and second Plaintiffs)
Teece Hodgson and Ward (first Defendant)
McIntyre Legal (second Defendant)

2021/144417:
NSW Trustee and Guardian (Plaintiff)
Puleo Lawyers (first and second Defendants)
Teece Hodgson and Ward (third Defendant)

File Number(s):

2020/239852
2021/91132
2021/144417

Publication restriction:

Nil

Judgment

Introduction

1. These reasons relate to three sad conjoined cases in which there appears to be a great deal of discord between some of the parties, who are family members. The antagonism appears to be deep, bitter, and, in all probability, reasonably longstanding. Combined with a disunited family member who considers that the testamentary intentions of a parent revealed by the Will subject to dispute are “unfair” (Tcpt, 9 November 2022, p 490(22-29)), it has led to the cases between adult children of the deceased being heard over 11 days and has caused the parties to incur substantial costs.

2. Pertinent to two of the proceedings is what I wrote in Fulton v Fulton [2014] NSWSC 619 at [1]:

“This is a sad and a regrettable case. It demonstrates, once again, that contentious proceedings involving an estate and family members, 'where the drama of the family rifts unfolds with all the ill-feelings, resentment and animosity between the protagonists climaxing on public display, are unavoidably destructive of what is left of the deceased's family. Win or lose, the family will most likely be torn further apart irretrievably': Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82, at [1].”

Overview

3. Elisabetta Meduri (who was also known as Elizabeth Meduri, Elisabetta Palmisano Meduri, which name was said by the Plaintiff to be her “legal name” by reference to her passport, and also Elizabeth Pelmisano Meduri on some documents: Affidavit, Rose Marie Wild, 22 October 2022 at par 5) (the deceased), died on 8 June 2020, leaving property, of reasonably large value, in New South Wales. She was, then, 98 years old.

4. The deceased left a professionally drawn Will dated 18 September 2009. One of the proceedings concerns the validity of this Will. Without prejudgment, I shall refer to the Will as “the 2009 Will”.

5. The deceased’s only husband, Giuseppe Meduri, predeceased her, having died on 26 July 2009. He is the father of the children to whom I shall next refer. The deceased did not marry, or enter into a de facto relationship with, any person, after the death of Giuseppe.

6. The deceased left surviving her six, now adult, children. They are Concetta (Connie), who was born in Italy in March 1950, and who is almost 73 years old; Rosa (Rose), who was born in Italy in September 1952, and who is currently 70 years old; Antonio (Tony), who was born in Italy 1954, and who is currently 68 years old; Dominico (Dominic), who was born in Australia in March 1961, and who is almost 62 years old; Giuseppe Jnr (Joseph), who was born in Australia in June 1962, and who is currently 60 years old; and Giovanni (John), who was born in Australia in January 1967, and who is currently 55 years old.

7. Four of these children are parties to one, or other, of the proceedings. These children are Rose Marie Wild, the Plaintiff in the proceedings (2020/239852), to which I shall refer as “the Probate proceedings”; Dominic Meduri (who is sometimes referred to as “Mick”) and John Meduri, who are the Plaintiffs in the associated proceedings (2021/91132), to which I shall refer as “the trust proceedings” (even though other relief is sought); and Joseph Meduri, the Plaintiff in the associated proceedings (2021/144417), to which I shall refer as “Joseph’s proceedings”, in which he makes a claim for a family provision order under the Succession Act 2006 (NSW) (“the Act”). I shall return to the nature of the relief sought in the different proceedings later in these reasons.

8. The two other children of the deceased are Connie Di Maria and Tony Meduri, who, whilst not parties to any of the proceedings, were both to be witnesses in one, or more, of them. Each had sworn affidavits that had been filed and served. However, only Tony’s affidavits were read, and only he was cross-examined.

9. It became apparent, at the commencement of the hearing, that Connie’s affidavits were not being read, and that she was unlikely to be called as a witness in the proceedings. No reasons for not reading her evidence were expressly given.

10. A subpoena to attend and to give evidence, issued and served by Rose, did not result in Connie appearing, and no steps were taken, subsequently, to ensure her attendance to give evidence or to be cross-examined.

11. David Jamie Di Maria, who is Connie’s son, and who had made an affidavit that had been served by Rose in the Probate proceedings, also was not a witness whose affidavit, initially, was read: Tcpt, 1 November 2022, p 58(46-50). At the commencement of the hearing, senior counsel for Rose made an application for leave to issue a subpoena to attend and to give evidence upon David, which leave was granted without opposition: Tcpt, 1 November 2022, p 12(41)-13(49). The subpoena was to be returnable on 10 November 2022.

12. An affidavit of a licensed process server, Clinton Portors, sworn on 8 November 2022, confirms that the subpoena was served upon David on 3 November 2022. However, this did not result in David appearing.

13. On the sixth day of the hearing, upon application by Rose, David’s affidavit, sworn 23 May 2021, after objections were made, was read. Submissions were made going to the weight that should be attributed to the affidavit: Tcpt, 10 November 2022, p 579(46)-580(11).

14. I shall return to the consequences, if any, of the failure to call Connie, and the weight to be given to David’s evidence, later in these reasons.

15. Without intending to convey undue familiarity, and for the sake of clarity, simplicity and convenience, I shall refer, hereafter, to the children of the deceased and other family members, after introduction, by her, or his, Anglicized first name.

16. By orders made, consensually, and entered on 26 March 2021, by Ward CJ in Eq (as the President of the Court of Appeal then was), the Court appointed Mr R J Neal, an extremely experienced solicitor in succession matters, as the interim administrator pendente lite and receiver of the estate of the deceased, with the powers identified in the Short Minutes of Order, in accordance with which her Honour made the orders and notations. A copy of the orders was included in the master bundle of documents provided to the Court and marked Ex. MB1 (Ex. MB1/440). A notice of motion, filed by Rose on 18 December 2020, was otherwise dismissed. It is not necessary to repeat the orders that were otherwise made, or to identify the powers given to Mr Neal.

3. No complaints were made about Mr Neal’s conduct as the interim administrator of the deceased’s estate, and it is clear, from evidence tendered, that he has kept the parties regularly informed of the steps he has taken in the course of the administration. A copy of a number of different written reports, from Mr Neal, were included, amongst other documents, in Ex. MB1, each of which identifies, amongst other things, the state of his investigations. The last report, in evidence, was the Interim Administrator’s Revised Report No. 17 dated 12 September 2022.

4. It is not necessary to refer to the contents of any of the Interim Administrator’s Reports. However, included in the information provided by Mr Neal was that he had caused to be lodged 11 outstanding tax returns on behalf of the deceased for the period from 1 July 2009 to her date of death on 8 June 2020 and that the tax payable for that period was $10,860, which amount he had paid from funds held in the estate: Ex. MB1/556-567.

5. Mr Neal was not, initially, a party in the Probate proceedings, but on the fifth day of the hearing, without opposition, an order was made that he be added as a party/Defendant. The Court dispensed with any requirement to file and serve an amended Statement of Claim and Cross Claim. The Defendants named in the Probate proceedings are now Dominic, John and Mr Neal.

6. In the trust proceedings, Mr Neal is the first Defendant and Rose is the second Defendant. (Mr Neal became a party to the proceedings in order to represent the estate of the deceased, whilst Rose was named as the second Defendant “in order that she be bound by the outcome of the proceedings”). She did not object to her joinder as a party necessary to the determination of all matters in dispute in these proceedings. Indeed, she was the party, effectively, conducting the defence of those proceedings.

7. Joseph suffers from chronic schizophrenia and co-morbid global cognitive impairment. His estate is under the management of the NSW Trustee and Guardian (to which I shall hereafter refer as the NSWT&G). He is a person under a legal incapacity: s 3 of the Civil Procedure Act 2005 (NSW). The NSW Civil and Administrative Tribunal made the financial management order, committing his estate to the NSWT&G on 22 July 2019: Ex. MB1/343-346. The order was reviewed on 20 January 2020 and the Tribunal determined that it “was not a matter where [it] should direct that the order be reviewed within a specified period” leaving it “for consideration at some time in the future should [Joseph’s] life circumstances settle again. An interested person may apply for a review of the order if appropriate”: Ex. MB1/374.

8. In Joseph’s proceedings, Dominic and John are named as the first and second Defendants, whilst Mr Neal is named as the third Defendant. As will be read, these proceedings were not the subject of real contest between the parties, and his legal representatives, whilst appearing at different times, played only a small part during the hearing.

9. On 8 December 2022, Ms P J Muscat, counsel for Joseph, forwarded to the Court alternative forms of order in Joseph’s proceedings. No specific agreement had been reached as to which of the alternatives provided “adequate and proper” provision in all the circumstances, although none of the parties affected by the making of orders in Joseph’s proceedings disputed that one, or other, form of provision, at the time the Court was considering the application, was appropriate. The more significant area of dispute was the part, or parts, of the estate out of which the provision is to be provided.

10. On 3 February 2023, whilst judgement was reserved, Joseph’s legal representatives, without opposition, sent to the Court, a document headed “Memorandum - Resolution of Plaintiff’s Case” which provided the way in which the parties had agreed to resolve Joseph’s proceedings depending on how the Court determined the Probate proceedings and the trust proceedings. It will be necessary to refer to this document later in these reasons, although it is to be remembered that in a claim for a family provision order the role of the Court is to consider the terms of the proposed orders with the Court to be satisfied, on the evidence available before it, that such an order for provision is one that ought to be made. This, of course, involves a consideration of whether adequate provision has been made to the applicant. Without such a consideration, the Court does not have jurisdiction to make an order: Daley v Donaldson [2021] NSWSC 1507; upheld on appeal in Daley v Donaldson [2022] NSWCA 96.

The way in which the hearing proceeded

25. As often occurs where there are different Plaintiffs, in separate proceedings, making different Probate claims, or where there are other claims brought against the same estate, the parties here, well before the commencement of the hearing, agreed that the proceedings should be heard consecutively, with the evidence in one being evidence in the other, so far as material. No notice of motion seeking orders to that effect was filed, but in the circumstances, that was unnecessary.

26. In my view, the approach was sensible, practical, purposive, and an appropriate one, as there were unlikely to be any difficulties in terms of trial management, the complexity of procedural issues, or in determining the cross-admissibility of evidence. In addition, there were common lay witnesses; factual, and credit, issues that overlap, that were, or that may have been, relevant to the claims, to be determined, thereby avoiding the unsatisfactory prospect of judgments with conflicting findings on the same issues and the possibility of different appeals, with potential delays, if the proceedings were not heard and determined at the same time. In addition, the just, cheap and quick hearing of all of the matters in dispute would be facilitated with the most efficient and expedient use of resources, for the parties, and, by implication, the Court. There were no compensating advantages to be derived from taking a different course.

27. Whilst there would not necessarily be a substantial saving of time if the proceedings were tried separately, hearing them together did not add to the total length of the hearing: Humphreys v Newport Quays Stage 2A Pty Ltd [2009] FCA 699 at [11] (Besanko J); Bolinger v Bell (No 2) [2022] NSWSC 1495 at [206].

28. Additionally, by agreement of the parties, and in order to save costs, Joseph’s proceedings were left discrete, in the sense that his legal representatives appeared as, and when, required rather than throughout the hearing. None of the evidence filed and served in his case was challenged and it was read without objection. None of the deponents were cross-examined. It was only necessary for submissions to be made, and this, in the events that happened, was done in writing.

29. For all of these reasons, it was “desirable” to make such an order: Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 28.5. Shortly after the commencement of the hearing, with the consent of the parties, and in the exercise of the Court’s discretion, I made an order to that effect: Tcpt, 1 November 2022, p 3(29-43).

30. It is also convenient to deal with the proceedings together, in these reasons for judgment, although I shall differentiate between them where necessary. It is the nature of the different proceedings, the vast amount of evidence, written and oral, and the submissions, oral and in writing, that has resulted in these extremely lengthy reasons for judgment.

31. Naturally, it has not been possible to refer to all of the evidence and to indicate which of it is accepted or rejected, or to outline all of the submissions, oral and written. It should not be thought, merely because a specific reference is not made to particular evidence, or to a particular submission, that it has not been considered.

Representation

32. At the hearing, Mr M Condon SC, with Mr N Kirby of counsel (on some days), instructed by Ms A J McIntyre, solicitor, of McIntyre Legal, appeared for Rose; Ms J Needham SC, with Mr A Joseph of counsel, instructed by Mr M Puleo, solicitor, of Puleo Lawyers, appeared for Dominic and John. Ms Muscat, instructed by Ms S Macmillan, solicitor, of the NSW Trustee and Guardian, appeared, when considered necessary, for Joseph. Mr C Tam of counsel, instructed, in Court, by Ms S Wynne, solicitor, of Teece Hodgson & Ward, appeared for Mr Neal, when considered necessary.

33. (I shall refer to Mr Matthew Puleo as Mr Puleo Jnr to differentiate him from his father, Mr John Joseph Puleo (to whom I shall refer as Mr Puleo), who is a witness in the Probate proceedings, being the solicitor who took instructions for, who prepared the 2009 Will, and who was one of the attesting witnesses to the deceased’s signature, by her mark, on that Will.)

34. The legal representatives provided the Court with comprehensive, and extremely detailed, written submissions and schedules that summarised the affidavit evidence, the medical records, and the legal principles. They engaged in a careful evaluation of the scope and nature of the facts in issue which I have carefully considered.

35. I am indebted to all of the legal representatives for their, her, and his, work in enabling the proceedings, and the hearing, to be dealt with in the way that they were, and it was. I am most grateful for the assistance provided by them.

36. It was also refreshing to observe that, despite any disharmony that may have existed between family members, and the trenchant opposition to Dominic’s and John’s claims by Rose, the legal representatives of the parties were able to co-operate with each other, and with the Court, in complying with the obligations imposed under s 56 of the Civil Procedure Act 2005 (NSW). At no stage did the dynamics of the trial deteriorate. Indeed, until its conclusion, counsel and solicitors maintained a level of courtesy and co-operation, with each other, that is to be admired.

The Probate proceedings

37. On 20 June 2020, less than 3 weeks after the death of the deceased, Rose, met with her solicitor, Ms McIntyre, for the first time, to discuss the deceased’s estate. Subsequently, at the written request of Ms McInytre, Mr Puleo, forwarded a copy of the 2009 Will to her.

38. On 7 July 2020, Dominic and John, as the executors named in the 2009 Will, published a notice of intended application for Probate of the 2009 Will on the NSW Online Registry website.

39. On 15 July 2020, Rose filed a caveat requiring that no grant of Probate be made to Dominic and John in respect of the deceased’s estate without prior notice to her.

40. The Supreme Court Rules 1970 (NSW), rule 78.66, relevantly, provides that a person who claims to have an interest in an estate may file a caveat in respect of any grant of Probate or administration, being made in respect of the estate. The caveat must state fully the nature of the interest claimed by the caveator and an address for service. This type of caveat is described as a general caveat.

41. The appropriate form of caveat to raise a ground of invalidity of a will, other than because of a want of proper execution, is the general caveat: Azzopardi v Smart (The Estate of Alice Ann Smart) (1992) 27 NSWLR 232 at 238 (Powell J), applying Beatson v Perry (1906) 6 SR (NSW) 167; Robertson v Barker [2021] NSWSC 1682 at [5].

42. As a child of the deceased who is entitled to a share of the estate under the operation of the rules of intestacy, Rose has an “interest” in the deceased’s estate and has standing to challenge the validity of the 2009 Will: Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [212]-[213] (Lindsay J); Lim v Lim [2022] NSWSC 454 at [18].

43. On 17 August 2020, Rose published, on the NSW Online Registry website, a notice of her intended application for administration of the deceased’s estate in the Probate proceedings. The notice referred to the fact that the deceased had left a Will dated 18 September 2009 but asserted that it was not a valid Will.

44. Rose commenced the Probate proceedings by verified Statement of Claim filed on 24 August 2020. She sought an order that letters of administration of the deceased’s estate, on intestacy, be granted to her. She also sought consequential relief.

45. Dominic and John, in a verified Cross Claim filed on 1 October 2020, propounded the 2009 Will. The original of that Will was subsequently delivered to the Probate Registry. At the commencement of the hearing, it was marked as Ex. W and it remains on the Court file.

46. In her Defence to the Cross Claim, filed on 15 October 2020, Rose asserted that the 2009 Will was not a valid Will, upon the basis that the deceased did not have testamentary capacity; that the deceased did not place her mark on the foot of each page of the 2009 Will; that the deceased was unable to read, or write, any language; and that she could not speak, or understand, the English language, with the consequence that the deceased did not know and approve the contents of the 2009 Will.

47. In an affidavit made on 12 October 2020, Rose detailed the searches that had been carried out, on her behalf, to locate any testamentary documents of the deceased. This included sending correspondence to Puleo Lawyers, and to the NSWT&G enquiring whether each held any prior wills made by the deceased.

48. In an email dated 6 July 2020, Puleo Lawyers confirmed to McIntyre Lawyers that “we do not hold any prior Wills of Mrs Elisabetta Meduri”: Ex. MB1/250. In an email dated 13 July 2020, Puleo Lawyers also confirmed that “we are not aware of the existence of any prior Wills made by the deceased”: Ex. MB1/252.

49. A copy of the “Certificate as to Result of Search for Will”, dated 12 October 2020, from the “Wills Custodian” of the NSWT&G is in evidence: Ex. MB1/253. It revealed that the NSWT&G held no record of any Will made by the deceased or any other documents being found.

50. Rose also gave evidence that she was not aware of any testamentary documents being found at the Fairfield Nursing Home, where the deceased had resided prior to her death: Affidavit, Rose Marie Wild, 12 October 2020 at par 10.

51. Various other enquiries were made to Dominic’s and John’s solicitors, by Rose’s solicitors, in late 2020, including by letters dated 20 October 2020, 22 October 2020, 9 November 2020, 17 November 2020, 23 November 2020, 24 November 2020 and 7 December 2020, going to, amongst other things, the nature and value of the deceased’s estate. Some of the enquiries were responded to by letters dated 11 November 2020, 20 November 2020 and 25 November 2020 from Dominic’s and John’s solicitors.

52. A mediation, which was unsuccessful, took place on 10 December 2020.

53. The parties agreed that the evidence in support of the Cross Claim would be read first, and the lay witnesses, whose affidavits were read, and who were required for cross-examination, would be cross-examined. Then, Rose and her witnesses, who were required for cross-examination, would be cross-examined. Finally, the two experts, jointly appointed, would be called.

54. Ultimately, Rose did not challenge the formal validity of the 2009 Will. Importantly, and relevantly, by the conclusion of the hearing, she did not dispute that the deceased had placed her mark where it appeared on the 2009 Will.

55. There was no dispute that Dominic and John bear the ultimate onus of proving the validity of the 2009 Will, and that, if they are unable to satisfy the Court of the validity of the 2009 Will, then the deceased died intestate. Since no other Will of the deceased has been found, and none of the parties, or other witnesses, have disclosed knowledge of any other testamentary instrument of the deceased, an order for administration on intestacy would be made.

56. On intestacy, as the deceased left no spouse, de jure or de facto, but left issue, being the six children of the deceased and Giuseppe, they share equally the whole of the intestate estate: s 127 of the Act.

57. One complicating factor in the Probate proceedings was the diametrically opposed lay evidence about the medical condition and mental state of the deceased at, or about, the time she made the 2009 Will. I shall refer to some of the evidence later in these reasons. There were no contemporaneous records that could be used to determine whose account of events at various times was to be believed. A second was that, whilst there was an enormous volume of medical evidence adduced on the question of the deceased’s testamentary capacity, a significant part thereof related to her condition after September 2009. A third was that there was no medical expert who saw the deceased with a view to assessing her capacity at, or near, the date the 2009 Will was made.

58. There were, however, contemporaneous progress notes of her treating general medical practitioner, Dr Francesco Romeo, hospital records of various attendances by the deceased, both before and after the 2009 Will was executed, and two contemporaneous reports provided in 2014 and 2015 by an expert, Dr Mariam Doreen Joseph, who saw the deceased then. There were also two expert witness who had not seen the deceased but who expressed opinions on her medical condition based upon, amongst other things, the medical records to which I have referred.

59. (As will be read, I shall not devote the same amount of time in these reasons to the evidence about the deceased’s medical condition after September 2009 as did the parties. I shall, where necessary, refer to that evidence, all of which I have read and considered. However, disputes in the lay evidence about the way in which the deceased acted, for example, after late 2010, and what the medical records reveal, for example, between 2011 and 2015, do not seem to me to be determinative of the deceased’s capacity in September 2009.)

60. More than once during the various directions hearings, the Court encouraged the parties to agree that whatever the result of the Probate proceedings, bearing in mind the nature and value of the deceased’s estate, the relationship between family members, and because Mr Neal had been administering the estate, that, perhaps, he should be appointed, as the independent administrator, to obtain the final grant.

61. By the commencement of the hearing, the parties had all agreed to that course, and confirmed that Mr Neal should obtain the grant of administration with the 2009 Will annexed, or, alternatively, obtain a grant of letters of administration on intestacy: Tcpt, 1 November 2022, p 3(44)-4(3). Mr Neal consented to obtaining the grant whether it be of letters of administration with the 2009 Will annexed, or of administration on intestacy. Hopefully, this will provide a solution which is the most cost effective and timely so that the estate of the deceased will be able to be collected and distributed without further litigation in relation to its administration.

62. There is an affidavit of Jessica Lauren Woodhouse affirmed on 12 October 2020, relating to service of Rose’s application for letters of administration on Connie, Tony and Joseph, by his tutor, the NSWT&G. I am satisfied that Connie, and Tony have been given notice of all of the proceedings: Affidavit of Perry Gamsby, 27 October 2022; Affidavit of John David Maitland, 25 February 2022 (in relation to the family provision proceedings). Neither has filed an Appearance, or been represented, at the hearing.

The Trust proceedings

63. Relevantly, Dominic and John initially relied upon a verified amended Statement of Claim on 1 September 2021 in which they sought a declaration that a property situated at Herbert Street, Kemps Creek (“the Kemps Creek property”) is held on trust by the estate, for them, as tenants in common in equal shares. They also sought consequential orders if the declaration were made.

64. The trust claim was said to arise “out of their reliance on their parents’ promises that they would have beneficial ownership of the [Kemps Creek] property, and [the parent’s] encouragement that they should make improvements and renovations, which gives rise to a proprietary estoppel in their favour against the estate of the deceased”.

63. Whether there was such a promise, or assurance, or were such promises or assurances, and if so, what was, or were, its terms, must be ascertained by reference to the words and conduct of those involved and the context in which the words were said to have been spoken.

64. Dominic and John also asserted that, on the basis of the improvements made by them to the Kemps Creek property, and their effort and expenditure on the upkeep and maintenance thereof, they were entitled to an account or enquiry, if necessary, as to the beneficial ownership of the Kemps Creek property.

65. In the alternative, each sought a family provision order under the Act. Because this claim was not commenced within time (within 12 months of the date of the deceased’s death), they also sought an order under s 58 of the Act, extending the time for the making of the application for the family provision order, respectively, until the date of the filing of the amended Statement of Claim.

66. A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. Relevantly, the Act applies in respect of the estate or notional estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009.

67. At the commencement of the hearing, Dominic and John sought leave to file a further amended Statement of Claim. The Court was informed that the differences were the striking out of the words in prayers 4 and 5, and the striking out in para 30. I gathered that the amendments had arisen because they no longer sought the family provision order by way of alternative relief. Each is making the claim for a family provision order, whether or not he succeeds, in the claim based upon estoppel. The basis of the amendment, as submitted, was because the burden of the costs of the various proceedings, if ordered to be paid out of the estate of the deceased, would impact, significantly, upon what each received: Tcpt, 1 November 2022, p 4(23-42).

68. Since there was no objection to the filing of the further amended Statement of Claim, the Court granted leave for it to be filed by Dominic and John. A subsequent search of Justice Link reveals that later, on the first day of the hearing, the further amended Statement of Claim had been filed.

69. Dominic and John accepted that if the 2009 Will is found to be the last valid Will of the deceased, the estoppel aspect of the trust claim should be dismissed. If the 2009 Will is found to be invalid, Dominic and John press that claim. Notwithstanding the outcome of the Probate, or the estoppel aspect of the trust claim, each now maintains the claim for a family provision order to enable them to remain in the Kemps Creek property.

70. In her Defence to the amended Statement of Claim filed on 14 September 2021, Rose denied any entitlement of Dominic and John, by way of a trust, to the Kemps Creek property. She specifically denied that Giuseppe and the deceased made any promises or assurances, testamentary or otherwise, to Dominic and John absolutely, on the basis that they would not have a claim on any other real estate owned by Giuseppe and/or the deceased.

71. Counsel for Rose stated, in answer to a question from the Bench, that if the family provision claims by Dominic and John proceeded, she did not consent to an order extending the time for the making of the claims. She denied any entitlement, by each of Dominic and John, to an order for additional provision. She also asserted that each of Dominic and John had received a substantial financial benefit by living on the Kemps Creek property, rent-free, for over 30 years, with such benefit likely to be equal to, or greater than, any funds expended by them on the property.

72. As a party to these proceedings, and the representative of the deceased’s estate for the purposes of the hearing, Mr Neal admitted a number of the allegations made in the amended Statement of Claim, but, unsurprisingly, did not admit that the Kemps Creek property was held on trust for Dominic and John. Counsel indicated that Mr Neal neither consented to, nor opposed, any application to extend the time for the making of the family provision orders: Tcpt, 1 November 2022, p 5(39-42).

Joseph’s proceedings

75. Joseph’s proceedings were commenced with a tutor, the NSWT&G. The only relief he seeks is a family provision order under the Act and costs. He commenced the proceedings, within time, by Summons filed on 21 May 2021. He filed an amended Summons on 10 November 2021, in order to join Mr Neal as the third Defendant.

76. Rose is not a party to Joseph’s proceedings. She has not filed any evidence in those proceedings. However, she asked the Court to consider her affidavit sworn on 21 September 2022 which details her circumstances as a competing claimant on the bounty of the deceased, when considering his claim.

77. In Joseph’s proceedings, in summary, if the 2009 Will is valid, all parties agreed that the provision made for Joseph under the 2009 Will (which includes a right of residence in a property, plus a share of the residue to be held on trust for him), is, at the time when the Court is considering the application, not adequate provision for his proper maintenance or advancement in life and that provision in lieu of the provision made for him should be made.

78. If the 2009 Will is found to be invalid, Joseph will be entitled, on intestacy, to receive, absolutely, one-sixth of the deceased’s estate. In this case, the parties agreed that if his one-sixth entitlement on intestacy is less than $897,450, provision in lieu thereof should be made by providing him with a lump sum of $897,450.

79. In each case, the parties were not able to agree upon how the provision made for Joseph will be provided and how the burden of the costs of Joseph’s proceedings will be borne.

80. Following the reading of the evidence and dealing with the objections in the proceedings, at the conclusion of the first day of the hearing, the legal representatives of Mr Neal sought leave to withdraw, upon the basis that they would return, as, and when, required. With the consent of Rose, Dominic and John, the Court granted that leave.

81. Following the cross-examination of Mr Puleo, on completion of the second day of the hearing, the legal representatives of Joseph similarly sought leave to withdraw upon the basis that they should be kept informed about the way in which the hearing was continuing and when they would be required to return. With the consent of Rose, Dominic and John, the Court granted that leave.

82. The legal representatives of Joseph returned for the cross-examination of the medical experts, on each of the sixth and ninth day. Both the legal representatives for Mr Neal and for Joseph returned for the submissions of the parties, which occurred on the tenth and eleventh days.

The issues in the proceedings and the conclusions

83. The parties agreed that the most efficient way of dealing with the issues was that the Court should, first, determine the Probate proceedings and whether the 2009 Will is valid. The central questions in these proceedings are:

1. Did the deceased have testamentary capacity when she made the 2009 Will? I conclude that she did.

2. Did the deceased know and approve the contents of the 2009 Will? I conclude that she did.

3. Did the conduct of any of the beneficiaries, give rise to the application of the doctrine of suspicious circumstances? I conclude that there was no such conduct.

84. If the 2009 Will is not valid, the Court must determine:

1. Is the Kemps Creek property held on trust for Dominic and John? I conclude that it is.

85. Then, whether or not the 2009 Will is valid:

1. Has sufficient cause being shown for, or do the parties to the proceedings consent to, the application by each of Dominic and John being made out of time? I conclude that it has been shown, but it is not necessary to make an order extending time.

2. If so, at the time when the Court is considering the application, has adequate provision for the proper maintenance, education or advancement in life of Dominic and of John not been made by the 2009 Will? I conclude that it has been made for each of them.

3. If so, what order for provision, if any, out of the estate of the deceased ought to be made for the maintenance or advancement in life, of each, having regard to the facts known to the Court at the time the order is made? It is unnecessary to answer this question.

86. If the 2009 Will is valid, or if Dominic and John succeed in the trust claim in a way that impacts upon his claim, the Court must determine, in respect of Joseph’s proceedings:

1. At the time when the Court is considering the application, has adequate provision for the proper maintenance, education or advancement in life of Joseph been made by the 2009 Will? I conclude that it has not.

2. What order for provision, if any, out of the estate of the deceased ought to be made for the maintenance or advancement in life, of Joseph, having regard to the facts known to the Court at the time the order is made? An order should be made that provides for Joseph to receive, absolutely, a lump sum out of the proceeds of sale of the property provided to him on trust in the 2009 Will.

Some formal matters – the family provision proceedings

87. Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order in respect of the estate of a deceased person. As a child of the deceased, each of Dominic, John, and Joseph, is an eligible person within s 57(1)(c) of the Act. The language of the subsection is expressive of the person’s status, regardless of age, as well as his, or her, relationship to the deceased. It is not necessary that the child be a dependant at the time of the deceased’s death in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an “eligible person” in s 57(1)(c) of the Act).

88. However, under s 60(2) of the Act, the Court may consider, on the question whether to make a family provision order and the nature of any such order, “… (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so …”. This factor, however, will not be relevant to the question whether the applicant is an eligible person, in the case of a child of the deceased.

89. Section 58(2) of the Act provides that an application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown or the parties to the proceedings consent to the application being made out of time.

90. As stated, Rose indicated that she does not consent to an extension of time for the making of Dominic’s and John’s applications. Thus, Dominic and John must show “sufficient cause”. It will be necessary to return to the topic later in these reasons.

91. If the 2009 Will is found to be valid, as the deceased dealt with all of her estate therein, there is no scope for the operation of the rules of intestacy.

92. An order may be made in relation to property that is not part of the deceased’s estate, but which is designated as “notional estate” of the deceased by an order under Pt 3.3 of the Act: s 63(5) of the Act. “Notional estate” of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. “Notional estate order” means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.

93. Rose gave evidence of her belief that there are funds missing from the estate which have not been accounted for. Alan, Rose’s husband, also alluded to missing funds in his cross-examination. It was submitted that one of the things the Court could consider was whether each had received funds already, which funds should form part of the residue of the estate.

94. The factual basis of Rose’s assertion was not investigated during the hearing. (If pursued by Rose, this matter may have to be further investigated by Mr Neal following the determination of these proceedings.)

95. Mr Neal, in his capacity as interim administrator, has deposed that he is not presently aware of any property which is, or which may be, the subject of a relevant property transaction.

96. The Court reminded the parties of ss 88 and 89 of the Act: Tcpt, 1 November 2022, p 6(15-19). Section 88 provides that the Court must not make a notional estate order unless it is satisfied that (a) the deceased person left no estate, or (b) the deceased person's estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, or (c) provision should not be made wholly out of the deceased person's estate because there are other persons entitled to apply for family provision orders or because there are special circumstances.

97. Section 89(2) of the Act provides that the Court must not designate as notional estate property that exceeds that necessary, in the Court's opinion, to allow the provision that should be made, or, if the Court makes an order that costs be paid from the notional estate under s 99, to allow costs to be paid as ordered, or both.

98. Bearing in mind the nature and value of the deceased’s actual estate, there is no reason to delve into the question further. This seemed to be accepted by the parties and no submissions were made by each, on this topic, after the conclusion of the evidence.

99. The only eligible persons, within the meaning of that term in s 57 of the Act, are the children of the deceased. Only Dominic, John and Joseph have commenced proceedings for a family provision order. Rose, Connie and Tony, is each a beneficiary named in the deceased’s Will, or entitled under the operation of the rules of intestacy. The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though she, or he, has not made a claim: s 61(1) of the Act. A beneficiary is entitled to rely upon the terms of the deceased’s Will, or the operation of the rules of intestacy, and her, or his, competing claim, respectively, as a chosen object of the deceased’s testamentary bounty.

100. Section 61 of the Act provides that, in determining an application for a family provision order, the Court may disregard the interests of any other person by, or in respect of whom, an application for a family provision order may be made (other than a beneficiary of the deceased's estate) but who has not made an application. There is evidence that Connie has been served with a notice of the application for a family provision order, and of the Court's power to disregard her interests. Tony is a witness in the proceedings.

101. I do not, however, propose to disregard her, or his, interests in view of the evidence going to her, and his, contribution to the welfare of the deceased.

102. None of the children of the deceased, other than Dominic, John, and Joseph, has given evidence of her, or his, financial and material circumstances, respectively. In those circumstances, the Court may assume that each does not wish her, or his, financial resources and financial needs, both present and future, respectively, to be taken into account: Matthews v Wear [2011] NSWSC 1145 at [45] (Macready AsJ).

103. The Court is also entitled to infer that as a beneficiary, she and he, respectively, has adequate resources upon which to live and that she, and he, does not wish to advance a competing financial claim upon the bounty of the deceased: Anderson v Teboneras [1990] VR 527 at 535-536 (Ormiston J); Sammut v Kleemann [2012] NSWSC 1030 at [135]-[139]; Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [94] (Meagher JA); Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107 at [23] (Basten JA). See also Blendell v Byrne; Estate of Noeline Joan Blendell [2019] NSWSC 583 at [113]-[118] and on appeal, Blendell v Blendell [2020] NSWCA 154 at [17] and [42] (Meagher JA, Gleeson JA agreeing).

104. Yet, none of those children, as a beneficiary under the 2009 Will, or on intestacy, has to prove an entitlement to the provision made for her, or him, or justify, otherwise, such provision. Nor, in relation to the 2009 Will, does each have to explain the decision by the deceased to make the provision that she did for each in the Will: Page v Hull-Moody [2020] NSWSC 411 at [171]; referred to, without apparent disapproval, in Sun v Chapman [2022] NSWCA 132 at [169] (White JA).

105. Mr Neal has stated that he will not seek any commission, or percentage, for his pains and trouble as is just and reasonable, out of the estate of the deceased pursuant to s 86 of the Probate and Administration Act 1898 (NSW): Tcpt, 1 November 2022, p 7(30-38). In written submissions, he also stated that if he “is subsequently appointed administrator of the Estate, he will take necessary steps to facilitate any orders for provision from the Deceased’s estate”.

106. As a family provision order is to be made in favour of Joseph, it is important to remember that a certified copy of any order made under the Act must be copied onto the grant of Probate or administration, as such an order operates, unless the Court otherwise orders, as if the provision was made in a codicil to the Will of the deceased person, if the deceased made a Will, or in a will of the deceased person, if the deceased person died intestate: s 72(1) of the Act. It is only if the order is actually endorsed on the grant of administration that the grant can correctly represent what are the dispositive provisions of the Will of which Probate has been granted: Gould v Gould [2005] NSWSC 914 at [6] (Campbell J); Chisak v Presot [2021] NSWSC 597 at [25]. Also see paragraph 23(a) of Practice Note SC Eq 7.

The 2009 Will

107. Mr Puleo identified Ex. W, as the original Will executed by the deceased on 18 September 2009. He confirmed that the other signature on the Will was his, and also was that of his former secretary, Ms Melissa Williams. He confirmed that the mark placed on the bottom of each page had been placed there by the deceased. He confirmed that each person was in the presence of the other when that document was executed.

108. The 2009 Will, on its face, appears to satisfy the formal requirements for a valid Will as contained in s 6 of the Act. It is in writing. It is said to have been signed by the deceased, with the deceased’s “signature” being in the form of a mark (instead of her name) on each page.

109. Ms Williams also deposed that the 2009 Will was signed by the deceased in her, and Mr Puleo’s presence. Neither of them is a beneficiary named in the deceased’s Will.

110. The 2009 Will comprises seven typewritten pages, including what might be described as the cover page. It is self-explanatory. Relevantly, the 2009 Will:

1. Revokes all former Wills made by the deceased (Clause 1).

2. Appoints Dominic and John to be “executors and trustees of this my will” (Clause 2).

3. Gives the Kemps Creek Property “together with all machinery and equipment” to Dominic and John in equal shares as tenants in common (Clause 3).

4. Gives to “my Trustees” a property situated at Bossley Park (“the No 6 Bossley Park property”) “upon trust to permit” Joseph “to have the use, occupation and enjoyment thereof during his life” and directs that “the property be maintained and insured by … Joseph” (Clause 4).

5. Directs “my Trustees” upon and after Joseph’s death to hold the No 6 Bossley Park property upon the following trusts:

1. to sell, realise and convert the same into money;

2. to pay thereout all Joseph’s debts and funeral expenses “including all probate death and estate duties whether imposed by the Commonwealth of Australia or any State thereof”;

1055. In the circumstances, now, the Court must consider whether, at the time the Court is considering the application, adequate provision for Joseph's proper maintenance, or advancement in life has not been made by the 2009 Will, or, for completeness, under the operation of the rules of intestacy in light of the success of the trust claim. If so satisfied, the next question will be whether to make a family provision order and the nature of any such order.

1056. Important in the determination of Joseph’s claim is Mr Puleo’s evidence that the deceased was concerned about Joseph and that she wanted to make sure that he would have a house in which to live and that he was properly cared for.

1057. In this case, Joseph submitted that the structure of the 2009 Will which will enable him to have the ongoing benefit of the No 6 Bossley Park property, but no access to any capital, other than the income that it generates, is clearly inadequate when assessed by reference to his present, and foreseeable future, needs. Relevantly, the provision made for Joseph in the 2009 Will does not provide him with the necessary funds to be able to secure privately funded aged care accommodation which he might need in the future.

1058. It was submitted that the No 6 Bossley Park property ought to be sold (either by the independent administrator or by the NSWT&G as Joseph's financial manager), with the net proceeds being paid to, or held by, the NSWT&G, as the financial manager for Joseph. It was submitted, and I respectfully agree, that any rent that has been received should be added to the net proceeds of sale, and not spent on the outgoings of that property, after the death of the deceased. Accordingly, the reference to the net proceeds of sale will also include such rent. In the event that the net proceeds of sale are not in the order of $897,450, whichever is greater, that amount should be ordered to be paid by way of lump sum.

1059. It was submitted that the NSWT&G would then hold the proceeds of sale for Joseph’s maintenance and advancement in life during his lifetime, including for the provision of accommodation, if that became necessary. Counsel advanced several options explaining how the net proceeds of sale should be held. One was to establish a special disability trust for Joseph's benefit; another was to establish a superannuation fund to which a non-concessional contribution may be made; a third was to permit the NSWT&G to hold the fund on trust for Joseph, as his financial manager. It was submitted that the best option would be determined by reference to the amount of the proceeds of sale, the requirement to have funds available on hand to meet Joseph's recurring needs and contingencies, cash flow considerations, Joseph's entitlement to Centrelink payments, and the impost of fees and expenses associated with each option.

1060. It was also submitted that the Court was not being called upon to make any determination about the specific basis upon which any lump sum will be held (that to be, ultimately, decided upon by the NSWT&G following the determination of the proceedings). Consideration would be given to how a lump sum might be best managed in light of Joseph's needs and guided by his best interests.

1061. In the event that there were found to be an intestacy, and Dominic and John succeeded in their claim based upon equitable estoppel, with the consequence that the Kemps Creek property is held on trust for them as tenants in common in equal shares, it was submitted that Joseph should receive, by way of provision, a fixed lump sum (payable to the NSWT&G as his financial manager), broadly equal to the net sale proceeds of the No 6 Bossley Park property, or otherwise calculated at $897,450 (being the average of the estimates of the value of the needs identified in the Pringle Report and in the Heydon Report).

1062. I have carefully considered the submissions made on behalf of Joseph. I am satisfied that, at the time when the Court is considering his application, adequate provision for Joseph’s proper maintenance or advancement in life has not been made, under the 2009 Will. There will be no residue to which he is entitled and no capital available to meet his needs the subject of evidence.

1063. In my view, having considered all the evidence, what amounts to adequate provision for his proper maintenance and advancement in life, depends upon whether Dominic and John receive the Kemps Creek property, as tenants in common in equal shares, and no other additional provision. If they do, then, Joseph should receive, by way of provision, in lieu of his entitlement under the Will, or on intestacy, the net proceeds of sale of the No 6 Bossley Park property, or $897,450, whichever is greater. If, however, Dominic and John do not receive the whole of the Kemps Creek property as tenants in common in equal shares, but each receive, in lieu of the provision to which each is entitled under the operation of the rules of intestacy, a lump sum by way of family provision order only, then Joseph should receive a one quarter share of the balance of the residue of the estate to which he will be entitled on intestacy, or $897,450, whichever is greater.

1064. To the extent that any orders for costs impact upon what is set out above, the ultimate amount received may be reduced if, for example, the No 6 Bossley Park property is to bear any part of the burden of costs. The burden of costs cannot be determined at this time.

1065. Even if some, or all, of the costs of the proceedings, are ordered to be paid out of the balance of the residue, Joseph’s share should be equal to, or more than what he receives under the Will of the deceased.

1066. The precise method on which the proceeds of sale are held may be determined by the NSWT&G to meet Joseph's recurring needs and contingencies. Liberty to apply should be granted to the NSWT&G if that is necessary, although one would expect its determination to have been made by the time distribution is to be effected.

Conclusion

1070. Because of the length of these reasons, I shall allow the parties the opportunity to consider them. During the period between the delivery of the reasons, consideration should also be given to them to see if the issue of costs can be resolved and to consider, if it cannot, how best to proceed with the determination of that issue in accordance with s 56 of the Civil Procedure Act.

1071. During that period also, they should consider the form of orders, other than any orders for costs, so that upon the return date, the duration of any costs hearing and any other procedural issues or other disputes that then exist can be worked out.

1072. Each of the proceedings will be adjourned to a date to be agreed by the parties, and convenient to the Court, when these reasons are published, solely for the purpose of determining how much additional time will be required and to enable the parties to agree upon the orders to be made (other than any orders for costs).

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Decision last updated: 01 March 2023