Wilson v Wright; Wilson v Wright

[2024] NSWSC 519

Supreme Court

New South Wales

Medium Neutral Citation:

Wilson v Wright; Wilson v Wright [2024] NSWSC 519

Hearing dates:

22-23 April 2024

Date of orders:

7 May 2024

Decision date:

07 May 2024

Jurisdiction:

Equity

Before:

Hmelnitsky J

Decision:

(1)   Order that provision be made for the maintenance, education and advancement in life of Kimberley Renee Wilson, out of the estate of the late Adam Patrick Fornari, by way of a legacy in the sum of $50,000.

(2)   Order that provision be made for the maintenance, education and advancement in life of Kyle Thomas Wilson, out of the estate of the late Adam Patrick Fornari, by way of a legacy in the sum of $40,000.

(3) Order that those legacies bear interest at the rate prescribed by s 84A of the Probate and Administration Act 1898 (NSW) from (and including) 4 June 2024 if not earlier paid.

(4)   Direct the parties to file and serve short submissions of no more than three pages on the question of costs on or before 21 May 2024.

Catchwords:

SUCCESSION — Family provision — Claim by adult step-children of deceased — where deceased in the position of a parent of plaintiffs for most of their childhood — where deceased became estranged from plaintiffs following allegations of sexual abuse of which the deceased was found not guilty at trial —whether “factors warranting” making of application — whether deceased had moral duty to make provision for plaintiffs despite estrangement

Legislation Cited:

Probate and Administration Act 1898 (NSW) s 84A

Succession Act 2006 (NSW) ss 57, 59-60

Cases Cited:

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

Blore v Lang (1960) 104 CLR 124; [1960] HCA 73

Evans v Levy [2011] NSWCA 125

Lodin v Lodin [2017] NSWCA 327

Page v Page [2016] NSWSC 1218

Page v Page [2017] NSWCA 141

Papantoniou v Foundouradakis [2023] NSWSC 1374

Re Estate McNamara [2018] NSWSC 1661

Re Fulop Deceased (1987) 8 NSWLR 679

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

Tarbes v Taleb [2023] NSWSC 565

Walker v Walker [1996] NSWSC 188

Watton v MacTaggart [2020] NSWSC 1233

Williamson v Williamson [2011] NSWSC 228

Category:

Principal judgment

Parties:

In proceeding 2023/253014:

Kyle Thomas Wilson (Plaintiff)
Debra Agnes Wright (Defendant)

In proceeding 2023/253014:

Kimberley Renee Wilson (Plaintiff)
Debra Agnes Wright (Defendant)

Representation:

Counsel:

D Flaherty (Plaintiffs)
R Tregenza (Defendant)

Solicitors:

Hinde Ginges Boyd Lawyers (Plaintiffs)
Bell Lawyers (Defendant)

File Number(s):

2023/253014 and 2023/253020

JUDGMENT

1. These two family provision claims, which were heard together, concern the estate of the late Adam Patrick Fornari (the deceased). The plaintiff in proceedings 2023/253020 is Kimberley Renee Wilson. The plaintiff in proceedings 2023/253014 is Ms Wilson’s brother, Kyle Thomas Wilson. The deceased was for many years their stepfather, having been in a de facto relationship with their mother for a period exceeding 20 years.

The issues in broad outline

2. The deceased died on 13 August 2022. At the time of his death, the deceased and the plaintiffs’ mother (Ms Karen Hibberd) had separated and the deceased was well and truly estranged from her and the plaintiffs. The reason for that estrangement was not in dispute. In December 2019, Ms Kimberley Wilson made allegations of childhood sexual abuse against the deceased, which resulted in the deceased being arrested and charged. From that point onwards, there was a complete cessation of relations between him, on the one hand, and the plaintiffs and their mother, on the other. Neither plaintiff had any communication of any kind with the deceased after the accusations were made.

3. A trial ensued. The deceased was found not guilty of all charges.

4. The deceased separated from the plaintiffs’ mother, Ms Hibberd, from almost the moment the accusations were made in December 2019. He left the home they had shared and co-owned in Faulconbridge when he was arrested and taken into custody, never to return. He and Ms Hibberd appear never to have had even the remotest degree of reconciliation. They reached a property settlement in 2021 and she now makes no claim on his estate.

5. The deceased left a will dated 4 March 2022. Probate was granted on 14 August 2023 to his sister, Ms Debra Wright, who is the defendant. Under the will, Ms Wright is entitled to the whole of his residuary estate after payment of funeral and estate expenses. The deceased told his friend, Mr Mark Mathews, that he wanted his sister to receive the whole of his estate because she had been so supportive of him during his criminal trial. The evidence demonstrates that he was close to his sister and that she was particularly supportive of him, financially and emotionally, both during and after the trial.

6. The plaintiffs claim to be eligible persons by reason of s 57(e) of the Succession Act 2006 (NSW). The defendant accepts that they meet that description but denies that there are “factors warranting” their application and further denies that they are otherwise entitled to provision. Alternatively, she submits that they are only entitled to very modest provision, particularly in light of the estrangement that existed at the time of the deceased’s death.

7. For the reasons given below, I have come to the conclusion that the plaintiffs are eligible persons and that there are factors warranting the making of an application. However, particularly in light of their estrangement from the deceased, the plaintiffs are only entitled to a small provision from his estate.

Factual background

The parties

8. The deceased was born on 17 March 1964. The defendant is his younger sister, born on 5 April 1971. They have an older brother, Garry, but he has been estranged from them since he was 26 years old.

9. The Fornari children grew up in St Marys and had a happy childhood. Their father, Atilio, died in about 1981.

10. The deceased left school at 17 and undertook an apprenticeship as a plumber. He was a plumber for most of his working life but was primarily doing excavation work at the time of his death.

11. The deceased and the defendant lived together at the family home until 1989 when the deceased married. He then moved with his wife to Werrington, but maintained a close relationship with the defendant and their mother.

12. The deceased moved with his wife to Perth for about four years but they separated in 1994 and he moved back to Sydney. He lived in a granny flat across the Great Western Highway from the Fornari family home in St Marys for about 12 months.

13. It was at about this time that the deceased met the plaintiffs’ mother, Ms Hibberd. Ms Hibberd was formerly in a de facto relationship with Mr Neil Wilson. For brevity, I will mostly call the Wilsons by their first names, without intending any disrespect. There were three children of the relationship between Ms Hibberd and Mr Wilson, being the two plaintiffs and their brother, Kirt. Kirt was born on 16 June 1989 and is currently 34 years of age. Kimberley was born on 16 June 1993 and is currently 30 years of age. Kyle was born on 11 May 1995 and is currently 28 years of age.

14. I was informed that Kirt also brought a claim for provision against the estate of the deceased but that his claim was resolved by consent.

The relationship between the deceased and Ms Hibberd

15. The deceased and Ms Hibberd commenced living together in late 1996 or early 1997. At about that time, Ms Hibberd purchased a house on the Great Western Highway at Faulconbridge, which they made their home. The Faulconbridge house was initially purchased by Ms Hibberd in her own name but was transferred to them as joint tenants on 23 November 2000. The defendant said that the deceased contributed funds from a property settlement with his former wife to the Faulconbridge property, but the evidence as to when and how this occurred is unclear. Ultimately it does not really matter, and it is sufficient to find that the Faulconbridge house where the plaintiffs grew up was co-owned by their mother and the deceased as joint tenants from 23 November 2000 right up to the time they reached a property settlement in 2021.

16. The deceased was a father figure to each of the plaintiffs. They lived with him, their mother and their brother Kirt at the Faulconbridge house for virtually their entire childhood. Their biological father was completely absent from their lives. Kimberley saw him for the first time in 26 years only in around early June 2023. Kyle has not seen him or had any contact with him since he was about 18 months old.

17. In 1999, the deceased and Ms Hibberd purchased a 600-acre rural property near Mudgee. In 2003, they purchased an adjoining property of about 70 acres. I will describe these properties as “the farm”, as the parties have done.

18. A surprising amount of time at trial was devoted to the question of how often the plaintiffs used the farm during their childhood. I find the position to be this: the plaintiffs went to the farm fairly regularly as children, especially when they were very young, but did not go very often and did not go as often as the deceased. The deceased, who was an avid shooter and loved going to the farm on the weekend with his friends, used the farm more regularly and more often, especially as the children grew older. He took his dogs to the farm and he kept cats there. As the plaintiffs grew into adulthood and had relationships and children of their own, they continued to go to the farm from time to time, but only rarely. This continued until late 2019.

19. The plaintiffs had seemingly happy and busy childhoods. They went to school and played sports. The deceased was present and involved in their lives. He taught them to ride motorbikes, to drive cars, to hunt and shoot, to drive tractors and probably many other useful things besides. They travelled as a family. They went on holidays together, although not very frequently and much less frequently in later years.

20. Kimberly left school in 2011 at the age of 18, around half-way through year 11. She enrolled in an apprenticeship but soon fell pregnant. She has three children from two relationships, as follows:

1. Tyler aged 12.

2. Lucas aged 9.

3. Amelia aged 4.I

21. By late 2019, the situation at the Faulconbridge house had become very strained. In permanent residence were: the deceased; Ms Hibberd; all three of Ms Hibberd’s adult children; Kimberley’s then current partner, Mr Broadhurst; Kimberley’s three infant children; Kyle’s partner, Taylor; their newborn baby, Cooper, and Taylor’s child from a previous relationship.

22. Kyle, Taylor and their children had moved back to the Faulconbridge house in October 2019, having previously rented a house in Wentworth Falls. They occupied a granny flat out the back, previously occupied by Mr Hibberd’s brother, Chris, who had also lived at the Faulconbridge property until his death in 2016. Kirt slept on the lounge.

23. The deceased slept in what looks like a child’s pine log cubby house in the back yard. There was no electricity or water connected to the cubby house.

24. The only members of the household in consistent full time employment were the deceased, who worked as a plumber, and Ms Hibberd, who worked in administrative roles at Springwood and Katoomba police stations. Kyle was probably also working at this point. It is not entirely clear whether the deceased contributed his income to the general household costs and expenses, but it is likely that he did so. He and Ms Hibberd had a joint bank account.

25. The deceased’s relationship with the co-habitants of his home was deteriorating in 2019. The deceased had discussions with his sister and friends in which he complained that there was no room for him at his own home. He had fights with members of the Faulconbridge household in which he told them to get jobs and stop bludging off him. He would come home after work only to find that there was no food for him and nowhere even for him to sit down.

26. Ms Wright recalled many occasions on which the deceased said words to this effect:

“Kimberley’s two boys sleep in the main bedroom with Karen. Kimberly [sic] and her boyfriend Wayne and their brand new baby sleep in the second bedroom and Kyle and Taylor live in the granny flat out the back, and there’s no room for me. Kirt is sleeping on the lounge. I’ve moved into the cubby house because there’s no room for me in the house. Everybody in the house is fighting.”

The deceased is arrested and charged

27. On 10 December 2019, Kimberley said to her mother that the deceased had sexually abused her from the time she was about six years of age until she was about 12 years of age. The deceased was arrested by police from Springwood police station on 11 December 2019. He was charged with serious criminal offences and was held in custody for two nights. The defendant arranged for bail, whereupon the deceased went to live with a friend in Glendenning. He stayed there for about six weeks and then rented a house in Castlereagh.

28. Neither Kimberley nor Kyle had any contact with the deceased after 11 December 2019. Kyle left the Faulconbridge house almost immediately, apparently because he was advised by the police that it was in his interests to do so. Why he was so advised is not at all obvious, but nothing seems to turn on it.

29. Someone, presumably Ms Hibberd or Kimberley, also obtained an apprehended violence order against the deceased which prevented him from returning to the Faulconbridge house and from visiting the farm. There was no evidence before me as to what behaviour warranted an order in those terms.

The deceased’s goods go missing

30. An aspect of the defendant’s case was that a large number of the deceased’s personal items went missing immediately after his arrest in December 2019 and that some combination of Kimberley, Kyle and Ms Hibberd, and possibly others, were responsible for the loss. If true, that is a matter that I would take into account in determining whether there were factors warranting the making of the plaintiffs’ applications and also whether they were entitled to provision.

31. There is no doubt that a large collection of tools and machinery kept by the deceased at his Faulconbridge home went missing very soon after his arrest or, at least, were not returned to him when requested. Kimberley and Kyle offered no explanation as to what happened to any of the tools and machinery, although Kimberley was living there at the relevant time. It also seems that cash was removed from the joint account which the deceased held with Ms Hibberd, although it was not suggested that Kimberley or Kyle had anything to do with this.

32. A large collection of valuable personal items kept by the deceased at the farm also went missing very soon after his arrest, including a number of motor bikes, as well as household items. A neighbour from the farm saw many such items being loaded onto trailers in the days following the deceased’s arrest. The defendant recalls seeing many of these same items on trailers, together with other household items which she recognised to have come from the farm, outside the Faulconbridge house very soon after the deceased’s arrest. They included, for example, a fridge which she readily recognised as having come from the farm, it being a fridge originally owned by her mother. I accept the defendant’s evidence that she saw these items outside the Faulconbridge house soon after the deceased’s arrest. I also accept, based on the defendant’s evidence that she was familiar with and recognised these items and that these were the deceased’s goods which had come from the farm. The defendant recalled that these items were on trailers attached to cars owned by Ms Hibberd and the plaintiffs, although the plaintiffs disputed that any such items were on trailers attached to their own cars.

33. The evidence does not allow me to reach any firm conclusion as to who was responsible for the loss of all of these items. By the conclusion of the evidence, the defendant’s counsel accepted that the evidence did not support a finding that the plaintiffs were responsible for the loss. Nonetheless, I am satisfied that someone took a large number of the deceased’s valuable personal items from the farm shortly after he was arrested and that these items were at least briefly at the Faulconbridge house, as witnessed by the defendant.

34. It is also relevant to note that the deceased’s attempts to recover his personal items were met with complete hostility by Ms Hibberd. She apparently refused to permit any of the deceased’s goods to be retrieved. The deceased was required to obtain a Property Recovery Order from the Local Court at Penrith. When the deceased’s friends arrived to collect his items, Ms Hibberd was scathing about the deceased. She told them that all the tools and machinery had been stolen. They found the deceased’s clothes going mouldy in a pile on the driveway.

35. As I have already mentioned, there was a trial and the deceased was found not guilty of all charges.

36. There was not the slightest hint of reconciliation by Ms Hibberd or the plaintiffs following the acquittal. I do not suggest that there should have been; I just note that there was none. There was never a prospect that former familial – or even civil – relationships might one day be rekindled. Ms Hibberd and Kyle visited the farm but did not feed the deceased’s pets. Neither they nor apparently any other resident of the Faulconbridge house bothered to look after any of his personal property or to take any steps at all when it went missing. They had continuing access to the farm but took no steps to report or recover the loss of a large and valuable quantity of the deceased’s personal items. The deceased was, metaphorically, dead to them and had been so since December 2019.

37. The deceased and Ms Hibberd reached a property settlement in August 2021. In substance, Ms Hibberd received the Faulconbridge property and the deceased received the farm plus a portion of Ms Hibberd’s defined benefit superannuation entitlement.

38. The remainder of the deceased’s life was unhappy. He was physically unwell before, during and after the trial. He may never have been especially fit and healthy, but his health worsened significantly after December 2019 and especially at around the time of the criminal trial. He could not keep food down and he lost weight. He lost his physical strength and struggled to work. He lost his job and could not pay his bills. He began to suffer from anxiety and depression. He had a range of physical ailments. He decided to move up to the farm, but the house mysteriously burned to the ground on the day before he was due to arrive there.

39. During this time, he was supported by the defendant. She cared for him and spent a lot of her own money (in excess of $100,000) to pay for his criminal defence. She also spent a lot of her own money to pay for his accommodation and to help him acquire furniture when he needed it. She assisted him to reach a property settlement with Ms Hibberd. She visited him regularly, did his grocery shopping and cooked for him. She paid his bills, including the mortgage over the farm, credit card bills, utility bills and other expenses. She was very good to him and he appreciated it. Towards the end of his life he was quite dependent on her, both emotionally and financially.

40. As I have already mentioned, he told his friend Mr Mark Mathews that he had made his sister the sole beneficiary of his will because of the support she had given him.

41. The deceased died of a heart attack on 13 August 2022, aged 58.

The parties’ financial circumstances

42. At the outset, I should note that neither Kimberley nor Kyle put on any evidence as to their financial needs. There was some evidence, as I note below, of their circumstances, but neither of them attempted to demonstrate that they had particular financial needs that the deceased should have provided for.

Kimberley

43. With the exception of short periods, Kimberley has lived at home with her mother, first at the Faulconbridge house and now at Woodford, since leaving school. She has not been in paid employment since leaving school. She has been the primary carer for all three children since they were born. She has been diagnosed with complex PTSD. She is presently studying Commercial Cookery (Cert 3) at TAFE. She expects to complete that course during 2024.

43. Kimberley says that “neither father is presently paying child support”. She says that Amelia’s father, Mr Broadhurst, is “in arrears of child support payments”. I found this evidence and her further explanation in the witness box to be a rather incomplete description of her circumstances at least so far as child support is concerned. Asked whether she had received financial support from either father, she said both fathers have their own businesses and that they “went private about six years ago, but, yeah, nothing”. The reference to going private was to having a “private arrangement” about child support obligations. However, she appears to have made no serious attempt to require either of them comply with their undoubted obligations to support the children. Her counsel suggested that the “private arrangement” may be for tax reasons, but he did not elaborate.

44. Kimberley’s sole source of income is Centrelink benefits. She receives approximately $1,600 per fortnight, comprising single parenting allowance ($968), carer’s allowance ($144.80) and family tax benefits. She has fortnightly expenses of about $1,555. She pays no rent, because she lives with her mother in Woodford. She has no superannuation or any other savings. She is the 20% owner of a property at Hargraves which she co-owns with Mr Broadhurst. The property was purchased for the sum of $50,000 in 2022. The property has a house on it but it is unliveable. She would like to purchase a motor vehicle so that she does not have to rely on public transport. She would like to obtain more suitable accommodation but did not say what that meant in financial terms.

Kyle

46. Kyle left school at the end of year 10, at age 15. He completed a trade course as a carpenter at Nirimba TAFE, Quakers Hill, in 2014. He worked for a while as a carpenter, then as a labourer. He returned to TAFE to gain a bricklayer’s qualification, which he has now completed. He continues to work in that field.

47. Kyle lives with his partner, Taylor, in a rented home in Winmalee, together with their two children, Cooper (aged 4), Blake (aged 2) as well as Taylor’s son Declan (aged 8) from a previous relationship.

48. Kyle works a full time load, but on a casual basis, as a bricklayer. He said he usually takes home about $1,500 per week, although as a casual bricklayer this is weather-dependent. He also said that his taxable income for the year ending 30 June 2023 was $112,628.

49. Taylor earns about $340 per week after tax in part time employment. Kyle and Taylor’s combined weekly expenses are about $1,692. Kyle has about $72,000 in superannuation. He owns two cars and has a few thousand dollars in the bank.

50. Kyle says he would like to buy a house and that he “requires a fund from the deceased’s estate for these purposes.”

Ms Wright

51. The defendant, Ms Wright, has been a serving police officer for over 28 years.

52. The defendant lived at home with her mother until 1996, when she moved into a rented house in Lawson. She later purchased a house in Hazelbrook. The defendant was married in about 2005, having lived with her partner for about six years prior to that. In 2011, she and her husband purchased a house in South Bowenfels, near Lithgow. She and her husband separated on 29 July 2023. The defendant continues to live in the South Bowenfels house. She commutes between Bowenfels and Penrith for work, which is 98km and takes about an hour and a half.

53. The defendant and her former husband are currently attempting to arrive at a property settlement. She expects to receive 50 to 60% of the matrimonial pool. There was no evidence as to the total value of that pool. It at least includes the South Bowenfels house at a value of $900,000, which is jointly owned.

54. The defendant spent a significant portion of her life savings on her brother’s legal proceedings. She did so on the understanding that she would be paid back and so is now entitled to receive repayment from the estate. She also spent a lot of money on the deceased’s behalf to maintain the farm and to provide accommodation and furniture for him after the fire. She claims a total of about $160,000 as a debt against the estate.

55. The defendant earns $9,494 gross per month. Her monthly expenses are in excess of $7,000. Maintenance of the farm has been costing her about $590 per month.

56. The defendant would like to be able purchase her ex-husband’s interest in the Bowenfels house, which would cost her about $450,000. She would like to be able to do so without a mortgage, which would otherwise cost her about $2,624 per month. She currently has about $16,000 in savings and has superannuation entitlements of $373,108.

The Estate

57. In determining an application of for provision it is of fundamental importance that the Court is satisfied of the true value of the estate: see Blore v Lang (1960) 104 CLR 124; [1960] HCA 73 at 136-137 (Kitto J), and at 138 (Windeyer J).

58. The state of the evidence about the true value of Mr Fornari’s estate is not satisfactory. Ms Wright swore several affidavits in the proceedings in which she deposed to the assets and liabilities of the estate, but it is apparent that the actual assets and liabilities are probably materially different than what she has described. It seems clear that the estate included assets that were not included either in the list of assets annexed to the grant of probate or in the affidavits made by Ms Wright. This includes, at least, farm machinery and a fairly extensive gun collection.

59. There is also some uncertainty about what the estate is entitled to receive from the trustee of the deceased’s superannuation fund. Ms Wright’s evidence is that she was told by a representative of the trustee on the telephone that there may be a pay-out of $270,000 (apparently consisting of the fund balance and the proceeds of an insurance policy held by the trustee) but as at the hearing there appeared to be nothing in writing to confirm this and I do not know whether or when this amount, or some other amount, is likely to be paid to the estate. I have not been able to reconcile Ms Wright’s evidence as to the net distributable estate in her 12 October 2023 affidavit with the evidence in her 25 March 2024 affidavit. As at the earlier date, she said the net distributable estate was $1,276,533.96. As at the latter date, she said it was $755,616.04 plus the superannuation and insurance entitlements but without taking into account some tax liabilities.

60. The accountant on whose advice Ms Wright relied in expressing these views was called and cross-examined. Her evidence was that the estate would have to include the whole of the superannuation and insurance proceeds in its assessable income but that her opinion as to the amount of tax payable was based on assumptions which she was not in a position to test, at least at this stage.

61. In the end, counsel for the defendant contended that the net distributable estate was $1,034,981. Counsel for the plaintiffs did not seriously dispute this contention, but in fairness he was not really in a position to know what the precise position was. Although the evidence does not allow me to proceed with a high degree of confidence, I find that the net distributable estate is approximately $1,034,981, being the amount for which the defendant eventually contended. The defendant handed up a note showing how this figure was arrived at, starting with the total assets identified at the time probate was granted. That note was not in evidence but it did broadly reflect the final evidentiary position. The note was as follows:

Credit	Debit
Estate Assets as estimated in Probate	$1,678,692
Death Benefit	$100,000
Total Assets of estate as estimate prior to sale of 720 Old Coach Road	$1,778,692
Liabilities of Estate, administrator’s affidavit of 12/10/2023 (taking into account amount to defendant)	$251,458
Less amount for 720 Old Coach Road per probate	$650,000
Amount realised for 720 Old Coach Road (net)	$521,909
Additional realisation of assets (administrator’s affidavit of 25/3/24)	$2,330
Total	$1,401,473
Expenses (administrator’s affidavit of 25/3/24)	$90,352
Liabilities (administrator’s affidavit of 25/3/24)	$163,384
Estimated tax on capital gain of sale of 720 Old Coach Road and superannuation fund	$112,846
Net total	$1,034,981

62. The rough position is this. The estate sold the larger of the two blocks comprising the farm for $521,909, which is less than what it was thought to be worth at the time probate was granted. The estate therefore holds the smaller block plus the cash from the sale. It expects to receive superannuation and insurance totalling $270,000. The estate will need to repay the approximately $160,000 it owes to the defendant. It also has administration costs and expenses and will have to pay tax.

Section 59(1)(b) – “Factors warranting”

63. The plaintiffs are not the natural children of the deceased. They claim to be eligible persons within the meaning of the Succession Act by reason of s 57(e). The defendant correctly accepts that they meet that description. They lived in the same house as the deceased for almost the whole of their childhood and they were partially dependent on him for accommodation, food, travel and education. He and their mother were in an apparently settled domestic partnership from the time the plaintiffs were infants until their adulthood.

64. As eligible persons by reason of s 57(e), the plaintiffs must establish that there are factors warranting the making of an application for provision: s 59(1)(b). This requirement is ordinarily taken to mean that there are circumstances which, when added to the facts that make a plaintiff an eligible person, make that plaintiff a natural object of testamentary recognition: Re Fulop Deceased (1987) 8 NSWLR 679; Lodin v Lodin [2017] NSWCA 327 at [106] (Sackville AJA); Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 at [95] (Payne JA, with whom Macfarlan JA agreed); Evans v Levy [2011] NSWCA 125 at [64] (Young JA, with whom Campbell JA and Sackville AJA agreed).

65. In Spata v Tumino, Payne JA said at [97]:

“Consistently with the decision in Re Fulop, the starting point for applying s 59(1)(b) of the Succession Act is that an eligible person such as an adult stepchild of the deceased is not normally regarded as a natural object of testamentary recognition by the deceased. In order to satisfy s 59(1)(b), John must therefore establish that there are circumstances that justify regarding him as a natural object of testamentary recognition by Gina. Those circumstances must go beyond the bare fact of the familial relationship. The factors relied on must be such as to demonstrate a social, domestic or moral obligation on the testator to make some provision for the claimant: Lodin at [114] (per Sackville AJA); Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [13]- [15] (per Basten JA).”

66. Given the breadth of the discretion involved in determining whether there are “factors warranting” the making of an application and the similarly broad discretion involved in the subsequent determination of whether adequate provision has been made for an eligible person, it is inevitable that in any given case there will be facts that are relevant to both stages of the analysis. Here, for example, the complete estrangement between the deceased and the plaintiffs at the time of death is a matter that might inform both questions, possibly to a high degree.

67. Nonetheless, it is necessary to keep in mind that the question of whether there are factors warranting the making of an application (s 59(1)(b)) is distinct from the question of whether adequate provision has been made (s 59(1)(c)). Both involve a broad evaluative judgment based on overlapping facts, but the legislative context suggests that a positive answer to the first question does not necessarily mean that there has been inadequate provision.

68. In the present case, there are factors warranting the making of the application by each plaintiff. They grew up in a household in which the deceased was a father figure. He was in a long term, settled, domestic relationship with their mother. They had no or virtually no contact with their biological father. Their mother owned the family home jointly with the deceased for almost the whole of their childhood. They also co-owned the farm where they enjoyed weekends and holidays. I would reach the same conclusion regardless of whether they spent a lot of time at the farm or only went there occasionally, or never.

Section 59(1)(c) – adequate provision

69. As to the application of s 59(1)(c), I respectfully refer to and adopt the helpful and comprehensive statement of principles collected by Meek J in Tarbes v Taleb [2023] NSWSC 565 at [195]-[222].

70. In written submissions, the plaintiffs contended that, between them, the plaintiffs should receive 2/3 of the value of the estate despite the estrangement. In final oral submissions, they contended that if the value of the estate were around $1,000,000 (which it is) then they should receive around $200,000 each.

71. The defendant submitted that they should receive nothing. It was submitted to the effect that by 2022 the deceased had no moral duty to provide for the maintenance of the adult children of his former de facto partner in circumstances where there had been a catastrophic ending to all relations between them as a result of the criminal trial.

The estrangement

72. The difficult question in the present case concerns the consequences of the estrangement.

73. I note at the outset that this is not a case in which there is the spectre of untested allegations of historical sexual abuse. If it were, I would be inclined to put that matter to one side. It has been held that an order for provision under the Succession Act does not include an element of reparation or redress for the parent having failed to fulfill their legal or moral duty to be a good parent: Watton v MacTaggart [2020] NSWSC 1233 at [43]. It has also been held that family provision cases should not be a vehicle to determine allegations of historical sexual abuse: Williamson v Williamson [2011] NSWSC 228 at [124]-[127]; Re Estate McNamara [2018] NSWSC 1661 at [36]-[43]; Page v Page [2016] NSWSC 1218 at [58]; Page v Page [2017] NSWCA 141 at [120].

74. Rather, this is a case where the accusations were made, resulting in a criminal trial. The deceased, as I have noted, was found not guilty of the charges and Kimberley took the matter no further. There is no suggestion that she ever sought any kind of civil redress. Her evidence before me went no further than to acknowledge that she had made the accusations.

75. The plaintiffs submitted that the fact of the estrangement and the circumstances that gave rise to it did not significantly affect their entitlements to provision. They submitted that the relationship had to be assessed as a whole. They submitted that, when looked at in that way, it was clear that the deceased did owe a moral duty to provide for them. He was for all intents and purposes their father.

76. It can be accepted that the deceased’s duty to provide for the plaintiffs must be assessed in the light of all the circumstances and, in particular, in the light of the whole relationship between them. But the focus of the s 59(1)(c) inquiry concerns the adequacy of the testamentary provision made by the deceased for the proper maintenance, education or advancement in life of the claimant. That question involves a broad evaluative judgment of, among other things, the deceased’s moral duty to provide for the claimant by way of testamentary gift. The existence and content of the that duty must therefore ultimately be assessed as at the time of his death.

77. By 2022 when the deceased died, any semblance of a family relationship among these parties had well and truly ceased. There had been a sudden and permanent estrangement as a result of the criminal charges and proceedings. These accusations spelled the end of the deceased’s de facto relationship with the plaintiffs’ mother and the end of all relations with the plaintiffs. The deceased left their home with nothing but the clothes he was wearing and never returned.

78. These circumstances were almost certainly seen by the deceased as drawing a complete line under the relationship between himself, on the one hand, and Ms Hibberd and the plaintiffs, on the other. I am confident that no party here entertained the slightest hope of rapprochement.

79. I make no criticism of Kimberley or Kyle. But, as counsel for the plaintiffs conceded, the upshot of the criminal charges and the trial was that whatever relationship that had previously existed between the deceased, on the one hand, and the plaintiffs, on the other, was completely at an end by the time the deceased died. There was never a prospect that either plaintiff would ever again view the deceased as anything like a father figure.

80. These observations about the state of the relationship do not involve any attribution of blame. In Walker v Walker [1996] NSWSC 188, Young J said:

“I do not consider that there is any purpose in analysing whose fault it was that the state of non-communication came into place. In family relationships, hurts are inflicted or suffered sometimes consciously, sometimes unconsciously. Sometimes a young child is brainwashed by a custodial parent to consider that the other parent has inflicted some harm which is all in the mind of the custodial parent.

It is often impossible to work out whether the degree of separation between parent and child at the date of the parent's death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between.

The important matter is not fault, but, whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the plaintiff.”

81. It is the final sentence in those observations that has particular relevance here. The difficult question is whether the community would expect a person in the deceased’s position in 2022 to continue to provide for the maintenance of Kimberley and Kyle.

Are the plaintiffs entitled to any provision?

82. The defendant’s primary submission therefore has much to commend it. Even looking at their relationship in its entirety, which I am bound to do, it is difficult to look past the estrangement and its immediate causes. There is real doubt about whether the community would expect the deceased to make any provision for the maintenance of Kimberley and Kyle in his will at all in these circumstances. They are the adult children of his estranged former de facto partner. They were no less estranged from him than she was. The deceased had also already done more than what society would ordinarily expect by way of maintenance for Kimberley during his lifetime. She continued to live in his home, together with their own dependents, for many years after reaching adulthood. This was not the result of any encouragement by him. I am entitled to have regard to this as part of the evaluative judgment I make: s 60(2)(i) of the Succession Act.

83. This is also a case where it is appropriate to have regard to testamentary intention. The deceased left his entire estate to his sister, Ms Wright, who supported him emotionally and economically throughout the criminal trial and in the years immediately prior to his death. I have already noted what he told his friend about why he chose to leave his estate to his sister. The deceased’s testamentary intention in this case was fully considered and well founded. This is not a case where the testator has sought to punish the plaintiffs for their behaviour (cf Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [56]-[57] (Basten JA)). Rather, the testamentary intention reflects the deceased’s genuine and heartfelt affection for his sister, whose unquestioning support he understandably wished to recognise in his will.

82. Nonetheless, I find that both Kimberley and Kyle are entitled to a small amount of provision from the deceased’s estate.

83. There are two matters that I find to have particular significance in reaching this conclusion. The first is the sheer weight of the historical connection between the plaintiffs and the deceased. He was in the position of a parent for virtually their entire childhood. As step-relationships go, theirs was very longstanding and familial.

84. The second is that, although I am able to pinpoint the cause of the estrangement, I am not in a position to allocate any blame for it. Given the nature of the proceedings, it would be inappropriate for me to attempt to do so. I must therefore be astute to approach the s 59(1)(c) question for each plaintiff without making any assumption as to who was to blame for the estrangement, even though I can see its direct causes. Kimberley is not to be blamed for having made the complaint against the deceased, and Kyle is not to be blamed for taking his sister’s side in the resulting trial.

85. This does not mean that I should ignore the fact of the estrangement or the effect which it had on the relationship between the deceased and the plaintiffs. The estrangement was an observable fact which affected their relationships and which, I believe, engendered a significant weakening of the moral obligations between the parties. But I am unable to conclude that the estrangement or its immediate causes entirely negatived the deceased’s obligation to provide for the plaintiffs. Such a conclusion would necessarily entail a judgment as to the rights and wrongs of the estrangement that I am not in a position to make.

86. These considerations lead to me to conclude that the deceased should have made some small provision for the plaintiffs despite the estrangement. I do not consider that he should have left them anything remotely like the amount they are claiming. The amounts they are claiming might have been appropriate if they were his natural children and if there had been no estrangement. But they are not his natural children and the fact of the estrangement necessarily has a real bearing on their claims. Nor have they led evidence as to their needs that would justify provision in the amounts they are claiming in any event.

87. In reaching this conclusion I have also taken into account the deceased’s testamentary intentions and the defendant’s own needs. She is now separated from her husband and, although she has a reasonable superannuation balance, wishes to be in a position to own the South Bowenfels house without a mortgage. She is in her fifties and has more cause to worry about contingencies than do Kyle and Kimberley, who are young: see Papantoniou v Foundouradakis [2023] NSWSC 1374 at [259].

88. The defendant made considerable personal sacrifices to support her brother in the final and most difficult years of his life. She did so out of love and affection. She is the natural object of the deceased’s testamentary intention. In the circumstances, there are good reasons why that intention should be respected as far as possible.

Conclusions as to provision

91. I find that Kimberley should receive the sum of $50,000 and that Kyle should receive the sum of $40,000 by way of provision pursuant to s 59 of the Succession Act.

92. I have arrived at these figures in slightly different ways.

93. In Kimberley’s case, I consider that she has greater financial need than Kyle but, at the same time, she has already received relatively more by way of maintenance from the deceased over the years. The deceased co-owned the Faulconbridge house where she lived well into adulthood, together with her children. The situation seems to have been that the deceased tolerated Kimberley living at home but wished she would move out. He certainly did not encourage dependence on her part. Kimberley is also well supported by her mother, with whom she still lives, who received the Faulconbridge house in the property settlement with the deceased.

94. I do not consider that the deceased had any obligation to ensure Kimberley’s financial independence. I consider the deceased’s obligation was, in all of the circumstances, to provide a small legacy for her general advancement.

95. Kyle also lived at the Faulconbridge house as an adult, but not for as long, and he has proved to be well capable of providing for himself and his family. He is independent and resourceful. He is likely to cope with the vicissitudes of life better than his sister.

96. As with Kimberley, I do not consider the deceased had any moral or other obligation to ensure Kyle’s financial independence. I consider the deceased’s obligation was, in all of the circumstances, to provide a small legacy for his general advancement.

97. As to costs, I was informed that the defendant’s costs were approximately $75,000 and that the plaintiffs’ costs were approximately $88,000. I will give the parties an opportunity to be heard as to the appropriate costs order in the circumstances.

Orders

98. The orders of the court will therefore be:

1. Order that provision be made for the maintenance, education and advancement in life of Kimberley Renee Wilson, out of the estate of the late Adam Patrick Fornari, by way of a legacy in the sum of $50,000.

2. Order that provision be made for the maintenance, education and advancement in life of Kyle Thomas Wilson, out of the estate of the late Adam Patrick Fornari, by way of a legacy in the sum of $40,000.

3. Order that those legacies bear interest at the rate prescribed by s 84A of the Probate and Administration Act 1898 (NSW) from (and including) 4 June 2024 if not earlier paid.

4. Direct the parties to file and serve short submissions of no more than three pages on the question of costs on or before 21 May 2024.

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Decision last updated: 07 May 2024