Supreme Court Dismisses Claim for Family Provision

The Court dismissed the claimant's application for provision out of the estate under the Succession Act 2006 (NSW). The Court found that the claimant had not demonstrated that adequate provision had been made for his proper maintenance, education, or advancement in life.

OUTCOME: Dismissed

Supreme Court New South Wales

Medium Neutral Citation: [NAME_1] v [NAME_2] [2017] NSWSC 1695 Hearing dates: 19, 20 June 2017 Decision date: 06 December 2017 Jurisdiction: Equity - Family Provision List Before: Kunc J Decision: Summons dismissed Catchwords: SUCCESSION — family provision and maintenance — circumstances precluding relief — adult children — defendant sister preferred in surviving parent's will to exclusion of plaintiff brother — brother fails to identify any particular need other than possibly for vicissitudes — failure to provide for brother not inadequate where he was treated generously during parents' lives and sister had not been Legislation Cited: Succession Act 2006 (NSW) Cases Cited: [NAME_3] v [NAME_4] [2012] NSWSC 1537 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [NAME_5] v [NAME_5] (No 2) [2016] NSWSC 396 Verzar v Verzar [2014] NSWCA 45 West v Mann [2013] NSWSC 1852 Category: Principal judgment Parties: [NAME_6] (Plaintiff) [NAME_8] (Defendant) Representation: Counsel: [redacted] [NAME_12] (Defendant)

Solicitors: [redacted] [NAME_16] (Defendant) File Number(s): 2016/192687 Publication restriction: No

Judgment

Summary 1. The plaintiff is [NAME_6] ("[NAME_7]"), the only son of [NAME_18] ("[NAME_20]") and her husband [NAME_21] ("[NAME_22]"). [NAME_20] died on 16 July 2015 at the age of 82. Without disrespect, I shall refer to the plaintiff and several others who feature in this judgment by their given names.

2. On 16 February 2013, [NAME_20] made her final will (the "Will").

3. In addition to [NAME_7] (who is 61 years old), the defendant [NAME_8] ("[NAME_9]") is [NAME_20]'s only other eligible beneficiary. [NAME_9] (who is 57 years old) is [NAME_7]'s only sister and the only daughter of [NAME_20] and [NAME_22]. [NAME_9] is the appointed executrix and trustee of the Will.

4. Under the Will, [NAME_20]'s estate (the "Estate") was left entirely to [NAME_9]. At the time of trial, it comprised an immaterial amount of cash and 50% of a property at Cecil Hills (the "Cecil Hills Property") which was jointly owned as tenants in common as to 50% by [NAME_20], and as to 50% by [NAME_9] and her husband, [NAME_23] ("[NAME_24]"). The value of [NAME_20]'s 50% share at the time of hearing was approximately $775,000.

5. By summons filed on 24 June 2016, [NAME_7] applies for provision out of the Estate under s 59 of the Succession Act 2006 (NSW) (the "Act"). [NAME_25] of Counsel appeared for [NAME_7] and [NAME_26] of Counsel appeared for [NAME_9]. 6. [NAME_27] ultimately accepted that any provision for [NAME_7] could not be more than between $50,000 and $100,000 as a buffer for contingencies or vicissitudes. [NAME_7] had received considerable financial assistance from [NAME_20] and [NAME_22] during their lifetimes. [NAME_9] had not. In the last three years of her life, [NAME_20] had purchased the Cecil Hills Property with [NAME_9] pursuant to an arrangement that [NAME_9] would care for her ([NAME_20]) and then receive the Estate. [NAME_9] had cared for [NAME_20] until the latter's death.

7. Having regard to the assistance received by [NAME_7] from his parents; the composition of the Estate; [NAME_7] and [NAME_9]'s respective claims on [NAME_20]'s testamentary bounty; and [NAME_20]'s clear view that [NAME_7] had been benefited during her and [NAME_22]'s lives and that [NAME_9] should receive the Estate including in return for caring for her ([NAME_20]), the Court is not satisfied that the Will makes inadequate provision for [NAME_7]. Alternatively, even if that were not so, for the same reasons the Court would not, in the exercise of its discretion, order additional provision for [NAME_7].

The Act 1. Part 3.2 of the Act deals with family provision orders. Division 1 of that part identifies, in s 57, who are "eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person". Section 58(2) requires an application for a family provision order to "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".

2. Division 2 of Part 3.2 of the Act deals with determination of applications for family provision orders. For the purposes of these proceedings, the relevant provisions are: "59 (1) [ADDRESS] may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and (b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of "eligible person" in section 57 — having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. (2) [ADDRESS] may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made. … 60 (1) [ADDRESS] may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the "applicant") is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the Court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person ─ the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, … (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, … (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."

1. In West v Mann [2013] NSWSC 1852 at [9]–[11], I explained the reasons for the approach I adopt to applications under the Act. That is how I will proceed in this case.

2. By reference to the language of the Act, the questions and issues which the Court must take into account are:

1. Is the person who has applied to the Court for a "family provision order" (as defined in s 3 of the Act) an eligible person under s 57 of the Act? In accordance with s 60(1)(a), the Court may (not must) have regard to the matters set out in s 60(2) in determining whether that person is an eligible person. It is not readily apparent how many of those matters could be relevant to the issue of eligible person, but nothing turns on that observation.

2. If the answer to question (1) is "yes", has the application been filed in the Court's Registry not later than 12 months after [NAME_20]'s death (ss 58(2) and (3))? 3. If the answer to question (2) is "no", has the eligible person who has brought the application shown sufficient cause for the Court to order otherwise to extend the date for the filing of the application in the Court's Registry (ss 58(2) and (3))? 4. If the answer to question (2) is "yes" or the Court has otherwise ordered under s 58(2), is the Court satisfied that the person in whose favour the order is to be made (the "applicant") is an eligible person (s 59(1)(a))? In reaching the requisite state of satisfaction the Court may (not must) have regard to the matters set out in s 60(2). As a theoretical matter this question admits of the possibility that "the person in whose favour the order is to be made" is not the person who has brought the application (in which case, the latter must also be an eligible person).

5. If the answer to question (4) is "yes", what provision has been made for the proper maintenance, education or advancement in life of the applicant by the Will or by the operation of the intestacy laws (the "Provision")? 6. Is the Court satisfied, at the time when the Court is considering the application, that the Provision is not adequate for the proper maintenance, education or advancement in life of the applicant? 7. If the answer to question (6) is "yes" (i.e. the Court is satisfied the Provision is not adequate for the specified purpose) then the Court's discretion conferred by the chapeau to s 59(1) to make a family provision order in favour of the applicant (the "Discretion") is enlivened.

8. Once the Discretion is enlivened then, noting s 59(2), what provision, if any, does the Court think ought to be made for the proper maintenance, education or advancement in life of the applicant, having regard to the facts known to the Court at the time the order is made (the "Proposed Provision")? This is an evaluative judgment which arises from the word "ought" and requires examination of the applicant's needs. In making this judgment the Court may (not must) have regard to the matters set out in s 60(2) ("the nature of any such order": s 60(1)(b)).

9. Having answered question (8), should the Court exercise the Discretion to make an order for the "Proposed Provision"? In deciding whether to exercise the Discretion to make such an order, the Court may (not must) have regard to the matters set out in s 60(2) ("whether to make a family provision order": s 60(1)(b)).

10. Section 60(2) provides a helpful checklist but it is no more than that. [ADDRESS] is not obliged to take those matters into account. The extent to which it does (if at all) will depend upon the facts of each particular case.

11. Section 60(2)(p) confirms the breadth of matters the Court can take into account. Once enlivened, the Discretion is expressly fettered only by the requirement in s 59(2) that if an order is made, it must be such order "as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made". The Discretion is otherwise unconfined, which means that in answering question (8) the Court is otherwise constrained only by the need to act judicially, that is to say "not arbitrarily, capriciously or so as to frustrate the legislative intent": Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [22] per Gaudron and Gummow JJ. [ADDRESS] must act rationally and exercise the Discretion for the purpose for which it was conferred.

1. Having identified what I consider to be the correct approach under the Act to an application of this kind, I will set out the uncontested facts before resolving the three relevant factual issues that were in dispute.

The facts 1. [ADDRESS] finds the facts to be as follows. 2. [NAME_20] was born on [DATE] in what was then Yugoslavia. 3. [NAME_20] married [NAME_22] in Yugoslavia and they had two children there: [NAME_28] ([NAME_7]) and [NAME_29] ([NAME_9]). 4. [NAME_7] was born on [DATE]. 5. [NAME_9] was born on [DATE]. 6. [NAME_7]'s future wife, [NAME_30], was born on [DATE].

7. In October 1970, the family of four migrated to Australia.

8. The family first lived in a hostel in Victoria. They then moved to another hostel in East Hills, Sydney after which they lived with [NAME_22]'s cousin in Leichhardt. The family later rented a property in Petersham.

9. Soon after the family's arrival in Sydney, [NAME_22] commenced work for [NAME_31] making car batteries and [NAME_20] found work as a cleaner at Rozelle Hospital.

10. In April 1972, [NAME_22] and [NAME_20] purchased a unit in [ADDRESS], Leichhardt for $16,750 subject to a $12,000 mortgage.

11. In late 1972, at the age of 16 years, [NAME_7] left school and commenced employment working in a factory making bicycles. Six months later he commenced a job as a process worker at [NAME_32]. [NAME_7] contends that from the time he commenced work until after his marriage he gave his pay packets to his parents and his mother would give him pocket money every week and also pay for anything he needed.

12. On 10 September 1976, when [NAME_7] was 19 years of age, [NAME_20], [NAME_22] and [NAME_7] purchased a house in Petersham as joint tenants for $57,000 (the "[NAME_33]") subject to a $28,000 mortgage. It is [NAME_7]'s submission that he contributed to the payment of the mortgage through the pay packets given to his mother. [NAME_9] denies this.

13. The mortgage over the [NAME_33] was discharged on 7 November 1979. 14. [NAME_7] says that in 1981 an extension was added to the [NAME_33] at an estimated cost of between $30,000 to $40,000. [NAME_7] claims the funds for the extension were paid by both [NAME_22] and himself.

15. In 1981, [NAME_20] suffered an injury at work and made a Workers Compensation claim. [NAME_20] did not return to paid employment after this injury. 16. [NAME_7] married [NAME_30] on 20 February 1982. [NAME_7] says that he continued to give his pay packet to his parents for several months after the marriage but that he spoke to his parents and said that he and [NAME_30] needed to start saving for a house of their own so [NAME_7] discontinued giving his parents his pay. 17. [NAME_34] remained at the [NAME_33] with [NAME_7]'s parents until August 1982 when they purchased a house at Minto (the "[NAME_35]") for $59,500 with a mortgage of $40,000. [NAME_9] alleges that at the time of the purchase [NAME_34] received approximately $10,000 towards the deposit of the [NAME_35] from [NAME_20] after she received her worker's compensation payout. 18. [NAME_9] married [NAME_24] on 25 September 1982. They continued to live with [NAME_20] and [NAME_22] for a further two years while saving to purchase their own home.

19. On 10 November 1983, $30,573.86 was paid into [NAME_34]'s mortgage account to reduce it to $9,400. Between February 1984 and February 1985 the balance of the mortgage over the [NAME_35] was paid off, including by some payments (the records are incomplete) of $1,000. 20. [NAME_34]'s son [NAME_36] was born on [DATE].

21. In March 1985, the mortgage over the [NAME_35] was discharged.

22. In 1986, [NAME_34] sold the [NAME_35] for $69,950 and moved back into the [NAME_33] where they lived for three years while they bought land and built a new home. [NAME_7] claims that during these three years he and [NAME_30] contributed 50% of food and utility bills.

23. In 1987, [NAME_34] purchased land in Abbotsbury for $51,000 (the "Abbotsbury Property") on which they built a home. 24. [NAME_34] sold the Abbotsbury Property for $325,000 in 1992. 25. [NAME_7] claims that, out of the proceeds of sale of the Abbotsbury Property, he provided $26,000 to $30,000 to his parents to purchase a new car and another $70,000 for improvements to the [NAME_33].

26. In 1992, [NAME_34] bought land at Bossley Pak to build their current home.

27. In 1994, [NAME_22] provided [NAME_7] with $90,000 to assist [NAME_34] with the building of their home on the land at [ADDRESS]. 28. [NAME_34]'s daughter [NAME_37] was born on [DATE]. 29. [NAME_34]'s son [NAME_38] was born on [DATE].

30. In November 2011, [NAME_20] and [NAME_22] saw their solicitor, [NAME_39], in relation to preparing new wills. They specified that the wills be in favour of each other and otherwise in favour of [NAME_9]. [NAME_20]'s and [NAME_22]'s wills made on 14 November 2011 had an identical clause inserted: "In this my will I make no provision for my son [NAME_41] because he has been provided for in the past."

1. At the same conference with Mr [NAME_17] at which they made their wills, [NAME_20] and [NAME_22] also executed a severance of their joint tenancy with [NAME_7] of the [NAME_33]. [NAME_7] ultimately accepted that he received notice of the proposed severance in a letter dated 16 November 2011 and that he was aware of what was being done. The severance was subsequently registered in early 2012 with the effect that [NAME_20] and [NAME_22] were joint tenants of a two-thirds interest in the [NAME_33], which interest they held as tenants in common with [NAME_7] owning the remaining third.

2. At the same time [NAME_22] prepared a handwritten document outlining amounts taken out of the "House Budget" of the [NAME_33] ("[NAME_22]'s List"). A translation of this document is: "House on Number G/394340 26A Croydon [NAME_22] – [NAME_19] – [NAME_6] To remind our selfs That our son [NAME_41] out from House Budget 1 For car Hilman stationwagon $850 2 And the second car was bought from the same Budget – Ford Falcon Stationwagon $4,000 Year 1982 3 Bought were Amplifier and Gitar (sic) $1,000 4 Mum gave him her Compensation for the First House $40,000 5 And I gave him $90,000 for the Construction of the House Year 1994 6 [NAME_42] $15,000 was returned"

1. The [NAME_33] was listed for sale in January 2012.

2. On 24 January 2012, [NAME_22] died after a brief illness. 3. [NAME_22] died, [NAME_9]'s evidence (on which she was not challenged) was that [NAME_20] told [NAME_9] that she ([NAME_20]) did not want to live alone and had said "We can buy a house together. I will contribute what I get from selling my house and I will leave everything to you at the end".

4. On 7 March 2012, contracts were exchanged for the sale of the [NAME_33] for $1,050,000. It will be recalled that the [NAME_33] had been purchased in 1976 for $57,000.

5. On 13 March 2012, [NAME_20], [NAME_7] and [NAME_9] attended the offices of their solicitor, [NAME_44]. [NAME_48] asked [NAME_9] to stay outside his office as she was not a party to the sale.

6. During the meeting it is alleged by [NAME_48] that he discussed with [NAME_20] and [NAME_7] the distribution of proceeds of the sale. [NAME_48]'s recollection of the conversation is: "9. We had a conversation in words to the following effect: Me ([NAME_48]): I want to make sure how to distribute the proceeds of sale. According to the title it is two third for you, [NAME_20], and one third for you, [NAME_7]. The deceased: [NAME_7] did not contribute any money to the [NAME_33] at all. However, I want to keep my promise that even though [NAME_7] didn't contribute anything he can get one third accordingly (sic) to the way it is on the title. I am also willing to give [NAME_7] more from the [NAME_33] to make his share increase from one third to one half and to reduce my share from two thirds to half. But that is subject to the condition and [NAME_7] must agree to this. When I pass away all of my assets will be given to [NAME_49]. [NAME_7] must agree to this and that he will not make any further claims on the estate after this. I want you to write something on paper so that [NAME_7] and I can sign it. [NAME_7]: OK, Mum, I will sign it.

10. The deceased also said, in [NAME_7]'s and my presence, words to the following effect: "After the house is sold I intend to buy a property with [NAME_49] and to live there with [NAME_49] so that [NAME_49] can look after me better. I feel it is not fair that so far [NAME_49] has not received anything and that is why I feel I need to give [NAME_49] all my assets when I pass away." 11. [NAME_7] did not say anything to disagree with what the deceased said as set out in the two paragraphs above.

12. I took a copy of the deceased's passport and [NAME_7]'s driving licence. I also drafted a document for them to sign and they signed it in my presence. I kept that document on the file. …"

1. The text of the document drafted by [NAME_48] and signed by [NAME_20] and [NAME_7] on 13 March 2012 (the "[NAME_47]") is: "We, [NAME_19] & [NAME_41], agree that at settlement, the balance + net proceeds of the sale of XXX St, Petersham will be split into 2 cheques of equal amount. [NAME_28] will pick up the cheque for [NAME_19], with no further claims on the estate after this. 13/03/12 [NAME_18] [NAME_41]" 1. [NAME_7] accepted that he had agreed with [NAME_20] that he would receive half the sale proceeds rather than the one-third to which he was strictly entitled. However, his evidence was that the words "with no further claims on the estate after this" were not on the [NAME_47] when he signed them and that he had not made any agreement to that effect. Because the appearance of the [NAME_47] may be important, a copy is attached as Schedule One to these reasons.

2. Settlement of the sale of the [NAME_33] occurred on 30 April 2012 and [NAME_20] and [NAME_7] each received cheques to a value of $515,592, representing their respective 50% shares in the proceeds of sale of the [NAME_33]. The cheques were banked into their respective Commonwealth Bank accounts. [NAME_7] an extra one-sixth of the proceeds meant he received approximately $175,000 more than he otherwise would have.

3. Once the [NAME_33] had been sold, [NAME_20] moved in with [NAME_50] at the home they had in Minto which they had put on the market. It was sold later in 2012 for $360,000, of which [NAME_50] received about $260,000.

4. At the end of May 2012, [NAME_50] decided to buy the Cecil Hills Property for $875,000 subject to a mortgage for $390,000. It was ultimately purchased on 12 July 2012 with [NAME_50], of the one part, and [NAME_20], of the other part, as tenants in common of half interests in the Cecil Hills Property. [NAME_20] contributed $520,785 towards the purchase. The mortgage (for which each of [NAME_9], [NAME_24] and [NAME_20] was liable) was drawn down with $328,000 going to the purchase and the balance to other expenses including a car for [NAME_24]. [NAME_50] paid the balance of the purchase price from the proceeds of the sale of their house at Minto and their savings.

5. The Cecil Hills Property was incomplete and [NAME_50] say that they spent approximately $120,000 on various improvements. If the value of those contributions is taken into account then the respective contributions of [NAME_20] and [NAME_9] (and [NAME_24]) to the Cecil Hills Property were approximately equal. [NAME_9]'s evidence was that additional work which will cost approximately $85,000 will be required to improve the Cecil Hills Property. 6. [NAME_20] made the Will on 16 February 2013. 7. [NAME_20] died on 16 July 2015, having lived with [NAME_50] at the Cecil Hills Property from the time it was bought three years earlier.

8. Probate of the Will was granted to [NAME_9] on 10 November 2015. 9. [NAME_7] commenced these proceedings by summons filed on 24 June 2016.

10. I will now consider three disputed matters of fact.

[NAME_7]'s alleged contributions 1. [ADDRESS] finds that [NAME_7] made some contributions to paying off the mortgage over the [ADDRESS], Leichhardt property. [ADDRESS] also accepts [NAME_7]'s evidence that in relation to the [NAME_33], he did give his pay packets to his mother so that the family's resources were pooled to acquire the [NAME_33]. This finding is made for two reasons:

1. It seems to me to be inherently likely in the circumstances described by [NAME_7] that his parents would have made this kind of arrangement with him.

2. Even without specific evidence as to how much each member of the family was earning in the late 1970s, given the nature of their respective employment it seems to me that to have paid off a $28,000 mortgage in three years supports the determined pooling of resources to bring about that result. 1. [ADDRESS] notes that [NAME_9] denies [NAME_7] made such contributions. However, [NAME_9] has no direct knowledge whether [NAME_7] did or did not. Her denials are based on hearsay recollections of what [NAME_9] says [NAME_20] said from time to time. Because it is hearsay I give that evidence little weight and prefer what, in my mind, accords with the inherent probabilities, especially given the speed with which the mortgage was paid off.

2. In reaching this conclusion I have also not overlooked [NAME_48]'s evidence (see paragraph [50] above) that [NAME_20] said that [NAME_7] did not contribute any money to the [NAME_33]. While I do not doubt that [NAME_48] was trying to give his evidence to the best of his recollection, the fact remains that he had no file note (other than the [NAME_47]) of his conference on 13 March 2012 with [NAME_20] and [NAME_7]. [NAME_48], understandably, accepted that he had many clients and had had many conferences. In the circumstances, while acknowledging him to be an independent and disinterested witness, I have reached the conclusion (with no criticism intended) that his unassisted recollection is not a sufficiently reliable basis upon which to make any findings unless it is inherently probable or is consistent with other, contemporaneous documentary evidence.

3. While the Court accepts [NAME_7]'s evidence, at a general level, that he contributed his income to the family asset pool, that finding is only of limited assistance for [NAME_7]'s case. That is because no financial records have been produced that would enable the Court to form any view as to the relative financial contributions of [NAME_7] and his parents to the [NAME_33]. [NAME_7] did accept in cross-examination that in getting half, rather than one-third, of the [NAME_33] he received more in dollar terms than he had put in, including by reason of the increase in value of the [NAME_33].

4. Insofar as [NAME_7] says he contributed to an extension to the [NAME_33] in 1981 (see paragraph [26] above), in the absence of documentary evidence supporting that statement, I am not satisfied that [NAME_7] has discharged the onus of proof to establish that fact on the balance of probabilities.

[NAME_7]'s alleged repayments 1. [ADDRESS] accepts [NAME_22]'s List as accurate. It is a note prepared by [NAME_22] in circumstances where no reason has been shown as to why [NAME_22] would fabricate it or its contents. 2. [NAME_7] accepted that he had received the money for the Hillman Station Wagon, the amplifier and guitar, and the $4,000 for another car. 3. [ADDRESS] also finds that he did receive $40,000 from [NAME_20] rather than only the $30,000 to which [NAME_7] admitted. There are two reasons for this finding. First, as I have said, I accept the truth of what is set out in [NAME_22]'s List. Second, the payments to reduce [NAME_34]'s mortgage between November 1983 and February 1985 (see paragraph [31] above) are consistent with [NAME_7] receiving $40,000 rather than only $30,000.

4. Finally, [NAME_7] accepted that he had received $90,000 from [NAME_22] towards the construction of [NAME_34]'s current home at [ADDRESS]. The remaining question is whether the Court is satisfied that [NAME_7] "repaid" it or otherwise gave to his parents approximately $100,000 from the proceeds of sale of the Abbotsbury Property. [ADDRESS] is unable to make that finding for two reasons:

1. In the absence of documentary evidence such as financial records, the mere assertion of those facts by [NAME_7] does not discharge [NAME_7]'s onus to prove those facts on the balance of probabilities.

2. As I have already said, I accept [NAME_22]'s List. That list refers to the $40,000 and $90,000 as having been given rather than loaned, which is inconsistent with [NAME_7]'s characterisation of those amounts as loans. Furthermore, the final entry refers to $15,000 being returned. If [NAME_22] was prepared in [NAME_22]'s List to record money that had been returned, then there is no reason to think that he would not have recorded substantial repayments of the kind asserted by [NAME_7], or described loans as loans, if that is what they were.

1. In summary, the Court accepts that [NAME_7] received the benefits set out in [NAME_22]'s List. However, [NAME_7] has not established to the requisite standard of proof that he made the repayments which he said he did.

The [NAME_47] 1. [ADDRESS] accepts the [NAME_47] as accurately recording the arrangements between [NAME_20] and [NAME_7] for the following reasons:

1. It was not suggested to [NAME_48] that he had falsified the note. 2. [NAME_48] was an independent witness who would have had no reason to fabricate or falsify the [NAME_47].

3. Although from its appearance (see Schedule One) the words "with further claims on the estate after this" may well have been written in to fit around the date "13/03/12", that is equally consistent with those words having been written in because that part of the agreement was reached after the balance of the document had been prepared but before it was signed.

4. The reservations which I have expressed in paragraph [64] above about [NAME_48] as a witness are inapplicable to a contemporaneous document prepared by him.

5. Such an agreement seems inherently plausible because by that time (see paragraph [47] above) [NAME_20] had conceived her plan to buy a house with [NAME_9] and leave her share in that house to [NAME_9]. [NAME_7] an extra one-sixth of the proceeds from the [NAME_33] in return for him agreeing to make no further claims on the estate has a clear and rational basis.

1. In reaching this conclusion, I have taken into account [NAME_7]'s denials that such an arrangement was ever discussed in the conference with [NAME_48]. In the face of the [NAME_47], I do not accept those denials. However, it could not be and was not suggested that [NAME_7] was legally bound in the sense that he had abandoned his rights under the Act in a formal way. Nevertheless, based on the [NAME_47] the Court finds that [NAME_7] knew and understood that [NAME_20] was giving him an extra one-sixth over and above his entitlement in the [NAME_33] on the basis and with the intention that would satisfy any claims he might have against the Estate, so that whatever was left on her death would pass to [NAME_9].

The Estate 1. At the time of trial the Estate comprised an immaterial amount of cash and [NAME_20]'s 50% share as tenant in common in the Cecil Hills Property. The value of [NAME_20]'s 50% share at the time of hearing was approximately $775,000.

2. The Estate had no material liabilities, subject to one qualification. [NAME_9] submitted that the Estate had a liability to reimburse her and [NAME_24] for one-third of the mortgage repayments they have made both before and since [NAME_20]'s death and also for one-third of the cost of the various improvements they had made to the Cecil Hills Property (see paragraph [56] above). Because of the view the Court has taken as to the outcome of the proceedings, it is unnecessary for this issue to be resolved. 3. [NAME_7]'s costs on the ordinary basis up to and including the hearing were $91,600. [NAME_9]'s costs on the indemnity basis were $49,300 (but this figure was premised on a one day hearing when in fact two days were required).

[NAME_7] 1. [NAME_7] is the only son of [NAME_20] and [NAME_22] and is 61 years old. 2. [NAME_34]'s home at [ADDRESS] has a value of approximately $1,200,000, subject to a mortgage of approximately $240,000.

3. Bank records show that on 3 May 2012 approximately $340,000 from [NAME_7]'s share of the sale of the [NAME_33] was paid in to reduce his and [NAME_30]'s mortgage down to $6,000. He also paid off credit cards, repaid a debt he owed to [NAME_9] and bought cars for two of his children. [NAME_34] do not have savings. Nor do they have any material debts other than the mortgage over their home. [NAME_7] accepted that after paying down the mortgage account in 2012, he had used that account as an overdraft account to pay for overseas trips to Croatia and other discretionary expenditures. His evidence was that he expected to repay the mortgage from his and [NAME_30]'s income and when they "downsized" one day. 4. [NAME_34] have three adult children, all of whom (as well as the girlfriend of one of the children) live at home. None of the children or the girlfriend have been paying board or contributing to household expenses, although [NAME_7] said they were starting to do so. [NAME_7] accepted in cross-examination that he and his family (including his three children and one of their girlfriends) were able to live within their means, not spending more than what he and [NAME_30] were earning. 5. [NAME_7] has no trade or tertiary qualifications. He is currently employed by [NAME_51] on a casual basis and earns approximately $950 to $1,050 net per week. His taxable annual income for each of 2014 and 2015 was approximately $54,000. He had superannuation of approximately $17,000 as at 30 June 2015. 6. [NAME_30] works as a casual cashier at [NAME_52] earning approximately $329 net per week. For the 2013 to 2015 years her taxable annual income was approximately $29,000 in each year. She has superannuation of approximately $25,000.

7. By reason of the Court's findings in paragraphs [53] and [71] above, the Court also finds that during [NAME_22] and [NAME_20]'s lifetimes, [NAME_7] received benefits of $135,850 ([NAME_22]'s List), $175,000, and the capital appreciation in the value of his share of the [NAME_33].

Other interested persons 1. [NAME_9] is 57 and [NAME_24] is 59. 2. [NAME_9] works as a claims assessor. Her net pay as at June 2017 after tax and superannuation was $1,621.84 per fortnight (approximately $42,000 per annum). 3. [NAME_24] works for the Australian Federal Police. His net fortnightly pay varies but a payslip in evidence suggests it is about $1,500 (approximately $39,000 per annum).

4. Their annual expenses appear to exceed their incomes by $3,000 or $4,000, but given the various approximations in the evidence I do not regard that amount as material. 5. [NAME_50] have two adult children. [NAME_53], aged 27, lives independently in the country. [NAME_54], aged 25, still lives at home and works as a hairdresser. She sometimes, but not always, contributes about $100 per week to household expenses. 6. [NAME_24] and [NAME_9]'s assets are valued at $1,748,804 comprising their interest in the Cecil Hills Property (valued at $775,000); superannuation ($826,486 comprising $462,457 ([NAME_9]) and $364,029 ([NAME_24])); savings of $37,318; household effects of $10,000 and three motor vehicles with a total value of approximately $100,000. Their only debt apart from a car lease of $800 per fortnight is the mortgage over the Cecil Hills Property of $326,499. Therefore their net assets are $1,422,305.

Uncontroversial matters 1. [NAME_7] is [NAME_20]'s son, he is an eligible person under s 57 of the Act. The summons was filed less than 12 months after [NAME_20]'s death. It follows that the questions set out in sub-paragraphs (1), (2) and (4) of paragraph [11] above are all answered "yes". 2. The Provision referred to in the question posed in sub-paragraph [11](5) above is nil.

Has adequate provision not been made for [NAME_7]? 1. It is next necessary to consider what is sometimes referred to as the jurisdictional question. This is set out in sub-paragraph [11](6) above, namely whether the Court is satisfied, at the time when the Court is considering the application, that the Provision for [NAME_7] is not adequate for his proper maintenance, education or advancement in life. If that question is answered "yes", then the Court's discretion to make a family provision order in favour of [NAME_7] is enlivened.

2. In Verzar v Verzar [2014] NSWCA 45, Meagher JA (with whom Macfarlan and Barrett JJA agreed) summarised the legal principles governing this stage of the inquiry: "39. The primary judge concluded that Stephen's will did not make adequate provision for the respondent's proper maintenance, education and advancement in life. Whether such provision has been made requires an assessment of the applicant's financial position, the size and nature of the deceased's estate, the relationships between the applicant and the deceased and other persons who have legitimate claims upon his or her bounty and the circumstances and needs of those other persons: see Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 75 at [70] and McCosker v McCosker [1957] HCA 82; 97 CLR 566 at 571–572; Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 210; and Vigolo v Bostin [2005] HCA 11; 221 CLR 191 at [16], [75], [112]. Such an assessment is necessary because of the inter-relation between "adequate provision" and "proper maintenance". Whilst the inquiry as to what is "adequate" directs particular attention to the needs of the applicant, what is "proper" requires regard to all the circumstances of the case, and in particular the size and nature of the estate and the needs of the other beneficiaries or potential beneficiaries. As was observed by Sackville AJA in Foley v Ellis [2008] NSWCA 288 at [88], a court cannot consider the propriety and adequacy or inadequacy of any testamentary provision for an applicant in isolation from the resources and needs of the other claimants on the deceased's bounty."

1. In addition to the preceding passage from Verzar, I also respectfully adopt what Hallen J said in [NAME_3] v [NAME_4] [2012] NSWSC 1537 both as to the general approach to applications for family provision and judicial observations concerning claims by adult children. "154. Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education or advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: [COMPANY_55] v [NAME_57] at 19; [NAME_58] v [NAME_58] (NSWSC, Young J, 17 May 1996, unreported); [NAME_60] at 199 and 204; [NAME_63]; Sekers v Sekers [2010] NSWSC 59. 155. An important consideration is whether, in all the circumstances, the community expectation would be for greater benefaction to have been made for the proper or adequate provision of the person seeking provision. Gleeson CJ observed in [NAME_60], at 199, that the justification for interference with freedom of testation is to be found in the failure of a deceased to meet the obligations, which the community would expect in terms of maintenance, for those persons within the class of eligible persons. The process requires the court to "connect the general but value-laden language of the statute to the community standards". 156. As Allsop P said in [NAME_66], at [16]: "If I may respectfully paraphrase Sheller JA [in Permanent Trustee Co Limited v Fraser (1995) 36 NSWLR 24 at 46F–47B], the Court in assessing the matter at s 59(1) and the order that should be made under s 59(1) and (2), should be guided and assisted by considering what provision, in accordance with prevailing community standards of what is right and appropriate, ought to be made. This, Sheller JA said ... involved speaking for the feeling and judgment of fair and reasonable members of the community. It is to be emphasised that s 59(1)(c) and s 59(2) refer to the time when the Court is considering [an application for a family provision order] and the facts then known to the Court. The evaluative assessment is to be undertaken assuming full knowledge and appreciation of all the circumstances of the case. This ... makes the notion of compliance by the [NAME_67] with a moral duty (on what he or she knew) apt to distract from the statutory task of the Court." 157. In all cases under the Act, what is adequate and proper provision is necessarily fact specific. An inflexible approach cannot be taken in assessing the questions to be answered. 158 The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: [NAME_68], Allardice v Allardice (1909) 29 NZLR 959 at 966. 159. In relation to a claim by an adult child, the following principles are useful to remember: (a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe in terms of universal application, the obligation, responsibility, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801. (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death if he or she is able to do so. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: [NAME_69] v [NAME_70]. (d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: [redacted] (e) There is no need for an applicant adult child to show some special need or some special claim: [NAME_80] v [NAME_80]; [NAME_76] v [NAME_77] (No 2), at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45. (f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003) at [181], [182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17]. (g) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: [NAME_71] v [NAME_73], Executors and Agency Co of Australasia Ltd at 149."

1. Applying the principles just set out, the Court is not satisfied that the Provision is not adequate for [NAME_7]'s proper maintenance, education or advancement in life. The question posed in sub-paragraph [11](6) above is answered "No". The parties' submissions and the Court's reasons for this conclusion are set out in the following paragraphs.

[NAME_7]'s submissions 1. [NAME_27]'s submissions on behalf of [NAME_7] as to both the inadequacy of the Provision and what would be an appropriate Proposed Provision can be summarised as:

1. This was not a case where [NAME_7] was able to point to specific needs such as future medical expenses, renovations or the like. Appropriate provision would be somewhere between $50,000 and $100,000, primarily for the vicissitudes of life. At the higher end of $100,000, it would also take into account provision to meet ordinary living expenses. 2. [NAME_7]'s case was based upon an acceptance that he had contributed to mortgage repayments on the [ADDRESS], Leichhardt property and then the [NAME_33]. While the evidence did not permit the Court to be precise, there was a proper basis for the Court to conclude that [NAME_7] had made a sufficiently significant contribution to the mortgage repayments in relation to the [NAME_33] to enable repayment of the mortgage in a very short period of time and then, a couple of years later, for major renovations to be undertaken. On any view, he was entitled to the one-third interest in the [NAME_33] which he had as a tenant in common.

3. When the [NAME_33] was sold, [NAME_7] received an extra one-sixth — worth about $175,000 — over and above the one-third to which he was entitled.

4. The fact that [NAME_7] received approximately $175,000 extra from the [NAME_33] was not fatal to [NAME_7]'s contention that the nil provision for him in the Will was not adequate. This was because [NAME_7] had been instrumental in helping his parents establish the asset pool and that he had given up his right to earn income from his share in the [NAME_33]. Furthermore, he allowed his parents to live in the [NAME_33] for another 30 years without a financial return to him other than the incremental increase in the price of the property over time. Therefore, he had foregone the opportunity to use his share in the [NAME_33] to his advantage. As a result, he is now in a position where he and his wife have only very little superannuation and almost no savings. They have no other assets other than the family home and some old motor vehicles.

5. A figure between $50,000 and $100,000 would be proper provision. [NAME_7] was now 61 years old with approximately 24 years on average left to live. A sum of $100,000 would represent a payment of approximately $200 to $250 per week in financial assistance for that duration. Even if [NAME_34] were to downsize and pay off the mortgage, in the absence of superannuation or savings they would need, over and above the age pension, something in the vicinity of a payment of that amount to live adequately. 6. [NAME_7] accepted that he was given cash amounts from his parents of $30,000 in the early 1980s and another $90,000 in 1994, the Court should accept [NAME_7]'s evidence that those amounts were loans and that they were paid back. While there was not a lot of evidence on the question, the circumstantial facts supported [NAME_7]'s version of events. [NAME_9] was unable to give any direct evidence on the question, but instead relied on statements said to have been made from time to time by [NAME_20]. It was counterintuitive that [NAME_20] should have just handed over a large part of her compensation payment to [NAME_7] and for [NAME_22] to have provided $90,000 in circumstances where he had just retired unless those amounts were in fact loans.

7. In terms of assessing the competing needs of [NAME_9] and her husband, [NAME_34] are in a far more precarious financial position than [NAME_9] and her husband.

[NAME_9]'s submissions 1. [NAME_81]'s submissions on behalf of [NAME_9] may be summarised as:

1. The exercise of jurisdiction under s 59 of the Act does not involve attempting to achieve a fair disposition of the Estate and it is not for the Court to remodel the Will because it thinks that some additional provision would be fairer: [NAME_5] v [NAME_5] (No 2) [2016] NSWSC 396 at [93].

2. While an adult child does not have to show special need, the community does not generally expect a parent to look after his or her child for the rest of the child's life and into retirement (see paragraph [94] above).

3. Even if it were accepted that [NAME_7] had made the contributions to the [ADDRESS], Leichhardt property and then to the [NAME_33], giving him the extra one-sixth share on the realisation of the [NAME_33] (valued at approximately $175,000) stood for adequate provision.

4. In any event, the evidence did not allow the Court to be satisfied of the extent to which [NAME_7] had in fact made any contributions. His evidence on this was incomplete and inconsistent. Furthermore, it was complete speculation to suggest that he was somehow disadvantaged by being unable to access his equity in the [NAME_33]. On one view it was to his advantage to leave it in the property as a pre-capital gains tax asset. 5. [ADDRESS] should accept the correctness of [NAME_22]'s List. There is no reason to suggest that [NAME_7]'s father would have included the $40,000 if it had been repaid. In the absence of documentary proof, the Court should not accept [NAME_7]'s assertions that he had repaid the $40,000 and $90,000.

6. Ultimately no one had suggested to [NAME_48] that [NAME_48] had been part of an improper alteration of the [NAME_47] by inserting the words "with no further claims on the estate after this". [ADDRESS] should find that, while not legally binding, it records an acceptance by [NAME_7] that he was being given the extra one-sixth share in lieu of any provision being made for him in [NAME_20]'s will.

7. Therefore, the zero provision for [NAME_7] in the Will was not inadequate because he had been given more than his legal interest in the [NAME_33] and even that legal interest was the product of earlier generosity from his parents. He had also received financial assistance from his parents which was now part of the equity in his home.

8. Having reduced his mortgage to almost zero with his share of the [NAME_33], [NAME_7] was not to be criticised for having used his equity in his home to borrow funds for the various discretionary expenditures that had been referred to in the evidence, including trips back to Croatia. However, particularly as [NAME_7] must be taken to have known that there was no provision for him in the Will, the fact that he was now indebted as a result of those discretionary expenditures is not a reason either to suggest that the zero provision in the Will was inadequate or that further provision should be made for [NAME_7]. 9. [NAME_50] had mingled their financial fortunes with [NAME_20] in taking her into their new home. It was entirely sensible for [NAME_20] to have entered into such an arrangement and it was consistent with her intentions to leave her interest in the new home to [NAME_9]. [NAME_7] had received financial assistance from his parents during their life, and the Court should not interfere with [NAME_20]'s freedom of testamentary disposition in confining her benefaction to [NAME_9], with whom she had moved in and who looked after her for the last three years of her life.

10. In assessing the comparative claim of [NAME_50], while they were apparently comfortable, it needed to be considered in the light of:

1. A large part of their assets is superannuation as a result of their long periods of employment.

2. Their interest in the Cecil Hills Property is as tenants in common with the Estate as a result of the arrangement they entered into with [NAME_20] in 2015.

3. The net asset position still falls well short of the unencumbered value of even half of the Cecil Hills Property, let alone its entire unencumbered value.

Consideration 1. Having regard to the principles set out in paragraphs [93] and [94] above, I am not satisfied that by failing to give anything to [NAME_7] under the Will, [NAME_20] failed to make adequate provision for his maintenance, education or advancement in life generally for the reasons advanced by [NAME_81]. My own expression of my reasons for this conclusion are:

1. I accept the submission that the exercise of jurisdiction under s 59 of the Act is not concerned with achieving fairness or equality, particularly between siblings. While I have not overlooked that in terms of superannuation, in particular, [NAME_34] are not as well off as [NAME_50], that is not of itself sufficient to warrant the conclusion that adequate provision has not been made. 2. [NAME_7] is able to make ends meet and has a comfortable lifestyle including the capacity to continue to support his own adult children. [NAME_27] accepted that [NAME_7] was unable to demonstrate any specific needs (as opposed to a non-specific claim for a buffer against vicissitudes).

3. The Estate essentially comprises [NAME_20]'s interest in the Cecil Hills Property as part of a deliberate plan by [NAME_20] for her, [NAME_50]'s assets to become intertwined. Given the benefits that had been conferred upon [NAME_7], [NAME_20]'s carefully conceived testamentary plans to buy a property with [NAME_50] in return for them caring for her was entirely rational, not at all unreasonable vis-à-vis [NAME_7] and is entitled to considerable weight.

4. The community does not expect parents to look after adult children into retirement, especially when, as here, [NAME_7] is married with children so that there are others who have some responsibility towards [NAME_7] and his wellbeing. Nor are [NAME_7]'s current financial and other circumstances the product of hard times or other adverse factors out of his control. 5. [NAME_9] has a very strong moral claim on the Estate. She did not receive the financial assistance from [NAME_20] and [NAME_22] that [NAME_7] did. However, she agreed to entangle her and [NAME_24]'s assets with [NAME_20]'s as part of agreeing to care for [NAME_20] in her old age. She fulfilled her agreement. In my view, community standards would, in those circumstances favour [NAME_20]'s testamentary scheme being upheld.

6. While retirement may require [NAME_34] to downsize, it could not be suggested that even with their limited superannuation they will not be able to support themselves. With increasing frequency the Court is being confronted with the submission being made on behalf of adult plaintiffs that inadequate funds for retirement must always translate into a testamentary obligation on a parent to meet that need by way of a buffer or otherwise. That is not the law (see paragraphs [93] and [94] above). Every case depends upon its facts. When all the matters which I have referred to in the preceding sub-paragraphs are taken into account, I am not satisfied in this case that [NAME_7]'s (and [NAME_30]'s) small amount of superannuation and lack of savings is sufficient to warrant the conclusion that inadequate provision was made for him in the Will.

1. For the reasons given in the preceding paragraph, the question in sub–paragraph [11](6) should be answered "no". It follows that the Court's discretion to make a family provision order in favour of [NAME_7] is not enlivened. However, if I am wrong in that conclusion, I would still have declined to exercise the Court's discretion to order provision for [NAME_7] out of the Estate for the reasons given in the preceding paragraph and for the following additional reasons: 1. [NAME_7] received the cash benefits referred to in paragraph [83] above. Furthermore, by including him as a joint owner in the [NAME_33], [NAME_20] and [NAME_22] gave [NAME_7] the benefit of the significant capital appreciation (as a pre-capital gains tax asset, as events turned out) in the value of the [NAME_33]. That capital appreciation does not lose its character as a benefit because [NAME_7] contributed to the mortgage repayments. His parents nonetheless gave him the opportunity to participate in what turned out to be a good investment. Moreover, when the [NAME_33] was sold, [NAME_7] received an extra share valued at approximately $175,000. With the sale of the [NAME_33] he was able to reduce his mortgage to virtually nothing. 2. [NAME_7] had received the extra one-sixth from the proceeds of the [NAME_33] in the knowledge that [NAME_20] intended it to have the effect of precluding any further claim by [NAME_7] against the Estate given that she intended to bind her affairs to [NAME_50] in return for them caring for her in old age.

3. Given that the Estate now consists of the Cecil Hills Property, with which [NAME_50]'s affairs are inextricably bound as their home, any additional provision would require the Cecil Hills Property to be sold or for it to be further encumbered. That would be very much contrary to [NAME_20]'s testamentary scheme.

1. If it were necessary to be answered, the Proposed Provision referred to in sub-paragraph [11](8) above would be "nil".

Conclusion and orders 1. [NAME_7]'s summons will be dismissed. 2. [ADDRESS] will hear the parties on the question of costs. [NAME_1] v [NAME_2] (392 KB, pdf)

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 December 2017