Supreme Court Rejects Son's Claim for Estate Provision

The court dismissed the claimant's application for provision out of the estate, finding no adequate provision was made for his maintenance, given the significant diminishment of the estate's value and the claimant's low prospects of future employment.

Supreme Court New South Wales

Medium Neutral Citation: [NAME] v [NAME] [2019] NSWSC 1013 Hearing dates: 15 - 17 April 2019 Date of orders: 09 August 2019 Decision date: 09 August 2019 Jurisdiction: Equity - Family Provision List Before: Henry J Decision: (1) Dismiss the plaintiff's claim for provision out of [NAME]'s estate. (2) Make no order as to costs with the intent that the plaintiff is to pay his own costs of the proceedings and the defendant's costs are paid out of the estate on an indemnity basis. Catchwords: SUCCESSION – family provision – claim by adult son – son excluded from will – estrangement from [NAME] – estate left entirely to widow who was second wife – where value of the estate has diminished significantly since [NAME]'s death – where widow has low prospects of future employment – no provision made Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 Family Law Act 1975 (Cth), s 90 Succession Act 2006 (NSW), ss 59, 60, 100 Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.20 Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 Carusi-Lees v Carusi [2017] NSWSC 590 Chan v Chan [2006] NSWCA 222 Foley v Ellis [2008] NSWCA 288 Ford v Simes [2009] NSWCA 351 Gorton v Parks (1989) 17 NSWLR 1 Hastings v Hastings [2010] NSWCA 197 [NAME] (No 2) (1981) 2 NSWLR 532 MacGregor v MacGregor [2003] WASC 169 Marks v Marks [2003] WASCA 297 McCosker v McCosker (1957) 97 CLR 566 McDonald v O'Connor [2019] NSWSC 261 Oldereid v Chan [2013] NSWSC 434 Parke v Parke [2015] FCCA 1692 Philpott v Pantos [2018] NSWSC 852 Pontifical Society for the Propagation of Faith v Scales (1962) 107 CLR 9 Sgro v Thompson [2017] NSWCA 326 [NAME] (No 2): [NAME] v [NAME]; Gilroy v Neaves & Anor (2005) 65 NSWLR 268; [2005] NSWSC 1003 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 [NAME] v [NAME]; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Slack-Smith v Slack-Smith [2010] NSWSC 625 Steinmetz v Shannon [2019] NSWCA 114 Taylor v Farrugia [2009] NSWSC 801 Underwood v Gaudron [2015] NSWCA 269 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Worsley v Solomon [2008] NSWSC 444 Category: Principal judgment Parties: [NAME] (Plaintiff) [NAME] (Defendant) Representation: Counsel: [redacted] [NAME] (Defendant)

Solicitors: [redacted] [COMPANY] (Defendant) File Number(s): 2016/00351817

Judgment

Introduction 1. This is an application pursuant to s 59 of the Succession Act 2006 (NSW) by the plaintiff, [NAME], for provision out of the estate of his late father, [NAME] ([NAME]), who died on 1 January 2016. The plaintiff is the only child of [NAME].

2. The defendant, [NAME], is [NAME]'s widow and second wife. She is the sole executrix and beneficiary under [NAME]'s last will made on 11 December 2015.

3. The plaintiff commenced these proceedings by summons filed on 24 November 2016. It is not in dispute that the plaintiff is an eligible person under the Succession Act or that the proceedings were commenced within time. The only issue in dispute is whether the plaintiff has been left without adequate provision for his proper maintenance or advancement in life.

4. Without intending any disrespect, in these reasons I refer to the plaintiff, the defendant and other family members by their first names.

Background Facts 1. [NAME] is the adult son of [NAME] and [NAME]'s first wife, [NAME]. In 1974, [NAME] and [NAME] began a de facto relationship. In 1976, [NAME] was born. 2. [NAME] was growing up, he lived with [NAME] and [NAME] at the family home in [ADDRESS], Ballina (family home). From about the age of 16, he started working on Sunday afternoons for extra money at [NAME]'s business, which was a [NAME] in Ballina owned by [COMPANY] and trading as [NAME] ([NAME]).

3. In 1994, [NAME] completed his HSC and started a carpentry apprenticeship. During his apprenticeship, he moved out of the family home for about 12 months, moving back in after its completion.

4. In late 1999, [NAME] went overseas on a 12-month working holiday. When he returned to Australia, he moved back into the family home, working as a carpenter during the week and at the [NAME] on Sundays.

5. Sometime in 1999, the relationship between [NAME] and [NAME] deteriorated. [NAME] moved out of the family home and commenced divorce proceedings. She and [NAME] later reconciled and were married on 29 July 2001. [NAME] remained living in the family home with [NAME] during the period of his parents' relationship breakdown.

6. As part of their reconciliation, [NAME] and [NAME] entered into a financial agreement pursuant to s 90 of the Family Law Act 1975 (Cth), which provided for a half-share of two properties owned by [NAME] (including the family home), to be transferred into [NAME]'s name as a tenant in common, payment of financial support from [NAME] to [NAME] on an ongoing basis, and for [NAME] to transfer her interests in two properties to [NAME] in the event she and [NAME] separated (Financial Agreement). On 31 July 2001, after she and [NAME] were married, [NAME] also made a will which leaves the entirety of her estate to [NAME].

7. In 2002, [NAME]'s girlfriend (and now-wife), [NAME], moved into the family home with [NAME] and [NAME], which enabled [NAME] and [NAME] to save for their own home.

8. In 2005, [NAME] and [NAME] moved into a newly-built home of their own, and in 2008, they married. In 2012, they had their first child. They now have three children, aged three, five and six.

9. Between February 2002 and April 2015, [NAME] was employed at the [NAME] on a full-time basis and worked with [NAME]. His evidence is that he earned less money when he started working for his father, but did so because [NAME] said he would eventually take over the business and make more money than he was currently making (at [31], [NAME]'s affidavit dated 22 November 2016). [NAME]'s first full-time role at the [NAME] was as a console operator, although he also assisted with managing staff, stock, banking and wages.

10. In 2006, [NAME] completed a mechanical apprenticeship. He also undertook other courses relevant to the [NAME]'s workshop business and, in 2008, began working in the workshop on a full-time basis. In addition to his role in the workshop, [NAME] continued to assist with managing staff, wages, stock and banking. [NAME] moved into the workshop, [NAME] took holidays with [NAME] and left [NAME] to fill [NAME]'s role in the [NAME], although another employee, [NAME], was listed as the contact for security purposes.

11. In 2012, [NAME] was diagnosed with mesothelioma. He had previously had other serious health issues, including a diagnosis of stage 4 melanoma in 2004 and a heart attack in 2009.

12. Sometime in late 2012, [NAME] and [NAME] had a significant disagreement about [NAME] leaving the workshop unattended when, according to [NAME], he took six weeks paternity leave after the birth of his first child and, according to [NAME] abandoned the [NAME] and looked for another job. The exact period of time during which [NAME] stopped working at the [NAME] is unclear. From [NAME] records in evidence, it appears it could have been for a period of seven weeks and that he was back at work by at least 21 December 2012 (see annexures JP9 and JP10, [NAME]'s affidavit dated 16 July 2018). Whatever the reason or the period he was away, [NAME] returned to work at the [NAME] and he and [NAME] came to an agreement about [NAME]'s working hours, duties, and amounts for which he would be paid, which was documented by [NAME] (at [41], [NAME]'s affidavit dated 22 November 2016).

13. In late 2012, [NAME] met [NAME] while she was working at a café in Ballina which she co-owned with her de facto partner. [NAME] had moved to Ballina from Sydney in 2009 and had operated two cafes with her de facto partner, the second of which was called "[NAME]". [NAME] and her de facto partner separated in mid-2013.

14. According to [NAME] evidence, she and [NAME] got to know each other quite quickly and [NAME] told her he was estranged from his family (at [11], [NAME] affidavit dated 7 March 2017). Their relationship commenced sometime in May 2013. At this time [NAME] told [NAME] he had cancer but had received the "all clear" from his doctors after successfully undergoing chemotherapy (at [12], [NAME] affidavit dated 7 March 2017).

15. In late August 2013, after [NAME] became aware of the relationship between [NAME] and [NAME] and [NAME] separated (at [97], [NAME]'s affidavit dated 20 August 2018), although [NAME] remained living in the family home until 17 October 2014.

16. From sometime in November 2013, [NAME] moved on to [NAME]'s Rivera motor boat to live with [NAME]. [NAME] stayed on the boat most nights, bringing with him his dog. 17. [NAME] gave up working at her café in January 2014 and, from then, spent all her time with [NAME].

18. In July 2014, [NAME] commenced proceedings in the Federal Circuit Court against [NAME] seeking to enforce the terms of the Financial Agreement. I refer to those proceedings and related property settlement proceedings together as the Family Law proceedings.

19. In August 2014, [NAME]'s cancer recurred and he began immunotherapy treatment.

20. On 17 October 2014, [NAME] vacated the family home in accordance with interim consent orders made in the Family Law proceedings, after which [NAME] and [NAME] commenced living together at the family home. [NAME] brought a few personal belongings with her and stored her furniture in a shed on [NAME]'s adjoining property, which was rented to third parties. 21. [NAME] and [NAME] continued to work together at the [NAME] after [NAME] and [NAME] separated, and [NAME] became aware of [NAME]'s relationship with [NAME]. [NAME] gave evidence that, during periods in November 2014 and in January 2015 when [NAME] and [NAME] were travelling, [NAME] ran the [NAME] for [NAME] as he had previously when [NAME] was away or absent from the business (at [46], [NAME]'s affidavit dated 22 November 2016).

22. In November 2014, the owner of the property on which the [NAME] was located informed [NAME] that the lease would not be renewed and would terminate with effect from 30 April 2015. [NAME] and [NAME] discussed the closure of the [NAME]'s retirement plans and [NAME]'s intention to set up his own mechanical workshop business (at T61:15-39 and [15], [NAME]'s affidavit dated 16 July 2018). On 11 January 2015, [NAME] registered the business name "[NAME]", and sometime in early 2015, [NAME] gave [NAME] notice that his employment at the [NAME] would cease on 17 April 2015 (see 2JP1 to [NAME]'s affidavit dated 20 August 2018).

23. On 26 February 2015, [NAME] swore an affidavit in the Family Law proceedings on behalf of [NAME]. Shortly after, in March 2015, [NAME] and [NAME] had a conversation in which [NAME] told [NAME] that, from his perspective, [NAME] was taking [NAME]'s "side" and asked him to withdraw the affidavit. When [NAME] refused to do so, [NAME] told him that their relationship was over (at [49], [NAME]'s affidavit dated 22 November 2016). [NAME] gave evidence on [NAME]'s behalf at the hearing of the Family Law proceedings in late March 2015.

24. Although they continued to work together at the [NAME], from the day of their discussion regarding [NAME]'s affidavit, [NAME] and [NAME] did not speak to each other again as "father and son" (at T35:34, [50] [NAME]'s affidavit dated 22 November 2016; [24] [NAME] affidavit dated 27 April 2017). 25. [NAME]'s last day of work at the [NAME] was 17 April 2015. [NAME] had left, [NAME] sent him a lengthy email containing a number of allegations, including that [NAME] had lied about the amount of time he had spent away from the [NAME] in December 2012, had misappropriated funds from and failed to perform while working at the [NAME], and that [NAME] owed the [NAME] $38,385.08. The email also asserted that [NAME] would be commencing legal proceedings against [NAME] and that it would be the last form of communication between them. [NAME] replied to [NAME]'s email that night to the effect that he would be making his own complaint to [NAME] and also agreed that they would have no future communication.

26. From 17 April 2015, [NAME] and [NAME] did not communicate with or see each other again.

27. The [NAME] closed down on 30 April 2015. By this time, [NAME]'s health had deteriorated and [NAME] had commenced a routine of intensive care for [NAME] which involved her undertaking his nursing care and all other domestic activities while he was at home, taking him to various medical appointments and cancer treatment sessions, and spending time with him each day during periods of hospitalisation. This intensive care routine continued until [NAME] entered palliative care in November 2015.

28. On 19 June 2015, the Federal Circuit Court set aside the Financial Agreement, for reasons which included that [NAME] had dissipated [NAME]'s superannuation entitlements and failed to pay her ongoing financial support: Parke v Parke [2015] FCCA 1692 at [197] and [205]. [1] The Family Law proceedings continued for the purposes of the division of property and other assets between [NAME] and [NAME].

29. On 31 August 2015, [NAME] commenced a Fair Work claim against [COMPANY], the [NAME], in which he sought payment for unpaid wages and other entitlements in the amount of $18,902.60.

30. On 5 October 2015, [NAME] and [NAME]'s divorce was finalised.

31. On about 1 December 2015, [NAME] was hospitalised at St Vincent's Hospital in Ballina for palliative care.

32. On 11 December 2015, while he was in St Vincent's Hospital, [NAME] and [NAME] were married. [NAME] made his last will on the same day.

33. On 14 or 15 December 2015, [NAME] was appointed litigation guardian for [NAME] in respect of the Family Law proceedings. Around this time, [NAME] obtained orders for the return of $1 million which [NAME] had transferred to [NAME] in November 2015, interim lump sum spousal maintenance, and orders preventing [NAME] selling assets which were in his name, including the Riviera motor boat, a Winnebago motorhome and four properties.

34. On 1 January 2016, [NAME] died. [NAME] did not attend the funeral. 35. [NAME]'s Fair Work claim was subsequently undefended and, on 12 February 2016, he was awarded $18,902.66.

36. On 24 November 2016, [NAME] filed these proceedings.

37. On 18 December 2017, final property orders were made in the Family Law proceedings. It is not in dispute that [NAME] received a large proportion of the property and assets of [NAME]'s estate as a result of those orders, including the family home, [NAME]'s interest in three other properties, the Rivera boat, the superannuation account and other cash and chattels.

[NAME]'s will and statement of reasons 1. On 23 July 2015, [NAME] made a will leaving his entire estate to [NAME] and appointing her as his sole executrix (23 July will). He also granted [NAME] his enduring Power of Attorney. [NAME] updated his will on 11 December 2015 to include reference to [NAME] as his wife (11 December will).

2. When making the 23 July will, [NAME] prepared written reasons regarding his decision to exclude certain people from his will, including [NAME] (statement of reasons). The statement of reasons is attached to the 11 December will.

3. The 11 December will refers to [NAME] making no provision for [NAME] because they are separated, she "no longer takes any interest in his welfare", the Family Law proceedings will determine her entitlement to property maintenance, and for other reasons set out in the statement of reasons: cl 3. The 11 December will also states that it makes no provision for [NAME] and other persons for the reasons set out in the statement of reasons: cl 4.

4. It is not necessary to set out [NAME]'s explanations in the statement of reasons for excluding [NAME] and others from his will, but I have set out in full the part that relates to [NAME]: "I [NAME] being of sound mind do consciously without spite or hatred want noted by the courts in case my will is contested as to the reasons that I have chosen of my own free will to leave certain people put of my will. …..

4. My grandchildren to this date [NAME] from my son [NAME] who I have never been allowed to bond with or have a relationship with. The second child [NAME] I have only seem once in passing as my son made it quite clear to me that he would rather have his mother have a relationship with them.

5. My son [NAME] who I have never had a close relationship with and not without trying due to his mother's influence, He took to the stand against me in March, 2015 at the Federal Circuit Court on the grounds that he supported his mother 100%, Both him and his mother have joined forces against me to get whatever they can monetary wise and to see me go broke. He has made reference to many mutual acquaintances of his utter hatred towards me and how he wishes me dead so he can get his hands on my money and assets just like his mother. It is fact that he has told numerous people not to attend my funeral when I pass. He has never assisted me in any which way regarding helping me with household chores at home or at any of the investment properties or doing any extra work since I was diagnosed with mesothelioma in 2012. In fact he went out of his way to abandon my place of business for some time when I was diagnosed which is when I needed his support the most. He has treated me without respect or love most of his life and only came to me when he needed help or money. Example of this is when he abandoned my business he could not find work elsewhere because the community knew how he lacked work ethics and responsibilities, only after he was knocked back numerous times that he came back to me. Since closing my business it has come to light that he has been stealing money from me on a regular basis. Both him and his wife [NAME] were entrusted to do my bookwork for the business which they have left in a disgraceful mess for me to try and sort out. He has also stolen a number of items from me without my knowledge from my shed. He has continuously bad mouthed me and shamed me in front of a number of people including my staff. He has advised some mutual friends that he wants to change his surname to his wifes maiden name or to his mothers maiden name because of the absolute hatred he has for me. Lastly the last straw comes as I have discovered that he has also stolen approximately $400,000.00 in cash from my shed which I had being putting away for some time, this was done once again with his mothers help as she was the only one with the shed key. So I think that they have gotten away with enough and are laughing at me all the way to the bank. Neither of them have assisted me through my treatment in any which way as they just both want me gone and then to enjoy the fruits of my hard earned labour. All he wants is everything that I have worked hard for all my life just like his unappreciative mother because they both think that it is their god damn given right as he was taught by her. Neither of them have any morals in regards to what they will do for money."

1. Evidence of [NAME]'s testamentary intentions, as set out in the statement of reasons, is evidence that the Court may take into account in determining [NAME]'s application for provision: s 60(2)(j) Succession Act, and I return to the statement of reasons later.

[NAME]'s application for provision

Legal principles 1. [ADDRESS] may make an order for [NAME]'s provision out of [NAME]'s estate as the Court considers ought be made for his maintenance, education or advancement in life if it is satisfied that adequate provision for his proper maintenance, education or advancement in life has not been made by [NAME]'s will: s 59(1)(c) Succession Act. 2. [ADDRESS]'s assessment of whether to make such an order is to be undertaken having regard to the facts known at the time when it is considering the application (which in this case is 12 April 2019), and not when [NAME]'s will was made, at the time of his death or the date on which the application for provision was first made: s 59 Succession Act. This is particularly relevant in this case given the change in circumstances since [NAME]'s death and the hearing on 12 April 2019.

3. Section 60(2) of the Succession Act sets out matters to which the Court may have regard for the purposes of determining whether to make a provision order and the nature of such an order. Relevantly, those matters include: (a) any family or other relationship between the applicant and [NAME], including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by [NAME] 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 [NAME]'s estate, (c) the nature and extent of [NAME]'s estate (including any property that is, or could be, designated as notional estate of [NAME]) 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 [NAME]'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 [NAME]'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 [NAME] or to the welfare of [NAME] or [NAME]'s family, whether made before or after [NAME]'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 [NAME], either during [NAME]'s lifetime or made from [NAME]'s estate, (j) any evidence of the testamentary intentions of [NAME], including evidence of statements made by [NAME], (k) whether the applicant was being maintained, either wholly or partly, by [NAME] before [NAME]'s death and, if the Court considers it relevant, the extent to which and the basis on which [NAME] did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of [NAME], (n) the conduct of any other person before and after the date of the death of [NAME], … (p) any other matter the Court considers relevant, including matters in existence at the time of [NAME]'s death or at the time the application is being considered.

1. The Succession Act does not prescribe the circumstances that constitute adequate provision for the proper maintenance, education and advancement in life, nor does it give greater or lesser weight to any of the various matters set out in s 60(2) to which the Court may have regard for the purpose of determining whether to make a family provision order and the nature of any such order.

2. Determining whether inadequate provision has been made for the proper maintenance and advancement in [NAME]'s life requires a multifaceted evaluative approach that takes account of all the relevant circumstances of the case and is fact-specific to the application: Sgro v Thompson [2017] NSWCA 326 at [6] and [66]-[67]; Harris v Harris [2018] NSWSC 552 at [30]-[31].

3. As White JA in Sgro v Thompson [2017] NSWCA 326 said, at [86]: "What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court's assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable [NAME] or testatrix who has given due consideration to the claims on his or her estate."

1. The relevant circumstances will include a consideration of [NAME]'s needs, although there is a distinction between needs and adequate provision and whether or not adequate provision has been made is not to be determined simply by a calculation of financial needs. Any consideration of the needs of the applicant also requires consideration of the size the estate and the claims of others on it: Chan v Chan [2006] NSWCA 222 at [22].

2. What is adequate concerns quantum, and must be relative to [NAME]'s needs and also to his own capacity and resources for meeting them on the one hand and, on the other, the nature, extent and character of the estate and the other demands on it and also what the [NAME] regarded as superior claims: Pontifical Society for the Propagation of Faith v Scales (1962) 107 CLR 9, at 19.

3. Proper refers to the standard of the maintenance and advancement in [NAME]'s life and enables the Court to consider the 'station in life' of the parties and the expectations to which they have given rise based upon how they lived and might be expected to have lived in the future: Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [114]; [NAME] (No 3) (2007) 35 WAR 127; [2007] WASCA 235 at [72], [77]; Meres v Meres [2017] NSWSC 285 at [100].

4. While there are no special rules that apply to applications by adult children, the consideration of the facts that are relevant to determining whether an order for provision should be made in respect of an adult may be different to that of a child having regard to the passage of time and the differing nature of the relationship between that of a minor child and parent and an adult child and parent: Oldereid v Chan [2013] NSWSC 434 at [55]: McCosker v McCosker (1957) 97 CLR 566; [NAME] (No 2) (1981) 2 NSWLR 532.

5. The Courts recognise that "almost certainly views would differ" about whether parents have "a moral or natural obligation" to provide for able-bodied adult children: Hastings v Hastings [2010] NSWCA 197 at [20].

6. Hallen J set out the principles relevant to an application of an adult child in Carusi-Lees v Carusi [2017] NSWSC 590. I respectfully adopt his Honour's reasoning at [116]: "(a) The relationship between parent and child changes when the child attains adulthood. 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 moral obligation, 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, child up in a position where she or he 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": Taylor v Farrugia [2009] NSWSC 801 at [57]; McGrath v Eves [2005] NSWSC 1006; Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond [2015] NSWCA 42 at [109]. (c) Generally, also, "the community does not expect a parent to look after his or her children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime 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. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents 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] v [NAME] at [58]. (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: McCosker v McCosker [1957] HCA 82, (1957) 97 CLR 566; [NAME] (No 2) at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37 at 45; [NAME] v [NAME], at [58]. 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 at [179]-[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 are 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 [NAME]: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17]. (f) The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: [NAME] v [NAME], Executors and Agency Co of [COMPANY] at 149."

1. I now turn to the relevant additional facts and matters by reference to s 60(2) of the Succession Act.

The relationship between [NAME] and [NAME]: s 60(2)(a)

1. There is no dispute that sometime in late February or early March 2015, the relationship between [NAME] and [NAME] deteriorated significantly after [NAME] found out that [NAME] had sworn an affidavit in the Family Law proceedings on behalf of [NAME], which [NAME] refused to withdraw. While continuing to work together at the [NAME], any existing father and son bond between them ceased and they had no further conversations of a familial nature from that time.

2. It is also not in dispute that from 17 April 2015, the day on which [NAME] ceased employment at the [NAME], he and [NAME] were totally estranged and that they did not see or communicate with each other again for the remainder of [NAME]'s life.

3. What is in dispute is the closeness of the relationship between [NAME] and [NAME] over the period of [NAME]'s life prior to their estrangement and whether [NAME] should have taken any steps to repair his relationship with [NAME] prior to [NAME]'s death. 4. [NAME] maintains that he and [NAME] had a close personal and working relationship throughout their lives until their estrangement in March 2015. He gave evidence of [NAME]'s role in his life during his school years, which included teaching him to water ski and play squash, going to the Speedway, on work trips and on holidays together, and that he worked for [NAME] at the [NAME] on Sunday afternoons for extra money (at [19], [NAME]'s affidavit dated 22 November 2016).

5. Perhaps more relevant to this application, is the evidence that [NAME] and [NAME] continued to have both a personal and professional relationship well into [NAME]'s adult years. As the chronology of events indicates, [NAME] lived with [NAME] for most of the period between leaving school in 1994 and moving into his new home with his wife [NAME] in 2005. [NAME]'s evidence is that he was also in regular contact with [NAME] after he moved out of the family home. [NAME] visited [NAME] regularly, took [NAME] and [NAME] out for dinners, attended [NAME]'s rugby union games, was involved as a grandparent after [NAME] and he had their first child, and bought gifts for [NAME] and [NAME] (at [20], [28]-[29], [80(b)], [NAME]'s affidavit dated 22 November 2016; [45], [NAME]'s affidavit dated 16 July 2018). 6. [NAME] also gave evidence that [NAME] and [NAME] were close while [NAME] was growing up and after he left school (at [34], [NAME]'s affidavit dated 20 August 2018). 7. [NAME]'s evidence is that he witnessed tension between his parents during their marriage and that he intervened when [NAME] was physical towards [NAME] (at [45], [NAME]'s affidavit dated 16 July 2018). He also acknowledges that his relationship with [NAME] became more "distant" after he became aware of the relationship between [NAME] and [NAME]. [NAME] refused to meet [NAME] until after the legal proceedings between his parents were finalised (at [43]-[45], [NAME]'s affidavit dated 22 November 2016; [45], [NAME]'s affidavit dated 16 July 2018; [16], [NAME]'s affidavit dated 20 August 2018).

8. As to their working relationship, it is not in dispute that [NAME] and [NAME] worked together at the [NAME] for 12 years. [NAME]'s evidence is that [NAME] was proud of him attaining his mechanical apprenticeship certificate, trusted him to manage the business while [NAME] travelled and that, apart from the disagreement in December 2012, they had very few disagreements with each other during the time they worked together at the [NAME] (at [34], [36], [41], [NAME]'s affidavit dated 22 November 2016; at [11], [NAME]'s affidavit dated 16 July 2018). 9. [NAME] contends that his estrangement from [NAME] was at [NAME]'s instigation and followed from the email [NAME] sent to him on 17 April 2015, after [NAME]'s final day of work at the [NAME]. 10. [NAME] was cross-examined about his attitude towards [NAME] in 2015, after [NAME] ceased working at the [NAME]. [NAME] accepted that he did not visit [NAME] in hospital, did not send him any 'get well' or Father's Day cards, and did not notify him of the birth of his third grandchild (T46:2-44; T47:1-45). [NAME] was also asked about an SMS he sent that described [NAME] as the person "formerly known as dad". [NAME] accepted that he had lost respect for [NAME] and this was when there was no father/son relationship between them (T55:2).

11. In his statement of reasons, [NAME] asserts that he and [NAME] "never had a close relationship", that [NAME] was influenced by his mother and treated him "without respect and love most of his life and only came to [[NAME]] when he needed help or money". It also includes a range of other assertions which go to the character of the relationship between [NAME] and [NAME] prior to their estrangement in 2015, such as that [NAME] had not assisted [NAME] since he was diagnosed with cancer, and that he "went out of his way to abandon" his work at the [NAME].

12. The statement of reasons was written when [NAME] and [NAME] were completely estranged, and appear to attempt to justify excluding [NAME] from the will. [NAME]'s evidence disputing the matters referred to in the statement of reasons (at [80], [NAME]'s affidavit dated 22 November 2016), and [NAME] and [NAME]'s evidence of the familial interactions between [NAME] and [NAME] until late 2013, I consider that [NAME]'s assertions simply cast light on that relationship from [NAME]'s perspective in December 2015, rather than representing an accurate reflection of their relationship over the years: see also McDonald v O'Connor [2019] NSWSC 261 at [174]. 13. [NAME] gave evidence which also sought to contradict [NAME]'s evidence about the closeness of the relationship between he and [NAME], describing the relationship as "very volatile, even aggressive" before she became a part of [NAME]'s life in 2013. [NAME] deposed that [NAME] had given up on [NAME] from the time he was about 18 years old, [NAME]'s objected to [NAME]'s lifestyle and [NAME] had a negative opinion of [NAME]'s work ethic (at [45], [65] [NAME] affidavit dated 27 April 2017). [NAME] has not met [NAME] or personally witnessed any interactions between [NAME] and [NAME]. All of her evidence on those matters was based on statements made by [NAME] (T113:12-27). In those circumstances, and given [NAME]'s own evidence and his responses to [NAME] (at [45], [NAME]'s affidavit dated 16 July 2018) and my conclusions regarding the statement of reasons, I do not consider [NAME] evidence on those matters to be persuasive and I prefer [NAME]'s evidence. I also consider it unlikely that [NAME] would have continued to employ [NAME] in the [NAME] for as long as he did if the assertions in [NAME] evidence regarding the relationship between [NAME] and [NAME] were accurate or reflected [NAME]'s long held views. 14. [NAME] also relied on evidence from [NAME], a long-term employee of [NAME] who worked at the [NAME], and [NAME], a friend of [NAME]'s who had known him for 34 years. Both of these men gave evidence to the effect that [NAME] and [NAME] argued, had "differences" and a troubled relationship from before [NAME] started his relationship with [NAME] in 2013 (at [15] and [23], [NAME]'s affidavit dated 12 July 2018; [9], [NAME]'s affidavit dated 12 July 2018). While they were not cross-examined on these aspects, their evidence was of a general nature and not inconsistent with my findings below.

15. As Sackville AJA noted in Foley v Ellis [2008] NSWCA 288, at [102]: "Care should be taken, however, not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of the raw emotions experienced at the time."

1. The conclusion I draw from the evidence is that up until the second half of 2013, [NAME] and [NAME] had a continuing and close familial relationship which, at times, was likely strained by incidents involving [NAME] and [NAME] and work disagreements between [NAME] and [NAME], including the incident in late 2012. I accept there were arguments and periods of volatility between [NAME] and [NAME] prior to 2013. To my mind, that is to be expected in the context of [NAME] and [NAME] having worked together closely for many years, the usual ups and downs that any father and son relationship may experience, and what appears from the evidence to have been a difficult relationship between [NAME]'s parents and [NAME]'s somewhat controlling nature. As Basten JA recognised in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, at [39] "indifference, irritation or even outright hostility are also "natural" characteristics of some family relationships".

2. I also conclude that the nature of the relationship between [NAME] and [NAME] changed in 2013 after [NAME] was made aware that [NAME] and [NAME] were going to separate and after [NAME] discovered [NAME] role in [NAME]'s life. As [NAME] accepted, after being told of these matters his relationship with [NAME] became more distant and their social interactions, including visits to [NAME] and [NAME]'s home to see the grandchildren, appear to have been almost non-existent (T68:45-50). While they remained working together at the [NAME] for a further 18 months, I do not accept that they continued to have a "close and harmonious personal relationship" and would characterise it as familial, but strained, from that time.

3. As noted earlier, it is accepted that there was no father son relationship from sometime in March 2015 and total estrangement from 17 April 2015.

4. The Courts recognise that the existence of any estrangement between an adult child applicant and a [NAME] is a relevant factor to consider, including the causes of any estrangement between them, but the existence of an estrangement is not determinative: Burke v Burke [2015] NSWCA 195 at [95] and [103]. The term estrangement does not describe the conduct but the nature of the relationship which results from the attitudes or conduct of one or both of the parties: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [666] and [668].

5. This is not a case where his estrangement with [NAME] disentitles [NAME] from making a claim for provision. Nor should his decision to give evidence in support of [NAME], although it does suggest a closeness of a relationship with his mother in contrast to the relationship he had with [NAME] at that time.

6. While giving evidence on [NAME]'s behalf may have precipitated the breakdown of their relationship and estrangement, it was [NAME]'s reaction to those events that was the primary cause of the estrangement. [NAME] gave evidence on behalf of [NAME] in late March 2015 and [NAME] sent his 17 April email, it seems unlikely that anything would mend the relationship between [NAME] and [NAME] (at least in the short term) and I do not accept the submission that it was incumbent upon [NAME] to take steps to do so. [NAME]'s attitude towards and lack of contact with [NAME] after their estrangement are explicable given the attitude displayed by [NAME] towards [NAME], and are not matters that weigh heavily against his claim.

[NAME]'s obligations to [NAME] and to [NAME]: s 60(2)(b)

1. As [NAME]'s only child, [NAME] may be expected to be a natural object of [NAME]'s will. That said, there is no "presumptive testamentary entitlement of an [adult] offspring": Underwood v Gaudron [2015] NSWCA 269 at [73], and the question of the extent, if any, of a continuing moral obligation or responsibility owed by [NAME] to [NAME] can only be considered in the context of all the circumstances in this case.

2. As noted later in these reasons, it is apparent that [NAME] provided for [NAME] over the years. That support was more limited after [NAME] left the family home and, other than providing employment to [NAME], had ceased entirely by the time [NAME] and [NAME] commenced their relationship in 2013.

3. There is also evidence that, until he commenced his relationship with [NAME] was aware of a moral obligation to leave his estate to his only child. [NAME] acknowledged [NAME]'s claim by making statements to the effect that [NAME] would "end up with everything" and it would all be his when [NAME] "was gone" (at [76], [NAME]'s affidavit dated 22 November 2016). [NAME] also made statements to [NAME] over the years to that effect [NAME] would one day take over the [NAME], although [NAME] was aware that [NAME] would not give him the business without [NAME] paying for it (T61:8-10; [76], [NAME]'s affidavit dated 22 November 2016; [45], [NAME]'s affidavit dated 16 July 2018). The fact that [NAME]'s will did not reflect these statements is explicable by the subsequent breakdown of his relationship with [NAME] and [NAME]'s desire to provide for [NAME].

4. As [NAME]'s widow, [NAME] is the natural object of his will. While she had been his wife for only a period of weeks before he died and in a relationship with him for less than three years, there is no suggestion that theirs was anything other than a very happy relationship and that she provided [NAME] with a great deal of love, care and support while he was very ill and in the last stages of his life.

5. There is also evidence that [NAME] left the café and made no claim on it or any property claim against her ex-de facto partner after [NAME] contacted him to advise that [NAME] would be leaving because [NAME] had told her he would take care of her financially and she should not be concerned about giving up her interests (at T104:15; [12]-[13], [NAME] affidavit dated 7 March 2017).

[NAME]'s estate: s 60(2)(c) 1. [NAME]'s estate at the date of his death was substantial, with a gross distributable value estimated to be $5,119,281.10 (at [4(a)] and [8], [NAME] affidavit dated 7 February 2017). That amount comprised approximately $1.2 million in cash, superannuation, shares and annuities; two properties in Ballina estimated to be worth $470,000 and $420,000 respectively; the Riviera motor boat valued at $500,000; other chattels and jewellery worth $678,786; a stamp collection estimated to have a value of $1 million; and $822,500 of property owned jointly by [NAME] and [NAME] as tenants in common.

2. There was a dispute at the hearing about the value of the stamp collection and whether it belonged to the estate. Senior Counsel for [NAME] accepted that they had not established that the stamp collection belonged to the estate (T168:15). In any event, I prefer [NAME] and [NAME]'s evidence that it was treated as "[NAME]'s stamp album" while [NAME] lived at the family home, [NAME] took it with him when he left, and it was purchased from [NAME]'s grandfather's estate (T67:21; T157:13; [44], [NAME]'s affidavit dated 16 July 2018; [153] – [164], [NAME]'s affidavit dated 20 August 2018).

3. I also accept [NAME]'s valuation of $5,000 - $10,000 (T53:28) over [NAME] valuation of $1 million in circumstances where she had not seen the collection herself, was told what the stamps looked like by someone other than [NAME] and the valuation was based on internet research she did after [NAME]'s death (T93:10-40). The only other evidence of the value of the stamp collection was what [NAME] allegedly told a third party some 30 years ago (T141:35-40), which was not put to her in cross-examination.

4.

Accordingly, I have approached the application on the basis that the value of the assets of [NAME]'s estate at the time of his death was $4,119,281.10. 5. [NAME]'s death, the value his estate has dwindled significantly. This is primarily due to the final property orders made in the Family Law proceedings on 18 December 2017 which led to [NAME] receiving a large amount of the property and other assets held in [NAME]'s name and in their joint names.

6. Further, between [NAME]'s death and the hearing, the estate has also paid out a range of other liabilities and testamentary expenses. These include legal costs of the Family Law and probate proceedings, tax and insurance amounts and other expenses, which I estimate to be in excess of $1 million based on the evidence before the Court (at [18] and [20], [NAME] affidavit dated 7 February 2017; [7], [NAME] affidavit dated 6 April 2018; [97], [NAME] updated beneficiaries affidavit dated 10 April 2019). It has also paid legal costs in relation to these proceedings of $115,861.35 (at [3], [NAME] dated 10 April 2019).

7. Taking into account those matters, at the date of the hearing, the assets of the estate have an estimated value of $743,523.67 (at [2], [NAME] updated executor's affidavit 10 April 2019), consisting of the following: Description Estimated $ NAB Estate Account in the name of [NAME] the Estate of the [NAME] $196,898.67 [ADDRESS], Ballina, NSW $460,000.00 299 shares in [COMPANY] held in the name of [NAME] under management of [NAME] $13,645.00 2011 Toyota Hilux registration JP-063 $20,000.00 Solicitor's trust Account $52,980.00 TOTAL $743,523.67

1. The unpaid liabilities of the estate at the date of the hearing (which excludes a claim by [NAME] as executor for compensation or commission), are estimated to be $99,839.43 (at [3], [NAME] updating executor's affidavit dated 10 April 2019). That estimate includes the executor's unpaid legal costs to the completion of the hearing in the amount of $93,544.43 (at [3], [NAME] dated 10 April 2019).

2. The usual approach is that a defendant executor is entitled to their costs out of the estate on an indemnity basis, even if a claimant is successful, although some departure from that approach may be justified in certain circumstances: McDonald v O'Connor [2019] NSWSC 261 at [127].

3. I adopt the usual approach in this case and will take into account the estimate of [NAME] costs on an indemnity basis in calculating the net value of the assets of the estate which are available for distribution. As Basten JA said in Chan v Chan [2016] NSWCA 222 at [54], "[i]n considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs".

4. After taking into account all unpaid liabilities and legal costs, the net value of the assets of the estate which are available for distribution is estimated to be $643,684.24. There is no notional estate.

5. During the hearing, [NAME]'s counsel criticised [NAME] for claiming $28,164.69 as testamentary expenses, which comprised payments for outgoings related to [NAME] occupation of the family home from [NAME]'s death to early 2018, and reimbursements for pet food and vet expenses for [NAME]'s dog. [NAME]'s counsel submitted that these amounts were properly characterised as [NAME] personal expenses, rather than estate expenses, and should be treated as a benefit provided to her from the estate (T160:34-37). As no submission was made that those amounts should be reimbursed or made available for distribution from the estate, I have approached the matter on the basis that the net value of the estate that is available for distribution remains the amount identified above, being $643,684.24.

6. Suffice to say, what was once a considerable estate is now significantly depleted. The bulk of the available estate comprises a property at Ballina which is currently unoccupied. The evidence indicates that an amount of $350,000 would be required to make good existing defects and renovate the property to a liveable standard and it would cost $450,000 to demolish the existing dwelling and build a new house (at [79] and annexure AD8 to [NAME] updating beneficiaries affidavit dated 10 April 2019).

[NAME]'s personal and financial circumstances and financial needs, and that of [NAME]: ss 60(2)(d), (e), (f) and (g)

Age and personal circumstances 1. At the date of the hearing, [NAME] was 42. He is married to [NAME] and has three young children aged three, five and six years old.

Assets and liabilities 1. [NAME] put on evidence of his and [NAME]'s assets, as follows: Description Estimated $ Property 35 Ridgeway, Cumbalum 2478 (home and joint asset) $600,000.00 Shares $5,374.00 NAB 212 shares $94.00 CSS 100 shares $1,484.00 QAN 255 shares $2,730.00 MPL 1,000 shares Bank account/cash (joint) $9,800.00 Superannuation $45,000.00 [NAME] $47,500.00 [NAME] $15,000.00 2006 Toyota Hilux SR 5 $13,000.00 2012 Subaru Liberty Exiga $25,000.00 2015 Jayco Swan Outback Business – plant and equipment $40,000.00 Stamp album $5,000.00 TOTAL ASSETS $810,482.00

1. [NAME] and [NAME]'s liabilities are as follows: Description Estimated $ Mortgage 35 The Ridgeway, Cumbalum (joint) $272,000.00 Credit Cards $3,757.00 Go Mastercard $5,900.00 NAB Visa Bank overdraft NAB $49,800.00 Income tax – [NAME] $15,000.00 Chattel mortgages $ 2,600.00 Business creditors $ 8,000.00 Loan from [NAME] ($10k business + $50k oao barrister fees $60,000.000 TOTAL LIABILITIES $417,057.00

1. As a result, [NAME] and [NAME]'s net worth is currently estimated to be $393,425.00. 2. [NAME] and [NAME] set aside $240 per month into bank accounts held on trust for their children and from which expenses associated with their upbringing are paid (T55:25-50). There is no evidence before the Court as to the current cash amount in those bank accounts and they are not included in the assets listed above.

Health 1. [NAME] is in good health. [NAME] suffers from Crohn's disease, which requires ongoing specialist treatment and medication. Two of [NAME]'s children have a top lip frenulum which may require surgery in the future although [NAME] did not provide an estimate as to the cost of that surgery.

Employment and income 1. [NAME] is self-employed and has been running his own mechanic workshop business called [COMPANY] since 1 July 2015. His net business income for the financial year ending 30 June 2018 was approximately $87,000, on which tax is yet to be assessed. [NAME] employs one person and had gross sales of approximately $500,000 in the financial year ending 30 June 2018. The evidence indicates that [NAME]'s income and gross sales have, on average, increased since he started his business in July 2015. 2. [NAME] works as a bookkeeper on a part-time basis (two days per week) and the equivalent of another day at home, working mostly at night when the children are in bed. She has a net monthly income of $2,780.00. I accept her evidence that she does not intend to increase her working hours, to enable her to be available to spend time with their children. 3. [NAME] and [NAME] estimate their joint average monthly expenditure to be $7,266. They are currently meeting their monthly expenses from their combined income, although there is not much "left over". They do not lead an extravagant lifestyle and take occasional family holidays in their caravan.

Financial needs 1. In terms of his future financial needs, [NAME] requires $100,000 to purchase additional capital equipment for his business in order to grow and fully equip the mechanical workshop (at [70], [NAME]'s affidavit dated 22 November 2016; at [20] [NAME] affidavit 8 April 2019). He also submits that he needs some further provision for contingencies and to pay down some of his mortgage. The total provision he seeks for those purposes is $250,000.

[NAME] personal and financial circumstances and financial needs: ss 60(2)(d), (f) and (g)

Age and personal circumstances 1. [NAME] is 55 years old. She is single, unemployed and is currently living with friends as she does not own her own house.

Assets and liabilities 1. [NAME] assets are very limited. She does not own any property, does not have any superannuation and does not own any shares or any other investments.

2. At the date of the hearing, the value of her assets was estimated to be $46,068.94, comprising: 1. $21,068.94 held in four bank accounts. This amount includes the residue of a lump sum payment (of $335,650) which she received in March 2016 from the Dust Diseases Authority as [NAME]'s widow; and 2. a second-hand 2007 Mercedes motor vehicle, valued at approximately $25,000. 1. [NAME] did not identify any current liabilities. 2. [NAME] did not identify the value of any personal items other than her car.

Health 1. [NAME] evidence is that she has experienced a number of health issues since [NAME] died, which has resulted in her health declining significantly, to the point where she is now in constant pain, is prevented from doing her usual day-to-day activities, requires a further operation on her left hand and is unable to work (at [8]-[16], [NAME] updating beneficiaries affidavit dated 10 April 2019; T109:25 - 40).

2. There are a number of medical reports in evidence which corroborate [NAME] evidence. These include a summary report dated 7 March 2019 from her treating general practitioner, [NAME], which indicates that [NAME] health has deteriorated since early 2016 and lists a number of medical issues she has faced since that time (at annexure AD1 to [NAME] updating beneficiaries affidavit dated 10 April 2019). 3. [NAME]'s report identifies [NAME] current medical issues as follows: 1. stress, anxiety and depression. The report confirms that she remains on an antidepressant medication and continues to suffer those symptoms to varying degrees but that she has always coped to date; 2. chronic lower back pain, which she developed while dealing with the physical requirements of caring for [NAME], and which has been diagnosed as mechanical and radicular back pain, which evolved to chronic pain and was exacerbated by her anxiety and depression. The reports notes that this pain may be treated by diagnostic facet joint injections which [NAME] has not yet taken up; 3. injuries to her right shoulder, both involving a SST tear, which have been managed by steroid injections, medications and physiotherapy, but which continue to cause considerable amounts of pain; and 4. a left arm nerve injury which occurred when she fell over in July 2016 which required surgery and subsequent hand therapy, and was complicated by a left elbow septic arthritis. The report notes that the nerve in [NAME] hand has not regenerated and she continues to suffer a degree of permanent incapacity which may be improved by having a tendon transfer operation in the future.

1. While not referred to in [NAME]'s report, [NAME] deposed that she remains on daily pain medication for her back (at [9], [NAME] updating beneficiaries affidavit dated 10 April 2019).

2. There is also a report from a reconstructive hand surgeon, [NAME], dated 29 May 2018 (at annexure B, [NAME] affidavit dated 31 May 2018) which opines that, even with a successful further operation, the nature of [NAME] left arm nerve injury means that she is unlikely to work in the hospitality industry again, and her future working capacity in another industry would be better determined by a rehabilitation consultant.

Employment and income 1. [NAME] is currently unemployed, having ceased working at the cafe in January 2014 after she went to live with [NAME].

2. She has spent much of the past three and a half years engaged in her duties as an executor and dealing with various legal proceedings, namely the Family Law proceedings, probate proceedings and these family provision proceedings.

3. Given her age, identified health issues and the opinion of Dr [NAME] future employment prospects are low. Without surgery to her left arm, retraining and rehabilitation, she may be unable to work again.

4. The only income [NAME] has and expects to receive in the near future is a fortnightly payment from the Workers Compensation Dust Diseases Authority in her capacity as [NAME]'s widow, which is currently $589 per fortnight.

Financial needs 1. [NAME] gave evidence of her future financial needs, which she estimates might be met if she receives all the estate assets in keeping with the will to be approximately $628,550 (at [56], [NAME] updating beneficiaries affidavit dated 10 April 2019). 2. [NAME] estimate of her future needs comprised, in large part, the amount of $450,000-$500,000, for a three-bedroom home in the Ballina area with a fully fenced yard suitable for [NAME]'s dog. At the hearing, [NAME] accepted that a two-bedroom home would be sufficient, for which she estimates she needs $410,000-$500,000, based on real estate advertisements for houses in the Ballina area (Ex 5). 3. [NAME] estimates that she requires approximately $88,550 for annual recurring personal expenses. I have approached that amount with some caution as it is based on estimates which appear high for a single person (for example, $20,000 per year on food) and includes at least one duplicate item ($2,000 for gifts). It is also an amount which [NAME] will be unable to afford on an ongoing basis if uses most of the estate's assets to purchase a property of her own (in the absence of some further income). That said, many of the figures do not seem unreasonable and it provides some guidance to the Court for her future needs, accepting that it will not fund a lifestyle similar to what she experienced with [NAME] (which included business class travel). 4. [NAME] was challenged on her financial position and needs at the hearing.

5. She was cross-examined about how she had spent $314,581.06 in three years, comprising the lump sum amount she received from the Dust Diseases Authority as [NAME]'s widow in early March 2016 (at T117:28-38, T119:11-18). 6. [NAME] was vague as to the use of all the funds, although she did give evidence that she bought a small vehicle, had many out of pocket medical expenses, and that some of her clothing, furniture and other chattels located at the family home and stored in the shed on the adjoining property were ruined due to flooding in 2016 and vermin and had to be replaced (T119:1-10; [55], [NAME] updating beneficiaries affidavit dated 10 April 2019). [NAME]'s counsel asked whether she had made any insurance claim in respect of those effects. She accepted that she hadn't and gave evidence that she did not know whether any insurance was available to reimburse her for those amounts (T118:35-50). 7. $314,581.06 is not an insubstantial sum to have spent over a period of three years, although I do not accept that it indicates that [NAME] has been so profligate that her estimate of financial needs going forward should be significantly discounted. Taking issue with how she spent those funds, such as paying for a two-week holiday to Thailand is, in my view, of no real significance in the context where she received the funds as [NAME]'s widow and is not making a competing claim for provision. 8. [NAME] was also pressed on why she has not made any financial claim in relation to the café and any other property she owned with her ex-de facto partner, or any personal injury claim for her left arm injury which she sustained in a fall at a friend's property (T104:15 – T108:19).

9. To the extent that she has any claim in respect of her interest in the café, her evidence, which I accept, is that it was "basically sold…for nothing" (T104:25). There is also no evidence that she and her ex-de facto partner owned any other property over which she might have a claim. In that context, I do not accept the submission from [NAME]'s counsel that it was unreasonable for [NAME] to have relied on [NAME]'s statements that he would provide for her financially and that she need not worry about abandoning any claims she might have had against her ex-de facto partner, or the suggestion that [NAME] may have available to her some other amount of money or support from which she could fund her future accommodation needs and her ongoing living expenses.

10. As to the possibility of making an insurance claim or medical negligence claim, I do not accept the submission that such claims can or should be taken into account in considering [NAME] financial position and future income. They are, at this stage, entirely speculative and no figure can be placed on their value, assuming they have any value at all. I also accept that it was reasonable for [NAME] not to have pursued them yet in view of [NAME]'s death, her own health issues and the volume of litigation she has been involved in as executor of [NAME]'s estate, and that she may not do so in the future.

11. As noted earlier in these reasons, [NAME] was also challenged on the $28,164.69 she claimed as testamentary expenses, which was said to be to her personal benefit. A submission was also made that she has received from the estate further benefits as she lived in the family home until early 2018, free of any obligation to pay rent, utilities, insurance or mortgage repayments, and had the use of a motor vehicle paid for by the estate.

12. I accept the submission that [NAME] has received some non-cash benefits from the estate. In my view, those benefits are more relevant to the question of whether [NAME] should be entitled to any compensation or commission for her role as executor, rather than to the consideration of her ongoing financial needs and whether adequate provision has been made for [NAME]'s proper maintenance and advancement in life. To the extent it is necessary for me to comment on [NAME] claim for executor compensation, I accept the submission of [NAME]'s counsel that the amount of $500 per week claimed by [NAME] is excessive and a small amount would be appropriate in circumstances where she has already received non-cash benefits from the estate, as referred to above.

[NAME]'s contributions to [NAME]'s estate: s 60(2)(h) 1. [NAME] made contributions to the [NAME] over the years as an employee, for which he was paid, although accepting that he had to make a Fair Work claim in respect of that employment. There was also evidence that, on weekends and after work on weekdays, [NAME] renovated the [NAME] shop and office to improve the functionality of the business, landscaped the gardens to improve the parking and aesthetics of the business, and repaired and serviced the driveway pumps to save costs and minimise equipment downtime (at [37], [NAME]'s affidavit dated 22 November 2016). [NAME] did not lead evidence about the value of this work, when it was undertaken, or how long it took. 2. [NAME] also gave evidence that he worked long hours for no overtime or bonus because [NAME] told him that he would receive the [NAME] one day (at [74], [NAME]'s affidavit dated 22 November 2016). As noted earlier, [NAME] knew that he would have to pay for the business if he was to get it and was aware it was going to be closed down in 2015. I also note that [NAME]'s Fair Work claim did not make any claim for unpaid overtime, but was limited to unpaid leave entitlements.

3. As to his other contributions, I accept [NAME]'s evidence that he charged less than commercial rates for building the deck at the family home and, on occasions, helped [NAME] with his investment properties and work around the family home, although the time he spent doing so decreased after [NAME] had his own family: (at [45], [NAME]'s affidavit dated 16 July 2018). Such contributions are, to my mind, the kind that would naturally be expected in a harmonious family relationship.

Any provision made by [NAME] for [NAME] during his life: ss 60(2)(i), (k)

1. It was accepted that [NAME] has received provision from [NAME] during [NAME]'s lifetime. This includes [NAME] providing the following: 1. paying for [NAME]'s carpentry apprenticeship after [NAME] finished school; 2. paying for half the costs of a work utility in the amount of $18,000; 3. providing free accommodation in the family home for the period [NAME] was working and living there, including from 2002 - 2005 while [NAME] and [NAME] lived there together, without asking for any contribution to outgoings or other living costs; 4. agreeing with [NAME] to be guarantors for the loan [NAME] and [NAME] took out to pay for the costs associated with their new home; 5. paying $4000 towards the cost of [NAME]'s wedding; 6. contributing $5000 towards the cost of IVF treatment; 7. providing continuous full-time employment at the [NAME] from 2002 to 2015; 8. paying the relevant fees and providing time off work to enable [NAME] to qualify as a motor mechanic and a building contractor; and 9. assisting with funding [NAME]'s overseas trip to England in 1999 by paying for his return flights.

1. Based on the evidence, I also accept that [NAME] loaned [NAME] $155,980 in October 2006, which [NAME] repaid in December 2007, although I note that [NAME] does not recall this loan (at [45], [NAME]'s affidavit dated 16 July 2018).

[NAME]'s testamentary intentions, including evidence of statements made by [NAME]: s 60(2)(j)

1. The statement of reasons was admitted into evidence without objection and should be considered on the application, although it does not relieve the Court from engaging in the enquiry required by the Succession Act: Slack-Smith v Slack-Smith [2010] NSWSC 625 at [27].

2. In appropriate cases, considerable weight may be given to a [NAME]'s testamentary wishes as to who should benefit from their estate if it can be seen that the [NAME] was capable of, and did, give due consideration to the claims on their estate. This approach recognises that a [NAME] is in a better position than the Court to make such an assessment. But the application of s 59 of the Succession Act is "not confined by notions of reluctance to interfere with freedom of testation", and the expression of [NAME]'s testamentary wishes contained in the statement of reasons is just one of many matters to be taken into account: Steinmetz v Shannon [2019] NSWCA 114 at [96] per Brereton JA; Sgro v Thompson [2017] NSWCA 326 at [83]; [NAME] v [NAME]; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127].

3. On its terms, the statement of reasons makes clear that [NAME] gave consideration to [NAME] as someone who may have a claim on his estate. The issue is what weight should be given to the assertions regarding [NAME]'s character and conduct, some of which are assertions of a very serious nature, as a justification for excluding [NAME] from the will.

4. The statement of reasons does not need to be unquestioningly accepted as the truth of the matters referred to because, just as is the case with a living witness, those matters may be inaccurate or unreliable because of a mistake, failure of memory or a deliberate untruth: Carusi-Lees v Carusi [2017] NSWSC 590 at [59]; Worsley v Solomon [2008] NSWSC 444 at [35].

5. If the truth of the assertions made by [NAME] about [NAME] in the statement of reasons were admitted or corroborated by the evidence, then due weight might be given to them: McDonald v O'Connor [2019] NSWSC 261 at [174]. Even if [NAME] cannot disprove the assertions made against him, it does not mean they should be accepted as true or operate to negate his application for a provision order: McDonald v O'Connor [2019] NSWSC 261 at [177] - [178]. 6. [NAME] denied or disputed most of the assertions [NAME] made in his statement of reasons (at [80]-[81], [NAME]'s affidavit dated 22 November 2016), and Senior Counsel for [NAME] did not submit that the statement of reasons accurately reflected [NAME]'s actions. Many of the assertions made go to the nature of the relationship between [NAME] and [NAME], which I have dealt with earlier in this judgment. I now deal with some of the other matters raised.

7. The statement of reasons asserts that [NAME] stole money from [NAME]'s business and items from [NAME]'s shed, the most serious of which is an allegation that [NAME] stole approximately $400,000 in cash from the shed. Senior Counsel for [NAME] conceded (rightly in my view), that it was open to the Court to find that there was not sufficient credible evidence to support a finding that [NAME] had stolen $400,000 cash from [NAME]'s shed. I agree and do not accept the truth of that assertion or the other allegations that [NAME] stole funds from [NAME]'s business or items from the shed. 8. [NAME] came across as a credible and honest witness when questioned about these matters and, whilst he has an obvious interest in the outcome of the case, I accept his denial in cross-examination, as well as his other evidence that he did not steal $400,000 from [NAME]'s shed or take money from [NAME]'s business (T54:46; at [81], [NAME]'s affidavit dated 22 November 2016).

9. I also consider it implausible that, having apparently identified $400,000 missing from his shed in March 2015 on return from an overseas holiday and telling three people that it had been taken by [NAME] (at [15], [NAME] affidavit dated 27 April 2017; at [11], [NAME]'s affidavit dated 12 July 2018; T142:45-50), [NAME] did not report the theft to the police or confront [NAME], continued to work with [NAME] at the [NAME], and made no reference to it in his 17 April 2015 email to [NAME] in which he made other allegations that [NAME] had misappropriated funds. I also find implausible the suggestion that [NAME] kept that amount of money in a satchel in a locked shed during periods when the property was unattended because "he didn't believe in banks" (T143:5-13) in circumstances where the evidence indicates that [NAME] kept larger amounts of money in bank accounts, such as the $1 million which was transferred to [NAME] in November 2015.

10. There is no evidence about the other items supposedly stolen from the shed. The only other allegation of theft concerned the stamp collection, which I have already dealt with. 11. [NAME] was challenged in cross-examination about other matters referred to in the statement of reasons, including that he told people not to come to [NAME]'s funeral and wanted to change his surname to [NAME]'s maiden name. [NAME] denied doing so (T64:1-10) and I accept his evidence. To the extent [NAME] had indicated to others his views about [NAME] in a disparaging way around this time, I do not consider that doing so reflects negatively on him in the context of this application given the nature of the allegations made against him by [NAME] in the 17 April 2015 email and the total breakdown of their relationship.

12. As to the suggestion in cl 4 of the statement of reasons that [NAME] was never allowed to bond or have a relationship with his first two grandchildren, the evidence adduced by [NAME], which includes photos of [NAME] with his first grandchild, suggests otherwise and is consistent with [NAME] spending no time with [NAME] and his family from around mid-2013 when his relationship with [NAME] commenced.

13. The statement of reasons was made at a time when the relationship between [NAME] and [NAME] had irretrievably broken down, and remained so in December 2015, when the second will was made. The emotive and vitriolic nature of the assertions made by [NAME] reflects, in my view, the antipathy he felt towards [NAME] for "siding" with [NAME] and giving evidence on her behalf in the Family Law proceedings, rather than [NAME]'s failure to support the [NAME] or provide affection to his father over many years. It must also be read in the context where, only one month prior, the Court had determined that the Financial Agreement should be set aside and [NAME] had previously told [NAME] he did not wish to have any further communication with him.

14. The statement of reasons confirms the desire of [NAME] to fully provide for [NAME] to the exclusion of [NAME] and [NAME]'s view of his relationship with [NAME] at the time it was made. It is of no weight as evidence of [NAME]'s conduct and character over the years.

Whether there is anyone else liable to support [NAME]: s 60(2)(l) 1. [NAME]'s mother, [NAME], is still alive. [NAME] has loaned [NAME] $60,000 to support his business and help fund these proceedings. 2. [NAME] is in a position to help financially if [NAME] and his family have needs in the future, and [NAME] accepted that she would do so if he needed help and she was able to (T64:29-38, T67:45-46). 3. [NAME] is her only son and, as at the date of the hearing, [NAME]'s intention is to leave her entire estate to him.

[NAME]'s character and conduct: s 60(2)(m) 1. I have dealt with issues regarding [NAME]'s character and conduct above.

[NAME] conduct: s 60(2)(n) 1. I have also dealt with the matters raised regarding [NAME] conduct in respect of her testamentary expenses claims, her spending, and her failure to make claims against her ex-de facto partner, her past doctor/s or her accident.

Any other matter considered relevant: s 60(2)(p)

1. The legal costs in this matter are also relevant and it is necessary to have regard to the estimates given by the parties to completion of the proceedings.

2. The plaintiff's legal costs are estimated to be, on an ordinary basis, $170,847, of which $59,999.37 have already been paid (at [18], [NAME]'s affidavit dated 8 April 2019).

3. The legal fees of the estate on an indemnity basis are estimated to be $209,405.78. As previously noted, these costs have been taken into account in valuing the net value of the assets of the estate which are available for distribution.

Consideration 1. [NAME]'s counsel submits that, in light of the long, close, father-son relationship between [NAME] and [NAME], the relatively short estrangement over 10 months and the great assistance [NAME] gave to [NAME] over the years while employed at the [NAME] continued to have a moral obligation to make provision for his only child in his will and should do so in the amount of $250,000 for his maintenance and advancement in life. It was accepted that the question of provision for [NAME]'s education is not relevant given his age and circumstances. 2. [NAME] relied on the statements of Holland J in Kleinig v Neal (1981) 2 NSWLR 532 at 540 in support of the proposition that a parent [NAME] who wishes to disinherit a child will need valid and cogent reasons for doing so. As Holland J stated: "…the question is what ought that [NAME] have done in those circumstances. One of the circumstances must be the size of the [NAME]'s estate because a man cannot be expected to give what he cannot afford but, if he can afford it, he should provide adequately for those for whom the statute expects him to provide…The duty of a parent towards a child to provide for [maintenance, education and advancement in life] needs on his death, if he can, continues in spite of…disharmony and disappointment and the statute obliges the court to consider whether it has been performed. The court must take in the whole scene and make the judgment that it considers a wise and just parent would have made in the circumstances. Of course, as the statute provides, if the court considers that the character or conduct of the child has been such as to disentitle the child to any or any further benefit from the estate, it may refuse the child's claim."

1. Counsel for [NAME] submits that [NAME]'s action in disinheriting [NAME] was motivated by malice, is not an indication that [NAME] has no needs or is not a deserving beneficiary, and that provision should be made given [NAME]'s financial needs.

2. I accept that [NAME]'s exclusion of [NAME] from his will was, in part, motivated by the depth of [NAME]'s ill feelings towards [NAME] based on his perception that [NAME] sided with [NAME] in the Family Law proceedings and their subsequent estrangement. That conclusion is supported by the terms of the statement of reasons, which includes a number of assertions about [NAME]'s past conduct that are not supported based on the evidence before the Court. To that extent, the statement of reasons also suggests that [NAME]'s decision to exclude [NAME] from his will was based, in part, on unfair reasoning.

3. I also accept that [NAME]'s conduct and character and the reasons for his estrangement from [NAME] do not disentitle [NAME] from any future benefit or provision from [NAME]. But that conclusion does not, in my view, mean that [NAME] failed in meeting any continuing moral duty he owed to [NAME], and that provision should be made for him in this case.

4. Here, [NAME] had a good reason to exclude [NAME] from his will – he wished to provide for his new wife, [NAME].

5. While they had not been in a relationship for a long time, [NAME] had given up working and her interest in the café based on assurances that [NAME] would take care of her financial future. She had been a constant, caring and loving companion during their relationship, albeit over a relatively short period of time, and had made considerable personal sacrifices to look after [NAME] in the last 6 to 8 months of his life before he became so frail he had to move into palliative care in December 2015. She is a natural recipient of [NAME]'s estate and it is not surprising that [NAME] wanted to provide means for her future after his death, to enable her to secure a property in which to live and funds for her ongoing living expenses. 6. [NAME] financial position is parlous. She has very few assets. The assets she does have are valued at just over $46,000. She has an income of $589 per fortnight, is currently living with friends and has ongoing health issues which, at least for the foreseeable future, will prevent her from engaging in paid employment. She has significant needs and has no obvious alternate means of support.

7. The fact that [NAME] has already received a lump sum amount as [NAME]'s widow and some non-cash benefits from the estate does not diminish her need for other funds, nor does the fact that she may have spent an amount of money in one year as much as [NAME]'s family of five.

8. It follows that I do not accept the submission made by [NAME]'s counsel that in considering [NAME]'s claim for provision, the Court can proceed on the basis that [NAME] has been provided for quite generously by the estate and has already received suitable provision in the circumstances. In any event, I return to the fact that [NAME] is not a claimant for provision; she is in the will and has significant competing financial needs.

9. By contrast, [NAME] is able-bodied, healthy, and owns his own business which is providing a stable income for him and his family, and appears to be growing. His wife, [NAME], also works and has a steady income. Together, they own their own home, are meeting their mortgage payments and other expenses, and are able to set aside money each month for their children's expenses. [NAME] appears to be in a position to provide a comfortable, albeit not an extravagant, lifestyle for his family.

10. I accept that [NAME] would be assisted by funds to discharge part of his mortgage and purchase capital equipment for his business. I also accept that he does not have his own financial buffer to deal with the vicissitudes of life. But at present, he and [NAME] are able to live within their means and it is to be expected they will continue to do so in the future. Over time, their net asset position could be expected to improve as [NAME]'s income grows, their property value increases and they gradually pay off their mortgage. It is also relevant that [NAME] is available, and has shown in the past that she has the means and is willing, to provide financial support to [NAME] if needed, including for his business, and [NAME] is the natural recipient of her entire estate.

11. The question is whether, in all the circumstances of this case, I am satisfied that [NAME] has not made adequate provision for [NAME]'s proper advancement and maintenance in life, adjudged at the time of the hearing, where no provision was made for [NAME] at all in [NAME]'s will.

12. As Hallen J observed in Philpott v Pantos [2018] NSWSC 852 at [182], "the fact that no provision is made in [NAME]'s Will for the applicant does not, of itself, bespeak inadequacy. A person may fail to satisfy the description of being "left without adequate provision" even though no provision is made for her in [NAME]'s Will".

13. The Courts have also acknowledged the entitlement of testators in certain circumstances not to make provision for their children: Ford v Simes [2009] NSWCA 351 at [71]; Pontifical Society for the Propagation of Faith v Scales (1962) 107 CLR 9.

14. A key matter in my consideration is the fact that the net value of the estate's assets which are available for distribution at the date of the hearing is now only $643,684.24. 15. [NAME] may not have known the precise value of his estate when making the 11 December will, although he was presumably aware that its value was likely to decrease due to the Family Law proceedings in which his property was to be divided with [NAME]. [NAME]'s attempt to gift $1 million to [NAME] late in 2015 suggests that may have been the case. In any event, what [NAME] considered to be the value of his likely estate at the time he made the will, including if he thought it to have been a considerable estate worth over $4 million, is not to the point. 16. [ADDRESS] cannot speculate as to what provision [NAME] should have made for [NAME] based on the value of the estate at the time the will was made or at [NAME]'s death. [ADDRESS] is required to consider the circumstances at the time of hearing these proceedings. Unfortunately, for both parties, the circumstances have changed significantly since the proceedings were commenced on 24 November 2016, including the value of the assets of the estate available for distribution having decreased by almost 85% and [NAME] health having declined significantly.

17. The role of the Court is not to achieve "an overall fair" disposition of [NAME]'s estate or equity between claimants. Nor is its role to correct a sense of wrong or hurt feelings to the extent that an applicant believes that he or she has been treated unfairly, or to reward any meritorious conduct. [ADDRESS]'s role goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance, education and advancement in life of an applicant: [redacted] 18. [NAME] may feel he has been treated unfairly by [NAME] given the terms of the 17 April email and the statement of reasons in [NAME]'s will. [NAME] may also feel that he is deserving of provision because of their relationship prior to 2013 and the work [NAME] did over the years at the [NAME]. But the question is whether, in all the circumstances, community standards and expectations required more of [NAME] by means of his testamentary disposition to provide for [NAME] out of a now relatively moderate estate at the expense of his new wife. I accept the submissions of Senior Counsel for [NAME] that they do not.

19. When considering how [NAME] would make his decision regarding his estate, he was faced with a moral obligation to provide for his new wife with enough to secure accommodation and funds for future living expenses in circumstances where she had given up working at his behest, has no appreciable assets or income of her own and now has health issues. This has to be balanced against any continuing moral obligation to provide for an adult son who is healthy and able to manage financially, with an expectation of support from a mother (who has been provided for by the estate by way of a significant property settlement), and who has had the benefit of significant provision during his lifetime from [NAME], including paying for his qualifications and providing employment which has enabled him to open and run his own business.

20. Notwithstanding the history of the relationship between [NAME] and [NAME] and the contributions made by [NAME] over the years, in all the circumstances, it was open for [NAME] to have chosen to provide for [NAME] to the exclusion of [NAME], which the evidence indicates [NAME] did after consideration of his testamentary obligations.

21. I accept that there may be a range of views on what community standards and expectations would require in this case, particularly given the short length of the relationship between [NAME] and [NAME], and the attitude of [NAME] towards [NAME] just prior to and following their estrangement. In my view, these factors, while relevant, do not justify a conclusion that inadequate provision has been made for [NAME]'s proper maintenance and advancement in life, in circumstances where [NAME] relationship with [NAME] involved intensive domestic care and sacrifice on her part, she asserts a significant financial need (which is supported by the facts), [NAME]'s needs are not as compelling, the estate is not large, the distant nature of the relationship between [NAME] and his father over more recent years and the provision given to him in the past. The length of [NAME] and [NAME]'s relationships with [NAME] are relevant, but not dispositive. 22. [NAME] with $250,000 plus his legal costs on an ordinary basis (as is his contention), would leave [NAME] with approximately $228,837.24 from [NAME]'s estate. Based on the evidence before the Court, that amount is inadequate to enable her to buy modest accommodation in which to live and would only provide her with a fund for living expenses and some contingencies for a few years. Even receiving the whole of the estate will only leave her, after paying for a house, somewhere in the region of $143,000 to $233,000 for her future living expenses and contingences, plus her fortnightly income of $589, with no or very little prospect of any future income.

23. I agree with the submission made by Senior Counsel for [NAME] that the position in this case may very well have been different if the estate had remained valued at $4,119,281.10. Yet that is not the position today, and the Court should not approach the application on the basis that [NAME] would have been provided for if the estate remained that size and so should also be provided for now but on a smaller scale. [NAME]'s application is not to be assessed based on applying some notional sliding or proportional scale to the differing values of the estate in an attempt to achieve some equality of distribution or fair result.

24. It follows that, I am not satisfied that, having regard to all the facts known as at the date of hearing the application, adequate provision for [NAME]'s proper maintenance and advancement in life has not been made by [NAME]'s will and I decline to make an order for his provision out of [NAME]'s estate.

25. Had I been persuaded that adequate provision had not been made by [NAME] for the proper maintenance and advancement in life of [NAME], I would have ordered the provision of a relatively small legacy in his favour, in an amount of say $40,000, to provide for his advancement in life as a contribution towards the purchase of capital equipment for his business. I would also have capped the recovery of his legal costs to a similar amount to ensure that [NAME] retained sufficient funds to acquire accommodation of the type referred to in final submissions, and have a fund left over.

Costs 1. The parties were content for me to deal with costs in these reasons and so I have done so without the benefit of submissions on that issue but taking into account the circumstances of the case as I know them.

2. Ordinarily, costs follow the event unless it appears to the Court that some other order should be made: r 42.1 Uniform Civil Procedure Rules 2005 (NSW) (UCPR). Where orders are made for the dismissal of proceedings, then, unless the Court otherwise orders, the plaintiff must pay the defendant's costs of the proceedings: r 42.20(1) UCPR.

3. While these rules apply to family provision proceedings, the award of costs is a matter in the exercise of the Court's discretion, which is unfettered other than to exercise it judicially: s 98(1) Civil Procedure Act 2005 (NSW). 4. [ADDRESS] has also recognised that it may be appropriate to make costs orders in family provision proceedings which deviate from the usual course in accordance with the rules referred to above. As noted by Gaudron J in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, at [522] : "Family provision cases stand apart from cases in which costs follow the event. Leaving aside cases under the Succession Act which, in s.33, makes special provision in that regard, costs in family provision cases generally depend on the overall justice of the case. It is not uncommon, in the case of unsuccessful applications, for no order to be made as to costs, particularly if it would have a detrimental effect on the applicant's financial position. And there may even be circumstances in which it is appropriate for an unsuccessful party to have his or her costs paid out of the estate." (citations omitted)

1. It has also been recognised that family provision cases often involve elements of judgment and discretion and can involve parties who are more concerned with vindicating their position than resolving the dispute as efficiently and cost-effectively as possible: [NAME] (No 2): [NAME] v [NAME]; Gilroy v Neaves & Anor (2005) 65 NSWLR 268; [2005] NSWSC 1003. 2. [NAME]'s claim could not, in my view, be described as frivolous or without reasonable prospects of success. This is particularly the case where, when the proceedings were commenced, the estate was worth just over $4.1 million. As I noted earlier, if that had remained the case, the outcome of these proceedings may very well have been different.

3. By April 2018, it was apparent that the value of the estate had reduced substantially ([NAME] affidavit dated 6 April 2018). It may be argued that [NAME] should have taken steps to cease or settle the proceedings at that point. Whether steps were taken at that time is not known to the Court. In any event, I have also accepted that this is a case on which community standards can differ, which is often the position in family provision cases. 4. [NAME]'s financial position suggests that he would need to increase his mortgage or take out a loan to pay for [NAME] legal costs if ordered to do so, which I estimate to be in the region of $140,000 to $160,000 on a party/party basis. While his and [NAME]'s finances cover their expenses, provide them with a modest lifestyle and may improve in the future, they do not appear to have the capacity to cover a significantly increased mortgage or loan in respect of [NAME] legal costs at this time.

5. Further, in coming to my decision on [NAME]'s application, I have had regard to [NAME] legal costs by deducting them on an indemnity basis from [NAME]'s estate to reach a net distributable value of $643,684.24. It is on that basis that I made my assessment as to the circumstances applicable to the question of whether adequate provision was not made for [NAME]'s proper maintenance and advancement. If [NAME] were to obtain an order for costs in her favour, it would increase the value of the estate by an amount which may have impacted my ultimate decision.

6. In those circumstances, I am of the view that the overall justice of the case requires that the usual rule that costs follow the event should not apply and that no order should be made for [NAME] to bear the burden of [NAME] legal costs.

7. I also do not consider that I should order the estate to bear the burden of [NAME]'s costs. That would not be a just result either as to do so would significantly diminish the value of the estate in [NAME] hands.

8.

Accordingly, I will make no order as to costs with the intent that [NAME] is to pay his own costs of the proceedings and [NAME] costs are indemnified out of the assets of the estate.

Orders 1. For these reasons, the Court makes the following orders: 1. Dismiss the plaintiff's claim for provision out of [NAME]'s estate. 2. Make no order as to costs with the intent that the plaintiff is to pay his own costs of the proceedings and the defendant's costs are paid out of the estate on an indemnity basis.

**********

Endnote 1. It was accepted that the judgment relates to [NAME] and [NAME] even though it refers to the surname [NAME]. 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: 09 August 2019