Supreme Court New South Wales Medium Neutral Citation: Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 Hearing dates: 8-11 March 2021 Date of orders: 6 May 2021 Decision date: 06 May 2021 Jurisdiction: Equity Before: Hallen J Decision: Directs the parties, within 10 days, to provide in hard and soft copy, Short Minutes of Order that reflect these reasons Catchwords: SUCCESSION – Family Provision – Claims by two adult children of the deceased for provision under Ch 3 of the Succession Act – No dispute as to eligibility under s 57(1)(c) of the Act – No provision made for adult son of the deceased and limited provision made for the adult daughter of the deceased – Reasons for the lack of, and for the limited, provision made for each Plaintiff stated in the Will of the deceased – Periods of lack of close contact between adult daughter and the deceased, and in the case of the adult son, complete estrangement for about 30 years – Reconciliation before death of the deceased - Significant competing claim of the Defendant, who is entitled to 50 per cent of the deceased's estate – Balance of estate left to other son who predeceased the deceased, which share passes to grandchildren of the deceased – Whether each Plaintiff has been left without adequate provision for his, and her, proper maintenance and advancement in life – Whether an order for provision should be made for each Plaintiff's proper maintenance and advancement in life and, if so, in what amount – Provision to be made for each Plaintiff and, in the case of the adult daughter, that provision in lieu of the provision made for her in the deceased's Will Legislation Cited: Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) Cases Cited: Alexander v Jansson (2010) 6 ASTLR 432; [2010] NSWCA 176 Anasson v Phillips (Supreme Court (NSW), Young J, 4 March 1988, unrep) Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 Bartlett v Coomber [2008] NSWCA 100 Bindoff v The Trust Company (Australia) Ltd; Estate of the late Everitt Joseph Griffiths [2016] NSWSC 1100 Bkassini v Sarkis [2017] NSWSC 1487 Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86 Bondelmonte v Blanckensee [1989] WAR 305 Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327 Burke v Burke (No 2) [2015] NSWCA 195 Camden v McKenzie [2007] QCA 136 Carey v Robson (No 2) [2009] NSWSC 1199 Chan v Chan (2016) 15 ASTLR 317 Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 Christie v Manera [2006] WASC 287 Crossman v Riedel [2004] ACTSC 127 de Angelis v de Angelis [2003] VSC 432 Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235 Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54 Evans v Braddock [2015] NSWSC 249 Foley v Ellis [2008] NSWCA 288 Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52 Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31 Goodsell v Wellington [2011] NSWSC 1232 Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison [1997] 2 VR 359 Harkness v Harkness (No 2) [2012] NSWSC 35 Hawkins v Prestage (1989) 1 WAR 37 Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep) Hobson v R [1998] 1 Cr.App.R 32 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2 Hughes v St Barbara Mines Ltd (No 4) [2010] WASC 160 Hunter v Hunter (1987) 8 NSWLR 573 In re Green, deceased; Zukerman v Public Trustee [1951] NZLR 135 Jodell v Woods [2017] NSWSC 143 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kogan v Martin [2019] EWCA Civ 1645 Kohari v Snow [2013] NSWSC 452 Liprini v Liprini [2008] NSWSC 423 Lumb v McMillan [2007] NSWSC 386 Lynch v Cadwallader [2021] EWHC 328 (Ch) MacGregor v MacGregor [2003] WASC 169 Marks v Marks [2003] WASCA 297 McCann v Ward & Burgess [2012] VSC 63 McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 McLaughlin v Dungowan Manly Pty Ltd (No 3) [2011] NSWSC 717 Meres v Meres [2017] NSWSC 285 Olsen v Olsen & Ors [2019] NSWCA 278 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 Rawson v Studholme [2018] NSWSC 1764 Re Buckland (dec'd) [1966] VR 404 Rondel v Worsley [1969] 1 AC 191 Salmon v Osmond (2015) 14 ASTLR 442; [2015] NSWCA 42 Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 Sangha v Baxter [2009] NSWCA 78 Sarant v Sarant [2020] NSWSC 1686 Saravinovska v Saravinovski (No 6) [2016] NSWSC 964 Sgro v Thompson [2017] NSWCA 326 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Slack-Smith v Slack-Smith [2010] NSWSC 625 Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297 State of New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47 Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Sung v Malaxos [2015] NSWSC 186 Taylor v Farrugia [2009] NSWSC 801 Tchadovitch v Tchadovitch (2010) 79 NSWLR 491; [2010] NSWCA 316 Thomas v SMP (International) Pty Ltd [2010] NSWSC 822 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 Webb v Ryan [2012] VSC 377 White v Barron (1980) 144 CLR 431; [1980] HCA 14 Yee v Yee [2017] NSWCA 305 Texts Cited: Rosalind Atherton, "The Concept of Moral Duty in the Law of Family Provision – A Gloss or Critical Understanding?" (1999) 5(1) Australian Journal of Legal History 5 Category: Principal judgment Parties: 2019/17122 – Joseph Victor Limberger v Steven George Limberger Joseph Victor Limberger (Plaintiff) Steven George Limberger (Defendant) 2019/21207 – Catherine Philomena Oakman v Steven George Limberger Catherine Philomena Oakman (Plaintiff) Steven George Limberger (Defendant) Representation: Counsel: 2019/17122 – Joseph Victor Limberger v Steven George Limberger Mr K Morrissey (Plaintiff) Mr D Liebhold (Defendant) 2019/21207 – Catherine Philomena Oakman v Steven George Limberger Ms E Elbourne (Plaintiff) Mr D Liebhold (Defendant) Solicitors: 2019/17122 – Joseph Victor Limberger v Steven George Limberger Szabo & Associates Solicitors (Plaintiff) Walsh & Blair Lawyers (Defendant) 2019/21207 – Catherine Philomena Oakman v Steven George Limberger LHD Lawyers (Plaintiff) Walsh & Blair Lawyers (Defendant) File Number(s): 2019/17122; 2019/21207 Judgment 1. HIS HONOUR: Maria Limberger (the deceased) died on 22 January 2018 aged 90 years. She left surviving her, three, now adult, children, being Joseph Victor Limberger, the Plaintiff in the proceedings numbered 2019/17122; Catherine Philomena Oakman, the Plaintiff in associated proceedings numbered 2019/21207; and the Defendant, named in both proceedings, Steven George Limberger. These reasons relate to both proceedings. 2. Without intending to convey undue familiarity or disrespect, and for clarity and convenience, I shall refer, hereafter, to the children of the deceased and other family members, after introduction, by his, or her, first name, respectively. 3. Joseph and Catherine each seeks a family provision order out of the estate, or notional estate, of the deceased, under Ch 3 of the Succession Act 2006 (NSW) (the Act). A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. Relevantly, the Act applies in respect of the estate or notional estate of a person who died on, or after, 1 March 2009. (In fact, in this case, the relevant objects are maintenance and advancement in life). The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009. Each also seeks an order for costs of the proceedings. 4. There were associated proceedings, numbered 2019/215586, being proceedings for rectification of the duly executed Will made by the deceased, which were also listed for hearing, but these proceedings were settled by the parties. After consideration of the evidence in those proceedings, and without any opposition by any of the parties in the remaining proceedings, orders were made, and were recorded on the court's computerised court record system, JusticeLink, on 9 March 2021. It will be necessary to refer to the orders made in those proceedings later in these reasons. 5. All three proceedings were listed for concurrent hearing, for 4 days, commencing on 8 March 2021. At the commencement of the hearing of the two family provision matters, an order for a concurrent hearing of both proceedings, which had been anticipated when the matters were set down for hearing, was made, without objection of the parties and in reliance upon Uniform Civil Procedure Rules 2005 (NSW) r 2.1 (UCPR), which provides that the Court may, "at any time, and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings". In addition, UCPR r 28.5(c) provides that if several proceedings are pending in the court and it appears to the court that "it is desirable to make an order under this rule, the court may order those proceedings to be consolidated, or to be tried at the same time or one immediately after another…". 6. There were no difficulties in terms of trial management, the complexity of procedural issues, or in determining the cross-admissibility of evidence. Factual and credit issues that overlapped that were relevant to each proceeding, were determined simultaneously, thereby avoiding the unsatisfactory prospect of judgments with conflicting findings on the similar issues; the possibility of several appeals, with potential delays if the proceedings were not heard and determined at the same time, were avoided; the deceased's estate has also been put to less expense in having only one set of hearings, rather than two; the just, cheap and quick hearing of all of the matters in dispute were facilitated; all parties participated in the proceedings; and the most efficient, and expedient, use of resources, for the parties, and, by implication, the Court, was achieved. 7. For those reasons, it was not only "desirable", but also "convenient", to make an order that the proceedings be heard consecutively, with the evidence in one being evidence in the other. 8. The Court followed the Supreme Court's most recent updated Coronavirus (COVID-19) announcement of 12 February 2021, and did not require the parties, the lawyers, or the witnesses, to wear masks whilst in the precincts of the Court (although those who wished to, were able to do so). Naturally, the physical distancing rules remained in operation. Some formal matters not in dispute 1. Joseph commenced the family provision proceedings by Summons filed on 17 January 2019, that is within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased). 2. Catherine commenced the family provision proceedings by Summons filed on 21 January 2019, that is within the time prescribed by the Act. 3. Section 57(1) of the Act provides that "eligible persons" may apply to the Court for a family provision order in respect of the estate of a deceased person. As a child of the deceased, each of the parties is an eligible person within s 57(1)(c) of the Act. The language of the subsection is expressive of the person's status, regardless of age, as well as her, or his, relationship to the deceased. It is not necessary that the child be a dependant at the time of the deceased's death in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an "eligible person" in s 57(1)(c) of the Act). 4. However, under s 60(2) of the Act, relevantly in the family provision proceedings, the Court may consider, on the question whether to make a family provision order and the nature of any such order, "… (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so …". This factor, however, will not be relevant, in the case of a child of the deceased, to the question whether the applicant is an eligible person. 5. As the deceased dealt with all of her estate in her last Will, there is no scope for the operation of the rules of intestacy, with the result that it is only necessary, hereafter, to refer to the Will of the deceased. 6. A family provision order may be made in relation to property that is not part of the deceased's estate but is designated as "notional estate" of the deceased by an order under Pt 3.3 of the Act: s 63(5) of the Act. "Notional estate" of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. "Notional estate order" means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person's rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act. 7. No party suggested that there was any property that was able to be designated as notional estate of the deceased. In the circumstances, despite the form of the relief claimed by each of Joseph and Catherine, respectively, neither, ultimately, sought an order for any property of the deceased to be designated as notional estate. Importantly, there is no part of the deceased's estate that has been distributed, other than amounts that have been paid on account of the costs of Steven, to whom Probate of the deceased's Will was granted. Accordingly, it is only necessary to refer, hereafter, to the estate of the deceased. 8. The only eligible persons are the children of the deceased. The husband of the deceased had predeceased her. The deceased had other children to whom reference will be made who also predeceased her. As will be read, the estate is to be divided, as to one-half, to Steven, and as to the other half, between five grandchildren of the deceased. There was no suggestion that any of the grandchildren is an eligible person. 9. The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though she, or he, has not made a claim: s 61(1) of the Act. A beneficiary is entitled to rely upon the terms of the deceased's Will and her, or his, competing claim, respectively, as a chosen object of the deceased's testamentary bounty. In the family provision proceedings, it will be necessary to refer to the interest of each beneficiary, respectively, later in these reasons. Some background facts 1. There were five children of the marriage of the deceased to Silvester Limberger, they being John Steven Limberger, who was born in January 1950 and who died in 2016; Phillip Limberger, who pre-deceased the deceased, who was born on a date not disclosed in the evidence, and who died in 1968; Joseph, who was born in May 1952 and who is almost 69 years of age; Steven, who was born in December 1959 and who is now 61 years of age; and Catherine, who was born in December 1968 and who is now 52 years of age. 2. The deceased's husband, Silvester, pre-deceased her, having died on 27 June 1989. By his Will, Probate of which was granted on 30 May 1990, a copy of which was Ex D7, he left the whole of his estate to the deceased, but in the event that he did not survive her, to be divided equally between John, Steven and Catherine. 3. The deceased, by a previous relationship, had given birth, in March 1947, to a daughter, Natalija (also known as Natasha), in Yugoslavia, who also pre-deceased her. As will be read, her two children were Defendants in the rectification proceedings. They have not participated in the other proceedings, but an agreement was reached, in the rectification proceedings, that they would receive a lump sum (in total $100,000), and an agreed lump sum costs order ($45,000), out of the estate of the deceased. 4. Each of Joseph and Catherine consented to the orders and notations made in the rectification proceedings. 5. By her duly executed, and professionally drawn, Will, as rectified, made on 28 September 2006, the deceased appointed Steven and John as her executors. She left a legacy of $300,000 to Catherine upon trust for her life, with the remainder being given to her two children, Tristan and Reagan. The deceased left the remainder of her estate equally to "her children" Steven and John. 6. As John had predeceased the deceased, his half-share of the residue of the estate, passes, pursuant to Clause 11.4 of the deceased's Will, equally, to his 5 children with his wife, Flavia, being Damien Limberger, who was born in 1979; Michael Limberger, who was born in 1981; Briana Limberger, who was born in 1983; Anthony Limberger, who was born in 1985; and Laura Limberger, who was born in 1990. 7. Each of John's children gave evidence, by affidavits, which were read in the proceedings, about a number of matters, including his, and her, financial resources and needs, respectively. None of John's children were cross-examined. 8. In the Will, the deceased stated: "11.7 I have not made provision for my son JOSEPH VICTOR LIMBERGER having regard to him having instituted proceedings in the Supreme Court against my late husband and myself. 11.8 I have made the provision aforesaid for my daughter CATHERINE PHILOMENA OAKMAN as she and I have been virtually estranged for a number of years following her leaving home when she was still a minor and without notifying my late husband or myself as to her whereabouts, and her subsequent conduct caused great heartache to both my late husband and myself." 1. There is a dispute by each of Joseph and Catherine as to the truth of the statements made by the deceased about him, and her, respectively. Later in these reasons, it will be necessary to deal with the relationship of the deceased with each of them. 2. It should be remembered, that, although the statements made by the deceased in her Will are admissible pursuant to s 100(2) of the Act, the court is not required to accept, unquestioningly, the truth, or accuracy, of the statements, particularly if denied by the applicant, respectively, or where there is other evidence that casts doubt upon its accuracy. The deceased may make untrue, or inaccurate, statements, either deliberately, or unintentionally. Unfortunately, the truth, or accuracy, of the statements made cannot be tested by cross-examination. Thus, the deceased's statements must, like any other evidence, be subject to a degree of consideration and scrutiny and must carefully consider the weight to be attached to them. 3. That this is so is clear and s 100(9), subject to s 100(11), of the Act, which is not applicable in this case, where evidence of a statement of a deceased person is admitted under this section, specifically permits evidence to be given for the purpose of destroying, or supporting, the credibility of the deceased. 4. Also, s 100(10) permits evidence to be given for the purpose of showing that the deceased's statement that has been admitted is inconsistent with another statement made, at any time, by the deceased. 5. There are often difficulties faced by a trial judge grappling with evidence about disputed allegations that are contained in such statements. 6. In Hughes v National Trustees Executors & Agency Company of Australasia Ltd (1979) 143 CLR 134 at 150; [1979] HCA 2, Gibbs J wrote: "... in Australia for many years the courts have admitted evidence of statements made by a testatrix explaining why she made her will as she did. In taking this course the courts have no doubt been influenced by a desire to be informed of the reasons which actuated the testatrix to make the dispositions she had made, and by the consideration that in cases of this kind a claim is made against the estate of a person who is deceased and can no longer give evidence in support of what she has done. It is doubtful whether, in most cases, such evidence is relevant, but usage justifies its reception. The question is for what purpose it may be used, once admitted. The balance of authority clearly favours the view that it is admissible only to provide some evidence of the reason why the testatrix has disposed of her estate in a particular way, and that it is not admissible to prove that what the testatrix said or believed was true: Re Jones [1921] NSWStRp 66; (1921) 21 SR (NSW) 693, at p 695; In re Smith [1928] SAStRp 14; (1928) SASR 30, at p 34; In the Will of Joliffe (1929) St R Qd 189, at p 193; Re G. Hall, deceased [1930] NSWStRp 5; (1930) 30 SR (NSW) 165, at p 166; In re Green, deceased; Zukerman v Public Trustee [1950] NZGazLawRp 121; (1951) NZLR 135, at pp 140-141 (a case decided before the amending legislation was enacted in New Zealand). This view was accepted as correct by Taylor J. in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR, at p 24; Taylor J. dissented in the result in that case but there is nothing to suggest that his opinion on this point differed from that of the majority of the Court." 1. Whilst the Court will consider any explanation given by the deceased in the Will, or elsewhere, for excluding a particular person as a beneficiary, such explanation does not relieve the Court from engaging in the enquiry required by the Act: Slack-Smith v Slack-Smith [2010] NSWSC 625 at [27] (Ball J). What such an explanation by the deceased may do is cast light on the relationship between her, or him, and that person, at least from the deceased's perspective. The explanation is not, necessarily, conclusive. Yet, where the truth of the explanation made by the deceased is admitted, or where the facts asserted in the explanation are corroborated by other evidence, due weight should be given to the explanation. 2. In relation to statements made by the deceased, the Court should bear in mind, also, what was written by Gresson J, in the course of delivering judgment for the Court of Appeal of New Zealand in In re Green, deceased; Zukerman v Public Trustee [1951] NZLR 135 at 141; [1950] NZGazLawRp 121 (which passage was approved by the majority of the High Court in Hughes v National Trustees Executors and Agency Company of Australasia Ltd at 152): "If reasons are given by the testator reflecting on the character or conduct of that child, the court must, in considering the sufficiency or otherwise of the reasons, endeavour to decide upon the truth or otherwise of the allegations. But the testator should not be allowed from the grave to condemn the child and to impose upon that child the positive duty of disproving the allegations as an essential preliminary to prosecuting a claim. In our opinion, the reasons given by a testator for excluding a child (or a widow) go no further than to concentrate attention on the question whether there is or has been character or conduct operating to negative the moral obligation that would otherwise have lain upon the testator." The estate of the deceased 1. On 21 October 2020, the Court directed the parties to provide, in hard and soft copy, an Agreed Schedule that contained: 1. the assets and liabilities of the estate and notional estate at the date of death; 2. the assets and liabilities of the estate and notional estate at the date of the schedule; 3. the estimated costs and expenses of any property that is to be sold; 4. the estimated costs of each party calculated on the ordinary, and on the indemnity, basis, inclusive of GST; and 5. any costs of any party that have been paid, and in relation to the Defendant, whether those costs have been paid out of the estate of the deceased. 1. At the hearing, a final version of the document was tendered and marked Ex JS1. I have taken what follows from the Agreed Schedule and from discussions with counsel during the course of the hearing. (I have omitted, and shall continue to omit, any reference to cents. This will explain any apparent arithmetical miscalculation.) 2. The gross value of the deceased's estate, at the date of death, was estimated to be $10,183,371. After paying some of the liabilities ($22,856), the estate was said to have a value, at the date of death, of $10,160,515. 3. The gross value of the deceased's estate, at the date of the hearing, was agreed by the parties to be $9,335,894. However, there was a dispute about property of the deceased that Catherine asserted had a total value of $511,231. 4. At the date of the hearing, the deceased's estate comprised: 1. two parcels of real estate in Pearson Street, Wagga Wagga ($8,000,000 and $520,000 respectively); and real estate in Kooringal, a suburb of Wagga Wagga ($460,000); 2. cash held in the trust account of Steven's solicitors ($352,894); 3. a car ($3,000); 4. 51 fully paid shares at $1.00 in Rivcrete Pty Ltd (nil value). (There was dispute about this attributed value); 5. one unit in Rivcrete Unit Trust (nil value). (There was dispute about this attributed value); and 6. a debt due by Rivcrete Pty Limited ($449,442) which is unlikely to be recovered. (There was dispute about whether this debt was recoverable, as part of it was shown in the records of the Trust owed by Steven and another part, as owed by John). 1. Counsel for Steven stated, from the bar table, without objection, that he, and the other residuary beneficiaries, had agreed that the lump sum of $300,000, in which each of Tristan and Reagan has an equal remainder interest, would be paid to them out of the residue of the estate of the deceased following the resolution of the proceedings no matter what the result of Catherine's claim. Of course, that is a matter entirely for them. (It is a credit to all of the residuary beneficiaries that they have adopted this course as they could have submitted that any provision made for Catherine, should be provided, in whole, or in part, out of that part of the estate: s 65(1)(c) of the Act.) 2. The parties agreed that the liabilities and other amounts to be paid out of the estate (excluding the costs of the proceedings) were: 1. the amount due to the Defendants in the rectification proceedings ($145,000); 2. the capital gains tax and associated expenses of sale of the parcels of real estate ($1,135,710); and 3. the amount of $300,000 to be paid to Tristan and Reagan as agreed by the parties. 1. I shall use these amounts to reach an estimated net value of the estate (excluding the costs of the proceedings), which is $7,755,184. The Costs of the Proceedings 1. In relation to the family provision proceedings, Joseph's costs, calculated on the ordinary basis, were estimated to be $140,604. His costs, calculated on the indemnity basis, were estimated to be $155,000. He has paid $828 on account of disbursements. 2. In an affidavit, sworn on 16 February 2021, by Mr G Szabo, Joseph's solicitor, the Court was informed that "The plaintiff has entered a conditional costs agreement with my firm for our professional fees and all disbursements and expenses, including counsel's fees" and that "The costs agreement does not include any uplift fee". 3. In relation to the family provision proceedings, Catherine's costs, calculated on the ordinary basis, were estimated to be (using the mean of the range provided) $217,000. Her costs, calculated on the indemnity basis, were estimated to be $293,500. She has not paid any costs or disbursements. 4. In an affidavit sworn on 8 February 2021 by Ms P Barry, Catherine's solicitor, the Court was informed that "the Plaintiff has entered a conditional costs agreement with LHD Lawyers for their professional fees"; that "There is no uplift factor"; and that "The conditional costs agreement excludes all disbursements, expenses and outlays including counsel's fees". 5. It is hard to comprehend how costs, totalling almost $360,000 (calculated on the ordinary basis) and almost $450,000 (calculated on the indemnity basis), have been incurred in what are, essentially, relatively straightforward family provision proceedings, each by an adult child of the deceased. 6. In relation to the rectification proceedings, Steven's costs, calculated on the indemnity basis, were estimated to be $37,600. The balance of his costs, calculated on the indemnity basis, of the two family provision proceedings, and the rectification proceedings were estimated to be $47,823: Tcpt, 9 March 2021, p 40(34-38). (There was evidence that some of Steven's costs, totalling $166,777, have already been paid out of the estate.) 7. Counsel agreed, and all submitted, that the Court should not determine, as part of these written reasons, how the costs of the proceedings should be borne. They submitted that that there were documents that might be relevant to how the burden of the costs of the proceedings should be calculated and how they should be borne. Furthermore, the issue of the quantum of each Plaintiff's costs will have to be determined following the conclusion of the hearing. 8. Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3 of the Act, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion. 9. Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that his, or her, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased's estate, and the conduct of a party, may justify a departure from what is said to be the usual rule. 10. As Basten JA (Simpson and Payne JJA agreeing) put it in Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222 at [54]: "In 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." 1. As his Honour had also written, a few years earlier, in Foley v Ellis [2008] NSWCA 288 at [10]: "... To exclude from consideration the diminution in the estate and hence [the applicant's] expectation of provision, flowing from legal expenses incurred in the proceedings, is arguably inconsistent with the statutory mandate to consider the applicant's position at the time the Court 'is determining whether or not to make such an order'." 1. I have repeated, many times, in the context of a claim for a family provision order, that parties should not assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18]. 2. Noting, without deciding, that the estimates for the costs and disbursements are accurate, and assuming that all of the costs or balance of costs ($405,427) will be payable out of the estate ($7,755,184), the total amount of the available estate out of which an order for provision could be made for each of Joseph and Catherine, is in the order of $7,349,757. 3. Counsel for Steven, from the Bar table, stated that the manner in which the provision is to be provided (if, in the case of Joseph, provision is made) should be by lump sum, and in the case of Catherine, by way of lump sum in lieu of the provision made for her in the Will of the deceased. Counsel also stated that the part of the estate out of which any lump sum is to be provided is the residue of the estate and that it will be borne in the proportion to which each residuary beneficiary is entitled. The duty of legal representatives 1. There are two aspects of the duty of legal representatives to which it is necessary to refer in this case. The first relates to the affidavits that were read in the proceedings. 2. One whole Court day, effectively, was spent dealing with objections to parts of the affidavits of witnesses, particularly the evidence of each of the parties. This requires comment for the simple reason that time, and costs, were taken dealing with those affidavits (even though counsel, for the most part, did not spend a lot of time arguing about the paragraphs, or parts of the paragraphs, to which objection was taken). 3. In Thomas v SMP (International) Pty Ltd [2010] NSWSC 822, Pembroke J, at [19], wrote: "It is common for some litigants to want to use their evidence as an opportunity to unburden themselves in unmanageable detail of the many facts which have preoccupied them in the years preceding the hearing of their case. But a fair hearing of their case can be seriously hindered by such unfiltered outpourings. That is why, among other things, counsel have a duty to the court which is additional to their duty to the party whom they represent. This duty is a legal duty, not merely a rule of practice or etiquette: Teece, The Law & Conduct of the Legal Profession in New South Wales, second edition, Law Book Co, pages 30-35 and 41-44. Counsel's duty to the court requires them, where necessary, to restrain the enthusiasms of the client and to confine their evidence to what is legally necessary, whatever misapprehensions the client may have about the utility or the relevance of that evidence. In all cases, to a greater or lesser degree, the efficient administration of justice depends upon this co-operation and collaboration. Ultimately this is in the client's best interest. It is more likely to ensure that a just result is reached - sooner and with less expense." 1. In Olsen v Olsen [2019] NSWCA 278, the Court of Appeal dealt with complaints about some comments expressed by the trial Judge about the nature and length of the Plaintiff's affidavits. At [64] – [65], White JA (Meagher JA and Emmett AJA agreeing at [1] and [91] respectively), wrote: "The primary judge also expressed the following concern (Judgment at [45]): '[45] When I complained about the plaintiff's affidavit evidence being unhelpful and far more extensive tha[n] it needed to be, junior counsel disavowed responsibility. She said 'The plaintiff insisted on drawing his own [affidavits]'. She added 'We did not have control. It was a difficult situation'. This is, I am afraid, an abdication of the responsibility of the plaintiff's legal representatives. No matter how determined a plaintiff may be to unburden himself of memories of real or imagined distant family events, his solicitor and counsel are duty-bound to restrain his enthusiasms.' Nor does this paragraph give rise to any apprehended, let alone actual, bias against the plaintiff. The primary judge's concern was legitimate. His statement that solicitor and counsel were duty-bound to restrain the appellant's enthusiasm to unburden himself of his memories was correct. The appellant's principal affidavit dealt not only with his relationship with the deceased, but also in irrelevant detail with property purchased by the deceased for his half-siblings and stepmother and with the maintenance paid by the deceased to the plaintiff's mother when he was a child. By way of example, the appellant deposed that when he became interested in girls (apparently sometime after he was 12) he was often embarrassed about his state of dress." 1. The second matter to which I wish to make reference is, at least, partly, related to the first. During the course of the hearing, I informed counsel that I would be asking each what he, and she, respectively, would be submitting was "adequate and proper" provision in all the circumstances of the case. Ms E Elbourne, counsel for Catherine, indicated, when it was first mentioned, that she was not prepared to answer that question. She referred to the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), rule 44 which provides that a barrister must not make submissions, or express views, to a court on any material evidence or issue in the case, in terms which convey, or appear to convey, the barrister's personal opinion of that evidence or that issue. 2. Initially, I pointed out that I was not seeking counsel's personal opinion, but rather her, and his, professional opinion. However, I did not take it further then, stating that I would return to the topic later in the proceedings. 3. Late on the third day of the hearing, when it was too late to start the cross-examination of Catherine's husband, Phillip, I raised the topic again. This led to the following exchange with counsel for Catherine at Tcpt, 10 March 2021, p 211(34)-212(39): "HIS HONOUR: Ms Elbourne. If you don't wish to answer me … based upon what you told me yesterday that's a matter entirely for you. ELBOURNE: Your Honour I can indicate my client's instructions. HIS HONOUR: No I don't want to know the client's instructions. I know what the client wants. The client wants as much as she can get. ELBOURNE: Well with respect your Honour. HIS HONOUR: Well she does Ms Elbourne. Ms Elbourne there's no point gilding the lily. She's put on evidence that her needs total in excess of $1.3 million. ELBOURNE: In fact your Honour if one totals the maths it equals $2.3 million. HIS HONOUR: Well that's even worse Ms Elbourne. ELBOURNE: Plus a set of costs. Now I have also had a discussion and the figure I'm instructed to put is $1.1 million plus costs. … HIS HONOUR: Now I'll note that you were not prepared to tell me Ms Elbourne. ELBOURNE: I'm not in a position your Honour to do that. HIS HONOUR: Well Ms Elbourne I don't know what that means. Do you mean that your plaintiff has given you specific instructions to not tell me what your estimate of what is proper and adequate in all the circumstances of the case is. Is that you're telling me? … ELBOURNE: … I have consulted two senior counsel about this matter, one works in this jurisdiction. HIS HONOUR: Who's that Ms Elbourne? ELBOURNE: I don't have permission to give one of the two names. HIS HONOUR: I see. All right. Well tell me what senior counsel has told you Ms Elbourne. ELBOURNE: The other has sat on a professional conduct committee and also on bar council, both have advised me the same thing which is that in the absence of instructions from my client to put a figure to your Honour I'm obliged to tell your Honour what my client instructs me to put and nothing further." 1. I stated to counsel, because I considered this to be a matter of some importance, particularly in cases involving a claim for a family provision order, that I would deal with it in these reasons. 2. I mention that Ms Elbourne was exquisitely polite in responding to my questions, and the fact that she had conferred with two senior counsel demonstrates that she had considered the topic before responding in the way that she did. In what follows, I do not intend any criticism of Ms Elbourne who, for the reasons she provided, took the course that she did. However, in my view, her submission is unsupported by authority. 3. The reasons for Catherine not wishing Ms Elbourne to make a submission on counsel's professional opinion on what was adequate and proper in all the circumstances of the case remains obscure. 4. There are a number of reasons for asking the question that I asked of counsel. These include: 1. A claim for a family provision order is one where logical, rational, or reasonable minds might differ in respect of the conclusions to be drawn from the evidence and might adopt different reasoning to reach the result; the answer to the question exposes the basis of counsel's submissions on the topic not only to the Court but to the other party or parties. 2. As one would expect, the legal practitioners should have already considered the question and should have provided advice to the party she, or he, represents about the range of provision that may be made by the Court. The question posed by the Court enables counsel to reconsider the position, if that is necessary, during the course of the hearing. 3. The response by counsel may provide assistance to the court, and to the other party or parties, by clarifying the parameters of what is to be decided, particularly, in cases where there is no dispute that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. For example, if counsel for each party responds by providing a similar range of what is considered to be adequate and proper provision, it may result in the resolution of the proceedings without further costs being incurred. Efficiency is particularly important in expeditiously managing the court's many applications for a family provision order. 1. Obtaining the response, also provides the Court, and the other party, or parties, with the range of the quantum of provision that counsel, particularly counsel with experience in this area (as each counsel appearing in this case was), submits is adequate and proper. The Court is able to then enquire how the estimate of quantum of the provision stated has been reached, and ventilate the features identified that are relied upon in reaching that quantum. In so doing, the Court is able to consider different processes of reasoning and come to properly understand the true force of the submissions on how the case should be decided. In addition, the Court may avoid what may be a wrong method of approach in determining what result should follow from the application of the provisions of the Act to the facts of the case. 2. Whilst the range suggested by counsel does not bind any of the parties, or the Court, it enables the Court to consider whether any preliminary evaluative assessment of the nature and quantum of provision, is within, or outside, the parameters of the professional opinion of experienced counsel. It also enables the Court to consider whether, in reaching any preliminary assessment, there has been some misapplication of facts or of principle. It enables counsel to make submissions that will lead to the correction, or modification, of any preliminary assessment and enable the other party or other parties, during final submissions, to be heard in response to the submission on quantum. (It is well established that the Court reaching, and even expressing, tentative views, is not an indication of "ineradicable apprehension of pre-judgment": Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [13] – [14]. As counsel may be assisted by hearing the tentative opinions of the trial judge, and being given an opportunity to deal with them, so will the trial judge be assisted by hearing the professional opinion of counsel and being given the opportunity to consider it.) 1. The response to the Court's question does not require the disclosure of any confidential information. Nor does it provide any information upon what may be, or may have been, the subject of settlement discussions. The Court is not seeking a response based upon a compromise, but rather upon what, in all the circumstances of the case, as then known, is submitted to be the answer to the question which the Court, ultimately, must decide. 2. It is common, for example, in cases in which an approval of a settlement is required, for the Court to obtain the views of counsel who are appearing upon whether the amount of the settlement is, or is not, adequate. 3. Making a response based upon the instructions of the party does not assist the Court because the party is unlikely to be aware of the terms of s 60(2) of the Act and the matters 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. The party will not have the legal knowledge, expertise and skill, or the capacity for dispassionate assessment, that counsel will, or should, have. 1. On this topic, it seems to me that one should start with recalling that the Legal Profession Uniform Conduct (Barristers) Rules r 23, states that "A barrister has an overriding duty to the court to act with independence in the interests of the administration of justice" and r 4(a), "barristers owe their paramount duty to the administration of justice". 2. In addition, a barrister "must not act as the mere mouthpiece of the client … and must exercise the forensic judgments called for during the case independently": Legal Profession Uniform Conduct (Barristers) Rules 2015, r 42. 3. These requirements of professional conduct are not new. In Rondel v Worsley [1969] 1 AC 191 at 227, Lord Reid wrote: "[Counsel] has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client's wishes or with what the client thinks are his personal interests …" 1. Similarly, Mason CJ in Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52 at 556-557, regarding counsel being the mere mouthpiece or messenger of the client, said: "The duty to the court is paramount and must be performed, even if the client gives instructions to the contrary … the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only on the client's success, but also to the speedy and efficient administration of justice. … In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case. In such an adversarial system the mode of presentation of each party's case rests with counsel. The judge is in no position to rule in advance on what witnesses will be called, what evidence should be led, what questions should be asked in cross-examination. Decisions on matters such as these, which necessarily influence the course of a trial and its duration, are made by counsel, not by the judge. This is why our system of justice as administered by the courts has proceeded on the footing that, in general, the litigant will be represented by a lawyer who, not being a mere agent for the litigant, exercises an independent judgment in the interests of the court." 1. In Hobson v R [1998] 1 Cr.App.R 32, at 35, Rose L J stated: "Counsel's job, in the proper performance of his or her duties to the client and to the court, is to exercise judgment and discretion as to the way in which the client's case can best be presented, and to give such advice, if necessary, in forceful terms, as in his, or her, view, the circumstances required. Because a client wishes a particular question to be asked, point to be made, or witness to be called it does not follow that the question must be asked, the point made, or the witness called. Still less does it follow that counsel is in dereliction of duty if he or she fails to ask the question, make the point, or call the witness. It depends on all the circumstances of the particular case, including what has passed by way of advice or otherwise between client and counsel." 1. More recently, in McLaughlin v Dungowan Manly Pty Ltd (No 3) [2011] NSWSC 717, at [30], Pembroke J wrote: "It needs to be emphasized that the efficient conduct of commercial litigation, indeed all litigation, can only be assisted by restraint, moderation, sensible co-operation and sound judgment by counsel. Indeed, the due administration of justice demands it… The duty of counsel in this regard is part of the wider duty to the court to which I referred in Thomas & Ors v SMP (International) Pty Ltd [2010] NSWSC 822 at paragraphs [19]–[22]. It is also a manifestation of the statutory duty imposed on practitioners by Section 56 of the Civil Procedure Act, 2005 (NSW)." 1. In Rawson v Studholme [2018] NSWSC 1764, Pembroke J revisited the topic, at [55]: "Responsibility requires the exercise of independent judgment. It should not be overlooked that Section 99 of the Civil Procedure Act permits the Court to disallow the whole or part of the costs in the proceedings between a solicitor and his client. The power to do so arises, among other things, where costs have been incurred without reasonable cause 'in circumstances for which a legal practitioner is responsible'. If a client is foolish, irrational or unreasonable, the solicitor or barrister, as the case may be, has a duty, where possible, and within reason, to correct the client's behaviour; to disabuse him or her of their misapprehensions and false expectations; to ensure that the case is limited to the real issues in dispute; and to act consistently with the 'overriding purpose' of civil litigation in this Court. What the legal practitioner must not do is simply give the client her head, take her money and roll on – knowing that the ordinary rule in these cases is that the applicant for an order pays the costs." 1. In Sarant v Sarant [2020] NSWSC 1686, I wrote, at [39] – [41]: "If the submission was based only on the specific instructions of one, or both, of the Defendants, it is necessary to remind the legal profession that lawyers must be mindful not to act solely as a 'hired gun' for a client, but rather must exercise independent judgment. In this regard, what was stated by Sir Igor Judge P, in R v Ulcay [2008] 1 WLR 1209 at 1217 [27]; [2007] EWCA Crim 2379 at [27] is useful to remember: 'The advocate is not a tinkling echo, or mouthpiece, spouting whatever his client 'instructs' him to say.'" 1. It is inevitable that a legal practitioner will be obliged to advance her, or his, party's interests, but she, or he, must only do so whilst, simultaneously, observing her, or his, duties to the court and should prefer that overriding duty to any other. 2. It seems to me that no instructions from a party, and no degree of concern for the party's interests, can override the duty which counsel owes to the Court. At the heart of, and the justification for, this duty, and the reason for its fundamental importance in the due administration of justice, is that an unswerving and unwavering observance of it by counsel is essential to maintain and justify the confidence which every court rightly, and necessarily, puts in all counsel who appear before it. 3. I did not require Ms Elbourne to not follow her instructions. However, the approach adopted, in my view, was unhelpful as it did not enable me to debate with her, completely, the strengths and weaknesses of her professional opinion, as was able to be done with the other counsel. 4. The approach adopted, naturally, has not impacted upon my own evaluation of what order for provision out of the estate of the deceased ought to be made for Catherine's maintenance or advancement in life having regard to the facts known to the Court at the time the order is made. The Rectification Proceedings 1. It is not necessary to detail the evidence given in the rectification proceedings. It is only necessary to note the relevant orders that were entered in those proceedings on 9 March 2021: "1. Notes the associated proceedings 2019/21207 and 2019/17122. 2. Notes that the parties in the associated proceedings do not oppose the making of these orders and notations in these proceedings. 3. Orders, pursuant to s 27(3) of Succession Act 2006 (NSW), that the period of time for making the application for rectification be extended up to, and including, 31 July 2019, the date of the filing of the Summons. 4. Declares that the Court is satisfied that the Will dated 28 September 2006 ('the Will') of Maria Limberger ('the deceased') does not carry out her intention because a clerical error was made. 5. Declares, pursuant to s 27(1) of the Succession Act, that the deceased intended that the expression "my children", in the Will, to refer only to John Steven Limberger and Steven George Limberger and not to any other children of the deceased. 6. Orders, pursuant to s 27(1) of the Act that the Will be rectified by deleting, on page 3 of the will: (a) The heading Meaning of "Children"; and (b) Clause 11.6. 7. Orders the Plaintiff, as the executor of the estate of the deceased, to deposit, within 7 days, the original grant of Probate made on 16 July 2018, in the Probate Registry, together with a sealed copy of the rectification orders, marked to the attention of the Senior Deputy Registrar in Probate, to be placed in Court file 2019/215586. 8. Directs that the matter be remitted to the Senior Deputy Registrar in Probate to enable effect to be given to the direction of the court by attaching a sealed copy of the rectification orders to the original grant of Probate. 9. Orders that the Defendants' costs and disbursements of the proceedings, (including GST), being a specified gross sum instead of assessed costs, agreed in sum of $45,000, be paid out of the estate of the deceased. 10. Notes the agreement of the parties that, in consideration of the settlement, the Plaintiff, within 28 days of the date of these orders and notations, will pay to the first and second Defendants, out of the estate of the deceased, a total sum of $145,000 as follows: a. $50,000 to the first Defendant; b. $50,000 to the second Defendant; and c. $45,000 in satisfaction of the order for costs and disbursements of the first and second Defendants referred to in Paragraph 9 above. 11. Notes the agreement of the parties, that if the settlement sum has not been paid within 28 days of the date of the making of these orders, interest on any unpaid part thereof, shall be paid, calculated at the rate prescribed by s 84A of the Probate and Administration Act 1898 (NSW) from the 29th day after the date of the making of these orders until such date as it has been paid in full. 12. Orders that the Plaintiff's costs, calculated on the indemnity basis, of the proceedings, be paid, or retained, as the case may be, out of the estate of the deceased. 13. Notes that Jack Antoni Stan Kuda, who filed a Submitting Appearance on 17 February 2021, and who is a person who is, or who may be, affected by these orders and notations, consents to these orders and notations being made." The Evidence 1. The following sections address some additional relevant legal principles, the evidence of the witnesses, and the views to which I have come, which inform my findings of fact. Before turning to those facts, it is necessary to refer to some general principles which should be remembered. 2. In Camden v McKenzie [2007] QCA 136, Keane JA observed, at [34], that: "... the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation." 1. His Honour's observation was cited, with approval, by Leeming JA (with whom Barrett JA and Tobias AJA agreed) in State of New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47 at [56]. 2. I also refer to Lynch v Cadwallader [2021] EWHC 328 (Ch), at [49] – [50]: "When assessing the reliability of the six witnesses seen and heard, I have in mind the researches and findings of the cognitive psychologist and expert on human memory Dr Elizabeth Loftus, and the criminal psychologist and researcher at University College London, Dr Julia Shaw. Human memory is not stable. It has a strong propensity to change over time, to provide false accounts and be susceptible to suggestion. In short, memory is malleable. A confident witness may be mistaken. Contemporary documents may provide a valuable guide to the truth: Armagas Ltd v Mundogas S.A. [1985] 1 Lloyd's Rep.1, at page 57 col. 1; Goodman v Faber Prest Steel [2013] EWCA Civ 153. In Gestmin SGPS S.A. v Credit Suisse (UK) Limited, Credit Suisse Securities (Europe) Limited [2013] EWHC 3560 (Comm) Leggatt J (as he was) explained that the litigation process itself may lead to a witness's memory of events being based on documents and later interpretation rather than the original experience; all remembering of distant events involves reconstructive processes: '[18] Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time. [19] The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces."[20] Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness's memory has been "refreshed" by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.' Leggatt J set out the best approach to evidence [22]: '[T]he best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.'" 1. (Although there is a reference to "a commercial case", the propositions which were stated are relevant to most cases, including succession cases.) 2. Experience dictates that greater weight is usually accorded to contemporaneous documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd (No 4) [2010] WASC 160, per Kenneth Martin J, at [157]; Evans v Braddock [2015] NSWSC 249 at [74]. This is not an admonition against placing any reliance at all on the recollections of witnesses. It simply "emphasises the fallibility of human memory and the need to assess witness evidence in its proper place alongside contemporaneous documentary evidence and evidence upon which undoubted or probable reliance can be placed": Kogan v Martin [2019] EWCA Civ 1645. 3. I also refer to what was written in Sangha v Baxter [2009] NSWCA 78, by Basten JA (with whom Handley AJA agreed), at [155]-[156]: "There are risks in making global findings about credibility of any particular witness. Because a witness has not told the truth with respect to a particular matter does not mean that other parts of his or her evidence are untruthful. Where possible, an assessment should be made of the reasons for the untruthfulness in order to see if other aspects of the evidence are likely to be infected by the same concern. Further, evidence may be rejected because it is apparently unreliable, possibly mistaken or deliberately untruthful or capable of being categorised in a variety of ways which are unlikely to be capable of clear delineation in some cases. Further, findings of credibility are not usually findings with respect to factual issues in the case but are rather subsidiary findings on the way to determination of issues. Like many aspects of the evidence in a trial, the evidence of a witness who is believed to have lied in a particular respect, will nevertheless be able to bear some weight and should be placed into a balance, with other material evidence, before a conclusion is reached in relation to a critical fact. The rejection of a witness in total, absent corroboration is likely to mean that, even where corroborated, little attention will be paid to the evidence of the witness and less to the possible consequences which might flow from the fact that particular evidence is shown to be truthful: see generally, King v Collins [2007] NSWCA 122 at [44]." 1. Evidence given against interest, or which is inherently probable, is more convincing: Saravinovska v Saravinovski (No 6) [2016] NSWSC 964, per Kunc J, at [467]. 2. Whelan J in Webb v Ryan [2012] VSC 377 at [22], referred to the difficulties in assessing evidence of what was said by a deceased person, stating: "An important matter which may arise in these kinds of cases is the difficulty of assessing evidence concerning things allegedly said by a person who is dead. The court can never be certain it knows all the circumstances, and more often than not one may be sure that the court knows few of them. It is impossible to hear what the other party to the conversation, the deceased, says about it. There is a significant risk of reconstruction. There are dangers in relying on evidence of what may have been a casual observation made to a person who at the time had no reason to remember the exact words used. In the light of these concerns, a substantial burden is placed upon an applicant whose case relies upon such evidence. Such evidence must be very carefully examined." 1. I also remember what was said by Emmett J in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 at [48]: "When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2)." 1. I shall make findings of fact based upon all of the evidence and shall identify, where necessary, if the sworn evidence of a witness is not accepted, although it will not be possible to include everything in these reasons. The instructions for, and the execution of, the 2006 Will 1. In or about late in 2003, the deceased said to Steven (Affidavit, Steven George Limberger, 10 March 2020 at par 10): "I want to update my will. I don't want Joseph or Cathy to get anything from me. Cathy has nothing to do with me and we have nothing in common. Where was she when I needed help when I hurt myself last year? Nowhere to be seen". 1. In or about July 2004, the deceased, John and Steven had a conversation to the following effect (Affidavit, Steven George Limberger, 10 March 2020 at par 11): Deceased: "I have made an appointment with Michael Kennedy [solicitor] at Walsh & Blair to update my will… I want to make sure Joseph receives nothing – considering what he did to your father and me… I just can't forgive him. I don't want to leave Cathy anything, as she is not a daughter to me, she never comes to see me, we have nothing in common. She is a stranger to me..." John: "Mum, I think you should leave something to Cathy". Steven: "I agree with John. Perhaps you should consider it". Deceased: "Have you seen Cathy lately?" Steven: "No" Deceased: "That makes two of us". 1. Steven recalled that, on 5 July 2004, the deceased and John attended a meeting with Mr Michael Kennedy. After this meeting, the deceased told Steven, "I saw Michael and told him that Joseph, Cathy and Natasha are to receive nothing": Affidavit, Steven George Limberger, 10 March 2020 at par 12. 2. In or about late April 2005, the deceased told Steven, "I received a letter from Michael Kennedy. He says it's important that I update my will": Affidavit, Steven George Limberger, 10 March 2020 at par 14. She then gave Steven two letters, one dated 5 July 2004 and the other dated 19 April 2005, from Mr Kennedy. 3. The letter dated 5 July 2004 includes the following (with minor spelling corrections): "Your Family Situation I note that:- 1. you have five children – John, Steven, Cathy, Joseph and you have a daughter who was born outside your marriage at the time of the Second World War who you did not raise and with whom you have had little contact; 2. both John and Steven have worked for the family business for a number of years and continue to do so; 3. Joseph is estranged from the family following him unsuccessfully suing you and your late husband; 4. Cathy lives in an unsatisfactory domestic relationship. … Your Concerns You are particularly concerned that your children, Joseph and your eldest daughter could contest your will. You are concerned that if assets were given to Catherine that her husband and associates could squander the assets and that you would be left with little. … Advices Based on the information that you have provided to date and the writer's knowledge of your family history, I believe that it could be difficult for Joseph to succeed in any claim having regard to his past conduct and the estrangement that has continued over many years. … In relation to your concerns for Cathy, we believe that it would be best to leave what you would otherwise give to her to a will trust controlled by John and Steven. In simple terms, under the will trust she would not own the asset but would be entitled to the income. If she had a need for financial assistance John and Steven could transfer assets to her or sell the assets on her behalf. This would be at their absolute discussion [sic]. You have the greatest duty to provide for John and Steven as both of them have worked in the family business and provided financial and moral support to you and your late husband over many years. Recommendations I would suggest that:- 1. John provide me with a value of the asset as listed; 2. you give careful consideration as to what you may wish to set aside for Cathy; 3. to give consideration to giving to Steven your interest in the plant and equipment so that he has an equal holding with John – this could be set off against Steven's full entitlement in the will. Upon receipt of John's advices as to the value of your assets I would be in a better position to advise as to whether or not what you propose is acceptable. In addition to your will I will arrange for both a power of attorney and an enduring guardianship appointment to be made by you." 1. The letter dated 19 April 2005 includes the following: "YOUR WILL I note that I have received no reply from you following my letter to you of 5th July last year. I believe it is important that you update your will and also give consideration to making an enduring power of attorney and entering into a guardianship nomination. I will be absent from Australia from the end of this month until mid-June 2005 but you might make an appointment to see me upon my return." 1. After reading the letters, Steven said words to the effect of "I think it is a good idea to update your will and you should make an enduring power of attorney as well": Affidavit, Steven George Limberger, 10 March 2020 at par 14. 2. Over the following weeks, the deceased, John, and Steven discussed the deceased's Will on several occasions. On each such occasion, the deceased maintained that she did not want to leave Joseph, and Catherine, anything in her Will. Steven stated that he would suggest to the deceased that she should reconsider and leave Catherine something. 3. In or about January 2006, the deceased received a letter, dated 6 January 2006, from Mr Kennedy, which she showed Steven. The letter includes the following: "YOUR WILL I note that you have not as yet updated your will. I believe that it is important for you to address this matter. Might I suggest that you make an appointment to attend on me. I am willing to visit you at your home should you prefer this." 1. Steven, after reading the letter, said words to the deceased to the effect of "You need to make a decision about this. How about you make another appointment with Michael to discuss your wishes? Michael will be able to advise you": Affidavit, Steven George Limberger, 10 March 2020 at par 16. 2. In or about early April 2006, the deceased said to John and Steven words to the effect of "I have made an appointment to see Michael Kennedy to discuss my will. I want both of you to come with me": Affidavit, Steven George Limberger, 10 March 2020 at par 17. 3. On or about 10 April 2006, the deceased, Steven and John attended a conference with Mr Kennedy. Mr Kennedy said words to the effect of "Maria, I understand that you wish to make a new will. It is also advisable that you appoint a Power of Attorney and an Enduring Guardian". The deceased said words to the effect of, "I don't want to leave Joseph, Cathy or Natasha anything in my will": Affidavit, Steven George Limberger, 10 March 2020 at par 18. 4. Mr Kennedy sent a letter to the deceased, dated 13 April 2006, which includes the following (with minor spelling corrections): "YOUR WILL, POWER OF ATTORNEY & ENDURING GUARDIANSHIP APPOINTMENT I confirm that on the 10th April you attended on me together with your sons John and Steven to discuss your will and also the need for you to make a power of attorney and enduring guardianship appointment was also discussed. Dealing firstly with your will I confirm that – a. my advice is that your children Natasha, Joseph and Catherine could contest your will; … c. that I do not believe that Joseph would succeed in a claim having regard to the assistance previously given to him and the circumstances surrounding the dissolution of the partnership; d. that your daughter Catherine would be successful if she made a claim under the Family Provisions Act but that it is difficult to establish the amount that she would receive. After considerable discussion and taking into account the assets that are connected with the business undertakings conducted by you and your sons and the assets that are separate from such undertakings it is proposed that you would make a will along the following lines:- 1. that your sons John and Steven would be appointed as your executors; 2. that you would direct that the property in Colong Place be sold and one-half of the proceeds of sale would be left to your daughter Catherine by means of a protective trust. John and Steven would be the trustees of the trust; 3. that the rest of your estate would be left in equal shares to your sons John and Steven or to will trusts for each of them; 4. the decision as to whether will trusts would be used would be delayed until your eventual death. I let you have a paper dealing with will trusts for your information. I confirm that you are to let me have a statement relating to the circumstances surrounding your relationships with Natasha, Joseph and Catherine. It is proposed that based on this statement a document will be prepared and left with your will. I will prepare a draft of your will and contact you when it is available for your perusal. Power of Attorney I recommend that you make a power of attorney appointing both John and Steven as your joint attorneys and in the event of one of them being unable to act that the other may act by himself. A paper relating to powers of attorney is enclosed. Enduring Guardianship I recommend that you make an enduring guardianship and have John and Steven acting jointly. I confirm that you can have additional provisions in the guardianship form relating to your wishes if you are terminally ill. This does not have to be included in the appointment. I also let you have a paper that relates to enduring guardianship appointments." 1. Steven recently located another letter from Mr Kennedy to the deceased, this one dated 18 September 2006, which includes the following: "YOUR WILL & POWER OF ATTORNEY I refer to my letter of 24th August last. You might please make an appointment to attend on me to sign your will and power of attorney." 1. On 28 September 2006, the deceased attended Mr Kennedy's office to sign her will, Power of Attorney and Enduring Guardianship. 2. On 7 December 2006, John and Steven attended a conference with Mr Kennedy to accept their appointments, respectively, as attorney and guardian. 3. The findings stated above demonstrate that the deceased appears to have given consideration to the advice that she received, not only from her sons, Steven and John, but also, from her solicitor. This is an important matter in the determination of the case of each of Joseph and Catherine. Witnesses 1. Each of Joseph, Catherine and Steven gave evidence and was cross-examined. A number of the deceased's grandchildren (none of whom were cross-examined) also gave evidence of her, or his, observations of the relationship between the deceased and each of Joseph and Catherine. 2. As well, Donna Maree Field, a long-time friend of Catherine's, gave evidence in the form of an affidavit sworn 30 August 2019. She was not cross-examined either. 3. In relation to Joseph, I consider that he attempted to give his evidence truthfully, although there were parts of his evidence that were inconsistent with the contemporaneous records that were tendered and with the evidence of Steven which I accept. 4. I also thought that Joseph did not reflect, appropriately, on the effect of his actions, particularly in relation to the events surrounding the partnership about which a great deal of evidence was given and which was one of the reasons identified by the deceased for making the Will that she did. 5. For example, as will be read, Joseph denied being violent in a meeting with other members of his family, held in 1984, to discuss the future of the partnership. This was in direct contradiction with evidence given by Steven about this incident. I preferred Steven's evidence. 6. I was not overly impressed with Catherine. I found her to display some anger towards the deceased, which, I thought, clouded her ability to answer some of the questions about the deceased candidly and honestly. 7. By way of example, during cross-examination, Catherine was referred to two postcards the deceased had sent to her during the deceased's trip to Europe. Initially, she firmly stated that these postcards were "not… affectionate": Tcpt, 10 March 2021, p 154(09). However, she later accepted that the deceased had written the words "I love you, see you soon" on the postcards and that this was "fairly affectionate": Tcpt, 10 March 2021, p 154(47)-155(02). 8. There is another aspect in one affidavit of Catherine to which reference should be made. In her first affidavit, sworn on 18 January 2019, the following passage was read without objection: "In or about 2000, my husband and I purchased our current home as joint tenants, with folio identifier 47/258295 commonly known as 11 Roosevelt Avenue, Tolland NSW 2650 for the sum of $140,000, and is currently worth approximately $395,000". 1. In cross-examination, she disputed that the property, then, had that value, and she stated (Tcpt, 10 March 2021, p 187(18-40)): "Q. Now when you swore this affidavit back in January of 2019 you affirmed the truth of the contents of this affidavit did you not? A. Yes. Q. And your evidence was that the property was currently worth approximately $395,000? A. That's correct. Well I didn't. Hugo persisted that it was worth that much. And I tried to argue with him and tell him the state of the house, that was falling apart but he would not take what I was saying. Q. Sorry who's Hugo? A. The first lawyer I had. Q. I see. So you don't accept that— A. No I don't accept that. I never did. Q. But you were willing to affirm the affidavit even though you didn't believe it was true? A. Well I just felt I had no choice. Q. Are there any other parts of your affidavit that you affirmed because you felt you had no choice? A. Only the house. Yep." 1. In expressing this view about Catherine, I am not suggesting that she was intentionally attempting to mislead the Court. Rather, I felt that her emotions ran so high and that these emotions prevented her giving evidence dispassionately. 2. I found Phillip, Catherine's husband, to be a quietly spoken, calm, and matter of fact, witness, who did not appear to be championing her cause. He made appropriate concessions, particularly regarding the costs of alternative accommodation if they sold the house in which the family now lives. 3. I found Steven to be an impressive, credible, and reliable, witness, whose evidence I accept, particularly if it is in conflict with that of Joseph or Catherine. I thought his evidence about Catherine exhibited fairness. By way of example, the concession made that the deceased's Will did not make adequate or proper provision for her was, at least in part, adverse to his own financial interests, as he is entitled to one half of the estate of the deceased. 4. Furthermore, despite the fact that he had not spoken to Joseph for many years, and also that their relationship had ended with some "pushing and shoving" (as counsel for Joseph put it), I found that in cross-examination he answered questions without any obvious animus towards Joseph. The dispute concerning the Limberger Family Businesses 1. The deceased and Silvester owned a number of businesses, including Silver Star Homes, Riverina Building Supplies and Rivcrete. 2. In 1970, John commenced employment with Silver Star Homes and Riverina Building Supplies. 3. In 1971, Joseph commenced employment with Silver Star Homes and Riverina Building Supplies. 4. In 1976, Steven commenced employment with Silver Star Homes. 5. On 1 July 1978, Joseph, John, the deceased and Silvester entered into a formal written partnership agreement. Under this agreement, Joseph was responsible for production, sales and delivery of materials to building sites. 6. Joseph claimed that he conducted most of the work for the partnership. In cross-examination, Steven confirmed that, whilst he was at boarding school, Joseph was heavily involved in the family's building business: Tcpt, 11 March 2021, p 236(31-33). Steven also accepted that it was Joseph's belief that he "did more of the heavy lifting" in the business: Tcpt, 11 March 2021, p 237(29-32). 7. However, Damien, one of John's children, gave evidence that, from the time Rivcrete was established in approximately 1978, John had managed the business on a day-to-day basis and had worked extremely long hours, from 7:30 a.m. to 6:30 – 7:30 p.m. and on weekends. 8. In 1984, the deceased, Silvester, Steven, John and Joseph had a meeting at the deceased and Silvester's house to discuss the business. Joseph recalls saying to the deceased and Silvester: "You should build your holiday house at Mollymook and check each month to see how much the business has made". Joseph claimed that he was referring to Silvester doing less work and taking less responsibility due to his age and having done hard physical work throughout his entire life. Joseph also told Silvester and the deceased that John and Steven were not working to their full potential, to which John and Steven stated: "You want to do everything and we're never given the chance". Joseph also stated that he agreed to reduce his working hours as a result of this meeting. 9. However, Steven provided a different account of this meeting. Steven recalled that Joseph arrived unannounced at the deceased and Silvester's home and that John, initially, was not present. Steven recalled that Joseph smelled strongly of alcohol, was carrying a half-empty bottle of whisky and had bloodshot eyes. Joseph stated that he wanted to discuss the business and said words to the effect of: "I will control the business. I will be able to hire and fire whoever I want. I think you should both retire down the coast". 10. Steven also recalled that Joseph "was dictating to us rather than speaking, telling [us] what to do": Tcpt, 11 March 2021, p 243(28). Joseph asked Steven what he thought about his proposal, to which Steven replied "Are you mad? I don't think that is the right thing to do". Steven alleged that Joseph then tried to physically assault him and was restrained by Silvester. Steven then left the house to avoid a physical altercation and did not speak to Joseph, ever again, following this incident. 11. In 1984, Joseph decided to leave the partnership and asked Silvester to determine the value of Joseph's share. Silvester replied "OK I will see the accountant to work out the value of your share". Joseph continued working in the business for approximately another year. Every one or two months, Joseph would ask Silvester about his share of the business, to which Silvester would say: "We're working it out with the accountants". 12. In early 1985, Joseph was given a Notice of Termination of Partnership stating that the partnership would be dissolved on 30 June 1985, on the grounds that Joseph was not acting in the best interests of the partnership. 13. Joseph stated that he "felt betrayed" by Silvester, the deceased and John about the termination and the fact that they refused to offer him any sum for his share of the partnership. However, Steven gave evidence of a conversation with Silvester, John and the deceased in which Silvester stated: "I have spoken to the accountant and Joseph's interest in the business is not worth anything. I am going to offer him $50,000 if he agrees not to discredit our family name, as we all need to move on": Affidavit, Steven George Limberger, 27 June 2019 at par 12. 1. A few days later, Silvester told Steven and John: "I offered the money to Joe and he wants more. He wants a share of what your Mum and I own, which I am not prepared to give him. He had the nerve to say to me, 'I only want my share. The rest you can take with you to the grave'": Affidavit, Steven George Limberger, 27 June 2019 at par 12. 1. In cross-examination, Steven confirmed that Silvester "had many discussions with [Joseph] but he just didn't see… the direction my father wanted to go": Tcpt, 11 March 2021, p 240(49-50). 2. After several months of receiving legal advice, Joseph called Silvester and said "[T]his has to stop. We have to work this out for everyone's interests". Silvester replied, "Wait a moment… Your mother said it's gone too far". In cross-examination, Joseph stated that this phone call was the last contact he had with his parents until 2015: Tcpt, 9 March 2021, p 112(06-15). Prior to this, Joseph last spoke to his mother in the months before the termination of the partnership: Tcpt, 9 March 2021, p 112(17-23). 3. Joseph commenced legal action against his parents and John in 1985. Joseph stated in his affidavit of 5 February 2019 at par 29 that: "I… felt I had no alternative than to instigate legal action against my three former partners. For the next three years… a considerable amount of my time and money was consumed with solicitors and my accountant and at Court. We had no mediation of [sic] dispute resolution conference before the court hearing and there were no offers by my parents to give me any money for my share". 1. In those proceedings, reasons for judgment were delivered on 14 November 1988. Joseph received approximately $200,000 (less $80,000 in costs). According to Joseph (affidavit of 5 February 2019 at par 29): "Whilst the result of the court proceedings vindicated me commencing proceedings it was the beginning of the family disowning me for almost the next 27 years." 1. However, in cross-examination, Joseph accepted that his initial claim was resolved by short minutes of order signed on 20 October 1986 and that the orders were made by consent (Ex D2). There was a declaration that the partnership was dissolved and an order that it be wound up under the Court's direction: Tcpt, 9 March 2021, p 109(08-14). 2. Joseph accepted that he then asserted that the partnership had an interest in three properties in Pearson Street, Wagga Wagga, which resulted in Silvester and the deceased filing a notice of motion dated 17 December 1986, seeking a declaration that those properties were not partnership assets (Ex D3): Tcpt, 9 March 2021, p 109(19-25) and (36-46). 3. In cross-examination, Joseph agreed that his "claim so far as it related to having any interest in lot 4 and number XX Pearson Street… was effectively defeated": Tcpt, 9 March 2021, p 107(32-26). 4. Joseph did not dispute that for the next 27 years, he did not speak with the deceased. Michael's Evidence 1. Michael gave evidence in an affidavit sworn 5 July 2019. I accept his evidence as there is no reason not to. Nor was it submitted that where the evidence of Joseph or Catherine conflicted with his evidence, the evidence of each of them should be accepted. 2. In about 2013 or 2014, when Michael was visiting the deceased, she said words to the effect of: "I am so grateful to John, Flavia, Stephen [sic] and Helen who look after me. At least one of them comes around every night to visit and bring me groceries and dinners. No one else comes to visit." Michael took the last comment to be a reference to Joseph and Catherine. 3. On another occasion, in or about 2013, whilst visiting the deceased, she said to Michael words to the following effect: "I am so lucky to have you grandchildren and your parents to look after me. The other's don't care about me and never come to visit. All they want is my money and they won't be getting any from me!" Once again, Michael took the deceased's expression "the others" to be a reference to Joseph and Catherine. 4. Michael had no memories of Joseph and states that he never attended any regular family Christmas, or Easter, dinners. 5. Michael recalled Catherine and her family attending the family Christmas and Easter celebrations until about 2007 or 2008. He stated that the relationship between Catherine and the deceased appeared to be distant and difficult. On most of the occasions when Catherine visited the deceased, in Michael's presence, there would be an argument which would result in Catherine leaving early. Once Catherine left, the deceased would usually say words to the effect of "Cathy hates me. She shows me no respect". On such occasions, Michael observed that the deceased was teary and, often, was also shaking. 6. From 2007, in most of the years when John and Flavia held Christmas, or Easter, celebrations, at their home, John would say to Michael words to the effect of, "I have invited Cathy but as usual she is not coming". On one occasion, John stated "Cathy didn't even reply to my message inviting her". 7. Michael recalled that the only time he saw Catherine take an interest in the deceased was after she was hospitalised in 2015 and when she was subsequently placed into a nursing home. Michael recalls weekly phone calls with Flavia in which she would say to him "Cathy never does anything to help [the deceased] and never takes her out, even though Cathy is always visiting her now she is in the nursing home". 8. From early 2015 to 2018, Michael visited Wagga Wagga approximately seven to eight times per year. On most of these occasions, Michael would visit the deceased. Michael recalled that he would regularly see Catherine when visiting the deceased. 9. Whilst the deceased was in the nursing home, she said words to Michael to the effect of "No one takes me out apart from Flavia, John and Steven". Michael never saw, or heard, about Catherine taking the deceased out. Briana's Evidence 1. Briana gave evidence in an affidavit sworn 4 July 2019. I accept her evidence as there is no reason not to. Nor was it submitted that where the evidence of Joseph or Catherine conflicted with her evidence, the evidence of each of them should be accepted in preference to Briana's evidence. 2. As a child, Briana regularly visited the deceased, on average three times each month. Briana seldom saw Catherine at the deceased's home, with the exception of major family gatherings such as Christmas and Easter. 3. When Briana was about 10 years old, she witnessed heated arguments between the deceased and Catherine. She does not recall the words that were said. 4. From Briana's teenage years onwards, the deceased spoke to her, on numerous occasions, about her relationship with Catherine and what had caused their lack of communication. The deceased would say words to the effect of "I disapprove of Cathy's behaviour and how she treats me", "She has no respect for her own mother" and "She doesn't love me". 5. The deceased appeared, to Briana, to be very upset at Catherine's choice of lifestyle and relationships, including her relationship with Phillip. Briana recalled the deceased saying words to the effect of: "I believe that Cathy's friends and Phillip were a bad influence on her. They encouraged her to take drugs and smoke and run away from home"… "Her friends and Phillip turned Cathy against me, she was such a loving child until she started associating with them"; and "We didn't raise a daughter like this. It is shameful to our family and to me". 1. From Briana's teenage years onwards, the deceased would speak to her, frequently, about the lack of communication with Catherine. The deceased often said words to the effect of "Cathy has made no attempt to contact me at all. She doesn't even care enough to make one phone call", "I have not heard from Cathy for years", "She can't be bothered to call even her own mother", "What have I done to deserve this?", "How can she treat me like this" and "Am I such a bad person Briana?" 2. When the deceased said these things, she appeared to be upset and close to tears. Briana estimated that such conversations occurred, on average, once per month. 3. After the deceased's health deteriorated, she had conversations with Briana in which she said words to the effect of "Why isn't Cathy here to help me?", "Cathy doesn't love or care enough about me to want to help or even see if I am OK", "My daughter should be here helping me, not you Briana", "Why is she not here helping, like your father and mother?", "She doesn't care enough, she has never cared" and "I don't know if I will ever see Cathy again". 4. Prior to Damien's wedding, Briana recalled the deceased saying to her: "I'm worried about seeing Cathy. Do you think she will talk to me? What do you think she will do? I don't know if I should go. I'm too worried about what Cathy might do. I don't want her to fight with me and cause a scene". 1. After the wedding, Briana had a conversation with the deceased in which she said words to the effect of: "Cathy didn't speak to me or acknowledge me at all. This made me so sad. Neither she nor Phillip said a word, Briana. They didn't even look at me!" Damien's Evidence 1. Damien gave evidence in an affidavit sworn 3 July 2019. I accept his evidence as there is no reason not to. Nor was it submitted that where the evidence of Joseph or Catherine conflicted with his evidence, the evidence of each of them should be accepted. 2. From May 2015 until August 2015, Flavia said words to Damien to the effect of "I go to Omama's house every morning to get her out of bed, clean her and dress her… she often says to me 'Where is my daughter, she should be here helping me'". 3. On at least four or five occasions between approximately 2008 and the deceased's death, she said words to Damien to the effect of "Flavi looks after me like she is my daughter. Where is my daughter to look after me? She doesn't care about me". 4. Damien believed that Joseph became estranged from the deceased in 1984. The deceased would say to Damien at least once a year words to the effect of "How could Joe do that to the family. I don't want to ever see him again". 5. To the best of Damien's knowledge, Joseph did not visit the deceased after 1984 except when he visited her at the nursing home. 6. From 1989 to 1998, Damien never observed Catherine to visit the deceased. The deceased would say to Damien, at least three to four times a year, words to the effect of "Cathy doesn't care about me. She never rings or visits me". 7. Damien observed that when Catherine attended Christmas and Easter family dinners, Catherine would "always end up fighting with [the deceased]". During such arguments, Damien heard the deceased shout words to Catherine to the effect of "You never visit me, you never call me, you don't love me!" 8. From 2002 to 2015, Catherine attended only two Christmas evening dinners. John told Damien that Catherine attended in 2003 (when Damien was overseas) and Damien observed Catherine to attend in 2004. 9. From 1989 until the deceased was admitted to a nursing home in 2015, the deceased said to Damien, approximately three to four times a year, words to the effect of "Where is Cathy, she doesn't care about me. She never rings or visits me". 10. In or about 2015, John said to Damien words to the effect of, "Cathy has only started visiting Omama now that she is in the nursing home". Evidence of Donna Maree Field 1. Donna confirmed some, but not all, of Catherine's evidence about the relationship with the deceased. 2. Donna observed the deceased to be a strict parent, who could be very loving, but, at other times, very nasty to Catherine. Whilst Donna never witnessed the deceased physically abuse Catherine, she often saw the deceased yell and scream at her. Catherine also told Donna on multiple occasions that the deceased had physically assaulted her: Affidavit, Donna Maree Field, 30 August 2019 at par 9-10. 3. Over the years, Catherine told Donna of derogatory remarks the deceased made to her, including "you're too fat", "you need to lose weight", "what's with you hair", "get those earrings out" and "don't eat": Affidavit, Donna Maree Field, 30 August 2019 at par 14. 4. To Donna's observation, Catherine's relationship with the deceased was generally good but it was usually in the presence of others that the deceased would belittle Catherine 5. In or about 2007 to 2009, Donna recalls Catherine telling her "I don't visit mum, it's just too difficult for me to deal with her emotionally after years of her abuse and the grief that she caused me. I don't want my children being subjected to this behaviour. I still call her fairly regularly to see how she is and what she's been up to. I do stop and chat with her whenever we've bumped into each other in the street from time to time, and it's fine and civil between us": Affidavit, Donna Maree Field, 30 August 2019 at par 19. 6. Catherine expressed to Donna that she wanted a close relationship with the deceased but had felt that, because of the deceased's behaviour towards her, she had to keep a certain distance to protect herself and her family. However, in 2015, Catherine expressed to Donna that she had a strong feeling that she needed to become closer to the deceased. 7. In the latter half of 2015, when the deceased was living in the Forrest Centre, Donna recalled Catherine telling her that the deceased was unhappy and frequently pleaded with Catherine to take her home and care for her, but that John and Steven would not allow it. 8. On or about 5 December 2017, Donna accompanied Catherine to the Wagga Referral Hospital to visit the deceased. Donna observed that the deceased "was talking and laughing" and "seemed… to be very happy and she was very much enjoying our company, so much so that [she] did not want us to leave": Affidavit, Donna Maree Field, 30 August 2019 at par 25. According to Donna, this was different to the way she had observed and been told by Catherine that the deceased had behaved towards her in the past. 9. Donna accompanied Catherine to the Forrest Centre to visit the deceased on a number of occasions. To Donna's observation, the deceased appeared to really enjoy these visits. On one occasion, the deceased told Donna "I have loved [Catherine] ever since [her birth]": Affidavit, Donna Maree Field, 30 August 2019 at par 27. 10. On about 15 January 2018, Phillip asked Donna to visit and support Catherine, as she was "not coping well with her mother's situation": Affidavit, Donna Maree Field, 30 August 2019 at par 29. Donna went to the Forrest Centre to be with Catherine as she stayed with and comforted the deceased: Affidavit, Donna Maree Field, 30 August 2019 at par 30. 11. From this time until the deceased's death, Donna would accompany Catherine to visit the deceased from before lunch until approximately 2pm. They returned at approximately 4.30pm so Catherine could feed the deceased dinner. Donna states that she and Catherine spent most of their time with the deceased. Joseph's Claim for a Family Provision Order 1. Joseph states that, until 1968, he maintained a "close and loving relationship" with the deceased. 2. However, Joseph recalls an incident, around 1969, when the deceased followed Joseph to a friend's house and "forced her way inside the house to see what [he] was doing". Joseph recalls another incident when the deceased entered his bedroom whilst he was asleep and cut his hair with scissors "because she didn't like my long hair". 3. In 1973, Joseph married and moved out of the family home. 4. Following the court proceedings initiated by Joseph against Silvester and the deceased, it was accepted that he became estranged from the deceased. 5. Initially, Joseph stated that he had no contact with the deceased from 1988 until 2015. However, in cross-examination, he accepted that it "could be correct" that he was, in fact, estranged from the deceased from about 1985, noting, from October 1985 to 1988, that the only contact he had with the deceased was seeing her in court: Tcpt, 9 March 2021, p 111(31-47). 6. Joseph also accepted, in cross-examination, that he took no steps to get in touch with the deceased during this 30 year period and that he only went to see her after she was admitted to the nursing home: Tcpt, 9 March 2021, p 114(03-17). 7. Steven recalled that, approximately one week after the conclusion of Joseph's Supreme Court proceedings against Silvester and the deceased, Silvester and the deceased said words to the effect of "Joseph will never get anything from us". 8. From the time of Silvester's death, the deceased would, from time to time, say words to Steven to the effect of "I don't know how Joe could have done what he did to me and your father. I could never see him again". Steven estimated that the deceased continued to make remarks of this kind approximately every month until her death. 9. In July 2015, Catherine contacted Joseph to tell him that the deceased had been in hospital, was now in aged care, and that she had asked to see him. In cross-examination, Joseph initially accepted that Catherine told him "Mum is now in palliative care. I think you should come see her": Tcpt, 9 March 2021, p 112(29-32). However, he later stated that he was not aware the deceased was in palliative care: Tcpt, 9 March 2021, p 112(46-49). 10. Joseph recalled that, at his first meeting with the deceased in 2015, she was awake, responsive and able to speak to him: Tcpt, 9 March 2021, p 113(21-26). He denied that she was "on death's bed": Tcpt, 10 March 2021, p 131(30-31). 11. For the following three years, Joseph said that he visited the deceased, on average, once a fortnight, usually for 30 to 60 minutes. According to Joseph: "Mum and I were both very happy to see each other on those occasions and at least in those last few years we enjoyed a close, happy and loving relationship": Affidavit, Joseph Victor Limberger, 5 February 2019 at par 56. 1. There is no evidence corroborating the regularity of the visits that Joseph made to the deceased. 2. On 22 January 2018, Joseph visited the deceased for the final time. Shortly thereafter, he attended her funeral. 3. In cross-examination, Steven stated that he was not aware that Joseph was visiting the deceased in the nursing home: Tcpt, 11 March 2021, p 242(37-39). However, he also stated that "on one occasion my mother said that Joe Beluccio had come to visit. I presumed it may have been him. And Cathy Oakman mentioned that he had visited my mother": Tcpt, 11 March 2021, p 243(01-05). Joseph's Medical Conditions 1. Joseph suffers from the following medical conditions: carpal tunnel syndrome in his hands; hypertension; high cholesterol; and arthritis. Joseph also experiences pain in his neck, lower back and knees on a daily basis, due to arthritis, which typically takes between two and five hours to recede. The pain is more severe during winter months. He can no longer take medication to treat his arthritis as he previously developed a stomach ulcer from taking medication, which required urgent hospitalisation. 2. In 2014, Joseph had surgical procedures to address his carpal tunnel syndrome and has had four surgical procedures. These surgeries were unsuccessful and, currently, he has almost no use of his left hand. He experiences constant numbness in that hand and finds tasks such as opening a jar or buttoning a shirt extremely difficult. 3. As a result of these medical conditions, Joseph is unable to perform any physically demanding work. 4. In cross-examination, when asked how he was able to cook, clean, wash clothes and garden whilst suffering arthritis, Joseph stated "I don't regard that as really hard physical": Tcpt, 10 March 2021, p 140(42). Joseph's Financial Circumstances 1. In 2002, Joseph finalised his divorce. He received the family property at XXX Big Springs Road, Wagga Wagga and the mortgage of approximately $70,000. He also received cash of $40,000 less legal costs of $30,000. 2. In 2004, Joseph began building a shed on the property, with 25% of it being habitable, and moved into it in 2013. In cross-examination, he confirmed that, whilst the shed is "not really finished… 25% of it's liveable": Tcpt, 9 March 2021, p 115(33-38). 3. The shed in which Joseph lives is approximately 90 square metres. It is made of iron colorbond composition, with a concrete floor, and a corrugated iron roof. There is no air-conditioning and, in summer, it can reach temperatures of up to 45 degrees inside. There is a wood heater, which assists in colder months. 4. The shed has a separate living area, dining area and kitchen (but these spaces are not divided by doorways): Tcpt, 9 March 2021, p 116(16-18). The shed has two bedrooms (including a guest bedroom) and a veranda: Tcpt, 9 March 2021, p 116(23-34). The shed has walls lined with timber boards, windows, light fittings and power points in each room, main power to the property and a wood heater: Tcpt, 9 March 2021, p 116(44)-117(21). 5. Joseph accepted, in cross-examination, that it would be possible to convert other parts of the shed into a habitable space if required: Tcpt, 9 March 2021, p 116(39-42). 6. On 15 September 2017, Joseph came to an arrangement with his son, Kye, in which Kye paid off Joseph's mortgage of approximately $15,000, in exchange for Joseph transferring the Big Springs property into their joint names in equal proportions as tenants in common. Kye obtained a loan for approximately $450,000 and constructed a house valued at approximately $500,000 on the land. 7. Joseph accepted that the Big Springs property was, even then, worth more than $30,000 and that in carrying out the transfer, he had given Kye one-half of the assets that he then owned. However, he denied that the transfer was a gift: Tcpt, 9 March 2021, p 120(06-16). He stated that he gave Kye half the property because: "He wanted to build a house there and the only way he could build a house there was for the mortgage to be cleared. So I told him that he'd have to clear the mortgage so that you'd be able to borrow the money": Tcpt, 10 March 2021, p 131(45-48). 1. In cross-examination, Joseph was shown Exhibit D8, a copy of a mortgage over Kye's house on the Big Springs property, which listed Joseph and Kye as mortgagors. Joseph was unsure when he first became aware that he was a mortgagor, stating, at various points in cross-examination, that he became aware at "the start of these proceedings", "in the last 12 months" and "after 17 February this year": Tcpt, 10 March 2021, p 130(28-43). It is difficult to accept his evidence as he would have been likely to have signed the mortgage. 2. Exhibit D9, showed that the current debt outstanding under the registered mortgage, is $396,759. However, Joseph's understanding was that he was only a guarantor and "it was Kye's responsibility to make the mortgage repayments": Tcpt, 10 March 2021, p 129(49)-130(01). 3. When asked if he had any reason to believe Kye may exercise his right to have trustees appointed to sell the Big Springs property and take half of the proceeds of sale, Joseph stated "I'm not aware of that", "I haven't considered it" and "It's dependent on the reason": Tcpt, 10 March 2021, p 131(50)-132(12). 4. When asked if, in the event that Joseph relocated, he expected that Kye would be in a position to pay him the amount that is his interest as a 50% owner of XXX Big Springs Road, Joseph stated "I think they would be in financial difficulties": Tcpt, 10 March 2021, p 133(36-37). 5. Counsel provided a range of estimates for the value of XXX Big Springs Road, with the lowest value being $850,000 (Ex JL2) and the highest value being $1.6 million (Ex D11). 6. These estimates were based on the following evidence: 1. Ex D5, a copy of the 24 May 1990 transfer of XXX Big Springs Road to Joseph, which records the consideration paid for the property at that time as $130,000; 2. Ex D4, which contains an estimated sale price of XXX Big Springs Road in 2017 of $275,000-$325,000; 3. Ex D10, an email sent from Joseph's solicitor to Jacob Gooden, sales consultant, and his response, which provides an estimated land value of between $500,000 and $550,000; and 4. Ex D11, a further email dated 8 March 2021 from Jacob Gooden to Joseph's solicitor, which provides an estimated sale price of $1.5-1.6 million. 1. In cross-examination, Joseph accepted that he had refused to give permission for a real estate agent to access the property to conduct an appraisal on behalf of Steven, because "I don't know if Kye would have agreed to an agent coming through… his house" and "I felt sort of intimated and an invasion of my privacy": Tcpt, 9 March 2021, p 122(41-50); Exhibit D6. There was no evidence that he had sought Kye's view and Kye was not a witness who gave evidence. 2. Joseph is retired and currently receives an aged pension from Centrelink in the amount of $944 per fortnight. After paying for expenses, Joseph said he has no discretionary income. 3. Joseph's currently fortnightly expenses are as follows: Expense Amount Electricity $ 95 Food and Groceries $500 Insurance – Home Building, Contents, Motor Vehicle $ 15 Travel/Petrol $150 Council Rates $ 20 Medical $ 20 Mobile Phone Bill $ 20 Haircut $ 12 Clothing $ 30 Gifts (Children/Grandchildren) $ 63 Total $925 1. (Of course, the estimated expenditure is $19 per fortnight less than the income he receives.) 2. Joseph has the following assets: Description Full Value Half Share in 291 Big Springs Road $262,500 Funds held in CBA Wagga Wagga $ 300 2005 Holden Ute $ 500 Boat $ 500 Furniture $ 1,000 Electrical Goods $ 500 Trailer $ 300 Total $265,000 Joseph's Claimed Needs 1. Joseph seeks provision from his mother's estate to enable him to purchase a home on the northern coast of New South Wales, at an estimated cost of $550,000. He wishes to live near Ballina as it is coastal, he enjoys fishing, it is warmer (which would alleviate his arthritis pain) and it is in close proximity to a hospital. 2. Joseph accepted that if he had not transferred half of his interest in XXX Big Springs Road to Kye, he would have had enough to purchase a new residence in Ballina: Tcpt, 10 March 2021, p 141(09-13). He also accepted that if the Big Springs property were sold for the average of the various appraisals provided in these proceedings, his share of the proceeds would be sufficient to purchase a new residence: Tcpt, 10 March 2021, p 141(42)-142(02). 3. When questioned about why he had sought to move when he already has a home, Joseph stated "I've got a modified shed, it's unhabitable": Tcpt, 10 March 2021, p 135(01-02). However, in cross-examination, Joseph accepted that, if he received provision from the deceased's estate, he could increase the habitable space in the shed from 6 metres to 24 metres: Tcpt, 10 March 2021, p 142(41-50). 4. In relation to a new residence, Joseph also seeks: 1. $22,000 to pay for stamp duty and solicitor's fees; 2. a fund to purchase basic furniture and white good contents in the amount of $35,000; 3. a fund to cover home and contents insurance for approximately 18 years in the amount of $90,000; and 4. a fund to pay for council rates and charges for approximately 18 years in the amount of $36,000. 1. Joseph seeks $86,400 to pay for the cost of a cleaner to maintain his residence for 18 years, given his medical conditions. Joseph estimates, based on the Fair Work Ombudsman award for cleaners dated 27 June 2019, the monthly cost of a cleaner as $400. 2. Joseph also seeks provision to enable him to purchase a new or good second-hand motor vehicle. Joseph seeks $30,000, which is the approximate cost of a dual cab Ford Ranger model. He also seeks $11,000 to cover the cost of car insurance for ten years and a $12,000 fund to cover the cost of repairs of any vehicle for ten years. 3. Finally, Joseph seeks provision to cover any possible medical care costs and future contingencies in life. A BUPA private Gold cover (including required joint replacement) has an estimated cost of $464 per month and Joseph seeks $100,321 to cover the cost of insurance for 18 years. 4. Joseph asserted that he will not be capable of independent living in future years and does not wish to live in an aged care facility or nursing home. As such, he seeks a fund for a carer or part time nurse. Joseph estimates this will cost $190 per day, twice per week, amounting to $198,848 over ten years. 5. Joseph also seeks a fund to cover his funeral expenses, being funeral insurance at an annual cost of $1,300 or $23,400 over 18 years. 6. Joseph has no superannuation policy and seeks a contingency fund for unforeseen expenditure in the amount of $100,000. 7. Joseph wishes to travel to see his children and grandchildren in Wagga Wagga, Tamworth and Melbourne. As such, he seeks a fund for flight expenses in the amount of $1,200 per year, amounting to $21,600 over 18 years. 8. (The submissions filed by counsel for Joseph suggested different figures. In broad terms, the total of the amounts shown are in the order of $1,199,000.) 9. When asked why it was the deceased's responsibility to financially provide for Joseph's needs as set out above, in circumstances where he had been financially independent of the deceased for over 30 years and where there had been an estrangement for the same period, counsel for Joseph stated "Because he's fallen on hard times and the best that he can do is live in a shed and drive a 15-year-old car your Honour, that's all": Tcpt, 11 March 2021, p 259(14-15). 10. I do not accept the submission that the provision sought by Joseph, out of the estate of the deceased, ought to be made, having regard to the facts known to the Court at the time the order is made. From at least 1985, Joseph had lived his own life, made his own lifestyle decisions, and had not sought the financial assistance from the deceased. It could not be said that he was being maintained, either wholly or partly, by the deceased. Catherine's claim for a family provision order 1. Catherine states that she had a close and loving relationship with the deceased throughout her early childhood. However, from Catherine's teenage years, she and the deceased had a difficult relationship. 2. Catherine observed the deceased to be a: "strong disciplinarian… [who] would often fly into fits of rage against me for no particular reason": Affidavit, Catherine Philomena Oakman, 18 January 2019 at par 17. 1. Steven gave evidence that, throughout her teenage years, Catherine would frequently lie to the deceased about her whereabouts and break her curfew. Steven recalls the deceased telling him several times that Catherine had stolen money from her purse to buy cigarettes and that she had found alcohol in Catherine's room. Catherine denies that she ever stole money from the deceased or drank alcohol without the deceased's permission, but accepted that she had smoked against the deceased's wishes: Tcpt, 10 March 2021, p 147(48)-148(30). 2. In about 1985, Catherine states that she left home after being physically assaulted by the deceased. Steven gave evidence that, whilst he observed the deceased occasionally raise her voice at Catherine, he had never seen her abuse Catherine, either mentally or physically. Steven did not notice any bruises or marks on Catherine and was never told by Catherine that she had been beaten. 3. Catherine stated that the deceased did not try to contact, or visit, her when she ran away from home. However, Steven stated that, on many occasions, he witnessed the deceased crying and saying words to the effect of, "I don't know where Cathy is! I am worried sick about her! She is out of control!" 4. After 8 months, Catherine returned to the family home. However, her relationship with the deceased "was never quite the same", was "a rollercoaster relationship" and "had become very strained": Affidavit, Catherine Philomena Oakman, 18 January 2019 at par 47-48. 5. In cross-examination, Catherine accepted that the deceased did not physically assault her beyond her teenage years, but stated that "she was still angry": Tcpt, 10 March 2021, p 156(39)-157(05). 6. In 1986, Catherine once again moved out of the family home to complete a TAFE course and returned only on weekends. Catherine accepts that the deceased supported her studying and paid for her board: Tcpt, 10 March 2021, p 150(38-45). 7. In early 1989, Catherine moved in with Phillip. Catherine stated that the deceased disapproved of her relationship and would often say words to the effect of "I don't like Phillip". Catherine accepted that the deceased held strong religious views that it was a sin for a man and a woman to live together before marriage: Tcpt, 10 March 2021, p 148(38-45). 8. Steven stated that, once Catherine moved out with Phillip, she "rarely came around" to the family home. Steven confirmed, in cross-examination, that the deceased disapproved of Catherine and Phillip's relationship and would often express her disapproval to Steven and other family members: Tcpt, 11 March 2021, p 222(32-41). However, Steven stated that, the deceased "accepted [Phillip] as time went on" and "invited him to Christmases and Easters and things like that": Tcpt, 11 March 2021, p 223(10-14). 9. From 1991 to 1995, Catherine lived and worked in Canberra. Whilst there, Catherine kept in contact with the deceased, via telephone, and would visit on important occasions such as Christmas, Mother's Day and the deceased's birthday. 10. In December 1999, Catherine moved back to Wagga Wagga. Initially, Catherine stated that she would visit the deceased weekly: Tcpt, 10 March 2021, p 162(11). However, she later stated that, by 2005, the deceased was frequently not home when Catherine and her children attempted to visit: Tcpt, 10 March 2021, p 162(21-24). Catherine accepted, in cross-examination, that these situations could have been avoided if she had called the deceased beforehand: Tcpt, 10 March 2021, p 162(41-43). Catherine stated that, from 2000 to 2006, she would visit the deceased approximately once a month: Tcpt, 10 March 2021, p 166(12-14). 11. At the end of 2007, Catherine stopped visiting the deceased. She stated that the deceased's behaviour made her feel "mentally fragile" and was starting to influence her children. To Catherine's observation, the deceased never loved Reagan and Tristan in the same way that she loved her other grandchildren. The deceased would often mock Catherine in front of her grandchildren and encourage them to do the same, saying words to the effect of "You are fat. You are naughty": Affidavit, Catherine Philomena Oakman, 18 January 2019 at par 113. She also stated that the deceased was often angry and aggressive towards her. 12. Initially, Catherine stated that she kept in contact with and maintained good relations with the deceased from the end of 2007 until they commenced seeing each again, in 2015. However, a number of other witnesses contradicted Catherine's evidence in this regard: 1. Steven stated that "from the time Cathy moved out until about 2015 mum used to regularly say to me words to the effect of: 'I haven't heard anything from Cathy for so long, have you seen her? Have you spoken to her?'": Affidavit, Steven Limberger, 27 June 2019 at par 13. Steven recalls the deceased would also regularly express her disappointment in Catherine and would often say words to the effect of "I was a good mother, she had a good home, why would she run away?": Affidavit, Steven George Limberger, 27 September 2019 at par 11. 2. Damien stated that "from 1989 to when my grandmother was admitted to the nursing home in 2015, my grandmother said to me on average three to four times a year words to the effect of 'Where is Cathy? She doesn't care about me. She never rings or visits me'": Affidavit, Damien Limberger, 3 July 2019 at par 27; and 3. Brianna stated that "As a child I regularly visited my grandparents together with my parents. I estimate that such visits occurred on average three times each month for the duration of my childhood. I seldom saw Cathy at my grandparent's home with the exception of major family gatherings such as Christmas and Easter": Affidavit, Brianna Esta-Maree Limberger, 4 July 2019 at par 12. 1. During cross-examination, when asked whether she was in contact with the deceased from 2007 to 2015, Catherine stated "Well what I'm saying is that it wasn't hostile. If we bumped into each other, we would talk to each other": Tcpt, 10 March 2021, p 163(10-15). She accepted that she did not keep in contact with the deceased from the end of 2007 to 2015: Tcpt, 10 March 2021, p 163(21-22). When asked why she stated that she was never estranged from the deceased, Catherine stated "I believed estrangement meant no contact at all" and "my mother knew where I was": Tcpt, 10 March 2021, p 165(21 & 30). 2. I consider that Catherine's evidence was implausible and was intended to mislead the Court as to the extent of her relationship with the deceased during that period. I do not accept her evidence about her relationship with the deceased where it conflicts with Steven's evidence or with the evidence of each of the grandchildren who gave evidence on the topic. 3. Catherine stated that, in April 2012, she attended Damien's wedding at which the deceased was present and had "a lovely chat" with the deceased, who invited Catherine to visit her home: Affidavit, Catherine Philomena Oakman, 18 January 2019 at par 123. This is inconsistent with what the deceased told Briana. 4. However, from 2012 to 2015, Catherine did not visit the deceased, because she "felt some trepidation at the notion of seeing my mother again in light of my negative experiences with her in the past": Affidavit, Catherine Philomena Oakman, 18 January 2019 at par 125. 5. In or about 3 February 2015, Catherine visited the deceased. Catherine stated that she decided to visit because "I got professional help for my mental problems… so I could be strong enough": Tcpt, 10 March 2021, p 168(03-04). Catherine observed that the deceased was "happy to see me" and "we had a very good afternoon together": Affidavit, Catherine Philomena Oakman, 18 January 2019 at par 126. 6. Catherine continued to visit the deceased throughout the first half of 2015, including when the deceased was admitted to hospital. Catherine contacted Joseph at this time and he visited the deceased in hospital also. After the deceased had been moved to the Forest Centre and requested to see Joseph, Catherine contacted him again and they would regularly visit the deceased together. 7. From August 2015, after the deceased secured placement at Loreto Home, Catherine would visit the deceased approximately every second day and they would "talk and laugh for hours together": Affidavit, Catherine Philomena Oakman, 18 January 2019 at par 148. Catherine would also take home-cooked meals to the deceased regularly and purchase items the deceased requested. 8. Catherine recalled being asked by the deceased to take her home and care for her in exchange for a wage. Catherine replied "Mum I would love to but I have a full time job and it would not be possible. I will try and make you more comfortable and happier here": Affidavit, Catherine Philomena Oakman, 18 January 2019 at par 158. In cross-examination, Catherine accepted that she did not run this idea past John, Steven or Flavia or have a discussion about it with the deceased, despite being unhappy in her current employment: Tcpt, 10 March 2021, p 170(04-11). Catherine stated that she did not do so because "I knew the boys wouldn't have allowed it": Tcpt, 10 March 2021, p 170(11). 9. From September 2016, Catherine states that she visited the deceased daily, until her death in January 2018. Catherine regularly purchased hygiene care products for the deceased, took her home-cooked meals on a weekly basis and washed her clothing. In the month before the deceased's death, Catherine would care for the deceased every day from morning until early evening and frequently spent the night in the deceased's room. 10. However, Steven gave evidence that "Cathy was not present or involved in [the deceased's] welfare; there was no contribution from Cathy whatsoever. There was no contact from Cathy. Cathy never enquired at all about my mother's health. Cathy visited Mum at Loreto… after we rang her and told her mum could die": Affidavit, Steven George Limberger, 27 June 2019 at par 47. Catherine's Medical Conditions 1. A medical certificate completed for Catherine on 20 November 2018 states (Ex CP01/169): "Mrs Catherine Oakman has significant pain in her knees bilaterally, also now in the elbows and the left ankle. This is contributing to poor mobility, now requiring a walking stick. She has difficulty walking up and down stairs or slopes. She is unable to stand for long periods. She is unable to carry any great weights. She is now unable to shower without the aid of a shower chair. She is unable to continue in her current work role given her physical impairments. She is unlikely to pass any medical assessment to continue with a new contractor. If her condition doesn't improve, which is likely the case without surgery, weight loss and pain management, then she would probably need assistance in the home with ADLs." 1. A medical report for Catherine, prepared by her GP Dr Azab on 8 February 2021, includes the following (Ex CP03/4): "1. Patient's History Catherine's history is: •Osteoarthritis bilateral knees and requiring walking aids • NIDDM 2020 • HTN Controlled • Morbid Obesity • Lower Back Pain 2. Previous and Existing Conditions Her Previous and Existing conditions are the same Question 1. 3. Your diagnosis Her Diagnosis according to her History and examinations is: • Morbid Obesity • Bilateral Knee Pain • Difficulty to mobilise • Depressed mood Catherine's medication list is enclosed. She was also referred to an orthopaedic surgeon. 4. Treatment to date (including any medication, therapies and referrals to other medical practitioners/therapists) and any future treatment proposed and estimate cost for same. Catherine's Treatment is: • Medication and CBT •Medication for NIDDM and regular dietician and Diabetic educator review • Referral to psychologist for future CBT • Referral to Psychiatrist and to continue treatment in the long term. 5. Whether our client is fit to undertake any form of employment no [sic] or in the future Catherine is not suitable and has no capacity for future employment. She is vulnerable to any stress, difficulty to concentrate and achieve tasks and she is physically unable. 6. Prognosis Generally. On the background of her physical restriction and mental illness lead to a disabling nature and restrict her to obtain any employment. 1. Catherine suffers from physical disabilities, including: 1. severe osteoarthritis; 2. osteophytosis and lateralisation of the patella in both knees; and 3. a valgus deformity in both legs. 1. Catherine currently has a permanent limp and carries a walking stick. 2. Due to her physical disabilities, Catherine is currently in severe pain on a daily basis. She experiences painful arthritic flare ups from time to time in her leg joints. 3. Catherine struggles to do day-to-day tasks, such as hanging washing, ironing or washing dishes and is very reliant on Phillip to assist her around the house and with chores such as grocery shopping. 4. As at June 2019, Catherine uses an electric scooter to access her backyard. However, the steps at the front of her home means she is "effectively housebound": Affidavit, Catherine Philomena Oakman, 8 February 2021 at par 15. 5. Since August 2019, due to her physical impairments, Catherine has found it difficult to drive. Since September 2020, she has become completely reliant on Phillip and her children to drive her around and struggles to get in and out of vehicles. 6. Since about September 2020, Catherine has begun experiencing flare ups in her shoulders, elbows, hands and fingers. She is losing strength in her arms and is often unable to complete tasks such as carrying items or turning on the tap. 7. Catherine currently takes diabetic tablets. She is regularly monitored by her GP for sugar levels in her blood, heart disease, kidney failure, cerebrovascular disease and other diabetes-related complications. 8. Catherine is required to see an optometrist at least once a year to check for eye damage, blindness and to obtain a medical report for her driver's licence. She is also required to see a podiatrist every 6 months to check for vascular disease in her legs. 9. Phillip confirmed much of the evidence about Catherine's physical disabilities. Over the past 5 years, Phillip has observed a marked deterioration in Catherine's physical mobility. He has observed that Catherine has difficulty moving around the house and can only perform smaller jobs like loading dishes, rather than grocery shopping, laundry or gardening. 10. Phillip gave evidence that he and Catherine effectively do not go anywhere anymore, due to her physical limitations, and that it is too difficult to host events. This has meant their social life has markedly reduced. To Phillip's observation, the fact that Catherine is house-bound has increased her feelings of isolation, anxiety and depression. According to Phillip, whilst Catherine desired to be independent, her physical limitations prevent this and cause her frustration. 11. Similarly, Donna confirmed that Catherine's mobility had declined over the last few years; that she struggled to complete ordinary tasks; and that this has caused her to be depressed. 12. Catherine suffers from anxiety, depression and high blood pressure, which have been exacerbated by her physical health problems. Catherine takes an anti-depressant (Citalopram) and blood pressure medication (Ramipril), amongst other medications. 13. A medical certificate completed for Catherine on 27 December 2018 states (Ex CP01/170): "Mrs Catherine Oakman has a longstanding history of depression and anxiety. She has received psychological therapy in the past for this. She is also on an antidepressant for this. She also has hypertension which is treated". 1. At the start of 2011, Catherine had a mental health breakdown and became depressed, anxious and suicidal. She was placed on medication by her doctor and advised to see a counsellor. 2. Catherine saw a psychologist, Dr Woodhouse, approximately every fortnight from mid-2019 to February 2020. Catherine's psychologist recommends that Catherine see her every three months for a one hour session, at a minimum. 3. A medical report for Catherine, prepared by Dr Woodhouse on 21 December 2020, includes the following (Ex CPO3/15-16) (with minor corrections): "1. History Mrs Oakman first attended an appointment with me 14/05/15. At this time… she was suffering depression. Although I was not with the medical practice at the time, Mrs Oakman's records indicate that she had previously suffered from stress and anxiety. Mrs Oakman began regular consultations with me from 27/09/19… At this time, she was experiencing severe depression and anxiety. She gave a history of relationship difficulties with her family, which had worsened upon the death of her mother. She gave a history of a poor childhood, with her mother being very abusive and there being little support for her within the family. Despite this, she remained in contact with her mother and cared for her mother in her later years and up until her death. … 2. My findings upon examination … Mrs Oakman struggled with racing thoughts, worry, poor self esteem and poor self compassion, had difficulty sleeping and described social anxiety, struggling to leave the home or even go into her back yard. Having a poor self esteem and having always had a passive communication style with her family, it is not unexpected that they would struggle with her showing a more assertive communication as she challenges them through the court process. It should also be noted that having a low self esteem, Mrs Oakman has always struggled with conflict and it is not unexpected that she finds the court process difficult. 3. Diagnosis I believe Mrs Oakman experiences anxiety and depression and shows many symptoms of post traumatic stress disorder (PTSD). 4. Treatment to date and any future treatment, requirements and estimated costs In working with Mrs Oakman, I used psychoeducation, cognitive behavioural therapy (CBT), breath work, relaxation, meditation and neurosculpting (neurosculpting is a modality of meditation focussing on self-directed neuroplasticity or brain change). Although Mrs Oakman has made significant improvements in her mood and managing thoughts, it would be beneficial to her to have some ongoing therapy so that she is more easily able to build on the progress she has made. At a minimum, I would suggest she is reviewed every 3 months. Currently, my fees are $160/hr and each session is 1 hour. 5. Capacity for employment now or in the future Although I have not seen Mrs Oakman since the beginning of the year, based on both her physical and mental health at that time, I do not believe she currently has capacity for work outside the home. I would not expect this to change in the future. 6. Prognosis generally During the time that Mrs Oakman worked with me, she worked hard and was able to achieve significant positive changes in managing her mood and thoughts. Her self care and self compassion improved. Although her self esteem is still low and she has self doubt, this had improved. Mrs Oakman was able to begin engaging in interests and hobbies and felt more comfortable leaving the home on social interactions. In my opinion, it will be vital that Mrs Oakman continue to have healthy hobbies/interests and to be able to engage in social situations. Maintaining good self care is vital and this can easily slip or be neglected if any stressors impact her life." 1. Phillip confirmed that, since he has known Catherine, she has suffered from depression and anxiety. According to Phillip, Catherine has largely been able to manage this, but he has observed her symptoms have markedly worsened since the deceased's death. 2. However, there was no medical evidence which established any connection between conduct of the deceased and the anxiety and depression from which Catherine suffers: Tcpt, 11 March 2021, p 268(11-14). Catherine's Financial Circumstances 1. Catherine has not worked since she was made redundant in February 2019 and says she is unable to do so due to her physical and mental disabilities. Catherine is ineligible for NDIS funding. As such, her only current source of funds is Phillip's wage. Catherine's income for the 2020 financial year was $2,271 (from Centrelink benefits). 2. However, during cross-examination, Catherine accepted that she has $276,181 in total and permanent disablement benefits to which she is entitled as a part of her superannuation, but stated that she was unaware she could apply to receive this entitlement: Tcpt, 10 March 2021, p 186(03-33). 3. Catherine has the following assets and liabilities: Assets Held By Estimated Value 2012 Volkswagen Amarok Plaintiff $16,000 (estimate) CBA Smart Access Bank Account Plaintiff and Phillip $25 (as at 1 February 2021) AON Superannuation Fund Plaintiff $35,965 (as at 30 June 2020) Hostplus Superannuation Fund Plaintiff $9,961 (as at 30 June 2020) MTAA Superannuation Fund Phillip $146,803 (as at 30 June 2020) Ruby wedding and engagement rings Plaintiff $2,000 (estimate) 2001 Jayco Flamingo Campervan Plaintiff $11,500 (estimate – midpoint of valuation range) XX Roosevelt Avenue, Tolland NSW 2650 Plaintiff and Phillip $265,000 (estimate – midpoint of valuation range) Nominal personal property and household contents Plaintiff and Phillip $5,000 (estimate resale value) TOTAL ASSETS $492,254 Liabilities Held By Estimated Value Joint mortgage with CBA Plaintiff and Phillip $26,408 (as at 31 December 2020) CBA Mastercard Plaintiff $14,744 (as at 12 January 2021) Loan from Tristan Oakman re payout of Kildare Catholic College School Fees Plaintiff and Phillip $9,550 (as at 27 January 2021) TOTAL LIABILITIES $50,702 1. The parties agreed, during the course of proceedings, that the value of the Tolland property is $320,000: Tcpt, 10 March 2021, p 185(33-36). 2. In late February 2020, Phillip commenced employment as a full-time mechanic. At the time of the hearing, he was on Job Keeper and his future job security is uncertain. Phillip earns approximately $950 per week. Catherine is uncertain of Phillip's ability to continue working due to the back problems he suffers whilst working. Phillips income for the financial year ending 30 June 2020 was $51,010. 3. Tristan lives at home and is studying full-time at university. He currently works 80 hours per fortnight on a casual basis, as a disability support worker, earning $90,000 per year: Tcpt, 10 March 2021, p 174(48). 4. Reagan lives at home and currently works full-time as a property manager at a real estate firm in Wagga Wagga, earning $50,000 per year: Tcpt, 10 March 2021, p 175(04). However, at the time of the hearing, he was on Job Keeper and his future job security is unknown. 5. Catherine does not anticipate that either of her children will move out soon. In cross-examination, she accepted that "eventually they will move out… in their lifetime": Tcpt, 10 March 2021, p 194(17-21). They do not pay board as Catherine believes "I should assist them in advancing their lives financially". However, when asked why they don't pay board, Catherine stated "there isn't any reason. I just haven't asked them for it": Tcpt, 10 March 2021, p 194(40). 6. However, Phillip acknowledged that, at some point, Tristan and Reagan will move out. (At this point, Phillip would become Catherine's primary carer and would require help for Catherine whilst he is at work as well as to assist with general household chores and management). 7. Tristan and Reagan pay for their own day-to-day expenses, excluding groceries. Catherine accepted, during cross-examination, that it is not necessary for her to support her sons financially: Tcpt, 10 March 2021, p 175(36-42). 8. Catherine and Phillip's monthly expenses are $4,759: Ex CP03/47-48. Catherine states that she and Phillip are approximately $750 short on their monthly expenses and that: "I basically live day to day and need to manage the family finances closely. Phillip and I have minimal savings given the needs and contingencies of a family of four": Affidavit, Catherine Philomena Oakman, 18 January 2019 at par 277. 1. Catherine stated that she and Phillip lacked funds for contingencies, mobile phone credit, dental and medical services, haircuts, clothing and footwear and house and garden maintenance. They also struggle to afford Phillip's work expenses, supplies for Catherine's painting therapy and optical costs. This has reduced Catherine's daily quality of life. 2. However, Tristan and Reagan pay for unexpected expenses incurred by Phillip and Catherine and contribute the missing amount between their income and expenses when needed. On this basis, Catherine accepted, during cross-examination, her family does not experience a shortfall between income and expenditure and are able to "live quite comfortably": Tcpt, 10 March 2021, p 189(46)-190(05). Catherine's Claimed Needs 1. Catherine estimates her present and future needs will cost approximately $1,210,940. Accordingly, she seeks provision from the deceased's estate to the amount of $1,100,000. 2. Given Catherine's physical disabilities, she says that she requires accommodation in a single-storey house which is on level ground, has no stairs and is modified to accommodate her disabilities. Catherine seeks a three or four bedroom home so that there is space for her family, a garden and her painting therapy. 3. Her current home is said to be unsuitable given that it is situated on a hill, the driveway is on a steep incline and accessing the front door requires walking up a set of 14 stairs. 4. Catherine also seeks a property in Wagga Wagga so she can take her scooter to the local shops and be near a hospital: Tcpt, 10 March 2021, p 197(50)-198(06). Her current property is approximately a 20 minute drive from the hospital and is too far for Catherine to use her scooter to visit the local shops: Tcpt, 10 March 2021, p 198(31-45). 5. As such, Catherine seeks provision of $266,145 to purchase a new home. This figure is based on the following costs: 1. purchase price: $550,000; 2. stamp duty: $20,085; and 3. legal and removal costs: $3,500; less: 1. sale price of existing property less sales commission (3% plus GST) and legal costs respectively: $320,000 - $10,560 - $2,000 = $307,440. 1. Ex D13, tendered by Steven, presented listings for a number of three-bedroom, single-storey houses in Wagga Wagga, ranging in value from $209,000 to $349,000, which Phillip conceded may be suitable for Catherine's needs. Catherine accepted that some of these properties would be suitable apart from the fact that they have steps and, in one case, the front of the property was too steep for her liking: Tcpt, 10 March 2021, p 192(25-28). 2. However, Ex CP01/205-207, tendered by Catherine, presented a listing for what she assessed to be a suitable home, valued at $669,000. Ex CP03/189-193, submitted by Catherine, presented listings for a number of properties which she assessed to be suitable homes, valued between $579,000 and $990,000. However, Catherine did not inspect any of these: Tcpt, 10 March 2021, p 193(40-41). 3. In cross-examination, Catherine accepted that she would not require this amount to purchase a new single-storey residence of two or three bedrooms: Tcpt, 10 March 2021, p 196(10-13). Similarly, Phillip accepted that it would cost much less than $900,000 to buy a new property in Wagga Wagga that was suitable to Catherine's needs: Tcpt, 10 March 2021, p 205(20-30). He accepted that such a property could be purchased for around $550,000: Tcpt, 10 March 2021, p 206(27-35). 4. When asked if Tristan and Reagan could contribute to the cost of a replacement property, Catherine stated "I wouldn't let them… I want them to achieve in life": Tcpt, 10 March 2021, p 194(35). 5. Initially, Catherine stated that an alternative to purchasing a new home was to renovate her existing home. The estimated cost of renovating Catherine's current house in accordance with the modification guide for assisted living is $105,000: Ex CP01/200-201. The estimated cost of renovating Catherine's current house in accordance with the modification guide for wheelchair living is $186,000: Ex CP01/200-201. The total estimated cost of renovating Catherine's current house is $291,000. 6. Phillip gave evidence that, after obtaining the quotes for the cost of modifications, "it would be more feasible to get a flatter home and do… smaller modifications": Tcpt, 10 March 2021, p 206(16-20). However, he accepted in cross-examination that there would be no significant difference in cost between purchasing a new home and modifying his and Catherine's existing home: Tcpt, 10 March 2021, p 208(29-31). Phillip also stated that he has not enquired with the bank about whether finance could be obtained to modify the existing home: Tcpt, 10 March 2021, p 208(38-42). 7. Further, in cross-examination, Phillip conceded that, if Catherine was given provision for a wheelchair friendly motor vehicle, she would be able to drive to the hospital and shops from their current property: Tcpt, 10 March 2021, p 204(33-36). 8. Phillip accepts that, once Tristan and Reagan move out, he and Catherine will need less space and the day to day living expenses of running the home will decrease: Tcpt, 10 March 2021, p 203(08-11) & 209(36-40). 9. However, he also stated "We don't know whether they're moving away for work. They could be coming back. It would be nice to be able to have somewhere for the children to come back to… when they come back to visit their mother": Tcpt, 10 February 2021, p 203(30-34). 10. Catherine seeks provision of $69,462 to purchase a second-hand vehicle modified for her disabilities. Her current vehicle is not suitable for her physical disabilities, as it is high off the ground and Catherine struggles to enter and leave it without assistance. Catherine estimates the cost of a suitable modified second-hand vehicle to be $85,462 and the proceeds of selling her current vehicle to be $16,000. 11. Catherine seeks provision of $51,354 to pay off her outstanding liabilities. 12. Catherine seeks provision of $218,000 for the current shortfall between her expenditure and income. Catherine estimates she would have earned $39,000 per annum for 15 years (at which point she would reach the retirement age of 67). This figure is based on the net fortnightly income of $1,500 Catherine contributed to her family's income prior to her redundancy and uses a 5% multiplier. Catherine seeks 50% of these forgone earnings. 13. However, in cross-examination, Catherine accepted that, given she has presented her circumstances as an economic unit of four people, it is impossible to determine her and Phillip's needs as a couple: Tcpt, 10 March 2021, p 196(41-49). 14. Catherine also seeks provision of $157,994 for her share of costs of living in retirement. Catherine estimates her costs of retirement to be $51,261 per annum, for 20 years (being the estimated number of years remaining in Catherine's life upon reaching retirement age). This figure is 50% of the midpoint between 'comfortable lifestyle couple' ($62,083 per annum) and 'modest lifestyle couple' ($40,440 per annum) annual expenditure provided in the AFSA Retirement Standards for retirees, September quarter 2020: Ex CP03/199-204. (It is unclear which multiplier has been used to arrive at the figure of $157,994). 15. In cross-examination, when asked about the possibility of moving into some form of institutional care, Catherine stated "No, not after what happened to mum… That will not be happening": Tcpt, 10 March 2021, p 197(24-25). 16. Catherine seeks $189,129 in provision for current and future domestic and care assistance, based on an estimated cost of $72 per hour, for 3 hours per week for 35 years and using a 5% multiplier (Ex CP03/205). 17. Catherine seeks $145,000 for medical expenses, including hydrotherapy, physiotherapy and a psychologist. 18. Catherine seeks provision of $26,268 for her medication, based on a cost of $30 per week for 35 years. 19. Catherine seeks provision of $53,412 for private health insurance, based on a quote obtained on 25 January 2021 of $61 per week: Ex CP03/233-235. 20. In cross-examination, Catherine stated that, although she currently manages without private health insurance, "it would be nice to have [it] because you could actually go and see specialists in a hurry whereas I have been waiting three years to get into a specialist": Tcpt, 10 March 2021, p 197(41-46). 21. Catherine seeks provision of $34,175 for the following disability assistance and support items: 1. a new walking stick, at an estimated cost of $51: Ex CP03/211-212; 2. a Bariatric wheelchair, at an estimated cost of $2,042: Ex CP03/213-215; 3. an Ultra-Light wheelchair, at an estimated cost of $365: Ex CP03/216-218; 4. an electric wheelchair or mobility scooter, at an estimated cost of $8,182: Ex CP03/219-221; 5. a floor hoist (to move from the wheelchair to the bed and vice-versa), at an estimated cost of $7,215: Ex CP03/222; 6. a general purpose sling, at an estimated cost of $346: Ex CP03/223-224; 7. an XB Deluxe Chair Bed, at an estimated cost of $3,334: Ex CPO3/229-231; 8. an electric lift chair for the lounge room, at an estimated cost of $7,475: Ex CP03/225-227; and 9. a high-to-low hospital bed to alleviate pressure on Catherine's joints and assist her getting in and out of bed, at an estimated cost of $4,535: Ex CP03/228. 1. The figures provided for the individual items do not add up to the total figure provided by Catherine. This probably does not matter because as I put to counsel for Catherine during oral submissions, Catherine did not provide evidence as to why these needs should be placed upon the deceased in the circumstances: Tcpt, 11 March 2021, p 272(41-42). 2. I do not accept the submission that the provision sought by Catherine, out of the estate of the deceased, ought to be made, having regard to the facts known to the Court at the time the order is made. She has lived her own life, made her own lifestyle decisions, and had not sought the financial assistance from the deceased. It could not be said that she was being maintained, either wholly or partly, by the deceased. Steven's competing claim 1. Steven had a close and loving relationship with the deceased throughout their joint lives. He lived at home until 1986, except for a brief period from 1972 to 1976, when he attended boarding school at Bowral. From 1986 onwards, Steven moved out of the family home. 2. From 1976 to 1980, Steven conducted an apprenticeship with Silverstar Homes and, from about 1978 to December 2019, Steven was employed by Rivcrete. Steven's wife, Helen, was employed part-time by Rivcrete from 2000 to December 2019. Steven has never had employment elsewhere: Tcpt, 11 March 2021, p 224(37-38). 3. Following Silvester's death in 1989, at the deceased's request, Steven (with John) assisted the deceased with the administration of Silvester's estate. 4. In 2002, the deceased had a fall at her home and had limited mobility for approximately the subsequent six months. During this period, Steven (with John) purchased a wheelchair, walker, walking sticks and a personal emergency alarm for the deceased. Steven and John took turns visiting, taking meals to and caring for the deceased, on alternate days. Steven and John assisted the deceased with her physiotherapy until, gradually, her condition improved. Steven and Helen would also visit the deceased with their children most weekends. 5. In about 2008, the deceased stopped driving. From this point onwards, John, Steven, Flavia and Helen would do the deceased's grocery shopping and take her to all of her appointments. From 2008, Steven's daughter Kate would clean the deceased's home once a week. 6. From 2012 or 2013 to 2015, Steven, or John took dinner to the deceased every day. 7. After the deceased moved into Loreto Home of Compassion in 2015, Steven would visit her every day. 8. Catherine stated that, on one occasion whilst visiting the deceased at Loreto Home, the deceased asked: "Can I trust Steven to do the right thing when I'm gone?": Affidavit, Catherine Philomena Oakman, 18 January 2019 at par 175. 9. However, Steven's evidence in his affidavit of 27 June 2019 at par 39 is that: "My mother explicitly trusted me in her care and the business. My mother would often express gratitude for what I did for her and the business. On such occasions she would say words to the effect of 'Thank you for all you do for me Steve. I'm such a burden on you and you are always there for me.' My mother was informed of all matters and I discussed with her any discussions concerning the business". 1. I accept Steven's evidence in this regard also. 2. Catherine recalled that, whilst the deceased was in Loreto Home, Catherine asked Steven if the deceased could return home, to which Steven replied "No. Mum's house isn't set up for her disability, and it would cost too much, to get a carer in would be $260,000 and we couldn't afford it": Affidavit, Catherine Philomena Oakman, 18 January 2019 at par 196. 3. However, Steven stated in his affidavit of 27 June 2019 at par 46: "I believed my mother was getting the best care possible in the condition she was in. She had 24-hour care, hoists to get her in and out of bed, security, nurses and doctors available. For the 15 years prior to this, John myself and our wives had looked after my mother, caring for her at home. We arranged for her to be moved to The Forest Centre when her home was no longer suitable as we worried about her safety and welfare." 1. Steven and Helen have the following assets and liabilities: Asset Held By Estimated Value 16% of one Ordinary Share in Rivcrete Pty Ltd as trustee for the Rivcrete Trust trading as Rivcrete Brick & Block (as at 30 June 2019) Steven Unknown XX Amaroo Street, Wagga Wagga Steven and Helen $450,000 2016 Holden Steven $ 12,000 1982 Harley Davidson Steven $ 12,000 2002 Savage Boat and Trailer Steven $ 10,000 Box Trailer Steven $ 200 Westpac Bank accounts Steven $ 3,636 Commonwealth Bank accounts Steven $ 18,743 Trailer Steven $ 650 Trailer box Steven $ 3,000 BT Compact Investor Wrap superannuation Steven $164,414 REST superannuation Helen $ 48,700 TOTAL $723,343 Liability Owed By Amount Westpac Bank Mastercard Steven $ 1,050 TOTAL $ 1,050 1. In cross-examination, Steven accepted that he failed to mention his family's discretionary trust in his affidavit as an asset available to his family unit: Tcpt, 11 March 2021, p 220(34-44). 2. As the deceased owned the property upon which Rivcrete operates its business, Steven is in the process of winding down the business so that the property can be sold. As Steven's employment history is limited to Silverstar Homes and Rivcrete, and given his age, Steven does not believe he has good prospects of finding other remunerative employment after he ceases to work for Rivcrete. 3. Helen is currently unemployed, after ceasing to work for Rivcrete in December 2019. 4. Steven is currently selling the stock and assets of Rivcrete, but has not drawn an income since December 2019. The proceeds of sale are being applied towards the expenses of Rivcrete (including clean up expenses, fuel and utility expenses) and otherwise to reducing the overdraft, which is currently $194,000. 5. In cross-examination, counsel for Catherine asked Steven extensively about Rivcrete Unit Trust and the distributions made to and from it. Steven accepted that the deceased (and, after her passing, the deceased's estate) was the only person contributing money into the trust, but that John and Steven received distributions from the trust over the period from at least 2014-2019: Tcpt, 11 March 2021, p 234(43-50). However, I found this evidence of limited relevance because there is more than sufficient funds in the actual estate to meet the provision to be made for Joseph and for Catherine. Steven's medical conditions 1. Steven suffers from arthritis in both knees and his lower spine. 2. Steven suffers Plantar Fasciitis in both feet and is required to wear orthopaedic footwear. 3. Steven takes Micardis and Norvasc daily for hypertension, Cardia Aspirin for blood thinning, Lipitor daily for cholesterol, Allopurinol daily for gout and Zoloft daily for depression. 4. Steven suffers from industrial deafness. Anthony's competing claim 1. Anthony is a grandchild of the deceased, a child of John and a beneficiary. 2. In November 2020, Anthony was made redundant and received a redundancy package of $22,327. Anthony is currently looking for employment and has no income source. 3. Anthony is in a de facto relationship with Britt Matilda Bergelin, who works full-time as a Product Marketing Manager at Elekta Instrument AB and earns an annual income of approximately $93,000. 4. Anthony and Britt have the following assets and liabilities: Asset Held By Estimated Value Motor Vehicle Anthony $ 15,000 Savings Anthony $210,000 Karl Gerhards vag 25, 133 xxx Saltsjobaden, Sweden Britt $271,062 Superannuation Anthony $ 85,000 Superannuation Britt $ 20,000 TOTAL: $601,062 Liability Owed by Amount Student Loan Britt $ 33,129 Mortgage Britt $218,355 1. Anthony would like to upgrade his vehicle, which he estimates will cost around $50,000. He would like to purchase a vehicle for Britt, which he estimates will cost approximately $30,000. 2. Anthony had a close relationship with the deceased. Growing up, he would regularly visit her and assist with the maintenance of her house and yard. After Anthony moved away from Wagga Wagga, he made an effort to see the deceased whenever he was visiting Wagga Wagga. Laura's competing claim 1. Laura is a grandchild of the deceased, a child of John and a beneficiary. 2. Laura currently works full-time as an Architectural Designer at Shelton Mindel, New York and earns approximately $90,000 per annum before tax. 3. Laura lives alone in rental accommodation, for which she pays US $2,100 per month. 4. Laura has the following assets and liabilities: Asset Estimated Value Savings $ 1,000 Superannuation $14,247 Liability Amount Westpac Credit Card $ 6,000 1. Laura had a loving relationship with the deceased and would regularly visit when growing up. Laura spent time at the deceased's home using her swimming pool, cooking and assisting with chores. 2. After moving to Sydney, Laura continued to visit the deceased when she returned to Wagga Wagga. Michael's competing claim 1. Michael is a grandchild of the deceased, a child of John and a beneficiary. 2. Michael currently works full-time for the Commonwealth Bank of Australia as a Market Data Specialist and earns a net monthly income of $6,984. 3. Michael has the following assets and liabilities: Asset Estimated Value XXX Abelia St, Tahmoor $470,000 Lot X Alum Creek, Dry Plain $180,000 Mazda CX3 $ 27,000 Mazda BT50 $ 7,000 Savings Account $ 43,000 Shares $ 20,300 Superannuation $156,341 TOTAL $903,641 Liability Amount Mortgages $ 5,000 Credit Card $ 6,817 TOTAL $ 11,817 1. Michael has approximately $469,248 in life insurance. 2. Michael's Mazda BT50 is due for replacement with a "more harder working vehicle that is required at the Lot X Alum Creek property". He estimates this will cost $55,000. 3. Michael requires the following provision to be spent on his residence: 1. $40,000 to update his bathroom and kitchen; 2. $12,000 to install a central air-conditioning unit; 3. $8,000 to replace his carpet; and 4. $2000 to replace his lounge. 1. Michael, currently, spends four hours per day commuting to work and would like to purchase a new residence in the future to improve his work/life balance. He estimates this will cost approximately $850,000. 2. Michael requires the following provision to be spent on the Lot X Alum Creek Property: 1. $15,000 to replace the fence lines; and 2. $50,000 to erect a shed to store equipment and machinery. 1. Michael anticipates that he will need to assist with the future cost of care for Flavia, due to her limited assets and lack of income. 2. Michael had a close relationship with the deceased. As a child, he spent most weekends at the deceased's house with his siblings. When Michael attended university, he spoke to her regularly on the phone. After moving to Sydney, Michael spoke to the deceased less frequently, but would try and visit her on most occasions when he returned to Wagga Wagga. Briana's competing claim 1. Briana is a grandchild of the deceased, a child of John and a beneficiary. 2. Briana is currently working as a nanny four days a week and earns $1,036 per week. 3. Briana is married to Benjamin James Ridge. Benjamin works full-time for InfraSol Group as a civil engineer and project manager and has a net monthly income of $10,215. 4. Briana and Benjamin's assets and liabilities are as follows: Asset Held By Estimated Value Funds in bank accounts Benjamin $ 56,054 Shares in InfraSol Group Benjamin $108,266 2016 Toyota Corolla Benjamin $ 10,000 Household goods and personal effects Briana & Benjamin $ 50,000 Superannuation Briana $ 8,795 Superannuation Benjamin $161,977 TOTAL $395,092 Liability Owed by Amount HECS Debt Briana $ 78,019 1. Benjamin has life insurance of approximately $34,980. 2. Briana and Benjamin would like to purchase a home together, pay off Briana's HECS debt and replace some of their furniture and whitegoods. Damien's competing claim 1. Damien is a grandchild of the deceased, a child of John and a beneficiary. 2. Damien currently works part-time as a medical practitioner for Murrumbidgee Local Health District. In July 2020, he commenced part-time employment with Charles Sturt University as an Associate Head. 3. Damien's net income for the 2020 financial year was: 1. Damien: $257,060; and 2. Limberger Medical Trust: ($57,225) 1. Damien is married to Susan Limberger, who works part-time as a teacher and earns an after-tax income of $72,841. Susan has been on maternity leave since January 2020 and expects to return to work in or about April 2022. 2. A summary of Damien and Susan's assets and liabilities are as follows: Asset Held By Estimated Value XX Payten Rd, Corbie Hill NSW Damien & Susan $ 320,000 XX Mansell Rd, Hanwood NSW Damien & Susan $ 740,000 XX Yambil St, Griffith NSW Limberger Superannuation Fund $ 605,000 Medical Equipment Limberger Medical Trust $ 120,000 Toyota Prado Limberger Medical Trust $ 30,000 Skoda Octavia Limberger Medical Trust $ 20,000 Daedong Tractor Damien & Susan $ 30,000 Toyota Hilux Damien & Susan $ 3,000 Shares Damien $ 25,300 Funds in bank accounts Damien & Susan $ 3,880 Funds in bank accounts Limberger Medical Trust $ 22,300 Funds in bank accounts Limberger Superannuation Fund $ 25,990 First State Super Damien $ 9,000 First State Super Susan $ 26,200 TOTAL: $2,062,550 Liability Owed by Amount XX Payten Rd, Corbie Hill NSW Damien & Susan $ 185,300 XX Mansell Rd, Hanwood NSW Damien & Susan $ 296,100 XX Yambil St, Griffith NSW Limberger Superannuation Fund $ 374,150 Medical Equipment Chattel Mortgage Limberger Medical Trust $ 42,300 Visa Card Damien $ 4,100 MasterCard Limberger Medical Trust $ 150 TOTAL: $ 902,100 1. Damien and Susan each have life insurance of approximately $2,500,000. 2. Damien does not have any interest in companies or trusts other than: 1. Damien; 2. the Trustee for Limberger Medical Trust; 3. the Trustee for Limberger Superannuation Fund; and 4. Limberger Nominees. 1. Damien had a close and loving relationship with the deceased throughout her life. 2. During Damien's early childhood, his family would see the deceased, on average, every one or two weeks. 3. From 1989 to 1997 (at which time Damien left for university), John would drop Damien and his siblings at the deceased's house most Saturday mornings, until late in the afternoon. Damien, Michael and Anthony would cut the lawn, maintain the gardens and clean the swimming pool. 4. Damien worked at Rivcrete during university holidays from 1997 to 2002. During this period, he would see and spend time with the deceased every time she visited Rivcrete, which was approximately four to five afternoons per week for several hours. Joseph's Submissions 1. Joseph submitted that the deceased blamed him for Silvester's death and for causing the family business to incur a large expense by commencing proceedings in 1985. Joseph contended that, by making no provision for Joseph in her Will, the deceased was condemning him from the grave. 2. In regards to the value of the Big Springs property, Joseph submitted that the estimates provided by Jacob Goodan (Ex D10 and Ex D11) should be disregarded as they contain extremes of $500,000 and $1,600,000 and do not disclose details of comparable property sales. Instead, Joseph submitted that the property's value should be estimated at $975,000, being the midpoint of the range of $850,000 to $1,100,000 provided by Kitson Property and One Agency (Ex JL2). 3. Joseph estimated that, allowing for selling costs and legal expenses of approximately $25,000, each half of XXX Big Springs Road is worth $475,000. 4. However, Joseph then submitted that the value of his interest in one half of XXX Big Springs Road as a tenant in common, whilst relevant, should not be determinative of the outcome of his application for provision. He maintained that he needed to move to the North Coast for health reasons, but did not want to interfere with the continued occupancy and enjoyment of Kye and his family. Joseph's contention was that given Kye has been made redundant and his wife is unemployed, Kye is not in a position to purchase his share of the Big Springs property, and, otherwise, he does not wish to force a sale of the property. 5. However, as I pointed out to Joseph's counsel during oral submissions: "[Joseph] either stays where he is now and enjoys the comfort of the home that he has built for himself and lived in for the last seven years, perhaps with some financial assistance to improve the quality of the home – that's one alternative. The other alternative is that he sells the block of land by making a s 66G application, and if he did that, he would have sufficient, on the worst possible scenario, and far more than sufficient, on the best scenario, to enable him to purchase alternative accommodation": Tcpt, 11 March 2021, p 255(01-08). 1. Joseph contended that, for more than half of his life, he had a good relationship with the deceased and contributed to the business and family welfare. Whilst Joseph acknowledged their estrangement, he submitted that the fault was with both himself and the deceased. He noted their reconciliation in July 2015. 2. Counsel for Joseph, during oral submissions, stated that Joseph's children also contributed to the welfare of the deceased, in the sense that the deceased knew she had grandchildren and, presumably, enjoyed their company, at least until Joseph's estrangement and then after the reconciliation. 3. However, as pointed out to counsel during submissions, the only evidence provided to substantiate this submission was a single photo of Kye and the deceased in 2016: Tcpt, 11 March 2021, p 247(26-28). As earlier noted, Kye did not give evidence. 4. Joseph submitted that, given he has fallen on hard times, the deceased had an obligation to make some provision for him, but there is no evidence that she gave consideration to her responsibility in this regard. However, the deceased's statement in her Will "I'm not leaving anything to Joseph because…" suggests a consideration of the obligation she had to him: Tcpt, 11 March 2021, p 251(16-21). 5. Joseph's counsel then submitted that the deceased had not given any consideration to her obligations after the time at which she reconciled with Joseph: Tcpt, 11 March 2021, p 254(14-16). I do not accept this submission, when an estrangement has existed for 30 years prior to a so-called reconciliation, and when the deceased is dying. 6. Joseph, ultimately, submitted that an appropriate order for provision should, to some extent, satisfy his identified financial needs and that this can be done without adversely impacting on other competing claims given the size of the distributable estate. Counsel for Joseph submitted, in writing, that adequate provision for Joseph's proper maintenance and advancement in life was in the order of $1,199,000. However, during submissions, counsel submitted that $600,000 would constitute adequate and proper provision (in his professional view). Catherine's Submissions 1. Catherine submitted that, despite reconciling with the deceased (to a degree) from 2015 onwards, the deceased wished to punish Catherine for her teenage behaviour and for her choice of husband, in her final Will. Catherine contended that the deceased's differential, and hurtful, treatment of her is demonstrated by such behaviour as her failure to contribute financially to Catherine's wedding, failing to visit Catherine when her first child was born and failing to attend his christening despite being invited to do so. Counsel submitted that the treatment Catherine had received from the deceased was vastly different to that of Steven and John, that is: 1. their choice of spouse was not the subject of criticism and rejection; 2. they were employed for decades in the family business with no need to seek employment on the open labour market; and 3. they had received almost the whole of the very significant assets built up jointly by the deceased and Silvester over decades. 1. Whilst Catherine acknowledged the stated reasons for Joseph having been omitted from the deceased's Will, she contended that the same reasons did not apply to her. 2. Catherine submitted that there was no evidence to support the reasons given to Mr Kennedy for excluding her in the deceased's Will, that is, that she was living in an unsatisfactory domestic relationship and that Phillip would squander any assets that she received. Catherine contended that these reasons demonstrated the deceased's unreasonable antipathy towards Catherine and her husband. 3. Catherine submitted that the deceased did not give proper consideration to Catherine's moral claim upon her estate, as a result of which the children of John and Steven had been preferred to Catherine's children. 4. Catherine pointed to Basten JA's comments in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 that "indifference, irritation or even outright hostility are also 'natural' characteristics of some family relationships". She submitted that this observation applied in these proceedings, given that a controlling mother had to deal with what she viewed as a disobedient teenage daughter. 5. Catherine submitted that although the relationship was difficult, Catherine had persevered and there was no behaviour on her part which disentitled her to provision. Catherine submitted that it was the deceased's behaviour that had contributed to Catherine being deprived of a close relationship with her mother and Catherine's children being deprived of a close relationship with their grandmother. 6. Catherine also referred to the comments of Holland J in Kleinig v Neal (No. 2) [1981] 2 NSWLR 532 at [540] about actual estrangement between parents and child: "If it is a case of parent and child, another circumstance is that the parent was responsible for bringing the child into the world and having done so assumed a duty to be concerned with the child's welfare. A wise parent will recognise that perfect harmony between parent and child is in the nature of things not to be looked for and that, coming to adulthood, a child will want to make his own life just as the parent had done before him. Differences of outlook between different generations is not exceptional, it is the general rule, so some friction between parent and child or disappointment in a parent's hopes and expectations concerning his child will be accepted by the wise parent as almost inevitable. If it occurs, the parent who is just as well as wise will not allow such disharmony or disappointment to blind him to the needs of his child for maintenance, education or advancement in life. The duty of a parent towards his child to provide for those needs on his death, if he can, continues in spite of such disharmony or 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 that a wise and just parent would have made in the circumstances. Of course, 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 parent, it may refuse the child's claim." 1. Catherine submitted that she never ceased contact with the deceased and they became closer in the deceased's final years. I am not satisfied that this was, in fact, the case. 2. Catherine submitted that the provision made for her in the deceased's Will (being the income from a relatively modest sum of $300,000, not the actual capital sum itself) was "effectively no provision at all" and that she has received no distribution from the estate to date. Catherine submitted that, even if prudently invested, her provision represents a "miniscule part of the [deceased's] estate". 3. Catherine contended that, as a daughter and natural recipient of the deceased's bounty, she had not been adequately provided for and that she required assistance to obtain appropriate alternative accommodation to cater for her reduced mobility and some capital sufficient to meet her medical/living expenses and contingencies. 4. Catherine submitted that proper provision would permit her to modify the family home, or obtain alternative, more suitable, accommodation, with sufficient funds to pay out the existing mortgage, contribute to a reasonable living standard and have a buffer for the exigencies of life. 5. In Catherine's submission, provision for her from the deceased's estate, even significant provision, would not defeat the entitlement of the other beneficiaries named in the deceased's Will. 6. Catherine made a number of submissions to the effect that Steven's affidavit had failed to provide full disclosure. I do not accept that assertion. In any event, there is more than enough to satisfy any order for provision that is made for Catherine. Steven's Submissions 1. Steven submitted that Joseph, in having no contact with the deceased for as long as he had, relinquished any claim to provision out of her estate and, consequently, that the deceased was not under a moral obligation to make provision for Joseph. 2. Steven further submitted that Joseph's decision to make a number of nursing-home visits to the deceased in the final two and a half years of her life did not alter the position. For a significant period, Joseph had made no attempt to play any part in the life of the deceased. 3. Counsel for Steven, during oral submissions, also submitted that Joseph did not provide any evidence of conversations between himself and the deceased and that "the evidence is very vague as to the nature and duration of that interaction in the last two to two and a half years or so of the deceased's life": Tcpt, 11 March 2021, p 275(03-18). 4. Steven further submitted that, due to the frequent infections suffered by the deceased from mid-2015 until the time of her death, during which she was often delirious, it is not known "to what extent on the occasions that Joseph visited the deceased she necessarily even recognised him or knew who he was": Tcpt, 11 March 2021, p 275(20-35). 5. Steven pointed to the lack of evidence that the deceased attempted to make provision for Joseph following his visits to her or even considered doing so. 6. Steven submitted that Catherine's moral claim to provision out of the deceased's estate was either extinguished, or very substantially diminished, by Catherine's decision to have next to no contact with the deceased for so many years. He submitted that the Court should be slow to find that a resumption of contact at a point in time when the deceased was nearing the end of her life operated to revive a moral claim relinquished (or substantially diminished) decades earlier. 7. Steven submitted that there was no suggestion, in the evidence advanced by Catherine, that, following Catherine's resumption of contact, the deceased had considered revising her will to make additional provision for Catherine. 8. Yet, Steven accepted that the provision made for Catherine under the deceased's Will was inadequate. He conceded that it would be appropriate for the Court to order that Catherine receive provision, in lieu of the provision made for her out of the deceased's estate. He submitted that the moral claim of all of the residuary beneficiaries was particularly strong by reason of the enormous lifetime contributions of each of Steven and John to both the building up of the estate (by working in, and, ultimately, running, the family businesses) and the welfare of the deceased, to whom they provided extensive care and assistance, without pause, until her death. 9. Steven placed emphasis on the evidence that he and John (together with their families) looked after the deceased whilst she was living at home during the period between Silvester's death in 1989 and the relocation of the deceased to a nursing home in mid-2015. The care provided to the deceased prior to her admission to the nursing home included daily visits to the deceased and the provision of meals. 10. Steven submitted that the resumption of contact with the deceased on each of Joseph and Catherine's part coincided with the deceased's admission to institutional care, that is, at a time when the deceased's physical needs were the responsibility of full-time nursing home staff. 11. Steven contended also that, whilst the deceased's estate was relatively large, each of the residuary beneficiaries gave evidence of a need for the provision that the deceased wished him and her to receive. The Law 1. The principles to be applied are well known and I have dealt with them in many cases. For the benefit of the parties, I shall repeat the relevant principles. 2. Section 59(1) of the Act confers jurisdiction on the Court to make a family provision order in relation to the estate of a deceased person if, relevantly, the Court is satisfied as to matters, namely that: 1. The applicant, the person in whose favour the order may be made, is an eligible person; and 2. … 3. At the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased. 1. Thus, to justify an order for provision under the Act, the Court, relevantly, must be satisfied that the deceased has not made "adequate provision for the proper maintenance … or advancement in life of the person in whose favour the order is to be made …": s 59(1)(c). If that is established, the Court is empowered to order such provision out of the estate as the court "thinks ought to be made" for the identified purposes: s 59(2). 2. The majority (Mason CJ, Deane and McHugh JJ) observed in Singer v Berghouse (1994) 181 CLR 201 at 210; [1994] HCA 40, referred to these as "twin tasks" and stated that they involved similar considerations, because in each the Court has to assess what is the "proper" level of maintenance and what is "adequate" provision. As has been observed, these terms are relative and require that regard be had, among other things, to the matters set forth in s 60(2), including the claimant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the claimant and the deceased, and the circumstances and needs of other claimants, beneficiaries and potential beneficiaries. 3. Importantly, the question of the inadequacy of provision is to be assessed at the time when the Court is considering the application. This does not mean, however, that considerable weight should not be given to the assessment of a capable testator, who has given due consideration to the claims on her, or his, estate: Sgro v Thompson [2017] NSWCA 326 at [6] (Payne JA). The basis upon which the evaluative judgment is to be undertaken is unrestricted. There is no automatic entitlement to provision stipulated by the Act, and the deceased's Will applies unless a specific application is made and acceded to by the Court. 4. Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision made for the applicant in the Will of the deceased, on the one hand, and to the requirement for maintenance or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of the applicant. 5. The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment: Singer v Berghouse at 210; White v Barron (1980) 144 CLR 431 at 434–435, 443; [1980] HCA 14 at [5] (Barwick CJ, albeit in dissent in the result), [8] (Mason J). 6. "Provision" is not defined by the Act, but it was noted in Diver v Neal (2009) 2 ASTLR 89 at 97; [2009] NSWCA 54 at [34] (Basten JA, Allsop P and Ipp JA agreeing), that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime". 7. The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton in "The Concept of Moral Duty in the Law of Family Provision – A Gloss or Critical Understanding?" (1999) 5(1) Australian Journal of Legal History 5, 10, as reached upon "a purely economic and objective basis", whereas "proper" prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127 at 145 [72]; [2007] WASCA 235 at [72], [77] (Buss JA, Pullin JA agreeing), which seems to invite more subjective criteria. 8. In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, Dixon CJ (McTiernan J agreeing), at 19, pointed out that the words "adequate" and "proper" are always relative and that what the testator regarded as "superior claims or preferable dispositions" is a relevant consideration: "The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning." 1. In Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31 at [18], Gibbs J (as his Honour then was) (Stephen and Mason JJ agreeing) wrote, at 502: "… the words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards." 1. In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [114], Callinan and Heydon JJ wrote: "… the use of the word 'proper' … implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all of the relevant surrounding circumstances and would entitle a court to have regard to a promise of the kind which was made here … The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future." 1. The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the "station in life" of the applicant, the expectations to which that has given rise, and the fact that the applicant was, throughout his, or her, adult life, respectively, independent upon the deceased for any ongoing financial support. 2. The word "maintenance", and the phrase "advancement in life", are not defined in the Act. 3. In Vigolo v Bostin, Callinan and Heydon JJ, at [115], commented: "'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education." 1. In Alexander v Jansson (2010) 6 ASTLR 432; [2010] NSWCA 176, Brereton J (Basten JA and Handley AJA agreeing), wrote, at [18]: "'Proper maintenance' is not limited to the bare sustenance of a claimant … but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility." (citations omitted) 1. In McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 at [9], Dixon CJ and Williams J wrote, at 575: "The presence of the words 'advancement in life' in the ... Act in addition to the words 'maintenance and education' is not unimportant ... 'Advancement' is a word of wide import." 1. In Bartlett v Coomber [2008] NSWCA 100 at [50], Mason P (Hodgson JA agreeing) wrote: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker … at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams …)." 1. White J (as his Honour then was), in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522, wrote, at [123]: "The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case including 'the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty': Singer v Berghouse (1994) 181 CLR 201 at 210." 1. Whether the disposition of the deceased's estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the applicant will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant's "needs" that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573 at 575 (Kirby P, Hope JA agreeing). This statement is not intended to suggest that an applicant's "needs", when compared with the provision made for him or her, out of the estate, should be the dominant consideration. The existence, or absence, of "needs" which an applicant cannot meet from her, or his, own resources, will always be highly relevant, and quite often decisive: Singer v Berghouse at 227 (Gaudron J, albeit in dissent in the result); Bkassini v Sarkis [2017] NSWSC 1487 at [296]–[297] (Robb J). 2. As was written in Devereaux-Warnes v Hall (No 3), at [81]–[84], Buss JA (as his Honour then was) wrote: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources: see Singer (at 227) per Gaudron J. 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc: see Gorton v Parks (1989) 17 NSWLR 1 at 10-11 per Bryson J. The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other: see Hunter (at 575) per Kirby P. Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc: see Singer (at 227) per Gaudron J. Compare Gorton (at 6-11) per Bryson J; Collicoat v McMillan [1999] 3 VR 803 at [38], [47] per Ormiston J." 1. However, as will be read, s 60 of the Act invites the Court to have regard to various matters, including, but not limited to, financial need: s 60(2)(d). If the Court does so, as will also be read, one of the purposes for which that is done is for determining "the nature of any [family provision] order": s 60(1)(b) of the Act. 2. No doubt, this has prompted White J to write, in Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 at [147], that "… the need a claimant must demonstrate is a need for 'proper' maintenance, education and advancement in life", but that does not mean that "… adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others …". Respectfully, I agree. 3. Of course, "need" is a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45] (Dodds-Streeton J). It is different from "want" and does not simply mean "demand" or "desire". The latent difference between the words was stated by Lord Neuberger (the former President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 at [54]: "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'." 1. In Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86 at [41], David J added: "'Need' is not so synonymous with 'want' such that the two are interchangeable." 1. However, no narrow view of what is encompassed by the concept of "need" is to be adopted. In Gorton v Parks (1989) 17 NSWLR 1 at 8, Bryson J (as his Honour then was) commented that "[i]t does not seem possible to give a complete or exhaustive statement of the concept". 2. Yet, as Basten JA wrote in Chan v Chan, at [22]: "…it is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. The background to any consideration of the appellant's needs required determination of the size of the estate and the claims of others on the beneficence of the testator." 1. Callinan and Heydon JJ emphasised in Vigolo v Bostin at [122] that the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. Adequacy is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined. 2. Sackville AJA (Macfarlan and Ward JJA agreeing) pointed out in Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297, at [84], that: "… the assessment of an applicant's needs is not a mechanical process. In Andrew v Andrew (2012) 81 NSWLR 656 at [12], Allsop P observed that '[a]ccepted and acceptable community values permeate or underpin many, if not most, of the individual factors in s 60(2)'. That observation applies to the concept of 'financial needs' embodied in s 60(2)(d) of the Succession Act. The needs of a person depend on a range of factors that will vary from case to case. Some of those factors, such as the person's age and earning capacity, are specifically mentioned in s 60(2). Other factors, such as the person's financial or non-financial responsibilities to family members, or the standard of living which the deceased encouraged the person to enjoy, are not expressly identified in s 60(2) of the Succession Act." 1. If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made. 2. Section 60 of the Act provides: (1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining - (a) whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the Court - (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person—the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (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 the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered. 1. It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew at [37], as a "multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the Court considers relevant", for the purpose of determining whether the applicant is an "eligible person", whether a family provision order should be made, and if so, the nature of any such order. 2. In Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [7], Basten JA wrote: "Section 60 of the Succession Act spells out the matters which the court may have regard to in determining whether the claimant 'is an eligible person' and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the 'nature of any such order', which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b)." 1. The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed are, necessarily, of decisive significance, and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender. The sub-section makes clear, since other matters may be taken into account, that the jurisdiction is not exclusively needs-based. Ultimately, it is for the Court to determine what weight should be given to relevant factors. 2. Furthermore, the section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. 3. A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1). 4. Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently. 5. The Court should, and does, give considerable weight to the deceased's wishes in recognition of the better position in which he was placed. Of course, this is subject to the qualification that the Court's determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will: Slack v Rogan; Palffy v Rogan at [127] (White J). 6. In Vigolo v Bostin, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained: "It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification." 1. In Goodsell v Wellington [2011] NSWSC 1232, at [108], I also noted that: "Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated." 1. As was written by White JA (McColl and Payne JJA agreeing) in Sgro v Thompson at [86]: "I adhere to the view I expressed in Slack v Rogan; Palffy v Rogan. To recognise that the court is not in as good a position as a capable testator to assess what maintenance or advancement in life is proper for an applicant having regard to all of a family's circumstances, including the relationships between the applicant and the deceased, and the merits and claims of other family members, is not to put a gloss on the statute. Rather, it is to acknowledge the superior position of the testator. The most important word in s 59(1)(c) is 'proper'. Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. 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 testator or testatrix who has given due consideration to the claims on his or her estate." 1. This passage confirmed that the Act is to be applied according to its terms and is not confined by notions of reluctance to interfere with freedom of testation. As was stated by Brereton JA (Simpson AJA agreeing) in Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [97]: "The statutory family provision jurisdiction is not to be exercised on the footing that it must be approached with great caution because of its intrusion on testamentary freedom. Rather, the statute is to be given full operation according to its terms, notwithstanding that it encroaches on testamentary freedom." Some Additional Principles 1. Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges, and I, have repeated them in many cases under the Act. 2. The Court's discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63] (Nettle J). 3. Bryson J noted in Gorton v Parks, at 6, that it is not appropriate to endeavour to achieve "an overall fair" division of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants. 4. As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186 at [5]: "Fairness and equality are not touchstones for relief under the Succession Act." 1. In Stott v Cook (1960) 33 ALJR 447 at 453–454, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work a will according to the Court's own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged." (emphasis in original) 1. Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales, at 19, commented upon the consideration that was to be given to the deceased's wishes: "The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning. The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court." 1. Of course, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19 (Dixon CJ); Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) at 30–31; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 at [269]–[274] (Ward J). 2. In all cases under the Act, what is adequate and proper provision is necessarily fact specific. 3. The size of the estate is a consideration in determining an application for provision. However, its size does not justify the Court re-writing the deceased's will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327 at [41] (Debelle J, Nyland and Anderson JJ agreeing); Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35 at [67] (Hargrave J). 4. The role of the Court is not "to address wounded feelings or salve the pain of disappointed expectations" that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep) at 7. 5. In Foley v Ellis, at [88], Sackville AJA (Beazley and Basten JJA agreeing) noted that Singer v Berghouse: "… strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act." 1. However, none of the other beneficiaries named in the deceased's Will have to prove an entitlement to the provision made for her, or him, or justify such provision. Nor does each have to explain the decision by the deceased to make the provision that she did for each in the Will. 2. Section 65(1) of the Act requires a family provision order to specify: 1. the person or persons for whom provision is to be made; 2. the amount and nature of the provision; 3. the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided; and 4. any conditions, restrictions or limitations imposed by the Court. 1. The Court's order may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the Court thinks fit": s 65(2) of the Act. If provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest: s 65(3) of the Act. 2. Section 66 of the Act sets out the consequential and ancillary orders that may be made. 3. Unless the Court orders otherwise, any family provision order made under the Act takes effect, relevantly, as if it were a codicil to the Will: s 72(1)(a) of the Act. As was written by Brereton J (as his Honour then was) in Liprini v Liprini [2008] NSWSC 423 at [14], a family provision order is: "… a unique [one] which in effect is not really a judgment or order of the Court at all. It has effect not as a court order, but as a codicil to the Will; and is to be enforced not as a court order but as a codicil, by the remedies which a beneficiary has against a defaulting executor. Such an order does not bind the executor, who is a defendant to the Family Provision Act proceedings, as an order for payment of money or to do an act or thing, but only in an indirect manner insofar as it imposes a new obligation in the trusts of the Will, to be enforced as such." Claim by an adult child 1. I have, in many cases, referred to some general principles in relation to a claim by an adult child of the deceased. I repeat the principles that I have set out: 1. 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. 2. 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, and 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 their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation": Taylor v Farrugia [2009] NSWSC 801 at [57] (Brereton J); McGrath v Eves [2005] NSWSC 1006 at [67]–[71] (Gzell J); Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond (2015) 14 ASTLR 442; [2015] NSWCA 42 at [109]–[110] (Beazley P, McColl and Gleeson JJA agreeing). 3. 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": Taylor v Farrugia at [58] (Brereton J). 4. There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker at 576 (Dixon CJ and Williams J); Kleinig v Neal (No 2) at 545–546 (Holland J); Bondelmonte v Blanckensee [1989] WAR 305 at 309–310 (Malcolm CJ, Nicholson J agreeing); Hawkins v Prestage (1989) 1 WAR 37 at 44–45 (Nicholson J); Taylor v Farrugia at [58]. 5. 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] (Templeman J); Crossman v Riedel [2004] ACTSC 127 at [49] (Gray J). 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] (Wheeler J, albeit in dissent in the result). In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287 at [74]–[90] (Martin CJ). 6. The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 149 (Gibbs J, Mason and Aickin JJ agreeing); [1979] HCA 2. 1. A very similar statement of these principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [111], was cited with approval in Chapple v Wilcox at [21] (Basten JA); and was referred to, with no apparent disapproval (although in that appeal there was no challenge to the correctness of those principles), in Smith v Johnson at [62] (Sackville AJA). Large Estate 1. The size of the estate is a consideration in determining an application for provision. However, its size does not justify the Court in re-writing the deceased's Will in accordance with its own ideas of justice and fairness: Bowyer v Wood at [41]; Borebor v Keane at [67]. In this case, the estate is of large value. 2. In Re Buckland (dec'd) [1966] VR 404, Adam J wrote, at 414: "Throughout the hearing the vastness of the estate has tended to overshadow all other elements in the case. I can appreciate readily enough the significance of the size of the estate when the question is whether the estate is sufficient to provide what an in ample estate would be adequate provision for proper maintenance of a claimant. Where there are competing moral claims for maintenance and the estate is insufficient to satisfy all, one can understand that less than what otherwise would be proper maintenance may be considered adequate provision in a will for proper maintenance. I can understand also that where the estate is ample and competing moral claims may be disregarded, the purposes of the legislation are not served by the judge being niggardly." 1. At 415, his Honour added: "I consider the proper conclusion to be drawn from the authorities is that the court's jurisdiction, whatever the size of the estate, is limited by the claimant's need for maintenance and support; but that the maintenance and support to which he or she may for this purpose be treated as needing is that appropriate to his or her station or condition in life. ... The greater the estate the more may contingencies, even remote contingencies which may arise in the future, be provided for in the assessment of such maintenance." 1. In Anasson v Phillips (Supreme Court (NSW), Young J, 4 March 1988, unrep), Young J wrote at 20-21: "[W]ith a very large estate… there is great temptation on a court to be overgenerous with other people's money. This is especially so when the Court can see that plaintiffs have been very hardly done by at the hands of a domineering testatrix. However, the case should not be approached in this way as the application has to be determined in accordance with the legal principles. These principles include the fact that in Australia there is freedom of a person to leave her property in whatever way she wishes, to love whom she wishes, to hate whom she wishes, and it is only when there has been a failure to comply with a moral duty to those who in the community's eyes she should have made proper provision for, that anyone can legally complain about another person's will. Even then, the Court has no power to rewrite the will, but can only adjust things, in such a way as, in substitution for the testatrix, to fulfil her moral duty. If the estate is a large one the Court has a slightly different approach. The basic principles are the same, that is, the will can only be affected to the extent that it is necessary to discharge the moral duty by making adequate provision for the plaintiffs, but where there is a large estate, competition between claimant and claimant, and claimant and beneficiary under the will is much reduced or eliminated. Further, there may be a more liberal assessment of the moral duty owed, to be reflected in what is proper provision for the plaintiffs. In particular, the lifestyle that has been enjoyed by the plaintiffs because they have been associated with a wealthy testatrix, is a relevant factor." 1. In Vigolo v Bostin, at [51], it was noted that "in the case of large estates, provision can be made for the well-to-do". 2. In McCann v Ward & Burgess [2012] VSC 63, Hargrave J, at [32], wrote: "… where the size of the estate permits and there will be no serious prejudice to the rights of other beneficiaries, [the court may] order further provision beyond the immediate and likely future needs of the applicant… [providing] a 'nest egg' to guard against unforeseen events." (Footnotes omitted) 1. Yet, it must also be remembered, as McLaughlin AsJ (as his Honour then was) stated in Lumb v McMillan [2007] NSWSC 386, at [26]: "The ample size of the estate does not justify the Court in being profligate in disposing of the assets of the Deceased and in awarding to each Plaintiff an amount which is more than that to which that Plaintiff would be entitled. The Court should do no more than remedy the failure on the part of the Deceased to make adequate provision for the proper maintenance of each Plaintiff." 1. The size of the estate is but one factor, among many, which the Act requires the Court to take into account, in the evaluation suggested by s 60(2) of the Act, wherever it is relevant. 2. There is another aspect of each case that should be commented upon – the use of discount tables to establish so-called "needs". Courts have often said that a claim for a family provision order is not susceptible to precise mathematical calculations as if it were a personal injury claim: Tchadovitch v Tchadovitch (2010) 79 NSWLR 491; [2010] NSWCA 316. However, in the event of a calculation that would provide a capital sum providing an amount of income for a specified period, allowing for the depletion of capital, as well as the interest earned on the capital sum, there would need to be some evidence of the assumptions to be made about future returns on the investment of the capital sum, future rates of inflation to preserve the real value of the income stream, and the impact of taxation 3. In Tchadovitch v Tchadovitch, Campbell JA pointed out, at [53], that the principle behind making a family provision order is to provide for the maintenance, education and advancement in life of an eligible person, which is different from an award under the common law that takes into account the discount tables, because in those latter matters the court's task is to assess damages. Therefore, his Honour pointed out, the methods of calculation are not necessarily the same. 4. His Honour stated (at [54]) that claims for family provision orders concerning a claimant who is to be provided for, for the rest of his or her life, faces an additional complexity that arises from the uncertainty of how long that person will live. His Honour stated that in an estate that is large enough to satisfy all the claims upon it, the Court should take into consideration the fact that a claimant may live longer that the statistical average for their age. 5. His Honour then stated, at [55] – [57]: "Depending on the evidence and submissions made in a particular case, it can be part of the task for a judge fixing the quantum of a Family Provision Act award to make a judgment about whether, and if so to what extent, any discount table is of assistance in assessing the proper provision for the eligible person. At least until such time as a court has the benefit of argument that seeks to narrow the range of discount tables that might be used for that purpose, there is no reason of principle why the 3% tables should be treated as the bottom of the range of discount tables that are considered. In Todorovic , in the different economic conditions that then prevailed, Stephen J and Murphy J were of the view that a nil discount should be applied in calculations of common law damages, and Mason J would have preferred to use the 2% tables, but agreed with use of the 3% tables for the sake of comity. Likewise it is part of the judge's task to decide (if asked) whether, and if so to what extent, any actuarial calculations that are tailored to the individual circumstances of that claimant are helpful. In my view, there is no principle requiring that the 3% discount table always be used. There is a world of difference between it perhaps sometimes being appropriate to calculate a lump sum for the purposes of the Family Provision Act by using the 3% discount tables, and it always being required as a matter of principle. Just as the nature and quantum of the provision that is made for an applicant under the Family Provision Act involves an exercise of judicial discretion, that is exercised in the light of the facts of the particular case and the evidence and submissions in the particular case, so the choice of the appropriate methodology to use in arriving at the quantum is a matter of judicial discretion, that is likewise exercised in the light of the facts of the particular case and the evidence and submissions in the particular case. In my view the Appellant's submission that adoption of the 3% discount tables as a common approach 'will not affect or diminish the exercise of a judge's discretion when determining what provision is, in any case, adequate for the proper maintenance of an applicant' is wrong. In the present case it was within the scope of the discretion open to him for the judge to have regard (as he did) to the 3% tables, as one factor taken into account, but also within the scope of his discretion to award a sum different to that obtained from the use of the 3% tables. There is another reason, more closely tied to the circumstances of the present case, why the judge made no error in failing to award the sum obtained from the 3% discount tables. The expert evidence in the present case proceeded on a different basis to that which Todorovic had decided was appropriate for the purpose of assessing lump sums in personal injuries litigation. In the present case, the experts had made assumptions about what the rate of increase of wages and prices would be (matters said by two judges in Todorovic (at 420) to be 'unverifiable surmise and inadmissible'), and had made calculations of the effect of income tax that were specific to the position of the respondent. Those calculations were admitted without objection. In those circumstances, fundamental reasons why the majority in Todorovic had favoured the use of the 3% tables were absent." 1. For this reason, the calculations that have been provided are only treated as illustrations for the Court and do not justify, in themselves, the figures which each applicant claims: also see, Bindoff v The Trust Company (Australia) Ltd; Estate of the late Everitt Joseph Griffiths [2016] NSWSC 1100 at [211] (Slattery J). Estrangement 1. Acrimony or estrangement between an applicant and the deceased is a consideration that has been at the forefront of the Defendant's case in opposition to the claim by the Plaintiff. 2. In Jodell v Woods [2017] NSWSC 143, at [108]-[111], I set out the relevant principles relating to estrangement: "(a) The word 'estrangement' does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties to the relationship. Whether the claim of the applicant on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case: Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Deceased) v Lathwell [2008] WASCA 256, at [33]. (b) The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361, at [88] - [94]; Foley v Ellis. In Palmer v Dolman, Ipp JA, after a review of the cases, observed, at [110], that: '... the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act.' (c) There is no rule that, irrespective of a Plaintiff's need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to 'ample' provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases. (d) The Court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one 'who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility': Ford v Simes [2009] NSWCA 351, at [71], per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed. (e) As was recognized by the New South Wales Court of Appeal in Hunter v Hunter, at 574 - 575, per Kirby P (with whom Hope and Priestley JJA agreed): 'If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator's will.' (f) Even if an applicant bears no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the Court's discretion under s 59(2) of the Act to make a family provision order where the jurisdictional requirements of s 59(1) are met. That the applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them the love, companionship and support present in normal parent/child relationships, during those years, is a relevant consideration: Keep v Bourke [2012] NSWCA 64, per Macfarlan JA, at [3]. (g) The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, may operate to restrain amplitude in the provision to be made: Keep v Bourke, per Barrett JA, at [50]. (h) Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. In addition, s 60(2)(m) permits the Court to consider the character and conduct of the applicant at the second stage of the process. Care should be taken 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 raw emotions experienced at the time: Foley v Ellis, at [102]. In Andrew v Andrew, Basten JA at [40] endorsed what I had said about estrangement, much of which is set out above, as follows: 'As explained by the primary judge, the term 'estrangement', which was aptly applied, does not describe conduct, but the condition which results from the attitudes or conduct of one or both parties: at [74](a). It is a term sometimes applied to the 'natural' process of separation of child from parent, which often peaks in adolescence, but may well continue into adult life, sometimes without resolution of the underlying tension. At least when kept within reasonable bounds, the negative consequences of such a process should arguably be ignored or at least not given disproportionate significance when assessing the expectation that a parent will provide for a child whose condition in life is financially disadvantageous, when compared with other claimants on the testator's conscience.' His Honour added at [49]: 'The cases referred to above support the proposition that in the case of estrangement between an applicant and a testator, attention may need to be paid, so far as the evidence permits, to the apparent causes of the estrangement. Thus, if the immediate cause is overt hostility on one side, it may be necessary to apportion blame (or at least responsibility) for that situation. … Without rejecting the analysis as inappropriate, there are at least limits on how far a court should go in seeking justification for the absence of 'love and support' from a child for his or her parent. It goes without saying that some children feel greater love and affection for their parents than do others and that some children provide higher levels of support for their parents in their aging than do others. These are all considerations relevant to an assessment of the adequacy of the provision made by the testator for the proper maintenance, education and advancement of a child. However, whether in a particular case it would warrant the exclusion, or virtual exclusion, of the child from benefit under the mother's will, is another question. The appellant did not seek, in her evidence, to blame her mother for the breakdown in their relationship. Although the causes thus remained obscure, reticence, which may limit damage to her relationships with her siblings, is not to be discouraged. Although estrangement was no doubt painful to the mother, such conduct was surely less reprehensible than open hostility. … Although the mother's reaction was entirely understandable and might have been shared by many parents, I am not persuaded that it justified the reduction of the daughter's share in the estate from that which might otherwise have been expected to a largely nominal sum. In these circumstances, the appeal should be allowed, and provision made for the appellant.' 1. In Andrew v Andrew, Allsop P said, at [18]-[19]: "recognising a species of legal right (the entitlement) of the testator to make no provision if love and support are withheld 'unjustifiably' over a period of many years… is to concentrate or distil a complex life-long relationship into encapsulated rights of testamentary power and the need of the claimant to justify her conduct. To the extent that it is derived from Pontifical Society v Scales it is the impermissible formation of principle or rule from a particular factual assessment of circumstances by reference to human and societal values. That is not to say that in conducting the assessments in s 59(1) and s 59(2) estrangement, the reasons therefor [sic], an absence of love, hostility, resentment, and carelessness of the hopes and wishes of another are not all apposite matters for consideration. That enquiry should not, however, be structured or approached by reference to justification in order to displace a testamentary 'entitlement' or right in respect of an adult child." 1. More often than not in cases in which a family provision order is sought by an adult child, it is a fruitless exercise, and it will often be impossible, to ascertain the exact cause, or fault, for the estrangement between child and parent. As Young J explained in Walker v Walker, there is little purpose in analysing whose fault the estrangement is: "In family relationships, hurts are inflicted or suffered sometimes consciously, sometimes unconsciously. Sometimes a young child is brainwashed by a custodial parent to consider that the other parent has inflicted some harm which is all in the mind of the custodial parent. It is often impossible to work out whether the degree of separation between parent and child at the date of the parent's death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between. The important matter is not fault, but, whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the plaintiff." Qualifications on "Principles" 1. As long ago as 1980, in White v Barron, at 440, Stephen J wrote: "[T]his jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application." 1. As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian), I do not intend what I have described as "principles" or "general principles" to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant. 2. It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. As Lindsay J wrote in Verzar v Verzar, at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]." 1. The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox, by Basten JA at [18]-[20], and by Barrett JA at [66]-[67]; in Burke v Burke (No 2) [2015] NSWCA 195 at [84]-[85]; in Yee v Yee [2017] NSWCA 305 at [172]; and very recently, by White JA, in Steinmetz v Shannon at [37]. They must be remembered. Determination 1. What is written below should be read as a continuation of what has been written above. In addition, I have had regard to all of the factual, and other, matters, so far as they are relevant, to my conclusions set out below. Merely because specific reference has not been made to facts previously identified, should not lead to the conclusion that they have not been fully considered. 2. Having established eligibility, and that the proceedings were commenced within time, relevantly, the Court must determine whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life, of Joseph, and of Catherine, respectively, has not been made by the Will of the deceased. 3. Judged by quantum, and looked at through the prism of his, and her, own financial resources and needs, adequate provision for the proper maintenance or advancement in life could be seen as not having been made by the Will of the deceased for each of Joseph and of Catherine. As stated above, the test established by s 59 of the Act has regard not only to what is "adequate" by reference to the applicant's needs, but also to what is "proper" in all the circumstances of the case. 4. When the Court approaches the question for which s 59(2) of the Act provides, it should place itself in the position of the deceased and consider what she ought to have done in all the circumstances of the case. This consideration occurs in light of the facts known at the time when the Court is considering the application. The Court treats the deceased as a wise and just, rather than as a fond and foolish testatrix: Bosch v Perpetual Trustee Co Ltd at 478–479 (Lord Romer for the Board); Pontifical Society for the Propagation of the Faith v Scales at 19–20 (Dixon CJ). 5. The Court should also make allowance for current social conditions and standards: Andrew v Andrew at [34] (Basten JA) and, where it is considered relevant to do so, have regard to the matters set out in s 60(2) of the Act to determine whether to make a family provision order and the nature of any such order. 6. Whilst I have borne in mind that the relationship with the deceased of each of Joseph and of Catherine was not as close as the deceased's relationship with Steven and John (during his life), and with their children, and that there may have been reasons for the deceased's disappointment in the irregularity of contact with Catherine, and with what had occurred with Joseph which resulted in them not seeing each other for over 27 years, I also remember that Catherine, in particular, did maintain contact with the deceased and Joseph did return to see the deceased before her death. I also consider the relationship of the deceased with each of them, prior to, in the case of Joseph, 1985, and in the case of Catherine, prior to 2007. 7. As I must, I also have regard to, and respect, the deliberate scheme of testamentary dispositions made by the deceased as a capable testatrix. As stated above, the deceased's decisions reflected in her Will should not merely have a prima facie effect, the real dispositive power being vested in the Court. However, not unnaturally, they are based on the perspective of the deceased. 8. Having read, and heard, the evidence, I am satisfied that the deceased's feelings of disappointment, should not be decisive in the conclusions that I reach. Some of what the deceased wrote is understandable from the deceased's perspective, but not entirely justifiable when one considers Catherine's personal circumstances to which I have referred and only partly justifiable in the case of Joseph. The deceased's disappointment should not be decisive in the conclusions that I reach regarding the entitlement of each to, and the quantum of, the provision that "ought" to be made. 9. A wise and just parent will recognise that disharmony between parent and child is almost inevitable and that in family relationships, hurts are inflicted, or suffered, sometimes consciously, and sometimes unconsciously. Regrettably, this is a part of family life. The deceased's Will fails to acknowledge the decades of a subsisting, although in the case of Catherine in particular, a difficult relationship. 10. The evidence also shows, in relation to each of Joseph and Catherine, that each has fallen on hard times. Each suffers from a number of disabling medical conditions, at least some of which will require the payment of medical expense, in whole or in part. Neither has a real earning capacity. Neither has been able to accumulate substantial superannuation, or make real provision for his, and her, retirement, respectively. Each has a need for a buffer against contingencies. 11. Furthermore, in this case, the value of the estate is large and is sufficient to make provision for all of the persons to whom the deceased owed some form of testamentary obligation. 12. I have come to the view that each of Joseph and Catherine has established that the deceased's Will does not make adequate provision for his, and her, proper maintenance, education, or advancement in life. The test established by s 59 of the Act has regard not only to what is "adequate" by reference to the applicant's needs, but also to what is "proper" in all the circumstances of the case. (As well, considering some of Catherine's submissions, a family provision order is not a means of obtaining compensation or assigning blame.) 13. It is not to be forgotten that each is one of only three surviving children of the deceased and, as is clear from the evidence, each shared, at times, with the deceased, a close mother-child relationship. A wise and just parent would recognise a claim in her children to maintenance or advancement in life. 14. Of course, one should not forget the competing claim of the beneficiaries. Making some provision for each of Joseph and Catherine will not, unduly, affect the financial resources, and needs, of each of them. Each of the other beneficiaries will still receive substantial provision. 15. In my view, this is also a case where the general community, by which I mean the Court's perception of what fair and reasonable members of the community would expect of a wise and just testator, knowing all the circumstances, would expect the deceased to have made provision more than she did for each of Joseph and of Catherine. That conclusion does not alter when the financial resources and needs of each are taken into account. 16. Taking into account all of the matters that I am required to consider, I am satisfied that each of Joseph and Catherine has established that adequate provision for his, and her, maintenance and advancement in life has not been made by the Will of the deceased. 17. As each has established the jurisdictional threshold, the next question is what provision ought to be made for each out of the estate of the deceased. In this regard, the role of the Court is to make "adequate" provision in all the circumstances for the "proper" maintenance, education and advancement in life of an applicant. 18. I also have considered the matters contained in s 60(2) of the Act which may be considered for the purpose of determining whether to make a family provision order and the nature of any such order. 19. This is a more difficult question, in each case, and it involves "an instinctive synthesis that takes into account all the relevant factors and gives them due weight": Grey v Harrison [1997] 2 VR 359 at 367 (Callaway JA, with whom Tadgell and Charles JJA agreed). It is not a scientific, or arithmetic, exercise and it is often difficult to articulate the factors which contribute to that "instinctive synthesis". However, as earlier stated, similar considerations as are set out above often arise. 20. Despite what is written above, and even having regard to the size of the available distributable estate, the Court ought not make an order in the amount sought by each of them. To provide such a lump sum, in each case, would exceed what, in my view, is "proper", in all the circumstances. To do so would also fail to afford enough weight to intentions of the deceased, as expressed in the contents of her Will as well as the competing claims of the beneficiaries. It would also fail to take into account that there is no legal obligation on a parent to maintain an adult child, particularly one who was fully emancipated and financially independent of the deceased for so many years before her death. 21. In determining the nature and quantum of any family provision order, the Court must have regard to, amongst other things, the degree to which the deceased had a duty toward each applicant. Furthermore, the conduct, particularly, of Joseph, and to a lesser extent, Catherine, does require some restraint in the amplitude of the provision that the Court ought to make. The competing needs of Steven and the grandchildren of the deceased, also inhibits the practicality of satisfying all of the so-called needs of each of Joseph and Catherine. 22. My evaluative judgment should be, and has been, "guided and assisted by considering what provision, in accordance with perceived prevailing community standards of what is right and appropriate, ought be made"; and is to be undertaken assuming full knowledge and appreciation of all the relevant circumstances of the case: Andrew v Andrew at [16] (Allsop P). 23. I am of the view that it would be an unusual case in which a deceased parent has a duty or an obligation to provide such things as the cost of home cleaning, private health insurance, funeral expenses, and flights to visit family members, for the remainder of the applicant's life, or for that matter, the costs of an unencumbered home. One would not, necessarily, expect such provision during the lifetime of a parent. The community would not expect such provision on the parent's death out of her, or his, estate, particularly when one considers the facts of each case. 24. I have not forgotten the contribution, both financial and non-financial, in the case of Steven, and the non-financial contribution by each of John's children, to the deceased's estate and the legitimate claim of each, as a chosen object, upon the deceased's bounty. I have also not forgotten the need to give due regard to "what the testator regarded as superior claims or preferable dispositions" as identified in Pontifical Society for the Propagation of the Faith v Scales at 19 (Dixon CJ). 25. In my view, whilst the duty toward him is restrained on account of the lengthy period of non-contact, Joseph should receive a lump sum of $475,000 out of the estate of the deceased. Such a lump sum will provide for his maintenance or advancement in life. The lump sum, if he chooses to, can be put, in whole or in part, towards the costs of alternative accommodation, or what is more probable, in my view, be used, in part, to complete some renovations to the shed in which he lives to make it more comfortable, with the balance being used as a capital sum to provide for the exigencies of life. 26. In my view, Catherine should receive, in lieu of the provision made for her in the Will of the deceased, a lump sum of $825,000, out of the estate of the deceased. This amount will enable her to satisfy her share of all of the immediate debts that she and Phillip have; it will provide a lump sum which could be used, with the net proceeds of sale of their present home, for her share of the purchase of alternative accommodation that suits her needs; and will leave a reasonable capital sum for exigencies of life. 27. The total amount of the two lump sum totals $1,300,000. As the provision made for each Plaintiff should be provided for out of the residuary estate, Steven will bear half of the amount ($650,000) and the grandchildren of the deceased, will bear the burden of the other half ($650,000) equally between them. Using the estimated net distributable value of the estate, that will still leave, close to $6,000,000 in the residuary estate for distribution in accordance with the deceased's Will. 28. In accordance with s 65(3) of the Act, since provision is to be made by payment of two amounts of money, the orders should specify whether interest is payable on the whole or any part of the amounts payable for the period, and, if so, the period during which interest is payable and the rate of the interest. 29. In my view, bearing in mind the amount involved and the nature of the deceased's estate, a period of 3 months should be allowed to enable the lump sum, in each case, to be paid. If it is not paid within 3 months after the date of the publication of these reasons, interest should be paid on any unpaid part of the lump sum, respectively, calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW), from the 29th day from the date of the making of these orders until the date of payment in full. 30. I am unable to determine the issue of costs. I shall make directions upon the delivery of these reasons for the parties to provide short minutes of order, and for the further conduct of the proceedings. ************* Amendments 19 May 2021 - Coversheet amended. 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: 19 May 2021