Supreme Court New South Wales Medium Neutral Citation: In the Estate of Margaret, deceased [2012] NSWSC 1490 Hearing dates: 16 August 2012 Decision date: 06 December 2012 Jurisdiction: Equity Division - Probate List Before: White J Decision: Refer to paras [59]-[62] of judgment. Catchwords: WILLS, PROBATE AND ADMINISTRATION - deceased made handwritten alterations to copy of will - whether deceased intended alterations to form her will FAMILY PROVISION - application for further provision by daughter of deceased - competing claims of grandchildren - COSTS - usual rule not applied in circumstances - no order as to costs of unsuccessful applicant Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Succession Act 2006 (NSW) Cases Cited: Hatsatouris v Hatsatouris [2001] NSWCA 408 Bell v Crewes [2011] NSWSC 1159; (2011) 5 ASTLR 298 Fry v Lukas [2011] NSWSC 1329 Singer v Berghouse (No. 2) (1994) 181 CLR 201 Hastings v Hastings [2010] NSWCA 197 Carey v Robson (No. 2) [2009] NSWSC 1199 Singer v Berghouse (1993) 114 ALR 521 Category: Principal judgment Parties: [Parties' names anonymised] Catherine (Plaintiff in 2011/78629 and Defendant in 2011/341980) Mathew (2nd Plaintiff in 2011/78629 and 2nd Defendant in 2011/341980) Louise (1st Defendant in 2011/78629 and Plaintiff in 2011/341980) Alistair (2nd Defendant) Chris (3rd Defendant) Duane (4th Defendant) Clara (5th Defendant) Representation: Counsel: V R Gray (Executors) L Ellison SC with P Wallis (Louise) Solicitors: McCoy Grove & Atkinson (Executors) Garland Hawthorn Brahe (Louise) File Number(s): 2011/78629; 2011/341980 Judgment 1HIS HONOUR: These proceedings concern a deceased estate. The first issue is whether the deceased intended handwritten alterations and notations made to a copy of her will to form her will or an alteration to it, so that the document with the handwritten changes should be admitted to probate. If not, the second question is whether a family provision order should be made in favour of one of the deceased's children. 2The deceased had four children. The proceedings concern her gift to one of her daughters. The deceased left a quarter of her estate to each of three of her children, but left the remaining quarter not to her other child, the daughter, but between her daughter and her daughter's children equally. 3A complicating factor in publishing these reasons is that the deceased made the provision she did because of that daughter's failure as a parent. That failure resulted in care proceedings being instituted in the Children's Court. Parental responsibility for the daughter's children was allocated to the Minister. Those children are aged between 18 and 24. Section 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) precludes the publication of the names of those children. Accordingly, it is necessary to anonymise the names of the parties. This may make it difficult for family members to follow these reasons, but that cannot be helped. 4For the purposes of these proceedings, the deceased will be called Margaret. Margaret's four children will be called Catherine, born in 1953; Roslyn, born in 1957; Mathew, born in 1964; and Louise, born in 1969. The moving party is Louise. She has four children. They will be called Alistair, aged 24; Duane, aged 22; Chris, aged 20; and Clara aged 18. These are not their real names. 5The deceased died on 27 October 2010, aged 78. She left a will dated 19 November 1998 by which she appointed her son Mathew and her daughter Catherine as her executors. In proceedings 2011/78629 ("the probate proceedings") the executors seek a grant of probate of that will, or alternatively a grant of probate of that will as altered in accordance with handwritten markings on a copy of the will found amongst the papers of the deceased. The substantial question is whether the handwritten alterations to the will were intended by the deceased to form her will, or an alteration to her will, and should be admitted to probate pursuant to s 8 of the Succession Act 2006 (NSW). 6By her will of 19 November 1998 the deceased left her property to her husband, but on his predeceasing her she gave her estate to her executors to be held on the following trusts: "1 I GIVE the whole of my estate to my executors ON TRUST- 1.1 as to 75% of my estate equally for such of my children [MATHEW], [CATHERINE] and [ROSLYN] who survive me; 1.2 as to the remaining 25% of my estate equally for such of my daughter [LOUISE] and her children [ALISTAIR], [DUANE], [CHRIS] and [CLARA] as survive me and attain the age of 21 years; 2 If any beneficiary under this will dies before obtaining a vested interest in my estate, but he or she leaves one or more children, then that interest in my estate is divided equally among such of that beneficiary's children who survive me and who attain the age of 21 years." 7The alleged alteration to the will is contained on a document which is a photocopy of the will dated 19 November 1998 prior to its having been executed. Someone, I presume the deceased, inserted the date of 19 November 1998 on that copy document. On the copy document clause 1.2 has been roughly crossed out. Against clause 1.1 next to the semicolon that concludes that clause there is printed in handwriting the word "LOUISE" (not the actual name). The first defendant to the probate proceedings, Louise, contends that it should be declared that the document with the handwritten alteration was intended by the deceased to be an alteration to her will and that she is entitled to a 25 per cent share of the estate, rather than to the five per cent share of the estate to which she is entitled under the will of 19 November 1998. 8In proceedings 2011/341980, Louise seeks a family provision order under Chapter 3 of the Succession Act. This claim is brought as an alternative to her contention that she is entitled to a 25 per cent share of the deceased's estate under the will as allegedly altered. Senior counsel for Louise submitted in the course of final submissions that an appropriate family provision order would be that she be entitled to 15 to 20 per cent of the estate. The Estate 9The executors estimated that the estate had a gross value of $809,609.53 and a net value of $804,609.53. The principal asset was a house owned by the deceased in Sunnyside Street, Gladesville. 10The reason that, in her will of 19 November 1998, the deceased did not leave a quarter share of her estate to Louise was because of Louise's failure as a parent. The deceased kept amongst her papers summaries of Louise's criminal history and of papers prepared for the purposes of proceedings in the Children's Court in 2002 concerning Louise's children. Louise's criminal history included convictions for theft, larceny, driving offences, possession of prohibited drugs, making and using a false instrument, possession and disposition of stolen goods, and custody of a knife in a public place. These convictions were recorded between 1985 and 2002. 11It appears that parental responsibility for each of Louise's children was allocated to the Minister for Community Services. Reports of child welfare officers found with the deceased's papers from 2002 recorded that at that time Alistair was residing with his maternal aunt, Roslyn; Duane was residing with his maternal aunt, Catherine; and Chris and Clara were in short-term crisis accommodation, or with a Departmental foster carer. According to the report, the reasons the children were placed in care were that Louise had a history of drug and alcohol abuse, the children had been exposed to their parents' drug and alcohol abuse, there had been inappropriate supervision of the children, the children had been abandoned, they had been exposed to domestic violence, they were exposed to inappropriate living conditions, there was a history of school absenteeism as a result of ongoing neglect, and Louise's then partner had physically abused the children. The report stated that Louise and her partner, the father of Duane, Chris and Clara (but not Alistair) had dealt and used drugs in the presence of the children. She and her next partner were said to have had a history of using illegal substances, including heroin and marijuana. 12For periods of about one to two years, and then subsequently another three to four years, different members of Louise's family had the care of her children. Alistair was placed with Roslyn. Catherine and her husband had the care of Clara for about 18 months when Clara was about one or two years old until she was three. Catherine also had the care of Duane. When Clara was about three and a half, Louise and her then partner took the children back to live with them. Louise left her partner and her children then went to live with the deceased and her husband. The deceased provided care for the children when Louise was unable to care for them and this extended to stays of six months or more. For a period of about five years, Clara and Chris were placed in foster homes and their main family contact was through their grandmother. Clara had no contact with her own mother for a period of about four to five years. 13Louise deposed that she ended her relationship with her partner in 2002 when he was sent to jail for drug-related offences. Shortly after this she moved to Queensland to start a new life. In 2004 she commenced a relationship with her current partner. Louise says that she has changed her lifestyle. She says that since 2000, she has not touched any serious illicit drug. She admits that since arriving in Queensland, she has been charged with what she describes as two minor public nuisance matters in or around 2008 and one charge of possessing a small quantity of marijuana in or about 2010 for which, she says, no conviction was recorded. 14The deceased said to Catherine a number of times words to the effect: "I want [Louise's] children to have something themselves from my estate: I am concerned that a gift to [Louise] would be spent on drugs and that her children would be left with nothing." 15When Clara was a young child, I infer still at primary school, and she and her brothers were living with their grandparents, the deceased said to the children one night that she was sorry for the childhood they had had and that if anything ever happened to her they would be financially secure. She said that because their mother took drugs all the time she wanted them to know that when she was gone they would be looked after. 16The deceased told Clara (her grandchild) in mid to late 2009 that: "I'm going to make you financially secure in my will. Your mother has not given you any security while you were children and will not do so - I want you to have a better life than you have had as children." 17This history explains the reasons the deceased made the provision for Louise and her children that she did in her 1998 will. Discussions by the deceased about her will 18Louise swore an affidavit in which she deposed that the only time she recalled speaking with the deceased about her will was in about 2005 or 2006. At that time Duane, Chris and Clara were residing with Louise in Queensland. Alistair was living in the granny flat attached to the deceased's house. Louise deposed that the deceased complained constantly to her about Alistair's drug use. Louise was aware that the deceased had made a will in which a one-quarter share of the estate was split between her and her four children. She deposed that in about 2005 or 2006 she raised with her mother whether or not that was still appropriate and said that she might want to reconsider providing Louise with the same share as her siblings, thus leaving it up to Louise to benefit her children upon her death. According to Louise's affidavit, the deceased indicated to her that she would like to talk to her close friend and neighbour, (whom I will call Pauline) and then would decide what to do. 19In her oral evidence, Louise went much further. She said that her mother told her she wanted her to have a one-quarter share of the estate and that it would be up to her what to give her children, or they could inherit after her death. Louise said that her mother told her that it would be a waste of time to give the estate to Louise's children as they would blow it on drugs. This is an accusation readily made by Louise against her own children and by her children and siblings against her. 20This evidence was not only missing from Louise's description of the discussion with her mother given in her affidavit, but it was inconsistent with that affidavit. According to her affidavit, the deceased told her that she would decide what to do about her will after she had talked about it with Pauline. I think this is more likely to be the truth than that her mother said that she intended to give Louise a quarter share of the estate like her siblings had. I do not accept the oral evidence that Louise gave in cross-examination about her mother's stated intentions. 21Mathew said that on many occasions between 1998 and 2007, the deceased told him that she did not want to change her will, and that she repeated this in 2009. Catherine said that in June 2010, her mother told her that Pauline was nagging her to change her will, but she had no intention of changing it. 22Pauline had known Margaret since they were children, when Margaret would regularly come to visit her grandmother in Sunnyside Street, Gladesville. Pauline lived next door to Margaret's grandmother. Margaret and her brother ultimately inherited that property from their grandmother. Pauline was a close friend and confidante of Margaret and held her power of attorney. She observed that none of Margaret's children provided Margaret with any real assistance on a day-to-day basis during the last years of her life and was of the view that Margaret had a strained relationship with her children. 23Margaret was admitted to Royal North Shore Hospital on 19 September 2010. She never returned home. She was discharged from Neringah Hospital and later to a nursing home, Ashburn House at Gladesville. She was readmitted to Royal North Shore Hospital on 26 October 2010 and died the following day. When the deceased was admitted to hospital in September 2010, she directed Pauline to change the locks and cut off the phone to her house. At that time, Chris, Duane (and his girlfriend) and Alistair (and his girlfriend and two children) were living in Margaret's house. Margaret told Pauline that "I've had them. I don't want anything to do with them" (referring to those grandchildren). 24After Margaret was admitted to Royal North Shore Hospital, Pauline sorted out Margaret's paperwork. On 15 October 2010 Pauline discovered the original of the 1998 will. At that time Margaret was in Neringah Hospital. By this time Margaret had told Pauline that she was delighted that Louise had come down from Queensland to see her and stay with her. She asked Margaret whether she wanted to change her will. Pauline gave Margaret the original 1998 will and Margaret looked at both pages. Margaret said words to the effect "No, leave it as it is, I don't want the hassle." Margaret did not say that she had already changed the will. 25On 23 or 24 October 2010, Pauline found the copy of the 1998 will (unsigned) on which there was the handwriting referred to at [7] above. Pauline said that she recognised the handwriting as that of Margaret. It was put to Louise in cross-examination that it was she who had written on the document. Louise denied this and I accept that denial. 26Pauline deposed that she said to Margaret words to the effect: "'You've got this Will' and 'You have an alteration' and 'It would be best if you have it rewritten' and 'We can get a solicitor to do it quickly for you.' She replied with words to the effect - 'Leave it. It will be alright. I don't want to go through the hassle.'" 27Pauline also said that there were one or two occasions when she spoke briefly to Margaret about re-executing her will and on each occasion the deceased "would simply reaffirm her wishes, but she did not want to have another will prepared and signed". Pauline recalled one occasion when Margaret spoke about not wishing the grandchildren to be included. Pauline said that Margaret kept reiterating that she did not want Louise's children mentioned in the will any longer. However, Margaret declined to take any step to have a new will prepared by a solicitor or to do anything more to formalise the handwritten changes. Pauline said, and I accept, that Margaret could not be bothered going through the process. At this time Margaret was terminally ill with lung cancer. She had only a few days to live. Section 8 of the Succession Act 2006 28Section 8 relevantly provides: "8 When may the Court dispense with the requirements for execution, alteration or revocation of wills? (cf WPA 18A) (1) This section applies to a document, or part of a document, that: (a) purports to state the testamentary intentions of a deceased person, and (b) has not been executed in accordance with this Part. (2) The document, or part of the document, forms: (a) the deceased person's will-if the Court is satisfied that the person intended it to form his or her will, or (b) an alteration to the deceased person's will-if the Court is satisfied that the person intended it to form an alteration to his or her will, or (c) a full or partial revocation of the deceased person's will-if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will. (3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to: (a) any evidence relating to the manner in which the document or part was executed, and (b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person. (4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2). ..." 29For a document to be declared to be a testamentary instrument pursuant to s 8 it is not sufficient that it state the deceased's testamentary intentions. The deceased must also have intended the document to form his or her will or an alteration to his or her will. That means that for the document containing handwritten alterations to be admitted to probate the deceased must have intended that it operate as her will, that is, that without more it govern the disposition of her property after her death. 30It is not necessary for the deceased to have formed the requisite intention when she made the document. It would be sufficient if at some point before her death she intended that the handwritten alterations form an alteration to her 1998 will (Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56]; Bell v Crewes [2011] NSWSC 1159; (2011) 5 ASTLR 298 at [25], [28]; Fry v Lukas [2011] NSWSC 1329 at [17]). 31The physical form of the document is an important consideration in drawing inferences about the deceased's intention. The first matter of importance is that the handwritten alterations were not made to her original will. The original document remains unaltered. Instead the deceased used an unsigned draft of the will, on which she had inserted the date of 19 November 1998. The second important feature is that clause 1.2 was roughly scribbled out. The third is that whereas clause 1.1 and clause 1.2 had included the full names of each of the deceased's children, the deceased only wrote against clause 1.1 the word "Louise". The fourth significant feature is that the deceased did not change clause 1.1 to delete the reference to 75 per cent so as to provide for the whole of her estate to be divided equally between her children. If the alterations were admitted to probate the will would dispose of only 75 per cent of the deceased's estate. The remaining 25 per cent would pass to her children on intestacy. Although this would make no practical difference, it is unlikely that the deceased would intend that her will deal with only 75 per cent of her estate. The next significant feature is that the deceased did not attempt to give any formal effect to the handwritten changes by signing or initialling them. 32The inference from the document itself is that the handwriting indicates changes the deceased was contemplating she might make to her will, but she did not intend the handwriting to be dispositive. That is to say, the inference drawn from the document itself is that the deceased did not intend the handwritten changes to operate as her will. 33The only discussion about the document was by the deceased with Pauline. It is clear that the handwriting was placed on the document before the deceased was admitted to hospital in September 2009. It is significant that when Pauline had found the 1998 will and taken it into the deceased and suggested that it be changed, the deceased did not say that she had already changed it. If she believed that the handwriting had already changed the will, one would expect the deceased to have said that she had already changed the will. 34The deceased's response when she was asked about the document with the handwritten changes is equivocal. Counsel for Louise submitted that by responding to Pauline's suggestion that a solicitor be brought to rewrite the will by saying "Leave it. It will be alright. I don't want to go through the hassle", the deceased was adopting the changes and was expressing her intention that they operate as an alteration to her will. This, it was said, is what the deceased meant when she said "Leave it. It will be alright." 35In my view that is not the effect of the evidence. The deceased was saying that she did not want to be troubled by having to re-do her will. She was dying. She did not want the hassle. I can draw no inference from that as to whether the deceased believed or intended that the handwritten changes would be effective as an alteration to her will. Nor did the deceased's statement to Pauline that she did not want her grandchildren mentioned in the will any longer mean that she intended the handwritten alterations to operate as an alteration to her will. That was a statement of her testamentary intention, but not a statement as to her intention about the effect to be given to the handwritten document. 36For these reasons, only the 1998 will should be admitted to probate. I will refuse a declaration that the deceased intended the handwritten alterations made to the unsigned copy of the 1998 will to operate as an alteration to her will. Application for family provision orders 37Section 59 of the Succession Act relevantly provides: "59 When family provision order may be made (cf FPA 7-9) (1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and ... (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. (2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made. Note: Property that may be the subject of a family provision order is set out in Division 3. This Part applies to property, including property that is designated as notional estate (see section 73). Part 3.3 sets out property that may be designated as part of the notional estate of a deceased person for the purpose of making a family provision order." 38Section 60 provides: "60 Matters to be considered by Court (cf FPA 7-9) (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." 39The question under s 59(1)(c) is whether I am satisfied that adequate provision for Louise's proper maintenance and advancement in life has not been made by the will. That calls for: "... an assessment of whether the provision ... made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to 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 (No. 2) (1994) 181 CLR 201 at 209-210.) 40The court is called on to make an evaluative judgment according to very general standards on which minds can legitimately differ. As Basten JA said in Hastings v Hastings [2010] NSWCA 197 at [20]: "... because the standard cannot be identified with precision, the application of an appropriate standard to particular circumstances may ... give rise to a range of legitimate outcomes." 41As I have said, the estate was estimated for probate purposes to have a net value of little over $800,000. The latest estimate by the executors is that after allowing for expenses of realisation of assets, payment of funeral and testamentary expenses, legal costs of obtaining probate and administering the estate, the executor's costs of these proceedings, and a claim for commission, the net amount available for distribution will be in the order of $650,000. I think this is something of an underestimate. The estimated amount of commission ($32,000) seems excessive. The estimate of legal costs and executor's advances for legal expenses ($95,000) is excessive for the preparation and conduct of a case that was heard within one day. If the estimate is right, then Louise would be entitled under the will to receive a distribution in the order of $32,500. This might be increased if the estimate of commission and legal expenses is excessive. On the other hand, it would be reduced if Louise is entitled to recover her costs out of the estate. Her costs would be borne by all residuary beneficiaries. Her costs are estimated to be in the order of $56,000, which is also excessive. If the estate is diminished by the amount of costs estimated on both sides the amount for distribution would be in the order of $600,000 and Louise's five per cent share would be worth approximately $30,000. 42Counsel for Louise submits that this is manifestly less than what is adequate for her proper maintenance and advancement in life. Louise has significant financial needs. She lives with her current partner in rented accommodation. Louise's partner is a carpenter by trade, but has not been able to secure employment since 2007 or 2008. Louise says that this was due to his suffering injuries to his left arm as a result of being stabbed by Duane. Louise has been unemployed since early 2011. She formerly worked on a casual basis in the hospitality industry. She is currently 43 years old. She receives a disability support pension through Centrelink. This provides income of $800 per fortnight. Her partner receives a family allowance and parenting payment. He has custody of his three children. Their income from these sources roughly matches their expenditure, including rent, but without leaving any margin for saving. Louise's only assets are superannuation of $10,000 and jointly owned furniture and jewellery estimated to have a total value of about $10,000. Her partner owns a car, has superannuation of approximately $35,000 and has savings which, after allowance for credit card liabilities and a loan for a computer are a little less than $50,000. Louise deposes that she and her partner intend to use whatever entitlement she might receive from the estate (if it is enough) either to buy a house near Kingaroy or Kumbia in Queensland (near to where they presently live), or acquire a vacant block of land with a view to building a house. If she were to receive less than would be needed for this, then they would use whatever funds they receive to invest and support themselves and her partner's children in the future. 43The other persons with claims on the deceased were her other children and Louise's grandchildren. Catherine and her husband are the best placed financially. They own a house at Bundeena worth approximately $700,000 which is subject to a mortgage securing a debt of approximately $88,000. Otherwise they have few assets. They have a second-hand car. They have two superannuation policies currently worth about $200,000, which cannot be accessed at this stage. Catherine earns approximately $23,500 after tax per annum. Her husband has no income other than a pension from the Department of Veteran Affairs. Catherine thinks it may be necessary for her to provide financial assistance to Mathew and his wife to reduce a mortgage on Mathew's property which is also secured over the estate asset at Sunnyside Street, Gladesville. It is possible that the bank may require more than Mathew's share of the estate to agree to a release of the title. Catherine cared for Louise's children from time to time. 44Mathew and his wife own a property at Bullaburra which is secured by a mortgage to the bank and the mortgage is also secured by the Sunnyside Street, Gladesville property. Mathew and his wife were only able to buy the Bullaburra property because the deceased agreed to mortgage her property as additional security for the loan. Currently the mortgage exceeds the value of the Bullaburra home by approximately $80,000. Their other assets, such as household contents and a Mitsubishi motor vehicle are worth only about $20,000. The bank has agreed to a reduction in their monthly mortgage payments, but this means that the total amount of their debt continues to increase. Mathew is a police officer, as was his wife. He is on reduced duties due to injury and his wife has also been off work due to injury and receives only workers' compensation payments. Mathew's current income after tax and salary-sacrifice for a leased car and superannuation contributions is approximately $41,000 per annum. He anticipates that his superannuation policy on retirement in 2022 may be worth approximately $500,000. It has already been reduced on two occasions to assist with payment of the cost of therapeutic programs for the benefit of their son who has autism. Any diminution of Mathew's share of the estate would cause substantial hardship. 45Roslyn cared for Louise's son Alistair. She deposed that she had regularly supported Louise over the years and had supported Louise's children, and this had greatly affected her day-to-day life and relationships. She was not cross-examined on that evidence. She also looked after Duane, although in 2010 she obtained an apprehended domestic violence order against him. She is in work. She earns a salary of $65,000 per year. She and her husband own two properties, but they are secured by mortgages that secure debts that are approximately equal to the value of the properties. She and her husband purchased the second property at Redland Bay in Queensland in June 2011 in the belief that she would receive her entitlement from the deceased's estate fairly quickly to reduce the mortgage. She has about $5,000 in savings. She said that her expenses and liabilities far outweighed the value of her assets. She seeks the entitlement under the will to obtain some equity in the two properties that she and her partner own. She needs the distribution to reduce debt. 46Having regard to the claims of Louise's siblings on the deceased's testamentary bounty and the support they provided to Louise's children when they were young, a further provision in Louise's favour would not be "proper" for her maintenance and advancement in life if it came at the expense of the provision made by the will for any of her siblings. 47Louise's eldest son, Alistair, did not give an affidavit. If the attitude of his siblings is anything to go by, I infer that he, like them, but perhaps to a greater degree, treats these proceedings with disdain. From Louise's descriptions of Alistair, I would not infer that he has any substantial assets. Alistair is 24 years old. According to Louise, the deceased constantly complained to her about Alistair's drug usage. In 2005 and 2006 and later in 2010 he lived in the granny flat on the deceased's property. Pauline gave evidence (which I accept) that in 2010 he was living there with his girlfriend and his two children. There is otherwise no evidence as to whether he is employed or has any assets. Having regard to his difficult upbringing and considering the position of his siblings, I would be surprised if he did. 48Duane eventually took a sufficient interest in the proceedings to turn up late to the hearing. As the result, the defendants' counsel was able to obtain some evidence from him as to his financial position. There was no corroboration of this evidence and counsel for Louise had no real opportunity to test it. Duane is 22 years old. He has two children aged six and two. He said that he obtained casual employment from time to time as a concrete labourer. He was on day call and if he received work he was paid $150 per day. Work was extremely intermittent. His Centrelink benefits were cut off in early August 2012. Duane gave evidence that his assets consisted of a car which he valued at $11,000 and furniture valued at $3,000. He owed debts to Centrelink of up to $1,500, and owed debts of $3,000-$4,000 to the State Debt Recovery Office, a telephone bill of $1,500, and was obliged to repay a loan to Cash Converters of about $800. What is remarkable about these figures is that, according to Duane, he received a payout about 18 months ago as the result of a motor vehicle accident which yielded to him a sum of $217,000. According to Duane, all of that money has now gone. There is nothing to show for it. He was unable to provide any reasonable explanation of how the money had been dissipated. It speaks volumes for the lack of any sense of responsibility that a man with two children aged six and under should waste a compensation payment of $217,000 in less than 18 months. I can have no confidence that any money Duane receives under his grandmother's will will be put to any worthwhile purpose. 49Chris is aged 20. So far as one can assess these things from a short appearance in the witness box, he appeared to greater advantage than his brother Duane. He does not have any children. He lives with a partner in the house of his partner's mother. He has no assets of value. He owes a debt of $878 to Cash Converters and a similar amount to Centrelink. His only income is through Centrelink payments. 50Clara is 18. She has a two-year-old son. Her only income is the single mothers' pension. She currently lives in Housing Commission accommodation. She has a car, but it was acquired with a loan which is approximately equal to the value of the car. Otherwise she has few assets and they are of no material market value. She receives no support from her son's father and has no other assets or source of income. She gave evidence that after her son was born she telephoned the deceased for advice because she was close to her grandmother. The deceased apparently thought well of Clara. Clara said that her grandmother told her "You are a stubborn young lady. Whatever you put your mind to you can achieve." Having seen Clara in the witness box I can readily believe that her grandmother would have formed that assessment of her character. Clara gave evidence of her relationship with her grandmother (which none of Louise's other children did), from which I accept that her grandmother did wish to make provision for Clara in her will. It is possible that a reason the deceased did not get around to making any change to her will to exclude Louise's grandchildren was that she did not wish to exclude Clara from her benefits, but thought she should deal with her grandchildren as a class. It appears from Pauline's evidence that the deceased was irritated with Chris, Duane and Alistair, who were living in her house or the granny flat in 2010. She told Pauline that she did not want to have anything to do with them. She expressed no such view about Clara. 51Section 59 of the Succession Act does not confer jurisdiction on me to rewrite the deceased's will according to how I consider the estate should have been left, nor as to how I consider the deceased would have wanted her estate to be left if she had had the energy in her last days to rewrite her will. 52Louise's children were proper objects of Margaret's testamentary bounty owing to their upbringing. Louise's conduct as mother of her children is relevant to her claim for provision (Succession Act, s 60(2)(a), (m) and (p)). The significance of that conduct is in the care that the deceased had to provide for Louise's children, and their need for direct provision out of the deceased's estate. They have competing claims on the deceased's testamentary bounty which most grandchildren would not have. With the possible exception of Alistair about whose financial position there was no direct evidence, each of Louise's children has significant financial needs. Those needs would not be met through Louise who deposes that any provision she receives in excess of her and her partner's own needs would be applied to the needs of her partner's children. Although there is no direct evidence of Alistair's financial needs, given his youth, the fact that he has two children, and the evidence of his lifestyle, it is probable that he is not well provided for. 53It may well be that the provision made by the deceased's will in favour of Duane, and possibly Alistair, will be squandered in disregard of their obligations to their families. I do not consider that to be a reason for making provision at their expense in favour of Louise. That is to say, I do not consider that the assessment of what maintenance and advancement in life is proper for Louise, having regard to the competing claims on the estate, should be determined by a guess as to how the provision made by the deceased's will in favour of Alistair and Duane is likely to be dealt with. To do so would be to rewrite the will according to how the court would consider that a wise and just testatrix would deal with her estate. That goes beyond the powers conferred by s 59. 54Having regard to the competing claims on the deceased's estate, I do not consider that the provision made for Louise in the deceased's will was less than adequate for her proper maintenance and advancement in life. I will order that her claim for a family provision order be dismissed. 55The remaining question concerns costs. I have received submissions on that issue. Prima facie, costs follow the event. However, different questions of costs commonly arise in probate suits. The court needs to be satisfied that the will propounded for probate represents the last will of the deceased. Having regard to the handwritten alterations made to the will, the executors would have been bound in any event to raise the question as to whether or not the handwritten alterations should be admitted to probate pursuant to s 8 of the Succession Act. In my view there should be no order as to costs of the probate suit. 56In relation to the family provision claim, counsel for the executors accepted that the claim was reasonably open for Louise to bring and if she failed in her claim, there should be no order as to costs so that she should pay her costs and the estate should pay its costs. Although such an order is not usual where an applicant for a family provision order fails in his or her challenge (Carey v Robson (No. 2) [2009] NSWSC 1199), it is by no means unknown (see e.g. Singer v Berghouse (1993) 114 ALR 521 at 522). As Palmer J said in Carey v Robson (No. 2) (at [21]), an approach to family provision litigation that throws the whole burden of costs onto the beneficiaries of the estate tends to promote wasteful litigation. Nonetheless, having regard to the executors' position that if Louise failed in her claim for a family provision order, there should be no order in respect of her costs, I do not consider that a different costs order should be made. I am not suggesting that a different costs order might have been made if the executors had taken a different position. This case is somewhat different from the usual family provision application in that it was heard in conjunction with the probate suit and there was evidence that the deceased had in mind making greater provision for Louise under her will than she did. It is also not usual for an applicant for a family provision order to be a child of the deceased where the burden of further provision, if it were to be ordered, would probably fall on the applicant's children. Conclusion and orders 57For these reasons, I conclude that there should be a grant of probate of the deceased's will dated 19 November 1998. I will refuse the declaration sought that the deceased intended her handwritten alterations made to the unsigned copy of that will to operate as an alteration to the will. Louise's claim for a family provision order will be dismissed. The executors will be entitled to their costs of the proceedings out of the estate on the indemnity basis. There will be no order as to Louise's costs. 58I am alarmed at the size of the costs said to have been incurred by both parties, but particularly by the executors. Although the evidence was not clear, the estimate for a one-day hearing was approximately $85,000. I am not in a position to adjudicate on the reasonableness of those costs. An indemnity order for costs entitles the executors to all costs other than any that have been incurred in breach of their duty as executors (Uniform Civil Procedure Rules 2005 (NSW), r 42.5(a)). Such costs are determined as between solicitor and client. Whether the executors may be required to reimburse the estate in respect of any part of such costs would be determined on a moderation by the Registrar on an application to pass the executors' accounts if there is a dispute. An order that the executors' costs be paid on the indemnity basis out of the estate does not affect the rights of the beneficiaries to seek a moderation of the executors' accounts. 59I make the following orders: 60In proceedings 2011/78629 I order that: 1. probate of the will dated 19 November 1998 of [Margaret] late of [x] Sunnyside Street, Gladesville, New South Wales ("the deceased") be granted to the plaintiffs in solemn form; 2. the alternative claim that it be declared that a marked copy of an unexecuted will of the deceased formed her will or an alteration to her will be dismissed; 3. the proceedings be referred to the Registrar to complete the grant; 4. the plaintiffs' costs of the proceedings be payable out of the deceased's estate on the indemnity basis; and 5. there be no order as to the defendants' costs. 61In proceedings 2011/341980 I make the following orders: 1. the summons be dismissed; 2. the defendants' costs of the proceedings be paid out of the estate of the deceased on the indemnity basis; and 3. otherwise there be no order as to costs. 62In both proceedings, I order that the exhibits be returned, except so far as necessary to complete the grant of probate. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 December 2012