Supreme Court New South Wales Medium Neutral Citation: Gary Alan Wright v Kerri Lyn Wright as Executor of the Estate of Leslie Richard Wright [2015] NSWSC 1333 Hearing dates: 18 August 2015 Date of orders: 08 September 2015 Decision date: 08 September 2015 Jurisdiction: Equity Before: Rein J Decision: See [54] and [55] Catchwords: EQUITY - Succession - Application for family provision under Part 3 Succession Act 2006 by estranged adult son - Where deceased did not make provision for applicant in will - Statement from testator under s 100 of the Succession Act s 100 - Consideration of matters under s 60(2) of the Succession Act - Plaintiff's financial circumstances - Plaintiff's character and conduct - Plaintiff's hostility towards testator and other family members Legislation Cited: Succession Act 2006 (NSW) Cases Cited: Andrew v Andrew [2012] NSWCA 308 Burke v Burke [2014] NSWSC 1015 Burke v Burke [2015] NSWCA 195 Chapple v Wilcox [2014] NSWCA 392 Dolman v Parker [2005] NSWCA 361 Grover v NSW Trustee & Guardian [2015] NSWSC 1048 Keep v Bourke [2012] NSWCA 64 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Texts Cited: Nil Category: Principal judgment Parties: Gary Alan Wright (Plaintiff) Kerri Lyn Wright (Defendant) Representation: Counsel: D.W Dickie (Plaintiff) M Pringle (Defendant) Solicitors: Andrew McNeil & Associates (Plaintiff) Willis & Bowring Solicitors and Attorneys (Defendant) File Number(s): 2015/17196 Publication restriction: nil JUDGMENT 1. The plaintiff Gary Alan Wright ("Gary") is the son of the late Leslie Richard Wright ("Leslie"). Leslie died on 24 February 2014, leaving a will dated 13 August 2013 of which probate was granted to the defendant on 22 May 2014. The defendant Kerri Lyn Wright ("Kerri") is the daughter of Leslie and under the will she inherited his whole estate. 2. The estate has a net value of approximately $523,000, excluding legal costs and an amount of $50,000 which Kerri has agreed to pay her brother Steven Leslie Wright ("Steven") who had brought a claim under Chapter 3 of the Succession Act 2006 (NSW) ("the Act") against Leslie's estate. 3. Gary, for whom Mr Dickie of Counsel appears, claims that he is an eligible person and should receive a legacy pursuant to s 59 and 60 of the Act. The defendant, for whom Ms Pringle of Counsel appears, resists that claim. 4. There are a number of matters which are not in dispute: 1. Gary was adopted by Leslie and Lynne Wright ("Lynne") at a very early age but he was not made aware of that fact until 2004 2. Gary is now unemployed and has been unemployed for many years. He draws a Centrelink pension for himself and an additional amount in respect of his 17 year old son 3. close to the time of making his will Leslie prepared a statement described as a section 100 Succession Act statement ("the 2013 statement") in which he detailed his reasons for excluding from the will any provision for Steven, Lynne and Gary and his reasons for favouring Kerri with the entire estate 4. Gary is en eligible person within the meaning of s 59 of the Act 5. Gary has almost no assets 6. Kerri and her husband have substantial assets which, net of mortgages, exceed $2.5 million in value 1. Gary said in his affidavit that he resides in his car but at the hearing in cross examination he said he was now renting a house. No details of the rental property or rental amounts were given by him. Gary has provided no evidence of his medical bills. Gary stated that his son resides with him. There is no evidence as to whether his son works or not. 2. Gary has had training as a panel beater and has repaired trucks and other motor vehicles but it seems that he has not been employed since 1996. 3. Paragraph 8 of Leslie's 2013 statement deals with Gary as follows: "I have not seen my adopted son Gary in over approximately 13 years and he has not been a part of my life for over 20 years. It is my belief that he is on drugs. Gary has caused numerous issues for me during my lifetime including threatening me and threatening to cut my daughters throat. I am disappointed that Gary has chosen a life of drugs, theft and using standover tactics. I am concerned that any money that I have worked so hard for and saved would not be respected and would be squandered as he did with an inheritance he received from his mother's cousin, Glenn of approximately $200,000. He did not share any of this money with his siblings or use it to pay back any of his debts and he subsequently squandered the money. It is my strong wish due to this conduct disentitling that Gary does not benefit from any part of my estate." 1. Paragraph 9 of the 2013 statement deals with Kerri in the following terms: "My daughter, Kerri and I have always had a very amicable and supportive relationship. She has provided me with rent-free accommodation for approximately 14 years and her husband has allowed me to work with him. Kerri helps me with my day-to-day business including paying bills, helping me research purchases, taking me to doctors and specialist appointments. Kerri has included me in all of her family celebrations and I also have regular weekly visits with them. Since my diagnosis Kerry has helped me liaise with medical professionals and has provided me with much needed emotional support. Due to the support Kerri has provided me over the years and the wonderful relationship I have with my daughter I have left the whole of my estate to her." 1. I did not understand the plaintiff to challenge the accuracy of the assertions of fact concerning Kerri that the 2013 statement contains. He does, however, challenge the assertions of fact made concerning himself. 2. Gary has been convicted and incarcerated for various offences including theft, sexual assault and driving whilst disqualified (see T16.40). He has also been the subject of Apprehended Violence Orders ("AVO") taken out by his former de facto partner. He is well known to Police as is revealed by Exh 1 which contains reports of a number of complaints made against him: 1. by a nurse whom he assaulted in June 2013 but who did not press charges (p 4) 2. by a representative of Origin Energy to whom he was allegedly abusive and threatening in 2014 (p 4) 3. in respect of him seeking to have Police intervene where he has had a dispute with a government authority alleging that the State Debt Office was attempting to extort money from him (because of unpaid fines) (p 5) 4. telling Police that he would contact them every night from now on in connection with an interim AVO obtained against him (p 11) 5. threatening his ex de facto and their children (p 12) 6. making the following threats: 1. to a Police officer: "The next thing I'm gonna do is fill up my car with fuel and ram it into the first cop car I find" (p 16) 2. to a Police officer: that he "intended to kill himself and wanted to take as many government officials with him has possible" (p 36) 3. identifying himself in a phone call to Grosvenor Glass at which he had been employed for a period and saying "I'm going to get him [his former boss] because I've lost my workers comp case" (p 39) 4. to a Constable Moore: "I'm going to snap your fucking neck" and "I'm going to get the lebbos to come round and shoot your station up" (p 42) 5. to his ex de facto: "You and I are going to meet up with my solicitor the day after tomorrow to sign 50/50 to the house or all over to me. If you don't, I am going to neck [semble knock?] you. I will knock your father, knock your mother and knock both your brothers….. Then I will take the kids to the house and burn it down" (p 43) 1. breach of bail conditions and of AVO (p 19, 25) 2. calling Police, Fire and Ambulance services to his ex de facto's home (p 33) as a means of harassing her 1. There is also reference to Gary having a history of violence including stalking and intimidation (p 6) and damaging and destroying property (p 7). 2. In relation to [10](a) Gary admitted that he had hit the nurse and a security guard: T33.45- T34.4 blaming it on medications he was given. In relation to [10](b) Garry did not recall this: T34.25. In relation to [10](f)(v) he denied that he had said what had been alleged. In a number of instances Gary asserted that he could not remember that the events recorded occurred: T33.44. In some instances he admitted that he had made calls but said it was because he wanted Police to investigate: T30.44. He said he could not recall having been warned by Police about nuisance and harassment: T33.30- 34. 3. In January 2004 Gary notified the Police that Leslie kept guns in his house and that Leslie was, in effect, a 'hit man'. The Police confronted Leslie with the allegations and Leslie admitted that he had once had a rifle but said that he no longer had it. Leslie gave them permission to search his house for guns and the Police declined to do so. Gary presented no evidence to support his allegations against his father and he admitted that he had told Police that Leslie had a gun but could not remember anything else: T29.26. 4. On 7 December 2014 Gary sent an SMS to Steven in which he stated that he wanted to "get Kerri and Mark today" but they were not home and he would "blind them both so nan doesn't have to see the deception in their filthy eyes" (with some typographical and spelling errors removed). This evidence was not challenged by Gary. 5. On 10 December 2014, according to the Police record Exh 1 p 4, Gary phoned Kerri and left the following message on her answering machine: "I hope you burn in that fucken house, where's my dads fucken house you… Yeh, this is Gary Wright the chained up fucken abused adopted child. Don't think this Christmas is going to be fucken enjoyable ok, I was just at your fucken place and I'm going to be back, right, you fucken maggots" 1. Gary did not dispute that he left that message but said: "I was hoping the police would come and investigate some of the stuff, because I have been left to do everything on my own head." (T36.20) 1. Gary in a letter of 11 August 2014 to Kerri's solicitor (see annexure B to Kerri's affidavit of 19 June 2015) wrote: "So if your [sic] told I'm aggressive. Don't let them be mistaken its well justified medically as well." 1. Lynne recounts that Gary and his de facto spouse moved into her cousin Glenn's home and that Gary beat Glenn with the consequence that Gary had to be hospitalised. Lynne deposes to having received a phone call from Gary in which he said: "Don't come to the hospital if you don't want to end up as a patient too". Lynne observed Gary pulling off the wall the telephone Glenn's father was using at the hospital to make a call: paragraph 24 of Lynne's affidavit. Lynne was cross examined briefly but not on any of these matters. 1. Lynne gave evidence that Gary threatened her that he would firebomb her house (see paragraph 5(e) of Lynne's affidavit). No suggestion was made that Lynne is not a truthful witness. I accept her evidence. 2. Gary has recently been charged with sending dangerous goods and a threatening letter to the owners of the M5 Motorway whom he regards as extortionists because they have removed people's rights to pay a toll on the spot. He has not as yet been required to plead to the charges: T37.34. 3. Ms Pringle submitted, and Mr Dickie did not dispute, that Exh 1 is a business record of the NSW Police. Because Gary admitted a number of the matters which are reported and because others are Police records of what Gary said to Police officers I do not think it is necessary to determine whether on the balance of probabilities all of the complaints made against him are made out. There is sufficient evidence to establish that Leslie had a view of Gary's character and conduct that was a rational and reasonable view and not one invented for the purposes of denying him the benefit of a provision. 4. There are a number of medical reports annexed to Gary's affidavit of 19 January 2015: 1. Dr Peter Whetton, consultant psychiatrist, of 10 February 2005 2. Dr Brian Harrison, GP, of 3 May 2006 3. Dr Whetton of 2 May 2006 4. Dr John D Pickering, psychiatrist, of 23 November 2009 1. It will be observed that the latest report is that of Dr Pickering of 23 November 2009. The reports appears to be medico-legal reports that appear to have been obtained for the purpose of sentencing. There is nothing to indicate that since 2009 Gary has had treatment or medication of any kind. Much of what is recorded in the reports is a summary of what Gary told the doctors including the fact that Gary told Dr Whetton that he had suffered epilepsy "for a few years". Dr Whetton did indicate that he suspected Gary has a long term history of Attention Deficit Disorder and "[c]ertainly his personality has been very unstable and impulsive" (p 2), a suspicion which Dr Whetton later thought was credible given the benefit of medication (GAW7). Dr Pickering expressed the view that Gary had ADHD "as his principal treatable problem" and a suspicion that he has "Borderline Personality Disorder". Dr Pickering did note that "He was orientated and alert, with intact cognition and judgment. There were no abnormalities of perception, speech, language, thought content or appropriateness of emotions. Suicidal ideas were present in the form of a long-standing plan to immolate himself if pulled up by the police." (p 2) 1. There was the following exchange between Gary and Ms Pringle at T13.5- 10: "Q. So we should accept Dr Whetton's report as being ‑ reflecting your current state of health and well‑being. A. Well, maybe not current now. You might need a new doctor, a new report to state what my current one is. I'm not a doctor so I can't state, you know ‑ every time doctors wrote something I didn't understand most of the words [in] that anyway." 1. In the report Gary relayed a history in relation to his childhood, the details of which he did not reiterate in his affidavit. On the topic of his father he said in his affidavit: "The deceased treated me cruelly during my childhood and youth and gave me no financial or emotional support as I grew up" and he accused Leslie of showing him how to steal petrol. Later in the affidavit he said Leslie had told him on many occasions he would always leave him his car when he died. He claims that he had stopped fights between Leslie and Steven. 1. In his second affidavit dated 10 August 2015 Gary said that he had a volatile relationship with Leslie "which arose because of his mistreatment of me as a child". He denied that he had threatened to cut Kerri's throat. In admitting that he had a criminal history of which his father was aware he says that his father: "actively encouraged me in some of that activity". No details were provided of that encouragement or the activity, other than the petrol incident when he was a boy. He asserts that he had an affection for his father. In paragraph 7 Gary asserts that Kerri was present when he and Steven "received severe physical punishment from the deceased particularly during our numerous school holiday visits" and that she was present on one occasion when he was chained to a caravan in the middle of the caravan park. 2. Kerri asserts that she and Gary had a very close relationship in their early years and as young adults and Gary did not dispute this. She says that Gary told her about everything he did including his criminal activities and she asserts that Gary never told her that he was mistreated by any person including Leslie. 3. Gary was with Lynne from age 6 to 19. Lynne said that she had never seen Gary beaten or abused by Leslie or anyone else and that Gary had never complained to her (see paragraph 6, 7 and 8 of Lynne's affidavit). She also said that the conduct ascribed to Leslie in relation to petrol was completely out of character according to her knowledge of Leslie (see paragraph 7 of Lynne's affidavit). Gary, she acknowledges, had told the Children's Court Magistrate that "he had a bad childhood" but she understood that was a tactic to reduce the sentence when he was charged with "some offence". She found the claims made by Gary to the doctors as shocking, defamatory and disgusting. Interestingly Gary had told Dr Pickering that he was adopted at 5 years of age (see page 1 of GAW8) when in fact he was adopted shortly after birth (see paragraph 10 of Lynne's affidavit). Lynne says that in 1981 she moved to the country because Gary was "regularly getting into trouble and attracting attention from the Police" and was associating with criminals in the neighbourhood. Later when Gary was sent to gaol she visited him there. 4. Exhibit 7 is a Department of Corrective Services history of Gary from 6 February 2002 to 15 May 2006. There is noted a claim by Gary that he suffered from "chronic amnesia because of epilepsy". There is also a note on page 3 concerning Gary that he: "Doesn't accept responsibility for behaviour attributing blame to memory loss. Presents as very angry and at times irrational. Also does not accept responsibility for previous offences, particularly sexual offending, (she was a slut anyway)." 1. That Gary does not accept responsibility for his behaviour is evidenced by his assertion that he hit the nurse and security guard because of the medications, that although he was the person of interest in connection with conduct leading to an AVO in respect of his former de facto he was calling Police because of concerns about what the de facto was doing and that when he made threats of a vicious nature against persons including Kerri he was responding to their wrongdoing hoping the Police would investigate. 2. Gary is a daily user of cannabis and although he sought to suggest that the use was medicinal there is no expert evidence to support that assertion and I am unable to accept his contention 3. Gary was a difficult youth who was expelled from school for assaulting a teacher. On the material that is before the Court he has for many years exhibited high levels of aggression particularly to, but not limited to, persons in authority. He appears to be a volatile personality who has not adjusted well to adult life, and his relationship with his former de facto partner appears from Exhibit 1 to have been disastrous. 4. Gary was clearly emotionally unsettled by reason of learning of the fact of his adoption. He seemed to blame Leslie and Lynne for having adopted him. 5. In my view Gary is not a reliable witness: 1. he himself said that his memory was poor: see T14.29- 33 2. he said he could not remember having threatened people: see T27.7- 27.32, T34.18- 34.41, T36.4- 36.8, 3. he denied having made threats that were in remarkably similar form to the threats that he made to Steven, to Kerri and to Lynne and threats that other people are recorded as having claimed he made against them some of which he did not deny making 4. he asserted in connection with Leslie's statement that Gary was 'on drugs' that "he's not a medical practitioner, so he wouldn't have a clue" when he could not dispute the fact that he was a regular user of cannabis: see T15.46 but he later denied that he used drugs: T16.29. At T17.45 he implicitly accepted that he did have a problem with substance abuse 5. I set out a portion of the cross examination (T17.42- T18.22): "Q. 12 March 2004. And from the middle of that entry, there is a conversation reported between you and your former de facto to the effect that "If you don't sign everything in my name and do not keep your mouth shut, I'll come over and poke your eyes out and from there slowly kill you." A. No. No, it's definitely not ‑ yes, my ex had a problem with substance abuse, too, and‑‑ Q. That's not what I asked you. A. ‑‑this is unfounded. Q. That was the report that was made to the police; correct? A. Yeah. But I could report there's a camel on the crossing, too. That doesn't mean that it's correct, ma'am. It's an allegation. Q. I'll take you to pages‑‑ HIS HONOUR Q. It's an allegation. I take it you're telling us you deny that allegation? A. Yes. Yes, sir. Q. Okay, that's what I want to know. Did you ever use language like that to people? A. I ‑ I have used some quite bad language, but not like that, your Honour. Q. I'm not focusing on bad language. I'm talking about ‑ do you ever say to people things like, that you'll poke their eyes out or kill them? A. No. Q. Never say that? A. I don't think ‑ I don't recall, your Honour, no." 1. he said in cross examination that after he saw Leslie (about three years before Leslie died) he "just always spoke to dad" see T40.30. In his affidavit of 10 August 2015 at paragraph 3(1) he said he last saw his father in 2011 and says nothing about having had any contact with him 2. his evidence in relation to how he came to receive that $127,000 from Glenn's estate was not convincing and it is made even more of a concern in the light of Lynne's evidence of Gary's attack on Glenn and Gary's de facto's report of Gary's conversations with her 3. the matters referred to in [30] and [31] 1. There are claims made by Gary concerning Leslie (except that Leslie once had a firearm) that are without corroboration from any other source. 2. There is no evidence concerning Gary's son other than that Gary receives Centrelink benefits. There is no evidence that Gary is unable to work although there was no suggestion made that he has been working. 3. I am satisfied that there has been no relationship between Leslie and Gary for over 20 years. Leslie noted in the 2013 statement that he had not seen Gary in over approximately 13 years- Gary gave evidence that he saw Leslie on one occasion in 2011 when he, in the company of Steven, went to Leslie's workshop which is not inconsistent with the absence of any relationship. Whilst I have difficulty in accepting Gary's uncorroborated evidence on any topic, even accepting that he did see Leslie on one occasion, on Gary's own account there was no attempt on that occasion to achieve a reconciliation on the part of either Gary or Leslie 4. I find that Leslie's belief that Gary was "on drugs" was accurate. 5. I find that Gary caused issues for Leslie (and Lynne) and threatened him and Lynne. 6. Leslie expressed the view that he did not want Gary to benefit from any part of his estate and in respect of his reasons I find that Leslie's belief that Gary has chosen a life of drugs and theft was well founded. 7. Leslie's concern that any money which he might give to Gary would not be respected and would be squandered was based in part on the fact that Gary had received money from his cousin Glenn's estate and had not used it to pay back debt. Leslie's belief that Gary received $200,000 was erroneous as Gary had actually received $127,000. 8. Gary says that he used the $127,000 to buy a car (he did not say that the car he now owns is the car he bought out of Glenn's estate) and otherwise for living expenses (see T41.1). In his affidavit he said he also used it to support his ex partner and their children (see para 3(vi) of his 10 August affidavit). No bank accounts were provided by Gary and there is no corroboration of his assertion as to his use of the money. He certainly has nothing to show for it now and he does not say that he paid back any of the debts which he accumulated and which he wanted to avoid paying when he encouraged Glenn to leave the property owned by Glenn to Gary's de facto rather than to him: see T22.37- 23.17. Whilst I think that it is possible that Gary spent all of the money on normal living expenses and support paid to his de facto I am not persuaded, in the absence of some corroborative evidence, that he did. I note that Mr Dickie in seeking an order for provision accepted that it would be appropriate for any award to be "managed by the public trustee for his benefit": T60.47, which rather confirms Leslie's assessment that Gary would not act wisely with any bequest. 9. S 60 of the Act requires me to have regard to a number of matters in deciding whether the Court should make a family provision order. The Court must have regard to the position as at the date of the hearing not as at the death of the deceased or the date of the will. 10. Dealing with the matters specified in s 60(2)(a)- (p): 1. the plaintiff is the son of the deceased and is an eligible person 2. the deceased had no obligations or responsibilities to the plaintiff 3. the estate has a net value of $525,000 but this will reduce to, at most, $475,000 after legal expenses and without deduction of the $50,000 to be paid to Steven 4. the plaintiff does not own his own home and has very few assets 5. the plaintiff is not married and has three children. He has little contact with two of them but has looked after his now 17 year old son 6. the plaintiff has been diagnosed with Attention Deficit Disorder and was suffering from the condition until 2009 at least 7. the plaintiff is now 50 years of age 8. the plaintiff gave evidence of having done some mechanical work for his father many years ago but has otherwise contributed nothing to the estate of the deceased and has done nothing for his father for many years 9. no provision has been made to the plaintiff by the deceased and whilst he was alive the plaintiff did not expect anything: T7.45- T8.1 10. I have set out the clearly expressed intention of the deceased 11. the plaintiff was not maintained in any way by the deceased 12. the Commonwealth Government supports the plaintiff by way of an allowance 13. I have dealt with the character and conduct of the plaintiff 14. no other person's conduct is relevant here 15. the plaintiff is not of Aboriginal or Torres Strait heritage 16. I regard it of significance that Kerri not only has given considerable assistance to the deceased over a long period but that the deceased stayed at her home rent free for many years. As Ms Pringle pointed out this free accommodation would be a reason why the deceased was able to accumulate the property which he has accumulated which forms part of his estate. I think it is also relevant that Steven, who had a degree of estrangement with the deceased, has been now provided with a legacy of $50,000. The estrangement with Steven is also relevant since it might point to an attitude on the part of Leslie that was unreasonable but whilst Leslie did not leave a bequest to Steven he did not make a statement concerning him as he did Gary. The estrangement between Leslie and Steven was of a very different nature and extent to that with Gary. Further Steven made an effort to restore his relationship with his father: see paragraph 43 of Kerri's affidavit of 19 June 2015 1. The question of the two stage approach to provisions out of the estate has been much debated and restated (see [29] to [41] of Burke v Burke [2014] NSWSC 1015 and [17] to [21] and [23] of Burke v Burke [2015] NSWCA 195) but neither counsel in these proceedings submitted the difference in approach between the majority in Andrew v Andrew [2012] NSWCA 308 and the Court in Keep v Bourke [2012] NSWCA 64 or Chapple v Wilcox [2014] NSWCA 392 was of any significance here. 2. My attention was drawn to Grover v NSW Trustee & Guardian [2015] NSWSC 1048 at [143]- [181] in which the general approach to the legislation is outlined by Hallen J and a detailed summary of previous cases on ss 59 and 60 and its analogues is found. 3. The Court of Appeal per Ward JA in Burke said: "[86] The approach contended for by Terry goes beyond this. [87] His Honour [myself in Burke at first instance] had regard to what was said in Ford v Simes [2009] NSWCA 351 (at [70]–[72]), and to what was said by Allsop P in Andrew (at [18]–[19]); as well as to the caution with which judicial interference with the freedom of testation should be made. [88] His Honour did not err in rejecting the submission that it would only be the most egregious conduct of a child of the deceased that would deprive even an adult child of a right to have his or her needs taken into account by court and to have an appropriate decision made in his or her favour where it is established that he or she is impecunious or of very limited financial means. True it is that in Hughes v National Trustees, Executors and Agency Co Australasia Ltd [1979] HCA 2 ; (1978–1979) 143 CLR 134 it was said that the stronger the applicant's case for relief the more reprehensible must have been his conduct in order to disentitle him to the benefit of any provision. However, the authorities do not, in my opinion, stand for the proposition that in all cases where estrangement is not the product of callousness or hostility there is a prima facie entitlement to provision. [89] In Palmer v Dolman (at [110]), Tobias JA was of the opinion 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 [now superseded Family Provision] Act. Nevertheless, it does not follow from that that there is a prima facie entitlement to provision in circumstances where there is financial need on the part of an estranged adult child. [90] In Ford v Simes, Bergin CJ in Eq said (at [71]–[72]): It is one thing to make provision for a child, even an adult, where the court is able to better balance the obligations of the testator with the adequacy of the provision made by the testator. However in my view it is very important for the maintenance of the integrity of the process in these types of applications that this court acknowledge once again the entitlement of testators, in certain circumstances, to make no provision for children: The Pontifical Society for the Propagation of the Faith and Saint Charles Seminary, Perth v Scales(1961) 107 CLR 9. This is particularly so in respect of children who treat 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. (my emphasis) It is obvious that if the estrangement from the testator is explicable, as was the case in the authorities referred to above, a claimant may still achieve an order for provision under the Act. However there will be cases in which the estrangement is such that a testator is entitled to make no provision for an estranged child. This is one of them. The deceased spent the last 14 years of his life without any assistance from the appellant; without any communication (except the abusive encounter) from the appellant; and without the benefit of the love from a child whom he had nurtured and financially assisted during his formative years. [91] The words italicised above do not support Terry's contention that, almost as of right, provision should be made in the absence of hostility or callousness. Her Honour was there contemplating that estrangement was a factor that would appropriately be taken into account; that it would not necessarily preclude the establishment of a claim for provision; and that circumstances of hostility or callousness were ones in which it might be particularly appropriate for a testator to choose not to make provision for an estranged adult child. But her Honour did not suggest that callousness and hostility are the only circumstances in which the community might reasonably consider it not inappropriate for there to be no provision made for an estranged adult child even though that child was in straitened financial circumstances. [92] In Keep v Bourke, Barrett JA (at [37]) made clear that estrangement did not enjoy the status of a determinative consideration. There, the testator was the instigator of the separation. The fact that the daughter (who had married against her parents' wishes) did not attempt reconciliation was treated by the primary judge as not barring a claim for provision though it reduced her claim on the testator's bounty. Barrett JA considered that his Honour's decision should be upheld, on the basis that his Honour had addressed all relevant matters going to jurisdiction and an assessment was made by way of appropriate "multi-faceted evaluative judgment" taking those matters into account. [93] What these observations demonstrate is that it is for the primary judge to evaluate all the relevant circumstances, including, where there has been a period of estrangement, the circumstances of that estrangement and whether there has been any attempt at reconciliation; and that there may be no one right answer: reasonable minds may differ. [94] In Andrew, the error on the part of the primary judge was the elevation, to the status of a rule, the principle expounded in Ford v Simes as to freedom of testation. The nub of Terry's submissions on the appeal invites the court here to fall into the same kind of error. The proposition contended for by Terry, in effect, is that in cases of significant need there is an obligation to make provision for an adult son, irrespective of any estrangement except in cases of hostility or callousness. That, in my opinion, wrongly seeks to elevate statements made in particular cases (to the effect that ordinarily estrangement will not preclude an application for provision succeeding on the facts of the particular case) to some form of overriding rule or principle." 1. There was no disagreement between Counsel as to the principles which the Court is required to proceed upon in determining the case. There was no provision made for Gary and he, at 50 years of age, has no significant assets and draws a pension. He is a person who as a son of Leslie might, in other circumstances, be expected to be an appropriate recipient of a significant benefit from the estate. 2. The real dispute between the parties is whether the testator's decision not to bestow any legacy or bequest upon Gary and his reasons for that decision should be respected, or whether Gary's position as a son of Leslie and his needs for assistance outweigh the other considerations. 3. That a testator has considered whether a child should be a beneficiary and decided that the child should not is an important but not conclusive matter. 4. I proceed on the basis that Gary has no assets and that if a provision of the magnitude proposed by Mr Dickie (ie $100,000) was made Kerri's position and lifestyle would not be significantly affected, but I regard the following matters as important: 1. Gary and Leslie had no contact in the 20 years before Leslie died, except for possibly one occasion when Gary asserts that he accompanied Steven to the workshop and saw Leslie approximately three years before he died (T40.17- 19) 2. there was clearly an estrangement between Gary and Leslie. The acrimony between them can only have worsened when Gary threatened to kill Leslie and Kerri, following his having learnt that he had been adopted 3. Leslie has expressed his wishes and made clear the reasons which led him wishing to leave nothing to Gary. These reasons are established 4. the reason for the estrangement given by Gary in his affidavit is an allegation that the deceased treated him cruelly and gave him no financial or emotional support yet he says he retained affection for him. The cruel treatment alleged has not been established on the evidence 5. that part of the reason Leslie has an estate to bequeath is that he has lived with Kerri rent free for many years 1. Mr Dickie pointed out, in an admirably concise form, that Gary's conduct could be explained by his medical condition and his limited cognition could be determined by my observation of him in the witness box. I think that a testator might be willing to forgive a son or a daughter for conduct that would be intolerable were it not for significant mental problems but leaving aside the absence of any medical evidence to support the proposition that his conduct can be ascribed to his condition I am not persuaded that the approach to be taken to the testator's testamentary decision making should be measured by a standard of conduct that borders on the saintly. I think that when a son threatens to kill his father (and his sister) the very natural reaction would be to exclude that person from his bounty whatever the reason for those threats- even more so when contact has long since ceased. The testator's wish to exclude his son was a very natural response to the son's behaviour particularly having regard to his threats and menacing conduct exhibited before the testator's death and which behaviour has continued in relation to the testator's family after his death. This is not a case only of estrangement but open hostility to the testator and his daughter. There is every reason to believe that Leslie was fully aware of Gary's straitened circumstances, in forming the view that Gary's financial position did not provide a reason to overlook the estrangement and hostility. 2. In my view Leslie was entitled, notwithstanding the fact that Gary was his son, to regard him as a person undeserving of any benefit from his estate whatever his financial circumstances at the time of his application. Having regard to the approach required by Court of Appeal authorities referred to in [47] above and Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at [13]- [25] per Gleeson CJ and Callinan and Heydon JJ at [113]- [121], Dolman v Parker [2005] NSWCA 361 and Allsop P in Andrew at [16] and [95]- [97], I do not think that members of the community would regard Leslie's decision to exclude Gary as not right or as inappropriate. Conclusion 1. I conclude that no provision should be made out of the estate of the Late Leslie Wright in favour of the plaintiff. 2. The plaintiff should pay the defendant's costs. 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: 11 September 2015