Supreme Court New South Wales Medium Neutral Citation: Haskakis v Hatzopoulos [2015] NSWSC 1408 Hearing dates: 9, 10, 11 and 12 February 2015 Decision date: 29 September 2015 Jurisdiction: Equity Before: White J Decision: Refer to para [104] of judgment Catchwords: WILLS, PROBATE AND ADMINISTRATION – family provision – claim by adult daughter for greater provision out of her mother's estate – whether plaintiff engaged in disentitling conduct – where plaintiff's relationship with her mother had been strained – dispute as to plaintiff's authorship of offensive letters sent to her mother resolved against plaintiff – relevance of plaintiff's failure to disclose minor financial assistance provided by her estranged husband – consideration of plaintiff's future needs – consideration of what a 'wise and just testator' would have provided – held that an order for further provision should be made, but not in the amount sought by the plaintiff Legislation Cited: Family Law Act 1975 (NSW) Family Provision Act 1982 (NSW) Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW) Cases Cited: Foley v Ellis [2008] NSWCA 288 Hughes v National Trustees, Executors and Agency Co of Australasia Limited (1979) 143 CLR 134 Kay v Archbold [2008] NSWSC 254 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Click here to enter text.Mann v Starkey [2008] NSWSC 263 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 Singer v Berghouse (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253 Stott v Cook (1960) 33 ALJR 447 Wentworth v Wentworth (1995) 37 NSWLR 703 Wentworth v Wentworth (Bryson J, Supreme Court of New South Wales, unreported, 14 June 1991, BC9101896) Wentworth v Wentworth (Court of Appeal, unreported, 3 March 1992, BC9202033) Wheatley v Wheatley [2006] NSWCA 262 Category: Principal judgment Parties: Helen Haskakis (Plaintiff) Christina Hatzopoulos (Defendant) Representation: Counsel: M Thompson (Plaintiff) D V Robinson (Defendant) Solicitors: File Number(s): 2012/386662 Judgment 1. HIS HONOUR: This is an application for a family provision order in respect of the estate of Mrs Pota Caralis who died on 29 April 2012 aged 91. Mrs Caralis left an estate that was estimated for probate purposes to have a value of approximately $3,100,000. The principal assets of the estate were a family home situated in Bexley Road, Earlwood with an estimated value of $1 million and a property in Marrickville with an estimated value of $2 million. The Marrickville property has since been sold for $2.4 million. 2. Mrs Caralis' husband, George Caralis, died suddenly on 25 August 1960 when she was 39 and her children were aged between 19 and six. She was survived by her four children, 10 grandchildren and four great-grandchildren. Her children, in order of age, are Vasilios (known as Bill) Caralis; the plaintiff Helen Haskakis; James Caralis; and the defendant Christina Hatzopoulos. In these reasons I will refer to Mrs Caralis' children and grandchildren by their first names for ease of reading and intending no disrespect. 3. On 19 March 2014 probate was granted of Mrs Caralis' will made on 7 December 1995 and a copy of an informal codicil dated 22 December 2000. Mrs Caralis appointed her daughter, Christina, as her executrix. She gave to Christina the property in Bexley Road, Earlwood, all personal household effects and articles of personal use, and, by her codicil, the balances in her bank accounts and cheque account and any term deposits. She left the residue of her estate in eight separate shares as follows: 22 per cent for Christina Hatzopoulos; 20 per cent for her granddaughter Zoe Hatzopoulos, the daughter of Christina Hatzopoulos; 20 per cent for her granddaughter Pota Hatzopoulos, the other daughter of Christina Hatzopoulos; 10 per cent for her daughter, the plaintiff, Helen Haskakis; 10 per cent for her son James Caralis; five per cent for her granddaughter Maria Megaloudis, the daughter of Helen Haskakis; 12 per cent for her son, Bill Caralis; and One per cent for her grandson George Caralis, the son of Bill Caralis, upon his attaining the age of 18. 1. The value of the net residuary estate, subject to the costs of these proceedings, is approximately $2,360,000. That is, if the plaintiff had not instituted these proceedings, she would have received approximately $236,000 under her mother's will. 2. The defendant's solicitor estimates that the defendant's costs of these proceedings are approximately $198,000. Thus the net residuary estate after payment of the executor's costs is approximately $2,162,000, and the plaintiff's share is approximately $216,000. The plaintiff's solicitor estimates that the plaintiff's costs of these proceedings are approximately $221,000. 3. The costs on both sides appear to be out of proper proportion to the size of the estate, the size and nature of the plaintiff's claim, and the issues. The plaintiff says that excessive costs have been incurred because the defendant has put into evidence barely peripheral matters to which she has had to respond. The defendant says that she has had to respond to similar matters put into issue by the plaintiff and has incurred excessive costs because the plaintiff has failed to make proper disclosure of her financial position and failed to comply with the Court's procedural orders. Prima facie it appears to me there is some substance in both parties' positions. I may deal with these matters when I deal with questions of costs. 4. Helen is 71. She owns her own house in Earlwood and has no significant debts. She is separated but not divorced from her husband Loukas Haskakis. She depends for her income on the age pension. Her husband has provided some additional income support. He pays her rates and has contributed to some of her other expenses in a small way. In the last 20 years Helen has had an extensive medical history with frequent hospital admissions and suffers significant disabilities. She has a degenerative condition of rheumatoid arthritis and has serious difficulties in remaining mobile. She has had periods in which she has been confined to a wheelchair and presently walks with difficulty and needs walking sticks. She takes powerful painkillers. She was financially independent of her mother since she married and left home in 1962 at the age of 18. 5. Helen's relationship with her mother was the principal matter of dispute. Christina contends that for long periods Helen was estranged from her mother, that she behaved disgracefully towards her mother, that she was hostile and callous to her mother and caused her mother deep distress, such that she has no moral claim on her mother's estate greater than the provision made for her in the will. Subject to minor qualifications, Christina did not say that the other principal beneficiaries under the will have competing financial needs. She and her brothers said that they did not put their financial circumstances in issue, meaning, as I understood it, that they did not submit that they had financial needs that should be met from the estate that were in competition with the plaintiff's claimed financial needs. Rather, Helen's claim was defended on the basis that Mrs Caralis had made a careful assessment of the competing claims of her children and grandchildren on her estate and was best placed to assess the merits of those claims. Further, notwithstanding Helen's disabilities and asserted financial needs arising from those disabilities, her conduct towards the deceased and the asserted absence of a close relationship between them meant that the plaintiff was not entitled to any additional provision from the estate. 6. I have concluded that having regard to her financial position and disabilities and notwithstanding her conduct towards and strained relationship with the deceased, the provision made for Helen in the will is not adequate for Helen's proper maintenance and advancement in life. In lieu of her entitlement under the will I will make an order for provision out of the estate in favour of Helen by way of a pecuniary legacy of $416,000. Family history 1. Mrs Caralis was born in Greece. She told her granddaughters, Zoe and Pota, that when she grew up in Greece she was treated harshly by her mother, grandmother, grandfather and uncles. It seems that her father had moved to the United States. Mrs Caralis married her husband, George Caralis, in Greece in about 1940 when he was 35. She would have been about 19. Bill was born in about 1941. Helen was born in 1944. They emigrated to Australia, presumably after the War. 2. Mr Caralis established a business as a fruit merchant distributing fruit and vegetables, but later acquired adjoining properties in Kingston Road, Camperdown. The adjoining properties consisted of two shops and residences. Mr Caralis conducted a mixed business from the shops. One of the properties was subject to a protected tenancy and the Caralis family lived in the other property. 3. Helen left school and started working at the age of 14 years and 10 months. She was 16 when her father died. She married Loukas Haskakis in November 1963. Helen said that her mother disapproved of her socialising and told her that if Loukas Haskakis wanted to take her out, he would have to marry her. 4. Helen's and Loukas Haskakis' wedding was attended by Mrs Caralis and Bill Caralis. The wedding was held in a registry because Mr Haskakis' parents were in Greece and it would have been disrespectful to have held a church wedding in their absence. According to Helen, on arriving home after the wedding Mrs Caralis told her that she and her husband had to leave so as to avoid any serious argument between Loukas and Bill. She and Loukas moved the next day and found a place to rent about 100 metres around the corner in Camperdown. 5. Christina deposed that her mother told her that Helen had been a disobedient child and was eager to leave the family home which she did as soon as she could after she had met Loukas Haskakis. 6. A few months later Helen and Loukas moved to Stanmore. About two years later they purchased a house in Summer Hill. Mrs Caralis was asked to act as guarantor of their loan and agreed to do so. That enabled Helen and her husband to borrow the necessary funds to purchase the Summer Hill property. It was not suggested that the guarantee was ever called on. 7. Christina gave evidence that from the time Helen moved out of the house with Loukas, she had no contact with her mother for about two years, that is, until she asked her mother to act as guarantor. Helen disputes that and I do not accept Christina's evidence in this respect. Christina at the time was about 10 or 11. I accept Helen's denial of Christina's assertion. As Helen said, she and her husband had moved just down the road from her mother and relations remained sufficiently good that her mother agreed to provide a guarantee. 8. Loukas Haskakis' parents arrived in Australia in 1965. There was then a formal wedding ceremony held in the Greek Orthodox Church in Redfern attended by the whole family. 9. Helen's first son, George, was born in August 1967. Christina deposed that Helen and her mother were not on speaking terms before the birth and neither she nor her mother had been informed of the impending birth and had had no knowledge of it when it happened. Helen said that to the best of her recollection her mother visited her at least twice while she was in hospital, including on the day George was born and brought her a gift and told her that she would buy her a washing machine when she got back home, which she did shortly thereafter. 10. In August 1967 Christina was only 13. I prefer Helen's evidence in this respect. 11. In September 1969 Helen gave birth to a daughter who died about a week later. Helen said that she was thankful to her mother for assisting her through a difficult time. On 15 April 1970 Helen gave birth to her daughter Maria. The birth was difficult and Helen deposed that she was given assistance by her mother. Christina said that her mother was not involved in either of those births and that neither she nor her mother was aware that Helen had lost a child until Helen revealed it decades later. I accept Helen's evidence that her mother did provide her with assistance in respect of both births. That is to say, I do not accept that at this stage relations between Helen and her mother were as estranged as Christina deposed. 12. In about the mid-1970s Mrs Caralis sold the mixed business that she had carried on after her late husband's death. After the business was sold Mrs Caralis provided Helen and Loukas with a gift of $3,000 to enable or assist Loukas to buy a taxi plate. Helen said that at that time Mrs Caralis helped all of the children. Mrs Caralis visited Greece in 1978. The circumstances of that visit gave rise to a feeling of bitterness on the part of Helen towards her mother. Helen's letters to her mother 1. Christina produced two handwritten letters which she said had been written by Helen to her mother: one in the 1980s and another sometime in the mid-2000s. In her affidavit of 5 March 2014 Helen said that she recognised the second letter as one written by her to her mother in the early 2000s at a time when she was angry and upset. She deposed: "My health was deteriorating and Mum had promised to help me but she wasn't. Dad had owned a large property in Greece which Mum decided to sell. She said to me words to the effect: 'When I sell the property [Dad's property in Greece] I will give you assistance so you and George and Maria will be secure.' Mum went to Greece and sold the property but when she came back, said to me words to the effect: 'I made no money on it. All the money went in fees. There is nothing.' I was of the opinion that Mum was not being truthful to me about that, that she had put the money aside or spent it on something else. This upset me as again I felt cheated." 1. When asked about this letter in cross-examination Helen retracted the admission that she wrote the whole of the letter. She said she only wrote one page, not all three pages of the letter. Later, she accepted that all three pages were in her writing. In the letter Helen accused her mother not only of procuring under false pretences her signature to a document that her mother needed in order to obtain the Greek property, but also of having robbed her of an inheritance that her father had left her in his will and of denigrating her to her mother-in-law, resulting in her becoming ill and causing her marriage break-up. The letter included the following: "I am writing to you about my property that my father left for me to have but unfortunately you took my property twice. My father left me a house in his will but you destroyed his will and made a new will with your son's false signature. Gone was my house and I was put in the street with my husband at 18½ to fight for my life. One big hell of a shock that was. If that wasn't enough you [approached] me around 1978 when I was working very hard in the garage at St. Peters. I had a high mortgage to pay on the house, rent for my husband's business and two young children to care for. You came to me several times to sign for property of my father's he had in Greece, Sparta. After you came several times you convinced me that if I [signed] the paper, I had a good share to get. Again after coming several times you managed for me to sign under false pretences promising me that I would get my share 100 percent. So I signed. […] You led me to believe that I had a good share of my father's huge property in Greece. You were 100% sure. […] I would like you to return all my property back to me with interest. I will be waiting as I have become very ill of all the worry that you gave me. I am on the pension and that is not enough to live on. My illness requires a lot of money […] which I haven't got. […] You also cursed, laughed and bad-mouthed me to my mother-in-law for 25 years all the time she was in Australia and my children as well resulting in me becoming very ill and my children suffered too and my marriage break-up. I have witness to prove it and also my mother-in-law told me so when I went to Greece in 1989 […] so do the [r]ight thing by me and return all the property house in will father's share of his huge property in Greece with interest because I need it. You made me severely suffer a whole lifetime and made your sons millionaires from 1968 and your daughter as well […] The story that you told me when you came back from Greece 1978 was very untrue. Shame, shame, shame that you could do this to me when I was severely struggling and you were living in a palace paid off […] and God only knows what else you had while I had nothing. You only wanted my share of money that my father left me to furnish your palace further and to see me suffer. You brought back 10 huge bags of goods your son told me. Brought me nothing. Shame, shame, shame. Only one jumper my poor aunty Helen gave you to give to me. If I hadn't put my signature down you wouldn't [have] got one cent from my father's huge property in Greece. So you do the [r]ight thing and give me back everything that you owe me with interest, instead of sitting in your palace thinking how mu[c]h you fooled me and laughing at me. Shame, shame, shame." (Spelling corrected and punctuation added.) 1. In her affidavit of 5 March 2014 Helen admitted having written two angry letters to her mother, the first having been written in the 1980s. In relation to that letter she deposed that her father had told her that he owned a house on the other side of the street from Kingston Road, Camperdown and one day would be giving it to her. She deposed that after her father died she did not get a house of her own, whereas her brothers did and that Christina was also well looked after. She said that she could see that they were prospering while she worked very hard and was getting nowhere financially and the unfairness of the situation made her angry. She deposed that she recognised the first half of the first page of the letter annexed to Christina's affidavit as being part of the letter which she wrote, but denied the authenticity of the balance. 2. Christina applied to the Court for an order for the appointment of a handwriting expert to determine whether the letter was in the handwriting of Helen. On 30 May 2014 Hallen J dismissed that application, but did so only after recording that apart from passages in the letter that were marked, Helen recognised that the balance of the handwriting was hers. The handwriting to which she admitted was as follows: "To Mrs Pota Caralis I am writing this letter since you haven't got the guts to speak to me on the phone, you keep hanging up on me. You have brought me so far now I'am [sic] going to speak up. Remember. Mrs Mafia how you changed the will with a false signature after my father died Jimmy's signature." 1. In cross-examination Helen denied that the words "I am writing this letter since you haven't got the guts to speak to me on the phone, you keep hanging up on me" were in her handwriting. This was notwithstanding the formal admission made on her behalf in response to Christina's application for the appointment of a handwriting expert. In oral evidence Helen admitted that part of the letter was in her handwriting. The part she admitted to be in her writing were the words which immediately followed the words set out at para [25] above. She had formerly disputed that the words were in her handwriting. After the words set out at para [25] above the letter continued: "Well in the will my father left me a house when I get married. So far I have received nothing." 1. It appears that the reason Helen admitted that she wrote those words was because she said that that was what her father had told her. The reason she denied writing the other words was that at the time of giving evidence she could not accept that she would have written what appeared. 2. On Helen's oral evidence she wrote some words in the middle of a page, but words which appear to be in the same handwriting that are both above and below the words she admits having written must have been written by someone else. The originals of the documents have been produced. The whole of the page in question was written in the same ink and appears to be in the same hand. The substance of the complaints made are the same as the complaints made in the later letter. It is clear that at least the first two pages of the first letter which are in the same ink and appear to be in the same hand were written by Helen. The reason Helen denies the authorship of the letter is because she does not want to own the language used. I reject her denial of authorship of those pages. 3. After the passage referred to in para [26] above the letter continues: "Make sure you better give me my share now otherwise I will take you to court. And to Miss Chriss, who in the hell do you think one of you little brats Pota coming in my house saying I know all about you when I was lighting a cigarette my mother and grandmother told me all about you when you were little. After your mother put me in the street and I worked 40 years to put myself in my house your little brat Pota came along nicely saying this to me? Well have one thing in mind, I am not going to let you have the house etc. etc. etc. What your mother has for you I am going to fight you'ks [sic] in court starting right away with the false will. I have inquired about it and proceedings are on the way. I am not going to let youks [sic] rest unless I get my share my father left me. From your daughter your [sic] say you haven't giving birth too [sic] Helen." [punctuation added.] 1. The explanation for this part of the letter is that Helen had come to their mother's house in the 1980s and had refused to leave it, claiming that it was her father's home and she had a right to it. Christina's daughter, Pota, who was then about eight years old told her to leave and Helen swore at her and at her mother and Christina. 2. The handwriting included in the margin the words "turn-over". On the back of the paper was written "I fell from the sky". 3. Christina deposed that the handwritten letter from Helen to her mother consisted of two further pages. The two further pages are in a different ink, but appear to be in the same handwriting. In particular, the formation of the capital letter "E" is strikingly similar to the letter "E" appearing in the earlier pages. These pages have clearly been kept for a considerable period of time with the first two pages (having regard to the fold marks). Helen asserts that these pages are in a different handwriting from the handwriting she admits is hers. But she opposed Christina's application for a handwriting expert. Having regard to the similarity of the handwriting, the unreliability of Helen's evidence about the handwriting on the documents, the fact that the further document expresses the same sentiments, albeit in more colourful language, and the inherent unlikelihood that somebody else would have forged the document, I am satisfied that the additional pages are also in Helen's handwriting. I accept Christina's evidence that the letter Mrs Caralis received in the 1980s from Helen consisted of all of the pages she produced. 4. The additional pages include the following: "And don't think I've forgott[en] when you put me in the street. As soon as I got married. The thousands of dollars starting to roll in, first all the gold you got. With my mother-in-law then living in Australia St […] anyway we will discuss this in court and the big tra[g]edy you caused in my marriage talking about me to my mother-in-law all these years you big fat ruf[f]iana double [indecipherable] bitch from the person that fell from the sky Helen." 1. Over the page are the words "You will pay for what you have done to me I promise you this ruf[f]iana bitch" (spelling corrected and punctuation added.) 2. According to Helen and Christina, "ruffiana" means a two-faced untrustworthy person. 3. Clearly the letters were written when Helen was under stress. I accept Christina's evidence that their mother was upset by the letters. 4. Helen denied that she would ever have used the language contained in these letters. She said that she had never ever called her mother a "big fat bitch" or a "ruffiana" and that if she had, her mother would have called the police on her and never spoken to her again. She said that if she had written those words then her mother would never have acknowledged her, nor left her anything in her will, nor spoken to her at all. She said this was: "Because these are horrific words, I mean, they're terrible words, they're words that you can't even read or repeat to anybody". 5. In summary, Helen's accusations against her mother were that: a) her mother had destroyed her late father's will and procured Helen's younger brother James to forge a will; b) thereby Mrs Caralis had deprived Helen of a property which she should have inherited from her father, being a property opposite the adjoining properties in Kingston Road, Camperdown, consisting of shops and residences; c) Mrs Caralis had spoken disparagingly of Helen to Helen's mother-in-law; d) Mrs Caralis used false pretences to procure Helen's signature to a document that she needed to obtain control of her late husband's property in Greece; and e) following her trip to Greece Mrs Caralis was generous to friends and other family members but not to Helen. 1. Probate of the will of the late George Caralis was granted to Mrs Caralis on 8 December 1961. The probate file was recovered from the Court's archives. The inventory of property showed that George Caralis owned only two pieces of real property, being the adjoining properties on Kingston Road, Camperdown. His will was witnessed by a Dr Atlanasig Papaharalabus and a Mr John Logothetis. Different pens were used for the writing of the text of the will and the signing of the will by Mr Caralis and the two attesting witnesses. The Registrar issued a requisition requiring the applicant for the grant of probate (Mrs Caralis) to "Explain the circumstances surrounding the execution of the will & the use of different coloured ink." Dr Papaharalabus deposed in an affidavit dated 16 January 1962 that: "I confirm that at the time of execution of the Will of the late GEORGE CARALIS dated the Eleventh day of May One thousand nine hundred and sixty both the testator, myself and JOHN LOGOTHETIS the other attesting witness were all present at the same time and the Will was executed and attested by all of us in the presence of each other. The reason for the different coloured inks being used was that we all used our own pens being unaware of any requirements to the contrary." 1. That affidavit was prepared by a firm of solicitors, Charles A Morgan & Co, who acted for Mrs Caralis on the application for probate. That firm prepared the application for probate and the other supporting affidavits. The notion that the will admitted to probate was forged necessarily implies the attesting witnesses were fictitious or they falsely attested Mr Caralis' signature to the will and that the affidavits of Dr Papaharalabus were perjured. This is fanciful. It is also fanciful to suggest that Mr Caralis had owned another property that was not disclosed on the affidavit of assets. 2. The other accusations Helen made against her mother were neither corroborated nor disproved. Given that the first two accusations were baseless I am not satisfied that there was substance to the other accusations. 3. Helen's correspondence was hurtful. Its impact on the evaluative judgment required as to whether the provision made for her was adequate for her "proper" maintenance and advancement in life is addressed later in these reasons. Strained relationship with deceased 1. Both Christina and Bill gave evidence that Helen was largely estranged from her mother. Christina lived with her mother all her life until her mother's death. Christina married in 1975. Her husband moved in with her and Mrs Caralis. Christina had two daughters, Zoe and Pota. She and her husband separated in 1984 and Christina was divorced in 1985. Pota moved out of the house when she married in 2009. Zoe continues to live there. Christina was well placed to observe the frequency and nature of contact between her mother and sister. She gave evidence, which I accept, that for many decades there were sporadic periods of time when Helen and her mother were not in contact and were not speaking to each other and that this was a source of unhappiness for Mrs Caralis. 2. Mr Bill Caralis deposed to his mother telling him that Helen had very limited contact with her and any contact there was usually ended up with his mother in tears. I accept that evidence. 3. Christina also said that from about 2006 and 2007 Helen regularly attended lunch at the family home after church on Sundays. 4. Helen's relationship with her mother was strained, but persisted until her mother's death. Helen's separation from Loukas Haskakis 1. Helen and her husband separated in or around 1994. On 30 June 2004 Helen and Loukas Haskakis entered into a binding financial agreement for the purposes of s 90C(1) of the Family Law Act 1975 (Cth) to operate in substitution for any rights they might otherwise have had to seek property adjustment orders under that Act. Pursuant to that agreement Loukas Haskakis transferred to Helen his interest in the property at Undercliffe Road, Earlwood in which she lives. Prior to the agreement she and her husband were joint tenants of a block of units in Warrawong. She agreed to transfer her interest in that property to Loukas. They agreed to make mutual wills under which each party agreed to leave his or her estate after his or her death to the other, provided the other party survived him or her by 30 days, and otherwise to leave his or her estate to their children. 2. Helen and Loukas Haskakis are not divorced. But Loukas Haskakis has no obligation to provide continuing financial support to her. He has provided some modest financial support. He has paid the rates on the Earlwood property and other expenses and has made small loans from time to time to Helen. 3. The significance of the separation between Helen and Loukas Haskakis is that Loukas Haskakis does not have an obligation to support Helen. Helen Haskakis did not make her separation from her husband known to her mother. Christina swore an affidavit in August 2013. She deposed that she and her mother only became aware of Helen's marital difficulties "a few years ago" when Helen told them that Loukas was in a relationship with another woman. Christina deposed that Helen and Loukas attended various events as a couple, including their infrequent contact with Mrs Caralis. In oral evidence Christina said that in 2008 and in 2011 they attended as a couple. 4. Christina deposed that in 2009 her mother was upset about a phone call she had received from Helen regarding her inheritance. I accept the evidence Christina gave. She deposed that Mrs Caralis said words to the effect "I cannot believe that Helen has asked for her inheritance before I am even in the grave", and also said "Helen doesn't need money because she has a husband who supports her financially". Christina's evidence was that to all appearances Helen and Loukas had a continued relationship as husband and wife. 5. It was Mrs Caralis' perception that daughters, once they were married, were the responsibility of their husbands. Mrs Caralis expected Loukas to provide for Helen. 6. Christina attempted to demonstrate that Helen was receiving ongoing financial and other support from Loukas Haskakis which she had failed to disclose. The non-disclosure was said itself to be a reason for refusing to make an order for provision in the plaintiff's favour. Initially it was asserted that Loukas Haskakis was acting as the plaintiff's carer and drawing a Centrelink allowance for doing so. Christina accepted that that was not the case. But attempts were made to show that Loukas Haskakis was a regular visitor to the plaintiff's Earlwood house; that he had carried out renovations and maintenance of the property; and had provided the plaintiff with furniture. It was established in cross-examination that Loukas Haskakis had paid the rates on the property. Helen accepted that from time to time Loukas provided her with loans of $50 or $100. It was put to Helen in cross-examination that Loukas Haskakis had allowed her to use a credit card in his name. She rejected that suggestion. Loukas Haskakis has paid Helen's electricity bill when she fell into arrears and occasionally paid her Vodafone bill. Helen said that this was done with money she provided, but that evidence was not corroborated and I do not accept it. 7. The evidence of the financial assistance provided by Loukas Haskakis to Helen demonstrates the difficulty she has in making ends meet. By way of example, in 2012 Loukas Haskakis made five payments each of about $90 to Helen's Optus Account; and about $65 in 2013. He paid her rates totalling about $1,580 in 2013 and made two rate payments in 2014 of about $320 and one of about $344. He made one payment of $129.32 towards Helen's account with Energy Australia in 2014 and one payment of $302 in 2012. So far from demonstrating that Helen does not have financial needs because she has the continued support of her husband from whom she is separated, the evidence of his financial support demonstrates that she does have financial needs that are not met from her income and that she has relied upon her husband's goodwill, notwithstanding their separation, to provide her with some financial assistance. There is no assurance that such financial assistance will continue. 8. This is not a case in which the plaintiff's failure to disclose that level of financial support is a reason for rejecting her claim for provision. (Compare Mann v Starkey [2008] NSWSC 263 at [25], [48] and cases there cited.) In this case the financial support not disclosed was minor and only enhanced her claim to an order for provision. 9. An orthopaedic surgeon, Dr James Bodel, reported in 2013 that Helen told him that her "ex husband" (sic) and her children had provided her with domestic assistance for household maintenance and cleaning activities for the last 10-12 years. Plaintiff's assets 1. Following her separation agreement with Loukas Haskakis, Helen became the sole registered proprietor of the house in Undercliffe Road, Earlwood. She attributed a value to that property of between $950,000 and $1,050,000. The defendants contended that the house was worth more than this, having regard to other sales in the Earlwood area. The estimated value of between $950,000 and $1,050,000 was supported by a market appraisal from a firm of real estate agents, having regard to what they consider to be fairly comparable properties. I accept that opinion. But it does not matter to the decision in this case whether the plaintiff's Earlwood property is worth about $1 million or substantially more than that. Apart from her house the plaintiff has little in the way of other assets. She has a few thousand dollars in the bank. She had a small credit card debt. She has no superannuation and is in receipt of the Commonwealth age pension. Plaintiff's disabilities 1. The plaintiff's health problems started in 1992 when she suffered injuries in a motor vehicle accident. In 1993 she was diagnosed with repetitive strain injury in both wrists and underwent surgery. She eventually developed rheumatoid arthritis in her wrists, legs and ankles. Her rheumatoid arthritis is the most serious of her conditions. In 1994 she was diagnosed with gastric ulcers and underwent a day procedure to have them removed. In 1997 a foot reconstruction was undertaken as a result of ongoing rheumatoid arthritis. In 2001 she had a triple arthrodesis operation which involved a complete reconstruction of her ankle. In 2006 she had a full knee replacement. In 2007 or 2008 she broke her hip. In 2010 she fell and broke her wrist. In May 2013 Dr Bodel reported that the plaintiff had pain in all joints. Her main area of pain was in the right hip. She was then in a wheelchair. She was due to have a total hip replacement the following week. Dr Bodel reported that: "Ms Haskakis is a lady of 69 years who is in a wheelchair. She has quite gross evidence of generalised rheumatoid arthritis. This is most clearly evident in her hands and her feet with generalised swelling both synovial and effusions in all of the small joints of the hands. There is quite marked deformity in the hands. She has a very restricted range of movement in all joints of the upper limbs and all joints of the lower limbs. She has reasonable knee flexion and extension where there have been the total knee replacements. She has the arthrodesis of the left ankle and she has had a foot reconstruction although the deformity is returning. In the region of the right hip she has a very restricted painful hip movement associated with the collapsing head of the femur on the right hand side. … I have perused the very extensive hospital file in relation to this lady's rheumatoid arthritis. This confirms the medical management over many years from the various practitioners mentioned in the report above who have been involved in her medical management both from the rheumatological point of view and from the surgical point of view. She is about to have a total hip replacement done next Tuesday on the right hip. DIAGNOSIS This lady has rheumatoid arthritis. This was diagnosed about 18 years ago. PROGNOSIS Her long term prognosis is extremely poor because of the widespread nature of her condition. She is currently wheelchair bound. It is hopeful that once she has the total hip replacement that she will be able to be more mobile again as she was up until about six months ago when the hip became unbearable. OPINION This lady has severe rheumatoid arthritis. This has been present since about the time when I originally saw her which was in July 1995. It was in fact diagnosed prior to my assessment and she was under the care of Dr McNaught. That is now 18 years ago. She has steadily deteriorated over time and now has widespread generalised arthritic change and she is under the care of Professor Youssef at the Royal Prince Alfred Hospital. Her most immediate need is the total hip replacement in the right hip to be done next Tuesday and hopefully that will improve mobility a little. Her clinical condition will steadily deteriorate over time as that is the nature history of this clinical entity." Claimed financial needs 1. In her first affidavit sworn on 8 May 2013 Helen deposed that her fridge was 15 years old, her bed approximately 20 years old and her television four years old, and she had other household items that required replacement. She said that she required the following from her mother's estate to ensure that she was not struggling in her old age. Her claimed needs were: "a considerable amount in excess of $150,000" to be placed in an account so that she could plan for the contingencies of life and noting her current medical conditions; replacement of white goods, TV, bedding and lounge for which she provided quotes coming to a little under $5,000; and removal of asbestos from her garage, interior and exterior painting of her house, new floors to the kitchen, new carpets throughout, and home modification on account of her condition involving levelling of the grounds, levelling of the front and rear steps, removal of a bath/shower and inclusion of a level shower, and kitchen renovation to lower the benches. She attached a quote for painting that inconsistently stated that the total cost would be either $4,000, $4,500 or $7,500. 1. In a later affidavit, sworn on 30 January 2015, the plaintiff attached further quotes to support her claim that the cost of the work she said was required to be done to her house as previously outlined, including painting, totalled approximately $46,330. She attached quotes for the replacement of white goods, a TV, bedding and lounge of $9,125. This included $2,786 for a new seventy inch TV. In her later affidavit the plaintiff deposed that she believed that a considerable amount, in excess of $350,000, was required for her to "plan for the contingencies of life and noting my current medical conditions." She also deposed that "On account of my conditions I will also require an amount so as to meet the recommendations made in the report of Mr Malik dated 29 December 2013." 2. It may be observed that on the claim as originally put forward by the plaintiff as supplemented by quotations for the carrying out of work to her property, the provision made for the plaintiff in the deceased's will would have covered all her financial needs as she then claimed them to be. Ultimately, her claim, as formulated by her counsel, was far in excess of these amounts. Her greater claim was based upon the report of an occupational therapist, a Mr Waqar Malik, who expressed the opinion that the plaintiff was in need of 24 hours per week of assistance for driving, meal preparation, personal hygiene, washing dishes, cleaning, laundry, ironing, shopping and gardening. Mr Malik said that at average commercial rates this would cost $46.77 per hour or $1,122.48 per week. 3. Mr Malik also said that the plaintiff required "relationship therapy" for ongoing problems with engaging in relationships and sexual activity. The assessment would cost in the vicinity of $1,000 and the treatment plan, if proposed, would cost in the vicinity of $4,000. He recommended an "occupational therapy home program" to improve the plaintiff's "tolerances" to household activities, including a graduated activity program, postural and task modification, education and "manual handling". The assessment was expected to cost in the vicinity of $1,000 and if a treatment plan were proposed this would cost in the order of $20,000. He also recommended a "work conditioning program" and/or an "hydrotherapy program" to improve the plaintiff's physical capabilities at a cost of $1,500 for the assessment and $5,000 for any treatment plan. He recommended an "occupational therapy driving assessment" to identify "ergonomic issues with car setup" and appropriate car and equipment modifications and "assistive and adaptive equipment" (sic). This was expected to cost $1,000 for an assessment with a further 20 sessions to cost $3,200. He also recommended that modifications be made to the bathroom in the plaintiff's house and said that the anticipated cost of bathroom and access modifications was likely to be in the vicinity of $20,000. This was three times as much as the quote the plaintiff obtained of $6,500 for bathroom modifications. 4. Counsel for the plaintiff submitted that taking the average life expectancy of a 71-year-old woman of 18.35 years (based upon life tables prepared by a firm of consulting actuaries) and adopting a discount rate of three per cent, the present value of the required future payments of $1,122 per week would be $825,022. In addition, counsel submitted that the plaintiff's needs included the various assessments and proposed treatment plans identified by Mr Malik at a cost of between $29,500 and $57,200 for the special care needs for the plaintiff. He submitted that she had a need for $9,124 for white goods, $46,330 for repairs, painting and modification of her home, and in addition, $350,000 for the contingencies of life. Counsel submitted that in this way the plaintiff's financial need would be satisfied by a provision out of the estate of approximately $1,275,000. He submitted that the provision made under the will of 10 per cent of the residuary estate, or about $216,000 after payment of the executor's costs, was tiny compared with her future needs. 5. There is a false appearance of certainty in these figures. The plaintiff has health issues that could well adversely affect her life expectancy. Although she said that no doctor had ever suggested she was obese, Mr Malik recommended that she have a bariatric lounge chair and a bed designed for bariatric users: bariatrics being a branch of medicine concerned with the causes and treatment of obesity. Having regard to the plaintiff's medical history I am not satisfied that it would be appropriate to apply the average life tables in making assumptions as to her life expectancy. No evidence was adduced in relation to her life expectancy. I think that as her condition worsens, which it inevitably will, the plaintiff will have to move to different accommodation where she can be provided with care and assistance with activities of daily living. 6. I accept that the plaintiff has a need for domestic assistance. It appears that in the past, when Loukas Haskakis visited the Earlwood house, he provided some domestic assistance, as did the plaintiff's children. But any such assistance is irregular. Loukas Haskakis and the plaintiff are separated, but remain on cordial terms. I accept Helen's evidence that they live separate lives. He retains a key to the Earlwood house, he mows the grass and has lent Helen his car. But I accept Helen's evidence that they live separate lives. 7. Helen did not give evidence as to whether she would be prepared to accept all the support Mr Malik thought she needed, or would be willing to accept all the therapy he proposed. 8. The evidence establishes that there are numerous retirement villages or facilities which provide residential low care accommodation. The apartments or residences are typically smaller than the plaintiff's current house. The cost of such accommodation is substantially less than the value of the plaintiff's house. The cost of such accommodation varies from approximately $350,000 or $400,000 to about $650,000. 9. The defendant submitted that the present availability of such accommodation indicated that there was no current need for the plaintiff to obtain additional provision from the estate because she should sell her Earlwood house and move into such accommodation which would eliminate the need for moneys to be spent on the modification of her house and, so it was suggested, eliminate the need for the provision of services indicated in Mr Malik's report. 10. It seems to me perfectly reasonable that the plaintiff should wish to stay in her own house where her children and grandchildren can visit her for as long as she can. But I think it unlikely that she will be able to continue to do so for the next 18 years or anything like it. There can be no certainty about how long the plaintiff may be able to remain living where she is or what services she might need. 11. Parts of the plaintiff's claim as to her financial needs are excessive. For example, her claim that she has a need to replace her four year old TV with a new 70 inch TV is extravagant. But having regard to her medical condition, there is a need for alterations and repairs to be carried out to her house and she has a need for a considerable sum for paid help, for assessment and treatment, and to meet contingencies. It is not possible to quantify that amount with precision. Moreover, the plaintiff's strained relationship with her mother, and her conduct towards her mother, are factors that reduce what would otherwise be assessed as her need for "proper" maintenance and advancement in life. There are also competing claims on the estate. Relevant principles 1. The question under s 59 of the Succession Act 2006 (NSW) is whether adequate provision was made in the deceased's will for the "proper" maintenance or advancement in life of the plaintiff. Section 60 lists a wide range of matters to which the Court may have regard in determining whether a family provision order should be made, and, if so, what that order should be. I deal below with such of those matters as is relevant to the present case. 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). 2. For the reasons I gave in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253 at [127], respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate (Stott v Cook (1960) 33 ALJR 447 at 453-454 per Taylor J; Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 20 per Dixon CJ). Mrs Caralis would have known the true state of the relationship between her and the plaintiff, whereas I have to assess as best as I can where the truth lies, having regard to the conflicting versions given by Helen, Christina and Bill Caralis. As Dixon CJ said in Pontifical Society for the Propagation of the Faith v Scales the Court itself can never be certain that it knows all the circumstances, and most probably it knows few of them. Mrs Caralis' will shows that she gave careful attention as to who should be the beneficiaries of her estate and what proportion of her estate each should inherit. Considerable weight should be given to the fact that the deceased made such a careful assessment. 3. However, the question whether adequate provision was made for the plaintiff's proper maintenance and advancement in life has to be made as matters now stand, not as they stood at the time Mrs Caralis made her will. The will was made on 7 December 1995. By an informal codicil dated 22 December 2000 Mrs Caralis made a specific gift to Christina of the balance of her death of her bank accounts and any term deposits. Otherwise no amendment was made to the terms of the will. After Mrs Caralis made her will Helen's medical condition significantly worsened. Clearly, Mrs Caralis knew of the worsening of Helen's medical condition because they remained in contact. 4. The other significant change was Helen's separation from Loukas. It appears that Mrs Caralis did not know of the separation until the last few years of her life. There is no evidence that she reconsidered her testamentary intentions in the light of these changes. 5. I turn then to the matters under s 60(2) that may be considered by the Court insofar as they are relevant. Section 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." Relationship with deceased 1. The nature of Helen's relationship with her mother is of great importance. I have found that although there was never a complete separation, relations between Helen and her mother were strained and that Helen's demands and complaints caused her mother distress. Helen's insulting and hurtful correspondence might be thought by some to show such a lack of love and respect, and such a willingness to wound, as to disentitle her from Mrs Caralis' testamentary bounty. That was not Mrs Caralis' view. But I infer that the first letter would have influenced her in her assessment of Helen's claim on her testamentary bounty and it is quite possible that the second letter might have influenced her not to change her will to adjust the provision made for Helen, notwithstanding Helen's changed circumstances. 2. Judges have tended to expect the hypothetical "wise and just testator" to demonstrate considerable understanding and forgiveness of filial estrangement or abuse. In Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Holland J said (at 540) that: "A wise parent will recognize that perfect harmony between parent and child is in the nature of things not to be looked for … 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." 1. That was not said in the context of a case involving potentially disentitling conduct. Nonetheless, the elevated and detached spirit in which a wise and just parent is expected to act has been applied to such cases. In Wentworth v Wentworth (Bryson J, Supreme Court of New South Wales, unreported, 14 June 1991, BC9101896) Bryson J made the following observations which his Honour, when a Judge of Appeal, repeated with the agreement of Santow and McColl JJA (Wheatley v Wheatley [2006] NSWCA 262 at [22] and [23]): "[22] In Wentworth v Wentworth, Estate of G . M. Wentworth (unreported 14 June 1991) I made these observations on estrangement or hostility between a testator and his adult child. I do not regard a state of estrangement or even hostility as necessarily bringing an end to any moral duty to make provision for an eligible person, whether wife, son, daughter or other. When there is an estrangement the application of s 7 requires that it should be appraised and its causes should be considered. A long-standing severance of a relationship with a parent, or even a clearly-established termination of all communication is not in the present age regarded as necessarily putting an end to moral duty; it may do so, but whether it does calls for appraisal in each case and is not reduced to a clear principle. Respectful submission to paternal wishes, even if they are reasonable, is not a condition of paternal duty. A whole view of the relationship and the character and conduct of both parent and child should now be taken, and the influence of character can be complex. Sometimes people's characters cause them to be poorly disposed towards their parents, and the influence of this on a parent's moral duty is not solely adverse to the child: people's behaviour is influenced by their characters in ways from which few can escape, and of all people their parents have had most time and opportunity to influence character, understand it, become reconciled to it and tolerate its workings when unpleasant. In another age a different interpretation of the community's sense of moral duty was probably correct, but it is my task to interpret moral duty in my own times. The idealised just and wise testator of the present age knows now that he should not expect submission to his wishes, and knows that his children will be themselves no matter whether he likes it or not, and that they will feel free to interact with any hostile or unreasonable conduct of his own. Courts no longer attribute the characteristic of being stern to the idealised testator, reflecting a marked change in perceptions of moral duty since 1910 when Edwards J spoke in Allardice v Allardice (1910) 29 NZLR 959 at 973 of a father who was just and stern but not loving. Long periods of hostility or estrangement are not inconsistent with successful applications and the contribution of the testator is examined: see for examples Gorton v Parks (1989) 17 NSWLR 1; Howarth v Reed, Powell J unreported 15 April 1991. [23] This passage was not commented on adversely in the leading judgment in the Court of Appeal, which varied my orders: Wentworth v Wentworth (unreported 3 March 1992). Although it is no longer appropriate to epitomise the test in s 7 by speaking of moral duty, the observations I then made continue to express my view." 1. On the appeal in Wentworth v Wentworth (Court of Appeal, unreported, 3 March 1992, BC9202033) Priestley JA (with whom Samuels AP and Handley JA agreed) said (BC9202033 at 31): "There is one passage in Bryson J's reasons on this aspect which I think it best to set out in his words. In it, after making the point that long periods of hostility or estrangement do not necessarily mean that an application under the Act must fail, and that it is always necessary to consider the extent to which the parent has contributed to the estrangement, he went on: 'It is necessary to draw deeply on reserves of toleration and patience before becoming prepared to make any provision at all for a daughter who wrote to her father, in the year before he died, "You destroyed my mother doing it, and you have destroyed me. You are a disgrace to the human race, utterly amoral, and totally corrupt. You always have been" and "How about one moral, honest act in your life, in expurgation of a lifetime of corruption and lies" and other enormities. If the plaintiff had any real control over her conduct and her engagement in argument and conflict, this behaviour would have extinguished the testator's duty to make provision for her. But she cannot stop herself The plaintiff's propensity for involvement in conflict and litigation has elements of a disability, an incapacity for successfully grappling with life, and the plaintiff's claim is in the special class of claims by adult sons and daughters who are in some way disabled and in need of favourable parental treatment.'" 1. Priestley JA also said (BC9202033 at 39): "One of [the primary judge's] tasks was to determine whether the plaintiff's behaviour to the testator had extinguished the testator's duty to make provision for his daughter. Obviously the relationship between the two of them was of critical importance to this decision, and to that relationship they brought their own temperamental inadequacies. In particular the testator, to whom the law attributes a judgmental position, ought to have taken account of those temperamental deficiencies which he knew the plaintiff to possess; and these manifested themselves very largely in responses which from others could have been explicable only on the basis of deliberate malice and ill-will but which in her case were, in some degree at least, to be attributed to the temperamental defects which the learned judge identified." 1. His Honour concluded (BC9202033 at 59): "The view I have arrived at is that the testator, acting wisely and justly, and being entitled, as Bryson J found, to regard the plaintiff's conduct during the last year of his life in particular as undutiful and hurtful to an extent bearing heavily on the amount of the provision he should make and bearing in mind also that he had previously made provision which, with good management, should have needed no supplement, but bearing in mind also that neither of his other two children was in need of any further provision, should have left to the plaintiff by his will a legacy of $100,000." 1. On a later application by Ms Wentworth for an order for additional provision under s 8 of the Family Provision Act 1982 (NSW) on the ground of a material change of circumstances (Wentworth v Wentworth (1995) 37 NSWLR 703) Cole JA was less tolerant. His Honour said (at 746): "For my part, I would not have accepted, as Bryson J and the Court of Appeal did, that a familial relationship in some fashion enables one to diminish the attitude of, conduct of and writings of by Miss Wentworth to her father. She accused him of criminal conspiracy, wrote to him in 1988 that he was 'a disgrace to the human race, utterly amoral, and totally corrupt. You always have been', and suggested that he do 'one moral, honest act in your life, in expurgation of a lifetime of corruption and lies'. In my view, her conduct over the years preceding the testator's death, and in particular the writing of the two letters to which I have referred coupled with her making complaints causing her father to be questioned regarding whether he had engaged in a conspiracy at a time not long before his death, so destroyed any relationship which she might have had with her father that she surrendered any claim upon his bounty." 1. The passage from the judgment of Bryson JA in Wheatley v Wheatley quoted at [77] above was referred to with approval by the Court of Appeal in Foley v Ellis [2008] NSWCA 288 at [102] where Sackville AJA, with the approval of Beazley and Basten JJA, said that: "The authorities indicate that where the claimant has been estranged from the testator or testatrix, the application of s 7 of the Family Provision Act requires that the estrangement be appraised and its causes considered: Wentworth v Wentworth, Estate of G .M. Wentworth (unreported 14 June 1991, Bryson J) quoted in Wheatley v Wheatley at [22]. In addition, s 9(3)(b) expressly requires the character and conduct of the eligible person to be taken into account at the second stage of the process. Care should be taken, however, not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of the raw emotions experienced at the time. The 'wise and just' testator or testatrix (Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478–479 per Lord Romer) must be taken to understand this." 1. In Foley v Ellis the Court of Appeal set aside the order of the primary judge dismissing the applicant's claim for additional provision out of the estate, notwithstanding an intemperate letter (described by the primary judge as "gratuitously cruel") noting that "… whatever the rights and wrongs of the incident that gave rise to the letter, the appellant and the testatrix maintained regular contact for years after it had been written." (at [104]). 2. In Hughes v National Trustees, Executors and Agency Co of Australasia Limited (1979) 143 CLR 134 Gibbs J, with whom Mason and Aicken JJ agreed, said (at 156): "The question whether conduct is sufficient to disentitle an applicant to relief must depend not only on the nature of the conduct itself, but also, to some extent, on the strength of his need or claim to provision from the estate of the testatrix. The stronger the applicant's case for relief, the more reprehensible must have been his conduct to disentitle him to the benefit of any provision." 1. In Wheatley v Wheatley, Bryson JA said (at [37]) that the poor state of the relationship between the deceased and the plaintiff illustrated by their lack of communication even when the plaintiff was aware that her parent was seriously ill operated to "restrain amplitude in the provision to be ordered". 2. On the other hand, there is no rule that, irrespective of a claimant's need, the size of the estate and the existence or absence of other claims on the estate, a claimant is not entitled to "ample" provision if he or she has been estranged from the testator. Cases are infinitely various and the effect of estrangement between a claimant and the deceased, of hostility between a claimant and the deceased, or abuse by a claimant of the deceased, will depend on the circumstances (Kay v Archbold [2008] NSWSC 254 at [95]). 3. I do not accept that the hostile and abusive correspondence from the plaintiff disentitles her to a claim for further provision from the estate, notwithstanding her expostulations in cross-examination that if she had written the first letter calling her mother a "bitch" and a "ruffiana" (as I have found she did), they would so have offended her mother that she would have been cut out entirely. However, the correspondence and the strained and difficult relationship the plaintiff had with her mother that was a source of distress to her mother are factors militating against amplitude (to use Bryson JA's expression) in an order for provision. Obligations or responsibilities owed by the deceased to the applicant or to beneficiaries of the estate 1. The deceased did not have any obligation or responsibility to make provision for the plaintiff in addition to the moral responsibility of a parent to her child. This is not a case in which a promise of testamentary benefaction was made or the applicant, to the knowledge of the deceased, changed his or her position in the expectation of an inheritance. The question raised by s 60(2)(b) is the very issue to be determined in the case. 2. Relevant to that determination are the moral obligations of the deceased to her other children and grandchildren. Mrs Caralis was closest to Christina and to Christina's daughters. They lived with the deceased all their lives until Pota's marriage, and Christina and Zoe lived with the deceased and cared for her until her death. Although there was a temporary estrangement between the deceased and Pota owing to Pota's marrying a man who was not Greek and not of the Orthodox faith, that was resolved. The bond between Mrs Caralis and Christina was very strong. Mrs Caralis' bond with Pota and Zoe was also strong. 3. Mrs Caralis' relations with her sons was less clear. Bill Caralis gave evidence primarily directed to establishing the poor relations between Helen and her mother. In cross-examination he denied that he and his mother were not on good terms and said that he and his mother were always close. He said that his mother rang him before a name day (I infer either his or his children's name days), that he had a passion for buying his mother the finest perfumes and she would remind him "Don't forget the girls here". Bill Caralis also gave evidence in cross-examination that it was on his recommendation that his mother bought her Marrickville property which was adjacent to a property purchased by him. 4. Bill was instrumental in assisting his mother after his father's death. 5. James did not give evidence. 6. Zoe admitted in cross-examination that at times, although not always, Mrs Caralis expressed the view to her (Zoe) that there was a lack of love emanating from Bill to her (Mrs Caralis). Zoe also said that Mrs Caralis felt that James did not often express his love to her. These were things Mrs Caralis complained about. I accept Zoe's evidence in this regard. I accept that from Bill's perspective he was close to his mother, albeit that Mrs Caralis felt that he did not show his love as often as she would have liked. There was no evidence of estrangement between Mrs Caralis and either of her sons. 7. Mrs Caralis had moral obligations to her sons Bill and James as well as to Christina and Helen. But unlike Christina, they were both independent. Their relationship with their mother was not like Christina's. There is no suggestion that they suffer any disabilities or have any comparable financial need to that of the plaintiff. They are both wealthy. Other matters under s 60(2) 1. The nature and extent of the deceased's estate is set out earlier in these reasons as are the financial resources and financial needs of the plaintiff. She is not cohabiting with any other person. Her physical disabilities and age are set out earlier in these reasons. She has no intellectual or mental disability. She made no contribution to the acquisition, conservation and improvement of the estate of the deceased, or to the deceased's welfare. She has not received provision from the deceased during the deceased's lifetime, although the deceased assisted Helen and Loukas Haskakis to acquire their first house by providing her guarantee. No testamentary promise was made to the plaintiff. The plaintiff was not being maintained by Mrs Caralis before her death. She had been financially independent of her mother since she married. There is no other person liable to support the plaintiff. Loukas Haskakis has provided a small level of financial support, but has no liability to continue that support. The character and conduct of the plaintiff so far as it affects her relationship with the deceased has been described earlier in these reasons. Conclusion 1. The question of what provision for the plaintiff's maintenance and advancement in life is proper having regard to all of the circumstances of the case cannot be answered in any logical or reasoned way. It involves an intuitive or evaluative judgment that is not assisted by appeals to community standards or community expectations. 2. Having regard to the plaintiff's financial position and medical condition I consider that the provision made for her in the deceased's will is not adequate for her proper maintenance and advancement in life, notwithstanding her strained and difficult relationship with her mother and her conduct towards her mother. 3. If there had been no litigation the plaintiff would have received approximately $236,000 from the estate. In my view a further $180,000 would have been a provision that would have been adequate for the plaintiff's "proper" maintenance and advancement in life. In arriving at that figure I take into account the uncertainties concerning the plaintiff's life expectancy, the period for which she might be able to continue to live at home, and how much assistance the plaintiff might need or be prepared to accept. I accept the plaintiff's need for a sum of about $46,000 for repairs and modifications to her house and her need for a substantial sum for contingencies of life. I also moderate the provision to which the plaintiff might otherwise have been entitled by reason of her conduct towards and her relationship with the deceased and competing claims on the estate. Any attempt at further rationalisation by attributing specific sums for particular needs, discounting them for uncertainties, and moderating them for the plaintiff's conduct towards and relationship with the deceased and competing claims on the estate, would be intellectually dishonest. 4. I do not consider that the plaintiff's share of the estate should be reduced by her being required to bear a proportion of the executor's costs of the proceedings. I consider that in lieu of the provision made for the plaintiff under the will she should receive a legacy of $416,000. 5. Prima facie, the plaintiff will be entitled to her costs out of the estate on the ordinary basis. I do not think that she should receive any additional legacy to reflect any difference between her liability to her solicitor and counsel for costs and the amount she might receive on assessment. The plaintiff's costs are excessive. But the excess is due in part to the plaintiff's own default in the conduct of the litigation. 6. The costs order might of course be affected by any offer of compromise or Calderbank offer, but that is a different question. 7. The burden of the legacy in favour of the plaintiff should be borne as to $236,000 out of the residuary estate in the proportion in which the other residuary beneficiaries will now share the residuary estate. Each of their shares will be increased proportionately to reflect the fact that the plaintiff is no longer a residuary beneficiary. (The other beneficiaries' shares would be multiplied by 1.11 repeater.) As to the remaining $180,000, having regard to the evidence of the financial position of the beneficiaries and the evidence of the relationship between the other beneficiaries and Mrs Caralis, I think it appropriate that that burden be borne equally by Bill and James Caralis. 8. I will hear the parties on costs. The parties have spent in costs more than double the increase in the provision awarded. The nature of the jurisdiction encourages and sometimes mandates the wastage of estates in costs. Even so, having regard to what I prima facie consider to be the excessive amount of costs incurred in relation to this matter, it may be necessary to make special costs orders, or to give directions to a costs assessor. Conclusion and orders 1. For these reasons I order that: 1. In lieu of her entitlement under the will of Mrs Pota Caralis, provision be made for the plaintiff out of the estate of Mrs Caralis by way of a pecuniary legacy in the sum of $416,000. 2. The burden of the plaintiff's legacy be borne: a) as to the sum of $236,000, by the remaining residuary beneficiaries in the proportions in which they are entitled to the residuary estate; and b) as to $180,000, between Bill and James Caralis equally out of their shares of the residuary estate. 3. If the legacy to the plaintiff under order 1 is not paid within 30 days, interest on the legacy be paid at the rate prescribed for the purposes of s 84A of the Probate and Administration Act 1898 (NSW) from 30 days after the date of these orders. 1. I will hear the parties on 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: 29 September 2015