Supreme Court New South Wales Medium Neutral Citation: McIntyre v O'Regan [2015] NSWSC 1985 Hearing dates: 10 and 11 December 2015 Decision date: 24 December 2015 Jurisdiction: Equity - Family Provision List Before: Stevenson J Decision: Plaintiffs' claims to be dismissed Catchwords: FAMILY PROVISION – claim by adult children against estate of mother – mother made gifts to the proprietor of a complementary healing and training association and to a friend and carer immediately before her death – will made at that time left a little under half her estate to her children and the balance to the proprietor of that association – whether adequate provision made for the children – whether further provision should be made Legislation Cited: Evidence Act 1995 (NSW) Family Provision Act 1982 (NSW) Property (Relationships) Act 1984 (NSW) Cases Cited: Andrew v Andrew [2012] NSWCA 308 Ciric v Ciric [2015] NSWSC 313 Friend v Brien [2014] NSWSC 613 Gersbach v Blake [2011] NSWSC 368 Gorton v Parks (1989) 17 NSWLR 1 Keep v Bourke [2012] NSWCA 64 Lajcarova v Todorov [2011] NSWSC 522 Manuel v Lane [2013] NSWCA 61 McKenzie v Topp [2004] VSC 90 Nowak v Beska [2013] NSWSC 166 Phillips v James [2014] NSWCA 4; 85 NSWLR 619 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; 107 CLR 9 Salmon v Osmond [2015] NSWCA 42 Singer v Berghouse (No 2) [1994] HCA 40 Verzar v Verzar [2014] NSWCA 45 Category: Principal judgment Parties: Sarah McIntyre (First Plaintiff) Seth McIntyre (Second Plaintiff) Serryn O'Regan (Defendant) Representation: Counsel: K Morrissey with L Clarke (Plaintiffs) T Catanzariti (Defendant) Solicitors: Turner Freeman (Plaintiffs) Serryn O'Regan (Defendant) File Number(s): SC 2015/111975 Judgment Introduction 1. This is a claim for family provision made by Sarah McIntyre and Seth McIntyre in respect of the estate of their late mother, Judith McIntyre ("the Deceased"). 2. The Deceased died on 17 June 2014, aged 66 years. 3. The Deceased was survived by the plaintiffs: 1. her son Seth, who is aged 41; and 2. her daughter Sarah, who is aged 34. 1. The Deceased made a will on 3 May 2014, a little over a month before she died. 2. Under the will, the Deceased left to: 1. Sarah, a plaster sculpture, half of her personal effects and $250,000; 2. Seth, half of her personal effects and $190,000; 3. Ms Ingrid Langenbruch, her household contents (not including personal effects) and the right to use her car for one year from the date of her death; and 4. the residue to Mr Serge Benhayon. 1. In April 2014, two months before she died, the Deceased gave Seth $60,000 to assist him with expenses in relation to proceedings in the Federal Circuit Court of Australia concerning custody of and access to one of his children. That money was paid into a solicitor's trust account. Of the $60,000, $41,000 has now been returned to Seth. 2. Between 2 October 2013 and 30 May 2014, the Deceased paid a total amount of $322,259 towards the purchase and improvement of a property registered in Ms Langenbruch's name in October 2013 in Goonellabah, near Lismore. The Deceased lived with, and was cared for by Ms Langenbruch in that property until she died. I will discuss the circumstances surrounding the purchase of that property below. 3. On 7 May 2014, the Deceased paid Mr Benhayon an amount of $800,000 which Mr Benhayon used to make improvements to a teaching auditorium on a property he owns at Wollongbar, between Lismore and Ballina. I discuss the Deceased's relationship with Mr Benhayon below. 4. I will refer to the plaintiffs by their given names. I do so for convenience, and without intending any disrespect. Sarah 1. In 2014, Sarah received a PhD in the area of perceptual processing of tactile motion from the University of Sydney. She is currently a post-doctoral research officer at Neuroscience Research Australia at the University of New South Wales, and also works at the University of Western Sydney. 2. Sarah (and Seth) grew up in the family home in Ryde, in what Sarah described as a "fairly traditional arrangement" whereby the Deceased was "for the most part responsible for the household and raising us children" and her father was the "main income earner". 3. The Deceased and Sarah's (and Seth's) father were divorced in 2009. 4. Sarah commenced university (studying for a bachelor of science in psychology) in 2000. She lived at home for a while, but "eventually got a job and moved out into my own apartment with friends". Thereafter, for the most part, she supported herself. 5. In the meantime, in late 2009 the Deceased moved from Sydney to Myocum, near Byron Bay, where she purchased a property (which I will refer to further below). 6. The Deceased was diagnosed with breast cancer in June 2011. At this time, Sarah was studying for her PhD. 7. Between June 2011 and the Deceased's death in June 2014, Sarah regularly flew to Ballina or Lismore to visit the Deceased (very often the Deceased paid for those airfares). Sarah made some 14 visits during that period, with greater regularity from March 2014 when the Deceased's medical condition deteriorated. 8. Sarah said in her affidavit: "[S]o I could make more frequent and longer visits, I took a leave of absence from my PhD course, and in August 2011, changed my enrolment from full-time to part-time. During this period, I provided emotional and practical support. I took her to various medical appointments including surgery, chemotherapy, radiotherapy, blood tests, and consultations with her surgeon, oncologist and GP. I also did grocery shopping, cooking and laundry when she started to become physically frail. Over time, my mother was able to engage more practical paid support from people who lived locally, both while she was in Myocum and later in Goonellabah when she moved in with [Ms Langenbruch]. When my Mother first met [Ms Langenbruch], she had also previously received treatment for breast cancer, and offered to drive my Mother to appointments. This allowed me to spend less time in a carer's role, which allowed my Mother and I to spend more time together enjoying each other's company. Our relationship became even closer in the period after her initial diagnosis, and after her cancer had spread to her spine in September 2013, we talked about her death, and how we were both feeling about it. We discussed funeral arrangements and how we could make arrangements that would satisfy us both. I was grateful to be able to spend time and say goodbye to my mother before she died, and I was grateful that she was able to engage excellent medical, nursing and household care." 1. So far as concerns the Deceased's intentions in relation to her will, Sarah said in one of her affidavits: "My Mother told me on one occasion in about 2012 or 2013 after her breast cancer diagnosis that she intended to leave a large portion of her estate to the College of Universal Medicine, which was a new Universal Medicine organisation started by Serge Benhayon…, and she wanted to help the college get started." 1. I will return to the Deceased's relationship with Universal Medicine and Mr Benhayon below. 2. Sarah also said: "My Mother told me that under her will she intended to leave money to me and my brother, Seth, to provide a sizeable deposit for a house if we wanted to buy one. She did not tell me the respective amounts, and she did not tell me the size of her estate and I did not ask. I asked her if she thought it would be ok if I decided I did not want to invest in property, but wanted to invest in some other way. She said she thought that would be fine. On a later occasion, she asked how I felt about how she wanted her estate distributed, and I told her that it was her money and she could do what she wanted with it. Despite having said this to my Mother at the time, I was uncertain how I felt about it, but I thought it was important to validate her choices. I believed she had been struggling with a sense of independence since my parents' divorce in about 2009, and was insecure about her own decision making. I wanted her to feel that I had faith in her ability to make her own choices. During my last visit to my Mother before she died, being between the 7th and 14th of June 2014, my Mother said words to me to the following effect, 'I want you to promise that you will not challenge my will'. I said that I would not challenge it. At the time, I was surprised by the question because we had not discussed that possibility before, nor had I ever initiated discussions about her estate previously. She also seemed frightened and anxious when she asked me, which contrasted with her general state of calm and honest acceptance of her illness and likely death. Although I was still uncertain how I felt about her estate, I felt alarmed by my mother's apparent emotional state, and I answered in the way that I did because I didn't want to upset her, or to argue with her." Sarah's financial position 1. Sarah's net income is in the order of $61,000 per annum. 2. She has some $33,000 superannuation and is the joint owner of a bank account with her partner, Gareth Williams, in which there is some $40,000. 3. As to her employment prospects, Sarah said: "For the foreseeable future my employment is short term. Currently I am trained for and I work as a research scientist. In this industry it is common for jobs to be funded by research grants for a fixed term, which is the arrangement I am currently working in. This does not provide any long-term security, as employment is dependent on securing future grants, which primarily are funded by government agencies, a prospect which is far from certain, and difficult to predict. This is particularly true in the current political climate of budget cuts and an indifference to the value of research. One possibility for financial security is to obtain a tenure-track position as a lecturer at a university. However, the industry is small, and positions are specialised and highly contested. Many researchers are forced out of the research industry to find financial security. If I were to change industries, I may need to retrain, spend considerable time looking for suitable work, and would not be guaranteed to maintain my present income. Therefore, there may be periods where I am unemployed until I can secure another contract." 1. Sarah is currently renting an apartment in Darlinghurst where she lives with Mr Williams. 2. Although Mr Williams has a bachelor of science in psychology, he suffers from what he described in his affidavit as a "debilitating chronic psychiatric disorder" which prevents him from working. He has not been employed for many years and is dependent on Sarah. 3. As to her future needs, Sarah said in her affidavit: "My partner and I would like to have children in the future; however due to our unstable financial position we are not able to afford to do this. I have no long-term security in my work and my partner is not able to gain employment due to his severe depression. I would like a contingency fund to assist us in our needs for the future as well as to assist with the expense of raising children in Sydney." 1. She described her "total needs" as follows: "Private Health Insurance $30,000.00 Contingency fund $75,000.00 Deposit for property $400,000.00 Vacations $35,000.00 [Mr Williams'] treatment $60,000.00 Total $600,000.00" 1. Sarah said she would prefer to purchase a home or an apartment in the inner west of Sydney. 2. Sarah's father is in good health, and has remarried. There appears to be no immediate prospect of her receiving any financial support from that source. Seth 1. In his affidavit evidence, Seth spoke of having a loving relationship with the Deceased. He said that: "I always felt loved by my Mother, and I don't think a child could ask for more". 1. Seth left the Ryde home in about 1994 and started working in the construction industry. 2. Seth commenced a course at the Jansen Newman Institute in 2002 for what he described as a "degree in counselling". He was unable to finish his studies at that institute because of the birth of his first child, Louis. Louis is now aged 10. 3. Between 2006 and 2009, Seth engaged in a furniture finishing apprenticeship. 4. He said his employment history was as follows: "(a) 1994 – 2011 Construction (off and on through the years) (b) 1995 – 1998 Market Research – calling to conduct surveys for marketing companies (c) 1997 – 2009 Waste recycling – off and on through the years (d) 2004 – 2009 Joinery (e) 2009 – 2011 Bricklaying (f) 2011 to present Millers Strata maintenance". 1. Seth's current role at Millers Strata Maintenance involves garden maintenance and other light maintenance work. 2. Seth now also has a daughter, Mei Mara, who is aged four. 3. Seth rents an apartment in Petersham, which is near to Erskineville and Croydon, where his former wife and former partner (the mothers of Louis and Mei Mara) live. 4. Seth has regular access to both children and contributes to their maintenance. 5. Seth's income is in the order of $35,000 per annum. He has superannuation in the order of $14,000 and the $41,000 of the $60,000 that the Deceased paid on his behalf in April 2014 (see [6] above). 6. He seems not to have seen the Deceased often in the final years of her life. In his affidavit he said: "I was concerned when my Mother was diagnosed with spinal cancer after her breast cancer had metastasised, both for her physical and emotional well being. It was hard for me to visit her given my work and family commitments, and she also put up restrictions on the timing of my visits. I really just wanted to be there for her. I considered moving temporarily to be near her, but she assured me that she had lots of support and that she didn't want any strong emotions around her. It felt odd and I felt uneasiness about it as I just wanted to leave everything and go to be with her, but she kept wanting me to come at certain times that didn't always work for me due to my schedules with my children and work. … Despite these hurdles, I did go to see her as often as I could, usually during school holidays, and spoke with her nearly every day on the phone." 1. Seth suffers from what he described as a "long standing and chronic back condition" known as spondylolisthesis. He said that: "This condition limits the type of jobs available to me as physical labour causes pain in my back and aggravates the condition, which will only need more attention as I get older. Most of my employment history consists of jobs that have caused problems with my condition. This is why I hope to be able to finish my counselling degree so I will be able to earn a living in a manner other than by physical labour." 1. As yet, Seth has taken no steps towards finishing his counselling degree. 2. So far as concerns the Deceased's will, Seth gave this evidence: "…My Mother said she planned to give the majority of her money to Universal Medicine, and asked me how I felt about it. I said that I believed that she should deal with her money with respect to how she had come into the money herself, which was through inheritance over the last four generations, and that if she wanted to give back to Universal Medicine she might consider doing things to help cancer patients rather than giving such large amounts of money to them directly. I encouraged her to pay in proportion to the services received even generously, but with rationality. I reiterated that spirituality, in my opinion, should not rest on money. During the time of my last visit with my Mother, she asked me to respect her decision about her will. I just nodded as I had already had my conversation with her in regards to my opinion, and in the last few months I did not enter into conversation with my Mother about her financial plans as I wanted her to be happy and at peace at the end of her life." 1. Seth has received some financial support from an aunt. Such support will not be available indefinitely. Seth is currently estranged from his father who, in any event, has remarried and may well leave his estate to his now wife. 2. Seth would like to purchase a three bedroom property in the Petersham area and said that his financial needs are as follows: "Deposit for accommodation $400,000.00 Contingency fund $50,000.00 Child education expenses $80,000.00 Car $30,000.00 Health Insurance $25,000.00 Two years of fulltime retraining and income support $130,000.00 Total $715,000.00" What the plaintiffs seek 1. Each of Sarah and Seth seek provision from the Deceased's estate in the sum of $550,000; a total of $1.1 million, which amounts to nearly the whole of the value of the actual estate. 2. When he opened the case, Mr Morrissey, who appeared for Sarah and Seth, stated that Sarah and Seth sought an order that their costs be paid on the ordinary basis from the Deceased's notional estate. However, later, he accepted that as neither Mr Benhayon nor Ms Langenbruch had been joined as defendants, that claim was not maintainable. Forgiveness of uncle's debt 1. In 2006, the Deceased and her then husband loaned the Deceased's brother, Mr John Ellis, $200,000. That loan was secured by a charge over a property owned by Mr Ellis in Kingsville, Canada. 2. In March 2013, for reasons unexplained in the evidence, the Deceased assigned that charge equally to Sarah and Seth. 3. In May 2015 (shortly after these proceedings were commenced), Sarah and Seth executed a discharge of that charge and thus, in effect, forgave the loan. 4. Sarah said: "My uncle needed to sell his property to pay his debts. Rather than see him homeless, my brother and I decided to discharge the mortgage." 1. During cross-examination, Sarah also said that she thought there was no significant prospect of Mr Ellis repaying the loan and that, accordingly, she did not believe she had given up anything of value by forgiving it. 2. Seth gave evidence to the same effect. 3. As the loan was secured, it does appear that Sarah and Seth could have forced the issue with their uncle and compelled him to pay them the money he had borrowed from their mother. 4. However, in my opinion, Ms Catanzariti, who appeared for the estate, went too far when she made this submission: "It may be admirable of Seth and Sarah to provide such a concession for their uncle. However, they are 'robbing Peter to pay Paul' by discharging their uncle's $200,000 mortgage and then claiming money from the Deceased's estate. This is effectively requiring the Deceased to give a gift of $200,000 to her brother. The Deceased knew of her brother's circumstances – she was one of the original lenders and he had made no payments on the loan... However she chose not to give a legacy to her brother. Her brother is not an eligible person. Seth and Sarah are trying to usurp the Deceased's testamentary choices by discharging the uncle's mortgage and then claiming from the Deceased's estate." [Emphasis in original] 1. Sarah's and Seth's decision was understandable in the circumstances. I do not see this aspect of the matter as having great significance to the decision that I must make in the proceedings. I certainly do not see it as a factor that, of itself, disqualifies Sarah and Seth from contending that adequate provision has not been made for them by the Deceased. Nor do I accept that Sarah or Seth released their uncle from the debt in order to improve their position in this litigation. The Deceased's relationship with Mr Benhayon and Universal Medicine 1. Both Sarah and Seth gave evidence of the Deceased's longstanding interest in spiritualism. Sarah said that the Deceased "began a spiritual search to find meaning in life beyond the intellectual" following a serious accident that her father (the Deceased's then husband) had. Sarah said that, when she was young, "my Mother's spirituality began to take a forefront in our family life". As she grew older "and entered my teen years, I sometimes felt embarrassed by some of my Mother's practices when my friends were around, as they were so different from mainstream culture". 2. Seth said that he "started questioning my Mother's spirituality when I became a teenager" but that "my Mother took my differing opinion well" and "allowed me to have a different opinion than her and we were able to discuss our opinions freely". He said: "[The Deceased] encouraged us to believe and accept what felt right for us, and not take on what didn't feel right. Our relationship remained strong despite the fact we started to see the world differently." 1. In his affidavit, Seth gave this evidence: "In her spiritual quest, my Mother was first involved with Siddha Yoga, which had an Ashram, which is a gathering place for followers, in Dulwich Hill. She followed this spiritual path from approximately 1980 to 1990. She often took Sarah and I with her, and my father would come along sometimes. My Mother later became disillusioned with it. I once saw her smashing a framed picture of one of her gurus from Siddha Yoga, and when I asked her what was wrong she said that she had been following a sham and that her guru had broken his vows. My Mother had a history of giving a lot financially to gurus. She became involved with another guru named Isira in approximately 2002. I never had much faith in Isira as she seemed like an actress to me. I became a little concerned for my Mother as I believe Isira had an unhealthy influence on my Mother. I argued with my Mother about how she was funding Isira $3,000.00 a month and helped her to buy an apartment. My Mother said, 'Why are you so upset, do you think it's your money?' I said, 'No, but I don't like to see you being taken advantage of'. She said, 'Do you think I'm being duped?' I said, 'Yes'. My Mother had asked me to at least read her book before making judgement. It felt like I was losing my Mother, so I accepted our differences that she believed in Isira. In the end I loved my Mother for who she was as she had so many lovely qualities. She was peaceful, generally happy, open, always believed that love is the strongest force in life, and was always searching for the significance of life. My Mother named her property at XXX Myocum 'Buddhawanna' under the spiritual guidance of Isira. She also furnished the property in accordance with Isira's tastes and also gave Isira a hut to live in on the property as it was approximately 5 hectares in size. We could no longer enter the property unless we followed the rules she made about visiting her property, which I believe came from the guidance of Isira. The rules consisted of refraining from eating meat, smoking or consuming alcohol on the property. I was happy to oblige even though I smoke and enjoy having a beer and love a steak." 1. Mr Benhayon is the proprietor of a business known as "Universal Medicine". Mr Benhayon described the business as being a complementary healing and training organisation based in Wollongbar. He said: "I offer healing sessions…as well as presenting various public workshops, courses and lectures, including philosophy, health and healing retreats and training courses on complementary health modalities in Australia and the United Kingdom." 1. Mr Benhayon was formerly a board member of a charitable institution known as "The College of Universal Medicine". He maintains an association with that charity, although he is no longer on the board. 2. Mr Benhayon owns a number of properties, including the Wollongbar property to which I have referred. 3. Mr Benhayon first met the Deceased in August 2011 at the Byron Bay Writers Festival, where he had been invited to speak. 4. Mr Benhayon gave evidence that: "...I recall she came to speak to me after my presentation and I recall she said she had breast cancer – but discussed no details of her condition. I recall that I said she should self-nurture deeply and look after herself. Later I was in the designated marquee for book signing and she came up in the line for the book signing and asked if she could speak further with me and bought a book. I took her number and said I would give her a call if I had a cancellation. That came up a few days later on the Tuesday, 9th of August 2011. … In her first session with me [the Deceased] told me she was sceptical of medical treatment and told me that if her cancer came back she would not seek more treatment. I told her that I could not provide complementary care for her if she refused proper medical care. I suggested that she have Chakra-puncture (a fully insured, low risk, complementary treatment that I provide that involves light needling techniques with only .02mm skin penetration of very fine needles) as long as she supported herself with oncology under her medical specialist, Dr Adam Boyce. [The Deceased] subsequently told me that she had decided to proceed to receive full and appropriate medical care with my reassurance and full support in that regard. [The Deceased] got a lot from her sessions with me and the teachings of the Ageless Wisdom. She said as much to me, and I could see it in her face and way of being. Her own connection to herself deepened through the sessions and not long after she stated that she 'realised that her spiritual journey for the past 20-30 years meant nothing to what she could now feel in her body.' She stated that it was 'the first time I know who I am, before this I have been fooled by the spiritual.' In late 2011, and on many occasions thereafter, [the Deceased] shared with me during one of our conversations that the teachings of Universal Medicine represented something significant that she felt was important to present to humanity. Many who have experienced miraculous life changes have shared the same sentiments so this was not new to me. [The Deceased] said that she wanted to make a gift that would help establish a teaching Hall and would be a lasting legacy for the presentation of the teachings of the Ageless Wisdom to which she told me and I could see in her demeanour she was deeply committed and aligned. She told me that she wanted the building to be finished (renovated to a teaching hall) and would like to see it in her lifetime. It was not a fleeting interest but represented a lifelong held philosophy to which she finally felt she had found a home for herself and in that one that many could equally benefit from." 1. So far as concerns the payment of $800,000 that the Deceased made to Mr Benhayon on 7 May 2014, Mr Benhayon gave this evidence: "During 2011 the Deceased said to me words to the effect: 'I want to ensure that there is [a] building that is available to the public in Australia to reflect on the principles and guidance that you have given me that have provided me with so much support'. The Wollongbar Property included a large warehouse that was full of steel rafters; not suitably renovated for public usage. The Deceased said to me words to the effect: 'I want you to expedite the renovations to the warehouse into a teaching hall. I want to give you money to renovate the warehouse now and in my will. I have discussed this with my children. They have assured me that they will not challenge my wishes.' I never suggested to the Deceased that she donate any money to me for the hall or any other reason and I never requested that she donate any money to me. On or about 7 May 2014, the Deceased gave me a sum of $800,000. In accordance with [the Deceased's] wishes I immediately allocated the funds that had been gifted entirely for the renovation of the hall. The warehouse required extensive renovation and fit out and a complete re-work of the existing space in order to be able to be used as a teaching hall. … I have spent at least $800,000 on the renovations to date. … I intend to use by bequest under the Deceased's will to help complete the work required on the Wollongbar Property." 1. In cross-examination, Mr Benhayon said that the $800,000 was used to refit and effect renovations to the building located on the Wollongbar property. The renovations commenced shortly after the death of the Deceased and concluded around November 2014. 2. Mr Benhayon gave this evidence: "Q. Now, [the Wollongbar property] is a property upon which was erected a structure and you spent the $800,000 on some renovations to that structure? A. That's correct. Q. But the structure is still in your name, isn't it? The property is still in your name? A. Correct. Q. There would be nothing stopping you, for instance, from selling that to a company to run a wedding reception centre, would there? A. It depends on what you mean by nothing stopping me. Q. Well, no legal impediment to you selling the property tomorrow to a business for, say, running wedding receptions from? A. That's correct. Of course. HIS HONOUR Q. But that's not your intention? A. That's correct. Q. What is your intention? A. My intention is to hold it and then pass it on to a company that will be able to own it for hundreds and hundreds of years. So we're exploring the possibility of a CLG or a set up so that we can pass on all the assets. Q. What do you mean by CLG? A. A company limited by guarantee, so that we can assign all the assets over so that they can remain - looked after and not owned by anybody, so that they can then continue to do what they're doing right now. So whilst they're in my name, counsellor, there is an intention to pass them on. Q. What is the building used for right now, if anything? A. It's our teaching hall. It provides an area for us to do our presentations. Q. So the $800,000 work has been done, has it? A. Correct. Q. So it's finished? A. Yeah. The cost of the renovations was 1.2. The 800,000 was only a small part of it. Q. The works are finished? A. Correct." 1. There is nothing in the evidence before me that would cause me to doubt the truthfulness of this evidence. 2. The tone of Mr Morrissey's cross-examination, and many of the questions that Mr Morrissey put to Mr Benhayon, were seemingly designed to suggest some lack of bona fides on Mr Benhayon's part. Mr Morrissey also emphasised, in his final submissions, that the Deceased had made her May 2014 gift and bequeathed the residue of her estate to Mr Benhayon personally, and not to the Universal Medicine business. Mr Morrissey also emphasised that the hall which was improved using the money that the Deceased gave to Mr Benhayon in May 2014, which Mr Benhayon proposed further to improve with the legacy, is registered in Mr Benhayon's name. Mr Benhayon accepted in cross-examination (see [67] above) that there is no legal impediment to him making such use of the property as he sees fit. 3. In final submissions, Mr Morrissey went so far as to submit that I should conclude that Mr Benhayon might actually use his property at Wollongbar, as improved using funds provided by the Deceased, for his own interests rather than those of Universal Medicine. But Mr Morrissey did not put that proposition to Mr Benhayon. On the evidence before me, I see no basis upon which I could reach such a conclusion. 4. Similarly, in final submissions, Mr Morrissey handed up what he described as a "wheel of persons related to Universal Medicine". This document sought to depict the large number of people, associated with Universal Medicine who played a role in the Deceased's life in the period before her death (including her nurse, financial planner, executor, the witness to her will, the solicitor who drafted the will, the creator of a video made of the Deceased very shortly before she died, and counsel originally briefed to appear for the estate in these proceedings). 5. I am not sure what implication Mr Morrissey thought I should draw from that document. As I said during the course of argument, the only matter before me was Sarah's and Seth's claim for family provision. 6. It was no part of Sarah's or Seth's case that the Deceased lacked testamentary capacity when she made her will, that she did not know the nature and contents of her will, nor that her will had been overborne. 7. Part of the evidence adduced on behalf of the Deceased's estate was a video of an interview of the Deceased in April 2014, very shortly before she died. I was invited by Ms Catanzariti view the video. I have done so. No one watching that video could fail to see the state of peace and serenity with which the Deceased faced her passing. The evidence points strongly to the conclusion that the Deceased attributed that state of being to the teachings of Mr Benhayon. 8. The strong impression I have from the evidence is that the Deceased knew exactly what she was doing when she made her will. She appears to have weighed up the competing considerations of the need to a leave legacy to Sarah and Seth and her desire to promote the teachings of Mr Benhayon. I see no basis upon which to conclude that the decision was not her own. She foreshadowed to Sarah and Seth her plan to leave a significant part of her estate to Universal Medicine, explained her decision to them and sought their assurance that they would respect her wishes. Ms Langenbruch 1. Ms Langenbruch met the Deceased towards the end of 2011. 2. At that time, Ms Langenbruch owned a property at Ocean Shores (near Bruswick Heads) and the Deceased owned the property at Myocum to which I have referred. 3. The Deceased and Ms Langenbruch became close friends. Ms Langenbruch said that she "started helping her out and driving her". In 2012, she moved into the Deceased's home at Myocum to care for her on a full time basis. 4. In 2013, Ms Langenbruch and the Deceased travelled to the United Kingdom. Ms Langenbruch said: "When [the Deceased] and I were in England together, [the Deceased] felt very strongly the importance that the students of Universal Medicine and the public should have a teaching hall in Australia like the teaching hall in England that students had built from donations they collected so people could gather and didn't have to go to a hired hall for presentations and courses. Having felt the quality of the hall in England, [the Deceased] really wanted to press forward so that people could have a hall like this in Australia. [The Deceased] and I were on one of the first tours through a cold storage facility at Wollongbar, NSW that [Mr Benhayon] had bought and was planning to convert into a large-area teaching auditorium. [The Deceased] very strongly spoke of the purpose of that facility and decided that she would give part of her money to [Mr Benhayon] so he could start building the hall." 1. During 2013, the Deceased and Ms Langenbruch decided to purchase a house together. 2. Ms Langenbruch sold her Ocean Shores property and the Deceased sold her Myocum property. 3. Ms Langenbruch gave this evidence in cross-examination: "Q. You sold [your] Ocean Shores [property] on 26 May last year for $465,000? A. Yeah. … Q. You were living with her. Do you remember [the Deceased] selling her place? A. She was selling her place. I don't know details. I don't remember how much exactly. Q. You do remember on 28 October last year [sic: 2013] you received the property at [Wollongbar] and the sale price was $505,000? A. Can you say that again? Q. On 28 October 2013, [Wollongbar], that's where you live at the moment, isn't it? A. Yeah. Q. Transferred to you and the price was $505,000? A. Yeah. Q. Now, is it the case that Mrs McIntyre gave to you some various sums of money that totalled around about $320,000? A. When you said she gave it to me, no, she never gave me money. She did pay for half of the house. Q. Well, that's what I mean. And the house is in your name? A. It is. Q. It's your house? A. I don't see it that way. We originally planned to buy a house together and the house was having a very specific purpose and intention and in Queensland we could have done that but how the laws are here she was very concerned that the children would not accept her wishes and - yeah, me possibly having to buy them out or something like that and so we decided to put the house in my name only. HIS HONOUR Q. And she agreed to that? A. Pardon? Q. She agreed to that? A. Yes. Q. Or suggested it, did she? A. Yeah, she suggested it because I didn't know about the laws. MORRISSEY Q. So you are the registered legal owner of the house? A. Yes. Q. A moment ago you said you didn't see it that way as owning it. How do you see it? A. I see it still as half [the Deceased's] house and really want to honour her wishes and keep the purpose of the house." 1. I have no hesitation in accepting Ms Langenbruch's evidence. 2. It is clear that she showed great kindness to the Deceased in the last few years of her life, and was especially attentive to her needs during the months leading up to her death. 3. So far as concerns the Deceased's decision to give Mr Benhayon money, Ms Langenbruch said: "It was [the Deceased's] decision to give [Mr Benhayon] the money for the hall. She never made any suggestion that it was anything other than her decision. I only know that she really wanted the hall to happen. Whatever was the most assured way that the children would not challenge the course she had chosen was the way that she wanted to go. That was her main concern in all their dealings, namely that her children would not accept her wishes. Though they had assured her that they would, it was still always a concern for her. What I understand about this is based on what [the Deceased] said to me. I never had a conversation with Sarah or Seth about honouring their mother's wishes." "Character and conduct" 1. Ms Catanzariti raised two further matters that she submitted went to the "character and conduct of the parties". 2. The first was that, as I have said, the Deceased explained the scheme of her will to both Sarah and Seth and sought their assurance that they would not challenge it. Sarah gave her mother that assurance. Seth "just nodded" (see [43] above). Ms Langenbruch said that the Deceased's "main concern" was that "her children would not accept her wishes". 3. However, in re-examination, Sarah said that when she told the Deceased that she would not challenge her will, she did not know the size of the Deceased's estate. Nor did she know of the gift the Deceased had made to Mr Benhayon of $800,000 or the money that the Deceased had used to purchase the Goonellabah property. 4. Ms Catanzariti also drew attention to the fact that, after the Deceased died, Sarah accessed the Deceased's personal email account using the Deceased's password. Sarah annexed to one of her affidavits emails and an extract from the Deceased's diary that she obtained in this way. Sarah agreed that she had changed the password of the Deceased's email account so that no one else could access the Deceased's emails. Sarah also agreed that she was looking for material that she could use in these proceedings. I rejected that material on the basis that it was obtained (at the very least) improperly, for the purposes of s 138 of the Evidence Act 1995 (NSW). 5. Having drawn these matters to my attention in her final written submissions, Ms Catanzariti did not make submissions as to how they might be relevant to the decision I must make in these proceedings. 6. In my opinion, they could not be relevant to the question of whether adequate provision has been made for Sarah and Seth in the will. Were I to conclude that adequate provision has not been made, they may have some role to play in the question of what further provision should now be made (albeit not a significant role). Relevant principles 1. Section 59 of the Act provides that the Court may make, on the application of an "eligible person" (there is no dispute that Sarah and Seth are "eligible persons"), a family provision order in relation to the estate of a deceased person if the Court is satisfied that: "At the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person…". 1. The section provides that, if the Court is so satisfied, then: "The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made." 1. I consider that the test to be applied remains the two-stage test referred to in Singer v Berghouse (No 2) [1994] HCA 40; 181 CLR 201 at 208-209; namely, determining whether adequate provision has been made in the will for Sarah and Seth, and, if not, what provision should be made. 2. A different view as to the applicability of the two-stage test has been expressed by one member of the Court of Appeal (Basten JA in Andrew v Andrew [2012] NSWCA 308 at [29] and [41]). Differing views were expressed by other members of the Court in that case (see Allsop P at [6] and Barrett JA at [65], [79]-[81] and [94]). 3. In Nowak v Beska [2013] NSWSC 166 Hallen J said at [113]: "It seems to me that the two stage approach adopted in the myriad of cases determined under the former Act and under the Act, including Keep v Bourke [2012] NSWCA 64, enables me, despite what has been said by Basten JA [in Andrew v Andrew], and until uncertainty is resolved, to continue to follow that approach in determining cases under the Act. As Allsop P said [in Andrew v Andrew], 'it may be an analytical question of little consequence' [at [6]] since what has to be decided by the Court is whether to make a family provision order and the nature of any order." 1. His Honour expressed the same view more recently in Ciric v Ciric [2015] NSWSC 313 at [86], and observed that that view was unaffected by the more recent decisions of the Court of Appeal in Phillips v James [2014] NSWCA 4; 85 NSWLR 619, Verzar v Verzar [2014] NSWCA 45 and Salmon v Osmond [2015] NSWCA 42. I agree. 2. The first stage of the two-stage test involves a question of fact, namely whether the Deceased has made adequate provision for Sarah's and Seth's proper maintenance, education and advancement in life. 3. The aim of the first stage is to assess whether the Court can make an order for provision. As Hallen AsJ (as his Honour then was) said in Lajcarova v Todorov [2011] NSWSC 522 at [79]: "Unless the court comes to the conclusion that inadequate provision has been made, it is not empowered to make an award. This is commonly referred to as 'the jurisdictional question'. At this stage, the court will consider whether it can make an order for provision for the maintenance, education and advancement in life of a particular applicant." 1. The second stage, should it arise, involves an exercise of discretion. The Court must assess whether provision ought to be made in Sarah's and Seth's favour. 2. The object of the second stage is to assess whether the Court should make an order for provision. As Hallen AsJ said in Lajcarova v Todorov at [84]: "At the second stage, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour." 1. Although Hallen AsJ was then considering a claim under the former Family Provision Act 1982 (NSW), I see no reason to adopt a different approach under the Act. 2. It is clear that the determination of the second stage involves similar considerations to that of the first stage: Singer v Berghouse (No 2) at 209-210. 3. What is involved is "an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific" (Manuel v Lane [2013] NSWCA 61 at [9] per Emmett JA, with whom Meagher and Ward JJA agreed, speaking of the discretion to be exercised under s 20 the Property (Relationships) Act 1984 (NSW); which I see as involving, in this respect, the same notions as arise under the Act). 4. The guiding "principles" were summarised by Hallen AsJ in Gersbach v Blake [2011] NSWSC 368 at [94]-[96] as follows: 1. it is not appropriate to endeavour to achieve a "fair" disposition of the deceased's estate; 2. it is not part of the Court's role to achieve some kind of equity between the various claimants; 3. the Court's role is not to reward an applicant, nor to distribute the deceased's estate according to notions of fairness or equity; 4. rather, the Court's role is of a specific type and goes no further than a making of "adequate" provision in all the circumstances for the "proper" maintenance, education and advancement in life of an applicant (see also Bryson J in Gorton v Parks (1989) 17 NSWLR 1 at 6); 5. the Court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation (see also Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; 107 CLR 9 at 19 per Dixon CJ and McKenzie v Topp [2004] VSC 90 at [63] per Nettle J); and 6. freedom of testamentary disposition remains a prominent feature of the Australian legal system (see also Lajcarova v Todorov at [91]). 1. I may also have regard to the matters set forth in s 60(2) of the Act. Those most relevant to this case are those in s 60(2)(a) and (j), namely: "(a) …[the] relationship between the applicant and the deceased person, including the nature and duration of the relationship, … (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person". Consideration 1. As Mr Morrissey pointed out, in October 2013, at a time when the Deceased had been diagnosed with a terminal illness, and when she had only nine months to live, she had assets in the order of $2.2 to $2.3 million. 2. Between October 2013 and May 2014, the Deceased made the payments to which I have referred in respect of the Goonellabah property, and in May 2014 she gave $800,000 to Mr Benhayon. 3. At around that time, she also provided $60,000 towards Seth's legal fees, of which Seth has since received some $40,000. 4. Thus, at the time she died, the Deceased's estate was in the order of $1.1 million. 5. In substance (taking into account the $60,000 provided for Seth shortly before she died), the Deceased has made provision for each of her children in the sum of $250,000 and has left the remainder to Mr Benhayon. 6. The question is whether the provision thus made for Sarah and Seth is, in all of the circumstances, adequate. 7. Both are in modest financial circumstances; Seth especially so. 8. Both are in rental accommodation and aspire to purchase property. 9. Both have someone dependent on them; Mr Williams in the case of Sarah, and Louis and Mei Mara in the case of Seth. 10. Both would doubtless benefit from greater provision than that which has been made for them by the Deceased in the will. 11. Neither was estranged from the Deceased, although it seems fair to say that both were a little mystified by the Deceased's commitment to matters spiritual. On the dissolution of her marriage, the Deceased moved from Sydney to the far north coast, and thus saw less of her children. 12. As I have said, the Deceased appears to have carefully considered how she should dispose of her estate. She weighed up the competing considerations for her bounty. And as Ms Catanzariti emphasised in submissions, the Deceased has not left her children with nothing. 13. It is true that the Deceased has been very generous to Mr Benhayon and Ms Langenbruch. 14. But that fact must not divert attention from the fundamental question, which is whether adequate provision has been made for Sarah and Seth. 15. The Deceased told Sarah that she proposed to provide for Sarah and Seth to have a "sizeable" deposit for a property. She has done that. On any view, $250,000 is a "sizeable" deposit. On the other hand, both Sarah and Seth say that they need a deposit of $400,000. No doubt a larger deposit would help; neither Sarah nor Seth has a large income, and their capacity to borrow must be limited. 16. Minds might differ as to whether $250,000 each is, in all of the circumstances, adequate. But it appears to me to be within the range, albeit perhaps at the lower end of the range, of adequate provision. 17. Perhaps $300,000 each, or $350,000 each, or $400,000 each would be "fairer". But, to adopt the words of White J in Friend v Brien [2014] NSWSC 613 (at [62] and [63]): "To remodel the will because the judge thought that some additional provision would be fairer, would pay no more than lip service, or not even that, to respecting a capable testator's judgment where it appears that a reasonable judgment has been made. … In my view, where there is a range in which views may legitimately differ as to what provision is adequate for proper maintenance and advancement in life and where the deceased has apparently conscientiously made a judgment about how his estate should be disposed of that falls within such a range, and where the circumstances have not materially changed between the time of the making of the will and the court's considering the position, a court should not substitute its judgment for that of the testator to determine that the provision made was inadequate." 1. Were I to make an order of the kind sought by Sarah and Seth, then, taking into account costs, they would in effect receive the whole of the estate. That would set to nought the Deceased's desire to benefit the entity with which Mr Benhayon is associated; a desire she expressed both by the gift she made to him very shortly before she died and the separate and additional provision she obviously intended to make in her will. Conclusion 1. My conclusion is that Sarah and Seth have not shown that adequate provision was not made for them by the Deceased in her will. 2. Their claims should be dismissed. 3. I will hear the parties as to the precise orders that should now be made, and as to 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: 24 December 2015