Supreme Court New South Wales Medium Neutral Citation: Bindoff v The Trust Company (Australia) Ltd; Estate of the late Everitt Joseph Griffiths [2016] NSWSC 1100 Hearing dates: 21 September 2015 - hearing; 12 & 26 October 2015 - orders made in chambers; and 31 March 2016 – orders for supplementary submissions made in chambers. Date of orders: 16 August 2016 Decision date: 16 August 2016 Jurisdiction: Equity Before: Slattery J Decision: Adequate provision not made for plaintiff under the deceased's will. Plaintiff awarded a legacy of $1.36 million in addition to the Woodside Shares already given to her under the will. Catchwords: SUCCESSION – family provision – claim by adult daughter – substantial estate – deceased had two daughters – after a number of specific gifts most of estate given to older daughter and the children of the older daughter – younger daughter brings claim under Succession Act, s 59 – claimant conceded to be an eligible person under Succession Act, s 57 - whether adequate provision made for the maintenance and advancement in life of the plaintiff under the will of the deceased – if not, what provision should be made for the plaintiff. Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW) Succession Act 2006 (NSW), ss 57, 59 Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656 Carey v Robson [2010] NSWCA 212 Drury v Smith [2012] NSWSC 1067 Evans v Levy [2011] NSWCA 125 Friend v Brien and Anor [2014] NSWSC 613 Salmon v Osmond [2015] NSWCA 42 Slack v Rogan and Anor [2013] NSWSC 522 Smith v Johnson [2015] NSWCA 297 Singer v Berghouse (No. 2) (1994) 181 CLR 201 Singh & Anor v Singh and Ors [2015] NSWSC 1457 Taylor v Farrugia [2009] NSWSC 801 Tchadovitch v Tchadovitch [2010] NSWCA 316 Category: Principal judgment Parties: Plaintiff: Helen Patricia Bindoff Defendant: The Trust Company (Australia) Ltd Representation: Counsel: Plaintiff: K. Morrissey; L. Clarke Defendant: L. Ellison SC Solicitors: Plaintiff: George Szabo, Szabo & Associates Solicitors Defendant: David Robert Samuel Creais, Bartier Perry File Number(s): 2014/318020 Publication restriction: No Judgment 1. Clare Bergen and Nancy Kearney met at school. They became lifelong friends. After leaving school, marrying and having five children, Nancy developed a mental illness, bipolar disorder. As a result, all of Nancy's children, including the plaintiff in these proceedings, Helen, were placed in an orphanage. Helen, the youngest, was then only nine months old. When Helen was three Nancy committed suicide. Nancy's widower, Adrianus Taalman, took his three older children into a new marriage in Adelaide. Helen and her older sister Susan remained in the orphanage. But Clare's loyalty to her childhood friend Nancy endured. In 1963 she and her husband, Everitt Griffiths, intervened and adopted Helen and Susan. 2. Clare had married Everitt Griffiths in 1946. By 1963 and after 17 years of marriage they had no children together. At the time of the adoption, Everitt was 46 and Clare 38. Helen was 5 and Susan 7. Everitt and Clare commenced to bring up Helen and Susan in their household. As might be expected the adoption changed all their lives. 3. Everitt died on 31 May 2014. Clare had predeceased him. Everitt appointed the Trust Company (Australia) Ltd as executor of his 1 September 2010 will. He left a substantial net distributable estate of more than $6.5 million. Everitt's will gave to Helen a legacy of his 5,417 Woodside Petroleum shares (worth $155,684) plus accrued dividends of $15,430. 4. Helen now brings proceedings under Succession Act, s 57 for an order for provision out of Everitt's estate. The defendant, the executor of Everitt's will, the Trust Company (Australia) Limited, resists the relief. 5. The parties and principal witnesses to these proceedings are all related. They mostly referred to one another throughout the proceedings by their first names. Without intending any disrespect to any party the Court will generally also refer to them in that way in these reasons. 6. Mr K. Morrissey and Mrs L. Clarke of counsel appeared for the plaintiff instructed by Szabo and Associates. Mr L. Ellison SC appeared for the defendant instructed by Bartier Perry. The Contest about Everitt's Estate 1. Everitt's will is considered in more detail below. But its general effect may be shortly stated. He gave a property in Stafford Street, Double Bay, with an agreed value at the time of the trial of $950,000 to Susan. He gave his Woodside Petroleum shares to Helen. 2. The bulk of Everitt's estate then passes to Susan's three adult children, Jasmin Kooper, Alexander Payne and Thomas Payne. The will gave each of them a property and one third of estate residue. The estimated gross value of the estate at trial was $8,204,066. The gross distributable value of the estate as of 24 July 2015 was $7,704,600. But the range of values of the assets of the estate became the subject of some agreement, the detail of which is considered later in these reasons. 3. It is accepted in these proceedings that as a daughter of the deceased, Helen is a person eligible to make a claim under Succession Act 2006: s 57(1)(c). Her Summons was filed within time. Helen's case is that the gift of the Woodside Petroleum ("Woodside") shares, including the accrued dividends, will be insufficient to assist her to meet her future financial needs, given that she has a life expectancy of approximately another 28 years. 4. Helen now lives in Launceston in the State of Tasmania. Her case identified claimed needs totalling $2.68 million. Her claim is explained further below. It includes the net costs of her relocating back to Sydney in the future to live. 5. Helen lived away from Everitt for much of his life and had a difficult relationship with him. This was due she says in part to troubling events in her childhood. But she says that she and her father remained in regular correspondence despite the physical distance between them. 6. Despite the inevitable tensions generated by proceedings in which Helen seeks orders that will have the effect of reducing the share of the estate that will pass to Susan's children, Helen maintains a good relationship with her sister Susan, who lives on the south coast of New South Wales. Helen does not want the gift of the Double Bay home unit to Susan to be disturbed in any orders for provision that might be made in these proceedings in her favour. 7. Helen accepts that her father Everitt had a strong affection for his grandchildren and that he wanted to give them a good financial start in life. They are all now in their late 20s or early 30s. 8. At the time of the trial in 2015 Helen was aged 57. She is married to Adam Bindoff. She works part-time as a psychologist. She suffers mental illnesses. Like her mother, her mental illnesses include bipolar disorder. She has taken medication to successfully control this disorder since the age of 19. 9. Helen's husband Adam is employed in a clerical capacity in her practice as a psychologist. Their joint income just covers their domestic expenses. Helen plans to retire in a few years. Her claim for provision is principally crafted to deal with the financial needs that she expects to encounter after her retirement. She says that she proposes at that time to return to Sydney to enjoy its better climate, better access to medical treatment and to be closer to her sister Susan. She says that her present financial circumstances mean that she will not realistically be able to make the choice to move to Sydney after her retirement. 10. Helen's case is that the estate is large enough to allow Susan to keep the Double Bay unit, make adequate provision for Helen's "proper maintenance, education or advancement in life" under Succession Act, s 59 and still leave enough for the adult grandchildren beneficiaries to give them substantial assistance in life. 11. But Helen's claim is contested. The estate principally contends that: (1) Helen's relationship with Everitt was poor; (2) her needs in Tasmania are more modest than she now claims; and (3) there will be no need for her to move to Sydney and she is unlikely ever to make that move. 12. The matters in issue require a deeper understanding of the history of Helen's, Susan's and the grandchildren's present circumstances, and of relationships within the Griffiths family from about the time of the adoption in 1963 through until Everitt's death. The Griffiths Family – 1963 to 2014 1. The following is a narrative of the relevant history of the plaintiff and her family. This narrative represents the Court's findings on the matters covered, except to the extent that context indicates that only the parties' allegations are being recorded. For reasons of economy this narrative does not always include reference to competing versions of the facts that have been rejected. The Early Years – 1963 to 1986 1. Susan is 17 months older than Helen. Susan was born in October 1956. Helen was born in April 1958. 2. Nancy's bipolar disorder had become florid by early 1959. At the age of only 9 months Helen was placed in institutional care at St Anthony's Children's Home in Sydney. Because of her tender age she has no memory of life with her biological mother and father; this is in contrast to her slightly older sister Susan, who was born in 1956. 3. Helen remained in institutional care until her adoption in 1963. She was placed with foster parents during school holidays although she does not seem to have had an opportunity of forming an attachment with any particular foster carers. From the time of Helen's first placement at St Anthony's she never returned to her biological parents' home. 4. Nancy committed suicide in 1961. In the same year Helen was transferred from St Anthony's to St Brigid's orphanage in Ryde so that she could be together with her older sisters. But as earlier indicated when her biological father Adrianus remarried it was Helen and Susan's older siblings, no doubt the ones who had a longer relationship with their biological father, who joined him and his new wife in their household in Adelaide. 5. When Susan and Helen were first adopted they lived with Clare and Everitt in a unit in the Sydney suburb of Rushcutters Bay. Soon they moved to Waverton, from where Helen attended primary school in Ridge Street, North Sydney. 6. Helen attended Holy Cross College, Woollahra from grade 6 in 1969. She completed the School Certificate in 1973 and left school. 7. Helen's recollection is, and I accept, that even from her earliest years she had difficulties in her relationship with her father, who appeared to her to be unable to communicate affection. Helen thinks this was related to his own upbringing. But the precise reasons for this are unclear and do not have to be analysed in these reasons. Everitt changed occupation in 1972. This was a powerful influence on the family dynamic. He retired as an accountant in March 1972. He and Clare then purchased and renovated a block of six units in Bondi, which they sold profitably. Both Susan and Helen helped their parents with their property development work. But the inevitable result of the development was that both Everitt and Clare were away from the household for long periods and were preoccupied with the details of the development. 8. This change coincided with Helen developing defiant and attention-seeking behaviour at school. This in turn attracted the attention of her teachers and her parents. The precise origins of her early disruptive behaviour do not need to be investigated. But it is undisputed that a few years later, Helen first suffered a psychotic episode in 1977 at the age of 19. Soon thereafter she was first diagnosed with bipolar disorder. 9. Helen's early times with and good memories of her father are also marked by a series of ugly memories of incidents that coloured her later relationship with him. It was evident from the manner in which Helen gave evidence of these incidents that she was still wrestling with the confronting memories she had of them. The later relationship between Helen and her father requires acknowledgement of the strength of these memories, which I accept as genuine and not invented. 10. The estate's case criticised Helen's distance from her father in the last years of his life. On quick assessment there seemed to be justification for this criticism. Helen did not do much to bridge the physical distance with her father when it was in her power to do so in this period. She was closely and effectively cross-examined about this by Mr Ellison SC. But this distance is not sufficient in this case to preclude her claim. Moreover, the criticism, in my view, takes little account of the complex origins of why that distance developed and why, as the history will show, it was actually necessary so that some kind of satisfactory relationship could prosper between Helen and her father. 11. After their adoption Helen and her sister Susan thirsted for affection. Helen declares in evidence and in her correspondence with Everitt, her overwhelming gratitude for her adoption and for being part of a family rather than living in an institution with shared clothes, communal eating and affection that failed to match the unconditional love of parents. She sought constant reassurance from her new mother, Clare, about her place in the household and about her new father Everitt's affection for her. She seemed perpetually uncertain of it. 12. Unfortunately some statements that Everitt made to her even before she reached the age of 10 seemed to her oddly to rebuff her childish attempts to direct charm and affection towards him. 13. Then in 1971 during her mid-teen years she recalls two scarring incidents. The first was an incident of inappropriate and intimate sexual contact that Everitt initiated with her, which she rejected. And she remembers a little later an unprovoked and regrettable incident of violent, disproportionate and degrading chastisement by Everitt. This second incident cemented her resolve to leave Everitt and Clare's house forever. 14. And she did. She left their home in November 1975, as soon as she completed her School Certificate at the age of 17. She says, and I accept, that her father forced her to leave. But the fact that she moved out so quickly supports the inference that she was not comfortable to remain in the household which is generally consistent with her version of these events. 15. She recalls, and I accept, that her relationship with her father improved after she moved out of the home. After leaving school she had undertaken a one year secretarial course at a technical college, after which she began work as a stenographer in the public service. 16. Helen completed her Higher School Certificate through the Ultimo Technical College, then the Randwick Technical College by full-time study during 1976 and 1977, whilst she was living away from home. She began work at the Australian Broadcasting Corporation in 1978. That same year she commenced a Bachelor of Arts (Communications) degree at the Mitchell College in Bathurst. 17. During Helen's second year of study for the Higher School Certificate, at the age of 19, she suffered her first psychotic episode. She was admitted to the psychiatric ward at the Royal Prince Alfred Hospital in Sydney. Her admission suddenly, and perhaps surprisingly, brought Everitt's underlying tenderness towards his younger daughter to the fore. He visited her regularly at the hospital. She retains from this period an abiding impression that he was genuinely concerned for her welfare throughout her terrifying first journey into psychosis. 18. But a pattern had already developed. Everitt's initial rejection of Helen, followed by demonstrations of strong affection, was soon followed by the reverse. These fluctuations in expressed affection became a feature of their long-term father-daughter relationship. 19. Helen enjoyed her work at the ABC. But she could not continue her study at the Mitchell College, or maintain a position at the ABC full time, as she cycled through periods of illness related to her bipolar disorder. 20. But she had by then met Adam Bindoff, a fellow ABC employee. A few months after meeting they started living together in Darlinghurst and began a relationship that led to marriage a few years later. She and Adam moved into a studio apartment in Centennial Park in June 1981. She remained in various roles at the ABC until 1983. 21. Helen and Adam saw Everitt and Clare on a regular basis. But Helen and Adam decided they wanted a less stressful and more rural life. They moved to Tasmania in February 1986. They were married there on 14 May 1989. From Helen's move to Tasmania until Clare's Death – 1983 to 1991 1. Helen and Adam established a new life for themselves in northern Tasmania. Helen remained in communication with both her mother Clare and her father Everitt over the next 5 years. Her mother became terminally ill with emphysema in about 1988. Despite her illness Clare came to Tasmania to attend Helen's wedding in May 1989. Everitt did not attend. 2. After Clare's final illness was diagnosed Helen visited Sydney during the summer holidays each year. By then Helen was studying for a degree in psychology at university in Tasmania. As soon as she finished her coursework each year she flew back to Sydney to be with her mother over the summer holidays. This allowed Everitt some respite from his constant personal care for Clare away at the Craigieburn Country Club in Bowral. Helen did this for each of the years 1988, 1989 and 1990. 3. This provided practical assistance to both parents at a stressful time for them. Caring for Clare was intense. When Helen was offering Everitt respite, Clare's emphysema episodically became acute, requiring Helen to give her CPR. 4. These trips took their toll on Helen. In late 1990, during the last of these trips to Sydney that Helen took before Clare's death, Clare asked her to help clean out a friend's apartment. The friend had passed away. Everitt had been appointed executor of her estate. Clare was not in sufficiently good health to undertake such an exhausting task. Nor, as it turned out was Helen. But she took it on for her mother, Clare. The stress of managing this task launched Helen into another episode of florid psychosis. Her return trip to Tasmania became chaotic. The journey home took two days. She first arrived in the wrong city. When she finally reached Hobart she was admitted to the Royal Hobart Hospital Psychiatric Unit. 5. Clare died in July 1991. After that Everitt began to write regular letters to Helen. She replied. Their relationship then settled into a pattern of mutually acceptable communication mainly by letter. Helen regarded this long distance contact as more amicable, restrained and predictable than having face-to-face meetings with Everitt. Helen did not see her father between 1991 and 1996. 6. I accept that Everitt and Helen wrote to each other during this period. Helen was questioned in cross-examination as to whether she wrote to him or not, because the correspondence she produced from this period is only from him. But I accept her explanation for this that all her letters to Everitt during this period were handwritten and not typed and she did not keep any copies of them before she posted them. She has other letters after 2004 that she typed on her computer and so she has retained a copy of them. 7. I also accept Helen's evidence that apart from writing letters during this period that she regularly spoke on the telephone to Everitt. Helen Establishes her Career – 1991 to 1996 1. After her mother's death Helen pressed on with completing her academic studies. She gained her Masters of Psychology (Clinical) through course work in 1992 and 1993. In February 1994 she started work as a clinical psychologist at Disability Services, Launceston. The Rupturing and Resumption of Contact – 1996 to 2004 1. But the equilibrium of Helen's correspondent relationship with Everitt was interrupted by a number of incidents arising during their direct contact. In January 1996 Helen and Adam visited Everitt when they were in Sydney. Whilst they were socialising and after some alcoholic drinks had apparently been consumed Everitt said to Helen that he regretted the moment that he had adopted her and suggested that she could "get out of his life and good riddance". When she gave her evidence in 2015 it was clear to the Court that Helen was still dealing with the wounding effect of this statement. Helen said under cross-examination that she found these words "incredibly hurtful". I accept that this was the effect of the words upon her. She explained that she did not want to meet her father as a result of him saying those words and be the "subject of another vitriol" (sic). She said she was in shock for quite a long time after that conversation, so much so that it affected her ordinary daily functioning and work and even thinking about her father created stress for her for a long time afterwards. I accept all her evidence as to this. 2. She took him at his word. She immediately left her father's company, left Sydney and made no attempt to contact him for about 3 years. When Everitt's and Helen's lack of face-to-face contact in later years is being considered, this incident must in my view be evaluated as significant both for its severity and for its continuing effect on Helen. 3. After Clare's death in 1991, Everitt made a will in May 1996. Despite the incident earlier that year, he gave a property he then owned in Bayswater Road, Potts Point to Helen. He gave nothing to Susan but gave the Double Bay property to his grandchildren, Susan's children. This will certainly gave substantial recognition to Helen as an object of his testamentary intentions an looked beyond the immediate conflict that Everitt had with her. 4. Three years later Everitt sought to bridge the gap with Helen. In 1999 Helen was attending a workshop in Sydney for her professional practice development as a psychologist. Susan had told Everitt that Helen was in Sydney. Everitt suggested that they meet for dinner. Helen was still wary about another face-to-face meeting with Everitt. She feared a repetition of the earlier incident. Helen took defensive measures. So she asked Susan if the meeting could take place in the presence of Susan and her then husband, Mr Andy Payne. Susan helped Helen to organise this. 5. The meeting was planned for a public place. They dined at a restaurant. Helen came prepared in case things went badly. She took the advance precaution of writing Everitt a letter. She prepared this letter because she thought that if something did go wrong, this may be the only chance to communicate with him quickly. She thought he could read the letter later in a calmer frame of mind. 6. The evening did not go well. Disagreements erupted between father and daughter. Helen became distraught and left the restaurant. She handed her letter to him as she left. 7. The letter that Helen gave to Everitt on this occasion throws considerable light on the relationship between Everitt and Helen. First the letter is contemporaneous evidence confirming Helen's account that Everitt had made the January 1996 statement to her, that he wanted her out of his life and that was "good riddance". It also confirms the shock of these words and Helen's complete surprise when Susan reported to her in 1999 that Everitt had said to Susan that he had "no problem with Helen". She simply explained in this letter "now I am very confused and again feel vulnerable". She explained to him that she did not know where she stood with him. The letter explained why she could no longer tolerate rejection and that she had immense difficulty in coping with the on/off and hot/cold nature of their relationship. But before expressing uncertainty as to how the evening was likely to go she in the letter attempted to bridge the gap with her father by thanking him for what he had done for her in the following words, which show a genuine understanding of the difficulties that Everitt must have faced in adopting her: "I would like to say that I'm glad you brought me into your life. Thank you for picking up the pieces for me, of offering a family for me. Your wonderful support through many years whether it being on the sidelines of the basketball court, buying my first ever game, Snakes & Ladders, calling me Flash as I ran from one end of the Waverton flats to the other, saving me from the waters of Terrigal and the tidal waters on another occasion, teaching me Chess, laughing with me, being there for me. Thank you for offering a sense of united family and providing for me. It must have been hard taking in, with little preparation, two children already needy. Previously a cosy life with just Clare changes dramatically. You gave of yourself a family life that wasn't there for you as a boy. Your hardships were never acknowledged by the relatives who caused you pain. One thing I've learnt through my work is life's not fair - there will always be people worse off and better off than ourselves, and it's hard to accept past pain and grief. Acceptance is the key otherwise we can eat ourselves up inside and no-one wants to be around us. Whatever the trauma/s we at some stage must let go. That's the place f was in, in relation to you. I had accepted your strong position." 1. The 1999 failed restaurant meeting had its own consequences. It initiated a further 5 year contact-free period between Everitt and Helen. But Everitt replied to Helen's letter. His reply is odd in a number of ways. Helen had written her letter to Everitt on a card which had a dove of peace on it. Everitt's reply highlights this feature and says: "Dear Helen, I was pleased to receive your card. I laughed when I saw the caption (dove of peace) as that is what I thought we had but it can only exist if we are poles apart." 1. The rest of Everitt's letter was hardly more encouraging of further contact between them. It referred to his attempts to prevent her being expelled from school. It referred to her alleged recent repetition of behaviour that he had disapproved of when she was young and then it concluded: "Sometime you may analyse your performance in detail and ask yourself how much you contributed to the warm family domestic atmosphere you write about [in your letter]." 1. Objectively construed, in my view, Everitt was sarcastically making the point that he thought that Helen had not contributed much to that warm family atmosphere. It is therefore not at all surprising that there was no contact between Everitt and Helen for another 5 years. Although Everitt concluded his letter by wishing Helen happiness in the new year he did not invite further contact himself. But Everitt's own words accurately summarised, in my view, how they could best get along – if they were "poles apart". 2. Helen was criticised in cross-examination for not responding further to Everitt's letter but, in my view, the criticism is unjustified. She says she was hurt by his letter and I accept that she genuinely was. It is not difficult to see why. It was difficult for her to deal with a reply tinged with sarcasm when she had written so positively about their past together. 3. Helen's niece, Susan's daughter Jasmin, held her 21st birthday in June 2004. She invited Helen to the party. This was a thoughtful attempt by Jasmin to assist in reconciling Helen and Everitt. Helen attended. 4. Jasmin's strategy worked. Everitt appeared genuinely pleased to see Helen. He was quite emotional about the renewal of contact with her. He said to her "Why the silence?" And she responded "I was obeying you dad. You said get out of my life. Don't come near me. I don't want to see you again". But it was clear that by this time Everitt wanted to change position and renew his relationship with Helen and she immediately responded. 5. They agreed to resume a long distance relationship. By then they both appeared to share the insight that distant communication was the best type of contact for them. They decided to enjoy what they could by telephone and letter. Some of their letters for this period are referred to below. Helen's perception of this ten year period following Jasmin's initiative and up until Everitt's death in 2014 was that it was probably "the most meaningful communication he ever had with me". Her letters to Everitt and his in reply during this period bear this out. 6. But there was also regular telephone contact in this period. I accept Helen's evidence that Everitt used to ring her regularly about all his health issues. Everitt regarded her as something of a source of information about health matters because of her degree in psychology and because she worked in a hospital. Helen says, and I accept, that the deceased rang her one night in 2008 when he was going through great pain in what he, Everitt described as "the worst night of my life". She stayed on the phone giving him solace. He did share many deeply personal confidences with her on the telephone. Not only do I draw this inference from Helen's evidence which the Court accepts but also from Everitt's post-2004 correspondence in which at times he also shares similar confidences with Helen. Helen and Everitt's Contact After 2004 1. I accept Helen's evidence that she saw Everitt again several times before he died. Helen saw her father on at least three separate occasions between her reconciliation with him in 2004 and his death in 2014. The first was in 2005 when she was visiting Sydney. She took him to lunch in the Botanical Gardens and then to the opera to see Puccini's Boheme for which she paid. The visit in 2005 coincided with Susan's marriage to her second husband Henry. 2. Everitt had made a will in October 2003 giving Helen the Double Bay property and Susan the Edgecliff property. After contact with Helen was resumed he made made another will in August 2006. It is a curious puzzle that after two wills in 1996 and 2003 that had benefited her substantially, this will made after his reconciliation with her, gave a substantially diminished share of his estate to Helen. The 2006 will gave to Helen Everitt's Woodside shares, which were only a little more in value than a legacy that he also gave to Katherine Taalman. 3. Helen came to Sydney for her nephew Thomas Payne's birthday in 2009. Helen recalls seeing Everitt over a period of about 3 days when they gathered together as a family. These gatherings included having lunch at the Hakoah Club and Tattersalls Club, and an occasion where they were joined by Helen's older sister Kathy (from Adelaide) and her partner. 4. Helen also attended Jasmin's wedding in 2012 and spent a day with Everitt afterwards in his home unit and had time with him at the wedding. Helen explained it is difficult for her to fly as she suffers from vestibular neuritis and that she is prone to having vertigo attacks and so she was hesitant to fly. 5. Ultimately Everitt became so ill he could not even write letters. Instead, he had a habit of ringing Helen on Saturday evenings. But even that form of communication ultimately became restricted in the last few years of his life, as Everitt's hearing began to fail. Everitt also underwent a number of medical procedures that made communication with Helen more difficult. 6. Helen was criticised in cross-examination for the fact that despite her difficulties with flying she never crossed the Bass Strait and drove to Sydney for the express purpose of seeing her father. But in my view these criticisms are not justified. Helen had settled the form of her correspondent relationship with Everitt and it was working. There was always a danger in direct personal contact between her and Everitt. Every attempt she might have made to see him face-to-face brought with it the risk of unpredictable conflict. In my view, she was not unreasonable in conducting the balance of her relationship at a distance. The Helen-Everitt Correspondence after 2004 and their Relationship 1. Helen kept and tendered in her case her correspondence with Everitt in the period from 1991 to 2013 (Exhibit A). Together with her testimony this correspondence gives considerable insight into the nature of their relationship. Caution is appropriate in attempting to draw broad inferences about relationships from a series of letters. But the exchange of correspondence gives important insight into this father – daughter relationship, especially after 2004. The correspondence does cover the period before 2004 but the development of Everitt and Helen's relationship over this earlier period has already been analysed in these reasons. So this analysis is focussed on the post-2004 correspondence up to 2013. 2. Close scrutiny of the post-2004 correspondence well supports the conclusion that the relationship between the two was and remained emotionally rich. Yet it was also attended by occasional and unpredictable volatility together with a propensity for each to misunderstand the other but then to make conspicuous efforts to try and clear up their misunderstanding and reconcile. 3. It is difficult to do justice to the course of this correspondence just by extracting passages from either Everitt's letters or Helen's letters. But some observations can be made about its overall effect using just a few illustrations. 4. Everitt's correspondence illuminates the agile mind of a man intelligently interested in State, Federal and international politics, economics, history, public administration, religion, sport, together with an overlay of broader cultural interests. His letters reveal the natural teacher of whom the grandchildren speak. He was ready to impart helpful advice to others. He had a strong self-reliant and entrepreneurial streak. The correspondence reveals he had a loving relationship with his late wife Clare and a deep affection for his children and grandchildren. 5. Helen's letters show a daughter trying to dwell upon the positive things in her past and present relationship with her father and make considerable efforts to ensure that her father not only did not misunderstand her but also did not misunderstand her sister Susan and other family members. I accept all the correspondence in Exhibit A as genuine. The period of time over which the letters were written and the deeply personal nature of their detailed contents displace any contention that they are an unrepresentative selection or an artifice of some kind. 6. Some highlights of this correspondence follow. Helen's very first letter after the reconciliation at Jasmin's 21st birthday starts with a simple observation "it was wonderful catching up with you in Sydney and I have been thinking of you often since my return". It then begins a pattern, repeated throughout this correspondence, of Helen telling Everitt about her day-to-day life in Tasmania and occasionally reminding him of stories of her past childhood with him. Everitt replied soon afterwards expressing pleasure "to see you and talk to you after so many years and to know that you are doing so well". He seemed quite proud of her attainment of a university degree. 7. In subsequent letters Helen recounted to her father much about her practice in Tasmania and gave him information about local geography and people. He responded by asking her for more information about herself and her life and telling her about what he was doing. In one letter in December 2004 he describes reading her recent letter as like "reading a best-selling novel". 8. Helen told Everitt in the correspondence about her difficulties with flying and his response was for her to "look after yourself if flying is upsetting you and causing you trouble". He did not express resentment that she was not readily able to fly out to Sydney to see him. When Helen's health was an issue, Everitt was prepared to talk about his perceptions of her health in the past. The correspondence returns at times to the difficulties that Everitt and Clare must have had in adopting Susan and Helen. The correspondence generally refers to the plaintiff's visits to Sydney and how much they both enjoyed them. Helen's letters are quite long at times, reflecting on what had recently been discussed between them on the telephone and trying to make Everitt feel positive about himself. For example she says in a letter at Easter 2006: "You also were a marvellous dad. You took your provider duties very seriously and ensured Susan and I were well educated in a good school. We enjoyed many wonderful holidays at the Entrance, Terrigal, Windermere, Bowral and Coffs Harbour and you had wonderful energy and spirit, a trickster sense of play, and a most infectious laugh'." 1. A letter of October 2008 from Helen to her father corroborates her testimony that he had some very personal conversations with her expressing deep sentiments about whether he could go on living at all, given his state of health and the absence of Clare from his life. In 2009 Helen talks proudly about the progress of her practice in Tasmania. But from 2010 on the correspondence becomes more preoccupied on Helen's side with giving comfort to her father about his declining state of health. 2. In a letter in April 2013, conscious of his declining health Helen asks him in her correspondence "Are you managing to get down to the flat still? What about a swim at Bondi or is your body a bit frail for that now? I know you are still giving Alex a run for his money on the pool table. He took a fantastic photo of you lining up the shots. You could have been in an Al Capone film, you looked so smart and deadly on your feet". 3. The correspondence often marks anniversaries or celebrations such as Christmas and Easter. On any objective reading, in my view, this correspondence shows a rich and satisfying relationship between Everitt and Helen in the last ten years of his life. 4. The defendant's case contains some evidence that is critical of the quality of the relationship between Everitt and Helen. It will be seen below that from time to time Everitt did make comments to his grandchildren about Helen being financially grasping and being suspicious of her motives. Other comments are made in the grandchildren's affidavits about Helen taking Everitt out to expensive restaurants when she was in Sydney and her having him pay. But I accept her evidence that she did pay for him. Although I accept the grandchildren's evidence, as will be seen below, Everitt did make some of these statements about Helen, the statements reflect his continuing ambivalence in aspects of his attitude to her. But in my view the fundamentally rich quality of their relationship cannot be doubted from the correspondence and her evidence of their telephone conversations. Everitt's 2010 Will 1. Everitt made his last will on 1 September 2010. Its provisions may be briefly summarised. After appointing the defendant as his executor and trustee he made a number of specific gifts of personalty: $40,000 to Katherine Taalman; his furniture, goods, jewellery and articles of personal or domestic use or adornment to Alexander Payne; his Woodside shares to Helen (but if she did not survive him by 30 days to Susan); and $50,000 to his son-in-law Andrew Payne. 2. The deceased then expressly disposed of two of his pieces of real estate and a corporate investment vehicle. He gave a property in Stafford Street, Double Bay ("the Double Bay property") to Susan but if she did not survive him by 30 days then it would pass to Helen. In providing for this alternative gift he indirectly recognised Helen's claims on him. He gave an apartment in Edgecliff Road, Edgecliff ("the Edgecliff property") to Alexander Payne. He gave his securities in the investment vehicle Rombin Valley Pty Ltd ("Rombin") to Thomas Payne. He then gave the residue of his estate to Jasmin Kooper, Alexander Payne and Thomas Payne in equal shares. That residue included two other items of real estate, investment properties in the Forest Knoll, Bondi Beach ("the Bondi Beach property") and in Victoria Street, Potts Point ("the Potts Point property"). 3. Despite leaving relatively little to Helen in the 2010 will, about a month after it was made Everitt was telling officers of the defendant (as they recorded in their files - Exhibit 2) that "I have Helen's phone number and post box number and we keep in touch by telephone and her letters". Everitt's Death and the Administration of the Estate – After May 2014 1. Everitt died on 31 May 2014. Shortly before he died Susan asked Everitt if he wanted to see Helen. I accept Helen's evidence that she told Susan that she did want to see Everitt. But he declined. Given their correspondence, perhaps the best explanation for his decision is that their relationship had been healthy at a distance and he wanted to keep it that way, even to the end. Helen attended his funeral. She delivered a eulogy for him. 2. Helen filed her Summons commencing these proceedings on 29 October 2014. Probate of the 2010 will was granted to the defendant, the Trust Company (Australia) Pty Ltd on 19 December 2014. 3. Everitt left a substantial estate and a will which made careful provision for its distribution. Some understanding of the extent of the estate is necessary. The Financial Position of the Estate 1. The parties ultimately agreed to disagree about the financial position of the estate. But they helpfully prepared a table showing the final differences in their respective positions. They disagreed about the total value of estate assets and the total quantum of estate liabilities. A table identifying their respective positions is set out below. There is a final gross difference between them of about $1.3 million in the total estimated distributable estate. The Court has not found it necessary to resolve these remaining differences in valuation between the parties in order to decide the issues for determination. Nor is it necessary to go further into the various disputes that have been raised about the value of estate assets. Asset Plaintiff Defendant Real estate $930,000 $930,000 • The Edgecliff property $975,000 $810,000 • The Double Bay property $4,100,000 $3640,000 • The Bondi Beach property $1,050,000 $930,000 • The Potts Point property $7,055,000 $6,310,000 SUB TOTAL Cash $211,441.26 $211,441.26 • F03499 $15,459.18 $15,459.18 • F03488 $16,024.11 $16,024.11 • F03469 $52.63 $52.63 • F03535 $8564.70 $8564.70 • F03506 $251,541.88 $251,541.88 SUB TOTAL Shares $1,402,172.35I $1,367317.19 Rombin Valley $60,083.52 $60,083.52 TOTAL ASSETS $8,768,797.60 $7,988,942.40 Liabilities & Expenses $403,882.32 $403,882.32 Liability owed to Rombin by Estate $60,083.52II $60,083.52 CGT Tax Liability for Residuary Estate $600,000III $600.000 Rombin Valley Accountancy Fees $10,000IV $10,000 Legal Fees Re Litigation $38765.52 $100,000 LIABILITIES & ANTICIPATED EXPENSES $502731.36 $1,173,965.80 Reserves for realisation $108762.78V $145,512.78 TOTAL LIABILITIES $611494.14 $1,319,478.50 Total Estimated Distributable Estate $8,157303.50 $6,669,463.90 Legal Costs of the Parties 1. In accordance with the Court's practice directions the parties gave an estimate of their respective legal costs and disbursements. 2. The defendant, through its solicitor Mr Phillip Brand, who has the conduct of these proceedings on behalf of the defendant at Bartier Perry, estimated the defendant's legal costs and disbursements in the range of $85,000 to $90,000 plus GST, including a two day hearing calculated on the indemnity basis but these figures did not include the costs and expenses of a mediation which had taken place between the parties. 3. Mr George Szabo, the solicitor for the plaintiff estimated the plaintiff's legal costs and disbursements inclusive of counsel's fees and all costs and legal disbursements, including the mediation, on the ordinary basis was in the range of $70,000 to $75,000 inclusive of GST. 4. These proceedings were very efficiently conducted by the lawyers and parties on all sides. Reasonable decisions were made to economise the conduct of the oral hearing so that only essential cross-examination took place. The oral hearing was confined to one day followed by some exchanges of written submissions late last year and early this year. The costs incurred on both sides were well within the range of what should be regarded as reasonable for a case of this kind. Applicable Legal Principles "Eligible Person" Succession Act, s 57 1. The applicable legal principles are not in contest. For an order for provision to be made under Succession Act, s 59 in favour of an applicant, the Court must be satisfied that the applicant is an "eligible person" within Succession Act, s 57. Helen is an "eligible person" as a child of Everitt: Succession Act, s 57(1) "eligible person" (c). Helen made her application within time. Adequate Provision 1. The final questions now relate to whether an order for provision should be made in Helen's favour. The test of whether provision should be made in any case is set out in Succession Act, s 59(1)(c):- "(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: … (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both." 1. There are many judicial statements summarising the operation of what is said to be a two-step provision. For example in Singer v Berghouse (No. 2) (1994) 181 CLR 201 at 209, the High Court of Australia said of the test under the previous legislation:- "The first question is, was the provision (if any) made for the applicant "inadequate for [his or her] proper maintenance, education and advancement in life"? The difference between "adequate" and "proper" and the interrelationship which exists between "adequate provision" and "proper maintenance" etc. were explained in Bosch v Perpetual Trustee Co8. The determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder9, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors." 1. Whether the two-step test operated with the same full vigour in the current legislation has been recently discussed in the Court of Appeal: Evans v Levy [2011] NSWCA 125. But such considerations are not an issue in this case, which is a very clear one on the question of whether or not adequate provision has been made for Helen once she has been shown to be an eligible person. 2. Other authorities explain in greater detail the meaning of the words in the legislation "adequate", "proper", and "advancement in life". Some of these authorities have been conveniently collected in the decision of Hallen AsJ in Drury v Smith [2012] NSWSC 1067 at [153], [154], [155], [158] and [160], which relevantly provides:- "[153] Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16: "Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541) In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274... In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said: 'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.' The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that: 'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'" [154] In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J at [114] noted: "In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support." [155] In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)." … [158] Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that: "It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent." … [160] In Vigolo v Bostin [2005] 221 CLR 191, at 228, Callinan and Heydon JJ said: "[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."" 1. It is useful now to examine the financial position of the other principal beneficiaries. The Other Principal Beneficiaries 1. Susan's children, Jasmin, Alexander and Thomas received the residue of Everitt's estate. This was a logical provision. They had close and regular family contact with Everitt in his later years. 2. Jasmin is the eldest of Everitt's three grandchildren, Alexander the next eldest and Thomas the youngest. Their own respective personal and financial situations are a relevant consideration in the exercise of the Court's Succession Act discretion. This section in the Court's reasons deals with their current situations. Each of Jasmin, Alexander and Thomas receive both real estate and residue under the deceased's will. Jasmin Kooper 1. Jasmin was born in June 1983 and was 32 years old at the time of the trial. She always had a close relationship with her grandfather Everitt. Everitt derived great satisfaction from his relationship with Susan's children. Jasmin's evidence provides some excellent examples of their joint times together with their grandfather. Susan would take Jasmin, Alexander and Thomas to visit Everitt and Clare every week. Jasmin recalls Everitt encouraged her piano playing and introduced her to tennis at the age of 7. Perhaps because of his accountancy background, he spent time teaching Jasmin mathematics and helping her to understand tennis when the bigger competitions were being played. She recalls many weekends spent at the White City Tennis Club, where she and her younger brothers Alexander and Thomas would watch Everitt finish his tennis matches. Then they would all have lunch together. They sometimes played tennis together on centre court, enjoying the aura of the forum of world champions' contests. 2. A stronger grandchildren-grandfather relationship developed after Clare died in 1991. Everitt dined with Susan's family each week. Jasmin, Alexander and Thomas telephoned Everitt on a regular basis to inform him about their news. 3. Tennis was an important bond between Jasmin and her grandfather. She enjoyed Everitt's company more on a one-on-one basis as she grew older and would go to White City where they would have a tennis game and lunch together. 4. Everitt was an important point of stability in Jasmin, Alexander and Thomas' lives when Susan separated from her husband and then formed a relationship with Henry Steltzer who she later married. Throughout this period Everitt continued to have regular dinners with Jasmin, Alexandra and Thomas and their father mid-week. Everitt got on very well with his grandchildren's father, Susan's first husband. Everitt enjoyed playing the violin whilst Susan's first husband and Thomas played the piano and Jasmin played the guitar or sang. 5. After leaving school at 19 in 2001, Jasmin travelled to England for two years. Everitt wrote to her to convince her to undertake tertiary education when she returned home. Jasmin shared her travel experiences with Everitt by mail as well. 6. Jasmin took her grandfather's advice. Upon her return to Australia in 2003 she enrolled at Macquarie University. She undertook a Bachelor of Arts (Dip Ed). Everitt gave Jasmin direct financial assistance to help with her university course and to meet her other financial obligations during her studies. 7. Jasmin graduated. Everitt took great pride in her achievement. She felt a strong sense of obligation to him: he was the one that had encouraged her to undertake and complete the degree. 8. Jasmin encouraged her younger brothers Alexander and Thomas to spend as much time as possible with their grandfather. I accept that Jasmin was not always able to see her grandfather every week but she did so as often as she could. Everitt had a fall in July 2013. This forced a number of practical changes in the relationships between Everitt and each of Jasmin, Alexander and Thomas. Everitt was admitted to hospital for assessment. Jasmin visited him there daily. 9. Everitt was discharged from hospital. But further assessment a few weeks later diagnosed him with bowel cancer. He decided to undergo another operation. 10. Jasmin says, and I accept, that whilst Everitt was waiting for the surgery he spoke to Jasmin, her father and Alexander and said to them words to the effect "I have told you where my will is. Make sure it's safe. I want you all to be careful of Helen as I know she will not be happy with my final wishes and will contest the will. I know she will want more money but I don't want her to have it as she hasn't been in my life for so long". 11. The Court accepts that Everitt did make such a statement. There are several reasons for this. Jasmin was not cross-examined. The will itself is consistent with the sentiment Everitt expressed on this occasion. And it is inherently likely he would have said something on this kind of subject just before he went in for such major surgery. 12. But Everitt's description of Helen "She hasn't been in my life so long" was not accurate, if it was meant as a general description of his and Helen's relationship. Whilst Helen was not then seeing him face-to-face, they were corresponding regularly in terms of considerable personal trust and intimacy. 13. But the surgery was not successful. Everitt did not recover. He returned to his home unit to receive palliative care. Jasmin says she recalls that the day Everitt died Helen called her. Upon Everitt's death being confirmed to Helen Jasmin's recollection is that Helen said to her, "Do you know who the executor of the will is? The will could be in jeopardy if there is no executor". Jasmin says she was not inclined to discuss the issue at that time. This was a difficult day for Jasmin. She was the only family member in Sydney. Upon hearing the news she and her husband arrived at Everitt's home unit, confirmed his death, and were the family members who waited for the doctor and then for the undertakers. Unsurprisingly, the day was one of stark recollections for her. 14. I find that Helen did say these words to Jasmin, although Helen denies that she did. But it was an emotionally tumultuous day for everyone. Not everything said on the day of a death can and will be perfectly appropriate. But Helen did say to Jasmin words to the effect "Is he really gone?...I am sorry Jazz. Did he go peacefully?...It must be really hard for you with both your brothers away. Is there someone with you now?...Is there anything I can do?..." Helen was not just talking about executors to Jasmin. 15. After graduating with her Bachelor of Arts and Diploma of Education in 2008, Jasmin became a primary school classroom teacher working for the Department of Education and Training. She currently holds a permanent full time position at Randwick Public School, which she attained after a strongly competitive application process. 16. She works long hours, as does her husband Stephan. She works approximately 11 hours a day at school. She completes more preparation at night and spends a minimum of 6 hours on the weekend in preparation as well. Jasmin's husband Stephan is a teacher at the junior school of Abbotsleigh School for Girls at Wahroonga where he works up to approximately 13 to 14 hours a day and sometime on weekends. 17. Jasmin took maternity leave in January 2015. 18. In parallel with her work as a school teacher, Jasmin has been slowly establishing her own photographic business ("Jazzy Photography"). Her business is not currently profitable. But her long term objective is to operate her own studio specialising in family portrait photography. She hopes through the income generated to be able to take care of her children at home, without having to send them to day care. But for the present Jasmin must make do with working on Saturdays on this business, either on her photography assignments, developing the website for the business, constructing advertising pages, adding to her blog and dealing with client correspondence. Her business is almost covering outgoings. Substantial investments are required in photographic equipment, accreditation marketing, show albums, professional development and equipment. For example in the last financial year her income was $7,151 and her total outgoings $8,528.24, including for capital, equipment and other recurrent expenses. 19. Jasmin and her husband Stephan want to give their future children the best start in life. For the present that involves saving enough money for child care to cope with their long hours but also ensuring the children have swimming lessons and music classes. Jasmin suffers from a number of medical conditions that it is not necessary to detail in these reasons other than to say that past and future child bearing will be far more expensive for her and her husband than for many other couples and she is likely to have other ongoing medical needs. Her and her husband's first child Eloise was born in January 2015. They reside in Lane Cove in a home unit. 20. Jasmin received some but limited assistance from Everitt during his lifetime. As earlier indicated in these reasons, in 2004 he contributed $3,000 towards her university fees to assist in her completing of her Bachelor of Arts degree. 21. The family balance sheet for Jasmin and Stephan shows the substantial debt levels one might expect for a young couple starting to make their way in life. Their Lane Cove home unit is valued at $720,000 and they have an investment property in Haberfield appraised at $410,000. But they owe $325,000 on the Lane Cove unit and $218,000 on an investment loan for the Haberfield property. Jasmin has accumulated a small amount of superannuation and personal savings and has a motor vehicle. But all these other assets come to no more than about $45,000. Although in a post-trial adjustment the parties agreed that Exhibit C shows that Stephan's accumulated superannuation should be added to these figures at $109,254.67. The couple have other personal liabilities to financial institutions and to family totalling almost $70,000. 22. In the 2014 financial year ("FY14") Jasmin's taxable income was $64,460 and her husband Stephan's $110,127. From this joint income they are required to meet monthly expenditure of $6,600 (including the tax deductable expenditure of the investment loan for the Haberfield property and the outgoing for the photography business). Their joint net incomes would indicate that the family budget is cash flow positive but there is little spare capacity to meet future expenditure. Alexander Everitt Payne 1. Alexander was born in April 1985. At the time of the trial he was 30 years of age. Alexander's relationship with Everitt developed from early childhood. Everitt's stories of his rural youth made a strong impression on a young Alexander. He has strong memories of Everitt's weekly dinner visits at the Payne family home. Everitt would share his musical ability with the Payne family. Although Susan and her husband divorced in 1999 the grandchildren and Susan's ex-husband continued their weekly contact with Everitt and maintained a growing relationship. 2. In his late teens Alexander regularly met Everitt on weekends for snooker and lunch with other family members, including his girlfriend Felicity, to whom he is now married. Alexander recalls, and I accept, that these family outings continued right through until Everitt was hospitalised in 2014. They started originally at the White City Tennis Club. When it closed they transferred to the Hakoah Club. When in turn it closed they migrated to the Beach Road Hotel in Bondi. Even in his 90s Alexander and other family members were taking Everitt to the Beach Road Hotel, and staying with him from 9am until about 3 or 4pm, "either playing pool, chess or just chatting about life". 3. Alexander's account shows the claim the grandchildren held on Everitt's testamentary bounty. A widower since 1991, his contact with his grandchildren was undoubtedly one of the most supportive parts of the last decades of his life. Because of that bond the generosity towards his grandchildren in his will is logical. 4. I accept Alexander's evidence, supported as it is by the other grandchildren in different ways, that Everitt, "loved learning and encouraged us to never stop learning". I accept Alexander's evidence that Everitt wanted the three grandchildren to "have a good step up in life". 5. After leaving school Alexander qualified as a cabinet maker. After Everitt had his fall in 2014 and came home Alexander made use of his skill for his grandfather. He installed hand rails and a door stop in his unit. Alexander, like the other grandchildren, was present when Everitt went into surgery. 6. Alexander married Felicity in December 2011. They organised a belated overseas honeymoon for May 2014. Everitt died whilst they were away. His funeral was held the day that they returned to Australia. 7. Alexander appeared to have a keen understanding of Everitt's capacity for disagreement; a capacity for disagreement which Helen encountered in a more intense way. Perhaps because of the difference of an extra generation, Alexander was able to manage it better than Helen. Alexander says the following of his friendship and his disagreements with Everitt: "Papa was not only my grandfather, he was my best mate. Sure, we had our differences; he was very argumentative at times and would often get so worked up during discussions that he would give me the cold shoulder. He would call me up later and start talking to me about the football or tennis; this was his way of apologizing and making sure that there were no hard feelings; and there never were. The next visit would be like we had never disagreed in the first place." 1. Everitt's disagreements with Helen had a much sharper edge than with his grandchildren. I accept her own account of these disagreements. But Alexander's evidence shows that even without the history of conflict that had plagued Helen's early life, disagreements with Everitt could arise quickly and be unsettling. 2. Alexander's evidence also shows why Everitt left the Edgecliff unit to Alexander: "Papa and I spoke often about our mutual respect for our belongings and how we both liked to take care of things so that they would last for years. I was always very impressed with his immaculate clothing that he had been wearing for decades, and at how he looked after his flat and belongings. I never knew he had planned to leave me his unit in Edgecliff in his Will, but in hindsight, it was probably our shared respect for things being built to last that helped with his decision to leave it to me. He would take comfort in knowing I would look after it and restore the original style of his unit to its 50's-60's days. We spent the last 5 or so Christmas mornings in that unit with him as it was getting hard to organise a Christmas family lunch with so many other sides of family to visit. This, in addition to the numerous Sundays spent there, make his unit a very special place for me, filled with lots of fond memories." 1. Alexander gives an account of Everitt explaining his own perspective as to why there was conflict between himself and Helen. As he reflected on life, he sought to explain to his grandchildren the source of the tension with his daughter Helen: "I sometimes struggled raising two girls. We had no previous experience with kids and my own upbringing was difficult. Helen was difficult - she always displayed a sense of entitlement, as though she was owed something for having a 'poor childhood', I tried my best I gave those girls everything - adopting them, feeding, clothing and educating them, it all got thrown back in my face when they said I was a horrible father. I'm not the best, I know, but I sure did the best I could." 1. I infer from this that the continuing early conflict between Helen and Everitt had created a distance between them in Everitt's mind. Over several years before Everitt's death I accept that he said to Alexander on a number of occasions word to the effect: "Helen will contest the Will. I know what she's like, she won't be happy unless she gets it all. You must be prepared for that" 1. I accept Alexander's evidence that just before Everitt went in for his last operation he said to a number of family members in Alexander's presence: "I'm sorry but Helen is going to be a nightmare, she wants it all and she won't stop until she gets what she wants, it's her greedy personality. She has always been like that" 1. These kinds of sentiments give Everitt's perspective on his provision for Helen in his will. But Everitt's words to Alexander do not engage with the subtlety of Helen and Everitt's relationship as found in these reasons. 2. Alexander even remembers Everitt talking of Helen's letters in the last ten years, explaining why she could not see him or speak with him over the phone. Everitt said to Alexander one day that he and Helen "just don't get along, she is greedy, selfish and manipulative at the best of times". If Everitt said to Alexander that he did not speak to Helen over the phone in the later years of his life I do not accept what he said is correct. 3. Alexander points out that Helen came to Sydney only a few months before Everitt died to see Susan but did not visit Everitt. He points out that Susan was able to visit her father even though she too had a quite tumultuous relationship with him. But as the Court's earlier findings show, it was Everitt's decision not to see Helen at this later time. 4. Alexander is employed full time as a cabinet maker. His wife Felicity is self employed as a personal trainer. At the time of the trial they had just had their first child and Felicity was not working in that capacity. The couple's aim is for Felicity to go back to work as soon as possible after the birth of their child. 5. Alexander and Felicity struggle financially. Shortly before the trial they sold their first home which was a very small (29 square metre) unit in Rozelle. They sold this unit to prepare both financially and practically for the birth of their first child. The property was purchased in 2010 for $260,000 and sold in 2015 for $375,000. Apart from being very small, the unit was up several flights of stairs and had no allocated parking spot. Alexander and Felicity have been given some baby items by friends and family but their baby-related expenses so far have totalled about $3,500. Neither of their current vehicles is suitable for a baby and they would like to purchase a second hand five seater vehicle in the $25,000 to $30,000 price range as their family car for the future. As a result of these decisions Alexander and Felicity live in rental accommodation in Rozelle. 6. Alexander and Felicity's family balance sheet is uncomplicated. They have superannuation, bank accounts and motor vehicles totalling a little under $45,000. They have liabilities of $4,000. Alexander's income in FY14 was approximately $56,000 gross and his wife Felicity's income about the same. But they have monthly expenditure of about $8,500. As a result their position is strongly cashflow negative, especially whilst Felicity is not working. Alexander and Felicity wish to move into the Edgecliff property he receives under the 2010 will as soon as they can after renovating it. Thomas John Payne 1. Thomas Payne is the youngest of Everitt's three grandchildren. At the time of the trial in September 2015 he was 28 years of age. Like his older siblings he spent much time with Everitt at White City Tennis Club and after Clare's death he made sure that he would see Everitt on a weekly basis. 2. Thomas was only 11 when Susan and her husband separated in 1999. His father and his other siblings continued to live in the family home in Balmain. Everitt came home for dinner to be with them mostly on Wednesday nights. 3. Like Alexander, Thomas remembers Everitt being critical of them from time to time. But it seemed obvious to Thomas that this was often for the purpose of ensuring that the grandchildren could defend their positions in arguments. Thomas had instructive conversations with his grandfather. 4. Thomas observed that Everitt was often lonely in his flat and enjoyed the conversations that the grandchildren provided on a regular basis. Thomas also recalls that Everitt took pride in the fact that Thomas had become financially self-reliant after leaving school. 5. Thomas had a number of conversations with Everitt about his relationship with Helen and the grandchildren's mother Susan. I accept that these conversations took place and that they represented Everitt's genuine views. Thomas recounts that Everitt shared with him that he did have respect for Helen, particularly for her "guts and her ability to get her way". And Everitt acknowledged her mental illness, "and how he had tried to be there for her when she needed help". Thomas said that Everitt said to him that he, "really did feel for her [Helen] and tried to do everything he could to help her". But the problem from Everitt's point of view, according to Thomas, was that Everitt, "never felt like she [Helen] acknowledged him for what he did and he felt somewhat disrespected by her". Everitt seemed to summarise all of this with a resigned statement to Thomas, "if it weren't for your dad and you kids I would have no one at all". 6. Everitt was suspicious of Helen. According to Thomas, he even construed Helen's letters to him as objects of potential manipulation and therefore as items to be dealt with carefully. I accept Thomas' evidence that Everitt said to him, of those letters, words to the effect: "At first I thought the letters were nice of her but soon I thought she's up to something. The letters don't make a lot of sense. Suddenly saying all this information without any meaning to it....I will continue to write to her. But I don't trust her. I know she's up to something but I'm just not sure what. I don't know what she is hoping to achieve through these letters." 1. Everitt passed on the benefit of much of his life experience in relation to shares, property and finance to Thomas, who ultimately became a property consultant in London. When discussing his will and his estate with Thomas on one occasion, Everitt said to Thomas: 'Helen will try and challenge my Will, She is a very greedy woman, and she will be a lot of trouble for you in the future. I trust you three and I need you to be financially responsible' 1. Everitt supported Thomas' career and offered him financial assistance and reinforced, as he had with Jasmin the importance of education. 2. Thomas left Australia in September 2012 to study in London in post graduate full time study at University College London a Masters Degree in International Planning (Urban Design). Thomas has a Honours degree in Science from the University of Sydney and his Master of Science (International Planning – Urban Design) with distinction from the University College London. 3. After completing his Master of Science Thomas returned to Sydney for the summer vacation of December 2013 to January 2014. He then returned to London to take up a job as a property consultant. He returned to Sydney for Everitt's funeral. 4. As a young single man Thomas' personal balance sheet is uncomplicated. He has superannuation, computers and bank accounts worth a little over $15,000. But his liabilities include a HECs debt of over $40,000, which exceeds his assets. His taxable income in the FY14 was just over $45,000. His monthly expenditure is $4,462. Susan's Financial Position 1. No evidence was advanced to the Court about Susan's financial position or need for capital. Nor were any submissions put about it. Helen's Version and the Grandchildren's Version 1. One of the enduring puzzles of this case is whether Helen's account of her early life with Everitt including aspects of his apparently cruel treatment of her can be reconciled with the picture of Everitt, the benign grandfather, which the three grandchildren paint in their evidence. Both of these pictures have been presented in these reasons. They are markedly different. 2. Can they be reconciled? In my view it is quite possible to accept as accurate both what Helen says of Everitt's early ill-treatment of her and the grandchildren's picture of the relaxed, lively, caring and engaged grandfather that they knew and whose company they enjoyed so much. 3. I accept the plaintiff, Helen, as a witness of truth. I accept the accuracy of what she says about Everitt's conduct towards her in her teenage years, conduct that was at times positive but which in the early years was at times also very negative. Helen was effectively cross-examined by Mr Ellison SC who tested the account which she gave in her evidence of her relationship with Everitt. But her account of their relationship, in my view, entirely survived this exacting test and is nevertheless to be accepted both as to her early and her later years. 4. The three grandchildren were not cross-examined. From that fact alone their evidence must be accepted unless it is inherently improbable. But the account which they each give to the Court is inherently likely to be true. Each corroborates the other in their evidence about their grandfather, who clearly was closely interested in and drew much energy from their lives. They talk in compelling detail of their common experiences with Everitt. Each reinforces the accounts of the others. 5. But there is a 40 year gap between Helen's early negative experiences and the grandchildren's positive experiences with Everitt. Their versions represent quite different stages in Everitt's life. Everitt had understandably greatly changed between the early 1970s in the early 2010s. His age, his circumstances and his needs were very different in these two parts of his life. After 17 years of marriage without children, Everitt found himself, no doubt partly to oblige Clare's loyalty to Nancy, suddenly bringing up two daughters, who because of their histories of orphanage care, had a deep need for further affection and reassurance. At the same time as the two girls were in their most boundary-challenging teenage years, with Clare's assistance Everitt was expanding his entrepreneurial horizons from practice as an accountant into property development. By the early 1970s personal and family pressures were nearly at their maximum in his life; although he was yet to face the burden of nursing Clare up to her death in 1991. That Everitt might occasionally cross acceptable social boundaries in his treatment of Helen given the accumulation of all these pressures is at least explicable. 6. In the last five to ten years of his life Everitt had long been a widower and had not remarried. Helen was living in Tasmania. Susan was living on the south coast of New South Wales. He was comfortably well off. The main pressures on him were staying engaged socially with people around him and taking care of his own health. But he seemed to do that well and his grandchildren were an important source of comfort and inspiration in his life that he clearly needed. None of the financial pressures and parental obligations that had borne down upon him so strongly 40 years earlier remained. He was free to relax and be himself with his grandchildren. And he regularly enjoyed their company for extended periods. 7. In my view, Helen's and the grandchildren's evidence about Everitt can both be accepted once these differences in his circumstances when they encountered him are understood. But the grandchildren's evidence is also important in showing that Everitt's attempts to put the best face on his relationship with Helen in his communications with her nevertheless concealed some underlying disquiet about her, which in my view probably explains why he made considerably less provision for her in his 2010 will than for Susan. On the correspondence that she had had with him Helen was well entitled to think that she had done her best to restore her relationship with Everitt. But in my view he still held some reservation about her conduct, the origins of which are very obscure but which was nevertheless quite powerful in his thinking. Helen's Current Financial Position and Financial and Medical Needs 1. Helen swore an updating affidavit setting out the current family balance sheet of herself and her husband. Helen and Adam live in a property in Launceston ("Trevallyn"), and have two recreational properties at Lulworth (described below only by their street numbers) that are vacant land but which are located in very picturesque natural surroundings. They visit these properties on a regular basis. 2. As at the date of the hearing all the joint assets of the plaintiff and her husband Adam Bindoff were as follows: House and Land at Trevallyn (2015 valuation) $280,000.00 Vacant Land at 62 Lulworth (2015 valuation) $135,000.00 Vacant Land at 46 Lulworth (2015 valuation) $67,500.00 Cash in Joint Bank Accounts: $6,069.00 Helen's Superannuation as at 27/8/15 $153,932.00 Adam Bindoff's Superannuation as at 27/8/15 $74,298.00 Mitsubushi ASX diesel 4x4 Motor Vehicle (Valuation 7/4/15) $17,000.00 Musical Instruments etc $9,000.00 Gross total joint assets: $742,799.00 Liabilities: Mortgage over land at 62 Seascape Dr $54,004.00 Unpaid legal fees to Szabo & Associates & counsel $28,671.00 Total Liabilities: $82,675.00 Total net joint assets (including superannuation): $660,124.00 1. Helen earns regularly weekly income as a clinical psychologist and her husband Adam works as an administrative manager in her practice. Thus his income is presently dependent upon the security of her practice revenue. Helen earns $800 per week after tax and her husband Adam takes $580 per week net after tax out of the business for his services, making a total between the two of them of $1,380 per week, or $71,760 per year net after tax. 2. Helen divides the family's essential and discretionary spending as follows. Her family's essential spending on food, groceries, medical and pharmaceutical expenses, transport, petrol, communications, health insurance, other insurance, utilities and mortgage payments averages $854 per week. The family's discretionary spending on items such as clothing, footwear, travel, hobbies, entertainment, restaurants, home maintenance, alcohol and small one-off purchases amounts to $231 per week. Thus, the family's total essential and discretionary expenditure is $1,085 per week or $56,420 per annum. Thus, Helen and Adam Bindoff have a modest surplus of annual income and annual expenditure of $15,340 per annum. 3. Whether Adam has any realistic earning capacity outside of Helen's psychology practice has not been demonstrated. Given his and Helen's ages a number of observations are appropriate about their financial position looking ahead. The first observation is that their future financial stability is heavily dependent upon Helen's health and the financial health of the practice. Should either of these experience an unexpected reverse they may find themselves not with a $15,000 surplus of income over their expenditure but in a position where they have to draw upon existing savings or superannuation. 4. Secondly, between them their cash savings are only a little over $6,000 and their superannuation a total of $229,000. Without undertaking complex calculations this amount of superannuation savings is unlikely to sustain Helen and Adam through retirement without the probable need to sell one of their recreational properties at Lulworth. 5. Thirdly, I accept the plaintiff's evidence that she is already experiencing considerable fluctuations in annual income due to factors such as her physical health and complications associated with her mental health, normal variations in business trading conditions and regulatory changes. She says, and I accept, that due to the need to maintain a stable, relatively stress-free working life she works restricted hours, averaging about 5 hours per day, 3.5 to 4 days per week. I accept that she has little capacity to increase her working hours to meet any unexpected financial demands upon her or her husband. 6. Helen's medical treatment is ongoing. She is still being successfully treated and reviewed for her bipolar disorder. This is understandably a requirement of her capacity to practice as a psychologist. Her treatment can affect her working capacity from time to time and she may suffer effects of her medication over time. Medical evidence suggests that Helen requires close management for her bipolar disorder which is quite severe at times. The overall effect of her disorder is that she is only able to work a little over 50 per cent of the capacity of a colleague working a normal 38 hour week. Reduction in her working capacity is occasioned by the need to take regular holidays and reduce her client load. She has another condition requiring treatment by an endocrinologist but this does not appear to affect her working capacity. Consideration The Relevance of the Provision for Helen in the 2010 Will 1. At the defendant's request on 31 March 2016 the Court gave leave to the parties to put on supplementary submissions. The defendant did so on 6 April 2016. The plaintiff replied on 14 April 2016. These supplementary submissions principally dealt with the legal principles that govern the Court's consideration of the various wills that Everitt had made over the years and especially the 2010 will. 2. Mr Ellison SC's supplementary submissions on behalf of the defendant emphasised that in a series of wills over many years Everitt had closely considered the benefits that Helen should receive, as he himself saw and judged his relationship with her. The defendant's submission emphasised that Everitt did not make merely nominal provision for Helen but had made substantial provision in his 2010 will. Whilst acknowledging the jurisdictional test that the Court must consider, whether Helen has received "proper and adequate" provision, Mr Ellison SC submitted for the defendant that the Court "should not move away from the overriding principle of freedom of testamentary disposition". 3. Mr Ellison SC principally based his submission on two decisions of White J, Slack v Rogan and Anor [2013] NSWSC 522, especially at [125] – [127] ("Slack") and Friend v Brien and Anor [2014] NSWSC 613 at [63] ("Friend") and the decision of the Court of Appeal in Salmon v Osmond [2015] NSWCA 42 at [69] - [74], per Beazley P ("Salmon"). 4. These decisions make clear that the existence of the jurisdiction conferred by the Succession Act itself means that there is no "overriding principle" of freedom of testamentary disposition. But the cases do emphasise that the Court can and should in appropriate cases give proper weight to a capable testator's conscientious judgment about particular beneficiaries as expressed through the testator's various testamentary instruments. 5. In Slack at [125] – [127] White J pointed out that to the extent that the Succession Act goes beyond allowing provision to be made in favour of spouses and minors or disabled children it probably runs counter to community expectations about freedom of testamentary disposition. Referring to statements of Basten JA in Andrew v Andrew (2012) 81 NSWLR 656, White J said that the only guiding light consistent with the rule of law for the identification of community standards are those reflected in the Succession Act itself. And attempts to identify particular community standards - such as for example that a widow's claim is paramount – have all been rejected over the years. White J, in Slack at [126], re-emphasises the effect of the authorities cited earlier in these reasons: that the question of whether provision made for an eligible applicant is adequate for his or her proper maintenance, education or advancement in life is to be assessed having regard to the facts and circumstances of each individual case at the time of the hearing. The assessment involves a broad evaluative judgement which is not to be constrained by preconceptions and predispositions. As White J said at [126], "This really means that there are no definite criteria for the exercise of the evaluative judgment". 6. But White J added at [127] that in his view 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. His Honour said this in full: "In my view, 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. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013 NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and (2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will." 1. In Friend at [63] White J repeated these views pointing out that there is a range in which views may legitimately differ as to what provision is adequate for the proper maintenance, education and advancement in life of a person and in certain circumstances this may inform whether the Court should substitute its own judgment for that of the testator. His Honour said: "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. The defendant submitted that the tenor of these statements was confirmed in Salmon at [69] – [74] per Beazley P. 2. In response to these submissions Mr Morrissey put a number of submissions on Helen's behalf. He submitted that freedom of testamentary disposition is not unfettered, citing Brereton J's statement in Taylor v Farrugia [2009] NSWSC 801 at [11] ("Taylor") that the Succession Act recognises that Australians have the freedom to leave property by will as they wish with the exception that a person must fulfil any moral duty to make proper and adequate provision for those that the community would expect such provision to be made, before they can leave money as they wish. His Honour then proceeded: "Thus, in these cases, one does not ask if the will is fair, one does not ask if the testatrix divided her property equal, one does not as a judge ask how would I have made a will had I been the testatrix. What must be asked is did the testatrix fail in her moral duty to those who have a claim on her. Even if the Court comes to the view that the question should be answered in the affirmative, the Court still does not remake the will, but only alters it to the extent adequate provision is made for the eligible person in respect of whom the testatrix failed in her moral duty." 1. Then Mr Morrissey submitted that "nominal" is a relative term in that the provision which the deceased made of the parcel of Woodside shares really only represented about 2.5% of the value of the estate. Mr Morrissey's submissions implied that this sum could best be described as "nominal". Mr Morrissey further submitted that the disposition in the 2010 will of the parcel of Woodside shares to Helen does not fall within the range of what is adequate for her proper maintenance and advancement in life. Mr Morrissey then referred again to the passages from Beazley P's judgment in Salmon at [73] and [74] already cited above in these reasons. 2. In my view, there is no real issue of legal principle between the parties in relation to how the deceased's judgments in the 2010 will should be considered. The authorities cited above are generally consistent with one another and with the summary of principles set out earlier in these reasons. But it seems to me that in both Slack and Friend White J was making statements that may well be of considerable assistance if particular circumstances are satisfied: namely circumstances that the deceased has conscientiously made a judgment about how the estate should be disposed of; that judgment falls within the range in which views may legitimately differ as to what provision is adequate for the proper maintenance and advancement in life of the beneficiary; and circumstances have not materially changed between the time of the making of the will and the Court's considering the position. Considerable weight should be given to a testator's views if these circumstances are found to exist. 3. Mr Ellison SC's submission is correct in one main respect. This is a case where it can be said the deceased has given thorough consideration to the disposition of his estate among all those persons who appear to have a claim upon this testamentary bounty. The detail of the provisions in the 2010 will amply bear out this conclusion. 4. But there are other circumstances that must be satisfied before White J's general statements in Slack and Friend are engaged. The point Mr Morrissey makes in submissions is that all the circumstances identified by White J do not exist here. In my view, on this Mr Morrissey's submission is substantially correct. 5. First, I accept Mr Morrissey's submission that although the deceased gave conscientious consideration to the claims upon his testamentary bounty, he had available to him nothing like the financial information about Helen's situation (and indeed about the financial position of the other beneficiaries) that is now available to the Court. The correspondence between Everitt and Helen discussed earlier does not refer to Helen's precise financial position or financial affairs. It discusses her progress through her profession in general terms and Everitt expresses pride in her accomplishments. But Everitt did not have information from her about her true financial position or her expected financial needs as she moved into retirement. Conscientious though the deceased's judgment in my view undoubtedly was, it was not a closely informed judgment about Helen's present financial affairs and her future financial needs. 6. Secondly, for the reasons which will shortly be explained when Helen's financial circumstances and future financial needs are analysed, in my view this is not a case where what is provided for her in the 2010 will, the Woodside shares, comes within the range of views that are legitimately available about what is adequate for Helen's proper maintenance and advancement in life. In my view, the provision in the will was well below the range of what is adequate for her proper maintenance and advancement in life. 7. Thirdly, Helen's financial circumstances have become more demanding since Everitt made the 2010 will. She is now very close to retirement and her financial needs for retirement are more immediate. The limitations of her resources upon retirement are clear now. They were probably not very obvious to either Helen or Everitt in 2010 especially given his limited knowledge of her financial situation. The Claim for Alternative Accommodation in Sydney 1. The plaintiff says that upon retirement she would like to move to a warmer climate on the mainland. She explains in her second affidavit that she wants to return to Sydney. She reaffirmed this in her oral evidence. Mr Ellison SC closely challenged her in cross-examination about whether she was going to return to Sydney, asking her when the idea of moving to Sydney, rather than staying in Tasmania, first surfaced in her life. But in my view she met that challenge well. She gave a compelling account of finding out how much she had received under the 2010 will and that it was "such a shock" because she immediately realised that "I was actually excluded from ever coming back to Sydney because I was never going to be able to afford it". She says, and I accept, that "it had always just been in the back of my mind that Sydney was going to be my place of return, until I read the will". 2. In my view, contrary to what was put to her, the plaintiff does have, and has had for a long time, a genuine desire to return to Sydney, and the defendant's submissions to the contrary should not be accepted. After all, she spent the first 28 years of her life in Sydney. Her move to Tasmania is partly to be explained as fulfilling her need for a lower-stress life so she could better manage her bipolar disorder. But she has managed to establish a practice and manage her bipolar disorder quite effectively over the years. She is now in a position where she has spent approximately half her life in Tasmania and the other half in New South Wales. 3. Under cross-examination Helen showed realistic insight into the difficulties of moving to Sydney, including leaving her established relationships in Tasmania, making new friends in Sydney and re-establishing a practice in Sydney. Her evidence indicated that she had seriously thought about these matters to give effect to her desire to come to Sydney. She has old school friends and work friends from the ABC here and Adam has cousins in Sydney. Moreover, I assess Helen as a well organised person who is able to carry out a plan once she makes it. In my view, there is a real probability that she would move to Sydney after she turns 60 in 2018. Rather than necessarily establishing her own independent practice in Sydney she indicates she has the option of undertaking work as an employee or consultant, until she finally is no longer able to work at all. But the plaintiff appears naturally cautious. One of the disadvantages of the move is that it will undoubtedly deprive Adam of an immediate source of income. Another possible option for her is to continue her practice in Tasmania and then just sell up and go into full retirement in Sydney. 4. The plaintiff was asked about various alternatives to moving to Sydney, including staying with her friends in Tasmania or moving to live with her other relatives in Adelaide. But in my view, she is to be accepted when she says she has had a long term desire to move to Sydney. I accept her evidence that that expectation was reinforced in her when both her parents, at different times, had said to her that she would inherit a property in Bayswater Road, Potts Point and that Susan would inherit the Stafford Street, Double Bay property. Susan did indeed inherit the Double Bay property under the 2010 will. 5. I also accept that the plaintiff is, as she says, attracted by Sydney's warmer climate, the availability of services including health care and regular public transport which are better than where she lives in Tasmania. She says, and I accept, "I absolutely love Sydney". One of the reasons she wants to come back to Sydney, and with her professional background I accept that she is in a position to know, is that she will have a greater range of treatment options for her bipolar disorder in Sydney than in Tasmania. She also wishes to support her sister Susan in the care of her husband. Although Susan lives on the South Coast, achieving this objective will be more practicable if Helen moves to Sydney. 6. Helen's claim for provision is in part measured by the cost of acquiring alternative accommodation in Sydney, and was met with two principal contentions. The defendant firstly submitted that Helen was unlikely ever to move to Sydney and that the claim was not a realistic part of her financial needs. For the reasons indicated the defendant had long planned to move to Sydney after retirement and had hoped that she would inherit property from her parents that would allow this to occur. In my view, she will try to do so if she can and the move will bring her into closer connection with her sister Susan. 7. Alternatively, the defendant submitted that if Helen were to move to Sydney that her financial needs in doing so would not be as great as she has claimed. The defendant is more successful on this latter contention. 8. Helen's advancement in life means that she needs the capacity to move back to Sydney. The defendant takes issue with her case that she should have provision out of the estate measured by the cost of a two bedroom apartment somewhere near the water in Sydney where she had lived before, either on the lower north shore or in the eastern suburbs. 9. There are two parts to this objection. One is that she is not entitled to have provision for her measured by the cost of a two bedroom apartment and the second is that any provision for her should not be measured by an apartment with water views or near the water. Citing Ward JA's judgment in Smith v Johnson [2015] NSWCA 297 at [74] – [85] the defendant emphasises that Helen bears the onus of showing that a one bedroom apartment is not adequate for her needs and that she actually needs a two bedroom apartment. 10. But in my view, Helen's need for a two bedroom apartment is readily established here. In the first place it is likely that Helen will wish to conduct either her clinical psychology practice or undertake employment in the field when she returns to Sydney. She will have a reasonable need for a separate area in the house to be able to set up and operate that small business. Moreover, for a couple who have lived in a house in Tasmania and owned two other recreational properties there will be a need to downsize to a degree upon moving to a larger city. But some greater degree of space than a one bedroom apartment is not unreasonable to cushion the effect of the substantial reduction in living space that the move will entail. 11. But I see no need for the plaintiff to have provision for her measured by the cost of an apartment near the water in the lower north shore or in the eastern suburbs of Sydney. Whatever was said to her about her possibly inheriting the Bayswater Road, Potts Point property the deceased seems to have changed his mind about this and in any event it appears that the deceased owned a different property in Potts Point at the time of his death, one on Victoria Road. 12. And there is nothing in Helen's personal history that would particularly require her to have provision for her measured by the acquisition of accommodation either near the water or with water views. She says that she advanced evidence in her case of the value of properties in McMahons Point and Elizabeth Bay because she had lived near the first of those suburbs as a child, in Waverton, and because the latter is near the property in Bayswater Road, Potts Point that her parents discussed with her. She says these are "favourite" places for her. 13. But if being near the water is of fundamental importance to her then it tends to infer the opposite conclusion: that she would rather stay in Tasmania and take advantage of the two scenic recreational properties that she has there in Lulworth, together with her residence in Launceston. In my view, the range of adequate provision for her should be measured by the cost of a two bedroom apartment in Sydney, reasonably close to the centre of the city, but not necessarily at a dress circle location near the water on the harbour; a property perhaps in the inner western suburbs and close to public transport would suffice as adequate. The Relevance of the Size of the Estate 1. When the Court is considering whether the provision made for the plaintiff under the 2010 will was proper and adequate the defendant submits that the proper approach in this case is to look at the present circumstances of the plaintiff and to acknowledge that significant provision was made for her under the will and that that provision made for her can be now be utilised to markedly improve her lifestyle and financial security where she is now living and has lived for a long time, in Tasmania. Citing Carey v Robson [2010] NSWCA 212 ("Carey") at [28] per Hodgson JA, the defendant submits that the fact that substantially greater provision was made to other beneficiaries under the deceased's will is not relevant to the Court's determination of whether the provision made to Helen was proper and adequate. 2. In contrast, Mr Morrissey put before the Court a schedule which showed in approximate terms the effect of the will, namely that Alexander receives about one-third of the estate, Susan about 12.5 per cent of the estate, Thomas about a third of the estate, Jasmin about 18.5 per cent and Helen about 2.5 per cent (these figures have been rounded and are based on a version of the estate's assets which was later superseded by the agreed range of values but it does still illustrate the approximate distribution of the estate). But I accept the defendant's submission that comparisons between Helen's share and the share of the other beneficiaries is not the proper starting point for the analysis. Instead Hodgson JA's observations in Carey are the appropriate starting point. 3. In my view, Carey stands for a slightly different proposition than that for which the defendant cites it. Hodgson J said the following at [28]: "As regards the second point, an assessment by the primary judge that the strongest ground among those urged by Marion was the vast disproportion of provision would not, in my view, be an error. This disproportion was a reflection of the relation between the total assets available and the provision made for Marion, and this reflected in turn on what, in all the circumstances, would be adequate provision for Marion's proper maintenance and advancement in life, and whether this had been provided. However, although this disproportion is relevant in this way, it is not in my view determinative, and in my opinion that was the point of the primary judge's reference to the parable of the labourers. I do not understand this reference to be saying any more than that, if Marion has been provided with adequate provision for her proper maintenance and advancement, the fact that Alan has received very much more does not give Marion an entitlement to some further provision." 1. Hodgson JA's reasons are consistent with the proposition that the Court is entitled to look at the relationship between the total assets available in an estate and the provision actually made for a plaintiff when considering all the circumstances to determine what would be adequate provision for the proper maintenance and advancement in life of the plaintiff and whether that had been provided. But it can be accepted that if the Court concludes that the plaintiff has been provided with adequate provision for her proper maintenance and advancement in life, the fact that another beneficiary has received substantially more does not give the plaintiff an entitlement to further provision. 2. The Court can look at the overall size of the deceased's estate relative to what Helen has received as one of the relevant circumstances in determining what would be adequate provision for Helen's proper maintenance and advancement in life and whether that had been provided. Has Adequate Provision been made for the Plaintiff? 1. In my view, the deceased has not made out adequate provision in his will for Helen's maintenance and advancement in life. This is so for several reasons. 2. First, the provision of the Woodside shares under the 2010 will places out of Helen's reach the capacity for her to move back to Sydney in the next few years. There are sound family, social, medical and employment reasons for her to move to Sydney quite apart from her preference for this city as her future place of residence. Returning to Sydney is an important part of her long standing plans for her advancement at this stage of her life. She has given her reasons for her decision to move. The Court has accepted them. Their merits have been discussed and approved earlier in these reasons. 3. Secondly, relative to the total size of the estate, the Woodside shares are not a substantial sum. Without needing to refer to the size of particular gifts to other family members, the relatively substantial size of the estate in my view means that provision of the Woodside shares should be regarded as less adequate for a daughter who tried to have a reasonable relationship with her father, and who mostly succeeded; and to the extent that there were reservations in the relationship on his part they were not caused by any intentional conduct on her part in recent times and they were reservations which were largely unknown to her. 4. Thirdly, the deceased had several times recognised Helen as a substantial object of his testamentary intentions at a level somewhat similar to his other daughter Susan, as is evidenced by his provision for Helen in the 1996 and 2003 wills. It is difficult to comprehend on any reasonable analysis why after better relations were restored between them after 2004 that the provision for her was significantly downgraded in the 2006 and 2010 wills to just the Woodside shares. 5. Fourthly, the unpredictable effect of Helen's bipolar disorder is not to be underestimated. She has had periodically severe episodes of illness in the last few years but due to her own good judgment and good medical care these have been well controlled. But she stands out as someone for whom the unpredictable vicissitudes of life are far closer than they are for many other members of the community. Accident, misadventure, the need for substantial medical care and the need for constant support, both social and medical, are all things which for her are far more pronounced than they are for persons without her medical condition. 6. Fifthly, even if this case is looked at as one in which Helen's future should be judged as remaining in Tasmania and that a move to Sydney is not on the cards as the defendant contended, adequate provision has still not been made for her in the 2010 will. Her case was, and I accept, that it would cost approximately $167,000 to renovate Helen and Adam's house at Trevallyn. With her and her husband's current resources that could only be achieved by either selling some of their vacant land at Lulworth or drawing upon their present superannuation. But effectively that would leave no resources to maintain them and support the important choices they need to make in their retirement. 7. The amount given to Helen under the will is inadequate, in my view, whatever assumptions are made about Helen and Adam's future in Tasmania or in Sydney. What provision should be made for the plaintiff? 1. Helen framed her claim for adequate provision from Everitt's estate under six main headings. Her initial claim to a figure of a sum $2.68 million, comprised of the amounts identified below in brackets: 1. the cost of moving to Sydney ($800,000); 2. provision of a motor vehicle ($60,000); 3. health insurance ($250,000); 4. income protection ($100,000); 5. superannuation ($1.2 million); 6. contingencies ($200,000). 1. These items were all contentious. But the larger items attracted greater contention from the defendant. At the time of the hearing some of the plaintiff's claims were somewhat inchoate. The Court made directions for further material to be provided. This material for convenience and for identification purposes will be marked as Exhibit D. The Court will now proceed to deal with each of these items in turn. 2. The defendant's submissions correctly express a preliminary caution. Courts have often said that family provision claims are not susceptible to precise calculations as if they were personal injuries claims: Tchadovitch v Tchadovitch [2010] NSWCA 316. For that reason the various mathematical calculations that have been provided are only treated as illustrations for the Court and do not justify in themselves the figures which the plaintiff claims. But the Court has found those calculations to be of some value in this case. 3. (1) Moving from Launceston to Sydney. The plaintiff seeks the cost of moving to Sydney. She says the net return from the sale of her various real properties in Tasmania, after realisation costs of 3.26 per cent and legal conveyancing fees and mortgages are deducted, is a figure of $464,000. She claimed the price of a similar two bedroom apartment in Sydney near the water at approximately $1.2 million, which together with stamp duty of $51,800 and legal costs of $1,650 and relocation expenses means that the cost to move would be about $1,261,450 less the proceeds from sale of the Tasmanian properties of $464,000, giving an approximate net cost to move of $800,000. 4. Under the Court's directions the plaintiff has provided, in accordance with the applicable Practice Note, a range of prices for 2 bedroom apartments in locations as diverse as Five Dock, Annandale, Double Bay, Drummoyne, Glebe, Darlinghurst, Redfern and Mosman. The asking prices for these various 2 bedroom apartments range from $750,000 to $1,150,000. These can only be a guide for the Court. In my view, the Court should consider a component of provision for the plaintiff under this heading that allows for the cost of purchasing a 2 bedroom apartment in Sydney for about $900,000. This means that her estimated net cost of moving to Sydney is about $500,000, not the $800,000 she originally claimed. 5. (2) A Motor Vehicle. Both parties agree that the allowance for a future motor vehicle of $60,000 as claimed by the plaintiff is within an acceptable range. The plaintiff anticipates she will need two more motor vehicles during her lifetime which will not be covered by the income generated from her proposed superannuation and a total figure of $60,000 is claimed for one vehicle at a time. Notwithstanding that the plaintiff wishes to move to Sydney because of its more regular public transport, I still regard this as an important part of her future needs once she moves to Sydney. The amount of $60,000 should be treated as a component of making adequate provision for her. 6. (3) Health Insurance. The plaintiff says that due to the complexity of her physical and mental health conditions and her age she will require a high level of health insurance, which includes the possibility of in-hospital psychiatric care. The Court directed the parties to provide agreed material demonstrating the differences between the cost of comprehensive and hospital only insurance using actuarial tables. A range of figures was provided, including at the top of the range, for comprehensive health insurance, with no excess, based on a life expectancy of 27.2 years and discounted at 5 per cent but allowing for inflation. This calculation produces a capital figure of just under $210,000, based on a health insurance cost per annum of $3,594.21. 7. The defendant has reviewed and checked the mathematical correctness of the plaintiff's estimates but does not accept that this is an appropriate means of making provision for her. In my view, this is one of the strongest components of her future needs, given her overall medical condition. As a component of provision for her, the Court will take into account a figure of $200,000 on account of this need in her future maintenance. 8. (4) Income Protection. Helen says she is unable to insure herself against income loss due to her illness. She has been unable to do this and has in effect been a self-insurer by trying to accumulate liquid assets. As her personal balance sheet shows she has not been particularly successful in doing that. She says she needs a financial buffer equivalent to about 15 per cent of ordinary living expenses and fixed business expenses for each year that she continues to work. She says that without such a buffer she may have to sell the real property, which is also earmarked to assist in her retirement. In my view, a better approach for the Court is not to make a separate allowance for income protection but to provide some consideration to the need for an overall cushioning figure for the plaintiff which the Court has allowed for below under the heading (6) Contingencies. 9. (5) Superannuation. The plaintiff wishes to begin her transition to retirement at age 60 in 2018. The Court directed the parties to provide agreed calculations of lump sums required for retirement at age 60, 65 and 70 and for payments of $500, $750 and $1,000 per week until the end of the plaintiff's life expectancy. The figures were provided by the plaintiff on the basis of an ASAF (the Association of Superannuation Funds of Australia) retirement standard, which is not before the Court. Assuming the plaintiff's life expectancy of about 27.7 years and a retirement age of 65 the lump sum required to achieve the ASAF retirement standards, allowing for the plaintiff's existing superannuation, is $1,371,000, providing for a weekly income which appears to be about $750 per week. The defendant in contrast suggested final figures, using the 5 per cent discount tables. Allowing for vicissitudes of 15 per cent and for retirement at 65 years and $750 per week, the capital sum required is $249,184.73. 10. This is clearly a wide range. Doing the best the Court can and allowing for the fact, as it must, that the cost of moving to Sydney would ordinarily come out of the superannuation of a person such as the plaintiff upon retirement, the Court will allow another $600,000 for this component of the plaintiff's maintenance and advancement. 11. (6) Contingencies. The plaintiff does need a cushion for contingencies to take into account her need for income protection and other matters. This can be provided for her by retaining her existing legacy of the Woodside shares. This is reasonable and seems to be what the deceased originally contemplated. 12. Thus, the total of these amounts that inform the Court's judgment about adequate provision for the plaintiff are as follows: motor vehicle - $60,000, health insurance - $200,000, move to Sydney - $500,000, superannuation - $600,000, totalling $1.36 million. In my view, the appropriate way to make adequate provision for the plaintiff in this case is to provide for a legacy of $1.36 in addition to the gift of the Woodside shares already made to her. Some Publication Issues 1. The issue of the publication of the Court's reasons for decision was raised in the course of the hearing. The plaintiff gave evidence that she was being privately treated for her bipolar disorder. The Court raised with her the impact on her of the publication of a judgment about her bipolar condition. She was quite clear in her response that: "I'm actually at that age now where I think it is probably just as important for it to come out. I mean, I have been hiding behind my own label, if you like and yet, I'm telling my clients, you know, don't worry, there is a stigma, but you should be proud of whatever it is that is happening to you. I was thinking, no, I was going to come out anyway, you know, at some future time. I think it is important. I have been a capable and professional psychologist for over 20 years and I have bipolar disorder." 2. But in her final submissions the plaintiff requested that she be referred to in the published judgment as "Helen Griffiths". This was said to be because the name "Bindoff" is an unusual surname and the judgment may bring embarrassment to the family. 3. The defendant has submitted that the plaintiff's concern should be noted but that there is perhaps no statutory basis for providing any agreed terms of the publication of the judgment given the narrow grounds that may be available for non-publication orders: see the Court Suppression and Non-publication Orders Act 2010 (NSW) and Singh & Anor v Singh and Ors [2015] NSWSC 1457 at [163] – [165]. 4. But the reality is that judgments can reveal embarrassing details about people's lives. That is the price of the public interest served by publicly conducted courts in an open society such as ours. And yet perhaps another view is that when looked at as a whole neither the plaintiff nor her family should really be particularly embarrassed by anything which is contained in this judgment. 5. But the parties and their legal advisors will need and will be granted a very short time to examine this judgment to see whether any further submissions on this issue are going to be put. The Court will grant a temporary stay on publication but only for that purpose. If no further submissions are put to justify any kind of non-publication order the judgment will be published in its present form on 22 August 2016. Conclusions 1. For the reasons given above the Court has found that the plaintiff has not been provided under the will of the deceased with adequate provision for her proper maintenance and advancement in life. The Court has therefore decided to give her a legacy out of the estate and will make the following orders, which encompass the possibility that one or other party may seek a special costs order. 1. Order that in addition to the provision already made for the plaintiff under the deceased's will of 1 September 2010 that there be provided out of the deceased's estate a legacy to the plaintiff in the sum of $1.36 million. 2. Order that the defendant's costs of these proceedings be paid out of the deceased's estate on the indemnity basis 3. Order that the plaintiff's costs of these proceedings be paid out of the estate on the ordinary basis. 4. Adjourn the proceedings to Monday 22 August 2016 at 9:30 am before me, to consider any continuing issues concerning the publication of this judgment and any application by any party for a special costs order. 5. Order that until 4.00 pm on 22 August 2016 that all parties to these proceedings and their legal advisers be restrained from publishing the text of this judgment to any third party. 6. Grant liberty to apply. 7. Exhibits may be returned. Postscript 1. On 22 August 2016 the plaintiff did not put any submissions to support any continuing restriction on publication of this judgment. ********** 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 August 2016