Supreme Court New South Wales Medium Neutral Citation: Gifford v Nicholl [2016] NSWSC 1460 Hearing dates: 4 and 5 October 2016 Decision date: 06 October 2016 Jurisdiction: Equity - Family Provision List Before: White J Decision: Parties to bring in short minutes of order in accordance with reasons. Catchwords: SUCCESSION — Family provision — Application for family provision order under Pt 3.2 of the Succession Act 2006 (NSW)— Whether adequate and proper provision not made in will of the deceased for the plaintiff — Plaintiff an adopted child of the deceased — No provision made for the plaintiff under the will of the deceased — Notional estate of deceased significant — Plaintiff and deceased estranged — Estrangement by itself does not terminate moral obligation of parent towards a child in financial need — Plaintiff has limited income and no savings — Plaintiff suffers various health conditions — Provision made by deceased in his lifetime for the plaintiff modest — No competing claims — Provision made for the plaintiff out of the notional estate of the deceased Legislation Cited: Succession Act 2006 (NSW) Probate and Administration Act 1898 (NSW) Cases Cited: Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Wheatley v Wheatley [2006] NSWCA 262 Foley v Ellis [2008] NSWCA 288 Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 Kay v Archbold [2008] NSWSC 254 Haskakis v Hatzopoulos [2015] NSWSC 1408 Stott v Cook (1960) 33 ALJR 447 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Wardy v Salier [2014] NSWSC 473 Category: Principal judgment Parties: Julie Anne Gifford (Plaintiff) Fang (Sandy) Nicholl Representation: Counsel: M Thompson (Plaintiff) M Pringle (Defendant) Solicitors: Gerard Malouf & Partners (Plaintiff) De Groots Wills & Estates Lawyers (Defendant) File Number(s): 2015/222647 Judgment 1. HIS HONOUR: This is an application for a family provision order to be made out of the notional estate of Kevin Sidney Nicholl who died on 12 August 2014 aged 89. The deceased was survived by two children of his first marriage: the plaintiff, Julie Gifford, and a son, Tony Nicholl; and by his wife, Fang (Sandy) Nicholl. She is the defendant. She has been appointed, by order of Hallen J, to represent the estate. She and the deceased were married on 16 July 1999. The deceased's first wife, Pamela, died in April 1989. 2. By his last will, made on 15 October 2007, the deceased appointed the defendant as his executrix, and left his entire estate to her. The will included cl 6 that stated: "I have not provided for my son, Anthony Nicholl, or my daughter, Julie Gifford, in this Will, as they have been well provided for by me in my lifetime, and over the last few years they have also not taken any interest in me." 1. Notice has been given to Tony Nicholl of his eligibility also to make a claim for provision. A like notice has been given to Ms Vivienne Bellenger, who may have been in a de facto relationship with the deceased between about 1989 and December 1992. Neither of them has made a claim. 2. The deceased's actual estate consisted only of $10,796.73, which was insufficient to meet funeral expenses. His other assets immediately before his death were held jointly with the defendant, and have passed to her by survivorship. The value of the notional estate is claimed to be between about $1.4 million and $2.3 million. 3. The plaintiff is 58. She says that she is significantly disabled, with very limited income and no savings, although she owns her own house that is unencumbered. She says that to obtain adequate provision for her proper maintenance, education and advancement in life, it will be necessary that she receive a substantial legacy to provide money to pay for medical and dental treatment, to fund private health insurance, to repay debts, to make repairs and do maintenance about her house, replace household goods, undertake diploma courses to increase her prospects of gainful work, to supplement her superannuation and to provide her with a buffer for the contingencies of life. 4. The defendant was 43 when she married the deceased in 1999. She had savings of about $300,000 to $400,000 when her relationship with the deceased started in about 1995. During the marriage, it would appear that she has acquired further assets. She objected to providing evidence of her financial circumstances. On 3 June 2016, Hallen J noted that: "The defendant does not intend to rely upon her financial and material circumstances, and will not be asserting that she is a competing financial claimant upon the bounty of the deceased." 1. The defendant makes two principal points. 2. First, she has a strong competing moral claim as the deceased's wife in a marriage of some 16 years, during the last at least six years of which she was the deceased's carer and assisted him with activities of daily living. Secondly, the plaintiff was estranged from the deceased from 2004. The defendant submits that, having regard to her competing claim and the estrangement, the plaintiff is not entitled to any order for provision out of the estate, or that in any event the amplitude of any provision should be restrained on that account. 3. The defendant says that it was the plaintiff who cut off relations with her father, and cut off relationships of her children, the deceased's grandchildren, for the last ten years of his life, and that this is a factor, and an important factor, in assessing her claim for provision. 4. The plaintiff says that the estrangement was primarily due to the deceased's conduct, and that her reaction to the deceased's conduct was conditioned by his previous abusive behaviour to her and to her mother and brother, and to her desire to protect her children from bad example. The claimed abusive relationship between the deceased and the plaintiff is also relevant more generally when assessing the relationship between the parties, and hence the plaintiff's moral claim on the notional estate. But, as counsel for the defendant rightly submits, the plaintiff's claim for provision for her proper maintenance, education and advancement in life is not a vehicle for seeking compensation for past wrongs. 5. I will deal first with the question of the extent of the notional estate. For reasons which follow, I do not think it necessary to make a conclusive finding in that regard. On any view, the notional estate is more than sufficiently ample to meet the claim the plaintiff makes, particularly is that so given that the defendant does not put forward any financial claim of her own in competition to the plaintiff. I will then deal with the question of the plaintiff's relationship with her father, and in particular whether her claims of his abusive conduct to her should be accepted. I will then deal with the causes and circumstances of the estrangement in 2004, the provision made for the plaintiff by the deceased during her lifetime, the plaintiff's financial circumstances and needs, the defendant's competing claims, and then, finally, the order that should be made. 6. There is no dispute about the relevant principles. In dealing with the application under s 59(1) of the Succession Act 2006 (NSW), the question under s 59(1)(c) and (2) is, in substance, whether adequate provision was made for the proper maintenance, education or advancement in life of the plaintiff. In this case, no provision was made. Hence the question is whether some provision was necessary for her proper maintenance, education or advancement in life. Then the second question that arises under subs (2) is what order for provision should be made. Section 60 of the Succession Act sets out a list of matters that the Court may take into account in making the value judgment called for by s 59. None of the matters listed in s 60 is necessarily decisive. None is given by the section itself any primacy, although in the ordinary course of things some are generally more important than others. Without referring specifically to the terms of the particular paragraphs in s 60(2), specifically in the circumstances of the present case, those in paras (a)-(d), (f), (g), (i), (j) and (m) are of particular significance. In essence, the Court's task is to make an evaluative judgment as to what, in all the circumstances, is a proper level of maintenance, education or advancement in life for which provision should be made from the estate or the notional estate, having regard to the facts as they are known at the time of hearing. 7. The plaintiff's financial position, the size and the nature of the notional estate, the totality of the relationship between the plaintiff and the deceased, the relationship between the deceased and the defendant, and the defendant's claim on his testamentary bounty are the matters of particular significance. Notional Estate 1. The assets that were held jointly by the deceased and the defendant that passed to her by survivorship on his death were principally a unit on the 12th floor, being the top floor, of a block of units in Watson Street, Neutral Bay, and various shares in listed companies. 2. In her affidavit of 15 October 2015 the defendant estimated the value of the unit to be $1.9 million. In her later affidavit of 26 September 2016 she estimated its value to be $2 million. In cross-examination, the defendant accepted as a general proposition that a three bedroom top floor unit in Neutral Bay, as this one is, having panoramic views, as this one does, would be worth, as counsel put it, "an awful lot more than $1.9 million". The defendant said that this particular unit has water penetration issues that reduces its value. Because the building was built before 1974, she, rather than the owners' corporation, is responsible for fixing the leaks. 3. The plaintiff adduced evidence in the form of a kerbside appraisal of the unit from a real estate agent dated 22 June 2015. He said that based upon his review of the property (although this was a kerbside appraisal only) if offered for sale in the current climate, the property would be worth in the vicinity of $3,500,000. This is a startling discrepancy in estimates of values that cannot be explained by the claimed water penetration problem. 4. In 2006 the deceased obtained a grant of probate of the will of his first wife, Pamela, whose assets included a 50 per cent beneficial interest in the Neutral Bay property. The unit at that time was held in the name of a company that the deceased and his first wife had established. In his application for probate he estimated the value of his first wife's half share in the property, as at March 2006, to be $1.1 million. It's true, as counsel for the defendant says, that this was only an estimate of value without any further explanation. But the same is true of the other material before the Court. Clearly if the property had a value of $2.2 million ten years ago, it would be worth substantially more than that now. 5. The defendant has proffered no evidence as to the cost of fixing the leaks. No alternative market appraisal or valuation has been provided. The defendant sought to tender a market appraisal from a real estate agent that bears a date 26 September 2016 that I was told was served only on Friday, 30 September 2016, and the plaintiff sought to read an affidavit of a real estate agent made on 30 September 2016. Both pieces of evidence were objected to. I rejected them both because of their late service. 6. Having regard to the opinion of the real estate agent Ray White, to which I have referred, and the earlier estimate of market value of the unit made by the deceased in 2006 and the absence of evidence as to the extent of the water leakage issue and the cost to fix it, I think I should accept the evidence adduced by the plaintiff, being the kerbside appraisal from the real estate agent in June 2015, that the property has a market value in the vicinity of $3.5 million, although I would make some allowance for the evidence of the water penetration issue. Doing the best I can, I estimate the value of the property to be $3.3 million. There is, obviously, uncertainty about this estimate and, as I have said, at the end of the day it does not really matter because the defendant does not have a competing financial claim and where the notional estate is, on any view, more than sufficient to meet the plaintiff's claim, taken at its highest. 7. The other substantial asset that was jointly held by the deceased at the time of his death were listed shares. Those shares at the time of death had a market value of about $1,013,000. By the time of the hearing some of those shares had been sold for $137,121. The value of the remaining shares, that is, of the remaining previously jointly owned shares, was $832,759. Capital gains tax would be payable by the defendant on the sale of the shares. On 15 October 2015 the defendant deposed that the jointly owned share portfolio had a value of $934,861 as at 29 September 2014 which, if realised, would result in an estimated capital gains tax liability of $99,810. 8. The defendant was cross-examined in relation to various transfers that were made from her and the deceased's joint account, in particular, in the year before his death, with a view, it appeared, to seek to establish whether moneys had been transferred and, if so, in what amounts, from the joint account into the defendant's own name. This, I take it, was relevant, or would have been sought to be made relevant, to a claim that such property, or at least the deceased's half share of the moneys so transferred, were disposed of by a transaction taking effect within one year before the deceased's death at a time when, according to the plaintiff, the deceased had a moral obligation to make adequate provision for her proper maintenance, education or advancement in life, such that such transfers were relevant property transactions within s 80(2)(b) of the Succession Act, in respect of which notional estate orders could be made. 9. This contention had not been flagged in the plaintiff's affidavits, nor in the written submissions required to be delivered before trial. Nor was it identified in the course of the opening of counsel for the plaintiff. There were many transactions between accounts held by the defendant and the deceased jointly and the defendant's own accounts, which were complicated by many acquisitions of shares during the same period. I think that if this issue were to be pursued, it would have to have been clearly identified before the hearing so that a proper analysis of all such movements in funds could have been made. There is a risk that to select isolated transactions would not give a true picture. The defendant could not be expected, in the course of the trial, to provide any complete analysis. 10. In final submissions, counsel for the plaintiff submitted only that a particular transfer, made on 2 July 214 from the parties' joint account to the defendant's own account, was a transaction to which s 82(2)(b) applied. The transfer was in the sum of $133,286.82. Half of that sum would be well within the margin for error in my estimate of the value of the notional estate. 11. Having regard to all of these factors, I would value the notional estate at approximately $2 million to $2.1 million, but the outcome of this case would be the same, even if I were to adopt the defendant's assessment of the value of the notional estate of approximately $1.4 million. Plaintiff's Relationship with Deceased 1. I turn then to the plaintiff's relationship with the deceased. The plaintiff was born in 1958, and was adopted by the deceased and his then wife, Pamela, when a baby. She lived with them from the time she was a few weeks old. The plaintiff deposed that she had a relatively normal father/daughter relationship with the deceased until she was about 12. She deposed that after that time, her father was physically and verbally abusive of her mother, her brother and her. 2. The plaintiff was involved in a motor vehicle accident, it seems, on New Year's Eve on 31 December 1973, as a result of which she suffered serious injuries to her back, from which she still suffers. She deposed that from about the time she was 12, her father, when intoxicated, would verbally abuse her by calling her an "adopted bastard", which was understandably hurtful, and has remained so. She said that there were many violent nights at their house over the years, some involving her, some involving her mother, and some also involving her brother, Anthony. 3. She gave particular instances, one of which was addressed in Anthony's evidence. Whatever the differences in detail of the event, or either of the fight in question, it was undoubtedly an occasion of serious confrontation. The plaintiff gave evidence that her father threatened her mother, which provoked her to strike him, as a result of which she was seriously attacked, rendering her unconscious. She said that she attended school the next day with bruising, swelling and cuts to her face. That evidence was not corroborated by Anthony, who did not recall her suffering any such injuries. But, even if her description of the event is exaggerated, there is no doubt, from her evidence and also from Anthony's evidence himself, that at this time the household in which the plaintiff was being brought up was frequently one in which the deceased physically attacked Tony and their mother, and I think her, and was also a place of violent and threatening argument. 4. The plaintiff gave other evidence of being kicked and threatened by her father in 1974 and in 1975, and on one occasion in 1975 of being punched in the stomach. She recalled her father overturning furniture, and she said that she allowed her father to be abusive towards her, as she believed that if she were the object of his displeasure, the pressure would be taken off her mother. Anthony Nicholl gave evidence to the general effect that he did not observe his sister having been physically abused, or of sustaining the injuries to which she deposed. He did not dispute her evidence of their mother being physically and verbally abused, and his evidence of his relationship with his father was of its being physically, as well as emotionally, volatile, so much so that on one occasion there was a fight where the deceased first assaulted Anthony, and he retaliated, resulting in the deceased being admitted to hospital. 5. Of course, I take into account that the deceased is not able to give his own version of events, and that I should be cautious in accepting the evidence that the plaintiff gives in this regard. But her evidence is corroborated in a number of respects. First, perhaps as a result of her motor vehicle accident, and in anticipation of litigation arising from it, she saw a psychiatrist, a Dr David Bell, who provided a report to a doctor, who I assume was her general practitioner, in July 1976. Amongst other things, Dr Bell reported that "Her main problems have centred on her adopted father, a publican, who would seem to be an alcoholic and who assaults his wife and the patient when he is drunk". Doubtless that report is based upon statements made by the plaintiff to the doctor. Nonetheless, it is contemporaneous corroboration of the complaints that she now makes. 6. A former partner of the plaintiff, a Mr John Casson, also gave evidence of having seen the deceased's first wife sitting on the stairs at the back of the plaintiff's newsagency in Paddington, bleeding with black eyes and a swollen face. Ms Bellenger gave evidence that she was assaulted by the deceased on 12 December 1992. This event led to the deceased being charged with assault occasioning actual bodily harm. He was acquitted of that charge. The prosecution was not able to satisfy the magistrate beyond reasonable doubt of the charge having regard to matters of self-defence raised in the trial. The deceased's volatile temperament at these times was also corroborated to some extent by an incident described by a Mr John O'Brien, who had known the deceased since 1986. He described an event in the late 1990s in which he and the deceased and others had been to the races at which the deceased had been very successful. His pockets, according to Mr O'Brien, were overflowing with cash. When they returned to the plaintiff's house for dinner, the deceased said that he had won $100,000. He was intoxicated. The day was very hot. It was mid-summer. Mr O'Brien commented that if he had won all the money, one of the best things he could do would be to buy his daughter and her children an air conditioner for the house so as to create some comfort for them. This enraged the deceased who told Mr O'Brien in colourful language to mind his own business. 7. As I have said, I also think that, taken on the whole, Mr Nicholl's evidence provides corroboration of the deceased's nature at this time and I accept the plaintiff's evidence that she was subjected to physical and verbal abuse by her father. That continued, essentially, until she moved out of the family home when she married. She deposed that after she married in 1979 and moved out of home, there was one further violent incident in 1981 or 1982; but after that her relationship with her father got a lot better. Her mother died in 1989. She deposed that after her mother's death and until about 2004 she regularly met with her father for lunch and spoke to him on the phone daily about daily events, her children or whatever topic might be of interest at the time. 8. The plaintiff's marriage to Mr John Gifford lasted until about 1985 or 1986. In about 1987 she commenced a de facto relationship with Mr John Casson. They had two children, Matthew and Rebecca. They separated in about 1996 but remained, and still remain, on good terms. 9. In about 1998 the plaintiff went out for several months with a man called Graham, a carpenter by occupation, of whom the deceased disapproved. The defendant deposed that in 1998 the deceased said to the plaintiff that this man was a drug addict, a criminal and was no good, a crook, and was eating free food on the table and doing nothing. 10. The defendant deposed that at this time the deceased was regularly giving the plaintiff between $120 and $200 per week to assist her financially. She said that he threatened to stop supporting the plaintiff if she didn't give up her relationship with this man. According to the defendant, the plaintiff said that her choice was that he would stay and that the deceased would have to go. 11. The plaintiff gave a different version of these events, but she accepted that the deceased disapproved of Graham. According to her, the deceased told her that while she was seeing Graham he would have nothing to do with her. 12. Contrary to the defendant's evidence, I accept the plaintiff's evidence that the deceased did not regularly send her money and, therefore, he did not stop sending her money as a result of this relationship of which he disapproved. However, he did stop seeing the plaintiff for about a year because of his disapproval. 13. I should add that the plaintiff rejected the description of this man attributed to the deceased and I accept that if the deceased did describe him in the words to which the defendant deposed, then there was not a proper basis for it. 14. On 10 November 2003 the deceased made a will in which he gave his wife, the defendant, his interest in a hotel in The Rocks and he gave his interest in a hotel in George Street, Sydney, to the plaintiff. He made some specific gifts, including a gift of personal chattels, to be sold and the proceeds to be divided between the defendant and the plaintiff in shares of 58 per cent and 42 per cent. He then gave the residue of his estate to the plaintiff and the defendant in equal shares. Clearly at this time, that is, in November 2003, the deceased recognised the plaintiff as a proper object of his testamentary bounty. 15. Up to 2004, the relationship between the plaintiff and the deceased continued in the way described above, that is to say the parties remained in regular contact by phone, and they had resumed contact after about a year after the disagreement in relation to the person known as Graham. But in April 2004, there was an estrangement between them. The defendant deposed that this happened after the deceased had taken the plaintiff out to lunch for her birthday, which was on 18 April 1958. The defendant noted that this was something he did every year between 1999 and 2004. The defendant deposed that the deceased said to her, "Julie is pissing me off again. She asked me to give her $26,000. I refused. I am nearly 80, I'm retired, I don't have a regular income. I've given her enough of my money. She told me to 'Piss off and disappear from her sight'. So I will. This is the second time she has pissed me off. I have had enough." 1. The plaintiff's version of events is different. She says that she took her father out to dinner on his birthday, which was on 15 April, with her children. Then, two days later, on 17 April, her father telephoned her after he had been to the races. She said that he was angry and drunk, and told her that he had a fight with the defendant and was unhappy with her, that is the defendant, and didn't want to stay married to her. She asked did he think about what they had talked about previously, namely about getting a home where he, her children and she could live together. I interpolate to say that the plaintiff had given evidence of various statements made by the deceased in which he expressed unhappiness with his life with the defendant. The plaintiff deposed that in this telephone conversation she told her father that he was welcome to come and live at her house, but he yelled at her and said words to the effect of, "If I did that, you would be a vulture, just like Sandy." 2. This upset her. She said her father kept on being nasty to her, and she responded to him by saying, "Please don't take your unhappiness with Sandy out on me. I am tired of the trouble Sandy has brought into our lives." She knew that her father would be taking her out for her birthday the next day, and said to him words to the effect, "I know you will give me $100 or $200 for my birthday but if that is how you feel about me, I would rather you didn't give me the money." Her father replied, "So you don't want my money now is that it, goodbye, did you hear me, goodbye", and slammed down the phone. She did not hear from him again for many months. When he telephoned her, she said that the defendant was making trouble in the background, but all she could recall was a noise from Sandy in the background. She decided, at this point, that she could no longer be part of another abusive relationship, and decided that she would not make her father's life harder, and did not try to contact him after that call. She said that she had had enough of her father's emotional abuse growing up, and no longer wanted to be put down and made to feel small, and she said that she did not want her insecurities going over to her children, and did not want her children to think that people should be treated in the way their grandfather did, and that they should not allow themselves to be treated in that way. 3. In cross-examination, the plaintiff denied that it was she who withdrew contact from her father, and said that it was he who withdrew contact. She admitted she knew where her father was, and could have contacted him, but said, "I could not eat humble pie once again. I've done it many, many times." I accept the plaintiff's version of these events. 4. The plaintiff did not see her father again before his death. His cousin, Mr O'Donoghue, arranged his 80th birthday the following year. Neither the plaintiff, nor Anthony, attended. The plaintiff said she was not invited. Mr O'Donoghue said that she was. The plaintiff and her children sent a parcel to the deceased by express post the day before his 80th birthday. I infer that it was sent by express post so as to arrive on the day. She telephoned her father on his birthday. He said that he had received nothing. 5. On 4 February 2005, the defendant made a new will by which he left all of his property to the defendant. This will, like his later will of 2007, contained a statement that: "I have not provided for my son, Anthony Nicholl, or my daughter, Julie Gifford, in this will as they have been well provided for by me in my lifetime, and over the last few years they have also not taken any interest in me." 1. That was untrue in both respects, at least in the case of the plaintiff. It is clear that, at least up until 2004, the plaintiff had taken interest in the deceased. However, it is common ground that the plaintiff and the deceased were estranged after 2004. 2. Because cases are infinitely various, there can be no hard and fast rule as to how, in family provision cases, issues of estrangement are to be dealt with. But a state of estrangement, by itself, does not usually terminate the moral obligation of the parent towards a child who is in financial need, although, depending on the circumstances, it may militate against amplitude in determining what provision is adequate. (See, for example, Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 540; Wheatley v Wheatley [2006] NSWCA 262 at [22], [23] and [37]; Foley v Ellis [2008] NSWCA 288 at [102] and [104]; Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 at 156; Kay v Archbold [2008] NSWSC 254 at [95]; and Haskakis v Hatzopoulos [2015] NSWSC 1408 at [76]-[87].) 3. In this case, having regard to the history of the deceased's treatment of the plaintiff, I do not think that the plaintiff's response to the deceased's conduct towards her was such as should militate against her claim for provision. It may be said that the plaintiff did not show an attitude of forgiveness that a dutiful daughter might be expected to show. But people are not expected to be saints, and I do not think that the circumstances of the estrangement in the present case warrant moderation of the amplitude of provision that would otherwise be no more than adequate for her proper advancement, education and advancement in life. 4. The deceased said in both his 2005 and 2007 wills that his daughter had been well provided for by him in his life. If that were so, then it is a matter that would have to be taken into account and it would also be a factor in deciding the weight to be given to the deceased's own assessment of the claims on his testamentary bounty. 5. I have said in other cases that 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, in recognition that the evidence that can be presented on a claim after the testator's death is necessarily limited and usually inadequate, and that the deceased will generally 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 testator's death. 6. I have previously expressed the view that considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased is placed, although this is subject to the qualification that it remains for the Court to perform its statutory duty of deciding whether or not adequate provision has been made for an applicant's proper maintenance, education and advancement in life and that determination needs to be made having regard to the circumstances as they existed at the time of the hearing rather than at the time of the deceased's death or will. But these observations only become applicable if it is shown that the deceased has attempted to exercise a proper judgment as to who should benefit from the estate (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454; Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 per Dixon CJ at 19; Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at 285). Provision for Plaintiff in Deceased's Lifetime 1. On the question of what provision the deceased made for the plaintiff during her lifetime, the plaintiff admits that in, approximately, 1981 she borrowed $12,000 from her mother and her father to assist in the purchase of a newsagency at Penshurst. This loan was repaid with interest over two years. She admits that in approximately 1985 or 1986 she was given approximately $17,000 jointly by her parents. Up to 2004 she was also accustomed to receive cash gifts of $100 or $200 on her birthday from the deceased. It appears that she received some occasional other gifts of the same order from him. The defendant has adduced evidence of two such gifts. 2. The defendant asserted that the following additional provision was made for the plaintiff by the deceased during the deceased's lifetime; namely, that between 1996 and 1998 he paid the plaintiff between $120 and $200 per week to assist her financially and at times in the same period gave her sums ranging from $1,000 to a few thousand dollars. There was no evidence to corroborate that assertion. The defendant did not give direct evidence as to any particular occasion she observed the transactions. The defendant denied that such payments were made to her. I am not satisfied that they were made. 3. Next, it is said that the deceased made financial contribution by paying the plaintiff's school fees at Loreto Convent, Kirribilli, presumably in the 1970s. That is accepted, but I hardly think it counts as a financial contribution that can have any significance on a claim for provision. 4. Next, the defendant says that the deceased paid $2,000 for the plaintiff's house alarm system. This is denied. The plaintiff says that she did not have a home alarm system before moving to her current home, which was in about 2009 when she and her father were estranged. The defendant says that the deceased paid for repairs to the plaintiff's home. This is denied as well. 5. The defendant says that the deceased lent the plaintiff $20,000 to contribute to the purchase of a unit, presumably, the purchase of the unit that the plaintiff bought in Sylvania. The plaintiff denies this. In that she is corroborated by her former partner Mr Casson. Mr Casson deposed that the deceased often claimed he paid for that townhouse but that was not true as he, Mr Casson, borrowed $85,000 from the National Australia Bank to enable the purchase to take place. 6. Next, the defendant says that the deceased paid for the plaintiff's wedding and honeymoon. She accepts that the deceased paid for her wedding, but denies that he paid for the honeymoon. I accept the plaintiff's evidence on that. 7. Next, the defendant says that the deceased paid for a holiday for the plaintiff and her daughter, Rebecca, when Rebecca was a toddler, to the United States. The plaintiff admits that the deceased paid for a holiday when Rebecca was a toddler to Hawaii. 8. Next, the defendant says that the deceased paid for a holiday for the plaintiff and her two children to Queensland. This is denied. 9. Next, the defendant has said that the deceased gave the plaintiff a safety deposit box, filled with jewellery, in about 2002, and that the deceased told the defendant that the jewellery was worth over $100,000. It is common ground that the deceased did give the plaintiff jewellery. She had the jewellery valued, and it was valued at approximately $26,900. The jewellery in question was jewellery that had been owned by her late mother. No doubt, ownership of it had passed to the deceased, but passing a deceased mother's jewellery to her only daughter is not an act of beneficence. 10. Next, the defendant says that the deceased open a trust account for the plaintiff's two children in the sum of $10,000, and she says that the deceased complained to her that the plaintiff had spent that money, which had been for her children. The plaintiff said that she did not recall any trust account, and denied having withdrawn any money from any such account. The defendant produced a bank statement as at 2002 for a trust account that was in the name, not of the plaintiff as trustee for her children, but in the name of the deceased as trustee for "Peter and Pamela Casson". Only one page was produced, showing a modest balance of $200 odd. I assume that that was a trust account opened for the plaintiff's children, but there is nothing to show that the plaintiff did operate the account, or could have done so. It was an account in the deceased's own name as trustee. 11. Having regard to all of these matters, it was not correct to say, as the deceased did in his will, that he had "well provided" for the plaintiff during his lifetime. Rather, the extent of provision made by him in his lifetime for the plaintiff was modest, and does not diminish her claim on his testamentary bounty. Plaintiff's Financial Circumstances and Needs 1. I turn now to the plaintiff's financial circumstances and needs. In 2000, the plaintiff made contact with her biological mother, a Ms Gwen Larsen. The initial contact was through the deceased. The plaintiff said that contact was made for medical reasons. Ms Larsen died in 2006, aged 67, from breast cancer. She left a will, by which she left a house in West Ryde to the plaintiff, her car to a third party, and the rest of her estate to the plaintiff's children. The plaintiff owned a unit in Pembroke Street, Sylvania. The West Ryde property needed substantial repair. It was sold in August 2008 for $635,000. In 2009, the plaintiff bought a property in Princes Highway, Sylvania for $726,000, using proceeds from the sale of the West Ryde property and bridging finance. She sold the Pembroke Street property in about January 2010 for $482,000. This gave her a surplus of cash. She lent $145,000 to her former partner and father of her children, Mr Casson, whose business was in difficulties. She bought each of her children a car, and she used money to pay debts, including outstanding bills for one child's school fees and for her own dental work. She also used the money to furnish the new house acquired in Princes Highway, Sylvania. She and her children had moved from a townhouse to a two storey house with, I infer, substantial accommodation for them all, which she said needed to be furnished. Money was spent on that task. 2. At the end, the plaintiff has no material cash resources, but she has acquired a substantial house that was newly furnished. Her other assets are minimal. Her loan to Mr Casson is probably irrecoverable. His business failed and he is a pensioner. The plaintiff has only a little over $10,000 in superannuation, and effectively nothing by way of savings. I infer she owns a car. She has borrowed money on credit card, and has borrowed substantially from friends to meet car and general expenses and to provide a bond for her daughter and her daughter's fiancé for them to move into rental premises. She has part-time employment on Sundays with a firm known as PayLess Shoes as manager, with occasional extra shifts. Her 2016 tax return showed a taxable income of only $13,836. Her 2015 assessment showed a taxable income of $27,659. She has applied for a New Start pension. The plaintiff's current monthly expenses are in the order of about $2,000. At present, her income does not meet her expenses. 3. The plaintiff has substantial medical needs. She had surgery for breast cancer in 2002, followed by radiotherapy and chemotherapy. She had further breast surgery last year, to the details of which it is unnecessary to refer. She is seeing a psychologist for depression. She continues to experience pain in her back and loss of mobility, which are the continuing effects of her motor vehicle accident. She was diagnosed in 2009 with a disorder of the electrical condition of the heart. She is on a range of medications. She identified her needs for provision as follows. 4. First, her general practitioner has advised her to see a neurosurgeon to attend a pain management clinic. That is due to her chronic back issues which are worsening with time and affecting her legs and getting pain in her legs and hips. She deposes that the cost of such treatment has been estimated to be between $10,000 and $15,000. 5. Next, she says that particularly having regard to her medical history, she wishes to be able to take up private health insurance. She has provided quotations for private health insurance of $194.05 per month. 6. Next, she has not been able to afford reconstruction surgery for her right breast following surgery for cancer. The cost of that surgery has been quoted at $19,250. 7. Next, she does not have home and content household insurance. She attaches quotes for that insurance of $2,735.18 per annum. 8. Next, a dental surgeon, a Dr Drakopoulos, reports that as a result of the chemotherapy following the plaintiff's treatment for cancer and the ensuing medication taken to treat depression there has been a severe loss of oral function due to the degeneration and loss of most of her "dentition", which I understand to mean "teeth", and that she needs extensive dental work, including the placement of ten implants. This work is expensive. It is estimated to cost $59,480. 9. Next, the plaintiff may require back surgery. She has been given advice to that effect by her doctor. She says that that cannot occur until she undertakes an MRI. Apparently she needs to pay for the cost of the MRI herself. She says that the cost of this would be $2,500. 10. Next, the plaintiff says that various repairs need to be made to her house, including replacement of gyprock due to water damage, painting, the replacement and repair of collapsed beams on a patio, repair to the roof of the garage, repair to downlights and so forth. The cost of these repairs has been quoted at $25,333 plus an additional $9,614 for maintenance of home lighting. 11. Then the plaintiff attaches quotes for a replacement of household items, being a dryer, air conditioner, oven, dishwasher, TV and fridge. However, as I understand the plaintiff's evidence, the moneys obtained from the sale of the West Ryde property and Pembroke property were applied in furnishing her new house. It is not clear at all why there would be a need to replace such whitegoods. 12. The plaintiff deposes that her toilet requires repairs. She attaches a quote from a plumber that comes to $11,968. This is because the repair work includes the digging up and replacing of sections of pipe plus a new shaft. 13. Next, the plaintiff deposes that due to deteriorating health she believes she will not be able to continue in her present employment. She says that she is interested in community services or youth work but could not afford the cost of a diploma and it is unlikely that she would be in a position to receive VET assistance. The costs of a diploma in community services have been quoted as $8,620. The costs of a diploma in youth work at $9,970. 14. Then the plaintiff has existing debts. Her credit card debt is $2,589.76. She owes a debt of $5,000 to Mr Bellenger and she has borrowed $18,000 from her accountant, who is also a friend, Mr Hopkins. She or her counsel contend that a further provision of $350,000 should be provided as a lump sum to supplement her superannuation and provide a buffer against future contingencies. 15. How this total claim should be quantified depends upon the period of years for which an assumption is made that the plaintiff should receive funds to meet private health insurance premiums and home and content household insurance premiums. According to the life tables, the average life expectancy of a woman of her years is 28.28 years, but the plaintiff's medical history and her present conditions, which are acknowledged to amount to significant disabilities, are such as to make it unsafe to assume that is a reasonable assessment of her life expectancy. Defendant's Moral Claim on Deceased's Notional Estate 1. It is necessary also to consider the defendant's competing claim. The defendant has been previously married and lived in England and Singapore. She separated from her previous husband in 1994. She met the deceased when on a holiday in Australia at about that time. The deceased told her that he was retired and was looking for someone with whom to settle down. The deceased sponsored her immigration to Australia and she moved to Australia in 1995 and commenced living with the deceased. She obtained permanent residency in 1998 and they married in 1999. The defendant was 43. The deceased was then 74. She brought her own savings of about $400,000 to the relationship. 2. Between 1995 and 2014 the defendant attended to all of the household domestic duties. She and the deceased regularly went on holidays together until 2003. The defendant worked for a time in 1997 and 1998 to earn her own income. She stopped working in 1998 when the deceased suffered a heart attack so as to be on hand to look after him fulltime. She resumed work in 2002. As the deceased's health deteriorated, she took on the role of his personal carer. The deceased became blind in one eye in 2002 and later lost much of the sight in the other eye. 3. The plaintiff and other witnesses called by the plaintiff gave evidence, some of which has been referred to previously, that the deceased complained about the defendant and her treatment of him. However, as I have not accepted much of what the deceased is reported to have said to the defendant about the plaintiff as being true, nor do I accept that much of what the deceased said about the defendant to the plaintiff is true. It was not suggested to the defendant in cross-examination that her conduct towards the deceased involved anything other than the provision of appropriate and loving care and support that would be expected of a wife of a man with his failing health. 4. The burden of the defendant's personal care for the deceased in assisting him with activities of daily living is not to be underestimated. 5. The defendant has a strong moral claim on the deceased's testamentary bounty. But she does not put forward any financial or material need that would not be satisfied from her existing assets, let alone from the balance of the notional estate that will remain after satisfaction of the plaintiff's claim, taking the plaintiff's claim as put forward by her counsel at its highest. Other Considerations 1. A relevant circumstance in assessing the plaintiff's claim for provision is that the deceased's assets were accumulated by him, not only through his own efforts, but through the efforts of his first wife who was an active partner in their hotel businesses. 2. The plaintiff deposed that she did not make a claim on her mother's estate because she expected that she would inherit from her father. That is the natural progression of things. Although it is impossible to lay down general rules in this area, it is commonly expected that one spouse will leave his or her assets, or most of them, to the other spouse, in the expectation that, on the other spouse's death, the assets, or a substantial part of them, will be passed on to their children. Where a surviving spouse remarries, then no doubt he or she will need to make an adequate provision for the new spouse. But where, as in this case, the deceased knew that he did not need to leave all of his estate to the defendant to ensure that she was adequately provided for, I think the natural expectation would be that a portion of his estate would be left to his children. This would not only be by reason of the natural ties between parent and child, but, owing to his residual moral obligation to his first wife, to provide adequately for their children. Conclusion 1. There was no cross-examination, or contradiction, of the plaintiff on her claimed needs, and I generally accept them as a guide to assessing the appropriate order of provision. In particular, I accept that it is an appropriate factor to be taken into account that the plaintiff should be able to fund home and contents insurance and private health insurance. It is impossible to know for how long such an allowance should be made, but for the reasons I have already given, I do not think that there should be an allowance over a period of 28.28 years. These matters are, in any event, only to be considered as factors relevant to an overall general assessment of what order for provision is appropriate, rather than as integers in a sum that is to be added arithmetically. Considering them in the former light, I think it appropriate to adopt the assumption that the plaintiff should be funded for private health insurance premiums over 15 years, and house and content insurance over 15 years, but I would not apply a 3 per cent, or other, discount rate to such an assessment. That is partly because there is already an element of uncertainty in the period adopted, and partly for the reasons expressed in Wardy v Salier [2014] NSWSC 473 at [181]-[182]. 2. I also do not make allowance for the item called replacement of household items for the reasons previously given, and I do not think it appropriate to double up on the cost of two diploma courses which could be expected to assist the plaintiff in her endeavour to remain in the workforce. I do think it appropriate, however, that she have a provision that would enable her to undertake such courses. Recognising that the individual items are to be used only as factors in regard to determining what overall provision is appropriate, I nonetheless quantify the factors as follows, using, in this respect, the schedule of plaintiff's summary of needs: (a) Pain management course: $10,000; (b) Health fund: $27,943; (c) Right breast reconstruction surgery: $19,250; (d) Home and content household insurance: $41,058; (e) Teeth implants: $59,480; (f) MRI scan in relation to pending back surgery: $2,500; (g) Home repairs: $25,333; (h) Home lighting maintenance: $9,614; (i) Plumbing works: $11,968; (j) Diploma; $9,000; (k) Credit card debt: $2,590; (l) Debt to Ms Bellenger: $5,000; and (m) Debt to Mr Hopkins: $18,000. Total $241,736. 1. I also think that a substantial sum to supplement the plaintiff's superannuation, and to provide a buffer against future contingencies, is appropriate. In my view, $330,000 would be an appropriate sum to allow under this head. 2. Rounding all these figures down, I conclude that the provision which would be appropriate, and which would be adequate for the plaintiff's maintenance, education and advancement in life, is the sum of $570,000 to be provided by way of a legacy in that sum. Provision of that order would cause no hardship to the defendant and the remaining notional estate is available to the defendant in recognition of her moral claim on the deceased's testamentary bounty. 3. I will stand the proceedings down in order that the parties can bring in short minutes of order in accordance with these reasons. The short minutes of order should provide for an order for provision for the plaintiff in the sum of $570,000 as indicated. Counsel for the defendant will also need to indicate what assets should be designated for the purposes of satisfying the order for provision. It may well be, for example, that liquid assets in the form of shares could appropriately be so designated, or it may be that the defendant might wish to satisfy the order for provision from other assets. I will hear from the defendant's counsel about that in due course. The short minutes should also provide for interest to run on the legacy, probably 14 days or 21 days after the order is made and at the rates provided for in the Probate and Administration Act 1898 (NSW). ********** 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: 14 October 2016