Supreme Court New South Wales Medium Neutral Citation: Neal v Neal [2018] NSWSC 1669 Hearing dates: 8-11 October 2018 Date of orders: 01 March 2019 Decision date: 01 March 2019 Jurisdiction: Equity Before: Slattery J Decision: Order made for the provision out of the estate of the deceased by way of a legacy of $400,000. Plaintiff's costs paid out of the state on the ordinary basis. Defendants' costs paid out of the estate on the indemnity basis. Catchwords: FAMILY PROVISION – testator died in December 2016 – plaintiff is one of three children of the testator – testator's will gave her whole estate in equal shares to the defendants, the plaintiff's two siblings, and made them her executors – plaintiff and the testator were estranged for a period of eight years before her death – plaintiff contends that he tried to reconcile with his mother, but his efforts were either not reciprocated or were thwarted by his siblings – but siblings say an AVO against the plaintiff and his other conduct justified keeping the deceased away from the plaintiff – whether adequate provision was made in the testator's will for the plaintiff's maintenance, education and advancement in life – if adequate provision was not made, what provision should be made for the plaintiff out of his mother's estate – whether, given the period of estrangement between the plaintiff and the testator, any discount should be made to any provision made in the plaintiff's favour. Legislation Cited: Succession Act 2006, ss 57, 59 Cases Cited: Drury v Smith [2012] NSWSC 1067 Evans v Levy [2011] NSWCA 125 Goodsell v Wellington & Ors [2011] NSWSC 1232 Singer v Berghouse (No. 2) (1994) 181 CLR 201 Wheatley v Wheatley [2006] NSWCA 262 Category: Principal judgment Parties: Plaintiff: John Robert Neal First defendant: Kenneth Frederick Neal Second defendant: Rachelle Eileen Vader Representation: Counsel: C.A. Vindin (Plaintiff) M.S. Willmott SC, J.E.F. Brown (Defendants) Solicitors: R O'Reilly, McCabe Partners Lawyers (Plaintiff) M Corbett-Jones, Simpson Freed Lawyers (Defendants) File Number(s): 2017/171810 Publication restriction: No Judgment 1. Maureen Patricia Flis died on 26 December 2016, aged 73. Her last will, made on 5 May 2014, appointed two of her children, Kenneth Neal and Rachelle Vader, as her executors, and gave the whole of her estate to them in equal shares. The testator's third child, the plaintiff, John Neal, now seeks against the executors an order for the provision out of her estate under Succession Act 2006, s 59. 2. John Neal was born in July 1968 and was aged 50 at the time of the hearing. The first defendant, John's brother Kenneth Neal, was born in November 1965 and was aged 52 at the hearing. And the second defendant, John's sister Rachelle Vader, was born in September 1970 and was aged 48 at the hearing. 3. The testator's estate has a gross value of approximately $2.8 million. At her death, it comprised of four parcels of real estate, shares and money in a bank account, all of which had been liquidated by the time of the hearing. 4. The defendants were granted probate of the will on 10 February 2017. These proceedings were brought within time required under the Succession Act. The plaintiff, being a son of the deceased, is an eligible person able to bring the proceedings under Succession Act, s 57(1)(c). 5. Mr C.A. Vindin, instructed by Ms R. O'Reilly of McCabe Partners Lawyers, appeared for the plaintiff. Mr M.S. Willmott SC and Mr J.E.F. Brown, instructed by Mr M. Corbett-Jones of Simpson Freed Lawyers, appeared for the defendants. The proceedings demonstrated the result of deep family tensions. The legal advisors on both sides managed the underlying issues commendably throughout the proceedings. 6. The parties referred to one another by their first names during the proceedings. Without intending any disrespect to any party, the Court has chosen for convenience to do the same in these reasons. On the same basis, the testator is also referred to as "Maureen" from time to time, in the course of these reasons. 7. The formal issues for determination may be shortly stated: (a) whether adequate provision for the plaintiff's proper maintenance, education or advancement in life was made by the testator under her will; and (b) if not, what order for provision, if any, should be made for the plaintiff under Succession Act, s 59. But the practical underlying question for determination on both of these issues is whether the circumstances of an acknowledged eight year period of estrangement between the plaintiff and his mother is sufficient; on question (a), for the Court to conclude that adequate provision was made for him, and, on question (b), for any order for provision to be substantially discounted. The estrangement and its causes need to be considered: Wheatley v Wheatley [2006] NSWCA 262 (at [102]). 8. The following is a narrative of facts relevant to the plaintiff's claim and to the executors' defence. This narrative represents the Court's findings on the matters covered, except to the extent that the context indicates that only the parties' allegations are being recorded. For reasons of economy, this narrative does not include reference to versions of the facts that have been rejected. The Court's findings here cannot reasonably cover all of the factual disputes raised by these parties in their extensive competing affidavit evidence. Instead, it focuses on the facts that appeared to the Court both to assume greater importance in the contests between the parties and to be more relevant to the exercise of the Court's jurisdiction in this case. 9. This judgment contains confronting findings about members of the Neal family and their interactions with one another. In the just exercise of the Court's jurisdiction in this case, it is not possible to explain the interaction of family members without exposing some of these facts. On several occasions during the proceedings, the Court warned the parties that if the proceedings were not consensually resolved, the Court would be required to make quite explicit findings not only about the conduct of their late mother, Maureen, but also about each of them. Despite those warnings, the proceedings were not resolved. 10. The Court firstly gives a short summary of its credit findings about the parties and each of the witnesses, who gave oral evidence. Credibility of the Parties and Witnesses 1. Mr John Neal. John was a mostly credible witness, who was prepared to answer questions with direct answers even when those answers were against his interests. But he was a very guarded witness, who considered questions asked of him very carefully and slowly, and then answered them the same way. The Court has preferred the evidence of his sister, Rachelle, and his brother, Kenneth, over his evidence in places. But on many issues, his evidence is the more reliable. The Court explains below, as the evidence is analysed, its reasons for preferring John over his siblings or preferring them over him on particular issues. 2. Mr Joel Curtis. Mr Curtis was a psychologist who examined John during his family law proceedings when he divorced his wife, Sharon, and to assist on sentence during the criminal proceedings where John had been charged with, and convicted of, assaulting his father. Mr Curtis was a thorough and reliable professional, who had a good memory of his client and who took excellent notes of what John said to him in consultations. He was a reliable and objective source of insight into John's feelings about his mother. 3. Mrs Colleen Treloar. Mrs Colleen Treloar is Maureen's sole surviving sister. Another sister, Carmel, pre-deceased Maureen. Mrs Treloar was an excellent witness. She is a teacher. She was careful, measured and gave very precise and thoughtful evidence. Her evidence came from quite a different perspective from that of John, Rachelle and Kenneth. Before Maureen's death, she was wholly invested in trying to create harmony in the Neal family. 4. She had seen the damage that her sister's alcoholism had caused the rest of the family, and over many years, had been graciously tolerant of some of Maureen's worst behaviour; some of which was directed towards Mrs Treloar's husband and had affected Mrs Treloar quite personally. But despite this, Mrs Treloar was neither biased, nor, in my view, embittered against her late sister. 5. Mrs Treloar's perspective on her sister and her conduct is especially important, because she was Maureen's contemporary. She had the deeper appreciation, as an adult, of the damage that Maureen's alcoholism had done to the family. In my view, her insight into the effects of Maureen's conduct was more accurate than the perspective that her children had themselves. Her approach to her sister's unpredictable and damaging conduct seemed to oscillate between distress and resignation. 6. Much of Mrs Treloar's conduct towards other family members was unambiguously empathetic and solution-focused. For that she received the unjust blame of some of the parties and witnesses in the case. But the Court's judgment is that she is a witness whose evidence can be entirely and comfortably accepted. The findings based on her evidence became an important platform for the Court's overall analysis of the case. 7. Mrs Sharon Neal. Mrs Sharon Neal is the plaintiff's former wife. She was a surprising witness in his favour. John and Sharon Neal were divorced in 2013. Her evidence had all the more credibility because she managed to put to one side the past tensions between her and John, so she could give evidence for him. No suggestion was made to her that she hoped to benefit financially from the result of these proceedings. She was a reliable witness. The suggestion was made to her that there had been violence perpetrated against her by John during their marriage. It, of course, must be acknowledged that later denials of domestic violence, when such conduct has at least been hinted at in contemporaneous correspondence as it was here, needed to be treated cautiously. But I do accept Sharon Neal's evidence in this respect, despite the case that was put to the contrary. 8. Mr Kenneth Neal. Kenneth was a reasonably reliable witness on most issues. But he was defensive and very guarded in making any admissions against his interests. He was plainly troubled about his mother's behaviour when he was young. But he had since maintained a reasonable relationship with his mother, despite her alcoholism and was not very sympathetic to John's perspective on Maureen. He had little time for John. 9. Ms Rachelle Vader. Rachelle had firm opinions about John. She was very clear in her own mind that he had treated her and her mother badly. She was not prepared to give him much credit. She was a reasonably clear and accurate observer of events generally. But the Court was not confident of her account of her interactions with her mother about John. She had a tendency to attribute her own views about John to her mother. 10. Mr Michael Vader. The second defendant's husband was a good witness, who spoke with conscious objectivity about his wife's family. He had an independent view of the family and its tensions, and very much saw himself in that role. 11. Mr Vader was a senior public sector manager advising the NSW Government. He had managerial experience and appeared to be intuitive and insightful. His judgments about family dynamics were quite accurate. As an observer, he had an advantage in not having seen the worst of Maureen's conduct during the childhoods of the three parties to this case. But he had a good sense of what it must have been like, and despite all that, he had managed to maintain his own special and mostly sympathetic relationship with Maureen, that was somewhat different from that of almost any other party. The Neal Family The Early Years Up to 1978 1. The Court generally accepts John's account of his early life with his mother. There are conflicts between his account and the evidence of his siblings. But many of those conflicts do not have to be resolved to decide this case on the proper issues. 2. The plaintiff was born in July 1968. He lived with his mother and his father, Robert William Neal, his older brother, Kenneth, and his younger sister, Rachelle, at Babbin Place, Caringbah until he was about 9 years old. 3. By about 8 years of age, John became aware that when his mother and father had been drinking they were frequently involved in fights. Although his mother was loving and caring towards him, when she was under the influence of alcohol, as she often was, she became negligent, angry and violent. 4. Both John's mother, Maureen, and father, Robert, were alcoholics. Their alcoholism affected him directly. He witnessed gross violence between his parents. He saw his father kicking his mother to the point of breaking her hand during one fight between them. 5. And he was allowed to drink himself without supervision. He recalls that on one occasion, when he was about 9 years old, his mother and father were bottling a 44 gallon drum of wine, which they had purchased from the winery. John's parents allowed him to drink some of the wine being bottled to the point that he was not able to stand up. They were so drunk themselves that they did not notice him crawling up to his bedroom, unable to stand. 6. In 1977, when John was about 9, he became aware that his mother had begun relationship with a neighbour called Geoff Lee. About the time of John's tenth birthday, Maureen and the three children moved out of Robert Neal's house to stay with Maureen's mother, Eileen Flis, at Burraneer Bay. Maureen and Robert Separate - 1978 1. Maureen formally separated from John's father in 1978, when Kenneth was about 13, John was about 10, and Rachelle was about 5. 2. Part of the later family dynamic is explained by the family's separation at this stage. Kenneth was taken back to live with his father, Robert, within about a week and stayed there. But Maureen, Rachelle, and John moved into a house in Magnolia Street, Kirrawee with their mother, Maureen, and Geoff Lee, and his daughter, Angela. 3. The plaintiff's memory of this time living in Kirrawee, was that his mother was quite violent, not only to Geoff Lee but to John as well. Maureen's drinking worsened whilst she was living with Geoff Lee. The family had a massive wine consumption and habitually purchased 44 gallon drums of wine, which they bottled for later personal consumption. 4. John says, and the Court accepts, that during this period he was scared of his mother when she had been drinking, "as she would usually become angry and was sometimes violent. Sometimes violence was perpetrated on the children by Mr Lee as well". But John also witnessed violence between Maureen and Geoff Lee. 5. This became so bad at times, that occasionally John ran away and hid himself down the street. Sometimes he and his step sister, Angela, would escape from the house to Angela's mother's home, even late in the evening. 6. Finally, in December 1979, when John was about 11, he had had enough of Maureen and Geoff's dysfunctional household. Kenneth was already living with Robert. John rode his push bike around to his father's two bedroom unit in Chuter Avenue, Ramsgate and spontaneously began living there with his father. This action is compelling indirect evidence about what was going on back at the Kirrawee property. It was so violent that John felt, at the age of 11, that he had to leave. And it is important to recognise that Kenneth was at some distance away from this violence and Rachelle was a bit younger and less able to appreciate what was going on. 7. John found his father's household quieter than his mother's. But his father was violent towards him as well. But this move implies another judgment John made about his then circumstances. For some years from 1980, John lived with his father and stayed on a mutually agreed access arrangement with his mother every second weekend and occasionally lived with her. John preferred this setup. I infer he did so because, living with his father, despite the gratuitous and random violence he suffered at his father's hands, was less traumatic than living with his mother and Geoff. 8. But the interactions between these two households during access and at other times created their own problems. John witnessed his father assaulting Geoff Lee and his mother. 9. There is disputed evidence about whether Kenneth and John used drugs in 1982, when John was about 14. But the Court does not need to make findings to resolve this dispute to decide the issues in this case. But the Court can safely find, from both Kenneth's and John's evidence, about this period that both Kenneth and John were subject to minimal supervision by their father, and none by their mother. John's family history is quite consistent with his statement that he was left "free to roam about most evenings" without any adult supervision. 10. When John was about 18, in 1986, Maureen told him that she was getting a divorce from Geoff Lee. They had by then only been married about 6 years. Maureen promised John an 18th birthday party in July that year, at her home in Kirrawee. But on the weekend, the party was not to take place as Maureen was not present. She could not attend: she was an inpatient at a drug and alcohol rehabilitation clinic at Moore Park. 11. There are disputes during this period as to whether John was involved in damaging certain property that Geoff Lee and Maureen owned. In 1986, Maureen accused John of destroying a laundry door at her home. John says this was a false accusation. Kenneth says it was true. The Court does not need to decide the merits or otherwise of this incident. It is emblematic of the contests between these siblings, but it is relatively minor compared to the broader family issues in the proceedings. Maureen Marries George Drummond - 1988 1. But Maureen and Geoff separated. Geoff Lee quickly formed another relationship, as did Maureen. Maureen's new partner was a George Drummond. 2. Mr George Drummond lived in University Road, Miranda. He allowed John to live there with him and his mother, until she bought a new house in Gymea in 1987. Once that house was purchased Maureen, John, Rachelle and George Drummond all moved in there together. 3. John noticed that his mother did not drink quite as much at this time, although she had occasional relapses. The Court accepts that John found this part of his life stable for a period. He volunteered to paint the interior of the Gymea house and did so. 4. Maureen married George Drummond on 19 November 1988. There is disputed evidence about an incident involve Kenneth on the night that Maureen married George Drummond. But the Court does not need to have to resolve that, notwithstanding that the parties had strong differences about it. 5. But John's stay at the Gymea property came to an abrupt end. Following a Sunday barbecue party he had at the Gymea property in 1988, when he was aged 20, Maureen asked him to move out. The reasons for her request are in contest. After this, they did not speak for about a year. He moved into the home of Rachelle's then boyfriend Mr Bradley Dillon, at a place in Kogarah, and stayed there for about six months. 6. What was particularly upsetting for John was that when he moved out Kenneth moved into his room at the Gymea property to take his place. He felt slighted at this and, perhaps understandably so. It was a matter that still troubled him years later. 7. So in 1988, at the age of 20, he left home and first rented his own unit at Penthurst with a friend, Craig Evans. He and Craig had a joint 21st birthday party at the Hurstville Legions Club. John invited his mother. But she did not come to the party. Why is unclear. But mother and son spoke on the telephone in the foyer of the Club before the party began. Their relationship was clearly difficult at this time. 8. But they did reconcile in about August 1989. That month, John came back to live at the Gymea property with Maureen and Rachelle. Maureen and John's reconciliation was the beginning of almost 20 years of a sometimes warm, and sometimes rocky, relationship between them. 9. Kenneth and Rachelle say they maintained a close and loving relationship with their mother throughout their lives. This is much truer of Rachelle, than it was of Kenneth. 10. Despite Maureen's struggle with alcohol, she and John maintained a reasonably civil and often co-operative relationship. This was demonstrated in a number of different ways, in the years from 1989. I accept that Maureen confided in him in 1988, about whether or not she should leave Kenneth out of her will, and he expressed the view that she should not. 11. There were incidents between mother and son at the Gymea property. John tried to stop his mother drinking and she resisted, sometimes violently. 12. Finally, in late 1989 at the age of 22, John decided to move out of home with a friend that he had met at work. He moved to his own apartment with this friend in Narwee. In 1991, he began studying an Associate Diploma in Mechanical Engineering at St George TAFE. Whilst he was studying at night, over a four year period, he worked full time during the day as a contract fitter. He was very busy, but he would still visit his mother and her husband George on the weekends. 13. In 1992, when John was trying to save money to buy a house, with Maureen's agreement, he moved back into her property at Gymea. The Court accepts that Maureen and her then husband, George, helped John look for properties. In October 1992, when John purchased a house in Engadine, Maureen paid the stamp duty, guaranteed his housing loan and then allowed him to live in the house at Gymea for a further 12 months, so he could rent out the Engadine property for that period. John meets Sharon Webb - 1994 1. John ultimately moved into the Engadine property in 1994. The Court accepts that, after he moved in, Maureen and George helped with some of the gardening and the cleaning at that property. John became isolated and lonely when living at the Engadine property. So, with Maureen's cooperation, John again rented out the Engadine property and moved in with a friend at Kurnell, where he met his future wife, Sharon Webb. After John and Sharon met, they lived for a short period in a house owned by Maureen in Miranda, before they moved back into the Engadine property. 2. The beginning of John's relationship with Sharon coincided with a period of warming in his relationship with his mother and a period where Maureen's alcohol consumption seemed less out of control. In August 1995, John commenced an engineering design business, from which he acquired clients in the mining and rail sectors. I accept his evidence that, "I continued to get on well with mum at this time and Sharon and I visited mum and George on a regular basis". The Court accepts that he had regular discussions on the telephone with Maureen, and that he and Sharon would see George and Maureen on a weekly basis. Maureen Separates from George Drummond – 1998 1. In October 1998, John sold his Engadine property. He and Sharon purchased a new home in Gymea. But shortly afterwards, Maureen and George announced that they were soon to be divorced. They separated and Maureen moved into her Miranda property. 2. Maureen was now on her own again. Her drinking began to spin out of control. I accept John's evidence that, on more than one occasion during this period, he found her drunk and passed out on the back lounge of the Miranda property. Occasionally, he found her so stupefied by alcohol that she was lying in her own urine and he had to get her to the bathroom. 3. By this time, John was well past his impressionable teenage years; he was 30. But he says, and I accept, that he still found these incidents deeply upsetting. They no doubt brought back childhood memories for him. I accept that he would go home in an emotional state and discuss what had happened with his wife Sharon. 4. John's other two siblings are in no position to deny the truth of what John says about these incidents. They were not there and he was. Whether he was just unlucky and encountering her in this kind of situation in the late 90s more than the others is hard to tell. But the Court has no reason to doubt the truth of what he said about these incidents. His evidence was not invented and was consistent with other evidence about Maureen's conduct when under the influence at this time, including the compelling evidence of Mrs Treloar. John Marries Sharon – 1999 1. When Sharon and John were married in April 1999, they invited Maureen and John's father to the wedding. They both came, as did Rachelle and her husband, Mr Vader, together with some of Sharon's family. Maureen and John's father had not seen each other for many years. Despite some tensions, the event went smoothly. 2. John invited his brother Kenneth to the wedding. But in response, Kenneth made some gratuitous derogatory comments about Sharon. John reacted quickly to the slight on Sharon. A fight ensued between the brothers. In the end, Kenneth did attend the wedding. 3. But this reasonably calm state of affairs between John and Maureen was not to last very long. John and Sharon's son, Marley, was born in November 1999. The Court accepts that, just before Sharon went into labour at the hospital, a nurse came into the birth room and announced that Maureen had come to the hospital. John went out the reception area to discover his mother completely intoxicated. She was sprawled out across a couch near the front desk of the hospital. A moment of spontaneous empathy from a nurse who saw this moment has stayed in John's memory, on seeing Maureen's condition, the nurse calmly said to him: "it is not your fault". 4. But John had to deal with the problem. He could not leave his mother there drunk, in a public reception area of the hospital, while he worried what she might be doing as the birth proceeded. He took the rational decision to take her back home as quickly as he could and then return to the hospital for the birth. 5. After Marley was born, John went back to Maureen's house to check on her. She was still drunk. This incident badly affected John. It seemed also to affect Maureen's confidence in looking after Marley, who was her first grandchild. She was reluctant to take him in her arms, saying: "I am just not confident holding him". 6. Maureen's life unravelled badly in this period. In my view, John's evidence is to be accepted that she was drinking persistently in the late 90s, about the time that Marley was born. On Christmas day in 1999, Sharon, Marley, John and Maureen were invited to Maureen's maternal grandmother's home in Burraneer Bay for Christmas dinner. But Maureen was so affected by alcohol that she repeatedly disappeared to the toilet, and, when in everyone's company, commenced to belligerently insult her stepfather. Finally, John and Sharon decided that they had to take her home. 7. John and Sharon's second son, Evan, was born in October 2000. Maureen visited the hospital on this occasion without incident. Rachelle also visited. 8. From late 1999 through to 2001, relations between John and Maureen appeared to improve. They spoke on the phone regularly and John and Sharon dropped in with the children on a weekly basis. John and Sharon lived in Gymea, which was only one suburb away from Maureen, who was living in Miranda. Maureen Meets Seth – 2001 1. Maureen had been going to Alcoholics Anonymous for a number of years. There, she met a man by the name of Seth. In 2001, Maureen introduced John and Sharon to Seth, who became a part of family life from that time on until his death, not long before Maureen's. 2. In November 2001, Sharon and John sold their Gymea property and purchased a property in Caringbah. They continued to hold family gatherings at their Caringbah home for birthdays and some Christmases. Maureen, Rachelle and her husband attended these events. 3. But in my view, during this period, the early signs of the later estrangement between John and Maureen began to appear. Kenneth was not present at this time. Although the rest of the family enjoyed superficial family harmony, John says that he noticed Maureen "was hesitant to engage with our sons". John appears to have begun to form the impression that Maureen was showing preference to Rachelle and her family over his. To someone so traumatised by his mother's early behaviour, the degree of sensitivity to her recognition of his importance to her can readily be understood. Whether John's observations of this were right or not, he certainly perceived the situation that way. Maureen and Seth Move to Batemans Bay – 2003 1. In early 2003, Maureen and Seth moved to Batemans Bay. Sharon and John visited them there with their two sons. The move to Batemans Bay had an important effect. The distance meant reduced contact between John and his mother. And when Maureen was in Sydney, she had to choose where to stay. There is little doubt that Maureen's relationship with her daughter, Rachelle, was far better than that with either of her two sons. Whether it was that reason or simple convenience, when Maureen came to Sydney, she tended to stay with Rachelle. John noticed this choice and he was sensitive, indeed perhaps excessively so, to Maureen's expression of her obvious preference for Rachelle over him. Once again, John reacted badly to this. Once again, his reasons for doing so, in my view, were grounded in the traumas of his past relationship with his mother. 2. Sharon and John had a third child, Summer, in September 2004. Maureen saw Summer after her birth. But John says, and the Court accepts, that because she lived in Batemans Bay, Maureen was seeing less and less of John from this time. 3. In 2006, John and Sharon sold their Caringbah property and, after renting for a period, they purchased another property in Bruce Avenue, Caringbah ("the Bruce Avenue property"). In early 2007, Rachelle, her husband and her eldest son came over to the Bruce Avenue property for a barbecue. John's recollection is that, on this occasion, Maureen "spent most of the day upstairs" and hugged him at the end of the day before he left. Reasons why she spent most of the day upstairs are obscure. But John appeared to feel that his mother was perhaps not doing enough to compensate for staying with Rachelle. He thought she should have been with him and his family more. 4. The Court accepts that John's account of what happened on this occasion is correct. His sensitivities to these events, and to Maureen's general preference for staying at Rachelle's when she was in Sydney, went largely unnoticed by both Maureen and Rachelle. 5. This led to a build-up of tension between John, his mother and his siblings. In a perfectly happy family, this tension might appear to be completely irrational. But John's growing distance from his mother and siblings is perhaps more understandable in this case, given John's background of feeling let down by his mother early in his life. In my view, deep down he felt that his mother owed him far more than the attention he was getting. The Beginning of the Estrangement – 2007/2008 1. In late 2007 or early 2008, John ceased contact with his mother. This commenced a period of estrangement that continued right up until her death. The plaintiff admits this period of estrangement from his mother. But he answers its implications for his case in three main ways. First, he says that the commencement of the estrangement was not his fault. Second, he says that his mother made no demonstrable effort to contact him during the period of estrangement. Third, he says that he made efforts to bridge the estrangement gap, but that these efforts were either not reciprocated by his mother, or were thwarted by Rachelle and Kenneth. All of these contentions led to contests between the parties. 2. A key to understanding this critical part of the case is to appreciate John's deeply ambiguous relationship with his mother, due to her alcoholism. The Court's findings about her alcoholism are set out earlier in these reasons. The Court has accepted the plaintiff's evidence about the physical demonstrations of his mother's alcoholism. John says, and the Court accepts, that, in the early years in particular, he did not know what would happen when he tried to see his mother. This explains some of his later reluctance to make contact with her. But it must also be said that he made little effort to even try and engage with her. 3. One of the parties' disputes about the period leading up to 2007 was whether or not, by then, Maureen had entirely overcome her alcoholism. If she had, Kenneth and Rachelle's case was that John had no reason not to continue contacting his mother. John countered this argument with his account that her recovery from alcoholism was later than Rachelle and Kenneth had said and that she had relapsed. I accept his account that she had relapsed up to about 2001, when she met Seth, but was abstinent after that. Even accepting his account, she was not relapsing in 2007. 4. But this whole contest somewhat misunderstands the damage that Maureen's early conduct had already done to John's relationship with his mother. There are parts of his evidence in which it was painfully apparent to the Court that he had never really been able to overcome the psychological scarring to him as a young man of regularly seeing his mother virtually comatose with the excesses of alcohol she had ingested. It is overly simplistic, in my view, to suggest that he could, and should, just forgive and forget all of this. In my view, Maureen's conduct in his early life deeply and irrevocably damaged him in a way that tends to explain much of his later unpredictable and ambivalent conduct towards his mother. At one level, she became an object of his blame, for the destruction of part of his childhood. And at another level, as a result, they both had trouble forming a close mature mother-son bond. And at yet another level, he became less capable of objectively appreciating and evaluating the many things that she did for him. 5. John's account of the beginning of the estrangement events is that in late 2007 or early 2008, he asked his mother, by telephone, if he could borrow a box of family photographs so he could scan them, as his own children had been asking to see pictures of him as a child. At some stage early in 2008, on one of her occasional trips from Batemans Bay to Sydney, Maureen gave the photographs to John and he scanned them. He also offered to give his mother a copy of the scanned files. 6. But he did not see his mother for about a year after this. He says that, so far as he was aware, she continued to live at Batemans Bay. He does not say that he followed his mother up with more phone calls, to see when she was next coming to Sydney. I infer that he did not. He seems to have been waiting for her to let him know when she was next going to be in Sydney from Batemans Bay. 7. But I accept John did not hear back from Maureen for about a year. In early 2009, he telephoned her. He says, and the Court accepts, that during the course of his telephone conversation with her, he discovered that she was already in Sydney and was staying with Rachelle. He says, that upon finding that fact out, "I recall feeling disappointed that mum had not let me know that she was in Sydney. During the course of this conversation I offered to return the photos to mum". Maureen then did come, by arrangement, to the Bruce Avenue property to collect back the box of photographs. Rachelle drove her there. 8. Mother and son conversed at the door. John did not invite her in. He was criticised for this. Why he did not do so requires analysis of John's perspective. The subject of Maureen's mother's recent death, in February 2009, was briefly discussed between them. John says that he explained to his mother that he had not been able to go to her funeral because, "I had a presentation of an eight month design contract for some overseas clients that day". 9. John says that whilst talking to Maureen, he was conscious that Rachelle had come with her. He saw that Rachelle did not come to the front door but stood about five metres away. John's reaction to this was, "I remember feeling hurt about her behaviour". 10. John's observation of Rachelle accord with Rachelle's testimony, dealt with below, that she was there but standing away from the door. Rachelle was out of ear shot and did not hear exactly what was said at the door between John and Maureen. John says, and the Court accepts, that he said to his mother in the course of this conversation "I do not want to get involved with the goings on of the family at this time. I have enough on my plate". 11. Why did he say this? What did it mean? Leaving aside what looks like a misunderstanding derived from lack of communication between John and Rachelle that led to her standing away from the front door, John had a reason for wanting to distance himself from the family. Although he was being oversensitive, he was disappointed that Maureen appeared to be favouring Rachelle when visiting Sydney and not informing him about those visits. He seemed to be resentful that, he having put up with Maureen's poor behaviour to him and others in earlier years, she now did not give him enough time. 12. But the reality was different. He had been difficult with Maureen. This was a reaction to her alcoholism. In response to his difficult approach, she had, in turn, become guarded about the amount of contact that she had with him. This, in turn, fed resentment on his part. It was all an unfortunate vicious circle: one which required someone of great character to bridge. It is difficult to blame either of them for not having the personal quality of magnanimity to bridge this gap, created by an accelerating vortex of misunderstanding. 13. But Rachelle's account of these events starts in a quite different place. She says that, on some date in about 2007, she overheard a conversation between John and his mother in which John said in a raised voice, "I am not interested in having anything to do with any of you. You are all jealous of my success I don't need you or your money." Rachelle says that it shocked her and changed her attitude towards John. John was angry with his mother and was capable of saying something like this. 14. John last saw his mother when Rachelle drove Maureen to John's home to collect the photographs. Rachelle says she saw Maureen go to John's door. Rachelle says that John answered the door but invited neither Maureen nor Rachelle into the house. Rachelle says she stayed away from the door. Her memory of John's words to Maureen is why she hung back at the gate, when she took Maureen over to collect the photographs. 15. John and Sharon separated in 2013. Judging by some limited evidence before the Court, their separation and divorce were very acrimonious. About the same time John sought Maureen's telephone number via Rachelle but it was not given to him. Rachelle was concerned about the effect that John might have on his mother. Maureen Makes Her Last Will – May 2014 1. The timing of Maureen's will is important. In the course of these events, Maureen made her last will on 5 May 2014. About the same time Robert Neal fell ill with a heart attack. 2. The will was not complex. After appointing the defendants as her executors and trustees (clause 2.1), the will appointed Maureen's solicitor, Mr Corbett Jones, as a default executor and trustee (clause 2.2). 3. After making a gift of her three carat diamond ring to Rachelle (clause 3), Maureen's will gave Maureen's residuary estate as 50% to each of Kenneth and Rachelle (clause 4.1). But if either Kenneth or Rachelle died before her, the will provided that the children of either Kenneth or Rachelle would take this instead (clause 4.2). This ensured there was no intestacy, which would possibly give John a default entitlement to part of the estate. 4. The will did not mention John. Nor did it mention the reason why he was not included in Maureen's testamentary bounty. No formal statement was made to Maureen's solicitor, Mr Corbett Jones, as to why John was not mentioned in the will. Alleged Efforts to Reconcile – 2014 to 2016 1. John made no attempt to contact his mother until about 12 months before she died on Boxing Day 2016. John says that his attempts to overcome the estrangement were thwarted by Kenneth and Rachelle. There were, at least, a series of misunderstandings and miscommunications that prevented the chance of reconciliation between them before her death. On John's case, these events were not accidental, and Kenneth and Rachelle sabotaged his last opportunities to see his mother and overcome their estrangement. The truth is more complicated than that, as the Court's findings below about this period show. John's Text Messages to His Mother – September 2015 and early 2016 1. John says that, on two occasions, he sent text messages to his mother in an attempt to reconcile with her. His evidence on this subject is accepted. The first message was sent on 25 September 2015. After seeing his aunt Mrs Treloar, who informed him that his mother was unwell in hospital with heart problems, John says that he obtained his mother's phone number from his son, Marley, who had been given the number by Mrs Treloar who is a teacher at his school. 2. John says and the Court accepts that he sent a message to his mother in words to the following effect: "I hope you are okay. I love you and want to catch up soon." 1. John says he did not receive a reply to this message. 2. John says that, after learning from Mrs Treloar that his mother would not be attending family gathering on Christmas 2015 at her house (to which these reasons will refer below in greater detail), he sent another text to his mother. He said he felt disappointed that his mother was not coming but that he looked forward to catching up with her. He says that the second message he sent his mother was in words to the following effect: "We had a really pleasant get together and it was a shame you could not be part of it. I love you and look forward to catching up with you soon." 1. John says that he also did not receive a response from his mother to this message. 2. The Court does not have direct evidence of these text messages before it. John no longer has records of the messages on his phone and the deceased's phone was unable to be obtained. The reason John says he no longer has these messages on his phone is because he deleted all his text message history with his family members (including with his mother) after Christmas 2015 and the incident of the assault on his father because he felt, at the time, that there was "no hope" and that "it was the right thing to do for me". He said in cross-examination, specifically in relation to the messages with his mother, that "I definitely deleted what I'd sent to mum because I didn't think she was going to come back". Although John no longer has the text messages he sent to his mother, he annexes to his affidavit of 6 June 2017 a copy of his phone records showing that a message was sent from his phone number on 25 September 2015 at 1:57pm and on 25 December 2015 at 9.14am to his mother's phone number. The most logical inference from the objective evidence is that he sent messages to his mother's number for the reasons he says and in the form that he says. 3. It was put to Rachelle in cross-examination whether she was aware that these messages had been sent by John, or indeed whether she had ever seen them. She denied knowing anything about them. 4. The defendants issued subpoenas to TPG and Optus. No documents were produced under the Optus subpoena for the reason that Optus only stores SMS records for a period of 60-90 days, and so the time period of interest, being 2015, was not available. Optus also does not store the content (being the actual terms) of the text message sent or received. TPG produced John's original phone records for 25 September 2015 at 1:57pm and 25 December at 9:14am, which corroborated the annexures to his affidavits. Ms Winifred Amankwah, a TPG law enforcement officer, gave evidence that TPG does not keep the content of text messages sent or received unless they have authority to place an interception warrant on the phone number. 5. The records produced under the TPG subpoena only contain information about the call date and time, the usage time, the duration, the called number, the data used and any network cap cost. They do not show the text of the text messages that were sent or received. All they show is that a message was, in fact, sent from a particular number, to another particular number, on a certain date and at a certain time. 6. There is no proof about the terms of the text messages sent from John to his mother apart from what he says in his affidavit. But the fact that John's phone records produced by TPG do not show the terms of the messages he says he sent to his mother is not fatal to John's case on this issue. In my view, John's phone records are compelling evidence that he did, in fact, send two text messages to his mother, one on 25 September 2015 and one on 25 December 2015. 7. It cannot be disputed John did send a message to his mother on 25 September 2015 and 25 December 2015. As will be seen below, the sending of such text messages is consistent with what happened with Mrs Treloar's encouragement at Christmas 2015. The Court accepts that John wrote to his mother in the terms he claims. In my view his text messages evidence some intention and effort to reconcile with his mother. 8. In Mrs Treloar's affidavit of 9 November 2017, confirms John's positive attitude to reconciliation. She deposes that she was aware that John wanted to see Maureen. John asked her for his mother's phone number as he did not have it. When Mrs Treloar mentioned John's request to Maureen, Maureen replied, "No. I don't want you to give it to him as Rachelle says it's not a good idea". But Mrs Treloar says she gave the number to him anyway. Mrs Treloar tries to Bring John and Maureen Together - Christmas 2015 1. In the lead up to Christmas 2015, Mrs Treloar, the deceased's sister, invited both John and Maureen to her home to a family gathering she was hosting on Christmas Eve. Well aware of the conflict between them, Mrs Treloar sought to arrange for Maureen and John to attend her house at slightly different times so they could avoid each other, if they wished. But they nevertheless had the option to meet if they chose to take it up. It was a resourceful idea to help bridge their long-standing differences. Mrs Treloar's account of what happened next is challenged but the Court wholly accepts her version. 2. Mrs Teloar asked Maureen what time she planned on arriving. When Maureen asked why she wanted to know, Mrs Treloar replied, "There is somebody coming to dinner that you may not want to see". Maureen was not satisfied by this: she wanted to know who was coming to dinner. When Mrs Treloar eventually told Maureen that John would be attending, Maureen responded to her, "this is a sign from above and it's time to make amends. I'm looking forward to seeing him. Thank you Colleen". 3. Mrs Treloar also broached the subject with John. She says that John was "very excited" at the prospect of a reunion with his mother. He wanted to prepare. He asked Mrs Treloar for advice as to what gift he should arrange to give to his mother, and then ultimately suggested to her that he would bring her a bunch of flowers. 4. But a few days before Christmas, when she was out shopping, Mrs Treloar received an unexpected telephone call from her sister. She says that Maureen told her "Both Ken and Rachelle say it's not a good idea for me to attend Christmas Eve, as John is going and he is into drugs and alcohol. Rachelle doesn't want me near alcohol." The circumstances of this conversation were not ideal. Mrs Teloar was juggling her shopping. 5. But she was ready. Her plan had anticipated some resistance. Mrs Treloar assured Maureen that she could arrange for them both to be at the gathering at different times, so that Maureen would not have to see John. But Maureen pushed back, saying "No, Rachelle doesn't think it's a good idea for me to go to your place". Maureen seemed immovable in the face of Mrs Treloar's reasoning that she would manage this occasion, so it could not present any risk to Maureen. Mrs Treloar says, and the Court accepts, that she was shocked at her sister's change of heart. 6. Mrs Treloar told John about Maureen's change of mind and that she now would not be attending the gathering. He was very upset at the reunion not going ahead. John says, and the Court accepts, that he felt "very disappointed" that he would no longer have the opportunity to see his mother. He was also disturbed about Rachelle's reported comments about him representing a risk to his mother. John says that since this time he has not spoken to Kenneth or Rachelle about the aborted Christmas celebration meeting, nor did he contact Rachelle to ask her what exactly she had said to Maureen. 7. It is important to pause before examining Rachelle's version of these events. On the facts the Court has already accepted John responded positively to the offer of an opportunity to meet his mother. He has not rejected the idea and has given Mrs Treloar every encouragement to believe a meeting will take place. Maureen initiated the cancellation. Although the Court will examine the issue briefly below, why she pulled out is less important. The conclusion to be drawn from these findings is that John was not on a single-minded mission to continue his estrangement from his mother. Rather he wanted to end the breach and it was his mother who was hesitating. 8. Rachelle and Kenneth's evidence gives quite a different perspective on these events. Rachelle's account differs in a key respect to Mrs Treloar's: she disclaims any influence over her mother's decision not to attend. Rachelle says that, in the week leading up to the proposed Christmas Eve gathering at Mrs Treloar's, her mother called her and said, "Colleen rang me and said John will be at Christmas at her home. I have told Colleen I am not going, I feel too anxious about it and I do not want to see John. 9. Rachelle says that her only response to her mother's decision not to go was that she expressed her concerns about her mother's health and told her that if that was the way she felt, she should do what was best for her. Rachelle insists that she never otherwise told her mother not to attend the Christmas function with John, nor did she encourage her not to attend. She also insists she never told her mother whether or not to contact John. Rachelle says, "Mum made her own decisions". 10. Similarly, Kenneth says that, when his mother told him she did not want to attend Colleen's Christmas gathering, he replied, "that's your decision to make mum". He says that Maureen told him that she did not want to go because she did not want to be "ambushed" or "forced" into reconciling with John at the Christmas party. When it was put to Kenneth why he simply said "that's your decision to make" rather than supporting his mother's decision not to attend in a more direct fashion, Kenneth said that he felt that by allowing his mother to make her own decisions without him qualifying it by saying something to her along the lines of "you're correct", that he was, in fact supporting her. He said: "She's made a decision. I'm not going to try and influence her either way. I mean, she's made up her own mind as to what she wants to do. I feel that is supporting somebody." 1. He says further that he "did not tell Mum who she should or should not contact". 2. In cross-examination, Kenneth did admit that he and Rachelle had discussions about it being unwise for their mother to see John, but that these conversations only took place after John assaulted their father on Boxing Day 2015 (see below), up until Maureen's death in 2016. Kenneth says that he and Rachelle were concerned that John may behave towards their mother in a similar way he had towards his father if they saw each other. This concern of theirs was quite understandable as the assault on Robert had been vicious. Although there has never been any suggestion in the evidence of John being violent towards his mother, despite their troubled history. 3. What happened to Mrs Treloar's Proposal? Rachelle's and Kenneth's account is partly right too. In my view, they found out about Mrs Treloar's proposal for a meeting from their mother. In discussion with Maureen they reinforced Maureen's perception of the alleged risks of meeting John. But in the end Maureen made her own decision. But importantly again neither Rachelle nor Kenneth took positive steps to encourage the meeting. To the extent their perception was of risks at the meeting itself, rather than afterwards, neither of them explored with Mrs Treloar how those risks could be mitigated. To the extent that the risks to Maureen were perceived to be from exposure to John himself over the longer term, they made no attempt to explore how those risks could be mitigated. 4. All that can be said in my view is that Mrs Treloar's initiative of a short social meeting at Christmas was probably the most realistic way that John and Maureen were ever going to be brought together. It does Mrs Treloar immense credit that it was attempted. But it was an opportunity lost. John Assaults His Father – Late 2015 1. John viciously assaulted his father on Boxing Day 2015, badly injuring him. He was subsequently charged and convicted of assault occasioning actual bodily harm. The assault was wantonly cruel and caused great injury to his father. Mr Vindin, of counsel for John, rightly did not seek to justify this assault in any way, but did adduce evidence to attempt to explain it. The Court largely accepts that evidence. And the Court finds that what happened on this occasion was that in part John was reacting to his father's dismissive bitterness about committing acts of domestic violence upon Maureen. Once again that demonstrates the ambiguity of John's relationship with his mother. He was quote prepared to defend her dignity against Robert, sometimes irrationally. Maureen's Expresses Her Testamentary Intentions 1. The defendants' case attributes statements to Maureen, in which she is said to have disclosed the reason for making no provision for John in her will: "I have changed my will and excluded John. He has not spoken to me in years and he is very successful. I have thought about it and am sure. … John has had plenty of time to make amends". 2. Kenneth and Rachelle's evidence about these statements is largely to be accepted. It is likely, in my view, that Maureen would have said something to them about the change in her will. It shows that she had fairly strong views about the matter, whether they were justified or not. It shows that her view was that, at the time she made the statements, John was the one who needed to make amends and that he had failed to do so. 3. But the timing of these statements is important. Mrs Treloar's evidence of subsequent events suggesting the possibility of a reconciliation throws quite a different light upon this evidence and allows the Court to view it in a broader perspective. 4. Maureen thought no provision should be made for John, by reason of his conduct. The defendants' argue that Maureen was entitled to benefit the defendants not only because of the support and comfort each gave to her, but also in recognition that each suffers from the genetic condition Hypertrophic Cardiomyopathy ("HTC") for which there is no known cure and which inhibits their being able to work. Maureen's Death and Funeral – January 2017 1. Maureen died on Boxing Day in 2016. John did not go to her funeral. He says he wanted to go, but was prevented from doing so. The issue was complicated by John's assault of his father, which had led to an AVO being taken out to prevent John being near his father. By the time of the funeral, John's assault had not been dealt with by the Court. But police had taken out an AVO against him to stay away from his father. The AVO became the reason he could not attend Maureen's funeral: his father would be there. The defendants submitted that it was John's own fault that he did not attend Maureen's funeral. At one level, this submission is clearly right: his conduct led to the imposition of the AVO. But the full truth is more complicated than this submission allows. The Health and Financial Position of the Parties 1. The position of the defendants' vis-à-vis John is to be contrasted both in terms of their physical health and financial circumstances. Unlike Rachelle and Kenneth, John does not suffer from HTC, and so is not prevented from working. 2. Kenneth's Position. Both Kenneth and Rachelle each suffers from a genetic heart condition called Hypertrophic Cardiomyopathy ("HTC"), for which there is no known cure. On 1 August 2014, Kenneth underwent open heart surgery to relieve severe obstructive HTC in his heart. As a result, he has only been able to work in a limited capacity and earn a limited income. He has been prescribed various medications to manage the disease and its associated risk of stroke, regularly undergoes specialist testing and monitoring, and has been counselled about the possibility of further surgical intervention in the future. 3. Although Kenneth is currently employed in part time/casual work, he says that his age, ongoing medical condition and symptoms of lethargy and fatigue preclude him from obtaining employment in a full time capacity. Kenneth says another consequence of his heart condition is that he is unable to obtain private health insurance. It is for these reasons that Kenneth says, with justification, that his future financial needs are, in part, unknown. 4. At the time of swearing his affidavit of 31 August 2018, Kenneth's assets were as follows: Asset Value Gymea house $1,000,000 Motor vehicle $11,700 Superannuation $81,750.91 CBA Premium cheque account $18,508.29 CBA Direct Investment account $6,921.71 ANZ Online saver account $9,124.75 1. Kenneth's annual expenses were estimated at $35,616.57: Item Cost House insurance $1,250.52 Electricity $1,600 Water rates $1,200 Council rates $2,140.17 Telephone $720 Internet $719.88 Petrol $2,600 Son's clothing and expenses $2,000 Food/household goods $20,800 Car registration and insurance $1,586 Car servicing $1,000 TOTAL (per annum) $35,616.57 1. Rachelle. Rachelle also suffers from the symptoms of HTC, including arrhythmias, lethargy and fatigue. Rachelle requires ongoing heart monitoring for the remainder of her life, as HTC is a progressive disease. Rachelle's son has also tested HTC positive. She volunteers her time to the RPA Cardiac Institute, as required, for medical trials to assist in further research programs into the disease. Rachelle says that the biggest unknown factor for her future needs is the nature of her HTC and the severity of the symptoms she will suffer, particularly as HTC is a progressive disease. She says that the disease limits her job prospects and impacts her family health and life insurance premiums. At the time of swearing her 31 August 2018 affidavit, Rachelle had been looking for employment since early 2017. She resigned from her job at Southerland Shire Council in July 2015 to look after Maureen when she became ill. This was a very considerable sacrifice on her case. She has not yet found employment to which she can return. 2. Rachelle also was involved in a serious road accident in 1987, when she was 16 years old. She suffered a compound fracture to the left femur and a broken right humerus. As a result, she suffers from arthritis and will require two knee replacements and a hip replacement in the foreseeable future. 3. At the time of swearing her updating 24 September 2018 affidavit, Rachelle and her husband, Michael, jointly owned the following assets: Asset Value Sylvania house $1,200,000 Mazda motor vehicle $25,000 Mitsubishi motor vehicle $20,000 Boat $15,000 Rachelle Superannuation $88,581.35 Michael Superannuation $242,212.76 Gosford investment property $575,000 1. At the time of swearing her updating affidavit of 24 September 2018, Rachelle and her husband had a mortgage over their Sylvania house of $111,052 and a mortgage over their Gosford investment property of $431,113. 2. Rachelle and Michael Vader receive $1,680 per month in rental income from the Gosford investment property (although the property had been unrented from 26 June 2018 for a period of eight weeks). 3. Rachelle and her husband's monthly expenses at the time of her swearing 31 August 2018 affidavit were estimated as follows: Item Cost House insurance $133 Health insurance $83.71 Electricity $331 Water rates $110 Council rates $160 3 x mobile phones $161 Internet/Foxtel/Home phone $160 Boat and trailer registration $188 Boat insurance $47.90 Petrol (2 x vehicles) $600 School fees and tutoring $326 Food $450 Sport and after school activities $228 Car registration and insurance (2 x vehicles) $266.66 Sylvania property interest paid $388 Gosford property house insurance $264 Gosford property rates $475.49 Gosford property water $283.95 Gosford property interest paid $2,304 Gosford expenses/agent fee $415 TOTAL (per month) $7,375.71 1. Kenneth and Rachelle's financial needs due to their medical conditions are undoubted. 2. John's Position. John says that since the collapse of his business and break down of his marriage in 2010, that he is now "demonstrably in a far less comfortable financial position than each defendant". After divorcing Sharon, the marriage settlement shows that their matrimonial property went to her and he received a payment of $275,000. 3. Since then, he has re-established himself as a self-employed mechanical design engineer. He currently earns a gross monthly income of approximately $11,000. Other than a credit card debt of approximately $3,000, he has no other liabilities. He has limited assets of about $100,000, with superannuation of about $50,000. 4. The defendants submit that, on this evidence, John has shown no quantifiable or proven need for provision out of Maureen's estate. John's position should be examined in a little more detail, as was Kenneth's and Rachelle's. 5. Unlike Rachelle and Kenneth, John does not suffer from HTC, is in good health, and so is not prevented from working for medical reasons. But since the collapse of his business in 2010, a time, John says, when he felt his "life was turned upside down", and since his the breakdown of his marriage in 2013, he is now "demonstrably in a far less comfortable financial position than each defendant". On 10 October 2013, John and Sharon entered into family law consent orders in their divorce, by which they agreed that Sharon would receive 65% of the net proceeds of sale of their Caringbah property and John would receive 35%. This agreement meant that John received a payment of approximately $275,000. 6. Since then, John has re-established himself as a self-employed mechanical design engineer. John currently earns a gross monthly income of approximately $10,963.66 and his net monthly income is approximately $4,289.66. At the time of his affidavit of 26 September 2018, John's assets were the following: Asset Value Balance in ANZ Astrotec account $3,115.17 Balance in ANZ Online Saver account $99,463.20 Balance in ANZ Access Advantage account $109.58 Motor vehicle $32,300 (estimated 15% depreciation) Superannuation $47,240.04 1. John has no liabilities other than a credit card debt of $3,186.32. 2. Unlike his brother and sister, John no longer owns a property. At present, he is renting in Caringbah for $700 per week. At present, John and Sharon's son, Marley, is living with John. He is currently completing the second year of his apprenticeship, earning a small income of approximately $9 an hour and so cannot contribute to household expenses. Their other son, Evan, currently lives with his maternal grandparents during the week and spends his weekends with either John or Sharon. Once Evan finishes his HSC exams, it is expected he will return to live with John and Marley. 3. At the time of swearing his 26 September 2018 affidavit, John's estimated monthly household expenditure was as follows: Item Cost Rent $2,800 Electricity $230 Internet $60 Telephone $100 Petrol $400 Insurance (car comprehensive, contents, workers' compensation) $175 School fees and tutoring $400 Food $1,200 Software maintenance $233 Accounting (book keeping and accountant) $250 Car registration and green slip $100 TOTAL (per month) $5,948 1. At present, John does not have sufficient earning capacity to support a deposit on a property in the Shire, where he has lived all his life. It is submitted on John's behalf that, to enable him to purchase an apartment large enough to house himself and his two young adult sons in the Shire, he would need a minimum of about $600,000 in addition to what he presently has (about $100,000) in order to borrow the balance. That would leave him with only a small fund over in addition to his very modest superannuation of less than $50,000. 2. The defendants submit that the reason for Maureen excluding John from her will was based on the proposition that "[John] has not spoken to me for years and he is very successful." The plaintiff submits that the latter part of this exclusion is premised on the assumption that John was better off than his brother and sister, a proposition that was erroneous at the date it was made and which remains wrong today. I accept that submission based on this financial analysis. 3. The plaintiff submits that the estate is sufficient to make significant provision for him, as well as ensuring the defendants maintain their comfortable circumstances when the bulk of the estate they will receive is added to their already significant assets. The Defendants' Relationship with Maureen 1. Kenneth and Rachelle claim they maintained a close and loving relationship with their mother throughout their lives. They contrast their relationships with her to John's. Their case somewhat oversimplifies reality. This description is generally true of Maureen's relationship with Rachelle. But it is not an apt description of the relationship with Kenneth. That relationship went through its ups and downs, although it was generally much more satisfactory than the relationship between Maureen and John. 2. Kenneth describes his relationship with his mother as "close, continuous and loving… throughout my life". This is not correct. There was at least one significant period where Kenneth and Maureen were not on speaking terms and Kenneth had little contact with the rest of the family. He ultimately admitted this in cross examination. But it is true that there were regular visits and phone calls between Kenneth's family and Maureen, and Christmas get-togethers, as he says, until she began to live at Batemans Bay. 3. It is also true that Maureen took a strong interest in Dion, Kenneth's son. One of John's complaints is that Maureen did not appear to take the same interest in his children, a matter which seemed to be one source of tension with his mother. 4. Kenneth's evidence can also be accepted that Maureen was sad John made no contact with her, especially after her move to Batemans Bay. She complained to Kenneth about not receiving phone calls, cards or visits. 5. Kenneth helped take care of Maureen when her health was failing. I accept that he played a most important part in taking her to and from various hospitals and appointments, and helped Rachelle to coordinate the nursing of Maureen during recovery periods after these operations. 6. Kenneth says that Maureen was sober for over 20 years up until her death. In my view, his estimate is a rosy view of the past. I accept John's evidence that there were incidents of her abuse of alcohol in the late 1990s, and that a better theory of what happened is that she finally became alcohol-free about the time she met Seth in 2001. 7. Kenneth also assisted Maureen in buying and renovating her investment properties that constituted a significant part of her estate. He assisted her in the acquisition and improvement of the several investment properties his mother purchased, which formed a substantial part of her estate when she died. The Court accepts his evidence that he helped his mother negotiate the purchase of these properties and then was regularly involved in renovating and repairing the properties all on an entirely voluntary basis. I accept that John did not volunteer for any of this work, although he would have been just as qualified to undertake it as Kenneth was. 8. Rachelle describes a close relationship both with her father, Robert Neal, with Kenneth and with her mother, Maureen. Her relationship with Kenneth was not trouble-free. But she had a close and caring companionship with her mother throughout her life, staying in touch with her regularly, assisting her in her medical appointments, making sure her mother was part of their family life and regularly having her mother stay with her when she was in Sydney from Batemans Bay. Benefits Given to Kenneth, Rachelle and John by Maureen 1. It became apparent in the course of cross-examination that Maureen had discharged each of Kenneth and Rachelle's mortgages when she inherited money from her mother. Kenneth said in cross-examination that Maureen paid around $200,000 to discharge his mortgage in around late 2012/early 2013. Rachelle said that her mortgage was around $140,000 when Maureen paid it off. Mr Vader says he remembers Maureen discharging their mortgage in an amount of approximately $100,000. 2. Kenneth says that "Mum was always fair and equitable with myself, Rachelle, and John". In cross-examination, when asked what he meant by that statement, Kenneth said "I mean… Mum helped me with buying my first property. She'd obviously helped John, she's given us all equal help. I know when we were kids looking after us, we - we were all treated equally". 3. John did not receive the same benefit of Maureen in discharging his mortgage. But he overlooks the fact that he did receive substantial assistance in acquiring his first property at Engadine in about 1992 with Maureen guaranteeing his bank loan, paying his legal fees for conveyancing and assisting him in cleaning up the house and garden and giving him accommodation from time to time. 4. But Kenneth's statement that "Mum was always fair and equitable" is largely correct. Whatever her other faults may have been, Maureen tried to treat her children equally. She succeeded in this, so that such benefits do not favour one or other side of this case in the Court's analysis. The Estate and Costs 1. The present value of the testator's distributable estate is $2,819,043.87, comprising of monies in two controlled ANZ Money Accounts and shares in listed companies, after the deduction of estate administration costs. The real estate in which the testator lived and the three investment properties held at her death have now all been realised. 2. During the proceedings, new evidence emerged about the size of the estate, which required some adjustment of these figures. Maureen's mother died shortly before she did. Her mother's will gave her property to her four children (or their surviving children). Maureen was interested in one-quarter of that estate. Maureen's mother's estate was thought to be fully administered, but a valuable item of personal property in that estate was recently discovered and sold. The parties agreed that, as result of administration in Maureen's mother's estate, and the net proceeds of the sale of that personal property would increase the value of Maureen's estate by $160,000. The Court has taken this change in the size of the estate into account. 3. The defendants' costs of the proceedings on the indemnity basis up to and including the hearing of the proceedings are $180,000 (inclusive of GST). Of this sum, $79,500 has been paid from the assets in the estate, leaving an amount of $100,500 outstanding, although there is an additional figure of $1,000 in disbursements to be brought to account. 4. The plaintiff's costs of the proceedings are $103,000.00, assessed on the indemnity basis. The Court can estimate that his costs assessed on the ordinary basis would be in the order of $75,000 to $80,000. Applicable Legal Principles "Eligible Person" and "Factors Warranting" Succession Act 2006, ss 57 and 59 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. The plaintiff is an "eligible person" as a child of the deceased: Succession Act, s 57(1)(c). Adequate Provision 1. The next issue is whether an order for provision should be made in the plaintiff's favour. The test of whether an order for provision should be made out of an estate 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 this legislation which is often said to include a two-step provision. For example in Singer v Berghouse (No. 2) (1994) 181 CLR 201; [1994] HCA 40 at[18] – [19], the High Court of Australia said of the test under the previous legislation, as follows: "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 Co. 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 Leeder, 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 operates with the same full vigour in the current legislation has been 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 clear one on the question of whether or not adequate provision has been made for John, once he has been shown to be an eligible person. 2. Other authorities explain in greater detail the meaning of the words "adequate", "proper", and "advancement in life" in the legislation. Some of these authorities have been conveniently collected in the decision of Hallen AsJ (as his Honour then was) 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. With this statement of the law, the Court can now look at what order for provision, if any, should be made for John. What Order for Provision, If Any, Should be Made? 1. John submits that an order for provision should be made in his favour. He submits that he has done nothing which would warrant his exclusion from Maureen's will, and that, in his present circumstances, he has demonstrated obvious and immediate financial needs as would justify some order for provision out of Maureen's estate under the Succession Act. 2. Kenneth and Rachelle submit that no order for provision should be made. But if one is to be made, they say it should be modest for several reasons. First, they say that the testamentary wishes of the deceased should be respected. Secondly, they submit that the Court should take into account that they are: the chosen objects of Maureen's testamentary recognition; that they contributed severally to the welfare of the testator and to the conservation and improvement of the assets in the estate; and, that John, unlike them, received a substantial financial benefit from the deceased during her lifetime. Moreover, they submit that any order for John's maintenance that might be regarded by the Court as being adequate should, in the alternative, be severely modified given his estrangement from his late mother. 3. Kenneth and Rachelle stress the submission that freedom of testamentary disposition is an important human right that underpins the Succession Act. The Court and the legislature respect testamentary freedom. In Goodsell v Wellington & Ors [2011] NSWSC 1232 Hallen J noted (at [108]) that: "freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated." 1. Kenneth and Rachelle are right: the deceased was entitled to make no provision in her will for John because she enjoyed freedom of testation. But this important freedom exists subject to the operation of the Succession Act. 2. In the Court's opinion, an order for provision should be made for the following reasons. These reasons build upon the Court's earlier findings. 3. On the issue of John's estrangement from his mother, John's case is made out that the commencement of the estrangement was not his fault. Geographical distance between mother and son, the mother's preference to stay with her daughter Rachelle, and the deep ambivalence in John's relationship with his mother triggered the estrangement in late 2007 or early 2008. 4. Neither John nor his mother made demonstrable effort to contact one another during the period of estrangement. This seems to me to be a relatively neutral factor. But to a large extent it is cancelled out due to the Court's findings about John's efforts to bridge the estrangement gap, which were not reciprocated and at least were not encouraged by Rachelle and Kenneth. 5. This, in my view, is not one of those cases where a plaintiff seeking provision out of an estate is wholly responsible for estrangement from the testator. John did make a proven effort to bridge the gap, as Mrs Treloar's evidence clearly shows. 6. John has demonstrable financial need. He suffered misfortune in business which is not obviously the result of wasteful conduct on his part. He has assets of less than $200,000, including superannuation. He is attempting to re-establish his business at a later age. He has strong need for capital both to give him some domestic security and to provide some capital to risk in establishing and expanding his business. 7. There are other factors. It can be accepted that John and Rachelle contributed more than John to Maureen's welfare to the welfare and to the conservation and improvement of the assets of her estate. This is a factor to be taken into account is assessing the relative claims of John and his siblings and the quantum of any award to him from the estate. But the Court does not accept that John, unlike them, received a substantial financial benefit from Maureen during her lifetime. Rachelle and Kenneth did receive benefits as well. This is a neutral factor in this case. 8. Ordinarily, in a substantial estate such as this, the plaintiff's scarce capital compared with the relatively secure financial position of each of Kenneth and Rachelle, would mean the plaintiff would appropriately be awarded a substantial sum. 9. But that should not happen in this case. The Court's discretion is also heavily influenced by the medical challenges and future financial risks of medical treatment that Kenneth and Rachelle will have to face, because they have acquired HTC. For that reason specifically the Court will award less than it would otherwise have done in this case. 10. Taking these factors into account, in my view, the appropriate award for the plaintiff is a sum of $400,000, which will be paid in the form of a legacy out of the estate. In the Court's overall consideration of the quantum to be awarded to the plaintiff in the circumstances, this award will not carry interest to date. Conclusions and Orders 1. One or other party may seek a special costs order, in addition to those costs orders which would ordinarily follow the event of John's success in these proceedings. So liberty will be reserved for the parties to pursue such an order, if so advised. 2. The Court accordingly makes orders and directions in this matter, as follows: 1. Order that provision be made for the plaintiff out of the estate of the late Maureen Patricia Flis ("the estate") by granting that the plaintiff receive a legacy from the estate in the sum of $400,000 inclusive of interest. 2. Order that the plaintiff's costs be paid out of the estate on the ordinary basis. 3. Order that the defendants' costs be paid out of the estate on the indemnity basis. 4. Grant liberty to the parties to apply until 2 April 2019 to seek a special costs order. 5. Exhibits may be returned. ********** 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: 01 March 2019