DEBRA GAY MITCHELL v DIANNE GAIL MITCHELL [2024] SASC 154

Applicant: DEBRA GAY MITCHELL Counsel: MR G STATHOPOULOS - Solicitor: TERESE WACYK LEGAL First Respondent: LINDSAY DALE MITCHELL (AS EXECUTOR OF THE ESTATE OF DORIS ISOBEL MITCHELL) Counsel: MR E BELPERIO - Solicitor: D'ANGELO LAWYERS Second Respondent: KAITLYN EMILY MITCHELL No Attendance Third Respondent: ASHLEIGH CLARE MITCHELL No Attendance Fourth Respondent: RICHELLE AMY MITCHELL No Attendance Fifth Respondent: SHANE TYSON OATES No Attendance Sixth Respondent: JASON SCOTT OATES No Attendance Seventh Respondent: DIANNE GAIL MITCHELL Counsel: MR E BELPERIO - Solicitor: D'ANGELO LAWYERS Hearing Date/s: 04/03/2024, 05/03/2024, 27/03/2024 File No/s: CIV-23-002815 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. MITCHELL v MITCHELL & ORS [2024] SASC 154 Judgment of the Honourable Justice McDonald 23 December 2024 SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE - WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION - CLAIMS BY CHILDREN Doris Isobel Mitchell (the testator) died on 4 June 2022. By originating application, the applicant seeks further provision pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (SA) submitting she has been left without adequate provision for her proper maintenance, education and advancement in life. The applicant contends against an express wish within the testator’s Will directing that the family holiday home (the Carrickalinga property) be retained and not sold for the benefit of the testator’s grandchildren (provided the respondent can reside in and/or manage the property) submitting that this leaves her inadequately provided for. The applicant further contends that the testator did not express this desire to her, arguing that the stated wish does not accurately reflect the testator’s true intentions. The applicant brings this application due to her financial circumstances including an outstanding mortgage, her age resulting in the cessation of employment, and relationship with, and contributions -- 1 of 30 -- to, the testator’s life. The applicant seeks further provision in the quantum of fifty per cent of the testator’s estate with the intention that the property be sold, and the funds distributed to her. The first respondent opposes the application on the basis that the provisions reflect the true intentions of the testator, namely that the property not be sold and retained within the family. It is further contended by the first respondent, that the applicant’s provision is reflective of the testator’s relationship with the applicant which deteriorated over time predominately due to the applicant’s motives to have the property sold against the testator’s wishes. Held; application granted. 1. The Applicant has been left without adequate provision for her maintenance, education and advancement in life. 2. The Applicant requires financial assistance due to having a limited income, her age, ceasing of employment and outstanding mortgage balance. 3. The Applicant is to be paid the sum of her current outstanding mortgage as of the date of this order. Inheritance (Family Provision) Act 1972 (SA) s 7, referred to. Hughes v National Trustees, Executors and Agency Company of Australasia Limited (1979) 143 CLR 134; Pontifical Society for The Propagation of Faith v Scales (1962) 107 CLR 9; Bosch v Perpetual Trustee Co (Ltd) [1938] AC 463; Singer v Berghouse (1994) 181 CLR 201; Vigolo v Bostin (2005) 221 CLR 191; Bowyer v Wood (2007) 99 SASR 190; Parker v Australian Executor Trustees Ltd [2016] SASC 64; MacEwan Shaw v Shaw (2003) 11 VR 95; Bramwell v Bramwell & Ors [2023] SASCA 94; In re Allen (deceased); Allen v Manchesteri [1922] NZLR 218; Frizelle v Old [2009] NSWSC 1259; Re Adamnow (1989) 97 FLR 410; Edgar v Public Trustee for the Northern Territory [2011] NTSC 5; Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; Carter v Brine [2015] SASC 204; Gordon v Parks (1989) 17 NSWLR 1; Meres v Meres [2017] NSWSC 285, applied. -- 2 of 30 -- MITCHELL v MITCHELL & ORS [2024] SASC 154 Civil: Application McDONALD J 1 In 1975 Roger and Doris Mitchell (the testator) purchased a block of land on Gold Coast Drive, Carrickalinga to build a beach house for their family. The block is on a prime, beachfront location at the end of the road. 2 Between 1975 and 1990 Roger and Doris Mitchell built a house on the land (the Carrickalinga property). 3 On 15 August 2015, Mr Mitchell passed away. On 4 June 2022 the testator passed away. At the time of her death, the testator had a son (the first respondent), a daughter (the applicant) and five grandchildren (respondents 2 to 6). The main asset of the Estate was the Carrickalinga property. On the valuations obtained, the beach house is worth between about $2.4 million and $3 million. The terms of the Will of the testator provide that a testamentary trust be established in relation to that property with the first respondent acting as sole trustee and executor, and for him “to have the use occupation and enjoyment thereof for so long as he shall wish to reside in and/or manage the property free of rent”.1 The trust is subject to the following conditions:2 1. The first respondent must pay all rates and taxes, insurance premiums and the other outgoings payable in relation to the property; 2. The first respondent must keep the property in good order and condition, insured against loss or damage; and 3. On the death of the first respondent, or by notice from the first respondent in writing that he no longer wishes to enjoy the life interest in and/or manage the residence (whichever is the earlier of the two dates), the first respondent should hold the Carrickalinga property and household furniture for the applicant, the first respondent and the grandchildren (respondents 2 to 6) in equal shares. 4 Importantly, the Will contains an express wish by the testator that the Carrickalinga property not be sold but retained as an asset for the benefit of the testator’s grandchildren, for as long as the first respondent is able to reside in and/or manage the property. 5 The applicant is aggrieved by the terms of the Will. Pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (SA) (‘the Act’) and r 254.11 of the 1 Exhibit A2 at [5]. 2 Exhibit A2 at [5]. -- 3 of 30 -- [2024] SASC 154 McDonald J 2 Uniform Civil Rules 2020 (SA), the applicant seeks further provision in the quantum of fifty per cent of the testator’s estate. The evidence 6 The trial proceeded primarily by affidavit evidence. The applicant and the first respondent were the only witnesses to be cross-examined. Whilst there was some common ground in their evidence, there were numerous topics on which they were in direct conflict. A number of those issues are important to the resolution of this application. 7 It is convenient to deal with those matters that were not contentious before considering the issues in dispute. 8 The applicant was born on 31 July 1958 and was 65 years of age at the time of her mother’s death. The applicant had been married and divorced. There are two sons of this marriage. These are Shane Oates (5th respondent) born on 12 February 1985 and Jason Oates (6th respondent) born on 14 January 1988. The applicant is completely estranged from her eldest son and has been for some time. 9 The first respondent was born on 16 January 1962. He married Dianne Gail Mitchell (7th respondent), and they had three daughters. These are Kaitlyn Mitchell (2nd respondent) born on 9 June 1993, Ashleigh Mitchell (3rd respondent) born on 30 November 1994 and Richelle Mitchell (4th respondent) born on 21 August 1996. 10 The applicant and respondent grew up with their parents in the family home at Sheriff St, Underdale. In 1990, when their parents moved into the Carrickalinga property, the respondent and the applicant were gifted between them the Underdale house. The respondent paid the applicant $70,0003 for her half of the house and he continues to own it, using it as an investment rental property. 11 The parents were generous to the applicant and respondent. They provided the applicant with considerable financial assistance during her life. As well as the Underdale property, this included:4 1. A block of land at Happy Valley worth $16,500. 2. A Toyota Camry purchased for $15,400. 3. $40,000 cash during the applicant’s matrimonial property settlement. 4. $11,000 for maintenance and additions to the applicant’s home. 3 It was not entirely clear whether the applicant was paid $50,000 or $70,000 for her half of the property. For current purposes the difference is unimportant as regardless of what the figure was, it was half of the value of the property at that time. 4 Exhibit R19 at [44]. -- 4 of 30 -- [2024] SASC 154 McDonald J 3 5. $26,000 in monthly payments from 2004-2008. 6. $8,000 from the proceeds of the sale of a truck. 12 Whilst there was some quibbling about the precise value of various gifts, it was accepted by the parties that their parents were scrupulous in their efforts to ensure that they gifted the applicant and respondent equal amounts. 13 On 23 July 2008, both parents made Wills appointing the applicant and respondent as the executors and trustees, in the event that the other parent had passed away. Other than a few specific bequests, the remainder of the estate was to go to the applicant and respondent in equal shares. 14 As mentioned, on 15 August 2015, the father passed away. 15 There was an incident at the father’s funeral. The applicant’s ex-partner attended at the funeral and it would seem that this resulted in some form of emotional reaction from the applicant. Whilst there is a dispute about the precise details of what occurred, and the extent of the applicant’s reaction, it is accepted that there was an incident that caused the testator to become upset with the applicant. 16 This resulted in the testator making extensive notes the following day about, amongst other things, the applicant’s conduct at the funeral, the testator’s wishes that the Carrickalinga property not be sold and kept in trust for her grandchildren, concerns about the applicant’s motives and details about the financial assistance that she had previously provided the applicant. 17 These notes were not led for the truth of any of the details contained therein, but rather as reflecting the testator’s state of mind towards her daughter at that point in time and her wishes in relation to her estate. The notes included the following passages:5 Re my home at Carrickalinga It is my wish that […] Gold Coast Drive (my home) shall NOT BE SOLD but remain in the Mitchell family with the intention of passing it onto the 5 grandchildren being Shane, Jason, Kaitlyn, Ashleigh and Richelle. … To my daughter (Debra) who thought my home should be sold and she would have mega bucks to spend on holidays – i.e. this year was Bali, Canada, Port Headland, with a cruise still to come! … No doubt waiting for the big cash bonanza that she thinks will come. 5 Exhibit R21, Exhibit B. -- 5 of 30 -- [2024] SASC 154 McDonald J 4 … After observing Debbie clearing the contents of Russell’s wardrobe with everything being shoved into plastic bags without even a second look, I am now stating that I do not wish her (Debbie) to have any part in the disposal or otherwise use of my belongings, after my death! 18 It is plain from these notes that at least from the time of her father’s funeral, the applicant’s relationship with her mother had significantly deteriorated. There remains however a live issue, that I will come to, about when that deterioration commenced and whether the deterioration in the relationship had resolved by the time of the testator’s death. 19 On 7 September 2015, the testator instructed a solicitor to draft a new Will. The notes of the solicitor record inter alia:6 - Ms M concerned/disturbed abt daughter. Her conduct + statements/discussion re Carrickalinga suggest she has some right/entitlement to the ppty. - Mrs M stressed that her late husband always wanted to keep it in the family. - Mrs M is obsessed/adamant that ppty is not sold as soon as she dies. - She is concerned that daughter will want to sell @ all costs, with her husband’s, her’s and Lindsay’s “hard work” lost in a heartbeat. 20 The testator’s new Will was drafted and signed on 13 October 2015. 21 I pause there to observe that it is important that the evidence of statements of intent made by the testator are only used in a permissible way. As explained by Barwick CJ in Hughes v National Trustees, Executors and Agency Company of Australasia Ltd:7 Evidence of the reasons given by a testator or testatrix for making or not making a provision by will are, in my opinion, admissible as evidence of those reasons. Such statements are not evidence of the facts they assert: they provide evidence only of the subjective attitude or beliefs of the testator or testatrix. Of these other facts, the evidence is technically classed as hearsay … 22 The notes written by the testator and the solicitor taking instructions for the preparation of the new Will can only be relied upon to demonstrate the state of mind of the testator. That is her intent and her perception of events and relationships. 23 In January 2016, the testator held a family meeting at which the applicant and first respondent were present, to advise that she had created a new Will. Although 6 Exhibit R8. 7 (1979) 143 CLR 134 at 137 per Barwick CJ. -- 6 of 30 -- [2024] SASC 154 McDonald J 5 the parties contest the precise details of what occurred at that meeting, there is no dispute that the applicant was told of the new terms of the Will. 24 In evidence, however, the applicant claimed that at the meeting the testator had no recollection of a Will, could not put her hands on the Will and was completely confused.8 The first respondent’s recollection of the meeting is very different. He said that at the meeting the testator explained that she had created the new Will to reflect the contributions of the first respondent and other members of the family to the Carrickalinga property and her desire for it to be kept in the family.9 The first respondent said that the applicant complained about the new Will, became angry and told them that she should be able to sell the property.10 25 Given that there is no challenge to the testamentary capacity of the testator to make the Will, I do not need to resolve this conflict in the evidence. 26 At about that time, the first respondent arranged an Aged Care Assessment so that the testator could remain in her own home, as she was beginning to show signs of dementia. Over time the required level of care increased. As might be expected, the testator’s condition continued to deteriorate, resulting in arrangements being made to move the testator into a nursing home in around November 2017. 27 From 2017, the first respondent managed all of the testator’s finances pursuant to the Power of Attorney dated 13 October 2015. The first respondent also managed the Carrickalinga property, arranging for it to be rented, paying the bills and ensuring that the testator could pay for the nursing home and other personal expenses. 28 In May 2018, the first respondent signed an agreement with a Real Estate Management company, South Coast Realty, Normanville, to manage the Carrickalinga property as a holiday rental. All income and expenses for the property were accounted for in a separate ANZ bank account. That continued up until the testator’s death. Matters in dispute 29 It was apparent from their respective oral evidence that the relationship between the first respondent and applicant is extremely acrimonious and has been for some time. They have had next to nothing to do with each other since the time of their father’s funeral. The status of that relationship impacted on the evidence of the applicant and the first respondent in that there appeared to have been a reluctance by both parties to accept anything that the other party said. Generally speaking, these differences were details about events that will have no impact on the outcome of this application. There are, however, four topics upon which the 8 T22. 9 Exhibit R19 at [48.5.2]. 10 Exhibit R19 at [48.5.3]. -- 7 of 30 -- [2024] SASC 154 McDonald J 6 evidence of the applicant and first respondent were significantly at odds that are important to the determination of the issues on this application. These are: ● the extent of the first respondent’s contribution to Carrickalinga property; ● the testator’s intent in relation to the Carrickalinga property; ● the applicant’s intent in relation to the Carrickalinga property; and ● the nature of the relationship between the applicant and the testator. 1. The first respondent’s contribution to the Carrickalinga property 30 It was the first respondent’s case that the Carrickalinga property held great sentimental value to his parents. It was something that they had built together and maintained with the assistance of various family members. Each of the grandchildren described a similar sentiment and attachment to the property in the various affidavits that they have provided. 31 The first respondent commenced an apprenticeship at the age of 15 with the family business “RR and DI Mitchell”. This was a general building business mainly undertaking architectural work. The first respondent was initially employed as a carpenter but moved into other aspects of building work. Whilst the respondent was “hands on” in the trades, his father managed the business, and his mother undertook the office and administration side of the business. The company also employed up to 10 to 12 subcontractors.11 32 In 1983 the first respondent became a partner in the family business. 33 The business wound up with the retirement of the father, and the first respondent became a courier and a truck driver for about seven years before moving back into the building industry, in which he continued to work until his retirement.12 34 Between 1975 and 1990, the first respondent and his parents built the original house on the Carrickalinga property. The first respondent regularly spent weekends sleeping in tents and caravans on the property whilst assisting with the building works.13 11 T74. 12 T74-75. 13 Exhibit R19 at [34]. -- 8 of 30 -- [2024] SASC 154 McDonald J 7 35 Prior to 1990, the first respondent did not make detailed records of the time that he spent working on the property, however, he estimated that he would have spent at least 2,000 hours engaged in the building of the house.14 36 The arrangement changed and became more formal in 1990 when the first respondent’s parents retired and the family business ceased to operate. At this time, the first respondent also became unable to continue to provide unpaid work on the property due to the amount of work required and the first respondent’s need to earn an income to support his family.15 37 It was the first respondent’s evidence that in 1990 he entered an arrangement with his parents to be paid $18 per hour for work done on the property. In the year 2000, that changed to $25, with both rates being less than half of the commercial wage at that time.16 38 The first respondent produced a table setting out the work that he and his wife had undertaken.17 It was his evidence that he prepared this table with the assistance of his wife.18 The table had been produced for the purposes of assisting in these proceedings.19 39 The table records that between 1990 and 2018 the first respondent undertook 2,392 hours of paid building, maintenance, and painting work and during that same period his wife undertook 692 hours of unpaid work at the property.20 40 After June 2018, the testator could no longer afford to pay the first respondent, however he continued to work on the property. The first respondent estimates from June 2018 he has undertaken 523 hours of unpaid work, and his wife has also undertaken 458 hours of unpaid work. 41 Since 2007, the grandchildren Jason Oates, Shane Oates and Richelle Mitchell have also undertaken significant unpaid work at the property. Jason Oates described that in the last 18 years he has been involved in many renovation projects on the Carrickalinga property under the supervision of the first respondent.21 Shane Oates was also involved in a number of small projects and maintenance tasks. These included replacement of roof sheeting and deteriorated structural components of the garage, construction of the bulkhead ceiling framework 14 In cross-examination it was suggested to the first respondent that the estimate of 2,000 hours was an exaggeration. The first respondent rejected that suggestion. No evidence was led to contradict the first respondent’s account on this topic. 15 Exhibit R19 at [37]. 16 In cross-examination the first respondent initially said that the hourly rate might have got up to $30 per hour (T107), however subsequently retracted that and confirmed that the maximum rate that he was paid was $25 per hour (T131). 17 Exhibit R19, Annexure A. 18 It was the first respondent’s evidence that he is dyslexic, so he is highly dependent on the assistance of his wife for any form of paperwork including finances (T133). 19 T135. 20 T141. 21 Exhibit R28 at [3]. -- 9 of 30 -- [2024] SASC 154 McDonald J 8 throughout the ground floor level kitchen, living, dining, bedrooms and a cantilever roof structure over the firewood containment area.22 Richelle Mitchell has spent many weekends at the Carrickalinga property helping her parents with maintenance around the property, including painting, maintaining the garden and cleaning the balustrade on the balcony.23 42 In about 2016/2017 major renovations were undertaken on the Carrickalinga property to update it such that it was suitable for the rental market in order to pay the testator’s nursing home fees. The first respondent was instrumental to those renovations. 43 The hours that the first respondent spent at the property over this period varied. The table produced by the first respondent24 includes the period during which the major renovations took place. The information in relation to the major 2016/2017 renovations came from a timebook kept by the first respondent. 44 The first respondent was cross-examined on some of the 2016/2017 entries in the table. It was put to him that he had exaggerated the number of hours that he had worked as recorded in the table for this period. No basis for that suggestion was established. It could not have been that the applicant had any first-hand knowledge of the hours that the first respondent had worked, as by this time she had no contact with the first respondent and was not attending at the Carrickalinga property, at least when the first respondent was there. The first respondent denied the suggestion that he had exaggerated the hours that he had worked. 45 I generally accept the first respondent’s evidence about the work and effort that he (and other family members) put into the Carrickalinga property over the years. He is clearly a man with a strong work ethic, who takes pride in what he does. His respect for his parents and what they had achieved together at the Carrickalinga property was evident throughout his evidence. I formed the impression that it would be anathema to him to sit by idle when there was work to be done. Whilst there were some general efforts to undermine the first respondent’s evidence on this topic, these appeared to be without foundation and did not impact on the overall cogency of his evidence. 46 The significance of this evidence is that the first respondent’s efforts and involvement in the Carrickalinga property no doubt informed the testator’s decision to recast her Will in 2015. For many years the first respondent had assisted in building, maintaining and renovating the property, drawing in other members of the family to assist. 47 This has to be contrasted to the much more limited involvement that the applicant had with the property. There was no evidence about the applicant having any involvement in the property prior to her father’s death. The only evidence of 22 Exhibit R32 at [1]. 23 Exhibit R31 at [13]. 24 Exhibit R19, Annexure A. -- 10 of 30 -- [2024] SASC 154 McDonald J 9 the applicant playing any role in the affairs of the Carrickalinga property was that, at the direction of the first respondent, she assisted the testator in going through her things in the upstairs area to work out what needed to be thrown away before the renovation. No doubt the applicant’s ability to assist to the same extent as other family members was limited as a single mother bringing up her two sons, however she did not have the same connection with, or involvement in the property that the first respondent, his wife and at least some of the grandchildren had. 2. The intention of the testator for the Carrickalinga property 48 It was the applicant’s evidence that her parents had never told her that it was their desire for the Carrickalinga property to not be sold and to remain in the family. When it was put to her in cross-examination that since about 2010 her parents had told her that they wanted to keep the property, and it should not be sold when they died, she responded “never”.25 49 The first respondent’s evidence on this topic was completely at odds with the applicant’s evidence. He said that his parents had always expressed a desire for the property to remain in the family,26 and for the first respondent to continue to look after it and ensure that it remained in the family due to his significant contribution to its maintenance.27 The first respondent said that in 2010 his parents had spoken to the applicant about their desire to keep the property in the family.28 50 Four of the testator’s grandchildren also described her as expressing a wish that the Carrickalinga property be kept in the family. 51 Ashleigh Mitchell said:29 The property my Grandma and Grandpa built together with the help of my dad meant the world to her. On one occasion I visited her at the Carrickalinga house and while we had coffee and biscuits around the dining table, she expressed that her dream was to have the house stay in the family for the grandchildren and family to enjoy for years after she was gone. 52 Ashleigh described an occasion on which she was present when the testator spoke about her concerns over what might happen to the property. She said:30 One evening in January 2016, Grandma became upset and expressed her fears of the house being sold out of the family and her anger towards my Auntie Debbie because of Debbie’s intentions to sell the property. In the months following, during my regular visits, Grandma brought this conversation up on more than one occasion, with the same upset and distressed attitude regarding the fate and potential sale of her home if Debbie got her way. These 25 T21. 26 Exhibit R19 at [31]; Exhibit R21 at [3.3]. 27 Exhibit R19 at [32]. 28 Exhibit R19 at [47.3]. 29 Exhibit R30 at [12]. 30 Exhibit R30 at [11]. -- 11 of 30 -- [2024] SASC 154 McDonald J 10 conversations continued throughout the remainder of 2016, before I departed for Canada in November 2016. 53 Ashleigh kept in contact with various members of her family, including the testator, whilst she travelled in Canada, during the time that the renovations were taking place. She said that when she spoke to the testator:31 … she was always happy with the progress and ongoing renovations and repeated her wish that the house isn’t sold but kept for all her grandchildren to share and enjoy as much as she and Grandpa did. 54 Kaitlyn Mitchell described similar conversations with the testator. She said:32 My earliest memories of the home are that of a very dated 70s style house with a bright green kitchen that would be considered very out of fashion nowadays. Grandma had made it very clear that she wanted the house to remain in the family after she could no longer stay there and well into the future after she passed. I can remember her saying to me on multiple occasions that she really wants the family to continue to enjoy this house for many years to come. 55 Although Kaitlyn provided no time frame for when those conversations occurred, given where this passage appears in her affidavit, I am prepared to draw the inference that these are conversations that occurred earlier in time, and well before the new Will was prepared. 56 Kaitlyn also described further conversations on this topic that occurred during the testator’s later years. She said:33 In Grandma’s later years I remember how passionate she was about ensuring the house wasn’t sold and that all the grandchildren would get to enjoy it for years to come. I remember her saying this to me personally at the time of the renovations in 2017. 57 Richelle Mitchell recounted a conversation that she had with the testator about the Carrickalinga property after her grandfather passed away. She described that it occurred on an occasion when she visited her Grandma and took her out for lunch or coffee:34 … I remember having conversations with grandma about the property and how her and grandpa wanted it to be left to their 2 children and their 5 grandchildren. She always said how special the property was to her and grandpa and how she wanted it to remain in the family as long as possible. We even spoke about one day when I have children that her great grandchildren would get to enjoy this special property too. 58 Shane Oates described having a long-held belief that the Carrickalinga property “served as a foundation for many treasured family memories and should be kept for future generations to enjoy. In my early years of adulthood, I was made 31 Exhibit R30 at [14]. 32 Exhibit R29 at [10]-[11]. 33 Exhibit R29 at [14]. 34 Exhibit R31 at [12]. -- 12 of 30 -- [2024] SASC 154 McDonald J 11 aware that other close family members shared this belief – specifically my grandparents”.35 59 Shane described a particular conversation that occurred in December 2016 when he stayed the night with the testator at the Carrickalinga property:36 … It was during this time that we had a discussion surrounding the recent amendments made to her will. She mentioned that it had been a difficult decision for her to make these changes, although felt strongly that it was necessary to protect the property from sale, and ensure it remained a family asset to the benefit of all. We went on to discuss some of the ideas that she and Lindsay had to ensure the property did not become a burden financially or otherwise. 60 Against the body of the evidence suggesting that the testator held a long-term wish that the property remain within the family, the applicant relied on the previous Wills prepared by the testator and her father. The effect of those Wills was that the estate would be gifted equally to the applicant and first respondent. It was submitted that this was consistent with the overall approach taken by the applicant’s parents in ensuring that both the applicant and first respondent benefitted equally throughout their lives. It was also contended that the approach taken in the previous Wills was a contraindicator of a wish that the Carrickalinga property remain in the family. 61 I do not accept that submission. Wills making provision for the equal distribution of the estate do not necessarily lead to a conclusion that there was no desire for the family to retain the property. To the contrary, it may well have been assumed by the testator and her husband, that their two children would do the right thing by them and honour their wishes by retaining the property for the use of the family. Such an assumption is no doubt made by many parents. 62 The situation however changed after the funeral when the applicant’s conduct was such that the testator appeared to have lost confidence in her daughter’s judgement. To borrow the first respondent’s words “it was the straw that broke the camel’s back”.37 63 It led first to the testator making the handwritten notes and then instructing a lawyer to draft a new Will. 64 A common theme in the notes was the testator’s perception of the applicant’s lack of respect which had manifested itself in the applicant’s conduct at her father’s funeral. In the notes, the testator also expressed the desire that the applicant have nothing to do with the disposal of her belongings as she did not believe that the applicant would treat them with respect. Further, she did not propose to leave the applicant her jewellery and rather wished for it to be left to her granddaughters as 35 Exhibit R32 at [2]. 36 Exhibit R32 at [3]. 37 T80. -- 13 of 30 -- [2024] SASC 154 McDonald J 12 she believed that the applicant would sell the jewellery rather than pass it through the family. 65 In the notes of her instructions for making the new Will, the solicitor recorded that the testator said that there had been an intent to keep the Carrickalinga property in the family and “Mrs M concerned/disturbed abt daughter. Her conduct + statements/discussion re Carrickalinga suggest she has some right/entitlement to the ppty”.38 66 The fact and contents of the previous Will do not detract from the evidence that establishes that it had been the longstanding intention of the testator and her husband that the property should remain in the family. 3. The intention of the applicant in relation to the Carrickalinga property 67 In her evidence the applicant was adamant that prior to the death of the testator, she had not expressed a desire for the Carrickalinga property to be sold. It was the applicant’s evidence that she never had a conversation with the testator to the effect that the Carrickalinga property ought to be sold or that she voiced an intent to sell the property. The applicant said that she had only ever expressed a view that her financial needs should be provided for, in line with the provisions made for the respondent.39 68 In cross-examination, it was put to the applicant that her relationship with the testator deteriorated because she would tell her mother and father that she wanted to sell the Carrickalinga property in order to fund her retirement. In response to this proposition, she said the following: “I never said that to anyone ever. It was never - I hadn’t thought that far ahead. I knew that I needed to be compensated for something, but as far as selling, it was never in my - it was not a plan of mine, no”.40 69 The applicant was asked what she meant by saying that she needed to be compensated. She explained:41 Well, I don’t know, that he wanted to buy me out or something maybe, but I didn’t like to plan what would happen once my - it felt very disrespectful, so I didn’t ever talk about what would happen following their death. I thought it was an inappropriate conversation to have while they were still alive. 70 The applicant said that she had never expressed any right or entitlement to the Carrickalinga property. When asked whether she now wanted the property sold, she gave a non-responsive answer and said “Well, there’s no family to keep 38 Exhibit R8. 39 Exhibit A7 at [10]. 40 T21. 41 T21. -- 14 of 30 -- [2024] SASC 154 McDonald J 13 it. I’ve been excluded so for me I have no family anymore”.42 The following exchange then occurred:43 HER HONOUR Q. Could you answer the question. A. Do I want it sold? XXN Q. Yes. A. Probably, yeah. Now that I - Q. Yes, you want half of the money from the sale. A. Now I do, after what I’ve been put through, yeah. Q. I suggest to you you’ve always wanted that, that’s what you told your mum and dad you wanted. A. I’ve never told my mum and dad that, they never asked me that. They never told me that’s what they wanted, it was never discussed, and it was never in their wills. 71 This evidence was however at odds with other witnesses. 72 It was the first respondent’s evidence that since 1990, when his parents had moved into the Carrickalinga property, the applicant continually expressed a wish to sell the Carrickalinga property44 and said that she was entitled to the property in order to fund her retirement.45 73 The first respondent was cross-examined on this topic. It was put to him:46 You say that the applicant regularly told you and your parents that she wished to sell the Carrickalinga property when they died in order to fund her retirement. I suggest that that’s not true. The respondent answered: It’s true, all right. I guarantee you that one. 74 There was also evidence from the applicant’s son, Shane Oates, on this topic. He said:47 As a child and throughout my adult life, I can recall numerous occasions in which the applicant voiced her intent to sell the Carrickalinga property the moment both her parents 42 T24. 43 T24. 44 Exhibit R19 at [43]; Exhibit R21 at [3.4]. 45 Exhibit R21 at [3.4]. 46 T143. 47 Exhibit R32 at [2]. -- 15 of 30 -- [2024] SASC 154 McDonald J 14 passed away. This upset me greatly as I believed the property served as a foundation for many treasured family memories and should be kept for future generations to enjoy. … I believe the earliest I can recall discussions around the applicant’s intent to sell the property date back to 1997 and continued intermittently thereafter. In some instances, I had suggested alternatives to the sale of the property and offered to assist with these alternative options to generate an acceptable level of revenue for the applicant. These options were dismissed without consideration, leaving me convinced she has always been determined to achieve a sale of the property. 75 The applicant denies that she ever said anything to the first respondent and her son about wishing to sell the Carrickalinga property. 76 It is evident from the notes made the day after the funeral, and the solicitor’s notes, that the testator had the belief that the applicant intended to sell the property. 77 In her notes the testator wrote “To my daughter (Debra) who thought my home would be sold, and she would have mega bucks to spend on holidays”. Then later, “No doubt waiting for the big cash bonanza she thinks will come”.48 78 In her notes, the solicitor recorded:49 - Mrs M concerned/disturbed abt daughter. Her conduct + statements/discussion re Carrickalinga suggest she has some right/entitlement to the ppty. - She is concerned that daughter will want to sell @ all costs, with her husband’s, her’s and Lindsay’s “hard work” lost in a heartbeat. 79 I accept the evidence of the first respondent as supported by Shane Oates (5th respondent), that the applicant had been expressing an intention to sell the Carrickalinga property for many years leading up to the death of her parents. I reject the applicant’s evidence to the contrary. 4. The nature of the relationship between the applicant and the testator 80 It is the applicant’s case that her relationship with both parents was a normal loving relationship that soured for a few months following the funeral of her father. Overall, however, the totality of the relationship was a normal mother and daughter relationship. In support of this, the applicant gave evidence that the testator had lived with her for five weeks when her father was in the intensive care unit. 81 The applicant conceded that after the period of no contact with the testator immediately following the funeral, the relationship had changed. She described it as moving from cordial to being impacted by the testator’s anger and aggression towards her. The applicant expressed the view that this hostility was generated by the respondent but provided no basis for making this assertion. Despite the difficulties, the applicant said she maintained telephone contact with the testator at least twice a week. 48 Exhibit R21, Exhibit B. 49 Exhibit R8. -- 16 of 30 -- [2024] SASC 154 McDonald J 15 82 In support of the strength of her relationship with the testator, the applicant gave evidence that she had organised ‘Meals on Wheels’ for her, before the testator moved into the aged care facility. 83 The first respondent described the relationship very differently. It was his evidence that between 1990 and 2015 his parents’ relationship with the applicant deteriorated due to the applicant’s sense of entitlement to have the Carrickalinga property sold against their wishes.50 In cross-examination it was suggested to the first respondent that the applicant had a good relationship with both of her parents. He replied that it was “a relationship of tolerance”.51 84 It was the first respondent’s evidence that whilst the testator was angry about what had occurred at the funeral, the relationship had started to deteriorate long before that and this was “the straw that broke the camel’s back”,52 and was the catalyst for the testator to change her Will. 85 Given the disparity in the position of the parties, it is necessary to consider any independent, objective or undisputed evidence that supports the applicant or the first respondent’s evidence. 86 The applicant tendered a number of documents to support her account of her relationship with her mother. The first was a letter that the applicant said that she had written to give to the testator when delivering her a Mother’s Day present in 2016. She said that the testator had read the letter and said, “let bygones be bygones”.53 A photocopy of that letter was tendered.54 The letter is relatively brief, so I set it out in full: 7th May 2016 Dear Mum Just want you to know that whatever your feelings about me are now, that I am sad that there is this distance between us that has never existed before. I am at a loss to understand it but I hope that it can be rectified. In the meantime, please just know that I am here for you. We have had a good mother/daughter relationship for the past 57/58 years & I would like that to continue. I may be “different” but not “bad” & I value my family relationships. I feel that I am in a “no win” situation. If I leave you alone it looks like I don’t care – if I persevere & try to fix things may seem as having “ulterior motives” given what has happened or distress you further. It is a very difficult position to be in. 50 Exhibit R21 at [3.5]. 51 T152. 52 T80. 53 T60. 54 Exhibit A16. -- 17 of 30 -- [2024] SASC 154 McDonald J 16 Mum, please keep this note to remind you that I love & care for you. It has not been my choice to be estranged from you and I do hope we can reconnect again. Wishing you a lovely Mother’s Day, I hope my present will keep you warm this winter Love always Debbie xxx (Emphasis in original) 87 The wording of the letter is somewhat unusual, in particular, the reference being in a “no win situation” on the basis that if she perseveres in attempting to improve the situation “it may seem as having ulterior motives”. Even more unusual however, was the applicant’s decision to photocopy the letter before giving it to the testator. When asked why she did this, the applicant said “Cos I took a photocopy of this to prove to my brother later on that I had actually been in touch with my mum and also that I was [sic] cared about her.55 88 This would tend to suggest that, at the very least, the letter had a dual purpose, to mend bridges with the testator but also to point score against the first respondent, at a time when the applicant was aware that the Will had been changed. 89 The first respondent also relied on an email chain with an employee at the aged care facility where the testator resided. That exchange took place between 12 and 13 May 2020 and related to efforts made by the applicant to arrange for the testator to be seen by a hairdresser.56 90 The first respondent relied upon the handwritten notes prepared by the testator the day after the funeral and the notes of the solicitor in taking instructions for the new Will as indicative of the testator’s state of mind about her relationship with the applicant at that point in time. 91 Both sets of notes, but particularly those prepared by the testator after the funeral, suggest that the issues between the testator and the applicant had been building for a period of time, well before recent events. The strength of the feelings conveyed in those notes would indicate that whilst the funeral was the catalyst, the issues were far more longstanding, consistent with the first respondent’s description of the relationship. 92 In terms of the relationship between the applicant and the testator subsequent to this, the first respondent relied upon all of the efforts and arrangements made by him and his wife to transition the testator into the aged care facility, none of which involved the applicant. 55 T61. 56 Exhibit A14. -- 18 of 30 -- [2024] SASC 154 McDonald J 17 93 The first respondent also pointed to the assessment of the testator undertaken by the aged care facility (ACH Assessment) on 26 April 2022.57 In response to the question “Is there anyone in particular that you expect to see regularly? Would they be someone that could be able to assist you remain connected to your community?”, the testator responded, “I hope to see my family and friends regularly. Lindsay and Dianne live in Adelaide but will assist with appointments as able. They generally visit on weekends”.58 94 Nowhere in that assessment is there any mention of the applicant, other than a passing reference to the testator having two children who do not get along. 95 The first respondent also gave evidence that the applicant would only visit the testator at the nursing home, when her son was available to go with her.59 96 Overall, the evidence suggests that the relationship between the applicant and the testator had deteriorated well before the funeral. For reasons that I have provided, I have found that the testator held a longstanding desire that was shared by her husband when he was still alive, that the Carrickalinga property not be sold and remain in the family. The applicant’s desire for the property to be sold in order to provide her with a percentage of the sale price was clearly a source of tension between she and the testator, tension that came to a head as a consequence of the applicant’s conduct at the funeral. 97 Whilst the relationship had, to some extent, improved with the passage of time, it remained strained, with the applicant having limited involvement in the testator’s life. 98 I should emphasise, however, that despite this finding, I have no doubt that the testator and the applicant loved each other very deeply, despite the tensions that had arisen in the relationship. Summary of findings 99 I find that the Carrickalinga property is of a high sentimental value to most of the applicant’s and the first respondent’s family, but particularly to the testator and her husband. It had been the longstanding intention of the testator that the property be kept in the family for as long as possible after she and her husband passed away. 100 As early as 1990, when the testator and her husband moved into the Carrickalinga property, the applicant began to express views that indicated a sense of entitlement to the property and an intention to sell the property to fund her retirement. That had a damaging impact on the relationship between the applicant and her parents. 57 Exhibit R21, Exhibit F. 58 Exhibit R21, Exhibit F. 59 T154. -- 19 of 30 -- [2024] SASC 154 McDonald J 18 101 The relationship between the applicant and testator further deteriorated as a result of the incident at the applicant’s father’s funeral. That incident was the catalyst for the testator to amend her Will to ensure that her wishes regarding the Carrickalinga property were properly fulfilled. 102 The decision by the testator to appoint the first respondent as the executor and trustee of the Will had been influenced by the efforts that the first respondent had invested in the building, maintenance, and the renovations to the property. Put simply, at the time of making the Will, the testator trusted the first respondent to carry out her wishes however, she did not have the same trust in the applicant. 103 There is no suggestion that at the time the testator made the new Will, she did not have testamentary capacity. Relevant legal principles 104 This application is to be determined under s 7 of the Act which provides: 7— Spouse and persons entitled may obtain order for maintenance etc out of estate of deceased person (1) Where— (a) a person has died domiciled in the State or owning real or personal property in the State; and (b) by reason of his testamentary dispositions or the operation of the laws of intestacy or both, a person entitled to claim the benefit of this Act is left without adequate provision for his proper maintenance, education or advancement in life, the Court may in its discretion, upon application by or on behalf of a person so entitled, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled. … (3) The Court may refuse to make an order in favour of any person on the ground that his character or conduct is such as, in the opinion of the Court, to disentitle him to the benefit of this Act, or for any other reason that the Court thinks sufficient. (4) The Court may, in making any order under this Act, impose such conditions, restrictions and limitations as it thinks fit. … (6) In making the order the Court may, if it thinks fit, order that the provision shall consist of a lump sum or periodic or other payments or a lump sum and periodic or other payments. -- 20 of 30 -- [2024] SASC 154 McDonald J 19 105 As was described by Lovell J in Parker v Australian Executor Trustees Ltd:60 The purpose of the Act is to permit a court in certain circumstances to displace a testator’s dispositions. It does not impose any limitation on a testator’s power of disposition but if the statutory conditions are satisfied a court is empowered to alter a testator’s disposition to produce a result that is consistent with the purpose of the Act. The legislation is remedial in character and has been construed to give the most complete remedy which the phraseology will permit. (Footnote omitted) 106 The relevant enquiry involves a two stage process. The first stage calls for a determination of whether an applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination is made in favour of the applicant, requires the Court to decide what provision ought to be made from the testator’s estate for the applicant. 107 The first stage of the enquiry has been described as the ‘jurisdictional question’. When considering the question of whether there has been a failure to make adequate provision out of an estate for a plaintiff, it is necessary to consider what is meant by the words ‘adequate’ and ‘proper’. The words are always relative.61 108 The word ‘proper’ connotes a meaning distinct from the word ‘adequate’. 109 The Privy Council commented on the distinction between the words ‘proper’ and ‘adequate’ in Bosch v Perpetual Trustee Co (Ltd):62 The use of the word “proper” in this connection is of considerable importance. It connotes something different from the word “adequate.” A small sum may be sufficient for the “adequate” maintenance of a child, for instance, but, having regard to the child’s station in life and the fortune of his father, it may be wholly insufficient for his “proper” maintenance. So, too, a sum may be quite insufficient for the “adequate” maintenance of a child and yet may be sufficient for his maintenance on a scale that is “proper” in all the circumstances. A father with a large family and a small fortune can often only afford to leave each of his children a sum insufficient for his “adequate” maintenance. Nevertheless, such sum cannot be described as not providing for his “proper” maintenance, taking into consideration “all the circumstances of the case” as the sub-section requires shall be done. 110 In Singer v Berghouse,63 Mason CJ, Deane and McHugh JJ reiterated and further explained these principles: 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. 60 [2016] SASC 64 at [17]. 61 Pontifical Society for Propagation of Faith v Scales (1962) 107 CLR 9 at 19. 62 [1938] AC 463 at 476. 63 (1994) 181 CLR 201 at 209-210. -- 21 of 30 -- [2024] SASC 154 McDonald J 20 Ltd. 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. 111 The needs of an applicant are not to be considered in a vacuum or by simply looking at the question of whether an applicant has enough upon which to live. It will depend upon all of the relevant circumstances of the case, including age, means and competing claims of other beneficiaries. 112 In considering the jurisdictional question, the Court can have regard to considerations of a moral claim and moral duty.64 They are considerations which connect the general but value-laden language of the statute to the community standards and give it practical meaning. A moral claim or duty may, in some circumstances, be relevant and within the contemplation of the Act, however it cannot be substituted for the text of the Act.65 A court should not rewrite the will simply by reference to notions of fairness.66 Additionally an applicant is required to demonstrate real and actual need in order to be successful in his or her claim; mere proof of a moral claim is not of itself adequate.67 113 In Bramwell v Bramwell,68 the Court of Appeal conveniently summarised the approach to be taken to the jurisdictional tests in the following terms: An applicant is required to demonstrate need in order to be successful in his or her claim; mere proof of a moral claim is not in itself adequate. However, an applicant is not required to show that his or her circumstances are destitute and, as such, the need is “not restricted to the requirements of basic necessity or sustenance.” The nature and content of what is adequate provision is a flexible concept, adapted to conform to acceptable community standards, and involves a broad evaluative judgment not constrained by preconceptions and predispositions. The court must not order an amount that is greater than is necessary for an applicant’s proper maintenance and support. Other relevant constraints or limiting factors include that further provision should be made only if, and to the extent that, it is necessary to alter the will to make adequate provision for an applicant’s proper maintenance and support, and that any further provision must be limited by balancing the needs of an applicant against the proper claims to be satisfied from a testator’s bounty. Whether a testator has failed to make adequate provision for an applicant’s proper maintenance and support is to be considered by reference to matters that were known, ought to have been known, or were reasonably foreseeable to the deceased at the time of his or her death. The applicant bears the onus of proving the extent of any provision that should be granted. 64 Vigolo v Bostin (2005) 221 CLR 191. 65 Bowyer v Wood (2007) 99 SASR 190 at [44]. 66 Parker v Australian Executor Trustees Ltd [2016] SASC 64 at [29] per Lovell J. 67 MacEwan Shaw v Shaw (2003) 11 VR 95 at [50]. 68 [2023] SASCA 94 at [87]-[88]. -- 22 of 30 -- [2024] SASC 154 McDonald J 21 (Footnotes omitted) 114 In Parker v Australian Executor Trustees Ltd,69 Lovell J was required to consider the impact of estrangement in determining the jurisdiction. His Honour observed:70 Estrangement of a child and parent should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement. However it is a factor that can be taken into account. The Court should take into account the whole of the circumstances regarding the relationship. It is for the Court to evaluate all the relevant circumstances, including a period of estrangement and the circumstances of that estrangement, when considering the jurisdictional question. (Footnote omitted) 115 Determination of the second stage of the enquiry, should it arise, involves similar considerations to that under the first. As the Court needs to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, this assessment will largely influence the order that is made.71 116 The second stage involves the exercise of judicial discretion in determining what provision ought to have been made having regard to the factors identified by the legislation. 117 The basic principle the Court should consider is that described by Salmond J in In re Allen (deceased); Allen v Manchester:72 The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances. 118 This test has been followed and applied many times by the High Court. 119 When considering the provision to be made for the applicant, it must also be borne in mind that “intervention should only be to the minimum extent necessary to make adequate provision for the proper maintenance, education and advancement in life of the applicant”.73 There should be minimal interference with the freedom of testation.74 As was explained by Dixon CJ in The Pontifical Society for the Propagation of Faith v Scales:75 All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so 69 [2016] SASC 64. 70 Parker v Australian Executor Trustees Ltd [2016] SASC 64 at [30]. 71 Singer v Berghouse (1994) 181 CLR 201 at 215. 72 [1922] NZLR 218 at 220-221. 73 Frizelle v Old [2009] NSWSC 1259 at [101]. 74 Ibid at [103]. 75 (1962) 107 CLR 9 at 19. -- 23 of 30 -- [2024] SASC 154 McDonald J 22 encroached upon that a testator’s decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court. The Estate 120 The table below sets out the assets and liabilities of the testator’s estate as of February 2024: Description Value ($) […] Gold Coast Drive, Carrickalinga 2,4000,000.00 – 3,000,000.00 Estate Trust Account with Tanya Ryan 10,593.32 Estate Trust Account with ANZ 9,384.05 Testator’s Jewellery 20,000.00 Tanya Ryan Legal Fees (2,000.00) Net Total 2,437,977.37 – 3,037,9977.37 121 In her Will the testator left her jewellery to her three granddaughters and made a specific bequest of $10,000 to a friend, Sue Ruf . The balance of the estate is to be divided between the applicant and first respondent on an equal basis. The practicality of the situation is that there will be no residual estate. There will, in fact, be insufficient funds to pay Mrs Ruf the $10,000 bequest. The applicant’s financial circumstances 122 As at the date of making her first affidavit (10 March 2023), the applicant was employed and worked three days a week, with a weekly income of $852.50.76 She was also receiving $450 a fortnight from a border who was renting a room at her house.77 The applicant failed to disclose this income in her affidavits. It was only when cross-examined on her bank statements that the applicant admitted to this additional income stream. This adversely impacts on the applicant’s credibility and is a matter that I have taken into account in arriving at the findings of fact that I have made. 123 As at the date of making her second affidavit (14 August 2023), the applicant’s financial circumstances had changed, she had ceased working and was no longer receiving an income.78 As at the date of making her fourth affidavit (19 76 Exhibit A4 at [20]. For current purposes, I make the assumption that the applicant’s income was status quo at the date of the testator’s death. 77 T36-37. 78 Exhibit A5 at [5]. -- 24 of 30 -- [2024] SASC 154 McDonald J 23 February 2024), the applicant was in receipt of jobseeker benefits in the sum of $750 each fortnight.79 124 I set out the details provided by the applicant of her financial status in the following table:80 10 March 202381 14 August 202382 19 February 202483 Assets Real Estate $600,000.00 $600,000.00 Mazda 3 $10,000.00 $10,000.00 Superannuation $105,000.00 $51,575.54 Liabilities Mortgage $175,000.00 $163,000.00 Fortnightly Expenses Mortgage $580.00 $1153.00 per month $595.00 Food $130.00 $200.00 per week $400.00 Petrol $60.00 per week $120.00 Living Expenses $300.00 $450.00 Monthly Expenses Car Insurance $56.55 $85.00 Netflix $17.00 House Insurance $91.76 $110.00 Optus $60.00 $85.00 Telstra $90.00 $100.00 Health Insurance $42.00 $42.00 Hearing Aids $50.00 79 Exhibit A7 at [3]. 80 This table reflects the applicant’s financial position between 10 March 2023 and 19 February 2024 as stated in her affidavits. The applicant also provided a table of the applicant’s financial position, which differs again (FDN 40, Attachment D). Those details have not been included. 81 Exhibit A4. 82 Exhibit A5. 83 Exhibit A7. -- 25 of 30 -- [2024] SASC 154 McDonald J 24 Lawn Mowing $35.00 Quarterly Expenses Council Rates $338.00 $358.00 Car Registration $180.00 $180.00 Water $190.00 $230.00 Gas $180.00 $225.00 per month $200.00 Electricity $180 per month $300.00 Yearly Expenses RAA $112.00 $112.00 Revenue SA $200.00 $250.00 125 By early 2024 the applicant’s superannuation entitlements had reduced to $51,575.54, her mortgage had reduced to $163,000 and her quarterly expenses for utilities had increased to $730.84 126 Other than these differences the applicant’s assets and liabilities generally remained the same. 127 In addition to this, the applicant has enjoyed a lifestyle that has involved extensive overseas travel. In preparation for the trial, the applicant provided a list of overseas trips she had taken between 2015 and 2023. These were:85 May 2015 Canada 3 weeks June 2015 Bali 10 nights October 2015 Rock the Boat Cruise 7 nights August 2016 Vietnam 16 nights October 2016 RTB cruise 7 nights January 2017 Bali 10 nights September/October 2017 India 3 weeks October 2017 RTB cruise 7 nights October 2018 RTB cruise 7 nights July 2019 Khao Lak 10 nights September 2019 Bali 12 nights October 2019 RTB cruise 7 nights July 2022 Bali 11 nights November 2022 RTB cruise 7 nights January 2023 Bali 14 days May/June 2023 7 weeks volunteer Thailand 84 Exhibit A7. That increase may be due to the fact that it would appear that the applicant omitted to include electricity in her first affidavit. 85 Exhibit R23. -- 26 of 30 -- [2024] SASC 154 McDonald J 25 128 It should be noted that this covered the period when Australia was impacted by the COVID pandemic and overseas travel was prohibited. 129 During cross-examination it became apparent that this list omitted a further trip that the applicant had taken to Bali in 2023,86 and a two week cruise in November 2023. The respondents’ financial circumstances 130 Each of the respondents who filed an affidavit, provided details of their financial circumstances. There is no doubt that the first respondent is in a significantly more favourable financial position than the applicant. Both he and his wife have been employed all of their adult lives up until their retirement, and appear to have been relatively conservative with their finances. Their combined assets are approximately $1,800,000 with an outstanding loan in the value of about $29,000. 131 The focus of the first limb of the test is, however, on whether the applicant has established that she has been left without adequate provision for her proper maintenance, education, and advancement in life. 132 The respondents have not made any competing claim under the Act. It follows that their financial position is not relevant to this stage of the enquiry. The onus is on the applicant to establish her claim for provision. 133 In Re Adamow87 it was observed by Miles CJ that:88 …there is no requirement in law that a person to whom a testator has left all or part of a testator’s estate should have to justify the testator’s decision at all, let alone on the basis that what the testator did was compelled by moral duty… 134 Kelly J in Edgar v Public Trustee for the Northern Territory89 made a similar observation and said:90 There is no onus on the widow as residuary beneficiary under the will to show that she is entitled to be treated as such - or to prove what may be necessary for her proper maintenance and support. Rather the onus is on the plaintiff to show that proper provision is not available for him under the terms of the will. … Was adequate provision made for the applicant’s proper maintenance, education and advancement in life? 135 The question of whether, by reason of the testator’s testamentary disposition, the applicant has been left without adequate provision for her proper maintenance, 86 It was the applicant’s evidence that the reason that she had failed to include this trip was because someone else had paid for her to go on this trip (T40). 87 (1989) 97 FLR 410. 88 Ibid at 415. 89 [2011] NTSC 5. 90 Ibid at [46]. -- 27 of 30 -- [2024] SASC 154 McDonald J 26 education or advancement in life is a question of fact involving value judgements. The question is to be determined objectively by the Court and not by reference to the subjective knowledge, beliefs, or intentions of the testator.91 136 In Carter v Brine,92 Blue J explained the approach to be taken in applying this objective test:93 The question is to be determined as at the date of death by reference to the objective facts then existing including prospective future expectations and contingencies foreseeable as at the date of death: it is not appropriate to determine this question retrospectively with the wisdom of hindsight or by reference to the objective facts existing at the date of trial. The Court assesses the position by placing herself in the testator’s position and making its own objective assessment by reference to objectively proved facts and circumstances in existence as explained above as at the date of death. (Footnotes omitted) 137 Blue J observed that this will necessarily require an examination of all relevant circumstances. His honour continued:94 … Factors to be assessed and weighed relative to other factors include but are not limited to: • the age, condition, general situation and other factors relating to the claimant; • the needs of the claimant and the lifestyle and standard of living to which the claimant has become accustomed; • the claimant’s capacity and resources to meet those needs, lifestyle and standard of living; • the relationship between the testator and the claimant; • the nature, extent and character of the estate; • the relationship between the testator and other persons for whom the testator provided or having claims against the estate; • other claims against the estate. (Footnotes omitted) 138 When considering the applicant’s “needs” and the lifestyle and standard of living to which she has become accustomed, the Court does not make an assessment in absolute terms of what a person needs to survive, or even to live 91 Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 507-509 per Dixon CJ, 516 per Webb J and 526 per Kitto J. 92 [2015] SASC 204. 93 Ibid at [592]. 94 Ibid at [593]. -- 28 of 30 -- [2024] SASC 154 McDonald J 27 comfortably, but rather a relative assessment by reference to the claimant’s history and circumstances and all other relevant factors. 139 I have arrived at the view that the testator did not make adequate provision for the proper maintenance and advancement of life in respect of the applicant. Whilst at the time of the testator’s death the applicant was still working part-time, given her age, in all likelihood that was not a long-term prospect. The applicant was left with a relatively small income and a mortgage that, as at February 2024, was approximately $163,000. It follows that the applicant has no real prospects of paying off the mortgage in her lifetime. What amounts to adequate provision? 140 Whilst the jurisdictional question is to be determined as at the date of the death of the testator, the second limb of the test involves a determination as at the date that any order is made. There has been a deterioration in the financial circumstances of the applicant since the testator’s death. The applicant has ceased employment, she has drawn down on some of her superannuation, although her mortgage has slightly reduced. 141 The applicant seeks an order for 50 per cent of the estate, which is effectively returning to the status quo created by the previous Wills. No proper basis has been put forward in support for the applicant’s contention that this amount of money is necessary for her adequate provision. Rather, it would seem that this figure has been arrived at on the basis of what the applicant believes she is entitled to. To make such an order would be effectively redrafting the Will in a manner completely at odds with the testator’s wishes. 142 It is not appropriate to endeavour to achieve a “overall fair” disposition of the testator’s estate.95 As was succinctly summarised by Hallen J in Meres v Meres:96 It is not part of the Court’s function to achieve some kind of equity between the various claimants. The Court’s role is not to reward an applicant for meritorious conduct, or to distribute the deceased’s estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act to correct the hurt feelings, or sense of wrong, felt by an applicant. Rather, the Court’s role is of a specific type and goes no further than the making of “adequate” provision in all the circumstances for the “proper” maintenance, education and advancement in life of an applicant. 143 The Court’s discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the testator’s freedom of testation.97 144 In assessing the amount of provision, I consider that the testator, acting wisely and justly, would have reasoned that it was necessary to provide the 95 Gorton v Parks (1989) 17 NSWLR 1 at 6. 96 [2017] NSWSC 285 at [114]. 97 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19 per Dixon CJ. -- 29 of 30 -- [2024] SASC 154 McDonald J 28 applicant with sufficient means to pay off her mortgage such that she is not at risk of losing her home. In adopting that approach, the wishes of the testator are likely to be met in that the Carrickalinga property can, in all likelihood, be retained for the family’s use in the future. 145 It is an important consideration that, prior to her death, the testator and her husband had already generously provided for the applicant with significant financial support, not the least of which was half of the family home. This is a matter that must be factored in when determining what now amounts to proper provision. Consideration 146 For the reasons given above, I consider that the applicant has been left without adequate provision for her maintenance, education and advancement in life. I consider that provision should be made for the applicant to be paid the sum of her current outstanding mortgage as at the date of this order. That is likely to be in the amount of approximately $160,000. -- 30 of 30 --