Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Keep v Bourke [2012] NSWCA 64
• Hearing dates: 9 March 2012
• Decision date: 05 April 2012
• Before: Macfarlan JA (at [1]); Barrett JA (at [6]); Tobias AJA (at [56])

Decision

1. Appeal allowed.

2. Vary order 1 made by the court below by substituting "$175,000" for $200,000".

3. Vary order 3 made by the court below by omitting all words after "after" and substituting "5 April 2012".

4. That the respondent pay the appellants' costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: SUCCESSION - application for provision under Part 3 Succession Act 2006 - testatrix with three adult children leaves whole estate to two of them equally - long estrangement between third child and testatrix - third child obtains at first instance an order giving her a legacy of roughly one-third of estate - whether primary judge correctly applied jurisdictional or "first stage" test - whether discretion miscarried at "second stage"
• Legislation Cited: Succession Act 2006, ss 59, 60(2)
• Cases Cited: Durham v Durham [2011] NSWCA 62; Foley v Ellis [2008] NSWCA 288; Ford v Simes [2009] NSWCA 351; Hampson v Hampson [2010] NSWCA 359; House v The King [1936] HCA 40; (1936) 55 CLR 499; Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; 107 CLR 9; Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-209; Vigolo v Bostin [2005] HCA 11; 221 CLR 191
• Category: Principal judgment
• Parties: Gwendolene Anne Keep and Graham Christopher Keep - First and Second Appellants; Marion Gay Bourke - Respondent
• Representation: R D Wilson - Appellants; J A D Needham SC/ R E Quickenden - Respondent; Hancock Alldis & Roskov - Appellants; Nash Allen Williams & Wotton - Respondent
• File Number(s): 2011/00090701

Decision under appeal

• Citation: Bourke v Keep [2011] NSWSC 88
• Date of Decision: 2011-03-01 00:00:00
• Before: Macready AsJ
• File Number(s): 2011/00090701

Judgment

1 MACFARLAN JA:I agree with the judgment of Barrett JA and with the orders that he proposes, save that I disagree with his Honour's view that the legacy in favour of the respondent for which the primary judge provided should be reduced by only $25,000, that is from $200,000 to $175,000.

2 I fully concur with his Honour's observations concerning the manner in which the estrangement between the respondent and her parents came about. The parents' return to the respondent of her wedding invitation with a note saying "we do not want anything to do with you" clearly justified for many years after 1971 the respondent's failure to attempt reconciliation with her parents. However I do not consider that the parents bore sole responsibility for the 38 year estrangement that followed the incident. The passage of decades, the birth of grandchildren and the ageing of the parents could reasonably have been expected to elicit some attempt at reconciliation from the respondent, but they did not.

3 Even if the respondent bore no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the Court's discretion under s 59(2) of the Succession Act 2006 to make a family provision order where the jurisdictional requirements of s 59(1) are met. The facts remain that the respondent had no relationship at all with her parents from 1971 to her father's death in 1986 and her mother's death in 2009, and there did not therefore exist between them the love, companionship and support present in normal parent/child relationships.

4 Much has been said judicially since Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; 107 CLR 9 was decided, and there have been changes in the relevant legislation, but the following observations made by Dixon CJ concerning the facts of that case still have force, and have some relevance to the present case:

"If one really considers the situation of this old man in the closing stages of a long life in which his son has played no part at all, a son to whom his father has meant nothing and who did not even know him, it is hard to see why the testator, in the interest of his son, should be deprived of his complete freedom of testamentary disposition" (at p 20).

5 The re-exercise of the Court's discretion proposed by Barrett JA would leave the respondent with not much less than one-third of her mother's estate, close to an equal share with her two siblings who maintained a close relationship with their parents throughout their lives. Although I consider that provision should be made for the respondent, my view is that, by reason of the very lengthy estrangement and the respondent's partial responsibility for it, the approximate equivalence of the needs of the three siblings and the desire to exclude the respondent expressed by the deceased in her will, the respondent's entitlement should be substantially less than this. In my view the respondent's legacy of $200,000 should be reduced to $100,000, representing about one-sixth of the estate.

6 BARRETT JA: The appellants are two of the children of Joyce Winifred Keep who died on 29 August 2009 aged 82 years. They are also the executors of her will. The deceased had three children. The respondent is her other child.

7 The appellants appeal from an order made in the Equity Division by Macready AsJ under s 59 of the Succession Act 2006 giving the respondent a legacy out of the deceased's estate.

8 In the discussion that follows, I shall, without intending disrespect, refer to the first appellant as "Gwendolene", the second appellant as "Graham" and the respondent as "Marion". The deceased will be referred to as "Mrs Keep" and her husband (the father of Gwendolene, Marion and Graham) as "Mr Keep". Mr Keep died in 1986.

9 Mrs Keep's last will was made on 7 July 1992. She appointed Gwendolene and Graham as executors and gave the whole estate to them in equal shares. She said in the will:

"I HAVE made no provision in this my Will for my daughter MARION GAY BOURKES [sic] because of her complete lack of concern or contact with me and other members of my family over a long period of time".

10 A state of estrangement, to be looked at presently, existed between Mrs Keep and Marion for some 38 years and continued at Mrs Keep's death.

11 Mrs Keep's estate consisted of a house at Hurstville (the agreed value of which, for the purposes of the proceedings, was $600,000) and cash of $86,105. After allowing for estimated costs of the proceedings and assuming that all costs would be payable out of the estate, the primary judge worked on the footing that $20,826 cash would remain so that the total value of the estate was $620,826. It appears that there may have been a minor arithmetical error here and that the net estate was $623,825.15 but nothing turns on the difference.

12 The legacy given to Marion by the primary judge's order was $200,000, that is, a little less than one-third of the net estate.

13 There is no question about Marion's status as an "eligible person" for the purpose of s 59 of the Succession Act. Gwendolene and Graham appeal on the grounds that the primary judge erred:

(1)in failing to find, as a matter of jurisdiction, that Marion was not entitled to provision under s 59, having regard to:

(a)the estrangement;

(b)the statement in the will set out above; and

(c)the overriding competing claims of Gwendolene and Graham on Mrs Keep's testamentary bounty;

(2)in holding, notwithstanding the estrangement, that Marion was not barred from making a claim because Mrs Keep had "stridently refused to make any attempt at reconciliation on at least two opportunities when this could have occurred";

(3)in failing to reduce the provision in favour of Marion by reference to a finding that there was "a sense of a child treating her parent callously by not taking any steps to end their estrangement"; and

(4) in the context of the value of the estate, in fixing the quantum of Marion's entitlement at $200,000 when

(i)there is no principle that the community expects a parent to leave her child in a position to own a home;

(ii)the claims of Gwendolene and Graham to remain in the deceased's house should have been taken into account; and

(iii)regard was not had to the absence of evidence that Gwendolene and Graham would be able to acquire alternative accommodation with the balance of the estate remaining to them.

14 The words quoted in (2) above are as they appear in the notice of appeal. What the primary judge actually said (at paragraph [81] of the judgment) was:

"Although there was no state of hostility between Marion and the deceased there is a sense of a child treating her parent callously by not taking any steps to end their estrangement. The same can be said of her mother's stringent refusal to make any attempt at reconciliation. At least two opportunities occurred when this could have happened. Because of the later aspect I do not think that the plaintiff should be barred from making a claim. But the plaintiff's conduct means that her moral claim on the testator's bounty is reduced."

15 The finding was thus that Mrs Keep's refusal to attempt reconciliation was "stringent", not "strident" - in other words, it was found that she had kept strictly and determinedly to her course, not that she was shrill in her refusal to attempt reconciliation.

16 The words "a sense of a child treating her parent callously by not taking any steps to end their estrangement" quoted in the grounds of appeal (see (3) above) are also taken from [81] of the judgment

17 The following brief chronology of relevant events appears in the judgment below and is not controversial:

1.Mrs Keep was born in January 1927. After their marriage, she and Mr Keep had three children: Gwendolene was born in November 1948, Marion in March 1951 and Graham in July 1955.

2.Marion left school in February 1966 aged 14 years and commenced work. All the children left school at about the same age.

3.Marion met her future husband, Robert Bourke, in 1968. They became engaged in late 1970 and married in November 1971 when Marion was 20. She left the family home shortly before the marriage and went to live with Robert's parents.

4.Marion has four children, born in 1973, 1976, 1978 and 1989.

5.In 2002 or 2003, Marion and her husband Robert separated. They were later divorced.

6.As part of the property arrangements associated with the divorce, Marion received $120,000 from Robert for her share of the matrimonial home at Charmhaven.

7.Mrs Keep was admitted to St George Hospital in July 2009 and was later moved to Calvary Hospital at Kogarah where she died on 29 August 2009.

8.Probate of Mrs Keep's will was granted to Gwendolene and Graham in November 2009.

18 Neither Gwendolene nor Graham married. Neither has children or dependants. They have lived in the Hurstville house for the whole of their lives. It was an additional agreed fact, for the purposes of the appeal, that they continued living there when the appeal was heard. Neither Gwendolene nor Graham is in employment and there is no realistic prospect that either will gain employment. Evidence received without objection on the appeal shows that, whereas Marion had been in part-time employment at the time of the trial, a subsequent injury to her foot has caused her to be unemployed. At the time of the trial, all three parties had significant health problems and there is no suggestion that the various conditions were other than ongoing. All three children are of very modest means.

19 The estrangement between Marion and Mrs Keep - indeed, between Marion on the one hand and her parents and siblings on the other - began at the time of Marion's marriage in November 1971 at the age of 20. Marion wished to marry but her parents thought she should not do so. The parents' reasons, such as they were, can be gathered to some extent from aspects of the evidence to which the primary judge had regard. Robert, Marion's prospective husband, had been conscripted into the army during the Vietnam war and the parents said they were opposed to her marrying someone who ran the risk of injury or premature death. The parents were also worried about the cost of a wedding. They also expressed an opinion that Marion, as the younger daughter, should not marry before Gwendolene.

20 Marion remained strong in her resolve to marry. During the engagement, Robert learned that he was to be posted to Singapore. Marion was keen to accompany him. The army would not let her do so unless they were married. She told her parents that she could afford to pay for the wedding from her savings. Being under 21 (by only four months) she could not, as the law then stood, marry without her parents' consent or an order of the court. As her parents refused their permission, she had no choice but to take steps towards obtaining such an order but her parents eventually gave permission and the marriage took place. The parents did not contribute to the cost of the wedding. Nor did they attend. The invitation sent to them was returned with a note to the effect that they wished to have nothing more to do with Marion. A neighbour gave her away at the wedding.

21 Soon after she left home, Marion received a rather bizarre letter dated 4 February 1972 from her parents threatening to sue her if she did not pay for the upkeep of a cat she had left behind when she left home. It was signed "Mr & Mrs C Keep".

22 On the primary judge's findings, Marion and Mrs Keep saw one another on only five occasions after Marion left the family home shortly before her marriage in November 1971. They encountered one another by chance while shopping shortly after the birth of Marion's first child in 1973 (Marion had not told her parents that she had had a child). Marion had the baby with her in a pram and, when she saw her mother, covered the child so that her mother could not see it. They did not speak. The second encounter occurred when Marion, together with her husband and children, visited Mr Keep in a nursing home shortly before his death in 1986. Mrs Keep was there, as was Gwendolene. Mr Keep asked Mrs Keep to buy sweets for the grandchildren but she said she did not have her purse with her. The primary judge found that she probably did. On this occasion, Gwendolene spoke abusively to Marion and called her a "vulture". Marion and Mrs Keep next saw one another soon afterwards at Mr Keep's funeral. They did not speak and neither Marion nor her children were mentioned in the course of the funeral service. The fourth occasion was a meeting in passing at a relative's funeral at a crematorium when Marion asked Mrs Keep where Mr Keep's remains were and Mrs Keep answered with a gesture in the relevant direction. The last meeting occurred when Marion, her daughter Joanne and Joanne's daughter, visited Mrs Keep in hospital a matter of hours before Mrs Keep's death and at a time when she was unconscious. Mrs Keep did not regain consciousness while Marion was there.

23 Thus, on the primary judge's findings about events during the period of some 38 years after Marion left home in circumstances of disagreement about her forthcoming marriage, Marion sought out her mother only once (when she was unconscious and on the point of dying) and Mrs Keep did not seek out Marion at all.

24 Section 59 of the Succession Act, so far as relevant to this case, is in these terms:

(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:

(a) the person in whose favour the order is to be made is an eligible person, and

. . .

(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.

(2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.

. . ."

25 The first ground of appeal focuses attention on what is often called the "jurisdictional" or "first stage" aspect of the inquiry called for by s 59. The two stages, as they applied under relevantly similar provisions of the Family Provision Act 1982, were described by Mason CJ, Deane and McHugh JJ in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-209 in this way:

"It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the 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 be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant. The first stage has been described as the 'jurisdictional question'."

26 The court's task, in approaching the jurisdictional question, was described in Singer v Berghouse (at 209-210) as follows:

"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."

27 As Mason CJ, Deane and McHugh JJ also noted (at 210), the process is an evaluative one:

"The evaluative character of the decision stems from the fact that the court must determine whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life." [original emphasis]

28 The passage at 209-210 was approved by Gleeson CJ and in the joint judgment of Gummow and Hayne JJ in Vigolo v Bostin [2005] HCA 11; 221 CLR 191. The passage at 210 was approved in the joint judgment. The principles reflected in both passages were expressly endorsed by all five judges (Callinan J and Heydon J in addition to the three already mentioned). The members of the High Court also saw continuing relevance of a concept of "moral duty" to the first stage inquiry.

29 The inquiry at the "jurisdictional" or "first" stage involves what Basten JA, in Foley v Ellis [2008] NSWCA 288 at [3], called a "multi-faceted evaluative

judgment". The inquiry as to what is "adequate" goes to the quantum of support while the inquiry into what is "proper" has regard to the form of support.

30 The function of an appellate court upon a challenge to a decision regarding the jurisdictional question was described by Campbell JA (with whom Giles JA and Handley AJA agreed) in Hampson v Hampson [2010] NSWCA 359 at [73]-[74]:

"An appeal court can alter a trial judge's decision concerning the jurisdictional question in a Family Provision Act application only in the same circumstances as it can alter a discretionary decision by a trial judge: Singer v Berghouse (No 2) (1994) 181 CLR 201 at 212; Vigolo v Bostin [2005] HCA 11 ; (2005) 221 CLR 191 at [82] 220; Clifford v Mayr [2010] NSWCA 6 at [67]-[74].

The conventional statement of the principles for appellate review of discretionary decisions is that in House v R (1936) 55 CLR 499 at 504-5."

31 Campbell JA then set out this well-known passage in the judgment of Dixon, Evatt and McTiernan JJ in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505:

"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

32 It is with those principles in mind that I approach items (1) and (2) in the above summary of the grounds of appeal. Those two aspects form the basis of the appeal by Gwendolene and Graham on the jurisdictional ground.

33 Counsel for Gwendolene and Graham submitted that the estrangement between Marion and Mrs Keep, viewed in context, should properly have led to a finding that the pre-condition to jurisdiction under s 59(1)(b) had not been satisfied. It was submitted that a combination of the estrangement, the statement about Marion in Mrs Keep's will and a proper assessment of the circumstances and needs of Gwendolene and Graham should have led to a conclusion that zero provision for Marion, in accordance with the will, was adequate.

34 I do not accept those submissions. The judge's findings favourable to Marion's claim at the jurisdictional stage were made after a full consideration of the circumstances of both Gwendolene and Graham. His Honour recognised that neither of them works, that both are in bad health and on social security support and that they have lived in the Hurstville house all their lives and wish to continue doing so. In addition, each is single, has no dependants and is of very modest means. That assessment was made in company with a like assessment of Marion's situation: that she is divorced with four children one of whom is a son with disabilities who lives mainly with his father (although Marion wishes to have him stay with her periodically), that she too is of very modest means and lives in a small rented house on the Central Coast which is in poor repair, that she receives some social security support and that she too has health problems. At the time of trial, Marion was in part-time employment but, as I have said, evidence received without objection on the appeal was that an injury has made it necessary for her to give up that employment.

35 It is sufficiently shown, in my opinion, that the primary judge had appropriate regard to all these matters, as well as the estrangement, in approaching the matter as a whole; and that he therefore could not have failed to take them into account in making the inquiry that was necessary at the "jurisdictional" or "first stage".

36 It is true that, in his recitation of the facts, his Honour devoted significant attention to the matter of estrangement and that he quoted, in that connection, the following passage in the judgment of Bergin CJ in Eq in Ford v Simes [2009] NSWCA 351 at [71]:

"It is one thing to make provision for a child, even an adult, where the Court is able to better balance the obligations of the testator with the adequacy of the provision made by the testator. However in my view it is very important for the maintenance of the integrity of the process in these types of applications that this Court acknowledge once again the entitlement of testators, in certain circumstances, to make no provision for children: The Pontifical Society for the Propagation of the Faith and Saint Charles Seminary, Perth v Scales (1961) 107 CLR 9. This is particularly so in respect of children who treat their parents callously, by withholding without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility."

37 But the focus was not upon the estrangement to the exclusion of the other considerations relevant to the jurisdictional question; nor did the primary judge's reference to the observation of Bergin CJ in Eq imply that it was afforded the status of a determinative consideration.

38 Counsel for Gwendolene and Graham submitted that, in any event, the circumstances of the estrangement in this case were substantially similar to those described by Bergin CJ in Eq and that this should have caused Marion's claim to fail at the first stage. The proposition is, in essence, that Marion had, by cutting herself off from her family without justification, earned the treatment given to her by Mrs Keep in her will.

39 That proposition is not borne out by the judge's findings or by the evidence. I have quoted [81] of the judgment. That paragraph paints, in my view, a picture that is somewhat kinder to Mrs Keep than the findings and evidence indicate. Marion never did wrong to her parents. In her late teenage years, she formed a romantic attachment to a young man. They became engaged. At the age of 20, Marion wished to marry. That was the natural inclination of a young woman particularly in the early 1970s. It was something that, in most families, parents understand and accept unless some reason relevant to the daughter's welfare indicates otherwise. Mrs Keep did not, it seems, have any objection to Marion's fiancé on grounds going to Marion's welfare (the possibility that he might be sent to war and put into danger could not be viewed in that light). Nor were there any other articulated grounds of rational opposition to the match. The problem of paying for the wedding was solved by Marion's using her own savings, she having informed her mother that she would do so. Yet the parents boycotted the wedding, even to the extent of returning the invitation with a note which, in effect, expelled Marion from the family and later writing Marion a letter threatening to sue her unless she made financial provision for the cat.

40 Mrs Keep must be seen as the instigator of the separation. It is true that Marion did not attempt reconciliation. She apparently took at face value her parents' decision - conveyed in hurtful terms - that, by marrying as she wished, Marion had made herself unworthy of continuing as a member of the family.

41 The primary judge was right when he referred to Mrs Keep's "stringent refusal to make any attempt at reconciliation" and to two occasions on which such reconciliation could have been attempted. His Honour's conclusion that, because of this, Marion should not be barred from making a claim reflected a finding that there was not, on Marion's part, a withholding of support and love "without justification" in the terms used by Bergin CJ in Eq in Ford v Simes.

42 In summary, the primary judge addressed all relevant matters going to jurisdiction. His assessment was made by way of appropriate "multi-faceted evaluative judgment" taking those matters into account (including the situations of Gwendolene and Graham). The estrangement and its circumstances were correctly viewed as not excluding Marion's claim on jurisdictional grounds and the conclusion that the jurisdictional condition was satisfied was one warranted by the evidence. His Honour's decision that adequate provision for the proper maintenance or advancement of Marion was not made by Mrs Keep's will is not one calling for appellate intervention in accordance with the principles explained by this Court in Hampson v Hampson (above). The first two grounds of appeal ((1) and (2) above) are therefore not made out.

43 Having reached a conclusion favourable to Marion at the first stage of the inquiry, the primary judge was called upon to decide to decide what, if any, order should be made under s 59(2). In approaching that task, a court must pay attention to s 60(2) which sets out matters to which it may have regard in deciding whether to make a family provision order and the nature of that order. There is no need to set out the list of considerations. It is sufficient to quote what the primary judge said about s 60(2) at [59] of his judgment and to note that his statement is not challenged:

"Section 60 of the Act provides the Court may take into consideration a number of specified matters as well as any other matter the court considers relevant in order to determine whether the applicant is a eligible person and whether to make a family provision order and the nature of such an order. Relevantly, among these matters for consideration are the relationship between the applicant and the deceased (60(2)(a)), any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person (60(2)(j)), the character and conduct of the applicant before and after the date of the death of the deceased person (s 60(2)(m)) and the conduct of any other person before and after the date of the death of the deceased person (s 60(2)(n))."

44 The nature of the court's function at the second stage was dealt with in Singer v Berghouse (above). I have already quoted a passage from the joint judgment of Mason CJ, Deane McHugh JJ (at 209-210) about the first stage function. It is appropriate to repeat that passage together with what was said immediately afterwards about the task of the court at the subsequent stage:

"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."

45 The power of the court at the second stage is thus a true discretionary power. Once it has been decided that the jurisdictional condition is satisfied, the inquiry is of the kind recently described by Campbell JA in Durham v Durham [2011] NSWCA 62 at [82] in the following terms:

"A judge's decision as to the amount and type of an award to be made is a true discretionary decision, whether that decision is made under the Family Provision Act or under the Succession Act. Thus, such a decision is reviewable by an appellate court only in accordance with the principles established in House v R."

46 The pertinent passage in the joint judgment in House v The King, set out above, was then quoted by Campbell JA.

47 The aspects of the grounds of appeal designated (3) and (4) in the above summary identify four ways in which the primary judge is said to have taken into account considerations not material to the discretionary decision or failed to take into account considerations material to the discretionary decision:

(a)there was no due recognition of "a child treating her parent callously by not taking any steps to end their estrangement";

(b)there was resort to a principle (in truth non-existent) that the community expects a parent to leave her child in a position to own a home;

(c)there was no due recognition of the claims of Gwendolene and Graham to remain in the Hurstville house; and

(d)there was failure to recognise that Gwendolene and Graham would be unable to acquire alternative accommodation with the balance of the estate remaining to them.

48 As to the first of these matters (item (a)), it is true that the judge referred, at [81] of his judgment, to "a sense of a child treating her parent callously by not taking any steps to end their estrangement". But that is far from the totality of the judge's assessment. He recognised that it was Mrs Keep who initiated the separation and did not take up opportunities to heal it: first, when Mr Keep asked her to buy sweets for the grandchildren when Marion and her husband took their children to visit Mr Keep at the nursing home and Mrs Keep's response was merely that she did not have her purse with her; and, second, when, at the crematorium, Marion asked Mrs Keep where Mr Keep's remains were and Mrs Keep chose to answer with no more than a gesture. The passage at [81] of the judgment also needs to be read with the following more comprehensive finding at [78]:

"Marion did stay in contact with her Aunt Eleanor and Uncle Arthur. When she was young she might not have been mature enough to consider making an approach to her mother, but one would have expected that as she matured and had more children who may have been a joy to her mother, she would have wished to end their estrangement. Marion did make contact with her family four times and she was either treated with hostility or ignored on those occasions. Equally it is plain that the deceased refused to approach Marion for some reconciliation even though she knew of the existence of her grandchildren. Once Marion was married there was arguably no other reason to continue the estrangement from her daughter."

49 If there was in truth "callousness", it was probably Mrs Keep who exhibited it to a greater extent than Marion. But Marion was not blameless in the matter of the estrangement and, as the primary judge found at [81], her conduct in that respect meant that her claim on the testator's bounty was reduced.

50 But the primary judge did not give effect to that finding in the order he made. The order, as made, effectively gave Marion one-third of the estate and reflected the treatment that one of three adult children might have been afforded by the will of the surviving parent when no negative or diminishing factor was at work. Marion's conduct in relation to the estrangement was found to amount to a negative or diminishing factor warranting reduction, but no reduction was actually recognised.

51 In relation to items (b), (c) and (d), it is relevant to quote [82] - [84] of the judgment of the primary judge:

"It is useful that at this stage to consider how Marion says she has been left without adequate and proper provision for her maintenance, education and advancement in life. I note that Marion seeks a legacy of $250,000. This would enable her to buy a relocatable home at a cost ranging between $139,500 and $215,000. This would allow for contingencies and would supplement her modest income.

The defendants' situation is difficult as plainly if no order is made they would wish to stay in the Hurstville home and Gwendolene would have her savings of $61,000. However, the home is run down and it is difficult for the defendants to maintain their lifestyle in the home. The likely progression of Gwendolene's illness will probably mean that she will need further care that cannot be provided at home. In these circumstances there is every likelihood that the home will need to be sold in the near future.

If the sale of the home is necessary then those funds could be used to secure further accommodation for the defendants. However, because of their determination to stay in the home there is no relevant information before the court as to what would be involved in such a process."

52 As to item (b), this passage makes it clear that the judge did not espouse a principle that the community expects a parent to leave her child in a position to own a home. The need for all three children to own a home, if that was financially possible, was recognised; so too, implicitly, was the reality that, with each child having very little money and the estate being only some $620,000, that goal could very likely not be achieved. As to item (c), the strong desire of Gwendolene and Graham to remain in the Hurstville house was clearly taken into account and, while any "claim" of theirs to do so was not recognised, submissions made on their behalf did not elucidate any basis on which an adult child who lives with the deceased in the deceased's house, apparently rent free, can assert any form of "claim" to continue living there indefinitely after the deceased's death. As to item (d), there was express reference by the judge to the absence of evidence about the ability of Gwendolene and Graham to acquire alternative accommodation. He noted that their choice not to lead evidence about that matter made it impossible to know what would be involved in their obtaining alternative accommodation. He also noted that Gwendolene, because of her various health problems, would likely soon need care that could not be provided in the home, thus recognising that her expressed wish to stay there might very well be overtaken in the short term by a need for institutional care in which the Hurstville property played no continuing part.

53 The judge did not, in my opinion, deal with the second stage of Marion's statutory claim in a manner involving House v The King error in relation to any of the matters (b) to (d) above. Those matters were all matters relevant to the discretionary judgment to be made. They were all addressed and evaluated. But there was, in my view, House v The King error in relation to matter (a) in that, as already mentioned, the reduction the judge recognised as being called for by Marion's conduct in realtion to the estrangement was not actually made. In that respect (but that respect only), the discretion miscarried.

54 In the result, I am of the opinion that this court should not disturb the primary judge's decision under s 59(1)(c) of the Succession Act that there was jurisdiction to make an order under s 59(2). It is, however, necessary to vary the order made in exercise of the discretion conferred by s 59(2). There must be a reduction recognising Marion's contribution to the estrangement. But given the factors mentioned by the judge at [78] of the judgment and the hurtful way in which her parents expelled Marion from the family, the reduction should not be great. The discretion ought to be re-exercised so that the legacy is $175,000 instead of $200,000.

55 I propose the following orders.

1.Appeal allowed.

2.Vary order 1 made by the court below by substituting "$175,000" for $200,000".

3.Vary order 3 made by the court below by omitting all words after "after" and substituting "5 April 2012".

4.That the respondent pay the appellants' costs of the appeal.

56 TOBIAS AJA: I agree with Barrett JA.

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Decision last updated: 05 April 2012