Neil v Jacovou [2011] NSWSC 87 (28 February 2011)

Last Updated: 4 November 2011

This decision has been amended. Please see the end of the decision for a list of the amendments.

Supreme Court New South Wales

Case Title:	Neil v Jacovou
Medium Neutral Citation:	[2011] NSWSC 87
Hearing Date(s):	15 March 2010, 16 March 2010, 17 March 2010, 9 April 2010
Decision Date:	28 February 2011
Jurisdiction:	Equity Division
Before:	Slattery J
Decision:
Catchwords:	SUCCESSION - Family provision and maintenance - pre-nuptial agreement - mutual releases - rights under Family Provision Act - whether release of rights should be approved after death of one of parties - Family Provision Act, s 31- extent of circumstances considered on approval - HELD - inadequate explanation of release - due consideration to release not given - Family Provision Act, s 31(5)(d) - further whether adequate provision made for widow and daughter of deceased - Family Provision Act s 7 and s 9 - daughter not provided for in will - assets bequeathed to widow produce uncertain income - what is necessary for the "proper" maintenance, education and advancement in life of the widow and child of the deceased - HELD - inadequate provision made by deceased out of his estate for the proper maintenance, education and advancement in life of daughter - and inadequate provision made for advancement in life of widow - further provision made in favour of widow and daughter. TRUSTS - resulting trusts - deceased purchases property in his own name - evidence that purchase funded by trustee company not deceased - HELD - deceased holds property on resulting trust for company.
Legislation Cited:	Family Law Act 1975 (Cth) Family Law Amendment Bill (1999) Family Provision Act 1982 (NSW), ss 6, 7, 9, 11, 31 Land Tax Management Act (NSW) 1956 Property (Relationships) Act (NSW) 1984 s 4
Cases Cited:	Anderson v Teboneras [1990] VicRp 47; [1990] VR 527 Blore v Lang [1960] HCA 73; (1960) 104 CLR 124 Calverley v Green [1984] HCA 81; (1985) 155 CLR 242 Charles Marshall Pty Limited v Grimsley [1957] HCA 11; (1956) 96 CLR 353 Luciano v Rosenblum (1985) 2 NSWLR 65 Mulcahy v Weldon [2002] NSWCA 206 Napier v Public Trustee (WA) (1980) 32 ALR 53 Re Buckland (deceased) [1966] VicRp 58; [1966] VR 404 Russell v Quinton [2000] NSWSC 322 Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Taylor v Farrugia [2009] NSWSC 801 Tchadovitch v Tchadovitch [2010] NSWCA 316 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Texts Cited:
Category:	Principal judgment
Parties:	Charli Neil by her Tutor Julie Neil Second Plaintiff- Julie Neil Defendant- Jack Jacovou
Representation
- Counsel:	Counsel: First & Second Plaintiff-D. Grieve QC; Ms D. Coulton Defendant- P. Blackburn-Hart SC; Mr P. O'Loughlin
- Solicitors:	Solicitors: First & Second Plainitff- Maria Salerno, Vizzone Ruggero & Associates Defendant- Bernard Hayward, B Hayward & Co
File number(s):	2007/254974
Publication Restriction:	No

JUDGMENT

1. HIS HONOUR : Christopher Gregory Neil died on 18 September 2006 aged 51. The first plaintiff Julie Neil is his widow and the second plaintiff Charli Neil is his daughter. The plaintiffs seek orders under the Family Provision Act 1982 against the defendant executor of Chris Neil's estate, Mr Jack Jacovou.

2. Chris Neil left substantial property under a will dated 17 April 2003. Julie Neil received a specific provision under that will but Charli Neil, who was born in August 2005, received none. The residuary estate was left to Chris Neil's six surviving siblings and a friend. The plaintiffs' claim that they have been left without adequate support for their maintenance, education and advancement in life. Chris Neil made his will at the onset of the three and a half years of severe illness that caused his death.

3. Mr Jacovou cross-claimed in the proceedings for relief that the Court approve a release of Julie Neil's Family Provision Act rights. The release was contained in a pre-nuptial agreement signed between Julie and Chris before their marriage in October 2001.

4. As many of the parties to these proceedings have the same surname I shall often, and I hope with no disrespect to any of them, refer to the principal family members by their first names. The following circumstances give rise to the plaintiffs' claim.

Background

Chris Neil and Julie Nicholas

5. Julie and Chris first met in 1997 while she was working as a fitness instructor at a gym in Sylvania, a southern suburb of Sydney. They met on a regular weekly basis at the gym for a number of months before they began seeing one another more closely from July 1998. A relationship formed between them. Marriage was proposed. They married on 20 October 2001. After their marriage they resided together at an apartment that Chris owned at McDonald Street Cronulla ("the Cronulla apartment").

6. Chris was born on 25 July 1955. At the time of his marriage to Julie he was aged 46. Chris had been married and had also lived in a de facto relationship before he met Julie.

7. Julie Nicholas was born on 23 December 1969. At the time of their marriage she was 31. By the time of the hearing she was 40. Their daughter Charli was born on 23 August 2005 and is now five.

8. Each of Julie and Chris led full lives before they met, although their life together is of principal relevance to the plaintiffs' claims. A brief background of the couple before they met follows.

9. Julie. Julie attended Sylvania Heights Primary School and then High School. She finished her schooling in about 1985 at the age of 15 with the School Certificate. After school she undertook a secretarial course for 12 months then worked in a solicitor's office as a secretary. She then took employment in the office of Mr Malcolm Kerr, who is the Member for Cronulla in the Legislative Assembly in this State.

10. But office work was not for her. In a period of career transition Julie assisted for a few months in her mother's sandwich shop. In 1987 she underwent a series of 10-day fitness courses and then commenced as a fitness program instructor in a ladies gym. She enjoyed this work and instructed and led fitness classes at the gym, full time from 1987 through to 1990. At the same time she enrolled in and completed a six-month part time nutrition course.

11. From 1990 to 1994 Julie worked in an associated field as a weight-loss counsellor with Jenny Craig. Then between 1994 and 1997 she returned to the gym industry and acted as a sales consultant selling gym memberships with the "Club Physical" fitness chain.

12. Julie wished to further her career and studies in nutrition, health and sport. She studied part time in the mid 1990s and graduated in 1996 from the TAFE with a health and sports conditioner certificate as a fitness trainer. She attained some distinction in this course, coming second in the State out of approximately 300 candidates that year.

13. Diet, nutrition and exercise became her developing passion. In 1997 Julie resigned as a sales consultant for "Club Physical" and went into business full time running her own small business as a personal trainer. She found this rewarding. She grossed about $60,000 per annum working as a fitness trainer until after April 2003 when her husband Chris became ill and he needed her full time attention and care.

14. Julie Neil is one of three children from a small and close-knit family. Her father died in 1998. Her mother, Nancy Nicholas is aged 70. Julie has two brothers Geoffrey born on 1 July 1961 and Paul born on 12 January 1965. All these members of her family played a role in the events that were to unfold after her marriage to Chris.

15. Chris. Before his marriage to Julie, Chris had already proved himself to be a successful property entrepreneur and developer. He commenced his working life as a glazier, installing glass windows in retail, industrial and commercial buildings. This occupation revealed to him other business opportunities. He proved to have an astute eye for undervalued real estate. By the time he met Julie in 1997 he had built up a real estate portfolio of mainly industrial properties, which has become one focus of the issues in these proceedings. He held most but not all of these industrial properties through two companies that he controlled, Sandlix Pty Limited and Flat Glass Holdings Pty Limited.

16. By the time he met Julie Nicholas, in the words of his own solicitor, the defendant, Mr Jacovou, Chris Neil was already leading a " very relaxed " life style. He had financial success, his net estate at hearing being worth about $25,000,000. He rewarded himself with the fruits of that success by immersing himself in the things that attracted him in life. He played golf and other sports. He enjoyed the company of friends and family. He took pleasure from life's luxuries both large and small.

17. Other aspects of Julie and Chris' married life and their relationship are discussed later in these reasons. Within two years of their marriage the course of their lives changed due to the onset of the illness from which Chris ultimately died.

18. The elements of Julie Neil's claim that she has been left without adequate means for her education, maintenance and advancement in life is based: upon her present financial circumstances; upon aspects of the joint life that she enjoyed with Chris before and during their marriage; and upon statements that he made to her during their marriage about their future together. The Court makes findings about all these matters in the reasons below under headings related to each issue. First though, it is necessary to examine the chronology of events that led from the onset of Chris Neil's illness until his death.

Chris Neil's Illness

19. The course of Chris Neil's illness and Julie Neil's care for him during that period is not in contest in these proceedings. But the events of this period reveal much about Chris and Julie Neil's marriage.

20. Chris Neil's symptoms of severe headache and vomiting had sudden onset on 6 April 2003. His health quickly deteriorated. On 14 April 2003 he was admitted to the St George Private Hospital under the care of Dr Bernard Kwok. The X-ray and MRI images explained his symptoms and revealed intracranial and upper spinal lesions of some mass. His surgeon Dr Bernard Kwok operated on him on 17 April 2003. Chris Neil made his will shortly before this operation.

21. His postoperative biopsy revealed a rare malignant brain tumour, with the biological name leptomeningeal gliomatosis. The initial medical opinion was that this cancer normally carried a very poor prognosis with median survival falling in a range from a few months to up to about ten months. On the night of 19 April 2003 Chris suffered a Grand Mal epileptic seizure. Then on 24 April 2003 Dr Kwok once again operated upon him, inserting a shunt to drain fluid from his brain and creating a port reservoir to facilitate his planned chemotherapy.

22. Julie decided to give up work at this time to assist in his care. After a second medical opinion was sought Chris commenced on courses of chemotherapy and radiotherapy. Because of the risk of infertility from this combined treatment, Chris with Julie decided to have a semen sample taken and preserved before the treatment commenced.

23. The severe medical problems Chris was suffering created other medical consequences. Chris' chemotherapy and radiotherapy led to his suffering deep vein thrombosis. In June 2003 he was diagnosed with a pulmonary embolism. He was admitted to St George Public Hospital for treatment of this condition, stopping his chemotherapy. To overcome the deep vein thrombosis he was given anti-coagulation medication

24. Despite his continuing treatment, Chris attempted to engage in sport. But during a game of golf on 15 July 2003 he suffered a cerebral haemorrhage. The medical evidence suggests that this was a result of the anti-coagulation he was receiving. He was placed into an induced coma where he remained for about four weeks. In August 2003 Chris was brought out of his coma but suffering from the after effects of severe brain damage. From this time on Chris required very close care and intensive rehabilitation.

25. By November 2003 Chris came under the care of the staff specialist in neurology at St George Hospital, Dr Peter Boers. Dr Boers considered that Chris' condition was " definitely deteriorating " in March 2004. Dr Boers has reported that he began to contemplate all medical options including the involvement of the Community Palliative Care Service, but he did not discuss these with Chris and Julie at that early stage. Dr Boers' assessed Chris Neil's neurological status as having deteriorated between January and March 2004 and MRI scans in February showed extensive progress of the tumour. Dr Boer's clinical assessment of his patient's condition in March 2004 was:-

"On examination his walking was extremely poor and he required at least one person to hold him when he was walking on the flat and fairly maximal assistance of two people to get down several stairs. There was no papilledema, he had a dense right hemianopia [loss of sight in one eye] and he was markedly dysphasic [impairment of speech]. He was unable to use a pen or to name a watch."

26. Dr Boers prescribed anticonvulsive therapy for him to reduce the risk of epileptic seizures. Observations at about the same time showed that he had difficulty in using everyday objects.

27. Julie Neil undertook much of his rehabilitation at home. This progressed but interrupted by further seizures. His rehabilitation then progressed but with more intense attention on Julie's part. But Chris Neil's physical situation began to deteriorate in other ways.

28. By March 2004 Chris began experiencing episodes of urinary incontinence. By June 2004 that had extended to occasional loss of bowel control. Chris needed constant care. His condition had declined sufficiently by April 2004 that it was necessary to hire a private nurse to assist in his care.

29. Perhaps it was the care that he was receiving, but Chris' condition improved about mid 2004. According to Dr Boers, although Chris Neil's expressive speech remained about the same he was certainly less sleepy than he had been earlier in the year. Julie reported to Dr Boers a " gradual improvement " in his level of understanding and also in his ability to perform simple tasks such as feeding himself and using utensils. A constant part of Dr Boers' management in this and the subsequent years was maintaining desirable levels of medication to reduce the risk of epileptic episodes.

30. In 2004 Chris and Julie had decided, despite his condition, to undertake an IVF program to attempt to conceive a child together. The first IVF procedure started in May 2004 and was repeated on a number of occasions from August 2004 onwards. By Christmas 2004 Julie received news that the IVF program had been successful. Her pregnancy resulted in Charli's birth on 22 August 2005, just over 12 months before Chris died.

31. Otherwise, 2005 was a very difficult year for Chris Neil. Chemotherapy was not able to arrest the effect of the cancer. The progress of his tumour meant that by April 2005 Chris was not able to walk and had lost all urinary and bowel control. The history that Julie gave to Dr Boers at this time included twitching of the left eye, which would last for up to a week at a time, jerking of the right arm and poor sleeping patterns. Dr Boers observed on clinical examination that: Chris was eating well; was still markedly dysphasic; was not walking; but "he does seem to understand simple instructions" .

32. In June 2005 he suffered another Grand Mal seizure, which lasted for approximately 10 minutes. He was taken by ambulance to Sutherland Hospital where he was observed to be drowsy but then regained consciousness. A blocked shunt appears to have been attended to during this admission to hospital. Despite what Dr Boers assessed in June 2009 as a "steady decline" Chris was able on examination that month to nod responsively to some questions he was asked. At about this time his shunt was revised and his levels of alertness rose.

33. Chris turned 50 in July 2005. Julie hosted a party for him that day. A video of the event tendered in evidence shows that despite his disabilities and physical problems he did appear to enjoy the day with Julie, family and close friends.

34. The combination of Chris Neil's constitution, his general medical care, his domestic support and his chemotherapy seemed to give him remarkable longevity in the face of his cancer. Julie, assisted by her mother Nancy played a central part in his daily care throughout the last three years of his life. Details of this are described in section 5 below in these reasons.

35. In February 2006 an MRI scan showed that his tumour appeared to be reducing rather than increasing in size. Indeed, he had an improvement in his general level of alertness evidence in late 2005 and early 2006. His medical assessment still included dense right hemianopia and showed that he was able to lift his arm but not his legs. His capacity to respond to questions was limited to saying just one or two words.

36. But by June 2006 Chris was suffering increased medical complications. He was noted that month to have extensive bilateral deep vein thrombosis. He was prescribed anticoagulant. He was by then quite drowsy but could be roused for about one hour each day. He was clearly continuing to decline.

37. On 11 September 2006 Chris' condition rapidly worsened. He was conveyed by ambulance to St George Public Hospital and placed in intensive care. He died in hospital on 18 September 2006. He was buried from his Parish Church of St Aloysius, Cronulla. At the time of his death he and Julie had been in a close relationship for a little under eight years and had been married for a little under five years.

The Structure of these Reasons

38. The parties structured their final submissions under headings that it is convenient to use in these reasons.

(1) The Wills

(2) The Estate

(3) Pre-Nuptial Agreement of 17 October 2001

(4) Beneficial Ownership of the Penshurst Property

(5) The Relationship between the Plaintiffs and Chris Neil

(6) Julie Neil's Assets and Income

(7) Julie Neil's Average Weekly Expenditure

(8) Proper Level of Weekly Expenditure by the Plaintiffs

(9) Whether the Provision for Julie Neil was Adequate and if not what provision should be made?

(10) What Provision should be made for Charli Neil?

(11) Competing Claims of the Residual Beneficiaries

(12) Other relevant matters and Relief

(1) The Wills

39. Chris Neil made several wills during his lifetime. The last two demonstrate overall consistency in his testamentary intentions. The first of these was made on 22 October 2001, two days after his marriage to Julie. By this 2001 will Chris appointed Mr Jacovou as his executor. He then made the following specific devise of real property to Julie.

"5. Specific Gift of Real Property

(a) If my wife JULIE NEIL survives me by 30 days I GIVE to her my property at [street number not published] McDonald Street Cronulla.

(b) The gift referred to in subclause (a) is contingent and does not vest unless and until my wife JULIE NEIL survives me by 30 days; and

(c) income (if any) produced by the gift referred to in sub-clause (a) between my death and vesting accumulates to the gift."

40. The 2001 will provided a complex gift of residue to Julie and his other family and friends. He gave 9% of residue to Julie in addition to ther specific gift and 10% of residue to a friend since school days, Paul Rowland. He gave 12% of residue to Jenny Mercer with whom he had been in a domestic relationship before meeting Julie. The balance of residue was given to his brothers and sisters, Vincent Neil (15%), Andrew Neil (10%), Craig Neil (10%), Frances Mari Babalowski(12%), Anne Dorrington (12%), and Sandra Blessington (10%).

41. Chris Neil's last will of 17 April 2003 was made just after the onset of his illness and before his first operation under Dr Kwok. In this will Chris also appointed his solicitor, Mr Jacovou as his executor. He then provided more generously for Julie to whom he had been married for 18 months. He gave her the following specific gifts and then altered his gifts of residue to other family and friends as follows.

"5. Specific Gifts

(a) I Leave to my wife JULIE NEIL , the following:

(i) my property at [street number not published] McDonald Street Cronulla and all contents;

(ii) all my jewellery and personal effects;

(iii) all my cars;

(iv) my shares in Sandlix Pty Ltd and therefore all properties owned by that company;

BUT IF my wife JULIE NEIL predeceases me or fails to survive me by 30 days or more, these gifts shall be left to such of her mother and brothers as may survive me, and if more than one as tenants in Common in equal shares.

(b) I Leave my property at [street number not published] Captain Cook Drive, Caringbah, to my friend JENNY MERCER .

6. Residue

(1) My executor shall hold the residue of my estate on trust and:

(a) Carry on for the period of five (5) years from my death, or such shorter period as my Executor may in his absolute discretion think fit, the whole of any part of any business in which I am engaged or interested at my death and for that purpose as he may think fit:

(i) Lease, purchase or acquire any property;

(ii) Use any assets of my estate including money, borrow money on the security of my estate and incur liabilities binding on my estate;

(b) Set up a fund ("the fund") , to consist of the residue of my estate (excluding any business or business assets subject to the preceding sub-clause (a) hereof) and any income added to the fund from time to time, and invest or otherwise deal with the fund as authorised by law or any provision herein;

(c) Distribute the net proceeds of the business or businesses an the net income of the fund annually as at 30 June each year or as at the last day of any tax accounting period (or at such other times as my Executor may in his absolute discretion think fit) to the following persons in equal shares:

- my brother Andrew Neil

- my brother Craig Neil

- my sister Francis Mari Babaloski

- my sister Anne Dorrington

- my sister Sandra Blessington

- my brother Vince Neil

- my friend Paul Rowland

(d) As soon as possible after the expiration of the trust period, or at any earlier time that my Executor may in his absolute discretion think fit ("the vesting date") do all acts and things necessary to:

(i) divide the fund amongst the persons entitled to receive the proceeds of the business or businesses and the net income of the fund in equal shares;

(ii) realise or liquidate the business or business and divide in equal shares the proceeds amongst the persons entitled to receive the proceeds of the business or businesses and the net income of the fund. The proceeds of the realisation shall be distributed not later than 1 year form the vesting date."

42. The principal differences between the 2001 and 2003 wills were: the increase in the specific provision for Julie; the substitution of a specific gift for Jenny Mercer's earlier gift of residue; and the equalisation of the residuary gift to his family and friends. The 2003 will was in contemplation that he may not survive the serious operation he was about to undergo. The changes Chris made are consistent with a deepening of the relationship between himself and Julie but also with a continuing recognition of his testamentary obligations to his siblings and close friends.

(2) The Estate

43. Chris Neil left a large estate. His successful career firstly in the importation and installation of industrial glass and then his later as a property investor left him with a valuable mixture of domestic, commercial and industrial property. The parties have agreed upon the values of all Chris Neil's property for the purpose of these proceedings. Those agreed values are referred to throughout these reasons.

44. Domestic Assets. Chris Neil's domestic assets were a unit in MacDonald Street, Cronulla, a Lexus 4WD vehicle and a unit in Captain Cook Drive, Caringbah. The executor has distributed all these assets pursuant to the will. Upon their marriage Julie and Chris Neil lived at his apartment in MacDonald Street, Cronulla. In September 2009 the Executor transferred the apartment to Julie, who now lives in it. Its agreed value is $2 million. Julie has also taken a transfer of a half share in Chris Neil's Lexus 4WD vehicle, which has an agreed value of $32,500. In February 2008 the Executor transferred the apartment in Captain Cook Drive, Caringbah with an agreed value of $422,000 to Jenny Mercer.

45. Industrial/Commercial Real Estate . Chris Neil held a substantial portfolio of mainly industrial real estate, principally through two companies, Sandlix Pty Limited ("Sandlix") and Flat Glass Holdings Pty Limited ("Flat Glass"). In addition to those corporate portfolios he held other industrial real estate, a property at Penshurst Street, Penshurst and another in Stacey Street, Bankstown. These two properties outside the Sandlix and Flat Glass portfolio structures have unusual features. The current agreed value of the Penshurst Property is $530,320. There was a dispute between the parties, to be dealt with in issue (4) below, as to whether the Penshurst property was owned beneficially by Chris Neil himself or by the Sandlix Trust. This question is resolved later in these reasons. Chris Neil owned only two-thirds of the Stacey Street, Bankstown property. He held that two-thirds interest through a partnership with his fellow investor, Mr Konn Palonis. The agreed value of Chris Neil's interest in the Stacey Street Partnership is $2,324,801.

46. The will gives all Chris Neil's shares in Sandlix to Julie and the assets of Flat Glass Holdings are part of the residuary estate. The respective Sandlix and Flat Glass property portfolios are relevant to the issues joined between the parties. They are briefly analysed in this section. At issue is the relative quality of the assets and earnings of these two companies. Chris Neil held 1000 shares in Sandlix and 149 A class and 1 B class share in Flat Glass. The agreed value of all the share capital in Sandlix was $6,042,706. The agreed value of the share capital of Flat Glass Holdings is $13,739,490.

47. Other Assets . Chris Neil had accumulated superannuation at the time of his death held in the Engadine Super Fund. This has an agreed value of $392,412.41. Finally at the time of hearing there was free cash in the estate of $144,470.66.

48. Thus, the total agreed value of Chris Neil's estate is $25,628,700.07 made up as shown in Table 1:

Asset	Valuation before tax
McDonald Street Cronulla	$2,000.000.00
Half share in Lexus 4WD	$32,500.00
Captain Cook Drive, Caringbah	$422,000.00
Shares in Sandlix Pty Limited	$6,042,706.00
Control of the Sandlix Trust	$530,320.00
Shares in Flat Glass Holdings Pty Ltd	$13,739,490.00
2/3rds interest in the Stacey Street Partnership	$2,324,801.00
Engadine Super Fund	$392,412.41
Cash in B. Hayward & Co trust account	$144,470.66
Total	$25,628,700.07

49. The estate's liabilities are few and are entirely related to legal fees in these proceedings. Legal fees for the defence of the proceedings are estimated to total $390,000 of which $154,499 had been paid at the time of hearing. If legal fees were ordered in the plaintiff's favour they are estimated at $318,306.51 of which $218,306.51 has been paid. There is a loan repayable by the estate to Flat Glass of $254,378 but the valuation of Flat Glass Holdings set out above is net of this loan and it can therefore be ignored.

50. A more detailed analysis of Chris Neil's industrial real estate is necessary and is undertaken in the following order, the Stacey Street partnership, the Sandlix Trust - the Penshurst Property, the Sandlix properties and the Flat Glass properties. It is necessary to consider the financial effect of winding up or transferring the assets held in these four structures because the way they are managed has a substantial effect upon the net assets held in the estate. It can be seen starkly in the following figures. The combined agreed valuation of the properties in these four structures is $22,637,317. Depending upon the decisions made as to their winding up, the four structures will attract the payment of tax, either by the estate or the beneficiaries on winding up, leaving a net value after tax on the inheritance through these four structures as a capital sum of $16,055,092. This difference is made up by tax payable either by the entities on a winding up or by the estate or its beneficiaries on a winding up so that the net amount after tax of the inheritance is the lower sum of $16,055,092. This difference is explained by the following table about these four properties.

Asset

Valuation before tax

Tax payable by the entities on a winding up

Tax payable by the estate or its beneficiaries on a winding up

Valuation after tax of inheritance as a capital sum

Sandlix Pty Limited

$6,042,706.00

-$545,909

-$1,270,288.0

$4,226,509

Sandlix Trust

$530,320.00

$0.00

-$123,295.00

$407,025

Flat Glass

$13,739,490.00

-$2,106,632

-$2,254,027

$9,378,831

Stacey Street

$2,324,801.00

$0.00

-$282,074

$2,042,727

51. In the result therefore the combined value of the estate before these taxes is $25,628,700.07. But the after tax valuation is a total of $19,046,475.07.

The Stacey Street Partnership

52. The Stacey Street, Bankstown property, like many of the industrial properties Chris Neil acquired, was valuable and produced a good income stream. His two-thirds interest in the property has an agreed value of $2,324,801. The partnership tax returns for 2009 show the Stacey Street Partnership generated net income of $225,752 that financial year. The estate was entitled to two-thirds of this, or $150,501.33.

The Sandlix Trust - The Penshurst Property

53. The issue between the parties as to the beneficial ownership of the Penshurst Property is important for the administration of the estate and the claims of the parties. If the plaintiffs' contentions are correct and Sandlix is entitled to the property as trustee of the Sandlix Trust then, Julie Neil who controls Sandlix, may determine how the Penshurst property is turned to account. On the other hand, if the estate is correct, and Chris Neil had beneficial ownership of the property, then Mr Jacovou will administer the property as part of the residuary estate.

54. There are also tax issues for Julie Neil and possibly for the estate if this property is liquidated. If Julie elects to have Sandlix sell the property and all its other properties and enter into liquidation and have the proceeds distributed either to Sandlix as shareholders or beneficiaries of the Trust income tax will be payable both by Sandlix and by the eventual recipients of the sale proceeds. As the experts point out in their Joint Statement, in view of these adverse fiscal consequences it may be that Julie Neil would not wish to take the course outlined.

55. But the experts have agreed that the value of this property is $530,320 but that the tax payable by the estate or its beneficiaries on a winding up of the Sandlix Trust is $123,295, leaving a net value after tax of the inheritance of $407,025.

56. There are fewer Sandlix properties than Flat Glass properties. The plaintiffs' say the income from the Sandlix properties is unreliable. This is one of the reasons the plaintiffs contend they should take the whole of Chris Neil's interests in Flat Glass under the will and that the residuary beneficiaries should take shares in Sandlix. Analysis of the properties in each company is necessary to assess this contention.

The Sandlix properties

57. Sandlix owns four properties: at Penshurst Street, Beverley Hills; Depot Road, Mortdale; Gartmore Avenue, Bankstown; and de Witt Street, Bankstown. Commercial features and the locations of those properties are summarised in the table below.

Penshurst St, Beverley Hills	Warehouse offices	$1,250,000.00		Currently vacant and could rent for $88,000.00
Depot Road Mortdale	Factory/warehouse	$2,200,000.00	$203,316.96	Major tenant likely to vacate
Gartmore Ave Bankstown	Vacant land	$755,000.00		These two properties adjoin each other
de Witt St Bankstown	Vacant land

58. The two Bankstown properties are vacant land from which no rental income can be derived in the short term. I accept on the evidence that the income from the other two, in Beverley Hills and Mortdale, is unstable.

The Flat Glass Properties

59. The evidence shows that Flat Glass owns eight properties, four in Carlton, two in Moorebank and one in each of Mortdale and Katoomba. The properties have the following characteristics.

**8 Railway Pde Carlton	Retail commercial	Now sold $6,000,000.00	$176,276.00
**4 Railway Pde Carlton	Gym		$184,995.00	Property now sold.
**6 Railway Pde Carlton	Office		$15,600.00	Monthly tenancy holding over
**5 Railway Pde Carlton	Office		$10,920.00	Monthly tenant holding over
**8 Centenary Ave Moorebank	Offices	$5,500,000.00	$135,000.00	Current lease
**0 Centenary Ave Moorebank	Offices and factory		$383,290.00	Current lease
**0 Hearne Street Mortdale	Offices and factory	$3,800,000.00		Property sold for $3,800,000.00 completion due December 2010
**7 Twynan Street, Katoomba	Factory warehouse	$680,000.00	$66,634.00	Current lease

60. The rental income from the Sandlix properties is less reliable than the Flat Glass Holdings. One of the Sandlix properties was vacant, another had a tenant threatening to vacate and the remaining properties are only vacant land generating no immediate income. The best course for properties with these characteristics may be simply to liquidate them and invest the proceeds in an asset earning reliable income. I agree with the plaintiff's submissions that in their current form, these properties do not provide a satisfactory income stream to the plaintiffs.

61. The executor is in the course of selling some of the Flat Glass properties. The most valuable of the properties have been sold already. I accept the plaintiff's submissions that the Flat Glass properties provide a more reliable rental income stream. There is a greater proportion of current leases and tenanted properties within the Flat Glass portfolio. The Flat Glass properties are more suitable for the conduct of an ongoing property investment enterprise than the Sandlix properties.

(3) Pre-Nuptial Agreement of 17 October 2001

62. The estate's preliminary answer to Julie's claim is to attempt enforcement against her of the pre-nuptial agreement she and Chris signed on 17 October 2001. The form of this pre-nuptial agreement releases her rights to claim against the estate under the Family Provision Act . But the Court has not yet approved the release in the pre nuptial agreement. As a result it is not presently enforceable against her: Family Provision Act, s 31(2). So on the cross-claim the estate seeks approval of this release. Julie submits that the pre nuptial agreement should not be approved. The legislation specifically provides for approval after the death of the person whose estate benefits from the release: Family Provision Act , s 31(4).

63. The relevant principles to be applied are clear. A release by a person of the person's rights to make an application under the Family Provision Act shall have effect if approved by the Court, "to the extent that the approval has been given": Family Provision Act s 31(3). No issue arises in this case of limited Court approval. The parties argued that there should be either full approval or no approval. The Court may approve the agreement upon application made after the death of the person whose estate benefits from the release: Family Provision Act , s 31(4). In approval proceedings, the Court must have regard to the "whole of the circumstances" of the case: Family Provision Act s 31(5) and Russell v Quinton [2000] NSWSC 322, [52]. The statutory command is that "In proceedings for the approval of the release, the Court shall have regard to all the circumstances of the case, including whether...", Family Provision Act , s 31(5) then sets out the following considerations:

"(a) it is or was, at the time any agreement to make the release was made, to the advantage, financially or otherwise, of the releasing party to make the release,

(b) it is or was, at that time, prudent for the releasing party to make the release,

(c) the provisions of any agreement to make the release are or were, at that time, fair and reasonable, and

(d) the releasing party has taken independent advice in relation to the release and, if so, has given due consideration to that advice."

64. The Court may consider among the circumstances of the case, any factors as to whether the agreement was to that party's advantage, financial or otherwise: Russell v Quinton [2000] NSWSC 322 [67]-[69], [74]. However, the very fact that the agreement was made may itself show that the parties thought its terms were fair at the time of signing: Mulcahy v Weldon [2001] NSWSC 474 at [10] . When considering whether the release was "prudent" within Family Provision Act s 31(5)(b), the Court should consider that a prudent person is someone who acts with care and thought for the future, in particular in exercising care and good judgment in relation to his or her own interests: Russell v Quinton [2000] NSWSC 322 [70]. Though the releasing party may have had independent legal advice, whether that party gave due consideration to that advice is a relevant factor: Russell v Quinton [2000] NSWSC 322 [76].

65. When are the circumstances to be examined: at the time the release is given or when the approval is sought or both? The issue is important in this case as the prenuptial agreement made in October 2001 was reviewed in a hearing held eight and a half years later in April 2010. Family Provision Act, s 31(5) itself answers this question. The Court is not limited to examining the circumstances at the time of making the agreement, as the widest range of circumstances may be examined. It commands in proceedings for approval of a release that the Court "shall have regard to all the circumstances of the case". The individual relevant considerations in Family Provision Act , s 31(5) expressly refer to the time of the release and to later times as relevant: s 31(5)(a), (b) and (c). The passage of approximately 5 years from the making of the pre-nuptial agreement until Chris Neil's death is of importance in assessing whether or not it should be approved.

Pre-Nuptial Events in October 2001

66. The pre-nuptial agreement was made a few days before Julie and Chris married on 20 October 2001. Mr Jacovou's evidence in this subject, evidence that I accept, is that Chris said to him earlier in October 2001 "Julie and I are marrying on 20 October 2001. I require a pre-nup". Mr Jacovou, who by then had acted for Chris Neil on various legal matters for seven years, prepared the form of pre-nuptial agreement, which was signed a few days later without amendment. Clause 3.2 of the pre-nuptial agreement contained Julie's release of Family Provision Act rights, which the estate sought to have approved on the cross claim. Section 3 of the pre-nuptial agreement containing Clauses 3.1, 3.2 and 3.3 was headed "Wills" and provided for mutual promises and releases as follows:

"3.1 The parties agree that nothing contained in this Agreement shall limit the ability of either of them to subsequently execute a Will conferring property or benefits on the other party, and to the extent that any provision of this Agreement conflicts with any provision in those Wills or any Codicils to those Wills, the provision of the Will or Codicil as the case may be shall prevail.

3.2 Subject to the approval of the Supreme Court of New South Wales pursuant to the Family Provision Act 1982 (NSW) ('FPA'), each of Chris and Julie respectively released the other from all and any rights which he or she has or may have to make any application under the FPA.

3.3 At any time hereafter, either party may request the other to join in, at the cost of the parties equally, an application to a Court having jurisdiction for approval of the release contained in Clause 3.2 pursuant to Section 31 of the FPA, and upon being so requested the other shall comply with such request and do all such things and execute all documents reasonably necessary to obtain such approval."

67. The wider text of the pre-nuptial agreement is important. The agreement recites (Recital E) that the parties wish to enter into a Financial Agreement to preclude claims against one another under the Property (Relationships) Act 1984, the Family Law Act 1975 (Cth) and otherwise at law or in equity "in the event that: (a) the relationship ends, (b) the marriage irretrievably breaks down and terminates; or (c) one of the parties dies." The plaintiffs argued that although the disjunctive "or" appears between subparagraphs (b) and (c) the parties only intended section 3 of the pre-nuptial agreement to operate in the event that there was a breakdown in their marriage and one of them thereafter died. I do not agree with this argument. Objectively construed the agreement operates independently of marital breakdown. But as I later find Julie had no appreciation of this particular effect of the agreement.

68. The agreement was declared to be a Financial Agreement pursuant to section 90B of the Family Law Amendment Bill 1999 and a Domestic Relationship Agreement and/or Termination Agreement pursuant to Part 4 of the Property (Relationships) Act 1984. Partly at the Court's invitation the parties advanced analysis of the effect of the pre-nuptial agreement under Family Law Act s90B and s90G. The plaintiffs submitted that the structure of Family Law Act s90B (2) and (3) also support the conclusion that the release in Clause 3.2 should be construed as only operating upon the breakdown of marriage. But this argument is also not persuasive. The reference to the Family Provision Act in the pre-nuptial agreement means that the agreement is intended to have operation independently of the Family Law Act . And the words of the pre-nuptial agreement are intractable that the release operates whether or not there is a marital breakdown. Otherwise the Family Law Act jurisprudence in relation to agreements under ss90B & 90G of that Act is not material to the Court's present task under the Family Provision Act .

69. The agreement also recites that the parties may be subjected to changes of circumstances (Recital J). The circumstances listed were indeed some of the events that were shortly to occur to these two parties: (a) serious illness or injury; (b) death; (c) the birth of a child or children; and, (d) significant increase or decrease in the value of the assets referred to in schedules 1 and 2 hereof. The rest of the listed possible changes in circumstances are more associated with the possibility of divorce and separation.

70. The agreement also recites that Chris was in receipt of gross annual income significantly higher than that of Julie (Recital K). This was correct. But the agreement does not clearly refer to the degree of difference between the parties' incomes or the disparity in the value of assets they each held.

71. The operative provisions of the agreement do certainly give the impression that its principal effect was to provide for the possible separation or divorce of Chris and Julie. The mutual release of Family Provision Act rights is one part of a larger operative structure. In clause 2 each party declares that he and she made no contribution to the respective assets, liabilities and resources of the other and that each disclaims any entitlement to make claim to the assets of the other. Clause 3 deals with their wills and has already been set out in full. Clause 4 declares in the event of their marriage ending that they shall each retain the assets and resources referred to in the schedule to the agreement. Clause 5 (with Schedule 3) provides a definite but limited amount for Chris to pay to Julie in the event of termination of marriage. On a sliding scale if there were no surviving children of the marriage Julie would have been: entitled to a payment of $40,000 up to two years of marriage; entitled to $200,000 if the marriage lasted between 3 and 5 years; entitled to $500,000 if it lasted between 6 and 10 years; and, entitled to $1 million if it lasted 11 years or more. If there were surviving children of the marriage, in addition to those amounts, Chris undertook in the agreement to pay Julie $150,000 for each surviving child as at the date of separation. This mechanism has a number of difficulties that are discussed below under the heading "Fairness and Reasonableness of the Agreement to Make the Release".

72. Two schedules to the agreement set out the then respective properties of the couple. Chris Neil's real estate assets were listed in Schedule 1. His real estate was listed as properties at Penshurst St, Beverly Hills, Stacey St, Bankstown, Stony Creek Road, Beverly Hills and the apartment in MacDonald St, Cronulla. His shares in private companies were listed as shares in Flat Glass Holdings Pty Ltd, Railpad Pty Ltd, Sandlix Pty Ltd, Blixta Griffiths Pty Ltd and Australian Technology and Inventions Pty Ltd. The Schedule also declared that he had shares in the listed company, Peptech Ltd and superannuation assets held in the Engadine Glass Superannuation Fund. It is not possible to work out Chris Neil's equity in that real estate from the information in the Schedule. No property valuations appear in the Schedule. Nor does any valuation of Chris Neil's equity in the listed private companies. Without that information it would have been difficult to give Julie advice worthy of the description "independent" about the fairness of the pre-nuptial agreement.

73. The agreement also listed Julie's assets in Schedule 2. Her assets were listed as a unit in Stanley St, Peakhurst and her accumulated superannuation with AMP and ING Mercantile Ltd. She presumably knew the approximate value of all of these herself.

74. The following is Julie's account of the signing of the agreement. I accept her account of this event, except to the extent identified below. On Tuesday, 16 October 2001 Julie and Chris were together finalising arrangements for the wedding when Chris said "You need to go to Jack's office tomorrow, there is a pre-nup to sign". She responded "OK". I infer from her lack of mention of any prior discussion of the subject and the way she gave her evidence about this episode that this subject had not been broached between her and Chris before this conversation on 16 October 2001.

75. True to his word Chris had set up a meeting for the next day. On 17 October 2001 en route to the wedding reception hall at Double Bay, Julie and Chris stopped at Mr Jacovou's office in Hurstville. Julie went in and Mr Jacovou said to her "you have an appointment to see Chris Lee down the road, because you need independent advice. Here is the agreement, he is waiting for you now". Taking the agreement with her, she went directly to see another local solicitor, Mr Christopher Lee, at a nearby office.

76. Julie's meeting with Mr Lee was short. Mr Lee said, " Do you understand what this agreement is about?" Julie said "yes". She says she signed the agreement and left Mr Lee's office. Surprising though her evidence was, I accept, that she was in Mr Lee's office for a very short time. She says in her affidavit she was with Mr Lee for less than 5 minutes. I do not accept that the visit was quite this short. But it was probably not much longer. It must have seemed short to her because she was unable to fill her recollection of the occasion with much detail of what he explained to her. Mr Lee did not convey to her the essentials of the pre-nuptial agreement for her consideration. She says that Mr Lee did not read through the agreement with her together nor explain anything to her. I accept her evidence. I find that she genuinely has no recollection that she and Mr Lee went through the agreement in detail.

77. There is little countervailing evidence that Mr Lee explained anything to her. Neither side adduced affidavit evidence from Mr Lee about this occasion. His certificate of independent advice attached to the pre-nuptial agreement declares that he advised her "on the rights of the parties... to apply for an order...under the Family Provision Act 1982." On the evidence before this Court I find that he did not do this. In March 2008 the solicitors for the plaintiffs asked him to "forward all papers you hold relating to..." the pre-nuptial agreement. He replied by letter saying "we have no papers or file in this particular matter". The rest of this letter does not assist in contradicting Julie's version. Mr Lee continued in the letter "I can recollect Mrs Neil attending my office, signing the binding Financial Agreement and departing our office with the document". Nothing in his letter declares a recollection of advising her. Nor is there anything that she remembered, from which the Court could infer what Mr Lee explained to her. If he did explain anything it left no impression on her and was an ineffective basis for her to "give due consideration" to the release. On this evidence I accept Julie's account that Mr Lee gave her no explanation.

78. Once made, the agreement was oddly isolated from the rest of the Chris and Julie's relationship. They completed their journey to the reception hall. They did not discuss the agreement again. It was not discussed on the following day; not discussed on their wedding day; and not discussed at any subsequent time in their marriage. I accept Julie's statement that she was not given a copy of the agreement. She never asked for copy. Chris did not arrange for her to get one. Only Mr Jacovou kept a copy. It was this document, produced from his files, which the estate advanced for the Court's approval. Chris did not seek the Court's approval of the release directly after the pre-nuptial agreement was made. Mr Jacovou apparently did not prompt him to do so. Nor did it occur to anyone after the onset of his illness.

79. A number of inferences may be drawn from these circumstances and from my assessment of Julie. The agreement was a moment of legal formality that neither of them were comfortable to dwell upon for very long, because it contemplated their divorce. So as soon as the agreement was signed, in silent consensus they banished it from their presence.

80. Julie did not appreciate until after her husband's death that the pre-nuptial agreement did more than provide for their separation through divorce. Nor did she appreciate until after his death that the agreement released her Family Provision Act rights even if they both remained married at the time of his death. This was partly because Mr Lee did not bring the independent operation of the release to her attention. To her the agreement dealt with the distasteful subject of her possible separation or divorce from Chris, a matter that was of no relevance to the life she was leading with him. Examining the agreement, even when her husband was dying, did not occur to her. These findings alone are sufficient reason for the Court not to approve the release in the pre-nuptial agreement. But further analysis is useful.

81. Family Provision Act , s 31(5)(a)-(d) provides a convenient structure for examining whether the Court should approve the release in the pre-nuptial agreement. The issue will be examined under the headings: financial advantages to Julie of her release, the prudence of the release, fairness and reasonableness of the agreement to make the release, and due consideration of independent advice. These statutory relevant considerations cover the important matters for evaluation in this case.

Fairness and Reasonableness of the Agreement to make the Release

82. Consideration of the fairness and reasonableness of the release in clause 3.2 cannot be isolated from the other terms of the pre-nuptial agreement. The agreement does not separately value the release of Family Provision Act rights. The release is embedded in a matrix of other promises exchanged between the parties controlling what would happen to the couple upon separation and divorce.

83. The release was neither fair nor reasonable for either the early or the later years of their marriage, considering Julie Neil's limited assets and that Chris Neil died with a net estate approximately $25,000,000. An agreement providing a total award of only $40,000 to Julie up to two years of marriage, $200,000 up to 5 years (which was indeed about their marriage period), or $500,000 (being 2% of his estate) up to ten years, seems inconsistent with the mutual dignity and respect their married status implies. Of course he was still free to benefit her in his future wills as he did. But that Julie should release her Family Provision Act rights in exchange for such limited promises of a guaranteed share in Chris Neil's assets was objectively unfair and unreasonable.

84. Fairness and reasonableness must be assessed over time, "having regard to all the circumstances": Family Provision Act, s 31(5). When determining whether or not to approve the release, the Court can also take into account the value of the rights that in these reasons the Court finds that Julie Neil would have but for the operation of the release as well as the fact that she made the agreement for the release. As Bryson J (as his Honour then was) said in Mulcahy v Weldon [2001] NSWSC 474 at [10], "... the question whether the Court should make an order under [Family Provision Act] s31 would lead to a consideration of the same matters as are raised by the plaintiff's claim for further provision. If when all the circumstances are considered, including the contractual arrangement for a release, the right outcome is that the plaintiff should have further provision, approval under s 31 would not be forthcoming. The fact that the arrangement was made, even though no approval under s31 had been obtained, has a bearing on whether provision ought be ordered ." The Court concludes under question 9 below that further provision should be made for Julie Neil despite her execution of the pre-nuptial agreement. The quantum of the rights the release neutralised is one measure of its unfairness.

85. Finally, unfairness arose within a short time, because the parties to the pre-nuptial agreement did not contemplate the exceptional personal and financial demands that would be placed on Julie early in her marriage. No bride would readily foresee such events or her reaction to them. Had the prenuptial agreement been readdressed even in mid 2003 the parties would have been contracting with a very different appreciation of their immediate and future personal and financial needs.

Financial or other Advantages to Julie of the Release

86. There were limited financial advantages in the release for Julie. These were the Schedule 3 promises of guaranteed benefits on separation from Chris Neil, with a ceiling of $500,000, up to ten years of marriage, with a ceiling of $1,000,000 from 11 years of marriage and with the rather dubious benefit of Chris not making a claim on her assets. These were undoubtedly an exchange of value but not one that that obviously equated to or exceeded the value of the Family Provision Act rights she was (subject to Court approval) giving up. It could not be said at any time after October 2001 that there was a financial advantage to her in the release. Her husband's assets did not diminish during this period. Her relationship with him only deepened. The present value of the Family Provision Act rights she gave up (subject to Court approval) is established later in this judgment. The quantum of those rights was substantial.

87. Nor was there any other advantage to Julie in her release of Family Provision Act rights. The analysis immediately below in relation to the prudence of the release also shows that it gave her very little non-financial advantage, as signing the pre-nuptial agreement was not presented to her as the price of marriage or of maintaining her relationship with Chris.

The Prudence of the Release

88. The release was and remains imprudent. The pre-nuptial agreement covered the whole of Julie and Chris' future married life. Indeed it looked a long way ahead, over several decades. To accept the maximum sum of $1 million after 11 years, whatever happened to Chris' assets, neither shows care for one's own interests, nor is it provident, nor is it the making of careful provision for the future. It was quite foreseeable that after being married for many years to a successful man of Chris Neil's entrepreneurial spirit that Julie's needs for capital may well have exceeded $500,000 at ten years and may well have exceed $1 million after 11 years.

89. Julie's Family Provision Act rights were an important future security for her in the event of her husband's death. Chris applied little overt pressure for her to sign the pre-nuptial agreement. Chris did not suggest, for example, that he would not marry her without the agreement. But he did expect her to sign it. As a bride in love with him she was very happy to do so. But nothing in his approach to the occasion shows that he was consciously concerned about limiting Julie's rights on his death as distinct from limiting her rights upon their separation whilst he was alive. Mr Jacovou did exactly as he was asked and drafted Chris a "pre-nup" agreement. But he gives no evidence of explaining to Chris the distinction between clauses 3.1, 3.2 and 3.3 and the rest of the agreement. Through the release, Julie gave up a great deal without Chris ever being tested as to whether this precise part of the agreement was even important to him. It may not have been. Looked at objectively, allowing for the affection that motivated her signing, it was imprudent of her to sign away the Family Provision Act rights that the law conferred on her, without her testing and knowing whether Chris was prepared to sign the agreement without the release.

90. Some situations tend to foster prudent judgments. Others do not. The request for Julie to make the judgments involved in this not simple agreement, a mere three days before the wedding she keenly anticipated, was not in my view calculated to promote her prudent judgment. If any problems had arisen out of the discussion with Mr Lee, Julie did not present to the Court as the sort of person who was prepared to confront and resolve them so close to her wedding. Thus the lack of prudence that resulted from the agreement does not surprise.

Due Consideration of Independent Advice

91. There are two questions here. Did Julie get independent advice? And did she give that advice due consideration? Both these questions should be answered in the negative.

92. Julie did not get independent legal advice in October 2001 about the release of her Family Provision Act rights. Julie's version of her contact with Mr Lee before the prenuptial agreement was signed is convincing. She says that she was only interested in the effect that the document might have in the event that she and Chris were divorced. This was the only possibility she contemplated. In a penetrating and effective cross-examination Mr Blackburn-Hart SC pressed her with the suggestion that she was aware of clause 3.2. But I accept her denial of this awareness. Both she and Chris were healthy at the time. She then had no reason to foresee the medical difficulties and the grief, which were to follow within a few years. She says that she did not attend to the aspects of the prenuptial agreement that dealt with Chris's possible death or her possible death. I find that Mr Lee did not bring them home to her.

93. Julie conceded in cross-examination that she was well aware that the agreement would bind her even if she did not read it. The estate argued from this that she was really prepared to take the risk that there might be something in the pre-nuptial agreement that did not suit her but which would nevertheless bind her. But the power of the estate's argument is limited by her generally poor understanding of the effect of the agreement. Legal concepts mentioned in the agreement were put to her and she disclaimed an understanding of them. I found her evidence on this subject quite credible. I accept her disclaimer. She did not understand those concepts either at the time of the hearing or I infer at the time she signed the prenuptial agreement. This is especially true of paragraph 3.1, 3.2 and 3.3 of the agreement, the existence of which were not brought home to her.

94. Nor did Julie receive any financial advice about the prenuptial agreement. Chris dictated its terms. Julie accepted them. She did not negotiate. She had little idea of the value of Chris Neil's properties listed in the agreement at the time she signed. She had little idea of the value of his shares in listed and unlisted companies. She did not ask for or receive financial advice about the commercial wisdom of the agreement or about the financial value of the legal rights she was releasing. Mr Lee could not give such financial advice to Julie as a lawyer, given the limited information he had. The kind of worldly experience and natural independence of mind that might prompt some to ask for financial advice at such a time was not naturally hers, from what I observed in Court. Nor did the circumstances, a mere three days before the wedding, with the general ambience of happiness of that time, dispose her to request and consider relevant financial information. Family Provision Act , s 31(5)(d) does not limit the scope of the "independent advice" relevant to the Court's consideration of approval of a release to just legal advice. It can include independent financial advice. Julie did not have this kind of advice, even though the circumstances here called for it.

95. Objective features of the occasion support Julie's case that such advice as Mr Lee did give her was not adequate for her to give it "due consideration". I accept that after Mr Jacovou arranged her to see Mr Lee that she took the draft agreement with her to the interview. Mr Lee did not have an opportunity to examine the agreement before their meeting. There is no evidence that he sought any background or financial information on her behalf before the meeting, for example about the net value of the assets Chris owned, in order to advise her about the wisdom of executing the agreement. As he did not have the pre-nuptial agreement before the meeting he would not have known what to ask for in order to advise her. There is no evidence that he sought any such information after his conference with Julie. I infer that he did not. He only met with her once, the day she signed. I have already found on the evidence before me that his legal advice was inadequate. There was insufficient legal or financial advice given to Julie about the release for her to have given it "due consideration".

96. There was disputed evidence in the hearing about the practice of solicitors, expert in family law, when advising on pre-nuptial agreements of this character. There is no suggestion in these proceedings that Mr Lee was not generally competent and experienced. Mr Lee's advice to Julie was said by the estate to be in accordance with the practice of family law practitioners. Julie's counsel said the advice was inadequate. This dispute was of marginal significance to the matters in issue. The relevant statutory consideration here is whether Julie "has given due consideration" to the advice about the release in the pre-nuptial agreement: Family Provision Act , s 31(5)(d). On that issue I have already found that she did not.

97. Accordingly in exercise of the court's jurisdiction under Family Provision Act s31 I decline to approve the release in clause 3.2 of the pre-nuptial agreement and I dismiss the cross claim.

(4) Beneficial Ownership of the Penshurst Property

98. The parties disputed the beneficial ownership of a property in Penshurst St, Penshurst ("the Penshurst property"), which was acquired in 1986 and transferred to Chris Neil as registered proprietor. The plaintiffs contended that he held it on resulting trust for Sandlix as the trustee of the Sandlix Trust (which trust was also formerly known as "Chris Neil's Glazing Trust") and is now controlled by Julie. The estate contended that Chris held beneficial ownership in the Penshurst property himself. If that contention were correct, the Penshurst property would fall into residue. Otherwise it falls under Julie's control. The question in dispute is decided by determining whether Chris or Sandlix funded the purchase of the Penshurst property. There is evidence pointing both ways. Inferences from documents are important but not decisive in resolving this question.

99. The applicable law is clear. Where a purchaser of property pays a vendor and directs the vendor to transfer the property into the name of another without consideration passing from that person, there is a presumption that the transferee holds the property on trust for the purchaser: Napier v Public Trustee (WA) (1980) 32 ALR 53 at 158, per Aickin J, (Stephen J, Mason J and Murphy J concurring; see also Charles Marshall Pty Limited v Grimsley [1956] HCA 28; (1956) 95 CLR 353, at 364 and Calverley V Green [1984] HCA 81; (1985) 155 CLR 242, at 246-247 per Deane J. The contest here is whether Chris Neil or whether Sandlix, as the trustee of the Sandlix Trust provided the consideration for the purchase of the Penshurst property. The history of the transaction resolves this contest.

100. The purchase of the Penshurst Street property settled in June 1986. On 13 June 1986 the solicitors acting on the purchase reported to Chris Neil, not Sandlix, on the settlement. They described the transaction as "Your purchase from Modern Interior Linings Pty Ltd" and addressed the letter of report directly to him in his own name, "Mr C.G.Neil". The letter addresses Chris Neil throughout in the second person, as the client, without the addition of any reference to his holding the Penshurst property on behalf of any other entity. The letter foreshadows that the Penshurst property upon acquisition would, upon acquisition, be registered in Chris Neil's own name, as indeed it was. When on 28 April 1986 these same solicitors had asked him for a cheque for stamp duty they addressed him personally in similar terms.

101. Some of the evidence of this purchase suggests that the Sandlix Trust funded the acquisition. The Sandlix Trust was constituted by a deed of settlement made between one John Hyde and Chris Neil's Glass Service Pty Ltd on 3 June 1980. Chris Neil's Glass Service Pty Ltd was the first trustee of this trust. But on 1 October 1983 Chris Neil replaced it and appointed Sandlix as trustee of the trust. From then on the Trust seems to have informally used the name, "the Sandlix Trust" and is so described throughout these reasons, except where documents actually use the former name, as they do from time to time.

102. The Sandlix Trust's financial statements refer to the acquisition of the Penshurst property during the 1985-6 fiscal year. The Trust's balance sheet and notes show that the property was acquired in the 1985-6 financial year and was held in the accounts at a cost of $139,574.31. The property does not appear in the Trust's balance sheet in the previous financial year. The solicitor for the purchaser reported to Chris Neil upon the application of the purchase price of $135,000 and upon various adjustments to the price. There is little doubt that Chris Neil paid the deposit on the purchase of $13,500 with his own cheque, as on 18 April 1986 he was given a receipt in his own name for $12,500 from the vendor's agent for the balance of deposit. I infer from this receipt that he also paid a holding deposit of $1,000 to the agent himself. The Penshurst property was carried in the Sandlix Trust accounts at a cost of $139,574.31, exceeding the purchase price of $135,000 by a margin of $4,574.31. The differential is accounted for in part by the stamp duty of $3,215.50 and by legal costs of $850. The rest undoubtedly comprised other sale related disbursements.

103. The estate submits that Chris Neil intended to hold the property beneficially. It submits the property was not only purchased in Chris Neil's name but it remained so held for over 20 years. There is no evidence of Chris initiating steps to have the property transferred into the name of the trustee of the Sandlix Trust. Hurstville City Council regularly issued notices to Chris Neil himself for municipal rates on the property. Insurers also at times issued insurance premium notices in Chris Neil's own name.

104. The estate submits that this contradictory evidence is to be reconciled by inferring that Chris Neil initially wanted Sandlix to be the purchaser but that he changed his mind and decided to become the purchaser himself. But I do not think this analysis is correct.

105. There is sufficient contemporaneous evidence upon the sale and in the years afterwards to show that Chris Neil intended that the Sandlix Trust be the purchaser and that he arranged the funding for the purchase to conform to that intention. The contemporaneous evidence does not as decisively favour Chris Neil's beneficial ownership of this property as the estate submits. Although the vendor's agent gave a receipt to Chris Neil for $12,500 of the deposit on 18 April 1986, the same agents had written to both the vendors' and purchasers' solicitors on 5 April 1986, clearly nominating "Sandlix Pty Limited" as the purchaser. Chris Neil must have told the vendor's agent that Sandlix was the purchaser in early April 1986. The issuing of a receipt for the deposit in Chris Neil's own name is merely a ministrative matter that may well have been done by a junior staff member of the vendor's agent. Such a receipt is: not in my view a reliable reflection on Chris Neil's instructions as to the identity of the purchaser; and, is only likely to indicate the identity of the drawer of the cheque for the deposit that Chris Neil provided to the vendor's agent.

106. But there is no doubt that Chris Neil acquiesced in the title being transferred into his name and in receiving correspondence from his solicitors addressed to him personally. The question is does this conduct show that (1) he had changed his mind and now wanted to purchase the property himself beneficially or (2) was he now content for the transfer to go forward in his name but for him to hold as trustee for Sandlix. The evidence strongly suggests the latter for the following reasons.

107. First, the creation of the Sandlix Trust's financial accounts at the end of 1985-6 financial year, referring to the acquisition of the Penshurst property by the trust cannot be reconciled with the view that he changed his mind between about April and June 1986 and decided to acquire the property himself. A short time later, in about August 1986, when the Sandlix Trust accounts were being prepared, he went to the trouble of instructing his accountants to record the property as not belonging to him but to the Sandlix Trust. There is no persuasive hypothesis available that these instructions came from anywhere other than Chris Neil.

108. Secondly, documents subsequent to the purchase, and to which Chris Neil must have given his close attention, are strongly consistent with the Sandlix Trust being the purchaser. In September 1987, Chris Neil gave directions on behalf of Sandlix to his solicitors to deliver the title deed for the Penshurst property to his bank. This direction shows that his solicitors understood that the beneficial owner of the property was the Sandlix Trust, notwithstanding their earlier correspondence about the property addressed to Chris Neil himself. Chris Neil leased the property later in 1987. All the instructions to the leasing agent confirm the lessor was Sandlix Pty Limited. Moreover, the correspondence between lessor and lessee of the property show that the lessor was assumed to be Sandlix Pty Ltd (even though the form of lease is not available). All the lease correspondence with the agents refers to the lessor as Sandlix Pty Limited. When the property was leased again in 1990 Sandlix Pty Limited was named as the lessor. Chris Neil must have personally approved these leasing transactions and drafted some of this correspondence.

109. From time to time repair work was done to the property. One such invoice in August 1988 shows that the repair work was invoiced to Sandlix Pty Limited. Again, either Chris Neil or someone on his instructions would have had to nominate to the tradesmen a particular recipient of the invoice and would have had to make a conscious decision about who was liable to pay for the work done. For a number of years the Sandlix Trust put in returns to the Office of State Revenue as the owner of the Penshurst property for assessment under the Land Tax Management Act 1956. This occurred over a number of years with assessments (often coming in at nil) being issued for the years up to 1990. Chris Neil himself signed a land tax return in January 1987 in respect of the property, a little over six months after the purchase. In this return he declared that the property was owned by the Sandlix Trust, but using the Trust's former name "Chris Neil's Glazing Trust". He declared that statements in the return were "to the best of my knowledge and belief, true, accurate and complete in every particular". Making such a declaration to a public authority is inconsistent with Chris Neil having decided to acquire the property beneficially himself.

110. Thirdly, other documents that were in fact addressed to Chris Neil in his own name after the purchase are largely to be explained as routine documents, which did not call for him to make a decision about the distinction between his legal ownership of the Penshurst St property and his or Sandlix's beneficial ownership. For example, rate notices and insurance premium notices could be left in his own name, as he was the registered proprietor even if Sandlix was the beneficial owner. But these notices are more consistent with the view that he owned the property

111. Fourthly, the evidence of Chris Neil's accountant from 1992 onwards, Mr Kenneth Lonnon is a strong basis to infer that the Penshurst property was owned and operated by the Sandlix Trust. Chris Neil's instructions to Mr Lonnon after 1992 made clear to Mr Lonnon that both client and accountant were to work on the basis that the Sandlix Trust, not Chris Neil, owned the property beneficially. I accept this evidence.

112. The estate contends that the way that Chris Neil treated the property in schedule 1 of the pre-nuptial agreement favours its position. Fifteen years after the purchase of the property, Chris Neil included the Penshurst property in Recital F and Schedule 1 of the pre-nuptial agreement, describing it as part of his "assets and financial resources". The schedule refers to Sandlix Pty Limited, which owned other assets in its own right. But the Sandlix Trust is not mentioned. Schedule 1 provides:

" SCHEDULE 1

This schedule comprises of the assets and financial resources of Christopher Gregory Neil as at the date hereof:

Real Property

Penshurst Street, Beverley Hills

Stacey Street, Bankstown

Stoney Creek Road, Beverley Hills

MacDonald Street, Cronulla

Shares in Private Companies

Flat Glass Holdings Pty Limited ACN 001 757 099

Railpad Pty Limited ACN 078 449 742

Sandlix Pty Limited ACN 002 644 162

Blixta Griffiths Pty Limited ACN 064 063 663

Australian Technology and Inventions Pty Limited ACN 001 757 099

Shares in Listed Companies

Peptech Limited

Superannuation

Engadine Glass Superannuation Fund"

113. But Schedule 1 of the pre-nuptial agreement is consistent with the Sandlix Trust, not Chris Neil being the beneficial owner of the property. The Trust is not referred to at all in Schedule 1, which listed Chris Neil's "assets and financial resources". The expression "financial resources" is apt to cover a property owned by a trust for which he was the appointor, without the trust being specially identified in the list. I do not infer from the form of Schedule 1 that Chris Neil was claiming to own the Penshurst property legally and beneficially himself.

114. Finally, the plaintiffs contend that it is to be inferred from the Sandlix Trust's 1985-6 accounts that the Trust's accountants posted journal entries on Chris Neil's instructions crediting his loan account with the amount of the deposit, which had been paid, and debited the same amount as part of the cost of the property's acquisition. The plaintiffs submitted that this is what the accountants did and also that Mr Jacovou admitted this in evidence.

115. I accept that this seems to be the explanation that best fits the Sandlix Trust's financial accounts at the time but it is not a perfect fit. The Trust's liabilities to Chris Neil rose from $11,000 to $95,644.86 between the 1984-5 and 1985-6 financial years. The difference of $85,000 is consistent with Chris Neil advancing a substantial part of the purchase price as a loan to the Trust. This loan to the Trust accounts for how Sandlix funded its beneficial ownership of the property. The estate points out that Chris Neil's Glass Service Pty Limited also repaid a debt of $100,000 to the Trust that year. But this is not necessarily inconsistent with the Trust funding the purchase itself.

116. But I do not accept the plaintiffs' contentions that Mr Jacovou admitted in cross-examination that the balance sheet shows that this is what happened. In my assessment of Mr Jacovou giving evidence on this subject, his answers to a somewhat subtle cross-examination were merely statements of his opinion about the logically possible inferences from the Sandlix Trust's balance sheet, rather than admissions that the purchase price was in fact paid from the Trust. Mr Jacouvou did not act for Chris Neil or the Sandlix Trust in 1986. He had no personal knowledge of the accounting entries in 1986. He was a lawyer, not an accountant and was in no better a position than the Court to assess the possible inferences from the balance sheet. The admission was of no weight against the estate.

117. On this reasoning I conclude that Chris Neil held the Penshurst St property on trust for Sandlix as the trustee of the Sandlix Trust. In my view, much of the difficulty with this issue seems to be explained by Chris Neil giving instructions to his accountants about the Sandlix Trust's beneficial ownership of the Penshurst property over the years but not sharing the same full information with his lawyers, including Mr Jacovou.

(5) The Relationship between the Plaintiffs and Chris Neil

Julie Neil

118. Julie Neil's care for her husband for three and a half years between April 2003 and September 2006 met the very highest standards of commitment between spouses. I accept her evidence and that of all the plaintiffs' witnesses on this subject. Some of this evidence will be detailed shortly. This evidence cannot all be set out in length but some examination of what Julie Neil did during this period, often assisted by her mother, is necessary in this section in order properly to evaluate her claims. The estate does not contest the factual accuracy of her account. The estate rightly submits that it is not appropriate for the Court to examine the services that Julie Neil provided to her husband "to reward past services" but rather the estae points out the jurisdiction is "to provide for deserving persons according to their requirements" : see Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, at 137 per Windeyer J. The injunction from Fullagar and Menzies JJ in the same case (at 134) must also be observed, "...good conduct and honest worth are not to be rewarded by a generous but second-hand legacy at the hands of the Court."

119. But an appreciation of some of the detail of this evidence is important nevertheless for a different reason. Its importance is in assessing one of the relevant considerations that the estate emphasises to the Court is a basis to dismiss her claim. The consideration is that Julie Neil's marriage to Chris was a short one of approximately five years. The estate rightly says that this is a factor that would tend to diminish her claim upon Chris Neil's testamentary bounty. And the estate's argument is that that her claim is so diminished by this and other factors, including the benefit that she already enjoys under the 2003 will that her claim should be dismissed. But the estate's argument must be qualified by an understanding of the intensity of the last three and a half of those five years of marriage during his illness. In my view as much of the most testing side of married life was actually concentrated into those three and a half years as would be experienced in many far longer marriages. The principal sources of this vew are: the medical evidence, the nurse who cared for Chris, Julie Neil's own evidence, and that of her family.

120. The medical evidence is an important starting point. The medical professionals who had contact with Julie and Chris Neil give an objective account of the high level of her commitment to her husband during this period. They give an account of what was a fight to maintain his dignity despite his steady medical decline in 2005 and early 2006.

121. Chris Neil saw many doctors after his illness struck. They were his general practitioner Dr Kit Lim, his surgeon Dr Bernard Kwok, Associate Professor Peter Graham, his oncologist and Dr Peter Boers, his neurologist. Their medical reports over this period present pattern of Julie Neil's very close involvement in Chris Neil's care and welfare. She brings him to his medical appointments. She gives a complete medical history to the doctors. She takes and carries out instructions to administer to Chris the right levels of anti-epileptic and other medication. This was critical to maintaining the right balance between keeping him seizure free and not allowing him to become over sedated. She questions each of the doctors within their disciplines about improving the quality of her husband's care. She is with him for his frequent hospital visits and admissions. Her mother often assists her in these tasks.

122. The medical professionals themselves especially identify her level of care. I accept their accounts. Dr Boers observed that Chris was increasingly dependent upon Julie and that she had accompanied him at each medical consultation sometimes assisted by Mrs Nicholas. He said " the nature of Christopher's illness meant that he was extremely dependent on others to help him transfer, and also for feeding, and Julie provided a lot of assistance for Christopher" .

123. Dr Graham said that his recollection was "Mrs Neil was extremely supportive and caring as far as I can recall. She was almost always in attendance at his appointments". He added the following:-

"We had Julie Neil listed as Mr Neil's wife and next of kin. Our notes and correspondence do not always comment on whether Julie Neil was present when we saw Mr Neil, however my recollection is that Mrs Neil was extremely supportive and caring and as far as I can recall, she was almost always in attendance at his appointments. For most of Mr Neil's illness, Mr Neil was dependent upon Julie for most of his daily activities. He always required assistance for mobilisation and for at least eighteen months prior to his death, was unable to walk and was essentially wheelchair bound. Although palliative care support had been offered for much of his illness, our records indicate that Mrs Neil, with the assistance of some family and friends, was self-reliant in providing his care. The last correspondence from our clinic in July 2006 indicated they had moved to Mrs Neil's mother's place.

Once again, my recollection is that Julie Neil provided constant support, compassion and physical care to Mr Neil throughout the three and a half years of illness. His care requirements during this time were considerable."

124. The contemporaneous medical records show that Julie Neil refused palliative care services for Chris. Instead she opted for the more difficult course of looking after him herself. This was possible with the assistance of her mother, Nancy Nicholas and her two brothers Geoff and Paul, and a nurse, Louise French. How they achieved giving him this home care, what assistance came from his family and the overall implications for his wellbeing are best understood by dividing the evidence about the period between the onset of his illness and his death into three periods; from illness until his brain haemorrhage in July 2003, from August 2003 until the birth of Charli in August 2005; and, from September 2005 until his death in September 2006.

125. April to July 2003. Julie was with Chris at hospital when he was told of the biopsy results and of his tumour. He was defiant at the prognosis and said to her, "Sweetie, we will fight this thing together." He was exhausted from the early chemotherapy and mostly slept at the hospital. He agreed to have his sperm taken for Julie to have a child.

126. Chris was discharged from hospital after about three weeks. But he was still very unwell. He was quiet and appeared to her to be depressed. She fed him and gave him his daily medication at the Cronulla Apartment. Chris' sister, Frances Bobowski, a nurse, helped look after Chris as soon as he was out of hospital, and showed Julie some basics of patient management. Julie gave up work and saw her main role as making him as comfortable and safe as possible. Julie often had to return with him to hospital in the next few months from time to time to deal with infections and other medical events.

127. One of these events was his pulmonary embolism in June 2003 that hospitalised him for two weeks. During this period Chris went off his chemotherapy and became more talkative than he had been since April, expressing his gratitude to her for her continuing care, "You saved my life by looking after me" and "I would not be alive if you were not there for me, I owe you my life."

128. Julie took Chris away on a holiday to the Hilton Hotel in Cairns for four days to help him recover from his early chemotherapy. That was in fact the last holiday that they both had away together.

129. Julie managed her husband's care this way at the Cronulla apartment until his severe intra-cranial haemorrhage in mid July 2003, which hospitalised him again and caused him brain damage, which changed the nature of the care that Julie then needed to provide him.

130. In the short period between April and July 2003 that Chris was speaking normally but weak from chemotherapy and with memory problems, he asked Julie to assist him by taking notes at business meetings about his real estate investments, which she did for a period, whilst he was still able to do business.

131. August 2003 to August 2005. Much of the struggle for Chris Neil's future care took place after he emerged from his induced coma in August 2003. Julie wanted him discharged into her care. Some of the more conservative medical advice to Julie at the time was that Chris would have to "go into a home" because she "would not be able to look after him" . Julie persisted. With medical and occupational therapist support he was discharged into her care but not this time at their Cronulla apartment. They stayed with Julie's mother, Nancy at her home in Sylvania Heights. This was necessary because by now he needed 24-hour care and supervision. Julie could not provide this alone.

132. Much was done to improve Chris Neil's environment at Sylvania Heights to aid his rehabilitation. Julie set up a gym in the garage. She set him a daily program of exercise, speech therapy training and rest. The risk of him trying to get up and then fall and his inability to assist in his own feeding, showering and toileting meant that he had to be constantly supervised. Julie and her mother cooked and cut up his food, showered, dried and dressed him. He was not mobile. So they both had to lift and seat him to aid showering toileting and sleeping.

133. On weekends this program paused for a trip to the Lakes Golf Club to practise putting for an hour or so to add some variety to his rehabilitation, and to have lunch at the golf club. Julie's brother Geoff assisted on these outings.

134. Chris Neil's dysphasia could mislead the casual observer. The medical evidence was that his brain function was still good despite his speech impairment over this period. But he still had trouble communicating. Julie acted as an interpreter of his fractured speech and either intuited or probed as to all his wishes and needs. She says of this time, "It's a strange thing but when you know someone you realise you can communicate without speech and we were just on the same wavelength which was very special in that we were connected. When anyone talked to Chris he would look to me and I would finish his sentence." In infer that such constant support increased Chris Neil's quality of life.

135. The small indications right up until early 2006 were that Chris could think about and express his preferences to Julie quite well. One simple one of these was his long-standing preference not to spend money on private parking. Right up until February 2006 when travelling with Julie in the car, he would point to free parking space in the street to discourage her from paying for private parking.

136. The period until the end of 2003 saw the same routine: the resumption of Chris Neil's radiotherapy, more seizures, occasional respite for Julie, some assistance from Jack Jacovou and then Christmas Day 2003, with all Chris' family invited to attend.

137. The year 2004 required the same base-load of work of Julie and her mother. But the load began progressively to increase. Effectively housebound, Julie continued to give intensive assistance to Chris. She was tired in part from rising up to seven times a night to attend to his restless needs.

138. By March 2004 Chris had urinary incontinence by night and soon also by day. By June 2004 he had total urinary incontinence and occasional bowel incontinence. Julie and her mother washed him, changed the sheets or his clothes and employed various strategies to keep his dignity intact after these episodes.

139. With the increasing burden of daily work, Julie decided that she needed more dedicated assistance. In April 2004 she hired a private nurse to help her. A remarkable feature of this history is that it took 12 months for Julie to take this step. Whether it was fear of giving his care to a non-family member or a slow realisation that her own and her mother's efforts would eventually be overwhelmed by her husband's daily needs is unclear. But she engaged Louise French to nurse him at home. Julie had originally been Louise French's personal trainer at the gym where Julie worked. Louise had helped in his nursing care at St George Hospital and then accompanied them both to a regular weekly Monday visit to the Southgate shopping centre and to lunch. Then after mid 2004 she commenced helping Julie on Fridays with all Chris' needs, including feeding, toileting, washing and dressing him. By September 2004 Louise French was helping 10 to 15 hours per week, giving Julie the opportunity to get away for herself for about 10 hours a week. Not surprisingly in these circumstances Julie and Louise French developed a close friendship.

140. Julie was reluctant to put Chris in respite care. In May 2004 she accepted a kind offer from his sisters, Frances Bobowski and Anne Dorrington to look after him, so she could go for a short holiday to Hong Kong. They did so. It is not contested that this was done on this occasion but not again before he died.

141. In about May 2004 the initiative for the couple to have a baby came from Julie. Chris was keen on the idea from the first. They commenced IVF treatment together. IVF planning, the possibility of a baby, and the further workload that would be involved, led to a proposal to rebuild the home on Mrs Nicholas' Sylvania Heights property better to accommodate Chris.

142. Other routines that were important to Chris were adopted during 2004. Before April 2003 he liked to breakfast with the friends he trained with at the gym. This routine was restored on Tuesday mornings. On Wednesday morning he attended church at St Aloysius Cronulla. I infer from the evidence that Julie was not particularly religious when she married Chris but she took him to Mass each Wednesday morning to his local parish because it was important to him. Her weekly support to him in this continued up until his death.

143. In November 2004 Julie, Chris and her mother moved back into the Cronulla apartment. This was a temporary measure whilst a new home was built at the Sylvania Heights property. The new property was designed to accommodate a wheel chair and had other disabled access and space features and was eventually completed in December 2005. At the Cronulla Apartment Julie, her mother and Louise French continued their routines. But Julie's brothers assisted more now especially in moving Chris.

144. Although Chris was being reviewed by Dr Boers approximately three monthly, by 2005 his rehabilitation was not progressing. As a result Chris found much of his rehabilitation frustrating. Julie selectively agreed to allow some therapies to be discontinued. In doing so she was required to make a difficult judgment between keeping him free of frustrating tasks and keeping open the possibility of managed improvement in his condition. Julie made enquiries of a number of rehabilitation specialists. But none of them were able to offer her or Chris any hope that rehabilitation was likely to be effective. After a number of specialists gave her the same message Julie accepted this. But she continued with her own less formal program of providing Chris with social stimuli through the various external routines in which she involved him that have already been described in these reasons.

145. September 2005 to September 2006. Chris was excited by Charli's birth in August 2005 and despite his disabilities he quickly formed an attachment to his new daughter. Her birth changed the focus of the household at the Cronulla Apartment. Chris enjoyed watching Charli and Julie. He would sometimes bottle feed Charli with Julie's direct assistance.

146. In December 2005 the enlarged family, of Chris, Julie, Charli, Nancy Nicholas and Julie's two brothers Geoff and Paul Nicholas moved back into the by then completed Sylvania Heights house and kept up his routine there.

147. Charli's baptism was an important event for Chris. He enjoyed attending at the ceremony on 23 March 2006 at St Aloysius at Cronulla, when Julie too was baptised. Andrew Neil and Louise French became Charli's Godparents and Chris became Julie's Godfather.

148. By March 2006 Chris seemed to become much more tired. In February 2006 his capacity to keep the tumour at bay had impressed Dr Kwok. But in March Chris did not want to go out to his and Julie's usual breakfasts any more. He spent far more time sleeping. He had trouble holding his head up. As Julie's workload increased with both Charli and Chris, she became more dependent on assistance from her mother, from Louise French and from her brothers.

149. In the last six months of his life Chris was wholly incontinent. Julie and her mother had to change his bedclothes more than once per day during this period. He would also vomit unpredictably and need to be cleaned up. Julie responded to this with equanimity and with a single declared objective. "My job was always to make Chris feel good about himself and that nothing at all was a problem." I accept that she achieved this objective. Louise French explained in evidence that Chris understood what was happening and was himself embarrassed and upset by his episodes of incontinence. Distracting him from the random indignities of his situation, overcoming his resistance to medication and to being undressed, were constant challenges for Julie and for Louise French in particular.

150. Despite his steady decline Julie wanted to keep Chris at home with her and with Charli for as long as possible. Her evidence is that even in this late period in his life, when awake, he was alert and often smiling. In June 2006 when Chris suffered his deep vein thrombosis he was in hospital for over two weeks being stabilised. By then he spent most of each day asleep but Julie brought him home again until his final admission to hospital on 11 September 2006, before he died on 18 September 2006.

151. Chris Neil's siblings played an important role in this period too. Their relationships with Chris and the tensions that appeared to exist between them and Julie are analysed later in these reasons.

152. One conclusion to be drawn from this account of the last three and a half years of Chris Neil's life is that Julie Neil was determined to stay close to him and give him the best life experience that his disabilities permitted. She succeeded in this. She succeeded by sacrificing her autonomy and by assiduous attention to his needs.

Charli Neil

153. Chris Neil was clearly devoted to his daughter Charli. I accept Julie Neil's affidavit and oral evidence about his relationship with Charli. I infer from this evidence that despite the effects of his illness he accepted and welcomed the idea of having a child and was delighted when Charli arrived in August 2005. Several parts of this evidence stand out: his agreement that Julie start on the IVF program; his excitement when he was told Julie was pregnant with Charli: his impossible wish to stay at the hospital with Julie after Charli's birth; and finally the pleasure he found in sharing time with Julie and Charli. Also Louise French took Chris to the hospital to see Julie and Charli after the birth. She says, and I accept, that on that occasion, "Chris lay in Julie's bed and greeted all the visitors that walked in with an air of pride with a smile on his face." None of this is very surprising in light of the evidence from both Julie and from Chris Neil's old business friend and bachelor companion, Nigel Lapping, who both said that before his illness he was openly expressing opinions about he and Julie planning to have children. I infer from the evidence that despite his difficulties in communicating in speech, that Chris Neil was quite conscious that he had fathered Charli by IVF techniques and was proud of his daughter.

(6) Julie Neil's Assets and Income

Assets

154. Including her present entitlements under the will, Julie has the assets set out in the following table:-

Sandlix share capital (after tax valuation)	$4,226,509
Sandlix Trust (the Penshurst property)	$407,025
McDonald Street, Cronulla	$2,000,000
Stanley Street, Peakhurst	$285,000
AMP superannuation (valued in December 2008)	$3,840.46
MLC superannuation (valued in December 2008)	$7,024.75
Westpac savings account	$230,000

155. The Stanley Street Peakhurst property was a property that Julie owned before her marriage to Chris. The question of the ownership of the Penshurst Street property was determined under issue 4 above. If Sandlix is not wound up and does not incur taxes then its value is agreed at $6,042,706.00.

Plaintiffs' Income

156. Julie's taxable income for the year ending 30 June 2009 was $164,000 on which tax of $51,948.80 (plus a Medicare levy of $2,473.08) was payable. Thus that year she had an after tax income of $109,650. Her net weekly income therefore was a little over $2,100 per week.

(7) Julie Neil's Average Weekly Expenditure

157. Julie's average weekly expenditure presently exceeds her weekly income taking into account her expenditure on more necessary items. I accept the evidence that on a combination of the following items she currently spends $2,804 per week. The items are: medical insurance, dentistry, GAP contingencies, clothing, shoes etc, beauty, hairdressing, manicures, gardening, house keeping, osteopathy, gym membership, mobile phone, strata fees, electricity, rates, insurance, Foxtel service, air conditioning, security and Stanley Street Peakhurst expenses. In addition to that her expenditure on Charli is $332, made up of food, medical insurance, dentistry GAP contingencies and clothing and shoes etc. These totals combine to $2,804 per week or $145,808 per annum.

158. In addition to this expenditure on what could be described as "necessaries" Julie Neil has incurred expenditure on some luxury items for herself and for Charli and has continued to do so on a weekly basis not met by her income. These luxury items include: restaurants, cafes and entertainment ($500), travel, fares ($270-$400), accommodation ($400) and other travel costs ($200), and gifts ($300-$600) making a total in the range of $2510-$3140.

159. For Charli some luxury items are claimed as well. These include for restaurants, cafs and entertainment ($200), for travel, fares ($270-$400), accommodation ($400), other travel costs ($200) and gifts ($100) making for Chalri a total in the range of $1170-$1300.

(8) Proper Level of Weekly Expenditure by the Plaintiffs

160. The claim Julie made in these proceedings on her own account is based in part on the lifestyle that she enjoyed with her husband when he was alive. This generated much of the debate between the parties. The lifestyle that Julie maintained that she wished to continue to enjoy was expensive. The weekly and monthly levels of expenditure based on the description of her expected lifestyle, founded her claim for a capital sum to continue that lifestyle into the future for herself and for her daughter Charli. Julie divided her claim into various components, which are set out under the headings below, where relevant findings are made for each component. The components are food, medical expenses, clothing, travel, motor vehicle, gifts, accommodation, household assistance, education expenses, beauty expenses and maintenance. But firstly it is necessary to consider what standard of living it is appropriate for the Court to take into account in relation to Julie and Charli.

Applicable Legal Principles

161. The applicable legal principles are clear. In assessing what is "proper maintenance" it is relevant for the Court to take into consideration the standard of worldly maintenance to which a testator has accustomed a dependent during the testator's lifetime: Re Buckland (deceased) [1966] VicRp 58; [1966] VR 404 at 414. If a testator has accustomed a daughter "to live in luxury of a child of wealthy man there would be an obvious hardship in requiring her to change her mode of living" ; this would tend to favour a more liberal assessment of the moral duty owed by the testator to his child to be reflected in what was "proper maintenance": Re Buckland (deceased) [1966] VicRp 58; [1966] VR 404 at 414. The Court's jurisdiction is limited by a claimant's need for maintenance and support; but the maintenance and support which the claimant may for this purpose be treated as needing "is that appropriate to his or her station or condition in life": Re Buckland (deceased) [1966] VicRp 58; [1966] VR 404 at 415. Adam J further explained in Re Buckland (deceased) [1966] VicRp 58; [1966] VR 404 at 415:-

"For a child, particularly a dependent daughter of an exceptionally wealthy father, the standard of maintenance may justly be set high ensuring a degree of comfort and freedom of anxiety for the future which for those not so circumstanced might well seem extravagant, but it should fairly come within the exception of maintenance and support. The greater the estate the more may contingencies, even remote contingencies which may arise in the future be provided for in the assessment of such maintenance."

162. In Luciano v Rosenblum (1985) 2 NSWLR 65, Powell J said in relation to a widow, at 69G:-

"It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies."

163. In my view the Court can take into account the lifestyle led by a claimant with a testator in determining what is a proper standard of maintenance education and advancement in life. That is implicit in determining in Powell J's words in Luciano, "the style to which she is accustomed". On the other hand the Court is not to approach the assessment of what is proper by attempting precisely to replicate the way of life that a testator and a claimant widow planned to have had he survived.

The Actuarial Case

164. The plaintiffs case was that it was possible to project the future maintenance costs for Julie and Charli Neil into the future and to discount those costs to a proper capital sum. Julie Neil gave evidence about these expenses. Later in these reasons the detail of this evidence is summarised. The plaintiffs' accounting expert Mr Shields undertook the actuarial calculations projecting these costs into the future measured by Julie Neil's life expectancy. As the estate rightly point out these calculations are just mathematics unless the assumption is made that Julie Neil's evidence is credible and these sums will be incurred. I have made findings below about whether these projected amounts represent proper amounts for Julie Neil's future maintenance. Some of them I regard as excessive, others not.

165. A similar actuarial projection was undertaken by Mr Shields in respect of the acquisition of a house property for Julie Neil, or what was described as a "Housing Benefit" of $6 million in today's dollars together with the associated costs of maintenance of the property acquired at $25,000 per annum.

166. Mr Shields undertook these calculations at various discount rates, from the risk free rate of 2% up to 5%. Mr Shields undertook a similar exercise with respect to Charli's maintenance needs. This was split into two time periods, up to age 21 and beyond the age of 21. Mr Shields also undertook an actuarial calculation assuming a similar housing benefit for Charli but in the sum of $3,000,000, together with similar costs of maintenance, on the basis that her proper maintenance and advancement in life would require such a provision to be made to her.

167. The estate called another accounting expert, Mr Hayward, who pointed out some discrepancies in Mr Shields' calculations. But Mr Shields and Mr Hayward were able to agree upon the mathematics of their calculations, which for 2% and 5% discount rates were as follows:-

2% Discount Rate

5% Discount Rate

Charli Neil

-Education

414,280

320,405

-Maintenance to until Age 21

1,754,875

1,385,903

-Maintenance After Age 21

6,459,268

2,111,304

-Housing

3,667,327

3,218,125

12,295,751

7,035,738

Julie Neil

-Maintenance

8,168,358

4,952,097

-Housing (Schedule 4)

6,775,192

6,464,231

14,943,550

11,416,328

Totals

27,239,301

18,452,066

168. Mr Hayward's concerns about Mr Shields' calculations were mostly not of an order of magnitude that will make any material difference to the judgment the Court has to make. He pointed out for example that Mr Shields had taken the high end of various ranges of expenditure given in Julie Neil's affidavit. In my reasoning below, such matters are taken into account.

169. One matter of greater financial import that Mr Hayward pointed out was that Mr Shields had not credited the sale proceeds of the Cronulla apartment against the Housing Benefit to be provided to Julie Neil. As I find below when the components of the expenditure are analysed, I agree with this criticism by Mr Hayward of Mr Shields' calculations.

170. There was a degree of false precision in the mathematical forward planning of both Julie and Charli's future lives to enable the actuarial calculations of future expenses. This is not surprising. The Court of Appeal recently cautioned about the limits of usefulness of such material: Tchadovitch v Tchadovitch [2010] NSWCA 316 and pointed out features of the use of such evidence: at [74], there are insurmountable difficulties in making an accurate calculation of the amount that will make proper provision for certain needs of a person for the rest of their life; at [71] particularly where the applicant has decades to live actuarial calculations could not be anything more than a check or guide; at [75], it can be part of the task of the judge fixing a Family Provision Act award to make a judgment about whether and if so to what extent that a discount table is of assistance in assessing what is proper provision; at [56], the choice of the appropriate methodology to use in arriving at the quantum of the provision is a matter of judicial discretion exercised in light of the facts, evidence and submissions in the particular case; at [68], it may be appropriate to use the actuarial calculations as a check on the methodology followed; and at [73] the Court may not give any further analysis or explanation of such evidence than to say that it was taken into account.

171. There were also general difficulties with the assumptions behind this actuarial evidence. Julie did not anticipate that Charli's needs would change in the course of her adult life. There was no consideration given in the calculation as to the possibility that Charli might marry and be supported in a way that meant that Julie's calculation of her ongoing needs became irrelevant. Another example is the issue of whether or not Charli would go to university. It was assumed that she would do so. But there was little in either Chris or Julie's background, which would suggest that this was likely.

172. Many parts of Julie's evidence showed that there was room for economies in the way she maintained herself. None of these economies were built into the forward calculation of expenditure on herself and Charli. Realism requires that some economies would be appropriate. Chris Neil had built his assets over time with close attention to the value of money. Some features of this outlook survived within an otherwise reasonably opulent lifestyle. For example, he had a strong distaste for paying parking fees of any kind. Analysis of the individual components of Julie's and Charli's actuarial claims is now useful.

Food

173. Julie divided her claims in respect of food into general food costs and extra food costs associated with restaurants, cafes and general entertainment. As to the general food costs she claimed $250 for herself for life and for Charli $250 until aged 21 and thereafter $300 per week. In relation to restaurants, cafes and general entertainment Julie claimed $500 per week to cover the cost of purchasing breakfast, lunch and dinner and paying for guests on such occasions. Similarly she claimed for Charli $200 per week until age 21 for such expenses and thereafter $500 per week for breakfast, lunch and dinner modelled on the same expenditure pattern for Charli in the future as Julie proposed to enjoy herself.

174. The basis for this claim was that Julie's evidence was that Chris was in a habit of spending at least $60 to $70 per week " on one breakfast alone ", and they would go out to breakfast three or four times a week, lunch and dinner four to five times a week spending $100 to $150 on the lunch or dinner. By any standard it was a high level of entertaining. Chris rather than Julie set this standard. Before they were married he enjoyed dining out this often. His habit became their joint lifestyle.

175. Under cross-examination Julie Neil conceded that some of the figure of $500 per week included purchasing groceries for her mother. I accepted some of her oral evidence on this subject was inconsistent with her affidavit. I do not think she can possibly be spending up to $950 per week on restaurants and groceries with expectations that it will increase. Nevertheless, something in the order of about 40-50% of which she is claiming appears to me to be reasonable for her proper maintenance.

Medical Expenses

176. Julie claimed medical insurance and dentistry and orthodontist expenses together with gap cost contingencies and medical prescriptions and pharmaceutical expenses. In relation to medical insurance Julie claimed $3,600 per annum for herself and for Charli after the age of 21. The dentistry claim was for $10 per week for dental treatment, with an additional one off expense of $7,000 for Charli for orthodontic work during her teenage years. For each of them gap cost contingencies, medical prescriptions and other pharmaceutical needs were claimed at $30 per week for life.

177. The estate criticised this claim principally in relation to the orthodontic care for Charli which was included. The claims for medical insurance the estate thought were unremarkable. It is probably too early to ascertain whether or not Charli will require orthodontic care but the provisions as a contingency seems for her proper maintenance to be reasonable. It is one of the contingencies for which Julie would be probably expected to provide at some stage.

Clothing

178. Julie claimed a constant $50,000 per annum for her own clothing needs for the future and for Charli a similar figure ($30,000 - $50,000) after the age of 21. For Charli this figure progressively increased from pre-school age at $5,000 per annum, primary school age at $7,000 per annum, and secondary school age at $9,000 per annum.

179. The executor challenged this claim his claim on the basis that it was excessive. I agree that this claim is excessive. Julie Neil under cross-examination had difficulty in identifying the precise basis of her estimate for both her own and Charli's clothing needs. Julie Neil did concede that these clothing figures were merely "estimates". In my view they are not demonstrably accurate in respect of current expenditure. A figure about 50% of what is claimed for Julie is appropriate.

180. For Charli herself a future figure of about 40% of her estimate would be appropriate. For Charli during her schooling years I agree with the estate's submission that the figures are overstated. However it is difficult to say they are overstated by more than 50% for those years. Charli's expenses after school years are so uncertain that I do not think that they can be dealt with in the way proposed by the plaintiff in Mr Shield's report. The calculations are done on the basis that Christopher Neil would have expected to support his daughter for the rest of her life. I do not accept that this is the proper way for provision for Charli to be calculated.

Travel

181. Julie's claim for travel was based on the standard of holiday travel that she says was set with Chris during their lifetime. This travel Julie claimed comprised two substantial overseas trips each year for herself and for Charli. To quantify this claim Julie claimed business class airfares of $14,000 - $20,000 for herself and Charli twice a year. The accommodation for these holidays was costed at five star resorts for 21 nights at approximately $1,000 per night for each of herself and Charli. Other travel costs on these holidays for each of them were budgeted at $10,000 each.

182. The executor challenged these figures. There are several obvious problems with them. Separate accommodation for Charli, certainly up to the age of 18 does not seem reasonable if she is travelling with her mother. The executor also challenged the need to pay for accompanying adult airfares and adult accommodation. Julie pointed out that this was so she could take away the private nurse, Louise French, who had assisted in Chris Neil's last years and who assisted in Charli's care. Such a claim is reasonable for a number of years while Charli is under the age of 18 but not on a permanent basis.

183. The other problem with the travel figures raised by the executor, which I accept, is that the claim is inconsistent with the demands of Charli's schooling. Whilst it is not impossible for a child at school to take 2 trips a year, flying business class and staying at 5 star resorts, in my view proper provision for the plaintiffs' and Charli's maintenance would mean more reliably one trip per year, and possibly from time to time two. Planning on two trips a year would be inconsistent with Charli's continuous schooling. The estate also argued that Julie and Christopher Neil only planned 3 trips and went on 2 during their marriage. But I accept Julie Neil's evidence that her husband was keen to travel with her and they did go on two trips in the short time they were married and he was able to take such journeys. Travel expenses of this kind are in my view a proper part of Julie and Charli's maintenance. Again in relation to Charli this is not the kind of expenditure that would be justified at the expense of her father as proper maintenance, past her mid to late twenties.

Motor Vehicle

184. In addition to annual running costs, which have not been quantified, Julie also claimed the cost of a motor vehicle: every three to four years for herself at $80,000 per vehicle; and, for Charli from the ages of 17 to 21 a vehicle worth $60,000 and thereafter a replacement vehicle costing $50,000 every three to four years.

185. The executor raised issues with this claim. One of those issues which overlaps with the issues raised on the other claims is the question of the extent to which the estate should fund Charli's living expenses for the rest of her life.

186. I do not think that Julie Neil's claim is particularly excessive under this heading. The estate took issue with the expensive nature of the motor vehicles which it was assumed would be turned over about every 3-4 years at a cost of $80,000 per vehicle. A proper standard of maintenance for Julie Neil does in my view involve the provision to her of a safe and reliable motor vehicle every 3-4 years. Mr Shields' calculations have already allowed for trade in value of such a vehicle.

187. In relation to Charli I do not think it is reasonable for a proper standard of maintenance to expect the testator to provide a vehicle for her beyond about the age of 30 by which time she could be expected to have made her own way in life. Replacement costs of a vehicle for Charli in that time of the kind sought would not be unreasonable as proper maintenance.

Gifts

188. Julie's claim provided for gift giving during her own and Charli's lifetime. For herself Julie claimed $5,000 to $10,000 to provide gifts for each of three categories of gift, birthdays, Christmas and other occasions. Progressively increasing and leading up to her 18 th birthday the claim for Charli was divided into the same gift categories allowing for the total of $9,000 per annum divided as to $3,000 per annum for birthdays, $3,000 for Christmas and $3,000 per annum for other occasions.

189. This claim was also criticised by the executor. Julie Neil's claim for spending $5,000 - $10,000 per year on gifts was not clearly substantiated on the basis of any clearly identified present expenditure. It was really advanced as what would be a proper standard of expenditure for Julie Neil under this head. Its lack of present substantiation makes it difficult to justify such a figure. For Julie a figure of about 40-50% of this figure for life seems to me to be proper.

190. In relation to Charli, in my view it is proper to make provision for 40-50% of the figure claimed up to about the age of 25. As with other expenditure claimed for Charli, it is not part of providing for a proper standard of maintenance for her for her father to fund this kind of life expenditure all her life.

Accommodation

191. The largest claim that Julie Neil made was that for housing benefit, for accommodation for life for herself and for Charli. She said that she would need a house worth approximately between $5 million to $10 million, opting for the lower end of that range at $6 million. The plaintiffs also clamed that Charli should be in a position to purchase a $3 million property at the age of 21.

192. Despite the executors' attack on this claim, in my view it has some merit as part of, what is proper for Julie Neil's advancement in life. I accept Julie Neil's statement that she plans to send Charli to a private Catholic girls school and that she has specific plans to send her to Kincoppol - Rose Bay. It is likely that by the time Charli starts school that it will be necessary for Julie Neil to move from Cronulla closer to where Charli will go to school. It will be necessary to purchase or rent a property, close to the proposed school at that time. An allowance for the purchase of such a property is in my view one for Julie Neil's proper advancement in life. But it is not reasonable for this allowance to be in addition to the Cronulla apartment Julie has received under the will. If Julie wishes to move closer to Charli's school she could be expected to purchase a comfortable home reasonably close to the school. From the inquiry that were made I would be prepared to allow a figure of about $6 million for such an acquisition, but credit the proceeds of sale of Cronulla against this cost figure. The proper allowance for this future expense is then of the order of $4,000,000.

Care and Household Assistance

193. This claim for household assistance was not closely quantified. Julie said that she would require the services of a nanny from the time she commenced studying and especially from the time when Charli commenced her schooling until about the age of 15. Julie also said that she would require a housekeeper and a babysitter. Thus Julie's claim was for the wages, superannuation, living costs and daily travel allowances of a nanny for Charli together with wages and superannuation for a housekeeper.

194. The executor challenged this claim on the basis there was no evidence from Julie Neil that she is or will be unable to care for Charli. But the claim was really based upon the possibility of Julie Neil attempting to undertake some further study. There is little doubt that at her age and at Charli's age that her undertaking of further study will impact directly upon her day to day care of Charli and her support for Charli's schooling. Whilst both a full time housekeeper and full time nanny would not be justified as part of proper maintenance, partial allowance for both of these would in my view be justified, a figure of approximately 50% of that claim would be appropriate for the period of the claim.

Education Expenses

195. Julie's evidence was that she wanted to send Charli to the Eastern Suburbs Catholic Girls School, Kincoppal at Rose Bay. The claim was quantified based on the current fee structure of Kincoppal, Rose Bay commencing at the school's early childhood centre and progressing through to primary school and then secondary school. On top of the claim for tuition fees throughout Charli's schooling Julie claimed: $4,000 to $5,000 per annum for excursions, exchange programs and tours with school bands until the age of 18; extra curricular activities and after school tutors at $40-$60 per hour rising from two hours per week in year 7 to six to eight hours per week in year 12; and sporting, ballet, piano and gymnastics activities at $5,000 per annum from age 5 to age 18.

196. Although the effect of Julie's evidence was that she had her heart set on sending Charli to Kincoppal, Rose Bay. Her evidence was that she had not reserved a place for Charli the school by the time of hearing. The executor argued that this meant that Julie had no intention to send Charli to the school.

197. It is also true that Julie Neil had not made inquiries of any Catholic girls schools such as Santa Sabina, or Loreto Kirribilli, or St Vincents in respect of private schooling fees or in respect of any other Catholic parish school. I am not sure this particular defect in inquiries has significant implications for the case, as these other schools are located in expensive parts of Sydney. Although I had some initial doubts about this part of Julie Neil's evidence, because of her failure to book Charli in to a school of her declared choice, looking at her evidence as a whole I accept what she says about this as representing her genuine plans and intentions.

198. The claim was based on Rose Bay Kincoppal's fees and an estimate of other school related expenditure which is not demonstrably excessive. In my view it is a proper standard of provision for Charli's education for the future.

University

199. Julie's case was that she wanted Charli to have the benefit of a University education, assuming that she was capable of undertaking it. The cost of university fees, books, computers and other costs was consequently also claimed.

200. An issue under this head was whether or not this is a reasonable expense given the proven aspirations of Chris and Julie during their marriage. It is quite unclear at such a young age whether Charli will wish to have a university course or whether she will be capable of such a course. But some provision such as this for her to undertake some form of tertiary study, is an appropriate contingency to allow for in providing for her proper education.

201. The executor has referred to HECS- HELP loans to be taken into account in reduction of this claim. But even these have to be paid back over time and are not a basis, in my view for reducing this estimate of proper educational expenses.

Beauty Expenses

202. This claim consisted of two general categories, personal grooming expenses for Julie and Charli and some general expenses for maintenance. As to the personal grooming claim, Julie claimed $100 per week for facials and skin products, $250 per week for hairdressing (with a further $250 every six weeks) $100 per week for nails and manicures, $100 per week for a spa bath and massage. The same claim was made for Charli progressively increasing up to the age of 18 and then from the age of 18.

203. Discounted by about 50%, this claim in my view represents proper provision for Julie Neil. But I would not regard anything more than a nominal amount for Charli for this.

Maintenance

204. Under this general heading, "maintenance", came a number of different items. Julie claimed for herself and on behalf of Charli $10,000 to $20,000 per annum for jewellery including watches, with this annual amount increasing progressively up to the age of 18 for Charli, and then continuing.

205. Other general expenses for yoga, veterinary bills and gardening were put at $200 per week for Julie for life and the same amount for Charli after she turned 21.

206. The executor closely challenged this claim, especially its jewellery aspect.

207. The estimate of jewellery in this claim was based on an estimate of the cost of jewellery purchased by Chris Neil for Julie Neil. The executor submits that jewellery is not appropriately regarded as part of "maintenance, education and advancement in life". But Chris Neil did buy his wife jewellery. She was accustomed to that. Some allowance can be made. I would allow between 20-30% of this claimed amount. The other non-jewellery expenses were not obviously excessive.

(9) Whether the Provision for Julie Neil was Adequate and if not what provision should be made?

Applicable Principles

208. Statutory provisions. The relevant statutory provisions of the Family Provision Act engaged by the plaintiffs' application are set out below. Each plaintiff qualifies as an "eligible person" entitled to make a claim against the estate of the testator under Family Provision Act s 6 .

209. The statutory provisions that give the Court its jurisdiction and guide the exercise of the Court's discretion are relevantly the following.

"7 Provision out of estate or notional estate of deceased person

Subject to section 9, on an application in relation to a deceased person in respect of whom administration has been granted, being an application made by or on behalf of a person in whose favour an order for provision out of the estate or notional estate of the deceased person has not previously been made, if the Court is satisfied that the person is an eligible person, it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person.

9 Provisions affecting Court's powers under secs 7 and 8

(1) Where an application is made for an order under section 7 by an eligible person who is such a person by reason only of paragraph (c) or (d) of the definition of eligible person in section 6 (1), the Court shall first determine whether, in its opinion, having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application and shall refuse to proceed with the determination of the application and to make the order unless it is satisfied that there are those factors.

(2) The Court shall not make an order under section 7 or 8 in favour of an eligible person out of the estate or notional estate of a deceased person unless it is satisfied that:

(a) the provision (if any) made in favour of the eligible person by the deceased person either during the person's lifetime or out of the person's estate, or

(b) in the case of an order under section 8:

(i) if no provision was made in favour of the eligible person by the deceased person, the provision made in favour of the eligible person under this Act out of the estate or notional estate, or both, of the deceased person, or

(ii) the provision made in favour of the eligible person by the deceased person either during the person's lifetime or out of the person's estate as well as the provision made in favour of the eligible person under this Act out of the estate or notional estate, or both, of the deceased person,

is, at the time the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person.

(3) In determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person, the Court may take into consideration:

(a) any contribution made by the eligible person, whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to:

(i) the acquisition, conservation or improvement of property of the deceased person, or

(ii) the welfare of the deceased person, including a contribution as a homemaker,

(b) the character and conduct of the eligible person before and after the death of the deceased person,

(c) circumstances existing before and after the death of the deceased person, and

(d) any other matter which it considers relevant in the circumstances."

210. The present case raises questions under both Family Provision Act s 9 and s 7. If a finding were to be made that some order for provision should be made to either plaintiff then Family Provision Act s 11 gives a broad range of remedial choices to the Court.

211. General law. The legal principles that apply to the jurisdiction that the Court is called on to exercise in this case are not controversial. They have been succinctly summarised by Brereton J in a recent decision of Taylor v Farrugia [2009] NSWSC 801 where his Honour said:

"[9] Applications such as these under the (NSW) Family Provision Act 1982 for provision out of the estate of a deceased person, have been described by the High Court of Australia in Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 as involving a two stage approach. The first requires the determination of the jurisdictional fact whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life, and the second - which arises only if the first is resolved affirmatively - involves the discretionary assessment of what provision ought to be made out of the estate for the applicant. However, as the High Court explained, similar considerations inform both stages of the process:

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, et cetera, 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.

[10] Because the considerations relevant to both stages overlap in this way, consideration of an application under the Family Provision Act does not always divide neatly into the two questions, as Callinan J and Heydon JJ pointed out in Vigolo v Bostin [2005] HCA 11 ; (2005) 221 CLR 191, 192. Nonetheless, in an application under the Act, the court must consider, first, whether the plaintiff is an eligible person; secondly, whether the plaintiff has been left with inadequate provision for his or her proper maintenance, education and advancement in life; and thirdly, if so, what (if any) provision or further provision ought to be made out of the estate for those purposes. The relevant principles and considerations were summarised by McClelland CJ in Eq, in Re Fulop (dec'd) (1987) 8 NSWLR 679 at 679:

In making these determinations, the following principles apply: First, the Court should not interfere with the dispositions in the will except to the extent necessary to make adequate provision for the plaintiff's proper maintenance, education and advancement in life. Secondly, the expression "proper" in this context connotes a standard appropriate to all the circumstances in the case, and thirdly, the Court may take into consideration any matter (whether existing or occurring before or after the death of the deceased which it considers relevant in the circumstances, including (a) the nature and quality of the relationship between the plaintiff and the deceased, (b) the character and conduct of the plaintiff, (c) the nature and extent of the plaintiff's present and reasonably anticipated future needs, (d) the size and nature of the estate of the deceased, (e) the nature and relative strength of the claims to testamentary recognition by the deceased of those taking benefits under the will of the deceased, and (f) any contribution, financial or otherwise, direct or indirect, by the plaintiff to the property or welfare of the deceased.

[11] It is important also to bear in mind the principle articulated by Young J, as his Honour then was, in Stewart v McDougall (New South Wales Supreme Court, Young J, 19 November 1987, unreported), in explaining that the court's role is limited to making adequate provision for an eligible person's proper maintenance and advancement:

It is important to state what the Family Provisions Act permits a Court to do and what it does not permit a Court to do. The Act recognises that Australians have freedom to leave their property by their will as they wish with one exception. The exception is that a person must fulfil any moral duty to make proper and adequate provision for those whom the community would expect such provision to be made before they can leave money as they wish. Thus, in these cases, one does not ask if the will is fair, one does not ask if the testatrix divided her property equal, one does not as a judge ask how would I have made a will had I been the testatrix. What must be asked is did the testatrix fail in her moral duty to those who have a claim on her. Even if the Court comes to the view that the question should be answered in the affirmative, the Court still does not remake the will, but only alters it to the extent adequate provision is made for the eligible person in respect of whom the testatrix failed in her moral duty."

212. It is now necessary to apply these principles. Chris Neil made his own judgment about the changes that time made to his relationship with Julie. He made his 2001 will contemporaneously with the pre-nuptial agreement, which restrained neither him nor Julie from changing their wills. When he made his final 2003 will 18 months later he markedly increased the benefit conferred on Julie. In addition to the Cronulla apartment she received under the 2001 will she received the Sandlix shares, and her husband's cars and jewellery and personal effects. But in my view the provision that he so made for her was inadequate.

213. The estate submits tat the plaintiffs claim should be dismissed on several grounds and that the plaintiff does not have a need for more than what it is submitted is an additional $8 million in capital above the resources that she brought into the marriage. I do not agree with this submission for several reasons.

214. It is said that the marriage was a short one. But as I have already found it involved an intensity of difficult experiences that would not be found in much longer marriages. Also the parties had a close personal relationship of an additional approximately three years. All together the shortness of the relationship is not a factor that should be counted against the plaintiff.

215. It is said that Julie Neil has not contributed to the acquisition, conservation or improvement of any of the estates' assets. Other than for a short period as homemaker during and before their marriage this is not a factor that weighs in Julie Neil's favour.

216. It is said that Julie Neil is comparatively youthful and in good health. Julie Neil has both these qualities. Her good health will be important to Charli's future upbringing. At 41 Julie Neil has reached middle age. She still is comparatively young. But her comparative youth in her case brings with its disadvantages of business inexperience. She struck me in the witness box as somewhat unworldly, and someone who still has much to learn. Her youth is not an unquantified advantage.

217. It is said that Julie Neil intends to return to the workforce. Whilst this is true, her actual earning capacity is unknown. All her earnings history before her marriage were in the gym and personal training area, a field that it is to be expected she is less likely to be able to pursue at her present age or older. Apart from this her actual work history is quite narrow and at a very junior level. She expressed an interest in learning more about real estate investment and management but her actual abilities in this filed are untested. I do not count any significant capacity to earn income as a significant resource for her.

218. It is said that Julie Neil will be relieved of expenditure if the Court orders further provision for Charli. This is correct but much of the provision for Charli is for her longer-term needs and the provision will be held in trust for Charli by Julie's brother under the orders the Court proposes. There will be some relief of expenditure here to Julie but the important capital needs of a new house in time, for example, will not be much altered by the provision of Charli.

219. The pre-nuptial agreement is also said to be a factor warranting dismissal of Charli's claim. But my findings about the circumstances of this agreement, set out in issue 3 above, mean that this matter is not a factor weighing in favour of dismissal of Julie Neil's claim.

220. Finally the estate relies upon the generous provision under the 2003 will. But I have already found that Julie Neil's proper needs for maintenance are greater than what was provided for her under the will. It is this last factor that requires closer analysis.

221. Under the will the estate submits that Julie receives the assets set out in Section 6. The figure of $4,226,509 for the valuation of Sandlix set out there is the principal variable. If Julie were to continue to run Sandlix as an investment operating company the tax would not need to be paid on its winding up and its value is agreed at $6,042,706. Thus the estate submits that she receives approximately $8 million in addition to her own resources being $2 million for the Cronulla apartment, $6,042,706 in Sandlix. The other assets are of lesser value. She has access to funds in the Westpac savings account of $230,000 and her superannuation. If she wishes to wind up Sandlix then the net benefit to Julie from the estate is more of the order of $6 million, plus her benefit in the Peakhurst property.

222. A central issue in determining whether adequate provision has been made for Julie Neil is the quality of the earnings from the properties in Sandlix. Julie has indicated a desire to retain the properties in Sandlix rather than to liquidate them, so she can enjoy the dividend stream from them and pay herself a salary as a director. But the two properties at Gartmore Avenue and de Witt Streets Bankstown are vacant land and unlikely to generate any income in the short term. They are only likely to generate income if developed. Without undertaking the risk of borrowing, there is no evidence that Sandlix has sufficient internal resources to fund the development of these two properties. It can reasonably be assumed that without a further injection of capital into Sandlix that these two properties will remain vacant and undeveloped. To generate any income from these properties they would probably have to be sold.

223. The income from the other properties is also quite uncertain. The warehouse/offices at Penshurst Street, Beverley Hills valued at $1,250,000 is currently vacant and could be rented for $88,000, but only if repairs are undertaken. The other factory/warehouse at Depot Road, Mortdale valued at $2,200,000 is rented and generating an annual income of $203,316. But the major tenant of the property is not on a long lease and there is a significant risk that it will vacate the property.

224. In my opinion this combination of capital and income in these properties is the opposite of what a widow in Julie Neil's circumstances needs. They give her what appears to be not insignificant capital but a wholly unstable income. Her own needs for the immediate and medium term future are likely to be for a stable and ample income of a kind to cover her outgoings. This could not be realistically achieved for her without selling these properties and investing the proceeds in a stable financial institution. This could theoretically be done without liquidating Sandlix. At the time of trial term deposit yields for 180 days varies between 4.35% and 6.1%. If the proceeds of these, properties were approximately Sandlix,$4,000,000, assuming an average interest rate of 5%, the fund could generate approximately $200,000 per annum before tax. This may be enough to pay the salary she had in mind but does not even on top of her existing income provide much for the contingencies of life and her expectations of a comfortable future way of life.

225. Furthermore the evidence is that the Penshurst property, which by these reasons has been found to be beneficially owned by Sandlix, not by Chris Neil, was vacant from November 2008 to October 2009. It was then rented at $4,000 per month for four months. It requires renovations of approximately $30,000 to secure a tenant. Its annual outgoings include council rates of $3,6000 per annum, land tax of $9,962.67 and water rates of $800. It is not a reliable source of income for Julie Neil. The better course may be to liquidate it and its realization value is the figure of $407,025.

226. Julie Neil's proper need for maintenance should, in light of my findings above about individual items of future expenditure, be discounted on average on the agreed experts figures to approximately 60% of the agreed $14.9 million, or $8.94 million on the 2% tables. It would slightly less on the 3% tables.

227. In my view the Sandlix properties are likely to have to be liquidated because of their poor returns and they will be valued at the lower rate to Julie of approximately $4 million. That is not adequate for her proper needs. In my view the provision contended for by the plaintiff of 65% of the Flat Glass asets is an appropriate provision for her.

(10) What Provision should be made for Charli Neil?

228. Born in 2005 Charli was not provided for in the 2003 will. The estate does not dispute that provision must now be made for her needs. The question is what is appropriate provision for her.

229. The plaintiffs' submissions in support of Charli's claim pointed to certain evidence of statements that Chris made within the last fortnight of his life in which he indicated that Charli should have the share of his estate that was to go to his siblings under the 2003 will. Julie says that he agreed with her questions to him one night "So sweetie would you want your money to go to Charli? " which she confirmed with "So you want your money to go to Charli your daughter." and then she questioned again "The properties that you have left your brothers and sisters, do you want that to go to Charli?"

230. I do not accept that this is sufficiently reliable evidence for the Court to infer that Chris Neil had changed his mind after his 2003 will to the extent that by September 2006 he wished to give the whole of the residue of his estate to Charli. I accept that Chris Neil made these statements, which are admissible through Julie's testimony under Family Provision Act s 32(2) and (3). But the Court can determine the weight that should be attributed to the statement from all the circumstances in which it was made: Family Provision Act s 32(8).

231. Very little can be taken from this evidence. The estate submitted and the plaintiffs accepted that Chris Neil had lost testamentary capacity after the onset of his illness in April 2003. In my view he probably lost it a little later than this in July 2003 when he had his intra-cranial bleed. The evidence of his reasonable intellectual and personality functioning before July 2003 is quite good. But his testamentary capacity had certainly gone long before 2006. Statements such as these from a person who had lost his testamentary capacity should be given little weight. Chris was in no mental condition to weigh up the claims of his siblings in relation to those of Charli by that time. Other circumstances of the statements make them unreliable too as they: were made in response to Julie's questions; were made late at night when he was tired; were made without his attention being drawn to the particular claims of his siblings; were made without mention of his friend Paul Rowland; and were made when his medical condition was very low.

232. Chris Neil respected and made provision in his 2003 will for people with whom he had a number of long standing relationships at the same time as he provided for Julie. His siblings were one of those relationships. Jenny Mercer, the woman who was his de facto partner for many years but who he did not marry, was another. Chris Neil's statements should not readily be taken as his abandoning a desire to make provision for all of these people who were in relationships with him.

233. In my opinion, considering the evidence, proper provision for Charli Neil as Chris Neil's daughter requires a liberal approach to her future needs: Re Buckland [1966] VicRp 58; (1966) VR 404, at 414-5. This approach to Charli's needs for her maintenance, education and advancement in life is to be inferred from many sources.

234. First, statements of Chris Neil are of some weight in setting the proper standard of maintenance for Charli. His statements to his bachelor friend from the glass industry, Nigel Lapping, who settled down about the same time as Chris, is instructive. Nigel Lapping says that Chris Neil had views about the standard of living appropriate for his future children, views that were independent of his having children with Julie. He recalls Chris saying, "I wouldn't have a child unless I could give them everything. My children will want for nothing." Whilst many people might say such things somewhat wistfully as a matter of theory, at the time he said them to Nigel Lapping, Chris Neil was in a position to make just such provision for his children. After he met Julie I accept that Chris said similar things to Nigel Lapping about the children that he openly declared that he and Julie were proposing to have together, "...I love Julie and I want children. I want my money that I've built up over the years to go to my children and for their children's benefit."

235. Second Chris Neil said similar things to Julie herself. I accept her evidence that before he was ill he said to her, on the subject of their future possible children, "I really want our children to either run our companies or take over the companies if they want to. I want them not to spend all the money on themselves but to be able to keep the properties and assets and income I've built up to pass on to future generations. I want to instil that in them."

236. Third, I infer from Chris Neil's own lifestyle that the standard of maintenance education and advancement in life that should justly be set is one ensuring a high degree of comfort and freedom from financial anxiety for Charli. His lifestyle has already been analysed in these reasons, when dealing with proper maintenance for Julie.

237. I accept the plaintiff's submissions that Charli Neil should receive a 35 percent interest in Flat Glass. I accept that a percentage interest in Flat Glass is the appropriate way to provide for Charli for the same reason that provision to Julie of such an interest is the appropriate order in the circumstances. It assists in maximising her receipts from the estate. Such an interest in Charli's case should in my view be 35%, as the plaintiffs contend. Charli's proper needs have already been analysed in these reasons. Proper provision to meet those needs is consistent with an award of 35% of the capital of Flat Glass. This is a significant discount from the projected costs of maintaining Charli but one which is as a matter of judgment necessary due to my reasoning above.

(11) Competing Claims of the Residuary Beneficiaries

238. The contrasting relationships in this case are those between Chris and his siblings. Chris was undoubtedly close to his family. This is demonstrated: by his repeated recognition of them in his several wills; by the time that he continued to spend with them; and, by the statements he made during his lifetime. His closeness to them at the time of his marriage to Julie is to be expected. He had one marriage and another relationship before Julie, both of which had not lasted. As a result his family provided important support to him over the long term. When his family were only just starting to adjust to Julie's presence in his life, he became ill. This introduced its own tensions tending to inhibit growth in a relationship of trust between her and his family. Julie and his family seem never to have fully understood one another. The evidence demonstrates hostility and suspicion between them. An appreciation of this is relevant to assessing some of the evidence in the proceedings. This section deals with the claims of the residuary beneficiaries and then says a little about the evidentiary contests in the evidence between Julie Neil and the residuary beneficiaries.

The Residuary Beneficiaries

239. Chris was the fifth of the eight children of Keith and Margaret Neil. His siblings are competing claimants under the will. Each of their relationships with Chris Neil and their financial and other personal circumstances are relevant to the Court's exercise of discretion.

240. Andrew Neil. Chris Neil's younger brother Andrew was born on 8 January 1959. He was the only sibling to give evidence. He is a pharmacist who married in April 1988 and now has two daughters, one a teenager and one about 6 years of age. He elected to not disclose particulars of his financial position, as he was not obliged to do so. I infer from this that Andrew has no demonstrable need for capital.

241. Andrew Neil's existing one seventh of the residuary estate comprising the Stacey St partnership and Flat Glass shares (being $11,421,558.00 net of tax) is $1,631,651.10. All the residuary beneficiaries are entitled to this amount upon the assumption that the residuary estate includes the Stacey St partnership and the Flat Glass shares.

242. Anne Dorrington . A number of Chris Neil's siblings did not advance evidence about their relationship with him or about their assets. His sister, Anne Dorrington was one of these. The estate put no information before the Court in which her financial position could be judged.

243. Frances Bobowski . Chris' sister, Frances Bobowski is the second of the eight children in the family. She was born on 13 November 1948. She is a registered nurse. She lives in Vancouver in Canada. She is now aged 62. She is married to Dan Bobowski ("Dan"), and they have two boys in their 20's. She was seven years older than Chris and assisted their mother to look after him. She went overseas in 1972, and married and settled in Edmonton and then Vancouver, Canada. Despite the geographical distance she maintained a good relationship with Chris, speaking by telephone about every six months, visiting him during her trips to Australia every 3 or 4 years and attended his wedding to Julie and Chris' 50 th birthday party. She is employed as a registered nurse at Vancouver General Hospital earning at the time of hearing $AUD758.84 per week. Dan is retired and receives $AUD156.98 per week from the Canada pension plan. Frances and Dan Bobowski's combined assets at the time of the hearing were $AUD1,698,172.89 and their combined liabilities $AUD282,453.58 leaving net assets of $1,415.719.31. Her current weekly expenditure at the time of hearing was $AUD2,709.03. Frances' husband is two years older than her and they are both in good health.

244. Sandra Blessington . Chris' sister Sandra is the third of the eight children in the family. She was born on 21 November 1950 and is presently aged 60. She married John David Blessington ("David") in October 1971. They have two boys who are in their 30's. Like the other siblings, apart from Andrew, Sandra Blessington's affidavit was read without objection. Sandra and David Blessington have assets of $2.64 million. They live on a 23 acre property in Wilberforce on which they are building their home. At the time of trial they had spent $700,000 on building the home and estimated that it would cost a further $100,000 to complete it. They ran a small number of cattle on the property. They are both retired and receive a combined annual gross income of $233,500 mainly comprised of pension drawings from superannuation entitlements. Their combined annual expenditure is $64,000 per annum. Both Sandra and David Blessington are in good health although she requires extensive dental work, which she is told will cost in the order of $15,000 to $20,000. It is Sandra Blessington's intention to use her share of Chris' estate to fund her and her husband's retirement.

245. Craig Neil . The youngest of Chris Neil's seven siblings, Craig, was born in January 1964. He is presently aged 47. He was married in November 1992 and he and his wife have three children, two girls and a boy who are all older than the age of 14. He did not wish to disclose his financial position to the Court. He studied podiatry in the 1980's but became apprentice as a glazier in Chris' business ("Chris Neil's Glazing"). He worked energetically for his brother, working even as a young apprentice without supervision and without overtime, often running the business alone on weekends. Other family members worked for the business as well.

246. Vincent Neil . The fourth eldest of Chris Neil's siblings, Vincent, was born in December 1952 and married in 1975. He and his wife have three children aged between 27 and 34. Vincent and his wife live at Hamilton South and have combined assets of $1,385,000 and combined liabilities of $263,000 leaving net assets of $1,222,000. Vincent and his wife operate a small property restoration business in Newcastle and their combined annual income is $130,000. Their combined annual expenditure is $80,143.62. Vincent Neil is in his late 50's and his wife in her mid 50's. His wife is in poor health and unable to work in the family business. It has been necessary to employ another staff member for the business at $38,480 per annum. Vincent had hoped to retire at the age of 65 but difficult economic conditions for the business means that he now believes he will have to continue to work beyond 55 and expand the business in the hope that his wife can retire early and fund his partial retirement. He was anticipating using money from Chris Neil's estate to make these financial plans work more smoothly to the advantage of himself and his wife to permit their retirement within a reasonable period.

247. Paul Rowland . Apart from his siblings in his last will Chris Neil benefited a childhood friend, Paul Rowland. Paul was born in March 1956 and is almost 55. He met Chris at primary school when they were both about 10 years old. Their close friendship continued throughout childhood into adulthood and until Chris' death. When Chris married his first wife Jo in 1975 Paul Rowland was Chris' best man. Chris was Paul Rowland's best man when he married in 1984. Paul was Chris' best man again when Chris married Julie in 2001. Paul Rowland is not well off. His and his wife's combined assets are $360,000. Paul Rowland suffered a significant financial reverse in October 2006 as a result of the retail business operated by them and other family members being placed in administration. In order to meet those liabilities they sold their home, $1.775 million in order to meet liabilities associated with the failed business. Paul Rowland is a builder and his wife is employed full time as an office manager. His net weekly income is approximately $1,000 and his wife's is $500. Their combined weekly expenditure, including rent paid in amount of $700 per week, is $1350. They are only just making ends meet. They are required to save money to live with his wife's parents and to pay rent and contribute to household expenses to them in order to assist in discharging the continuing liabilities associated with the failed family business. Their teenage son is still wholly dependent on them and will be for some years to come. Paul Rowland wanted to retire at 55 but thinks that that is now out of the question, although working in his chosen occupation as a builder he anticipates will become increasingly difficult as he ages. Paul Rowland has a significant need for capital at this time of his life.

248. Thus in summary, in varying degrees Chris' siblings Vincent, Frances and Sandra all have demonstrable need for capital at this time of their lives, as does his childhood friend Paul Rowland. As to the other siblings whose financial positions are not the subject of evidence the principles that apply were stated by Ormiston J in Anderson v Teboneras [1990] VicRp 47; [1990] VR 527 at 535, "it has been accepted over many years that, if a beneficiary says nothing as to his or her financial position or other claims on the testator's bounty, then the court is fairly entitled to assume that the beneficiary has no special claim other than that relationship and that, in particular, he or she has adequate resources upon which to live."

249. A way of reconciling the competing claims of those of Chris Neil's siblings, who are in greater need of capital, with Julie Neil's requirement for further provision from his estate would be to break the equal distribution among the residuary beneficiaries that Chris Neil settled upon in his 2003 will. I have decided not to take this course for two reasons. First, in a plainly thoughtful 2003 will Chris Neil decided, apart from increasing the provision he had made for Julie, to equalise the previously unequal distribution of his estate to his siblings, and to Paul Rowland. Although he appreciated the different needs of his siblings and Paul Rowland he still valued equality among them as important. The will should be disturbed only to the extent necessary by the Court's orders in these proceedings. Secondly, the argument for differentiating among the residuary beneficiaries would be the greater if as a result of the Court's orders and as a result of maintaining the principle of equality that the residuary beneficiaries with the greatest need for capital were still left with unsatisfied financial needs. But after the Court's orders in these reasons, increasing the provision for Julie, the most needy of the residuary beneficiaries will still receive a substantial provision and not much less than the adequate provision that Chris Neil had left them under the unaltered 2003 will.

Factual Disputes between Julie and the Residuary Beneficiaries

250. Counsel for both sides generally avoided cross-examination on the factual disputes between Julie and the residuary beneficiaries. They were right to do so. These disputes were not a weighty consideration in the Court's reasoning an it has not been necessary for the Court to decide any of them. But some brief examples of the nature of these disputes are warranted. Not all of these disputes are covered here, only a few examples.

251. Frances Bobowski says that Julie Neil stopped talking to her later in 2005 but Julie says that she did not. Others of Chris' siblings repeat similar allegations. It seems that there was undoubted hostility between Julie and Chris' siblings. Given the material that appears in Julie Neil's own affidavit about her husband's siblings, it is not difficult to understand that hostile words passed or non-communication occurred on both sides during his illness. Looking at the situation objectively it is not difficult to infer that this occurred. The pressures towards misunderstanding were high. Julie and her family were taking a great degree of control over Chris which had a natural tendency to exclude his siblings about which they would be resentful and which in turn was likely to lead to bitterness on her part for their perceived lack of understanding. I am prepared to assume a degree of truth in what is said by Frances Bobowski and others about these matters.

252. Vincent Neil said that he visited Chris more frequently than Julie acknowledged in her evidence. There was a dispute about the frequency of his and other family members visits to Chris. There seems little doubt based on her own affidavit evidence that Julie had formed an adverse view of most of her husband's siblings. This distorted the accuracy of her evidence about them, on issues about their interest in and care for and visits to their brother, which I regard as the least reliable part of her evidence. How far this distortion occurred it is difficult to say. But I have discounted Julie Neil's evidence in my assessment of her husband's relationships with his siblings.

253. Some family members were critical, at least indirectly, of the quality of care that Julie provided to Chris. On this issue there is no reliable evidence to support the inference that Julie Neil's care for and decisions about her husband's medical care were anything other than reasonable and appropriate.

(12) Other relevant matters

254. The plaintiffs urged the Court under Family Provision Act s 9 (3) (d) that it could, taking into account "any other matter that it considers relevant in the circumstances..." in considering whether or no to make an order under the Act, have regard to certain correspondence sent on behalf of the estate. That correspondence put in issue Charli's paternity by Chris. No evidence in support of this allegation was advanced in the proceedings. It was expressly abandoned at trial. It was conceded that Charli is an eligible person under the Family Provision Act and I have so found. In these circumstances it seems to me that the raising of the issue can be ignored. I do not take it into account.

255. It has taken some time to prepare these reasons. This Family Provision Act case presented an unusually large number of issues each of which required separate analysis for the Court's decision. It is often possible in cases of this kind to give a more sweeping view of the evidence than has been done in this matter. But this well presented and well-argued case on both sides required close consideration to the detail of the medical, personal and expert actuarial evidence analysed in these reasons.

Conclusions and Orders

256. In the result the Court does not approve under Family Provision Act s 31, the release of rights by Julie Neil under the pre-nuptial agreement made between her and Chris Neil on 17 October 2001. The Court also finds that the Penshurst Street, Penshurst property was owned beneficially by Sandlix not Christopher Neil. The Court has further found that adequate provision has not been made out of the estate of the late Christopher Neil for the proper maintenance, education and advancement in life of each of Julie Neil and Charlie Neil. The Court will order that provision should be made out of the estate of the late Christopher Neil by leaving a gift of 65% of his shares in Flat Glass Holdings Pty Limited to the Second Plaintiff Julie Neil, in lieu of the gift made in clause 5(a)(iv) of the will dated 17 April 2003.

The Court will further order that provision should be made out of the estate of the late Christopher Neil by leaving a gift of 35% of his shares in Flat Glass Holdings Pty Limited to his brother in law, Geoffrey Neil, to be held by him in trust for the First Plaintiff, Charli Neil. The Stacey Street property will continue to be administered as part of the residue of the estate.

257. There may be other matters that the parties wish to address in the final form of orders to be made. So I will direct the parties to bring in short minutes of order to give effect to these reasons.

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Amendments

15 Mar 2011 Typographical errors Paragraphs: Various

24 Mar 2011 After the words: "... to the Second Plaintiff Julie Neil", insert the words: ", in lieu of the gift made in clause 5(a)(iv) of the will dated 17 April 2003". Paragraphs: 256