Frank v Angell [2024] NSWSC 158 is a family provision claim concerning the estate of Max Frederick Willis (the Deceased), a former solicitor and long-serving New South Wales Parliament member. The deceased was known for his philanthropic efforts in the Solomon Islands, including funding healthcare and education for individuals from less privileged backgrounds.
Claimants Sharon Frank (SF) and her husband, Kim Hagie (KH), along with their three children, were beneficiaries of the deceased’s support while living in his home at the time of his death. Although the deceased left SF $50,000 for her education and provided additional financial assistance and housing, SF had stopped her studies before his death.
The deceased had a background in assisting individuals from overseas in obtaining tertiary education in Australia. The appellant (KH) arrived in Australia in 2012 under an arrangement with the Deceased to facilitate KH’s education and employment in Australia. The arrangement included the Deceased lending substantial amounts to KH on very favourable terms and KH residing at the Deceased’s house (the “Caringbah Residence”) while performing household chores.
In 2015, after KH failed to complete his studies, the Deceased extended loans to enable SF (KH’s spouse) to come to Australia and pursue studies to become a teacher qualified to Australian standards. The appellants’ three children relocated to Australia between 2017 and 2019 and resided at the Caringbah Residence. The Deceased characterised his support to the appellants as “assistance but not charity or handouts.”
The Deceased passed away on August 18, 2021. In his final Will, dated December 3, 2019 (the “Will”), the deceased bequeathed $50,000 to SF
“to be utilised by her for her education and the settlement of her and her immediate family in Australia at the time of my death.”
The deceased also forgave any debts owed to him by any individual at his death, including the appellants’ debts totalling approximately $80,000. He mandated that anyone residing at the Caringbah Residence could continue living there rent-free for a period not exceeding twelve months following the Deceased’s death, with his estate covering all statutory fees and utility costs. The remainder of the Deceased’s estate was allocated equally among his four children.
The claimants sought $300,000 to $450,000, arguing they were dependents or had a close personal relationship with the deceased. However, the deceased’s financial assistance was loans, and their relationship was primarily due to the arrangement for rent-free housing. Additionally, the deceased compensated KF for any help she provided.
Ultimately, the Court dismissed any claim for additional provisions, as the deceased had already made generous provisions for his immediate family, and the claimants did not qualify for further assistance under the relevant legal requirements. The Court awarded costs against them.
The Appeal
In Frank v Angell [2024] NSWSC 158 Rees J determined that the appellants did not qualify as eligible persons under either section 57(1)(e) or (f) and concluded that the appellants had not demonstrated factors justifying the application under section 59(1)(b) as they were not a natural object of testamentary consideration.
Furthermore, Rees J found that the Deceased had provided adequate provision under section 59(1)(c) in his Will for the appellants’ proper maintenance, education, or advancement in life by considering the factors listed in section 60(2) of the Succession Act.
In Frank v Angell [2024] NSWCA 264, the appeal was rejected by Stern JA, Bell CJ, and Gleeson JA. The main issues in the appeal included:
1. Whether the primary judge erred in concluding that the appellants had not shown sufficient factors for the application under s 59(1)(b) of the Succession Act and the standard of appellate review applicable.
2. Whether the primary judge mistakenly determined that the deceased made adequate arrangements for the appellants under s 59(1)(c).
3. Whether the primary judge provided insufficient reasons for her findings.
Stern JA concluded that the primary judge’s reasoning was adequate and straightforward, dismissing the appellants’ criticisms as demanding unnecessary detail.
Adequate Arrangements
Stern JA would dismiss ground 2 for the following reasons.
Firstly, as evident from the email dated May 23 2012, the arrangement made by the Deceased to offer financial support through interest-free loans and rent-free housing for KH was related to a specific project of the Deceased’s, which was to give KH a chance to study and find a job in Australia. The deceased explicitly stated that once KH completed his intended education, he was responsible for all expenses and was to repay the Deceased. That arrangement became void when Mr. Hagie discontinued his studies.
Secondly, as indicated in the email from October 25 2014, sent to the appellants, the ongoing financial aid that the Deceased provided to the appellants starting in 2015 was also tied to a specific project, this time aimed at SF qualifying as a teacher under Australian standards.
Thirdly, as determined by the primary judge (at J[122]-[123]), the Deceased made it clear that if he were to pass away, he would no longer be able to support the appellants, presenting a risk to the project due to this potential event (as well as factors like sickness or financial capability).
This circumstance made the financial help in the form of loans and rent-free accommodation inherently temporary and subject to abrupt termination if situations changed.
Fourthly, the primary judge found (at J[102]) that the living conditions under which the appellants resided rent-free with their children at the Caringbah Residence were, in any case, not permanent, even if the Deceased were alive and able to provide accommodation, it would not sustain permanence after KF completed her studies.
Fifthly, her Honour concluded (at J[102]) that the appellants and the Deceased only fit the description of a “quasi-family unit” from March 2020 to May 2021, during the COVID-19 pandemic, and while there were complications with the Deceased’s children being able to visit or assist him. Any “close personal relationship” that developed during this time did not exist at the time of the Deceased’s death at J[113].
Sixthly, the relationship between the Deceased and the appellants was fundamentally a benevolent arrangement, where the Deceased provided financial support and rent-free living within specific limits and for designated purposes, always contingent on the Deceased being alive and capable (both physically and financially) of continuing the arrangement.
Seventhly, there is no doubt that the provisions made by the Deceased during his lifetime for the appellants were exceptionally generous. In light of these points, there is nothing within the arrangement or relationship connecting the Deceased and the appellants that would categorise them as natural objects deserving of testamentary acknowledgment by the Deceased or that imposed any moral obligation on the Deceased to provide for the appellants in his Will.
Although it is true that, practically speaking, the appellants would face a challenging situation if the arrangement, including the rent-free lodging, were suddenly terminated after the Deceased’s death, the primary judge’s findings should have made it evident to the appellants from the outset that this was a risk they accepted.
Moreover, at the time, KH was employed and capable of offering some financial assistance to the family. The arrangement in which the appellants voluntarily engaged placed them at risk of experiencing financial instability and potentially having to make a tough choice about returning to the Solomon Islands in case the Deceased fell ill or died. However, this risk was always an integral part of the arrangement. It does not elevate their status to that of natural beneficiaries deserving of the Deceased’s testamentary recognition. Furthermore, contrary to the appellant’s claims, the Deceased including provisions for the appellants in the Will does not change this assessment.
Decision
The Court of Appeal does not believe that, in the very unusual context of this case, the Deceased perceived a moral duty to make financial arrangements for the appellants in his Will. Further, the Court did not view this as supporting a conclusion that the claimants were natural objects of testamentary acknowledgment. Instead, when the Deceased created the Will, he continued his benevolent support for the appellants and their families.
While the Deceased did not revoke this legacy at any moment after drafting the Will, the Court would not infer from that that the Deceased believed he bore a moral obligation to provide financial support for the claimants to settle in Australia. Rees J would merely deduce that the Deceased did not find it necessary to annul the bequest, showcasing another instance of his generosity and kindness. There is some ambiguity regarding whether, at the time of his passing, the Deceased would have recognised KF’s tuition expenses as…
The Court of Appeal rejected the appellants’ assertion that their relationship evolved beyond that of borders. Rees J explained that including a bequest was consistent with the deceased’s support for SF’s education. The Court included other contextual reasons for the deceased’s actions, emphasising the complexities surrounding the appellants’ circumstances. The Court of Appeal identified no appealable errors in Rees J’s findings.