Aubrey v Kain

[2014] NSWSC 15

Supreme Court

New South Wales

Medium Neutral Citation:	Aubrey v Kain [2014] NSWSC 15
Hearing dates:	9 December 2013
Decision date:	30 January 2014
Jurisdiction:	Equity Division
Before:	Hallen J
Decision:	Direct the parties within 14 days, to bring in Short Minutes reflecting these reasons and any agreement reached between them as to the designation of property as notional estate. Stand the matter over to a convenient date in February 2014.
Catchwords:	SUCCESSION - FAMILY PROVISION - The Plaintiff, a son of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant is a close friend of the deceased - Deceased left Will - No provision for the Plaintiff - Explanation given - Small estate and notional estate - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and if so the nature and quantum of the provision to be made - Property to be designated as notional estate - Order for lump sum
Legislation Cited:	Civil Procedure Act 2005 Family Provision Act 1982 Probate and Administration Act 1898 Property (Relationships) Act 1984 Real Property Act 1900 Succession Amendment (Family Provision) Act 2008 Succession Act 2006 Uniform Civil Procedure Rules 2005
Cases Cited:	Alexander v Jansson [2010] NSWCA 176 Allardice v Allardice; In re Allardice (1910) 29 NZLR 959 Andrew v Andrew [2012] NSWSCA 308; (2012) 81 NSWLR 656 Attorney-General v Earl of Sandwich [1922] 2 KB 500 Bartlett v Coomber [2008] NSWCA 100 Blore v Lang (1960) 104 CLR 124 Bondelmonte v Blanckensee [1989] WAR 305 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Buckland Deceased, Re [1966] VR 404 Butcher v Craig [2009] WASC 164 Cetojevic v Cetojevic [2007] NSWCA 33 Christie v Manera [2006] WASC 287 Collicoat v McMillan [1999] 3 VR 803. Collings v Vakas [2006] NSWSC 393 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Crossman v Riedel [2004] ACTSC 127 Davidson v Sampson [2012] NSWSC 481 de Angelis v de Angelis [2003] VSC 432 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54 Dunne v Dunne [2013] NSWSC 1911 Ebert v Ebert; Ebert v Ebert [2008] NSWSC 1206 Flathaug v Weaver [2003] NZFLR 730 Foley v Ellis [2008] NSWSC 288 Foye v Foye [2008] NSWSC 1305 Franks v Franks [2013] NSWCA 60 Frisoli v Kourea [2013] NSWSC 1166 Galt v Compagnon (Supreme Court (NSW), 24 February 1998, unrep) Gardiner v Gardiner (Supreme Court (NSW), 28 May 1998, unrep) Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison [1997] 2 VR 359 Harrisson v Skinner [2013] NSWSC 736 Hawkins v Prestage (1989) 1 WAR 37 Hildebrandt v Soncini [2007] NSWSC 1227 Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 Hyland v Burbidge [2000] NSWSC 12 Jelley v Iliffe [1980] EWCA Civ 4 John v John [2010] NSWSC 937 Kay v Archbold [2008] NSWSC 254 Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422 Kembrey v Cuskelly [2008] NSWSC 262 Kleinig v Neal (No. 2) [1981] 2 NSWLR 532 Kastrounis v Foundouradakis [2012] NSWSC 264 MacGregor v MacGregor [2003] WASC 169 Manuel v Lane [2013] NSWCA 61 Marks v Marks [2003] WASCA 297 Marriott, decd, Re [1968] VR 260 Mayfield v Lloyd-Williams [2004] NSWSC 419 McCosker v McCosker (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 Neale v Neale [2013] NSWSC 983 Oldereid v Chan [2013] NSWSC 434 Palaganio v Mankarios [2013] NSWSC 61 Peters v Salmon [2013] NSWSC 953 Ploder v Garcea (as executrix of the estate of the late Fiona Rita Garcea) [2013] NSWSC 1360 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522 Smith v Woodward (Supreme Court (NSW), 9 September 1994, unrep) Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (Supreme Court (NSW), 16 December 1996, unrep) Stott v Cook (1960) 33 ALJR 447 Szypica v O'Beirne [2013] NSWSC 297 Taylor v Farrugia [2009] NSWSC 801 Theoctistou v Theoctistou [2013] NSWSC 1487 Tobin v Ezekiel [2012] NSWCA 285 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Wade v Harding (1987) 11 NSWLR 551 Walker v Walker (Supreme Court (NSW), 17 May 1996, unrep) West v Mann [2013] NSWSC 1852 White and Tulloch v White (1995) 19 Fam LR 696 Wilkinson (deceased), Re; Neale v Newell [1978] Fam 22 Wilson v Wright (Supreme Court (NSW), 25 February 1992, unrep)
Texts Cited:	R Croucher "Contracts to Leave Property by Will and Family Provision after Barns v Barns (2003) 196 ALR 65: orthodoxy or aberration?" (2005) 27(2) Sydney Law Review 263 J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, LexisNexis Butterworths, 2006) New South Wales Law Reform Commission Report 110 - Uniform Succession Laws: Family Provision (2005)
Category:	Principal judgment
Parties:	Kevin Raymond Aubrey (Plaintiff) Judith Kain (Defendant)
Representation:	Counsel: Mr J Armfield (Plaintiff) Mr G M McGrath (Defendant) Solicitors: JNT Legal (Plaintiff) Yeates Betts (Defendant)
File Number(s):	2012/330727

Judgment

The Claim

1. HIS HONOUR: These reasons relate to proceedings, in which a family provision order pursuant to the Succession Act 2006 ("the Act"), and costs, are sought by the Plaintiff, Kevin Raymond Aubrey Jnr, out of the estate and/or notional estate of his mother, Margaret Rose Aubrey ("the deceased"). A family provision order is an order made by the Court in relation to the estate, or notional estate, of a deceased person, to provide from that estate and/or notional estate, for the maintenance, education, or advancement in life, of an eligible person.

1. The proceedings were commenced by Summons filed on 24 October 2012, that is within the time prescribed by the Act (within 12 months of the deceased's death).

1. The Defendant named in the proceedings is Judith Kain, a friend of the deceased, who is the sole executrix appointed in the Will of the deceased.

1. In this case, an issue relates to the designation of property as notional estate. I shall return to this topic later in these reasons.

1. The matter proceeded with the reading of the evidence filed in the proceedings; then, the objections to a few parts of the affidavits were made and ruled upon; the cross-examination of each of the parties then occurred; and, finally, counsel made submissions. A number of witnesses were not cross-examined which reduced the length of the hearing. The estimated duration of the hearing was one day, and the proceedings were concluded within that time.

1. Without intending to convey undue familiarity, with no disrespect intended, and for convenience, I shall refer, hereafter, to the parties, family members, and witnesses, after introduction, by his, or her, given name.

Formal Matters

1. The following facts are uncontroversial.

1. The deceased died on 26 October 2011. She was then aged 75 years.

1. The deceased was married to Kevin Raymond Aubrey Snr. There were two children of the marriage, namely the Plaintiff, Kevin, and his sister, Jennifer Maree Aubrey. The deceased and Kevin Snr separated in about 1988, and subsequently, a divorce order was made. Jennifer died in October 2009. Kevin Snr died in March 2012.

1. The deceased left a Will that she made on 25 May 2011, Probate in common form of which was granted, by this Court, to Judith, on 17 April 2012. By that Will, after the revocation of all former wills and other testamentary dispositions, the deceased provided for the whole of her estate to pass to Judith absolutely.

1. The deceased, in the Will, stated:

"3. I have left the proceeds of my estate to my friend JUDITH KAIN as she has been a wonderful support to me for many years and has been an incredible help to me during my illness.

4. I have not included my son KEVIN RAYMOND AUBREY as a beneficiary as he has been adequately provided for by my former husband and myself during our lifetime.

5. I have not included my grandchildren as beneficiaries of any part of my estate as I have had a very minimal relationship with them throughout their life and it is not my wish that they benefit in any way."

1. (There was a dispute whether the facts alleged in Clause 4 of the deceased's Will were accurate. There was no specific evidence establishing that they were, and Kevin denied any such provision was made for him during his father's, or the deceased's, lifetime.)

1. According to the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the property owned solely by the deceased at the date of her death, was disclosed as having an estimated (or known) gross value of $65,734. No liabilities were disclosed. The actual estate was said to consist of money in hand ($18,000) and money in current accounts ($47,734). (I have omitted any reference to the cents and shall continue to do so. This may appear to result in minor mathematical miscalculations in the figures set out below.)

1. As mentioned, there were no liabilities of the deceased at the date of death disclosed in the Inventory of Property. (There were, however, funeral expenses ($5,191) and the costs of obtaining Probate ($2,027), both of which liabilities have been paid out of the estate.)

1. In her affidavit sworn 1 November 2013, Judith stated that the actual estate had a gross value of $63,400 and that it comprised cash in hand ($18,000), money in bank ($45,400) and furniture (of nominal value). At the date of hearing, the parties agreed that the estimated value of the actual estate was $58,516.

1. Prior to her death, in circumstances to which I shall come, the deceased transferred a property at Mudgee, that she solely owned, to Judith. The Mudgee property had an agreed value, at the date of hearing, of between $370,000 and $380,000. The parties agreed, at the hearing, that I should assume a sale price of $375,000. They agreed also, that if the property were to be sold, there would be costs and expenses of sale, being commission ($12,375), a marketing contribution ($675) and legal costs of sale ($1,750). Deducting these amounts from the estimated value would yield net proceeds of sale of about $360,200.

1. Judith has obtained advice that if the Mudgee property is designated as notional estate, and if it were sold, the estate will not have to pay capital gains tax ("CGT"), but that she, personally, will be required to pay CGT. The amount of CGT that she will be required to pay is not clear but the parties agreed, at the hearing, that about $5,000 should be estimated as the CGT that is payable by her from the proceeds of sale. They also agreed that the amount of $5,000 should also be deducted from the estimated agreed sale price. Thus, the net proceeds of sale of the Mudgee property, if sold, were estimated to be $355,200.

1. Judith also stated that rent ($700 per week) has been received on the Mudgee property since the death of the deceased and until the date of the hearing (the gross amount being $61,300). It is likely that income tax will have to be paid on the rent received, although the estimate thereof was not the subject of evidence.

1. (It was pointed out that Judith had applied some of the rental income "towards expenses and outgoings associated with the Mudgee property". As well, she had paid herself $50 per week "because when the deceased transferred the Mudgee property to me, the Centrelink Age pension I was receiving in the amount of approximately $420 per fortnight was cancelled". There was no attempt to seek to have any amount paid to Judith designated as notional estate.)

1. It follows that the total value of the actual estate, and if all of the property that may be designated as notional estate of the deceased, were to be designated as such (including all rental income earned), at the date of hearing, is approximately $475,000.

1. I raised with the parties the possibility that the deceased's Mudgee property could sell for more, or for less, than the agreed estimated value and that one party, or the other, might be detrimentally affected by its actual sale price. I suggested that if Kevin succeeded, and if the Mudgee property were to be sold, then it may be prudent to provide him with an amount calculated as a percentage of the ultimate sale price.

1. After obtaining instructions, each of the parties stated, through his and her counsel, respectively, that in the event that Kevin was successful, then he and she wished him to receive a lump sum rather than a lump sum calculated by reference to the actual net proceeds of sale. I shall abide the request of the parties.

1. In calculating the value of the estate, actual and notional, finally available for distribution, the costs of the present proceedings should also be considered, since Kevin, if successful, normally, will be entitled to an order that his costs and disbursements, calculated on the ordinary basis, be paid, whilst Judith, as the executrix representing the estate in the proceedings, irrespective of the outcome of the proceedings, normally, will be entitled to an order that her costs, calculated on the indemnity basis, be paid out of the estate and/or notional estate, of the deceased.

1. Kevin's solicitor, Ms J N Till, estimated Kevin's costs and disbursements of the proceedings, including counsel's fees, calculated on the ordinary basis, to be about $50,600 (inclusive of GST and upon the basis of a one day hearing).

1. Judith's solicitor, Ms E A Peoples, estimated Judith's costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis, to be about $75,900 (inclusive of GST and upon the basis of a one day hearing).

1. That nearly $126,500 has been incurred in legal costs and disbursements of these proceedings is substantial compared with the value of the actual, and what might be designated as the notional, estate of the deceased. I note that it equates to almost 27% of the total value of the actual and notional estate.

1. I shall refer, later in these reasons, to Practice Note SC Eq 7 and the general rules on costs.

1. It follows that if orders for costs are made, and if the costs estimates prove accurate, the net value of actual and notional estate will be about $348,500.

1. The parties also agreed that the only eligible person who has commenced proceedings under the Act is Kevin. (Although identified as persons who are, or who may be, eligible, there is no basis on which to conclude that any of the deceased's grandchildren is an eligible person and none has suggested that he, or she, is. In any event, the prescribed notice has been given to Matthew Aubrey and Jessy Vandevis, each of whom, I assume, is a child of Jennifer.)

1. Judith admits that she is not an eligible person, but she is, of course, the sole beneficiary named in the Will of the deceased. Accordingly, the Court will not disregard her interests as a beneficiary named in the Will of the deceased. Later in these reasons, I shall refer to her competing claim as a beneficiary.

Other Agreed Matters

1. The deceased had owned the Mudgee property since about 1991. She transferred it, to Judith, by Transfer dated 8 August 2011. Judith paid stamp duty ($11,690), calculated on a value of $360,000. No consideration (other than $1.00) was shown in the Transfer. However, the terms of the deceased's Will refer to the services and assistance provided by Judith to the deceased over some 35 years.

1. Judith accepts that the consideration cannot be regarded as being "full valuable consideration".

1. There was a group of diary notes of the deceased's, and of Judith's solicitor, Ms Yeates, who had acted on the transfer of the Mudgee property, and these notes summarised the contents of various telephone conversations the solicitor and between one, or other, of them. Relevantly, these notes provided:

"26.7.11

Attended Rose Aubrey - Judy Kain. Rose is very ill and no chance of surviving - she has decided to transfer her property to Judy now as it has been really worrying her and she would like to sign a transfer before she dies. I was concerned that she was acting a bit prematurely - may not realise the consequences of not owing anything sensed she was concerned about getting everything sorted before she died. I said I would need her doctor to confirm that she had the capacity to make this decision. I felt she did. She will organise Hugh Bateman to give her a valuation for s. duty purposes.

T/A Gary Moore- he said she was fine to make that sort of decision but he was about to put her on medication which may affect her.

Transfer prepared - signed.

...

4.8.11

T/A Judy - Simon Benhett. Said OK to transfer as long as a current value. She wants us to go ahead now and stamp and register - Rose is really keen for it to go through now.

...

16.8.11

T/A Rose - wants me to register - wants it all sorted ASAP. Doesn't want her family members to benefit from her hard work.

T/A Judy - she understands family could make a claim."

1. The Mudgee property was transferred to Judith in August 2011. However, the deceased continued to live in the Mudgee property until she was admitted to Mudgee Base Hospital in October 2011, where she died.

1. Judith gave evidence that she recollected that the consideration of $1.00 was paid to the deceased.

1. I have mentioned that Kevin's father died in March 2012. Probate of his Will was granted to Kevin in June 2012. Kevin was named as the sole beneficiary of his father's estate, which, at the date of his death, was disclosed as having a estimated net value of $345,307.

1. Since the date of death, Kevin has administered the estate of his father. He has distributed $73,368 to himself, and has had transmitted, into his name, his father's shares in IAG and his father's real estate, which is also situated at Mudgee. That real estate has not been rented, or otherwise occupied, since his father's death. Although placed on the market for sale, the property has not been sold, only one offer (for $290,000), which did not proceed to a sale, having been made.

1. Kevin said he did not rent his father's real estate because, initially, he had to clean it up, and then, because he placed it on the market for sale. He appears to be anxious to sell it rather than delay its sale. (Although there was some criticism of Kevin for not having rented the property, I am satisfied that he did not do so for valid reasons.)

The Statutory Scheme - The Act

1. Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out most of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is equally important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in the application.

1. The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008. A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, Will. It is only if the statutory conditions are satisfied that the Court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate, to produce a result that is consistent with the purpose of the Act. Even then, the Court's power to do so is discretionary.

1. The key provision is s 59 of the Act. The Court must be satisfied, first, that an applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, there is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made.

1. Relevantly, in this case, Kevin relies upon the category of eligibility referred to in s 57(1)(c) of the Act. There is no dispute that he is a child of the deceased and an eligible person within the meaning of that term in the Act.

1. The language of the relevant section is expressive of the person's status, as well as his relationship to the deceased. There is no age limit placed on a child making an application.

1. It is only if eligibility is found, that the Court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is this mandatory legislative imperative that drives the ultimate result and it is only if the Court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). Only then may "the Court ... make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made".

1. Allsop P in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, commented, at 658 [6]:

"... the expression of the task in s 59 is subtly different from the previous legislation. A prohibition against making an order unless satisfied of circumstances of an evaluative character, is different in emphasis from a permission to make an order if satisfied of circumstances of an evaluative character... The exercise of power to make the order is conditioned on the Court being satisfied of certain things in s 59(1). The order that may be made is described in s 59(2). The two elements are described in s 60(1)(b) as 'whether to make [an] ... order and the nature of any ... order.' Section 60(2) provides a detailed body of considerations for the task in s 59."

1. Basten JA, at 662-3 [26], put the differences this way:

"As appears from the language of the relevant provisions set out at [66]-[67] below, the Succession Act differs from the Family Provision Act in three significant respects. First, although both conferred similar powers on the court, the conditions of their exercise differ. The Family Provision Act required that the court 'shall not make an order ... unless it is satisfied that' the provision made by the testator is 'inadequate': s 9(2). The Succession Act provides that the court 'may ... make a family provision order ... if the court is satisfied that' the testator has not made "adequate provision" for the applicant: s 59(1). The changes in language may have been intended to remove double negatives, but there is a resultant change in emphasis. The apparent effect is to widen the discretion vested in the court. That which could satisfy a court that the provision made is 'not adequate', for the purposes of the Succession Act, might not have been sufficient to remove the prohibition under the Family Provision Act, which operated in the absence of affirmative satisfaction that the provision was 'inadequate'. There may well be no bright line boundary between adequacy and inadequacy."

1. Barrett JA, at 677-8 [82] - [86], said:

"The court's task under the new legislation is in substance the same as that under the old. Three differences relevant to the kind of case under discussion may, however, be noted (I leave to one side as irrelevant to such cases the extension of the s 60(2) criteria to the question of 'eligible person' status); and two postulated differences may be rejected.

First, the Succession Act provisions direct attention, upon the initial inquiry into adequacy, to provision made by the deceased's will and the intestacy laws. The former legislation referred merely to provision 'out of the estate' but it was clear that the operation of the intestacy laws was to be taken into account in deciding what provision was available 'out of the estate': see, for example, Smilek v Public Trustee [2008] NSWCA 190.

Second, the Succession Act confines attention, upon that initial inquiry, to provision made by the will and the intestacy laws. There is no reference to provision made during the deceased's lifetime. In this respect, there is a departure from the Family Provision Act approach under which provision made in favour of the eligible person "either during the person's lifetime or out of the person's estate" was to be examined upon the initial inquiry into adequacy.

Attention may, however, still be given to provision made in favour of the applicant during the deceased's lifetime. That is now one of the factors to which regard may be had under s 60(1)(b) when the court is deciding whether to make a family provision order and the nature of the order: see s 60(2)(i). Under the Succession Act, therefore, provision made by the deceased while living thus has a continuing relevance with altered emphasis. Such provision is no longer something to be taken into account in deciding whether adequate provision has been made; but it may be taken into account in deciding whether an order should be made and the nature of the order.

The third difference to be noted is the Succession Act's more comprehensive catalogue of matters that may be taken into account in formulating an order for provision. Section 9(3) of the Family Provision Act empowered the court to 'take into consideration' matters there stated 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'. Section 60(1)(b) of the Succession Act allows the court to 'have regard to' the matters set out in s 60(2) 'for the purpose of determining ... whether to make a family provision order and the nature of any such order'. The Succession Act lists a greater number of such matters than did the Family Provision Act."

1. Other than by reference to the provision made in the Will of the deceased, or, if relevant, by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for the applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision actually made in the deceased's Will, or on intestacy, or both, on the one hand, and to the requirement for maintenance, education and advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant.

1. In Grey v Harrison [1997] 2 VR 359, at 366-367, Callaway JA observed:

"There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."

1. It was said in the Court of Appeal (by Basten JA) in Foley v Ellis [2008] NSWCA 288, at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J recently described it as "an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific": Szypica v O'Beirne [2013] NSWSC 297, at [40] (citing Manuel v Lane [2013] NSWCA 61 at [9] per Emmett JA, speaking in relation to s 20 of the Property (Relationships) Act 1984).

1. Under s 59(1)(c) of the Act, the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the Court is considering the application.

1. "Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89, at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".

1. Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act.

1. The term "maintenance" usually refers to a provision for the supply of the necessaries of life. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement":

"'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education."

1. In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), at [18], stated:

"'Proper maintenance' is not limited to the bare sustenance of a claimant [cf Gorton v Parkes (sic) [1989] 17 NSWLR 1], but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility."

1. In J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, LexisNexis Butterworths, 2006), at 542, the learned authors comment upon the difference between the concepts of maintenance and advancement:

"The essential difference between 'maintenance' and 'advancement' is that 'maintenance' denotes a periodical payment or a payment which could validly be made periodically, whereas 'advancement' denotes a definite unique outlay for a specific purpose. Recipients of maintenance must, practically speaking, be infants, but adults may be recipients of an advancement.

An advancement can never be made of a sum of money which the person to whom it is made can immediately pocket, but it must be made with a view to the establishment of that person in a business or profession, or otherwise in some definite way for that person's benefit, the whole essence of an advancement being the immediate payment of a tolerably large sum for an immediate benefit to one beneficiary."

1. In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Murphy J noted, at 505:

"Provision for advancement may, for example, extend to retraining or the gaining of a qualification which could advance and perhaps enable an applicant to maintain himself or herself."

1. In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77 King CJ said:

"The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang [(1960) 104 CLR 124] per Dixon C.J. at p. 128."

1. Master Macready (as his Honour then was) in Stiles v Joseph (Supreme Court (NSW), 16 December 1996, unrep) said, at 14-16:

"Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541)

In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274...

In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said:

'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.'

The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that:

'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'"

1. In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J, at [114] noted:

"In the context of the Act the expression 'advancement in life' is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase 'advancement in life' has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the 'maintenance and support' of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support."

1. In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said:

"The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)."

1. In McCoskerv McCosker [1957] HCA 82; (1957) 97 CLR 566 Dixon CJ and Williams J stated, at 575:

"The presence of the words 'advancement in life' in the ... Act in addition to the words 'maintenance and education' is not unimportant. ... 'Advancement' is a word of wide import."

1. The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, whereas "proper" prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127, per Buss JA, at 145 [72], [77].

1. These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 476:

"The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."

1. Dixon CJ and Williams J, in McCosker v McCosker, at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that:

"It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."

1. In Goodman v Windeyer, Gibbs J said, at 502:

"[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."

1. In Vigolo v Bostin, at 228, Callinan and Heydon JJ said:

"[T]he use of the word 'proper' ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of the kind which was made here...The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."

1. Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), 28 May 1998, unrep), that "adequate" and "proper" are independent concepts. His Honour said, at 12:

"'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied ..."

1. In Palaganio v Mankarios [2011] NSWSC 61, at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life involve value judgments on which minds can legitimately differ, and there are no definite criteria by which the question can be answered.

1. His Honour further observed in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522, at [123]:

"The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case 'including 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' (Singer v Berghouse (1994) 181 CLR 201 at 210)."

1. Until recently, it was unanimously thought that there are two stages of the determination. The first stage, provided for by s 59(1)(c), has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the Court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. The Court does this by determining whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased and/or by operation of the intestacy rules, for the applicant. If it is not so satisfied, then the Court is precluded from making a family provision order. At this stage, the Court has regard to, among other things, 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 circumstances and needs of the other beneficiaries or potential beneficiaries: see McCosker v McCosker at 571-572; Singer v Berghouse at 209-210; Vigolo v Bostin, at [16], [75], [112]; Tobin v Ezekiel [2012] NSWCA 285, at [70].

1. Whether an applicant has a 'need' or 'needs' is also a relevant factor at the first stage of the enquiry. It is an elusive concept to define, yet, it is an element in determining whether "adequate" provision has been made for the "proper" maintenance, education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 (Tobias JA, with whom Beazley and Hodgson JJA agreed).

1. In Collins v McGain, Tobias JA said:

"42. Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies.

...

47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is 'proper maintenance etc' of the eligible person. It is because of that context that, in the present case, the 'proper maintenance etc' of the appellant required consideration of a need to guard against the contingency to which I have referred."

1. In Devereaux-Warnes v Hall (No 3), at [81] - [84], Buss JA said, in respect of the first stage of the process:

"The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources: see Singer (at 227) per Gaudron J.

'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc: see Gorton v Parks (1989) 17 NSWLR 1 (at 10-11) per Bryson J.

The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other: see Hunter (at 575) per Kirby P.

Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc: see Singer (at 227) per Gaudron J. Compare Gorton (at 6-11) per Bryson J; Collicoat v McMillan [1999] 3 VR 803 at [38], [47] per Ormiston J."

1. "Need", of course, is a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45].

1. As Callinan and Heydon JJ emphasised in Vigolo v Bostin, the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably": at 231 [122]. The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined.

1. In the event that the Court is satisfied that the power to make an order is enlivened (i.e. in this case it is satisfied that the applicant is an eligible person, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), then the Court determines whether it should make an order and, if so, the nature of any such order, having regard to the facts known to the Court at the time the order is made.

1. The second stage of the process arises under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the Court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.

1. However, Basten JA, in Andrew v Andrew, said of the two stage process referred to:

"29 The combination of changes [to the legislation] requires that the court address the nature of the exercise being undertaken. Three potential consequences may be identified. First, there is a simplification of the structure of the process. There is no longer a two-stage process required. A degree of artificiality has thus been removed. The court should now ask what, taking all relevant factors into account, would have been adequate provision for the applicant. There is no first stage of determining whether the actual provision was "inadequate", followed by a discretionary exercise of determining what would be adequate and what should in fact be done.

...

41 As noted above, the language of the Succession Act is not consistent with the two-stage inquiry which was a common feature of earlier legislation: cf Singer v Berghouse at 208-209. In Keep v Bourke [2012] NSWCA 64 the Court appears to have assumed that the two-stage process continued to operate under the Succession Act: at [24]-[29]. However, the issue not having been directly addressed, there is no constraint on this Court now adopting a different approach. Nor does earlier High Court authority construing an earlier statutory scheme govern the approach to be adopted to materially different legislative provisions."

1. In Andrew v Andrew, Allsop P, at [6], said:

"Whether the process engaged in by the court in s 59 can still be described as 'two-staged' in the sense discussed in Singer v Berghouse (1994) 181 CLR 201 at 208-211 may be an analytical question of little consequence. The task involves an evaluative assessment and a choice as to consequence therefrom, appeal from which is governed by the principles concerning discretionary judgments: Singer v Berghouse at 211 and DAO v R [2011] NSWCCA 63; (2011) 81 NSWLR 568 at [93]."

1. Barrett JA disagreed with Basten JA, in Andrew v Andrew, saying:

"65 This is the second occasion on which this Court has been called upon to deal with a claim under s 59 of the Succession Act. In the earlier case, Keep v Bourke [2012] NSWCA 64, the Court proceeded on the basis that approaches taken under s 7 of the now superseded Family Provision Act 1982 remained relevant and applicable. That matter was explored in greater detail in the course of argument in the present case. For reasons I am about to state, I am of the opinion that the earlier approaches should continue to be followed in cases such as the present case and Keep v Bourke, that is, cases in which the applicant is a child of the deceased and no previous order for provision out of the estate has been made in favour of that applicant.

...

79 First, it is necessary, having regard to s 59(1)(c), for the court to be satisfied that, at the time when it is considering the application, 'adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person'. Whereas the former s 9(2) provided that an order was not to be made unless the court was "satisfied" in the specified way, the present legislation permits the court to make an order if 'satisfied' in the specified way and, by necessary implication, precludes the making of an order if the court is not so 'satisfied'.

80 Second (and if the court is 'satisfied' in the specified way), the 'family provision order' that the court is empowered to make is, under s 59(2), 'such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made'; and the court may, pursuant to s 60(1)(b), have regard to the matters specified in s 60(2) in deciding whether to make an order and the nature of the order.

81 Under s 59 and s 60, therefore, the task of the court, in a case of the kind under discussion, is:

(a) to determine the extent of the provision made for the maintenance, education and advancement in life of the applicant by the deceased's will or the intestacy laws;

(b) to form an opinion of the adequacy of that provision;

(c) if the opinion is one of inadequacy, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased person for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the court at the time the order is made; and

(d) in making that evaluative judgment, to take into account, as discretionary factors, the matters in s 60(2).

...

94 As stated in Keep v Bourke, the structure and effect of the Succession Act provisions warrant continuing adherence to the two-stage approach indicated by the decisions of the High Court in Singer v Berghouse and Vigolo v Bostin."

1. In Franks v Franks [2013] NSWCA 60, Young AJA (with whom McColl JA and Sackville AJA agreed), at [17], referred to the primary Judge (Macready AsJ) having "cited the High Court's decision in Singer v Berghouse [supra] and adopted the two stage process required by that decision".

1. His Honour noted also, at [29], that the appellant (in one of the two appeals) "accepted that it was appropriate for the primary judge to follow the course laid down in Singer v Berghouse and that [the respondent] had surmounted the first hurdle of the two stage process referred to therein. Accordingly, he identified the key question as whether the primary Judge had erred in determining the quantum of the provision made for [the respondent] in lieu of that made under the deceased's will".

1. At [35], his Honour wrote:

"On an appeal against a decision concerning the application of the second limb of Singer v Berghouse, the Court is dealing with a discretionary judgment (see Singer v Berghouse (at 211) and Durham v Durham [2011] NSWCA 62 at [82]; 80 NSWLR 335 (at 352)). It follows that his Honour's decision is reviewable by this Court only in accordance with the principles established in House v The King [1936] HCA 40; 55 CLR 499."

1. Although the appeal was allowed, that was because the Court found, at [42], that:

"... in formulating the quantum of the provision he made for Brad, the primary judge did not take into account the disparity in the financial circumstances between Gregory and Brad. Accordingly, the primary Judge's decision as to quantum must be set aside."

1. Nothing in the judgment of the Court of Appeal in Franks v Franks suggests that the approach followed by the trial Judge, in adopting the two-stage process required by Singer v Berghouse, was wrong.

1. At first instance, there are a number of decisions to which reference should be made. In Verzar v Verzar [2012] NSWSC 1380, Lindsay J said:

"92 I refrain from characterisation of these elements of the case as 'stages' because that is terminology associated with the Family Provision Act 1982 (NSW) and Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-211. Since Andrew v Andrew [2012] NSWCA 308 (14 June 2012) per Allsop P at [5]-[6] and Basten JA at [27], [29] and [41] a single judge of the Court is bound, in my assessment, to regard the two-stage decision-making process identified in Singer v Berghouse, and confirmed by Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, as superseded by enactment of ss 59-60 of the Succession Act.

93 Although the provisions of ss 59(1)(c) and 59(2) might formerly have been treated, respectively, as re-embodiments of the first and second of the two-stages of decision-making identified in Singer v Berghouse, the test to be applied in Family Provision cases must be taken by me to have been modified."

1. (An appeal in Verzar v Verzar was heard in the Court of Appeal on 22 November 2013.)

1. Ball J, in Oldereid v Chan [2013] NSWSC 434, after referring to Andrew v Andrew, noted the different approaches being adopted by trial Judges. His Honour said:

"52 More recent decisions at first instance have differed on whether the decision in Andrew v Andrew requires the court to apply a two stage process or not. Lindsay J in Verzar v Verzar [2012] NSWSC 1380 thought that a single judge of the court is bound 'to regard the two-stage decision-making process identified in Singer v Berghouse ... as superseded by enactment of ss 59-60 of the Succession Act' (at [92]). Hallen J, on the other hand, has continued to apply the two stage test: see Goldsmith v Goldsmith [2012] NSWSC 1486 at [67]; Nowak v Beska [2013] NSWSC 166 at [113]. A third approach, adopted by Macready AsJ in Morgan v Bohm [2013] NSWSC 145 at [110], is to consider the case on both bases. There are, however, difficulties with that approach. If the two approaches involve real differences, then presumably there are cases where they will produce different results. What, then, is to be done applying both approaches? On the other hand, if the two approaches are bound to produce the same result, the dispute about which test should be applied has no significance.

53 In my opinion, there is clearly a tension between the decisions of the Court of Appeal in Keep v Bourke [2012] NSWCA 64 and Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 which only the Court of Appeal or High Court can resolve. In the meantime, the duty of a trial judge is to follow the later decision: see Ratcliffe v Watters (1969) 89 WN (NSW) Part 1 497 at 505 per Street J. In Andrew v Andrew, both Allsop P and Basten JA regarded the reformulation of the test in s 59 of the Succession Act as changing, perhaps only subtly, the threshold that must be satisfied before an order can be made. Basten JA regarded that change as also changing the way in which the court should approach the question. Allsop P regarded it as an analytical question of little consequence. However it is analysed, though, it is clear from the terms of s 59 that the court must ask itself the question whether it is satisfied that "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made". If it is so satisfied, it must consider whether to make an order and, if so, the terms of that order. In undertaking each of those steps, it may have regard to the matters set out in s 60. Whether those steps should be seen as separate stages that must be followed or as convenient steps in undertaking what is required by the legislation does not matter for present purposes."

1. It appears that Ball J was not referred to Franks v Franks.

1. More recently, Ball J in Peters v Salmon [2013] NSWSC 953, at [80], has referred to these decisions and to my own decision in Harrisson v Skinner [2013] NSWSC 736, at [62]-[79], and commented:

"There is much to be said for that conclusion [that the two-stage test should continue to be applied]. However, whatever the position, as I pointed out in my judgment in Oldereid v Chan [2013] NSWSC 434 at [53] it seems clear from the terms of s 59 that the court must ask itself the question whether it is satisfied that "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made". If it is so satisfied, it must consider whether to make an order and, if so, the terms of that order. In undertaking each of those steps, it may have regard to the matters set out in s 60."

1. In Frisoli v Kourea [2013] NSWSC 1166, Slattery J at [139] said:

"Whether the two-step test operates with the same full vigour in the current legislation as it did in the Family Provision Act 1982 has been recently discussed in the Court of Appeal: Evans v Levy [2011] NSWCA 125. Indeed in Andrew v Andrew [2012] NSWCA 308, especially at [26]-[29], and [41], the Court of Appeal has stated that the new language of the Succession Act is not consistent with the two stage inquiry which was a common feature of the earlier legislation. But such considerations are not determinative in this case, which is a clear one on the question of whether or not adequate provision has been made. It has not, for the reasons explained below. And even though the process may no longer be a two stage one, it still involves a similar range of relevant considerations."

1. In Ploder v Garcea (as executrix of the estate of the late Fiona Rita Garcea) [2013] NSWSC 1360, Sackar J, at [96], referred to a number of the decisions set out above, and said that he agreed with Allsop P (as his Honour then was), that "whether or not there had been a subtle change in approach is an analytical question of probably little consequence".

1. In Theoctistou v Theoctistou [2013] NSWSC 1487, Lindsay J wrote, at [62] - [63]:

"In approaching the tasks required by the text of the Succession Act, I am mindful that, in their submissions, both parties have drawn attention to the two-stage process discussed in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 209-210, as well as the observations about that process in Andrew v Andrew.

By analogy, the first stage corresponds with s 59 (1)(c) of the Succession Act, and the second with ss 59 (2) and 60 (1)(b): Charmock v Handley [2011] NSWSC 1408 at [46]-[50]."

1. In West v Mann [2013] NSWSC 1852, Kunc J wrote, at [11]:

"In this case the parties invited me to apply the terms of the Act. They did not suggest any different result would follow depending on whether a two stage or other approach was applied. What is clear is that experienced first instance judges have been unable to agree upon the effect of current appellate authority. For my own part, and with the greatest of respect, I will do no more than observe that there is a risk that the description or characterisation of the process can become an unnecessary distraction. To adapt what the Court of Appeal has observed in another context, whether the process is correctly described as "two stage", "one stage", "twin tasks" or otherwise is "not a substitute for applying the wording of the statute, construed as a whole and purposively, to the particular fact situation that arises for decision in a particular case": Sahab Holdings Pty Ltd v Registrar-General [2011] NSWCA 395 at [185] per Campbell JA and Tobias AJA; McColl JA agreeing."

1. In Dunne v Dunne [2013] NSWSC 1911, Young AJ said of this question, at [31] - [32]:

"For many years courts have approached this sort of case on a two stage basis following what the High Court said in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-210. In Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 the Court of Appeal was divided as to whether this approach was still consistent with the provisions of the Succession Act 2006. Barrett JA said it was, Basten JA said it was not and Allsop P did not decide the point. In Franks v Franks [2013] NSWCA 60 the Court of Appeal of which I was a member with McColl JA and Sackville AJA Came to the same conclusion as Barrett JA.

I believe that I should still continue to follow the two stage approach though in the present case it has little significance whether I do or not."

1. Ultimately, as Allsop P said in Andrew v Andrew, at [6], "it may be an analytical question of little consequence" since the questions remain the same, namely, whether the Court can make an order for provision (whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made), and if so, whether it should (whether to make an order and, if so, the terms of that order).

1. Section 60 of the Act, at least in part, is new. It provides:

"(1) The court may have regard to the matters set out in subsection (2) for the purpose of determining:

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

(b) whether to make a family provision order and the nature of any such order.

(2) The following matters may be considered by the court:

(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,

(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate,

(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,

(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate,

(e) if the applicant is cohabiting with another person-the financial circumstances of the other person,

(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated,

(g) the age of the applicant when the application is being considered,

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,

(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate,

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,

(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so,

(l) whether any other person is liable to support the applicant,

(m) the character and conduct of the applicant before and after the date of the death of the deceased person,

(n) the conduct of any other person before and after the date of the death of the deceased person,

(o) any relevant Aboriginal or Torres Strait Islander customary law,

(p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."

1. It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew, at [37] as "a multifactorial list", and by Lindsay J in Verzar v Verzar, at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order.

1. It has recently been said by White J in Slack v Rogan; Palffy v Rogan, at [121], that s 60 "lists a wide range of matters that the Court 'may have regard to', but these do not provide any tangible assistance in answering the question in any particular case whether the provision made in a will was less than adequate for an eligible applicant's 'proper' maintenance, education or advancement in life".

1. In West v Mann, Kunc J at [12], wrote:

"Section 60(2) provides a helpful checklist but it is no more than that. The Court is not obliged to take those matters into account. The extent to which it does (if at all) will depend upon the facts of each particular case.

Section 60(2)(p) confirms the breadth of matters the Court can take into account. Once enlivened, the Discretion is expressly fettered only by the requirement in s 59(2) that if an order is made, it must be such order "as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made".

1. The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of such of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.

1. The Act does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. For example, when considering eligibility under s 60(1)(a), many of the matters in s 60(2) will be largely, if not wholly, irrelevant.

1. There is no definition in the Act of "financial resources" (which term is referred to in s 60(2)(d)). However, there is a definition of that term in s 3 of the Property (Relationships) Act 1984, which I consider helpful:

"'financial resources' ... includes:

(a) a prospective claim or entitlement in respect of a scheme, fund or arrangement under which superannuation, retirement or similar benefits are provided,

(b) property which, pursuant to the provisions of a discretionary trust, may become vested in or used or applied in or towards the purposes of the parties ...,

(c) property, the alienation or disposition of which is wholly or partly under the control of the parties to the relationship or either of them and which is lawfully capable of being used or applied by or on behalf of the parties to the relationship or either of them in or towards their or his or her own purposes, and

(d) any other valuable benefit."

1. In Neale v Neale [2013] NSWSC 983, in relation to the meaning of that term, I referred to White and Tulloch v White (1995) 19 Fam LR 696 and the statement made in that case that the "term [connotes] some degree of entitlement to, control over, or relative certainty of receipt of property".

1. Of course, s 60(2)(d) refers also to "earning capacity", which means no more than the capacity to find employment to earn or derive income.

1. A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).

1. Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently.

1. This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the first stage. Happily, I am not alone in reaching this conclusion which is supported by the following comments made in Singer v Berghouse, at 209 - 210:

"... The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the 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."

1. It is also supported by the comments of Callinan and Heydon JJ in Vigolo v Bostin, at 230 - 231:

"We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors."

1. As was also pointed out by Barrett JA, in Andrew v Andrew, at [88] - [89]:

"... leaving aside its relevance to the "eligible person" inquiry, the s 60(2) catalogue is directed to the question of what, if any, order for provision should be made and is not, in terms, applied to the initial question of the adequacy of the provision made by the will or the intestacy laws.

It can be said at once that the s 60(1)(b) directive corresponds with that in the former s 9(3) to the extent that it relates to the decision regarding provision to be made. There is no express legislative intention, under either piece of legislation, that the enumerated factors are to be taken into account in deciding the initial question of adequacy of provision. There is accordingly no reason to think that those factors are to be afforded any special relevance in approaching the adequacy question. But they will, at that point, be given, independently of s 60(1)(b), such weight as they deserve in their own right as indicators of the "adequacy" question. As the primary judge recognised at [57], this is consistent with what was said by the High Court in Singer v Berghouse in relation to the former Act."

1. Section 65(1) of the Act requires the family provision order to specify:

(a) the person or persons for whom provision is to be made, and

(b) the amount and nature of the provision, and

(c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and

(d) any conditions, restrictions or limitations imposed by the Court.

1. The order for provision may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).

1. Any family provision order under the Act takes effect, unless the Court otherwise orders, as if the provision was made in a codicil to the Will of the deceased or (in the case of intestacy), as in a Will of the deceased (s 72(1) of the Act). (Intestacy is irrelevant in these proceedings.)

1. Section 66 of the Act sets out the consequential and ancillary orders that may be made.

1. Section 99(1) of the Act provides that the Court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the Court thinks fit.

1. Practice Note SC Eq 7, which applies to claims for a family provision order, currently provides in Clause 24, that "[o]rders may be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the value of the estate is less than $500,000".

Notional Estate

1. The notional estate provisions of the Act are dealt with in Part 3.3 of the Act. However, in s 3 of the Act, "notional estate" of a deceased person is defined as meaning "property designated by a notional estate order as notional estate of the deceased person". "Notional estate order" means "an order made by the Court under Chapter 3 designating property specified in the order as notional estate of a deceased person".

1. It has been said, in respect of the notional estate provisions in the former Act, that an applicant for provision "may now apply in the same proceedings for orders for relief and designating property as "notional estate" thereby compelling the "disponee" of a "prescribed transaction" to provide money or property for the purpose of making financial provision for the applicant": Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422 at 441. (Although the terminology in the Act is different, the same principle applies under the Act.)

1. Rosalind Croucher in "Contracts to Leave Property by Will and Family Provision after Barns v Barns (2003) 196 ALR 65: orthodoxy or aberration?" (2005) 27(2) Sydney Law Review 263, 278 has commented on the notional estate provisions of the former Act:

"The introduction of the notional estate provisions brought to the forefront the distinction of 'estate versus notional estate' that had been implicit in the decisions on the legislation prior to the introduction of the Family Provision Act 1982 (NSW). It made explicit in the legislation that 'estate' and 'notional estate' were different. Things subject to contracts (like mutual wills) were not within the definition of 'estate'. To bring such property within the legislation required now the application of the complex procedures and definitions of 'notional estate'. This requires a particular kind of transaction, an absence of relevant consideration, a defined time frame in which the transaction took effect and a range of other matters to be considered before property can be designated as notional estate and made the subject of an order for family provision under the Act."

1. In New South Wales Law Reform Commission Report 110 - Uniform Succession Laws: Family Provision (2005), at paragraph 3.1, "notional estate orders" are described as "orders issued by the Court which are intended to make available for family provision orders assets that are no longer part of the estate of a deceased person because they have been distributed either before or after the deceased's death (either with or without the intention of defeating applications for family provision)".

1. In Galt v Compagnon (Supreme Court (NSW), 24 February 1998, unrep) Einstein J, at 21, wrote that notional estate was "a complex concept" but shortly described it as "property which would have become part of the deceased's estate, had it not been dealt with, or had it been dealt with, by the deceased in a particular way, and in particular circumstances, prior to his, or her, death".

1. Section 63(5), relevantly, provides that a family provision order may be made in relation to property that is not part of the estate of a deceased person if it is designated as notional estate of the deceased person by an order under Part 3.3 of the Act.

1. Importantly, the power to make a notional estate order does not arise unless the Court is satisfied that (a) the deceased person left no estate, or (b) the deceased person's estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, or (c) provision should not be made wholly out of the deceased person's estate because there are other persons entitled to apply for family provision orders or because there are special circumstances (s 88).

1. Kevin's income tax returns disclose net income of $20,939 in the financial year ending 30 June 2009; $12,466 in the financial year ending 30 June 2010; $12,409 in the financial year ending 30 June 2011; and that he had a taxable income of $14,365 in the financial year ending 30 June 2012. I have earlier referred to his evidence in relation to his income. However, he says that he draws a weekly income of $620 from the business. Most of his income is expended on his normal living expenses.

1. Unusually, despite having made submissions that his need for accommodation that he would own absolutely, Kevin gave no evidence of his ability to borrow. Considering he pays rent of about $420 per week, and if he were to use the proceeds of sale of the property in Mudgee that he inherited when that property is sold, as part of the purchase price, such evidence should have been given by him. There was no reason for him to think, or assume, that in an estate and notional estate of the value herein, the Court would provide to him all of the funds necessary to enable him to purchase an unencumbered home.

1. In addition, I doubt whether his claim for accommodation is a "need". He has been living in the premises that he rents for the last five years. He did not give any evidence why it was not suitable accommodation. It is near where he works and it has the accommodation requirements (2 bedrooms and a double garage) that he said he requires.

1. In addition to an amount for accommodation, it was submitted that Kevin has no superannuation, or any capital fund to guard him against the exigencies of life. This is not quite accurate, since if he does not purchase accommodation, he would have almost $300,000 as a fund for contingencies and to provide additional income.

1. Judith submitted that I should draw an inference that Kevin does not need any additional income because he has chosen not to rent the property he inherited. I accept Kevin's evidence that, initially, it was necessary to clean up that property, and once it was cleaned, that he has been trying to sell it. It was not put to him in cross-examination, that his attempts to sell the property were not genuine, or, for example, that he had rejected the reasonable offer of $290,000 that had been made.

1. Judith sets out her assets and liabilities as follows:

Assets	Estimated Value
Lue Road, Mudgee property;	$ 550,000
Church Street, Mudgee property:	$ 370,000
2005 Subaru Forester:	$ 10,000
St George Account:	$ 600
ANZ account:	$ 300
ANZ Cheque account:	$ 11,200
ANZ Progressive Saver account:	$ 46,600
Shares:	$ 30,000
Superannuation:	$ 215,806
Miscellaneous (household items, trailer, alpacas):	$ 10,000
Total:	$1,244,506

1. She was not asked any questions about her financial and material circumstances. This is hardly surprising as it is clear that her financial position, even without taking into account the devise of the Mudgee property to her, is significantly better than is Kevin's.

(e) if the applicant is cohabiting with another person - the financial circumstances of the other person

1. This sub-section permits account to be taken of the financial circumstances relating to the cohabitation.

1. Kevin is not cohabiting with any other person.

(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated

1. Kevin is in reasonably good health. He does not give evidence of any physical, intellectual or mental disability in existence or that may be reasonably anticipated.

1. Judith did not suggest any physical, intellectual or mental disability in existence, or that may be reasonably anticipated. However, she is older than Kevin.

(g) the age of the applicant when the application is being considered

1. Kevin is currently 42 years of age having been born in April 1971.

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant)

1. The contribution made by an applicant to the estate of the deceased has long been regarded as a significant factor. In Goodman v Windeyer, Gibbs J wrote, at 497 - 498:

"One of the circumstances that must be considered in deciding upon the deserts of a claimant to a testator's estate, and in determining whether proper maintenance has been provided, is the manner in which that claimant has conducted himself or herself in relation to the testator. If the claimant has contributed to building up the testator's estate, or has helped him in other ways, that may give the claimant a special claim on the testator's bounty. This was recognized by Dixon C.J. in Coates v National Trustees Executors & Agency Co. Ltd when he said that the natural claims of a son upon his mother's testamentary bounty were 'much strengthened by his cooperation and support in the conduct of her business and of her affairs'. Perhaps the most recent example in this Court of a case in which a son's claims have been strengthened for this reason is Hughes v National Trustees Executors & Agency Co. (Australasia) Ltd. There is, however, no reason in principle why a son should stand in a special position in this regard, and the authorities here consistently treated the fact that a claimant has rendered services to the testator as relevant in cases of this kind - whether the claimant be a daughter (Blore v Lang), a widow (E v E, discussed in In re Worms; Worms v Campbell) or a widower (In re McElroy). The claimant's conduct does not cease to be relevant if it has not been of financial benefit to the testator - if, for example, the labour has been in vain. If the claimant has made sacrifices on the testator's behalf, that is a circumstance to be considered even if no monetary saving or benefit for the testator resulted. Indeed, the very fact that a claimant has been a dutiful and devoted spouse or child is one of the relevant circumstances of the case to be considered together with all the other circumstances in deciding whether proper maintenance has been provided." (Footnotes omitted.)

1. The only contributions referred to are that Kevin assisted the deceased in moving to the Mudgee property. He also assisted her in setting up an online store in respect of her wool and handicraft business. Each of these contributions occurred in the early 1990's. Kevin volunteered that "It wasn't a lot of assistance but a bit ...".

(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate

1. The deceased made no provision for Kevin in her Will. She made it clear to many people that she did not wish him to benefit and she provided reasons. Other than the statements made by the deceased to others, there is no evidence of provision having been made for him by the deceased during her lifetime.

1. Kevin denied that the deceased had made any provision for him and that the statement made in the Will was accurate. However, it is clear that Kevin received the whole of his father's estate.

1. I am not satisfied that what the deceased stated in the Will accurately reflected the true position. Whilst the deceased made clear that she did not wish Kevin to inherit any part of her estate, the reasons she gave (other than in the Will) related to her view of Kevin, rather than to what she had provided during her lifetime. If that was a genuine reason for not making provision for him, one would have expected there to be some more evidence about the provision made for him during her lifetime.

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

1. There is an earlier Will made by the deceased in December 2010, the terms of which are essentially the same as the Will the subject of the grant of Probate.

1. Kevin gives evidence that the deceased said to him, on several occasions:

"I always keep my house in good order as not only is it a reflection on me, but when I die, your sister and you will have an asset you can use to get ahead in life."

1. Although there is no evidence about when these conversations occurred, it is clear that they must have occurred before October 2009.

1. The deceased also transferred the Mudgee property to Judith, whilst she was still living there. Taken with what she told others, this clearly demonstrates that the deceased did not wish any part of her property to pass to Kevin upon her death.

(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so

1. Kevin was not being maintained, either directly or indirectly, by the deceased prior to her death.

(l) whether any other person is liable to support the applicant

1. There is, currently, no person with a liability to support Kevin.

(m) the character and conduct of the applicant before and after the date of the death of the deceased person

1. An evaluation of "character and conduct" may be necessary, not for the sake of criticism, but to enable consideration of what is "adequate" and "proper" in all the circumstances. Importantly, the Act does not limit the consideration of "conduct" to conduct towards the deceased. However, good conduct is not to be rewarded by a generous, but second-hand, legacy at the hands of the court: Blore v Lang (1960) 104 CLR 125, at 134.

1. I have dealt with the relationship of Kevin and the deceased and his conduct towards the deceased earlier in these reasons. Judith acknowledged that she was not advancing a case of conduct that disentitled Kevin to an order if that were otherwise apt.

(n) the conduct of any other person before and after the date of the death of the deceased person

1. There was no challenge to the deceased's description of Judith's conduct. I am satisfied that she was a close friend and companion to the deceased and a person who provided significant support to her over many years.

(o) any relevant Aboriginal or Torres Strait Islander customary law

1. This is not relevant in the present case.

(p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered

1. There is no other matter that I consider relevant. (None of the parties relied upon any matter under this ground that has not, otherwise, been considered under the other grounds.)

Determination

1. Being an "eligible person" is a necessary precondition to the Court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. In this case, there is no dispute that Kevin, as a child of the deceased, is an eligible person within the meaning of s 57(1)(c) of the Act.

1. There is also no dispute that Kevin commenced his proceedings within the time prescribed by the Act.

1. Having established eligibility and that the proceedings were commenced within time, the first question for determination is whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life, of Kevin has not been made by the Will of the deceased.

1. I find that Kevin's claim on the bounty of the deceased is not a very strong one. I consider that he exaggerated the closeness of his relationship with the deceased and that he did not, other than in the last year of her life, have as much to do with her as he asserted. Even then, it appears that the contact was principally by telephone.

1. I remember also that, except for the inheritance from his father, Kevin has almost nothing by way of assets. As stated, he does not have any superannuation and if he sells the property he inherited, it is likely that he will have to borrow to purchase accommodation in Sydney. There is also a possibility that his business will not be able to continue if he is unable to renegotiate the terms of his franchise agreement.

1. Having considered the matters I am required to consider, I am satisfied that the deceased did not make adequate provision for the proper maintenance and advancement in life of Kevin by her Will. No provision was made for him in the deceased's Will. I bear in mind that he was her only surviving child and that, for whatever reason, he did, at least in the last year of her life, demonstrate some concern for her by telephoning when he did. In coming to this conclusion, I also have taken into account Judith's legitimate claims upon the bounty of the deceased and the obligation and responsibility that the deceased felt, to provide for her.

1. It is also clear that Kevin has some "needs". As stated above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence. Nor is it limited to whether the applicant has, at the date of hearing, an immediate need for financial assistance with respect to his maintenance. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies.

1. Turning then to s 59(2), namely the question what provision "ought to be made for the maintenance, education or advancement in life" of Kevin, having regard to the facts known to the Court. I do not accept that he should receive a lump sum, which, when added to the net proceeds of sale of the property he inherited, would enable him to purchase accommodation that is unencumbered. That this is so is clear, particularly when one remembers that he provided no evidence of his borrowing capacity.

1. The order for provision should be no more than is necessary to make adequate provision for Kevin's proper maintenance and advancement in life. I must take into account, and give weight to, the right of the deceased to dispose of her property whilst she was alive and also as she did in her Will.

1. In my view, Kevin should receive a lump sum that will assist him to purchase accommodation, or if he does not do so, which, when added to the property that he inherited from his father, will provide him with a fund of reasonable size, for exigencies of life. In my view, the lump sum should be $125,000.

1. In this case, relevantly, the Court's power to make a notional estate order will only arise if I am satisfied that the deceased's actual estate is insufficient for the making of the family provision order, or any order as to costs, that should be made. That is the position in view of the size of the deceased's actual estate.

1. Even then, the Court must not designate as notional estate, property that exceeds what is necessary to allow the provision that should be made, or, if I make an order that costs be paid from the notional estate under s 99, to allow costs to be paid as ordered, or both.

1. Next, I must consider whether there was a relevant property transaction, and, if so, the value and nature of any property which is the subject of the relevant property transaction.

1. As a result of the "act" of transferring the Mudgee property and the subsequent registration of the Transfer of that property, Judith became the registered proprietor. That act, in the circumstances, was an "act" that would result in Judith holding property and was a relevant property transaction entered into by the deceased, for which full valuable consideration was not given to the deceased for doing the act. The only amount that Judith paid to the deceased was $1.00. (She also paid the stamp duty ($11,690) but, of course, that was not paid to the deceased.)

1. There was no dispute by Judith that "full valuable consideration" was not given for the relevant property transaction. I respectfully agree.

1. I must also bear in mind the medical information that was available at, or about the time of the Transfer, which revealed that the deceased was not likely to live very long. Counsel for Kevin suggested that s 80(2)(a) of the Act might apply. It does seem likely that the deceased had an intention to enter the transaction to wholly or partly, or deny or limit provision being made out of the estate for the maintenance, education or advancement in life of Kevin, a person who was entitled to apply for a family provision order.

1. In those circumstances, the requisite intention of the deceased is established and s 80(2)(a) applies.

1. In case I am wrong, I turn then to s 80(2)(b) of the Act. The transfer of the Mudgee property to Judith took effect within one year before the date of the death of the deceased.

1. In my view, the deceased, in August 2011, did have a moral obligation to make adequate provision, by her Will, for the proper maintenance and advancement in life of Kevin. That obligation was substantially greater in circumstances where she had made a Will in which she had provided for a devise of the Mudgee property to Judith absolutely, which meant the property would be transmitted to Judith on the deceased's death, subject to any claims made for provision out of the deceased's estate.

1. There was no relevant reason advanced, other than to reward Judith, for the deceased executing the Transfer. In effect, she gifted the Mudgee property to Judith. Whilst she may have been extremely grateful for all that Judith had done, and was doing, for her, I cannot see that the deceased's moral obligation was to transfer the Mudgee property to Judith during the deceased's lifetime. The position would not have been materially different had Judith received the Mudgee property following the deceased's death.

1. It follows, in my view, that s 80(2)(b) of the Act has also been satisfied.

1. It is not difficult to see what disadvantage there is to the deceased's estate in the deceased having executed the Transfer. There is not even sufficient money in the actual estate to pay the costs of the proceedings. The value of the deceased's actual estate was significantly reduced by the relevant property transaction.

1. In case I am wrong, s 83(1)(a), alternatively, requires the Court to be satisfied that Kevin, as a person entitled to apply for a family provision order from the estate, has been disadvantaged. I am so satisfied since the actual estate was reduced, significantly, by the Mudgee property no longer being property of the deceased at the date of her death, with the consequence that Kevin must seek an order designating property as notional estate from which to satisfy a family provision order and any order for the payment of the balance of costs.

1. I have earlier had regard to the subject of the relevant property transaction, the value and nature of any consideration given by Judith in the relevant property transaction and the changes in the value of property the subject of the relevant property transaction. (The increase in value has been modest.)

1. So far as "reasonable expectations" are concerned, it is clear that Kevin had "reasonable expectations" in relation to the Mudgee property, whereas Judith did not, as evidenced by her surprise when the deceased raised the topic with her. Judith recognised that Kevin might have such expectations as a child of the deceased.

1. I am also satisfied that the substantial justice and merits require the Court to make a designating order. If an order were not made, it would be impossible to satisfy the order for provision that I consider is adequate and proper. There did not really seem to be any dispute about this.

1. Having considered all of the matters, I am satisfied that so much of the proceeds of sale of the Mudgee property should be designated as notional estate of the deceased to satisfy the order for provision.

1. I shall allow the parties, by his, and her, legal representatives, to discuss when, and how, the lump sum, after using the amount in the actual estate, should be satisfied. If there is any dispute between them, I shall determine that dispute.

1. In relation to costs, neither party submitted that a costs order in Kevin's favour should not be made. It will be necessary to consider costs in making the appropriate notional estate designating order. If possible, the parties should agree on a lump sum, for Kevin's costs and an order for costs should be made.

1. If the Mudgee property is to be sold, no interest should be payable on the lump sum until 14 days, after the completion of the sale. If the Mudgee property is not to be sold, no interest should be payable on the lump sum until 14 days after final orders are made.

1. I direct the parties, within 14 days, to bring in Short Minutes reflecting these reasons and any agreement reached between them as to the designation of property as notional estate. They should deal with costs also if possible. In this way, the precise amount will be able to be designated as notional estate, or otherwise, to be paid to Kevin by Judith.

1. I shall stand the matter over to a convenient date to the parties and to the Court.

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Decision last updated: 30 January 2014