Bowers v Matthews

[2024] NSWSC 1353

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Bowers v Matthews [2024] NSWSC 1353

Hearing dates:

3 October 2024

Date of orders:

31 October 2024

Decision date:

31 October 2024

Jurisdiction:

Equity - Succession & Probate List - Family Provision

Before:

Meek J

Decision:

Proceedings brought by (now deceased) first plaintiff dismissed, with no specific order made as to her costs. Orders otherwise substantially made in accordance with revised consent orders agreed to between remaining parties.

Catchwords:

SUCCESSION — Family provision — Claim by a de facto spouse of the deceased (first plaintiff) and her daughter (second plaintiff), who claimed to be a dependent member of the household of which the deceased was a member — Parties settled the proceedings with an amount of provision being agreed for both plaintiffs, as well as a specified amount of their costs to be paid out of the estate, subject to the fulfilment of certain conditions — First plaintiff died before orders were made giving effect to settlement — Defendant executrix by a notice of motion sought a declaration that the proceedings instituted by the first plaintiff abated by reason of her death and an order that those proceedings be dismissed with no order as to costs, which relief was reflected in a revised form of consent orders agreed to between the remaining parties

SUCCESSION — Family provision — Abatement of proceedings — Whether family provision order can be made in respect of a deceased applicant —Whether statutory right of an applicant to bring a family provision claim survives her death — Discussion of context of Ch 3 of the Succession Act 2006 (NSW), including purposes of family provision legislation and context of historical and recent family provision reforms in NSW — Discussion of textual indicators bearing upon nature of family provision claims — Determined that an order under Ch 3 of the Succession Act 2006 (NSW) can only be made in favour of a person then living —Determined that a right to bring a claim under Ch 3 of the Succession Act2006 (NSW) is personal and therefore not transmissible so as to survive the applicant’s death — Held that proceedings instituted by first plaintiff abated on her death and ought to be dismissed

SUCCESSION — Family provision — Interests of a potentially eligible person or affected beneficiary under an incapacity — Discussion of requirements for service of a Notice of Claim on a person under an incapacity — Discussion of issues regarding the representation of interests of persons under an incapacity — Whether interests of second plaintiff’s child (a minor) should be disregarded — Held that service of a Notice of Claim on second plaintiff, in an attempt to satisfactorily serve her child, was not adequate — However, in the circumstances of the case, in particular the relatively short time in which the child was potentially dependent upon the deceased and the fact that he is under the care of the second plaintiff who is providing for him, the proposed settlement (which included provision to the second plaintiff) ought to proceed without any further requirement for service of a Notice of Claim on the child

SUCCESSION — Family provision — Interests of other potentially eligible persons — Basis for disregarding interests — Whether interests of the deceased’s former de facto spouses and the adult child of the second plaintiff can be disregarded — In circumstances where (inter alia) both former spouses were likely deceased and the adult child had been served a Notice of Claim and did not wish to bring a claim, their interests could be disregarded

COSTS — Jurisdiction — Whether the Court has jurisdiction to make a costs order in family provision proceedings which abate — Discussion of effect of abatement on proceedings and cases where the Court has determined that the proceedings are a nullity — Authorities indicate that it cannot be presumed that the Court has jurisdiction to make a positive costs order in favour of or against a deceased applicant — Position in respect of costs of defendant executrix is arguably different, as such costs properly incurred will ordinarily be a testamentary expense to be paid out of the estate — Notation made that the costs of the first plaintiff will be a matter to be addressed, if at all, by those interested in the administration of her estate, without the benefit of a specific court order — Order made for defendant’s costs to be paid out of the estate on the indemnity basis

Legislation Cited:

Civil Procedure Act2005 (NSW)

Family Protection Act 1955 (NZ)

Family Provision Act 1982 (NSW)

Interpretation Act 1987 (NSW)

Law Reform (Miscellaneous Provisions) Act 1944 (NSW)

Property (Relationships) Act 1984 (NSW) Succession Act 1981 (Qld)

Succession Act2006 (NSW)

Succession Amendment (Family Provision) Bill 2008 (NSW)

Succession Bill 2006 (NSW)

Testator’s Family Maintenance Act 1900, 64 Vict, c 20

Testator’s Family Maintenance Act 1912 (Tas) Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW)

Trustee Act1925 (NSW)

Supreme Court Rules 1970 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Ainsworth v Redd (1990) 19 NSWLR 78

Alexiou v Alexiou [2024] NSWSC 1340

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26

Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308

Andrew v Andrew (No. 3) [2013] NSWSC 286

Bogeta Pty Ltd v Wales [1977] 1 NSWLR 139

Brooks v Young (2018) 131 SASR 365; [2018] SASCFC 81

Chappell as Executor of the Estate of Robert Hastings Hitchcock v Goldspan Investments Pty Ltd (2021) 58 WAR 503; [2021] WASCA 205

Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392

Darrington v Caldbeck (1990) 20 NSWLR 212

Deveigne v Askar (2007) 69 NSWLR 327; [2007] NSWCA 45

Fairhurst(bhtNSW Trustee and Guardian) vFairhurst [2012] NSWSC 388

Felton (formerly Oser) v Oser (1969) 72 SR (NSW) 24

Hall v Hansen [2008] NSWSC 1200

Institorisby his next friend MariaInstitorisv Falconer [2012] NSWCA 298

Irvine v Public Trustee [1989] 1 NZLR 67

Jurak v Latham [2023] NSWSC 1318

Kalejs v Minister for Justice and Customs (2001) 111 FCR 442; [2001] FCA 1769

Kelly v Kelly [2019] NSWSC 994

King v Condon [2009] 2 Qd R 143; [2009] QSC 67

Managing Director, New South Wales Technical and Further Education Commission v Fines (1993) 32 NSWLR 385

Marshall v D G Sundin & Co Pty Ltd (1989) 16 NSWLR 463

McEvoy v Public Trustee (1989) 16 NSWLR 92

Muir v Angeles [2020] NSWSC 1056; (2020) 355 FLR 137

O’Brien v McCormick [2005] NSWSC 619

Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336

Price v Ikin [2004] NSWSC 706

Re Magson [1983] NZLR 592

Robbins v Hume [2015] VSC 128

Rodny v Weisbord [2024] NSWCA 183

Salmon v Osmond [2015] NSWCA 42; (2015) 14 ASTLR 442

Samsley v Barnes [1990] NSWCA 161

Scruby v Hoggan (1954) 55 SR (NSW) 2

Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521

Spelman v Spelman [1920] NZLR 202

Stead v Foster (Supreme Court (NSW), Levine J, 4 September 1998, unrep)

Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204

Tarbes v Taleb [2023] NSWSC 565

Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150; [1981] HCA 48

Wass v Director of Public Prosecution (NSW); Wass v Constable Wilcock [2023] NSWCA 71

Texts Cited:

Atherton, Rosalind F, “The Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW): Husband’s Power v Widow’s Right” (1990) 6 Australian Journal of Law and Society 97

Dal Pont, G E, Law of Costs (5th ed, 2021, LexisNexis Australia)

Dal Pont, G E, Law of Succession (3rd ed, 2021, LexisNexis)

de Groot, John and Bruce Nickel, Family Provision in Australia (6th ed, 2021, LexisNexis)

Explanatory Note to the Succession Bill 2006 (NSW)

Handler, Leslie, and Richard Neal, Mason and Handler Succession Law and Practice NSW (LexisNexis)

Lindsay J, “Parties, Property and Notice of Proceedings in Succession Law Cases” (Paper), College of Law Seminar, 20 February 2019

Lindsay J, “The Dynamics and Dilemmas of Costs Orders upon an Exercise of ‘Welfare’ Jurisdiction” (Paper), The Blue Mountains Law Society 2023 Succession Conference, 7-8 September 2024

Macquarie Dictionary, online ed

New South Wales Law Reform Commission, Report 110 (2005) – Uniform Succession Laws: Family Provision (May 2005)

New South Wales Law Reform Commission, Report 85 (1998) – Uniform Succession Laws: The Law of Wills (April 1998)

New South Wales Legislative Council, Parliamentary Debates (Hansard), 30 August 1916, 26 June 2008, 24 September 2008

Oxford Classical Dictionary, “lex Falcidia” (URL reference below) accessed 29 October 2024

Practice Note SC EQ 07

Category:

Principal judgment

Parties:

Elaine Marjorie Bowers (First Plaintiff)
Nicole Bowers (Second Plaintiff)
Karyn Edwina Matthews (Defendant / Applicant)

Representation:

Counsel:
J E Armfield (Defendant / Applicant)

Solicitors:
Segelov Taylor Lawyers (Plaintiffs)
Wilsons Solicitors (Defendant / Applicant)

File Number(s):

2023/451382

JUDGMENT

Introduction

1. HIS HONOUR: The application before the Court raises a number of interesting questions in family provision law.

2. One is the relatively rare, but not novel, question of what happens when a family provision applicant agrees to settlement terms resolving the family provision claim but dies prior to the making of final orders?

3. A second question is what is the appropriate procedure for serving of a Notice of Claim ^[1]  on a person under a legal incapacity (whether an eligible applicant or beneficiary whose interests might be affected by a potential order) and ensuring that the interests of such person are adequately addressed to meet the purposes of service?

   1. See cll 4(2) and (3) of Sch J (Succession Act 2006), Supreme Court Rules 1970 (NSW); see also Practice Note SC EQ 07 at [18.10] and Annexure 2.

4. The first question has been considered in relation to the provisions of the Family Provision Act 1982 (NSW) (FPA). However, as far as I can discern, there is no published decision which deals with the question in respect of a family provision claim under the Succession Act2006 (NSW) (Succession Act). Nor did the industry of the legal representatives who appeared on the application unearth any such decision.

5. The second question is one which arises not infrequently, but is one which in my experience parties and practitioners do not have uniform approaches to addressing and, accordingly, ought to be addressed for the benefit of practitioners.

6. The proceedings relate to the estate of the late Robert “Bob” Wilson Quinn (the deceased), who died on 15 February 2023 aged 83. The deceased left a Will dated 24 August 2022, probate of which was granted to Karyn Edwina Matthews (Karyn), one of the deceased’s daughters and the defendant in the proceedings, on 2 June 2023.

7. The proceedings involve two family provision claims brought by the first plaintiff, Elaine Marjorie Bowers (Elaine), who is now deceased, and the second plaintiff, Nicole Bowers (Nicole), Elaine’s daughter. Elaine claimed to be in a de facto relationship with the deceased, while Nicole claimed to be a dependent member of the household of which the deceased was a member.

8. For convenience and without intending any disrespect, I will refer to the various protagonists by their given names. Further, unless otherwise indicated, I will use the term “representative” to include persons who represent the estate of a deceased person, whether that person be an executor, administrator or (where relevant) someone appointed by an order made under the Rules (e.g. r 7.10(2)(b) Uniform Civil Procedure Rules 2005 (NSW) (UCPR)) to represent the estate. ^[2]  

   2. The term “administrator” is used in the Family Provision Practice Note to include an executor and a person appointed to represent the estate for the purposes of the litigation: Practice Note SC EQ 07 at [6].

Settlement of the proceedings and the present application

9. The proceedings were commenced by summons filed on 13 December 2023.

10. On 10 April 2024, the parties attended a mediation and agreed to settle the proceedings on terms subject to a number of conditions. The conditions included the following:

1. each of the potentially eligible persons confirming in writing that they do not intend to bring a claim for a family provision order;

2. alternatively, in respect of any of those persons, the Court making an order pursuant to s 61 of the Succession Act that it is unnecessary, unreasonable or impracticable to serve a Notice of Claim on that person;

3. no other person filing a summons for a family provision order before the making of orders in the proceedings; and

4. the Australian Financial Security Authority (AFSA) as the trustee in bankruptcy of Michelle Ann Courtney (another daughter of the deceased and sister of Karyn) consenting to the orders.

11. The parties set about addressing the above-mentioned conditions. However, on 24 June 2024, before any final orders were made, Elaine died.

12. On 10 September 2024, Karyn filed a notice of motion seeking the following orders:

1. A declaration that the proceedings for a family provision order instituted by Elaine Marjorie Bowers commenced against the estate and notional estate of the late Robert Wilson Quinn have abated by reason of her death.

2. An order that the proceedings instituted by Elaine Marjorie Bowers be dismissed.

3. Makes no order as to the costs of the proceedings instituted by the late Elaine Marjorie Bowers to the intent she bear her own costs of those proceedings.

4. An order that the defendant's costs of the proceedings, in so far as they relate to the application by the late Elaine Marjorie Bowers, calculated on the indemnity basis be retained or paid out of the deceased’s estate.

5. Such further or other Orders as the Court deem fit.

13. The notice of motion was a little irregular in that it did not name any respondent to the motion or list any persons as being affected by the orders sought.

14. The notice of motion was listed before me for hearing on 3 October 2024. On that occasion, Mr Armfield of counsel appeared for Karyn (instructed by David Wilson of Wilsons Solicitors) and Mr Raupach of Segelov Taylor Lawyers appeared in the interests of the plaintiffs. Segelov Taylor Lawyers had acted for both plaintiffs in the proceedings, and Mr Raupach continues to act for Nicole. There is a question regarding his right to represent the interests of Elaine’s estate in circumstances where there has been no grant of probate or other grant of representation in respect of her estate.

15. On the listing before me, Mr Armfield and Mr Raupach announced that, subject to consent of the AFSA, they had been able to agree on a set of revised orders which were said to finally dispose of the proceedings. The revision from the terms agreed previously at mediation attempted to deal with the consequences of Elaine’s death and reflected the orders sought in the notice of motion. Whilst the proposed revised orders were described as agreed or consent orders, strictly speaking, the absence of some appropriate representation of Elaine’s estate meant that the orders could not, insofar as they affected the interests of her estate, be labelled as such.

Issues

16. In the above setting and context more fully set out below, seven main issues arise, namely:

1. Who may represent the interests of Elaine’s estate for the purposes of dealing with the notice of motion and the proposed settlement?

2. What is the effect of Elaine’s death on her claim in the proceedings?

3. Is there jurisdiction to enforce a compromise entered into whilst Elaine was still alive?

4. Should Elaine’s claim be dismissed?

5. What is the appropriate order for the costs of Elaine’s claim?

6. Can and should the interests of the deceased’s former de facto spouses and Nicole’s son Tristan be disregarded?

7. Can and should the interests of Nicole’s son Ethan, a minor, be disregarded?

Background

17. During his lifetime, the deceased had one marriage and three subsequent relationships, one or more of which may have constituted a de facto relationship. In order, the details of those relationships are as follows.

18. The deceased was married to Pamela Edwina Quinn and there are three children of that marriage, namely, Karyn (aged 60), Robert Wilson Quinn (aged approximately 59) and Michelle (aged 54, who in some of the materials is described as “Shelley”).

19. Tragically, Pamela was diagnosed with and suffered from motor neurone disease. She passed away within a few years of that diagnosis on 24 October 1984.

20. Shortly after Pamela’s death, it appears that the deceased entered into a relationship with Barbara Copeland who, in or around 1984, commenced residing with him at his then home in Cambridge Park. At that time, Barbara was the parent of two children who may have been married adults. It appears that Barbara was about the same age as the deceased, who was born in late November 1939.

21. It is unclear how long the deceased’s relationship with Barbara persisted. In any event, following the breakdown of the relationship, it is believed that she may have gone back to live in country New South Wales.

22. Searches to identify Barbara have been vexed. Two candidates have been identified: Barbara Jean Copeland of Kelso, who died on 14 May 1987 aged 42 (the “first Barbara”); and Barbara Joan (Barbie) Copeland of the Yass area, who died shortly prior to 8 April 2009 (the “second Barbara”). The latter person was also known by the surname Ellis.

23. Only the first Barbara was the parent of two children, however those children were not adults in 1984. Following various searches, including searches of electoral rolls, Facebook accounts, the New South Wales Electoral Commission and gravestones, Mr Wilson concludes that the second Barbara died on 4 April 2009.

24. Following the breakdown of the relationship between the deceased and Barbara, he commenced a relationship with June Mavis Martin. It appears that the deceased’s relationship with June lasted until around the mid 1990s. Searches have revealed that she was the mother of three adult children and passed away on 21 June 2022, aged 86.

25. Elaine met the deceased in approximately 1981. At the time, she was in a relationship with one of the deceased’s friends, Kevin. Her relationship with Kevin ended in 1987.

26. Elaine described herself as having formed a close friendship with the deceased which developed into a de facto relationship. The exact timing of the commencement of the relationship is elusive. However, for the purposes of the application, it suffices to state that it occurred in or about the early to mid 1990s and she contended that their relationship subsisted until the deceased’s death.

27. Elaine is survived by three children: Nicole, Jason Bowers and Kerry Sharne Campbell. Nicole is the youngest child, born in November 1973, and is currently aged 50. She has two children: Tristan, aged approximately 25; and Ethan, aged approximately 8.

The deceased’s estate

28. The deceased left an estate which, according to the inventory of property, comprised real property at Torpey Avenue, Lemon Tree Passage valued at an estimate of $574,000, as well as monies from two bank accounts totalling approximately $14,000. The Lemon Tree Passage property was sold for $475,000.

29. As at 15 February 2024, the deceased’s net distributable estate was estimated at $438,454.

30. The deceased’s Will appointed Karyn as executrix and left his estate equally to his three children.

Elaine’s estate

31. Elaine left a Will by which she appointed Kerry as executrix of her estate. She left her estate equally between her three children.

32. Elaine’s estate primarily consists of several liabilities. According to Mr Raupach, Kerry informed him that these were as follows:

Zip Pay            $1,006.00

Foxtel               $600.00

Afterpay            $2,115.33

Mastercard (incl. interest)      $4,464.00

Morisset Main St Pharmacy      $44.80

Terry White Chemist Tanilba Bay   $257.10

33. Kerry states that the debts owed to Morisset Pharmacy and Terry White Chemist have been paid in full, and that Zip Pay is “in the process of writing off the debt”. It appears that Elaine had no assets and the balances of her two bank accounts are $1.55 and $0.43.

Initial and revised settlement

34. The initial proposed settlement between the parties on 10 April 2024 involved proposed orders for provision of $50,000 to Elaine and $50,000 to Nicole. The orders further provided for payment of their collective costs in the sum of $44,000 (inclusive of GST) to be made out of the deceased’s estate.

35. The revised form of proposed orders makes no allowance for any payment of provision to Elaine’s estate and makes no order as to Elaine’s costs of the proceedings. While there is still an order for provision of $50,000 to Nicole, there is also an order that Nicole’s costs and disbursements in the sum of $50,000 (inclusive of GST) be paid out of the deceased’s estate.

Issue 1: Representation for Elaine’s estate

36. As noted, there is currently no representative for Elaine’s estate. The practical reality is that no grant of representation will be applied for.

37. Where a deceased person’s estate has an interest in proceedings but is not represented in the proceedings, the Court may: (a) order that the proceedings continue in the absence of a representative of the deceased person’s estate; or (b) appoint a representative of the deceased person’s estate for the purposes of the proceedings, but only with the consent of the person to be appointed: r 7.10(2) UCPR.

38. Given that the deceased died just over 20 months ago, there is some imperative to bring the proceedings to a conclusion. Further, given that Elaine has passed away approximately 4 months ago and there is unlikely to be any grant of representation in respect of her estate, it is important to establish whose interests may be affected by the proposed orders which pertain to Elaine and what attitudes, if any, those persons may have to the orders.

39. Noting the provisions of Elaine’s Will, it is apparent that those persons are her three children. The evidence before me now establishes that none of those children wish to contend for an outcome that there be payment of any provision amount to Elaine’s estate or any amount paid on account of her costs.

40. In the above circumstances, I am prepared to permit Mr Raupach to make submissions in respect of the position of Elaine’s estate. Whilst no authority may be needed to permit that position, I note that Master Macready (as his Honour then was) adopted a similarly informal approach to representation in similar circumstances in Price v Ikin [2004] NSWSC 706 (Price) at [16].

41. In the circumstances of this case, and having regard to the apparent insolvency or at least impecuniosity of Elaine’s estate, I propose to order that the proceedings be dealt with in the absence of a representative of Elaine’s estate for the limited purposes of addressing the notice of motion and making final orders in the proceedings.

42. Determining the relief sought in the notice of motion, in so far as it sought a declaration that the proceedings instituted by Elaine have abated and the dismissal of those proceedings, does not necessarily require a final hearing of the proceedings. In substance, that aspect of the notice of motion is an application for an order for summary dismissal of the proceedings: McEvoy v Public Trustee (1989) 16 NSWLR 92 (McEvoy) at 93D per Powell J (as his Honour then was).

Issue 2: What is the effect of Elaine’s death on her claim in the proceedings?

43. Sometimes, statutory provisions expressly provide that certain types of applications will abate when a party dies. For example, an application for maintenance by a party to a de facto relationship is expressly provided to abate if either party dies before the application is determined: see ss 27, 31 Property (Relationships) Act 1984 (NSW).

44. No such express provision is found in the Succession Act in respect of family provision applications.

45. Whether a statutory right is to survive death is ultimately a question of statutory construction: Managing Director, New South Wales Technical and Further Education Commission v Fines (1993) 32 NSWLR 385 at 388 per Mahoney JA.

Statutory construction

46. Statutory construction involves the Court looking at text, context and purpose: see e.g. s 33 Interpretation Act 1987 (NSW); Wass v Director of Public Prosecution (NSW); Wass v Constable Wilcock [2023] NSWCA 71 (Wass) at [3], [25] per Leeming JA (Bell CJ and Kirk JA agreeing).

47. The process of construction requires that context be considered in the first instance: Wass at [3] per Leeming JA, citing K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315 per Mason J (as his Honour then was); [1985] HCA 48; Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 at [57] per Bell P (as the Chief Justice then was).

48. Whilst caselaw dealing with earlier forms of family provision legislation may provide some degree of insight as to how the question of construction may be approached, it is not conclusive of the issue.

Context

Legislative history and the decision in McEvoy

49. Succession law is purposive based, as is almost all law. In contrasting the purposes of the family provision jurisdiction with the probate and protective jurisdictions, Lindsay J wrote extrajudicially in “Parties, Property and Notice of Proceedings in Succession Law Cases” (Paper), College of Law Seminar, 20 February 2019 at [28] that:

The family provision jurisdiction, as an adjunct to the probate jurisdiction, looks to the due and proper administration of a particular deceased estate, endeavouring, without undue cost or delay, to order that provision be made for eligible applicants (for relief out of a deceased estate or notional state) in whose favour an order for provision “ought” to be made.

50. Family provision law is sourced in statute.

51. The notion that a State might codify or legislate provisions which impact on testamentary freedom is ancient.

52. Thus, in Roman law, whilst the law of the Twelve Tables (circa 451-450 BCE) declared that the testator had total freedom to charge the testament with as many legacies as he wished (Table 5.3), various mechanisms were subsequently introduced to achieve social objectives regarding testamentary disposition, such as limiting legacies through the lex Furia (181 BCE), lex Voconia (169 BCE) and lex Falcidia (41-40 BCE), the last of which established a compromise between the testator’s freedom and the heir’s interest to have some compensation for his duties: Oxford Classical Dictionary, “lex Falcidia” accessed 29 October 2024.

53. In 1900, the first family provision legislation in the common law world which addressed adequacy of provision was introduced in New Zealand, in relatively simple terms, by the Testator’s Family Maintenance Act 1900, 64 Vict, c 20 – an Act comprising 22 lines (leaving aside the short title). Since that time, the complexity of family provision legislation has burgeoned.

54. The vexed history of the introduction of family provision legislation in New South Wales is chronicled by Rosalind F Atherton (as Professor Croucher then was) in her learned article “The Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW): Husband’s Power v Widow’s Right” (1990) 6 Australian Journal of Law and Society 97 (Atherton). A form of the Testator’s Family Maintenance Act was described by Atherton (at 98), from the viewpoint of 19^th century wives, as:

… a significant mechanism for protection and a recognition of women’s rights in their position as widows, redressing the imbalance, at least in part, caused by the demise of the common law right of dower.

55. The enactment of the Testator’s Family Maintenance and Guardianship of Infants Act1916 (NSW) (TFM Act), which was backdated to commence operation from 7 October 1915, was long in the making. A number of protagonists, including Rose Scott, rejoiced at its introduction, having requested reform for more than 28 years: Atherton at 97-98. During the second reading speech in the Legislative Council, the Honourable John Daniel Fitzgerald stated (New South Wales Legislative Council, Parliamentary Debates (Hansard), 30 August 1916 at 1239):

… a number of wills have been made in the State of New South Wales which have constituted an injustice of such enormity that the general conscience has expressed itself in condemnation of the testamentary vagaries of the persons who have died… ^[3]

3. Atherton (at 124-125) explains that the TFM Act was made retrospective to 7 October 1915 (the date of the introduction of the 1915 Bill to the Legislative Council), rather than made to commence on the date of assent, 18 September 1916, to deliberately catch one such “vagary” involving the estate of a former Member of the Legislative Assembly, John Norton, who had died on 9 April 1916.

56. The long title describes the TFM Act as:

An Act to assure to the widow or widower and the family of a testator an adequate maintenance from the estate of such testator; to amend the law relating to the guardianship of infants; and for purposes incidental thereto or consequent thereon.

57. Groundbreaking as it was, none of the provisions of the TFM Act, on their proper construction and application, gave support for the proposition that the Court could make an order for provision in favour of an applicant who had commenced proceedings but died prior to its determination.

58. Significant reforms were brought about by the introduction of the FPA, which commenced on 1 September 1983. The changes brought about by the FPA included: a broadening of the range of persons who could make an application for provision; a shift in the time at which the Court determined the question of inadequacy of provision (from the date of the deceased’s death to the time at which the Court is considering the application); and a broadening of the range of property which might be subject to an order for provision, including notional estate, which is a concept in Australia unique to New South Wales.

59. It would not be overreaching to state that the FPA is one of the most radical reforms of estate law in the history of New South Wales. Yet, none of the New South Wales Law Reform Commission reports or second reading speeches in respect of the FPA were suggestive that provision could be made for an applicant who had commenced proceedings but subsequently died.

60. The specific issue of whether family provision proceedings could be maintained in the face of the death of an applicant was addressed by Powell J in McEvoy. Following his usual thorough analysis, his Honour concluded that the language of the FPA was such as to indicate that it was the legislature’s intention that the power to make a family provision order conferred upon the Court was to be capable of being exercised only in favour of a living person: McEvoy at 100D-E. According to Powell J, it followed:

… first, that the legal personal representative of a deceased person who, while alive, would have qualified as an “eligible person” does not have the right to commence proceedings under the Act; and, secondly, that, when a person, who would have qualified as an “eligible person”, dies after the commencement of proceedings, but before the making of an order, both the “cause of action”, and the proceeding, abate.

61. The second corollary is that which is of relevance here. Without being exhaustive, the reasons which led his Honour to his conclusion included:

1. an analysis of the conditions precedent to be fulfilled before the Court makes a family provision order, by reference to ss 7 and 9(2) of the FPA, which are expressed in the present tense;

2. the acknowledgement that whilst the word “person”, when used in a public Act, may not necessarily be limited to natural persons, in the context of the FPA, the word “person”, when used in s 7, must be limited to natural persons;

3. the requirement that the Court be satisfied at the time of dealing with the application that the applicant “is an eligible person” leads inescapably to the view that an order may only be made in favour of a person then living; and

4. that view is reinforced by the repeated requirement that the Court have regard to the circumstances as they exist at the date of hearing: McEvoy at 100E-101G.

62. Further, his Honour concluded that, even if he be in error in that view as to the proper construction of the FPA, the provisions of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) (MP Act) would not operate so as to preserve, for the benefit of the estate of an eligible person, any right which that person might otherwise have had to seek an order under the FPA: McEvoy at 101G-102A. In that regard, s 2 of the MP Act then provided:

2 Effect of death on certain causes of action

(1) Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in the person shall survive against, or, as the case may be, for the benefit of, the person’s estate: Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims under section 52 of the Matrimonial Causes Act 1899, as amended by subsequent Acts, for damages on the ground of adultery or to claims under Division 2 of Part 3 of the De Facto Relationships Act 1984.

(2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person:

(a) shall not include:

(i) any exemplary damages, or

(ii) any damages for the loss of the capacity of the person to earn, or for the loss of future probable earnings of the person, during such time after the person’s death as the person would have survived but for the act or omission which gives rise to the cause of action,

(b) in the case of a breach of promise to marry shall be limited to such damage, if any, to the estate of that person as flows from the breach of promise to marry,

(c) where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to the person’s estate consequent on the person’s death, except that a sum in respect of funeral expenses may be included,

(d) where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall not include any damages for the pain or suffering of that person or for any bodily or mental harm suffered by the person or for the curtailment of the person’s expectation of life.

(3) (Repealed)

(4) Where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of this Part, to have been subsisting against the person before the person’s death such cause of action in respect of that act or omission as would have subsisted if the person had died after the damage was suffered.

(5) The rights conferred by this Part for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the Compensation to Relatives Act 1897, as amended by subsequent Acts, and so much of this Part as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under the said Act as so amended as it applies in relation to other causes of action not expressly excepted from the operation of subsection (1).

(6) The rights conferred by this Part for the benefit of the estates of deceased persons and the obligations continued or created by this Part against the estates of deceased persons shall be in addition to and not in derogation of any rights conferred or obligations created by or under the Motor Vehicles (Third Party Insurance) Act 1942 or the Transport Accidents Compensation Act 1987 or the Motor Accidents Act 1988.

63. Powell J considered that s 2 of the MP Act could have no application for a number of reasons, being the following:

1. section 2 has a two-fold function: (a) to preserve the relevant “cause of action” in the cases to which it applies; and (b) to transmit “the title” to that “cause of action” to the representative of the relevant deceased;

2. unless the relevant “cause of action” has the necessary quality of transmissibility, s 2 has no scope in which to operate;

3. a “cause of action” which is personal to a particular person is not transmissible, citing Felton (formerly Oser) v Oser (1969) 72 SR (NSW) 24; and

4. having regard to the elements required to be shown in an application for family provision, including that to qualify as an “eligible person” a would be applicant must have had a particular personal relationship to the relevant deceased and he or she had a moral obligation to make some proper provision for the would be applicant (which can only be determined by reference to the personal circumstances of the would be applicant), it is inescapable that the right to seek an order under the FPA must be regarded as “personal” in the relevant sense: McEvoy at 102, citing Coffey v Bennett [1961] VR 264 at 266 per Sholl J.

64. Anecdotally, from my practice in succession law over the last three decades, Powell J’s decision in McEvoy was acted upon and not actively disputed by practitioners. There are only two cases which have relevantly cited or referred to McEvoy in New South Wales, being Price and Hall v Hansen [2008] NSWSC 1200 (Hall), both of which are decisions of Macready AsJ.

65. McEvoy was not disputed by the parties in Price. It was accepted that, by reason of the decision in McEvoy, the late plaintiff’s cause of action did not survive his death and the proceedings abated: Price at [2].

66. Similarly, in Hall, none of the parties sought to re-argue the conclusions of Powell J in McEvoy: Hall at [12].

67. Pertinently, the applications made by the late plaintiffs in both Price and Hall were under the FPA. Thus, as observed above, there appears to be no decision of this Court which has considered the effect of McEvoy under the family provision scheme in the Succession Act.

Introduction of the Succession Act

68. On 27 October 2006, the Succession Act was assented to in New South Wales following recommendations of succession law reform.

69. The Explanatory Note to the Succession Bill 2006 (NSW) stated that the object of the Bill was “to restate, with amendments, the law relating to wills in New South Wales in order to implement (with modifications) the recommendations of the National Committee for Uniform Succession Laws regarding the law of wills contained in its final report to the Standing Committee of Attorneys-General in December 1997”, which recommendations had been endorsed by the New South Wales Law Reform Commission in Report 85 (1998) – Uniform Succession Laws: The Law of Wills (April 1998). That reform was part of a staged reform of succession law. A model form of Bill dealing with family provision reforms was later prepared by the New South Wales Law Reform Commission in Report 110 (2005) – Uniform Succession Laws: Family Provision (May 2005) (Report 110).

70. The Succession Amendment (Family Provision) Bill 2008 (NSW) proposed a repeal of the FPA and implementation of the model Bill endorsed by the Standing Committee of Attorneys-General. Some changes had been made to take into account the specific policy concerns of the New South Wales Government, and suggestions made by an expert committee, which the Government established to provide advice on the reforms to succession law: New South Wales Legislative Council, Parliamentary Debates (Hansard), 26 June 2008 at 9423.

71. Relevantly, amendments to the extant family provision legislation were introduced into the Legislative Council on 26 June 2008 by the Succession Amendment (Family Provision) Bill 2008 (NSW) and, following some minor amendments, passed in the Legislative Council on 24 September 2008. The Bill was ultimately passed by both Houses on 21 October 2008 and assented to on 28 October 2008. The amendments in Ch 3 of the Succession Act apply to the estate of a person who dies on or after 1 March 2009.

68. The second reading speech for the Bill by the Honourable John Hatzistergos, the then Attorney General, does not touch upon circumstances where the applicant for family provision has died after commencing proceedings but prior to their determination: New South Wales Legislative Council, Parliamentary Debates (Hansard), 26 June 2008 at 9422-9424. Nor does the further debate in the Legislative Council: New South Wales Legislative Council, Parliamentary Debates (Hansard), 24 September 2008 at 9881-9885. Evidently, whether there ought to be a shift from the position set out in McEvoy under the FPA in the new Ch 3 of the Succession Act was not debated.

69. Family provision legislation prior to the catalyst for change in the 1990s and 2000s was not uniform in Australia, and the terms of such legislation differed between New South Wales and the other States. This, in part, explains why McEvoy has been distinguished in other States: see e.g. King v Condon [2009] 2 Qd R 143; [2009] QSC 67 at [18]-[22] per de Jersey CJ. Indeed, despite the national efforts to achieve uniformity, family provision legislation is still not uniform in Australia.

70. None of the leading succession law texts or services suggest that, in New South Wales, the position is other than that the claim of a family provision applicant who dies prior to the hearing or final determination of the claim does not survive for the benefit of the applicant’s estate: see e.g. Leslie Handler and Richard Neal, Mason and Handler Succession Law and Practice NSW (LexisNexis) at [s 59.4]; John de Groot and Bruce Nickel, Family Provision in Australia (6th ed, 2021, LexisNexis) (de Groot & Nickel) at [2.29]; G E Dal Pont, Law of Succession (3rd ed, 2021, LexisNexis) at [17.13]-[17.15].

Text

75. Whilst the legislation must be viewed as a whole, the following provisions bear particular note on examination.

76. Section 3(1) provides, in part:

eligible person means a person who may make an application for a family provision order under section 57.

family provision order means an order made by the Court under Chapter 3 in relation to the estate or notional estate of a deceased person to provide from that estate for the maintenance, education or advancement in life of an eligible person.

77. Section 57 provides as follows:

57 Eligible persons

(1) The following are eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person—

(a) a person who was the spouse of the deceased person at the time of the deceased person’s death,

(b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,

(c) a child of the deceased person,

(d) a former spouse of the deceased person,

(e) a person—

(i) who was, at any particular time, wholly or partly dependent on the deceased person, and

(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,

(f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.

…

(2) In this section, a reference to a child of a deceased person includes, if the deceased person was in a de facto relationship, or a domestic relationship within the meaning of the Property (Relationships) Act 1984, at the time of death, a reference to the following—

(a) a child born as a result of sexual relations between the parties to the relationship,

(b) a child adopted by both parties,

(c) in the case of a de facto relationship between a man and a woman, a child of the woman of whom the man is the father or of whom the man is presumed, by virtue of the Status of Children Act 1996, to be the father (except where the presumption is rebutted),

(d) in the case of a de facto relationship between 2 women, a child of whom both of those women are presumed to be parents by virtue of the Status of Children Act 1996,

(e) a child for whose long-term welfare both parties have parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998).

78. Section 59 provides as follows:

59 When family provision order may be made

(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that—

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

(b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of eligible person in section 57—having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and

(c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.

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

(3) The Court may make a family provision order in favour of an eligible person in whose favour a family provision order has previously been made in relation to the same estate only if—

(a) the Court is satisfied that there has been a substantial detrimental change in the eligible person’s circumstances since a family provision order was last made in favour of the person, or

(b) at the time that a family provision order was last made in favour of the eligible person—

(i) the evidence about the nature and extent of the deceased person’s estate (including any property that was, or could have been, designated as notional estate of the deceased person) did not reveal the existence of certain property (the undisclosed property), and

(ii) the Court would have considered the deceased person’s estate (including any property that was, or could have been, designated as notional estate of the deceased person) to be substantially greater in value if the evidence had revealed the existence of the undisclosed property, and

(iii) the Court would not have made the previous family provision order if the evidence had revealed the existence of the undisclosed property.

(4) The Court may make a family provision order in favour of an eligible person whose application for a family provision order in relation to the same estate was previously refused only if, at the time of refusal, there existed all the circumstances regarding undisclosed property described in subsection (3) (b).

79. Section 60(1) provides as follows:

(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.

Determination

80. The history of prior family provision legislation in New South Wales, as noted above, gives no support for the view that provision could be made for an applicant who had commenced proceedings but dies prior to determination of the claim.

81. Specifically, none of the law reform reports or second reading speeches in respect of Ch 3 of the Succession Act suggest that provision could be made for an applicant who dies prior to determination of the claim.

82. Whilst the decision of Powell J in McEvoy is of assistance in highlighting the sort of considerations that may be relevant in construing these statutory provisions, it is not binding. As Kirby P (as his Honour then was) stated in Samsley v Barnes [1990] NSWCA 161 at 7, “[t]here is always a danger where a reformed Act borrows heavily upon ideas which previously existed in the common law or in an earlier statute, that lawyers will approach the construction of the Act affected by the previous law”.

83. If proof were needed for that danger, it is given by the decision of the Court of Appeal in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308. Relevantly, that decision confirms that one cannot readily assume the provisions of ss 59 and 60 of the Succession Act should necessarily be construed in the same way as their “equivalent” counterpart in the FPA, namely ss 7 and 9, which were relied upon by Powell J in McEvoy.

84. There are various essential conditions to making a family provision order.

85. One requirement is that, at the time when the Court is considering (i.e. finally hearing and determining) the application (per s 59(1)(c) Succession Act), the applicant is an eligible person: s 59(1)(a) Succession Act.

86. An additional requirement in the case of applicants falling within the categories in ss 57(1)(d), (e) and (f) is that there be factors which warrant the making of the application: s 59(1)(b) Succession Act. However, that is determined having regard to all the circumstances of the case, including present circumstances at the time of considering the application: ss 59(1)(b) and (c) Succession Act.

87. The Court determines whether or not adequate provision has been made for the proper maintenance or advancement in life of an applicant as at the time that the Court is considering the application, having regard to the facts known to the Court at the time that the order is made: ss 59(1)(c), (2) Succession Act (emphasis added). That temporal direction reflects a statutory purpose to permit events subsequent to the death of the testator (or intestate person) to be taken into account, both in determining the need for, and in formulating an order for, provision: Rodny v Weisbord [2024] NSWCA 183 (Rodny) at [64]-[66] per Basten AJA (Ward P and Stern JA agreeing at [2] and [11], respectively).

88. For practical purposes, that timing occurs in the period where the Court hears the matter and delivers judgment. Often, that period will not be of any material length: Tarbes v Taleb [2023] NSWSC 565 at [236]-[237]. The language of s 59(2) of “having regard to the facts known to the Court at the time the order is made” requires the Court to make the order which it considers appropriate, having regard to the evidence and any findings on the evidence. The evidence will be complete when judgment is reserved, but the facts will remain unresolved until judgment is delivered: Rodny at [63].

89. Further, for the purpose of determining whether the applicant is an eligible person and whether to make a family provision order, the Court may have regard to the matters set out in s 60(2) of the Succession Act: s 60(1)(a) Succession Act. Those matters relevantly include any matter which the Court considers relevant, including matters in existence at the time the application is being considered: s 60(2)(p) Succession Act.

90. Lastly, I note that in the requirement that a person “is an eligible person” in ss 59(1)(a) and (b) of the Succession Act, “is” is the third person singular present tense form of the verb “to be”: Macquarie Dictionary, online ed.

91. In my view, the text of the provisions to which I have referred above suggest that, properly construed in light of its context and purpose, the power conferred on the Court under Ch 3 of the Succession Act to make a family provision order is only capable of being exercised in favour of a person then living.

92. That conclusion is, in my view, further reinforced by other provisions which are entirely consistent with the notion that the eligible person must be a person living at the time of the Court’s determination. Without being exhaustive, I note that:

1. the Court’s power to make consequential and ancillary orders in addition to, or as part of, a family provision order, includes the power to transfer property of the estate directly to the eligible person in whose favour the order is made, or to any other person as trustee for that person: s 66(1)(a) Succession Act; and

2. the Court may make a family provision order subject to a condition that the eligible person in whose favour the order is made enter into an undertaking, or give security, that the person will restore any property received under the order if the order is ultimately revoked because it is found that the deceased person was not deceased when the order was made: s 67(1) Succession Act.

93. The definitions of “eligible person” and “family provision order” in s 3 of the Succession Act are consistent with, and not contrary to, that conclusion.

94. Even if I be wrong, for reasons similar to those given by Powell J in McEvoy, I am unpersuaded that the current provisions of s 2 of the MP Act ^[4]  operate so as to preserve for the benefit of the estate of an eligible person any right which that eligible person might have had to seek a family provision order under the Succession Act.

    4. Section 2(1) is in the same terms save that the words “or to claims under section 52 of the Matrimonial Causes Act 1899, as amended by subsequent Acts, for damages on the ground of adultery” have been repealed and the reference to “De Facto Relationships Act 1984” has been updated to refer to “Property (Relationships) Act 1984”.

95. Under the UCPR, proceedings do not abate as a result of a party’s death or bankruptcy if a cause of action in the proceedings survives: r 6.30(1) UCPR.

96. If a cause of action survives, and the interest or liability of a party to any proceedings passes from the party to some other person, the Court may make such orders as it thinks fit for the joinder, removal or rearrangement of parties: r 6.30(2) UCPR.

97. Assuming, as I will for the moment, that a family provision claim can properly be described as a “cause of action”, I am not satisfied that such a “cause of action” survives. I have already referred to the conclusion of Powell J that, under the FPA, the relevant “cause of action” was not transmissible as it was personal to the applicant. It seems to me that, as a matter of construction of the relevant provisions, no different conclusion ought to be drawn in relation to family provision proceedings under the Succession Act.

98. That is consistent with the view taken, at least in New South Wales, that a family provision claim is a personal or bare right of action, which does not, for example, vest in a trustee in bankruptcy by operation of the Bankruptcy Act 1966 (Cth): e.g. Muir v Angeles [2020] NSWSC 1056; (2020) 355 FLR 137 at [57] per Hallen J, citing inter alia Coffey v Bennett [1961] VR 264 at 265-267 per Sholl J and McLeod v Johns [1981] 1 NSWLR 347 at 349 per Kearney J. Of course, whether a family provision claim is a form of personal right or some other form of right is dependent upon the applicable statutory provisions in any given jurisdiction: e.g. de Groot & Nickel at [2.29]; and see more generally on the issue of personal rights Chappell as Executor of the Estate of Robert Hastings Hitchcock v Goldspan Investments Pty Ltd (2021) 58 WAR 503; [2021] WASCA 205 (Chappell) at [276] per Pritchard JA.

99. In my opinion, the effect of Elaine’s death on her claim in the proceedings is that both her “cause of action” and the proceedings abated.

Issue 3: Is there jurisdiction to enforce a compromise entered into whilst Elaine was still alive?

100. As I have indicated, the parties initially reached a form of settlement on 10 April 2024, whilst Elaine was alive. The surviving parties to the proceedings (Nicole and Karyn) proposed a revised form of settlement for the Court’s consideration, which included orders dismissing Elaine’s claim for provision (rather than provision of $50,000) and seeking no order as to her costs (rather than an order providing for a component of her costs to be paid out of the estate).

101. I addressed the position of making consent orders in respect of family provision claims which invoke jurisdiction under the Succession Act in Jurak v Latham [2023] NSWSC 1318 (Jurak). The position is clearly stated by the authorities to which I referred at [174]-[186] as follows:

174. In the early years of the exercise of jurisdiction under the FPA, Young J (as his Honour then was) addressed the approach of the Court to consent orders involving jurisdiction under the FPA.

175. In McMahon v McMahon (Supreme Court (NSW), Young J, 2 August 1985, BC8500637, unrep) (McMahon v McMahon), his Honour stated at 2:

An order under s31 does not follow just because all the parties to the proceedings have agreed between themselves that such an order should be made. Whilst in general if a Court is asked by consent of all parties to make an order it will make an order, as I said in my judgment in Kalyk v Whelan 31 July 1985 where the legislature casts on the Court the duty of seeing that an order is only made in appropriate circumstances the Court is not bound to make any order tendered by all the parties by consent. Because of this it is necessary for me to look into the facts and circumstances of the plaintiffs and the defendant so far as they are relevant to a possible claim under the Family Provision Act.

176. In the context of proposed consent orders, it has been said that in such cases usually there is very little needed from the parties to convince the judge that the orders are appropriate by way of amount or otherwise: Hamilton-Smith v Markby (Supreme Court (NSW), Young J, 24 May 1995, BC9504721, unrep) (Hamilton-Smith v Markby) at 3. In a practical sense, whilst that might be true in a number of cases, it should not be assumed that the Court does not appropriately scrutinise proposed family provision settlements.

177. The Court has an inherent power to control its own proceedings including the making of consent orders, but is not obliged to act upon the request by the parties to make orders by consent: e.g. Groser v Equity Trustees Ltd (2008) 19 VR 598; [2008] VSC 163 (Groser) at [20] per Habersberger J.

178. The Court has statutory power to make a family provision consent order in terms of a written agreement that is produced to the Court by the affected parties in relation to an application after mediation, or on the advice of a legal practitioner, and indicates the parties’ consent to the making of the family provision order in those terms: s 98(3) Succession Act. It is obvious from the terms of s 98(3) that the power is discretionary: Daley v Donaldson [2022] NSWCA 96 (Daley v Donaldson) at [65]-[66] per Leeming JA (White and Mitchelmore JJA agreeing).

179. The approach of the Court in dealing with settlements of proceedings invoking the jurisdiction of the Court under the Succession Act or FPA has been addressed by the Court of Appeal.

180. It must be established that the prerequisites to the exercise of the statutory power have been satisfied, and the fact that the parties have agreed between themselves on a particular outcome does not relieve the Court from being so satisfied of the jurisdictional requirements: Daley v Donaldson at [67], [68]; Bartlett v Coomber at [84]-[86] per Bryson AJA, at [67] per Hodgson JA.

181. The comments of Young CJ in Eq in Hadley v McNamara, Re The Estate of McNamara (Supreme Court (NSW), Young CJ in Eq, 7 December 1995, BC9506808, unrep) at 2-3 addressing the same topic should be read in light of the above.

182. However, in exercising the jurisdiction a judge will have regard to the desires and considerations of the parties and their legal representatives.

183. In Bartlett v Coomber, Bryson AJA stated at [91]:

91. The circumstances to which the Court may have regard are wide and an agreement to settle a claim is part of them. There may be exceptions, but in almost every case an agreement which an executor has made in exercise of the statutory power to make compromises, with an understanding of the assets in the estate and the interests of the persons otherwise entitled to them, and with legal advice will ordinarily have an extremely strong claim for attention among the relevant circumstances. It is not simply pacta sunt servanda, because such agreements are made subject to the necessity of obtaining the Court’s approval. Nonetheless the importance of such agreements is high.

184. In Daley v Donaldson, Leeming JA at [69] observed:

69. … in the exercise of its discretion, give a measure of deference to a compromise reached between parties to litigation, especially if the parties are represented and may be taken to be conscious of the constraints upon the making of a family provision order. This reflects the more general propositions that a court must be satisfied that there is jurisdiction, but that where the parties are agreed, the court may quite readily be satisfied: see for example Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 at 428; [1911] HCA 31 where it was said that “very slight inquiry may be adequate”. …

185. In Bartlett v Coomber, Mason P gave some practical insight as to the occasions where the Court may reject a compromise observing that the Court’s power to do so may be exercised where the sum proposed for the applicant lies outside the range of possible outcomes, being either too low or too high, or where giving effect to a settlement may fail to effectuate specific policies of the legislation or amount to an abuse of process or otherwise offend public policy in a demonstrable way: at [56], [58], [65].

186. In particular, the Court has a power to decline to make orders giving effect to a compromise where it is unjust to enforce the compromise or it is in the interests of justice that the matter proceed to trial, which might arise for consideration, for example, in cases where there is an issue as to the existence or the manner of exercise of the authority of counsel or legal practitioner in making a compromise: Bartlett v Coomber at [88] per Bryson AJA citing Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27 and Lewis v Combell Constructions Pty Ltd (1989) 18 NSWLR 528.

102. Mr Raupach did not suggest that the initial form of consent orders making provision for Elaine and her costs ought to be made. Even if I were asked to do so, I would not be satisfied, in light of the above-mentioned conclusions that I have come to, that it would have been appropriate to enforce the initial compromise in the interests of Elaine’s estate.

103. Generally speaking, parties by consent cannot confer jurisdiction upon the Court to make orders which it lacks power to make: see Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 163 per Gibbs CJ, Stephen, Mason and Wilson JJ; [1981] HCA 48.

104. In light of my earlier conclusions, I do not consider that the Court now has jurisdiction to make the orders sought in the initial compromise made whilst Elaine was alive.

Issue 4: Should Elaine’s claim be dismissed?

105. Given I have found that the proceedings brought by Elaine abated and there is no “cause of action” in respect of her family provision claim which survives her death, it follows that the proceedings instituted by her should be dismissed. That dismissal is, as I have alluded to earlier, a summary dismissal pursuant to r 13.4(b) of the UCPR on the basis that, by reason of the abatement, no reasonable cause of action is disclosed.

Issue 5: Costs of Elaine’s claim

106. As I have noted above, the parties have agreed that there should be no order as to the costs of Elaine to the intent that she bear her own costs of her proceedings.

107. Whilst there is no evident contest over that order, it is still necessary for the Court to be satisfied that it is an appropriate order.

108. Given the agreed position which the parties have taken in the revised consent orders, I am not required to address the issue of whether the Court has jurisdiction to make a positive costs order in favour of a deceased plaintiff’s estate for her costs of the family provision proceedings incurred prior to her death. Nor were there detailed submissions or debate on the issue.

109. However, given the abatement of Elaine’s claim, it should not be assumed that the Court has jurisdiction to make any costs order. Accordingly, it is appropriate that I briefly address this issue.

110. When proceedings are said to be a nullity or abate, questions arise regarding the jurisdiction of the Court to award costs.

111. A finding of a nullity is essentially a conclusion that the proceedings had no valid basis for commencement. Abatement, on the other hand, ordinarily assumes that the proceedings had been validly commenced. The effect of the abatement is that no further steps may be taken in the proceedings unless and until they are revived by an order of the Court, if such an order can be obtained: Scruby v Hoggan (1954) 55 SR (NSW) 2 at 6 per Roper CJ in Eq. The abatement will be permanent if the proceedings cannot be reconstituted by the substitution of a proper party for the deceased plaintiff: Chappell at [68] per Buss P and Mitchell JA; see also Bogeta Pty Ltd v Wales [1977] 1 NSWLR 139 at 144-145 per Hutley JA.

112. The jurisdiction of the Court to award costs in proceedings is essentially statutory, requiring a process of construction: see G E Dal Pont, Law of Costs (5th ed, 2021, LexisNexis Australia) at [6.1]-[6.13]; Lindsay J, “The Dynamics and Dilemmas of Costs Orders upon an Exercise of ‘Welfare’ Jurisdiction” (Paper), The Blue Mountains Law Society 2023 Succession Conference, 7-8 September 2024 at [4]-[5]. In that regard, an analysis of the Court’s jurisdiction to make costs orders in civil proceedings begins with s 98 of the Civil Procedure Act 2005 (NSW) (CPA), read with r 42.1 of the UCPR and ancillary provisions: Alexiou v Alexiou [2024] NSWSC 1340 (Alexiou) at [118] per Lindsay J. In the context of family provision proceedings, those provisions are supplemented by special provisions in Ch 3 of the Succession Act relating to the Court’s power to make costs orders, in particular s 99: Alexiou at [121].

113. In addition, as family provision proceedings are proceedings which will ordinarily address to some extent the management or administration of any property subject to a trust or forming part of a deceased person’s estate, the Court may, if it thinks fit, order any costs to be paid out of such part of the property as in the opinion of the Court is the real subject matter of the proceedings: s 93(3) Trustee Act1925 (NSW) (Trustee Act).

114. Ultimately, the question of whether there is jurisdiction to award costs in proceedings which are a nullity or which abate may depend upon the applicable statutory provisions which govern the particular Court in which the proceedings have been commenced.

115. Conceptually, each of s 98 of the CPA, s 99 of the Succession Act and s 93(3) of the Trustee Act might potentially provide a source of jurisdiction for the Court to make an appropriate costs order in circumstances such as those that arose in this case.

116. Specifically, pursuant to s 98 of the CPA:

1. costs are in the discretion of the Court; and

2. the Court has full power to determine by whom, to whom and to what extent costs are to be paid.

117. Further, the Court may order that the costs of family provision proceedings under the Succession Act in relation to the estate or notional estate of a deceased person (including costs in connection with mediation) be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit: s 99(1) Succession Act.

118. In some circumstances, where proceedings or applications are a nullity, the Court has found that there is no jurisdiction to make any costs orders: e.g. Deveigne v Askar (2007) 69 NSWLR 327; [2007] NSWCA 45 (where applications were made in the District Court in the name of a non-existent person).

119. There are other cases, such as Marshall v D G Sundin & Co Pty Ltd (1989) 16 NSWLR 463 (Marshall) and Darrington v Caldbeck (1990) 20 NSWLR 212 (Darrington), which, at first glance, seemingly admit of a jurisdiction to deal with costs where the proceedings have been found to be a nullity. In Marshall, Yeldham J made a costs order that the plaintiff pay the costs of the second defendant, with no order as to the costs of the first defendant being made: Marshall at 475E-F. In Darrington, Young J (as his Honour then was) indicated that the Court would, in due course, hear counsel on the question of costs if they so wished, though provisionally indicated that there probably should be no order as to costs. However, his Honour observed that, in the ordinary course of events, both sides’ reasonable costs of the application (being for the appointment of trustees for sale pursuant to s 66G of the Conveyancing Act 1919 (NSW)) would come out of the proceeds of sale: Darrington at 220D. On further consideration, it is unclear from the reports of those decisions whether any assumed jurisdiction to make costs orders arose because their Honours considered that such jurisdiction existed or because of the fact that both proceedings involved appeals from the decisions of a Master of the Court (and the references to costs thereby being to the costs of the appeals).

120. More relevantly, there are cases which express doubt regarding whether there is jurisdiction to award costs in family provision cases where proceedings abate.

121. In his submissions, Mr Armfield properly drew to the Court’s attention to the decision in Hall.

122. Prior to that decision, in Price Master Macready discussed a number of authorities bearing upon the issue of costs and was ultimately persuaded that, in light of the death of the plaintiff and the consequent abatement of the proceedings, and having regard to the decisions in Kalejs v Minister for Justice and Customs (2001) 111 FCR 442; [2001] FCA 1769 and Stead v Foster (Supreme Court (NSW), Levine J, 4 September 1998, unrep) (Stead), the appropriate costs consequences in the circumstances of the case were that there be no order as to costs.

123. In an extract quoted in Price, Levine J stated in Stead at 20 that:

In my judgment, the abatement of the proceedings in circumstances where they cannot be revived deprives the Court of jurisdiction to entertain an application for costs as made by the first defendant purportedly in the abated action or by freshly originated process.

124. In Hall, Macready AsJ relied upon his decision in Price and the authorities referred to therein to refuse the defendants’ application for costs of the family provision proceedings against the deceased plaintiff.

125. His Honour’s comments in Price and subsequently in Hall convey the impression that the Court has no jurisdiction to make costs orders in family provision proceedings in circumstances where they are said to abate by reason of the death of the plaintiff. The essential reasoning of his Honour can be seen in Hall at [46]:

46. As I have sought to demonstrate in Price v Ikin and the cases to which I then referred, a proceeding which has been abated in these circumstances cannot be revived for the purpose of seeking a costs order by the plaintiff. If a deceased persons legal representative has no legal interest in the proceedings and therefore no right to apply for a costs order in his favour it would seem to me that as a natural corollary the defendant would not have the right to apply for an order for costs against the deceased’s personal representative. He may have had a right against the plaintiff but that was a separate claim that died with the plaintiff. In these circumstances I do not think that the first defendant is entitled to an order for costs.

126. In a case where there is a real issue regarding whether there is jurisdiction to make a costs order in family provision proceedings under the Succession Act which abate, there may well be occasion to explore the reasoning in the above decisions and the extent of the Court’s jurisdiction under s 98 of the CPA and s 99 of the Succession Act (considered in part for example in Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392) in light of caselaw which indicates that cost outcomes in family provision cases depend upon the overall justice of the case: e.g. Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521 at 522 per Gaudron J; Salmon v Osmond [2015] NSWCA 42; (2015) 14 ASTLR 442 at [170]-[174] per Beazley P (as her Excellency then was) (McColl and Gleeson JJA agreeing).

127. However, in light of the above matters which give reason to ponder whether jurisdiction to make a costs order exists, I will not presume that there is jurisdiction to make an order that there be no order as to costs in relation to Elaine’s costs (as the parties have requested). Rather, I propose to simply note that Elaine’s costs of the proceedings will be a matter to be addressed, if at all, by those interested in the administration of her estate, without the benefit of any specific court order.

128. The position is arguably different in relation to Karyn’s costs as executrix. Certainly, in the case of an executor’s costs of defending family provision proceedings, such costs properly incurred will ordinarily fall within the description of being a testamentary expense to be paid out of the estate: see Andrew v Andrew (No. 3) [2013] NSWSC 286 at [45] per Hallen J; O’Brien v McCormick [2005] NSWSC 619 at [56] per Campbell J (as his Honour then was). I see no compelling reason why that would not be so irrespective of whether the proceedings abate or not.

129. In light of that consideration, I consider that, notwithstanding the abatement of Elaine’s claim, I will make orders that Karyn’s costs of the proceedings, calculated on the indemnity basis, be paid or retained, as the case may be, out of the estate of the deceased. In the case of Elaine’s claim, that is on the basis that they are a proper testamentary expense. In the case of Nicole’s claim, it is on the basis that the order is a proper exercise of the Court’s discretion pursuant to s 98 of the CPA.

Issue 6: Can the interests of Barbara, June and Tristan be disregarded?

130. As I have indicated above, the evidence (in particular the searches undertaken by Mr Wilson) admits of some uncertainty regarding the identification and location of Barbara, if indeed she is still alive.

131. It suffices to say that I am comfortably satisfied that the Barbara with whom the deceased had a relationship is either one of the persons described as the first Barbara or the second Barbara. The searches in respect of the first Barbara and the second Barbara revealed that they are both now deceased.

132. In those circumstances, I propose to proceed on the basis that the Barbara with whom the deceased had a relationship commencing in or about 1984 is now deceased and, accordingly, is no longer an eligible person. As such, it is not necessary for the Court to consider disregarding her interests or to address the question of whether there has been service of notice on her pursuant to s 61(2)(a) of the Succession Act.

133. In relation to June, I am satisfied that the woman with whom the deceased had a relationship is the June Mavis Martin referred to in the searches undertaken by Mr Wilson, which reveal that she is now deceased.

134. In relation to Tristan, there is some evidence that he had lived with the deceased and Nicole in accommodation provided by the deceased for a two-year period between 2002 and 2004. Accepting that evidence at face value, Tristan is potentially eligible as a member of a household of which the deceased was a member, and being dependent upon the deceased at least for accommodation and also it seems for provision of some meals. On 17 April 2024, Mr Wilson sent a letter dated 11 April 2024 to Tristan by email with other documentation enclosed, including relevantly a form of a Notice of Claim.

135. On 18 April 2024, Tristan responded to that email indicating that he would not be making a claim on the deceased’s estate.

136. Following a breakdown of an earlier conditional settlement, there was apparently some suggestion that Tristan might bring a claim, albeit out of time. However, at the hearing on 3 October 2024, Mr Raupach stated that he had spoken to Tristan the prior night and he had confirmed that he was not going to make a claim. That has now been formalised by evidence from Mr Raupach.

137. Having regard to the fact that Tristan has been formally served with notice of the application and in light of the clear indication that he does not propose to make a claim, I consider it appropriate to make the orders requested and to determine the claim disregarding his interests: s 61(2)(a) Succession Act.

Issue 7: Should the interests of Ethan be disregarded?

138. The position regarding Ethan is a little more complex as he is a minor. The evidence from Nicole admits of the possibility that Ethan may have lived with the deceased for a period of a few months in 2020 (see [51]-[52] of Nicole’s 30 November 2023 affidavit). Certainly, at the time of the hearing on 3 October 2024, Mr Armfield was proceeding on that basis. Mr Raupach, who at the time of the hearing had opportunity to speak with Nicole, indicated to the Court that Ethan had probably spent a period of about a year in total living with the deceased: T 12. That indication was subsequently supported by further evidence from Mr Raupach.

139. Thus, Ethan is potentially an eligible person as a member of a household of which the deceased was a member, being dependent upon the deceased for accommodation. Mindful no doubt of the possibility that Ethan was potentially eligible and to address conditions under the initial settlement dealing with that, Mr Wilson arranged to send a letter to Nicole by email purportedly in her capacity as “tutor for Master Ethan Bowers”, which enclosed a form of Notice of Claim: Annexure A to Mr Wilson’s 9 May 2024 affidavit. The letter and its enclosures were sent on 17 April 2024. The following day, Nicole sent an email to Mr Raupach stating relevantly that: “[a]fter careful consideration[,] I have chosen not to seek legal advice in this matter. Ethan Bowers will not be making a claim now or in the future”.

Service of a Notice of Claim on a person under an incapacity

140. There is no prescribed method of service of a Notice of Claim either under the relevant rules of Court or Practice Note SC EQ 07: Jurak at [50]. In Jurak, I addressed service requirements at [126]-[132] as follows:

126. Despite the obvious connections between the nature of probate proceedings and family provision proceedings, the notification requirements in each of those type of proceedings is separately provided for to meet the specific objects of the jurisdiction.

127. In probate proceedings, a Notice of Proceedings must be served personally: [Supreme Court Rules 1970 (NSW) (SCR)] Pt 78 r 64. There are particular provisions in relation to service of notices on persons under a legal incapacity: SCR Pt 78 rr 61-63.

128. In family provision proceedings, there is no specific requirement for personal service. Documents in family provision proceedings as in other proceedings are not required to be personally served unless the rules so require or the Court so orders: r 10.20 UCPR.

129. Thus, Notices of Claim in family provision proceedings are served in a variety of manners. This includes personal service, service by post and service by email.

130. When one looks at the provisions of [Sch J (Succession Act 2006) SCR], the distinctive characteristic which pervades all of its provisions are matters relating to the joinder of parties to the proceedings and notification of affected persons.

131. Practitioners are expected to use common sense in light of the purposes which underlie the jurisdiction as to what method of service is appropriate in any given situation.

132. The Court has ample power to require a particular method of service to meet notification requirements having regard to the exigencies of each particular case. That clearly includes, in appropriate cases, the Court requiring that personal service be effected.

141. Generally in any civil proceedings in which a document is required to be served personally on a person under a legal incapacity, there are specific provisions which apply: see r 10.12 UCPR. Despite the textual heading to r 10.12 of the UCPR, its terms are not confined to an originating process. If the person under legal incapacity has a tutor in the proceedings, the document may be served on the tutor: r 10.12(3) UCPR.

141. If the person to be served is a minor and has no tutor in the proceedings, the document may be served: (a) on the person, but only if the person is aged 16 years or more; (b) on a parent or guardian of the person; or (c) if the person has no parent or guardian, on a person with whom he or she resides or in whose care he or she is: r 10.12(5) UCPR.

142. If the person to be served is a protected person (within the meaning of the NSW Trustee and Guardian Act 2009 (NSW)) and has no tutor in the proceedings, the document may be served: (a) if the person has a manager in respect of his or her estate, on the manager; or (b) if the person does not have a manager, on a person with whom he or she resides or in whose care he or she is: r 10.12(6) UCPR.

143. Further, the document may be served on any person (including the person under legal capacity) whom the Court may, before or after service, approve: r 10.12(4) UCPR.

144. In probate proceedings, there are specific provisions for service on persons under legal incapacity: see Pt 78 r 61 Supreme Court Rules 1970 (NSW) (SCR). In such a case, a person under legal incapacity may not answer a notice of proceedings other than by his or her tutor: Pt 78 r 62(1) SCR.

145. The object of service is to ensure that the document in question (and, more particularly, its contents) will come to the notice of the person to be served so that any lack of appearance is fairly to be attributed to a decision of that person: Ainsworth v Redd (1990) 19 NSWLR 78 at 85 per Kirby ACJ (as his Honour then was). This is one of the principal purposes which underlie the rules regarding service. One of the reasons why specific rules are directed to persons under an incapacity is that, in many cases, the person to be served has limited or, in some cases, no capacity to make informed decisions about the content of a document to be served. That risk heightens the need to ensure that a person who is to receive a document on behalf of the person under an incapacity will appropriately act to ensure that the person under an incapacity is assisted in decision making.

146. There are no specific provisions which address service of Notices of Claim on persons under legal incapacity in family provision proceedings.

147. Operation of the Family Provision List has revealed cases in which defendant representatives who have care or legal responsibility for the financial management or guardianship of a person under a legal incapacity have not served such persons with a Notice of Claim. There have been other cases in which a Notice of Claim has been served on someone who has care or legal responsibility for the financial management or guardianship of a person under a legal incapacity and the carer or guardian has not taken steps to ensure that the person under an incapacity has access to or receives any legal assistance or independent legal advice to consider the Notice.

148. In cases where no Notice of Claim has been served on the person under an incapacity or someone else on their behalf, the Court will generally not proceed to finalise the matter unless there is a request, coupled with evidence, which addresses whether, pursuant to s 61(2)(b) of the Succession Act, there is a proper basis for the Court to determine that service of any such Notice is unnecessary, unreasonable or impracticable in the circumstances of the case.

149. Further, where the proposed settlement of the proceedings affects the interests of a party under a legal incapacity, the Court will, in any event, need to consider whether the settlement ought to be approved pursuant to s 76(4) of the CPA: see e.g. Jurak at [194].

150. The statutory power under s 76 of the CPA does not specify considerations or terms for its exercise in approving or disapproving agreements. However, it is undoubtedly protective, to be exercised by reference to the best interests of the person under a legal incapacity, or if it is beneficial to him or her: Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 (Mills) at [19] per Hammerschlag J (as his Honour then was), citing AMS v AIF (1999) 199 CLR 160 at 189 per Gaudron J; [1999] HCA 26; see also Kelly v Kelly [2019] NSWSC 994 (Kelly) at [73] per Hallen J, citing Fairhurst (bht NSW Trustee and Guardian) v Fairhurst [2012] NSWSC 388, which was applied by Allsop P (as his Honour then was) in Institoris by his next friend Maria Institoris v Falconer [2012] NSWCA 298 at [2].

151. In Kelly, Hallen J stated at [74]:

74. While the Court will rely on the evidence before it advanced by the parties, including the view of the tutor and her, or his, legal advisers as to the appropriateness of the settlement, ultimately, the Court exercises its own independent judgment and considers for itself whether the settlement is beneficial to the person under the legal incapacity.

153. Where the proposed settlement of the proceedings affects the interests of a person under a legal incapacity who is not a party (such as a potentially eligible person or affected beneficiary), s 76(4) of the CPA is not applicable. However, in such a case, the Court still needs to consider whether the settlement ought to be approved in the best interests of the person under a legal incapacity and relies upon its inherent jurisdiction to do so: e.g. Mills at [22]-[24].

154. In cases where there has been purported service on someone on behalf of the person under an incapacity, generally the Court will carefully scrutinise the proof of service to ensure that the purposes of service of the Notice of Claim have been appropriately addressed. ^[5]

     5. Those purposes include drawing to the recipient’s attention: the need to address the questions of whether he or she is entitled to make a claim; the fact that there is a prescribed period within which a claim may be made, such that the recipient does not have an open-ended period in which to decide whether to make a claim or not; and the risk that if they do not make a claim before the Court deals with the plaintiff’s application, the Court may deal with the plaintiff’s application without regard to any possible application by the recipient: Jurak at [123].

155. The purposes of service and evident right of procedural fairness which underlies the purposes of Notices of Claim is not satisfied by service of a Notice of Claim for a person under an incapacity on someone with the care of such person but whose interests substantially conflict with the interests of the person under the incapacity.

156. As I indicated in Jurak, practitioners are expected to use common sense in light of the purposes which underlie the family provision jurisdiction as to what method of service of a Notice of Claim is appropriate in any given situation. The Court has ample power to require a particular method of service to meet notification requirements having regard to the exigencies of each particular case: Jurak at [131]-[132]. In the case of a person under an incapacity, the Court is vigilant to ensure that the purposes of service are addressed. In many cases, prima facie that will require personal service on an appropriate person on behalf of the person under an incapacity. Thus, an informed choice needs to be made as to who is an appropriate person to receive the Notice of Claim on behalf of the person under an incapacity.

157. Prima facie, or at least potentially, there is an issue of conflict in serving a Notice of Claim on the parent of a minor, who is potentially an eligible person, in circumstances where that parent is herself a plaintiff in the family provision proceedings.

158. Bearing the above in mind, unless the person under an incapacity has a tutor appointed (which appointment is premised on the basis that the tutor has no interest in the proceedings adverse to the interests of the person under legal incapacity: r 7.15(2)(c) UCPR), in most cases, the proper course for a representative who wishes to effectively serve a Notice of Claim is to seek approval of the Court as to an appropriate person to serve and the means of service, consistent with the underlying purposes of a Notice of Claim in family provision proceedings and r 10.12(4) of the UCPR. That course can also be taken by a representative who has already purported to serve a Notice of Claim but is in doubt as to whether such service is adequate, in which case approval may be sought in the form of either ratifying the existing service or supplementing it in some appropriate way.

159. In either case, the representative (or other interested party) should seek to list the matter so that it can be addressed by the Probate Registrar sitting in the Family Provision List or, alternatively, be referred to the Family Provision List Judge, for specific directions.

Issues regarding the representation of potentially eligible persons under an incapacity

160. Various issues arise in relation to the representation of potentially eligible persons under an incapacity.

161. A Notice of Claim may be served on a person under an incapacity because they are an eligible person. In that case, consideration needs to be given as to whether that person makes a claim for provision. Alternatively, a Notice of Claim may be served because the person under an incapacity may be a beneficiary of the deceased estate (whether by virtue of a Will or on intestacy) and that person’s interests may be potentially affected by a claim for provision being made by one or more applicants.

162. What a representative may be required to do in terms of informing potential applicants of the availability of a right to make a claim depends upon the family provision regime operative in the particular jurisdiction.

163. Under the general law, and absent any applicable statutory provisions, executorial obligations to notify applicants of such rights are not readily recognised. Thus, in Victoria, it has been held that an executor is not under an obligation to bring the fact of the availability of a right to make a claim for provision to the attention of a potential claimant: Robbins v Hume [2015] VSC 128 at [61] per McMillan J. The position is arguably the same in South Australia: Brooks v Young (2018) 131 SASR 365; [2018] SASCFC 81 (although the main issue in this case was the somewhat different question of whether a representative has any fiduciary duty to an applicant or potential applicant not to distribute an estate prior to establishing a claim to the estate).

164. In some jurisdictions, there are statutory provisions which act to inform and qualify the obligations of a representative in respect of persons under an incapacity who may be eligible to make a family provision claim. Such provisions go beyond merely the question of a representative considering service of a Notice of Claim and require consideration by the representative of whether the person under an incapacity ought to make an application for provision and what, if any, steps should be taken by the representative in that regard.

165. Thus, for example, in Queensland s 41(7) of the Succession Act 1981 (Qld) allows for a representative to make an application on behalf of a person under legal incapacity as follows:

(7) The personal representative or the public trustee or the chief executive of the department in which the Child Protection Act 1999 is administered, or any person acting as the litigation guardian of a person under a legal incapacity, may apply on behalf of a person under a legal incapacity in any case where such person might apply, or may apply to the court for advice or directions as to whether the person ought so to apply; and, in the latter case, the court may treat such application as an application on behalf of such person for the purpose of avoiding the effect of limitation.

166. There are similar provisions in Tasmania (see s 3(5) of the Testator’s Family Maintenance Act 1912 (Tas)) and New Zealand (see s 4(4) of the Family Protection Act 1955 (NZ)). Moreover, in New Zealand, in the case of an application by a representative made on behalf of a person who is not of full age or mental capacity, the limitation period is two years from the date of the grant of administration: s 9(2)(a) Family Protection Act 1955 (NZ). That is double the length of the prescribed period in the case of any other application: s 9(2)(b) Family Protection Act 1955 (NZ).

167. Those provisions have been construed as being permissive, there being no duty on the representative to make such an application: see de Groot & Nickel at [7.28]. However, in New Zealand, whilst the “permissive” construction has been applied (Spelman v Spelman [1920] NZLR 202 at 205 per Hosking J), there is authority to the effect that there may be “clear” circumstances where a representative may be regarded as under a duty to apply on behalf of a person under an incapacity, although those circumstances have not been precisely identified: e.g. Re Magson [1983] NZLR 592 at 599 per Cooke J (delivering judgment for the Court).

168. Later, in Irvine v Public Trustee [1989] 1 NZLR 67 such a “duty” was noted without any disapproval by Cooke P at 70, delivering judgment for a Full Bench ^[6]  of the Court. Nonetheless, the Court endorsed the view that a representative’s duty to be even-handed between all the beneficiaries includes persons entitled or potentially entitled as statutory beneficiaries under the family provision legislation (and of whose claims the representative is aware). The Court noted that the duty is not complied with but broken if the representative favours one beneficiary or potential beneficiary against another, and it would be wrong for him to bring or lend his name to litigation which may reasonably be seen to indicate that he is not impartial.

     6. Consisting of Cooke P, Richardson, McMullin, Somers, Casey and Bisson JJ.

169. Despite a proposal in the Family Provision Bill in Report 110 that the reform of the FPA in New South Wales include a provision for a representative to make an application for provision on behalf of a person under an incapacity, ^[7]  such a provision was not enacted and there is currently no equivalent provision in New South Wales.

     7. See Report 110 at 14-15.

170. Often family members charged with the care or legal responsibility for the financial management or guardianship of a person under an incapacity will act to arrange for a legal practitioner to be engaged or retained to consider the making of an application for provision by an appropriate tutor.

171. In New South Wales, the Court is in some circumstances approached on the issue of representation of a person under an incapacity in family provision proceedings. Such circumstances may arise where the person’s interests are or might be affected, or where (though less frequently) the issue of whether the person requires assistance in determining whether to make a claim or not needs to be addressed.

172. The Court has no set or specific approach to determine what is to be done in such cases. Rather, the Court, with the assistance of practitioners, considers what should be done to appropriately ensure that the purposes which underlie service of Notices of Claim are met and there is proper engagement with affected beneficiaries.

173. Bespoke or tailored arrangements may be approved for representation which are consistent with the overriding purpose of civil proceedings and which are proportional to the size of the estate, the nature and complexity of the claim, the circumstances of the person under an incapacity and the extent to which that person’s interests are affected.

174. In some cases, particularly where the estate is large and the incapable person prima facie has significant needs or their beneficial interests are potentially significantly affected, it may be appropriate for the Court to direct that arrangements be made for an independent solicitor to act in the interests of the person. In other cases, it may be appropriate for the Court to consider the making of a referral for the person for pro bono assistance, or to consider a specific solution directed to some form of assistance or representation in respect of the discrete issue. Whilst referrals under r 7.36(1) of the UCPR are in respect of “litigants”, it is not uncommon in estate law for arrangements to be made whereby practitioners offer pro bono assistance outside of the scheme of Pt 7 Div 9 UCPR referrals.

175. Where the estate is small and there is evidence (or least an expectation) that an applicant who has the care of a person under an incapacity (e.g. an infant child or a minor) uses his or her existing resources to care for that person and proposes to use the claimed or proposed provision to (at least in part) care for and maintain that person, the Court after careful consideration might not require that person’s interests to be separately represented.

176. Nonetheless, in any given case where there is any doubt about what should occur, the representative or other interested party ought to apply to the Court for directions to address the matter.

Determination

177. In the circumstances of this case, I do not regard service of the Notice of Claim on Nicole, in an attempt to satisfactorily serve the Notice on Ethan, as an adequate form of service having regard to the purposes of notice within the family provision jurisdiction. My reason for that finding is that Nicole is not a tutor (cf r 10.12(3) of the UCPR) and, in light of the potential conflict of interest as between Nicole and Ethan, I decline to approve service of the Notice of Claim upon her under r 10.12(4) of the UCPR or otherwise.

178. The question then arises as to whether there is an appropriate basis on which to determine that service of a Notice of Claim on Ethan is unnecessary, unreasonable or impracticable in the circumstances of the case, thus permitting me to disregard Ethan’s interests: s 61(2)(b) Succession Act.

179. I consider that, in all the circumstances of this case, in particular the relatively short period of time in which Ethan was potentially dependent upon the deceased and the fact that he is under the care of Nicole who is providing for him, the proposed settlement of the proceedings (which includes provision to Nicole) ought to proceed without any further requirement for service of a Notice of Claim on Ethan or to address further whether Ethan’s interests need to be separately represented.

Orders

180. I propose to make the following orders which are in a slightly varied form of the revised orders that have been agreed between the remaining parties. The orders of the Court are as follows:

1. Orders, pursuant to r 7.10(2)(a) of the Uniform Civil Procedure Rules 2005 (NSW), that proceedings affecting the interests of the first plaintiff, Elaine Marjorie Bowers, be dealt with in the absence of a representative of her estate for the limited purposes of addressing the notice of motion and making final orders in the proceedings.

2. Orders that the proceedings instituted by the first plaintiff, Elaine Marjorie Bowers, be dismissed pursuant to r 13.4(b) of the Uniform Civil Procedure Rules 2005 (NSW).

3. Notes that the costs of the first plaintiff will be a matter to be addressed, if at all, by those interested in the administration of her estate, without the benefit of any specific court order.

4. Orders pursuant to s 59 of the Succession Act 2006 (NSW) that the second plaintiff, Nicole Bowers, receive by way of provision out of the estate of Robert Wilson Quinn (the deceased) a lump sum of $50,000.00.

5. Orders that the costs and disbursements of the second plaintiff of the proceedings agreed in the sum of $50,000.00 inclusive of GST be paid out of the estate.

6. Orders that no interest is to be paid on the lump sum referred to in Order 4 if it is paid within 7 days of the making of these orders; and if not so paid, interest is to be paid on any unpaid part thereof, calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW), from the 8th day after the making of these orders until the date of payment in full.

7. Orders that the provision made for the second plaintiff be paid out of the deceased’s estate and that the burden of that provision be borne by the beneficiaries referred to in cl 3 of the deceased’s Will dated 24 August 2022 and as between themselves, equally.

1. Notes that the defendant Karyn Edwina Matthews, Robert Wilson Quinn (the younger) and Michelle Ann Courtney being the beneficiaries named in cl 3 of the deceased’s Will dated 24 August 2022, consent to these orders and notations.

2. Notes that Michelle Ann Courtney was discharged from bankruptcy on 18 July 2023 after the death of the deceased on 15 February 2023 and that the Australian Financial Security Authority has consented to the making of these orders.

3. Notes that June Martin, a former de facto spouse of the deceased, and a person who is or may be an eligible person, died on 21 June 2022.

4. Notes that the Court has disregarded the interests of Barbara Copeland, who is an eligible person (a former de facto spouse), on the basis that: on the balance of probabilities, she is deceased; or alternatively, if alive, in all the circumstances of the case, having regard in particular to the length of time that has elapsed since the deceased’s relationship with Barbara ended, service of any such notice is unnecessary.

5. Notes that the Court has disregarded the interests of Tristan Kable, a person who is or may have been a member of a household of which the deceased was a member and may have been partially dependent on the deceased and thereby an eligible person, as he has been served with the prescribed form of Notice of Claim but does not wish to make any claim for provision out of the estate or notional estate of the deceased.

6. Notes that the Court has disregarded the interests of Ethan Bowers, a person who is or may have been a member of a household of which the deceased was a member and may have been partially dependant on the deceased, and thereby an eligible person, and is a person under a legal incapacity (a minor), having being first satisfied that service of any further Notice of Claim upon Ethan is unnecessary in the circumstances of the case.

7. Orders that the defendant’s costs, calculated on the indemnity basis, of the proceedings be paid or retained, as the case may be, out of the estate of the deceased.

8. Notes that:

1. the second plaintiff is an eligible person;

2. the plaintiffs have served a notice identifying as eligible persons, the first and second plaintiffs, Tristan Kable and Ethan Bowers at the time of serving the summons;

3. the defendant has subsequently identified as further eligible persons, Barbara Copeland and June Martin; and

4. the defendant has filed the administrator’s affidavit, an affidavit of service of the notice of the plaintiffs’ claim and an affidavit of due enquiry and search regarding the eligible persons, June Martin and Barbara Copeland.

**********

Endnotes

Amendments

26 February 2025 - Coversheet amended

22 June 2025 - [58] - inserted the words "in Australia" between "which is a concept" and "unique to New South Wales"

Decision last updated: 22 June 2025