Bramwell v Bramwell

[2023] SASCA 94

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

BRAMWELL v BRAMWELL & ORS

[2023] SASCA 94

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)

14 September 2023

SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - APPEALS AS TO COSTS

This is an appeal against an order granting an application for further provision under s 7 of the Inheritance (Family Provision) Act1972 (SA) (‘the Act’) and the subsequent ruling on the question of costs and form of the orders.

Amanda Jane Bramwell is the appellant in her capacity as beneficiary of the Estate of Donald Gordon Bramwell (‘the deceased’) who died on 6 December 2018. She was the respondent to the original application and is the daughter of the deceased from his first marriage. Jean Bramwell is the respondent to these proceedings and was the applicant in the original proceedings. She is the deceased’s second wife.

The trial Judge upheld a claim by the respondent for further provision and awarded her the entirety of the deceased’s half interest in the matrimonial home located at 27A Hyland Terrace, Rosslyn Park (‘Hyland Terrace property’) and a legacy of $260,000 in lieu of the legacy provided to her in the deceased’s will dated 5 December 2017.

At the conclusion of proceedings, the trial Judge made an order that the respondent's costs be paid from the residuary estate of the deceased on a solicitor/client basis.

The appellant challenged: the trial Judge’s determination that the respondent had been left without adequate provision; the award of further provision including the absolute interest in the deceased’s interest in the Hyland Terrace property; and the subsequent ruling on costs.

Held, per the Court granting leave to appeal on Ground 4 but dismissing the appeal:

1.The deceased owed a strong moral duty to the respondent to make adequate provision for her from his estate. The trial Judge’s determination that the respondent was left without adequate provision was not unreasonable or plainly unjust.

2.The trial Judge’s determination as to the further provision to be awarded to the respondent, including the absolute interest in the deceased’s interest in the Hyland Terrace property, was within the range of awards that might reasonably have been made and did not go beyond what was adequate provision in the circumstances of this case.

3.Under s 9(8) of the Act, the court exercises the usual broad discretion as to costs. In exercising that discretion, it will be appropriate for a court to have regard to public policy objectives underpinning such claims, the size of the estate and the likely effect of an order for solicitor/client costs upon the parties and any residuary beneficiary, and all other usual considerations including the parties’ conduct in the litigation, the degree of success and any offers. To the extent that it has historically been appropriate to refer to an order that costs in family provision matters be payable on a solicitor/client basis as a 'standard order', it is preferable to abandon this terminology; a solicitor/client costs order is not the usual entitlement.

4.There was no error by the trial Judge in exercising her discretion to award costs on a solicitor/client basis.

Inheritance (Family Provision) Act 1972 (SA) ss 7, 9(8); Supreme Court Act 1935 (SA) s 50(1); Uniform Civil Rules 2020 (SA) rr 213.1, 212.3, referred to.

House v The King (1936) 55 CLR 499; Whitington v Whitington (No 2) [2009] SASC 178, applied.
Bowyer v Wood (2007) 99 SASR 190; Butcher v Craig [2010] WASCA 92 (S); Golosky v Golosky [1993] NSWCA 111; Goodman v Windeyer (1980) 144 CLR 490; Milillo v Konnecke (2009) 2 ASTLR 235; Parker v Australian Executor Trustees Ltd (No 2) (2016) 126 SASR 142; Pizimolas v Pizimolas [2010] SASC 209; Pontifical Society for Propagation of Faith v Scales (1962) 107 CLR 9; Singer v Berghouse (1994) 181 CLR 201; Thompson v Thompson [2015] VSC 706; Tiburzi v Butler (2017) 17 ASTLR 1; Vigolo v Bostin (2005) 221 CLR 191, discussed.

Abrego v Simpson [2008] NSWSC 215; Ball v Gaul (Supreme Court of New South Wales, Master McLaughlin, 29 August 1996); Ball v Newey (1988) 13 NSWLR489; Bladwell v Davis [2004] NSWCA 170; Blore v Lang (1960) 104 CLR 124; Bowditch v NSW Trustee and Guardian [2012] NSWSC 275; Bramwell v Bramwell & Ors [2022] SASC 12; Bramwell v Bramwell & Ors (No 2) [2022] SASC 76; Brennan v Mansfield & Ors [2013] SASC 83; Camernik v Reholc [2012] NSWSC 1537; Carter v Brine [2015] SASC 204; Chapple v Wilcox (2014) 87 NSWLR 646; Charlton v Charlton [2007] FAMCA 212; Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494; Colgate Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; Cross v Wasson (2009) 2 ASTLR 201; Crisp v Burns Philp Trustee Co Ltd (Supreme Court of New South Wales, Holland J, 18 December 1979) ; Doedens & Ors v Owen (No 2) [2018] SASC 23; Farr v Hardy [2008] NSWSC 996; Flotilla Nominees Pty Ltd v Western Australia Land Authority (2004) 28 WAR 95; Fountain Selected Meats (Sales) Pty Limited v International Produce Merchants Pty Limited (1988) 81 ALR 397; Friend v Brien [2014] NSWSC 613; Grey v Harrison [1997] 2 VR 359; Hertzberg v Hertzberg [2003] NSWCA 311; In the Estate of Brooks; Brooks v Public Trustee (1979) 22 SASR 398; In re Found; Found v Semmens [1924] SASR 236; Langtry v Campbell (Supreme Court of New South Wales, Powell J, 7 March 1991); Leander v Scannell [2020] FCCA 2830; MacEwan Shaw v Shaw (2003) 11 VR 95; Magill v Magill (2006) 226 CLR 551; Marshall v Carruthers [2002] NSWCA 47; McKenzie v Topp [2004] VSC 90; Montague v Montague [2002] NSWSC 328; Moore v Moore [2005] VSC 95; Ng v Lau; In the Estate of Ken Kui Yuen Lau [2020] NSWSC 713; Page v Hull-Moody [2020] NSWSC 411; Parente v Parente & Porter (1982) 29 SASR 310; Pizimolas v Pizimolas (2010) 108 SASR 153; Prior v Kerrison [2017] NSWSC 1295; Re McCaffrey (1982) 29 SASR 582; Re Pope (1975) 11 SASR 571; Salmar v Bark [2018] FCCA 2460; Sarant v Sarant [2020] NSWSC 1686; Sgro v Thompson [2017] NSWCA 326; Sierra v Sierra [2017] FCCA 596; Skye v Skye [2017] FCWA 134; Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; Smith v Barker [2005] NSWSC 14; Spata v Spata [2011] NSWSC 1221; Steinmetz v Shannon & Anor (2019) 368 ALR 161; Taylor v Farrugia [2009] NSWSC 801; Verzar v Verzar [2012] NSWSC 1380; W & D [2005] FMCAFAM 171, considered.

BRAMWELL v BRAMWELL & ORS
[2023] SASCA 94

Court of Appeal – Civil Appeal: Livesey P, Doyle and David JJA

1. THE COURT: This is an appeal from an order granting an application for further provision from a deceased estate under s 7 of the Inheritance (Family Provision) Act 1972 (SA) (‘the Act’).[1] The appellant also challenges the subsequent ruling on the question of costs and form of the orders.[2]

   [1]     Bramwell v Bramwell & Ors [2022] SASC 12.

   [2]     Bramwell v Bramwell & Ors (No 2) [2022] SASC 76.

2. Amanda Jane Bramwell is the appellant in her capacity as beneficiary of the Estate of Donald Gordon Bramwell (‘the deceased’) and was the respondent to the original application. She is the daughter of the deceased from his first marriage. Jean Bramwell is the respondent to these proceedings and was the applicant in the original proceedings. She is the deceased’s second wife.

3. The trial Judge upheld the claim made by the respondent and awarded her the entirety of the deceased’s half interest in the matrimonial home located at 27A Hyland Terrace, Rosslyn Park (the ‘Hyland Terrace property’) and a legacy of $260,000 in lieu of the legacy provided for her in his will dated 5 December 2017 (‘the will’).

4. At the conclusion of proceedings, the trial Judge made an order for costs on terms that the respondent be paid from the residuary estate of the deceased on a solicitor/client basis. 

5. In challenging the order for further provision, the appellant contends that the trial Judge erred:

   1.   by holding that the respondent had been left without adequate and proper provision by reason of being left a portable life interest in respect of the deceased’s interest in the Hyland Terrace property (Grounds 1 and 1A);

   2.   in the alternative, in determining the further provision that ought to be made for the respondent out of the deceased’s estate was, or included, the absolute interest in the deceased’s interest in the Hyland Terrace property (Ground 2);

   3.   in the overall exercise of determining the further provision that ought to have been made such that her Honour’s overall determination should be set aside and this Court, by way of re-hearing, should determine the matter (Ground 3); and

   4.   in ordering that the respondent should be paid her costs of the proceedings out of the estate of the deceased on a solicitor/client basis (Ground 4).

6. Leave to appeal is not required in relation to Grounds 1, 1A, 2 and 3 (the substantive appeal grounds) but is required in relation to Ground 4.

7. For the reasons which follow, we would grant leave to appeal on Ground 4 but dismiss the appeal. 

   Background

8. This appeal concerns a dispute over the estate of the deceased, who died on 6 December 2018. The appellant, who is now 48 years old, is the deceased’s only child. She suffers from various medical ailments for which she receives a disability support pension. At the time of the trial, she was employed casually but, due to her illnesses, she considered it unlikely that she would ever work full-time again.

9. The respondent is now 79 years old.  She is the deceased’s second wife.

10. The respondent and the deceased commenced living together in 1987 and, in early 1988, equally contributed to the purchase of a house in Wattle Park. They married in January 1989, and remained so until the deceased’s death in December 2018. Throughout their marriage, they purchased and lived in two other marital homes, funded by the sale of their previous house; the second was situated in Burnside, and the third was the Hyland Terrace property.

11. Their social life was a very active one. They both played tennis at the Memorial Drive Tennis Club and were involved in the running of the club. They enjoyed music, and frequently attended jazz festivals. They enjoyed the theatre and the opera. They both played golf and were active members of various clubs including the Adelaide Club and the Queen Adelaide Club.

12. In about 1989, the respondent and the deceased established their own accounting practice, DG Bramwell & Co. The practice was initially started as an equal partnership, however, after the deceased refused to sign a partnership agreement, the respondent was made a salaried partner (a decision she was unhappy with). She briefly worked for another firm, sometime after 1997, but returned to DG Bramwell & Co in about 2000 where she worked as an accountant until her retirement in about 2004 or 2005. The year prior, DG Bramwell & Co was acquired by Shearer & Elliss. The deceased ceased to own the business and became a consultant for the firm. He remained a consultant until about 2014. His consultancy fees were paid into an account at Macquarie Bank in his sole name; none of those fees were paid into a joint account.

13. During the respondent’s time working for DG Bramwell & Co (first as equal partner and then as a salaried partner), her salary was paid into an account in the deceased’s name at the National Australia Bank (‘NAB’).

14. In 2008, the respondent and the deceased purchased the Hyland Terrace property, which they owned in equal shares as tenants in common. At the date of the trial, the property was valued at $1,125,000 (each interest therefore being $562,500).

15. Prior to their marriage, the deceased set up a self-managed Super Fund with himself and the respondent as members (‘the Fund’); the relevant member benefits were accrued from 1990. The respondent had no involvement in the management of the Fund; it was controlled entirely by the deceased. At the time the Fund was set up, the deceased had no existing superannuation as it had all been paid to the deceased’s first wife (the appellant’s mother) in the form of spousal maintenance.[3] All of the superannuation in the Fund at the time of the deceased’s death had accrued since his marriage to the respondent. However, from the time the Fund was established, the deceased paid significantly more into his account than into the respondent’s account. His closing balance at the end of each financial year was consistently at least double that of the respondent’s; some years it was three times as much. 

    [3]     The deceased’s former wife’s claim for spousal maintenance was not finalised until 2004. In addition to the superannuation accrued by the deceased prior to the establishment of DG Bramwell & Co, a lump sum of $180,000 was paid out to the deceased’s first wife from moneys earned by the deceased and the respondent in the course of running DG Bramwell & Co.

16. Until about 2013, the pension paid to the deceased and the respondent through the Fund was paid into a NAB account solely in the deceased’s name. Approximately five years before his death, he arranged for the pension to be paid into an account in joint names. The balance in the account in his sole name was not transferred across; it remained in the account solely in the deceased’s name and the joint account was opened with a balance of zero dollars. The pensions for the deceased and the respondent were paid on a monthly basis. At the end of each financial year, amounts were allocated against their respective member funds according to their individual expenses. Their travel expenses and capital expenses were allocated on a 50/50 basis. The result of these arrangements was a significant disparity between the respondent’s entitlement in the Fund compared to that of the deceased.

17. In 2013, the deceased and the respondent purchased a holiday home in Victor Harbor. The house was purchased using moneys from the Fund, as well as from a bank account in the deceased’s sole name. The holiday house was registered in the deceased’s sole name. Ultimately, the holiday house was sold to fund a deposit for the deceased’s accommodation at Estia Health, an aged care facility, where he lived for the last eighteen months of his life.

18. In 2016, the deceased completed a Binding Death Benefit Nomination in respect of the Fund which divided the benefit in two; half to be transferred to the respondent in the form of a pension to be paid at the minimum pension rate of three per cent and the remainder to be paid into the deceased’s estate and held for the appellant (‘the residual capital’). At the time of the deceased’s death, the residual capital value was worth $518,000 and, at the time of trial, $625,000.[4]

    [4]     It is likely that figure will continue to increase given the historical growth of return on capital from share market investments.

19. In addition to her financial contributions, the respondent made substantial non-financial contributions during her 30-year marriage to the deceased. She undertook most domestic tasks including cooking, cleaning, grocery shopping, gardening, washing, and taking care of the children. It was also her responsibility to make all the necessary preparations for hosting guests. The respondent’s non‑financial contributions allowed the deceased to work as he did and, in consequence, accrue significant superannuation entitlements.

20. When the respondent and the deceased commenced their relationship, the respondent’s daughters were eight and six years old, and the appellant was 12 years old. Initially, the appellant was at boarding school, but she later lived with the deceased and the respondent intermittently. The respondent’s daughters lived with them on a full-time basis. The respondent paid for all her daughters’ expenses from her own salary. In addition, she used child endowment payments to meet their expenses. The respondent received inheritances from her former mother-in-law and from her own parents; she kept this money separate from other funds to use for her children and grandchildren. It was the deceased’s position during their marriage that she should look after her daughters, and he would look after the appellant. Despite this, when the appellant lived with them, the respondent completed all household tasks required for her care. 

21. In 2014, when the deceased was 79 years old, he was diagnosed with Progressive Supranuclear Palsy (‘PSP’), a degenerative condition which leads to progressive physical disability and cognitive impairment. The deceased became even more controlling with money, demanding the respondent resign from the various clubs of which she was a member because of the expense. He also began scrutinising her shopping expenses and would become argumentative over minor matters. The deceased continued to control his financial affairs until he was admitted to Estia in 2017. By that time, the respondent had become his full-time carer. The deceased lost capacity in 2018, shortly after finalising his will on 5 December 2017. He died on 6 December 2018, aged 84.

22. As at the date of the deceased’s death, the respondent’s assets (in her sole name) consisted of her half share in the Hyland Terrace property, superannuation in the amount of $464,000, shares valued at $118,000, and cash in the sum of $25,000.

23. As at the date of trial, the Hyland Terrace property had appreciated significantly in value,[5] resulting in an increase in the value of the respondent’s share, her superannuation was worth $472,000, her shares had increased in value to $170,000 and her cash balance remained at $25,000. The pension that she would receive through the pension stream amounted to $23,000 per annum.

    [5]     At the time of probate the value of Jean’s half-interest in the property was $385,000. At the time of trial, it was valued at $562,500.

24. The appellant and respondent were appointed as executrixes and trustees of the deceased’s estate under the will.

25. Relevantly, by his will, the deceased:

    ·forgave any debts owed to him by the appellant;

    ·allowed the respondent to have use of the household furniture and household effects contained in their home for her lifetime, after which they would go to the appellant;

    ·directed that any benefit from his superannuation fund which was paid into his estate be paid to the appellant;

    ·gave, following the respondent’s death, four legacies in the sum of $10,000 to other parties, each to be paid from the pension stream, with the balance of the pension stream to go to the appellant;

    ·gave a legacy in the sum of $400,000 to the appellant;

    ·gave a legacy in the sum of $60,000 to the respondent;

    ·granted the respondent the right to reside in the Hyland Terrace property during her lifetime on the basis that she pay all rates, taxes and other outgoings, keep the property in good repair, and keep it appropriately insured. In the event that the respondent wished to live elsewhere, the property was to be sold, and three quarters of the deceased’s share of the proceeds of sale were to be placed in a trust and used for the purpose of providing a residence for the respondent, but only on the basis that resort was only had to the trust once the respondent’s own share of the proceeds of sale were exhausted (‘the portable life interest’); and

    ·the residuary estate was to be divided equally between the appellant and the respondent.

26. Probate for the will was granted on 3 July 2019. As at the date of probate, the estate had no liabilities; its net value amounted to approximately $1,405,000,[6] the major assets being:

    ·the half-interest in the Hyland Terrace property which, at the time of trial, was valued at $562,500;

    ·the superannuation benefit of $720,000[7] (that is, the 50 per cent paid directly into the estate in accordance with the terms of the Binding Death Benefit Nomination);

    ·the refundable accommodation bond from the nursing home in which the deceased lived at the end of his life, in the sum of approximately $459,000;[8]

    ·the residual capital value of the Binding Death Benefit Nomination, which, at the time of trial, was in the sum of $625,000;

    ·cash in the sum of approximately $34,500;

    ·shares to the value of approximately $1,000; and

    ·furniture and household effects valued at $7,000.

    [6]     This is based on the value of Jean’s half-half interest in the Hyland Terrace property at the time of probate, that being $385,000.

    [7]     Value at the time of the trial.

    [8]     Which the respondent submits should be treated as her ‘superannuation money’.

1. As outlined above, the will gave the respondent a legacy of $60,000 and the right to reside in the Hyland Terrace property for the remainder of her lifetime, subject to conditions. The respondent was also granted a half-share in any residual interest of the estate beyond what was specifically left to the appellant.

2. The respondent brought a claim for ‘adequate provision for maintenance, education and advancement in life’ from the estate of the deceased pursuant to s 7 of the Act. This claim was defended by the now appellant.

3. This matter was first heard by the trial Judge on 3 August 2021. Upon hearing the relevant evidence, her Honour proceeded to deliver judgment on 11 February 2022, upholding the respondent’s claim for further provision under the Act. On 27 July 2022, after hearing from the parties on the form of the orders and on the question of costs, her Honour delivered judgment and made the following orders:

   ·a legacy of $260,000 be paid to the respondent in lieu of the legacy provided for in the will, inclusive of interest up until 27 July 2022, and paid from the portion of the estate comprised of the superannuation death benefit;

   ·the entire estate, title, and interest of the deceased in the Hyland Terrace property be vested in the respondent in lieu of the right of residence stipulated in the will; and

   ·the respondent’s costs be paid from the residuary estate of the deceased, to be taxed on a solicitor/client basis, if not agreed.

4. By Notice of Appeal dated 8 August 2022, the appellant challenged these orders and sought orders that the appeal be allowed, and the respondent’s claim be dismissed or, alternatively, the respondent be awarded such provision as this Court deemed fit. Further, the appellant sought an order that the respondent’s costs in relation to the prior proceedings be paid from the residuary estate of the deceased on a party/party basis as opposed to a solicitor/client basis.

   Evidence at trial

5. At the time of the trial, the respondent was 78 years old and in reasonably good health. She remained living in the matrimonial home, which was in a reasonable state of repair.

6. The respondent gave evidence that, over the course of her marriage to the deceased, he provided his daughter (the appellant) with significant amounts of money, regularly paying her bills and assisting her with other expenses.

7. The respondent also gave evidence that she did not learn of the content of the will until after the deceased’s death, when she received a copy from his lawyers. She said she was never informed of the contents of his will although she said the deceased had made comments to the effect that his daughter’s ‘needs are greater than yours’.

8. The respondent called four witnesses at trial in support of her evidence: Elizabeth Mary Henwood, Rosalind Ada Neale, Estella Marjory Farwell and Lorraine Clare Deere. Each is a friend of the respondent who knew the deceased for many years before he was diagnosed with PSP. Each gave evidence to the effect that the respondent was a devoted wife and very supportive of her husband and his endeavours. They described the deceased as a demanding man, who was not particularly appreciative of her. That evidence was not contested; and the trial Judge found it was reliable and credible.

9. As to the amount of further provision she should receive, the respondent contended that a wise and just testator in the deceased’s position should have recognised that he was holding $530,000 of superannuation which was ‘morally’ hers.[9] She also contended that the majority of the remaining ‘true estate’ (that is, the value of the estate less the $530,000 of superannuation), should be awarded to her on the basis that she had a moral claim to that share of the estate, as a widow of a 30-year marriage during which she made substantial financial and non‑financial contributions. It was submitted this would enable her to enjoy the lifestyle she had been accustomed to whilst still making substantial provision for the appellant.

   [9]     See W & D [2005] FMCAFAM 171 at [91] per Federal Magistrate Ryan; Charlton v Charlton [2007] FAMCA 212 at [64] per Monteith J; Skye v Skye [2017] FCWA 134 at [34] per Thackray CJ; Sierra v Sierra [2017] FCCA 596 at [232] per Terry J; Salmar v Bark [2018] FCCA 2460 at [51] per Willis J; Leander v Scannell [2020] FCCA 2830 at [161] per Curtain J.

10. As to the deceased’s half-interest in the Hyland Terrace property, the respondent contended that there was good reason for the interest to be awarded to her, namely: it was the matrimonial home; there were conditions attached to the use of the deceased’s half-interest in the property and, therefore, the potential for adverse consequences if she failed to comply with those conditions; it was undignified for her to be subject to such conditions; there should be a clean break between herself and the appellant;[10] and the appellant had expressed no particular desire to obtain the deceased’s half-interest in the house; rather, it was simply another potential source of funds for her.

    [10]   Spata v Spata [2011] NSWSC 1221 at [151] Hallen AsJ.

11. At the time of trial, the respondent’s life expectancy was 12 years. Her expenses for the year ending 30 June 2019, excluding the costs relating to the deceased’s funeral, were approximately $86,500. Her expenses for the year ending 30 June 2021, which were lower due to the impact of COVID-19 and her decision to defer house repair expenses, amounted to $67,000.[11]

    [11]   The respondent submitted her projected expenses were just over $110,000 after taking into account her travel expenses which, for those financial years, were not incurred due to the COVID-19 pandemic, and house maintenance expenses, which the respondent deferred in 2021.

12. After excluding the three per cent pension paid under the deceased’s will, the respondent’s personal financial resources amounted to approximately $544,000. After accounting for the minimum pension of three per cent she will receive each year,[12] and her own income portfolio in the sum of approximately $5,000, the respondent will be required to draw down about $80,000 per year from her assets to meet her expenses. As such, the respondent would exhaust the monies in her personal account within six years and would, as a result, need to rely entirely on the aged pension. The respondent contended at trial that this would mean she would be unable to pay the house-related expenses stipulated under the terms of the will and would therefore be required to vacate the Hyland Terrace property.

    [12]   In 2021 that amounted to $26,000.

13. In addition, the respondent submitted that she should be able to continue to enjoy the activities she participated in during her marriage, including travel, membership at the Grange and Meadows Golf Clubs, and membership at the Queen Adelaide Club.

14. Ultimately, the respondent emphasised her strong moral claim over the half‑estate, with the only other competing claim being that of the appellant who, given the size of the estate, would still be left with substantial provision. In challenging her provision under the will, the respondent relied on several authorities as to what constitutes ‘adequate provision’ in circumstances similar to those of the respondent.[13]

    [13]   Langtry v Campbell (Supreme Court of New South Wales, Powell J, 7 March 1991); Ball v Gaul (Supreme Court of New South Wales, Master McLaughlin, 29 August 1996); Marshall v Carruthers [2002] NSWCA 47; Hertzberg v Hertzberg [2003] NSWCA 311; McKenzie v Topp [2004] VSC 90; Bladwell v Davis [2004] NSWCA 170; Vigolo v Bostin (2005) 221 CLR 191; Magill v Magill (2006) 226 CLR 551; Farr v Hardy [2008] NSWSC 996; Taylor v Farrugia [2009] NSWSC 801; Brennan v Mansfield & Ors [2013] SASC 83; Page v Hull-Moody [2020] NSWSC 411; Sarant v Sarant [2020] NSWSC 1686.

15. The appellant gave evidence at the trial but did not call any evidence. She was born in 1975 and was 45 years old at the time of the trial.  She spoke of her relationship with her father in positive terms. She attended boarding school in 1987 and 1988; after that, she lived intermittently with her father and the respondent, and then with her mother. She finished school at the end of year 12 and moved out to live with a friend at the age of 18.

16. The appellant had a difficult relationship with her mother, who suffered from poor mental health. At the time of the trial, the appellant had limited contact with her mother. It was her evidence that her father looked after her in a way that her mother was never able to.

17. The appellant was employed by the deceased as his receptionist after completing school; she also collected money for charities. She ceased working for the deceased when she started to regularly experience migraines. In addition to migraines, she suffers from asthma and bronchitis.

18. After moving out of the family home, the appellant lived in several different rental properties. The deceased purchased a unit at Glenunga, where the appellant lived. She initially paid a small amount of rent but eventually lived there rent-free. The deceased paid for all the maintenance and upkeep on the unit. During this period, the appellant continued to suffer poor health and, as a result, was unable to regularly work. She also suffered a miscarriage which led to further ongoing health problems.

19. After living at the Glenunga property for several years, the appellant moved into a rental property at Marden and commenced studies at Marden Senior College. The deceased continued to help her financially.

20. From about 1997 to 1998, the appellant worked full-time for an internet company. Subsequently, she moved to Melbourne. The deceased assisted her with the costs related to the move, including paying for removalists. He also paid her household bills in Melbourne, as at this time she was working on a voluntary basis and her only source of income was a government benefit.

21. About a year later, the appellant returned to Adelaide and commenced living with her then-partner. She obtained work at a supermarket as a checkout operator. While working at the supermarket, she suffered a work-related injury for which she received WorkCover payments for a time. After ceasing work at the supermarket, the appellant undertook a diploma in multimedia and completed a course in photography. She then obtained work in a camera shop, but sustained another work-related injury, which led to spinal surgery.  She did not work in paid employment for several years following surgery.

22. From about 2008 until 2016, the appellant was employed by the University of Adelaide in various roles. She chose to leave her position at the University because her department was being restructured, and due to her ill-health.

23. At the time of the trial, the appellant received a disability support pension and was casually employed through an online education business. She gave evidence that it is unlikely she will return to full-time employment.

24. The deceased, during his lifetime, provided the appellant with significant financial support. The appellant’s evidence was that he would pay her bills, take her shopping, pay for her groceries, and pay other day-to-day expenses. She said that there was no real expectation that this money would be repaid to the deceased and, although she did talk about her desire to eventually pay him back, she could not recall any discussion with the deceased where he indicated that he required her to repay his estate after his death. It was her evidence, however, that there was a conversation to that effect with the respondent and the deceased’s lawyer. Nevertheless, the appellant was adamant that none of the money given to her by the deceased could properly be characterised as a ‘loan’.

25. The appellant said that, once the deceased commenced living at Estia, regular payments of moneys were organised by the respondent and the deceased’s lawyer. She confirmed that these moneys were referred to as ‘a loan’ on the basis that they would be repaid to the deceased’s estate after his death.  The appellant conceded that there were several entries in her bank statements which were referred to as ‘loans’ but explained that was because the respondent had made those payments, not the deceased. She said her father never referred to any moneys he provided her as a ‘loan’.

26. The appellant gave evidence that the deceased discussed his will with her on several occasions, but that she did not understand much of what he told her, other than that she would be cared for in his will.

27. The appellant said that, from time to time, she typed emails from the deceased for him to send to his lawyers about his will. Nevertheless, her evidence was that she was unaware of the contents of his final will and that she did not understand the effect of the emails she typed on his behalf. She said that she did not recall the contents of the emails. She said she did not receive a copy of the final will until after the deceased’s death.

28. At the time of trial, the appellant was living in her own home which is subject to a mortgage. She is the sole registered proprietor of that property. She has a lodger who pays rent, to assist her with mortgage payments. She owns a motor vehicle that is almost twenty years old.

29. The appellant’s health remains poor. She suffers from, among other things, degenerative disc disease, fibromyalgia, chronic fatigue, thoracic outlet syndrome, Lyme disease and stomach ulcers. She has also been diagnosed with post-traumatic stress disorder, anxiety, and an attachment disorder.

    The trial Judge’s reasons

30. After correctly directing herself to the general principles relevant to the application,[14] addressed in more detail later in these reasons, the trial Judge said:

    It is clear that, in determining whether the respondent was left without adequate provision by the deceased, I must make a holistic assessment of the relationship between the [respondent] and the deceased, the life that they led together, the financial resources of the [respondent], the size of the deceased’s estate, and the other claims on the deceased’s testamentary bounty.

    [14]   Singer v Berghouse (1994) 181 CLR 201; Carter v Brine [2015] SASC 204.

31. Her Honour then proceeded to summarise the parties’ submissions before concluding that the respondent had been left without adequate provision. In so finding, her Honour made express reference to the financial and non-financial contributions by the respondent over the course of her lengthy marriage to the deceased.

32. The trial Judge accepted that, in determining whether the respondent had been left without adequate provision, it was appropriate to consider the age, capacity, means and competing claims of the other beneficiary under the will. Her Honour said:

    This is not a “competition” between applicant and respondent. It is for [the respondent] to establish the breadth of the deceased’s moral duty to her and her relevant financial need; no such obligation falls on [the appellant]. For the purpose of the first stage, or the jurisdictional question, it is only the financial position and the moral claim of [the respondent] that are relevant. If there is a finding that she has been left without adequate provision once these questions have been assessed, the relevant circumstances of [the appellant], including her age, capacity and means must be considered, to allow an appropriate calculation to be made as to the further provision to be granted to [the respondent]. It may be said that the first stage involves an assessment of the deceased’s duty as a testator vis-a-vis [the respondent]. The second stage incorporates the circumstances of [the appellant] in that assessment.

33. The trial Judge acknowledged that, in this case, the appellant had a ‘real need’ to be provided for by her father’s estate by reason of her poor health, and the fact that she is unlikely to return to full-time employment. Her Honour noted that it was apparent from the terms of the will that the deceased’s clear intention was to provide the capital of the estate to his daughter such that she received sufficient funds for her ongoing maintenance throughout her life. This was underscored by his earlier wills (drafted in similar terms) tendered at trial. Her Honour said:

    I have reached the conclusion that the deceased was concerned that his daughter was provided as generously as possible, because he recognised that her life had been a difficult one, and that her ability to earn an income had been substantially affected by her physical health and by her circumstances when she was growing up. It is clear that he wished to leave substantial provision for his daughter. This should be disturbed no more than necessary to give the [respondent] adequate provision.[15]

    [15]   Emphasis added.

34. The trial Judge also acknowledged that the deceased had a ‘very firm opinion as to how his estate should be distributed after his death’, but her Honour considered that it would be ‘wrong to place too much weight on his intention in that regard, despite the fact that it was firmly held, for a long period of time.’ Her Honour reasoned that the adequacy of the provision made for the respondent was not to be determined by the strength of the feelings held by the deceased as to how his estate should be distributed:

    The adequacy of the provision made for [the respondent] is not determined by the strength of the feelings held by the deceased as to how his estate should be distributed. It is clear that the deceased was concerned to ensure that [the appellant] was provided for; if this intention, however, leaves [the respondent] without adequate provision, then his intention must be overridden, no matter how considered or long held it is.

35. In relation to the Hyland Terrace property, the trial Judge held that the gift of the portable life interest in the deceased’s share of the property was not adequate provision on the basis that it did not provide the respondent with sufficient certainty of residence. In so concluding, her Honour had regard to both the respondent’s financial and non-financial contributions to the marriage. Her Honour said:

    In my view, [the respondent] has been left without adequate provision from the estate of the deceased. I do not consider that the interest in their home, portable though it is, provides a widow in the circumstances of [the respondent] with sufficient certainty in respect of her place of residence. It is clear that the first house bought by [the respondent] and the deceased was contributed to equally by them. Over the nearly thirty years of their marriage, their place of residence changed a number of times. Each time, they both made financial contribution, and there is no doubt that [the respondent] made the vast majority of the non-financial contributions to their various homes.

36. Her Honour also considered that it was not proper to render the respondent largely beholden to the appellant, in respect of her place of residence.  More specifically, her Honour was concerned about the requirements placed on the respondent in terms of maintaining the property, and the potential for these requirements to invite dispute between the parties. Her Honour also noted that if the respondent wished to vacate the property, she would have to seek the ‘acquiescence’ of the appellant before doing so. Such a provision, her Honour found, was not proper in circumstances ‘where, after thirty years of marriage, [the respondent] should be entitled to feel that her home is her own. It is not appropriate to require her to go from being mistress of her own home to being dependant on the reasonable behaviour of [the appellant].’ Her Honour considered that a ‘provision which requires [the respondent] to maintain against her will a relationship with [the appellant], and to be reliant on [the appellant’s] reasonable conduct is not proper.’

37. As to the pecuniary legacy, the trial Judge held that it was inadequate having regard to the lifestyle the respondent enjoyed prior to the deceased’s death. Her Honour noted the various interests the respondent pursued during the deceased’s lifetime, including golf, a membership at the Queen Adelaide Club, and travel. Her Honour did not consider the legacy was ‘sufficient to allow her to continue to live in the same or similar way in which she lived prior to the deceased’s death’.

1. Turning to the second stage, the trial Judge held that the respondent should receive, by way of further provision, the deceased’s share of the house, outright. Her Honour reasoned:

   This will give her complete security in respect of her accommodation and the ability to make decisions about her future residential needs, without the need to defer to [the appellant]. It will allow [the respondent] and [the appellant] to live independently of each other, should they wish to do so.

2. In determining the pecuniary amount, the trial Judge had regard to the respondent’s needs, the size of the deceased’s estate and the appellant’s personal circumstances. Her Honour had express regard to the extent of the appellant’s financial dependence on the deceased, noting that he provided her with ‘significant financial support throughout his lifetime’. As for the ‘loans’ that were transferred to the appellant intermittently from the deceased’s account, her Honour did not consider there to be sufficient evidence to support a finding that the deceased wanted or expected the money to be repaid.

3. The trial Judge also rejected the respondent’s submission that she was entitled to the whole of the superannuation death benefit paid into the estate. Nor did her Honour consider it appropriate to equalise the superannuation benefits between the respondent and the deceased. Her Honour said:

   In my view, this is not the way in which the Act operates. While it may be “fair” to do what [the respondent] contends for, and while that may occur in a different forum, such as a Court exercising jurisdiction under the Family Law Act 1975 (Cth), that is not the basis on which appropriate provision under the Act will be assessed. The amount for further provision to which a claimant is entitled is based on need, as dictated by her financial circumstances and moral claim.

4. As to the contest between the parties in relation to whether the pension stream should properly be regarded as part of the deceased’s estate, the trial Judge found this was not a matter she needed to decide; there was no challenge to the use of the pension stream by the respondent during her lifetime, nor was there any dispute that, upon the respondent’s death, the appellant would receive the benefit. The pension stream was not money that was currently available for distribution under the will, nor was it money from which the appellant would receive any benefit until after the respondent’s death.

5. Her Honour ultimately decided that the respondent should receive an additionally legacy of $200,000 taking her total cash legacy to $260,000. Her Honour considered that this sum would be sufficient to allow her to maintain the upkeep on the Hyland Terrace property as well as provide her with the funds necessary to maintain her interests pursued during the deceased’s lifetime whilst still allowing a substantial sum to be paid to the appellant to meet her needs.

6. In subsequent proceedings, the trial Judge heard submissions from the parties on the form of the orders to be made at the conclusion of the initial proceedings and the appropriate basis for awarding costs. Her Honour’s findings as to costs are the subject of Ground 4.  

7. Her Honour relied on the principles set out in Whitington v Whitington & Anor (No 2)[16] (‘Whitington No (2)’) and Parker v Australian Executor Trustees Ltd (No 2)[17] (‘Parker’) and determined that the respondent was entitled to receive costs on a solicitor/client basis to be paid out of the deceased’s estate.

   [16] [2009] SASC 178.

   [17] (2016) 126 SASR 142.

8. The trial Judge acknowledged that an award of costs on a solicitor/client basis would significantly diminish the appellant’s entitlement under the will but considered that awarding costs on a party/party basis would have an ‘even more deleterious effect’ on the respondent given that if such a costs award was made, she would be required to pay a sum of approximately $100,000 in costs; more than one third of the cash legacy. The appellant, on the other hand, would receive a cash amount of approximately $700,000 after the respondent’s costs had been deducted, which her Honour considered was a ‘sufficient amount of money to allow her to live comfortably’, particularly given she would be entitled to the balance of the pension stream after the respondent’s death.

9. Her Honour considered that it would be inappropriate for the respondent to lose a third of her cash entitlement because the deceased failed to make adequate provision for her in his will, reasoning that if he had acted as a ‘just’ testator, she would not have incurred this expense in the first instance. Her Honour explained:

   Given the inadequacy of the provision made to her, she was forced to bring this action; if the deceased had provided for her in the way that I have ordered (or similarly), she would not have been required to incur the expenses associated with this action. It would be unjust if she were required to expend a significant portion of the further provision which she has been awarded on meeting lawyers’ fees.

10. Accordingly, the trial Judge ordered that the respondent should be paid her costs of the proceedings on a solicitor/client basis out of the deceased’s estate.

    Relevant legal principles

11. The trial Judge correctly stated that the application fell to be determined under s 7 of the Act which relevantly provides:

    7—Spouse and persons entitled may obtain order for maintenance etc out of estate of       deceased person

    (1)     Where—

    (a)a person has died domiciled in the State or owning real or personal property in the State; and

    (b)by reason of his testamentary dispositions or the operation of the laws of intestacy or both, a person entitled to claim the benefit of this Act is left without adequate provision for his proper maintenance, education or advancement in life,

    the Court may in its discretion, upon application by or on behalf of a person so entitled, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled.

    …

    (3)     The Court may refuse to make an order in favour of any person on the ground that his character or conduct is such as, in the opinion of the Court, to disentitle him to the benefit of this Act, or for any other reason that the Court thinks sufficient.

    (4)     The Court may, in making any order under this Act, impose such conditions, restrictions and limitations as it thinks fit.

    …

    (6)     In making the order the Court may, if it thinks fit, order that the provision shall consist of a lump sum or periodic or other payments or a lump sum and periodic or other payments.

12. As the trial Judge recognised, the relevant inquiry involves a two-stage process: the first stage calls for a determination of whether an applicant has been left without adequate provision for her proper maintenance, education and advancement in life; and the second stage, which only arises if that determination is made in favour of an applicant, requires the court to decide what provision ought to be made from the deceased’s estate for the applicant.

13. The first stage of the inquiry was described by the High Court in Singer v Berghouse[18] (‘Singer’) as the ‘jurisdictional question’. The jurisdictional question is a question of fact, which requires an evaluative judgment.[19] It involves an objective assessment of all the circumstances in the case and a determination of whether, in fact, adequate provision has been made for an applicant. The jurisdictional issue is to be determined as at the date of death of the deceased.

    [18] (1994) 181 CLR 201 at 208-209 per Mason CJ, Deane and McHugh JJ.

    [19]   Singer v Berghouse (1994) 181 CLR 201 at 210-211 per Mason CJ, Deane and McHugh JJ.

14. In Vigolo v Bostin[20] (‘Vigolo’), the High Court considered Western Australian statutory provisions analogous to s 7 of the Act. The High Court held that in determining the jurisdictional question, a court should have regard to considerations of moral claim and moral duty; they are matters which connect the general but value-laden language of the Act to the community standards which inform its practical application. However, whilst moral claim and moral duty may, according to the circumstances, be relevant and within the contemplation of the Act, a moral claim cannot be a claim founded upon considerations not contemplated by the Act, nor a substitute for the text of the Act.[21]

    [20] (2005) 221 CLR 191.

    [21]   Vigolo v Bostin (2005) 221 CLR 191 at [2]-[25] per Gleeson CJ, [112]-[122] per Callinan and Heydon JJ.

15. In Bowyer v Wood[22] the Full Court of the Supreme Court of South Australia considered the applicable principles for determining whether adequate provision has been made for the proper maintenance, education, or advancement in life of a person entitled to claim under the Act. Justice Debelle (with whom Nyland and Anderson JJ agreed) explained the considerations relevant to the jurisdictional question by reference to the authorities in the following terms:[23]

    [22] (2007) 99 SASR 190.

    [23]   Bowyer v Wood (2007) 99 SASR 190 at [41]-[42] per Debelle J (with whom Nyland and Anderson JJ agreed).

    In McCosker v McCosker (1957) 97 CLR 566 at 571 to 572 Dixon CJ and Williams J identified the relevant considerations in these terms:

    The question is whether, in all the circumstances of the case, it can be said that the respondent has been left by the testator without adequate provision for his proper maintenance, education and advancement in life. As the Privy Council said in Bosch v Perpetual Trustee Co (Ltd) the word ‘proper’ in this collocation of words is of considerable importance. It means ‘proper’ in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator’s ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator’s testamentary dispositions to the necessary extent.

    (Citations omitted)

    As will have been noticed, there is continued reference to the size of the estate as a relevant factor. In the case of large estates, provision can be made for the well-to-do but that consideration is subordinated to the dominant purpose of determining what provision would be made by a just testator making proper provision for the maintenance, education and advancement of his family: Lieberman v Morris (1944) 69 CLR 69 at 91 to 92 per Williams J.

    In Singer v Berghouse, Mason CJ, Deane and McHugh JJ re-iterated the above principles in these terms at 209:

    The first question is, was the provision (if any) made for the applicant ‘inadequate for [his or her] proper maintenance, education and advancement in life’? The difference between ‘adequate’ and ‘proper’ and the interrelationship which exists between ‘adequate provision’ and ‘proper maintenance’ etc. were explained in Bosch v Perpetual Trustee Co Ltd. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

    …

    With respect, that passage is entirely consistent with the relevant considerations identified in earlier decisions.

16. The second stage requires the court to decide what provision ought to be made from the deceased’s estate for an applicant having regard to the factors prescribed in s 7 of the Act. The court will take into account the relevant factors as they existed at the time of making the order. The second stage involves the exercise of a judicial discretion taking into account similar considerations relevant to the first stage. As the High Court observed in Singer, even at the first stage the court may need to arrive at an assessment of what constitutes the proper level of maintenance and adequate provision which, if the court is required to embark on the second stage of the process, will largely determine the relief to which the applicant is entitled.[24]

    [24]   Singer v Berghouse (1994) 181 CLR 201 at 210 per Mason CJ, Deane and McHugh JJ.

    The appeal

17. This appeal lies to the Court of Appeal;[25] the appellant does not require leave to appeal in relation to the Grounds 1 to 3.[26] The principles set out in House v The King[27] concerning appellate review of discretionary decisions apply to this appeal.[28] As Doyle J explained in Tiburzi v Butler:[29]

    There is no doubt that the second stage of the process of determining an application under s 7 of the Act, being an exercise of judicial discretion, is subject to the principles concerning appellate review of a discretionary decision in House v King. Further, it is now settled that an appeal against a trial judge’s determination of the first stage, or jurisdictional question, is also governed by these principles of appellate restraint. This is so despite the first stage sometimes being described as the application of the facts to a legal standard and involving an evaluative judgment rather than a discretion.

    (Citations omitted)

    [25]   Supreme Court Act 1935 (SA) s 50(1); Uniform Civil Rules 2020 (SA) r 212.3

    [26]   However, leave to appeal is required in relation to Ground 4.

    [27] (1936) 55 CLR 499.

    [28] (1936) 55 CLR 499 at 504-5 per Dixon, Evatt and McTiernan JJ.

    [29] (2017) 17 ASTLR 1 at [87] per Doyle J (with whom Vanstone and Parker JJ agreed) citing Singer v Berghouse (1994) 181 CLR 201 at 212 per Mason CJ, Deane and McHugh JJ and Vigolo v Bostin (2005) 221 CLR 191 at [82]-[83] per Gummow and Hayne JJ.

18. It was common ground between the parties that those general principles apply on this appeal. However, the appellant contended that the trial Judge made various House v The King errors at each stage of her determination under s 7 of the Act.

19. With those principles in mind, we turn to consider the grounds of appeal.

    Ground 1 and 1A – the trial Judge erred in finding that the Respondent was left without adequate provision by reason of being left with a ‘portable life interest’

20. The appellant complained that the trial Judge erred in holding that the respondent had been left without adequate and proper provision by reason of being left a ‘portable life interest’ in respect of the deceased’s interest in the Hyland Terrace property. In particular, the appellant submitted that the trial Judge made factual errors and misapplied principles of law and, as a result, erroneously determined the respondent had been left without adequate provision for her proper maintenance, education, or advancement in life.

21. The terms ‘adequate’ and ‘proper’ have different meanings and are relative concepts. In Pontifical Society for Propagation of Faith v Scales,[30] Dixon CJ said:[31]

    It has often been pointed out that very important words in the statute are “adequate provision for the proper maintenance and support” and that each of these words must be given its value. “Adequate” and “proper” in particular must be considered as words which must always be relative. The “proper” maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is “adequate” must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words “proper maintenance and support”, although they must be treated as elastic, cannot be pressed beyond their fair meaning. The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court.

    [30] (1962) 107 CLR 9.

    [31]   Pontifical Society for Propagation of Faith v Scales (1962) 107 CLR 9 at 19 per Dixon CJ (with whom McTiernan J agreed).

22. Chief Justice Dixon’s remarks were later referred to by Gibbs J in Goodman v Windeyer.[32] His Honour said:[33]

    As Dixon CJ pointed out in Pontifical Society for the Propagation of the Faith v Scales, the words “adequate” and “proper” are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards.

    (Citations omitted)

    [32] (1980) 144 CLR 490.

    [33] (1980) 144 CLR 490 at 502 per Gibbs J (with whom Mason J agreed and Stephen J substantially agreed).

23. What is ‘adequate’ and ‘proper’ provision is fact specific;[34] what might be ‘proper’ provision will depend on the circumstances of the case and what amounts to ‘adequate’ provision will necessarily be informed by the financial needs of the claimant (although financial need is not necessarily determinative of the matter). The size of the estate and the competing claims of other beneficiaries are also relevant to the question of what amounts to ‘adequate’ provision. As explained by Callinan and Heydon JJ in Vigolo:[35]

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

    [34]   Chapple v Wilcox (2014) 87 NSWLR 646 at [19]-[20] per Basten JA citing Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [110] per Hallen AsJ, [67] per Barrett JA.

    [35] (2005) 221 CLR 191 at [122] per Callinan and Heydon JJ.

24. An applicant is required to demonstrate need in order to be successful in his or her claim; mere proof of a moral claim is not in itself adequate.[36] However, an applicant is not required to show that his or her circumstances are destitute and, as such, the need is ‘not restricted to the requirements of basic necessity or sustenance.’[37] The nature and content of what is adequate provision is a flexible concept, adapted to conform to acceptable community standards, and involves a broad evaluative judgment not constrained by preconceptions and predispositions.[38] The court must not order an amount that is greater than is necessary for an applicant’s proper maintenance and support. Other relevant constraints or limiting factors include that further provision should be made only if, and to the extent that, it is necessary to alter the will to make adequate provision for an applicant’s proper maintenance and support,[39] and that any further provision must be limited by balancing the needs of an applicant against the proper claims to be satisfied from a testator’s bounty.

    [36]   MacEwan Shaw v Shaw (2003) 11 VR 95 at [50] per Dodds-Streeton J.

    [37]   Ball v Newey (1988) 13 NSWLR 489 at 492 per Samuels JA (with whom Hope and Mahoney JJA agreed).

    [38]   See, for example, Cross v Wasson (2009) 2 ASTLR 201 at [98] per Ward J; Verzar v Verzar [2012] NSWSC 1380 at [131] per Lindsay J; Camernik v Reholc [2012] NSWSC 1537 at [154], [161], [163] per Hallen J; Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253 at [125]-[126] per White J.

    [39]   Grey v Harrison [1997] 2 VR 359 at 366 per Callaway JA (with whom Tadgell and Charles JJA agreed).

1. Whether a testator has failed to make adequate provision for an applicant’s proper maintenance and support is to be considered by reference to matters that were known, ought to have been known, or were reasonably foreseeable to the deceased at the time of his or her death.[40] The applicant bears the onus of proving the extent of any provision that should be granted.[41]

   [40]   Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494 at 507 per Dixon CJ.

   [41]   Blore v Lang (1960) 104 CLR 124 at 130 per Dixon CJ.

2. Where there are competing claims, the court’s enquiry necessarily involves a balancing exercise between the claims of other beneficiaries, the needs of an applicant, and the size of the estate.[42] The appropriateness of proposed claims depends on all the facts and circumstances of the case, including the moral obligation owed by the testator to an applicant for provision. It has been held that the obligation of a testator includes ensuring a surviving spouse has a roof over his or her head (by the matrimonial home being awarded absolutely to the surviving spouse); or sufficient funds to purchase another suitable residence; or a life interest in a property; or even a mere right of occupancy.[43]

   [42]   Grey v Harrison [1997] 2 VR 359 at 366-367 per Callaway JA (with whom Tadgell and Charles JJA agreed); Friend v Brien [2014] NSWSC 613 at [31], [59] per White J.

   [43]   See, for example, Montague v Montague [2002] NSWSC 328 at [62]-[65] per Austin J; Smith v Barker [2005] NSWSC 14 at [44] per Master McLaughlin; Moore v Moore [2005] VSC 95 at [28]-[33] per Mandie J; Abrego v Simpson [2008] NSWSC 215 at [23] per Windeyer J.

3. In determining whether the testator has made adequate provision for a spouse, the courts will, on occasion, be faced with competing and conflicting considerations to take into account. On the one hand, the court will need to consider whether a testator has provided a surviving spouse with a place of residence, and the capacity to change that residence, should circumstances change in the future.

4. In Golosky v Golosky,[44] Kirby P explained:[45]

   A mere right of residence will usually be an unsatisfactory method of providing for a spouse’s accommodation to fulfil the foregoing normal presupposition. This is because a spouse may be compelled by sickness, age, urgent supervening necessity or otherwise, with good reason, to leave the residence. The spouse provided for will then be left without the kind of protection which is normally expected will be provided by a testator who is both wise and just. 

   [44] [1993] NSWCA 111.

   [45]   Golosky v Golosky [1993] NSWCA 111 at 10 per Kirby P.

5. On the other hand, the court is also required to give effect to the wishes of a testator and, should a fee simple be left to an elderly spouse, this may well benefit others, contrary to the testator’s expressed wishes.

6. By reason of this tension between competing considerations, the courts have made orders for the provision of what is described as a ‘portable life interest’; that is, an interest in the property for the life of the widow that may nevertheless be sold or converted into other property. This is also known as a ‘Crisp order’.[46]

   [46]  Crisp v Burns Philp Trustee Co Ltd (Supreme Court of New South Wales, Holland J, 18 December 1979).

7. In Milillo v Konnecke,[47] Ipp JA stated:[48]

   A Crisp order is an order of the kind made by Holland J in Crisp v Burns Philp Trustee Co Ltd (unreported, Supreme Court, NSW, Holland J, No 3944 of 1978, 18 December 1979). Generally speaking such an order gives a plaintiff an interest for life in real property or in an interest in the property, with the right to it (should the need arise) for the purposes of securing, for the plaintiff's benefit, more appropriate accommodation. In Court v Hunt (unreported, Supreme Court, NSW, Young J, No 1996 of 1987, 14 September 1987) Young J (as he then was) said that a Crisp order was intended to provide flexibility, by way of a life estate, the terms of which could be changed to “cover the situation of the plaintiff moving from her own home to retirement village to nursing home to hospital”.

   Thus, for example, a Crisp order may entitle a plaintiff, from time to time, to require the executor of a will to sell a home devised by the will, or otherwise owned by the estate, and to use the proceeds for purposes that may include purchasing another home for the plaintiff's use and occupation, or providing accommodation for the plaintiff in a retirement village or similar institution, or in like accommodation providing hospitalisation and nursing care. The flexibility provided by such an order underlies the notion that a Crisp order confers a “portable life interest”.

   [47] (2009) 2 ASTLR 235.

   [48]   Milillo v Konnecke (2009) 2 ASTLR 235 at [47]-[48] per Ipp JA (with whom Macfarlan JA and Sackville AJA substantially agreed).

8. The appropriateness of a ‘portable life interest’ in relation to a widow’s claim was recognised in Thompson v Thompson.[49] McMillan J said:[50]

   The normal duty of a testator, expressed in traditional terms, is to provide a widow with the security of an appropriate home in which to live, a secure income, and a fund with which to meet unforeseen contingencies. The reason that a mere right of residence will usually be an unsatisfactory method of providing for the accommodation of a surviving spouse is that circumstances may compel the survivor to leave that residence. Old age is a “growing problem” in the community, and adequate provision renders it necessary to facilitate a move to supported accommodation should this become necessary. The duty, as expressed in traditional, that is, post 1980 terms, is a useful guide where there has been a long and happy marriage and a widow has helped build up the estate of the deceased. But that guide is expressed in terms which, generally, are applicable only in the absence of competing claims.

   Counsel for the defendant noted that if proper maintenance for a widow does require that she be given absolute ownership of a home, then the fact that her children may ultimately inherit it is not a reason to award her less. The relevant constraint, or the relevant limiting factor, is not the desire of the Court to prevent property inheritance from passing from one side of the couple to the other. Rather there is a two-fold constraint:

   (a)    First, that enlarged provision should be made for a plaintiff only if, and to the extent that, it is necessary to alter the will to make adequate provision for a plaintiff’s proper maintenance and support. As Callaway JA said in Grey v Harrison:

   ‘ … it is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention, and simultaneously limits its legitimate extent.

   (b)    Secondly, any enlarged further provision must be limited by balancing the needs of the plaintiff for increased provision against the proper claims that the testator himself recognised needed to be satisfied out of his testamentary bounty.

   (Citations omitted)

   [49] [2015] VSC 706.

   [50]   Thompson v Thompson [2015] VSC 706 at [63]-[64] per McMillan J.

9. In the present case, the issue on appeal was whether the trial Judge erred in determining that the ‘portable life interest’ vested in the respondent resulted in her being left without adequate provision for her proper maintenance, education, or advancement in life.

10. The appellant contended that the trial Judge effectively treated her analysis of the first stage of the application as having two separate parts – the first relating to accommodation, and the second relating to the monetary legacy. The appellant submitted that the two separate strands of reasoning were unconnected; her Honour did not link the inadequacy of the portable life interest to the need for payment of a further sum, or the inadequacy of the legacy to the award of the portable life interest; but rather, treated each element at the first stage as individually leading to a separate consequence at the second stage.   

11. The appellant emphasised that in relation to the ‘portable life interest’, the respondent did not contend at first instance, or before this Court, that her interest in the Hyland Terrace property was insufficient, upon its sale, to provide for any subsequent accommodation;[51] and the respondent did not suggest in evidence or on the appeal that she had a ‘need’ to be awarded the fee simple or that she did not wish to continue living in the Hyland Terrace property. In fact, at trial, the respondent expressed her satisfaction with residing in the property until she needed to move into an aged care facility or nursing home.[52] In challenging the trial Judge’s finding that the respondent was left without adequate provision, the appellant emphasised that it was not the respondent’s evidence, or case at trial, that she had any intention, or need, to sell the Hyland Terrace property. 

    [51]   An argument that the amount provided under the order would be insufficient has, in the past, been raised against a Crisp Order: See Ng v Lau; In the Estate of Ken Kui Yuen Lau [2020] NSWSC 713 at [129] per Kunc J, applying Prior v Kerrison [2017] NSWSC 1295 at [40] per Rein J.

    [52]   Trial Transcript T160-161.

12. Furthermore, the appellant contended that the trial Judge made several House v The King errors that, whether either individually or cumulatively, resulted in an erroneous determination that the respondent had been left without adequate provision for her proper maintenance, education, or advancement in life. These alleged errors are as follows.  

13. First, the appellant submitted that the trial Judge made a factual error when stating that the will, on its proper construction, required the appellant in her capacity as trustee to agree or ‘acquiesce’ to either the sale of the Hyland Terrace property, or the acquisition of an alternative residence. The appellant emphasised that the will provides that the Trustees ‘shall’ do so upon the receipt of a written request from the respondent; and submits that there is no discretion vested in the Trustees, and no issue of acquiescence arises. The appellant submitted that the will grants the respondent (as beneficiary) an unfettered right to sell the Hyland Terrace property and acquire different accommodation.

14. In determining whether the respondent was left without adequate provision, her Honour noted that ‘if [the appellant] wanted to sell the home and move to different accommodation, she must seek the acquiescence of [the appellant] before doing so, as [the appellant] must sign all the documents necessary for a sale.’ Although the word ‘acquiescence’ is used, that is only in relation to the completion of relevant documents. Her Honour was, in effect, saying that the terms of the will require ongoing contact and communication between the appellant and the respondent, and to that extent, the appellant’s cooperation will be required in completing the requisite paperwork should the respondent wish to change her accommodation in the future. That factual finding was open. It also formed part of the trial Judge’s broader consideration as to whether it was adequate for the appellant’s proper maintenance for a just and wise testator to render the respondent ‘beholden’ to the appellant in respect of her accommodation. The finding did not go so far as to suggest, as is implicit in this complaint, that the appellant could or would restrain any future sale. (This must however be seen in the context of the relationship to which the parties are bound by clause 4 of the will, addressed below.)    

15. Second, the appellant contended that the trial Judge erred by failing to take into account that the respondent’s needs in respect of accommodation, on her own evidence, were entirely met by a portable interest in the Hyland Terrace property.

16. We do not accept that submission.

17. While it is to be accepted that the respondent said in evidence that she wished to remain living at the Hyland Terrace property for the foreseeable future, the fact remained that she was an elderly woman, and her needs or desires may well change in the future. The respondent’s wishes in that regard were, whilst relevant, not decisive. It was necessary for the trial Judge to take into account the respondent’s age and likelihood that at some stage she will need to move into assisted care or a nursing home.  We are satisfied that there was no error by the trial Judge.   

18. Third, the appellant submitted that the trial Judge had regard to irrelevant considerations when determining whether a portable life interest in the Hyland Terrace property (in conjunction with the monetary legacy) constituted adequate provision, namely: issues relating to the insurance, upkeep, and potential vacancy of the property; and that the respondent should be provided with ‘complete security’ in relation to her residence. 

19. More specifically, the appellant submitted it is not clear what the trial Judge meant by ‘certainty’, as a portable life interest is a right vested in the respondent which is under her control as a beneficiary; and as such, it is sufficiently ‘certain’. Accordingly, the appellant submitted the trial Judge’s reference to a need for ‘certainty’ is either a mistake of fact, a mistake of law on the construction of the will, or an irrelevant consideration.

20. In the alternative, the appellant contended that to the extent these matters were relevant considerations, the trial Judge erred by holding that the portable life interest did not constitute adequate provision. 

21. In considering the appellant’s submissions, it is necessary to consider clause 4 of the will as to the trust on which the trustees (the appellant and respondent) are to hold the deceased’s interest in the Hyland Terrace property. Relevantly, as outlined by the respondent in her written submissions, it provides inter alia that:

    ·The respondent has a personal right to reside in the Hyland Terrace property.  No‑one else is permitted to reside there.

    ·The respondent is responsible (at her own expense) for all rates, taxes, and other outgoings in respect of the Hyland Terrace property.

    ·The respondent is responsible (at her own expense) for keeping the improvements in at least the same state of repair and condition as at the time of the deceased’s death (reasonable wear and tear excepted).

    ·The respondent is responsible (at her own expense) for insuring and keeping insured all improvements erected thereon against any risk or liability which the Trustees may deem necessary or expedient. 

    ·If the respondent fails to pay (including if she is unable to pay) any of the rates, taxes, or outgoings as and when those rates, taxes or outgoings shall fall due, and those expenses are unpaid for 42 days after written request, her personal right of residence ceases, and the property is held for the appellant’s benefit.

    ·If the respondent fails to keep the improvements in at least as good a state of repair and condition as they are in at the time of the deceased’s death, her personal right of residence ceases, and the property is held for the appellant’s benefit.

    ·If the respondent fails to insure and keep insured the property as deemed necessary or expedient by the Trustees, her personal right of residence ceases, and the property is held for the appellant’s benefit.

    ·If the Trustees are of the opinion that the respondent has ceased to reside in the Hyland Terrace property (or substitute residence) for a period of greater than six months, the respondent’s personal right of residence ceases, and the property is held for the appellant’s benefit. 

    ·If the appellant and respondent become tenants in common, the appellant has the right to approach the Court for the sale of the property (though she might alternatively charge the respondent rent for use of the property if she were so minded).

    ·If requested by the respondent, the Trustees shall sell the Hyland Terrace property at such a price and in such manner and upon such terms and conditions as the Trustees think fit. If the property is sold, three quarters of the deceased’s 50 per cent interest in sale proceeds are to form a “residence trust fund” which might be used by the respondent to purchase or erect a substitute residence but only if, and conditional upon, the respondent applying the whole of her share of the net proceeds from the sale of the Hyland Terrace property; and the other quarter of the deceased’s share of the sale proceeds are to be held for the appellant; and further, the residence trust fund is to be provided to the respondent by way of an (interest free) loan secured by a mortgage over the substitute residence should the Trustees deem it necessary.

    ·If part, or all, of the residence trust fund is to be employed for supported accommodation (including retirement village or nursing home accommodation but not hospitalisation) the resulting loan shall be secured in such manner as the Trustees shall determine.  If there is no request to the Trustees in accordance with the above provisions within 12 months of the sale of the Hyland Terrace residence, then three‑quarters of the deceased’s share of the sale proceeds shall be held for the appellant’s benefit and are no longer able to be put to use for the benefit of the respondent by way of a substitute residence or supported accommodation (including retirement village or nursing home accommodation).  

22. As the trial Judge recognised, clause 4 of the will gave rise to scope for dispute between the appellant and respondent in relation to any number of matters including: the state of repair and condition of the property; what insurance should be obtained and the terms of that insurance; whether or not the respondent had ceased to reside at the property; the price and manner of sale of the property; whether a mortgage is necessary for purchase of a substitute residence; and the manner by which any loan is to be secured. More fundamentally, it was open to the trial Judge to consider that clause 4 and the portable life interest deprived the respondent of her dignity and independence in arranging her own residence; it tied her to the appellant for the foreseeable future.

23. Further, to the extent that the trial Judge considered that the respondent was entitled to ‘complete security’ in regard to her residence, it was clear from the whole of the judgment that her Honour meant that the respondent should be able to deal with her residence without recourse to the appellant. That was a legitimate consideration for her Honour to take into account in determining whether the respondent was left without adequate provision for her proper maintenance in life. In taking those matters into account, there was no mistake of fact or mistake of law as to the construction of the will, nor did her Honour have regard to an irrelevant consideration.

24. Fourth, the appellant contended that the trial Judge erred in taking into account any potential for hostility between the appellant and the respondent. The appellant accepted that ‘hostility’ between the parties is a relevant consideration militating against the making of a Crisp order.[53] However, the appellant submitted that a finding of potential hostility between the parties was untenable on the evidence at trial; the appellant was not cross-examined on the topic and her Honour made a specific finding that there was no ‘likelihood that [the appellant] would behave unreasonably.’

    [53]   It is described as a contraindication in Ng v Lau; In the Estate of Ken Kui Yuen Lau [2020] NSWSC 713 at [129]-[130] per Kunc J, applying Prior v Kerrison [2017] NSWSC 1295 at [40] per Rein J.

1. It needs to be understood that the trial Judge referred to the potential for hostility between the parties after having explained that the respondent was left without adequate provision by reason, in part, of the portable life interest given her financial and non-financial contributions to the estate and her diminished independence and dignity by reason of being ‘beholden’ to the appellant. It was but one aspect of a broader consideration of the respondent’s independence from the appellant discussed above.  Further, the trial evidence revealed that the parties had a cordial but distant relationship. In her reasons, the trial Judge was at pains to point out that there was no hostility exhibited between the parties, noting the respectful manner in which they had conducted the litigation. However, the trial evidence revealed that there was an inevitable tension between the parties’ respective positions, most notably revealed, for example, in their contest as to whether transfers of moneys from the deceased to the appellant were in fact loans or gifts.

2. On a complete reading of the evidence and the trial record, it was open to the trial Judge to conclude, as she did, that ‘it is only natural to assume that their relationship will have been damaged, significantly or perhaps irretrievably, by the public nature of the trial.’ That finding was open to her Honour given the nature of the proceedings and the parties’ somewhat distant relationship at the commencement of the proceedings. Again, this was but one aspect of the evidence relevant to the trial Judge’s conclusion that the respondent, in all the circumstances of the case, should be able to deal with her residence and future accommodation independently of the appellant.  We are satisfied that the trial Judge did not err by having regard to the potential for hostility between the parties in determining that the respondent was left without adequate provision.

3. Fifth, the appellant contended that the trial Judge failed to properly have regard to the deceased’s testamentary intention, and the relevant authorities addressing the need to take this matter into account.[54] The appellant submitted that the trial Judge should have given the deceased’s testamentary intention greater weight as it was evident from the will that the deceased gave much consideration to the terms of his will. [55] There was also evidence in the form of past wills that the deceased had given ‘real consideration’ to the terms of his will and the distribution of his assets between his wife and daughter. It is evident that his intentions in that regard were long held, again as demonstrated by the similar terms of his earlier wills. However, while testamentary intention is a factor the court is entitled to take into account, it is not determinative of the outcome of an application under the Act.[56] As the trial Judge correctly recognised, if the deceased’s testamentary intention leaves an applicant without adequate provision, it must be interfered with irrespective of how considered or long held it may be. The trial Judge had express regard to the deceased’s testamentary intention. Her Honour specifically noted that his intentions were carefully considered and long held. However, her Honour ultimately concluded that in the circumstances of this case, the deceased’s testamentary intentions were outweighed by other relevant matters. This finding was open to her Honour. 

   [54]   Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253 at [127] per White J; Sgro v Thompson [2017] NSWCA 326 at [80]-[88] per White JA (with whom and McColl and Payne JJA agreed; Steinmetz v Shannon & Anor (2019) 368 ALR 161 at [50]-[51] per White JA.

   [55]   Ng v Lau; In the Estate of Ken Kui Yuen Lau [2020] NSWSC 713 at [127] per Kunc J.

   [56]   Ng v Lau; In the Estate of Ken Kui Yuen Lau [2020] NSWSC 713 at [127] per Kunc J.

4. Finally, in the alternative to the abovementioned matters, the appellant contended that the trial Judge’s determination that the respondent was left without adequate provision was, in all the circumstances, otherwise unreasonable or plainly unjust. The question on appeal is whether it was open to the trial Judge to decide that the deceased left the respondent without adequate provision for her proper maintenance, education or advancement. On a consideration of the whole of the court record, we are satisfied that the trial Judge’s determination to that effect was open for the following reasons.

5. First, the respondent, as the widow of the deceased, had a strong moral claim to his estate. She had been married to the deceased for over 30 years, and she had made significant financial and non-financial contributions to the estate. As the trial Judge acknowledged, the respondent made a financial contribution to each residential premises purchased during their marriage.  She worked for a significant portion of their marriage. She also managed most domestic tasks which undermined her ability to work longer hours and build up her own superannuation fund, whereas the deceased, without that responsibility, was able to maximise his contributions to his superannuation account.  Whether or not the respondent’s domestic contributions were productive of a direct financial return to the deceased, regard must be had to the non-financial contributions made by one party or another to a marriage.[57] In this case, the evidence also supported a finding that the respondent’s non-financial contributions were productive of the deceased’s increased financial security. 

   [57]   Singer v Berghouse (1994) 181 CLR 201.

6. The respondent was the deceased’s carer in the final years of his life, during which he suffered from a debilitating illness. She remained his carer until he moved to Estia.  There was evidence he was a difficult and demanding husband, particularly in his latter years, and that she remained a devoted wife.

7. In those circumstances, the respondent had a strong moral claim to the deceased’s estate. 

8. Second, as explained by the trial Judge, a portable life interest in the Hyland Terrace property deprived the respondent of her independence in arranging her own residence. It required ongoing cooperation and contact with the appellant. The portable life interest also provided fertile areas for future disputes between the parties as to its operation. The Hyland Terrace property was the respondent’s home of many years, to which she had contributed both financially and non-financially. The portable life interest in the Hyland Terrace property did not provide the respondent with independence and dignity in arranging her own accommodation.

9. Third, the estate was relatively substantial and there was a significant sum of money available to meet the competing moral claims of both the appellant and respondent. It is to be acknowledged that the appellant had a genuine need to benefit from the estate.  However, after the award of the half-interest in the Hyland Terrace property and the legacy of $260,000 to the respondent, the appellant was still left with a large proportion of the deceased’s estate, namely superannuation moneys in the sum of $720,000 (that being the 50 per cent paid directly into the estate in accordance with the terms of the Binding Death Benefit Nomination) and an additional $400,000 by way of direct legacy. Following the respondent’s death, the appellant would also receive the residual capital value of the superannuation death benefit or pension stream in the amount of between $625,000 and $1.5 million. It is also relevant that: the appellant owns her own home and would incur no difficulties in paying off the mortgage given the benefit she will receive from the estate; is in receipt of a tax-free disability pension in the amount of $21,100 per year; has an income of $14,000 per annum from casual employment; and receives rental income of $9,000 per annum.

10. For those reasons, we are not satisfied that the amount awarded by the trial Judge to the respondent is unreasonable or plainly unjust. It is not outside the range of awards that would have been reasonable or appropriate.

11. We dismiss this ground of appeal.

    Ground 2 – the trial Judge erred in the provision of an absolute interest in the Hyland Terrace property

12. In the alternative to Ground 1, the appellant complained that her Honour erred in determining that further provision to the respondent include an award of the absolute interest in the deceased’s interest in the Hyland Terrace property. The appellant did not contend at the appeal hearing that this Court should interfere with the monetary legacy of $260,000. 

13. The appellant submitted that the trial Judge, upon finding that the portable life interest did not constitute adequate provision, erred in determining that the entirety of the deceased’s half fee simple should be awarded to the respondent without considering any other possibilities as to what might constitute adequate provision in the circumstances of this case. 

14. It is to be noted that between the time of the deceased’s death and trial, the value of the deceased’s interest in the Hyland Terrace property had increased substantially from $385,000 to $562,500.  While the first stage of the inquiry involves a consideration of matters that were known, or were reasonably foreseeable, to the deceased at the time of his death,[58] the court’s discretion in determining quantum for further provision is exercised by reference to circumstances existing at the time of the trial. Accordingly, in determining what constituted adequate provision at the second stage, the increase in the value of the Hyland Terrace property was relevant.

    [58]   Blore v Lang (1960) 104 CLR 124 at 130 per Dixon CJ.

15. More specifically, the appellant contended that the trial Judge’s discretion miscarried on three main bases.  

16. First, the appellant submitted that the trial Judge erred by failing to properly consider whether the inadequacy of provision (as found by the trial Judge) could be remedied by amending the deceased’s will or considering other potential awards of provision. Further, the appellant submitted that the trial Judge erroneously had regard to irrelevant material, namely: issues relating to the insurance, upkeep of the property and the potential vacancy of the property; and that adequate provision required the respondent to be provided with ‘complete security’ in relation to her accommodation. For the reasons expressed above, we are of the view that these considerations were not irrelevant, and it was appropriate for the trial Judge to take them into account at both stages of her inquiry under s 7 of the Act.

17. Second, the appellant submitted that the trial Judge failed to consider relevant matters; namely, the respondent’s age at trial and the likelihood that any provision would ultimately benefit her biological children, contrary to the testamentary wishes of the deceased. As at the date of trial, the respondent was 78 years old with a life expectancy of approximately 12 years. Upon her eventual death, the award of the fee simple in the deceased’s interest in the Hyland Terrace property would likely result in a substantial benefit to the respondent’s daughters, contrary to the wishes of the deceased. Accordingly, the appellant submitted the trial Judge failed to take into account a relevant consideration, that being the potential benefit to persons who were not otherwise the intended beneficiaries of the deceased’s will.

18. We do not accept that submission.

19. It is evident from the judgment, that before deciding what constituted adequate provision, the trial Judge referred to the evidence adduced at trial, the parties’ submissions, and the applicable legal principles. In doing so, her Honour had express regard to the appellant’s financial circumstances and the extent of her financial dependence on the deceased; her poor health and limited prospects of employment; and the size of the deceased’s state. Immediately before reaching a conclusion as to what constituted adequate provision, the trial Judge specifically noted that the administration of the deceased’s estate ‘should be disturbed no more than is necessary to give [the respondent] adequate provision.’ It is evident that the trial Judge expressly referred to the need to not disturb the will any more than was necessary to provide adequate provision to the respondent.

20. Third, the appellant complained that the provision made to the respondent was in all the circumstances unreasonable or plainly unjust.  

21. Bearing in mind all the relevant considerations, which were set out in detail by the trial Judge in her reasons, we are not satisfied that the provision awarded to the respondent was outside the range of awards that was reasonable or appropriate. We do not consider that in applying the relevant principles - as identified and explained by the trial Judge - the award of $562,500 to the respondent, by way of the other half of the fee simple in the Hyland Terrace property (looked at in conjunction with the monetary legacy) went beyond what was adequate provision in the circumstances of this case.  This was a relatively large estate. The respondent had a strong moral claim given her financial and non-financial contributions during her 30-year marriage to the deceased. The award to the respondent of the other half of the fee simple to the Hyland Terrace property, her home of many years, recognised that she was entitled to lead an ‘independent and dignified life’[59] which would be diminished should she be required to have continued interaction with the appellant in relation to her home. After making adequate provision for the respondent, there remained a significant proportion of the estate available to the appellant which properly acknowledged her financial dependence on the deceased, her compromised health and limited capacity for work, and the deceased’s testamentary wishes. 

    [59]   Hertzberg v Hertzberg [2003] NSWCA 311 at [34]-[35] per McColl JA; Sarant v Sarant [2020] NSWSC 1686 at [358] per Hallen J.

22. For those reasons, we are not satisfied that the further provision awarded to the respondent was unreasonable or plainly unjust; it fell within the range of awards that might reasonably have been made.

23. We dismiss this ground of appeal.

    Ground 3 – award of further provision

24. This ground of appeal does not arise for consideration given our findings that the trial Judge made no error in concluding that the respondent had been left without adequate provision, nor in her award of further provision to the respondent.

    Ground 4 – order for costs

25. The appellant complained the trial Judge erred in making an order that the respondent’s costs of the proceedings be paid out of the deceased’s estate on a solicitor/client basis. The appellant accepted that leave to appeal is required under r 213.1(1)(c) of the Uniform Civil Rules 2020 given that the appeal is an order that relates to costs.

26. Under s 9(8) of the Act, the court may make such order as to the costs of any proceeding under this Act, as it considers just. This calls for a discretionary judgment by the court as to what is just in the circumstances. The nature of the discretion conferred by s 9(8) is no more confined than the general costs discretion and may, in some respects, be broader.[60]

    [60]   Doedens & Ors v Owen (No 2) [2018] SASC 23 at [12] per Nicholson J.

27. It seems that it has been common for courts in South Australia to award a successful claimant his or her costs from the residuary estate of the deceased on a solicitor/client basis.[61] Indeed, this has been referred to as the ‘standard order’.

    [61]   Parker v Australian Executor Trustees Ltd (No 2) (2016) 126 SASR 142 at [12]-[14] per Lovell J.

28. The appellant submitted there is no binding authority on this Court that requires the making of a ‘standard order’ for costs, nor is there any apparent rationale or principled basis for doing so. In developing this point, the appellant referred to the first edition of de Groot and Nickel, Family Provision in Australia:[62]

    In Australia, the courts from the beginning made what was described as a “standard order” where an applicant was successful. The order was that the costs of all parties were to be taxed on a solicitor-client basis and paid out of the estate.

    [62]   John de Groot and Bruce Nickel, Family Provision in Australia (LexisNexis Australia, 6^th ed, 2021) at [10.2]

29. The appellant noted that the authors then referred to 21 cases of which six were South Australian cases where ‘standard order’ costs were made without any discernible explanation or reason for doing so.[63]

    [63]   See In re Found; Found v Semmens [1924] SASR 236 at 243 per Murray CJ; Re Pope (1975) 11 SASR 571 at 574 pre Bray CJ; In the Estate of Brooks; Brooks v Public Trustee (1979) 22 SASR 398 at 405 per Jacobs J; Parente v Parente & Porter (1982) 29 SASR 310 at 315 per White J; Re McCaffrey (1982) 29 SASR 582 at 591-592 per Cox J.

30. In Whitington v Whitington (No 2)[64] (‘Whitington’), White J said:[65]

    By s 9(8) of the IFP Act, the Court may make such order as to the costs of the proceedings as it considers just. It is common for the costs of a successful applicant under the IFP Act to be awarded on a solicitor/client basis. However, the Court's usual discretion must be exercised and, amongst other things, account may be taken of the size of the estate, the successful applicant's conduct in the litigation, and the effect of an order on a solicitor/client basis on any residuary beneficiary.

    (Citations omitted)

    [64] [2009] SASC 178.

    [65]   Whitington v Whitington (No 2) [2009] SASC 178 at [30] per White J.

31. Justice White considered that whilst the ‘common’ starting point has historically been to award costs on a solicitor/client basis, a court in exercising its discretion under s 9(8) will still need to take into account other factors which may be relevant including the size of the estate, the successful applicant’s conduct throughout the litigation, and the effect of an order on a solicitor/client basis on any residuary beneficiary. In Whitington, White J considered the limited size of the estate was such that it was appropriate to confine the applicant to an award of costs on a party/party basis.[66] His Honour said that ‘(i)t is especially important that those engaged in disputation about relatively small estates take a practical and reasonable approach to the resolution of their disputes.’[67]

    [66]   Whitington v Whitington (No 2) [2009] SASC 178 at [32]-[34] per White J.

    [67]  Whitington v Whitington (No 2) [2009] SASC 178 at [33] per White J.

32. The appellant relied on Pizimolas v Pizimolas (No 2)[68] (‘Pizimolas’). In that matter, Kourakis J (as he then was) outlined the competing public interest considerations in the making of a costs order in family provision claims:[69]

    I now turn to the family provision claim. The cost of defending the plaintiff's claim is a cost which was incurred as an incident of determining the just entitlements of the beneficiaries under the will. The defendants were successful. They are entitled either to have their costs paid by the plaintiff or, alternatively, paid out of the estate. If I were to make the latter order, the effect would be that the plaintiff would shoulder only a proportion, reflecting his one third share of the estate, and not the whole of the defendants' costs.

    The ordinary rule as to costs is more easily displaced in family provision claims. In my view that approach reflects conflicting public interest considerations. On the one hand unmeritorious litigation which dissipates the estate should not be encouraged. On the other hand the purpose of family provision legislation is to charge the estates of testators who have made inadequate provision with such an amount as is necessary for the support of their dependents; that public policy objectives may not be achieved in practice if meritorious claimants are discouraged from making a claim by the ordinary rule as to costs.

    [68] [2010] SASC 209.

    [69]   Pizimolas v Pizimolas (No 2) [2010] SASC 209 at [5]-[6] per Kourakis J. It should be noted that his Honour’s judgment was set aside on appeal, however, the Full Court made no comment on his Honour’s order of costs: see Pizimolas v Pizimolas (2010) 108 SASR 153.

1. Justice Kourakis later concluded that the plaintiff did have some prospect of success in bringing his claim and said:[70]

   Balancing the competing considerations to which I have referred, I am not persuaded that the plaintiff should have his costs paid out of the estate. His attempt to secure greater provision for his future needs was reasonable but not so obviously justified by the testamentary disposition of his mother to warrant an order of costs out of the estate. The equal division of the estate between the three siblings was prima facie and a one third share of the estate was ultimately found to have been adequate provision for the plaintiff.

   On the other hand, there is sufficient basis here to relieve the plaintiff of the burden of the ordinary rule as to costs. In particular, I am concerned about the effects of such an order on the plaintiff's financial capacity to support himself in future years..

   I order that the defendants have their costs paid from the estate. I am informed that such costs are often ordered on a solicitor/client basis. I am not persuaded that it is appropriate to so order.

   …

   In my view, it better promotes the prudent settlement of family provision claims to limit the awards of costs of beneficiaries and claimants made out of the estate to party/party costs. I therefore order that the defendants' costs of defending the family provision claim in their capacity as beneficiaries be paid out of the estate on that basis.

   [70]   Pizimolas v Pizimolas (No 2) [2010] SASC 209 at [14]-[17] per Kourakis J.

2. In Parker v Australian Executor Trustees Ltd (No 2)[71] (‘Parker’), Lovell J referred to the reasoning of both Kourakis J in Pizimolas and White J in Whitington.  Expanding upon Kourakis J’s explanation for why the ordinary rule as to costs is more easily displaced in family provision claims, Lovell J explained the rationale for the courts’ preparedness to award costs on a solicitor/client basis.  A successful claimant in a family provision claim will necessarily have demonstrated that the testator failed to make adequate provision for his or her proper maintenance, education or advancement.  The court will only award such provision as is necessary to discharge the duty owed by the testator to the claimant.  If there is a difference of any significance between the actual costs reasonably incurred by the claimant (the solicitor/client costs) and the costs recoverable calculated on a party/party basis, then it follows that the successful claimant will not have received from the deceased estate, to that extent, the ‘adequate’ provision that should have been made.[72]

   [71]   Parker v Australia Executor Trustees Ltd (No 2) (2016) 126 SASR 142 at [13] per Lovell J.

   [72]   Parker v Australia Executor Trustees Ltd (No 2) (2016) 126 SASR 142 at [9] per Lovell J.

3. Whilst accepting the remedial character of the family provision legislation, Lovell J did not regard this as a basis for distinguishing family provision claims from many other types of civil litigation:[73]

   It can be accepted that the purpose of the legislation is remedial in character.  However many parties come to court to enforce their legal rights, sometimes under remedial legislation, without having the benefit of a “standard order”.

   [73]   Parker v Australia Executor Trustees Ltd (No 2) (2016) 126 SASR 142 at [10] per Lovell J.

4. Justice Lovell nevertheless noted that both Kourakis J and White J had acknowledged the existence of a ‘standard order’ and its common application in South Australia.[74]  Whilst also noting White J’s acceptance that the usual discretion on costs was to be exercised, Lovell J suggested a distinction between the approaches of Kourakis J and White J on the basis that the latter was prepared to accept that the practice of making an award of costs on a solicitor/client basis was a factor affecting the exercise of that discretion.  Lovell J said that he preferred the approach of White J unless the Full Court determined otherwise.[75]  That said, his Honour followed this with a warning that ‘parties to this type of litigation should not assume that a court will automatically award costs on a solicitor/client basis’.[76]

   [74]   Parker v Australia Executor Trustees Ltd (No 2) (2016) 126 SASR 142 at [12] per Lovell J.

   [75]   Parker v Australia Executor Trustees Ltd (No 2) (2016) 126 SASR 142 at [13] per Lovell J.

   [76]   Parker v Australia Executor Trustees Ltd (No 2) (2016) 126 SASR 142 at [14] per Lovell J.

5. Whilst Lovell J did not suggest otherwise, we would emphasise that there is unlikely to be any practical difference between the approaches of Kourakis J and White J.  Both accepted that the issue of costs in family provision claims was governed by the usual discretion as to costs, but acknowledged that there were considerations that often arose in those claims that might justify an order, for example, that the successful plaintiff recover his or her costs on a solicitor/client basis.  However, as the result in both cases makes plain, this departure from the ordinary rule that costs be awarded on a party/party basis is not routine or automatic.  It must be justified by the circumstances of the case.

6. The appellant also relied on the decision of the Western Australian Court of Appeal in Butcher v Craig (‘Butcher’).[77] In that case, the claimant’s application had been dismissed at trial but upheld on appeal. The claimant sought an order that costs be paid out of the estate on a solicitor/client basis.

   [77] [2010] WASCA 92 (S).

7. Justice Pullin (with whom Newnes and Murphy JJA agreed) noted that ‘[u]sually, where indemnity costs are awarded there has been some improper or unreasonable conduct by the parties or their lawyers.’[78] His Honour concluded:[79]

   The local cases cited by the parties reveal no usual practice and the existence of no principle in this State that costs in this type of case should ordinarily be taxed on a solicitor-client basis. The statement in De Groot and Nickel set out above is accurate in the sense that it points out that “courts from the beginning” (at least in some States) made orders that costs be taxed on a solicitor-client basis. The authors do not, however, suggest that there is any case explaining why such an order should be made and no case was drawn to this court's attention explaining why a successful applicant should have costs taxed on a solicitor-client basis in the absence of any unreasonable or improper conduct on the part of the respondents.

   [78]   Butcher v Craig [2010] WASCA 92 (S) at [13] per Pullin JA (with whom Newnes and Murphy JA agreed), citing Flotilla Nominees Pty Ltd v Western Australia Land Authority (2004) 28 WAR 95 at [9] per Pullin J.

   [79]   Butcher v Craig [2010] WASCA 92 (S) at [14] per Pullin JA (with whom Newnes and Murphy JA agreed).

8. Accordingly, costs were ordered out of the estate on a party/party basis.

9. Returning to the position in South Australia, we would endorse an approach to costs in family provision matters that is consistent with the reasoning of both White J in Whitington and Kourakis J in Pizimolas, but which emphasises the court’s discretion and eschews any reference to a ‘standard order’. 

10. In our view, the appropriate approach involves recognising that the starting point is that, under s 9(8) of the Act, the court exercises the usual broad discretion as to costs. In exercising that discretion, the guiding principle that costs follow the event will be relevant; it will generally entitle a successful family provision claimant to an order for costs, with those costs generally payable out of the estate.[80]

    [80]   For the reasons described in G E Dal Pont, Law of Costs, 4^th edition, 2018, Lexis Nexis at [10.35] and the cases referred to therein.

11. Whether to award the successful family provision claimant’s costs on a party/party basis[81] or solicitor/client basis is a further aspect of that discretion.  To the extent that it has historically been appropriate to refer to an order that those costs be payable on a solicitor/client basis as the ‘standard order’, we think it would be preferable to abandon that terminology lest it be taken to suggest that a solicitor/client costs order is something akin to the usual entitlement.

    [81]   Now referred to as the standard basis.

12. An important consideration underpinning the usual approach of confining a successful claimant in other civil litigation to party/party costs is the capacity for the difference between actual costs and recoverable costs to act as an incentive to settle claims. This consideration applies with at least equal force to family provision claims.  As Kourakis J said in Pizimolas, it is important that unmeritorious litigation which dissipates an estate not be encouraged.[82]  Other judges have expressed similar sentiments.[83]

    [82]   Pizimolas v Pizimolas (No 2) [2010] SASC 209 at [6] per Kourakis J.

    [83]   See references in G E Dal Pont, Law of Costs at [10.31] and [10.34].

13. Against this, and as White J in Whitington, Kourakis J in Pizimolas and Lovell J in Parker observed, there are considerations in family provision claims which may mean that the ordinary approach as to costs is more easily displaced than in some other types of litigation.  The family provision legislation is remedial in nature.  Its purpose is to charge the estates of testators who have made an inadequate provision with such amount as is necessary for the support of their dependents.  That public policy objective may be undermined if successful claimants have their further provision diluted by the gap between their actual costs and recoverable costs, or if meritorious claimants are discouraged from making a claim by the prospect of that gap.  That is particularly so given that potential family provision claimants are often, although by no means always, in difficult financial and personal circumstances.

14. On the other hand, in determining the weight to be ascribed to the achievement of the public policy underpinning family provision legislation, it is relevant to bear in mind that many parties come to court to enforce their legal rights, sometimes under remedial legislation, without the benefit of any inclination to award solicitor/client costs in the absence of the usual considerations favouring an order of that type.  Whilst the public policy objective underpinning family provision claims is a relevant consideration, it should not be over emphasised; it does not, of itself, justify an entitlement on the part of a successful family provision claimant to an order for solicitor/client costs. 

15. In exercising the court’s discretion as to costs in family provision claims, it will be appropriate to have regard to not only the public policy objective underpinning those claims, but also the size of the estate and the likely effect of an order for costs on a solicitor/client basis upon the parties and any residuary beneficiary.  It will also be appropriate to have regard to all of the other usual considerations relevant to costs, including the parties’ conduct in the litigation, their degree of success and any offers.

16. In the present case, the trial Judge held that the respondent should be paid the costs of the proceedings out of the deceased’s estate on a solicitor/client basis. Her Honour referred to the parties’ submissions and the relevant authorities, ultimately relying on the authority of Parker. Her Honour concluded:

    In the circumstances, I am of the view that this is an appropriate matter in which the [respondent] should obtain an award of costs on the solicitor/client basis. Given the inadequacy of the provision made to her, she was forced to bring this action; if the deceased had provided for her in the way that I have ordered (or similarly), she would not have been required to incur the expenses associated with this action. It would be unjust if she were required to expend a significant portion of the further provision which she has been awarded on meeting her lawyers’ fees.

17. Importantly, her Honour justified her decision to award solicitor/client costs by reference to the circumstances of the case, rather than merely relying upon any standard or automatic entitlement to an order for costs on this basis.

18. The trial Judge noted that an award of solicitor/client costs would have a significant effect on the respondent’s entitlement under the will but considered that if the applicant were to receive her costs on a party/party basis, that would have an even more deleterious effect on her. Her Honour said:

    I accept that costs on a solicitor/client basis will have a significant effect on the respondent’s entitlement. If the [respondent] were to receive her costs on the standard costs basis, however, I consider that it will have an even more deleterious effect on her. Her total costs are in the region of $283,578. If she were to receive two thirds of this amount (approximately the amount that might be expected on taxation) she would be required to pay an amount of close to $100,000 to her lawyers: more than one third of the entire cash legacy that she now receives. The [appellant], on the other hand, once the [respondent’s] costs have been deducted, will receive a cash amount of approximately $700,000. Even after her own costs are paid, she will receive a sufficient amount of money to allow her to live comfortably. In addition, it must be remembered that she will receive the balance of the applicant’s pension stream after her death.

    I reiterate that I do not consider that it would be fair if the [respondent] were to lose a third of her entitlement because the deceased failed to make adequate provision for her in his will. If he had acted as a just testator, she would not have incurred this expense. Nor do I consider that the offers exchanged between the parties demonstrate an unreasonable refusal to settle on her part.

19. The trial Judge accepted that the parties had made extensive efforts to resolve the matter before trial. There is no suggestion that there was any improper or unreasonable conduct on the part of either party. In exercising her discretion to award costs on a solicitor/client basis, the trial Judge mentioned the authorities to which we have referred. However, those references do not reveal error. Her Honour did not simply apply the ‘standard order’. She merely had regard to the rationale underlying it; namely that it is undesirable that an applicant’s successful claim to adequate provision under the Act be significantly diminished by a party/party costs order. Importantly, her Honour also had regard to other relevant considerations arising in this matter, including the size of the estate, the parties’ conduct during the litigation, and the effect of the costs award on the other beneficiary. The exercise of her Honour’s discretion was ultimately founded upon a combination of these features of the case.

20. Bearing in mind the breadth of the trial Judge’s discretion in relation to costs, we are not satisfied that error has been established.  

21. Given the uncertainty as to the significance of the references in the authorities to the ‘standard order’ as to costs in the case of successful family provision claims, it is appropriate to grant leave to appeal on this ground.  But as error has not been established, the appeal on costs must be dismissed.

22. We grant leave but dismiss this ground of appeal.

    Order:

    1.Leave to appeal is granted in relation to Ground 4, but the appeal is dismissed.