Buggle v Buggle - [2012] NSWSC 1009

Supreme Court

New South Wales

Medium Neutral Citation: Buggle v Buggle [2012] NSWSC 1009
Hearing dates: 22 August 2012
Decision date: 31 August 2012
Jurisdiction: Equity Division
Before: Hallen AsJ
Decision:
(a) Having found that the Plaintiff is an eligible person, and that the provision made for him in the Will of the deceased is inadequate, the Plaintiff is to receive a lump sum of $95,000 out of the estate of the deceased.
(b) No interest is to be paid on the lump sum if it is paid within 28 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment.
(c) Order that the costs of the Plaintiff, calculated on the ordinary basis, and the costs of the Defendant, calculated on the indemnity basis, should be paid out of the estate of the deceased.
(d) Order that the Exhibits be returned.

Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiff, a son of the deceased applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant is the widow of the deceased of the deceased, to whom Probate of the deceased's Will was granted and the sole beneficiary - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and if so the nature and quantum of the provision to be made. Allegation of estrangement and its effect on the provision to be made for the Plaintiff
Legislation Cited: Family Provision Act 1982
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Allardice v Allardice, In re Allardice, (1910) 29 NZLR 959
Andrew v Andrew [2011] NSWSC 115
Bartlett v Coomber [2008] NSWCA 100
Bentley v Brennan, Re Bull [2006] VSC 113
Blore v Lang (1960) 104 CLR 124
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Buckland Deceased, Re [1966] VR 404
Butcher v Craig [2009] WASC 164
Christie v Manera [2006] WASC 287
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Crossman v Riedel [2004] ACTSC 127
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Edgar v Public Trustee for the Northern Territory [2011] NTSC 5
Foley v Ellis [2008] NSWCA 288
Ford v Simes [2009] NSWCA 351
Gardiner v Gardiner (NSWSC, 28 May 1998, unreported)
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Hampson v Hampson [2010] NSWCA 359
Harris, In Re (1936) 5 SASR 497
Hawkins v Prestage (1989) 1 WAR 37
Hughes v National Trustees Executors and Agency Co. of Australasia Ltd (1979) 143 CLR 134
Hunter v Hunter (1987) 8 NSWLR 573
Hyland v Burbidge [2000] NSWSC 12
Kay v Archbold [2008] NSWSC 254
Keep v Bourke [2012] NSWCA 64
Kembrey v Cuskelly [2008] NSWSC 262
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Lathwell v Lathwell [2008] WASCA 256
McCosker v McCosker (1957) 97 CLR 566
McGrath v Eves [2005] NSWSC 1006
MacGregor v MacGregor [2003] WASC 169
Magill v Magill [2006] HCA 51; (2006) 226 CLR 551
Marks v Marks [2003] WASCA 297
Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47
Mayfield v Lloyd-Williams [2004] NSWSC 419
Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Puckridge, Deceased, In the Estate of (1978) 20 SASR 72
Savic v Kim [2010] NSWSC 1401
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stiles v Joseph (NSWSC, 16 December 1996, unreported)
Stott v Cook (1960) 33 ALJR 447
Taylor v Farrugia [2009] NSWSC 801
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (NSWSC, Young J, 17 May 1996, unreported)
Category: Principal judgment
Parties: Norman Buggle (Plaintiff)
Magdalena Buggle (Defendant)
Representation: Counsel:
Mr S O'Brien (Plaintiff)
Mr G E Underwood (Defendant)
Solicitors:
Business Lawyers (Liverpool) Pty Ltd (Plaintiff)
VAC Legal Lawyers (Defendant)

File Number(s): 2011/411396

Judgment

The Application

HIS HONOUR: These reasons relate to proceedings, in which a claim for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act") is made. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the court, under Chapter 3, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person.

The deceased, whose estate is the subject of the claim, is Adelbert Buggle (also known as "Albert Buggle" and "Bert West") ("the deceased").

The Plaintiff, Norman Buggle, a child of the deceased, made his claim in a Summons filed on 15 December 2011. It was filed within the time prescribed by the Act (within 12 months of the death of the deceased.)

The Defendant named in the Summons is Magdalena Buggle, the widow, and the executrix named in the Will, of the deceased.

There is no notional estate the subject of the Plaintiff's claim.

Formal Matters and Background Facts

The following facts are uncontroversial and provide a useful background.

The deceased died on 3 September 2011. He was then aged 81 years, having been born in September 1930.

The Plaintiff is the child of the marriage of the deceased and Katharina Buggle. The deceased and Katharina separated in about 1972 when, with the Plaintiff, she returned to Switzerland. A divorce order was made in about 1976. Katharina has since remarried (prior to 1988) and remains living in Switzerland.

The deceased commenced to live in a de facto relationship with Monique Simonet in about February 1984. Their relationship had ended by September 1993. There were no children of their relationship.

The Defendant was born in June 1943. She was married, but a divorce order was made in the early 1990's. There were two children of the marriage, namely Beate Martina Hoffman and Patricia Eleonore Crea.

Upon dissolution of the Defendant's marriage, her daughter, Patricia, paid her father to purchase his interest in the former matrimonial home at Bexley. Later, Patricia purchased the Defendant's interest in the former matrimonial home. She also paid the Defendant for that interest. The Bexley property, since then, has been sold.

The Defendant commenced to live in a de facto relationship with the deceased in about 1997. She moved into the deceased's home at Victoria Parade, Manly ("the Victoria Parade house"). They were married in August 2003. There were no children of their union.

The deceased left a Will that he made on 12 May 2011, Probate of which was granted, on 27 October 2011, by this Court, to the Defendant.

The deceased's Will, relevantly, provided for the whole of his real and personal estate to pass to the Defendant for her sole use and benefit absolutely, provided she survived him by one calendar month. In the event that she did not, the whole of the estate was to be divided and distributed equally between her two children, Beate and Patricia. No provision was made in the Will of the deceased for the Plaintiff and he was not otherwise referred to in it.

In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased's estate, at the date of death, was disclosed as having an estimated, or known, gross value of $1,143,223. The property owned solely by the deceased was real estate at North Manly ("the North Manly property") ($825,000) and cash in bank ($318,223). (I have omitted, and shall continue to omit, any reference to cents in amounts referred to.)

No liabilities were disclosed in the Inventory of Property although the Defendant gave evidence that Patricia had paid for the deceased's wake.

The parties agree that, at the date of hearing, the estate consists of the North Manly property ($825,000) and the remaining cash in the Defendant's solicitors' controlled monies account ($292,978).

None of the estate of the deceased has been distributed (other than to pay part of the Defendant's costs and disbursements to which I shall later refer).

In calculating the value of the estate of the deceased finally available for distribution, the costs of the present proceedings should also be considered, since the Plaintiff, if successful, normally will be entitled to an order that his costs, calculated on the ordinary basis, be paid out of that estate, whilst the Defendant, irrespective of the outcome of the proceedings, normally will be entitled to an order that her costs, calculated on the indemnity basis, be paid out of that estate.

The Plaintiff's costs and disbursements are estimated to be $49,717, if calculated on the ordinary basis, and $61,887, if calculated on the indemnity basis. The estimate, in each case, is inclusive of GST and is based on a one-day hearing.

The Defendant's costs and disbursements are estimated to be $69,841, if calculated on the indemnity basis. The estimate is inclusive of GST and is based on a one-day hearing. Of this amount, $25,154 has already been paid out of the deceased's estate. The balance remaining to be paid out of the estate is $44,687. (The costs of obtaining probate ($5,859) have also been paid out of the estate.)

(No evidence was given about the costs of sale of the North Manly property, but in light of the decision to which I have come, this does not matter.)

It can be seen, therefore, that the estimated value of the net distributable estate, after the payment of the Plaintiff's estimated costs calculated on the ordinary basis and the balance of the Defendant's estimated costs calculated on the indemnity basis ($94,404 in total), is in the order of $1,023,574. If one excludes the value of the North Manly property, the value of the remaining estate, constituted by the cash component is $198,574.

Of course, depending upon the result of the Plaintiff's claim and any order made as to costs, the costs and disbursements, if payable out of the estate will be able to be formally assessed, unless otherwise agreed by the parties.

The persons described as eligible persons, within the meaning of the Act, are the Plaintiff and the Defendant. Neither of the Defendant's children has been identified as a person who is, or who may be, eligible. This is not surprising as there is no evidence given that either was a member of the household of which the deceased was a member, or that she was wholly, or partly, dependent upon the deceased at any particular time.

Neither of the Defendant's children is a beneficiary in the events that have happened.

The Plaintiff's mother, as the former spouse of the deceased, is an eligible person. Perhaps, Ms Simonet is, or may be, eligible also.

There is no evidence of service of the prescribed notice on the Plaintiff's mother. However, I was informed from the bar table, without objection, that she was aware of the Plaintiff's proceedings and that she did not wish to make any claim on the estate. There is no reason not to accept this statement, particularly in circumstances where she has lived overseas for almost 40 years prior to the death of the deceased and has remarried.

In the case of Ms Simonet, there is some weak evidence about a search carried out by the Defendant's solicitor (contained in the Defendant's affidavit). However, bearing in mind that evidence, the fact that her relationship with the deceased ended almost 20 years before his death, that there is no evidence of any continuing contact between her and the deceased, and the competing claims of the parties involved in the proceedings, I am satisfied that the court may disregard her interests as a person by, or in respect of whom, an application for a family provision order may be made and determine that service of the prescribed notice is unnecessary in the circumstances of the case.

Only the Plaintiff has commenced proceedings. The Defendant has sworn several affidavits in which she has given evidence about her financial and material circumstances, and has advanced a case that she is a competing claimant, financially, and otherwise, upon the bounty of the deceased. Even though she has not made a claim, the Court is not entitled to disregard her interests, as she is a beneficiary of the deceased's estate.

Additional Background Facts

The following facts are also not the subject of any dispute between the parties.

In 1973, long before he met the Defendant, the deceased, purchased the Victoria Parade house. He lived there for many years. He sold it in about August 2001 for approximately $1.2 million. The proceeds of sale were used to purchase the North Manly property. The Defendant admits that she made no financial contribution to the purchase price of the North Manly property.

In about March 1984, the deceased purchased, in the name of "Bert West", a unit in Osborne Road, Manly. He sold that unit in October 1987.

In about April 1984, the deceased purchased, in the name of "Bert Buggle", a unit in Victoria Parade, Manly ("the Victoria Parade unit"). Subsequently, he transferred it into the sole name of the Plaintiff. In May 1987, he sold the Victoria Parade unit using a registered Power of Attorney purportedly granted to him by the Plaintiff (which the Plaintiff denies having granted).

Coincidentally, in May 1987, the Plaintiff wrote to the deceased enquiring about a number of different matters, including whether he and his girlfriend, if they moved to Australia, "could live in that apartment which is registered in my name", whether there would be monthly rent payable, and if so, how much, and if they could "take over the apartment, if, after one year, they decided to stay".

In about July 1989, the deceased purchased, in the sole name of the Plaintiff, a house at Gulliver Street, Brookvale ("the Brookvale property"). It remained in the sole name of the Plaintiff for some years. I shall return to the sale and purchase of the two properties, in the name of the Plaintiff, later in these reasons.

In February 1993, the deceased sent a telegram to the Plaintiff which stated:

"Due to illness come and see Father urgent"

Following the receipt of the telegram, the Plaintiff came to Australia.

In September 1993, there was a dispute between the deceased and Ms Simonet, following the termination of their de facto relationship. In a letter dated 12 October 1993, from the deceased's then solicitors to Ms Simonet's solicitors, the following passage appears:

"...

6.Our client has an income of approximately $317.00 per fortnight from an age pension. In addition he receives $40.00 per week from his son for managing his son's property.

7.The property of our client's son is at ... Gulliver Street, Brookvale. Our client has no share in that property. The only work that your client has done in relation to that property was attending with our client on approximately 10 occasions to help in undertaking a small amount of gardening work. On each such occasion she was paid the sum of $10.00 for her efforts by our client."

In about 1994, the Plaintiff became concerned about the deceased's use of the Brookvale property. He consulted solicitors who wrote to the deceased.

The deceased, himself, wrote a letter dated 29 March 1994, to the Plaintiff's solicitors, which was in the following terms:

"The property in question will be a gift to my son, who left me to live with his mother in Europe when he was 9 years old.

Until he came to visit me several weeks ago he did not know he had property in Australia, but he knew I was saving money for him. This gift I have gradually worked for and upgraded from a bank account twenty five years ago, to a unit and then finally five years ago into a house.

I bought the property run down and in bad repair. From the money I had and with the rent from the tenants, plus every dollar I could save from my own money, I paid tradesmen to do the property up.

Until I hand over this property to my son I reserve the right to further upgrade and improve my gift however I see fit.

I will not correspond with my son via a Solicitor.

I am puzzled by his sudden demand for my eventual gift and I suspect foul play.

I bought the property in his name in case I suddenly die so nobody could take it from him. My own house will also be his.

When my son was here several weeks ago he did not say a word about being interested in the property. If he had I would have gladly discussed it with him.

Having only one son I have saved and invested for twenty five years as he will have a better future, but now he is demanding my gift through a Solicitor without talking to me. I am most disturbed by this behaviour.

The Deed is in safe keeping until I have fully paid for the mortgage. I will hand the property over to him personally when I decide, not on his command.

I have never received any money from my son towards this property and I do not expect it, as it was supposed to be my gift to him one day.

If I receive any more upsetting correspondence I will change my will ... from my son as sole benefactor to The Spastic Centre of N.S.W. where I have worked happily for many years."

This letter was followed by a letter, dated 6 April 1994, from the deceased's solicitors to the Plaintiff's solicitors, which included the following passage:

"...

We advise that our client will not deliver the title deeds for the above property to your office as requested by you. The Brookvale property was purchased by our client some years ago. Your client has made no monetary or other contribution either to the purchase of the property or to its maintenance. The title to the property was registered in the name of your client as trustee only. The beneficial interest in the property belongs solely to our client. It was the intention of our client to make a gift of the property to your client at some future date. Our client is now reconsidering his position in this regard in view of the recent actions by your client.

We request that you advise us in writing by 5.00.pm Thursday 14 April, 1994 that your client does not make any claim to the beneficial ownership in the Brookvale property. Should you fail to do this then we shall advise our client that he may commence proceedings without further notice to you or your client seeking the appropriate declarations and orders for the removal of your client's name from the title deeds and the confirmation of the ownership of the property by our client. Orders for costs for those proceedings will of course be also be sought against your client."

Then the deceased wrote a letter, dated 25 April 1994, directly to the Plaintiff:

"I am still your father and whatever trouble you in I'm on your side, but consulting a solicitor while you have been here in order to deceitfully obtain the house before I am willing to hand it over to you is really too much. You know quite well as you have never paid a cent towards this house. It should have been a surprise gift one day to you when I have fully paid for it ...

Also behind my back before you returned to Switzerland you cancelled the new power of Attorney with your solicitor for which I paid eighty dollars.

I give you exactly four weeks to contact your solicitor apologise and ask him to organise a new power of Attorney, otherwise my patients [sic] will run out. You will not only loose (sic) forever the house in Brookvale that in the future should be yours and my house in Manly, but also your father!"

Subsequent to the correspondence, the Plaintiff did, in fact, commence proceedings against the Defendant in this Court regarding the beneficial interest in the Brookvale property. The Plaintiff accepted, when it was suggested by counsel for the Defendant, that the Supreme Court proceeding was "a bitter dispute".

The Supreme Court proceeding was settled, consensually, with orders providing for the sale of the Brookvale property and for the proceeds of sale to be divided, as to 60% to the deceased and as to 40% to the Plaintiff. Following its sale, the Plaintiff received $98,165 in about May 1996.

Unfortunately, that was not the end of litigation between the Plaintiff and the deceased. In July 1996, the Plaintiff made application to the Guardianship Board for the appointment of a manager of the deceased's financial affairs, which application was dismissed at a preliminary hearing.

The reasons given by the Plaintiff for making the application were that he was concerned about the deceased driving, and to stop the deceased forging the Plaintiff's signature. There was some medical evidence upon which the Plaintiff relied (which, originally described the deceased "as suffering a dementia with ... depression", but subsequently described him as suffering "a pseudodementia related to depression (and life stresses at the time)").

In its Reasons for Decision delivered on 26 November 1996, the Guardianship Board referred to evidence from the deceased and also from a social worker. The Plaintiff gave evidence by conference telephone and through a German language interpreter. In addition, the Plaintiff relied upon documentary evidence that he supplied to the Guardianship Board, but the Reasons for Decision reveal that all but five of the documents related to the Supreme Court proceeding that had been settled.

The Board was not satisfied that the Plaintiff had "genuine concerns for the welfare" of the deceased, and thought that the application had been made in order to agitate issues that had been before the Supreme Court. The Board also concluded that there was no evidence that the deceased was incapable of managing his affairs.

The effect of the Supreme Court proceeding and the Guardianship Board application had a profound effect upon the relationship of the Plaintiff and the deceased. In a document dated 19 February 1997, under the heading "DISOWNMENT!" the deceased stated:

"... my only son Norman who lives permanently in Switzerland engaged behind my back a solicitor to claim the house and have the money from the auction sale send [sic] to him. Norman caused me enormes heat [sic]-ache trying to get the entire house before my death. In a court order which has cost me $36,000 - in legal fees the house had to be sold in an auction sale of which 40% had to go to my son. Now I have to rely on the government for the old age pension.

Because of his action, I herewith disown my son. It is my strongest wish that he will not be notified of my death."

Although the deceased did not send the document to the Plaintiff, in his oral evidence, the Plaintiff frankly admitted that the deceased was extremely upset by both the Supreme Court proceedings and the Guardianship Board proceedings.

The Statutory Scheme - The Act

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

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

The key provision is s 59 of the Act. The court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made. Relevantly, one category is "a child of the deceased" (s 57(1)(c) of the Act). Clearly, that language is expressive of the person's status, as well as his, or her, relationship to the deceased. There is no age limit placed on a child making an application.

The court, if satisfied of the applicant's eligibility, must, in this case, then determine whether adequate provision for the proper maintenance, education or advancement in life of that applicant has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is only if the court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). In this way, the court carries out a two-stage process. It may take into consideration the matters referred to in s 60(2) of the Act at both stages. (The operation of the intestacy rules is irrelevant to this case.)

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

It was said in the Court of Appeal (per Basten JA) in Foley v Ellis [2008] NSWCA 288 at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment".

Under s 59(1)(c) of the Act, the time at which the court gives its consideration to the question of inadequacy of provision is the time when the court is considering the application. Under s 59(2), the Court has regard to the facts known to the court at the time the order is made.

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

Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement":

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

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

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

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

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

Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16:

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

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

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

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

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

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

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

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

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

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

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

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

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

Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that:

"It means proper in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of 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."

In Goodman v Windeyer (1980) 144 CLR 490, Gibbs J said at 502:

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

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

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

Santow J pointed out in Gardiner v Gardiner (NSWSC, 28 May 1998, unreported), "adequate" and "proper" are independent concepts. He said at 12:

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

The first stage of the process provided for by s 59(1)(c) has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education and advancement in life of a particular applicant.

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

Tobias JA said:

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

...

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

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

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

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

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

Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It can be seen that s 60(2) enumerates 15 specific matters which the court may take into account, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order, and, if so, the nature of any such order. The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of such of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance, and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.

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

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

"'financial resources' ... includes:

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

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

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

(d) any other valuable benefit."

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

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

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

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

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

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant."

And by the comments of Callinan and Heydon JJ in Vigolo v Bostin, at 230-231:

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

Section 61 of the Act permits the court to disregard the interests of any other person by, or in respect of whom, an application for a family provision order may be made (other than a beneficiary of the deceased person's estate), but who has not made an application. However, the court may disregard any such interests only if:

(a) notice of the application, and of the court's power to disregard the interests, is served on the person concerned, in the manner and form prescribed by the regulations or rules of court, or

(b) the court determines that service of any such notice is unnecessary, unreasonable or impracticable in the circumstances of the case.

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

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

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

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

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

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

The order may be made, relevantly, in this case, in relation to the estate of the deceased. As the deceased died leaving a Will, his estate includes all property that would, on a grant of probate of the Will, vest in the executor of the Will (s 63 of the Act).

Any family provision order under the Act will take effect, unless the court otherwise orders, as if the provision was made in a codicil to the will of the deceased, or in the case of intestacy, as in a will of the deceased (s 72(1) of the Act).

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

The Court, also, may, at the time of distribution of an estate that is insufficient to give effect to a family provision order, make such orders concerning the abatement, or adjustment, of distributions from the estate, as between the person in whose favour the family provision order is made and the other beneficiaries of the estate as it considers to be just and equitable among the persons affected (s 72(2) of the Act).

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

Other Applicable Legal Principles - Substantive Application

Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were promulgated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act.

Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve a 'fair' disposition of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants. The Court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act to correct the hurt feelings, or sense of wrong, felt by an applicant. Rather, the Court's role is of a specific type and goes no further than the making of 'adequate' provision in all the circumstances for the 'proper' maintenance, education and advancement in life of an applicant.

In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the Court to be vigilant in guarding "against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant". Freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the court": Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 19.

In Stott v Cook (1960) 33 ALJR 447, Taylor J, although dissenting in his determination of the case, observed, at 453-4, that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added:

"There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged."

Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (NSWSC, Young J, 17 May 1996, unreported); Vigolo v Bostin at 199 and 204; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.

In all cases under the Act, what is adequate and proper provision is necessarily fact specific.

The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1910) 29 NZLR 959 at 966.

Where the Court is satisfied that provision ought to be made, then it is no answer to a claim for provision under the Act that to make an order would be to defeat the intentions of the deceased identified in the Will. The Act requires, in such circumstances, the deceased's intention in the Will to be displaced: Kembrey v Cuskelly [2008] NSWSC 262, per White J, at [45].

All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singerv Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12 at [56]. Nor does it follow that if the Court decides it is inappropriate to make a specific provision in respect of one identified head of claim that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams.

A claim under the Act does not encompass reparations, or compensation, to an applicant for the deceased having failed in his, or her, legal, or moral, duty to be a good and responsible parent of the child: Re Bull; Bentley v Brennan [2006] VSC 113, per Byrne J at [30].

As I said in Savic and Ors v Kim [2010] NSWSC 1401, at [82]:

"It is not the purpose of the Act to punish, or redress, past bad, or unfeeling parental behaviour, where that behaviour does not still impinge on the applicant's present financial situation."

What was said in Edgar v Public Trustee for the Northern Territory [2011] NTSC 5, per Kelly J at [46] should be remembered:

"There is no onus on the ... residuary beneficiary under the will to show that she is entitled to be treated as such - or to prove what may be necessary for her proper maintenance and support. Rather the onus is on the plaintiff to show that proper provision is not available for him under the terms of the will. In determining whether this is the case the Court must have regard to all relevant circumstances including the size of the estate and the nature of the competing claim by the widow. In performing this task the Court must have due regard to the will of the testator and should interfere only to the minimum extent necessary to make adequate provision for the proper maintenance, education and advancement in life of an applicant who has passed the first jurisdictional hurdle. As Dixon CJ said in the passage from Scales quoted above, due regard must be had to "what the testator regarded as superior claims or preferable dispositions" as demonstrated by his will. (Omitting citations)

In relation to a claim by an adult child, the following principles are useful to remember:

(a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.

(b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his or her children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801.

(c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia at [58].

(d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland Deceased [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co. of Australasia Ltd (1979) 143 CLR 134 at 148; Goodman v Windeyer at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons to whom the applicant, however reasonably, wishes to support, where there is no obligation to support such persons Re Buckland Deceased at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams, at [86].

(e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45.

(f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003) at [181], [182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17].

(g) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd at 149.

(h) Although some may hold the view that equality between children requires that "adequate provision" not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the Court's determination of an applicant's case.

In Blore v Lang (1960) 104 CLR 124, Fullagar and Menzies JJ said, at 135:

"The ... legislation [is] for remedying, within such limits as a wide discretion would set, breaches of a testator's moral duty to make adequate provision for the proper maintenance of his family - not for the making of ... a fair distribution of ... [the] estate ... Equality is not something to be achieved by the application of the Act, although in some cases equality may set a limit to the order to be made - for instances, where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same."

Estrangement

On the topic of the relationship between an applicant and the deceased, Campbell JA (with whom Giles JA and Handley AJA agreed) recently noted, in Hampson v Hampson [2010] NSWCA 359:

"[80] The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge."

Because, in this case, there is a factor raised by the Defendant that bears on the quality of the relationship, being that the Plaintiff and the deceased were said to be estranged for many years before his death, it is necessary to set out some other general principles which should be remembered:

(a) The word 'estrangement' does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties. Whether the claim of the Plaintiff on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case: Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Dec) v Lathwell [2008] WASCA 256 at [33].

(b) The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 at [88]-[94]; Foley v Ellis.

(c) There is no rule that irrespective of a Plaintiff's need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to "ample" provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases.

(d) The Court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one "who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility": Ford v Simes [2009] NSWCA 351 at [71] per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed.

(e) As was recognised by the Court of Appeal in Hunter v Hunter (1987) 8 NSWLR 573 at 574 - 575 per Kirby P (with whom Hope and Priestley JJA agreed):

"If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator's will."

(f) Even if the applicant bears no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the Court's discretion under s 59(2) of the Act 2006 to make a family provision order where the jurisdictional requirements of s 59(1) are met. That the applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them the love, companionship and support present in normal parent/child relationships, during those years, is a relevant consideration: Keep v Bourke, per Macfarlan JA, at [3].

(g) The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, will operate to restrain amplitude in the provision to be made: Keep v Bourke [2012] NSWCA 64, per Barrett JA, at [50].

(h) Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. In addition, s 60(2)(m) permits the Court to consider the character and conduct of the applicant at the second stage of the process. Care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time: Foley v Ellis at [102].

(I referred to most of these principles in Andrew v Andrew [2011] NSWSC 115 at [74]. The Court of Appeal heard an appeal on 14 June 2012 and reserved its decision.)

Because the Defendant is the widow of the deceased, I should refer to some other principles. In Foley v Ellis [2008] NSWCA 288, Sackville AJA at [88] noted that Singer v Berghouse (No 2) "... strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act".

Of course, the Defendant is not an applicant so principles that apply where the widow is one are not entirely apposite. She is the chosen object of the deceased's bounty and, as stated above, does not have to prove an entitlement to the provision made by the deceased for her in his Will or justify such provision.

In Magill v Magill [2006] HCA 51; (2006) 226 CLR 551, Gleeson CJ, at [24], said:

"The structure of marriage and the family is intended to sustain responsibility and obligation."

This accords too, with what Hodgson JA said in Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47, at [63]:

"In my opinion, a formal and binding commitment to mutual support through good times and bad, other factors being equal, adds strength to a legitimate claim."

Concern as to the capacity of the widow to maintain herself, independently and autonomously, also bear upon the notion of what provision ought to have been made for her.

I make clear that I do not intend what I have described as "applicable principles" or "general principles" to be elevated into rules of law. Nor do I wish to suggest that the jurisdiction should be unduly confined or the discretion at the second stage to be constrained by statements of principle found in dicta in other decisions. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind.

Additional Facts

Next, I set out additional facts that I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to the matters in s 60(2) of the Act to which I may have regard.

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

The Plaintiff is a child of the deceased. In 1972, when he was about 10 years old, his mother took him to Switzerland to live with his maternal grandparents. The deceased remained in Australia. After moving overseas, until about 1985, the Plaintiff had virtually no contact with the deceased. The Plaintiff sent the deceased cards and letters (at least some of which are in evidence) but never received a response from him.

The Plaintiff gives evidence of some physical abuse by the deceased prior to being taken overseas by his mother.

In January 1985, whilst visiting Australia and staying at the home of some acquaintances of the deceased, they informed the deceased of the Plaintiff's visit, as a result of which he contacted the Plaintiff. The Plaintiff then stayed at the Victoria Parade house, with him, until the Plaintiff left to travel to Tahiti.

The Plaintiff says that following this visit, his relationship with the deceased improved. They remained in contact and were able to engage in some business dealings, selling opals, together.

There was a slight problem in their relationship in about 1989, relating to the concerns the Plaintiff had about the deceased having sold the Victoria Parade unit, which had been registered in the Plaintiff's name, but the Plaintiff says the problem did not last long, because the deceased informed him that the Brookvale property had been purchased and registered in his name.

The Plaintiff wrote to the deceased during this period (between 1985 and 1994). A copy of some of the letters are in evidence and they disclose an attempt by the Plaintiff to keep the deceased informed about events going on in the Plaintiff's life. A number of other letters refer to the opal business arrangements between them.

The Plaintiff accepted that following the commencement of the Supreme Court proceedings, and then the Guardianship Board proceedings, his relationship with the deceased was difficult. They did not speak at all whilst engaged in the Supreme Court litigation.

The deceased was also "extremely upset" by the Guardianship Board application. This caused further tension between them.

I am of the opinion that the Plaintiff's conduct in commencing the Supreme Court proceeding and the Guardianship Board proceeding was justified. In relation to the first action, the Plaintiff was simply protecting what he believed the deceased had gifted to him. In relation to the second, there was some medical evidence supporting the application, and even though he did not satisfy the Board that his motives were appropriate, I do not think I should attribute a dishonourable motive to the Plaintiff.

In November 1996, the deceased and the Plaintiff had a telephone conversation in which the deceased expressed a continuing desire to purchase a property that would be the Plaintiff's one day.

In 2003, the deceased wrote to the Plaintiff informing him of his impending marriage and honeymoon in Tasmania. However, the Plaintiff was not invited to the wedding.

The Plaintiff admitted that from about 1996 until the deceased's death, he never met with the deceased. Between 1996 and 2003, he would telephone the deceased three or four times a year and he sent him a birthday card each year. He otherwise wrote twice. From 1996, he only made one attempt, in 2009, to visit him at the North Manly property. He had known of his address at North Manly from about 2001 or 2002.

There was no telephone contact after 2003, although the Defendant accepted that she and the deceased then, and thereafter, had a silent number, which, I infer, was not disclosed to the Plaintiff.

The Plaintiff returned to live permanently in Australia in about 1999. There is evidence, being a letter sent by the deceased to inform the Plaintiff of the deceased's marriage to the Defendant, from which I infer that the Plaintiff had informed the deceased where he was living.

Yet, the only contact between the Plaintiff and the deceased set out in the Plaintiff's affidavit after about 1997 appears to be telephone calls about three or four times a year and one occasion when the Plaintiff attended the deceased's home but was unable to see him. (I shall refer to his oral evidence later in these reasons.)

The Plaintiff admits that there were fluctuating degrees of closeness and distance between him and the deceased during the deceased's lifetime otherwise. The Defendant describes the relationship as "distant" during the years that the Plaintiff lived overseas with his mother. In my view, this, too, is an accurate description of the nature of the relationship of the Plaintiff and the deceased until 1996. Thereafter, there was very little relationship between them.

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

There is no definition of the "obligations" or "responsibilities" to which the sub-section refers in the Act. One might conclude, however, that what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities.

Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to the Plaintiff, imposed upon him by statute or common law. However, a moral obligation or responsibility, to make adequate provision for the proper maintenance or advancement in life is recognised in the case of a child.

The fact that an applicant was financially independent for many years before the deceased's death is a relevant consideration in determining the extent of any obligation or responsibility owed.

There was an obligation, or responsibility to the Defendant, arising as a result of their relationship as husband and wife, imposed upon the deceased by statute or common law. In addition, she is identified as the sole beneficiary in the deceased's Will.

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

I have dealt with these matters earlier in these reasons. The estate is reasonably large.

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

The Plaintiff is a fitter and turner and a wool classer by trade. He was formerly on a Newstart Allowance but no longer is.

He owns land at Yarrawonga, New South Wales, (costing $110,000 in 2007) on which is built an unfinished home.

The Plaintiff received about $115,000 from a damages claim in about 2008. He has spent about $24,000 for solar power, purchased a second hand fridge ($20), a second hand 1994 Ford Fairlane ($4,000), a shed ($5,500) and installed a large concrete slab ($11,500) as well as a solar power hot water system ($5,300), fencing and outside runs ($30,000). He expects to spend about $10,000 on facilities for an animal boarding business that he has recently commenced.

The Plaintiff currently has $9,591 in cash, having paid some of his legal costs ($10,000). (If he succeeds, and obtains an order for costs, he will be refunded what he has paid, or at least a part of it.)

The Plaintiff worked one day a week as a security guard at the Waratah Hotel, Mudgee, but now appears to be unemployed.

He was involved in a car accident in late July 2012 when the car he was driving hit two cows that were on the road. The cows had no ear tags, so it will be difficult, if not impossible, to ascertain the identity of the cows' owner. It is unlikely that the Plaintiff will be able to obtain compensation.

As a result of this accident, the Plaintiff sustained injuries and continues to have some disabilities. He lost his job as a security guard.

He is probably able to work, or will be able to work once he has fully recovered. He does do some casual work involving boarding dogs, from which he has earned $64. He hopes to develop the animal boarding business.

There was no evidence about his entitlement to receive a disability, or other, pension.

The Plaintiff set out his "needs", in relation to his unfinished home as follows:

(a) $90,770 for labour costs to complete his house;

(b) $80,000 for materials, landscaping and fencing costs;

(d) $8,000 to connect a telephone land line; and

(e) $4,500 for a water tank.

He claims to need to purchase a ride-on lawn mower ($4,500); an electric fridge ($1,200); an electric stove ($600) and a water heater ($3,000); an electric fan or air conditioner. He also said his car is 14 years old and requires replacement. He would like to buy a four-wheel drive utility ($35,000). He requires a garage to be constructed (at an estimated cost of $9,000). He also referred to uncalculated labour costs for construction of an unassembled shed and uncalculated costs of repairing the solar hot water system that is leaking, flooding the laundry and bathroom.

He also said he will have on-going medical costs in relation to a shoulder injury, the total costs of which he was not able to quantify. However, he referred to the need for approximately $20,000 for an operation on his arm and back, and on-going physiotherapy.

The Defendant is currently 68 years old.

She is unemployed and has no earning capacity because of her eyesight (to which I shall refer).

She receives the age pension of $755 per fortnight. She has no assets and no savings. Her fortnightly expenses are just insufficient to meet her current expenses (about $780 per fortnight).

She has specific needs being to purchase:

(a)

Magnifying machine:

$ 4,000

(b)

Book reader:

$ 550

(c)

Computer and software:

$ 2,300

(d)

Security system:

$ 6,600

(e)

Painting of home:

$10,500 (average)

(f)

Holiday to homeland:

$13,500 (average)

(g)

Air conditioning:

$10,000

(h)

New hot water system:

$ 1,500

$48,950

She states that she is likely to have the following additional annual expenses which are not catered for in her current expenditure:

(a)

Internet:

$ 540 (average)

(b)

Alarm system:

$ 400

(c)

Home maintenance:

$3,000

$3,940

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

The Plaintiff is currently single and lives alone.

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

In a report dated 10 June 2009, from Judy Hickey, Occupational Therapist, the following is to be noted:

(a) The Plaintiff sustained an injury to his left shoulder when he fell approximately half a metre off the edge of a new car park area in Byron Place, Mudgee in October 2008. The Plaintiff stated that a rail has now been placed there to avoid any further accidents.

(b) The Plaintiff was deemed unfit for work from 31 March 2009 to 15 May 2009.

(c) The Plaintiff reported ongoing left shoulder pain; significant left shoulder pain if he sleeps on his left side; limited reaching; and limited manual handling ability.

(d) The Plaintiff reported that he had pain levels of four to six out of ten on the Analogue Pain Scale on the evening following the assessment. The day following this assessment, he reported significant increase in pain levels of nine out of ten on the Angalogue Pain Scale that settled during that day.

(e) On 2 June 2009, the Plaintiff reported the onset of constant left thumb twitch during the night that significantly interrupted his sleep.

The Defendant is legally blind. Her condition and its prognosis is set out in a report dated 26 July 2012, from her treating Ophthalmic Surgeon, Dr James E.H. Smith as follows:

"...

I have known Mrs Buggle since 1999. Her diagnosis is Retinitis Pigmentosa.

She is legally blind from this condition and the prognosis is for a slow but steady continued decline in visual function without any prospect for significant treatment.

The form of blindness in this case usually affects peripheral vision so that she has in effect tunnel vision.

This is a particularly debilitating form of blindness as it severely limits mobility in any except the most familiar surroundings and certainly makes her completely dependant on others for mobility out of her familiar surroundings.

She uses a white stick and has assistance regarding this from the Guide Dogs Association."

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

The Plaintiff was born in August 1962 and is currently aged 50 years.

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

The Plaintiff asserts a financial contribution to the conservation of the estate of the deceased. There is an issue about his contribution to the properties purchased, or registered, in his name. The evidence is contradictory and really unable to be tested.

As the onus is on the Plaintiff to establish his contribution, and as he had no supporting documents, I am unable to be satisfied that he contributed as much as he said he did. I think that he may have made some financial contribution but as noted below, he did receive almost $100,000 in about 1996.

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

The Plaintiff received 40 per cent of the proceeds from the sale of the Brookvale property, being $98,165 in about May 1996.

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

I have earlier referred to the letter dated 29 March 1994, written by the deceased to the Plaintiff's then solicitors, which letter stated that if the deceased received any more "upsetting correspondence", he would "change his will for my house at ... Victoria Parade, Manly, from my son as sole benefactor to The Spastic Centre of N.S.W. where I have worked happily for many years".

The deceased's letter dated 25 April 1994 repeated the same threat.

A copy of the Will referred to, in each letter, does not form part of the evidence. However, in circumstances where the statement about a Will was that of the deceased, I accept that, in 1994, there was such a Will, and that it provided a devise of the Victoria Parade house to the Plaintiff.

In a will dated 3 March 1997, the deceased left his entire estate to the Defendant and set out in Clause 4 the reasons why he was not making a bequest to the Plaintiff:

"...

4.I HAVE specifically made no bequeath for my son NORMAN BUGGLE due to his behaviour in taking Supreme Court action in relation to the premises at [...] Gulliver Street, Brookvale. I have made more than adequate provision for my son during the course of his lifetime and I find that his claim of forty percent (40%) of the house was both financially and emotionally sole [sic] destroying. IN ADDITION it is my wish that my son not be notified of my death and that in the event of him disrupting my will, that my executor take all necessary action to defend such claim."

The deceased did not mention the Plaintiff in his wills of 24 October 2002 or in the Will the subject of the grant of Probate. In each, the Defendant was the sole beneficiary.

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

The deceased did not maintain the Plaintiff, wholly or partly, before his death, other than during his childhood in Australia.

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

There is no person with a liability to support the Plaintiff. Whether, and if so, when, he will be able to make an application for a pension of some kind was not the subject of evidence.

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

An evaluation of "character and conduct" may be necessary, not for the sake of criticism, but to enable consideration of what is "adequate and proper" in all the circumstances. Importantly, the Act does not limit the consideration of "conduct" to conduct towards the deceased.

I have dealt with the relationship of the Plaintiff and the deceased earlier in these reasons. Overall, I am of the view that prior to the litigation in 1994 and the Guardianship Board proceedings, the relationship of the Plaintiff and the deceased was a reasonable one considering its history. It must be remembered that the Plaintiff had been living in Switzerland from about 1972. However, the historical events that caused them to be not as close as, perhaps, they might have been, cannot be laid at the door of the Plaintiff.

I am more troubled by events after 1996. I appreciate that the Plaintiff did not come to live permanently in Australia until 1999. However, thereafter, until 2003, his relationship with the deceased was sporadic at best. His evidence on this topic should be remembered:

"Q. Before you leave that just so I understand, leaving aside any questions of attempts, on how many occasions after November 1996 did you actually see him?

A. I never saw him after 1996.

Q. Leaving aside attempts, on how many occasions after November 1996 did you speak to him on the telephone?

A. About three, four times a year. I did write to him but I am not much of a writer so.

Q. So you spoke to him about three or four times a year?

A. Yes.

Q. Every year between 1996 and 2011?

A. Yes, I sent him a card, too, when it was his birthday.

Q. Sent a birthday card each year?

A. Yes.

Q. And you said you wrote otherwise?

A. Yes.

Q. How regularly did you write?

A. Perhaps twice.

Q. In you last affidavit, the bigger affidavit of 13 August at paragraph 14 you say: I refer to ringing my father about three times yearly including on his birthday and the period on which this occurred was between 1985 and about 2003. So it is not correct to say that you spoke to your father about three or four times a year from 1996 until your father died, is it?

A. Well, the last time I heard of him was just before when he rang me up and said he was getting married. No, he actually wrote to me, sorry.

Q. But it is not correct to say, as I understand the answer you just gave his Honour, that you spoke to your father about three or four times a year from 1996 until 2011, that is just not correct, is it?

A. Well, not till 2011, that is not correct, yes.

Q. Are you saying that it is correct that you spoke to him two or three times a year until 2003?

A. Yes, that is correct.

Q. And there was no contact on the phone after 2003?

A. No contact on the phone.

Q. You didn't see your father at any stage between November 1996 and his date of death?

A. No, I did not see him until then, no.

Q. And you attempted once in 2009 when you called at [the North Manly property] to speak to your father, that is correct, isn't it?

A. That is correct.

Q. And that is the only time that you have put in your affidavit evidence that you attempted to contact your father?

A. No, I did write to him but I tried to use --

Q. I withdraw that, attempted physically to speak to him in his presence?

A. No, there was one other time when I was in Manly but he was not there either and I sent him a letter - well I had a card and I put it in his letter box to show.

Q. You were aware that your father lived at [the North Manly property], for about 11 years from about 2001?

A. Yes, I did find out that he was living at [the North Manly property].

Q. That is where you say in your affidavit that you called at that house at that address in 2009?

A. Yes.

...

Q. You were asked some questions about knowing that your father lived in the North Manly property, when did you find out that information?

A. A woman named Gwen that we knew, she wrote to my mother and told my mother that he was living at [the North Manly property].

Q. Do you have any recollection of when that was?

A. It has been quite some time ago already, it could be, it must be nearly ten years.

Q. So around 2001 or 2002?

A. It could be roughly, yes."

There is some explanation why the Plaintiff did not see, or make attempts to see, the deceased more in the period after 1999, following his arrival in Australia, and the date of the deceased's death. The Plaintiff submits in his written submissions, in this regard:

"22.... in light of Norman's experience of abuse and abandonment by his father as a child, his conduct as an adult in commencing proceedings against his father to protect what he perceived to be his own interests as well as cancelling the power of attorney can be viewed as properly justified, as illustrations of the maxim 'once bitten twice shy'."

The deceased, of course, was upset by the events of 1994 and 1996. It is possible that some of his conduct, during the Plaintiff's childhood and until about 1985, explains the Plaintiff's asserted lack of trust of the deceased. However, it seems that each overcame this and between 1985 and 1994, with the exception of a short period of dispute, their relationship was satisfactory.

After 1996, whilst there were sporadic attempts at contact, those were few and for a period of about eight years, there was only one attempt to attend at the deceased's home. It seems to me that had the Plaintiff wanted to see the deceased and resurrect their relationship, he could have done so.

Similarly, the deceased appears to have known where the Plaintiff was. Had he wanted to see the Plaintiff and resurrect their relationship, he could have done so. The depth of the deceased's feeling is demonstrated by the fact that he did not inform the Defendant that he had a son.

However, when one considers the totality of their relationship, I am satisfied that its breakdown and the period of estrangement is not of sufficiently long duration to give rise to the complete termination of the deceased's duty to provide for the Plaintiff. As late as 2003, the deceased wrote a letter to the Plaintiff to inform him of his upcoming marriage.

This is not a case, in my view, where the deceased was entitled to make no provision for his only child. The Plaintiff was not a child who withheld his support and love from the deceased over many years.

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

It is necessary to consider the Defendant's conduct also. I am satisfied that she was a loving spouse of the deceased. I also accept that for some years prior to his death, it was the Defendant who was his full-time carer. However, I accept that she made no direct financial contribution to the purchase price of the North Manly property and that they did not have, or raise, any children together.

There is no conduct of the Defendant, after the death of the deceased, which is relevant.

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

This is not relevant in the present case.

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

There is no other matter that I consider relevant.

Determination

Claims for a family provision order present particular difficulties where the actual estate is reasonably small and where there are several competing claims upon the bounty of the deceased. Any provision made by the Court in favour of an applicant must, in this class of case, be made at the expense of the beneficiary who has had to defend the claims and who is the chosen object of the deceased's bounty.

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

There is also no dispute that the proceedings were commenced within the time prescribed by the Act.

Then, the first question for determination is whether, at the time when the court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the Plaintiff has not been made by the Will of the deceased.

Counsel for the Defendant did not accept that the Plaintiff has "need". As discussed above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence. Counsel submitted, even though no provision was made for the Plaintiff in the Will of the deceased, that the jurisdictional threshold had not been satisfied.

He submitted that the Plaintiff's estrangement from the deceased militated strongly towards dismissal of his claim. Alternatively, it was submitted that the Plaintiff should receive a lump sum of no more than $50,000, which amount would enable him to pay for his medical expenses (about $20,000) and provide a small amount for exigencies of life.

In considering the answer to the question posed at the first stage, judged by quantum and looked at through the prism of his financial and material circumstances, adequate provision for the proper maintenance or advancement in life was not made by the Will of the deceased for the Plaintiff. He has meagre financial resources; his living conditions are spartan (in an unfinished house without adequate services and utilities), currently, he has a limited capacity for paid employment as a result of his physical injuries, and his only source of income, currently, is from a newly started animal boarding business.

Whilst a lump sum, by way of maintenance or advancement in life would be appropriate, that is not all that I am required to consider at the first stage. The totality of the relationship of the Plaintiff and the deceased, the age and capacities of the other beneficiary, the Defendant, and her claim on the bounty of the deceased, are very relevant factors in determining the answer at the first stage.

All the considerations lead me to find that there was a failure, on the part of the deceased, to make adequate provision for the proper maintenance or advancement in life for the Plaintiff.

The estrangement between the Plaintiff and the deceased can be described as a reasonably long one. However, having regard to the whole of their history, I do not consider that the Plaintiff's conduct and behaviour has disentitled him completely from provision for his maintenance and advancement.

Nevertheless, having regard to the whole of their history, the conduct of the Plaintiff does have an effect on the amount he should receive. Having virtually no contact with the deceased for the last ten to fifteen years of his life, is a consideration that "restrains the amplitude of provision" that should be made for him.

In reaching this conclusion, I have not forgotten that there is an inter-relationship between the conduct said to disentitle an applicant to relief and the strength of the need for provision out of the deceased's estate. It has been said that the stronger the applicant's case for relief, the more reprehensible must have been that person's conduct to disentitle them to the benefit of any provision: Hughes v National Trustees, Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 at 156 per Gibbs J.

Having found that the Plaintiff is an eligible person and that the provision made for him in the Will of the deceased is inadequate, I turn to the second stage and next consider the nature and quantum of any provision that should be made.

The Plaintiff submitted that his needs for "adequate and proper provision out of the estate [set out above] at best outweigh those of the defendant, and at worst are not less than her own needs". He submits that the following orders should be made:

"a.Order that the plaintiff is to receive a legacy $514,450.00 out of the estate ("Legacy") (calculated on the basis of 45% of the value of the estate as at the date of the grant of probate)

b.Order the defendant within 28 days to pay the plaintiff a lump sum $188,000 as part payment of the Legacy.

c.The balance of the Legacy to be paid to the plaintiff within six weeks of either the event of selling [the North Manly property] occurs, or the death of the defendant occurs, whichever is the earliest.

d.Interest on any amount of Legacy not paid in accordance with orders 2 and 3 above to be paid at the rate prescribed for the purposes of s 84 of the Probate and Administration Act 1898 as the rate of interest on Legacies.

e.Order that the Legacy and any interest accrued thereon is to be a charge upon the Property until it is paid.

f.Order the defendant pay the plaintiff's costs.

g.Order the defendant's costs be paid out of the estate on an indemnity basis."

I do not accept the submission put on behalf of the Plaintiff. I am of the view that in calculating the provision that the Plaintiff should receive, I must bear in mind the position of the Defendant as the chosen object of the testamentary bounty of the deceased and as his de facto partner, and then wife, for a total of about 14 years.

Nor do I accept counsel's submission for the Defendant that, as a matter of discretion, I should dismiss the Plaintiff's claim or make provision for him limited to $50,000.

In my view, having regard to all of the matters that I am required to consider, including amongst other things, the size and nature of the deceased's estate, the totality of the relationship between the Plaintiff and the deceased, as well as the relationship between the deceased and the Defendant, who has a strong legitimate claim upon his bounty, the Plaintiff should receive a lump sum of $95,000 which will provide him with some capital or enable him to pay some of his potential expenses. This will leave the Defendant, after the payment of costs, with a lump sum of about $103,000 and the former matrimonial home in which she has lived for the last 11 years ($825,000).

No interest is to be paid on the lump sum if it is paid within 28 days of the making of orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment.

I order that the costs of the Plaintiffs, calculated on the ordinary basis, and the costs of the Defendant, calculated on the indemnity basis, should be paid out of the estate of the deceased.

I order that the Exhibits should be returned.

**********

Decision last updated: 31 August 2012

Medium Neutral Citation:	Buggle v Buggle [2012] NSWSC 1009
Hearing dates:	22 August 2012
Decision date:	31 August 2012
Jurisdiction:	Equity Division
Before:	Hallen AsJ
Decision:	(a) Having found that the Plaintiff is an eligible person, and that the provision made for him in the Will of the deceased is inadequate, the Plaintiff is to receive a lump sum of $95,000 out of the estate of the deceased. (b) No interest is to be paid on the lump sum if it is paid within 28 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment. (c) Order that the costs of the Plaintiff, calculated on the ordinary basis, and the costs of the Defendant, calculated on the indemnity basis, should be paid out of the estate of the deceased. (d) Order that the Exhibits be returned.
Catchwords:	SUCCESSION - FAMILY PROVISION - The Plaintiff, a son of the deceased applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant is the widow of the deceased of the deceased, to whom Probate of the deceased's Will was granted and the sole beneficiary - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and if so the nature and quantum of the provision to be made. Allegation of estrangement and its effect on the provision to be made for the Plaintiff
Legislation Cited:	Family Provision Act 1982 Succession Act 2006 Succession Amendment (Family Provision) Act 2008
Cases Cited:	Alexander v Jansson [2010] NSWCA 176 Allardice v Allardice, In re Allardice, (1910) 29 NZLR 959 Andrew v Andrew [2011] NSWSC 115 Bartlett v Coomber [2008] NSWCA 100 Bentley v Brennan, Re Bull [2006] VSC 113 Blore v Lang (1960) 104 CLR 124 Bondelmonte v Blanckensee [1989] WAR 305 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Buckland Deceased, Re [1966] VR 404 Butcher v Craig [2009] WASC 164 Christie v Manera [2006] WASC 287 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Crossman v Riedel [2004] ACTSC 127 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54 Edgar v Public Trustee for the Northern Territory [2011] NTSC 5 Foley v Ellis [2008] NSWCA 288 Ford v Simes [2009] NSWCA 351 Gardiner v Gardiner (NSWSC, 28 May 1998, unreported) Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Hampson v Hampson [2010] NSWCA 359 Harris, In Re (1936) 5 SASR 497 Hawkins v Prestage (1989) 1 WAR 37 Hughes v National Trustees Executors and Agency Co. of Australasia Ltd (1979) 143 CLR 134 Hunter v Hunter (1987) 8 NSWLR 573 Hyland v Burbidge [2000] NSWSC 12 Kay v Archbold [2008] NSWSC 254 Keep v Bourke [2012] NSWCA 64 Kembrey v Cuskelly [2008] NSWSC 262 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Lathwell v Lathwell [2008] WASCA 256 McCosker v McCosker (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 MacGregor v MacGregor [2003] WASC 169 Magill v Magill [2006] HCA 51; (2006) 226 CLR 551 Marks v Marks [2003] WASCA 297 Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47 Mayfield v Lloyd-Williams [2004] NSWSC 419 Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Savic v Kim [2010] NSWSC 1401 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (NSWSC, 16 December 1996, unreported) Stott v Cook (1960) 33 ALJR 447 Taylor v Farrugia [2009] NSWSC 801 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, Young J, 17 May 1996, unreported)
Category:	Principal judgment
Parties:	Norman Buggle (Plaintiff) Magdalena Buggle (Defendant)
Representation:	Counsel: Mr S O'Brien (Plaintiff) Mr G E Underwood (Defendant) Solicitors: Business Lawyers (Liverpool) Pty Ltd (Plaintiff) VAC Legal Lawyers (Defendant)
File Number(s):	2011/411396

(a)	Magnifying machine:	$ 4,000
(b)	Book reader:	$ 550
(c)	Computer and software:	$ 2,300
(d)	Security system:	$ 6,600
(e)	Painting of home:	$10,500 (average)
(f)	Holiday to homeland:	$13,500 (average)
(g)	Air conditioning:	$10,000
(h)	New hot water system:	$ 1,500
$48,950

(a)	Internet:	$ 540 (average)
(b)	Alarm system:	$ 400
(c)	Home maintenance:	$3,000
$3,940