Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris - [2012] NSWSC 748

Supreme Court

New South Wales

Medium Neutral Citation: Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748
Hearing dates: 13, 14 June 2012
Decision date: 05 July 2012
Before: Hallen AsJ
Decision:
(i) Having found that the Plaintiff, Craig Frederick Butler, is an eligible person and that the provision made for him in the Will of the deceased is inadequate for his proper maintenance or advancement in life, order that, in lieu of that provision, he is to receive 37 per cent of the estate of the deceased.
(ii) Order that the time for the making of Carolyn's application be extended up to and including 23 November 2011, the date of the filing of her Summons.
(iii) Having found that the Plaintiff, Carolyn Elizabeth Butler, is an eligible person and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, order that she is to receive 13 per cent of the estate of the deceased.
(iv) Order that the burden of the additional provision made for the Plaintiff, Craig Frederick Butler, and the provision made for Carolyn Elizabeth Butler, should be borne by the share of the estate passing to the Defendant, Fiona Lee Morris, with the result that she is to receive the balance, being 50 per cent, of the estate of the deceased.
(v) Order that the lump sum that equates to the share of the estate passing to the Plaintiff, Carolyn Elizabeth Butler, is to be paid to the NSW Trustee and Guardian as the financial manager of that Plaintiff.
(vi) Order that no interest is to be paid on the lump sum which equates to the share of the estate passing to each Plaintiff, if that lump sum is paid within 7 days of settlement of the sale of the Pennant Hills property; 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.
(vii) Order that the costs of all parties shall be determined after further submissions, unless agreement is reached between them.
(viii) Order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the costs of the proceedings.
(ix) Further consideration with respect to orders for the purpose of giving effect to the family provision order made in favour of each of the Plaintiffs as well as in relation to any additional amount to be paid by Fiona be reserved.
(x) Stand the matter over to a convenient date to the parties and the court for any argument as to costs.

Catchwords: SUCCESSION - The Plaintiffs, an adopted son and an adopted daughter of the deceased, each applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant, also an adopted daughter of the deceased, to whom Probate of the deceased's Will was granted - Dispute that adequate and proper provision not made in Will of the deceased for Plaintiff, Craig - No dispute that adequate and proper provision not made in Will of the deceased for Plaintiff, Carolyn and that an order in favour of that Plaintiff should be made - Dispute as to the quantum of the provision and how the burden of that provision should be borne - Dispute concerning moneys used by the Defendant during lifetime of deceased
Legislation Cited: Civil Procedure Act 2005
Family Provision Act 1982
Practice Note SC Eq 7
Probate and Administration Act 1898
Property (Relationships) Act 1984
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Uniform Civil Procedure Rules 2005
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Allardice, In re, Allardice v Allardice (1909) 29 NZLR 959
Bartlett v Coomber [2008] NSWCA 100
Blore v Lang (1960) 104 CLR 124
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Buckland Deceased, Re [1966] VR 404
Butcher v Craig [2009] WASC 164
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
Evans v Levy [2011] NSWCA 125
Foley v Ellis [2008] NSWCA 288
Gardiner v Gardiner (NSWSC, 28 May 1998, unreported)
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Hawkins v Prestage (1989) 1 WAR 37
Hughes v National Trustees Executors and Agency Co. of Australasia Ltd (1979) 143 CLR 134
Kay v Archbold [2008] NSWSC 254
Kembrey v Cuskelly [2008] NSWSC 262
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566
McGrath v Eves [2005] NSWSC 1006
MacGregor v MacGregor [2003] WASC 169
Marks v Marks [2003] WASCA 297
Mayfield v Lloyd-Williams [2004] NSWSC 419
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9
Puckridge, Deceased, In the Estate of (1978) 20 SASR 72
Singer v Berghouse (No 2) [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
Thom v The Public Trustee (NSWSC, 2 April 1992, unreported)
Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572
Twomey v Mcdonald [2012] NSWSC 22
Valbe v Irlicht [2001] VSC 53
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (NSWSC, 17 May 1996, unreported)
Category: Principal judgment
Parties: Craig Frederick Butler
(Plaintiff in 2010/283304)
Carolyn Elizabeth Butler (bht NSW Trustee & Guardian) (Plaintiff in 2011/37523)
Fiona Lee Morris
(Defendant in 2010/283304)
Fiona Lee Morris (as Executrix of the Estate of Sybil Ethel Butler Deceased)
(Defendant in 2011/37523)
Representation: Counsel:
Mr A Hill (Plaintiff in 2010/283304)
Mr A J McInerney (Plaintiff in 2011/374523)
Mr C Vindin
(Defendant in both proceedings)
Solicitors:
Butlers Will Dispute Lawyers
(Plaintiff in 2010/283304)
ZuckerLegal (Plaintiff in 2011/374523)
Heckenberg & Koops Lawyers
(Defendant in both proceedings)

File Number(s): 2010/283304; 2011/374523

Judgment

HIS HONOUR: In separate proceedings, the Plaintiffs, Craig Frederick Butler, an adopted son, and Carolyn Elizabeth Butler, an adopted daughter, of Sybil Ethel Butler ("the deceased"), each applies for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act"). 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. (There is no question of notional estate raised in the proceedings.)

The Plaintiff, Craig Frederick Butler, commenced his proceedings, by originating Summons, filed on 26 August 2010, that is, within the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased).

The Plaintiff, Carolyn Elizabeth Butler (by her tutor the NSW Trustee & Guardian), commenced her proceedings, by originating Summons, filed on 23 November 2011, outside the time prescribed by s 58(2) of the Act. She also seeks an order that the time for making the application be extended.

The Defendant named in each Summons is Fiona Lee Morris, another adopted daughter of the deceased and the executrix named in the Will of the deceased.

Without any undue familiarity, or disrespect intended, and for convenience, I shall refer to the parties, hereafter, either by the role each plays in the proceedings or by his, or her, first name. I shall refer to other family members, after introduction, by her, or his, first name also.

With the consent of the parties given at a directions hearing prior to the hearing, I made an order that the two matters proceed consecutively, with the evidence in one being evidence in the other. The matters proceeded in this way with the affidavits of each of the Plaintiffs being read first and then the affidavits of the Defendant, which were treated as having been read in both proceedings.

Formal Matters

The following facts are uncontroversial.

The deceased died on 19 March 2010. She was then aged 88 years, having been born in March 1922. She married her husband, Frederick Butler, in May 1958, and they remained married until his death in March 2008. The deceased did not remarry after Frederick's death.

The deceased and Frederick had no natural children. As stated, each of the parties is an adopted child of the deceased. (There is no evidence of an adoption order being made in respect of each of the parties. However, the parties conducted the case upon the basis of such orders having been made. In respect of Craig and Fiona, he and she is referred to as a son, and daughter, respectively, in the deceased's Will and otherwise.)

Fiona was born in May 1966.

The deceased left a Will that she made on 1 December 2008, in which she appointed the Defendant as executrix and trustee. The Defendant obtained Probate of the deceased's Will on 24 May 2011.

The deceased's Will, in the events that happened, provided for her estate to be divided, as to 70% to Fiona, and as to 30% to Craig. Carolyn was not mentioned in the deceased's Will.

On the same day as she executed her Will, the deceased also signed a document headed "Testamentary Statement". So far as is relevant, it was in the following terms:

"...

4. My daughter Fiona moved in with her family approximately 3½ years ago after my husband had become seriously ill. My husband FREDERICK BUTLER had become seriously ill. He had suffered a heart attack in hospital after a pacemaker was fitted as it made his heart go too fast as he had had a heart problem for a considerable period of time and was unconscious for a period of half an hour. He was pronounced clinically dead for a period of half an hour. He was resuscitated in The San. After that he was given a matter of days to live, however, he survived a period of approximately three (3) years. My daughter Fiona persuaded me to bring him home to live as he wanted to be at home. I was aware of the fact that I could not look after him on my own and my daughter Fiona offered to move in with her family and help me care for him. I was not in a position to care for him at all and consequently the care of my late husband fell upon Fiona solely and her husband Rory. I have rheumatoid and osteoarthritis throughout my body and consequently am very immobile. I live in a three bedroom home and therefore it was possible for them to move in with me. They sold their own home after my husband had his heart attack and as I recall it was approximately four months after.

5. Fiona and her family have lived with me since then firstly looking after my husband until he died in March 2008 and then looking after me. I am now completely bed ridden as I cannot weight bear. Apart from people coming in to help me shower my daughter takes care of all the other housekeeping, cooking, dealing with my medications, laundry. I am bowel incontinent and therefore need assistance in that regard from my daughter as well.

If it wasn't for my daughter I would be in a nursing home. My daughter has stated on numerous occasions she does not wish me to live in a nursing home and cares for me very well.

6. I enjoy the company of my daughter, son-in-law and two grandchildren. I spent a couple of weeks in Mt Wilga and realised at that time how much I missed their company. I would be very lonely without them.

7. I have a son CRAIG BUTLER whom I dearly love and who has lived with my husband and I on and off until approximately three years ago when he purchased his own unit. He has been a good son and is employed as a property valuer and is able to financially look after himself.

8. I feel indebted to Fiona although she has made it clear that she does not wish me to feel "indebted". I see my son on a somewhat irregular basis. At present Fiona does not have her own home and is unable to work because of her full time care of myself. Her husband is going back to study IT and is presently working as a carer for Mercy Care. He had a back injury which precludes him from certain jobs.

9. I do not want Fiona to sell the house. It was my husband's wish that they have this house."

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 $740,000. The only property owned solely by the deceased was real estate at Pennant Hills ($740,000) ("the Pennant Hills property").

At the date of death, the deceased was said to have liabilities of approximately $276,772, being an amount due to St George Bank ($265,777), which amount is secured by mortgage registered on the Pennant Hills property, outstanding water rates ($1,175), outstanding council rates ($3,206) and legal fees incurred during her lifetime in respect of Guardianship Tribunal proceedings commenced by Craig ($6,614). (I have omitted any reference to the cents and shall continue to do so.)

Fiona estimated the net value of the estate, at the date of death, to be $463,228.

None of the estate has been distributed.

There was, initially, a dispute about the nature and value of the deceased's estate at the date of hearing. One area of dispute related to the current value of the Pennant Hills property. The Plaintiffs asserted that it has a current value of $810,000, whilst the Defendant asserted that it has a current value of $745,000. The parties all agree that the Pennant Hills property will have to be sold, if for no other reason than to pay the debts and other liabilities of the estate referred to. The evidence reveals that it is currently for sale with "offers over $750,000" being sought.

The parties were able to agree that the costs of sale (including agent's commission calculated at 2 per cent of the sale price), if the Pennant Hills property were sold for $745,000, would be $14,900 and the conveyancing costs would be $2,200, whereas if it were sold for $810,000, those costs would be $16,200 and $2,200 respectively.

Another area of dispute related to whether the Defendant owed the estate money said by Craig to have been borrowed from the deceased in 2003 ($100,000). Fiona said that the amount that was advanced was $80,000. On the second day of the hearing, I was informed that the only issue related to the amount that was advanced. The parties all agreed that the amount, whatever it was, should be treated as provision made for Fiona during the deceased's lifetime. I shall return to determine the amount that was advanced later in these reasons.

At the hearing, the parties were also able to agree that between July 2005 and November 2008, $65,400 had been spent from the deceased's funds, only a small part of which was spent for the benefit of the deceased; that, in 2008, Fiona's husband, Rory, had received $20,000 to enable him to purchase a truck; that between September 2008 and March 2010, about $72,775 had been spent from the deceased's funds, only a small part of which was spent for the benefit of the deceased; and that between January 2008 and March 2010, $43,231 had been spent from the deceased's funds, only a small part of which was spent for the benefit of the deceased. The balance of the deceased's funds referred to, in each period, was spent on Fiona and her family.

The parties all agreed that Fiona should not repay any part of the amounts stated in the previous paragraphs to the estate, but that those amounts should be taken into account, generally, as provision made for Fiona during the lifetime of the deceased.

In summary, it can be seen that Fiona received, during the lifetime of the deceased, the major part of $301,406 (if I find the advance was $100,000) or the major part of $281,406 (if I find the advance was $80,000).

The evidence also reveals that between April 2008 and March 2010, Fiona and Rory operated their own bank accounts into which all income they received was paid. The total of the amounts deposited in this period was $74,936, only a small part of which was spent for the benefit of the deceased. Fiona has not attempted to calculate the amounts spent on the deceased and does not seek any reimbursement. On the same basis, I am asked to take the expenditure on the deceased into account.

A third area of dispute related to whether the Defendant ought be ordered to pay to the estate an occupation fee for her and her family's occupation of the Pennant Hills property, from the period after the death of the deceased until they vacate possession. However, this area of dispute evaporated as the parties agreed that until 18 June 2012 (118 weeks), calculated at the rate of $600 per week, Fiona should be treated as having to repay to the estate $70,800.

Fiona also agreed to pay the estate an occupation fee, calculated at the same rate, from 18 June 2012 until she and her family vacate possession of the Pennant Hills property. It is not possible to estimate the amount that she will be required to pay to the estate at this time.

Finally, Fiona agreed that since the debt secured by the mortgage on the Pennant Hills property had not been repaid as it would have been had the Pennant Hills property been sold, she should be treated as having to pay to the estate the amount by which that debt has increased ($30,392).

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 each of the Plaintiffs, if successful, normally, will be entitled to an order that his, and her, 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.

Craig's costs of the proceedings, calculated on the indemnity basis, have been estimated to be in the order of $44,000 (inclusive of GST and upon the basis of a two day hearing). His solicitor estimates the costs, calculated on the ordinary basis, to be $33,000. Disbursements are estimated to be $4,011 and counsel's fees, inclusive of GST, are estimated to be $20,790. Thus, calculated on the ordinary basis, Craig's costs and disbursements amount to $57,801.

Carolyn's costs and disbursements of the proceedings, calculated on the indemnity basis, have been estimated to be $36,763 (inclusive of GST and upon the basis of a two day hearing). Her costs and disbursements (including counsel's fees), calculated on the ordinary basis, are estimated to be $30,768.

Fiona's costs and disbursements of both proceedings, including counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a two day hearing), have been estimated to be $79,962.

Based upon what was agreed, the parties provided me with the following estimates of the gross value of the estate. The assets of the estate are:

(a) The Pennant Hills Property - $810,000 or $745,000 gross or $791,600 or $727,900 (after costs and expenses of sale were paid);

(b) Occupation fee payable to the estate by Fiona (to 18 June 2012) - $70,800;

There appears to be no dispute that liabilities of the estate, as at 4 June 2012, include the debt due to St George Bank ($296,169), water rates ($2,817), council rates ($5,787), legal fees incurred by the deceased during her lifetime in respect of Guardianship Tribunal proceedings ($6,614), and probate costs ($9,207). The total amount of these debts is currently $320,594.

The total amount of costs, if the estimated costs of all parties are accurate and if an order is made that each party's costs are paid out of the estate is $168,531. (With cents added, the total agreed amount for liabilities and costs is $489,129.)

It follows, from the above, that the net amount available for distribution may be between $339,963 and $403,663. (It was this range of values that the parties agreed upon at the commencement of the submissions.)

Of course, depending upon the result of each case, and the order or orders for costs, if any, that is, or are, made, the costs and disbursements, if payable out of the estate will be able to be formally assessed, unless otherwise agreed by the parties. The parties agreed that reasons for judgment should be published, after which the issue of costs could be argued, if no agreement is reached.

Ultimately, all parties agreed that if further provision were to be made for Craig and/or Carolyn, it should be calculated as a percentage of the estate (as described in the deceased's Will) rather than a lump sum. This will enable appropriate calculations to be made once the sale price of the Pennant Hills property is known.

The persons described as eligible persons, within the meaning of the Act, are the parties to the proceedings. In addition, the husband and two children of Fiona, namely Rory, Annabelle and Amanda, may be eligible persons. Annabelle and Amanda are said to be persons under a legal disability. All have been served with a prescribed notice.

There is no specific evidence about the dependency of any of the grandchildren on the deceased (other than the fact that Annabelle and Amanda lived in the Pennant Hills property and that the funds of the deceased were used by Fiona to pay part of the family's expenses). It seems likely that each grandchild was dependent upon her parents, rather than directly upon the deceased. As such, any dependency upon the deceased was an indirect result of the deceased providing financial support for Fiona, and, thereby, incidentally benefiting Fiona's children. In my view, neither is an eligible person.

Only the Plaintiffs have commenced proceedings. The Defendant has given evidence about her financial and material circumstances and advanced a case that she is a competing claimant, financially and otherwise, upon the bounty of the deceased. Rory has been served with a notice and has not commenced proceedings. The Act (as will be seen) provides that since he has not commenced proceedings, I may disregard his interests as a person in respect of whom an application for a family provision order may be made.

Additional Facts that have been established

On 22 April 2008, the deceased appointed Fiona and Craig as her attorneys under an enduring power of attorney, with the authority to act jointly.

On 18 November 2008, the deceased executed a new enduring power of attorney in favour of Fiona only. This enduring power of attorney came into operation on 19 November 2008, when Fiona accepted her appointment as an attorney.

On 1 December 2008, the deceased also appointed Fiona as her enduring guardian.

In late 2008, Craig made application to the Guardianship Tribunal to have a financial manager and guardian appointed to look after the affairs of the deceased. The basis for the application for a financial manager appears to have been that Craig asserted that Fiona "had been making decisions which were not in their mother's best interests [claiming] that [Fiona] was using their mother's bank account predominantly for her own benefit".

In March 2009, the Guardianship Tribunal dismissed Craig's application.

The deceased, by her solicitors, on 9 February 2009 (about one month before the determination of the Guardianship Tribunal), wrote to Craig in the following terms:

"As you are aware we are the solicitors acting on behalf of your mother. We again reiterate the fact that we do not act on behalf of your sister and take instructions direct from your mother

We attended your mother again on Friday, 6 February 2009. She clearly asked that you cease any action you may have in the Guardianship Tribunal. She is quite lucid and gives proper instructions to Mrs Humphreys. The only matter which is distressing her now is the fact that you are continuing to insist on these proceedings taking place. There is clearly no need for them and your mother is stressed by this situation. She is well looked after by your sister and her son in law and can not understand what you are actually hoping to achieve by these proceedings.

We therefore ask that you cease the action and leave your mother in peace for the remaining part of her life."

Craig said in cross-examination that despite receiving the letter, he did not accept its contents as accurate, and, having discussed the matter with his own solicitor, decided to allow the proceedings to continue.

Craig admitted that once the Legal Member announced the decision of the Guardianship Tribunal, he and his wife, Jacqui, left the hearing room without waiting for the Legal Member to finish outlining the decision and to summarise the reasons for the Tribunal decision.

Craig said that he accepted the decision of the Guardianship Tribunal and did not realise that more was to be said by the Legal Member. However, I think it more likely that he was disappointed with the decision and left the hearing room abruptly, without due courtesy being extended to the members of the Tribunal.

The evidence is that the deceased did not witness Craig's conduct at the Tribunal hearing, as she did not attend the Guardianship Tribunal hearing (although Tribunal members spoke to her by telephone).

The Reasons for Decision dated 4 March 2009 of the Guardianship Tribunal were tendered. Relevantly, those Reasons included the views expressed by the deceased under the heading "Mrs Butler's own views":

"Members of the Tribunal had the opportunity to speak with Mrs Butler by telephone during the hearing. Mr Craig Butler, Mrs Jacqui Butler, and Mrs Fiona Morris left the hearing room during this conversation. Mrs Butler's solicitor, Mrs Pamela Humphreys, remained in the hearing room, and was able to hear the conversation.

Mrs Butler spoke candidly with the Tribunal. She informed the Tribunal that she is quite happy with the way things are going, and the way in which her daughter, Mrs Morris, is looking after her. Mrs Butler volunteered the view that she thinks that Mr Craig Butler is "a little bit funny".

Mrs Butler reminded the Tribunal that she is 87. She said that she has approximately $80,000 left in the bank, and that this should be sufficient money to last the remainder of her life. She again emphasised that she is quite happy with the way in which Mrs Morris and her husband (Mr Rory Morris) manage her affairs.

Members of the Tribunal indicated to Mrs Butler that her son, Mr Craig Butler, was concerned that Mrs Fiona Morris and Mr Rory Morris might be using some of her money. Mrs Butler twice stated that she is "quite happy" with the way that Mr and Mrs Morris manage her finances. She observed that her daughter had given up work to look after her.

In answer to another very specific question from the Tribunal, Mrs Butler acknowledged that she is, to some extent, supporting Mr and Mrs Morris financially. Mrs Butler conceded that she is "effectively supporting the household", but added that she is happy to help Mr and Mrs Morris "a little bit financially".

The Tribunal asked Mrs Butler if she would be concerned if she were subsidising Mr and Mrs Morris to the extent of $40,000 each year, or possibly even more. Mrs Butler replied that she was not concerned about that. However, she would not be very happy if it became necessary to borrow more funds, to be secured by a mortgage against her residential property. She confirmed that she knows that her residential property is already subject to a mortgage, but could not state the extent of that mortgage debt.

Mrs Butler concluded by stating, very emphatically, that she does not want her son, Mr Craig Butler, to have anything to do with the management of her money.

After Mrs Butler had expressed these views to the Tribunal, she withdrew from the hearing, and did not participate further. When the other participants returned to the hearing room, the Legal member informed Mr Craig Butler, Mrs Jacqui Butler, and Mrs Fiona Morris of the views that Mrs Butler had expressed. Mrs Humphreys confirmed that the Legal Member had given an accurate account of Mrs Butler's views."

There is no reason to doubt that what is recorded in the Reasons accurately reflects the views of the deceased then expressed by her. None of the parties submitted to the contrary. It follows that whilst she may not have known the precise extent of the provision being made out of her funds for Fiona and her family, the deceased was well aware that she was assisting to support them.

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 in their application.

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

The key provision is s 59 of the Act. The court must be satisfied, first, that each 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 an applicant's eligibility, must, in this case, then determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is 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)). It may take into consideration, the matters referred to in ss 60(1) and (2) of the Act. In this way, the court carries out a two-stage process.

Other than by reference to the provision made in 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) 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 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", or 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 at [72] and at [77] per Buss JA.

Each of the words was 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, at [42] and [47]:

"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). 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 in 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. I am comforted in reaching this conclusion 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 or notional 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, her 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.

Pursuant to paragraph 24 of Practice Note SC Eq 7, orders may be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the value of the estate is less than $500,000.

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 given in the context of the previous legislation, they are equally apt in a claim such as this one.

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 the correction of 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 deceased'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 (1909) 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, for the deceased's intention in the Will to be displaced: Kembrey v Cuskelly [2008] NSWSC 262 at [45].

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.

(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] and [182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, 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."

Pension Entitlement

Because Carolyn is, and has been, receiving a disability support pension for many years, it is necessary to consider the relevance of that receipt in a claim for a family provision order.

In Taylor v Farrugia at [59], Brereton J said:

"The Court's attitude to the eligibility for means tested pension benefits of eligible persons and beneficiaries varies, depending on the circumstances of the case. Ordinarily, a testator makes a will and provides for those who have a claim on the testator without regard to the claimant's eligibility for a pension. However, in a small estate where there are competing claims, a testator, and this Court on an application under the Act, may take into account the eligibility of a claimant for a pension as a means of deciding how such limited benefits as are available from the estate should be shared between claimants, and how those benefits might be structured. But this qualification to the principle that the burden of support should be borne in the first instance by an estate rather than by social security arises mainly, if not exclusively in smaller estates [Parker v Public Trustee (1988) NSWSC, Young J, 31 May 1998; Whitmont v Lloyd (New South Wales Supreme Court, 31 July 1995, Bryson J, unreported); King v Foster (Court of Appeal, 7 December 1995, unreported) King v White [1992] 2 VR 417, 424; Shah v Perpetual Trustee Company [1981] 7 Fam LR 97 100; Gunawardena v Kanagaratnam Sri Kantha [2007] NSWSC 151; Chan v Tsui [2005] NSWSC 82]."

An earlier authority, with which I respectfully agree, is Thom v The Public Trustee (NSWSC, 2 April 1992, unreported), in which Master McLaughlin (as his Honour then was) said:

"It seems to me that it would be totally unrealistic for the Court to approach the moral obligation of the deceased to make provision for the applicant by disregarding the fact that for a period of 20 years before the deceased's death, the applicant was in receipt of a pension from the State, and the fact that, to the extent of that pension, the deceased was relieved of the necessity to support the applicant from his own funds. That being so, I do not see how, upon the death of the deceased, the moral obligation upon the deceased to make provision for the applicant by will, could be approached without recognising the fact that the applicant would be entitled to continue to receive such a pension."

The availability of a disability support pension provided to an applicant ought not be regarded as a substitute for the obligation on the deceased to make adequate provision for him or her. Yet, it is not necessary to make an order that would operate primarily in relief of the taxpayer.

In this case, it not being submitted to the contrary, the availability of the disability support pension, and associated social benefits, is a circumstance to which the Court should have regard particularly in circumstances where Carolyn continues to be unwell and the prognosis is that she will continue to require care and treatment. As was stated in Evans v Levy [2011] NSWCA 125 at [55]:

"... there are, for most pensioners, side benefits of considerable value in merely having a part pension, such as the right which becomes more and more valuable as one gets older to have medical services provided at considerable concessional rates."

Application to Extend Time - Applicable Legal Principles

As stated, Carolyn's Summons was filed on 23 November 2011, which is just over 8 months outside the period prescribed by the Act during which an application must be made, namely not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown.

In Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572, at [84] - [90], I set out the applicable legal principles relating to an application to extend the time, as follows:

"The decision of the court to extend time is a discretionary decision. Other than "sufficient cause being shown", there are no statutory criteria that must be taken into account. There are no rigid rules in regard to the exercise of the discretion.

The principles governing that exercise of discretion under the Act are clear. Apart from the reason(s) for the lateness of the claim, the factors to which the court must look, include whether beneficiaries under the Will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by either side; and, finally what is the strength of the claim made by the party seeking an extension of time: see, for example, John v John; John v John [2010] NSWSC 937 at [37]- [51] per Ward J; Campbell v Chabert-McKay [2010] NSWSC 859 at [45]-[47] per White J; Durham v Durham [2010] NSWSC 389 at [15] per Ball J; Taylor v Farrugia [2009] NSWSC 801 at [14] per Brereton J; Burton v Moss [2010] NSWSC 163 at [31] ff, per Macready As J, in which the relevant earlier cases are referred to.

The onus lies on the applicant to establish sufficient cause. It will be for the court to determine the strength of the applicant's claim.

The prejudice to which the section looks is any prejudice occasioned by the delay in lodging the claim rather than any disappointment that might occur consequent upon readjustment of the interests under the will in order to make provision for the applicant: Cetojevic v Cetojevic [2006] NSWSC 431; McCann v Ward & Anor [2010] VSC 452 at [11]. Where there has been a long period since the deceased died, the lapse of time, itself, might create prejudice in any fact-finding exercise: Vasconelos v Bonetig [2011] NSWSC 1029 at [21].

In De Winter v Johnstone (NSWCA, 23 August 1995, unreported), Sheller JA held that the concept of "unconscionable conduct" referred to above was "directed towards a deliberate holding off [in bringing proceedings] designed to lull the beneficiaries into a false sense of security". Cole JA, whilst not expressing a concluded view, said that it must be doubted whether a change of mind (because of some change in the financial and material circumstances of the Plaintiff which has occurred after the expiry of the limitation period) constitutes unconscionable conduct.

As to the strength of the claim, in De Winter v Johnstone, Powell JA considered that as an application for extension of time was invariably dealt with at the time of the application for substantive relief, no extension of time ought to be granted unless it was established that the applicant seeking an extension of time would, in the event of the extension being granted, be entitled to an order for substantive relief. By contrast, Sheller JA considered that it was only necessary for the applicant to show that the application was not bound to fail.

Where the delay is not unduly long and the estate remains undistributed, ignorance during the period within which proceedings are to be commenced, of the right to claim, followed by a prompt application to extend the time once the right to claim becomes known, will usually be a sufficient explanation: Clark v Burns [2011] VSC 394 at [6]."

My decision was followed, by Nicholas J, recently, in Twomey v Mcdonald [2012] NSWSC 22 at [8].

There is no exception to the period prescribed for commencing proceedings in the case of a person under a legal incapacity (for example, as defined in s 3(1) of the Civil Procedure Act 2005). It is necessary for such an applicant to show sufficient cause for the application not having been made within the period prescribed by the Act. However, that the applicant is a person under a legal incapacity is a factor that should be taken into account when the Court is considering the sufficiency of the reason for not commencing the proceedings within the prescribed period.

Ultimately, justice is the paramount consideration in determining whether to extend the time for making an application and to deny an applicant who is a person under a legal incapacity an extension of time in the face of a claim which may succeed could amount to an injustice: see Valbe v Irlicht [2001] VSC 53, per Gillard J, at [31].

I make it clear that I do not intend what I have described as "applicable legal principles" or "other applicable legal principles" 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 decisions on similar facts. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind.

Background Facts - Extension of Time

The NSW Trustee manages Carolyn's estate pursuant to a financial management order made by the Guardianship Tribunal on 27 September 2011. That date, of course, is several months after the time prescribed by the Act for the making of an application, and less than two months before the proceedings were commenced on Carolyn's behalf.

Although I shall deal with Carolyn's medical condition later in these reasons in more detail, the fact that a financial manager was appointed demonstrates that the Guardianship Tribunal was satisfied that she was incapable of managing her affairs. The reasons for decision of the Guardianship Tribunal reveal that Carolyn "did not appear to comprehend the application and the proceedings" and the evidence confirms that she has "a severe intellectual disability". It is clear, also, that she did not know of her entitlement to make a claim under the Act.

There is no suggestion that prior to the appointment of the NSW Trustee and Guardian, that Carolyn had any person looking after her financial affairs. The reasons for decision of the Guardianship Tribunal state that Carolyn received a disability support pension which had been managed by the Stockton Centre, which provides accommodation and support services for people with an intellectual and/or physical disability, in one of which residences, Carolyn has resided for many years.

The appointment of the NSW Trustee followed the service upon Carolyn, at the Stockton Centre, of a prescribed notice in the proceedings commenced by Craig.

Whether Advance to Fiona of $100,000 or $80,000

Craig's evidence is that he had a conversation with the deceased in 2003 in which she said to him that she and Frederick had decided to lend Fiona $100,000 to enable her and Rory to purchase a delicatessen and that, subsequently, they did so.

Fiona admits that she did have discussions with her parents about borrowing money from them to enable her to purchase a delicatessen business, that her parents borrowed $100,000 from a reverse mortgage secured over the Pennant Hills property, but that she only received $80,000 to apply towards the purchase price of that business ($100,000). She says that the balance of the amount borrowed by her parents went into her parents' bank account. She says that she understood that the amount advanced to her was a gift as the deceased said to her repeatedly "We are happy to help you."

Craig does not have any physical, intellectual or mental disability.

Carolyn has lived at Stockton Centre since she was approximately 11 years old and currently resides in one of the purpose built cottages in which she has her own room. She requires 24 hour nursing care.

Carolyn is known to have macrocephaly (a condition in which the head is larger than normal), characteristics of Saethre-Chozton Syndrome (she has not received a definite diagnosis of this rare genetic disorder) and a history of obsessive ritualistic behaviour.

Due to Carolyn's level of intellectual functioning, she is unable to understand complex issues or make informed decisions concerning her financial management.

Carolyn is able to mobilise independently and manage some aspects of her personal care. However, she requires a lot of prompting and supervision around tasks. She has a tendency towards incontinence and wears pads. The staff of the Stockton Centre has her on a walking program to attempt to manage her weight. She attends the activity program at the Centre most afternoons.

Otherwise, Carolyn is generally well, although in March 2011, she had a total bilateral mastectomy. There is the risk of recurrence of the condition that resulted in the bilateral mastectomy and the potential need of further treatment. If the condition did reoccur, she may have additional needs for assistance that may not be able to be managed by Ms Harpur without support.

There is no medical evidence about Carolyn's present medical condition or the prognosis.

Carolyn could take holidays such as a cruise. However it would be necessary for a carer's costs to be paid. (In the past, Ms Harpur would take Carolyn with her on family holidays but she has ceased doing so, in part, because, she was not reimbursed for Carolyn's costs. Ms Harpur and her husband are retired and are unable to bear the burden of such costs.)

Fiona developed Type 1 diabetes at the age of 4 years. She was a sickly child. At the age of 23 years, she was seriously injured in a car accident, as a result of which she was confined to bed for about 6 months. The major disability that she suffered was difficulty walking long distances. She sustained a fractured ankle in about November 2011 from which she has not fully recovered.

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

Craig was born in February 1969 and is presently aged 43 years.

Carolyn was born in January 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

During the periods that Craig lived at home, he assisted with grocery shopping, taking his parents to doctor's appointments, performed yard work and other general household chores.

Even after he moved, and until Fiona and her family moved in, Craig continued to visit the Pennant Hills property each week and most weekends to assist with grocery shopping, taking his parents to doctor's appointments, mowing the lawn, and carrying out other yard work and other general household chores.

When Frederick had his second heart attack in 1999, Craig changed employment so that he was able to move back to his parents' home to work from the Pennant Hills property and provide assistance to both his father and the deceased.

When Craig moved back in to the Pennant Hills property after his father's second heart attack in 1999 he paid board.

When the deceased was accruing debt on the Pennant Hills property, Craig provided financial assistance by attempting to reorganise the deceased's finances in order to reduce the debt. In addition, he provided his own credit card for the deceased's use.

There is no suggestion of any contribution made by Carolyn.

(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

I have dealt with the provision made for Craig by the deceased, so far as it relates to moneys borrowed.

He accepted, in cross-examination, that his parents had given him a new car in about 1987. He also agreed that they had encouraged him in all his educational and sporting pursuits.

Craig receives 30% of the deceased's estate under the deceased's Will.

The deceased made no provision, during her lifetime, for Carolyn. She receives nothing out of the deceased's estate unless a family provision order in her favour is made.

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

There is no other evidence of the testamentary intentions of the deceased other than her Will, probate of which was granted, and the document headed "Testamentary Statement" to which I have referred.

(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 Craig, either wholly or partly, before her death, other than during childhood and until he was aged 22 years. Of course, she provided him with accommodation, although for part of the time he was living in the Pennant Hills property, he paid board.

The deceased did not maintain Carolyn, either wholly or partly, before her death.

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

There is no person with a liability to support Craig, apart from, perhaps, his wife.

Apart from the Commonwealth government's responsibility to continue to provide Carolyn with a pension, there is no other person with a liability to support her.

Ms Harpur is merely a volunteer and has no legal obligation at all to support Carolyn. However, as recently as September 2011, it was said that Ms Harpur "continues to give ongoing excellent support".

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

It seems to me that an evaluation of "character and conduct" is 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.

In relation to each of Craig and Carolyn, I have dealt with this aspect earlier in these reasons.

Fiona says that the conduct that should be taken into account relates to Craig continuing the Guardianship Tribunal proceedings in direct opposition to the deceased's wishes as evidenced by the letter sent by her solicitors in February 2009. She also refers to his conduct in leaving the Guardianship Tribunal hearing so abruptly.

In continuing the proceedings after he received the letter from the deceased's solicitors, his reasons appear to be justified bearing in mind what has been admitted by Fiona as to the use of the deceased's funds between 2005 and 2010. Craig's motives may have included the protection of his inheritance, but, in so doing, he was protecting the financial interests of the deceased as well. It was not put to Craig that his relationship with the deceased changed after the conclusion of the Guardianship Tribunal hearing.

In all the circumstances, I am not satisfied that Craig's conduct in continuing the Guardianship Tribunal proceedings is conduct which disentitles him to claim upon the bounty of the deceased or which reduces the obligation owed to him by the deceased to make adequate and proper provision for his maintenance and advancement in life.

I do not think that Craig's conduct in leaving the Tribunal as he did is at all relevant on this issue as there is no suggestion that he acted inappropriately otherwise during the conduct of the hearing or immediately following the decision being stated. Nor is there any suggestion that he was otherwise discourteous to members of the Guardianship Tribunal.

There is nothing in the conduct of Carolyn that is relevant.

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

There can be no doubt that Fiona was a loving and dutiful daughter to the deceased. The Testamentary Statement supports this view of her. There was no suggestion that the statements made by the deceased in the Testamentary Statement on this, or any other aspect, were inaccurate.

No doubt, it was to her and Rory's financial advantage (bearing in mind the financial pressures they were then under), to sell their home and move in with the deceased and Frederick, but the fact remains that she took upon herself, with the assistance of her family, the responsibility of looking after her elderly parents. There is no criticism of the way in which she did so.

The deceased's expression of gratitude to Fiona and her family for the assistance that she, and the comfort that they, provided, also must be remembered.

Fiona received a carer's allowance of $100 per fortnight whilst she was caring for the deceased.

There is some merit in the suggestion made to Craig in cross-examination, with which he did not entirely agree, that because Fiona looked after their parents, he was relieved of the major share of that burden.

There is one aspect of Fiona's conduct that was said to, and perhaps, does, warrant criticism. In about 2008, Craig arranged for moneys to be transferred from the deceased's cheque account into her mortgage account in order to reduce the level of interest accruing. It was put to her that she caused the transfer to be reversed "so that you could then have access to it to supplement your income". Her answer was "partially".

(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

I have concluded that Fiona received $100,000 from the deceased in 2003 Her husband, Rory, received $20,000 in 2008 from the deceased (to purchase a truck). I have also referred to the other amounts being funds of the deceased, which were used, primarily, for the benefit of Fiona and her family.

Fiona agreed with the proposition that whilst she took care of the deceased, that was a burden, but that whilst she did so, she had the benefits of "shelter for you and your family because you did not pay rent" and because "you also had access to your mother's money during that period". She was also able to conduct a business from the Pennant Hills property from about mid-2010.

One other matter to which reference was only made on re-examination of Fiona, was that she had paid the funeral expenses for the deceased and had not made any claim for reimbursement from the estate.

Determination

Claims for a family provision order present particular difficulties where the estate is relatively 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 each Plaintiff, as an adopted 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 Craig's proceedings were commenced within the time prescribed by the Act.

In respect of Carolyn, there is an explanation for the delay in commencing proceedings. Craig's case has not been lengthened, in any material way, by the evidence (none of which was the subject of cross-examination) in Carolyn's case.

Neither Fiona, nor Craig, opposes an extension of time for the making of Carolyn's application. However, whereas under the former Act, the parties to the proceedings concerned could have consented to the application being made after the end of the period prescribed for the making of an application, with the result that an order extending time, without more, would be made, the Act does not have a similar provision. Accordingly, the court must still be satisfied that "sufficient cause has been shown".

It seems to me that the consent of all parties in proceedings brought under the Act is a relevant matter that may be taken into account in determining whether "sufficient cause" is shown, as it demonstrates, at least, that none of the parties has suffered, or will suffer, any prejudice if time were extended and that there is no suggestion of any unconscionable conduct relevant to determining whether time should be extended.

That Fiona admits that inadequate provision was made for Carolyn is also significant.

Having considered all the circumstances of her case, I am satisfied that sufficient cause has been shown for not commencing the proceedings within time and that I should make an order extending the time for the making of her application.

Then, I must first consider, whether, at the present time, adequate provision for the proper maintenance, education, or advancement in life, of each Plaintiff has not been made, during the lifetime of the deceased or by her Will.

In relation to Craig, he receives 30% of the net estate. On the present estimates (after the payment of costs), he will receive between approximately $100,000 and $120,000.

I have considered Fiona's submission that 30 per cent of the estate, which he receives under the deceased's Will, would provide an adequate buffer for Craig. However, I reject that submission. If he retained the amount received, the debts that he and his wife have would remain substantial; alternatively, if the amount he received were used to reduce the debts, he would have no amount for exigencies of life and the debts would still remain quite large. In this regard, his superannuation, whilst of reasonable size, will not be available to him for many years (bearing in mind his age).

When one considers the size of Craig's mortgage, and his lack of any other capital sum for exigencies of life, whilst an additional lump sum, by way of advancement in life would be of benefit to him, that is not all that I am required to consider at the first stage of the enquiry. Taking into account all of the matters that I am required to consider, including what I have found to be the size and nature of the estate, the relationship between each Plaintiff and the deceased, the relationship between the deceased and Fiona (a person who has a legitimate (and in this sense competing) claim upon the deceased's bounty) as well as the provision made for each of Craig and Fiona during the deceased's lifetime, I am satisfied that the provision for Craig is inadequate and that he has satisfied the jurisdictional question.

In reaching my conclusions on the jurisdictional question, I have not forgotten the different incomes of Craig and his wife, compared with Fiona and her husband. However, as I said during the submissions, the substantial provision made for Fiona and her family during the lifetime of the deceased also cannot be forgotten.

In the case of Carolyn, she receives nothing out of the estate of the deceased (as the deceased left a Will) and there is no evidence that she received anything from the deceased during the deceased's lifetime. Judged by quantum, and looked at through the prism of her financial and material circumstances, the concession that adequate provision for her proper maintenance or advancement in life was not made by the Will of the deceased is an appropriate one.

In the case of each Plaintiff, his, and her, financial position is such that he, and she, does not have any amount available as a buffer for exigencies of life. Each lacks any reserves to meet demands, particularly of ill health, as he, and she, grows older. 'Need' in the context of the Act is not determined by reference only to minimum standards of subsistence.

I turn now to the second stage, namely to the nature of any order that should be made in the case of Craig and Carolyn. In the case of each Plaintiff, I am satisfied, as a matter of discretion that an order should be made.

In relation to Craig, he should receive provision, in lieu of the provision under the Will, which equates to 37 per cent of the estate of the deceased. In other words, his share of the estate should be increased from 30 per cent to 37 per cent. (Using the present estimates, this will equate to between $125,785 and $149,355 (although this range is only a guide)). Even though this is not a very significant increase in dollar terms, the additional amount will provide, or go towards providing, a buffer for exigencies.

In relation to Carolyn, I do not accept the submission that she should receive 33.33 per cent of the deceased's estate. There is insufficient evidence to suggest that she requires such a large capital sum. The submission that she has a "normal life expectancy" was not the subject of any evidence. Certainly, she has had, a number of serious medical problems. Evidence of her medical prognosis would have been very useful, as would have been evidence from Ms Harpur.

Carolyn should receive provision that equates to 13 per cent of the estate of the deceased. This will supplement the capital sum which is currently held and provide an additional fund for exigencies of life, and, until used, an additional small income. Using the present estimates, the total amount she will receive will be in the order of $44,195 to $52,476 (although this range is only a guide). When added to the present lump sum, she will have capital of between $94,000 and $100,000 and no liabilities. Invested at 4.65 per cent, this will provide additional income of between about $2,000 and $2,440 per annum.

The result of making such provision for Craig and for Carolyn will mean that Fiona will receive 50 per cent of the estate of the deceased. Of course, she will have to repay the amounts that she acknowledged and the weekly occupation fee that she agreed she will continue to pay until she vacates possession, but she will receive half of it back.

I have earlier noted Fiona's agreement to pay $600 per week by way of an occupation fee from 18 June 2012 and to repay the two amounts to which reference was made earlier in these reasons. If necessary, and if the parties require it, the agreement can be noted in the final orders.

No interest should be payable if the amount that equates to the percentage of the deceased's estate, in each case, is paid within 7 days of the settlement of the contract for sale of the Pennant Hills property; otherwise interest should be paid.

I would commend to the parties that, if possible, agreement should be reached on the amount of costs so as to avoid any further costs and delay of assessment.

If the parties are unable to agree on any of these matters, I shall hear submissions, including whether a lump sum costs order for any of the parties should be made.

I make the following orders:

(i)Having found that the Plaintiff, Craig Frederick Butler, is an eligible person and that the provision made for him in the Will of the deceased is inadequate for his proper maintenance or advancement in life, in lieu of that provision, he is to receive 37 per cent of the estate of the deceased.

(ii)The time for the making of Carolyn's application be extended up to and including 23 November 2011, the date of the filing of her Summons.

(iii)Having found that the Plaintiff, Carolyn Elizabeth Butler, is an eligible person and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, she is to receive 13 per cent of the estate of the deceased.

(iv)The burden of the additional provision made for the Plaintiff, Craig Frederick Butler, and the provision made for Carolyn Elizabeth Butler, should be borne by the share of the estate passing to the Defendant, Fiona Lee Morris, with the result that she is to receive the balance, being 50 per cent, of the estate of the deceased.

(v)The lump sum that equates to the share of the estate passing to the Plaintiff, Carolyn Elizabeth Butler, is to be paid to the NSW Trustee and Guardian as the financial manager of that Plaintiff.

(vi)No interest is to be paid on the lump sum which equates to the share of the estate passing to each Plaintiff, if that lump sum is paid within 7 days of settlement of the of the Pennant Hills property; 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.

(vii)The costs of all parties be determined after further submissions unless agreement is reached between them.

(viii)The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the costs of the proceedings.

(ix)Further consideration with respect to orders for the purpose of giving effect to the family provision order made in favour of each of the Plaintiffs as well as in relation to any additional amount to be paid by Fiona reserved.

(x)Stand the matter over to a convenient date to the parties and the court for any argument as to costs.

**********

Decision last updated: 05 July 2012

Medium Neutral Citation:	Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748
Hearing dates:	13, 14 June 2012
Decision date:	05 July 2012
Before:	Hallen AsJ
Decision:	(i) Having found that the Plaintiff, Craig Frederick Butler, is an eligible person and that the provision made for him in the Will of the deceased is inadequate for his proper maintenance or advancement in life, order that, in lieu of that provision, he is to receive 37 per cent of the estate of the deceased. (ii) Order that the time for the making of Carolyn's application be extended up to and including 23 November 2011, the date of the filing of her Summons. (iii) Having found that the Plaintiff, Carolyn Elizabeth Butler, is an eligible person and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, order that she is to receive 13 per cent of the estate of the deceased. (iv) Order that the burden of the additional provision made for the Plaintiff, Craig Frederick Butler, and the provision made for Carolyn Elizabeth Butler, should be borne by the share of the estate passing to the Defendant, Fiona Lee Morris, with the result that she is to receive the balance, being 50 per cent, of the estate of the deceased. (v) Order that the lump sum that equates to the share of the estate passing to the Plaintiff, Carolyn Elizabeth Butler, is to be paid to the NSW Trustee and Guardian as the financial manager of that Plaintiff. (vi) Order that no interest is to be paid on the lump sum which equates to the share of the estate passing to each Plaintiff, if that lump sum is paid within 7 days of settlement of the sale of the Pennant Hills property; 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. (vii) Order that the costs of all parties shall be determined after further submissions, unless agreement is reached between them. (viii) Order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the costs of the proceedings. (ix) Further consideration with respect to orders for the purpose of giving effect to the family provision order made in favour of each of the Plaintiffs as well as in relation to any additional amount to be paid by Fiona be reserved. (x) Stand the matter over to a convenient date to the parties and the court for any argument as to costs.
Catchwords:	SUCCESSION - The Plaintiffs, an adopted son and an adopted daughter of the deceased, each applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant, also an adopted daughter of the deceased, to whom Probate of the deceased's Will was granted - Dispute that adequate and proper provision not made in Will of the deceased for Plaintiff, Craig - No dispute that adequate and proper provision not made in Will of the deceased for Plaintiff, Carolyn and that an order in favour of that Plaintiff should be made - Dispute as to the quantum of the provision and how the burden of that provision should be borne - Dispute concerning moneys used by the Defendant during lifetime of deceased
Legislation Cited:	Civil Procedure Act 2005 Family Provision Act 1982 Practice Note SC Eq 7 Probate and Administration Act 1898 Property (Relationships) Act 1984 Succession Act 2006 Succession Amendment (Family Provision) Act 2008 Uniform Civil Procedure Rules 2005
Cases Cited:	Alexander v Jansson [2010] NSWCA 176 Allardice, In re, Allardice v Allardice (1909) 29 NZLR 959 Bartlett v Coomber [2008] NSWCA 100 Blore v Lang (1960) 104 CLR 124 Bondelmonte v Blanckensee [1989] WAR 305 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Buckland Deceased, Re [1966] VR 404 Butcher v Craig [2009] WASC 164 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 Evans v Levy [2011] NSWCA 125 Foley v Ellis [2008] NSWCA 288 Gardiner v Gardiner (NSWSC, 28 May 1998, unreported) Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Hawkins v Prestage (1989) 1 WAR 37 Hughes v National Trustees Executors and Agency Co. of Australasia Ltd (1979) 143 CLR 134 Kay v Archbold [2008] NSWSC 254 Kembrey v Cuskelly [2008] NSWSC 262 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 MacGregor v MacGregor [2003] WASC 169 Marks v Marks [2003] WASCA 297 Mayfield v Lloyd-Williams [2004] NSWSC 419 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Singer v Berghouse (No 2) [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 Thom v The Public Trustee (NSWSC, 2 April 1992, unreported) Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 Twomey v Mcdonald [2012] NSWSC 22 Valbe v Irlicht [2001] VSC 53 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported)
Category:	Principal judgment
Parties:	Craig Frederick Butler (Plaintiff in 2010/283304) Carolyn Elizabeth Butler (bht NSW Trustee & Guardian) (Plaintiff in 2011/37523) Fiona Lee Morris (Defendant in 2010/283304) Fiona Lee Morris (as Executrix of the Estate of Sybil Ethel Butler Deceased) (Defendant in 2011/37523)
Representation:	Counsel: Mr A Hill (Plaintiff in 2010/283304) Mr A J McInerney (Plaintiff in 2011/374523) Mr C Vindin (Defendant in both proceedings) Solicitors: Butlers Will Dispute Lawyers (Plaintiff in 2010/283304) ZuckerLegal (Plaintiff in 2011/374523) Heckenberg & Koops Lawyers (Defendant in both proceedings)
File Number(s):	2010/283304; 2011/374523