Camernik v Reholc - [2012] NSWSC 1537

Supreme Court

New South Wales

Medium Neutral Citation: Camernik v Reholc [2012] NSWSC 1537
Hearing dates: 5 December 2012
Decision date: 13 December 2012
Jurisdiction: Equity Division
Before: Hallen J
Decision:
1. Order that the Plaintiff's claim is dismissed.
2. In light of the Defendant's concession that he does not seek an order for costs, make no order as to the Plaintiff's costs out of the estate of the deceased, to the intent that he will pay his own costs of the proceedings.
3. It is unnecessary for an order for costs to be made in favour of the Defendant.

Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiff makes a claim for a family provision order - Plaintiff a child of the deceased - Defendant the husband of the deceased - Long marriage - Intestacy - No actual estate - Jointly held property passing to Defendant by survivorship sought to be designated as notional estate - Whether family provision order should be made for Plaintiff and if so nature of the order - Whether property should be designated as notional estate
Legislation Cited: Family Provision Act 1982
Property (Relationships) Act 1984
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Allardice, In re, Allardice v Allardice (1909) 29 NZLR 959
Andrew v Andrew [2012] NSWCA 308
Bartlett v Coomber [2008] NSWCA 100
Bladwell v Davis [2004] NSWCA 170
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bourke, M A, (dec'd) and the TFM Act [1968] 2 NSWLR 453
Buckland, Re Deceased [1966] VR 404
Butcher v Craig [2009] WASC 164
Cetojevic v Cetojevic [2006] NSWSC 431
Christie v Manera [2006] WASC 287
Clifford v Mayr [2010] NSWCA 6
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Cross v Wasson (2009) 2 ASTLR 201
Crossman v Riedel [2004] ACTSC 127
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Flathaug v Weaver [2003] NZFLR 730
Foley v Ellis [2008] NSWCA 288
Galt v Compagnon (NSWSC, 24 February, 1998, unreported)
Gardiner v Gardiner (NSWSC, 28 May 1998, unreported)
Golosky v Golosky [1993] NSWCA 111
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Hastings v Hastings [2010] NSWCA 197
Hawkins v Prestage (1989) 1 WAR 37
Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
John v John [2010] NSWSC 937
Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422
Kay v Archbold [2008] NSWSC 254
Keep v Bourke [2012] NSWCA 64
Kembrey v Cuskelly [2008] NSWSC 262
Kleinig v Neal (No 2) [1981] NSWLR 532
Langtry v Campbell (NSWSC, 7 March 1991, unreported)
MacGregor v MacGregor [2003] WASC 169 (28 August 2003)
McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566
McGrath v Eves [2005] NSWSC 1006;
Magill v Magill [2006] HCA 51; (2006) 226 CLR 551
Marks v Marks [2003] WASCA 297
Marshall v Carruthers [2002] NSWCA 47
Mayfield v Lloyd-Williams [2004] NSWSC 419
Milillo v Konnecke [2009] NSWCA 109
Miller v Miller [2006] 2 AC 618
Moore v Moore (NSWCA, 16 May 1984, unreported)
Palaganio v Mankarios [2011] NSWSC 61
Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24
Pogorelic v Banovich [2007] WASC 45
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Puckridge, In the Estate of, Deceased (1978) 20 SASR 72
Samsley v Barnes (1991) DFC 95-100
Sellers v Scrivenger [2010] VSC 320
Singer v Berghouse (1994) 181 CLR 201
Sitch, Re the Will of, (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308
Smith v Woodward (NSWSC, 9 September 1994, unreported)
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
Verzar v Verzar [2012] NSWSC 1380
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (NSWSC, 17 May 1996, unreported)
Texts Cited: Rosalind Croucher, "Contracts to Leave Property by Will and Family Provision after Barns v Barns [2003] HCA 9" [2005] SydLawRw 12; (2005) 27(2) Sydney law Review 263
New South Wales Law Reform Commission Report 110 (2005) - Uniform Succession Laws: Family Provision
Category: Principal judgment
Parties: Sylvester Camernik (Plaintiff)
Joseph Reholc (Defendant)
Representation: Counsel:
Mr N Jackson (Plaintiff)
Mr G R Graham (Defendant)
Solicitors:
Antwan Lawyers (Plaintiff)
Young & Muggleton Lawyers (Defendant)

File Number(s): 2011/411858

Judgment

The Claim

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

The Plaintiff commenced the proceedings by Summons filed on 22 December 2011, 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 Defendant named in the Summons is Joseph Reholc, the husband of the deceased at the date of her death.

Formal Matters

The following facts are uncontroversial.

The deceased died on 8 January 2011. She was then aged 84 years, having been born in September 1926.

The deceased married Rudolf Kobe on a date not disclosed in the evidence. There was one child of their marriage, being the Plaintiff. Mr Kobe died sometime in the early 1950's.

The deceased then married Mr Camernik who adopted the Plaintiff. Their marriage ended in divorce. His current whereabouts, if he is alive, are not known.

The Plaintiff came to Australia in about 1973. He became an Australian citizen in about 1978.

The Defendant was born March 1934 and is aged 78 years.

The deceased and the Defendant met in Ljubljana, Slovenia. They married in 1961 and remained married until her death about 50 years later. There were no children of their marriage.

The deceased did not leave a Will. There has been no application for letters of administration. It was not until submissions that counsel for the Plaintiff sought an order under s 91 of the Act for administration in respect of the estate of the deceased for the purposes only of permitting the Plaintiff's application for a family provision order to be dealt with.

The Defendant's counsel did not oppose the application being made at that late stage. He submitted, however, that it would not be necessary to make such an order if the Plaintiff's claim was dismissed. He accepted that the court should make an order if the Plaintiff's claim was successful.

The only property of the deceased, at the date of her death, was her interest, as a joint tenant, with the Defendant, in real estate situated at Petersham, and her interest in moneys held in a joint bank account, also with the Defendant.

The value of the deceased's interest in the Petersham property, at the date of her death, is not disclosed in the evidence. However, a copy of bank records that were tendered reveal, as at 21 April 2011 (about three months after the deceased's death), that the amount in the joint bank account was $29,214. (I have omitted any reference to cents and shall continue to do so. This may appear to result in minor mathematical miscalculations in the figures set out below.)

(There is evidence of a bank account in the name of the deceased into which her pension was paid. There was $2.00 held in that account at the date of the deceased's death. In the circumstances, the amount can be ignored.)

The parties agree that there was no actual estate at the date of the deceased's death out of which an order for provision in favour of the Plaintiff could be made. However, he seeks an order for provision, and for costs, out of the notional estate of the deceased. This will require the deceased's interest as a joint tenant in the Petersham property, or part of it, to be designated as notional estate. I shall return to the notional estate provisions of the Act later in these reasons.

The parties were unable to agree upon the gross value of the deceased's interest in the Petersham property at the date of the hearing. The only evidence admitted was an estate agent's appraisal, after internal inspection, that it had a value of $700,000. (What was said to be a kerbside estimate, tendered by the Plaintiff, was rejected because it did not reveal whether the author had, in fact, conducted even a kerbside inspection of the Petersham property.)

Because of the likelihood that the Petersham property will have to be sold if an order in favour of the Plaintiff is made, there will be costs and disbursements of sale. The parties agreed that those costs and disbursements should be estimated to be $20,000.

In calculating the value of the estate, finally available for distribution, the costs of the present proceedings should also be considered, since the Plaintiff, if successful, normally, will be entitled to an order that his costs be paid out of the estate or notational estate of the deceased, whilst the Defendant, representing the estate, normally, will be entitled to an order that his costs be paid out of the estate or notional estate.

In this case, if the Plaintiff succeeds, it will be the property that is designated as notional estate that will provide the costs of the proceedings if an order for costs in favour of one, or both, of the parties is made.

In an affidavit sworn on 27 November 2012, the Plaintiff's solicitor estimated the Plaintiff's costs and disbursements of these proceedings, calculated on the indemnity basis, to be $35,500 (inclusive of GST and upon the basis of a one day hearing). I was informed, without objection, that those costs and disbursements, calculated on the ordinary basis, would be 70 per cent of that amount, or $24,500.

The Defendant's solicitor estimated the Defendant's costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis, to be about $35,000 (inclusive of GST and upon the basis of a one day hearing). However, during submissions, he stated that if the proceedings were dismissed, the Defendant's costs and disbursements would be limited to the amount that was currently held by the Defendant, being about $28,800, and that the Defendant would not have to sell the Petersham property to pay his own costs and disbursements.

The Defendant's counsel also stated, that in the event the Plaintiff's Summons were dismissed, the Defendant did not seek an order that the Plaintiff should bear the Defendant's costs of the proceedings.

It can be seen, therefore, that if the deceased's interest in the Petersham property ($340,000 after payment of one half of costs of sale), and the deceased's share of the amount of cash ($14,402) is designated as notional estate, and if a costs order in favour of each party is made (a total of $59,500) to be paid out of the notional estate, the net value of the notional estate will be about $294,902.

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

The parties agreed that the persons who are, or who may be, eligible persons, within the meaning of the Act, are the parties and the former husband of the deceased (the father of the Plaintiff).

It appears that neither of the parties knows whether the former husband of the deceased is alive, and if he is, where he is. The Defendant says that, during his marriage to the deceased, she had no contact with her former husband.

In these circumstances, I am satisfied that the court may disregard the interests of the deceased's former spouse, as a person by, or in respect of whom, an application for a family provision order may be made, but who has not made an application, even though notice of the application, and of the court's power to disregard his interests, has not been served on him. Service of any such notice is impracticable in the circumstances of the case and, bearing in mind the nature and value of the property sought to be designated as notional estate, and the current competing claimants on the bounty of the deceased, such service is unnecessary.

Other Established Background Facts

The deceased worked from home as a seamstress/machinist, during her marriage, on a part time basis. She stopped working in about 1999, whereupon she commenced to receive an Australian pension as well as a "war pension" from Germany.

The Defendant worked, throughout the marriage, until about 1999, as a machinist and cabinetmaker.

The copy bank records for part of the year, 2010, reveal that the deceased received between about $518 and $536 per fortnight, depending upon the value of the Euro as a "war pension". As a result, her Australian pension was reduced.

It appears that there is an amount (€1,231.20) repayable to Deutsche Rentenversicherung, which is said to be the total amount of overpayments of the "war pension" made to the deceased after her death until 31 July 2011.

Although there was a dispute about whether the Defendant received the pension that had been paid after the deceased's death, I accept the Defendant's evidence that he did not intentionally retain the amounts paid and did not know that any amounts had been paid after April 2011.

From all of the evidence on this topic, I think it likely that the overpayments may have been paid into the deceased's bank account and may still be retained in that account. If they have been, the amount claimed could be refunded to the Deutsche Rentenversicherung from the deceased's bank account.

The Plaintiff married Milisca Camernik in June 1967. They had a son, Sreco, who was born in August 1967. The Plaintiff and Melisca separated in about 1973.

A short time later, the deceased married Cathy Camernik. They separated in about 1981. They had one child, Tony.

The Plaintiff entered a de facto relationship with Sharin Lata Morrison in about 1990. They had one child, Tanya Rose Morrison, who was born in February 1993. Tanya gave evidence, by way of an affidavit, in the proceedings.

The Petersham Property

I am satisfied that the following matters have been established in relation to the Petersham property. Where necessary, I refer to the conflict of evidence between the Plaintiff and the Defendant in regard to this aspect.

Following his arrival in Australia, from Germany, in about 1975, the Defendant and the deceased purchased a house in a suburb near Frankston, Victoria, for about $21,000, of which about $15,000 was contributed from savings brought with them, and the balance was borrowed. When this property was sold a short time after its purchase, the Defendant and the deceased used some of the net proceeds of sale to assist in the purchase of the Petersham property, with the balance being borrowed from the ANZ Bank, secured by mortgage.

The deceased and the Defendant purchased the Petersham property in the early 1980s, for about $42,000. I accept the Defendant's evidence that the deceased paid part of the purchase price ($4,000) from the earnings she had saved; part was paid from the proceeds of sale of the house that the deceased and the Defendant had purchased in Melbourne; and the balance was borrowed.

The Defendant says, and I accept because he was not challenged on this, that he made the mortgage repayments out of his earnings thereafter.

I do not accept the Plaintiff's evidence that he guaranteed the amount borrowed, for the same reason that I do not accept that he contributed $4,000 to the purchase price. I think it highly unlikely, bearing in mind all of the evidence that I have read, that the Plaintiff, was then, or had been, in regular employment. For example, he says that in the years 1975 to 1977 he earned approximately $80 per day, but on average, he would only work "a couple of days per week". Then, although he gives evidence of working more in 1978, he says nothing, in his affidavits, about employment at the time of the purchase of the Petersham property. (He does give evidence that when he separated from his second wife in 1981, it was a "traumatic time".) Finally, he does not give any evidence of the assets that he then held which would have been available to satisfy a demand had there been a default.

I also think it unlikely that the Bank would have required a guarantee when the deceased and the Defendant had contributed to the purchase price and when they were both in employment. (In this regard, I do not accept the Plaintiff's evidence that one reason for him being requested to be a guarantor, was that "the Defendant and my mother at that time in 1982 had very little money and was (sic) unable to afford the deposit".)

At, or about, the time of the purchase of the Petersham property, the deceased and the Defendant attended upon a solicitor. Also attending was Mr Strel, a Slovenian interpreter, who translated what was said during the conference. The solicitor advised the deceased and the Defendant about the meaning of "joint tenants" and the Defendant states that he and the deceased agreed to purchase the property in that way. (Of course, by the date of the purchase, the deceased and the Defendant had been married for about 19 years, so this is not surprising.)

The Petersham property is a one-storey home, containing three bedrooms, with a frontage of about 10 metres. It has no driveway or car parking area. Photographs depict a modest reasonably well-maintained home. It has been the home of the Defendant for about 30 years.

The Petersham property is now registered in the name of the Defendant.

Other Factual Disputes

There are a number of factual disputes between the parties that require me to express my conclusions. The major areas of dispute relate to the contributions made by the Plaintiff and by the Defendant to the building up of the deceased's estate and the provision made by the deceased for the Plaintiff during her lifetime.

The Plaintiff asserted that it was he who assisted the deceased and the Defendant to come to Australia. This is denied by the Defendant who says that it was his brother who provided the necessary assistance, including sponsoring them. (The Defendant's brother died in 1980.)

Having heard both of the parties, I am more compelled to accept the evidence of the Defendant. It seemed more likely, in circumstances where the Defendant and the deceased had come to Australia on holidays and where the Defendant's brother was encouraging him to return permanently, that it would have been the brother who assisted the Defendant and the deceased with immigration matters.

This is not to say that the Plaintiff did nothing to assist. I think it is likely that he did not do as much as he said and that what he did may have been at the behest of the deceased rather than the Defendant.

There is evidence from Tanya that between 1994 and 2009, she would spend "every weekend" with the deceased and that the Plaintiff was also present. I do not read her evidence as suggesting that the Plaintiff was present all of the time. As the Plaintiff states:

"During the period 1993 to 2009 my mother would provide meals for me almost on a weekend basis. This was because she was looking after Tanya and I would go there after work to spend some time with my mother and pick Tanya up".

The Plaintiff's evidence that I have quoted is inconsistent with the evidence in his first affidavit, in which he asserted that he would be at the deceased's home at Petersham "several times a week when she cooked for me on a daily basis".

The evidence of Tanya also seems somewhat inconsistent with the Plaintiff's evidence, in his first affidavit, that his youngest child "visited the deceased frequently" rather than, as Tanya's affidavit suggests, that she stayed with the deceased "every weekend" between 1994 and 2009.

I note, however, that Tanya was not cross-examined.

There was evidence called from Irina Flisar, who described herself as a very good friend of the Defendant and the deceased. She, too, came from Slovenia.

She gave evidence that she and her husband would regularly see the deceased and the Defendant, and that she would see the deceased as often as every second day.

She gives evidence that the deceased said to her that the Plaintiff "is always broke" and that she had "to give him money and pay his bills". The deceased told Ms Flisar that she would help the Plaintiff pay for car repairs, for his computer, and would "help him with his finances". When the Plaintiff was at the Petersham property, she observed the deceased preparing meals for him.

Ms Flisar also gives evidence that on the Plaintiff's birthday, prior to the death of the deceased, the deceased told her that she had given the Plaintiff $1,000 as a present.

Ms Flisar says that it was her daughter, Dragica, who would help the deceased and the Defendant with signing forms and translating documents, because they did not understand English very well. Of course, this does not mean that the Plaintiff did not do so. In fact, his daughter, Tanya, observed him doing so "on numerous occasions".

The Defendant conceded, in cross-examination, that the Plaintiff had assisted the deceased, more than he had assisted the Defendant, in signing forms and translating documents.

Finally, Ms Flisar says that the deceased described the Defendant as "a good provider and good husband".

There is no reason to disbelieve Ms Flisar's evidence, as she, also, was not cross-examined.

The Plaintiff did not give evidence in his first affidavit about retaining the contents of a box belonging to the deceased following her death. However, following the service of the Defendant's affidavit in which the issue of the Plaintiff taking a box from the Petersham property following the deceased's death, the Plaintiff gave the following evidence in his second affidavit, which was filed about two weeks before the hearing:

"96. On more than one occasion before her death, my mother said to me in the context of the box:

"Make sure you get this when I die."

70. Still at the Petersham property, I then opened the security box. It contained my mother's jewellery and some cash. The Defendant was present.

71. I then showed the Defendant the box and its contents before removing it. He did not appear to object to me taking the box and its contents.

72. The jewellery was given to my daughter Tanya.

73. There was approximately $10,000 in cash out of which $3,200 was used for funeral expenses and $3,400 in payment of my debt to the State Debt Recovery Office. This arose for parking tickets and penalties that I had not paid.

74. I spent the rest of the money on household expenses for myself."

(The numbering appears as it is in the Plaintiff's Affidavit.)

The receipt by the Plaintiff of about $10,000, as well as the deceased's jewellery, which he admitted in the witness box he had given to Tanya, is a glaring omission from his first affidavit.

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 to which I have referred. It is important that the parties are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions.

The wording of the Act is similar to the wording of the former Act. However, it is necessary to remember the warning of Kirby P in Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100, at 76,304:

"Purposive construction of the Act

There is always a danger where a reformed Act borrows heavily upon ideas which previously existed in the common law or in an earlier statute, that lawyers will approach the construction of the Act affected by the previous law. Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 2 NSWLR 475, 478. That danger is but an illustration, in the specialised activity of law, of a universal phenomenon of psychology long established in relation to human perception generally. We tend to perceive what we expect. We expect that with which we are familiar.

There is a particular danger in the case of the Family Provision Act in construing its terms by reference to the law which developed around the Testators' Family Maintenance and Guardianship of Infants Act 1916. That Act was passed in earlier times to govern the entitlements of a testator's family, as narrowly defined. The definition by s 3(1) of that Act confined applications to those made by "the widow, husband or children of such persons". There was no mention in it of former spouses. Doubtless this was because, for the early part of this century, divorce was relatively infrequent and then based upon concepts of matrimonial fault which would make interference in the testamentary disposition of the deceased unlikely. When enacted, the statute was a radical interference in the power of testamentary disposition. That was a significant power over private property, the disturbance of which was regarded as highly exceptional."

Whilst the relevant amendments made by the Act are not as significant to those made by the former Act, it remains necessary to bear his Honour's warning in mind in construing the statutory framework. In doing so, a construction that promotes the purpose, or object, of the Act is to be preferred to a construction that would not promote that purpose or object. In my view, the principles applied by the courts to the former Act continue to apply, except to the extent that the Act otherwise requires.

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 an 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. Each is a category limited to a family member or to a person with a particular status or relationship to the deceased.

Relevantly, in this case, the Plaintiff relies upon the category of eligibility referred to in s 57(1)(c) of the Act, namely that he is a child of the deceased.

Inadequacy of Provision

Then, if eligibility is found, the court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is only if the court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). In this way, it has been said that the court carries out a two-stage process.

Allsop P in Andrew v Andrew [2012] NSWCA 308, has recently commented, at [6]:

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

Basten JA in Andrew v Andrew, at [26], put the differences this way:

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

Barrett JA said:

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

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

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

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

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

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, made is inadequate for the applicant's proper maintenance, education or 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 or 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 or 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". Basten JA said in Hastings v Hastings [2010] NSWCA 197, at [20], said "... because the standard cannot be identified with precision, the application of an appropriate standard to particular circumstances may ... give rise to a range of legitimate outcomes."

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", nor the phrase "advancement in life", defined in the Act. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement":

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, whereas "proper" prescribes the standard, of the maintenance, education or 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] HCA 82; (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 in 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] HCA 31; (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 used to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."

Santow J pointed out in Gardiner v Gardiner (NSWSC, 28 May 1998, unreported), that "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 ..."

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

Until recently, it was unanimously thought that there are two stages of the determination. The first stage, provided for by s 59(1)(c), has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. The Court does this by determining whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased and/or by operation of the intestacy rules, for the applicant. If it is not so satisfied, then the Court is precluded from making a family provision order.

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

In Collins v McGain Tobias JA said:

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

...

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

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]."

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

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

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 by the will of the deceased and/or by operation of the intestacy rules,), 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: 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.

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

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

...

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

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

"Whether the process engaged in by the Court in s 59 can still be described as "two-staged" in the sense discussed in Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 208-211 may be an analytical question of little consequence. The task involves an evaluative assessment and a choice as to consequence therefrom, appeal from which is governed by the principles concerning discretionary judgments: Singer v Berghouse at 211 and DAO v The Queen [2011] NSWCCA 63; 278 ALR 765 at [93]."

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

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

...

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

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

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

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

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

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

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

...

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

I note also that in Verzar v Verzar [2012] NSWSC 1380, Lindsay J said:

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

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

It seems to me, with utmost respect to those who disagree, that the amendments introduced by the Act do not require, or justify, a different approach. That approach, adopted in the myriad of cases determined under the Act, including Keep v Bourke [2012] NSWCA 64 (in which Macfarlan JA (except as to amount of provision) and Tobias AJA agreed with Barrett JA), requires a trial Judge to continue to follow the two stage approach in determining cases under the Act, until any uncertainty is resolved. As Allsop P said, "it may be an analytical question of little consequence" since what has to be decided by the Court is whether to make a family provision order and the nature of any order.

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, described by Basten JA in Andrew v Andrew at [37] as "a multifactorial list", and by Lindsay J in Verzar v Verzar, at [123], as "a valuable prompt" to which the court may have regard, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order. 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 s 60(1)(a), many of the matters in s 60(2) will be largely, if not wholly, irrelevant. (However, the section suggests that the question of eligibility overlaps with the substantive determination, namely whether to make a family provision order and, if so, the nature of any such order.)

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

"'financial resources' ... includes:

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

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

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

(d) any other valuable benefit."

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

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 Court may have regard to the matters referred to in s 60(2) on "the discretionary question", namely whether to make an order and the nature of any such 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."

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

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

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

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

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

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

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

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

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

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

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

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

The order may be made, relevantly, in this case, in relation to the estate of the deceased. As the deceased died leaving a Will, 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).

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

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

Practice Note SC Eq 7, which applies in relation to family provision proceedings, provides, in Clause 24, that 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.

Notional Estate

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

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

Rosalind Croucher in "Contracts to Leave Property by Will and Family Provision after Barns v Barns [2003] HCA 9" [2005] SydLawRw 12; (2005) 27(2) Sydney Law Review 263 has commented on the notional estate provisions of the former Act:

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

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

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

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

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

Furthermore, the Court must not designate as notional estate, property that exceeds what is necessary, in the Court's opinion, to allow the provision that should be made, or, if the Court makes an order that costs be paid from the notional estate under s 99, to allow costs to be paid as ordered, or both (s 89(2)).

Section 74 of the Act provides that "relevant property transaction" means a transaction, or circumstance, affecting property and described in s 75 or s 76. "Property" includes "any valuable benefit".

Section 75 of the Act provides:

"(1) A person enters into a relevant property transaction if the person does, directly or indirectly, or does not do, any act that (immediately or at some later time) results in property being:

(a) held by another person (whether or not as trustee), or

(b) subject to a trust,

and full valuable consideration is not given to the person for doing or not doing the act.

(2) The fact that a person has entered into a relevant property transaction affecting property does not prevent the person from being taken to have entered into another relevant property transaction if the person subsequently does, or does not do, an act affecting the same property the subject of the first transaction.

(3) The making of a will by a person, or the omission of a person to make a will, does not constitute an act or omission for the purposes of subsection (1), except in so far as it constitutes a failure to exercise a power of appointment or disposition in relation to property that is not in the person's estate."

Section 76 of the Act then provides a description of some, but not all, of the circumstances that constitute the basis of a relevant property transaction for the purposes of s 75. One of the circumstances, described in s 76(2)(b), arises:

"if a person holds an interest in property as a joint tenant and the person does not sever that interest before ceasing (because of death or the occurrence of any other event) to be entitled to do so, with the result that, on the person's death, the property becomes, by operation of the right of survivorship, held by another person (whether or not as trustee) or subject to a trust..."

Any such circumstance is "subject to full valuable consideration not being given". Importantly, a distinction must be drawn between "valuable consideration" and "full valuable consideration": see, for example, s 76(4) of the Act.

Important, also, is the omission of the words "in money or moneys worth" after "full valuable consideration" which had appeared in s 22 of the former Act. Furthermore, the phrase "is not given" rather than "is not received" is also significant.

The expression "subject to full valuable consideration not being given", in my view, has the effect of imposing a requirement, wholly separate from the result, which is property becomes, by operation of the right of survivorship, held by another person or subject to a trust.

There did not appear to be a dispute that the non-severance, before her death, of the joint tenancy, is a matter capable of giving rise to a designation of notional property: Cetojevic v Cetojevic [2006] NSWSC 431 As such, it is necessary to consider certain other sections of the Act.

Section 77(1) provides that for the purposes of Chapter 3 of the Act, a relevant property transaction is taken to have effect when the property concerned becomes held by another person, or subject to a trust, or as otherwise provided by the section. Sub-section (3) provides that a relevant property transaction consisting of circumstances described in s 76 (2) (b) or (e) is taken to have been entered into immediately before, and to take effect on, the person's death, or the occurrence of the other event referred to in those paragraphs.

Section 78 of the Act provides:

"(1) The Court may make an order designating property as notional estate only:

(a) for the purposes of a family provision order to be made under Part 3.2, or

(b) for the purposes of an order that the whole or part of the costs of proceedings in relation to the estate or notional estate of a deceased person be paid from the notional estate of the deceased person.

(2) The Court must not make an order under subsection (1) (b) for the purposes of an order that the whole or part of an applicant's costs be paid from the notional estate of the deceased person unless the Court makes or has made a family provision order in favour of the applicant."

Section 80(1) provides that the Court may, on application by an applicant for a family provision order, or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person, if the Court is satisfied that the deceased person entered into a relevant property transaction before his, or her, death and that the transaction is a transaction to which the section applies.

Section 80(2) provides for the section to apply to the following relevant property transactions:

(a) a transaction that took effect within 3 years before the date of the death of the deceased person and was entered into with the intention, wholly or partly, of denying or limiting provision being made out of the estate of the deceased person for the maintenance, education or advancement in life of any person who is entitled to apply for a family provision order;

(b) a transaction that took effect within one year before the date of the death of the deceased person and was entered into when the deceased person had a moral obligation to make adequate provision, by will or otherwise, for the proper maintenance, education or advancement in life of any person who is entitled to apply for a family provision order which was substantially greater than any moral obligation of the deceased person to enter into the transaction;

"The parties' matrimonial home, even if this was brought into the marriage at the outset by one of the parties, usually has a central place in any marriage. "

Ward J (as her Honour then was) referred to many of these authorities in Cross v Wasson [2009] NSWSC 378; (2009) 2 ASTLR 201, at [97]. At [98], her Honour added:

"[98] Of course, the position of surviving spouse no longer attracts any primacy or paramountcy in the face of other competing claims. In Bladwell v Davis [2004] NSWCA 170 Bryson JA (at [18]) noted an inconsistency between according paramountcy to the claims of surviving spouses (in the context of competing claims) and the application to the facts and circumstances of each case of s 7 of the Family Provision Act and the approach established by Singer v Berghouse. His Honour said: "Preconceptions and predispositions are likely to be the source of inadequate consideration of the process required by the Family Provision Act 1982". His Honour considered it would be an error generally to accord to widows (or, by analogy here, widowers) primacy over all other applicants regardless of the circumstances and "regardless of performance of the stages of consideration described in Singer v Berghouse in full and with reference to the instant facts" (para 19).

I make clear that I do not intend what I have described as "applicable principles" or "general principles" to be elevated into rules of law or to suggest that the court's duty to make the value judgment can be abrogated by generalisations. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion at the second stage to be constrained, by statements of principle found in dicta in other decisions. I identify them in the hope that a reference to them will diminish the risks of inconsistency and capricious and arbitrary adjudication, but remembering that the terms of the statutory provisions must remain firmly in mind.

As Lindsay J said in Verzar v Verzar, at [131]:

"Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."

Additional findings of Fact

I shall now set out additional facts that I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar, at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered.

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

The Plaintiff is the only child of the deceased. He resided with her (or was financially dependent upon her for payment of boarding school fees from 1956 to 1963) until he was aged 18.

He joined the Army to complete compulsory 18 months service in about 1964. He then returned to live with the deceased until his first marriage.

Thereafter, he maintained regular contact with the deceased. He moved to Australia in about 1973.

The deceased and the Defendant came to Australia, from Germany, in about 1975. Initially, they lived in separate cities. A short time later, however, the deceased and the Defendant moved to Sydney from Melbourne.

The Defendant does not dispute that the Plaintiff had a close and loving relationship with the deceased, although he says that the Plaintiff did not visit her as often as the Plaintiff suggests he did.

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

There is no definition of the "obligations" or "responsibilities" to which the sub-section refers in the Act. One might conclude, however, that what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities owed to the applicant by the deceased. The deceased did not have any legal, or financial, obligation to the Plaintiff imposed upon her by statute or common law.

An obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child. In Flathaug v Weaver [2003] NZFLR 730 at 737, the origin of the obligation which underpins the Act's recognition of the duty owed by a parent to a child was put in this way:

"The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives."

I have earlier referred to the obligation or responsibility owed by the deceased to his, or her, spouse, particularly a spouse of a very lengthy marriage (as this marriage was). The obligation, or responsibility, otherwise, naturally arises from the matrimonial relationship.

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

I have dealt with the nature and extent of the notional estate. The value of the property that may be so designated is very small.

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

The Plaintiff gives evidence of his current financial and material circumstances as follows:

(a) The Plaintiff was employed as a taxi driver until 1988, when he sustained a motor vehicle accident. He stated, initially, that he had not worked since that time. Subsequently, in an affidavit filed about two weeks before the hearing, the Plaintiff said that he resumed work in 1989, as a furniture removalist, and continued to work until approximately 2000, when he contracted Legionnaire's disease. (He acknowledged in cross-examination, that the evidence on this topic in his first affidavit was wrong.) Bearing in mind he has not worked for 12 years and, considering his age, he does not have any earning capacity.

(b) He rents the property in which he lives by himself, which is accommodation provided by the NSW Land and Housing Corporation at a subsidised rental. His rent is about $90 per week, with no fiscal responsibility for rates, taxes or insurances.

(d) His income is a disability pension of $750 per fortnight.

(e) His monthly expenditure consists of rent ($350), electricity ($130), telephone expenses ($80) medical expenses ($30) and food and household expenses ($900).

(f) He says that his liabilities include legal costs of approximately $25,500, which will increase to $35,500 after the hearing.

He says that "[I]n the future, I will need secure accommodation".

However, he does not give any evidence of the term of his lease, the nature of the accommodation that is leased, any threat of the lease, or any reasons why, in the future, he will need "secure accommodation". He stated that he had been a tenant of the NSW Land and Housing Corporation for about 10 years. When cross-examined, he stated that the accommodation was a one bedroom home unit, not far from a park and the water.

At the hearing, the form of order proposed by counsel for the Plaintiff, was as follows:

"1. That the Defendant pay the Plaintiff the amount of $150,000, payment to be made within 3 months from the date of these orders.

2. That in the alternative to paragraph 1 above, an order be made designating that upon the sale of the property identified in these proceedings as "the Petersham property", one-half of the proceeds of sale of the Petersham property be designated as notional estate ("the notional estate"), to the extent necessary to satisfy the following order:

a. an order for the provision of the entire notional estate in favour of the Plaintiff."

How the amounts sought could be explained as meeting "needs" was not stated.

The Defendant is aged 87 years and thus does not have any earning capacity. He owns the Petersham property, which was transmitted into his name following the death of the deceased and he has cash in the bank ($28,800). The amount of cash is what remains of a compensation payment made to him in 1988. He, also, receives a pension ($ 772 per fortnight).

The Defendant wishes to remain living in the Petersham property.

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

The Plaintiff lives alone.

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

The Plaintiff says that his health is poor. He suffers neck and back pain and other physical disabilities resulting from having contracted Legionnaire's disease about 12 years ago.

He has not produced any medical evidence to substantiate the complaints about his state of health that he makes. He is, however, in receipt of a disability pension.

The Defendant says that he has been in poor health also, having survived rectal cancer. In January 2012, he saw his specialist who reported that there were no signs of recurrence. The Defendant's treating general practitioner reports that he has no other medical complaints and that no current medications are recorded. He accepted, in cross-examination, that he is currently in good health.

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

The Plaintiff is currently aged almost 66 years, having been born in December 1946 in Germany.

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

The Plaintiff says that he made a financial contribution to the acquisition of the Petersham property. I have dealt with this aspect previously and concluded that he did not make that contribution of $4,000.

However, I am satisfied that he made some contribution to the welfare of the deceased, although it is clear that she made a substantial contribution, both financially and otherwise, to him.

The provision made for the Plaintiff by the deceased included cooking for him, looking after him when he suffered from Legionnaire's disease; and washing and ironing his clothes,

(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 issue of the provision made by the deceased for the Plaintiff previously. In particular, I note the receipt by the Plaintiff of the cash and jewellery in the box that he took from the Petersham property following the death of the deceased. (I remember, however, that from the moneys received, the Plaintiff paid the deceased's funeral expenses ($3,200).)

Again, although the Plaintiff only acknowledged it after the Defendant had raised it, the deceased paid for a Mercedes Benz motor vehicle for him. The Defendant said that it cost $10,000, whilst the Plaintiff said that it cost $7,500. (In cross-examination, he changed the figure to $6,500, although when I asked him which amount was correct, he said the amount stated in his affidavit may be correct.)

I accept the Defendant's evidence that the deceased paid various utility accounts for the Plaintiff over a number of years. The total of these accounts is $3,827. (Whilst the Plaintiff said that merely having the utility bills did not mean that the deceased had paid them, he offered no explanation why the bills would have been in the possession of the deceased.)

In addition, again, although it was not referred to in his affidavit, the Plaintiff acknowledged that following his contracting Legionnaire's disease, and until her death, the deceased had, without him asking, given him between $20 and $50 each fortnight. This means that in that period, the amount, in total, that the deceased gave him, would have been between $5,200 and $13,000 (assuming that it was for 10 years). I have earlier referred to Ms Flisar's evidence about the deceased giving the Plaintiff $1,000 for his birthday.

Of course, the Plaintiff admitted the great deal of care and attention that the deceased provided over the whole of his life, which it is unnecessary to further detail.

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

The Plaintiff's second affidavit contained the following evidence:

"...

93. On a number of occasions in the years prior to my mother's death, when I went to visit my mother at Petersham, she told me in the defendant's presence in words to the effect:

"Sylvester, you know that if I die before Joseph; you will get my half of the house."

"You have money to bury me. I worked hard for you to have some money before I go. It hurts me to think that my children and grandchildren don't have any money. Make sure Joseph gives it to you, it is rightfully yours.

"I have spoken to Joseph and he knows that when I die, if I die before him, he is to give you half the house. Half belongs to you and half to Joseph."

86. About 3 months before my mother died I heard her say to Joseph in my presence words to the effect of:

"Are you going to give him half the house when I die?

The Defendant replied: "Yes."

I was present, but I did not take part of the conversation."

...

"96. On more than one occasion before her death, my mother said to me in the context of the box:

"Make sure you get this when I die."

(The numbering is as appears in the affidavit.)

The Defendant denies having discussed with the deceased her testamentary intentions or being present when she is said to have discussed those intentions with the Plaintiff.

Tanya gives evidence of having several conversations with the deceased, commencing when she was 13 years of age, which was to the effect that when the deceased died "your dad and you will have the house and you will get the jewellery, including the opals". The deceased is also alleged to have said that she "would be making a Will soon".

In December 2009, Tanya says that the deceased said to her "Joseph gets half and Sylvester gets half and you get what Sylvester gets".

There is no documentary evidence about the deceased's intentions.

(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

There is some evidence that the Plaintiff was being maintained, at least partly, by the deceased for many years before her death. I have dealt with the Plaintiff's evidence about this previously.

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

Apart from the Commonwealth government's limited responsibility to continue to provide for the Plaintiff, there is no other entity or person with an obligation to support him.

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

I have dealt with this issue already. The Defendant does not suggest any conduct before the death of the deceased that would be relevant. I have dealt with the Plaintiff's conduct, in taking the box from the Petersham property after the deceased's death.

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

I am satisfied that there is nothing in the conduct of the Defendant that is relevant. He was married to the deceased for over 50 years. (Although there was some suggestion by the Plaintiff and Tanya that the deceased and the Defendant slept in separate rooms, and that there might be some disharmony between them, I accept the Defendant's explanation of the reasons why they slept in separate bedrooms.)

I also accept the Defendant's evidence that their marriage "was strong and we got on very well ... we did not argue about money or household chores. We followed a normal pattern and shared expenses. We would visit our friends and go out socially."

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

This is not relevant in the present case.

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

There are no other matters that I consider relevant.

Determination

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

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

Thus, I must first consider, whether, at the present time, adequate provision for the proper maintenance, education, or advancement in life, of the Plaintiff has not been made by the operation of the intestacy rules.

The Plaintiff will not receive any provision because of the way in which the property of the deceased and the Defendant was held. Judged by quantum, and looked at through the prism of his financial and material circumstances, adequate provision for his proper maintenance or advancement in life has not been made by the operation of the intestacy rules, in relation to the estate of the deceased.

I am satisfied that the Plaintiff was a loving and dutiful son who had a close relationship with the deceased throughout her life. Whilst I do not accept that he needs "secure accommodation", an additional lump sum, by way of advancement in life, in other circumstances, would be appropriate. However, that is not all that I am required to consider at the first stage. The totality of the relationship of the Plaintiff and the deceased, the age and capacities of the competing claimant, the Defendant, and his claim on the bounty of the deceased, are very relevant factors in determining the answer at the first stage.

Those considerations lead me to find that there was no failure, on the part of the deceased, to make adequate provision for the Plaintiff. Accordingly, the Plaintiff fails at the jurisdictional stage. That finding concludes the matter and must lead to the dismissal of the Plaintiff's proceedings.

If there were a separate estate, or if there were sufficient funds available, that would not require the sale of the Petersham property, the Plaintiff might have obtained the benefit of an order for provision in his favour. However, the court should not interfere with the Defendant's security of accommodation in order to make provision for the Plaintiff.

However, in case I am wrong, I turn, then, to make an evaluative judgment as to what provision, if any, ought to be made out of the notional estate of the deceased for the maintenance, education or advancement in life of the Plaintiff, having regard to the facts known to the court at the time the order is made.

The same considerations, as well as those that I summarise below, would, at the second stage, produce the result that, as a matter of discretion, I would not be satisfied that a family provision order ought to be made.

Whilst I appreciate that the claim of a spouse does not necessarily take precedence over other claims, the deceased and the Defendant were married for over 50 years. What joint property they had, was obtained by their joint efforts and over the whole of their married life. Whereas the Defendant does not appear to have had any claim upon his income, it appears that the deceased did, being the claim of the Plaintiff (whether or not he sought to make it). Thus, whilst the whole of the Defendant's income would have been available for his and the deceased's sole and joint expenses, the income of the deceased was, in part, at least during the last years of the deceased's life, used for the benefit of the Plaintiff. There can be no doubt that the competing claim of the Defendant, financially and otherwise, upon the bounty of the deceased was a very powerful one.

I also take into account, also, the provision made for the Plaintiff during the lifetime of the deceased. It is clear that the deceased provided him with financial, and other, assistance throughout his life. In addition, she assisted him by looking after Tanya, when she was a child.

The additional problem confronting the court is the practical one that the Defendant acquired, with the deceased, the Petersham property, as joint tenants. The Defendant then, upon the death of the deceased, became the sole owner of that joint property. As stated, the Petersham property has been the Defendant's home for over 30 years and he wishes to remain living there. There is nothing to suggest that he will have to move from the Petersham home in the immediate future. The security of his accommodation, to which the Defendant contributed significantly, should not be interfered with in order to satisfy the claim of the Plaintiff. His desire to remain living in the Petersham property is, in all the circumstances, a reasonable one.

(I should mention that I have given consideration to the submission that the Defendant should obtain a reverse mortgage, which is described, in an exhibit tendered by the Plaintiff, as one that "allows you to borrow money using the equity in your home as security". However, there was no evidence to demonstrate that the Defendant could successfully apply for such a mortgage, or if he did so, and was successful, how much he could borrow. Nor was there any evidence as to the terms of any such mortgage, including the rate of interest that might be payable.)

Finally, in light of the limited costs being sought by the Defendant's legal representatives, there will be no need to sell the Petersham property to pay costs.

In all the circumstances, the Plaintiff's claim should be dismissed.

In the circumstances, it is not necessary to consider the notional estate provisions of the Act further, since the court must not make a notional estate order unless it is satisfied that the deceased's person's estate is insufficient for the making of a family provision order that should be made. Having regard to all of the circumstances of the case, since I do not consider that any family provision order should be made, I must not make a notional estate order.

In any event, I would not have made a notional estate order based upon a consideration of the importance of not interfering with reasonable expectations in relation to property and the substantial justice and merits involved in making or refusing to make the order.

In my view, the fact that the Petersham property was held as joint tenants for over 30 years was likely to found a reasonable expectation in the Defendant that the property so held, would be enjoyed solely and absolutely by him, as the survivor, upon the death of the deceased, who was the other joint tenant.

Any expectation of the deceased that gave rise to the conversations which she had with the Plaintiff and Tanya, was not reasonable since she had been informed of the effect of holding property as joint tenants.

Similarly, any expectation that the Plaintiff held, because of conversations with the deceased, that he would inherit a share of the Petersham property was not a reasonable one, since it was unlikely that the Defendant would accept being forced out of the home in which he had lived for about 30 years to make provision for the Plaintiff. I consider that the reasonable expectation of the Defendant, despite any expectation of the Plaintiff, is an expectation that most members of the community would expect to be fulfilled.

As stated, I consider that the justice and merits of the case do not warrant the Defendant, at the age of 78 years, being deprived of his absolute interest in the Petersham property, which has been his home for that length of time in order to make provision for a Plaintiff who was provided for during the lifetime of the deceased, and who received at least $7,000 following her death.

Accordingly, I would not have been prepared to make any order designating the deceased's share in the Petersham property, which is now owned solely by the Defendant, as notional estate.

In all the circumstances, I order that the Plaintiff's claim be dismissed. In light of the Defendant's concession that he does not seek an order for costs, I make no order as to the Plaintiff's costs out of the estate of the deceased, to the intent that he will pay his own costs of the proceedings. It is unnecessary for an order for costs in favour of the Defendant.

**********

Decision last updated: 13 December 2012

Medium Neutral Citation:	Camernik v Reholc [2012] NSWSC 1537
Hearing dates:	5 December 2012
Decision date:	13 December 2012
Jurisdiction:	Equity Division
Before:	Hallen J
Decision:	1. Order that the Plaintiff's claim is dismissed. 2. In light of the Defendant's concession that he does not seek an order for costs, make no order as to the Plaintiff's costs out of the estate of the deceased, to the intent that he will pay his own costs of the proceedings. 3. It is unnecessary for an order for costs to be made in favour of the Defendant.
Catchwords:	SUCCESSION - FAMILY PROVISION - The Plaintiff makes a claim for a family provision order - Plaintiff a child of the deceased - Defendant the husband of the deceased - Long marriage - Intestacy - No actual estate - Jointly held property passing to Defendant by survivorship sought to be designated as notional estate - Whether family provision order should be made for Plaintiff and if so nature of the order - Whether property should be designated as notional estate
Legislation Cited:	Family Provision Act 1982 Property (Relationships) Act 1984 Succession Act 2006 Succession Amendment (Family Provision) Act 2008
Cases Cited:	Alexander v Jansson [2010] NSWCA 176 Allardice, In re, Allardice v Allardice (1909) 29 NZLR 959 Andrew v Andrew [2012] NSWCA 308 Bartlett v Coomber [2008] NSWCA 100 Bladwell v Davis [2004] NSWCA 170 Bondelmonte v Blanckensee [1989] WAR 305 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Bourke, M A, (dec'd) and the TFM Act [1968] 2 NSWLR 453 Buckland, Re Deceased [1966] VR 404 Butcher v Craig [2009] WASC 164 Cetojevic v Cetojevic [2006] NSWSC 431 Christie v Manera [2006] WASC 287 Clifford v Mayr [2010] NSWCA 6 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Cross v Wasson (2009) 2 ASTLR 201 Crossman v Riedel [2004] ACTSC 127 de Angelis v de Angelis [2003] VSC 432 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54 Flathaug v Weaver [2003] NZFLR 730 Foley v Ellis [2008] NSWCA 288 Galt v Compagnon (NSWSC, 24 February, 1998, unreported) Gardiner v Gardiner (NSWSC, 28 May 1998, unreported) Golosky v Golosky [1993] NSWCA 111 Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Hastings v Hastings [2010] NSWCA 197 Hawkins v Prestage (1989) 1 WAR 37 Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 John v John [2010] NSWSC 937 Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422 Kay v Archbold [2008] NSWSC 254 Keep v Bourke [2012] NSWCA 64 Kembrey v Cuskelly [2008] NSWSC 262 Kleinig v Neal (No 2) [1981] NSWLR 532 Langtry v Campbell (NSWSC, 7 March 1991, unreported) MacGregor v MacGregor [2003] WASC 169 (28 August 2003) McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006; Magill v Magill [2006] HCA 51; (2006) 226 CLR 551 Marks v Marks [2003] WASCA 297 Marshall v Carruthers [2002] NSWCA 47 Mayfield v Lloyd-Williams [2004] NSWSC 419 Milillo v Konnecke [2009] NSWCA 109 Miller v Miller [2006] 2 AC 618 Moore v Moore (NSWCA, 16 May 1984, unreported) Palaganio v Mankarios [2011] NSWSC 61 Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 Pogorelic v Banovich [2007] WASC 45 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Puckridge, In the Estate of, Deceased (1978) 20 SASR 72 Samsley v Barnes (1991) DFC 95-100 Sellers v Scrivenger [2010] VSC 320 Singer v Berghouse (1994) 181 CLR 201 Sitch, Re the Will of, (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308 Smith v Woodward (NSWSC, 9 September 1994, unreported) 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 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported)
Texts Cited:	Rosalind Croucher, "Contracts to Leave Property by Will and Family Provision after Barns v Barns [2003] HCA 9" [2005] SydLawRw 12; (2005) 27(2) Sydney law Review 263 New South Wales Law Reform Commission Report 110 (2005) - Uniform Succession Laws: Family Provision
Category:	Principal judgment
Parties:	Sylvester Camernik (Plaintiff) Joseph Reholc (Defendant)
Representation:	Counsel: Mr N Jackson (Plaintiff) Mr G R Graham (Defendant) Solicitors: Antwan Lawyers (Plaintiff) Young & Muggleton Lawyers (Defendant)
File Number(s):	2011/411858