Collins v Mutton - [2012] NSWSC 548

Supreme Court

New South Wales

Medium Neutral Citation: Collins v Mutton [2012] NSWSC 548
Hearing dates: 16 May 2012
Decision date: 24 May 2012
Before: Hallen AsJ
Decision:
(i) Having found that the Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, order that, in lieu of that provision, she is to receive a lump sum of $135,000 out of the estate of the deceased.
(ii) The burden of provision should be borne by the residuary estate, after deducting the costs of the proceedings.
(iii) No interest is to be paid on the lump sum if it is paid within 28 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment.
(iv) The Plaintiff's costs and disbursements, calculated on the ordinary basis, are to be paid out of the residuary estate of the deceased.
(v) The Defendant's costs and disbursements, calculated on the indemnity basis, are to be paid out of the residuary estate of the deceased.
(vi) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005.
(vii) Direct that a complete and legible copy of these reasons for judgment be sent by the Defendant's solicitors to each of the other residuary beneficiaries under cover of letter posted, by registered post, sent no later than 7 days from the date of the reasons for judgment being published.

Catchwords: SUCCESSION - The Plaintiff, a daughter of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant, a son of the deceased, to whom Probate of the deceased's Will was granted - No dispute that adequate and proper provision not made in Will of the deceased and that an order in favour of the Plaintiff should be made - Dispute as to the quantum of the provision and how the burden of that provision should be borne
Legislation Cited: Family Provision Act 1982
Practice Note SC Eq 7
Probate and Administration Act 1898
Succession Act 2006
Uniform Civil Procedure Rules 2005
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Allardice, In re, Allardice v Allardice (1909) 29 NZLR 959
Allen (Dec'd) In re; Allen v Manchester [1922] NZLR 218
Anderson v Teboneras [1990] VicRp 47; [1990] VR 527
Bartlett v Coomber [2008] NSWCA 100
Blore v Lang (1960) 104 CLR 124
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Buckland Deceased, Re [1966] VR 404
Clayton (dec'd), Re [1966] 1 WLR 969
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Crossman and v Riedel [2004] ACTSC 127
Davis v Davis; Davis by Her Tutor Arnold v Davis [2012] NSWSC 201
Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Edgar v Public Trustee for the Northern Territory [2011] NTSC 5
Fiorentini v O'Neill (NSWCA, 4 December 1998, unreported)
Foley v Ellis [2008] NSWCA 288
Frey v Frey [2009] QSC 43
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Haklany v Gittany [2011] NSWSC 1549
Harrigan, Estate of the Late Violet Eugenie - Cowmey v Whibley [2012] NSWSC 291
Hawkins v Prestage (1989) 1 WAR 37
Hughes v National Trustees Executors and Agency Co. of Australasia Pty Ltd (1979) 143 CLR 134
Hyatt v Covalea [2011] VSC 334
Kembrey v Cuskelly [2008] NSWSC 262
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566
McGrath v Eves [2005] NSWSC 1006
MacGregor v MacGregor [2003] WASC 169
McKenzie v Topp [2004] VSC 90
Marks v Marks [2003] WASCA 297
Matthews v Wear [2011] NSWSC 1145
Mayfield v Lloyd-Williams [2004] NSWSC 419
Neil v Jacovou [2011] NSWSC 87
Paola v State Trustees Ltd [2012] VSC 158
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9
Puckridge, Deceased, In the Estate of (1978) 20 SASR 72
Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stiles v Joseph (NSWSC, 16 December 1996, unreported)
Taylor v Farrugia [2009] NSWSC 801
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (NSWSC, 17 May 1996, unreported)
Texts Cited: Cf Davern Wright, Testator's Family Maintenance 3rd ed, 1974
Category: Principal judgment
Parties: Judeth Anne Collins (Plaintiff)
Gregory Victor Mutton (Defendant)
Representation: Mr J Armfield (Plaintiff)
Mr R Colquhoun (Defendant)
Aubrey Brown Partners (Plaintiff)
Cutlers The Law Firm (Defendant)

File Number(s): 2011/216415

Judgment

Nature of the Case

HIS HONOUR: Judeth Anne Collins ("the Plaintiff), who is a daughter of Neville Francis Mutton ("the deceased"), applies for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act"). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. It 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 4 July 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, Gregory Victor Mutton, is a son of the deceased, and the executor named in, and to whom was granted Probate of, the deceased's Will.

There was, initially, a question, in the present case, of provision being sought out of notional estate of the deceased and an order was sought in the Summons that a property at Bateau Bay registered in the sole name of the Defendant, be designated as notional estate of the deceased. However, at the hearing, the Plaintiff did not press this part of her claim as she sought an order that the burden of the provision be borne out of the actual estate of the deceased.

Formal Matters

The following facts are uncontroversial.

The deceased died on 30 November 2010. He was then aged 90 years, having been born in November 1920.

He married Doris Patricia Mutton in about 1943. There were five children of the deceased's marriage, namely the Plaintiff, the Defendant, who was born in January 1953, Paul Francis Mutton, born in May 1948, Trevor Anthony Mutton, born in June 1950, and Richard Keith Mutton, who was born in April 1958. For convenience and without intending undue familiarity or disrespect, I shall refer to family members, other than the parties, by her, or his, first name.

Doris predeceased the deceased, having died in August 2005. However, despite remaining married to the deceased until her death, they had separated, when the deceased met another woman, Gloria Walsh, with whom he lived until the mid-1990's. (There is some dispute as to the date when the deceased and Gloria met and when they separated, but nothing turns on this.)

When Doris suffered a stroke, in about 1999, she moved back into the deceased's property at Long Jetty, which was then occupied by the deceased and Richard. The real property that she then owned (in which she had lived) was sold and the proceeds of sale were divided equally between Doris and the deceased.)

Following her death, the deceased and Richard continued to live together, until about September 2009. During this period, Richard was the deceased's primary carer (to the extent that he required care). Richard has continued to live in the Long Jetty property since then.

Doris' estate (said by the Defendant to have been approximately $360,000) was divided between her five children equally. (There is no other evidence of the nature, or value, of her estate.)

The deceased left a Will that he made on 19 May 2010, Probate of which was granted, on 23 February 2011.

The deceased's Will, relevantly, provided for a devise of the deceased's real property at Long Jetty to Richard; a bequest of the deceased's share in certain racehorses (of which there were three), to the Defendant absolutely; and the rest and residue of his estate to be divided, equally, between his five children.

In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased's actual estate, at the date of death, was disclosed as having an estimated, or known, gross value of $409,286. The actual estate was said to consist of the real property at Long Jetty ($220,000) and funds in bank, or in financial institutions, on deposit ($179,286). It also revealed that the deceased held an interest, as tenants in common in unequal shares, with the Defendant, in a number of racehorses ($10,000). (I have omitted any reference to cents and shall continue to do so.)

There were some liabilities of the estate, namely an amount owed to the Australian Taxation Office ($12,314) and two other debts ($3,783 and $2,372 respectively).

In an affidavit sworn on 4 May 2012, by the Defendant, the value of the gross distributable actual estate was estimated to be $423,648. The actual estate is said to currently consist of the real property at Long Jetty ($220,000) cash in bank ($195,648) and the deceased's interest in other racehorses (being the progeny of the racehorses previously owned by the deceased, but sold by the Defendant, since his death) ($5,000). (There may be a small amount of interest accrued, since 7 February 2012, on the cash in bank. However, there was no evidence about the amount of interest that has accrued.)

The Defendant also states that liabilities, totalling $55,240, have been paid out of the estate of the deceased. These liabilities were paid to the Australian Taxation Office ($12,314), payment of accounts for horses ($34,712), rates in respect of the Long Jetty real property ($1,162), legal costs of the estate ($7,051) and legal costs and disbursements in defending claim ($35,082).

In calculating the value of the actual 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 her costs be paid out of the estate of the deceased, whilst the Defendant, irrespective of the outcome of the proceedings, normally, will be entitled to an order that his costs be paid out of the estate.

The Plaintiff's costs of the proceedings, calculated on the ordinary basis, have been estimated to be $39,757 (inclusive of GST and upon the basis of a two day hearing). Those costs and disbursements, calculated on the indemnity basis, were estimated to be $52,708. However, since the proceedings were completed in one day, the costs and disbursements, were reduced to $45,708, if calculated on the indemnity basis, and to $32,757, if calculated on the ordinary basis.

The Defendant's costs and disbursements of the present proceedings, calculated on the indemnity basis (inclusive of GST and upon the basis of a one day hearing), were estimated to be $54,282. Of this amount, $35,082 has been paid out of the deceased's estate on account of costs and disbursements, leaving about $19,200 to be paid out of the actual estate.

The parties were able to agree that the estimated costs and expenses of selling the Long Jetty property, if that occurred, would be $8,600. I was invited to use that estimate in calculating what would be available to be distributed out of the actual estate of the deceased and if the Long Jetty property was required to be sold.

The parties accept, for the purposes of the hearing, that I should determine the matter upon the basis that the actual net distributable estate, after the payment of costs and expenses of sale of the Long Jetty property and the legal costs of the proceedings, will be about $363,091. This amount has been reached by deducting from the value of the gross actual estate ($423,648), the Plaintiff's estimated costs and disbursements, calculated on the ordinary basis for a one day hearing ($32,757), the balance of the Defendant's costs and disbursements, calculated on the indemnity basis ($19,200), and the costs and expenses of sale of the Long Jetty property ($8,600).

If the Long Jetty property were not ordered by the court to be sold, the actual estate would be made up of the Long Jetty property ($220,000) and the balance of the cash ($151,691). It follows, as Richard receives the Long Jetty property absolutely, that each child's share of residue would be $30,338.

As stated, the Defendant, in the Summons, identified certain real estate at Bateau Bay as property that should be designated as notional estate. The deceased purchased that property, for the Defendant, in about June 2009. An order was, initially, sought that the Bateau Bay property should be designated as notional estate.

During submissions, Mr JE Armfield, counsel for the Plaintiff, conceded, and Mr R Colquhoun, counsel for the Defendant agreed, that the Bateau Bay property could not be designated as notional estate because even though it may have been a transaction that took effect within three years before the date of the death of the deceased, there was no evidence that it 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.

In view of the parties' agreement, I can avoid any consideration of the notional estate provisions of the Act.

The only persons described as an eligible person, within the meaning of the Act, are the Plaintiff, the Defendant, and their brothers, each of whom is a child of the deceased. The Defendant gave notice, on more than one occasion, of the Plaintiff's claim to each of his siblings, none of whom has commenced proceedings. The Defendant, also, has not commenced proceedings under the Act.

The person with whom the deceased lived for a period of time, identified as Gloria Walsh (also known by the surname "Rawlings"), may be an eligible person. Neither of the parties knows of her present whereabouts.

The Defendant's solicitor, Mr Stephen Leeds Cutler, in March 2011, published the usual notice of distribution requiring any person who had a claim upon the estate of the deceased to send particulars of the claim to the Defendant, care of his firm. He received no claims following the publication of that notice.

Mr Cutler published an advertisement, on 3 August 2011, in the Central Coast Express Advocate, requesting anybody knowing the whereabouts of Gloria Philomena Walsh (also known as Gloria Philomena Rawlings) of Long Jetty to contact his firm. The address and telephone number of his firm was disclosed in the advertisement. No person has come forward and no information about Ms Walsh has been received following the publication of the advertisement.

Mr Cutler has also carried out a White Pages search, at different times, under the name "G Rawlings" and under the name "G Walsh", but neither of these searches has revealed any person who knew the deceased.

In the circumstances, I am satisfied that I may disregard the interests of Ms Walsh (a.k.a. Ms Rawlings), 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, upon the basis that service upon her is impracticable in the circumstances of the case.

Because each of the parties, in her, and his, written submissions, seeks an order that the burden of any provision in favour of the Plaintiff be borne out of the proceeds of sale of the Long Jetty property, which is devised to Richard absolutely, it is necessary to refer to the evidence of service of documents on Richard.

The prescribed notice of claim was sent to Richard, by post, on, or about, 26 July 2011, but was returned. It was re-sent, by registered post, on 5 September 2011. He appears to have signed for the letter containing the notice of claim on 8 September 2011.

The evidence also reveals that on a number of other occasions, other letters were sent to Richard by registered post. There were letters to him dated 20 October 2011, 3 November 2011, and 12 January 2012. In the letter of 12 January 2012, he was encouraged to give strong consideration to transferring the Long Jetty property to the Plaintiff in order to procure a settlement of her claim and to save further legal costs incurred by the estate and allow a quicker distribution of the estate. He was advised that, if he failed to come forward and provide evidence of his circumstances, the Court may disregard his interest in the subsequent distribution of the estate.

Despite all of the attempts to involve him in the proceedings, Richard has neglected, or refused, to disclose his financial, and material, circumstances. He has also not made any claim under the Act on the estate.

However, he signed a letter, dated 29 March 2012, to the Defendant's solicitor, a copy of which letter forms part of the evidence read in the proceedings. Importantly, the letter was not read to prove the truth of its contents (other than in relation to matters not in dispute), but to establish that Richard had knowledge of the proceedings.

(A letter, in almost identical terms to the letter signed by Richard, was signed by each of Paul and Trevor, and a copy of each letter was read (on the same basis) in the proceedings.

I shall not refer to the contents of this letter in any detail, other than to note that each signatory does not consent to the orders proposed by the Plaintiff and/or the Defendant (to which I shall refer).

In addition, a letter dated 2 May 2012, from the Defendant's solicitor, to each of Richard, Paul and Trevor, informing him of the time and date of the hearing was tendered, together with evidence of delivery of the letter to each of them.

I am satisfied that Richard has notice of the Plaintiff's claim and has chosen not to participate in the proceedings by assisting the Defendant, or otherwise by serving any evidence in support of, or in opposition to, the claim made by the Plaintiff. In particular, I do not know anything about his financial resources (including earning capacity) and financial needs, both present and future.

I should also note that Trevor and Paul each swore one affidavit that was read in the proceedings by the Plaintiff. Neither was cross-examined by the Defendant and neither included, in that affidavit, any information about his financial resources (including earning capacity) and financial needs, both present and future.

Other Matters

On 5 October 2007, the deceased executed a General Power of Attorney in favour of Paul, which was to operate immediately and which was not subject to any identified conditions and limitations. Paul accepted the appointment as an attorney on the same date.

The deceased executed an Enduring Power of Attorney on 19 May 2010, in which he revoked the previous Power of Attorney and appointed the Defendant to be his attorney. The Defendant accepted the appointment as an attorney on the same date.

There is evidence, in his affidavit, that the Defendant withdrew $30,000 on the day of the deceased's death. The Defendant also said, in the affidavit, that he used the amount to pay for the deceased's funeral ($4,440), a wake, and "to pay an account to L Jeffriess racing". He did not go any further in his affidavit, although in an earlier paragraph he referred to a conversation in which the deceased was alleged to have told him to withdraw that amount and give it to the Defendant's wife.

In his oral evidence, the Defendant gave evidence that about $600 was spent on the wake and about $300 to pay the account of L Jeffriess racing. He said that he gave the balance (about $24,700) to his wife because of an instruction by the deceased that he should do so, given before the money was withdrawn.

Arguably, the amount given to the Defendant's wife could be regarded as part of the deceased's estate that has been distributed since the death of the deceased. However, no prior notice was given to the Defendant, or to his wife, that any submission would be made to have the court designate that amount as notional estate. (I do not say that critically as there is no evidence that the Plaintiff was informed that any amount had been paid to the Defendant's wife.)

In the circumstances, I shall refer to the amount as a benefit received by the Defendant's wife.

There is some dispute with Paul about expenses for the racehorses previously owned and whether he has a liability in respect thereof. This matter was not the subject of investigation and I am unable to determine the dispute.

There was also cross-examination of the Defendant on amounts withdrawn from the deceased's bank account(s) between 2007 and his death. In the period until August 2009, whilst the Defendant might have attended with the deceased when funds were withdrawn, he denied that he received the amounts withdrawn. There was no evidence to the contrary presented.

In relation to the period between August 2009 and the date of the deceased's death, I am not entirely satisfied with the Defendant's evidence, which was far from clear, about moneys withdrawn. However, it was not suggested to the Defendant, in cross-examination, or in submissions, that the Defendant had misappropriated any of the deceased's money. Accordingly, I do not express any view upon how moneys withdrawn from the deceased's account between the date when the deceased went to live with the Defendant and the date of the deceased's death (other than in respect of the amount of $30,000 withdrawn on the day of the deceased's death).

The Statutory Scheme - The Act

I shall discuss the statutory scheme that is relevant to the facts of the present case even though there are a number of important matters that were accepted by the Defendant. 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 as well as to the beneficiaries, I shall repeat the principles. It is important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in the application.

I also remember that even though the value of the estate is quite small, all the relevant circumstances have to be considered before the court's decision is made. As has been said, "the smallness of the estate neither excludes jurisdiction nor full consideration": Re Clayton (dec'd) [1966] 1 WLR 969 at 971-2, per Ungoed-Thomas J.

The key provision is s 59 of the Act. The court must consider, first, whether the applicant is an eligible person within the meaning of s 57 (s 59(1)(a)). There are six categories of persons by, or on whose behalf, an application may be made, one of which is "a child of the deceased person": s 57(1)(c) of the Act. Clearly, that phrase is expressive of the person's status, as well as his, or her, relationship to the deceased.

The Act does not confine the power to make a family provision order for the benefit of a child under the age of 18. There is no age limit placed on a child making an application or an order being made in her, or his, favour.

Then, relevantly, if eligibility is established, the court must determine whether adequate provision for the proper maintenance, education and 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 it is satisfied of the inadequacy of provision, that the court considers whether to make a family provision order (s 59(2)). It may have regard to the matters referred to in s 60(2) of the Act. In this way, the court carries out a two-stage process.

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

"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34], per Basten JA, with whom Allsop P and Ipp JA agreed, 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 are the words 'maintenance' and 'advancement in life' defined. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at [115], 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:

"[18] "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, and 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:

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

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

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

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

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

"[50] 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 if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."

In Vigolo v Bostin at [114], Callinan and Heydon JJ said:

"[T]he use of the word "proper"...implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."

The first stage of the process provided for by s 59(1)(c) has been described as "the jurisdictional question": Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 at 208-209, per Mason CJ, McHugh and Deane JJ. At this stage, the court will consider whether it can make an order for provision for the maintenance, education and advancement in life of a particular applicant.

Whether the applicant has a 'need' is a relevant factor at the first stage of the enquiry. It is an element in determining whether 'adequate' provision has been made for the 'proper' maintenance education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 at [42] (Tobias JA, with whom Beazley and Hodgson JJA agreed).

In Devereaux-Warnesv Hall [No 3] at [81]-[85], Buss JA said, in respect of the first stage of the process:

"[81] 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.

[82] '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.

[83] 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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It can be seen that s 60(2) provides some guidance, by enumerating 15 specific matters 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, if so, the nature of any such order. The section does not prioritise the catalogue of matters to which regard may be had. The weight of such of the matters specified in the section, to which regard may be had, will depend upon the facts of the particular case. There is no mandatory command to have regard to any of the matters enumerated. None of the matters differentiate in their application between classes of eligible person. Similarly, there is no distinction based on gender.

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

Furthermore, having regard to 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. (The word "beneficiaries" is not defined in the Act.) Importantly, also, many of the matters in sub-sec (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).

Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently. There is no time limit in respect of some of the matters to which, in any particular case, the court may have regard (e.g. sub-ss (b), (f), (h), (j), (k), (m), (n)).

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. In Singer v Berghouse (at 209-210) it was said, per Mason CJ, Deane and McHugh JJ:

"... 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 in Vigolo v Bostin at [122], Callinan and Heydon JJ said:

"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 the potential beneficiaries must be taken into account and weighed with all of the other relevant factors."

Section 61 of the Act provides:

"(1) In determining an application for a family provision order, the Court may 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.

(2) 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 63(5) of the Act, 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.

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 which the court thinks fit" (s 65(2)(f) 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).

In Fiorentini v O'Neill (NSWCA, 4 December 1998, unreported), the Court of Appeal (comprising Mason P, Handley JA and Fitzgerald AJA) said, at 11, that "[T]o avoid confusion, and preclude debate about the status of a lump sum provision as a legacy, it is advisable that the Court should address the question of interest expressly. Cf Davern Wright, Testator's Family Maintenance 3rd ed, 1974, p162-p164".

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

Section 99(1) of the Act provides that the Court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit.

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

Applicable Legal Principles

Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the previous legislation, they are equally apt in a claim such as this one.

Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, in relation to the former Act, that it is not appropriate, to endeavour to achieve a 'fair' disposition of the deceased's estate. It is not part of the court's role to achieve some kind of equity between the various claimants. The court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Rather, the court's role is of a specific type and goes no further than the making of 'adequate' provision, in all the circumstances, for the 'proper' maintenance, education and advancement in life of an applicant.

In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the court to be vigilant in guarding "against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant".

The court's discretion is not "untrammelled", or to be exercised according to "idiosyncratic notions" of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation (Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9, per Dixon CJ at 19); McKenzie v Topp [2004] VSC 90, per Nettle J at [63]). Freedom of testamentary disposition remains a prominent feature of the Australian legal system.

Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales, per Dixon CJ at 19; Walker v Walker (NSWSC, 17 May 1996, unreported); Vigolo v Bostin, per Gleeson CJ at [11]; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.

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

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

In relation to a claim under the Act by an adult child of the deceased, the following matters, by way of general principle, should also be noted:

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

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

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

(d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant. (Re Buckland Deceased [1966] VR 404 at 411, per Adam J; Hughes v National Trustees Executors and Agency Co. of Australasia Pty Ltd [1997] HCA 2; (1979) 143 CLR 134 at 148, per Gibbs J; Goodman v Windeyer (1980) 144 CLR 490 at 498, 505, Per Murphy J). But the Act does not permit orders to be made to provide for the support of third persons to whom the applicant, however reasonably, wishes to support, where there is no obligation to support such persons. (Re Buckland Deceased at 412, per Adam J; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537, per Holland J in Equity; Mayfield v Lloyd-Williams).

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

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

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

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

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

(j) The lack of reserves to meet demands, particularly of ill health, which become more likely with the advancing years is a relevant consideration: MacGregor v MacGregor [2003] WASC 169, per Templeman J at [182]; Crossman and v Riedel [2004] ACTSC 127, per Gray J at [49]. Likewise, financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297, per Wheeler J at [43].

(k) In a small estate, as this one is, it is important to remember what Salmond J said in In re Allen (Dec'd);Allen v Manchester [1922] NZLR 218, at 221:

"Applications under the Family Protection Act for further provision of maintenance are divisible into two classes. The first and by far the most numerous class consists of those cases in which, owing to the smallness of the estate and to the nature of the testamentary dispositions, the applicant is competing with other persons who have also a moral claim upon the testator. Any provision made by the Court in favour of the applicant must in this class of case be made at the expense of some other person or persons to whom the testator owed a moral duty of support. The estate is insufficient to meet in full the entirety of the moral claims upon it, in the sense that if the testator possessed more he would have been bound to do more for the welfare of his dependants. In such a case all that the Court can do is to see that the available means of the testator are justly divided between the persons who have moral claims upon him in due proportion to the relative urgency of those claims."

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

In Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, Fullagar and Menzies JJ said (at 135):

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

Nor is the purpose of the Act to redress the applicant's hurt feelings, or sense of grievance, felt because, in the events that happened, no provision for her, or him, was made by the deceased.

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

Competing Claims of Beneficiaries

In this case, I am satisfied that notice of the Plaintiff's application and of the court's power to disregard his interests has been given to each of Richard, Trevor and Paul. However, it should be noted that the "interests" referred to in s 61(1) of the Act that the Court may disregard are the interests as an eligible person (i.e. person by, or in respect of whom, an application for a family provision order may be made) who has not made a claim for a family provision order under the Act, not his, or her, interests as a beneficiary of the deceased's estate.

There can be no doubt that, in reaching the ultimate conclusion that is to be made in cases under the Act, the age, capacities, means, and competing claims, of all of the beneficiaries and others who have a claim upon the bounty of the deceased may be taken into account and weighed with all of the other relevant factors.

In Foley v Ellis [2008] NSWCA 288, Sackville AJA, with whom Beazley JA agreed, said:

"[87] It is for this reason that the joint judgment in Singer v Berghouse held at [15] that the determination of the first stage of the process:

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

[88] This language strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act.

[89] The point was made explicitly by Callinan and Heydon JJ in Vigolo v Bostin at [122] (231):

Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question of whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances ... 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. (Emphasis added.)

Similarly, in Palmer v Dolman [2005] NSWCA 361, Ipp JA held (at [115]) that the circumstances to be taken into account in that case included the fact that none of the beneficiaries nominated in the deceased's will (other than the applicant and one other beneficiary) "had any claim on [the testator's] bounty or demonstrated need".

[90] In the present case, the learned primary Judge referred to the financial and personal circumstances of Peter and Vivienne and carefully calculated their entitlements under the will of the Deceased. Nonetheless, his Honour made it clear that the appellant had to "establish her claim upon its own merits". He specifically said that, while the competing claims of Peter and Vivienne might have reduced any entitlement the appellant otherwise could have established, "those competing claims cannot have the effect of enhancing [her] claim". That observation is not consistent with the statutory requirement that the competing claims of all potential beneficiaries must be taken into account in determining whether the application has been left without adequate provision for her proper maintenance and advancement in life.

[91] This conclusion is enough to establish an error in the reasoning of the primary Judge that vitiates the exercise of his Honour's discretionary judgment on the jurisdictional question. ..."

To some extent, the views expressed by Sackville AJA do not strictly apply in claims brought under the Act because of s 60(1), which states:

"(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."

The opening words of the section allow the court to have regard to the matters referred to in sub-section (2), but do not provide a positive command to do so.

I have earlier referred to s 60(2), some of the sub-sections of which, specifically, refer to "any beneficiary of the deceased person's estate", particularly, s 60(2)(b), (d), (f), (n) and, perhaps (p) of the Act. (Before proceeding further, I note, in relation to "beneficiary", the reasons for judgment of Ward J in Estate of the Late Violet Eugenie Harrigan - Cowmey v Whibley [2012] NSWSC 291. Gratefully, I adopt what her Honour said in that case without repeating it.)

As stated above, s 60(1) does not provide a mandatory command, "to have regard to" the matters set out in sub-section (2) in determining either of the matters set out in (a) and (b). It provides a directory, or catalogue, of matters each of which may be considered by the court. It will be inevitable that some of the matters specified could be irrelevant, in any event, in a particular case.

No doubt, the defendant, as the executor, has a duty to seek to obtain details in respect of such matters, and, relevantly to this case, of each beneficiary's financial resources (including earning capacity) and financial needs, both present and future, if the defendant can. However, there is no statutory mandate requiring a beneficiary to provide such details to the executor or to the court. A beneficiary is entitled to elect not to participate in the proceedings, at all, and to remain silent in relation to all matters, and in particular, as to his, or her, financial resources (including earning capacity) and financial needs, both present and future. In addition, a beneficiary may expressly decline to submit that he, or she, has a competing financial need and provide no evidence of financial resources or needs.

Where, as in this case, some of the beneficiaries have declined to provide such evidence to the Defendant, the important question is what inference, if any, should be drawn from the beneficiary's silence?

If satisfied that the beneficiary is aware of the proceedings, and has been informed that the court may have regard to, for example, evidence of his, or her, financial resources (including earning capacity) and financial needs, both present and future, and if the beneficiary does not provide that evidence, the court may assume that he, or she, does not wish his, or her, financial resources (including earning capacity) and financial needs, both present and future, to be taken into account: Matthews v Wear [2011] NSWSC 1145, at [45], per Macready AsJ.

Then, the question is what flows from that beneficiary's silence? The answer is, in those circumstances, that the court is entitled to infer that the beneficiary has adequate resources upon which to live and that he, or she, does not wish to advance a competing financial claim upon the bounty of the deceased: Anderson v Teboneras [1990] VicRp 47; [1990] VR 527 at 535, per Ormiston J; Frey & Anor v Frey & Anor (as personal representatives of the estate of HE Frey, dec'd) & Anor [2009] QSC 43, at [148], per A Lyons J; Edgar v Public Trustee for the Northern Territory and Anor, at [54], per Kelly J; Neil v Jacovou [2011] NSWSC 87 at [248] per Slattery J; Haklany v Gittany & Ors [2011] NSWSC 1549 at [49] - [51] per Slattery J; Hyatt & Anor v Covalea [2011] VSC 334, at [128], per Zammitt AsJ; Graham Davis v Ian Andrew Davis; Robyn Davis by Her Tutor Sandra Arnold v Ian Andrew Davis as the executor of the estate of the late John Joseph Davis [2012] NSWSC 201, at [80], per Slattery J; Paola v State Trustees Ltd [2012] VSC 158, at [46], per Zammitt AsJ.

In expressing this view, I do not depart, entirely, from what was said by Sackville AJA in Foley v Ellis. The claims of a beneficiary, as the chosen object of the deceased's testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, and also as a person whose interest in the estate may bear the burden of the order made in favour of the applicant are to be borne in mind. (It is to be remembered that the court must specify, amongst other things, 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: s 65(1)(c) of the Act).

Where there is no evidence from the beneficiary, it is those claims (i.e. as the chosen object of the deceased's testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, or as a person whose interest in the estate may bear the burden of the order made in favour of the applicant), rather than any financial claim upon the bounty of the deceased, that should be considered. Put another way, and using the oft-quoted words of Salmond J in Re Allen (deceased); Allen v Manchester, at 220, the court is not able to have regard to "the means" of the beneficiary, but the court may still consider "the deserts ... and relative urgency of the various moral claims upon [the deceased's] bounty".

The court will, thereby, give due regard to "what the testator regarded as superior claims or preferable dispositions" as demonstrated by his, or her, will: Pontifical Society for the Propagation of the Faith v Scales at 19, per Dixon CJ. In this way, too, the court gives weight to the principle of freedom of testation referred to earlier.

Before leaving Foley v Ellis, one other aspect should be mentioned. Sackville AJA referred to the primary Judge making it clear that the appellant had to "establish her claim upon its own merits" and that the primary Judge had stated that "while the competing claims of Peter and Vivienne might have reduced any entitlement the appellant otherwise could have established, those competing claims cannot have the effect of enhancing [her] claim". His Honour considered that this observation was "not consistent with the statutory requirement that the competing claims of all potential beneficiaries must be taken into account in determining whether the application has been left without adequate provision for her proper maintenance and advancement in life".

In my view, the primary Judge's statement meant no more than what has been made clear by many cases - namely, that the financial resources (including earning capacity) and financial needs, both present and future, of a beneficiary, may have the effect of reducing, or even extinguishing, what may be considered to be adequate and proper provision for an applicant, particularly in a small estate, but that the resources and lack of needs of a competing claimant do not have the effect of increasing the applicant's entitlement to more than what the court considers is adequate and proper provision in all the circumstances of the case.

With great respect, it is unlikely that Sackville AJA intended to overturn the long line of cases which predated Foley v Ellis, particularly since none of the earlier cases quoted, to which I have referred, were specifically mentioned in that part of his Honour's reasons for judgment.

Relevant Facts

I set out the additional facts 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 of the Act.

(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 daughter of the deceased. She lived at home with her parents and brothers until she was about 20 years of age. She says that, during this period, the deceased did not acknowledge, in any major way, Christmas day celebrations or the birthday of any of his children and that no presents were given on any of these occasions. The deceased is said to have worked almost the whole week and that they did not spend much family time with him. However, other members of the family shared a good relationship.

The Defendant describes the deceased as "a hard man" but as a father who loved all of his children. The Defendant says that he especially loved the Plaintiff "because she was his only daughter".

The Plaintiff also stated that she "distanced herself from the deceased because he hit me and locked me out of the family home when I was a teenager and when I was in my early 20's he bashed me, including punching me in the face with a closed fist".

The Plaintiff married in January 1965 and after the marriage she did not see the deceased as neither visited the other for some time. The deceased did not get along with the Plaintiff's husband, William Collins. William died in December 2002.

Although the Plaintiff said in an affidavit that she saw the deceased on many occasions after 1970 until his death this was not entirely accurate. She said in her oral evidence that between 1965 and 1996 she did not see him very often.

She referred to one particular occasion when she stayed with the deceased and Doris whilst he was on a holiday in Toowoon Bay. He paid for her accommodation.

Apart from this event, she referred, in an affidavit, to another occasion, in 1980, when she visited the deceased at the Long Jetty property, but she only stayed about five minutes, because the deceased asked her to leave because Gloria had arrived.

She then said, in her oral evidence, that in the period between 1996 and 2000, she saw him if she happened to bump into him in the street or at the local hotel.

In the period between 2000 and 2004, she saw the deceased more often on the occasions when she would go, with her daughter, Joanne, to collect Doris to take her shopping. Although Joanne went each week, on some occasions the Plaintiff did not go at all. On other occasions when she did accompany Joanne, she only saw the deceased sometimes.

The Plaintiff invited the deceased to her husband's 50th birthday celebrations and she says "there was no animosity between the deceased and I (sic) on this occasion".

Following the death of Doris in August 2005, the Plaintiff invited the deceased to her home for a meal on two occasions, on one of which, Richard was present. On one of these occasions, the Plaintiff gave him some food to take home, for which the deceased thanked her. She said that she "might have seen" the deceased "two or three times at The Entrance".

In the period between August 2005 and the deceased's death in late November 2010, she spoke to the deceased four or five times by telephone.

The Defendant broadly accepted that the relationship of the Plaintiff and the deceased was not particularly close but that the principal cause of the relationship was the deceased's dislike of the Plaintiff's husband.

It is to be remembered that the Plaintiff, with her siblings, is an equal residuary beneficiary named in the deceased's Will. This, perhaps, demonstrates, that the deceased did not consider her conduct to be relevant to reducing her claim on his bounty.

Yet, I must remember that on the Plaintiff's own evidence, her relationship with the deceased was not as close as it otherwise might have been and that she did not see him as often as she might have done if their relationship had been closer.

(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, what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities.

Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal, obligation to the Plaintiff imposed upon him by statute or common law.

However, an obligation, or responsibility, to make adequate provision for the Plaintiff's proper maintenance and advancement in life is recognised in the case of a child. The fact that the Plaintiff was financially independent of the deceased for many years before his death is a relevant consideration in determining the extent of any obligation or responsibility owed to her.

There was no dispute that Richard lived with the deceased since about 1999 and that he was the primary carer of the deceased when care was required.

In August 2009, the deceased moved out of his unit at Long Jetty and moved in with the Defendant and his family at the home in Bateau Bay, which the deceased purchased for the Defendant. Even this occurred, the Defendant and the deceased had a close relationship.

Paul, who swore an affidavit read in the Plaintiff's case, is the second child of the deceased. He left home when he was 16 years of age, at which time his relationship with the deceased ceased. He resumed a relationship with the deceased some six years later and worked, part time, for the deceased as a bookmaker's clerk for two years, following which the relationship ceased again. He had no further contact with the deceased for the next twenty-nine years.

Paul has been married to his wife for 42 years and has a son who is 22 years of age who lives with him.

Trevor, who also swore an affidavit read in the Plaintiff's case, does not disclose the nature of his relationship with the deceased. However, as stated, he, too, is one of the residuary beneficiaries.

In all the circumstances, I am satisfied that the Defendant and Richard each had a closer relationship with the deceased than did the other children.

(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 this earlier in this judgment. On any view, on the basis of the agreement of the parties, the value of the deceased's actual estate is small. At the hearing, it was accepted that it is not possible to designate the Bateau Bay property as notional estate.

(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's only property is furniture ($3,000) and money in bank ($246). She has a Centrelink debt ($575). She rents her home.

The Plaintiff receives an age pension, which includes a pension supplement and rental assistance, totalling $875 per fortnight. She receives $280 per fortnight from her son, Craig, with whom she lives. They share the cost of food, cleaning products, electricity and shared toiletries. She pays the telephone expenses. Each pays her or his own other personal expenses, including for medications.

The Plaintiff estimates her expenses total about $902 per fortnight. Whilst this suggests some surplus of income over expenditure, that expenditure does not include for such things as transport, clothing or other items of personalty. I accept that she spends all that she receives and that there is no surplus of income available to her.

I accept, also, that, at her age, she does not have any earning capacity.

The Plaintiff says that she requires a capital sum which she would use to purchase accommodation in an over 50's Mobile Home Village for herself and for her son, Craig. Any surplus, would be used to pay the rental fees and also as a contingency fund for general day-to-day expenses, including medical expenses. She accepts that she may still receive some rental assistance if she purchased a mobile home, the costs of which appear to range between $135,000 and $285,000.

The Plaintiff says that she has never previously purchased real property. Her evidence is that she has always lived in rented accommodation.

She gives no evidence of the nature of her present accommodation. There is no evidence, also, that her tenure in the accommodation is insecure, or that it is unsatisfactory to meet her current, or future, needs.

It is clear that if the Plaintiff received the Long Jetty property, she would be unable to live in it because she would be unable to afford to maintain it and pay the rates. She states that she would sell it and purchase the alternative accommodation.

It was submitted that the Plaintiff should receive a lump sum sufficient to enable her to purchase accommodation, as well as a lump sum to cater for the exigencies of life. The Plaintiff submits that she should receive the Long Jetty Property as well as an amount that equates to one-fifth of the value of the residuary estate. She submits that the balance of the residuary estate should be divided as stated in the deceased's Will.

There is no suggestion that her pension will be reduced if she received enough to purchase accommodation and was left with a capital sum for exigencies of life.

The Defendant does not dispute that the Plaintiff should receive provision out of the estate. The Defendant's written submissions included the following:

"5 The Defendant believes an appropriate resolution is;

(i) an order that in addition to the provision made for the Plaintiff in the deceased's Will she receive the property known as 5/60 Fraser Road, Long Jetty;

(ii) the Defendant's costs to be paid out of the estate on an indemnity basis;

(iii) the Plaintiff's costs to be paid out of the estate on an appropriate basis;

(iv) the deceased's share in racehorses is still to pass to Gregory Victor Mutton (the current value is about $5,000);

(v) order the residue of the estate is to be paid to the Plaintiff, Paul Mutton, Trevor Mutton and Richard Mutton."

At the hearing, when I referred counsel to sub-paragraph (v) and asked whether the Defendant was prepared to have his share of the residuary estate divided between his siblings, I was informed that the Defendant's name had been omitted from that paragraph by mistake.

The Defendant set out his financial circumstances as follows. He has been unemployed since about 2007 because of, he says, a "lack of skills and experience". He receives unemployment benefits of approximately $300 per fortnight, which amount varies depending upon his wife's income. His wife works 20 hours per week and earns about $470 per week after tax. Two of his children (and his and her children and child) live with the Defendant and his wife. I do not know anything about the financial and material circumstances of each of them.

The Defendant sets out his financial resources as follows:

Assets
(a)
Family home at Bateau Bay
$495,000 - $550,000
(b)
Car
$ 7,000
(c)
Household items & furniture
$ 30,000
(d)
St George Bank account (Gregory)
$nil/nominal
(e)
Westpac Bank account (Debra)
$ 11
Total
$532,011 - $587,011
Liabilities
(a)
Repairs and maintenance on family home:
$ 12,900
(b)
2 credit card debts (with his wife):
$ 30,000
(c)
Council rates/water:
$ 1,600
(d)
Energy Australia:
$ 682
Total:
$ 45,182

His wife has a small amount of superannuation (about $2,000).

As stated previously, the Defendant did not refer to the payment of $24,700 made to his wife following the death of the deceased. There was no evidence of how that amount was spent.

The beneficiary, Trevor did not provide details of his financial resources (including earning capacity) and financial needs, both present and future.

The beneficiary, Paul did not provide details of his financial resources (including earning capacity) and financial needs, both present and future.

The beneficiary, Richard, did not provide details of his financial resources (including earning capacity) and financial needs, both present and future. He has not sworn any affidavit read in the proceedings.

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

The Plaintiff lives with her son, Craig, who was born in July 1965 and is now 46 years of age.

Craig receives a Centrelink pension, including a pension supplement and rent assistance, totalling $835 per fortnight. I have previously set out his contribution to the household.

There is no evidence of his assets or liabilities.

Craig suffers from schizophrenia (obsessive compulsive disorder). He requires the Plaintiff's assistance in monitoring his behaviour, keeping him organised and taking him shopping.

(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 suffers from post traumatic stress disorder following an armed hold-up which occurred whilst she was working. She does not like taking the anxiolytic and anti-depressant medication that she might take, because she finds that such medication does not help her.

There is no evidence as to the effect of the condition on her activities of daily living. Nor is there any suggestion that her life expectancy has been reduced because of this condition.

There was oral evidence given by the Plaintiff that she received victim's compensation of about $95,000 - $96,000 in about 2001. She says that she spent the amount received on living expenses and on her husband's funeral.

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

The Plaintiff is presently 66 years of age having been born in August 1945.

(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 did not make any financial, or other, contributions to the acquisition, conservation and improvement of the estate of the deceased. She may have made a very modest contribution to his welfare on the occasions that she saw, or spoke with, him and when she provided him with food on the occasions that she invited him for a meal.

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

The deceased made no provision, during his lifetime, for the Plaintiff. She does receive one-fifth of the deceased's residuary estate unless an order in her favour under the Act is made.

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

There is no evidence of the testamentary intentions of the deceased other than his Will, probate of which was granted.

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

The deceased did not maintain the Plaintiff, either wholly or partly, before his death. There is some evidence that in the early years of her marriage, he might have given her some small amounts of money.

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

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

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

The Act does not limit the consideration of "conduct" to conduct towards the deceased. I have dealt with this aspect earlier in these reasons.

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

Each of the other beneficiaries is a chosen object of the deceased's bounty. Each is a child of the deceased. I have received some evidence about the conduct of each towards the deceased. As stated previously, the gift made to the Defendant, prior to the deceased's death of the Bateau Bay property, and the devise of the Long Jetty property for Richard in the deceased's Will, suggests a closer relationship than the deceased had with his other children.

The Plaintiff acknowledges that, following the death of Doris, Richard was the deceased's primary carer (although she says that he received a carer's pension). I do not take this to mean that during this period, the deceased was unable to care for himself. I accept that the deceased was able to care for himself, although it may be that he needed assistance at times.

The deceased lived with the Defendant and his family between September 2009 and one month before his death. During part of this period, the Defendant and members of his family would assist the deceased with his daily care, medication, cooking, washing and personal care.

(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

A little more than one year before he died, the deceased purchased the Bateau Bay property for Gregory. The purchase price of the Bateau Bay property was $520,000. The deceased also paid stamp duty of $18,910 and legal costs on sale of $2,788.

The real estate at Bateau Bay was, in June 2011, estimated to have a value of between $525,000 and $550,000. The current estimate of value by the Defendant is between $490,000 and $520,000. (The parties agreed that I should assume a current value of $505,000.) The Defendant estimates that it will cost about $12,900 to carry out required maintenance and repairs to that property. The parties agreed that I should regard the Bateau Bay property as having a current net value of about $490,000.

Had the deceased not done so, it is possible that the amount expended by him in mid 2009 (in total, $541,698) may have formed part of his estate.

I have earlier referred to the amount of $24,700 given by the Defendant to his wife, from the amount of $30,000 withdrawn out of the deceased's bank account on the day of his death.

Trevor acknowledges that he received "a small amount" from the deceased, only some of which he repaid. He says that the deceased did not require Trevor to repay the balance. Trevor does not identify how much, or when, he received the amount from the deceased.

Determination

As stated, there is no dispute that the Plaintiff is an eligible person within the meaning of that term in s 57(1)(c) of the Act. As her proceedings have been commenced within the time prescribed by the Act, the first question for determination is whether, at the time when the court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made, 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.

Under the terms of the deceased's Will, the Plaintiff will receive one-fifth of the residuary estate which has been estimated to be about $30,000.

The Defendant accepts that adequate provision was not made for the Plaintiff. This concession is properly made.

It is then necessary to consider whether to make a family provision order and the nature of any such order. Again, the Defendant accepts that provision should be made. I respectfully agree that a family provision order should be made in favour of the Plaintiff.

I know nothing of the financial and material circumstances of three of the other beneficiaries. I bear in mind that each is a competing claim upon the bounty of the deceased. I infer that each does not assert that he is a claimant with a competing financial claim upon the bounty of the deceased and that his resources are sufficient to meet his needs. The Defendant has a home that was purchased for him by the deceased but not very much otherwise.

The determination of what provision should be made cannot be done by exact calculation or computation and must, at least in part, depend upon an estimate of the needs of the applicant.

I am not satisfied that the quantum of provision that the Plaintiff submits as her primary case, namely that she should receive the Long Jetty property absolutely, should be made for her. In this regard, even though I do not know anything about Richard's financial resources (including earning capacity) and financial needs, both present and future, there is no dispute that the Long Jetty property has been his home since about 1999. The effect of making an order as sought by the Plaintiff would be to dispossess him from the home in which he has lived for over a decade and the home specifically devised to him by the deceased.

Furthermore, as stated, the Plaintiff has not given evidence about the nature of her present accommodation or why it is unsuitable.

The beneficiary, Richard, like the other residuary beneficiaries is a chosen object of testamentary bounty and it is his claim, as a beneficiary chosen by the deceased, that founds the claim as a competing claimant which I must consider. Freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the court": Pontifical Society for the Propagation of the Faith v Scales, per Dixon CJ, at 19.

Alternatively, the Plaintiff submitted that she should receive, in lieu of her entitlement under the deceased's Will, a lump sum of $150,000. She could use this amount to purchase a mobile home (about $135,000) and would have a small capital sum remaining to provide for exigencies of life.

Counsel for the Defendant submitted that the amount of $150,000 "was not unreasonable" in the circumstances. He accepted that in providing a lump sum for the Plaintiff, the Defendant's share of residue would also have to be diminished. Even though he has set out his financial resources (including earning capacity) and financial needs, both present and future, there is no dispute that he received an asset of substantial value from the deceased during his lifetime.

Taking into account all of the circumstances of the case, including the nature and value of the actual estate, the nature of the relationship of the Plaintiff and the deceased, her financial resources (including earning capacity) and financial needs, both present and future, as well as the competing claims of the other beneficiaries as chosen objects of the deceased's bounty, and having found that the Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, I am of the view that, in lieu of the provision made for the Plaintiff in the Will of the deceased, she should receive a lump sum of $135,000.

The lump sum will enable her to purchase a more modest mobile home, or if she decides that she does not wish to do so, will provide capital and income for her to meet exigencies of life. If she purchases a mobile home, she will save rent, although there may be associated costs and expenses of that mobile home which will not enable her to have available all that she presently pays.

The burden of the lump sum provision should be borne by the residue of the estate, after the costs of the proceedings are deducted. Using the estimates provided, the amount in residue available, after the payment of costs, should be about $150,000. It follows that there will be sufficient to satisfy the order made in favour of the Plaintiff from the residuary estate.

(I have made the order "in lieu of the provision" for ease of calculation and because the value of the residuary estate is only able to be estimated.)

The balance of the residuary estate, if any, should be divided between the Defendant and his three brothers equally.

In what I have proposed, each of the residuary beneficiaries who has not provided any evidence of financial resources (including earning capacity) and financial needs, both present and future, and the Defendant, who received a substantial gift of real estate during the lifetime of the deceased, will each bear an equal part of the burden of the provision ordered to be made for the Plaintiff.

The Plaintiff's costs, calculated on the ordinary basis, are to be paid out of the estate. The Defendant's costs, calculated on the indemnity basis, are to be paid out of the estate.

Thus, the orders I make are:

(i) Having found that the Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, order that, in lieu of that provision, she receive a lump sum of $135,000 out of the estate of the deceased.

(ii) The burden of provision should be borne by the residuary estate, after deducting the costs of the proceedings.

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

(iv) The Plaintiff's costs and disbursements, calculated on the ordinary basis, are to be paid out of the residuary estate of the deceased.

(v) The Defendant's costs and disbursements, calculated on the indemnity basis, are to be paid out of the residuary estate of the deceased.

(vi) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005.

(vii) Direct that a complete and legible copy of these reasons for judgment be sent by the Defendant's solicitors to each of the other residuary beneficiaries under cover of letter posted, by registered post, sent no later than 7 days from the date of the reasons for judgment being published.

**********

Decision last updated: 25 May 2012

Medium Neutral Citation:	Collins v Mutton [2012] NSWSC 548
Hearing dates:	16 May 2012
Decision date:	24 May 2012
Before:	Hallen AsJ
Decision:	(i) Having found that the Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, order that, in lieu of that provision, she is to receive a lump sum of $135,000 out of the estate of the deceased. (ii) The burden of provision should be borne by the residuary estate, after deducting the costs of the proceedings. (iii) No interest is to be paid on the lump sum if it is paid within 28 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment. (iv) The Plaintiff's costs and disbursements, calculated on the ordinary basis, are to be paid out of the residuary estate of the deceased. (v) The Defendant's costs and disbursements, calculated on the indemnity basis, are to be paid out of the residuary estate of the deceased. (vi) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005. (vii) Direct that a complete and legible copy of these reasons for judgment be sent by the Defendant's solicitors to each of the other residuary beneficiaries under cover of letter posted, by registered post, sent no later than 7 days from the date of the reasons for judgment being published.
Catchwords:	SUCCESSION - The Plaintiff, a daughter of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant, a son of the deceased, to whom Probate of the deceased's Will was granted - No dispute that adequate and proper provision not made in Will of the deceased and that an order in favour of the Plaintiff should be made - Dispute as to the quantum of the provision and how the burden of that provision should be borne
Legislation Cited:	Family Provision Act 1982 Practice Note SC Eq 7 Probate and Administration Act 1898 Succession Act 2006 Uniform Civil Procedure Rules 2005
Cases Cited:	Alexander v Jansson [2010] NSWCA 176 Allardice, In re, Allardice v Allardice (1909) 29 NZLR 959 Allen (Dec'd) In re; Allen v Manchester [1922] NZLR 218 Anderson v Teboneras [1990] VicRp 47; [1990] VR 527 Bartlett v Coomber [2008] NSWCA 100 Blore v Lang (1960) 104 CLR 124 Bondelmonte v Blanckensee [1989] WAR 305 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Buckland Deceased, Re [1966] VR 404 Clayton (dec'd), Re [1966] 1 WLR 969 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Crossman and v Riedel [2004] ACTSC 127 Davis v Davis; Davis by Her Tutor Arnold v Davis [2012] NSWSC 201 Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54 Edgar v Public Trustee for the Northern Territory [2011] NTSC 5 Fiorentini v O'Neill (NSWCA, 4 December 1998, unreported) Foley v Ellis [2008] NSWCA 288 Frey v Frey [2009] QSC 43 Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Haklany v Gittany [2011] NSWSC 1549 Harrigan, Estate of the Late Violet Eugenie - Cowmey v Whibley [2012] NSWSC 291 Hawkins v Prestage (1989) 1 WAR 37 Hughes v National Trustees Executors and Agency Co. of Australasia Pty Ltd (1979) 143 CLR 134 Hyatt v Covalea [2011] VSC 334 Kembrey v Cuskelly [2008] NSWSC 262 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 MacGregor v MacGregor [2003] WASC 169 McKenzie v Topp [2004] VSC 90 Marks v Marks [2003] WASCA 297 Matthews v Wear [2011] NSWSC 1145 Mayfield v Lloyd-Williams [2004] NSWSC 419 Neil v Jacovou [2011] NSWSC 87 Paola v State Trustees Ltd [2012] VSC 158 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (NSWSC, 16 December 1996, unreported) Taylor v Farrugia [2009] NSWSC 801 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported)
Texts Cited:	Cf Davern Wright, Testator's Family Maintenance 3rd ed, 1974
Category:	Principal judgment
Parties:	Judeth Anne Collins (Plaintiff) Gregory Victor Mutton (Defendant)
Representation:	Mr J Armfield (Plaintiff) Mr R Colquhoun (Defendant) Aubrey Brown Partners (Plaintiff) Cutlers The Law Firm (Defendant)
File Number(s):	2011/216415

Assets
(a)	Family home at Bateau Bay	$495,000 - $550,000
(b)	Car	$ 7,000
(c)	Household items & furniture	$ 30,000
(d)	St George Bank account (Gregory)	$nil/nominal
(e)	Westpac Bank account (Debra)	$ 11
Total	$532,011 - $587,011
Liabilities
(a)	Repairs and maintenance on family home:	$ 12,900
(b)	2 credit card debts (with his wife):	$ 30,000
(c)	Council rates/water:	$ 1,600
(d)	Energy Australia:	$ 682
Total:	$ 45,182