Cooper v Cooper

[2018] NSWSC 851

Supreme Court

New South Wales

Medium Neutral Citation:

Cooper v Cooper [2018] NSWSC 851

Hearing dates:

30 April 2018

Date of orders:

14 June 2018

Decision date:

14 June 2018

Jurisdiction:

Equity

Before:

Hallen J

Decision:

The Court:

(a) Having found that the Plaintiff is an eligible person; that the proceedings were commenced within time; and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, orders that she receive, in addition to the legacy of $50,000 made for her in the Will of the deceased, a lump sum of $175,000.

(b) Orders that provided the lump sum, and the legacy to which she is entitled under the Will, is paid within 2 months of the making of these orders, no interest is payable on either the legacy or the lump sum; otherwise, interest at the rate prescribed under s 84A(3) of the Probate and Administration Act 1898 (NSW) is payable on each of the legacy and the lump sum, calculated from that date until the date of payment in full.

(c) Orders that the Plaintiff’s costs, calculated on the ordinary basis, and the Defendant’s costs, calculated on the indemnity basis, be paid out of the estate of the deceased.

(d) Grants liberty to any party to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to, and implementing, the family provision order made in favour of the Plaintiff, including, but not limited to, an order for the sale of the Sans Souci property.

(e) Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10) and Practice Note No SC Gen 18.

Catchwords:

SUCCESSION – FAMILY PROVISION – The Plaintiff, an adult child of the deceased, makes a claim for a family provision order – No dispute as to the Plaintiff’s eligibility as a child of the deceased – The Defendant is also an adult child of the deceased and the sole executor and principal beneficiary named in the Will –– Reasonably large estate in value principally comprising real property – Legacy of $50,000 made for Plaintiff – Whether family provision order should be made, and if so, the nature and quantum of the provision to be made – Order for provision made

Legislation Cited:

Family Provision Act 1982 (NSW)
Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Alexander v Jansson [2010] NSWCA 176
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Bartlett v Coomber [2008] NSWCA 100
Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86
Bondelmonte v Blanckensee [1989] WAR 305
Borebor v Keane [2013] VSC 35
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327
Burke v Burke [2015] NSWCA 195
Butcher v Craig [2009] WASC 164
Chan v Chan [2016] NSWCA 222
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Christie v Manera [2006] WASC 287
Crossman v Riedel [2004] ACTSC 127
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235
Diver v Neal [2009] NSWCA 54
Flathaug v Weaver [2003] NZFLR 730
Foley v Ellis [2008] NSWCA 288
Gardiner v Gardiner (Supreme Court (NSW), 28 May 1998, unrep)
Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31
Goodsell v Wellington [2011] NSWSC 1232
Gorton v Parks (1989) 17 NSWLR 1
Grey v Harrison [1997] 2 VR 359
Hawkins v Prestage (1989) 1 WAR 37
Heyward v Fisher (Court of Appeal (NSW), Kirby J, 26 April 1985, unrep)
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134
Hunter v Hunter (1987) 8 NSWLR 573
Kay v Archbold [2008] NSWSC 254
Kohari v Snow [2013] NSWSC 452
MacGregor v MacGregor [2003] WASC 169
Manuel v Lane [2013] NSWCA 61
Marks v Marks [2003] WASCA 297
McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82
McCosker v McCosker; Kleinig v Neal (No 2) [1981] 2 NSWLR 532
McGrath v Eves [2005] NSWSC 1006
McKenzie v Topp [2004] VSC 90
Palagiano v Mankarios [2011] NSWSC 61
Parker v The Public Trustee (Supreme Court (NSW), 31 May 1988, unrep)
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19
R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52
Salmon v Osmond [2015] NSWCA 42
Sgro v Thompson [2017] NSWCA 326
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stott v Cook (1960) 33 ALJR 447
Sung v Malaxos [2015] NSWSC 186
Szypica v O’Beirne [2013] NSWSC 297
Taylor v Farrugia [2009] NSWSC 801
Thom v The Public Trustee (Master McLaughlin 2 April, 1992, unrep)
Thom v The Public Trustee (Supreme Court (NSW), McLaughlin M, 2 April 1992, unrep)
Tobin v Ezekiel (2012) 83 NSWLR 75; [2012] NSWCA 285
Underwood v Gaudron [2015] NSWCA 269
Verzar v Verzar [2012] NSWSC 1380
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep)
White v Barron (1980) 144 CLR 431; [1980] HCA 14
Whitmont v Lloyd (Supreme Court (NSW), Bryson J, 31 July 1995, unrep)
Williamson v Williamson [2011] NSWSC 228
Yee v Yee [2017] NSWCA 305

Texts Cited:

R Atherton, “The Concept of Moral Duty in the Law of Family Provision – a Gloss or Critical Understanding?” (1999) 5(1) Aust J Leg Hist 5

Category:

Principal judgment

Parties:

K’Lee Cooper (Plaintiff)
Rick Anthony Cooper (Defendant)

Representation:

Counsel:
Mr M B Evans (Plaintiff)
Mr P O’Loughlin (Defendant)

  Solicitors:
ELG Legal (Plaintiff)
Solari & Stock (Defendant)

File Number(s):

2016/316703

Judgment

1. HIS HONOUR: This case is yet another sad illustration of a dispute that can arise in relation to the distribution of an estate between members of the deceased’s family who survive him. Here, the dispute is between the only two children of Graham Rex Cooper (“the deceased”), who died on 9 June 2016, at the age of 80.

2. The proceedings are to be decided under Chapter 3 of the Succession Act 2006 (NSW) (“the Act”), which applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act1982 (“the former Act”), which was repealed, effective from 1 March 2009.

3. The Plaintiff, K’Lee Cooper, the only daughter of the deceased, seeks a family provision order, by way of additional provision for her maintenance and advancement in life out of the estate and notional estate of the deceased. She commenced the proceedings by Summons filed on 24 October 2016, 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 person).

4. The Defendant named in the Summons is Rick Anthony Cooper, the only son of the deceased and the executor appointed under the deceased’s last Will, dated 11 March 2016. This Court granted Probate of that Will to the Defendant on 30 September 2016.

5. A family provision order may be made in relation to the estate of a deceased person, but may also be made in relation to property that is not part of the deceased person’s estate, if it is designated as “notional estate” of the deceased person by an order under Part 3.3 of the Act: s 63. The parties agreed that there was no property that could be designated as notional estate of the deceased. Thus, even though there is a reference to the notional estate in the order for provision sought in the Summons, it is clear that the Plaintiff’s claim is for additional provision only out of the estate of the deceased.

6. There is no dispute that, as a child of the deceased, the Plaintiff is an eligible person within the meaning of that term in s 57(1)(c) of the Act. The language of the sub-section is expressive of the person’s status, regardless of age, as well as her, or his, relationship to the deceased.

7. The parties also agreed that there is no scope for the operation of the intestacy rules, so that, hereafter, it is only necessary to refer to the Will of the deceased.

Background Facts

8. In a claim for a family provision order, factual context is necessary. It is convenient, first, to give a statement of some of the background facts, since these provide that context. Many of these facts are taken from the affidavits read in the proceedings and are not in dispute. In relation to any factual matters that were in dispute in those affidavits, or otherwise, to which I refer, the facts set out hereunder should be regarded as the findings of the Court.

9. The deceased, who was described as a “horse trainer”, was born in September 1935. He married Beverley Ann Leeds in about 1958. It is said, by the Plaintiff, that they separated in about 1990, but it may have been earlier than that. She died in 1993.

10. The only children of the marriage were the Defendant, who was born in April 1959, who is now 59 years old, and the Plaintiff, who was born in November 1961, who is now 56 years old.

11. Beverley left a Will dated 25 June 1984, in which she appointed the Plaintiff the sole executrix and the universal legatee of the whole of her estate. The value of her estate was not disclosed in the evidence, but the Plaintiff acknowledged that she had inherited real estate, situated at Marrickville, being the real estate that she still owns, and in which she presently lives.

12. The parties agreed that the Marrickville property that the Plaintiff inherited has a current value of $1,250,000. It is unencumbered, but in need of some repair, maintenance and renovation.

13. By his last Will, the deceased gave a legacy of $50,000 to the Plaintiff and left the rest and residue of his estate to the Defendant absolutely. (In the event that he did not survive the deceased, the estate was left to the four grandchildren of the deceased in equal shares. It can be seen, therefore, that the deceased did not wish to make greater provision for the Plaintiff than the legacy he had provided for her even if the Defendant did not survive him.)

14. In the Inventory of Property attached to, and placed inside, the Probate document, the deceased’s sole property at the date of death was disclosed as having an estimated, or known, value of $2,787,350. The estate was said to consist of a property at Sans Souci, a suburb of Sydney, ($2,500,000) (“the Sans Souci property”), a one-half interest in a property at Bungonia (“the Bungonia property”), which is a small town located about 185 kilometres south-west of Sydney ($200,000), money in bank accounts ($40,650), horses ($3,000), a car ($1,000), a prime-mover ($35,000) and various other items ($7,700). (I have omitted, and shall continue to omit, any reference to cents in amounts to which I refer. This will explain any apparent mathematical miscalculations.)

15. (The deceased had made an earlier Will, in October 2009, a copy of which is Ex. A. In that Will, he appointed the Defendant as the executor, and gave his whole estate on trust, to pay debts, funeral and testamentary expenses; he then devised the Sans Souci property to the Defendant absolutely; devised his one half interest in the Bungonia property, to the Plaintiff and the Defendant in equal shares, and left the residue of his estate to be divided, in the events that have happened, equally between the Plaintiff and the Defendant.)

16. The deceased had acquired the Sans Souci property in around 1987 for about $470,000. It is now registered in the name of the Defendant, but it is not entirely clear whether that is as executor or as the devisee. (This does not matter as the parties agreed that it forms part of the estate of the deceased.)

17. The Sans Souci property has been the home of the Defendant since it was purchased. The deceased also lived there, although, in the last years of his life, the deceased spent more time at the Bungonia property.

18. In a Report and Valuation dated April 2018 (Ex. 1), the Sans Souci property is described as:

“[A] waterfront property and comprises circa 1970s single (1) storey freestanding home to comprise on the top floor original two (2) bedrooms, main bathroom, lounge, updated kitchen (20 years ago), living, dining with main entrance. The lower floor has been converted from a triple garage to a living area with two (2) extra bedrooms, games, kitchenette and second bathroom. The external provides for a single 11 sqm garage with a small storage/workshop behind, L-shaped balcony, in ground pool. The property has numerous structural issues of moving foundations and water leakages”.

19. There is evidence that the Defendant contributed to the purchase price of the Sans Souci property but no claim for a resulting, or a constructive, trust has been made by him. I shall refer to his evidence about contributions later in these reasons.

20. The Bungonia property was purchased by the deceased and the Defendant in March 2008 as tenants in common. The purchase price may have been paid solely from the proceeds of sale of another property that they had owned together and sold.

21. At the hearing, the parties were able to agree that the deceased’s estate now consists of the Sans Souci property ($2,200,000), the one-half interest in the Bungonia property ($200,000), cash, held by the Defendant’s solicitors ($14,761), and the other miscellaneous items referred to ($43,700).

22. The parties were unable to agree on the value of the horses owned by the deceased at the date of his death. An inordinate amount of time has been spent, and expense incurred, attempting to establish the existence, and the value, of the horses. The Defendant maintained that the horses are of negligible value, whilst the Plaintiff asserted that they have a value of about $100,000. I shall return to the issue later in these reasons.

23. That issue, and other issues, raised by the parties caused their lawyers to inform the Court, a few weeks prior to the hearing that the matter, which had been listed with an estimated duration of 2 days, would not conclude within that time. They said that an additional two days would be required.

24. The matter was re-listed, urgently, to determine whether the hearing date should be vacated. After hearing from the parties, the Court did not vacate the hearing date and the matter remained listed before me. Naturally, the legal representatives were encouraged to see whether steps could be taken to resolve the issues that had led them to believe that a longer hearing was necessary.

25. Fortunately, at the commencement of the hearing, the parties agreed that the matter would be concluded within the two days allocated and it proceeded. The parties and their legal representatives are to be commended for narrowing the issues and also for avoiding the cross-examination of all of the witnesses, other than the parties, which enabled the matter to be completed within the allotted time.

26. Leaving aside the value of the horses, and without any deductions, for example, for the costs and expenses of the sale of either the San Souci property, or the Bungonia property, the capital gains tax, if any, payable on the sale of the latter property, and, of course, any costs of the proceedings that are ordered to be paid, the gross value of the deceased’s estate, at the date of the hearing, was agreed to be $2,458,461: T8.21 – T8.27. It is, therefore, a reasonably large estate.

27. The parties also agreed that there were estate liabilities to be paid, being expenses incurred both before, and after, the death of the deceased for the horses ($27,960), the estate’s share of the costs and expenses of sale of the Bungonia property ($5,000), and if it became necessary, the costs and expenses of sale of the Sans Souci property ($50,000), the total of these expenses was estimated to be $82,960: T8.36 – T8.44. (The Defendant does not seek executor’s commission.)

28. Again, excluding the value of the horses, the agreed value of the estate, at the date of the hearing, before the costs and disbursements of the proceedings are deducted, is $2,375,501. Even after those deductions, it is a reasonably large estate.

29. Usually, in calculating the value of the deceased's estate finally available for distribution, the costs of the proceedings should be considered with circumspection. Since, unless the overall justice of the case requires some different order to be made, the applicant, if successful, normally would be entitled to an order that her costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendant, as the person representing that estate, irrespective of the outcome of the proceedings, normally will be entitled to an order that his costs, calculated on the indemnity basis, should be paid out of the estate.

30. As Basten JA put it in Chan v Chan [2016] NSWCA 222, at [54]:

“In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs.”

31. The parties agreed that the usual order for costs should follow in the event a family provision order is made in favour of the Plaintiff: T9.03 – T9.27.

32. In an affidavit sworn on 26 March 2018 by Ms E Lee-Gabriel, the Plaintiff’s solicitor, the estimated costs and disbursements, calculated on the ordinary basis, of the Plaintiff, “up to and including a two day final hearing and to conclusion of this matter” were $112,500.

33. In an affidavit sworn on 6 March 2018 by Mr M Solari, the Defendant’s solicitor, the costs and disbursements of the Defendant, calculated on the indemnity basis, up to and including the two day hearing, were estimated to be $88,000.

34. Thus, the total amount of the estimated costs and disbursements is $200,500. That this amount has been incurred in costs, in what is a relatively straightforward case for a family provision order, evidences the depth of feeling that has existed between the parties and the determination of each to proceed with, and to defend, respectively, the proceedings.

35. The parties, then, agreed that, assuming the estimates of costs prove accurate, the estimated amount of the distributable estate, from which an order may be made, after the deduction of the costs and disbursements of both parties, is $2,175,001: T8.46 – T9.38.

36. The parties also agreed that there are no other eligible persons.

37. Even though the Defendant, who, of course, is an eligible person, has not brought a claim for a family provision order, the Court may not disregard the deceased's freedom of testamentary disposition and the preferable disposition to him as the major beneficiary, regardless of his financial position or needs: s 61 of the Act. He has disclosed his financial circumstances to the Court.

The Value of the Horses

38. The Defendant, from the commencement of the proceedings, asserted that the horses owned by the deceased, at the date of his death, had a nominal value ($3,000). The Plaintiff asserted that they had a far greater value.

39. About one month before the hearing, and without seeking any directions in regard to the service of expert evidence, pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), rule 31.19, the Plaintiff served an expert report, from Mr Peter Wharton, who is described as “a bloodstock agent, pedigree researcher, stud farm manager, writer, commentator and author [of harness racing]”. An affidavit, to which a copy of the report was annexed, was not served until a few days before the hearing: MFI1.

40. Counsel for the Plaintiff provided no adequate explanation for not making an application to rely upon expert evidence, or for providing the Defendant with a copy of the report upon which reliance was sought to be placed, so close to the hearing.

41. The Defendant submitted that the report was a “valuation which was conducted as a result of looking at records … [with] no analysis as to how any of the horses are valued … no indication as to the basis upon which they have been valued … [and] no proper compliance with the expert code”: T21.11 – T21.17.

38. The Court asked counsel for each of the parties whether an application would be made to adjourn the hearing. Neither party sought to make such an application.

39. In the circumstances, because the Court was not prepared to “otherwise order”, the expert evidence could not be adduced at the trial: UCPR rule 31.19(3).

40. There was evidence read by the Defendant at the hearing, from Mr Noel Morris, a horse trainer, who had met the deceased in 2010 and who had assisted him, from that time, in the handling, training, preparing for sale, racing or breeding, and the managing of the deceased’s horses. Mr Morris, whose affidavit sworn on 7 March 2018, identified the horses, of which he was aware, that the deceased had owned and stated what had been done with them. Whilst he did not give evidence going to their specific value, he did state that some of the horses were still on the Bungonia property, or were being leased, but many of the horses had died, or had been sold, donated, or deregistered with Harness Racing NSW. He also stated that the deceased had “both success and failure in his efforts in breeding, training and selling horses”.

41. It is unnecessary to set out his other evidence on the topic, which evidence there is no reason to doubt. Having read, and heard, the admissible evidence on the topic, I prefer the evidence of Mr Morris who has no interest in the case and has no reason to assist the Defendant. In any event, he was not cross-examined.

42. (Another possible reason for accepting the evidence is that the Defendant acknowledged that if the Plaintiff thought that the horses were of value, and if she wanted them, she could have them. He said to counsel for the Plaintiff, at T74.05 – T74.06:

“You keep asking about the horses. I said you can have them, take them, you don’t want them.”

47. The inference to be drawn is that, in reality, the horses were worth far less than the Plaintiff had sought to suggest, or that if she took them, and sold them, she would be unlikely to obtain the value she had attributed to them.)

48. In all the circumstances, I am satisfied that the value of the horses adds little to the overall value of the distributable estate.

The Statutory Regime

49. Next, I shall discuss the statutory scheme that is relevant to the facts of the family provision proceedings. As the Plaintiff’s eligibility, and the commencement of the proceedings within time, is not in issue, the only questions for the Court to determine are whether adequate provision for her proper maintenance, education or advancement in life has not been made by the Will of the deceased: s 59(1) of the Act. Once that power is enlivened, the Court may make “such order for provision ... as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made” (s 59 (2)).

50. There is no automatic entitlement to provision stipulated by the Act and the deceased’s Will applies unless a specific application is made to, and acceded to, by the Court.

51. The parties were largely agreed as to the principles to be applied on this topic. I have dealt with them in many cases. For the benefit of the parties, I shall repeat what I have written.

52. Other than by reference to the provision made by the Will of the deceased, 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 an applicant’s proper maintenance, education and advancement in life. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of any applicant.

53. The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment: White v Barron (1980) 144 CLR 431, at 434-5, 443; [1980] HCA 14; Singer v Berghouse (1994) 181 CLR 201, at 210-211; [1994] HCA 40.

54. Basten JA, in Foley v Ellis [2008] NSWCA 288, at [3], commented that the state of satisfaction “depends upon a multi-faceted evaluative judgment”. In Kay v Archbold [2008] NSWSC 254 at [126], White J (as his Honour then was) wrote that the assessment of what provision is proper involved “an intuitive assessment”. Stevenson J has described it as “‘an evaluative determination of a discretionary nature, not susceptible of complete exposition” and one which is ‘inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific’”: Szypica v O’Beirne [2013] NSWSC 297 at [40], citing Manuel v Lane [2013] NSWCA 61, at [9].

55. Under s 59(1)(c), the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the Court is considering the application. This does not mean, however, that considerable weight should not be given to the assessment of a capable testator, who has given due consideration to the claims on his estate: Sgro v Thompson [2017] NSWCA 326, per Payne JA (agreeing with White JA), at [6].

56. Whether the disposition of the deceased’s estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the applicant, will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant’s “needs” that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573 at 575. This statement is not intended to suggest that an applicant’s “needs”, when compared with the provision made for her, or him, out of the deceased’s estate, should be the only, or even, the dominant consideration. An applicant’s financial needs and the financial needs of other persons with claims on the deceased’s testamentary bounty are important, and often highly important, considerations, but as Basten JA wrote in Chan v Chan [2016] NSWCA 222, at [22]:

“… [I]t is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs.”

57. In Grey v Harrison [1997] 2 VR 359 at 366-367, Callaway JA observed:

“There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight.”

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

59. Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act.

60. In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement":

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

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

“‘Proper maintenance’ is not limited to the bare sustenance of a claimant…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.”

62. In McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82, Dixon CJ and Williams J wrote, at 575:

"The presence of the words 'advancement in life' in the... Act in addition to the words 'maintenance and education' is not unimportant... 'Advancement' is a word of wide import."

63. 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 … at 575; Stiles v Joseph (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams…)."

64. The word “adequate” connotes something different from the word “proper”. “Adequate” is concerned with the quantum, described by Rosalind Atherton in “The Concept of Moral Duty in the Law of Family Provision – a Gloss or Critical Understanding?” (1999) 5 Aust J Leg Hist 5, 10, as reached upon “a purely economic and objective basis”, whereas “proper” prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235, at [72] and [77] (Buss JA), which seems to invite more subjective criteria.

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

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

66. Their Lordships went on to state, at 478:

“The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the court were concerned merely with adequacy. But the court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration.”

67. Dixon CJ and Williams J, in McCosker v McCosker at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word “proper”, that:

“It means ‘proper’ in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator’s ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator’s testamentary dispositions to the necessary extent.”

68. In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, Dixon CJ, at 19, pointed out that the words “adequate” and “proper” are always relative and that what the testator regarded as “superior claims or preferable dispositions” is a relevant consideration:

“The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning.”

69. In Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31, Gibbs J wrote, at 502:

“…the words ‘adequate’ and ‘proper’ are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards.”

70. In Vigolo v Bostin at [114], Callinan and Heydon JJ wrote:

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

71. Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), 28 May 1998, unrep), that “adequate” and “proper” are independent concepts. He wrote, at [12]:

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

72. In Palagiano v Mankarios [2011] NSWSC 61 at [72], White J observed that the question of what provision for a person’s maintenance, education or advancement in life is “proper” and the question of whether the provision made by the deceased was “adequate” for that person’s maintenance, education or advancement in life “involve value judgments on which minds can legitimately differ”, and “[t]here are no definite criteria by which the question can be answered.”

73. His Honour added, in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522, at [123]:

“The question of what level of maintenance or advancement in life is ‘proper’ depends on all of the circumstances of the case including ‘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’ (Singer v Berghouse (1994) 181 CLR 201 at 210).”

74. In Sgro v Thompson, White JA, at [86], stated:

“[T]he most important word in s 59(1)(c) is “proper”. Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties’ financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former.”

75. In Devereaux-Warnes v Hall (No 3), at [81]-[84], Buss JA wrote:

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

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

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

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

76. As will be read, s 60 of the Act invites the Court to have regard to various matters, including, but not limited to, financial need: s 60(2)(d). If the Court does so, as also will be read, one of the purposes for which that is done is for determining “the nature of any [family provision] order”: s 60(1)(b) of the Act.

77. Of course, “need” is a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45]. It is different from “want” and does not simply mean “demand” or “desire”. The latent difference between the words was stated by Lord Neuberger of Abbotsbury (the former President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 at [54]:

“‘Need’ is a more flexible word than it might first appear. ‘In need of’ plainly means more than merely ‘want’, but it falls far short of ‘cannot survive without’.”

78. In Boettcher v Driscoll (2014) 119 SASR 523 at 530; [2014] SASC 86 at [41], David J added:

“‘Need’ is not so synonymous with ‘want’ such that the two are interchangeable.”

79. As Callinan and Heydon JJ emphasised in Vigolo v Bostin at [122], the question of the adequacy of the provision made by the deceased “is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably”. The inquiry is not confined only to the material circumstances of the applicant. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined.

80. If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made.

81. The questions posed arise under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse at 211, affirmed that the decision made 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.

79. Section 60 of the Act 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.”

83. It can be seen that s 60(2) enumerates 16 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, at [37], as “a multifactorial list”, and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as “a valuable prompt” to which the Court may have regard, together with “any other matter the court considers relevant”, for the purpose of determining whether the applicant is an “eligible person”, whether a family provision order should be made, and if so, the nature of any such order. There is no mandatory command to take into account any of the matters enumerated. In the context of the section, “may” does not mean “must”.

84. In Chapple v Wilcox (2014) 87 NSWLR 646 at 649; [2014] NSWCA 392 at [7], Basten JA wrote:

“Section 60 of the Succession Act spells out the matters which the court may have regard to in determining whether the claimant ‘is an eligible person’ and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the ‘nature of any such order’, which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b).”

85. The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. None of the matters listed are, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.

86. The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.

87. A reference 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 any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).

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

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

1. the person or persons for whom provision is to be made, and

2. the amount and nature of the provision, and

3. 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

4. any conditions, restrictions or limitations imposed by the Court.

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

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

92. Unless the Court orders otherwise, any family provision order under the Act takes effect as if it were a codicil to the will (s 72(1)(a) of the Act).

Some Additional Principles

93. 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 former Act, they are equally apt in a claim brought pursuant to the Act. Other judges, and I, have repeated them in many cases under the Act.

94. The Court’s discretion in making an order 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 at 19; McKenzie v Topp [2004] VSC 90 at [63].

95. Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1 at 6, that it is not appropriate to endeavour to achieve “an overall fair” disposition of the deceased’s estate. It is not part of the Court’s function to achieve some kind of equity between the various claimants.

96. As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186 at [5]:

“Fairness and equality are not touchstones for relief under the Succession Act.”

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

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

98. Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales, at 19, commented upon the consideration that was to be given to the deceased’s wishes:

“All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court.”

99. In Vigolo v Bostin at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained:

“It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification.”

100. In Goodsell v Wellington [2011] NSWSC 1232 at [108], I also noted that:

“Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated.”

101. In Sgro v Thompson, at [83], White JA (McColl JA agreeing) adhered to the view that he had expressed in Slack v Rogan; Palffy v Rogan, at [127], namely, that:

“…respect should be given to a capable testator’s judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator’s death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant’s evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant’s maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased’s death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator’s testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453–454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court’s determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased’s death or will.”

102. His Honour added, at [86]:

“To recognise that the court is not in as good a position as a capable testator to assess what maintenance or advancement in life is proper for an applicant having regard to all of a family’s circumstances, including the relationships between the applicant and the deceased, and the merits and claims of other family members, is not to put a gloss on the statute. Rather, it is to acknowledge the superior position of the testator. The most important word in s 59(1)(c) is “proper”. Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties’ financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court’s assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate.”

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

104. In all cases under the Act, what is adequate and proper provision is necessarily fact specific: Sgro v Thompson, per White JA, at [67].

105. The size of the estate is a consideration in determining an application for provision. However, its size does not justify the Court in re-writing the deceased’s Will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327 at [41]; Borebor v Keane [2013] VSC 35 at [67].

106. In relation to the claim by the Plaintiff, being a claim for provision by an adult child, I have set out the following principles in many other cases, which are also useful to remember:

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

2. It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, “ordinarily, the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, child up in a position where she or he 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”: Taylor v Farrugia [2009] NSWSC 801 at [57]; McGrath v Eves [2005] NSWSC 1006; Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond [2015] NSWCA 42 at [109].

3. Generally, also, “the community does not expect a parent to look after her, or his, children for the rest of [the child’s life] and into retirement, especially when there is someone else, such as 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 parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute”: Taylor v Farrugia at [58].

4. There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37 at 45; Taylor v Farrugia at [58].

5. The adult child’s lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]-[182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17].

6. 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 (1979) 143 CLR 134 at 149; [1979] HCA 2.

107. A very similar statement of these principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [111], was cited with approval in Chapple v Wilcox at [21]; and at [65]-[67]; and was referred to, with no apparent disapproval (although in that appeal there was no challenge the correctness of those principles), in Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297, at [62].

108. The role of the Court is not “to address wounded feelings or salve the pain of disappointed expectations” that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby J, 26 April 1985, unrep). Nor is it the role of the Court to provide reparations to the Plaintiff in respect of what might be regarded as poor parental behaviour by means of a monetary order: Williamson v Williamson [2011] NSWSC 228 at [124]-[127].

109. The other claimant on the bounty of the deceased, the Defendant, who is the principal beneficiary, does not have to prove an entitlement to the provision made for him in the deceased’s Will, or otherwise justify such provision. In this case, however, he has provided a deal of evidence demonstrating his contribution to the deceased. I shall return to this aspect later in these reasons.

Qualifications on “Principles”

110. As long ago as 1980, in White v Barron at 440, Stephen J wrote:

“[T]his jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application.”

111. As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian), I do not intend what I have described as “principles” or “general principles” to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.

111. It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. As Lindsay J wrote in Verzar v Verzar [2012], at [131]:

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

113. The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox by Basten JA, at [18] – [20], and by Barrett JA, at [66] – [67]; in Burke v Burke [2015] NSWCA 195, at [84] – [85] and Yee v Yee [2017] NSWCA 305 at [172]. They must be remembered.

The receipt of the pension

114. It will be noted that the Plaintiff receives, and has received for many years, a pension. That fact is relevant to the Court’s considerations.

115. Young J (as his Honour then was) in Parker v The Public Trustee (Supreme Court (NSW), 31 May 1988, unrep) said:

"In my view the attitude that the Court takes in this area of the law to this problem under the authorities appears to be as follows:

(1) The object of the Act is to compel persons to make provision for their dependants and not throw the maintenance of dependants upon the public purse...

(2) It is no answer to a claim that a deceased failed to make proper provision for his dependant that the dependant is entitled to a pension under the Social Security Act...

(3) When making provision, a wise and just testator usually makes his will without regard to any means tested pension that a beneficiary may be able to receive...

(4) A wise and just testator, however, when formulating his bequests, does take into account the income that the various beneficiaries would be receiving under superannuation or other pensions...

(5) A testator has no duty to organise his affairs so that his beneficiaries receive the maximum benefit from his estate so long as he makes adequate provision for them...

(6) It would be contrary to the policy of the Act for the Court to so make an order that there was thrown onto the public purse the support of a dependant to the advantage of a 'wealthy beneficiary'...

(7) Where the estate is small and especially where there are a series of claimants on the testator's bounty, it may well be proper for the testator when making his will and the Court when framing its order to preserve a pension entitlement".

116. In Thom v The Public Trustee (Supreme Court (NSW), McLaughlin M, 2 April 1992, unrep) it was said:

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

117. In Whitmont v Lloyd (Supreme Court (NSW), Bryson J, 31 July 1995, unrep) his Honour wrote:

"The protection of public funds from claims by indigent persons is not a purpose of Family Provision legislation but they are incidentally protected by the legislation, which was not an Act solely for the protection of private interests and serves public policy... In my opinion, the availability of age pensions and other social benefits is a circumstance which should be regarded, and particularly in smaller estates, it may be appropriate to leave an Applicant wholly or partly dependent on them or to mould the provision made so that their availability is preserved in whole or in part. The acceptance of benefits for which statute law provides is in every way legitimate, involves no social stigma and incurs no disapproval from the Court. It is not the Court's task to be vigilant, to throw burdens off public funds and onto private estates. Still it is true that the legislation has a public policy purpose and it is not appropriate that where there is wealth within the estate, it should be directed away from the less fortunate and successful of the eligible person so as to enhance their claims to social benefits and maximise the resources of others; the Court should not disregard the interest of the public in public funds, which can receive incidental protection from the workings of this legislation. Where wealth is available, it should be used to meet needs for maintenance, education and advancement of eligible persons. The significance of social benefits is related to the available resources ..."

118. In Taylor v Farrugia, Brereton J referred to a number of the authorities and concluded, at [59]:

"The Court's attitude to the eligibility for means tested pension benefits of eligible persons and beneficiaries varies, depending on the circumstances of the case. Ordinarily, a testator makes a will and provides for those who have a claim on the testator without regard to the claimant's eligibility for a pension. However, in a small estate where there are competing claims, a testator, and this Court on an application under the Act, may take into account the eligibility of a claimant for a pension as a means of deciding how such limited benefits as are available from the estate should be shared between claimants, and how those benefits might be structured. But this qualification to the principle that the burden of support should be borne in the first instance by an estate rather than by social security arises mainly, if not exclusively in smaller estates.” (Omitting citations)

Additional Facts

119. Next, it is useful to set out some more facts by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come in relation to areas of dispute between the parties. I have taken this course, not “to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59” (Verzar v Verzar at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered.

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

120. The Plaintiff is a child of the deceased. She attests to having had a good relationship with the deceased throughout her life. She said that she left home, which was then at the Marrickville property, in about 1978 and returned in 1980 when the deceased moved out.

121. The Plaintiff commenced a relationship with a person named Russell, with whom she lived in the Marrickville property for about 17 years. They separated in about 2000.

122. Initially, after the purchase of the Sans Souci property by the deceased, the Plaintiff saw him regularly there, even though it was necessary for her to travel from Marrickville to Sans Souci by taxi. The regularity of her visits was monthly or every couple of months. The deceased did not visit her at the Marrickville property, because, amongst other things, he did not like Russell: T40.34 – T40.35.

123. After about 1994, the Plaintiff visited the deceased less regularly than once a month. The visits became limited to occasions, such as birthdays, Easter, Father’s Day and Christmas. The Defendant agreed that the Plaintiff would visit the deceased at Christmas in some years, but not as often as she had said. He gave evidence that she had seen him at Christmas in 2015.

124. If the deceased was at the Bungonia property at Christmas, the Plaintiff would not see him. In the deceased’s latter years, he spent more time there, with the result that their contact became less frequent. She stated that this less frequent contact was because she did not have a car.

125. The Plaintiff accepted that “in the later period of his life, [she] grew apart from [the deceased]”: T41.00 – T41.31. It is likely that there was a combination of reasons for this having occurred, one of which was, undoubtedly, the geographical distance between the places at which they were living.

(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

126. There is no definition of the words “obligations” or “responsibilities” to which the sub-section refers to in the Act. Each word is to be understood in its ordinary, grammatical meaning as the condition of being morally or legally bound.

127. The responsibility of a testator was expressed by Lord Romer in Bosch v Perpetual Trustee Co Ltd at [478]-[479]:

“Their Lordships agree that in every case the Court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father. This no doubt is what the learned judge meant by a just, but not a loving, husband or father.”

128. Yet, the Act does not expressly refer to, or identify, any “moral duty”. However, what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities to not only the applicant, but also to the beneficiary or beneficiaries. There is a balancing of potentially competing obligations.

129. 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 either of his children, once they became adults, imposed upon him by statute or common law.

130. Yet, an obligation or responsibility to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child. In Flathaug v Weaver [2003] NZFLR 730 at [32], the origin of the obligation which underpins the recognition of the duty owed by a parent to a child in the equivalent Act in New Zealand was put in this way:

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

131. The boundaries of the obligation or responsibility are not amenable to rigid definition. Importantly, there is no “presumptive testamentary entitlement of an offspring”: Underwood v Gaudron [2015] NSWCA 269, at [73].

132. The size of the deceased’s estate is also relevant to determining the extent of the obligation or responsibility.

(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

133. I have earlier dealt with these matters. The value of the net estate, even after considering the costs of the proceedings, available for distribution, on any view, is reasonably large.

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

134. The Plaintiff does not work and is in receipt of a disability pension from Centrelink. For reasons of her heath, I am satisfied that she has virtually no earning capacity, even though she thought she would be able to do volunteer work: T44.33 – T44.36.

135. Her income, from the pension is said to be $788 per fortnight (part of Ex. B). It is fair to say that the whole of the pension is exhausted by her living expenses as the amount she receives is, actually, less because some automatic deductions, to pay instalments of debts due to the Sydney Water Corporation, Energy Australia, and the Office of State Revenue (Court fines), are made each fortnight. (The Plaintiff thought that these debts would be paid off by about the end of 2018: T48.42 – T48.43.)

136. She has no savings and no superannuation. She has some liabilities, including a variable rate personal loan ($9,161) (Ex. C) and outstanding rates to the Inner West Council ($7,599) (part of Ex. B).

137. The Plaintiff receives some assistance from one of her sons, Damian, who sometimes cooks for her, and sometimes gives her an amount of $50 per fortnight if she needs it: T49.37 – T50.22. There is, of course, no legal obligation upon him to continue to assist in the way that he has.

138. Apart from the legacy of $50,000 which she was left in the deceased’s Will, and which has not been distributed to her, the Plaintiff's principal asset is the Marrickville property. As stated earlier, it has an agreed value of $1,250,000 in its present condition. The property is described as a 1940s single storey freestanding home, comprising two bedrooms, as well as a main bathroom, lounge, dining room, kitchen, and an external laundry and toilet, on an allotment of 305 square metres, in "a poor state and [requiring] general repairs including paintwork and floor coverings as a minimum".

139. An affidavit, sworn 18 April 2018, from Mr A Capaldi, a Building Consultant, confirms that the Marrickville property is in a relatively poor condition. The estimated costs and “the rectification/renovation works required to raise the property to a livable [sic] standard” amount to about $141,620 (inclusive of GST and builder’s margin). The photographs of the Marrickville property attached to the affidavit, corroborates the description further. Mr Capaldi was not cross-examined and I accept his evidence.

140. The Plaintiff was cross-examined upon alternative accommodation that might be available to her if she chose to sell the Marrickville property in its present state. She accepted that if she sold, she could purchase another property upon which significant repairs and renovations would not have to be done and that she had not looked at alternative accommodation: T46.03 – T46.32.

141. It was put to the Plaintiff that her doctor considered that “[d]ue to her functional state, [she] would benefit from re-location to an air-conditioned single storey home”: T50.40 – T50.50. The Plaintiff said that this was in the context of her having difficulty walking and because there were 8 steps in the Marrickville property, but that she wants to remain living in the Marrickville property as she does not want to move out of the area because her two sons live close by and also because the medical practitioners who she sees are also in the general area. Bearing in mind how long she has lived there, this is not an unreasonable desire.

142. The Plaintiff, in the past, had an ongoing problem with substance abuse, but says that she no longer has that difficulty: T51.

143. The Plaintiff’s expressed need is for a capital sum to enable her to pay for medical expenses, to pay off some debts and to enable her to repair the Marrickville property. She also states that she has a need for a fund for exigencies of life in the future.

144. The Defendant has given evidence of his financial resources (including earning capacity) and financial needs, both present and future. He currently operates his own trucking company, which consists of one truck which he drives.

145. The Defendant has assets comprising his half interest in the Bungonia property ($200,000), as well as the ownership of the only share, or all of the shares, in his trucking company (the value of which was not disclosed in evidence). Under the Will of the deceased, after a legacy of $50,000 is paid to the Plaintiff, the Defendant is entitled to the other half interest in the Bungonia property ($200,000), the San Souci property ($2,200,000), any remaining cash held ($14,761), as well as the deceased’s other miscellaneous items ($43,700). The Defendant is also entitled to the horses, which, as stated, are of negligible value.

146. (Of course, as discussed, the debts of the estate must also be paid, as well as any costs of these proceedings.)

147. The Defendant has not disclosed any significant current debts or liabilities. (It was noted earlier that the expenses he has incurred relating to the management of horses ($27,960) was to be borne by the estate. There may be liabilities incurred in respect of his trucking business.

148. In a document described as “company tax return 2015”, the gross income his company received was $217,308. However, the “total salary and wage expenses” were $19,000, which the Defendant stated were paid to him as wages. (He also noted that this was prior to his diagnosis of throat cancer).

149. In cross-examination, the Defendant gave evidence that he drew a fortnightly wage, which was between $500 and $1,000: T61.12 – T61.27. (He also suggested that he drew more depending upon his child support liability).

150. The Defendant had also been in a partnership with the deceased relating to the horse business, which business was run from the Bungonia Property. In cross-examination, the Defendant gave evidence that he had played no active role in this business, nor did he derive any income from it: T63.17 – T.63.18.

151. The Defendant also gave evidence that he has a child support liability of around $800 to $900 per month. (His youngest child is about 17 years old, and, therefore, this liability will not continue for much longer.)

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

152. The Plaintiff is single and lives alone.

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

153. In about 1966, when the Plaintiff was about 5 years old, her mother suffered a stroke and was hospitalized. At that time, the deceased was working as a truck driver and could not look after the children so they went to stay with her paternal grandmother at Hurlstone Park. The Plaintiff asserts that she was abused sexually by her grandmother’s de facto partner, which has left her traumatized. The sexual abuse is said to have continued for some years. The Plaintiff never told the deceased about this abuse.

154. The Plaintiff suffers from a number of medical conditions, including, but not limited to, moderate ventricular dysfunction, having multiple admissions to hospital with symptomatic heart failure, hypercholesterolaemia (elevated amounts of cholesterol in the blood), and an iron deficiency. One of her specialist doctors (Dr Patel), goes so far as to say that she is “somewhat functionally impaired from a heart failure perspective”.

155. The Plaintiff has reported experiencing a range of psychological issues including low self-esteem, self-blame, and negative beliefs about herself, others and the world; symptoms of depression and anxiety; and behaviours consistent with “shutting down” cognitively and emotionally in situations where she feels anxious, frightened or distressed.

153. Since 2003, she has been attending the Drug Health Counselling Service at Royal Prince Alfred Hospital. The Plaintiff is presently not using cannabis and is seeing her doctor (Dr Michaels) weekly to assist her with that problem and other psychological problems she faces.

154. The Defendant is suffering from throat cancer, with which he was diagnosed in December 2016. He also has a heart condition, for which he sees a heart specialist and takes medication for that condition. He gave evidence that these conditions limit his ability to earn income, as they prevent him from “doing work for any more than up to 3 days per week”. The Defendant, also, takes a range of other medication.

155. He has been advised that he may have to give up work in the not too distant future. (In 2008, he was diagnosed with prostate cancer and had a prostatectomy.) He also has a rotator cuff injury of his right shoulder which will require surgery.

156. There was no evidence about the life expectancy of the Defendant.

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

160. As stated, the Plaintiff is 56 years old.

(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

161. The Plaintiff does not assert any contributions of the type referred to, other than, perhaps, to the deceased’s welfare.

162. The Defendant gives evidence of his contributions. He says that he made a financial contribution to the Sans Souci property in that the proceeds of sale of another property (described as “Bylong Valley”), to which he was partly entitled, was paid in full to the deceased and that “I had to increase the loan over [the Sans Souci property] by $100,000 and gave that to my father to help him out financially”. He also says that whilst living there, he paid all of the expenses associated with the home such as the rates, insurances, electricity, repairs and maintenance.

163. There was a significant issue about whether the deceased, or the Defendant, had won $1,000,000 in Lotto in 1993. The Defendant asserted that he won it, and from the proceeds, he contributed about $300,000 towards the repair and renovation of the Sans Souci property. He was unable to produce any documents evidencing him having won, or otherwise demonstrating expenditure of lottery winnings: T71.23 – T71.24. (He answered the question by stating that he did not know that he had to keep any documents.)

164. The determination of this factual dispute is more complicated because at the funeral of the deceased, at which the Defendant was present, two friends of the deceased who spoke stated that the deceased had told them he had won the lottery. There was no demur by the Defendant at that time, or otherwise, to statements that he knew the deceased had made to similar effect: T72.12 – T72.13.

165. The truth appears to be somewhere in the middle of the two versions. In re-examination, at T74.38 – T75.20, the Defendant gave the following evidence having stated that he, also, had told the person who spoke at the funeral that it was the deceased who had won Lotto:

“Well, I was away, and me and dad has to buy lotto tickets, we take it in turns, one week your turn, one week my turn, whatever, and your name is written on the lotto ticket. Well I've just come back from doing an interstate trip, I don't know, I can't remember, it was that long ago, where I'd come back from, in bed asleep that night. Anyway, what the - he's watching it, one light up, he said, ‘Look at all the balls there’. He, he didn't even know until the next morning. They come and knocked on the door, 'cause he used his registration card. Anyway, they said - he thought it was the police at first. So, they've come down there. He said to me, ‘The police are here for something you might've done’. I said, ‘I can't remember’. ..(Not transcribable). So anyway, they come in there and done all the thing and my name's on the winning lotto ticket, it's got my name on it.

And that was also in the paper, ‘Truck Driver Wins Lotto’, it's one part of the, I think The Telegraph or the local paper, it's everywhere. And we just kept it as is, like, but dad said leave it as - 'cause they thought he won it, so they left it as, as is so I don't get pestered and annoyed by people, like, wanting to borrow money, wanting to do this, wanting to do that, and deal with my dad, so it didn't worry me one little tiny bit. What, you know, what's he going to do, rob me or something? He's my dad. So that's how it stayed and no one annoyed me, they annoyed him, and yet I was the one having all the cars and everything, so yeah.

HIS HONOUR

Q. Is this the position, that you and your dad used to buy lotto tickets together, one week you, one week him?

A. Yes, your Honour.

Q. Was there any arrangement as to what would happen with the winnings?

A. It was never discussed.

Q. It just so happened that the week of the lotto win was the week you had bought the ticket rather than the week your dad bought the ticket.

A. Yeah.

Q. Is that the position?

A. Yeah…”

166. The Defendant also gave evidence that he would give the deceased money when he needed it. Again, there was no documentary evidence corroborating the amounts given to the deceased, but there is no reason to disbelieve the Defendant’s evidence on the topic.

167. Counsel for the Plaintiff pointed to the evidence in the financial records that there was a loan account in the partnership conducted by the Defendant and the deceased, which showed a debit balance, suggesting that advances had been made from the partnership to the Defendant. This was said to suggest that the deceased had contributed to the Defendant’s financial position.

(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

168. There is no evidence of any provision made for the Plaintiff by the deceased during his lifetime. I have referred to the pecuniary legacy of $50,000 left to her under the last Will.

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

169. I have already referred to the testamentary intentions of the deceased. His desire to provide, principally, for the Defendant, is evident from each of the two Wills that he made. His reduction of the Plaintiff’s entitlement may be explained by the nature of their relationship at the time the deceased made his last Will.

(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

170. There is no evidence that the Plaintiff was being maintained by the deceased in the years prior to the deceased’s death.

171. The Defendant, on the other hand, was being partially maintained by the deceased, by virtue of his occupation, rent free, albeit not completely free of the payment of outgoings, of the Sans Souci property.

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

172. Apart from the Commonwealth government’s responsibility to continue to provide her with the disability pension, there is no other person who is liable to support the Plaintiff.

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

173. I am satisfied that there is no specific conduct of the Plaintiff to which I have not referred.

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

174. I have no doubt that the Defendant was a close companion of, and provided significant support to, the deceased. He gave evidence of his competing financial claim, asserting that any order for additional provision for the Plaintiff would, perhaps, require the sale of the Sans Souci property with the consequence that he would be left without the accommodation in which he has lived for about 30 years. His desire to retain the Sans Souci property is a reasonable one.

175. However, the Defendant has property, being the deceased’s share of the Bungonia property ($200,000), as well as his own interest therein ($200,000), if he chooses to use it, to meet any provision made in favour of the Plaintiff. Apparently, he would be prepared to do so: T91.03 – T91.08.

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

176. This factor is not applicable.

(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

177. I should note that the Defendant received no provision out of the estate of the parties’ mother, whereas, the Plaintiff did receive the whole of that estate, which included the Marrickville property. The Defendant accepted that he did not have a close relationship with her: T57.50.

178. However, there was no evidence given that “all members of the family recognised as [the Defendant’s] moral claim to the [Sans Souci] property upon his parents’ death because [the Plaintiff] had received an early inheritance of the [Marrickville] property” (as was found to be the case in Sgro v Thompson at [78]). Despite this fact, the receipt by the Plaintiff of the Marrickville property remains a relevant matter to be taken into account.

Determination

179. Having established eligibility, and that the proceedings were commenced within time, the question for determination is whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life, of the Plaintiff, has not been made by the Will of the deceased.

180. What follows should be read as a continuation of what has been written above, and also against the background of the factual matters, so far as they are relevant, to the circumstances set out below, even if they are not repeated.

181. There was some provision in the deceased's Will for the Plaintiff. It was for a pecuniary legacy of $50,000, in circumstances where the size of the estate, after deducting costs and expenses, is over $2.1 million. However, this does not, automatically, mean that the Plaintiff will have satisfied the jurisdictional threshold. A person may fail to satisfy the description of being "left without adequate provision" even though no, or only a relatively small, provision is made for her in the deceased’s Will.

182. Judged by quantum, and looked at through the prism of her financial circumstances, adequate provision for the Plaintiff’s proper maintenance or advancement in life could be seen as not having been made by the Will of the deceased. As stated, the test established by s 59 of the Act has regard not only to what is “adequate” by reference to the applicant’s needs, but also to what is “proper” in all the circumstances of the case. Thus, the financial prism is not the only one through which the Court must look. There must be an assessment of the Plaintiff’s financial position, the size and nature of the deceased’s estate (and notional estate), the relationship between the Plaintiff and the deceased, the competing claim of the Defendant, as another person who has a legitimate claim upon the bounty of the deceased, and the circumstances and needs of the Defendant: see, for example, McCosker v McCosker, at 571–572; Singer v Berghouse, at 210; Vigolo v Bostin, at [16], [75], [112]; and Tobin v Ezekiel (2012) 83 NSWLR 75; [2012] NSWCA 285 at [70].

183. This is a case in which, throughout their joint lives, there was a relationship between the Plaintiff and the deceased. Whilst it is clear that during his last years, the relationship was not a particularly close one, and one that was certainly not as close as the deceased’s relationship with the Defendant, the Plaintiff did continue to maintain a relationship with the deceased.

184. It should also be remembered, in this regard, that during his later years, the deceased was staying at the Bungonia property, which is some geographical distance from where the Plaintiff was living.

185. Yet, the deceased’s obligation to the Plaintiff is circumscribed by the limited contact the deceased had with the Plaintiff, particularly in his later years when they “grew apart” and the close relationship that the deceased had with, and the significant contribution made by, the Defendant, over many years. That significant competing claim of the Defendant, must be taken into account. The Court should evaluate the whole of the circumstances and I have done so, not limiting consideration to only the financial needs of the Plaintiff.

186. Taking all of these considerations into account, I am satisfied, for the purposes of s 59(1)(c) of the Act, that adequate provision for the proper maintenance or advancement in life has not been made for the Plaintiff.

187. Turning then to s 59(2), namely the question what provision “ought to be made for the maintenance, education or advancement in life” of the Plaintiff having regard to the facts known to the Court, there is no formula that can be used to determine the amount of that provision. In any event, an order for provision should be no more than is necessary to make adequate provision for the Plaintiff's proper maintenance and advancement in life. This involves “an instinctive synthesis that takes into account all the relevant factors and gives them due weight”: Grey v Harrison at 367. It is not a scientific, or arithmetic, exercise. However, similar considerations, as are set out above, arise.

188. Remembering that what is “proper” requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties’ financial circumstances, I am satisfied that the Plaintiff should receive a capital sum that she can use, or retain, as she wishes. This is a case in which the Plaintiff has a need to meet her obligations, all of which, now, and into the future, cannot be met from her own resources. She has a modest income provided to her by way of a pension. She has no fund available for exigencies of life. She has virtually no earning capacity. She has no person with a legal obligation to provide immediate, or continuing, financial support. She has no superannuation. The value of the deceased’s estate provides the means to alleviate these needs.

189. In coming to the conclusion on quantum, I have not forgotten the very significant competing claim of the Defendant, which was recognised by the deceased, in his last Will, as a superior claim, or preferable disposition, to the Defendant; his financial circumstances and state of health; and the nature, extent and character of the deceased’s estate.

190. I have also not ignored the submission of the Defendant that the Plaintiff could sell the Marrickville property and purchase something else which did not require expenditure of the large amount she says is required to repair and restore that property. But, if that occurred there would still be costs of sale, including agent’s commission, moving costs, as well as the stamp duty and the associated costs of purchasing another property.

191. Having regard to the competing claim upon the deceased’s bounty of the Defendant, a proportion of the estate can be used without, necessarily, impacting, in any significant way, upon the financial needs of the Defendant. However, as counsel for the Plaintiff accepted, in final written submissions, “the [P]laintiff had some detachment from the deceased, particularly after about 1993 or 1994… However, even then the plaintiff kept in touch with the deceased. She visited him at Christmas, on his birthday and at Easter and on other occasions.”

192. The provision for the proper maintenance and advancement in life of the Plaintiff that ought to be made, in my view, is by way of an additional lump sum of $175,000, making, in total, a legacy of $225,000 out of the estate of the deceased.

193. I have borne in mind, in reaching the lump sum, although not simply by adding them together, all of her claimed financial needs. The lump sum will enable the Plaintiff to pay off all her debts (not being paid by instalments from her pension) ($16,761), allow her to complete the repairs, maintenance and renovations on the Marrickville property ($141,620), and leave her with a modest capital sum ($66,619) to provide a buffer for exigencies of life, and which, until spent, will also provide a modest additional income to meet her current shortfall of expenditure over income.

194. As Gleeson CJ wrote in Vigolo v Bostin, at [12]:

"The legislation was not merely, or even primarily, concerned with relieving the state of the financial burden of supporting indigent widows and children. The courts were not empowered merely to make such provision for an applicant as would rescue the applicant from destitution."

195. The lump sum payable to the Plaintiff out of the deceased’s estate will still leave the Defendant with close to $2 million, and if, as suggested in submissions, he is likely to sell the Bungonia property, and use part of the proceeds of sale, he will not have to sell the Sans Souci property. Of course, that will be a matter entirely for him.

196. The Court:

1. Having found that the Plaintiff is an eligible person; that the proceedings were commenced within time; and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, orders that she receive, in addition to the legacy of $50,000 made for her in the Will of the deceased, a lump sum of $175,000.

2. Orders that provided the lump sum, and the legacy to which she is entitled under the Will, is paid within 2 months of the making of these orders, no interest is payable on either the legacy or the lump sum; otherwise, interest at the rate prescribed under s 84A(3) of the Probate and Administration Act 1898 (NSW) is payable on each of the legacy and the lump sum, calculated from that date until the date of payment in full.

3. Orders that the Plaintiff’s costs, calculated on the ordinary basis, and the Defendant’s costs, calculated on the indemnity basis, be paid out of the estate of the deceased.

4. Grants liberty to any party to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to, and implementing, the family provision order made in favour of the Plaintiff, including, but not limited to, an order for the sale of the Sans Souci property.

5. Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10) and Practice Note No SC Gen 18.

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Decision last updated: 14 June 2018