Curran v Harvey
[2012] NSWSC 276
•27 March 2012
Supreme Court
New South Wales
Medium Neutral Citation: Curran v Harvey [2012] NSWSC 276 Hearing dates: 14, 15 March 2012 Decision date: 27 March 2012 Jurisdiction: Equity Division Before: Hallen AsJ Decision: (a) Having found that the Plaintiff is an eligible person, and that the provision made for her in the Will of the deceased is inadequate, the Plaintiff is to receive a lump sum of $310,000, to purchase accommodation, including to pay associated costs and disbursements of purchase; a capital sum of $250,000, which amount should provide capital and income to her, of which $50,000 should be paid within 28 days of these orders, to enable her to pay for furniture and whitegoods for the home that are required, and to pay any debts. That amount, if paid, should be retained by her solicitors, or other trustee, pending the purchase of the furniture and whitegoods and to pay debts. A further $50,000 (of the $250,000), together with any interest accrued thereon, should be paid to her at the end of each 12 month period that she remains out of prison. It follows that if she is able to stay out of prison for four consecutive 12 month periods, she will have received the balance of the capital sum.
(d) If she is incarcerated at any time, the 12 month period before she will be entitled to the amount of $50,000, together with the interest accrued thereon, will commence on the day of her release from prison.
(e) A separate fund of $85,000 (in addition to the $250,000), to be set aside to be used for paying for counselling sessions. However, to the extent that any part of that amount is not used for the purpose, within 5 years, or such other time as the court then determines, it is to be paid back to the deceased's estate to be divided between the beneficiaries in the percentages referred to below.
(f) The part of the burden of the provision for the Plaintiff, that the beneficiary, Amanda should bear is 43.6%; the part of the burden that the beneficiary, Danielle, should bear is 36.7%; the part of the burden that that the beneficiary, Mr Ball, should bear is 10.4%; and the part of the burden the grandchildren beneficiaries should bear is 9.3%. In the event that Amanda and Danielle wish to leave untouched the share of the grandchildren, the burden of each will be increased by 4.65%.
(g) Direct the parties to bring in short minutes to reflect these reasons.
(h) If the parties are unable to reach agreement on the costs of the proceedings, any submissions as to costs can be dealt with at a time suitable to counsel and to the court.
Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiff, a daughter of a former de facto partner of deceased seeks family provision order under Family Provision Act 1982 - Whole estate shared between natural daughters, a friend, identified grandchildren of the deceased - Allegations of sexual relationship between the Plaintiff and the deceased - Whether jurisdictional issue established, factors warranting the making of the Plaintiff's application, and if so, nature and quantum of provision to be made. Legislation Cited: Evidence Act 1995
Family Provision Act 1982
Social Security Act 1991 (Cth)
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Uniform Civil Procedure Rules 2005Cases Cited: Alexander v Jansson [2010] NSWCA 176
Allardice, Allardice v Allardice, In re (1909) 29 NZLR 959
Anasson v Phillips (NSWSC, 4 March, 1988, unreported)
Anderson (deceased), Re (1975) 11 SASR 276
Baird v National Mutual Trustees Ltd & Attorney General for State of Victoria (Supreme Court of Victoria, 22 November 1995, unreported
Bartlett v Coomber [2008] NSWCA 100
Blore v Lang [1960] HCA 73; (1960) 104 CLR 124
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Brown v Faggoter [1998] NSWCA 44
Buckland v Trustees Executors and Agency Co. Limited (1966) 40 ALJR 164
Buckland deceased, Re [1966] VR 404
Bull, Re; Bentley v Brennan [2006] VSC 113
CSG Limited v Fuji Xerox Australia Pty Ltd [2011] NSWCA 335
Cameron v Cameron [2009] SASC 27
Carey v Robson [2010] NSWCA 212
Churton v Christian (1988) 13 NSWLR 241
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Crossman v Riedel [2004] ACTSC 127
Day v Couch (2000) NSWSC 230
Devereaux-Warnes v Hall (No 3) [2007] [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Drayson v Drayson [2011] NSWSC 965
Durham v Durham [2011] NSWCA 62
Evans v Levy [2011] NSWCA 125
Fede v Dell'Arte [2010] NSWSC 1113
Foley v Ellis [2008] NSWCA 288
Fulop Deceased, Re (1987) 8 NSWLR 679
Galea v Bagtrans Pty Ltd [2010] NSWCA 350
Gardiner v Gardiner (NSWSC, 28 May 1998, unreported)
Gilbert, In re The Will of (1946) 46 SR (NSW) 318
Goddard Elliott (a firm) v Fritsch [2012] VSC 87
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Goodsell v Wellington [2011] NSWSC 1232
Gorton v Parks (1989) 17 NSWLR 1
Graziani v Graziani (NSWSC, 20 February 1987, unreported)
Hampson v Hampson [2010] NSWCA 359
Hoadley v Hoadley (Supreme Court of New South Wales, 17 February 1987, unreported)
Hodgson, Re (1886) 31 Ch D 177
Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134
Hyland v Burbidge [2000] NSWSC 12
Jennings Dec'd, Re ([1993] EWCA Civ 10; [1994] Ch 286
Jones v Dunkel (1959) 101 CLR 298
Kay v Archbold [2008] NSWSC 254
Kembrey v Cuskelly [2008] NSWSC 262
Litchfield v Smith & Tingate [2010] VSC 466
Lumb v McMillan [2007] NSWSC 386
McCosker v McCosker [1957] HCA 52; (1957) 97 CLR 566
McKenzie v Topp [2004] VSC 90
MacGregor v MacGregor [2003] WASC 169 (28 August 2003)
Madden-Smith v Madden [2012] NSWSC 146
Marks v Marks [2003] WASCA 297
Mayfield v Lloyd-Williams [2004] NSWSC 419
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170
Palaganio v Mankarios [2011] NSWSC 61
Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361
Penfold v Perpetual Trustee [2002] NSWSC 648
Plunkett v Bull [1915] HCA 14; (1915) 19 CLR 544
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19
Porthouse v Bridge [2007] NSWSC 686
Puckridge (dec'd), In the Estate of (1978) 20 SASR 72
Savic v Kim [2010] NSWSC 1401
Singer v Berghouse (No 2) [1994] HCA 40
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stiles v Joseph (NSWSC, 16 December 1996, unreported)
Stott v Cook (1960) 33 ALJR 447
Taylor v Farrugia [2009] NSWSC 801
Thom v The Public Trustee (NSWSC, 2 April, 1992, unreported),
Tsivinsky v Tsivinsky [1991] NSWCA 269
Vigolo v Bostin [2005] HCA 11
Vukic v Grbin; Estate of Grbin [2006] NSWSC 41
Walker v Walker (NSWSC, 17 May 1996, unreported)
Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123
Weeks v Hrubala [2008] NSWSC 162
West v France [2010] NSWSC 845
Williamson v Williamson [2011] NSWSC 228Texts Cited: Government Gazette No. 38, 20 February 2009 Category: Principal judgment Parties: Belinda Anne Curran (Plaintiff)
Phillip William Harvey (Estate of the late Donald Leslie Julian) (Defendant)Representation: Counsel:
Mr J Armfield; Mr GJ Smith (Plaintiff)
Mr A Hill (Defendant)
Solicitors:
Harbour Law (Plaintiff)
Cooney Harvey Doney (Defendant)
File Number(s): 2010/240021
Judgment
Introduction
HIS HONOUR: These reasons concern proceedings commenced under the Family Provision Act 1982 ("the Act"), even though that Act has been repealed, effective from 1 March 2009. Under clause 11(2) of Schedule 1 of the Succession Act 2006, the provisions of the Act "continue to apply in relation to the estate of a person who dies before the commencement of this clause, in so far as they are not affected by the operation of this Part". That clause commenced on 1 March 2009: s 2(1) Succession Amendment (Family Provision) Act 2008 and Government Gazette No. 38 of 20 February 2009, page 1036.
Donald Leslie Julian (hereafter called "the deceased") died on 27 February 2009, aged 79 years. It is in respect of his estate that the proceedings are concerned. The Plaintiff, Belinda Curran, is a daughter of the deceased's former de facto wife. The parties in the proceedings described her in the proceedings as "a stepdaughter" of the deceased, even though the deceased and her mother were never married.
The proceedings were commenced by originating Summons filed on 19 July 2010, that is, within the time prescribed by the Act (18 months from the date of the deceased's death). The Plaintiff seeks a family provision order and an order for costs. The former is an order made by the court under the Act in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person. The Defendant, Phillip William Harvey, the executor appointed under the Will of the deceased, was the deceased's solicitor at the date of death. He opposes the Plaintiff's entitlement to relief.
There is no question, in the present case, of any provision being sought out of notional estate of the deceased.
Without any disrespect or undue familiarity intended, I shall refer to the Plaintiff, and where necessary, after introduction, to each of the other family members of the deceased by her, or his, given name.
Preliminary Matter
On the day before the hearing, the Plaintiff, without opposition by the Defendant, brought the matter before me, urgently, by a notice of motion, in which she sought an order vacating the hearing dates and consequential relief.
I permitted the notice of motion to be filed in court upon the undertaking given by the Plaintiff's solicitor, by her counsel, to pay any filing fee payable on the filing of that notice of motion in the Registry.
The bases of the Plaintiff's application to vacate were, firstly, that a copy of two reports by the Plaintiff's treating psychologist, which reports had recently been served as annexures to an updating affidavit, sworn 5 March 2012, of the Plaintiff, had prompted the Defendant to write a letter dated 6 March 2012, stating that objection would be taken to both of the reports and that if the reports were to be relied upon "we will seek to adjourn the matter so that we can arrange for examination of your client by a psychiatrist". Secondly, the Plaintiff submitted that the Defendant's evidence was incomplete, in that the nature and value of the distributable estate had not been fully, or accurately, disclosed in the Defendant's affidavit sworn 5 March 2012.
The Defendant, who also appeared by counsel on the notice of motion, opposed the orders sought, upon the basis that I should uphold the objection to the late service of the psychologist's reports and should refuse to permit the Plaintiff to rely upon either report. It was submitted that the Defendant would be at "a distinct disadvantage" if the Plaintiff was able to rely upon either of the reports.
During argument, I pointed out that the Plaintiff, as early as 17 November 2010, had referred to "sexual assaults from an early age" by the deceased and had identified symptoms from which she then, and had, suffered, many of which were identified in one, or both, of the psychologist's reports. The Plaintiff had repeated some of those matters in her subsequent affidavit of 18 March 2011. It was accepted that neither the Defendant, nor other witnesses upon whose evidence the Defendant relied, had responded to the Plaintiff's evidence on these matters and no attempt had been made to have the Plaintiff examined following the service of her earlier affidavits. In those circumstances, I indicated that I was, then, unable to see how the Defendant had been prejudiced by the contents of the reports.
Having heard the submissions, I indicated that if the reports were to be relied upon by the Plaintiff, the psychologist should be available for cross-examination, if required by the Defendant, which cross-examination could take place via telephone link, since the psychologist was in Coffs Harbour, and because it was unlikely that her credibility would be in issue. In addition, I suggested that upon request by the Defendant's legal representatives, a copy of the psychologist's contemporaneous notes relating to the Plaintiff should be made available for inspection as soon as reasonably possible.
Subject to those matters, I was prepared to dispense with compliance with the relevant part of the Uniform Civil Procedure Rules 2005 in relation to the use of expert evidence in the proceedings (UCPR rule 31.19) and reliance upon affidavits served later than a reasonable time before the occasion for using it arose (UCPR rule 10.2).
In relation to the Plaintiff's second argument, I accepted the Defendant's submission that the Defendant's affidavit of 5 March 2012, was a satisfactory one and that it identified, with sufficient clarity, the current nature and value of the deceased's estate. In any event, I noted that there was no dispute that what had been identified as property of the deceased, including various parcels of real estate with a value of about $2.0 million and $1.0 million on deposit, was sufficient to satisfy the claim of the Plaintiff.
In the circumstances, I dismissed the Plaintiff's notice of motion and reserved costs and stated that I would include reasons for doing so in my judgment in the substantive proceedings.
The hearing proceeded on 13 March 2012. At the hearing, no objection was taken to either of the two psychologist's reports annexed to the Plaintiff's affidavit of 5 March 2012; a copy of her contemporaneous notes had been produced, and, in the events that happened, inspected, and relied upon, by the Defendant; the psychologist was not required for cross-examination; and the parties were able to agree upon the nature and value of the deceased's estate.
On the issue of costs of the motion, each party was partly successful, and, in those circumstances, the costs of the motion should be costs in the cause.
Formal Matters of Fact
The deceased left a Will, made and published by him, on 7 March 2008.
Probate of the deceased's Will was granted, on 28 October 2009, to the Defendant.
The deceased's Will provided for:
(i)Danielle Louise Curran - a daughter of the deceased - to receive:
(a)Three parcels of real estate at Riverside Drive, Kinchela;
(b)Real estate at Fairweather Lane, Kinchela;
(c)One-quarter share real estate at Raymonds Lane, Collombatti;
(d)One-quarter share quarry machinery/equipment situate at Raymonds Lane, Collombatti
(e)One-half share of net proceeds of sale of three parcels of real estate at Right Bank Road, Kinchela;
(f)One-half share of the residue of the estate.
(ii)Amanda Lesley Slocombe - daughter of the deceased - to receive:
(a)Real estate at Hat Head Road, Hat Head;
(b)One-quarter share real estate at Raymonds Lane, Collombatti;
(c)One-quarter share quarry machinery/equipment situate at Raymonds Lane, Collombatti;
(d)One-half share of net proceeds of sale of three parcels of real estate at Right Bank Road, Kinchela;
(e)One-half share of the residue of the estate.
(iii)Garry Ball - a friend of the deceased - to receive:
(a)One-half share real estate at Raymonds Lane, Collombatti;
(b)One-half share quarry machinery/equipment situate at Raymonds Lane, Collombatti;
(iv)Joshua Shannon Wells - a grandchild of the deceased - to receive:
One-seventh share net proceeds of sale of real estate at Straight Street, Hat Head;
(v)Jarryd Leslie Slocombe - a grandchild of the deceased - to receive:
One-seventh share net proceeds of sale of real estate at Straight Street, Hat Head;
(vi)Latesha Jennifer Slocombe - a grandchild of the deceased - to receive:
One-seventh share net proceeds of sale of real estate at Straight Street, Hat Head;
(vii)Darcy Thomas Winn - a grandchild of the deceased - to receive:
One-seventh share net proceeds of sale of real estate at Straight Street, Hat Head;
(viii)Kirstyn Leilani Winn - a grandchild of the deceased - to receive:
One-seventh share net proceeds of sale of real estate at Straight Street, Hat Head;
(ix)Rachel Louise Pidcock - a grandchild of the deceased - to receive:
One-seventh share net proceeds of sale of real estate at Straight Street, Hat Head;
(x)Joel Donald Berry - a grandchild of the deceased - to receive:
One-seventh share net proceeds of sale of real estate at Straight Street, Hat Head.
With the exception of Mr Ball, the relationship between the deceased and the other beneficiaries is that of family members. No provision was made for Belinda in the Will of the deceased.
There is nothing in the Will, or otherwise in the evidence, to explain the deceased's reasons for omitting Belinda from his testamentary bounty. The Defendant was silent on the deceased's instructions in regard to his testamentary intentions. (Evidence of intentions and wishes of the deceased in respect of provision for an applicant is admissible in family provision proceedings: Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 481-482).
The deceased, at the date of his death, did not own the Right Bank Road, Kinchela, real estate, referred to in the Will.
The homestead, which was situated on the Fairweathers Lane, Kinchela real estate, was destroyed by fire in September 2010 and although an insurance claim has been made, it has not, as yet, been finalised. However, the insurer has offered an amount of $50,000 to satisfy that claim.
In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the estate of the deceased, at the date of death, was disclosed as having an estimated, or known, gross value of about $4,422,229. The estate was said to consist of various parcels of real estate referred to above (total value $3,591,250), cash in bank or financial institution on deposit ($376,944); livestock ($24,810); machinery and equipment ($237,430); and loans repayable to the deceased ($5,000 by Garry Ball; $61,307 by Danielle; and $125,486 by Amanda). (I have omitted any reference to the cents, which accounts for the small difference in addition, and shall continue to do so.)
Since the date of death, amounts totalling $321,744 have been paid to, or on behalf of, Amanda. A Nissan Nivara car, with a value of $6,000, belonging to the estate, has been transferred to her.
Since the date of death, amounts totalling $321,744 have been paid to, or on behalf of, Danielle. A Holden Commodore car, with a value of $2,350, belonging to the estate, has been transferred to her.
Debbie Sydenham, who is also a daughter of Belinda's mother, and an eligible person within the meaning of the Act, made a claim under the Act, which was settled, at mediation, in August 2011, for $300,000, inclusive of her costs. That amount has been paid to her out of the estate. Presumably, the Court made a family provision order in her favour in those proceedings.
The Defendant's costs and disbursements in connection with the administration of the deceased's estate, up to 5 March 2012, of $82,259, have been paid. These do not include the Defendant's legal costs and disbursements of these proceedings.
The parties agreed that, at the date of hearing, the balance of the deceased's estate has an estimated gross value of $3,289,047. The estate still consists of some parcels of real estate ($1,992,000), machinery and equipment ($99,300), cash in bank or in financial institution on deposit ($1,000,000), and an amount held in the solicitor's trust account ($10,954). Whilst the amount of the debts said to be owed by Danielle and Amanda have been included in the estimated gross value, these debts have not been repaid to the estate. Apparently, there may be some dispute that each is payable.
The cash amount held on deposit includes rent and agistment fees that have been earned by the estate since the date of death.
The parties ignored, in the calculations set out above, the amount of $50,000 that has been offered by the insurance company and to which reference has been made earlier. However, it is a contingent asset of the estate.
All taxation liabilities have been paid. Since the deceased's death, the Defendant, with the assistance of Mr Ball, has continued the operations of a quarry on one of the parcels of real estate. Mr Ball operates an earthmoving business and, as far as the quarry is concerned, he and the deceased worked together to obtain contracts for the supply and delivery of gravel. The gravel would come from the quarry for which the deceased (and later the estate) would be paid and Mr Ball would receive payment from the contract price for his cartage and delivery of the gravel. The estate has been reliant on Mr Ball in the continued operations of the quarry.
Tax invoices for any expenses relating to the quarry, including machinery repairs, which can be quite significant given the nature of the machinery involved, are first submitted to Mr Ball to confirm the amount sought is properly payable. The Defendant has paid accounts that have been approved by him as properly payable.
Other than the costs of the proceedings, to which I shall come next, the only contingent liability of the estate is the amount that may be sought to be recovered from the estate in the event that the Plaintiff is successful in her claim for a victim's compensation order (a matter to which I shall return later in these reasons), the maximum amount of which is believed to be $50,000.
In calculating the value of the net distributable estate at the date of hearing, the costs of the present proceedings should be taken into account, since a Plaintiff, if successful, will, normally, be entitled to an order that her costs be paid, whilst a Defendant, irrespective of the outcome of the proceedings, will, normally, be entitled to an order that his costs be paid.
The estimated costs and disbursements, including counsel's fees, of the Plaintiff, based upon a hearing with an estimate of two days duration, calculated on the indemnity basis, are estimated to be $67,500. Those costs and disbursements, calculated on the ordinary basis, are estimated to be $60,000, in each case, including GST. (The Plaintiff's counsel confirmed that there is no contingency fees agreement and no uplift factor applicable in calculating the estimates.) Belinda has not paid any part of these costs and disbursements.
The estimated costs and disbursements, including counsel's fees, of the Defendant, based upon a hearing with an estimate of two days duration, calculated on the indemnity basis, are estimated to be $85,941, including GST. Counsel for the Defendant confirmed that no part of these costs and disbursements have been paid out of the estate. He also confirmed that the costs include the costs of the proceedings commenced by Debbie settled at mediation.
If the estimates of the value of the balance of the distributable estate ($3,289,047), and if the costs and disbursements of each party ($145,941), ultimately, prove accurate, and if a costs order is made under the Act in favour of the Plaintiff for the amount of her costs (calculated on the ordinary basis), and of the Defendant's costs (on the indemnity basis), the value of the net estate available for distribution, is likely to be about $3,143,106. That is the value of the balance of the net distributable estate the parties accepted upon which I should determine the case. (I have been requested to determine the issue of costs after an opportunity has been given to the parties to consider these reasons for judgment.)
Using the estimates of the property of the deceased, the parties agree that the deceased's grandchildren will share a property with a value of $327,000; that Mr Ball will receive property with a value of $365,650; that Amanda will receive property (including a one half share of residue) with a value of $1,529,878 (including the amount of $321,744 and a car with a value of $6,000 already distributed to her) and Danielle will receive property (including a one half share of residue) with a value of $1,286,228 (including the amount of $321,744 and a car with a value of $2,350 already distributed to her).
The persons described as eligible persons, within the meaning of the Act, are Belinda, Debbie, Danielle and Amanda.
The beneficiaries, Joshua, Jarryd and Latesha, are the children of Amanda.
The beneficiaries, Rachel, Joel and Jeremy, are the children of Danielle. Danielle has two other children who are infants and who are not named as beneficiaries.
None of the deceased's grandchildren, or Mr Ball, is an eligible person within the meaning of the Act.
Since neither Amanda, nor Danielle, has made a claim under the Act, and because each has been given notice of Belinda's claim, I may disregard the interests of each: s 20 of the Act. I shall not do so. Each of the children of the deceased and the named grandchildren is a chosen object of testamentary bounty and it is for each of them that the deceased wished to provide by his Will. Later, I shall deal with the financial and material circumstances of each of the eligible persons.
I shall, however, ignore any rights that Debbie might have, since she has made a claim that has been settled and because the order for provision made in her favour has been satisfied out of the estate.
Background Facts
I am satisfied that the following facts are not in dispute or that they have been established by the evidence.
The deceased was born in August 1930 and was aged 78 years at the date of his death.
Belinda was born May 1969 and is aged almost 43 years.
Belinda is a daughter of the deceased's former de facto partner, Elaine Joyce Farrawell Curran. Elaine commenced to live with the deceased in about 1969 or 1970 and was his de facto partner until their separation in about 1981 or 1982. Belinda was a member of the household of which the deceased was a member and was wholly and partly dependent on him, whilst Elaine was the deceased's de facto spouse. During that time, the household, which was then at one of the deceased's properties at Kinchela, consisted, at different times, of the deceased, Elaine, Debbie, Belinda, Amanda and Danielle.
Amanda and Danielle are the biological children of the deceased and Elaine. Amanda was born in October 1971 and is currently aged 40 years. Danielle was born in November 1977 and is currently aged 34 years. Each is, therefore, a half-sister of Belinda and of Debbie.
Following the separation of the deceased and Elaine, she took her four children to a caravan park in Kempsey, where they lived together for about three months. They then moved to Port Macquarie where they lived together, at different places.
Following their separation, the deceased paid child support to Elaine for Amanda and Danielle. He would also give Amanda and Danielle extra money for clothing and other expenses.
With their move to Port Macquarie, contact with the deceased became irregular. However, following Danielle being placed in foster care, contact with the deceased became more regular.
Belinda returned to live in Kinchela after a few years in Port Macquarie. She went to high school there for a short time, but ceased her schooling in 1986 when she fell pregnant with her first child, Nathan, who was born in July 1986. She subsequently had three more children, namely Zachary, who was born in May 1989, Alana-Jeane, who was born in November 1990 and Zappa, who was born in September 1994. None of her children are beneficiaries named in the deceased's Will.
Belinda admits that she has been imprisoned several times during her life. Her incarceration has usually been for crimes associated with violence, although there was one offence for fraud (the precise nature of which was not revealed in the evidence). She has had other offences for driving whilst disqualified and driving an uninsured motor vehicle. She estimates that she has spent about 7 years in jail for the various offences of which she has been convicted.
Belinda also admitted that, since the age of about 25 years, she has been addicted to some illicit drugs. She has smoked marijuana and has taken heroin and amphetamines. She considers herself addicted to nicotine. She was also taking serapax to assist her sleep until relatively recently. Because of her financial position, she has not been able to purchase drugs "for weeks".
Elaine died in June 2010.
The Defendant was the deceased's solicitor for 10 to 15 years prior to the deceased's death. He was the draftsman of the deceased's Will probate of which was granted. He gave no evidence of any prior testamentary instruments of the deceased. Nor did he give any evidence of any prior testamentary intentions of the deceased, or of any instructions given to him at, or about the time, the last Will was prepared. His evidence was limited to the formal affidavits in which he disclosed the nature and value of the deceased's estate (as at the date the affidavit was sworn). He was not cross-examined.
Only the Plaintiff and Amanda were cross-examined.
The Statutory Scheme
Although I have set out much of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in their application.
Belinda must first establish eligibility under the Act, as it is one of the necessary preconditions to an order being made: s 7 of the Act.
She claims eligibility to make the application under the following provision of s 6(1) of the Act:
"(d)a person:
(i)who was, at any particular time, wholly or partly dependent upon the deceased person, and
(ii) who ... was, at that particular time or at any other time, a member of a household of which the deceased person was a member."
In relation to s 6(1)(d), there are two limbs. Relevantly, the first is a relationship of dependence, whether wholly or partial, upon the deceased; the second is being "a member of the household of which the deceased person was a member".
There is no dispute, in this case, that Belinda is an eligible person within s 6(1)(d) of the Act.
There is also no dispute that Belinda's application is one in relation to a deceased person in respect of whom administration has been granted, being an application made by a person in whose favour an order for provision out of the estate, or notional estate, of the deceased has not previously been made: s 7 of the Act.
As an eligible person within s 6(1)(d) of the definition of eligible person in the Act, it is necessary, pursuant to s 9(1) of the Act, for the Plaintiff to next establish that, having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application. The court must refuse to proceed with the determination of the application and to make the order unless it is satisfied that there are those factors.
The Act does not specify the "factors which warrant the making of the application". In considering the meaning of what he described as "this poorly conceived and clumsily expressed subsection" (which did not form part of the Draft Bill produced by the Law Reform Commission), M McLelland J, in Re Fulop Deceased (1987) 8 NSWLR 679 at 681 (approved in substance by the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241) said that the "factors" are factors which, when added to facts which render the applicant an eligible person, give him, or her, the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased.
In Graziani v Graziani (NSWSC, 20 February 1987, unreported), a case involving a claim by stepchildren, Cohen J said at 10:
"In order to look at the factors which warrant an application in the case of a plaintiff who establishes that he or she is an eligible person under par (d) of the definition, it is necessary to look not only at the nature of the relationship, but the quality of it. The Court should consider the circumstances in which it arose and to some extent it must also look at the weight of the application which might lead to the finding that the plaintiff has been left without adequate provision for his or her proper maintenance, education or advancement in life. The circumstances must vary in every case and it would be foolish to seek to limit them in any way. Where, however, the plaintiff has established a position as a stepchild of perhaps a foster-child then there would be a number of relevant matters in my opinion which the Court should consider in deciding whether factors exist. These include the closeness of the relationship, that is whether it was one which might be properly described as parent and child, whether the plaintiff was brought up as a permanent member of the family, what was the age of the plaintiff when he or she became a member of that family, and the extent to which the plaintiff was supported by the deceased, whether it be financially, educationally or emotionally.
If a consideration of these matters leads the Court to the opinion that the plaintiff was brought up and treated as a child of the testator and if all of the other circumstances show that there may have been a moral duty on the part of that testator to provide for the plaintiff then there are factors which would warrant the making of the application."
Kirby P in Tsivinsky v Tsivinsky [1991] NSWCA 269, in dealing with the section, said at 13:
"Insofar as s 9(1) gives any guidance concerning the factors 'which warrant the making of the application', it is Delphic. The language used is extremely broad in its generality ('all the circumstances', 'whether past or present', 'factors... warrant making the application', 'satisfies'). The only real clue as to what is meant is to be derived from the apparent policy of confining this additional, preliminary procedure to the particular categories of 'eligible person' contained in the definition paras (c) and (d) in s 6(1) of the Act."
In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard AJA and Fitzgerald AJA, there was the view taken, at 13, that an application might be warranted "if the application has reasonable prospects of success" and that "[I]t need not be demonstrated for the purpose of subs9(1) that the application is entitled to succeed; i.e., that an order in favour of the applicant is warranted. Conversely, if an application is entitled to succeed, it is axiomatic that the making of the application was warranted." This seems to be a somewhat different and, perhaps, an easier, test than that which the Court of Appeal approved in Churton v Christian.
In Penfold v Perpetual Trustee [2002] NSWSC 648, Windeyer J did not follow Brown v Faggoter. Bryson AJ also commented in Porthouse v Bridge [2007] NSWSC 686 at [9]:
"In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors ("there are factors") is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination."
In Diver v Neal [2009] NSWCA 54 (also (2009) 2ASTLR 89), Basten JA, with whom Allsop P and Ipp JA agreed, said of s 9(1):
"8 As noted above, compliance with this requirement was not the first issue addressed by the primary judge, although s 9(1) envisages that it is to be determined before the Court decides whether to "proceed with the determination of the application". In practice, the factors relevant to the issue raised as a preliminary matter are, to a significant extent, co-extensive with those which must be addressed in determining whether the testator made adequate provision for the applicant: see Churton v Christian (1988) 13 NSWLR 241 at 242-243 (Hope JA) and 248-249 (Priestley JA). Nevertheless, the express distinction between two classes of eligible person must be recognised. It appears to have been drawn on the basis that persons falling within the first category (comprised of those identified in pars (a) and (b)) are "regarded as natural objects of testamentary recognition", whereas those falling within the second category (identified in pars (c) and (d)) are potentially appropriate objects of testamentary recognition, depending upon their circumstances: see Churton at 252 (Priestley JA) applying the analysis of McLelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681."
More recently, in Evans v Levy [2011] NSWCA 125, Young JA, with whom Campbell JA and Sackville AJA agreed, said:
"[62] It would seem that what the drafter of the legislation of 1982 did was to endeavour to avoid some of the complications that had been found to exist with cases under the 1916 Act as to just who was an eligible person by broadening the category to a very extensive degree. However, to provide some sort of filter, s 9(1) was enacted so that, without the estate having to get into a great expense, the question of whether the application could possibly succeed would be determined early. Unfortunately, experience has shown that that was a vain hope.
[63] However, the intended result of the wide nature of para (d) of the definition of "eligible person" and s 9(1) is to seek to restrict people whose claims should proceed to a hearing to those who are in very similar categories to those who are within paras (a) and (b) of the definition.
[64] On s 9, the decision of M McLelland J in Re Fulop (dec'd) (1987) 8 NSWLR 679 has stood the test of time."
It can be seen that the trend of authorities does not favour the view suggested in Brown v Faggoter. With great respect, I also regard the views expressed in the authorities referred to by Windeyer J, Bryson AJ, Basten JA, Campbell JA, and Young JA, as correct, and propose, in the circumstances, to follow their decisions. I have done so in other cases under the Act: see, for example, Fede v Dell'Arte [2010] NSWSC 1113.
If the applicant is an eligible person, and if she, or he, establishes factors which warrant the making of the application, the next question for determination is whether the provision made for her, or him, by the deceased, either during his, or her, lifetime, or out of the estate, is, at the time the court is determining whether or not to make an order, inadequate for the proper maintenance, education and advancement in life of that applicant: s 9(2) of the Act.
Thus, the power of the Court to make an order under the Act is enlivened by the formation of an opinion that the disposition of the deceased's estate effected by his, or her, Will is not such as to make adequate provision from his, or her, estate for the proper maintenance, education and advancement in life of the applicant.
No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute "inadequate provision for the proper maintenance, education and advancement in life".
The question is answered by an evaluation that necessarily takes the court to the provision actually made in the deceased's Will on the one hand, and to the needs for maintenance and advancement in life of the eligible person on the other. It has conventionally been said that this involves a consideration of the relationship between the deceased, the eligible person and other relevant persons having similar claims for adequate provision to be made for them: see Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, per Gibbs J., at 496).
It was said in the Court of Appeal (per Basten JA) in Foley v Ellis [2008] NSWCA 288 at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment".
"Provision" is not defined by the Act, but it was noted in Diver v Neal at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".
Neither are the words "maintenance" and the phrase "advancement in life" defined. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at [115], said, of the words "maintenance", "support" and "advancement":
"'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education."
In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, King CJ said at 77:
"The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang (1960) 104 CLR 124, per Dixon CJ at 128."
Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16:
"Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that . . . [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541)
In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274...
In Certoma, The Law of Succession In New South Wales (2nd Ed at 208), it is said:
'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, and income producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.'
The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes that:
'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'"
In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J noted at [114]:
"In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support."
In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said:
"The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)."
The word 'adequate' connotes something different from the word 'proper'. 'Adequate' is concerned with the quantum, whereas 'proper' prescribes the standard, of the maintenance education and advancement in life: Devereaux -Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 at [72] and at [77], per Buss JA.
Each of the words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd, at 476:
"The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."
Dixon CJ and Williams J, in McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that:
"It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."
In Goodman v Windeyer, Gibbs J said at 502:
"[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."
Santow J pointed out in Gardiner v Gardiner (NSWSC, 28 May 1998, unreported), "adequate" and "proper" are independent concepts. He said at 12:
"Adequate" relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. "Proper" depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied ..."
In Vigolo v Bostin at [114], Callinan and Heydon JJ said:
"[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."
In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed) at [18] stated:
""Proper maintenance" is not limited to the bare sustenance of a claimant [cf Gorton v Parkes (sic) [1989] 17 NSWLR 1], but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility."
In Palaganio v Mankarios [2011] NSWSC 61, at [72], White J observed that "the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased ... was "adequate" for [that person's] maintenance, education and advancement in life, involve value judgments on which minds can legitimately differ", and "there are no definite criteria by which the question can be answered".
In applications under the Act, the High Court in Singer v Berghouse(No 2) [1994] HCA 40; (1994) 181 CLR 201, has set out the two-stage approach that a court should take. At 209-210, it was said by Mason CJ, Deane J and McHugh J:
"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Ltd. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."
In Vigolo v Bostin, Gleeson CJ at [5] and [74], and Gummow and Hayne JJ at [82]-[83] approved the two-stage test set out in Singer v Berghouse.
The first stage of the process provided for has been described as "the jurisdictional question". At this stage, the court will consider whether it can make an order for provision for the maintenance, education and advancement in life of a particular applicant.
Whether the applicant has a 'need' is a relevant factor at the first stage of the enquiry. It is an element in determining whether 'adequate' provision has been made for the 'proper' maintenance education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 at [42] (Tobias JA, with whom Beazley and Hodgson JJA agreed).
Tobias JA said:
"42. There can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focused. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies.
...
47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is "proper maintenance etc" of the eligible person. It is the cause of that context that, in the present case, the "proper maintenance etc" of the appellant required consideration to guard against the contingency to which I have referred."
In Devereaux-Warnes v Hall [No 3] at [81]-[85], Buss JA said, in respect of the first stage of the process:
"The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227.
'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11.
The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575.
Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]."
In the event that the court is satisfied that the power to make an order is enlivened (i.e. it is satisfied that the Plaintiff is an eligible person, and, where necessary, that factors warranting have been satisfied, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), then, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made.
Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.
A similar view was expressed by Campbell JA in Durham v Durham [2011] NSWCA 62:
"81Under both the Family Provision Act and the Succession Act whether the jurisdictional question is satisfied is a matter of whether an evaluative standard has been met, rather than truly a matter of discretion. ...
82 A judge's decision as to the amount and type of an award to be made is a true discretionary decision, whether that decision is made under the Family Provision Act or under the Succession Act."
In addition to the above principles, s 9(3) of the Act should not be forgotten because the matters referred to therein are relevant not only in determining whether an order ought to be made, but also in determining the nature of the order which should be made. Section 9(3) provides:
"In determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person, the Court may take into consideration:
(a)Any contribution made by the eligible person whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to:
(i)the acquisition, conservation or improvement of property of the deceased person; or
(ii)the welfare of the deceased person, including a contribution as a homemaker;
(b)The character and conduct of the eligible person before and after the death of the deceased person;
(c)Circumstances existing before and after the death of the deceased person; and
(d)Any other matter which it considers necessary in the circumstances."
An order for provision out of the estate of a deceased person may require the provision to be made in a variety of ways, including a lump sum, periodic sum, by way of an absolute interest, or a limited interest only, in property, or "in any other manner which the Court thinks fit".
The Court may also specify the manner in which a sum of money or other property is to be paid or made available to the applicant; where provision is required to be made by way of a sum of money, specify that the whole or any part of the sum shall bear interest at such rate as the Court thinks fit for such period as the Court thinks fit, and also make any order subject to such conditions as the Court thinks fit: s 11 of the Act. Importantly, in this case, s 11(1)(e) provides that the order for provision may "be made subject to such conditions as the Court thinks fit".
As earlier noted, the court, if it makes an order for provision, "may specify the beneficial entitlements in that estate which shall bear the burden of the provision and, in relation to each entitlement, the part of the burden it is to bear": s 13 of the Act.
An order made under the Act takes effect as a codicil to the Will: s 14 of the Act.
Section 15 provides for the making of consequential, or ancillary, orders, including, relevantly, orders transferring of property in the estate directly to the person in whose favour the order for provision is made or to any other person as trustee for that person: s 15(1)(a)(i) of the Act.
A written or oral statement made by a deceased person (for example, a deceased's reasons for making his, or her, Will), is admissible as evidence of any fact stated of which direct oral evidence by the deceased person would, if the person were able to give that evidence, be admissible: s 32(1) and s 32(2) of the Act. ("Statement" is specifically defined in s 32(1) to include "any representation of fact whether or not in writing".)
Some General Principles
In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the court to be vigilant in guarding "against a natural tendency to reform the deceased's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant".
In Stott v Cook (1960) 33 ALJR 447, Taylor J, although dissenting in his determination of the case, observed, at 453-4, that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added:
"There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged."
The court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation (Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9, per Dixon CJ at 19); McKenzie v Topp [2004] VSC 90, per Nettle J at [63]). Freedom of testamentary disposition remains a prominent feature of the Australian legal system: Goodsell v Wellington [2011] NSWSC 1232; Madden-Smith v Madden [2012] NSWSC 146, per Pembroke J, at [30]-[34].
Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: The Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (NSWSC, 17 May 1996, unreported); Vigolo v Bostin at [11]; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.
As Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1 at 6, it is not appropriate to endeavour to achieve a "fair" disposition of the deceased's estate. It is not part of the court's role to achieve some kind of equity between the various claimants. The court's role goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance etc of an eligible applicant.
The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that an applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1909) 29 NZLR 959, per Chapman J at 966.
Promises made and expectations raised by a deceased have always been regarded as relevant to the ascertainment of what is proper provision for an applicant (Re Anderson (deceased) (1975) 11 SASR 276, per Zelling J at 284; Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134, per Gibbs J at 148). This is particularly so where an applicant has relied to his, or her, detriment on any such promise or expectation: Vukic v Grbin & Ors; Estate of Zvonko Grbin [2006] NSWSC 41, per Brereton J.
All of the financial needs of the applicant have to be taken into account and considered by reference to the other factors referred to in section 9(3) of the Act and in Singer v Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12, per Windeyer at [56]. Nor does it follow that if the Court decides it is inappropriate to make a specific provision in respect of one identified head of claim that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams.
The lack of reserves to meet demands, particularly of ill health, which become more likely with the advancing years is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003), per Templeman J at [178] and [179]; Crossman and Anor v Riedel and Ors [2004] ACTSC 127, per Gray J at [49]. Likewise, financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297, per Wheeler J at [43].
The resources and needs of other claimants on the deceased's bounty are to be taken into account in determining a claim under the Act: Vigolo v Bostin at [122]; Foley v Ellis at [88] and [89]; Carey v Robson [2010] NSWCA 212, per Hodgson JA at [15].
Where the Court is satisfied that provision ought to be made, then it is no answer to a claim for provision under the Act that to make an order would be to defeat the intentions of the deceased. The Act requires, in such circumstances, for the deceased's intention to be displaced: Kembrey v Cuskelly [2008] NSWSC 262, per White J at [45].
The Act is not legislation which permits provision to reward past services: Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, per Windeyer J at 137.
Nor does a claim under the Act encompass reparations, or compensation, to an applicant for the deceased having failed in his, or her, legal, or moral, duty to be a good and responsible parent of the child: Re Bull; Bentley v Brennan [2006] VSC 113, per Byrne J at [30].
As I said in Savic and Ors v Kim [2010] NSWSC 1401 at [82]:
"It is not the purpose of the Act to punish, or redress, past bad, or unfeeling parental behaviour, where that behaviour does not still impinge on the applicant's present financial situation."
The Act was "not passed to enable a Court, perhaps many years after the event, to make retrospective reparation to a person in respect of whom a deceased had failed years earlier, to comply with a legal, or familial, or moral obligation, where any effect of that failure had not continued up to the deceased's death": Re Jennings Dec'd ([1993] EWCA Civ 10; [1994] Ch 286, per Sir John May. The authority of the court to intervene does not depend simply upon a mere demonstration of morally inadequate behaviour on the part of the deceased: Baird v National Mutual Trustees Ltd & Attorney General for State of Victoria (Supreme Court of Victoria, 22 November 1995, unreported, per Harper J).
Also, it is not the function of the court to provide a legacy, by way of damages, for abuse or otherwise. Immoral conduct of the deceased, whilst it may provide a necessary explanation for the conduct of an applicant towards him, or her, and may even provide an explanation for the applicant's mental state (if established), giving rise to additional needs, such conduct does not provide the yardstick by which provision for the Plaintiff should be measured: Cameron v Cameron [2009] SASC 27; Williamson v Williamson at [125].
This does not mean that the deceased's conduct will be irrelevant to his, or her, duty to make provision for an applicant. Where that conduct has the effect of depriving an applicant for provision of opportunities in life, or otherwise, and there is some causal connection between it and the applicant's need for provision, the court may take that into account in determining whether proper provision has been made: Litchfield v Smith & Tingate [2010] VSC 466, per Hargrave J at [57]; Williamson v Williamson [2011] NSWSC 228.
On the topic of the relationship between an applicant and the deceased, Campbell JA (with whom Giles JA and Handley AJA agreed) recently noted, in Hampson v Hampson [2010] NSWCA 359, at [80]:
"The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge."
In Hampson v Hampson, at [95], Campbell JA also noted that "[H]aving engaged in illegal conduct is not a bar to a claim under the Act". In that case, the Plaintiff had been found to have a history of using and cultivating marijuana.
In West v France [2010] NSWSC 845, I said:
"84 Neither does the fact of the Plaintiff's criminal history disentitle him to provision. As White J noted in Hastings v Hastings, at 40, "a criminal record is not as such a bar to a claim under the Act. A good example is Hoadley v Hoadley (Supreme Court of New South Wales, Young J, 17 February 1987, unreported). There, Young J (as his Honour then was) made an order for provision in favour of an adult child who had spent 20 years in prison, where his Honour considered there would be good prospects of rehabilitation which an order for provision would promote"."
However, Campbell JA in Hampson v Hampson went on to say:
"95... However, illegal conduct by an applicant can sometimes bring consequences that are relevant circumstances, or be a part of a bigger picture that is a relevant circumstance. One example is Hastings v Hastings [2008] NSWSC 1310, where the applicant, a son of the relevant deceased, had been involved in serious crimes involving the importation and distribution of marijuana in America. His arrest on drug running charges received newspaper publicity in Australia, that reached the deceased's community. The fact that the deceased "felt she was shunned and was embarrassed by the publicity" ([38]) was an element of the relationship between the applicant and the deceased that could legitimately be taken into account. His conviction on another occasion resulted in not only a prison term, but also forfeiture of his assets. While the applicant had poor financial circumstances, that was largely due to his property having been forfeited. That was another relevant matter to take into account in deciding what was adequate provision for his proper maintenance and advancement in life.
96 Another aspect of marijuana use that could in some circumstances be relevant to the jurisdictional question is the tendency of regular users to spend significant amounts of money in feeding their habit. A tendency on the part of an applicant to waste money on items that are either of no use or are positively damaging to himself can enter into what is adequate provision for proper maintenance of that applicant. To the extent to which it is still of use to refer in Family Provision Act legislation to the provision that a wise and just husband or father fully aware of all the relevant circumstances would have made (cf Bosch v Perpetual Trustee Co [1938] AC 463 at 479; McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 571-572; Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 at 209; Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at [15]- [17] per Gleeson CJ, cf at [60]-[63] per Gummow and Hayne JJ, cf [113]-[121] per Callinan and Heydon JJ), in my view marijuana use is a matter that the wise and just parent would be likely to take into account in deciding to make provision for a child, or in fixing on the type and amount of provision to make for a child. Thus, it can be taken into account by the court in deciding whether provision made for a child is inadequate for proper maintenance, education and advancement in life, and also in deciding what would be adequate for proper maintenance, education and advancement in life."
There does not seem to be any rule to the effect that proper provision for an adult and presently able-bodied applicant could not extend (in an appropriate case) to providing him, or her, with a house, or money to buy one: Mayfield v Lloyd-Williams at [109]-[110], per White J; Drayson v Drayson [2011] NSWSC 965 at [116], per Ward J. In the present case, Belinda is hardly "able bodied".
This is a reasonably large estate. In Re Buckland deceased [1966] VR 404, Adam J, at 415, said:
"I consider the proper conclusion to be drawn from the authorities is that the court's jurisdiction, whatever the size of the estate, is limited by the claimant's need for maintenance and support; but that the maintenance and support to which he or she may for this purpose be treated as needing is that appropriate to his or her station or condition in life. ... The greater the estate the more may contingencies, even remote contingencies which may arise in the future, be provided for in the assessment of such maintenance."
An appeal from the judgment of Adam J was dismissed by the High Court in May 1966. The High Court found no significant error of fact or of law in the reasons for judgment of the trial judge, and could not conclude that the amount of the provision ordered in the circumstances of the case, stemmed from some misconception of fact or from some error or misapplication of principle: Buckland v Trustees Executors and Agency Co. Limited (1966) 40 ALJR 164.
In Anasson v Phillips (NSWSC, 4 March, 1988, unreported), Young J (as his Honour then was) said at 20-21:
"With a very large estate ... there is great temptation on a Court to be overgenerous with other people's money. This is especially so when the Court can see that Plaintiffs have been very hardly done by at the hands of a domineering testatrix. However, the case should not be approached in this way, as the application has to be determined in accordance with the legal principles. These principles include the fact that in Australia there is freedom of a person to leave her property in whatever way she wishes, to love whom she wishes, to hate whom she wishes, and it is only when there has been a failure to comply with a moral duty to those who in the community's eyes she should have made proper provision for, that anyone can legally complain about another person's will. Even then, the Court has no power to rewrite the will, but can only adjust things, in substitution for the testatrix, in such a way as to fulfil her moral duty.
If the estate is a large one, the Court has a slightly different approach. The basic principles are the same, that is, the will can only be affected to the extent that it is necessary to discharge the moral duty by making adequate provision for the Plaintiffs, but where there is a large estate, competition between claimant and claimant, and claimant and beneficiary under the will is much reduced or eliminated. Further, there may be a more liberal assessment of the moral duty owed, to be reflected in what is proper provision for the Plaintiffs. In particular, the lifestyle that has been enjoyed by the Plaintiffs, because they have been associated with a wealthy testatrix, is a relevant factor."
These last two mentioned cases have been referred to, and followed, many times. They remain relevant. Yet, it must also be remembered, as McLaughlin AsJ stated in Lumb v McMillan [2007] NSWSC 386, at [26]:
"The ample size of the estate does not justify the Court in being profligate in disposing of the assets of the Deceased and in awarding to each Plaintiff which is more than that to which that Plaintiff would be entitled. The Court should do no more than remedy the failure on the part of the Deceased to make adequate provision for the proper maintenance of each Plaintiff."
I make it clear that I do not intend what I have described as "applicable legal principles" or other "general principles", to be elevated into rules of law, or the discretion, at the second stage, to be constrained by statements of principle found in dicta in decisions on similar facts. I identify them merely as providing useful assistance in considering the statutory provisions the terms of which must remain firmly in mind.
The Plaintiff's Relationship with the deceased
In this case, there is an unusual factor that bears on the quality of the relationship of Belinda and the deceased.
There was some dispute about their relationship. What cannot be disputed, however, is that their relationship was one of affinity, as distinct from consanguinity. The basis of their relationship, at least between about 1970 and 1982, was the relationship of the deceased with Elaine, the natural mother of Belinda. Thereafter, for other reasons, their relationship continued.
I am satisfied that, during the period of Elaine's relationship with the deceased, and thereafter, Belinda recognised the deceased as if he were her father and until his death referred to him as "Dad". In my view, the relationship was a quasi-parental one.
At various times, thereafter, as an adult, she lived in one of two properties owned by the deceased. Whether she was "squatting" as alleged by Amanda, and whether the deceased did not really want her to remain living in one or other of those properties, does not really matter, as there is no evidence that he took any steps, formal or otherwise, to remove her, or have her removed. It is clear that he knew that she was living in one, or other, of his properties at different times. Whilst his reticence to forcibly evict her is explained, no reason why he "could not remove her" legally is advanced. I remember that the Defendant was the deceased's solicitor for 10 or 15 years.
I also note Belinda's evidence that the deceased, on a number of different occasions, made reference to part of the Fairweather Lane Kinchela property, particularly the house and around the yard, being for her. Importantly, her evidence does not exaggerate what he is said to have promised.
On this aspect, I have noted Amanda's evidence regarding her conversations with the deceased. This would not be the first case in which the deceased is recorded as having spoken, in diametrically opposite terms, to different people, particularly family members.
Belinda did receive some modest monetary benefits from the deceased during his life time. Her evidence on this topic was a little confused. In her affidavit, she said that she received a couple of hundred dollars over a period of 9 years, whereas in her oral evidence she described what she received as "heaps".
I think it likely that the deceased refused to give her financial assistance if he thought she was likely to spend it on drugs. But, at other times, he probably did provide her with some money when she needed it.
I accept Amanda's evidence that Belinda's drug taking, conduct at times, and her criminal conduct, upset the deceased. However, there is no evidence to suggest it was her conduct that motivated him to make no provision for her. There is simply no evidence explaining the omission of Belinda completely from the deceased's bounty. Not even Amanda advances any reasons, stated to her by the deceased, for excluding Belinda from his testamentary bounty.
Very fairly, if I may say, counsel for the Defendant, did not submit that Belinda's conduct or character was sufficient to disentitle her completely to relief: In re The Will of Gilbert (1946) 46 SR (NSW) 318, at 326. He did, however, submit that her character and conduct should be taken into account as provided for in the Act.
I am satisfied that the relationship of the deceased and Belinda was, generally, one in which the deceased, at various times, when she needed it, continued to provide her with financial, and other, assistance. The relationship of affinity between them continued until the deceased's death despite the rupture of the relationship between the deceased and Elaine in 1981 or 1982. It was a long relationship.
An earlier authority, with which I respectfully agree, is Thom v The Public Trustee (NSWSC, 2 April, 1992, unreported), in which Master McLaughlin (as his Honour then was) said:
"It seems to me that it would be totally unrealistic for the Court to approach the moral obligation of the deceased to make provision for ... by disregarding the fact that for a period of 20 years before the deceased's death, ... 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... 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 ... by will, could be approached without recognising the fact that ... would be entitled to continue to receive such a pension."
The availability of a disability pension to Belinda ought not be regarded as a substitute for the obligation on the deceased to make adequate provision for her. Yet, it is not necessary to make an order that would operate primarily in relief of the taxpayer.
In my view, it not being submitted to the contrary, the availability of the disability pension, and associated social benefits, is a circumstance to which the Court should have regard particularly in circumstances where Belinda continues to be unwell and the prognosis is that she will continue to require psychological treatment. As was stated in Evans v Levy at [55]:
"... there are, for most pensioners, side benefits of considerable value in merely having a part pension, such as the right which becomes more and more valuable as one gets older to have medical services provided at considerable concessional rates."
Circumstances of the Beneficiaries
In Foley v Ellis, Sackville AJA at [88] noted that Singer v Berghouse (No 2) "... strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act ".
It is, therefore, necessary to consider the circumstances of Amanda, Danielle and the other beneficiaries named in the Will, including her and his financial and material circumstances. I am satisfied that the following facts are not in dispute or have been established by the evidence.
Amanda
Amanda had a reasonably close relationship with the deceased throughout her life. She was not cross-examined to suggest otherwise. She is the principal beneficiary (in terms of value of the provision) named in the Will of the deceased.
I shall take her financial and material circumstances from her most recent affidavit:
"4.I am now receiving approximately $517 per fortnight from Centrelink. From this amount Centrelink take $70 from me to repay a Centrelink debt of approximately $40,000. Also the amount of $47 per fortnight is taken out again by Centrelink in payment of Child Maintenance to my ex husband Dwayne for our child Latesha. After such payments are taken out by Centrelink together with any deduction Centrelink makes due to me working at the Hat Head Post Office I only receive approximately $317 per fortnight in Centrelink benefits.
5.From the money I receive from my Centrelink benefits and my employment at the Hat Head Post Office I use all payments received for general living expenses and looking after my children Darcy, Kirstyn, Jarryd and Alex who is a friend of Jarrad (sic) who now lives with our family. All money that I receive goes to pay for groceries, car expenses, school expenses and medical expenses for myself and my children.
6.In relation to medical expenses for my son Darcy I have been informed by his dentist that Darcy needs extensive dental work including teeth removed and braces. The dentist has informed me that this cost could be $10,000. Darcy is also seeing a specialist orthopaedic surgeon and requires "insteps" for his shoes due to Darcy's feet. I have been informed that this could cost approximately $1,000.
7.At the end of each fortnight I usually have no money left over from payments received from Centrelink and my employment with the Hat Head Post Office.
8.In relation to Paragraph 47 of my August 2011 Affidavit I was unable to complete the purchase of the land in Victoria and I have forfeited my deposit of $9,800.
9.In relation to Paragraph 49 of my August 2011 Affidavit I no longer own a caravan. I sold the caravan in or about September 2011 for approximately $4,500. I used the proceeds of the sale of the caravan to pay bills for living expenses. I still have the Camry but it would only be worth approximately $1,000 as it is a 1986 model. I do not own a house or have any savings, investments, property or any other assets other than as stated above.
10.In relation to liabilities, I owe the following:
(i)Centrelink debt of approximately $40,000
(ii)My legal fees for this matter will be approximately $46,000."
It is clear from her oral evidence that Amanda retains furniture, which is of some value, and is owed $6,000 or $7,000 by her daughter-in-law, which was not referred to as an asset.
I was unimpressed with Amanda's evidence about how she had spent the money that she has already received from the deceased's estate. Whilst she was able to identify how about $85,000 had been spent, as to the balance, her evidence amounted to "we just lived extremely well."
I was also unimpressed with the part of her affidavit that related to the circumstances surrounding the failure to complete the purchase of the land in Victoria. It is clear that her failure to do so, and the subsequent loss of her share of the deposit, despite her evidence to the contrary, did not have anything to do with Belinda bringing these proceedings.
Danielle
Danielle was not cross-examined on her affidavits. I am satisfied that Danielle had a close relationship with the deceased throughout her life. She, too, is the major beneficiary named in the Will of the deceased.
I shall take her financial and material circumstances from her most recent affidavit:
"5.I continue to have the care of my four children namely, Rachel Louise Pidcock born 18 September 2001, Joel Donald Berry born 15 August 2003, Jeremy Leslie Berry born 25 August 2010 and Daniel Orlando Berry born 11 August 2011.
6.Whilst I receive some parental assistance from Peter Berry, the father of Joel, Jeremy and Daniel I am principally the homemaker and parent for all of my children.
7.I have not returned to work after the birth of my son, Daniel. I continue to receive a carers pension for my son, Joel. The carers pension is approximately $114 per fortnight together with a maternity allowance of $354 per fortnight.
8.Peter Berry, the father of Joel, Jeremy and Daniel, provides financial assistance in the sum of approximately $400 - $450 per week.
9.I eventually hope to be able to return to my employment with Coles Supermarkets as a service assistant. I receive approximately $475 net when I am working at Coles Supermarkets for a full weeks work.
10.I am uncertain as to when I will be able to return to work because I have the care of four children and in particular given that Daniel is only some seven months of age and further because of Joel's disabilities."
Danielle acknowledges receipt of funds in excess of $320,000. Her evidence explains the use of about $200,000 but does not explain how she has spent the rest.
Mr Ball
Mr Ball did not swear any affidavit that was read in the proceedings. I know nothing about his financial and material circumstances.
Joshua
Joshua was born in September 1988 and is currently 23 years old. He lives in Kempsey with his partner and children. He was incarcerated in November 2009 for 14 months. Amanda supported Joshua's partner and his children whilst he was in jail. She also deposited money into his jail account.
He did not swear an affidavit setting out his present financial and material circumstances.
Jarryd
Jarryd was born in June 1993 and is currently 18 years old. He lives with his father and grandparents. He works in his grandparents' trucking business.
He did not swear an affidavit setting out his present financial and material circumstances.
Latesha
Latesha was born in September 1995 and is 16 years old. She lives with her father. She did not swear an affidavit setting out her present financial and material circumstances. There is no other evidence about those circumstances.
Darcy
Darcy was born in March 2002 and is 10 years old. He lives with Amanda and his father in a shared custody arrangement. Darcy suffers from Asperger disorder. He has trouble controlling his emotions and has difficulties with schooling. He also suffers from asthma. He needs more daily care and extra attention in relation to his development.
Kirstyn
Kirstyn was born in May 2004 and is 7 years old. She lives with Amanda and her father in a shared custody arrangement.
Rachel
Rachel was born in September 2001 and is 10 years old. Danielle and Rachel's father separated when Rachel was about 15 months old. He is now deceased.
Joel
Joel was born in August 2003 and is 8 years old. When he started school he was diagnosed as suffering from Autistic Broad Spectrum Syndrome and Tourette Syndrome. He requires constant supervision and regular medical checks.
Jeremy
Jeremy is 18 months old.
Determination
I have had the benefit of receiving a written outline of submissions from counsel for the respective parties. Those documents will be retained in the Court file. I was also provided with an agreed statement regarding the pension and the first home buyers grant, which shall also remain in the court file.
As stated previously, there is no dispute that Belinda is an eligible person. There is also no dispute that the proceedings were commenced within the time prescribed by the Act.
Next I must consider whether there are factors which warrant the making of the application. In my view there are several factors, namely:
(a)the length of the relationship between Belinda and the deceased, which relationship continued to subsist after the termination of the relationship between the deceased and Elaine which created it; the deceased appears to have been the only "father" that Belinda knew;
(b)the nature of the relationship from Belinda's point of view, which, as I have found, was a personal one, and one that involved an emotional bond; that she referred to him as "Dad", to which he did not object, demonstrates the recognition by each of a familial bond;
(c)the sexual relationship that existed;
(d)the expectations that the deceased encouraged in Belinda in relation to the house and yard situated on the Fairweather Lane Kinchela parcel of real estate.
(One factor warranting that is lacking in this case is any suggestion that the origin of the property comprising the deceased's estate derived from Belinda's mother. This is a relevant matter, however, in determining the nature of the provision that ought to be made.)
Accordingly, the requirements of s 9(1) of the Act have been satisfied.
Then, I must consider, whether, at the present time, adequate provision for the proper maintenance, education, or advancement in life, of the Plaintiff has not been made, during the lifetime of the deceased or by his Will.
No provision was made for Belinda in the deceased's Will. However, this does not, automatically, mean that she will have satisfied the jurisdictional threshold. However, looked at through the prism of her financial and material circumstances, it is clear that adequate provision for her proper maintenance and advancement in life was not made by the Will of the deceased. Accordingly, in my view, the jurisdictional threshold has been established.
It is, therefore, necessary to proceed with the second stage of the process of determining what provision should be made out of the deceased's estate to provide adequate provision for the proper maintenance and advancement in life. That is the more difficult question.
Counsel for the Plaintiff submitted that the wise and just deceased person, reflecting upon his past life, would consider what he had done to a young vulnerable person who had entered his life long before, and what were the consequences of his conduct towards her. That deceased would or, in accordance with accepted general community standards, should, feel a moral obligation to make substantial provision out of his reasonably large estate. There is some merit in this submission.
The Plaintiff seeks an amount that equates to about $1.1 million. However, that includes a sum calculated by provision of a capital sum that will provide about $550 per week by way of income for the rest of her life. I do not consider that a capital sum of that magnitude ought to be provided for her. In my view, bearing in mind the medical condition of Belinda, I consider, as relevant, that she has been in receipt of a disability pension for some time and it will be advantageous to her to continue to receive it.
She further seeks an amount of $23,000 for a car. However, she has been disqualified from driving until 2028, and whilst it may be that she could make application to have her period of disqualification reduced, at the date of hearing she does not, currently, have a need for a car.
At the hearing, both parties stated a wish to ensure that the provision (if any) for Belinda is protected from misuse. The point of difference appears to be whether she should, whilst she is being protected, obtain, in effect, an absolute interest in the provision made, or whether, as submitted on behalf of the Defendant, the provision, in whole or in part, should be limited for her life.
A special disability trust under Pt 3.18A of the Social Security Act 1991 (Cth) was briefly raised by counsel for the Plaintiff. On 20 September 2006, the Social Security Act was amended to include that Part, which is headed "Private Financial Provision for Certain People with Disabilities". It permits the creation of 'special disability trusts' to assist families and carers to make private financial provision for the current and future care and accommodation of family members who are severely disabled.
As defined in s 1209L of the Social Security Act 1991 (Cth), it is a trust that has the following requirements (subject to the proviso that Secretary may waive one or more requirements in certain circumstances):
"(a) the beneficiary requirements (see section 1209M);
(b) the trust purpose requirements (see section 1209N);
(c) the trust deed requirements (see section 1209P);
(d) the trustee requirements (see section 1209Q);
(e) the trust property requirements (see section 1209R);
(ea) the trust expenditure requirements, if any (see section 1209RA);
(f) the reporting requirements (see section 1209S);
(g) the audit requirements (see section 1209T)."
Although I have also been provided by the parties with a booklet relating to this type of trust, it seems to me that they should have an opportunity to consider this aspect further to determine whether the sections of the Act are applicable and whether such a trust, or some other form of trust, could be established for Belinda. (Reference was also made to Stern v Sekers at [344].)
In my view, provision should be made for Belinda to enable her to purchase accommodation. I consider that $310,000, should be sufficient to do so, including associated costs and disbursements of purchase. (In this regard, the parties have agreed that a first home buyer is entitled to a Government grant of $7,000; that if the home is a new home (i.e. a home that has not previously been lived in, or being built, or off the plan), stamp duty is not payable; and that the stamp duty on a home costing $300,000 is $9,000.)
How any real estate should be held, may be the subject of further submissions, although in saying that, I am not suggesting that Belinda's beneficial interest should be a limited one.
I am also of the view she should receive a capital sum of $250,000, which amount should provide capital and income to her. However, Belinda should only receive an amount of $50,000 (of that amount), within 28 days of these orders, to enable her to pay for furniture and whitegoods for the home that are required, and to pay any debts. Her solicitors, or other trustee, should retain that amount on behalf of the Plaintiff, pending the need to purchase the furniture and whitegoods and to pay her debts.
A further $50,000 (of that amount), together with interest accrued on that amount, should be paid to her at the end of each 12 month period that Belinda remains out of prison. It follows that if she is able to stay out of prison for 4 consecutive 12-month periods, she will have received the beneficial interest in the balance of the capital sum.
If she is incarcerated, the 12 month period before she will be entitled to the beneficial interest in the amount of $50,000, together with the interest accrued thereon, will commence to run on the day of her release from prison.
I appreciate that the order I am proposing is an unusual one and the precise form will require some further consideration by the parties' legal representatives. However, it is not without precedent. As will be appreciated, what I have proposed is based on the type of order made by Young J (as his Honour then was) in Hoadley v Hoadley (Supreme Court of New South Wales, 17 February 1987, unreported).
In this way, also, Belinda's pension should not be reduced, because she is unlikely to have the beneficial interest in assets (excluding her home) in excess of $186,750. Furthermore, the income that each amount of $50,000 should attract (using the current rate paid by the NSW Trustee and Guardian is 6.25% per annum) will not exceed the permissible income ($150 per fortnight).
A separate fund of $85,000 (in addition to the $250,000), to be used for paying for counselling sessions should also be made available for Belinda's use. That is the only amount in which Belinda should not be regarded as having an absolute interest (albeit subject to the conditions previously stated). If the amount, or any part of it, is not utilised within 5 years, or such other time as the Court determines at that time, it should be repaid to the estate to be divided in the percentages referred to below.
I will hear submissions from Counsel as to the appropriate form of orders, if agreement is unable to be reached, to implement my findings and how the orders should be framed in order to constitute any trust, or an appropriate part of any trust, for Belinda's benefit and the terms of that trust.
Counsel for the Defendant submitted that the provision, if any, ordered for Belinda should be borne rateably by Mr Ball, Amanda and Danielle, leaving untouched, the legacy to be shared by the grandchildren of the deceased. However, he stated that whilst Amanda and Danielle (who were represented by solicitors) agreed with that submission, Mr Ball (who was present at the hearing) did not, and that he wished his share of the deceased's estate to remain untouched in the event that the Plaintiff obtained provision out of the estate.
No party, Amanda, Debbie, or Mr Ball, suggested that the burden of any provision made for Belinda should be borne, in part, by Debbie, who has received a lump sum of $300,000 inclusive of her costs.
For the benefit of the parties, at the hearing, I stated the method by which I would calculate the beneficial entitlements that should bear the burden of any provision and, in relation to each of those entitlements, the part of the burden that it should bear. I gave them the opportunity to check my calculations and, subsequently, I was informed that the following percentages could be applied. (I did not take their agreement to mean that the earlier submission should not be considered by me.)
I have used the denominator of $3,508,756. This is calculated taking into account the estimates of the different beneficiaries or class of beneficiaries, and includes amounts and the value of property already received (to which reference has been made earlier and with which the parties agreed).
It follows, on my calculations, and the parties' agreement (on the mathematics) that the part of the burden Amanda should bear is 43.6%; the part of the burden Danielle should bear is 36.7%; the part of the burden Mr Ball should bear is 10.4%; and the part of the burden the grandchildren should bear is 9.3%. In the event that Amanda and Danielle wish to leave untouched the share of the grandchildren, the burden of each will be increased by 4.65%.)
I have come to the conclusion that the provision made for Belinda should be borne rateably by all the beneficiaries, treating the grandchildren as a class. In this regard, whilst they, and Mr Ball, are chosen objects of the deceased's testamentary bounty, only Amanda and Danielle is an eligible person within the meaning of the Act.
I was also asked not to make any orders as to costs. In the circumstances, if the parties are unable to agree, I shall also hear any submissions as to costs at a time suitable to counsel and to the court.
The parties are to bring in short minutes that reflect the reasons and any agreement as to costs reached by them. I shall stand the proceedings over to a suitable date to deal with any issues that have not been resolved between them.
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Decision last updated: 27 March 2012
Key Legal Topics
Areas of Law
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Succession Law
Legal Concepts
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Family Provision Order
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Jurisdiction
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Res Judicata
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