Dodds v Dodds
[2013] NSWSC 1933
•19 December 2013
Supreme Court
New South Wales
Medium Neutral Citation: Dodds v Dodds [2013] NSWSC 1933 Hearing dates: 28 November 2013 Decision date: 19 December 2013 Jurisdiction: Equity Division Before: Hallen J Decision: (a) Order that the Plaintiff's Summons is dismissed.
(b) Makes no order as to either party's costs, to the intent that he, and she, will bear his, and her, own costs, respectively, of the proceedings.
(c) Direct that the exhibits are to be returned.
Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiff, a son of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant is a daughter of the deceased - Deceased left Will - No provision for the Plaintiff - Small estate - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and if so the nature and quantum of the provision to be made Legislation Cited: Civil Procedure Act 2005
Family Provision Act 1982
Property (Relationships) Act 1984
Succession Amendment (Family Provision) Act 2008
Succession Act 2006Cases Cited: Alexander v Jansson [2010] NSWCA 176
Allardice v Allardice; In re Allardice (1910) 29 NZLR 959
Allen (Dec'd), Re; Allen v Manchester [1922] NZLR 218
Andrew v Andrew [2012] NSWSCA 308; (2012) 81 NSWLR 656
Bartlett v Coomber [2008] NSWCA 100
Blore v Lang (1960) 104 CLR 124
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Buckland Deceased, Re [1966] VR 404
Butcher v Craig [2009] WASC 164
Christie v Manera [2006] WASC 287
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Crossman v Riedel [2004] ACTSC 127
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Dunne v Dunne [2013] NSWSC 1911
Edgar v Public Trustee for the Northern Territory [2011] NTSC 5
Flathaug v Weaver [2003] NZFLR 730
Foley v Ellis [2008] NSWSC 288
Franks v Franks [2013] NSWCA 60
Frisoli v Kourea [2013] NSWSC 1166
Gardiner v Gardiner (NSWSC, 28 May 1998, unreported)
Geoghegan v Szelid [2011] NSWSC 1440
Gill v Permanent Trustee Company Limited [1999] NSWSC 394
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Gregory v Hudson (No. 2) (NSWSC, 18 September 1997, unreported)
Grey v Harrison [1997] 2 VR 359
Harrisson v Skinner [2013] NSWSC 736
Hawkins v Prestage (1989) 1 WAR 37
Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Hyland v Burbidge [2000] NSWSC 12
Kay v Archbold [2008] NSWSC 254
Keep v Bourke [2012] NSWCA 64
Kembrey v Cuskelly [2008] NSWSC 262
Kleinig v Neal (No. 2) [1981] 2 NSWLR 532
MacGregor v MacGregor [2003] WASC 169
Manuel v Lane [2013] NSWCA 61
Marks v Marks [2003] WASCA 297
Mayfield v Lloyd-Williams [2004] NSWSC 419
McCosker v McCosker (1957) 97 CLR 566
McCullum v Permanent Trustee [1999] NSWSC 1219
McGrath v Eves [2005] NSWSC 1006
Neale v Neale [2013] NSWSC 983
Novak-Niemala v Perpetual Trustee Co Ltd [2002] NSWSC 251
Oldereid v Chan [2013] NSWSC 434
Palaganio v Mankarios [2013] NSWSC 61
Peters v Salmon [2013] NSWSC 953
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Puckridge, Deceased, In the Estate of (1978) 20 SASR 72
RK v RK (Financial Resources: Trust Assets) [2013] 1 FLR 329
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Slack v Rogan; Palffy v Rogan [2013] NSWSC 522
Stansfield v National Australia Trustees Ltd [2004] NSWSC 1107
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stiles v Joseph (NSWSC, 16 December 1996, unreported)
Stott v Cook (1960) 33 ALJR 447
Szypica v O'Beirne [2013] NSWSC 297
Taylor v Farrugia [2009] NSWSC 801
Theoctistou v Theoctistou [2013] NSWSC 1487
Tobin v Ezekiel [2012] NSWCA 285
Tucker v Tucker [2012] NSWSC 1302
Verzar v Verzar [2012] NSWSC 1380
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (NSWSC, 17 May 1996, unreported)
West v Mann [2013] NSWSC 1852
White and Tulloch v White (1995) 19 Fam LR 696Texts Cited: J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, 7th ed, 2006) Category: Principal judgment Parties: Peter Dodds (Plaintiff)
Rosemary Ann Dodds (Defendant)Representation: Counsel:
Ms R Kako (Plaintiff)
Mr L Ellison SC (Defendant)
Solicitors:
Norbert Lipton Lawyers (Plaintiff)
Derham Houston (Defendant)
File Number(s): 2012/264592
Judgment
HIS HONOUR: These reasons relate to proceedings, in which a claim for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act") is made by the Plaintiff, Peter Dodds, out of the estate of his mother, Uvon Dawn Dodds ("the deceased"). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the Court, under Chapter 3, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person.
The Plaintiff's Summons was filed on 24 August 2012. It was filed within the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased).
The Defendant, Rosemary Ann Dodds, is another child of the deceased and one of two siblings of the Plaintiff. She is the executrix named in the deceased's Will to whom Probate was granted.
Without any undue familiarity, or disrespect intended, and for convenience, I shall refer to the parties either by the role each plays in the proceedings or by his or her first name. I shall refer to other family members, after introduction, by her, or his, first name.
Formal Matters
The following facts are uncontroversial and provide a useful background.
The deceased died on 5 September 2011, aged 83 years, having been born in June 1928.
The deceased was married to Maurice Dodds in about 1955. They separated in 1979 and a divorce order was made in 1981. Maurice has since remarried and lives in Sydney. There were three children of the marriage, being Paula Michelle Holt (nee Dodds), who was born in November 1957, Peter, and Rosemary, who was born in November 1963.
The deceased left a Will that she made on 25 July 2000. This Court granted Probate in common form of the deceased's Will to Rosemary on 3 April 2012. The deceased's Will provided for the whole of the estate, both real and personal, to pass to Rosemary absolutely.
Clause 6 of the deceased's Will provided:
"I HEREBY DECLARE that my other children PETER DODDS and PAULA MICHELLE DODDS have not been directly provided for under the terms of this my Will by virtue of the fact that such children are well provided for and have no financial needs."
In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased's estate was disclosed as having an estimated or known value of $342,089. The deceased's property was said to consist of real estate at Lorn (near Maitland, NSW) ($340,000), and cash in bank ($2,089). (I have omitted, and shall continue to omit, any reference to cents.)
At the hearing, the parties were able to agree upon the current value of the Lorn property. They agreed that it had a value of $320,000. They also agreed that there was cash in bank of ($3,010). Finally, they agreed that there was no other estate, or any notional estate, out of which an order could be made.
The Lorn property has been rented since about August 2008. Until April 2013, the weekly rental was $255. Since then, it has been rented for $290 per week. The tenants are currently on a week to week tenancy. Expenses for the Lorn property, such as council rates, insurance, repairs and maintenance are paid from the rental account.
(There was some dispute about the amount that should be in the rental account. The Defendant admitted that, at times, she had used the rental moneys to pay personal expenses but she stated that she had reimbursed the amounts used.)
The parties agreed that the legal costs of acting on the sale of the Lorn property would be about $1,750, inclusive of GST, and all necessary disbursements, and that the real estate agent's commission, if the property were sold for $320,000, would be about $10,560. Accordingly, costs and expenses of sale are estimated to be about $12,310.
There is no notional estate the subject of Peter's claim.
In calculating the value of the actual estate, finally available for distribution, the costs of the proceedings also should be considered, since the Plaintiff, if successful, normally, will be entitled to an order that his costs be paid out of the estate of the deceased, whilst the Defendant, as executrix, irrespective of the outcome of the proceedings, normally, will be entitled to an order that her costs be paid out of the estate.
His solicitor, Mr D Sankey, estimated Peter's costs and disbursements of the proceedings, including counsel's fees, calculated on the ordinary basis, to be about $35,000 (inclusive of GST and upon the basis of a one day hearing). Peter has paid $8,476, leaving a balance (exclusive of GST) of about $26,524. (On the indemnity basis, he estimated those costs and disbursements to be $48,512.)
Her solicitor, Ms E Houston, has estimated Rosemary's costs and disbursements of the proceedings, including senior counsel's fees, calculated on the indemnity basis, to be about $38,000 (inclusive of GST and upon the basis of a one day hearing). Rosemary has paid $7,760, leaving about $34,240 to be paid. (Probate and administration expenses of $4,000 account for the balance of the amount already paid.)
I have, in other cases referred to a party briefing senior counsel in estates that have a small value, as this one does (see, for example, Geoghegan v Szelid [2011] NSWSC 1440). I remain conscious of s 60 of the Civil Procedure Act 2005, which refers to "the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute".
Of course, a party is entitled to brief counsel of her, or his, choice. However, that does not mean that senior counsel's fees will be included in the estimate of costs and disbursements that are to be deducted from the value of the estate in calculating the net distributable estate from which an order may be made, or that senior counsel's fees should be allowed on assessment. To do otherwise would result in the available estate, which is already regarded as small, being reduced even further. (This is not suggestive of any criticism of senior counsel in this case, but is reflective of the principle, generally, that fees for senior counsel in an estate having a small value, the issues in which are not particularly complex, should not be allowed on a formal assessment.)
That total estimated costs and disbursements, calculated on the ordinary, and the indemnity basis, respectively, amount to $73,000 or 22.5% of the gross value of the deceased's estate at the date of hearing does seem to display a lack of proportionality. (Taking the indemnity costs of both parties, the percentage increases to almost 27% of the gross value of the estate.) I shall later refer to Practice Note SC Eq. 7, Paragraph 24, and the capping of costs. I have the feeling that the costs that have been incurred demonstrate the intensity of feeling that exists between the parties in the present case.
Rosemary has given evidence that she does not intend to seek commission out of the estate of the deceased.
The persons described as eligible persons, within the meaning of the Act, are Peter, Paula and Rosemary. No mention has been made of Maurice, the former husband of the deceased, the father of the parties and Paula, and there is no evidence of service of the prescribed notice upon him.
I raised this matter with counsel at the commencement of the hearing. Evidence was tendered to demonstrate that notice of these proceedings had been given to Maurice, and Peter, subsequently, gave oral evidence that he had spoken, by telephone, to his father who had stated that he had no need, or reason, to pursue any claim against the estate.
In the circumstances, I am satisfied that I may disregard his interest as a person by, or in respect of, whom, an application for a family provision order may be made.
The only eligible person who has commenced proceedings is Peter. However, Paula has sworn an affidavit that has been read as part of Peter's case. I am satisfied that she is aware of the proceedings.
The Statutory Scheme - The Act
Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out most 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 equally important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in the application.
The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008. A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, Will. It is only if the statutory conditions are satisfied that the Court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate, to produce a result that is consistent with the purpose of the Act. Even then, the Court's power to do so is discretionary.
The key provision is s 59 of the Act. The Court must be satisfied, first, that an applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, there is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made.
Relevantly, in this case, Peter relies upon the category of eligibility referred to in s 57(1)(c) of the Act. There is no dispute that he is a child of the deceased and an eligible person within the meaning of that term in the Act.
The language of the relevant section is expressive of the person's status, as well as his relationship to the deceased. There is no age limit placed on a child making an application.
It is only if eligibility is found, that the Court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is this mandatory legislative imperative that drives the ultimate result and it is only if the Court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). Only then may "the Court ... make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made".
Allsop P in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, commented, at 658 [6]:
"... the expression of the task in s 59 is subtly different from the previous legislation. A prohibition against making an order unless satisfied of circumstances of an evaluative character, is different in emphasis from a permission to make an order if satisfied of circumstances of an evaluative character... The exercise of power to make the order is conditioned on the Court being satisfied of certain things in s 59(1). The order that may be made is described in s 59(2). The two elements are described in s 60(1)(b) as 'whether to make [an] ... order and the nature of any ... order.' Section 60(2) provides a detailed body of considerations for the task in s 59."
Basten JA, at 662-3 [26], put the differences this way:
"As appears from the language of the relevant provisions set out at [66]-[67] below, the Succession Act differs from the Family Provision Act in three significant respects. First, although both conferred similar powers on the court, the conditions of their exercise differ. The Family Provision Act required that the court 'shall not make an order ... unless it is satisfied that' the provision made by the testator is 'inadequate': s 9(2). The Succession Act provides that the court 'may ... make a family provision order ... if the court is satisfied that' the testator has not made "adequate provision" for the applicant: s 59(1). The changes in language may have been intended to remove double negatives, but there is a resultant change in emphasis. The apparent effect is to widen the discretion vested in the court. That which could satisfy a court that the provision made is 'not adequate', for the purposes of the Succession Act, might not have been sufficient to remove the prohibition under the Family Provision Act, which operated in the absence of affirmative satisfaction that the provision was 'inadequate'. There may well be no bright line boundary between adequacy and inadequacy."
Barrett JA, at 677-8 [82] - [86], said:
"The court's task under the new legislation is in substance the same as that under the old. Three differences relevant to the kind of case under discussion may, however, be noted (I leave to one side as irrelevant to such cases the extension of the s 60(2) criteria to the question of 'eligible person' status); and two postulated differences may be rejected.
First, the Succession Act provisions direct attention, upon the initial inquiry into adequacy, to provision made by the deceased's will and the intestacy laws. The former legislation referred merely to provision 'out of the estate' but it was clear that the operation of the intestacy laws was to be taken into account in deciding what provision was available 'out of the estate': see, for example, Smilek v Public Trustee [2008] NSWCA 190.
Second, the Succession Act confines attention, upon that initial inquiry, to provision made by the will and the intestacy laws. There is no reference to provision made during the deceased's lifetime. In this respect, there is a departure from the Family Provision Act approach under which provision made in favour of the eligible person "either during the person's lifetime or out of the person's estate" was to be examined upon the initial inquiry into adequacy.
Attention may, however, still be given to provision made in favour of the applicant during the deceased's lifetime. That is now one of the factors to which regard may be had under s 60(1)(b) when the court is deciding whether to make a family provision order and the nature of the order: see s 60(2)(i). Under the Succession Act, therefore, provision made by the deceased while living thus has a continuing relevance with altered emphasis. Such provision is no longer something to be taken into account in deciding whether adequate provision has been made; but it may be taken into account in deciding whether an order should be made and the nature of the order.
The third difference to be noted is the Succession Act's more comprehensive catalogue of matters that may be taken into account in formulating an order for provision. Section 9(3) of the Family Provision Act empowered the court to 'take into consideration' matters there stated in 'determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person'. Section 60(1)(b) of the Succession Act allows the court to 'have regard to' the matters set out in s 60(2) 'for the purpose of determining ... whether to make a family provision order and the nature of any such order'. The Succession Act lists a greater number of such matters than did the Family Provision Act."
Other than by reference to the provision made in the Will of the deceased, or, if relevant, by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for the applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision actually made in the deceased's Will, or on intestacy, or both, on the one hand, and to the requirement for maintenance, education and advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant.
In Grey v Harrison [1997] 2 VR 359, at 366-367, Callaway JA observed:
"There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."
It was said in the Court of Appeal (by 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". Stevenson J recently described it as "an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific": Szypica v O'Beirne [2013] NSWSC 297, at [40] (citing Manuel v Lane [2013] NSWCA 61 at [9] per Emmett JA, speaking in relation to s 20 of the Property (Relationships) Act 1984).
Under s 59(1)(c) of the Act, the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the Court is considering the application.
"Provision" is not defined in the Act, but it was noted in Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89, at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".
Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act.
The term "maintenance" usually refers to a provision for the supply of the necessaries of life. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement":
"'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education."
In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), at [18], stated:
"'Proper maintenance' is not limited to the bare sustenance of a claimant [cf Gorton v Parkes (sic) [1989] 17 NSWLR 1], but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility."
In J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, 7th ed, 2006), at 542, the learned authors comment upon the difference between the concepts of maintenance and advancement:
"The essential difference between 'maintenance' and 'advancement' is that 'maintenance' denotes a periodical payment or a payment which could validly be made periodically, whereas 'advancement' denotes a definite unique outlay for a specific purpose. Recipients of maintenance must, practically speaking, be infants, but adults may be recipients of an advancement.
An advancement can never be made of a sum of money which the person to whom it is made can immediately pocket, but it must be made with a view to the establishment of that person in a business or profession, or otherwise in some definite way for that person's benefit, the whole essence of an advancement being the immediate payment of a tolerably large sum for an immediate benefit to one beneficiary."
In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Murphy J noted, at 505:
"Provision for advancement may, for example, extend to retraining or the gaining of a qualification which could advance and perhaps enable an applicant to maintain himself or herself."
In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77 King CJ said:
"The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang [(1960) 104 CLR 124] per Dixon C.J. at p. 128."
Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16:
"Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541)
In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274...
In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said:
'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.'
The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that:
'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'"
In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J, at [114] noted:
"In the context of the Act the expression 'advancement in life' is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase 'advancement in life' has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the 'maintenance and support' of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support."
In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said:
"The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)."
In McCoskerv McCosker [1957] HCA 82; (1957) 97 CLR 566 Dixon CJ and Williams J stated, at 575:
"[t]he presence of the words 'advancement in life' in the ... Act in addition to the words 'maintenance and education' is not unimportant. ... 'Advancement' is a word of wide import."
The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, whereas "proper" prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127, per Buss JA, at 145 [72], [77].
These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 476:
"The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."
Dixon CJ and Williams J, in McCosker v McCosker, at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that:
"It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."
In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Gibbs J said, at 502:
"[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."
In Vigolo v Bostin, at 228, Callinan and Heydon JJ said:
"[T]he use of the word 'proper' ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of the kind which was made here...The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."
Santow J pointed out in Gardiner v Gardiner (NSWSC, 28 May 1998, unreported), that "adequate" and "proper" are independent concepts. His Honour, wrote, at 12:
"'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied ..."
In Palaganio v Mankarios [2011] NSWSC 61, at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life involve value judgments on which minds can legitimately differ, and there are no definite criteria by which the question can be answered.
His Honour further observed in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522, at [123]:
"The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case 'including the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty' (Singer v Berghouse (1994) 181 CLR 201 at 210)."
Until recently, it was unanimously thought that there are two stages of the determination. The first stage, provided for by s 59(1)(c), has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the Court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. The Court does this by determining whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased and/or by operation of the intestacy rules, for the applicant. If it is not so satisfied, then the Court is precluded from making a family provision order. At this stage, the Court has regard to, among other things, 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 circumstances and needs of the other beneficiaries or potential beneficiaries: see McCosker v McCosker at 571-572; Singer v Berghouse at 209-210; Vigolo v Bostin, at [16], [75], [112]; Tobin v Ezekiel [2012] NSWCA 285, at [70].
Whether an applicant has a 'need' or 'needs' is also a relevant factor at the first stage of the enquiry. It is an elusive concept to define, yet, it is an element in determining whether "adequate" provision has been made for the "proper" maintenance, education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 (Tobias JA, with whom Beazley and Hodgson JJA agreed).
In Collins v McGain, Tobias JA said:
"42. Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies.
...
47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is 'proper maintenance etc' of the eligible person. It is because of that context that, in the present case, the 'proper maintenance etc' of the appellant required consideration of a need to guard against the contingency to which I have referred."
In Devereaux-Warnes v Hall (No 3), at [81] - [84], Buss JA said, in respect of the first stage of the process:
"The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources: see Singer (at 227) per Gaudron J.
'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 (at 10-11) per Bryson J.
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 (at 575) per Kirby P.
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 (at 227) per Gaudron J. Compare Gorton (at 6-11) per Bryson J; Collicoat v McMillan [1999] 3 VR 803 at [38], [47] per Ormiston J."
"Need", of course, is a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45].
As Callinan and Heydon JJ emphasised in Vigolo v Bostin, the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably": at 231 [122]. The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined.
In the event that the Court is satisfied that the power to make an order is enlivened (i.e. in this case it is satisfied that the applicant is an eligible person, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), then the Court determines whether it should make an order and, if so, the nature of any such order, having regard to the facts known to the Court at the time the order is made.
The second stage of the process arises under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the Court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.
However, Basten JA, in Andrew v Andrew, said of the two stage process referred to:
"29 The combination of changes [to the legislation] requires that the court address the nature of the exercise being undertaken. Three potential consequences may be identified. First, there is a simplification of the structure of the process. There is no longer a two-stage process required. A degree of artificiality has thus been removed. The court should now ask what, taking all relevant factors into account, would have been adequate provision for the applicant. There is no first stage of determining whether the actual provision was "inadequate", followed by a discretionary exercise of determining what would be adequate and what should in fact be done.
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41 As noted above, the language of the Succession Act is not consistent with the two-stage inquiry which was a common feature of earlier legislation: cf Singer v Berghouse at 208-209. In Keep v Bourke [2012] NSWCA 64 the Court appears to have assumed that the two-stage process continued to operate under the Succession Act: at [24]-[29]. However, the issue not having been directly addressed, there is no constraint on this Court now adopting a different approach. Nor does earlier High Court authority construing an earlier statutory scheme govern the approach to be adopted to materially different legislative provisions."
In Andrew v Andrew, Allsop P, at [6], said:
"Whether the process engaged in by the court in s 59 can still be described as 'two-staged' in the sense discussed in Singer v Berghouse (1994) 181 CLR 201 at 208-211 may be an analytical question of little consequence. The task involves an evaluative assessment and a choice as to consequence therefrom, appeal from which is governed by the principles concerning discretionary judgments: Singer v Berghouse at 211 and DAO v R [2011] NSWCCA 63; (2011) 81 NSWLR 568 at [93]."
Barrett JA disagreed with Basten JA, in Andrew v Andrew, saying:
"65 This is the second occasion on which this Court has been called upon to deal with a claim under s 59 of the Succession Act. In the earlier case, Keep v Bourke [2012] NSWCA 64, the Court proceeded on the basis that approaches taken under s 7 of the now superseded Family Provision Act 1982 remained relevant and applicable. That matter was explored in greater detail in the course of argument in the present case. For reasons I am about to state, I am of the opinion that the earlier approaches should continue to be followed in cases such as the present case and Keep v Bourke, that is, cases in which the applicant is a child of the deceased and no previous order for provision out of the estate has been made in favour of that applicant.
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79 First, it is necessary, having regard to s 59(1)(c), for the court to be satisfied that, at the time when it is considering the application, 'adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person'. Whereas the former s 9(2) provided that an order was not to be made unless the court was "satisfied" in the specified way, the present legislation permits the court to make an order if 'satisfied' in the specified way and, by necessary implication, precludes the making of an order if the court is not so 'satisfied'.
80 Second (and if the court is 'satisfied' in the specified way), the 'family provision order' that the court is empowered to make is, under s 59(2), 'such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made'; and the court may, pursuant to s 60(1)(b), have regard to the matters specified in s 60(2) in deciding whether to make an order and the nature of the order.
81 Under s 59 and s 60, therefore, the task of the court, in a case of the kind under discussion, is:
(a) to determine the extent of the provision made for the maintenance, education and advancement in life of the applicant by the deceased's will or the intestacy laws;
(b) to form an opinion of the adequacy of that provision;
(c) if the opinion is one of inadequacy, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased person for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the court at the time the order is made; and
(d) in making that evaluative judgment, to take into account, as discretionary factors, the matters in s 60(2).
...
94 As stated in Keep v Bourke, the structure and effect of the Succession Act provisions warrant continuing adherence to the two-stage approach indicated by the decisions of the High Court in Singer v Berghouse and Vigolo v Bostin."
In Franks v Franks [2013] NSWCA 60, Young AJA (with whom McColl JA and Sackville AJA agreed), at [17], referred to the primary Judge (Macready AsJ) having "cited the High Court's decision in Singer v Berghouse [supra] and adopted the two stage process required by that decision".
His Honour noted also, at [29], that the appellant (in one of the two appeals) "accepted that it was appropriate for the primary judge to follow the course laid down in Singer v Berghouse and that [the respondent] had surmounted the first hurdle of the two stage process referred to therein. Accordingly, he identified the key question as whether the primary Judge had erred in determining the quantum of the provision made for [the respondent] in lieu of that made under the deceased's will".
At [35], his Honour wrote:
"On an appeal against a decision concerning the application of the second limb of Singer v Berghouse, the Court is dealing with a discretionary judgment (see Singer v Berghouse (at 211) and Durham v Durham [2011] NSWCA 62 at [82]; 80 NSWLR 335 (at 352)). It follows that his Honour's decision is reviewable by this Court only in accordance with the principles established in House v The King [1936] HCA 40; 55 CLR 499."
Although the appeal was allowed, that was because the Court found, at [42], that:
"... in formulating the quantum of the provision he made for Brad, the primary judge did not take into account the disparity in the financial circumstances between Gregory and Brad. Accordingly, the primary Judge's decision as to quantum must be set aside."
Nothing in the judgment of the Court of Appeal in Franks v Franks suggests that the approach followed by the trial Judge, in adopting the two-stage process required by Singer v Berghouse, was wrong.
At first instance, there are a number of decisions to which reference should be made. In Verzar v Verzar [2012] NSWSC 1380, Lindsay J said:
"92 I refrain from characterisation of these elements of the case as 'stages' because that is terminology associated with the Family Provision Act 1982 (NSW) and Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-211. Since Andrew v Andrew [2012] NSWCA 308 (14 June 2012) per Allsop P at [5]-[6] and Basten JA at [27], [29] and [41] a single judge of the Court is bound, in my assessment, to regard the two-stage decision-making process identified in Singer v Berghouse, and confirmed by Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, as superseded by enactment of ss 59-60 of the Succession Act.
93 Although the provisions of ss 59(1)(c) and 59(2) might formerly have been treated, respectively, as re-embodiments of the first and second of the two-stages of decision-making identified in Singer v Berghouse, the test to be applied in Family Provision cases must be taken by me to have been modified."
(An appeal in Verzar v Verzar was heard in the Court of Appeal on 22 November 2013.)
Ball J, in Oldereid v Chan [2013] NSWSC 434, after referring to Andrew v Andrew, noted the different approaches being adopted by trial Judges. His Honour said:
"52 More recent decisions at first instance have differed on whether the decision in Andrew v Andrew requires the court to apply a two stage process or not. Lindsay J in Verzar v Verzar [2012] NSWSC 1380 thought that a single judge of the court is bound 'to regard the two-stage decision-making process identified in Singer v Berghouse ... as superseded by enactment of ss 59-60 of the Succession Act' (at [92]). Hallen J, on the other hand, has continued to apply the two stage test: see Goldsmith v Goldsmith [2012] NSWSC 1486 at [67]; Nowak v Beska [2013] NSWSC 166 at [113]. A third approach, adopted by Macready AsJ in Morgan v Bohm [2013] NSWSC 145 at [110], is to consider the case on both bases. There are, however, difficulties with that approach. If the two approaches involve real differences, then presumably there are cases where they will produce different results. What, then, is to be done applying both approaches? On the other hand, if the two approaches are bound to produce the same result, the dispute about which test should be applied has no significance.
53 In my opinion, there is clearly a tension between the decisions of the Court of Appeal in Keep v Bourke [2012] NSWCA 64 and Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 which only the Court of Appeal or High Court can resolve. In the meantime, the duty of a trial judge is to follow the later decision: see Ratcliffe v Watters (1969) 89 WN (NSW) Part 1 497 at 505 per Street J. In Andrew v Andrew, both Allsop P and Basten JA regarded the reformulation of the test in s 59 of the Succession Act as changing, perhaps only subtly, the threshold that must be satisfied before an order can be made. Basten JA regarded that change as also changing the way in which the court should approach the question. Allsop P regarded it as an analytical question of little consequence. However it is analysed, though, it is clear from the terms of s 59 that the court must ask itself the question whether it is satisfied that "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made". If it is so satisfied, it must consider whether to make an order and, if so, the terms of that order. In undertaking each of those steps, it may have regard to the matters set out in s 60. Whether those steps should be seen as separate stages that must be followed or as convenient steps in undertaking what is required by the legislation does not matter for present purposes."
It appears that Ball J was not referred to Franks v Franks.
More recently, Ball J in Peters v Salmon [2013] NSWSC 953, at [80], has referred to these decisions and to my own decision in Harrisson v Skinner [2013] NSWSC 736, at [62]-[79], and commented:
"There is much to be said for that conclusion [that the two-stage test should continue to be applied]. However, whatever the position, as I pointed out in my judgment in Oldereid v Chan [2013] NSWSC 434 at [53] it seems clear from the terms of s 59 that the court must ask itself the question whether it is satisfied that "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made". If it is so satisfied, it must consider whether to make an order and, if so, the terms of that order. In undertaking each of those steps, it may have regard to the matters set out in s 60."
In Frisoli v Kourea [2013] NSWSC 1166, Slattery J at [139] said:
"Whether the two-step test operates with the same full vigour in the current legislation as it did in the Family Provision Act 1982 has been recently discussed in the Court of Appeal: Evans v Levy [2011] NSWCA 125. Indeed in Andrew v Andrew [2012] NSWCA 308, especially at [26]-[29], and [41], the Court of Appeal has stated that the new language of the Succession Act is not consistent with the two stage inquiry which was a common feature of the earlier legislation. But such considerations are not determinative in this case, which is a clear one on the question of whether or not adequate provision has been made. It has not, for the reasons explained below. And even though the process may no longer be a two stage one, it still involves a similar range of relevant considerations."
In Ploder v Garcea (as executrix of the estate of the late Fiona Rita Garcea) [2013] NSWSC 1360, Sackar J, at [96], referred to a number of the decisions set out above, and said that he agreed with Allsop P (as his Honour then was), that "whether or not there had been a subtle change in approach is an analytical question of probably little consequence".
In Theoctistou v Theoctistou [2013] NSWSC 1487, Lindsay J wrote, at [62] - [63]:
"In approaching the tasks required by the text of the Succession Act, I am mindful that, in their submissions, both parties have drawn attention to the two-stage process discussed in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 209-210, as well as the observations about that process in Andrew v Andrew.
By analogy, the first stage corresponds with s 59 (1)(c) of the Succession Act, and the second with ss 59 (2) and 60 (1)(b): Charmock v Handley [2011] NSWSC 1408 at [46]-[50]."
In West v Mann [2013] NSWSC 1852, Kunc J wrote, at [11]:
"In this case the parties invited me to apply the terms of the Act. They did not suggest any different result would follow depending on whether a two stage or other approach was applied. What is clear is that experienced first instance judges have been unable to agree upon the effect of current appellate authority. For my own part, and with the greatest of respect, I will do no more than observe that there is a risk that the description or characterisation of the process can become an unnecessary distraction. To adapt what the Court of Appeal has observed in another context, whether the process is correctly described as "two stage", "one stage", "twin tasks" or otherwise is "not a substitute for applying the wording of the statute, construed as a whole and purposively, to the particular fact situation that arises for decision in a particular case": Sahab Holdings Pty Ltd v Registrar-General [2011] NSWCA 395 at [185] per Campbell JA and Tobias AJA; McColl JA agreeing."
In Dunne v Dunne [2013] NSWSC 1911, Young AJ said of this question:
"For many years courts have approached this sort of case on a two stage basis following what the High Court said in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-210. In Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 the Court of Appeal was divided as to whether this approach was still consistent with the provisions of the Succession Act 2006. Barrett JA said it was, Basten JA said it was not and Allsop P did not decide the point. In Franks v Franks [2013] NSWCA 60 the Court of Appeal of which I was a member with McColl JA and Sackville AJA Came to the same conclusion as Barrett JA.
I believe that I should still continue to follow the two stage approach though in the present case it has little significance whether I do or not."
Ultimately, as Allsop P said in Andrew v Andrew, at [6], "it may be an analytical question of little consequence" since the questions remain the same, namely, whether the Court can make an order for provision (whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life has not been made for the person in whose favour the order is to be made), and if so, whether it should (whether to make an order and, if so, the terms of that order).
Section 60 of the Act, at least in part, is new. It provides:
"(1) The court may have regard to the matters set out in subsection (2) for the purpose of determining:
(a) whether the person in whose favour the order is sought to be made (the 'applicant') is an eligible person, and
(b) whether to make a family provision order and the nature of any such order.
(2) The following matters may be considered by the court:
(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,
(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate,
(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,
(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate,
(e) if the applicant is cohabiting with another person-the financial circumstances of the other person,
(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated,
(g) the age of the applicant when the application is being considered,
(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,
(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate,
(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,
(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so,
(l) whether any other person is liable to support the applicant,
(m) the character and conduct of the applicant before and after the date of the death of the deceased person,
If (contrary to my foregoing conclusion), I were to be satisfied that Peter had been left without adequate provision for his proper maintenance or advancement in life, I turn, then, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased for the maintenance, education or advancement in life of each Plaintiff, having regard to the facts known to the Court at the time the order is made.
The same considerations would produce the result that, as a matter of discretion, I would not be satisfied that a family provision order ought to be made for Peter. This is a case in which "due regard must be had to what the deceased regarded as superior claims or preferable dispositions as demonstrated by [her] will": Pontifical Society for the Propagation of the Faith v Scales per Dixon CJ at [6]. The financial and material circumstances of Rosemary are such that her competing claim upon the bounty of the deceased would have had the effect of extinguishing any order for provision for Peter. I must not overlook the fact that the Court is not invested with a discretion to remake a deceased's Will upon some principle of fairness.
For these reasons, I am of the view that the Summons filed by the Plaintiff should be dismissed.
Senior counsel for Rosemary submitted that there should be no order for costs in the event that Peter's claim was dismissed and that an order that each party is to bear his, or her, own costs, respectively, of the proceedings would be appropriate in those circumstances. Unsurprisingly, counsel for Peter made no contrary submission.
In the circumstances, I accept the submission made on behalf of Rosemary and will make the order suggested.
I order that:
(a) The Plaintiff's Summons is dismissed.
(b) There be no order as to either party's costs, to the intent that he, and she, will bear his, and her, own costs, respectively, of the proceedings.
(c) The Exhibits be returned.
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Decision last updated: 07 January 2014
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