Fletcher v Fletcher

[2007] NSWSC 728

CITATION:	Fletcher v Fletcher [2007] NSWSC 728 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	04/07/07, 05/07/07, 06/07/07
JUDGMENT DATE :	6 August 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice Macready at 1
DECISION:	Paragraph 174
CATCHWORDS:	Family Provision. Applications by children and stepchildren under Family Provision Act 1982 for provision. Orders for legacies. No matter of principle.
PARTIES:	Amanda Lee Fletcher v Jason Ross Sydney Fletcher Brett John Fletcher v Jason Ross Sydney Fletcher Gregory Joseph Fletcher v Jason Ross Sydney Fletcher Michael Walton v Jason Ross Sydney Fletcher
FILE NUMBER(S):	SC 4767/05; 2180/06; 2084/06; 2918/07
COUNSEL:	Mr JS Drummond for Amanda Mr CM Simpson SC for Brett Mr L Ellison SC for Gregory Mr R Colquhoun for Michael Mr M Meek for defendant
SOLICITORS:	Hilton King Solicitors for Amanda L. Rundle & Co for Brett Heckenberg Associates for Gregory Fitzpatrick Solicitors Pty Ltd for Michael Carroll & O'Dea for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Monday 6 August 2007

4767 of 2005 Amanda Fletcher v Jason Fletcher
2084 of 2006 Gregory Fletcher v Bruce Fletcher
2180 of 2006 Brett Fletcher v Jason Fletcher
2918 of 2007 Michael Walton v Jason Fletcher

JUDGMENT

1 His Honour: This is the hearing of four applications under the Family Provision Act 1982 (NSW) in respect of the estate of the late Sydney Ernest Fletcher who died on 17 April 2005, aged 79 years. His last wife did not survive the deceased but a number of stepchildren and two of his natural children survived him. Four of the children have made applications to the Court and the other child is a defendant in the proceedings. I have ordered all matters to be heard together and that the evidence in one be evidence in the others.

Will of the deceased

2 The deceased left an undated will which appears to have been signed on or after 17 November 2000. Under that will he appointed his nephew, Bruce Fletcher, as executor and left his entire estate to his son Jason Fletcher. Probate has not been obtained in respect of the will but a Grant of Administration has been obtained to enable the present proceedings to be brought.

Assets in the estate

3 At the date of the deceased’s death the estate comprised cash in a bank account of $8,273.58, furniture and effects worth $10,000 and a Ford Falcon wagon valued at $2,000. Funeral expenses have been paid out of these assets. The deceased had a property at 58 Beach Drive, Woonona which was his principal residence and this was transferred to his son Jason on 14 October 2003. The transfer had a stated consideration of $980,000. That sum was not paid but Jason paid the stamp duty on the transfer in the sum of $39,594.

4 The evidence before me clearly established that the transfer to Jason was entered into by the deceased with the intention to deny wholly or in part, provision for the maintenance, education or advancement in life of Gregory Fletcher and Brett Fletcher. The transfer was made less than three years before the death of the deceased.

5 The present value of the property was the subject of a dispute between valuers called by the respective parties. Mr Dignan, called by the defendant Jason, valued the property at $950,000 and Mr Brook, another valuer, valued it at $1.2 million. I will deal with the difference later in this judgment.

6 Substantial costs have been incurred in these proceedings. The estimates are as follows:

Amanda $85,757
Gregory $62,397
Brett $60,385
Michael $63,104
Jason $62,362
Total $334,005

Family history

7 The deceased's eldest son Michael was born on 20 October 1954. Michael was the son of the deceased and Betty Walton. The deceased married for a second time on 17 March 1973. He married Barbara Izzard with whom he worked at TNT. At the time of their marriage, Barbara had three children from her former marriage to Colin Izzard. All three children became part of the deceased’s household, and they are:

Brett Fletcher, born on 4 September 1962 (aged 44)
Gregory Fletcher, born on 8 October 1965 (aged 41)
Amanda Fletcher, born on 27 April 1968 (aged 39)

8 The deceased and his second wife, Barbara, had one child of that marriage, Jason. He was born on 24 October 1973 (now aged 33) and he is the defendant in the proceedings. One child and three stepchildren are plaintiffs in the proceedings.

9 The deceased’s first marriage was to Betty Spencer Walton. The evidence before me discloses that the deceased was granted a decree nisi on 15 March 1973 and on the hearing of that application the court ordered that the decree become absolute within 48 hours. Immediately on the decree becoming absolute the deceased married his second wife, Barbara.

10 It appears that the first marriage of the deceased occurred in Sydney on 23 April 1949. There was no evidence available to be called before me as to the whereabouts of the first wife if she were still alive. Accordingly, I am satisfied that service of a notice on the first wife under section 20 of the Act is impracticable.

11 The parties have helpfully provided chronologies of the family history some of which I will incorporate with modifications into this judgment.

12 The deceased was born in 1926. His second wife, Barbara Fletcher, was born on 7 August 1936.

13 In approximately 1961 the deceased, Betty Walton and Michael Walton moved from Redfern to Riverwood. A year later they all moved from Riverwood to West Street, Lurnea. Michael Walton says that from a young age he would help the deceased work the greyhounds and he was never paid any money for this help. Plainly, the deceased had an interest in breeding and racing greyhounds.

14 In approximately 1968, Michael (then aged 14) obtained work on a paper run and was paid $20 to $30 per week. Michael left school in 1969 (then aged 15) in Year 9 and obtained an apprenticeship as a mechanic. In 1971, the deceased left Betty Walton and he commenced a relationship with Barbara Izzard. The deceased moved into Barbara Izzard’s residence at Narwee.

15 Michael Walton left his job as an apprentice mechanic shortly after. Betty Walton began to live with her mother and Michael Walton remained at the Lurnea residence.

16 On 21 August 1972, Barbara Izzard divorced her husband on the grounds of cruelty. Later that year Barbara Izzard sold her Narwee home and she and the deceased purchased 9 acres of land at 25 May Avenue, Rossmore as joint tenants. The deceased and his family thereafter lived in a flat in Anderson Street, Belmore, while a home at Rossmore was being built. During this time Brett Fletcher and his siblings used to go to Rossmore each weekend and help build sheds and greyhound yards.

17 On 17 March 1973 Barbara Izzard married the deceased. Her children Brett, Gregory and Amanda Izzard’s surnames were changed to Fletcher.

18 In 1973 the deceased and his family moved to the land at Rossmore initially occupying the garage. The deceased and his wife conducted a greyhound training business from the premises. Gregory Fletcher gave evidence that “my stepfather, Brett and I shouldered most of the work for the first 10 years on the farm”. Jason Fletcher gave evidence that most of the construction was done in the first few years of moving. At this time Brett Fletcher and his brother, Greg, commenced attending Rossmore Public School. His parents were still working at Tooheys and left early in the morning and returned home late at night.

19 In approximately 1973, the deceased asked Michael Walton to go and live with them at Rossmore, which he did. Thereafter Michael obtained employment as a brickies labourer and spent all his spare time looking after the greyhounds. Michael says although he was not paid for looking after the greyhounds he paid his father board in the sum of $30 per week.

20 In mid 1973, the deceased’s wife, Barbara, left her employment at Tooheys after she fell pregnant with their youngest child, Jason.

21 Jason Fletcher was born on 24 October 1973. His siblings were then aged 5, 8 and 11 years. His mother ceased work at Tooheys following his birth but later worked at Taubmans until the late 1970s.

22 After suffering a heart attack in 1976 the deceased ceased working at Tooheys. From this time Brett Fletcher took on more responsibility which included on one occasion driving the deceased to Liverpool Hospital for an emergency admission.

23 Michael Walton gave evidence of an incident which occurred in 1977 at the Rossmore property when Barbara fell over and she told the deceased that Michael Walton had hit her. The deceased then asked Michael to leave the Rossmore property and he returned to live with his mother at the Lurnea property.

24 Michael Walton was first arrested and charged with armed robbery at the age of about 23. At that time he had commenced using heroin. The deceased put up bail for him and it was a condition of his bail that he resided with the deceased. Michael remained at the Rossmore property for two weeks and then moved back to Lurnea.

25 In approximately 1978 Brett Fletcher commenced his apprenticeship. He gave his mother his pay packet and she retained money for board and gave him back some money for petrol and lunch and banked the balance in an account with St George Building Society. Apparently his parents had the use of this money in this account.

26 In 1978 Michael Walton was convicted of armed robbery and break and enter. He was sentenced to 11 years and 6 months imprisonment with a non-parole period of 4 years and 9 months. Michael was in and out of prison over the years until 1996.

27 In the late 1970s Barbara received a motor vehicle compensation payment in respect of an accident at that time.

28 On 4 September 1983, Brett Fletcher turned 21 and he received an envelope in the post containing a Commonwealth Bank passbook in the name of Mrs. Dorothy Mavis Paton as trustee for Brett John Izzard with a credit balance of $5,000. His mother arranged for the $5,000 to be put into an account to be given to him when he wanted to buy a house.

29 In 1983 Amanda Fletcher completed Year 10 and left school but continued to reside at home. Amanda Fletcher commenced a hair dressing apprenticeship, paying board to her mother and the deceased.

30 In 1984 Gregory Fletcher left home to attend the University of Tasmania (then aged 18). The only financial assistance he received from the deceased and his mother was 2 months rent when he left home. In January 1984, he commenced employment as a Marine Engineer with BHP.

31 On 21 September 1984 Barbara made a Will leaving her estate to the deceased, and in the event of his pre-deceasing, to the defendant, Jason. He was aged 10 years at the time.

32 In 1985 Brett Fletcher left home aged 23 having qualified as an electrician. Brett Fletcher’s siblings were then aged 20 (Gregory), 17 (Amanda) and Jason (12). Brett married and he and his wife moved to rented accommodation at Rossmore. He continued to work at his parents’ property at Rossmore most weekends over the next two years until the sale of the property. Their first child was born on 12 April 1987.

33 In July 1987 Brett Fletcher purchased his first home at David Street, Mount Pritchard using $9,680 in the account maintained by his mother (which included $5,000 received by him in 1983). In 1987 he graduated with a Bachelor of Applied Science and subsequently undertook further studies in Commerce, Finance and Mathematics.

34 In December 1987 the deceased and Barbara Fletcher sold the property and greyhound business at Rossmore. It was sold for $180,000. The deceased, his wife Barbara and children Amanda and Jason moved to 4 Cooper Avenue, Woonona (South Coast) which had previously been purchased by the deceased and Betty Fletcher.

35 In March 1988 Amanda Fletcher and her mother opened a hair-dressing salon “Pink Scissors” in Woonona operating from rented premises. Amanda’s mother purchased basins, benches and standard hair salon equipment. Amanda paid her mother $100 per week under the “terms of their agreement”, although the defendant, Jason Fletcher says payments did not start until a much later date.

36 In 1988 the deceased and Barbara Fletcher purchased 58 Beach Drive, Woonona which they rented.

37 In December 1990 the deceased and his wife, Barbara were involved in a motor vehicle accident as a consequence of which Barbara subsequently lost her left leg below the knee. Brett Fletcher says he visited his mother in hospital at Randwick nearly every second day after work, the trip being of two hours. For her part Amanda Fletcher says she travelled to Sydney after work to visit her mother and helped the deceased cook. She also says that after her mother’s discharge she assisted her with various household tasks. The defendant, Jason Fletcher says she rendered “very little assistance”. The defendant says that he and the deceased visited nearly every day.

38 In April 1991 the deceased and his wife sold 4 Cooper Avenue, Woonona and commenced to reside at 58 Beach Drive, Woonona which was modified to accommodate for the injuries suffered by Barbara Fletcher. Amanda Fletcher handled most of the dealings with the real estate agent for the sale.

39 In January 1992 Brett Fletcher and his wife Ann separated. Ann and their children moved to Tara in south west Queensland. Their matrimonial home was sold and Brett Fletcher received $35,000. He subsequently formed a relationship with a woman named Libby. He then purchased a house and land package at Curran’s Hill near Campbelltown with the assistance of a $110,000 mortgage and the balance of the sale proceeds of his former matrimonial home.

40 At about this time Gregory Fletcher married Susan and subsequently had two children. In March 1992 Gregory Fletcher left his employment with BHP and worked for Western Mining Corporation. In January 1993 he took a position as a Project Accountant with the company.

41 In 1993 Brett Fletcher and his new partner Libby visited the deceased and Betty Fletcher at their home at Beach Drive. He gave evidence that thereafter they visited the deceased and his mother two or three times a month. The defendant, Jason Fletcher says that visits were one to two times a year.

42 In 1994 Michael Walton’s mother, Betty, died. Michael did not receive anything from her estate.

43 In March 1994 Gregory Fletcher commenced employment as a Financial Accountant with Caterpillar Elphinstone subsequently undertaking other finance related positions prior to joining KPMG as Treasury Accountant in 1998.

44 In Mid 1994, Amanda Fletcher (then aged 26) left home and commenced to reside at Bulli.

45 Brett Fletcher gave evidence that in 1994 the deceased came to his home about once a month and stayed one or two nights. Later that year, Brett lost his employment with SNP Security and experienced difficulty in obtaining further employment.

46 In 1995 Barbara received compensation monies in respect of her personal injuries. The defendant Jason Fletcher gave evidence that she received $250,000 and applied approximately $210,000 towards the purchase of a house for Amanda. Amanda Fletcher says she estimates the sum she received was $300,000. She says the deceased’s wife, Barbara, purchased the property at 6 Royal Crescent, Woonona for $146,000 in the name of Amanda Fletcher, and additionally, paid for external improvements which she estimates cost $30,000. Amanda moved into the property in mid 1996.

47 In mid 1995 Brett Fletcher separated from his partner Libby. Ann his first wife and the children had moved to Tara in south west Queensland. In late 1995, he obtained shift work with Newham Security as a security control room operator. He says the work provided poor pay and he continued to be in arrears with his house payments to St George Building Society.

48 In 1996 Michael Walton was released from prison and has not been in prison since that time. He commenced the Methadone program and remains on it to this day.

49 In 1997 Brett Fletcher left his position with Newham Security and thereafter had periods of unemployment and casual employment. He fell into arrears in mortgage and child support payments. He unsuccessfully tried to work for himself installing security systems, and his mortgage payments and child support payments “again got well behind”.

50 In June 1998 Michael Walton moved to Brisbane. He commenced employment as a roofer on a casual basis.

51 In 1998 Gregory Fletcher says he funded a one week trip to Tasmania by the deceased and his mother. The defendant, Jason Fletcher says only accommodation was provided but I am prepared to accept Gregory’s evidence on this aspect.

52 In August 1998 Barbara gave $50,000 to the defendant, Jason Fletcher to assist him to purchase a house and asked Amanda Fletcher to assist with a further $20,000. Amanda Fletcher then borrowed $20,000 and advanced it to the defendant. She was then told by her mother to retain the $100 a week previously being paid to her mother in respect of her interest in the hair dressing salon to repay the loan of $20,000. Jason Fletcher then lived at Menangle where he had purchased the house using those funds.

53 In mid 1999, St George Building Society sold Brett Fletcher’s residence at Curran’s Hill as mortgagee in possession. He thereafter lived at no fixed address and spent time living in his panel van and with friends. He says he did not have contact with his parents from this time other than several letters and cards which he forwarded but he had otherwise been in regular contact with the deceased and his mother up until that time.

54 In October 1999 Brett Fletcher made contact with Ann, his first wife, and went to Tara in south west Queensland for extended contact with their children. He has remained in the Tara and Chinchilla region of Queensland since that time. He commenced a relationship with Deanna Joy Hurley. He gave evidence that over succeeding years he sent several letters and cards to the deceased and his mother without reply.

55 In November 1999, Gregory Fletcher left his employment with KPMG and was appointed a Business Analyst with Aurora Energy.

56 In January 2000 Brett Fletcher received $4,027 being the balance of the proceeds of the mortgagee sale of his home at Curran’s Hill.

57 On 6 February 2000 Barbara Fletcher died. Her estate passed to the deceased. By this time Amanda Fletcher had paid off $6,000 of her mother’s purchase of the hair dressing business.

58 In September 2000 Amanda Fletcher commenced a relationship with Murray Crane.

59 On 17 November 2000 Richard Tadd, solicitor, wrote to the deceased enclosing a will prepared on his behalf. The will forwarded was executed and witnessed but undated. It provided for the estate to pass to Jason. It further provided:

“I DECLARE that I have made no provision in my Will for my sons BRETT JOHN FLETCHER and GREGORY JOSEPH FLETCHER because I have been estranged from my said son BRETT JOHN FLETCHER for many years and have not spoken to him during that period of time and am emotionally estranged from my said son GREGORY JOSEPH FLETCHER.”

60 In December 2000 Gregory Fletcher left employment with Aurora Energy and took up a position with Hydro Tasmania as a Market Analysis Manager.

61 In 2001 Michael Walton developed severe anxiety and depression and left his employment as a roofer. In approximately 2002 he commenced receiving a Disability Support Pension. Michael Walton rang Bruce Fletcher as he needed to contact the deceased to obtain his family medical history. In late 2002 the deceased phoned Michael. Michael spoke again to the deceased by phone a few months later.

62 In July 2002 Brett Fletcher obtained employment with Murray Purves Pty Limited as an electrician.

63 In 2002 Jason Fletcher sold his property at Menangle and moved back to the Beach Drive residence and resided with the deceased.

64 In Mid 2003 Amanda Fletcher and Murray Crane separated and Murray Crane left her residence at 6 Royal Crescent, Woonona.

65 In 2003 Michael Walton moved from Brisbane to the Gold Coast renting a unit in a duplex owned by a friend of his mother’s.

66 In the same year Amanda Fletcher ceased work as a hairdresser and on 13 September 2003 her daughter, Charlie was born.

67 On 14 October 2003 the deceased transferred the Beach Road property to Jason Fletcher. The transfer recorded “The transferor acknowledges receipt of the consideration of Nine Hundred and Eighty Thousand Dollars …”. The Transfer also recorded Frank Theodore Mathey Solicitor acting on behalf of both the deceased and defendant. Plainly on the evidence the consideration was not paid.

68 On 24 December 2003 Amanda Fletcher says that Jason Fletcher said to her that the deceased did not wish her partner to come to the home. Accordingly she did not visit the deceased on Christmas day.

69 In May 2004 Brett Fletcher commenced to reside in Chinchilla in rented accommodation with Deanna Joy Hurley.

70 In July 2004 Jason Fletcher purchased 62 Lombard Avenue, Fairy Meadow for $555,000.

71 In late 2004 Amanda Fletcher became aware that the deceased had transferred his residence at 58 Beach Drive to Jason Fletcher and that Jason said to her that the deceased had done that so that Brett and Greg Fletcher could not “get it”. According to Jason, he said, “It was dad’s decision, why don’t you go and ask him.”

72 On 1 February 2005 Jason Fletcher suffered a work related injury and commenced to receive worker’s compensation payments.

73 In early 2005 the deceased became ill and on 17 April 2005 he died.

74 In August 2005 Jason Fletcher sold the Monaro motor vehicle for $37,000 and applied money towards the repayments for the Fairy Meadow home, maintenance of 58 Beach Drive and living expenses.

75 On 29 August 2005 Amanda Fletcher filed her Summons.

76 On 13 September 2005 Jason and his partner moved into 58 Beach Drive, Woonona. On 8 November 2005 Jason’s partner ceased employment in preparation for the birth of their daughter which occurred on 28 November 2005.

77 In March 2006 Brett Fletcher commenced a second job working part-time on a casual basis as a bottle shop attendant. On 3 April 2006 a Summons was filed on behalf of Brett Fletcher.

78 In May 2006 Michael Walton rang Fred Fowler and was told the deceased had died.

79 On 8 May 2006 Letters of Administration were granted to Amanda Lee Fletcher for the purpose of an Application being made under the Family Provision Act.

80 In November 2006 Michael Walton again rang Fred Fowler who told him that Jason wanted to contact him. Michael contacted Jason who gave him the name of his solicitor who suggested Michael Walton contact the Law Society.

81 On 16 November 2006 Amanda Fletcher’s second child, Lachlan was born.

82 In December 2006 Michael Walton contacted Mr David Milne of McDonell Milne Toltz Solicitors who requested he forward $2,000 and sign some papers, which he did. He thereafter rang the office of Mr Milne monthly but his calls were not returned.

83 On 20 April 2007 the defendant, Jason Fletcher received $34,200 in respect of his worker’s compensation claim.

84 In May 2007 Michael Walton again rang Mr Milne and was told that Mr Milne was not able to take on his case due to illness. On 18 May 2007 Michael Walton retained Denis Fitzpatrick. On 28 May 2007, Michael filed his Summons out of time.

85 On 25 June 2007 Gregory Fletcher was made redundant and was given 12 weeks’ notice by his employer.

Extension of time

86 Michael Walton’s application is out of time and it is necessary for the court to consider section 16 of the Family Provision Act which allows an application to be made notwithstanding it is out of time. There are a number of cases which refer to the principles to be applied in an application for an extension of time. In Re Guskett (deceased) (1947) VLR 211 the following was said:

"It is necessary for the applicant to make out a case that will justify the grant of the indulgence sought. He is to show reasons why his failure to apply within the time allowed should be excused. Every case will have to be dealt with on its own facts but it would seem necessary for the applicant to satisfy the court that the circumstances are such as to make it unjust for him to be penalised for being out of time. As moreover he is seeking an indulgence he should apply promptly for an extension of time."

87 His Honour Young J in several cases has dealt with the principles governing applications to extend time under this Act. In Massie v Laundy (unreported NSWSC, 7 February 1986) he indicated that when looking at “sufficient cause” under s 16(3) of the Act the factors which one looks at include the following:-

(a) is the reason for making a late claim sufficient?
(b) will the beneficiaries under the will be unacceptably prejudiced if the time were extended?
(c) has there been any unconscionable conduct on either side which would enter into the equation?

88 He also accepts a view which was expressed by His Honour Needham J in Fancett v Ware (unreported NSWSC 3 June 1986) that there is no purpose in extending the time with respect to a claim which must fail. In Phillips v Quinton (unreported NSWSC 31 March 1988) Powell J when considering the matter at the substantive hearing leant to the view that a plaintiff seeking an extension of time under the Testators Family Maintenance Act must now demonstrate not merely a reasonable prospect but at least a strong probability of obtaining substantive relief. That view was not accepted by his Honour Hodgson J in Basto v Basto (unreported NSWSC 8 September 1989).

89 In De Winter v Johnstone unreported, NSWCA, Sheller, Powell JJ, Cole JA, 23 August 1995, His Honour Powell J referred to this matter and in particular the fact that nowadays the application for extension of time is invariably dealt with at the time of the application for substantive relief. He said at page 23:

"In such a case, so it seems to me no extension of time ought to be granted unless it be established (inter alia) that the applicant for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief."

90 His Honour, Mr Justice Sheller, considered that it was only necessary to show that the application was not bound to fail. His Honour Mr Justice Cole seems to have adopted the parties’ approach of looking at the strength of the plaintiff’s case.

91 It is plain in respect of the application for extension of time that there is no particular prejudice caused by the late application. Because the present solicitors for Michael Fletcher acted promptly, the matter has been able to be brought to trial along with the other claims. There is also no question of any unconscionable conduct in respect of Michael's actions.

92 The issue is whether there is a proper explanation from Michael Fletcher as to why his application has been brought out of time. The deceased died on 17 April 2005 and it was only in May 2006 that Michael found out that his father had died and that the estate had been left to Jason Fletcher. In November 2006 Michael had a conversation with Jason who told him that Amanda was challenging the will. Jason gave him a contact number for his own solicitor who Michael rang and, who in turn, gave him the number of the Law Society.

93 Having received a list of solicitors from the Law Society, Michael chose one and had contact with him in December of that year. At the solicitor's request, he forwarded $2,000 and signed some papers. Thereafter he rang the solicitor every month but never managed to speak to him. It is plain from subsequent correspondence that Michael had indeed been in touch with the solicitors. Ultimately due to the illness of the solicitor, he refused to act without any further explanation. This followed receipt by Michael of a letter from Carroll & O’Day of 17 May 2007 giving further notice of the likely hearing date of these proceedings. The next day he engaged his present solicitor who acted promptly in the matter.

94 It is submitted on behalf of Jason Fletcher that there is no evidence as to when Michael Fletcher became aware of his right to make an application under the Act. There is no evidence of any correspondence from the first solicitor who he retained and it is unlikely that the only other solicitor he spoke to, namely the defendant's solicitor, would have given him advice as to the time within which to bring an application. Indeed, that solicitor who has given sworn evidence in the usual way in this case has not given any such evidence. There was no cross examination to elucidate the matter and, accordingly, it seems to me that I should deal with the matter on the basis that there is no evidence that Michael knew of his rights under the Act.

95 In these circumstances, it seems that Michael's explanation is satisfactory. Accordingly, I propose to extend the time for him to bring a claim.

Eligibility

96 Michael is an eligible person as he is the natural son of the deceased. Amanda, Brett and Gregory have been part of the household of the deceased and have at times been dependent in whole or in part upon the deceased. In these circumstances they are eligible persons.

97 However, it is necessary under s 9 (1) of the Family Provision Act that the Court shall first determine whether there are factors warranting the making of the application by Amanda Brett and Gregory. This expression has been dealt with by the court on a number of occasions. In Re Fulop (Deceased) (1987) 8 NSWLR 679 at 681 McLelland J described that expression in the following terms:

"Secondly, the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.'"

98 In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at page 252, after setting out and approving the statement, added: -

“To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition.”

99 These principles have been applied at first instance for many years. In recent times there has been further attention to this matter in the Court of Appeal in the case of Brown v Faggoter, a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success gave the main judgment. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that there may be some flux in the state of the law.

100 When the household commenced the three children were aged three, six and nine. The three children remained at home during their school years and later left home to make their own way in life. It is apparent from the evidence that they all spent a substantial amount of time working in the deceased’s business, as did the other children when they were at home. Contact with the deceased continued after the children left home at least until the time of Barbara's death in 2002. Thereafter for the reasons that do not particularly concern this question, the contact was less in respect of Brett and Gregory.

101 In addition, in respect of Amanda there was provision by the deceased’s wife of funds to set her up in business and purchase a house. It seems to me that as the deceased was in loco parentis to these children for a substantial part of their life that in the traditional sense factors warranting the making of an application are established. I will also naturally consider whether they are likely to succeed in their claims.

102 In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 set out the two stage approach that a Court must take. At page 209 it said the following:-

"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 Limited . 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."

The situation in life of Amanda Fletcher

103 Amanda is 39 years of age and has two young children who are dependent upon her. I accept that she has separated from her former partner, Murray Crane. Although the circumstances of the birth of the second child are somewhat unusual, it seems to me that there is no evidence to suggest that she and Murray are still living in a relationship.

104 Amanda has her house at 6 Royal Crescent, Woonona, presently valued at $520,000. She works as a hairdresser each Thursday for four hours and every second Saturday for four hours for which she receives a gross wage of $123 per week. She receives child support of $50 per week and is in receipt of the sole parent pension of $450 per week. Her income is approximately $623 per week, which is currently less than her expenses of $790 per week.

105 Apart from an old car, which is not in good repair, Amanda has no other assets of any substance and she has liabilities to the Commonwealth Bank of $2,200 and a credit card debt of $850. Her financial situation is precarious apart from the fact that she owns her home out right.

106 Amanda had a reasonable relationship with the deceased during her childhood and assisted with the greyhounds. It is plain that she assisted her parents in a number of their activities after she had grown up. After her mother lost a leg, she, from time to time, went to the markets, which the deceased and his wife did several days a week. After the death of her mother she continued to assist the deceased and maintained contact with him.

107 The only disagreement between Amanda and the deceased was that the deceased took a dislike to Amanda's partner, Murray Crane. Although this was not immediately apparent it became more obvious the Christmas before the deceased died. However, overall, Amanda had a good relationship with her father. Whether she was left out of the will because of the deceased’s dislike for her partner is not something which is apparent on the evidence. There is nothing in the evidence to suggest that Amanda was left out for any other reason. Indeed, the deceased did not include Amanda in the reference he made in his will to Gregory and Brett.

108 Amanda has not contributed to the estate of the deceased other than for the minor help she gave to the greyhounds when she was a young child and assisting her parents at the markets. She has however been extremely fortunate in that her mother has made provision for her of a house which she now owns unencumbered. She also apparently inherited the hairdressing business but this did not continue. Although her mother gave the property to her it was from funds which, in the ordinary course, may have been used elsewhere in the family.

The situation in life of Gregory Fletcher

109 Gregory is 41 years of age, married and has two dependent young children. He owns his house at 76 Waimea Avenue, Sandy Bay in Tasmania. The value of the house is not certain but that is somewhere between $360,000 and $400,000. They own the contents of the house which are insured for $100,000. They own a car worth about $28,000 and his wife has a share portfolio valued at $110,429. Between them they have superannuation entitlements the order of $242,452. However, his wife who has the majority of this fund will not be able to access it for 15 years. Gregory’s current benefit is $49,400.

110 Gregory has worked in a number of positions to which I have referred in the history set out earlier in this judgement. He currently earns $1,224.88 per week and his wife earns $416 per week. Their current expenses in the order of $1,400 per week. He has been made redundant he will have to leave his present employment in the next month or so. He has applied for positions at a reduced salary but so far he has not been successful.

111 Although he has a number of qualifications Gregory may find that they are fairly specialised and it will be some time before he can be placed in employment. However, I would expect, and he agrees, that he will obtain employment eventually.

112 Gregory, like his siblings, worked hard in the deceased's business assisting with the greyhounds. Even after he left home Gregory kept up extensive contact with the deceased and his mother. There were some 77 visits between 1984 until the year 2000. Although there were less thereafter it was not because Gregory did not want to have anything to do with the deceased. In fact, he rang the deceased as a proud father, to tell him of the birth of the deceased’s grandson. The deceased who did not want to know anything about it effectively cut him off. For some reason the deceased had had taken a dislike to him. This was very upsetting to Gregory.

113 In my view, Gregory had a good relationship with the deceased and the difficulties later were actions that the deceased took against Gregory and the other stepchildren after the death of their mother. It seems on the evidence that the deceased regarded Jason as his favourite son and plainly took steps to make sure that he received his property and that Gregory and Brett received nothing. In my view there is nothing in Gregory’s conduct that would diminish his claim on the estate of the deceased in this area.

114 Gregory did not contribute to the estate of the deceased other than by his work as a child and he received no benefits of any substance from the deceased during his lifetime.

The situation in life of Brett Fletcher

115 Brett is 44 years of age and he lives in a relationship with his partner in Chinchilla in rented accommodation. They hope to marry and they pay rent of $100 per week. His income for the financial year ending 30 June 2006 was $43,656 before tax. His only assets consist of an old four-wheel drive vehicle. He has liabilities on credit cards and some arrears of child support. His weekly expenditure including his rent is $720 per week.

116 Brett had a similar relationship to those of his siblings who were living at home with the deceased and his mother. His life has been less organised and his contact not as frequent as that of his other siblings apart, of course, from Michael. The extent of this contact raises the question as to what should be the approach of the Court in these circumstances.

117 Section 7 of the Family Provision Act provides that if a court is satisfied that a person is an eligible person “it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the court, ought, having regard to the circumstances at the time the order is made to be made for the maintenance, education or advancement in life of the eligible person.”

118 In Benney v Jones (1991) 23 NSWLR 559 at 568-9, Priestley JA noted as follows:

“This conclusion directly raises the question of whether the word “ought” in s.7 of the Act carries with it an idea of moral obligation. In answering this question some guidance may be obtained from authoritative decisions under the Testator’s Family Maintenance & Guardianship of Infants Act 1916 (as amended), using due care to take account of the differences between the two Acts.
…..
It seems plain from the comparison of the two Acts, and particularly from s.3 of the 1916 Act and s.7 and s.9 of the present Act, that language from the earlier Act has been deliberately carried into the later one. It would seem that at least one purpose of this retention of much litigated sets of words is that the benefit of the authorities on those words may be available in the construction of the present Act. The same reasoning supports the view that where the new Act uses a different word in an important operative section from the word in the corresponding section of the earlier Act, the difference is deliberate and has a purpose.
The Act draws a distinction between the eligible persons referred to in par(a) and par(b) on the one hand and par(c) and par(d) on the other. Broadly speaking, the distinction can be seen as one between classes of people who, in the ordinary course of family life would, prima facie, be persons to whom the deceased’s person spoken of in s.3 of the 1916 Act and s.7 of the present Act would have an obligation to make provision, whereas those in the other class would, prima facie, not be regarded in the ordinary course of family life as being likely to be made the subject of provision by the deceased.
In regard to the first class, the more usual approach under the 1916 Act was that before making an order, the court needed to be satisfied that the testator ought to have made provision for the applicant, in all the circumstances of the case: see Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478–479 and Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 146-147 per Gibbs J, with whom Mason and Aickin J both agreed. However, there was a differing view, expressed by Murphy J, in the same case when, after commenting (at 158) that “many cases suggest that an applicant must show a moral claim …”, he went on to say that this was a gloss on the Act and was unwarranted and inconsistent with the language of the legislative scheme.
It seems to me that the introduction into s.7 of the present Act of the word “ought” in replacement of the words from s.3 of the 1916 Act “as the Court thinks fit” shows the intention of the present Act to accept the approach adopted by the majority in Hughes and to reject that of Murphy J. The word “ought” seems to be deliberately adopted, in the present Act, from what Gibbs J called the classical statement in Bosch . To my mind, this is a very clear indication that an eligible person within par(c) and par(d) must show a moral claim on the estate before an order can be made; I also think this is the same thing as saying that the deceased person must have had a moral obligation to that eligible person. It is hard to imagine how the one could exist without the other. It seems to me that the same reasoning is very probably applicable to applications by eligible persons within par(a) and par(b) although it is unnecessary to decide that in this case.”

119 Meagher JA (NSWLR at 570) agreed with Priestley JA.

120 Meagher JA had previously expressed a view in Hughes v Hughes, Court of Appeal, unreported 6 June 1989 (an adult daughter case) that the duty arose to make provision as established in that case as follows: -

“Her right arises not merely from the bare fact of parenthood, which of itself does not generate a right , but from the general circumstances of the case; namely, parenthood, the performance of normal filial duties in the 10 years after she left school and in the two periods between her earlier trips and in her professed and continued willingness to be of whatever assistance to her father she could be.” (Emphases added).

121 Hope and Samuels JJA concurred in the judgment of Meagher JA in Hughes v Hughes.

122 In Benney v Jones, Mahoney JA at 560 said:

“Whether an order should be made raises (as it has been
described) the moral or normative question. That question remains, whether the application is made under the former or the present Act. The nature of that question was discussed in this Court and in the High Court in White v Barron (1980) 144 CLR 431; and in Goodman v Windeyer (1980) 144 CLR 490: see, also, Kearns v Ellis (Court of Appeal 5 December 1984 unreported) and Gorton v Parks (1989) 17 NSWLR 1.
“Where the applicant is a member of the deceased’s family, as referred to in the earlier paragraphs of s.6(1) relating to eligible persons, the nature of the duty which the deceased should have fulfilled is reasonably clear.”

123 In Gorton v Parks (1989) 17 NSWLR 1 at 7 ff, Bryson J analysed the relevant authorities dealing with claims by able-bodied adult males. For present purposes, there is no reason to distinguish able-bodied adult females. In the course of doing so, His Honour noted:

“It is then established by authority that no special principle is to be applied, and it seems important to warn myself against allowing prima facie views or the success of some applicants who have special claims to disturb the perception that there is no special principle. In particular, an idea that an able-bodied adult male who is earning a living could have no claim in relation to resources of any size is quite erroneous and must not be entertained either prima facie or at any stage. It is a discarded categorisation:”

124 Bryson J also rationalised the decision of Pontifical Society for the Propagation of the Faith v Scales (Scales Case) (1962) 107 CLR 9. Scales’ case was a claim by an adult son, who was unsuccessful, and where Dixon CJ said (at 18):

“The outstanding fact of the case is that, throughout the period of their joint lives, the son disregarded the father and the father disregarded the son and after a time expressly disowned him. … In truth there is the bare fact of paternity and no other mutual relation: the case depends upon that fact and basically upon nothing else except all the arguments of right and wrong that may be considered to spring from that source and affect the situation of the parties as it existed at the testator’s death.”

125 At 17 NSWLR 1 at [9-10], Bryson J sought to distinguish Scales Case. He said:

“Dixon CJ did not expound the weight which he gave to the bare fact of paternity and nothing else; I regard that bare fact as of very great importance in morality. The idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds acknowledgment of the obligations or of the child appears to me to be an idea from a distant age. There have been changes over long periods in the beliefs of the community about moral duty to children, and there seems in the distant past to have been some acceptance of a view that unless children were legitimate or were acknowledged by their father, he has no moral duty towards them. There seem to have been legal systems in the past in which attempts to provide for illegitimate children by will were ineffective; … Under modern legislation parental duties are not distinguished according to acknowledgment or legitimacy. The idea that acknowledgment by a parent of a child or full accordance of status by a parent might increase the responsibilities of a parent or be significant to moral duty towards the child, with the contrary implications, seems a very strange idea and it is curious to find it, even in a limited way, in a judgment published as recently as 1962.”

126 Bryson J in any event distinguished Scales case (p 11) on the basis that on the facts before him, the plaintiffs,

“In their childhood years they lived in the same street in which their father lived in far greater prosperity a few doors away: they saw him and he saw them from time to time, and they had a relationship with him in which negative aspects preponderated greatly or almost exclusively over any positive aspects of the familial relations. A mutual relation there was. Each of them had a relationship with the testator which the testator brought to an end; in the case of Mrs Joan Adams and Mr John Culcott, he saw something of them and made an inadequate contribution to their maintenance in their childhood, but in effect abandoned the relationship before they reached mature years and at a time when they cannot fairly be held responsible for ending the relationship. They were present before his eyes in their childhood and years of education and trade training; he knew who they were, he must have had an idea of what they were doing, and he did not make even token attempts to assist them in any way. ..”

127 In Walker v Walker (unreported 17 May 1996), Young J reviewed the question of moral duty. His Honour reviewed Gorton’s case, in the context of the earlier High Court and House of Lords decisions, noting the effect of Singer v Berghouse (1994) 184 CLR 201 as follows:

“In Singer’s case , a widow who had been married less than one year to a 68 year old man failed in her application under this Act in this court, in the Court of Appeal and in the High Court. The majority of the court said at page 208 and following that to assess a claim under the present Act there is a two stage process. The first stage is to determine whether an applicant has been left without adequate provision and the second stage is to determine what provision ought to have been made. At p 209 the Judges point out that Re Allen has guided past courts and has three times been approved by the Privy Council or High Court, but that “we doubt this statement provides useful assistance in elucidating the statutory provisions. Indeed, references to “moral duty” or “moral obligation” may well be understood as amounting to a gloss on the statutory language”. They then say “the determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.”

128 Young J also observed:

“In Fraser’s case, Kirby P at p29 said that “I do not consider that it would be safe for this court, or other courts in this state, to disregard the obita dicta in Singer v Berghouse concerning “moral duty”. However, His Honour’s decision made it quite clear that he thought that references to moral duty in the judgment under appeal really amounted to little more than a shorthand expression for the lengthier statutory provisions actually used in the Act. His Honour made it clear that there was no drastic change in the law “either by the observations of the majority in Singer or by the High Court’s reference, in the footnote, to what Murphy J said earlier (p27).”
“Handley JA thought that the dicta in the High Court in Singer should not be followed and pointed out that even as late as 1994 in Neil v Nott (1994) 68 ALJR 509, the High Court was itself using the words “moral claim” in decisions under this Act.
“Sheller JA again did not consider that the High Court’s suggested abandonment of concepts of moral claim or moral obligation changed the task of the court. He said, with reference to decisions of Murphy J at p42 “the point made in the judgments to which Murphy J referred was that the existence of a moral obligation owed by the deceased to the claimant was a necessary part of the claimant’s case but not alone sufficient to justify an order in the claimant’s favour. Thus, in theory an order would not be made out of the estate of a deceased parent in favour of a child who had over many years completely cut himself or herself off from the parent, even though the child was left in need. On the other hand, a wealthy child who had cared for the parent throughout his or her life may have no claim for further provision under the legislation. The courts, in giving effect to the legislative scheme, having accepted that the bare moral claims of the sort mentioned by Stout CJ in re Allardice (1910) 29 NSWLR 959, 970 will not alone suffice to empower the court to make an order.”

129 The concerns expressed about any change in the law as a result of Singer v Berghouse were recently put to rest by the High Court in Vigolo v Bostin [2005] HCA 11 at [25], [74-75] and [121].

130 In Walker v Walker, (p 27) Young J noted:

“It is often impossible to work out whether the degree of separation between parent and child at the date of the parent’s death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between.

The important matter is not fault, but, whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the plaintiff.

Accordingly, I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant. …”

131 These words were recently approved by Ipp J in Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 when he said at 112:

“ I agree with his Honour’s remarks, although I would express the rider that, often, where an applicant is a person within paragraphs (a) or (b) of the definition of “eligible person” in s 6(1) of the Act, proof that the applicant is a person in need will be sufficient. I accept however that there must be a full investigation into all the facts and circumstances as his Honour expounds.

132 Brett appeared to have contact with the deceased and his mother until his world fell apart in 1999. At that time the mortgagee in possession sold his house and Brett became severely depressed. He did not seek medical advice and was too embarrassed to face his parents. Thereafter he went to Queensland so that he could re-establish contact with his children who were living with his ex-wife. He decided to stay there and has settled in the area. He gave evidence that he sent postcards to his mother and stepfather but received no reply.

133 He says that they could not afford to make trip to Sydney to visit them and having regard to his history and his evidence, I would accept that this was probably the situation.

134 It seems to me that although there was a break in contact leading to a position in which the Brett found it difficult for him to contact the deceased, he did have contact before 1999. His lack of contact thereafter, although not entirely his fault, will detract from his claim.

The situation in the life of Michael Walton

135 Michael is 52 years of age, single and has no dependants. He has no savings or assets apart from the $2,000, which he had sent to his first solicitor in these proceedings. He has a car that is unregistered and needs a new gearbox. He lives on a disability support pension of $637 per fortnight. His expenses consume this sum.

136 Doctors have treated Michael for a number of conditions. He has suffered from anxiety, depression and drug addiction to which I have referred. Fortunately he seems to be over his drug addiction. His current problems include abdominal pains which are not yet fully diagnosed, and apparently he may have to have his gallbladder removed. He is on a waiting list for an operation. There is evidence from his psychiatrist confirming his depressive illness which is said to be in the process of significant resolution. The psychiatrist's view is that there is a positive outlook in respect of his continuing with the Methadone program, but he sounds a cautionary note as to the help which he will need before he would be able to run a business.

137 Michael did not contribute to the estate of the deceased and has received no benefits. So far as his relationship with the deceased is concerned, it is plain that Michael had a difficult time with the deceased. He was frequently belted with a leather strap and buckle as a child and his memories of those times are part of the problem from which he has suffered. It is plain that although there was one occasion when the deceased supported him in the early years of Michael's troubles, he spent a long time without contact with the deceased.

138 In terms of whether one would regard this as Michael's fault or the deceased’s on a superficial level plainly it is Michael's fault. However having regard to the fact that such drug dependencies are extremely difficult to overcome and such a common part of the community it is not appropriate to just disregard Michael's claim because of the substantial lack of contact. In my view a better approach is to recognise that the lack of contact was caused by the addiction which Michael suffered and that consequently any consideration of his claim could only be in the light of what small amount of contact occurred between 1996 and the deceased’s death.

139 That contact was quite minor and occurred in part because of Michael's poor circumstances. In my view his lack of contact is not sufficient to bar his claim but the claim will be substantially reduced because of the lack of contact.

140 It is also necessary to consider the position of others having a claim on the bounty of the deceased. In this case the only other person is Jason.

The situation in life of Jason Fletcher

141 Jason is 23 years of age and married. He and his wife have two young children who live with them and are dependent. His wife is expecting to give birth to a third child in September.

142 Jason is a bricklayer by trade. He was injured in a work accident in February 2005 and has not worked as a bricklayer since that time. He is in receipt of workers compensation payments. His wife suffers from multiple sclerosis. Their income consists of Jason's workers compensation payments of $427.45 per week, Michelle’s part-time work at $90 per week and family assistance of $165 per week. This totals $682.50. After allowing for the loss on his training greyhounds his net income is $632.45. At present there are weekly expenses of about $1,000 per week and he is drawing on savings.

143 Jason owns the Beach Drive property and has cash reserves of approximately $105,000. They have several cars. His only debt is a Visa card debt of $10,103.05.

144 Jason was of course the youngest child and there are some suggestions in the evidence that there were arguments during his childhood between Jason and his parents. The fact that he has been left the whole of the deceased's estate in the Will of the deceased demonstrates that the deceased did not regard them in a serious light.

145 In April 1991 a sum of $131,355 was paid by Barbara and the deceased to an account in Jason's name. Jason first asserted that he held those moneys on behalf of Barbara and the deceased so that they could purchase 58 Beach Drive. This was plainly not the case as Beach Drive was purchased three years earlier for cash. He had no real explanation of why he would be paid that money to hold on behalf of the deceased and Barbara. He could not account for what happened to the money. It is evident that Jason has spent a substantial amount of capital, in the order of $100,000, in the last 18 months. I am satisfied that the payment in April 1991 was simply a provision made for Jason.

146 It was suggested to him that he had a gambling problem which he denied and claimed that the funds had been used to support his family. On the evidence, I would not conclude that he has a gambling problem but plainly his present lifestyle requires an expenditure of capital for it to be maintained.

147 I have earlier referred to a dispute in respect of the value of Jason’s property. Both valuers were cross-examined before me by telephone link. The valuers were at issue as to the use of comparable sales in the immediate area. The property at 14 Beach Drive sold in April 2007 for $1,080,000. According to one of the valuers it was an old house which could have been demolished to allow for the erection of a duplex. As this is the case, it seems to me that it really reflects land value and supports the higher sale price for 38 Beach Drive sold in February 2006 for $1.5 million. No 14 Beach Drive was a corner block and the Valuer General's valuation of the land was $770,000 in contrast to the subject property at $750,000. Some reliance was placed by Mr Dignan on the sale of 25 Dorrigo Avenue, Woonona for $900,000 in June 2006. He described it as inferior to the subject property. When it was pointed out that the Valuer General's valuation of the land value was $380,000 compared with the subject land of $750,000 he had no comment other than to say that the Valuer General’s valuation could not be relied on.

148 There is another sale of 62 Beach Drive which sold for $1,285,000 in September 2005. Mr Dignan thought it superior to the sale of land.

149 It seems to me that the recent sale of 14 Beach Rd gives a true indication of the land value and how it has increased in this area. In my view the value of the property is $1,200,000.

Discussion of the claims

150 It is necessary to see how the plaintiffs say they have been left without adequate and proper provision for their maintenance, education and advancement in life. It was suggested in submissions on behalf of Amanda that she being a single mother of two children who only has part-time employment with no backup funds, needs to receive a fund sufficient to support her while she raises her two small children. It was suggested that a legacy of $200,000 would be appropriate. Clearly Amanda has to have funds to assist her to bring up her two children. The extent of any provision will obviously depend upon other claims on the estate and they will have to take into account the provision already made for her by the deceased's family which is reflected in her current asset position.

151 Gregory may have difficulty in obtaining further work in the short term. He still has two children to support, one of whom is unwell. In my view some provision is appropriate to be made for Gregory having regard to his circumstances.

152 Brett has approval to borrow $100,000 from the National bank so that he can buy a property in southern Queensland. He asked for a legacy of $220,000 so that he can purchase a modest residence in Chinchilla and some white goods. The problem for Brett is that he is presently living beyond his means and it may be difficult for him to pay off the mortgage. Brett has a need for some funds to put him in a better financial situation and whether or not he would be entitled to a sum for a house is a matter which has to be considered in the light of all the circumstances including the other claims.

153 Michael seeks a legacy of $100,000 so that he can set up a courier business and commence a productive life. He has never operated such a business before and, as I have indicated, his psychiatrist is somewhat guarded about Michael's ability to do this without appropriate help. There is evidence to suggest that his friends will help him cope with accommodation and the setting up of such a business. Plainly, because of his lack of assets and despite the fact that he had limited contact with the deceased, some small provision would be warranted to allow him to support himself. Whether or not he should have a more substantial sum will depend upon an analysis of the other claims.

Notional estate

154 I am satisfied that it is appropriate to make some provision for the four plaintiffs and this will require a consideration of whether the property at Beach Drive should be declared notional estate. I have earlier indicated that because of the failure to pay the purchase price and because the relevant intention of the deceased was plain, the Court can declare Jason's property to be notional estate.

155 Section 27 of the Family Provision Act is in the following terms:

"(1) On an application in relation to a deceased person, the Court shall not make an order designating property as notional estate of the deceased person unless it has considered:

(a) the importance of not interfering with reasonable expectations in relation to property;

(b) the substantial justice and merits involved in making or refusing to make the order; and

(c) any other matter which it considers relevant in the circumstances.

(2) In determining what property should be designated as notional estate of a deceased person, the Court shall have regard to:

(a) the value and nature of property the subject of any relevant prescribed transaction or distribution from the estate of the deceased person;

(b) where, in relation to any such prescribed transaction, consideration was given, the value and nature of the consideration;

(c) any changes over the time which has elapsed since any such prescribed transaction was entered into, any such distribution was made or any such consideration was given in the value of property of the same nature as the property the subject of the prescribed transaction, the distribution or the consideration, as the case may be;

(d) whether property of the same nature as the property the subject of any such prescribed transaction, any such distribution or any such consideration could, during the time which has elapsed since the prescribed transaction was entered into, the distribution was made or the consideration was given, as the case may be, have been applied so as to produce income; and

(e) any other matter which it considers relevant in the circumstances."

156 It is plain that Jason knew the purpose for which the property was transferred to him. He attended the solicitor with his father and knew that his father intended to transfer the property to defeat the claims of Brett and Gregory. He was the favoured son and had been told that he would inherit the property. Having regard to these facts such an expectation was not reasonable.

157 Jason spent money on improvements to the property after the date of death of the deceased. These improvements included painting a large part of the interior of the house, carpeting the upstairs section, installing new timber floors, installing new light fittings and blinds and the erection of a new side paling fence and other work on fences. The evidence did not disclose the cost of these items but they are not substantial in the sense of major alterations to the house. Certainly there was some cost involved but Jason must have appreciated that there was some risk involved by him carrying out the work.

158 In my view the substantial justice and merits of the case warrant a declaration of the property as notional estate to the extent necessary to meet any claims upon the property.

159 Michael has an additional hurdle because of the provisions of s 28 of the Act. Section 28 includes further restrictions on the power of the Court to designate property as notional estate. Section 28(5) provides as follows:

"On an application in relation to a deceased person, being an application:
( a) made pursuant to an order under section 16 allowing the application to be made; or
(b) for an order under section 8 for additional provision, the court shall not make an order designating property as notional estate of the deceased person by reason of a prescribed transaction or a distribution unless it is satisfied:
(c) that:
(i) the property was the subject of the prescribed transaction or distribution;
(ii) the person by whom it is held holds the property as a result of the prescribed transaction or distribution as trustee only; and
(iii) the property is not vested in interest in any beneficiary under the trust; or
(d) that there are other special circumstances (including, in the case of an application made as referred to in paragraph (a), the incapacity during any relevant period, of the person by or on whose behalf the application is made) which justify the making of an order so designating the property."

160 The relevant section is s 28(5)(d). Apart from stating incapacity as a special circumstance, the sub-section gives no other indication of what constitutes such a special circumstance. However it is clear that s 27 applies when a claim is made both before and after the time limited by s 16. Section 28(5), in a case where an extension is to be allowed, may thus be thought to impose either a further requirement over and above the matter which a court will consider under s 27 or merely a requirement that a circumstance be "special". In s 28(5)(d) the word "other" is used in describing "special circumstances". That I think is grammatically a reference to the matter appearing in s 28(5)(c). It may be that the matter in s 28(5)(c), namely a discretionary trust, was thought to be a special circumstance.

161 A question which arises is whether a circumstance which may be taken into account under s 16 can also be taken into account as a special circumstance under s 28(5)(d). In Dare v Furness (1998) 44 NSWLR 493 Cohen J decided that infancy was a factor which could be considered, although not determinative, under s 16, and a special circumstance under s 28(5)(d).

162 In Lewis v Lewis [2001] NSWSC 321 Hodgson J considered the section and said at paragraph 85:-

“The requirement of "special circumstances" has been considered a more difficult hurdle than s.16: see Bearns . Section 28 itself gives some indication of the types of circumstances that may count as special circumstances, circumstances involving such things as property not finally vesting in interest, and lack of capacity in the plaintiff. It was submitted for the plaintiff that his mental disability would provide special circumstances: however, as submitted by the defendants, that was not put forward at the hearing as a matter constituting special circumstances, and I do not think any significant weight can be given to it. However, I do not think that special circumstances are limited to the types of circumstances suggested by s.28 itself or circumstances closely analogous to them: for example, in my opinion, a very significant change of circumstances, from circumstances where there was little point in a Family Provision Act application to circumstances where the plaintiff had extreme need and consequently a strong case, could amount to ‘special circumstances’.”

163 I have some doubt about his Honour’s example as there are a number of judges who consider the example posited would not be a sufficient explanation for a late claim.

164 A matter which I think may be a special circumstance is the fact that the proceedings by the other plaintiffs were commenced well within time. The reason why this should be a special circumstance lies in the policy that underlies the Act. The Act has a series of provisions which provide various gateways for making orders under s 7 of the Act. The various gateways commence with the class of persons who may make claims and progress through other matters such as the time within which a claim has to be made. There are also additional gateways which concern either distributed estates or estates that have passed by means other than a will into the hands of beneficiaries or persons whom the deceased wished to benefit. The provisions in s 28(5)(d) only apply in cases where an extension of time is necessary or an application is made for subsequent provision under s 8. The latter pre-supposes that there was an earlier application under s 7. In both of those circumstances it can be expected as a matter of course that the estate would be distributed or parties may have conducted themselves on the basis that the dispositions at the death of the deceased would not be affected by claims of dependents. This additional gateway in respect of this area of late or further claims has a further gateway which requires special circumstances. The purpose really is to provide additional protection to persons taking under the will or under a prescribed transaction and who may have ordered their affairs on the basis that time has expired.

165 In the present case, however, there seems to be no warrant for that level of protection being available to the defendant given that claims were already made well within time by the other beneficiaries. It seems to me that this circumstance would constitute special circumstances for the purposes of the sub-section.

166 One thing that should be observed in respect of this family is that the source of the funds for the Rossmore property which eventually was used to purchase the current Beach Drive property was a property that the deceased’s second wife, Barbara, owned. Substantially, the cash used from the sale of her property went into the purchase of the Rossmore property and the construction of buildings on it was subsequently financed by both the deceased and his wife, Barbara.

167 If orders are made designating the property as notional estate it may need to be sold and Jason will have to purchase some other property. The evidence is that another house in the area, although not on the beachfront, could cost between $500,000 and $600,000. Jason has the problem that he is still on workers’ compensation and he will probably have to reduce the cost of his lifestyle.

168 If orders are made in this matter, including the payment of costs, then the amount available after the sale of the property deducting expenses of sale, will be in the order of $825,000.

169 Brett’s claim for $220,000 in the light of the lack of contact which he had over the later years, I think, is excessive. Having regard to the other claims, his request for sufficient funds to enable him to buy a house goes beyond what is appropriate. Brett and his brother Gregory, who in fact had more contact with the deceased, should both receive a modest legacy.

170 Michael had very little contact with the deceased and effectively his claim for $100,000 for a business venture for which he has no experience, I think would be unwise. A more modest legacy might be appropriate and certainly he should have something to allow him to support himself.

171 Amanda, as I have indicated, has a difficult situation in that she has to bring up her children relying upon social welfare. No doubt her income will increase over the years when she will be able to spend more time working. She has had a very substantial start in life having received an unencumbered house, admittedly not in very good repair, which has saved her the cost of renting. Of all the stepchildren she had the most contact with the deceased but this was in part because she was living near the deceased.

172 Having regard to the various needs expressed by the plaintiffs, it seems to me that it would be appropriate to grant legacies of $100,000 each in favour of Brett, Gregory and Amanda and a legacy of $50,000 in favour of Michael.

173 It was suggested in submissions that it might be appropriate to grant a percentage of the estate having regard to the variable nature of the evidence of the anticipated sale price of 58 Beach Drive, Woonona. However, I think it more appropriate to determine a figure for each plaintiff as Jason is perhaps more able to accommodate any variation in the amount passing to him.

174 The orders I that I make are as follows:

1. I order that Amanda Fletcher, Gregory Fletcher and Brett Fletcher each receive a legacy of $100,000.
2. I order that Michael Walton receive a legacy of $50,000.
3. I order that interest be payable on such legacies if they are not paid within four months of today and on and from that day at the rate prescribed for under the Wills Probate & Administration Act 1898.
4. I order the plaintiffs’ costs on the ordinary basis and the defendant’s costs on an indemnity basis be paid or retained out of the estate of the deceased.
5. I designate 58 Beach Drive, Woonona as notional estate to the extent necessary to meet the above orders.

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07/08/2007 - Wrong year in the file number - Paragraph(s) Heading only