Geoghegan v Szelid - [2011] NSWSC 1440

Supreme Court

New South Wales

Medium Neutral Citation: Geoghegan v Szelid [2011] NSWSC 1440
Hearing dates: 24 & 25 November 2011
Decision date: 19 December 2011
Jurisdiction: Equity Division
Before: Hallen AsJ
Decision:
(a) Having found that the Plaintiff is an eligible person, that there are factors warranting the making of the application and that the provision made for him in the Will of the deceased is inadequate, order that the Plaintiff receive, a capital sum that equates to 15 per cent of the net value of the deceased's estate.
(b) The capital sum be provided by way of a protective trust.
(c) The Cross-Summons will be dismissed.
(d) If the parties are unable to agree, I shall determine any issue as to costs.
(d) The parties are to bring in short minutes that reflect these reasons. If agreement is not reached on the terms of the orders, I shall hear further argument.

Catchwords: Proceedings, commenced by the former husband of the deceased for a family provision order under Chapter 3 of the Succession Act 2006 - Also alleged to be a person with whom the deceased was living in a close personal relationship at the time of the deceased's death, as well as a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased person was a member - Plaintiff also asserts he was in a de facto relationship with the deceased at the time of the deceased's death - Defendants named in the Summons are children of the deceased by prior marriage and the persons to whom Probate of the deceased's Will was granted - They oppose the application of the Plaintiff for a family provision order
Legislation Cited: Civil Procedure Act 2005
Family Provision Act 1982
Interpretation Act 1987
Property (Relationships) Act 1984
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Supreme Court Practice Note SC Eq 7 - Family Provision
Cases Cited: Allardice, In re, Allardice v Allardice (1909) 29 NZLR 959
Barlevy v Nadolski [2011] NSWSC 129
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Brown v Faggoter [1998] NSWCA 44
Churton v Christian (1988) 13 NSWLR 241
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Dion v Rieser [2010] NSWSC 50
Diver v Neal [2009] NSWCA 54 (also (2009) 2ASTLR 89)
Dridi v Fillmore [2001] NSWSC 319
Evans v Levy [2011] NSWCA 125
Foley v Ellis [2008] NSWCA 288
Forsyth v Sinclair (No 2) [2010] VSCA 195
Fulop Deceased, Re (1987) 8 NSWLR 679
Gaulit v Bunker [2010] FamCA 232
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Hampson v Hampson [2010] NSWCA 359
Hayes v Marquis [2008] NSWCA 10
Hughes v Charlton [2008] NSWSC 467
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
McCosker v McCosker (1957) 97 CLR 566
Marsh-Johnson v Hillcoat [2008] NSWSC 1337
Mayfield v Lloyd-Williams [2004] NSWSC 419
Palaganio v Mankarios [2011] NSWSC 61
Penfold v Perpetual Trustee [2002] NSWSC 648
Permanent Trustee Company v Fraser (1995) 36 NSWLR 24
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9
Popescu v Borun [2011] NSWSC 1532
Porthouse v Bridge [2007] NSWSC 686
Przewoznik v Scott [2005] NSWSC 74
Puckridge, Deceased, In the Estate of (1978) 20 SASR 72
Richardson v Kidd [2002] NSWSC 306
Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100
Scragg v Scott [2006] NZFLR 1076
Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Thompson v The Public Trustee of New South Wales [2010] NSWSC 1137
Tsivinsky v Tsivinsky [1991] NSWCA 269
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (NSWSC, 17 May 1996, unreported)
Ye v Fung [2006] NSWSC 243
Texts Cited: The Second Reading Speech (Legislative Assembly, (Hansard) 26 May 1999, p 535)
Category: Principal judgment
Parties: Carew Leo Geoghegan (Plaintiff)
Steven Zoltan Szelid (first Defendant)
Joan Gabriele Szelid (second Defendant)
Representation: Counsel:
Mr P Strasser (Plaintiff)
Mr L Ellison SC (Defendants)
Solicitors:
Milne Berry Berger & Freedman (Plaintiff)
MCW Lawyers (Defendants)

File Number(s): 2011/85183

Judgment

HIS HONOUR: These are proceedings, commenced by Carew Leo Geoghegan ("the Plaintiff"), who is the former husband of Sandra Gabrielle Szelid (also known as Sandra Geegan) ("the deceased") for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act"). He is also alleged to be a person with whom the deceased was living in a close personal relationship at the time of the deceased's death, as well as a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased person was a member. He also asserted, alternatively, that he was in a de facto relationship with the deceased at the time of the deceased's death (although this was faintly pressed during submissions).

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 commenced the proceedings, by Summons filed on 16 March 2011, that is, within the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased).

The Defendants named in the Summons are Steven Zoltan Szelid and Joan Gabrielle Szelid, each of whom is a child of the deceased and the persons to whom Probate in common form of the deceased's Will was granted. They oppose the application of the Plaintiff for provision.

There were proceedings, by Cross-Summons, for possession of the home unit at Darlinghurst owned by the deceased, but prior to the proceedings being heard, the Plaintiff vacated possession of those premises. The Cross-Summons is simply to be dismissed.

Background Facts

The following facts are uncontroversial.

The deceased died on 15 September 2010. She was then aged 67 years (having been born in June 1943).

The deceased was married to the father of the Defendants. The marriage was dissolved on a date not disclosed in the evidence, but at some time before about 1986 or 1987.

The Plaintiff and the deceased married in about 1986 or 1987. Their marriage was dissolved in about 1999.

The deceased left a Will that she made on 22 February 1999, Probate of which was granted, on 28 February 2011, by the Supreme Court of New South Wales.

The deceased's Will provided for the whole of her estate, after the payment of debts, funeral and testamentary expenses and a pecuniary legacy of $5,000 to the Anglican Church Diocese of Australia to pass to the Defendants as tenants in common in equal shares, absolutely.

In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased's estate, at the date of death, was disclosed as having an estimated, or known, value of $180,339. No liabilities were disclosed. The estate was said to consist of real estate, being a home unit at Darlinghurst, and moneys in banks or financial institutions on deposit ($339).

The parties were unable to agree upon the value of the estate at the date of hearing. There was a substantial disagreement about the value of the unit at Darlinghurst, the evidence of the Plaintiff, by market appraisal, being that it had an estimated value of between $300,000 and $390,000, whilst the Defendants' evidence, also by market appraisal, was that it had an estimated value of between $200,000 and $250,000.

Ultimately, the parties agreed that should the court make an order for provision for the Plaintiff out of the estate of the deceased, the provision should be by way of a proportion or percentage of the proceeds of sale of the unit at Darlinghurst (since there was no dispute that it would be sold as soon as reasonably possible) rather than by way of an order for a lump sum.

In all the circumstances, this is a sensible solution and it is one that I shall adopt.

On behalf of the Defendants, there are said to be unpaid liabilities of the estate, being Probate costs ($2,560), legal costs of acting on the sale of the Darlinghurst home unit ($1,610), advertising for sale ($2,000), unpaid rates on the home unit ($5,494) and the reimbursement of funeral costs ($11,545). The amount of the agent's commission (calculated at the rate of two per cent) will depend on the sale price of the Darlinghurst home unit, but it could range between $4,000 and $7,800.

In calculating the value of the estate, finally available for distribution, the costs of the present proceedings should also be considered, since the Plaintiff, if successful, normally, will be entitled to an order that his costs be paid out of the estate of the deceased, whilst the Defendants, irrespective of the outcome of the proceedings, normally, will be entitled to an order that their costs be paid out of the estate.

The Plaintiff's costs and disbursements of the proceedings have been estimated to be about $55,973 (inclusive of GST and upon the basis of a two day hearing).

The Defendants' costs and disbursements of the present proceedings, including senior counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a two day hearing), have been estimated to be $60,010. Of this, the fees of senior counsel were estimated to be $17,600.

The persons described as eligible persons, within the meaning of the Act are the Plaintiff and the Defendants. The father of the Defendants (the former husband of the deceased) predeceased the deceased. Only the Plaintiff has commenced proceedings and the parties agreed that the burden of the provision, if any, made for the Plaintiff should be borne by the Defendants equally.

Costs

Litigation over estates of this size is difficult under our system of justice and whilst it is not for the Court to direct a party as to which legal representatives should be retained in a matter, the retention of senior counsel should be commented upon. I am 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".

If parties wish to adopt an approach that may have the effect of reducing the value of an estate so substantially, they should not consider that the costs and disbursements incurred will, necessarily, be borne by the estate. In Forsyth v Sinclair (No 2) [2010] VSCA 195, it was said by the Court of Appeal (Neave and Redlich JJA and Habersberger AJA) at [27]:

"We consider that it is a matter of concern that in many family provision cases the amount available for distribution amongst the competing beneficiaries is significantly reduced by legal costs. Parties should not assume that litigation can be pursued safe in the belief that costs will always be paid out of the estate. Every effort should be made to resolve the dispute before the costs get out of proportion. However, it takes two to settle a dispute and unless sensible offers of settlement are made in a form which can be referred to subsequently, it is very difficult for the Court to allocate responsibility for the dispute not settling. All that can be done is to conclude that where costs have been incurred unreasonably, as here, they must be borne personally." (Omitting citation)

That in excess of $115,983 has been incurred in legal costs and disbursements, in such a small estate, where the issues are not particularly complex and where the eligibility of the Plaintiff could not be in issue, requires attention. In saying this, I do not suggest that the costs and disbursements charged are unreasonable for the work that was done by the legal representatives. That will be a matter for the assessor of the costs and disbursements.

I consider that the totality of the costs of both parties in these proceedings is entirely out of proportion to the nature of the proceedings and the gross value of the estate (between about $200,000 and $390,000). Disproportionality is a dynamic to which both sides of this litigation contributed: Gaulit v Bunker [2010] FamCA 232 at [28].

The briefing of senior counsel, in an estate of this size, was simply unnecessary and extravagant. I shall consider limiting the fees recovered out of the estate for senior counsel to an amount reasonably attributable to the rate charged by junior counsel. This will not prevent senior counsel recovering his fees; but it will prevent the whole of those fees being treated as a liability of the estate.

On the issue of costs, I shall also bear in mind paragraph 24 of Supreme Court Practice Note SC Eq 7 - Family Provision, which provides that orders may be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the value of the estate is less than $500,000. Unless agreement is reached on the issue of costs, subject to hearing further submissions, I may cap the costs of both parties recoverable out of the estate.

The Statutory Scheme - The Act

Introduction

I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out some of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they be able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions.

The wording of the Act is similar to the wording of the former Act. However, it is necessary to remember the warning of Kirby P in Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100, at 76,304:

"Purposive construction of the Act

There is always a danger where a reformed Act borrows heavily upon ideas which previously existed in the common law or in an earlier statute, that lawyers will approach the construction of the Act affected by the previous law. Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 2 NSWLR 475, 478. That danger is but an illustration, in the specialised activity of law, of a universal phenomenon of psychology long established in relation to human perception generally. We tend to perceive what we expect. We expect that with which we are familiar.

There is a particular danger in the case of the Family Provision Act in construing its terms by reference to the law which developed around the Testators' Family Maintenance and Guardianship of Infants Act 1916 . That Act was passed in earlier times to govern the entitlements of a testator's family, as narrowly defined. The definition by s 3(1) of that Act confined applications to those made by "the widow, husband or children of such persons". There was no mention in it of former spouses. Doubtless this was because, for the early part of this century, divorce was relatively infrequent and then based upon concepts of matrimonial fault which would make interference in the testamentary disposition of the deceased unlikely. When enacted, the statute was a radical interference in the power of testamentary disposition. That was a significant power over private property, the disturbance of which was regarded as highly exceptional."

Whilst the relevant amendments made by the Act are not as significant to those made by the former Act, it remains necessary to bear his Honour's warning in mind in construing the statutory framework. In doing so, a construction that promotes the purpose, or object, of the Act is to be preferred to a construction that would not promote that purpose or object. In my view, the principles applied by the courts to the former Act continue to apply, except to the extent that the Act otherwise requires.

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 person'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 a deceased person's disposition 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 Substantive Provisions of the Act

The key provision is s 59 of the Act. The court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1). There are six categories of persons by whom, or on whose behalf, an application may be made. The relevant categories upon which reliance is placed by the Plaintiff in this case are sub-sections (b), (d), (e) and (f). I shall return to these sub-sections later in the reasons.

Where an applicant falls within s 57(1)(d), (e) or (f), the court must next consider and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application (s 59(1)(b)).

The Act does not specify the "factors which warrant the making of the application". In considering the meaning of what he described as "this poorly conceived and clumsily expressed subsection" in the former Act (which did not form part of the Draft Bill produced by the Law Reform Commission), M McLelland J said, in Re Fulop Deceased (1987) 8 NSWLR 679 at 681 (approved in substance by the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241) that the factors are factors which, when added to facts which render the applicant an eligible person, give him, or her, the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased.

Kirby P in Tsivinsky v Tsivinsky [1991] NSWCA 269, in dealing with the section of the former Act, which was in similar terms, said:

"Insofar as s 9(1) gives any guidance concerning the factors 'which warrant the making of the application', it is Delphic. The language used is extremely broad in its generality ('all the circumstances', 'whether past or present', 'factors ... warrant making the application', 'satisfies'). The only real clue as to what is meant is to be derived from the apparent policy of confining this additional, preliminary procedure to the particular categories of 'eligible person' contained in the definition paras (c) and (d) in s 6(1) of the Act."

In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard and Fitzgerald AJJA, there was the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test than that which the Court of Appeal approved in Churton v Christian .

In Penfold v Perpetual Trustee [2002] NSWSC 648, Windeyer J did not follow Brown v Faggoter . Bryson AJ also commented in Porthouse v Bridge [2007] NSWSC 686:

"In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors ("there are factors") is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination."

In Diver v Neal [2009] NSWCA 54 (also (2009) 2ASTLR 89), Basten JA, with whom Allsop P and Ipp JA agreed, said of s 9(1) of the former Act:

"8 As noted above, compliance with this requirement was not the first issue addressed by the primary judge, although s 9(1) envisages that it is to be determined before the Court decides whether to "proceed with the determination of the application". In practice, the factors relevant to the issue raised as a preliminary matter are, to a significant extent, co-extensive with those which must be addressed in determining whether the testator made adequate provision for the applicant: see Churton v Christian (1988) 13 NSWLR 241 at 242-243 (Hope JA) and 248-249 (Priestley JA). Nevertheless, the express distinction between two classes of eligible person must be recognised. It appears to have been drawn on the basis that persons falling within the first category (comprised of those identified in pars (a) and (b)) are "regarded as natural objects of testamentary recognition", whereas those falling within the second category (identified in pars (c) and (d)) are potentially appropriate objects of testamentary recognition, depending upon their circumstances: see Churton at 252 (Priestley JA) applying the analysis of McLelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681."

More recently, in Evans v Levy [2011] NSWCA 125, Young JA, with whom Campbell JA and Sackville AJA agreed, said:

"[62] It would seem that what the drafter of the legislation of 1982 did was to endeavour to avoid some of the complications that had been found to exist with cases under the 1916 Act as to just who was an eligible person by broadening the category to a very extensive degree. However, to provide some sort of filter, s 9(1) was enacted so that, without the estate having to get into a great expense, the question of whether the application could possibly succeed would be determined early. Unfortunately, experience has shown that that was a vain hope.

[63] However, the intended result of the wide nature of para (d) of the definition of "eligible person" and s 9(1) is to seek to restrict people whose claims should proceed to a hearing to those who are in very similar categories to those who are within paras (a) and (b) of the definition.

[64] On s 9, the decision of M McLelland J in Re Fulop (dec'd ) (1987) 8 NSWLR 679 has stood the test of time."

It can be seen that the trend of authorities does not favour the view suggested in Brown v Faggoter . With great respect, I also regard the views expressed in the authorities referred to by Windeyer J, Bryson AJ, Basten JA and Young JA as correct and propose, in the circumstances, to follow their decisions.

Then, if eligibility and, if necessary, factors warranting the making of the application are found, 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 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)). It may take into consideration, then, the matters referred to in s 60(2) of the Act. In this way, the court carries out a two-stage process.

Other than by reference to the provision made in the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for the applicant's proper maintenance, education or 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 or 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 or advancement in life of the applicant.

It was said in the Court of Appeal (per Basten JA) in Foley v Ellis [2008] NSWCA 288 at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment".

Importantly, there no longer appears to be any sanction to consider, in s 59(1)(c) of the Act, the provision made by the deceased during his, or her, lifetime for the applicant (see, s 9(2) of the former Act).

Under s 59(1)(c) of the Act, the time at which the court gives its consideration to the question is the time when the court is considering the application.

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

Neither are the words 'maintenance' and 'advancement in life' defined in the Act. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at [115], said, of the words 'maintenance', 'support' and 'advancement':

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

In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77, King CJ said:

"The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang (1960) 104 CLR 124, per Dixon CJ at 128."

In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J noted at [114]:

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

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

Each of the words was 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 (1957) 97 CLR 566 at 571 - 572, after citing Bosch v Perpetual Trustee Co Ltd , went on to say, of the word 'proper', that:

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

In Goodman v Windeyer (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 [114], Callinan and Heydon JJ said:

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

In 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.

The first stage of the process provided for by s 59(1)(c) has been described as "the jurisdictional question": Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 at 208-209. 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.

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

Tobias JA said:

"42. There can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focused. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies.

...

47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is "proper maintenance etc" of the eligible person. It is the cause of that context that, in the present case, the "proper maintenance etc" of the appellant required consideration to guard against the contingency to which I have referred."

In Devereaux-Warnes v Hall (No 3) at [81] - [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 per Gaudron J at 227.

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

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

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

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

The second stage of the process arises under s 59(2) (No 2) and s 60(1)(b). Mason CJ, Deane and McHugh JJ, in Singer v Berghouse , at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.

The discretion should be exercised carefully and conservatively according to community perceptions of the provision that would be made by a wise and just testatrix: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 146. The standards of the wise and just testator or testatrix of today, not of an era ago, are pertinent to that assessment: Permanent Trustee Company v Fraser (1995) 36 NSWLR 24 at [36].

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It can be seen that s 60(2) enumerates 15 specific matters which the court may take into account, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order, and, if so, the nature of any such order. There is no hierarchy as between the various factors. The weight to be attached to each of them is likely to differ depending upon the individual circumstances of the particular case. Nor is there a mandatory command to take into account any of the matters enumerated. None of the matters differentiate in their application between classes of eligible person or types of relationship. Similarly, there is no distinction based on gender.

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

Furthermore, consideration of some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and of other eligible persons as well as of the beneficiaries, whilst others do not. Importantly, also, many of the matters in sub-s (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).

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

This does not mean, however, that some of the matters referred to in s 60(2) will be irrelevant to the jurisdictional question to be determined at the first stage. I am comforted in reaching this conclusion by the following comments made in Singer v Berghouse (No 2) (at 209-210):

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

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant."

And by the comments of Callinan and Heydon JJ in Vigolo v Bostin , who wrote at [122]:

"We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all the potential beneficiaries must be taken into account and weighed with all of the other relevant factors."

Section 61 of the Act permits the court to disregard the interests of any other person by, or in respect of, whom an application for a family provision order may be made (other than a beneficiary of the deceased person's estate), but who has not made an application. However, the court may disregard any such interests only if:

(a) notice of the application, and of the court's power to disregard the interests, is served on the person concerned, in the manner and form prescribed by the regulations or rules of court; or

(b) the court determines that service of any such notice is unnecessary, unreasonable or impracticable in the circumstances of the case.

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

(a) the person or persons for whom provision is to be made; and

(b) the amount and nature of the provision; and

(c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided; and

(d) any conditions, restrictions or limitations imposed by the court.

The order may be made, relevantly, in this case, in relation to the estate of the deceased.

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

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

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

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

Applicable Legal Principles

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

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

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

The court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair.

Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9 at 19; Walker v Walker ( NSWSC, 17 May 1996, unreported); Vigolo v Bostin at [25]; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.

The Act is not a "destitute persons Act", and it is not necessary, therefore, that an applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1909) 29 NZLR 959 at 966.

I make it clear that I do not intend what I have described as "applicable legal principles" to be elevated into rules of law. Nor do I wish to suggest that the jurisdiction should be unduly confined. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind.

Credibility of the Witnesses

I found, overall, that each of the witnesses was doing his, and her, best to tell the truth.

The principal criticism of the Plaintiff was that he did not disclose, in his first affidavit, events that had occurred in about 1989, which involved him serving a term of imprisonment for the assault of the deceased.

Whilst not, in any way, condoning the failure to include details of these events in any of his affidavits, it cannot be that he omitted those details with a view to misleading the court. It was obvious that the Defendants would have those details and would make reference to his conduct since the conduct of an applicant is a matter that the Court may consider (to which I shall return later in these reasons).

Also, without in any way condoning his conduct towards the deceased, the events occurred at a time when the Plaintiff's medical condition, which I shall discuss later in these reasons, may not have been determined and when he was not taking the type of medication which he has taken since his condition has been diagnosed.

To her credit, the deceased visited him in jail, appeared to forgive the Plaintiff, and they resumed married life together, for some years, after his release. In addition, in 2004, she permitted him to live with her, thereafter, until her death, albeit their relationship then was different.

I was also asked to bear in mind the Plaintiff's evidence regarding his spending of the amount that he received (about $75,000) following his property settlement with the deceased, which evidence appears, clearly, to be wrong.

I am of the view that the Plaintiff was confused, rather than deliberately lying, about the expenditure of those moneys. Whilst I shall take into account the expenditure of that amount within a relatively short period of time, I do not find that his inaccurate evidence adversely affects his credit.

I must also remember, when considering the evidence of the Plaintiff, his medical condition, to which I shall refer later in these reasons.

I thought that the second Defendant, Ms Szelid, gave her evidence somewhat defensively. She made her dislike of the Plaintiff known, not only by the content of her affidavits, but also in her oral evidence when she repeated that the deceased did not want the Plaintiff to remain living with her. She said that the deceased did not know how to make him leave.

This evidence was somewhat hard to accept, particularly as other evidence described the deceased as a strong willed woman who would not do what she did not wish to. By way of example, Ms Matthews, the deceased's sister, said that the cause of disputes that she had with the deceased related to the deceased refusing to exercise, which was something that Ms Matthews was trying to encourage her to do.

The first Defendant described the deceased as a person who would express her views and feelings and would maintain those. According to him, she had no difficulty expressing her views or feelings.

Also, if the relationship between the Plaintiff and the deceased was as bleak as the Defendants wished me to accept, it is surprising that neither assisted the deceased to obtain legal advice and legal help to ensure that he vacated the premises.

At times, I found Ms Szelid attempting to paint a picture in which the Plaintiff did virtually nothing for the deceased. But, when pressed, she admitted that he did provide some assistance. For example, she was asked about the deceased being able to shop. She said that the deceased "did shop", but when pressed, she said "she needed help with that at times". On another occasion, she was asked about the deceased needing assistance to go to medical appointments. At first, she maintained that the deceased could walk to her medical appointments, but when pressed, she admitted that the Plaintiff assisted "to get her to the hospital at the times she was sick, after a lot of persuasion".

Yet, Ms Szelid accepted that the deceased "always felt sorry for [the Plaintiff] because he said he had nowhere else to go".

I found the evidence of Ms Szelid's partner, Mr Harmouch, a little confusing. Whereas, Ms Szelid, had no difficulty accepting that the Plaintiff lived with the deceased, he said that the deceased had told him that she had "kicked [the Plaintiff] out" and that he did not know whether the Plaintiff still lived there on the occasions that he visited. He admitted seeing a bed in the lounge room and some of the Plaintiff's old clothes.

However, as I said, at the time of his evidence, on this topic, he may have been repeating what had been said by the deceased, when he asked her about the Plaintiff, rather than Mr Harmouch positively asserting that the Plaintiff was not living with the deceased at various times.

The first Defendant, Mr Szelid, was travelling overseas for most of the period that the Plaintiff lived with the deceased after 2004. He spent a fair amount of time in Asia, and his contact with the deceased was sporadic. He would see her about every two months, but most of his contact was by telephone.

He stated that he "could not answer" whether the Plaintiff provided some comfort to the deceased, particularly after Ms Matthews left, and whilst the deceased was recuperating from a hip operation.

I found Ms Matthews to be the most straightforward and forthright witness called by the Defendants. Whilst she denied any serious conflicts with the deceased, Ms Matthews acknowledged, immediately, that the deceased had "certain emotional problems"; that the deceased suffered from depression; that she had physical problems, including arthritis, which meant that she was not self-sufficient, which, in turn, caused her some inconvenience, restricted her movements, and made her "cranky" at times.

It was she who acknowledged, in cross-examination, that when the Plaintiff moved in he offered assistance to the deceased and that he "probably" gave her some comfort. (Whilst senior counsel for the Defendant, in re-examination, reminded her of this answer and submitted that "probably" qualified her answer, I do not accept Ms Matthews' answer was qualified and I do not accept her subsequent answer in re-examination.)

I found her answer in cross-examination to be a spontaneous and truthful one, and one that accords with the reality of the situation. For some years prior to 2004, the deceased had the assistance of Ms Matthews. At, or about, the time of the deceased's hip operation, Ms Matthews moved from the deceased's home. It is more than likely that when the Plaintiff moved in, he offered to provide the deceased with assistance, which she probably then required.

Without in any way intending criticism, it is noteworthy that neither of the deceased's children moved into her home unit at the time to assist her. Even if either had offered, and the deceased had refused, the undisputed fact is that she did not refuse the Plaintiff. It seems to me that, at the time, each probably needed the assistance of the other and felt sufficiently able, bearing in mind their past relationship, to count upon the other to provide such assistance.

Relevant Facts

I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60(2) of the Act. I shall later identify other facts that will also be relevant in my determination of the Plaintiff's case.

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

The following comment has been made by Campbell JA in regard to the court's consideration of the totality of the relationship of the applicant in Hampson v Hampson [2010] NSWCA 359:

"80 The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge."

The Plaintiff and the deceased met prior to 1986. They were married in about 1986 or 1987, they separated in 1994, and the dissolution of their marriage occurred in 1999. Accordingly, their marriage was of about 12 or 13 years duration, although they appear to have lived together for about half of that time.

They did not see much of each other between 1994 and about 2004, although there was some contact between them. As I have earlier found, the Plaintiff moved into the deceased's home unit at Darlinghurst, and remained living there with the deceased for about six years. He continued to live there after she died.

It follows that, in total, the duration of their relationship spanned about 24 years. For some of the time, they were married. Then from 2004, their relationship was of a different kind. Whilst I have come to the view that they did not ever live in a de facto relationship from 2004, I am satisfied that they were in a close personal relationship from about that time.

(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

The deceased did not have any legal, or financial, obligation to the Plaintiff imposed upon her by statute or common law. Their marital relationship had ended some years before he moved into the Darlinghurst home unit and there was a property settlement between them.

The deceased did not have any legal, or financial, obligation to the Defendants imposed upon her by statute or common law either. However, as her children, she may have had an obligation or responsibility to make adequate provision for his, or her, maintenance and advancement in life.

(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

On any view, on the basis of the agreement of the parties, the deceased's estate is an extremely small one. It will be even smaller if the estimated costs are deducted.

There is no notional estate.

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

The Plaintiff receives a Centrelink disability pension of about $689 per fortnight. He is unlikely to work because of his medical condition. I accept that he has no earning capacity at the present time.

He pays rent of $560 per fortnight, although this is for temporary accommodation. His other expenditure is equal to, or exceeds, the balance of his income. That expenditure includes paying victims compensation reimbursement of $20 per fortnight. He says he has other liabilities totalling in excess of $4,500.

The first Defendant, who is currently aged 47, is currently unemployed (and has been since 15 September 2011) although he hopes to obtain employment in the not too distant future. His occupation is that of an "IT service management specialist". He receives social security payments of $480 per fortnight. He owns a home unit ($500,000 - $550,000), which is encumbered by debt ($350,000). Although he is unable to service the mortgage debt, his mortgage repayments are $3,000 per month. He has outstanding strata levies of about $6,000 and personal loans and credit card debts totalling about $40,000. He has sought hardship assistance from his creditors.

The second Defendant, who is currently aged 39, owns a property ($480,000), has a car ($12,000) and savings ($3,019). Her income is approximately $2,606 per month and her monthly expenditure is $2,214 per month. Although she asserts that she has other liabilities, these are clearly debts, funeral and testamentary expenses that she has borrowed to pay (and for which she will be reimbursed) or they are payable out of the estate when the home unit at Darlinghurst is sold.

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

The Plaintiff is not co-habiting with any other person. He lives alone. However, for a period of time after the death of the deceased, he lived with a woman, in a de facto relationship, in the home unit at Darlinghurst.

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

The Plaintiff relied upon the evidence of Professor Tim Lambert, who prepared a written report dated 14 September 2011, concerning the Plaintiff's mental capacity, his level of intellectual disability and whether he suffers from a mental disorder and if so, its nature and prognosis.

Professor Lambert's report was tendered and admitted without objection and he was not cross-examined. His report, relevantly, provides:

"...

It was clear that Mr Geoghegan is in fact intellectually compromised to some degree and this seems the most parsimonious explanation of his unusual appearance.

...

Mr Geoghegan exhibits deficits in the registration of new facts and ability to process them and understand them in context. Although he was orientated in time and place he had poor awareness of current events that any member of society would normally be cognisant of. Bedside testing revealed deficits in frontal and parietal and temporal cognition - i.e. memory difficulties, abstract thinking, and executive function. The full extent of his cognitive deficits could only be ascertained if he were to undergo neuropsychological testing, which I think is not crucial in the current context. Estimating his general verbal and performance IQ from our interview was not really possible with any precision.

...

With respect to the latter, Mr Geoghegan was unable to perform simple arithmetic calculations, and totally unable to perform a standard serial sevens test.

...

His language was linear in short bursts it but (sic) had reduced coherence in the sense that he would often answer a question with a non sequitur. These paralogical answers were not typical of mental illness, but more reflected his poor comprehension of the question and his attempt to provide an answer from a range of stock, or recently expressed answers.

...

From the absence of any intercurrent phenomenology consistent with a persistent psychosis, and the total lack of recognition by the patient of any classical syndrome, I would suspect that the combination of interpersonal violence in the past and his intellectual disability may have resulted in an inappropriate diagnosis which appears to have been perpetuated without review by a consultant psychiatrist (at least until now, as far as we know). It should be noted that dose (sic) of olanzapine may impair cognitive function in the person that doesn't require such medicine. However in the absence of there being any external medical reference, the actual impact on Mr Geoghegan will have to remain conjectural.

...

I feel that Mr Geoghegan has impaired mental capacity in the sense that although he clearly understands the nature of his request for legal assistance, he may not fully be able to appreciate more complex advice provided to him by his representatives. He would require very careful (and time consuming) explanations and then assessment to see if he had been able to understand and incorporate the advice provided.

...as noted above, it appears that Mr Geoghegan has a widespread intellectual deficit but in order to quantify this accurately he would require a neuropsychological assessment by a specialist in that psychological domain.

Lastly I do not believe Mr Geoghegan is current (sic) currently suffering from an obvious mental disorder. This does not preclude him having had one in the past, but at present there is no suggestion of an illness that may have contributed to his belief with respect to the claim he is making. Should this claim in any way be erroneous, it is much more likely that this will be the consequence of his intellectual deficits."

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

The Plaintiff was born in August 1962 and is presently aged 49 years.

(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

"Contributions" are not defined in the Act. However, as stated in the sub-section, what may be considered includes financial and non-financial contributions, including to the welfare of the deceased.

The Plaintiff's evidence is that he did assist the deceased with household duties. He also says, and I accept, that after her hip surgery, he undertook such tasks as paying her bills (I gather this means with her money), shopped for groceries and collected and delivered anything that she asked him to. He would take her out on a motorised scooter with the dogs.

What is depicted in the photographs of the unit at Darlinghurst is a state of relative untidiness and mess. Even though these photographs were taken after the death of the deceased, I have no reason to disbelieve the evidence that the conditions, whilst he was living in the home unit at Darlinghurst, were much the same. This suggests that not much time, attention or diligence was directed towards the cleanliness of the home unit.

The Plaintiff and the deceased did spend a part of most days together. This is corroborated by the evidence of the second Defendant and of Ms Matthews, each of whom refers to conversations with the deceased, in which complaints were made about the Plaintiff always being around. Despite this, I am satisfied that the Plaintiff did provide some assistance to the deceased and, in this way, made some contribution to her welfare.

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

The deceased made no specific provision, during her lifetime, or out of her estate, for the Plaintiff, other than providing accommodation, for which he paid some rent. However, it is clear that after her death, he remained living in the home unit at Darlinghurst despite having been requested to move by the Defendants. He remained there, rent and occupation-fee free, for about ten months.

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

While this sub-section permits the court to accept evidence of the reasons for the provision, or lack of provision, it does not compel the court to attribute any particular weight to that evidence, or to accept the deceased's statement as establishing the truth of what is asserted.

There is no evidence about the deceased's testamentary intentions or statements about those intentions.

(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

There is no evidence that the deceased maintained the Plaintiff, either wholly or partly, before his death, except by way of provision of accommodation, for which he paid some rent.

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

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

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

There was not very much evidence on this topic other than in respect of matters already dealt with.

I have earlier referred to the Plaintiff's conduct that resulted in him being incarcerated for six months and the events that occurred subsequently involving the deceased (e.g. moving back in with the deceased). Whilst this is conduct that I shall bear in mind, I am satisfied that it does not disentitle him to provision, if the court concludes, otherwise, that provision should be made for him out of the deceased's estate.

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

The deceased identified the Defendants as her beneficiaries. I have referred to the relationship of each with the deceased. I am satisfied that there is nothing in the conduct of either that is otherwise relevant.

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

This is not relevant in the present case.

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

The second Defendant acknowledges that she received a gift of $30,000 when she was 16 years old from the deceased. Whilst this is a relevant matter, the gift occurred over 20 years before the death of the deceased. There was no dispute that the Plaintiff was eligible as a member of the deceased's household who was partly dependant upon her.

Determination

Eligibility

There was no dispute, in this case, that the Plaintiff, as a former husband of the deceased, is an eligible person. In those circumstances, and subject to what I shall say about factors warranting the making of the application, it was unnecessary for him to establish any alternative ground of eligibility.

However, as the Plaintiff, during submissions, by his counsel, indicated that he wished the Court to decide whether he was living with the deceased in a de facto relationship and, alternatively, in a close personal relationship at the time of her death, I shall deal with these heads of eligibility, albeit briefly.

There is no definition of "de facto relationship" in the Act. However, that term is defined in section 21C of the Interpretation Act 1987. For the purposes of any Act or instrument, a person is in a "de facto relationship" with another person if: (a) they have a relationship as a couple living together, and (b) they are not married to one another or related by family.

In s 21C(3) of the Interpretation Act , in determining whether two persons have a relationship as a couple for the purposes of sub-section (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case:

"(a) the duration of the relationship,

(b) the nature and extent of their common residence,

(c) whether a sexual relationship exists,

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them,

(e) the ownership, use and acquisition of property,

(f) the degree of mutual commitment to a shared life,

(g) the care and support of children,

(h) the performance of household duties,

(i) the reputation and public aspects of the relationship.

No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple."

In this case, it appears that the Plaintiff returned to live with the deceased, albeit, initially, temporarily, in about 2004 and he remained living in her home thereafter until her death. Accordingly, the duration of this period was about six years. They resided in the deceased's home unit in Darlinghurst.

There is no suggestion that, during this period, a sexual relationship between them existed. The Plaintiff did not assert such a relationship and he admits that he slept in the lounge room, rather than in the bedroom occupied by the deceased. He described his relationship with the deceased as being "companions". In my view, this is an apt description.

There is some evidence of financial interdependence and support, although it is not suggested that they pooled any income or other property. He would pay rent. On some occasions, one would assist the other financially, on a temporary basis. There is no suggestion that each received the pension calculated upon the basis that they were a couple.

There is no suggestion that the deceased prevented the Plaintiff from using her household furniture, or chattels, and the evidence is clear that they both used a motorised scooter that belonged to the deceased.

There is no evidence of mutual commitment to a shared life. For example, there does not appear to have been much emotional attachment or the merging of their lives. For example, they did not eat together, the deceased bought groceries, and the Plaintiff ate out. They did not go out together except to walk the dogs.

Although the Plaintiff asserts that he performed household duties, the evidence suggests that whilst he might have done some, he did not do very much. He did, however, take the dogs for a walk, and it appears that he would shop for the deceased and do errands for her, when requested.

There is no evidence that the deceased and the Plaintiff had a reputation as a couple and no public aspects of the relationship have been advanced. Nor is there evidence that either promoted that notion.

The determination of the existence of a de facto relationship is essentially impressionistic. If sufficient pieces of evidence exist which, when viewed cumulatively, and through the application of common sense and proper reasoning, satisfy the finder of fact that the relationship is a de facto relationship then the statutory test is met: Scragg v Scott [2006] NZFLR 1076 at [64].

The concept was discussed by Gzell J in Ye v Fung [2006] NSWSC 243 at paragraphs [64] - [65] of the judgment:

"[64] A de facto relationship requires more than adult persons living together. They must live together as a couple. When one thinks of persons as a couple, one thinks of two people in a romantic relationship. That is the first meaning given in the Macquarie Dictionary (4th ed) with reference to people as a couple. The Oxford English Dictionary in defining the word in the sense of the union of two, or a pair, gives as its first meaning with reference to two people: 'A man and woman united by love or marriage; a wedded or engaged pair'.

[65] In my view the word in the Property (Relationships) Act 1984, s 4(1)(a), in the context of the extension of relief under the Act to persons in a domestic relationship, connotes two adult unmarried persons living together, united by love, or living together in a romantic relationship. The effect of such a construction is that de facto relationships are confined to heterosexual and homosexual romantic relationships."

More recently, in Dion v Rieser [2010] NSWSC 50, Bryson AJ said at [14]:

"[14] A de facto relationship is a continuing course of conduct and behaviour, not an event at a fixed point of time. No matter how close their involvement in each other's emotional lives, a conclusion that people are living together as a couple involves consideration of the circumstances in which they are living, including the places at which they are living. The test is not primarily locational, but it has a locational element."

In this case, even though the Plaintiff and the deceased lived together, I am not satisfied that he has demonstrated that they were living in a de facto relationship at the date of the deceased's death. That two individual lives were merged into life as a couple, which lies at the heart of the statutory considerations, has not been established.

"Close personal relationship" is defined in s 3(3) of the Act to mean "a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care". Therefore, the definition calls for two different links, the first being that the adult persons are "living together" and the second being that "one or each of whom provides the other with domestic support and personal care".

Importantly, also, the close personal relationship must exist "at the time of the deceased person's death" for the applicant to be an eligible person: s 57 (1)(f).

Section 3(4) of the Act provides that for the purposes of subs (3), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care (a) for fee and reward, or (b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).

An "adult person" is a person of, or above, the age of 18 years: s 3(1) of the Property (Relationships) Act 1984. Persons are related by family if, for example, they have a parent in common: s 5A of the Property (Relationships) Act .

In this case, there is no dispute that the Plaintiff and the deceased were adults and that they were "living together" at the time of the deceased's death. Accordingly, that link in the definition is established.

The second link is cumulative. The expressions are not defined. However, the adult persons must be living together at the same time as one, or each, provides to, and/or receives, domestic support and personal care from, the other. Neither one nor the other, provided alone, suffices. Both domestic support and personal care must be provided.

The word "domestic" carries connotations of matters relating to a household. The Macquarie Dictionary definition includes "having to do with the home, the household, or household affairs".

Some of the primary meanings of "personal" include of, or pertaining to, concerning or affecting the individual person or self; one's own; of or pertaining to one's person or body or figure; bodily. In broad terms it requires one person caring, in a personal way, for the needs of another, such as assistance with mobility, personal hygiene, physical comfort and emotional support: Hayes v Marquis at [168]. However, the notion of "personal care" should not be confined to matters relating to physicality: Hayes v Marquis at [87]. The Second Reading Speech (Legislative Assembly, (Hansard) 26 May 1999, p 535) contemplated that personal care services may encompass ensuring the physical and emotional comfort of one or both parties for the other.

The relevant authorities that have discussed "close personal relationship" include Dridi v Fillmore [2001] NSWSC 319; Richardson v Kidd [2002] NSWSC 306; Przewoznik v Scott [2005] NSWSC 74; Ye v Fung ; Hayes v Marquis [2008] NSWCA 10; Hughes v Charlton [2008] NSWSC 467; Marsh-Johnson v Hillcoat [2008] NSWSC 1337; Thompson v The Public Trustee of New South Wales [2010] NSWSC 1137; Barlevy v Nadolski [2011] NSWSC 129; Popescu v Borun [2011] NSWSC 1532.

In this case, I am satisfied that the parties were in a close personal relationship at the time of the deceased's death. The Plaintiff provided some "personal care" (to which I shall refer later in these reasons). He has established that he provided the deceased with some modest domestic support. Whilst he may not have assisted, to any great extent, in performing domestic chores, by which I mean keeping the house clean and tidy, he did provide assistance to the deceased in taking the dogs for a walk, buying her groceries for her, and performing other errands for her.

Accordingly, in my view, the eligibility of the Plaintiff has been established.

Factors warranting the making of the Application

The Plaintiff submits that the following are factors warranting the making of the Plaintiff's application:

(a) the long relationship between the Plaintiff and the deceased;

(b) her feeling for the Plaintiff in providing him with accommodation when he had nowhere else to go;

(d) the evidence of the deceased's sister, Julie Matthews, who acknowledged that after she ceased residing with the deceased, in 2004, the Plaintiff moved in "and offered assistance" which "probably gave [the deceased some comfort";

(e) the Plaintiff's impecuniosity.

Senior counsel for the Defendants accepted that the length of the relationship between the Plaintiff and the deceased could be regarded as a factor warranting the making of his application.

I am satisfied that the factors, perhaps with the exception of the last one, referred to in the Plaintiff's counsel's submissions, warrant the making of the application.

Having established eligibility and factors warranting the making of the Plaintiff's application, and there being no dispute that the proceedings were commenced within the time prescribed by the Act, I turn now to the first stage of the two stage process required. In determining the answer at this stage, I must consider the provision, if any, made for the Plaintiff, as well as the totality of his relationship with the deceased, the age and capacities of the Defendants, as beneficiaries, the claim of each on the bounty of the deceased, and the size of the estate.

The deceased made no provision for the Plaintiff in her Will. Whilst neither of the Defendants is well off, each at least owns a home, subject to a debt secured by mortgage. In the case of the first Defendant, he is subject to significant financial constraints, but this is based, primarily, on him being unemployed. If he obtains employment, his financial position should improve. The second Defendant works hard and is frugal. She has some assets. She is taking steps to improve her earning capacity.

It is unlikely that the Plaintiff's position will ever improve. His disabilities prevent this from occurring.

In my view, the Plaintiff has established that the provision made for him in the Will of the deceased is inadequate for his maintenance and advancement in life.

I turn, then, to the second stage and consider whether an order should be made, and if so, the nature of the order to be made. In my view, an order should be made in favour of the Plaintiff. He is impecunious and has no property of any kind. Even his income is insufficient to meet his expenditure. The estate is just of sufficient size to enable a modest capital sum to be provided which will not only provide him with an income but also capital if it is required.

The more difficult question is the nature and size of the order for provision that ought to be made. Any amount ought to be provided by way of a protective trust, with the trustee (the tutor) having discretion to advance capital and income to the Plaintiff for his benefit. Perhaps, the NSW Trustee & Guardian should act as the trustee. However, I shall allow the Plaintiff to make any submissions on whether, and if so, how, the provision for him should be held.

In my view, a lump sum that equates to 15 per cent of the net value of the deceased's estate is what the Plaintiff should receive. Assuming, by way of example, that the home unit at Darlinghurst is sold for $300,000, and that costs and expenses of sale, together with the debts, funeral and testamentary expenses of the estate, including an amount for costs of the proceedings, are paid, which results in an amount of about $200,000, or thereabouts, being available, this will result in the Plaintiff receiving a lump sum of about $30,000.

The parties are to bring in short minutes that reflect these reasons. If agreement is not reached on the terms, I shall hear further argument. Needless to say, every effort should be made to resolve any disputes without the need to incur further costs.

**********

Decision last updated: 19 December 2011

Medium Neutral Citation:	Geoghegan v Szelid [2011] NSWSC 1440
Hearing dates:	24 & 25 November 2011
Decision date:	19 December 2011
Jurisdiction:	Equity Division
Before:	Hallen AsJ
Decision:	(a) Having found that the Plaintiff is an eligible person, that there are factors warranting the making of the application and that the provision made for him in the Will of the deceased is inadequate, order that the Plaintiff receive, a capital sum that equates to 15 per cent of the net value of the deceased's estate. (b) The capital sum be provided by way of a protective trust. (c) The Cross-Summons will be dismissed. (d) If the parties are unable to agree, I shall determine any issue as to costs. (d) The parties are to bring in short minutes that reflect these reasons. If agreement is not reached on the terms of the orders, I shall hear further argument.
Catchwords:	Proceedings, commenced by the former husband of the deceased for a family provision order under Chapter 3 of the Succession Act 2006 - Also alleged to be a person with whom the deceased was living in a close personal relationship at the time of the deceased's death, as well as a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased person was a member - Plaintiff also asserts he was in a de facto relationship with the deceased at the time of the deceased's death - Defendants named in the Summons are children of the deceased by prior marriage and the persons to whom Probate of the deceased's Will was granted - They oppose the application of the Plaintiff for a family provision order
Legislation Cited:	Civil Procedure Act 2005 Family Provision Act 1982 Interpretation Act 1987 Property (Relationships) Act 1984 Succession Act 2006 Succession Amendment (Family Provision) Act 2008 Supreme Court Practice Note SC Eq 7 - Family Provision
Cases Cited:	Allardice, In re, Allardice v Allardice (1909) 29 NZLR 959 Barlevy v Nadolski [2011] NSWSC 129 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Brown v Faggoter [1998] NSWCA 44 Churton v Christian (1988) 13 NSWLR 241 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 Dion v Rieser [2010] NSWSC 50 Diver v Neal [2009] NSWCA 54 (also (2009) 2ASTLR 89) Dridi v Fillmore [2001] NSWSC 319 Evans v Levy [2011] NSWCA 125 Foley v Ellis [2008] NSWCA 288 Forsyth v Sinclair (No 2) [2010] VSCA 195 Fulop Deceased, Re (1987) 8 NSWLR 679 Gaulit v Bunker [2010] FamCA 232 Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Hampson v Hampson [2010] NSWCA 359 Hayes v Marquis [2008] NSWCA 10 Hughes v Charlton [2008] NSWSC 467 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 McCosker v McCosker (1957) 97 CLR 566 Marsh-Johnson v Hillcoat [2008] NSWSC 1337 Mayfield v Lloyd-Williams [2004] NSWSC 419 Palaganio v Mankarios [2011] NSWSC 61 Penfold v Perpetual Trustee [2002] NSWSC 648 Permanent Trustee Company v Fraser (1995) 36 NSWLR 24 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9 Popescu v Borun [2011] NSWSC 1532 Porthouse v Bridge [2007] NSWSC 686 Przewoznik v Scott [2005] NSWSC 74 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Richardson v Kidd [2002] NSWSC 306 Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100 Scragg v Scott [2006] NZFLR 1076 Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Thompson v The Public Trustee of New South Wales [2010] NSWSC 1137 Tsivinsky v Tsivinsky [1991] NSWCA 269 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported) Ye v Fung [2006] NSWSC 243
Texts Cited:	The Second Reading Speech (Legislative Assembly, (Hansard) 26 May 1999, p 535)
Category:	Principal judgment
Parties:	Carew Leo Geoghegan (Plaintiff) Steven Zoltan Szelid (first Defendant) Joan Gabriele Szelid (second Defendant)
Representation:	Counsel: Mr P Strasser (Plaintiff) Mr L Ellison SC (Defendants) Solicitors: Milne Berry Berger & Freedman (Plaintiff) MCW Lawyers (Defendants)
File Number(s):	2011/85183