Glynne v NSW Trustee and Guardian; Lindsay v NSW Trustee and Guardian - [2011] NSWSC 535

Supreme Court

New South Wales

Medium Neutral Citation: Glynne v NSW Trustee and Guardian; Lindsay v NSW Trustee and Guardian [2011] NSWSC 535
Hearing dates: 26 May 2011
Decision date: 17 June 2011
Jurisdiction: Equity Division
Before: Hallen AsJ
Decision:
1. Order that each Summons be dismissed.
2. Subject to any further argument on costs, propose to make no order as to each Plaintiff's costs, to the intent that she, and he, will pay her own, and his, own, costs of the proceedings.
3. Order that the Defendant's costs of the proceedings, calculated on the indemnity basis be paid out of the estate.

Catchwords: Family provision order under Chapter 3 of NSW Succession Act 2006 - first Plaintiff former spouse of deceased- second Plaintiff son of the deceased - Plaintiffs each self-represented - Defendant is NSW Trustee & Guardian, to which Letters of Administration granted - whether factors warranting making of first Plaintiff's application - competing claimant widow of the deceased.
Legislation Cited: Family Law Act 1975 (Cth)
Family Provision Act 1982
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Cases Cited: Armstrong v Sloan [2002] VSC 229
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Brown v Faggoter (NSWCA, 13 November 1998, unreported)
Burton v Moss [2010] NSWSC 163
Campbell v Chabert-McKay [2010] NSWSC 859
Caska v Caska [1999] NSWSC 289
Cetojevic v Cetojevic [2006] NSWSC 431
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
De Winter v Johnstone (NSWCA, 23 August 1995, unreported)
Diver v Neal [2008] NSWSC 304
Diver v Neal [2009] NSWCA 54
Durham v Durham [2010] NSWSC 389
Evans v Levy [2011] NSWCA 125
Foley v Ellis [2008] NSWCA 288
Fulop Deceased, Re (1987) 8 NSWLR 679
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Hawkins v Prestage (1989) 1 WAR 37
John v John [2010] NSWSC 937
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Lynch v Lynch (NSWSC, 24 August 1992, unreported)
McCosker v McCosker (1957) 97 CLR 566
McGrath v Eves [2005] NSWSC 1006
McKenzie v Topp [2004] VSC 90
Mansfield v Mansfield [2003] WASC 214
Marland (decd), In re [1957] VR 338
Mayfield v Lloyd-Williams [2004] NSWSC 419
Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361
Penfold v Perpetual Trustee [2002] NSWSC 648
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9
Porthouse v Bridge [2007] NSWSC 686
Puckridge, Deceased, In the Estate of (1978) 20 SASR 72
Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100
Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Strano v Jovsevski [2008] NSWSC 380
Taylor v Farrugia [2009] NSWSC 801
Tsivinsky v Tsivinsky (NSWCA, 5 December 1991, unreported)
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (NSWSC, 17 May 1996, unreported)
Category: Principal judgment
Parties: Tallulah Donalda Glynne
(Plaintiff in 2010/91576)
David Charles Lindsay
(Plaintiff in 2011/173906)
NSW Trustee and Guardian
(Defendant in both proceedings)
Representation: Counsel:
Ms Tallulah Donalda Glynne
(Plaintiff in person in 2010/91576)
Mr David Charles Lindsay
(Plaintiff in person in 2011/173906)
Mr L J Ellison SC
(Defendant in both proceedings)
Solicitors:
Ms Tallulah Donalda Glynne
(Plaintiff not legally represented)
Mr David Charles Lindsay
(Plaintiff not legally represented)
Clinch Long Letherbarrow with Cropper Parkhill
(Defendant in both proceedings)

File Number(s): 2010/91576; 2011/173906

Judgment

The Applications

HIS HONOUR: In the events that have happened and to which I shall refer, these reasons relate to two different proceedings, in each of which a family provision order under Chapter 3 of the NSW Succession Act 2006 ("the Act") is sought. 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.

Tallulah Glynne ("the Plaintiff"), who is the former spouse of Colin William Lindsay ("the deceased") filed her Summons on 14 April 2010, 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 Defendant named in the Summons is the NSW Trustee & Guardian, to which letters of administration with the Will of the deceased annexed was granted, the executor named in the Will having renounced Probate.

With no disrespect intended, as it appears to have been drafted by the Plaintiff herself, the relief sought in the Summons was unintelligible. The Plaintiff filed an amended Summons on 27 August 2010, in which she sought a family provision order and an additional order designating "such property as the evidence may disclose" as notional estate of the deceased. In addition, she sought that the matter be referred to mediation and costs. She received legal assistance to draft the amended Summons.

The Plaintiff did not identify in the amended Summons the specific property that she sought to be designated as notional estate.

The hearing of the Plaintiff's proceedings commenced on 26 May 2011.

At the commencement of the hearing, David Charles Lindsay, a son of the Plaintiff and the deceased, made an oral application to file in Court a Summons and affidavit in support. In broad terms, the Summons sought provision out of the estate of the deceased (Paragraphs 1 to 11) and also sought to challenge, upon various bases, the validity of the deceased's Will. Apparently, he had sought to file the Summons the day before the hearing, but the Court Registry had refused to accept it. He had given notice of his intention to file the documents to the Defendant late on 25 May 2011. (I shall hereafter, with no disrespect, or undue familiarity, refer to him as "David".)

David's Summons, if filed, would be filed outside the time prescribed by the Act by about 8 months.

The Defendant, initially, objected to the filing of David's Summons and affidavit. In addition, after I indicated, to the Plaintiff, that if the Summons was to be filed, I might have to adjourn her proceedings so that both proceedings could be heard together, the Plaintiff stated that she wished her matter to proceed. In those circumstances, I refused leave to David to file the Summons in Court. It was made clear that if he wished to, he could file the Summons in the Registry, and that the matter would proceed in the usual way.

The Plaintiff's application for relief under the Act then proceeded. Without objection, David remained in court to assist the Plaintiff in presenting her case.

After the long adjournment on the first day of the hearing, Mr L J Ellison SC, for the Defendant, informed me that, subject to the Court's approval, provided that the relief sought in the Summons going to the validity of the deceased's Will was dismissed or discontinued (on the basis that it could not be agitated at a later time), the Defendant would no longer oppose the filing of David's Summons and the affidavit in support, and that the Defendant could also respond to it and, thereby, avoid another hearing.

Mr Ellison SC also confirmed that the consent to filing the Summons did not mean that the Defendant would not object to the making of an order extending time or the other relief sought.

Before making orders, I confirmed that the relief otherwise sought in the Summons by David related only to seeking a family provision order (despite the terms of parts of the relief sought in Paragraphs 1 to 11 inclusive of the Summons). He confirmed that it was the sole nature of his claim.

In the circumstances, on the morning of the second day, I granted leave to David to file the Summons, in court, made an order that it be made returnable, instanter, granted the Plaintiff leave to discontinue the proceedings so far as it related to the relief sought in Paragraphs 12 to 14 inclusive of the Summons, upon the basis that he could not commence proceedings against the Defendant seeking the same, or substantially the same, relief as claimed in those Paragraphs, and that his proceedings be heard with the Plaintiff's, with the evidence in one being evidence in the other.

Later, I permitted him to add to the relief sought, an order that the time for making the application be extended to 27 May 2011, the date on which he filed the Summons. This was done, without objection, but upon the basis that the Defendant would, in any event, oppose the extension of time being granted.

Background Facts

The following facts are uncontroversial.

The deceased died on 25 September 2009. He was then aged 74 years, having been born in December 1934.

The deceased was married to the Plaintiff in 1960, separated from her in September 1997, and divorced from her in March 2000. There were two children of their marriage, being Gregory Colin Lindsay, who was born in September 1962, and David, who was born in September 1965.

The deceased commenced a relationship with Christine Barbara Lindsay in about 1998; they commenced cohabitation in late 1999; and they were married in June 2000. They remained married at the date of his death. There were no children of their marriage. (I shall refer to the deceased's widow, with no disrespect, or undue familiarity, as "Christine".)

The deceased left a Will that he made on 15 September 2009, administration of which was granted, on 24 February 2010, by the Supreme Court of New South Wales, to the Defendant.

The deceased's Will, relevantly, provided:

(a) a specific devise of property, situated at Fairlight, to Christine, free of any charge or encumbrance on it;

(b) a legacy of $200,000 to Christine;

(d) the rest and residue of the estate, after the payment of debts, funeral and testamentary expenses, to be equally divided between "such of my sons ... as shall survive me and if both in equal shares".

There was no explanation (and I do not suggest that there ought to have been), why no provision was made for the Plaintiff in the Will.

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, gross value of $1,063,418. No liabilities were disclosed. The estate was said to consist of real estate in Fairlight ($600,000), real estate in Potts Point ($450,000), shares in three private companies (with a combined value of $4,418) and a motor vehicle ($2,500).

In an affidavit sworn on 17 May 2011 by a senior legal officer of the Defendant, updated by an affidavit of 27 May 2011, the actual estate was said to consist of the real estate at Fairlight ($660,000) and at Potts Point ($500,000), the shares in private companies (no commercial value), household furniture ($1,000) and long service leave entitlement ($20,456). It is possible that some additional shares in another private company ($562) also form part of his estate. Accordingly, if all the assets are included, the current gross value of the deceased's actual estate is $1,182,018.

The affidavit contained the following "Notes":

"Note 1:

1. Dronow Pty Limited was incorporated on 14 June 1979;

2. Dronow Pty Limited is the Trustee of both Romney Unit Trust ("Romney) and BLP Superannuation Fund;

3. Dronow Pty Limited acts as a Trustee only and in [the Defendant's] view the three shares held by the deceased in Dronow Pty Limited have no commercial value;

4. Romney's income consists of service fees only in relation to the legal practice known as Blackshaw Lindsay Solicitors and had nett assets at 30 June 2009 of $3;

5. Romney's income has been distributed, apparently equally between Rosalia Blackshaw and Bonbree Pty Limited;

6. In [the Defendant's] view, the Romney units have no commercial value.

Note 2:

1. Bonbree Pty Limited is the Trustee of the Bonbree Family Trust and as such, in [the Defendant's] view, has no commercial value;

2. Under the Bronbree Family Trust Deed dated 13 March 1981 the beneficiaries are the deceased, any spouse of the deceased, and the two children of the deceased;

3. With the deceased's death, the estate has no interest under the Bonbree Family Trust.

Note 3:

1. To the best of [the Defendant's] information and belief, the sole purpose of Foceri Pty Limited has been to receive small distributions from the Bonbree Family Trust and its nett assets were disclosed at 30 June 2008 at $1.

2. In [the Defendant's view, the deceased's shares in Foceri Pty Limited have no commercial value.

Note 4:

1. Blackshaw Lindsay Solicitors operates as a solicitors' corporation in which the deceased held 30 shares;

2. The only income of the firm is derived from professional fees (and reimbursement of expenses);

3. The deceased and Mr Blackshaw were in receipt of both dividends and salary from the corporation;

4. The deceased's salary and dividend receipts were disclosed in the deceased's personal tax returns;

5. Based on all currently available material the deceased's interest in the solicitors' corporation in [the Defendant's] view has no commercial value.

Note 5:

1. [The Defendant] anticipates that the trustee of the BLP Superannuation Fund will determine to pay entitlements of $53,420.69 to the deceased's widow, Christine Lindsay."

There is no reason to reject the conclusions stated in these "Notes". Neither the Plaintiff, nor David, argued to the contrary, although there was a suggestion that the deceased's interest in the solicitors' corporation may have had some value. On the evidence, I cannot find any basis for concluding that it did.

In the same affidavit sworn 17 May 2011, the unpaid liabilities of the estate were said to total $292,830. The major debts appear to be home loans totalling $241,084, a debit balance in the Defendant's estate general account ($25,741), a refund of funeral expenses ($6,362) and the Defendant's statutory commission ($18,000). Of these debts, $122,398 is secured over the Fairlight property and $108,685.89 is secured over the Potts Point property.

Further liabilities of the estate were identified, and estimated, in an affidavit sworn by the Defendant's solicitor on 27 May 2011. These liabilities totalled $56,113. The total of the liabilities is, therefore, $348,943.

It seems clear that it will be necessary to sell the Potts Point property to pay the debts secured by the mortgage registered on it and also to pay the debt secured on the Fairlight property. Any surplus proceeds of sale will be used to pay the costs and disbursements associated with these proceedings and the legacy, or part of the legacy, to Christine. It is likely, therefore, that there will be no residue for either of the sons of the deceased.

At the hearing, the parties were able to agree that the gross value of the distributable actual estate was estimated to be about $833,075 (subject to the payment of costs of these proceedings).

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

Each of the Plaintiff and David was self-represented in the proceedings. In the Plaintiff's written submissions, which will remain on the court file, the Plaintiff said that her costs and disbursements were $1,786. David said that his costs and disbursements were limited to $946, being the filing fee of his Summons. No submissions were made that either is entitled to any other costs.

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 no more than $68,270. Of this amount, $28,657 has been paid, and the balance ($39,613) has been included in the unpaid liabilities referred to in the solicitor's affidavit of 27 May 2011. Accordingly, these costs have been paid, or taken into consideration in the amount of liabilities. (There may be a modest amount for the Defendant's costs of an additional afternoon, as submissions were not concluded.)

The parties accepted for the purposes of the hearing, that if the real estate at Fairlight is transmitted, without charge or encumbrance, to Christine, she is unlikely to receive the whole of the legacy of $200,000, even assuming that the Potts Point property is sold for its estimated value. (The Plaintiff, too, agrees that this is unlikely and that the sale price might be closer to $450,000.) Such a sale would result in the deceased's widow receiving less than $150,000 out of the legacy (subject to any order in favour of the Plaintiff and/or David).

I note, however, that Christine did receive the proceeds of the deceased's superannuation of about $56,000.

As stated, the Plaintiff referred to the designation of property as notional estate in the amended Summons. In her submissions, the property that she wished the court to designate as notional estate was "every asset in the will that was purchased by the deceased and the plaintiff during their marriage of 40 years". No relevant submissions were made as to any specific property to be designated.

It was, therefore, impossible to ascertain, more specifically, what property could form part of the notional estate of the deceased, other than perhaps, the superannuation proceeds, to which I have referred and which passed to Christine.

The persons described as eligible persons, within the meaning of the Act, are the Plaintiff, Christine, and the deceased's two adult children, Gregory and David. Christine and Gregory have sworn one affidavit each in the proceedings. At the date of the hearing, only the Plaintiff and David commenced proceedings under the Act.

The Statutory Scheme - The Act

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, it is useful to re-state it, principally for the benefit of the litigants in this case.

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.

An application for a family provision order may be made in respect of the estate of a deceased person. In s 3 of the Act, "deceased person" is defined as including "any person in respect of whose estate administration has been granted". Section 55 of the Act sets out the circumstances in which "administration is granted in respect of the estate of a deceased person". In this case, administration has been granted.

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, or on whose behalf, an application may be made, one of which is "a former wife or husband of the deceased person" (s 57(1)(d)). In the case of an applicant who 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)). Another category is "a child of the deceased" (s 57(1)(c)).

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) and, most recently, in Evans v Levy [2011] NSWCA 125 at [64]), 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 (NSWCA, 5 December 1991, unreported) 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 (NSWCA, 13 November 1998, unreported), a decision of the Court of Appeal constituted by Sheller JA, Sheppard AJA and Fitzgerald AJA, there seems to be 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."

More recently, in Diver v Neal [2009] NSWCA 54, 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."

Even though, respectfully, I regard the views expressed in the authorities referred to by Windeyer J, Bryson J, Basten JA, and Campbell JA, as correct, I shall consider both tests.

Then, if those considerations are satisfied, the court must determine whether adequate provision for the proper maintenance, education and 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 and advancement in life. The question would appear to be answered by an evaluation that takes the court to the provision actually made in the deceased's Will, or on intestacy, or both, on the one hand, and to the requirement for maintenance, education and advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant.

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 both s 59(1)(c) and s 59(2) 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. 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:

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

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

Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571, 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."

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 and advancement in life of a particular applicant.

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

Tobias JA said:

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

...

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

In Devereaux-Warnes v Hall [No 3] at [81]-[85], Buss JA said, in respect of the first stage of the process:

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

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

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

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

In the event that the court is satisfied that the power to make an order is enlivened (i.e. it is satisfied that the 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) 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.

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 deceas e d 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 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 named in the deceased's will, 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 (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 (at 230-231):

"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,

(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 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 which 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).

The order may be made, relevantly, in this case, in relation to the estate of the deceased. As the deceased died leaving a Will, his estate includes all property that would, on a grant of probate of the Will, vest in the executor of the Will (s 63 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.

The court, also, may, at the time of distribution of an estate that is insufficient to give effect to a family provision order, make such orders concerning the abatement, or adjustment, of distributions from the estate, as between the person in whose favour the family provision order is made and the other beneficiaries of the estate as it considers to be just and equitable among the persons affected (s 72(2) of the Act).

Applicable Legal Principles

In addition to the above matters, there are some general principles that are relevant to the facts of this case. 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 role 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, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation ( Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9, per Dixon CJ at 19); McKenzie v Topp [2004] VSC 90 at [63]. Freedom of testamentary disposition remains a prominent feature of the Australian legal system.

Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: The Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker , NSWSC, 17 May 1996, unreported; Vigolo v Bostin at [11]; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.

In relation to a claim by a former spouse, the following general principles are, in my view, relevant:

(a) The policy of the law is to promote the finality of settlements of property disputes by orders made in the Family Court or by the amicable division of matrimonial property prior to death.

(b) Another policy of the law is that parties whose marriage has been dissolved, and in respect of whom orders have been made disposing of their matrimonial property, or where there has been an amicable division of that property, should be able to go their own separate ways. Except for the specific cases provided for under the Family Law Act 1975 (Cth), and provided there has been compliance with the orders, or the agreement for amicable division, made, such parties should, thereafter, face no financial obligation, one to the other.

(c) A settlement, whether by order of the Family Court, or by agreement reached amicably, and complied with, however, does not preclude a claim by a former spouse for a family provision order, but, in those circumstances, additional, and different, considerations will arise. The Act gives a specific entitlement to a former spouse to make a claim. That provision contemplates there will be cases where such a claim will succeed, notwithstanding the public policy of the finality of a property settlement.

(d) It is not the task of this Court to go behind the orders made in the Family Court or the amicable agreement of the parties unless a specific basis is advanced for this Court to do so (e.g. fraud).

(e) In every case involving a former spouse, it will be necessary to examine the actual relationship between the two people concerned, as far as possible without preconceptions based only on the fact of the dissolution of their marriage and their property division.

(f) The terms of the parties division of property will be relevant in determining the Plaintiff's needs and the extent to which those needs may have been satisfied in the deceased's lifetime, as will be the length of time from the separation of the former spouse to the death of the deceased, and the course that the lives of the two spouses have followed since separation.

(g) There is a distinction between "factors which warrant the making of the application' and the factors that warrant the making of an order. Merely establishing that an applicant is a former spouse and that she, or he, has a financial need, would not, as such, entitle her, or him, to an order. In addition, even if there are factors that warrant the making of the application, the applicant may fail in establishing that an order for provision should be made.

(h) What has to be decided is whether what is relied upon in the case by the applicant, in association with all other relevant matters, puts her, or him, within the class of persons to whom the deceased had an obligation to make provision.

In relation to a claim by an adult child, the following principles are, in my view, also relevant:

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

(b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801.

(c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia .

(d) There is no the need for an adult child to show some special need or some special claim: McCosker v McCosker ; Kleinig v Neal (No 2) [1981] 2 NSWLR 532; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45.

(e) Whilst it may not be appropriate to accord to a spouse, generally, primacy over all other applicants, regardless of circumstances, where competing factors are more, or less, otherwise equal, the fact that one party is a spouse of the deceased, and is permanently less likely to be able to increase his, or her, income, and may never be likely to be better off financially, while the applicant is materially younger and has the capacity to earn more, or otherwise improve his, or her, financial position in the future, this will, ordinarily, result in the needs of the spouse being given primacy. That is because, in such circumstances, the spouse will have less hope of improving himself, or herself, economically, whereas that would not be the position of the applicant. In such circumstances, the competing claim of the spouse would be greater than that of the adult child applicant.

Extension of Time - David's Claim

Section 58(2) of the Act provides that an application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown.

The decision of the court to extend time is a discretionary decision. Other than "sufficient cause being shown", there are no statutory criteria that must be taken into account. There are no rigid rules in regard to the exercise of the discretion.

Apart from the reason(s) for the lateness of the claim, the factors to which the court looks, include whether beneficiaries under the Will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by either side; and, finally what is the strength of the claim made by the party seeking an extension of time: see, for example, John v John [2010] NSWSC 937 at [37]-[51] per Ward J; Campbell v Chabert-McKay [2010] NSWSC 859 at [45]-[47] per White J; Durham v Durham [2010] NSWSC 389 at [15] per Ball J; Taylor v Farrugia at [14] per Brereton J; Burton v Moss [2010] NSWSC 163 at [31] ff, per Macready As J, in which the relevant earlier cases are referred to.

Ultimately, what the applicant must establish is a sufficient explanation or excuse to justify the granting of an extension of time. The onus lies on her, or him, to establish sufficient cause and, thus, to provide the reason(s) for not commencing within time, to demonstrate a lack of prejudice due to the delay in instituting proceedings, and any unconscionable conduct by the defendant or other beneficiaries. It will be for the court to determine the strength of the applicant's claim.

In Cetojevic v Cetojevic [2006] NSWSC 431, Campbell J (as his Honour then was) explained that the prejudice to which the section looks is any prejudice occasioned by the delay in lodging the claim.

In De Winter v Johnstone (NSWCA, 23 August 1995, unreported), Sheller JA held that the concept of "unconscionable conduct" referred to above was "directed towards a deliberate holding off [in bringing proceedings] designed to lull the beneficiaries into a false sense of security". Cole JA, whilst not expressing a concluded view, said that it must be doubted whether a change of mind (because of some change in the financial and material circumstances of the Plaintiff which has occurred after the expiry of the limitation period) constitutes unconscionable conduct.

As to the strength of the claim, in De Winter v Johnstone , Powell JA considered that as an application for extension of time was invariably dealt with at the time of the application for substantive relief, no extension of time ought to be granted unless it was established that the applicant seeking an extension of time would, in the event of the extension being granted, be entitled to an order for substantive relief. By contrast, Sheller JA considered that it was only necessary for the applicant to show that the application was not bound to fail.

Perhaps, relevant to the present case, is what was said in Mansfield v Mansfield [2003] WASC 214 at [65]:

"65 The authorities also show, as in Young v Kestel , that in some circumstances a failure to make an application under the Act in the prescribed time may be explained and justified by a lack of information in the hands of an applicant. A lack of information may support the view that the applicant was not in a position to make a responsible decision about whether or not to institute proceedings under the Act."

Likewise, an applicant who is under a reasonable misapprehension as to the extent of his, or her, interest under the deceased's Will, provides a sufficient reason explaining the delay in commencing proceedings: In re Marland (decd) [1957] VR 338.

Where, as in this case, the matter proceeded as if the Summons had been filed within time (by having David's case heard at the same time as the Plaintiff's), there appears to be no prejudice. Certainly, no specific prejudice was identified other than the exposure of the estate to another claim for a family provision order. It was not suggested that there was any relevant unconscionable conduct.

I shall discuss David's prospects of success later.

Credibility of the Witnesses

I am satisfied that there were not many relevant facts seriously in dispute between the parties.

Overall, I found the Plaintiff to be a witness who was endeavouring to give her evidence to the best of her ability. Whilst much of her affidavit was objected to and rejected, I did not form the view that she was attempting to mislead the Court, or exaggerate her role in the life of the deceased following the irretrievable breakdown of their marriage.

I have no doubt that despite the events that led to that breakdown, she retained a residual affection for the deceased. However, that affection did not prevent her taking steps, as advised, to protect her own financial position and interests. The deceased did not, necessarily, feel the same way towards her, although it cannot be said that he demonstrated any ill will against the Plaintiff.

I was less impressed with David as a witness. I requested him, more than once, to listen to the question that was asked of him, and attempt to answer that question. His answers, when questioned about his financial and material circumstances, did not inspire confidence that the Court was being given the truth, the whole truth and nothing but the truth.

He did not seem to be at all concerned that it was as a result of his financial problems and the assistance given to him that led the Plaintiff to her current financial situation. He seemed to demonstrate no remorse in having received an amount of almost $380,000 for an interest in his Balmoral property, which interest the Plaintiff was likely to lose since the interest that she had acquired had not been registered.

The evidence reveals that David was served with a prescribed notice informing him of the proceedings. He otherwise knew of the proceedings because he had discussed the commencement and continuation of those proceedings with the Plaintiff. He says that he only brought the proceedings after he found out that there would be no, or virtually no, residuary estate, that he would receive nothing, or virtually nothing, out of the deceased's estate, and that the deceased's widow would, in effect, receive everything.

I accept his evidence that it was not until about December 2010, when he was informed that the Potts Point property would have to be sold and that the residue of the estate, after the payment of debts, funeral and testamentary expenses and the Defendant's costs of the proceedings, would result in him receiving not very much, if anything, out of the estate of the deceased.

I also accept that he was involved in other litigation in early 2011 that caused him not to file a Summons seeking a family provision order until 26 May 2011.

I am satisfied that Christine, who was cross-examined by both the Plaintiff and by David, was telling the truth. There is no reason at all to disbelieve the evidence that she gave. She was careful and precise in her answers. It was clear that giving evidence in the case was not easy for her.

Relevant Facts - Property Settlement

I am satisfied that the following matters are either not seriously in dispute or have been established by the evidence.

In about September 1997, shortly after the separation of the Plaintiff and the deceased, the Plaintiff consulted a firm of solicitors, who practiced as "family law lawyers" for advice "following certain difficulties which had arisen in [the] marriage culminating in [the deceased] leaving the matrimonial home".

It is recorded, in a letter sent to the deceased by those solicitors, that the Plaintiff then believed that there was no prospect of reconciliation and that she wished "to resolve all matters of potential dispute including property settlement and maintenance without resorting to litigation". In the letter, which is dated 12 September 1997, the Plaintiff's solicitors also requested the deceased to provide certain information about the financial position of the parties and of himself.

The Plaintiff refers to, and relies upon, a letter written by the deceased and dated 2 September 1997, in which he had written: "If [the Plaintiff] ceases work [the deceased] supports her as much as possible". However, that document appears to have been written at a time when the parties were in the course of negotiating an amicable division of their matrimonial property. (Earlier in the document, the deceased put forward that the proceeds of sale of the Clontarf property would be divided equally between them.)

The Plaintiff's solicitors also wrote a letter dated 12 September 1997, to her. The letter included a copy of the letter sent to the deceased and set out a number of facts and "preliminary advice". It is not necessary to set out all of the contents of the advice, but the letter did include the following:

"19. As you earn significantly less than Colin and your capacity to earn an income is likely to cease in the next 12 months whereas Colin will probably work for many more years until he is precluded from doing so by reason of ill health, in our opinion, the Court may add an extra 5% to 12% of the amount which you would otherwise be ordered on a strictly "contribution" analysis.

20. In our opinion and subject to further instructions, valuations of the assets including Colin's interest in the firm, and evidence from Colin, the range of Orders which a Judge would be likely to make at the end of a contested hearing is that you would receive an amount equivalent to or approximately 55% to 62% of the net assets.

21. If an agreement is reached between you and Colin there are two methods of finalising matters in relation to property settlement. That is, by way of Consent Orders which are made by a Registrar of the Family Court, or a Section 87 Maintenance Agreement.

...

22. If and when an agreement is reached we will discuss the two methods of finalising matters in relation to property settlement with you in more detail. However, in our opinion on the basis of your present instructions, Consent Orders are adequate.

...

As your former spouse at the date of your death, Colin may seek an order from the Supreme Court of New South Wales under the Family Provision Act, 1982 of New South Wales. The application must be made within 18 months from the date of your death. The Family Provision Act provides the Court may make an order for provision to be made from your Estate for Colin, if the Court is satisfied that you have not made adequate provision for his maintenance, education or advancement. The Court would balance Colin's claim with any competing claims such as by your children.

When determining an application by Colin for provision from your Estate the Court would consider the contributions made by Colin both of a financial nature and otherwise to the acquisition, conservation and improvement of the property forming part of your Estate and to your welfare, and to the circumstances of your relationship. These matters are similar to those considered by the Family Court when determining an application for property settlement under the Family Law Act.

The Court would consider the bequests you had made in your Will for your children and Colin. As you and Colin are separated and you have filed an application for divorce, your primary duty is to provide from your Estate an amount to meet the needs of your children.

The Court would be required to determine the extent, if any, of Colin's need. If Colin has a reasonable income, a home and some savings, his needs will be limited. You should have confirmed in your Will that you have made no provision for Colin due to your divorce and the provision which has been made for him in your property settlement.

You would have similar rights against Colin's Estate.

In determining whether such claim should succeed, the Supreme Court would consider the provision made for each of you in the property settlement.

To confirm your intention that neither you nor Colin will make any claim against each other or against the Estate of each other in the future, you may sign a Deed of Release. To prevent such a claim being made in the future, you should seek the approval of the Court of the Deed of Release. The Family Court may approve the Release as part of a property settlement.

If the Court approves the Release, neither you nor Colin may make any claim for provision from the estate of the other in the event of the death of the other party after the date of the approval. You are required to pay a filing fee of $250 in respect of the Application in the Family Court.

If you do not wish to incur the expense of seeking the approval of the Court to the Deed of Release, the Release could still, in the event of any future claim, be relied upon by your Estate as evidence of the intention of both you and Colin and the provision made for each of you in the property settlement. If you later decide to seek approval of the Court to the Deed of Release, the Deed requires Colin to assist you and to pay his own costs incurred in obtaining that approval.

Whether it will be to your advantage to forego your right to make a claim in respect of Colin's Estate should be considered in the context of the overall settlement."

What followed this initial letter of advice is not known, as there is no other documentary, or other, evidence, about whether any, and if so, what, advice, was given by the solicitors to the Plaintiff. However, there is no evidence that the preliminary advice given was wrong, or that it required revision following further instructions.

In a letter dated 16 September 1997, the deceased wrote directly to the Plaintiff stating his understanding of an agreement reached between them, to the effect that she was to receive 55 per cent of two identified properties that were to be sold.

On 30 September 1997, the Plaintiff's solicitors wrote to the deceased stating that the Plaintiff required him to complete and swear a Financial Statement in accordance with the Family Law Rules.

On 3 October 1997, the deceased provided to the Plaintiff a statutory declaration setting out assets and liabilities.

In an undated document, which appears to have been prepared by the Plaintiff's solicitors, the matrimonial property was disclosed as consisting of real property at Clontarf ($900,000), real property at Potts Point ($240,000), furniture, furnishings and effects ($40,000), the Plaintiff's car ($17,000), the deceased's car ($24,000) and the deceased's shares (unknown value). Liabilities totalled $90,000, leaving assets with a net value of $1,131,000.

The Plaintiff denied being involved in the preparation of this document. Despite her denial, it seems to me that she must have given instructions to enable its preparation. In any event, it accords with the actual position as it was in 1997 as disclosed by the Plaintiff during the present hearing.

There is no specific evidence about the date when the Plaintiff ceased to retain her solicitors. However, during submissions, she stated that they ceased to act for her in about mid-October 1997.

The Clontarf property was, in fact, sold, at auction, for $880,000 by Transfer dated 20 November 1997. No doubt, there were costs and expenses of sale. The Plaintiff was unable to estimate those costs and expenses. The market value of the Potts Point property was estimated, by a real estate agent, to be $180,000 (as at 3 November 1997). However, it was not sold.

Between 18 and 22 November 1997, the Plaintiff received five cheques being for $192,708.10, $305,990, $25,000, $10,000 and $37,951.21 (making a total of $571,649.31).

There is a dispute as to whether the Plaintiff retained furniture to the value of $26,000 (or $40,000 shown in the document prepared by her solicitors) as well, but this is more a distraction than anything else, and not much time was spent on it. In any event, it would not alter the position of each of the Plaintiff and the deceased very much if she did. There is no dispute that each of the Plaintiff and the deceased retained her, and his, car.

The deceased received $285,894.89, as well as retaining the property at Potts Point. (Included in the amount received by the Plaintiff was $100,000, being the value of her notional interest in that property (about 55 per cent). Thus, the deceased notionally received an additional $80,000.) Debts of $98,000 seem to have been paid.

The two parcels of real estate comprised the bulk of the matrimonial property of the parties. The total value of those properties was $1,060,000. Debts of $98,000 were required to be paid, leaving a net value $962,000. It appears that the distributions of cash to the Plaintiff and to the deceased totalled $857,543. With the additional amount of $80,000 (the balance of the value of the Potts Point property) the total distribution was $937,543. (It follows, from these calculations, that the costs of the auction sale, agent's commission and transfer costs of the properties were, in total, therefore, $24,457.)

Therefore, the Plaintiff received about 61 per cent of the net value of the matrimonial property.

In, or about, December 2000, the Plaintiff commenced proceedings in the Family Court for spousal maintenance. Lawyers prepared the application and she was represented by counsel at the hearing of her application. No part of this application sought to revisit the amicable division of the matrimonial property.

In January 2001, the Family Court made orders dismissing the Plaintiff's application. Counsel appeared for each of the parties. The Plaintiff's counsel, subsequently, informed his instructing solicitors, who were not her original solicitors, in writing, that the matter had proceeded by submissions only, and that a judgment had been delivered, the effect of which was to dismiss the Plaintiff's application, with no order as to costs. The Registrar also appointed a conciliation conference on 6 July 2001. Counsel also advised the Plaintiff that she could seek a review of the Registrar's decision. No review occurred.

On 30 January 2001, the Plaintiff filed an application in the Family Court seeking orders that the deceased pay to her "by way of property settlement the sum of $500,000". The same lawyers prepared this application also, together with the affidavit in support.

The Plaintiff was unable to say when her solicitor's retainer ceased in respect of this application. However, she admitted that she had legal advice at the time she commenced the proceedings in the Family Court for a property settlement.

The Plaintiff's Application prompted the deceased to file a Response, on 15 February 2001, in which he made a claim that the Plaintiff pay to him the sum of $203,877 within 30 days and in default, the sale of her property at Fairlight.

The Plaintiff filed an amended Application in July 2001, in which she sought a slightly lesser amount ($427,881) "by way of property settlement", and in default, the transfer to the Plaintiff, by the deceased, the properties at Fairlight and at Potts Point that he owned.

At the Conciliation Conference, on 6 July 2001, the Plaintiff appeared unrepresented. The deceased attended with representation.

At the Conciliation Conference, the Plaintiff and the deceased signed Minutes of Consent Order which provided:

"By consent the Court makes the following orders:

PROPERTY

1 That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under any orders:

(a) each party be declared solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date.

(b) each party hereby forgoes any claim they may have to any superannuation benefits belonging to or earned by the other;

...

(d) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

2 That the applications of the wife filed on the 2 nd day of July 2001 and of the husband filed on the 15 th day of February 2001 be otherwise dismissed.

...

5 THE COURT NOTES the parties intend that these orders shall as far as practicable finally determine the financial relationships between them and avoid further proceedings between them.

...

6 The Court further notes that in the event that the Husband receives any consideration for the transfer of his one non-beneficially held share in CCH Australia Limited he will pay 50% to the Wife within 30 days."

The copy of the Family Court documents in evidence reveals that the Minutes of Order was signed by each of the Plaintiff and the deceased, initialled by the Deputy Registrar who conducted the Conciliation Conference, and that they were entered on 6 July 2001.

The Court's "Record & Outcomes" which is attached to the copy Minutes of Orders reveals that "Agreement was reached", that "Consent Orders be made in the terms of the attached minutes dated 6/07/01 and initialled by a Registrar".

It appears that, thereafter, there were no more proceedings between the Plaintiff and the deceased involving their matrimonial property.

It follows that in 2001, the Plaintiff and the deceased resolved, finally, any matrimonial property proceedings that then existed between them. This was despite any concerns that she may have had about documents not having been disclosed or any other concerns that she might then have had about the division of property that had already occurred.

Importantly, the Plaintiff did not suggest in the property proceedings, or during the present hearing, that the deceased had concealed the true nature and extent of assets from her, or that he had fraudulently, or otherwise, misrepresented the nature or value of the matrimonial pool of property. Certainly, there is no suggestion in the affidavits filed in the Family Court that have formed part of the Plaintiff's evidence of such an allegation in that Court in 2001.

That allegation, if now made almost 14 years after the matrimonial pool of property was divided, might have been difficult to establish: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 at [33] - [47]. That is particularly so when the deceased has died before any such allegation was made.

I next set out the additional facts that I am satisfied are either not in dispute, or that have been established by the evidence. I do so by reference to s 60 of the Act and by a consideration of the factors relevant to both claims at the same time, as this will permit the application of the statutory criteria to be weighed comparatively in relation to the claims. Where necessary, I shall also consider Christine's competing claim as the primary beneficiary named in the deceased's Will.

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

The Plaintiff and the deceased were married in March 1960. She was then aged 27 years and he was aged 25 years.

They separated in September 1997. Apart from acting for her on the subsequent purchase of her property at Fairlight, in May 1998, the Plaintiff did not have much to do with him, although she invited him over to lunch several times so that he could see Gregory and his family, after settlement of the purchase of the Fairlight property. She also assisted him, in late 1997, to locate the property at Fairlight that he purchased and, subsequently, lived in.

The Plaintiff did not seek any legal advice from the deceased after their separation.

The decree nisi of the dissolution of their marriage was dated 9 March 2000 and became absolute on 10 April 2000.

Between 2000 and 2001, the deceased and the Plaintiff saw each other at the various court proceedings that occurred, but not otherwise. The Plaintiff admitted that they kept their distance during the court appearances.

Thereafter, the Plaintiff and the deceased did not see, or otherwise communicate with, each other, except for one occasion when the deceased stopped his car to speak with her whilst she was at the bus stop and another occasion when she telephoned him to tell him that he did not look well and that he should have a medical check-up. Otherwise, the Plaintiff visited him in hospital, with her son David, shortly before the deceased's death.

David is the son of the deceased. He appears to have kept in contact with the deceased throughout the deceased's life, at least until about 2000. There is nothing to suggest that their relationship was not reasonably close. He denies any falling out with the deceased, other than in 1994. However, that appeared to be for a relatively short period. He blames the lack of contact, after 2000, on Gregory's conduct and the deceased listening to what Gregory said about him (David). He seemed to accept that he did not see the deceased as much as he should have.

It appears that the deceased assisted David with legal matters on occasion and that David was prepared to assist the deceased with medical matters on occasion. He says, however, that he was not informed about the deceased's state of health between 2003 and 2009. There appears to have been relatively little face-to-face contact between 2000 and the date of the deceased's death.

I find, overall, that David's relationship with the deceased was not as close as it might have been. I do not conclude that this is conduct disentitling David to relief if he is otherwise entitled, since the deceased continued to regard him as someone for whom provision ought to be made. (The Defendant did not suggest that there was any disentitling conduct.)

(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

Leaving aside any obligation, or responsibility, arising as a result of their relationship as former spouses, the deceased did not have any legal, or financial, obligation to the Plaintiff imposed upon him by statute or common law.

Disregarding any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal, or financial, obligation to David imposed upon him by statute or common law. It is likely, however, that David had been financially independent for many years prior to the deceased's death.

Leaving aside any obligation, or responsibility, arising as a result of their relationship as husband and wife, the deceased did not have any legal, or financial, obligation to Christine imposed upon him by statute or common law. However, an obligation, or responsibility, to make adequate provision for a widow's proper maintenance and advancement in life is usually recognised.

(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

I have dealt with this earlier in this judgment. On any view, the deceased's estate, after payment of debts, funeral and testamentary expenses, is not a large one. It is likely that after the payment of debts, funeral and testamentary expenses, the only asset available for distribution will be the Fairlight property and an amount of money from the proceeds of the Potts Point property which will be used to pay the legacy to Christine (or some part of it).

(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 says that she has no assets except what she removed from the family home and a car purchased in 2004. She is reliant upon the age pension ($350 per week). She states that her expenditure exceeds her income by about $91 per week, although the expenses include about $100 per week for rates and strata plan outgoings, which David said he pays. He also provides her with assistance if it is required.

She has a credit card debt of $3,000, which she says she is unable to pay.

The Plaintiff says that:

"With provision from the estate of my late husband I need moneys to support me over the future years. I want to be near the Royal North Short Hospital and near to my doctors, family and friends. I am in desperate need of funds. I would suggest we sell the Kings Cross property that was part of my assets when the [sic] Colin left me in 1997 and a property I purchased with my husband in December 1980.

...

With the money from the sale of the Kings Cross property I can then invest the moneys in a dwelling and pay my ongoing expenses."

The Plaintiff submits that she should receive a lump sum of $200,000.

David says that he is unemployed and receives no income. He owns the property at Balmoral ($1.05 million) in which he and the Plaintiff live, which has a debt, secured by registered mortgage, of $800,000. He has debts to the bank ($25,000). He has superannuation ($120,000) and house contents ($60,000). He estimates the surplus value of assets over liabilities is about $350,000. He has $15,000 invested in another bank account in the name of the Plaintiff, but he says that there are debts that will account for the whole of that amount. He has another amount, which is "quarantined", and which is used to pay the monthly mortgage repayments. (It was $162,000, but the amount presently held in this account is not disclosed in David's affidavit and he could not provide an answer when cross-examined.)(I have earlier stated that I have some difficulty accepting David's evidence about his financial position.)

David submits that he, too, should receive a lump sum of $200,000.

Christine is 66 years old. She currently lives in the deceased's property at Fairlight, which was devised to her under the deceased's Will. She lives alone. Apart from the mortgage repayments, she pays all outgoings in relation to the Fairlight unit. She does not give ongoing financial assistance to any person. Shortly before the deceased's death she loaned $3,000 to a friend, but is unlikely to be repaid.

She has received no distribution from the deceased's estate, apart from $11,300, which was the proceeds of sale of the motor vehicle gifted to her under the deceased's Will.

In addition to what she will receive, the deceased's widow has the following assets and liabilities:

Assets

(a)

Mosman unit having an estimated value of $550,000 - $600,000. Disclosed at:

$600,000

(b)

Savings of approximately:

$13,000

(c)

6,000 Photon Group shares having a value (at 11/5/11) of:

$384

(d)

18,000 Admiralty Resources shares having a value (at 11/5/11) of:

$828

(e)

2005 model Suzuki Swift having an estimated value of:

$6,000

(f)

Household furniture and effects having an estimated value of:

$2,000

Total:

$622,212

Liabilities

(a)

Credit Cards - balance approximately:

$1,000

(b)

Tax liability for year ended 30 June 2010 estimated at:

$8,000

Total:

$9,000

In an affidavit filed in August 2010, Christine discloses her annual income, which is said to consist of rental income from the Mosman unit ($19,770) and a part pension and allowances ($4,293).

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

The Plaintiff is co-habiting with David. I have set out what each has disclosed as her, and his, financial circumstances.

(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

There has been some evidence of the medical condition of the Plaintiff. In July 2003, she suffered several strokes, resulting in temporary paralysis. She has regular monthly checks on blood pressure to monitor her condition. She is known to have carotid stenosis.

Christine says that she is still suffering from the shock of the deceased's death and that she is distressed by the proceedings.

There was no suggestion that David suffered from any physical, intellectual or mental disability. Certainly, I did not observe any

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

The Plaintiff is presently 79 years of age.

David is presently 45 years of age.

(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

Neither the Plaintiff, nor David, identifies any financial contributions to the acquisition, conservation and improvement of the estate of the deceased obtained by him after the division of the matrimonial property. I have set out the events surrounding the property settlement between the Plaintiff and the deceased.

In relation to the welfare of the deceased, the Plaintiff did not have very much to do with the deceased after their separation in 1997. I have referred to David's contribution, or attempted contribution, to his welfare earlier.

(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

As a result of their agreement in 1997, the Plaintiff received $571,649, whilst he received a total of $365,894. This equated to her receiving about 61 per cent of the value of the matrimonial property.

The Plaintiff applied the amount she received for various purposes including the purchase of a property at Fairlight ($502,000).

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

The deceased's Will sworn 18 August 2008 provided:

"3. I GIVE DEVISE AND BEQUEATH the whole of my estate to my trustee UPON TRUST to sell, call in and convert into money such parts of it as shall not consist of money, with power to my trustee to postpone the sale, calling in and conversion of any part for so long as my trustee thinks fit notwithstanding that it may be of a wasting hazardous or of a reversionary nature and I DIRECT my trustee after payment of all my just debts funeral and testamentary expenses to hold the residue UPON THE FOLLOWING TRUSTS:

(a) to pay my wife CHRISTINE BARBARA LINDSAY the sum of eight hundred thousand dollars ($800,000.00) PROVIDED that if my wife does not survive me for a period of not less than thirty days then this legacy shall form part of my residuary estate:

(b) to divide the balance of my estate as follows:

(i) as to one third to my son GREGORY COLIN LINDSAY.

(ii) as to one third to my son DAVID CHARLES LINDSAY.

(iii) as to one third to such of my grandchildren as survive me and attain the age of 21 years and if more than one then in equal shares."

There is some evidence of the testamentary intentions of the deceased other than his Will, administration of which was granted. In an affidavit sworn by him on 3 January 2001, and filed in the Family Court, he stated that he believed that "she would not make any further claim against me as I understood a final settlement had been reached".

David says that when he spoke with the deceased in the month before he died, the deceased told him that he "wanted to be fair to everyone" in his last Will. The deceased's widow denied that she had heard the deceased say anything like this either to David or otherwise.

(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, after 1997. Nor is there any evidence that he assisted David financially once he became an adult.

(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.

There is no other person who is liable to support David.

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

The Act does not limit the consideration of "conduct" to conduct towards the deceased.

There was not very much evidence on this topic other than in respect of matters dealt with already. There is nothing to suggest any conduct of the type towards the deceased that might disentitle the Plaintiff to relief under the Act other than the fact that she has made a number of different claims against him following their separation and subsequent divorce.

There is nothing in David's conduct that might disentitle him to relief under the Act. The lack of substantial contact in the last years of his life does not seem to have been of great significance as the provision made for David and Gregory (with whom he had more contact) was the same.

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

Christine is a chosen object of the deceased's testamentary beneficence. She had a very close relationship with the deceased. They were married for about 9 years. There is nothing to suggest that she was otherwise than a loving and supportive wife.

(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

There are no other matters that I consider relevant.

Determination

Eligibility and Factors Warranting the Making of the Application

There is no dispute that David is a son of the deceased and an eligible person under s 57(1)(c) of the Act. As such, he does not have to establish factors warranting the making of his application.

There is no dispute that the Plaintiff, as the former spouse of the deceased, is an eligible person under s 57(1)(d) of the Act.

I must next consider, in relation to her claim, whether having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the Plaintiff's application.

The Plaintiff asserts that there are such factors. She points to:

(a) the duration of her marriage to the deceased was about 37 years;

(b) her receipt of a relatively small amount, compared with the provision made for Christine, who was married to the deceased for about a quarter of the period of the deceased's marriage to the Plaintiff;

(d) the failure of the deceased to pay to her 50 per cent of the proceeds of sale in CCH shares, which she says were sold. (However, she seemed to accept, during submissions, that there was no evidence of sale, or the amount for which the shares were said by her to have been sold.)

The requirement of s 59(1)(b), namely being satisfied that there are factors warranting the making of the Plaintiff's application, has not been met. I base my conclusion upon the following matters:

(a) The relationship between the Plaintiff and the deceased ended in about 2001, some 8 years before his death.

(b) Thereafter, there was no continuing contact between them of any significant kind, despite the fact that they had two children together, albeit that the children were adult and independent.

(c) The orders made in the Family Court purported to be complete and final. That was specifically stated in the orders. This suggests that it was intended - as far as practicable - to remove each as a claimant on the other's bounty, both testamentary and otherwise. As has been said in Armstrong v Sloan [2002] VSC 229 at [10]:

"...when the parties to a settlement declare, as they did in this case, that they have agreed "as far as practicable finally [to] determine the relationship between them" the law should set its face against any attempt to re-agitate after death that to which the deceased agreed in good faith during his lifetime."

(d) Demonstrable unfairness (albeit on legal advice) of a settlement may be a factor warranting the making of the application ( Lynch v Lynch 24 August 1992, unreported, per Macready AsJ) but that factor does not exist in this case. To the contrary, bearing in mind the initial letter of advice provided by the Plaintiff's solicitors, the Plaintiff appears to have received an amount calculated on the upper end of the range of percentages (55 to 62 per cent) of the value of the net assets as what she might be likely to receive. Of course, by resolving the matter without litigation, the costs of contested proceedings were saved. Nor is there evidence, otherwise, that would enable me to form the view, on family law principles, that their agreement would be varied if such a claim had been made during the deceased's lifetime.

(e) Indeed, there was an attempt to re-open the property settlement during the deceased's lifetime. However, the attempt was simply that and the Plaintiff's proceedings were, ultimately, dismissed by agreement. Thereafter, there were no proceedings between them and no attempt to set aside, or vary, the orders that were made.

(f) There is no suggestion in the affidavit of the Plaintiff filed in the Family Court proceedings, or otherwise, of fraud, undue influence, or unconscientious behaviour, on the part of the deceased.

(g) Following the proceedings in the Family Court in 2001, if not from about 1998, the Plaintiff and the deceased went her, and his, own way, and led her, and his, own life. In particular, apart from the property settlement, neither made any contribution, thereafter, to the welfare, or property, of the other. The deceased, of course, remarried.

(h) There was no continuing relationship between the Plaintiff and the deceased, or any provision of maintenance, or other, support. It could not reasonably have been intended, or expected, by either that maintenance or support would continue after death.

(i) Whilst the Plaintiff's financial position is far from strong, difficult financial circumstances, even if proved, do not, of themselves, amount to factors warranting the making of an application.

(j) So far as the costs of the proceedings are concerned, these should not be taken into account in determining the question.

Having reached the conclusion that there are no factors warranting the making of her application, the Plaintiff's Summons must be dismissed. However, in case I am in error, I shall deal with the questions whether the Court can make an order under the Act, and if so, whether it should do so.

The Plaintiff has some financial need. This is not in really in contest. However, she finds herself in her present financial predicament because she has financially assisted David. Of course, in so doing, he has provided her with accommodation and, no doubt, companionship. However, had she not advanced to him about $379,000, she would be in a much stronger financial position. She might have been able to buy accommodation that she says she would buy if the provision that she seeks were ordered to be made.

It is clear that the Plaintiff receives no provision under the deceased's Will. Judged by quantum alone, and looked at through the prism of her financial and material circumstances, it might be considered that adequate provision for her proper maintenance or advancement in life was not made by the Will of the deceased.

Whilst a lump sum, by way of advancement in life, in other circumstances, would be appropriate, that is not all that I am required to consider at the first stage. The totality of the relationship of the Plaintiff and the deceased, the age and capacities of the other beneficiary (the deceased's widow), and the claim of each on the bounty of the deceased, are very relevant factors in determining the answer at the first stage. I also bear in mind that the deceased chose to leave the bulk of his estate (or in the events that have happened, principally the matrimonial home) to Christine, his widow, knowing that he and the Plaintiff had divided their assets a decade before.

Those considerations lead me to find that there was no failure, on the part of the deceased, to make adequate provision for the Plaintiff. Accordingly, the Plaintiff fails, also, at the jurisdictional stage. That finding, also, concludes the matter and must lead to the dismissal of the Plaintiff's proceedings.

However, even if I were wrong in coming to that conclusion, the same considerations, would, at the second stage, produce the result that, as a matter of discretion, I would not be satisfied that a family provision order ought to be made in favour of the Plaintiff. In all the circumstances of this case, the deceased exercised his freedom of testamentary disposition in the knowledge that he had, during his lifetime, divided his assets with the Plaintiff. It is not for this court to substitute its opinion for that of the deceased as to the best, or fairest, disposition of his own property. It follows that the Plaintiff's proceedings must be dismissed.

Turning to David, then, I have earlier set out the reasons given by him for not making the claim within the time prescribed by the Act, and the acceptance of the reasons that he has given. I am satisfied that there would be no prejudice by the extension of time. Mr Ellison SC accepted that there was no unconscionable conduct by David. Accordingly, before making an order, I must consider the prospects of success.

It is clear that David and Gregory, will in the events that have happened, receive no, or virtually no, provision out of the deceased's estate despite being entitled to share the residue of the deceased's estate equally. This may lead to me more readily finding that inadequate provision for David has been made.

However, as I have said, that is not all I must consider at the first stage. I must consider the other matters to which I have referred, in determining the answer at the first stage. I must also consider David's financial and material circumstances.

As I have also said, I am far from satisfied that David has fully, or accurately, disclosed his financial and material circumstances, particularly his liabilities. My view about this was confirmed when, prior to commencing submissions, he tendered, without objection, an email from the Manager Loans Management Unit of the Bank, in which it is written:

"I know it is a hard decision, but have you thought about selling your home at Balmoral?

Home loan repayments on a loan of say $750,000 over a 30 year term are approximately $5,450 per month... After allowing for tax and living expenses the Bank would not consider this affordable and we would not be prepared to write a letter to APRA."

Finally, I note that there is no evidence of the current amount that he has in the bank account that has been quarantined to make the monthly payments to the judgment creditor. There is no explanation for this omission.

David indicated in response to a question during submissions that if provision were made, he would not repay any part of the funds advanced to him by the Plaintiff. He said that he would use any lump sum ordered to "maintain the status quo", which I take to mean, to provide a source of funds to ensure that any judgment creditor would not take steps to obtain possession of the Balmoral property and sell it. He said that he hoped to repay the Plaintiff "when I get back on my feet".

David maintained that to make provision would not mean that he would receive no benefit. He said that he hoped to negotiate with the judgment creditor to come to some arrangement that would result in the retention of the Balmoral property, in which he and the Plaintiff could continue to live. However, he gave no evidence of the nature, or stage, of the negotiations. I am, therefore, unable to come to a view about the prospects of him being able to do so.

There are authorities decided under the former Act that the court does not order provision if it is merely to go the applicant's creditors: Caska v Caska [1999] NSWSC 289; Strano v Jovsevski [2008] NSWSC 380; Diver v Neal [2008] NSWSC 304). However, on appeal, in Diver v Neal [2009] NSWCA 54, Basten JA said that:

"The dicta in Caska should not be treated as establishing any general principle. A financial benefit in circumstances where an applicant's business interests require an injection of capital may be of great assistance in permitting advancement in life. The fact that the benefit goes to paying off creditors, thereby saving the loss of an asset or reducing ongoing liabilities does not diminish the benefit to the applicant."

Allsop P, concurred, saying that:

"One could envisage a particular predicament of an eligible person whereby it would be relevant to consider that any order in his or her favour would diminish the estate to meet the claims of others to no appreciable (financial or social) benefit to him or her in his or her debt-ridden condition. That is not to say, however, that relief from indebtedness may not be of significant benefit to an eligible person. A small bequest to someone with considerable debts may make the difference (as Mr Micawber said) between happiness and misery. (my emphasis)"

Therefore, the fact that some, or all, of the provision made in this application may go to discharge David's debts does not, necessarily, tend against an order for provision.

Also, the totality of the relationship of David and the deceased, the age and capacities of Christine, the other beneficiary, and her claim on the bounty of the deceased, are very relevant factors in determining the answer at the first stage. I bear in mind, too, that the deceased chose to leave the bulk of his estate (or in the events that have happened, principally the matrimonial home) to his widow.

Those considerations lead me to find that there was no failure, on the part of the deceased, to make adequate provision for David. Accordingly, he fails, also, at the jurisdictional stage. That finding concludes the matter and must lead to the dismissal of David's proceedings.

However, even if I were wrong in coming to that conclusion, the same considerations, would, at the second stage, produce the result that, as a matter of discretion, I would not be satisfied that a family provision order ought to be made in favour of David. In all the circumstances of this case, the deceased exercised his freedom of testamentary disposition. It is, of course, unfortunate, that the estate is not large enough to satisfy the making of provision for him. I consider that the deceased's obligation to his widow, the chosen object of his testamentary bounty, was greater than his obligation to David.

I am not satisfied that David has established that the Court should intervene to re-write the Will to provide him with provision. It follows that David's proceedings must be dismissed. In the circumstances, there is no point extending the time for the making of David's application.

I order that the Plaintiff's Summons, and David's Summons, each be dismissed.

Subject to any argument on costs, there does not appear to me to be much point making any order for costs since the financial circumstances of the Plaintiff and of David leads me to the view that any order, at the present time, would be pointless.

Furthermore, in this case, particularly, in the case of David, the deceased did intend for him to receive some provision out of his estate. But for the liabilities and the legacy to Christine, it is likely that he would have received some part of the deceased's estate. Also, the residuary estate, to half of which he is entitled, will bear the costs of the proceedings in any event.

In relation to the Plaintiff, I think it would impose an undue burden upon her, in the circumstances of this case, to order her to pay the Defendant's costs.

Accordingly, unless either party wishes to argue the question of costs, I would propose to make no order as to the Plaintiff's, and David's costs, to the intent that she, and he, will pay her own, and his own, costs of the proceedings. I order the Defendant's costs of the proceedings, calculated on an indemnity basis be paid out of the estate.

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Decision last updated: 20 June 2011

Medium Neutral Citation:	Glynne v NSW Trustee and Guardian; Lindsay v NSW Trustee and Guardian [2011] NSWSC 535
Hearing dates:	26 May 2011
Decision date:	17 June 2011
Jurisdiction:	Equity Division
Before:	Hallen AsJ
Decision:	1. Order that each Summons be dismissed. 2. Subject to any further argument on costs, propose to make no order as to each Plaintiff's costs, to the intent that she, and he, will pay her own, and his, own, costs of the proceedings. 3. Order that the Defendant's costs of the proceedings, calculated on the indemnity basis be paid out of the estate.
Catchwords:	Family provision order under Chapter 3 of NSW Succession Act 2006 - first Plaintiff former spouse of deceased- second Plaintiff son of the deceased - Plaintiffs each self-represented - Defendant is NSW Trustee & Guardian, to which Letters of Administration granted - whether factors warranting making of first Plaintiff's application - competing claimant widow of the deceased.
Legislation Cited:	Family Law Act 1975 (Cth) Family Provision Act 1982 Succession Act 2006 Succession Amendment (Family Provision) Act 2008
Cases Cited:	Armstrong v Sloan [2002] VSC 229 Bondelmonte v Blanckensee [1989] WAR 305 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Brown v Faggoter (NSWCA, 13 November 1998, unreported) Burton v Moss [2010] NSWSC 163 Campbell v Chabert-McKay [2010] NSWSC 859 Caska v Caska [1999] NSWSC 289 Cetojevic v Cetojevic [2006] NSWSC 431 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 De Winter v Johnstone (NSWCA, 23 August 1995, unreported) Diver v Neal [2008] NSWSC 304 Diver v Neal [2009] NSWCA 54 Durham v Durham [2010] NSWSC 389 Evans v Levy [2011] NSWCA 125 Foley v Ellis [2008] NSWCA 288 Fulop Deceased, Re (1987) 8 NSWLR 679 Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Hawkins v Prestage (1989) 1 WAR 37 John v John [2010] NSWSC 937 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Lynch v Lynch (NSWSC, 24 August 1992, unreported) McCosker v McCosker (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Mansfield v Mansfield [2003] WASC 214 Marland (decd), In re [1957] VR 338 Mayfield v Lloyd-Williams [2004] NSWSC 419 Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 Penfold v Perpetual Trustee [2002] NSWSC 648 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9 Porthouse v Bridge [2007] NSWSC 686 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100 Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Strano v Jovsevski [2008] NSWSC 380 Taylor v Farrugia [2009] NSWSC 801 Tsivinsky v Tsivinsky (NSWCA, 5 December 1991, unreported) Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported)
Category:	Principal judgment
Parties:	Tallulah Donalda Glynne (Plaintiff in 2010/91576) David Charles Lindsay (Plaintiff in 2011/173906) NSW Trustee and Guardian (Defendant in both proceedings)
Representation:	Counsel: Ms Tallulah Donalda Glynne (Plaintiff in person in 2010/91576) Mr David Charles Lindsay (Plaintiff in person in 2011/173906) Mr L J Ellison SC (Defendant in both proceedings) Solicitors: Ms Tallulah Donalda Glynne (Plaintiff not legally represented) Mr David Charles Lindsay (Plaintiff not legally represented) Clinch Long Letherbarrow with Cropper Parkhill (Defendant in both proceedings)
File Number(s):	2010/91576; 2011/173906

(a)	Mosman unit having an estimated value of $550,000 - $600,000. Disclosed at:	$600,000
(b)	Savings of approximately:	$13,000
(c)	6,000 Photon Group shares having a value (at 11/5/11) of:	$384
(d)	18,000 Admiralty Resources shares having a value (at 11/5/11) of:	$828
(e)	2005 model Suzuki Swift having an estimated value of:	$6,000
(f)	Household furniture and effects having an estimated value of:	$2,000
Total:	$622,212

(a)	Credit Cards - balance approximately:	$1,000
(b)	Tax liability for year ended 30 June 2010 estimated at:	$8,000
Total:	$9,000