Goodsell v Wellington - [2011] NSWSC 1232

Supreme Court

New South Wales

Medium Neutral Citation: Goodsell v Wellington & Ors [2011] NSWSC 1232
Hearing dates: 17, 18, 19 October 2011
Decision date: 04 November 2011
Jurisdiction: Equity Division
Before: Hallen AsJ
Decision:
Having found that the Plaintiff is an eligible person and that the provision made for him in the Will of the deceased is inadequate, order that the Plaintiff receive, by way of provision, an interest-free advance on his share of the deceased's estate, of $200,000.
The lump sum is to be repaid to the estate, in whole or in part, from the Plaintiff's share of the deceased's estate when the Princes Highway property is sold, in whole or in part.
If the total of the Plaintiff's share of the deceased's estate, when ultimately realized, is insufficient to repay the whole of the amount of the advance, then he is not required to repay the balance remaining, which balance shall constitute part of the family provision order by way of absolute entitlement.
The Defendants should be allowed an opportunity to decide the manner in which they will satisfy the payment of the advance, and, therefore, which part of the estate is to bear the burden of the order.
Part of the advance ($20,000) should be paid within 14 days of the delivery of reasons, and the balance within 28 days of the making of orders reflecting the reasons, or within such other time as the parties agree, failing which, interest on any amount not so paid, should be paid, such interest to be calculated at the rate prescribed on unpaid legacies by the Probate & Administration Act 1898, from that date until the date of payment.
The Plaintiff should vacate possession of the Princes Highway property simultaneously with the receipt of the balance ($180,000) of the amount the subject of the advance.
If the parties are unable to reach agreement on the way in which the lump sum is to be paid, I shall hear further short submissions on which property should be designated as notional estate, and any consequential orders.
Subject to any argument about costs, I would propose to make the usual order for costs.
The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules and the Court Books may be returned.
The parties are to bring in short minutes.
The proceedings are adjourned to a date to be fixed.

Catchwords: The Plaintiff, an adult child of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - Defendants named in the Summons are also adult children of the deceased - The lessee of land owned by the deceased at the date of her death joined as party Defendant - Whether provision made in Will of deceased inadequate and if so, whether order in favour of the Plaintiff should be made
Legislation Cited: Civil Procedure Act 2005
Family Provision Act 1982
Powers of Attorney Act 2003
Probate & Administration Act 1898
Property (Relationships) Act 1984
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Uniform Civil Procedure Rules 2005
Cases Cited: Allardice, In re; Allardice v Allardice (1909) 29 NZLR 959
Blore v Lang (1960) 104 CLR 124
Bondelmonte v Blanckensee [1989] WAR 305
Bondy v Vavros (NSWSC, 29 August 1988, unreported)
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Carey v Robson & Anor; Nicholls v Robson & Anor [2009] NSWSC 1142
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
Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639
Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89
ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193
Fiorentini v O'Neill [1998] NSWCA 79
Foley v Ellis [2008] NSWCA 288
Fung v Ye [2007] NSWCA 115
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Hampson v Hampson [2010] NSWCA 359
Hastings v Hastings [2010] NSWCA 197
Hawkins v Prestage (1989) 1 WAR 37
Hoobin v Hoobin [2004] NSWSC 705
Howarth v Reed (NSWSC 15 April 1991, unreported)
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Kay v Archbold [2008] NSWSC 254
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Lloyd-Williams v Mayfield [2005] NSWCA 189
McCosker v McCosker (1957) 97 CLR 566
McGrath v Eves [2005] NSWSC 1006
McKenzie v Topp [2004] VSC 90
Maio v Sacco [2009] NSWSC 413
Mayfield v Lloyd-Williams [2004] NSWSC 419
Permanent Trustee Company Ltd v Fraser (1995) 36 NSWLR 24
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9
Puckridge, Deceased, In the Estate of (1978) 20 SASR 72
Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100
Sangster v Sangster as executor of the estate of the late Christobel Mary Sangster [2009] NSWSC 695
Shearer v The Public Trustee (NSWSC, 23 March, 1998, unreported)
Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stott v Cook (1960) 33 ALJR 447
Taylor v Farrugia [2009] NSWSC 801
Vasiljev v Public Trustee [1974] 2 NSWLR 497
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (NSWSC, 17 May 1996, unreported)
Category: Principal judgment
Parties: John Gordon Goodsell (Plaintiff)
Judith Ann Wellington (first Defendant)
Kenneth Norman Goodsell (second Defendant)
Valda Lorraine Goodsell (third Defendant)
Cadodeb Pty Ltd (fourth Defendant)
Representation: Counsel:
Mr M Gorrick (Plaintiff)
Mr T Rickard (Defendants)
Solicitors:
RMB Lawyers with Kearns & Garside
(Plaintiff)
Marriott Oliver Solicitors (Defendants)

File Number(s): 2010/277155

Judgment

The Nature of the Application

HIS HONOUR: John Gordon Goodsell, who is a child of Valda Muriel Goodsell ("the deceased"), applies for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act"). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the court, under Chapter 3, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person.

The Plaintiff commenced the proceedings, by Summons filed on 20 August 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). Without opposition, leave was granted to file an amended Summons, at the commencement of the hearing, the effect of which was to join, as a Defendant, Cadodeb Pty Limited ("Cadodeb"), the lessee of part of the land owned by the deceased at the date of her death. I shall refer to Cadodeb and to the lease later in these reasons.

The Defendants named in the Summons were Judith Ann Wellington, Kenneth Norman Goodsell and Valda Lorraine Goodsell, each of whom is also a child of the deceased and the persons to whom Probate in common form of the deceased's Will was granted. (There were two other siblings of the Plaintiffs and the Defendants, namely Donald Goodsell and Robyn Janette Wright.)

Without any undue familiarity, or disrespect intended, in these reasons I shall refer to the Plaintiff, each of the Defendants, and any other family members, after introduction, by her, or his, given name.

Background Facts

The following facts are uncontroversial.

The deceased died on 22 August 2009. She was then aged 86 years (having been born in April 1923).

The deceased was married to John Leslie Goodsell, but he predeceased her, having died in August 2003. He was the father of the six children.

Judith was born in 1945 and is now aged 66 years; Donald was born in 1946 and is now aged 65 years; Robyn was born in 1947 and is now aged 64 years; Valda was born in 1953 and is now aged 58 years; and Kenneth was born in 1958 and is now aged 53 years.

The deceased left a Will that she made on 8 February 2008, Probate of which was granted, on 23 March 2010, by the Supreme Court of New South Wales.

The deceased's Will, relevantly, provided:

(a) A devise of a property, situated at Station Street, Nowra, to Kenneth absolutely;

(b) In relation to the deceased's property on the Princes Highway, Nowra, ("the Princes Highway property") the deceased gave the following directions to the executors:

"4 .......

a) Whilstsoever my son KENNETH NORMAN GOODSELL and/or any business entity in which he has an interest operates the business presently known as J L Goodsell Timber Contractors from that property the property shall not be sold without his consent and he shall be entitled to occupy the property provided that he complies with the following conditions of occupancy.

b) My son KENNETH NORMAN GOODSELL shall, during the period of occupancy of the property pursuant to 4a) above pay all rates and taxes levied against the property by Shoalhaven City Council, be responsible for all outgoings in relation to the property including electricity and other utilities and shall keep the property insured so as to cover any reasonable insurable risk to my estate and keep the property including the house in a standard of repair commensurate with its condition as at the date of my death."

(c) Upon the death of Kenneth, or when he, or the entities, ceased to operate the business on the Princes Highway property, the deceased divided the Princes Highway property equally between her six children.

(d) The shares in any proprietary company associated with the business known as J L Goodsell Timber Contractors were devised to Kenneth absolutely.

(e) The residue of the deceased's estate was to be divided equally between her six named children.

The deceased's Will also referred to Judith having loaned the deceased and J L Goodsell Timber Contractors various amounts and that "[t]hese amounts are a debt repayable to her by my estate and or the business and should be repaid to her prior to any distribution of my estate". The evidence, which was not the subject of any challenge, revealed that the amount of the debt was said by Judith, initially, to be $55,472, but, subsequently, was found to be $42,181. (I have stated, and, hereafter, shall state, only the dollar amounts and shall omit a reference to the cents.)

The amount of that debt was made up of payments made for house repairs and maintenance ($19,965), medical and personal expenses ($583), funeral expenses for the deceased and also for her husband ($17,029) and legal fees incurred by the deceased ($4,963). (The difference of $359 was not explained.) There was no dispute that these payments had been made by Judith, or that the total amount was repayable out of the estate to her (as a result of the terms of the deceased's 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, value of $1,172,407. No liabilities (except the amount payable to Judith) were disclosed. The estate was said to consist of:

(a)

Money in Bendigo Bank:

$ 209

(b)

Interest in sale of IAG Shares:

$ 5,158

(c)

Station Street, Nowra Property:

$ 230,000

(d)

Princes Highway, South Nowra:

$ 900,000

(e)

Cash in hand:

$ 32,740

(f)

2x shares in Cadodeb P/L:

$ 0

(g)

2x shares in Lasoturn P/L:

$ 0

(h)

Car:

$ 4,300

Total:

$1,172,407

On the Station Street property is erected an approximately 60-year-old single storey detached residence, along with associated ground improvements. Accommodation comprises four bedrooms, one bathroom, lounge room, kitchen/dining room, family room, laundry with additional bathroom facilities, separate toilet and front and rear concrete porches. Overall, the residence is said to be in poor condition and requires repair.

The Princes Highway property comprises 3 separate lots in two different deposited plans, which together comprise the whole of the land in three separate Folio Identifiers. The property has a total area of 114.2 hectares. The areas of the three lots in one deposited plan are 25.19 hectares and two lots, each of 16.19 hectares, respectively, whilst the areas of the three lots in the other deposited plan, are 20.90 hectares, 20.81 hectares, and 14.92 hectares, respectively.

The land varies from elevated, and generally undulating, to somewhat low-lying, country. It is considered to be only fair, from an agricultural aspect. Some 60 per cent of the land is cleared and grassed and the property has the benefit of 7 small earth dams.

There is erected on what is now Lot 6 of the Princes Highway property, a main residence (in which John and the deceased lived and in which John has lived since the death of the deceased, and which I shall describe in more detail later in these reasons). On part of Lot 6 and what is Lot 229, there is an aged sawmill, a zincalume shed (26.5 m x 12.2 m), a portable site office, and portable amenities building. Additional rural improvements include several small, aged, galvanised, iron stables and a set of basic horse pipe yards.

The whole of the Princes Highway property is leased, with three of the lots being leased to Cadodeb and one lot being leased to South Coast Concrete Crushing & Recycling Pty Limited.

The three lots on the Princes Highway property were leased to Cadodeb pursuant to a Lease dated 21 August 2009. The duration of the lease was 10 years, commencing on 1 July 2009, and terminating on 30 June 2019. There was an option to renew for a period of 10 years with a further option for a period of another 10 years. The commencing rent payable by Cadodeb was $10,400 per annum (payable in equal weekly instalments of $200) and was subject to increases during the second and subsequent years. Cadodeb was also to pay, on an adjusted basis, all statutory charges, rates, taxes, and other levies imposed by a statutory authority in respect of the land. The lease to Cadodeb appears to have been registered in September 2009.

It is possible, if each option is validly exercised, that the lease of part of the Princes Highway property might not expire until 30 June 2039.

Judith, Kenneth and Valda signed the original lease, on behalf of the deceased, as lessor, under registered power of attorney. Later in these reasons, I shall return to the circumstances surrounding the creation and execution of this lease.

A copy of the lease to South Coast Concrete Crushing & Recycling Pty Limited is not in evidence, but the copy valuation report tendered in evidence reveals that the lease commenced on 24 April 2009 and terminates on 23 April 2089. The rent disclosed was $100,000, plus GST, payable on the execution of the lease, by way of initial instalment of $10,000 and, thereafter, by way of equal monthly instalments of $2,000, until paid in full. The lessee pays, on an adjusted basis, all statutory charges, rates, taxes, and other levies imposed by a statutory authority in respect of the land. It is said that the area of the site occupied is uncleared, and, for the most part, unusable.

The Power of Attorney executed by the deceased is described as an enduring General Power of Attorney. The deceased made the Power of Attorney on 20 December 2007, in favour of Judith, Kenneth, and Valda, jointly. There were no conditions, or limitations, included. Anne Jacqueline Brown, a solicitor at Marriott Oliver signed the Certificate under s 19 of the Powers of Attorney Act 2003, on 20 December 2007. The Power of Attorney was registered on 25 August 2009 (i.e. after the death of the deceased).

Part of the deceased's estate had been distributed by the date of hearing. By Transmission Application, registered in July 2010, the Station Street property was transmitted to Kenneth. The shares in Cadodeb were transmitted to Kenneth, effective 12 July 2010, as were the shares in Lasoturn Pty Limited ("Lasoturn"), which transmission was effective on 28 July 2010. In addition, the debt owed to Judith, referred to in the deceased's Will, to which I have referred, was repaid to Judith out of the proceeds of sale (about $44,000) of a strip of land owned by the deceased, fronting the Princes Highway, which proceeds were received in April 2011.

There is no evidence that the executors complied with s 93 of the Act. In particular, even though the distributions were made more than 6 months after the deceased's death, there is no evidence that they had given notice in the form approved under section 17 of the Civil Procedure Act 2005 that they intended to distribute part of the property in the estate after the expiration of a specified time. It was not suggested (and nor could it be) that any of the distributions were made for the purpose of providing those things immediately necessary for the maintenance or education of Kenneth or Judith, he or she being wholly, or substantially dependent, on the deceased immediately before her death.

There is no doubt that the Transmission of the Station Street property and the shares to Kenneth occurred at a time when Judith, Kenneth and Valda each knew that John was intending to make a claim for further, or different, provision out of the estate of the deceased. The payment of the amounts due to Judith was made well after the commencement of these proceedings.

The Princes Highway property, however, has not been distributed, but was transmitted, in July 2010, into the names of Judith, Kenneth and Valda, as executors of the estate of the deceased.

The parties agree that the deceased's actual estate, at the date of hearing, consists of the Princes Highway property, moneys in bank ($29,022) and funds held in the Defendants' solicitors' trust account ($3,538).

The current market value of the Princes Highway property has been determined by a valuation, obtained by the parties jointly, upon the basis firstly, that the Cadodeb lease is not in place, and then, upon the basis that it is in place. If the lease is in place, the value of the Princes Highway property is estimated to be $445,000; if it is not, then its value is estimated to be $1,340,000.

It is accepted by the parties that the lease to Cadodeb "would most certainly restrict the saleability of the property (the subject of the lease)" and that "with the lease in place, the market value is severely affected".

The current market value of the Station Street property is $190,000. It remains unencumbered and is registered in the name of Kenneth. There is no dispute that, as distributed property, it may form part of the notional estate of the deceased.

There is a dispute about the value of the shares in Cadodeb and in Lasoturn. Kenneth has deposed that the shares have no value. John says that the shares (at least in Cadodeb) have a value, which has not been disclosed, but, for example, may equate to the difference in values of the Princes Highway property when it is, or is not, the subject of the lease ($895,000).

There is no expert evidence as to the value of the deceased's shares in each of Cadodeb and Lasoturn. There is no dispute, however, that, as distributed property, the shares may form part of the notional estate of the deceased.

It can be seen, from the above that the gross value of the actual estate is either $477,560 or $1,372,560 (depending on whether the Princes Highway property is the subject of the lease).

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

John's costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis, have been estimated to be about $64,625 (inclusive of GST and upon the basis of a two day hearing). John's costs and disbursements, including counsel's fees, calculated on the ordinary basis, are said to be about no more than $48,469. As the hearing took three days, there will be an increase in his costs. However, there was no evidence of the additional costs.

The Defendants' costs and disbursements of the present proceedings, including 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 $57,726. Some costs and disbursements ($36,225), including solicitors' costs ($20,779), counsel's fees ($10,304), surveyor's fees ($1,644), valuers' fees (in total $3,300), and Sydney agent's fees ($198) have been paid out of the estate. It is estimated that the balance of the costs and disbursements yet to be paid is $21,501. There will be an increase in the Defendant's costs because of the three-day hearing. However, there was no evidence of the additional costs.

The parties agreed, for the purposes of the hearing, and assuming that the estimates of costs prove accurate, and the usual orders for costs are made, that the value of the current estimated net distributable actual estate, will be either $407,590 or $1,302,590.

It follows, if the estimates are accurate, that, subject to the terms of the deceased's Will, the estimated value of John's share of the net distributable actual estate is either $67,931 or $217,098.

The value of the property that may be designated as notional estate is, on the present evidence, $190,000, unless a greater value than nil is attributed to the shares in Cadodeb and Lasoturn.

The persons described as eligible persons, within the meaning of the Act, are the children of the deceased referred to in the Will. A prescribed Notice of Claim was served on Donald, on whose behalf an affidavit has been filed. He is, therefore, aware of John's proceedings.

A prescribed Notice of Claim has also been served on Robyn, under cover of a letter dated 25 January 2011. She has not commenced any proceedings on her own behalf, and I was informed, from the bar table, that she has not made herself available, to either side, in these proceedings. No affidavit from her has been filed, or read, in the proceedings and no subpoena to give evidence was served upon her.

In the circumstances, I am satisfied that she is aware of John's proceedings.

It is necessary to note that in separate letters, dated 27 May 2010, from Marriott Oliver, Solicitors, addressed to Donald and to Robyn, the following appears:

"Firstly we note that Probate of the Will was granted to Judy, Ken and Valda on 23 March 2010. We enclose herewith copy of the Will and note your entitlements pursuant to that Will.

As you may also know your brother John has indicated he wishes to bring a claim against the Estate for a greater share of the Estate. His solicitors are RMB Lawyers and there has been extensive correspondence back and forth regarding John's claim. John continues to be in occupation of the house at xxx Princes Highway.

Pursuant to a lease which was entered into between the company Cadodeb which operates the saw mill and is now controlled by Ken and your mother, Ken continues to operate the saw mill business as usual. Ken is paying rent into the deceased's Bendigo bank account. Ken continues to occupy the Station Street property.

Any person wishing to make a claim on the Estate has until the date 12 months after the date of death to formally bring a claim into Court.

...

The further complication is that as you may be aware an agreement was entered into between the deceased and the adjoining quarry. Prior to her death she agreed to lease the adjoining quarry part of the property to be used as a biodiversity off set strategy to enable them to further develop their own property. The lease has now been signed by the executors. We enclose herewith a copy of the Deed which is dated 14 May 2009. We also enclose herewith a copy of the Lease to Cadodeb for your reference.

The executors (sic) position is that the terms of the Will should be upheld. They are not able to move the matter significantly forward until we know what John's claim will be or whether he intends taking the matter to Court. The purpose of this letter is to provide you with the above information. If you wish to contact our office (sic) discuss the matter please feel free to do so.

If you feel that you need to obtain independent advice concerning this matter then by all means obtain that advice no doubt your solicitor will contact us in due course.

For your assistance we also enclose herewith the following:

1. Copy of the valuation of Station Street; and

2. Copy of valuation of xxxx Princess (sic) Highway."

There is no evidence that Robyn, herself, or through solicitors, contacted Marriott Oliver.

Only the Plaintiff has commenced proceedings under the Act.

The Lease to Cadodeb

I am satisfied that the following facts have been established in relation to the lease to Cadodeb:

(a) On about 12 August 2008, Marriott Oliver wrote to Judith, referring to an attendance, at their office, by Kenneth and Valda concerning the "South Nowra land" (the Princes Highway property) and noting "some discussions concerning your mother entering into a lease of the premises to the company now to secure the company's position". Further instructions were sought.

(b) Shortly prior to 3 March 2009, Judith contacted Marriott Oliver to arrange an appointment at the Princes Highway property for Ms Leonie Sinclair, solicitor, to attend upon the deceased.

(c) On 3 March 2009, Ms Sinclair, solicitor, attended an appointment with the deceased, at the Princes Highway property, principally to have the deceased sign an affidavit of additional assets, which affidavit was to be filed in respect of the deceased's husband's estate. At, or following, this appointment, Ms Sinclair wrote a file note, relevantly, in the following terms:

"Query - prepare lease to Ken now with mother - organise asap"

(d) Upon receiving these instructions, Ms Sinclair requested another solicitor in her office (Mr Liam Allen) to prepare a lease.

(e) Mr Allen appears to have taken instructions on the proposed lease from Kenneth, on behalf of Cadodeb, and, it would appear, Kenneth, on behalf of the deceased, although when, precisely, the instructions were given, is not disclosed in the evidence.

(f) On 28 May 2009, Mr Allen spoke, by telephone, with Kenneth. Mr Allen's file note, addressed to Ms Sinclair, relevantly, provides:

"1 Ken wishes to lease the remaining property owned by his mother back to himself under the following terms:

i. rent of $200 per week. Lease period 10 x 5 x 5. Would be leased under the Cadobed (sic) Pty Limited.

2. Transfer the property at Station Street into his sole name.

Whether you wish Rob to maybe start something on this while I am away so we can get the ball rolling."

(g) There is a file, under the name of Cadodeb and Kenneth, which has the words "Act for Lessor" on the front cover, and which states "File Opened: 22 June 2009".

(h) There is a typed file note, dated 24 June 2009, from Mr Allen to Ms Sinclair, which, relevantly, provides:

"LEASE TO CADOBED (sic) PTY LTD

I have drafted a Lease for Ken to have a look at in relation to the residue of the property to the timber mill from Valda.

TRANSFER OF STATION STREET

I have advised Ken of the amount of stamp duty he will have to pay if the transfer went ahead. His issue was in relation to using the property as security in changing banks from CBA to Horizon which he believed would save him $1K-2K a year in bank fees. He advised me he would get back to me."

(i) On 25 June 2009, Mr Allen, again, spoke, by telephone, with Kenneth regarding the lease. A file note of that date refers to Kenneth saying that his accountant had suggested to "leave out the rent increases" and that "Judy [would] pick up lease tomorrow".

(j) Judith collected the draft lease from the solicitors on a date that she could not remember. Judith also could not remember to whom she gave the draft lease.

(k) There is a file note, dated 7 July 2009, from Ms Sinclair, to Mr Allen, which, relevantly, provides:

"Looks like you have this in hand now assuming that the actions you ourlined (sic) have taken place. Just keep me appraised of developments."

There are some suggested amendments to the draft lease, the majority of which have been typed, but which are undated, which may have been completed by Ms Sinclair.

(l) On 8 July 2009, Mr Allen spoke, by telephone, with Kenneth's accountant, Mr Balding. No file note evidencing the contents of their discussion appears in the evidence.

(m) There is an undated file note, in the handwriting of Mr Allen, which, relevantly, states:

"Valda- possibly have (sic) cancer - frail"

(n) The deceased was admitted to hospital on 19 August 2009. There was no suggestion that she would not return and plans had been made for her to stay with Judith when she was discharged and whilst she recuperated.

(o) A copy letter, dated 19 August 2009, from Marriott Oliver, addressed to the deceased, and headed "Re: Your lease to Cadobed (sic)" stated:

"We refer to the above matter and note that we haven't received any word regarding amendments to, or execution of, the proposed Lease which was collected from our office by Ken Goodsell some weeks ago.

Please have Ken contact the writer to discuss so we can finalise the Lease as soon as possible."

(p) On 21 August 2009, Mr Allen met with Judith, Kenneth and Valda. A document titled "Unbilled WIP" in relation to Cadodeb, suggests that the conference was for approximately 30 minutes. Underneath the reference to "Meeting with client" in the same document, the words "Prepare lease" appear. Apparently, the time taken to prepare the lease was 12 minutes. (This suggests that, perhaps, amendments may have been made following the meeting.) A handwritten diary note includes the following:

"rec'd copy letter 21/08/09

* Would like to sign lease just in case + work out legalities later

* Valda incapable of making decisions at the moment because of her health

* lease is important to continue business and it was their mum's wish

* Girls said "ken can do whatever he wants"

* Guarantor I explained that there is no guarantor in the lease so there is no money from ken - girls happy with that.

* Rent review - fine with that. Fine rent explained situation if business sold in te rms of rent - happy not to include clause.

* went through obligation clauses, girls did not want ken to have any obligations but he insisted and understood obligations in terms of payment of rent + outgoings, obligations to maintain, insure, repair etc, obligations to obtain + Maintain all licences approvals etc.

- everyone happy with that

* Discussed at length the sublease clause and explained what ken could do in terms of dealing with the ppty - girls fine that + know that it has to happen because of nature of ken's businesses - new sub - lease can be organised by ken.

* No back rent to be paid

* wants ppty details to be checked because of way ppty has been described previously

* Girls happy to take clauses out which provide that ken needs to get consent before doing certain things on the ppty

* comments the whole time the gir ls were focussed on doing what was good for ken because it (words deleted) is what Valda wants to happen"

(q) Another file, under the name of the deceased, and which has the words "Act for Lessor" on the front cover, states "File Opened: 25 August 2009".

(r) There is another undated file note, apparently in the hand of Mr Allen, which, relevantly, provides:

"Lease

* Lessee - ken's company

* Lease term - 5 years 5 year option - will be registered + ken has to pay all rego fees

* Rent $200 p/week plus GST. ($10,400 p/a paid weekly.)

* insurance required $10, mill public liability - rent increase 5% per year

* insurance if business carr ied on by ken affects the insurance premiums, ken has to pay.

Ken pays for all services

ken pays all maintenance costs of equipment etc

5.03 ken has responsibility for damage to ppty etc if condition of ppty + (indecipherable) ppty or fault of ken

ken must advise of damage

if the (indecipherable) ( indecipherable) on damage as his fault he (his insurance coy (sic)) are responsible for rebuilding etc

can terminate if whole ppty destroyed

if part of ppty damage, abatement of rent

ken has to obtain approval to operate Business on ppty.

animals????

- guarantees?"

(s) A letter dated 11 September 2009, from Marriott Oliver, addressed to each of Judith, Kenneth, and Valda, apparently in her, and his, capacity as an executor named in the deceased's Will, in identical terms, referred to "your recent attendance at our office to execute the Lease"; noted that the lease had been signed on behalf of the deceased under Power of Attorney; and enclosed a copy of the executed lease and Power of Attorney. The letter also referred to Judith and Valda who "are also attorneys for your mother and [who] were present through the discussion about the effect of the Lease". There was also a reference to "a summary of the agreed clauses of the Lease" and to the registration of the lease.

(t) A letter dated 11 September 2009, addressed to Kenneth and Cadodeb, from Marriott Oliver, enclosed a copy of the signed lease, and two tax invoices. The author of the letter stated the firm "will now attend to registration of the Lease".

(u) A letter dated 15 October 2009, addressed to Kenneth and Cadodeb, from Marriott Oliver, enclosed a copy of the registered lease, and copies of the title documents evidencing the registration of the lease. Thereafter, the solicitors held the original lease.

(v) A letter dated 3 November 2009, addressed to Kenneth, from Marriott Oliver, refers to an attendance by Kenneth to discuss the lease. It states, relevantly, "the requested changes have been made on the original Lease which we hold in our safe custody facilities".

I am satisfied that Kenneth, with the acquiescence of Judith and Valda, wanted the lease to be signed "just in case" the deceased did not survive her hospitalization. At that time, each knew of the terms of the deceased's Will, although there is no evidence that he, or she, had any knowledge that the value of the Princes Highway property would be reduced, so significantly, by the grant, and the registration of, the lease. (For example, there is no evidence of consideration having been given to the terms of the lease, such as one relating to the lessee's unfettered use, rights and rights of assignment.)

There is no evidence that either Judith or Valda (even if she believed that the deceased had capacity to understand the transaction until the time she was medicated) informed the deceased about the fact that they were to sign a lease, a draft of which had, apparently, been provided to the deceased some weeks earlier, and instructions in respect of which she had not given. The evidence is that they did not.

There is also no evidence that either told her, subsequently, that a lease had been signed. Kenneth, at least, accepted that she did not know of this fact before her death.

I should note that John did not, in the proceedings, seek to set aside the lease to Cadodeb, albeit that it was suggested that the Court could make orders the effect of which would be to require Kenneth, in his capacity as the sole director of Cadodeb, to sign a surrender of lease, and Judith, and Valda (with Kenneth) as executors of the deceased's estate, to accept that surrender.

The Statutory Scheme - Introduction

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

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 as 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. Legal rights of inheritance are not created. Nor does it impose any limitation on the deceased's power of disposition by his, or her, will. It is only if the statutory conditions are satisfied, that the court is empowered, under the Act, to alter a deceased's disposition to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary.

The Substantive Provisions

The key provision is s 59 of the Act. The court must consider, first, whether the applicant is an eligible person within the meaning of s 57 (s 59(1)(a)). I n New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made. Relevantly, one category is "a child of the deceased" (s 57(1)(c) of the Act).

In the case of an applicant who falls within s 57(1)(d), (e) or (f), the court must next consider whether the court is satisfied that there are factors which warrant the making of the application (s 59(1)(b)).

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 it is satisfied of the inadequacy of provision, that the court considers 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". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment".

Importantly, there no longer appears to be any sanction, in s 59(1)(c) of the Act, to consider 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 [2009] NSWCA 54; (2009) 2 ASTLR 89, at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime". It also permits consideration of future requirements for support and assistance. Contingent events may be taken into account, as well as what may be considered certain, or exceedingly likely to happen. Reasonable foresight of eventualities that may arise may also be considered.

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

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

Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd , went on to say, of the word 'proper', that:

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

In Goodman v Windeyer (1980) 144 CLR 490, Gibbs J said at 502:

"[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."

In Vigolo v Bostin at [114], Callinan and Heydon JJ said:

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

The term "proper" supports an assessment that more may be required than that which is sufficient, as a matter of bare necessity, to avoid penury: Goodman v Windeyer at 496-497 (Gibbs J), citing Bosch v Perpetual Trustee Co at 476; Hastings v Hastings [2010] NSWCA 197 at [8].

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

Tobias JA said:

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

...

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

In Devereaux-Warnes v Hall (No 3) at [81]-[84], Buss JA said, in respect of the first stage of the process:

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

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

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

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

In the event that the court is satisfied that the power to make an order is enlivened (i.e. it is satisfied the applicant is an eligible person, and, where necessary, that factors warranting have been established, 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.

The discretion should be exercised carefully and conservatively according to community perceptions of the provision that would be made by a wise and just testator or testatrix: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 146. The standards of the wise and just testator, or testatrix, of today, not of an era ago, are pertinent to that assessment: Permanent Trustee Company Ltd v Fraser (1995) 36 NSWLR 24 at 35.

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 famil y 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 o r der or any beneficiary of the decease d 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 p e rson ,

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

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

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

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

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

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

It can be seen that s 60(2) enumerates 15 specific matters which the court may take into account, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order , and, if so, the nature of any such order. There is no mandatory command to take into account any of the matters enumerated. None of the matters differentiate in their application between classes of eligible person. Similarly, there is no distinction based on gender.

There is no definition in the Act of "financial resources" (which term is referred to in sub-s (2)(d)). However, there is a definition of that term in the Property (Relationships) Act 1984, which I consider helpful:

'"financial resources" ... includes:

(a) a prospective claim or entitlement in respect of a scheme, fund or arrangement under which superannuation, retirement or similar benefits are provided,

(b) property which, pursuant to the provisions of a discretionary trust, may become vested in or used or applied in or towards the purposes of the parties...,

(c) property, the alienation or disposition of which is wholly or partly under the control of the parties to the relationship or either of them and which is lawfully capable of being used or applied by or on behalf of the parties to the relationship or either of them in or towards their or his or her own purposes, and

(d) any other valuable benefit."

Of course, sub-s (2)(d) refers, also, to "earning capacity", which means no more than the capacity to find employment to earn or derive income.

Section 60(2)(p) is open ended. It enables the court to look beyond the specific statutory matters that are set out in the immediately preceding sub-sections and to consider any other matter it considers relevant.

Considering each of the matters set out in s 60(2) 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 not be relevant 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 also 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's estate), but who has not made an application. However, the court may disregard any such interests only if:

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

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

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

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

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

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

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

It seems to me that this section, when read with s 66(2) (to which I shall refer later), enables the court to specify, as it could under the former Act, the beneficial entitlements in the estate which shall bear the burden of the provision and, in relation to each of those entitlements, the part of the burden which it shall bear (s 13 of the former Act). Speaking of s 13 of the former Act, White J in Hoobin v Hoobin [2004] NSWSC 705, at [139] noted:

"Section 13 of the Family Provision Act provides that where the Court makes an order for provision out of the estate of a deceased person it may specify the beneficial entitlements in the estate which shall bear the burden of the provision and, in relation to each of those entitlements, the part of the burden which it shall bear. The discretion is a wide one. In an appropriate case weight may be given to what the particular testator or deceased person would have wished. ( Re Seery & Testator's Family Maintenance Act (1969) 90 WN (Pt 1) (NSW) 400 at 408-409; Kleinig v Neal [1981] 1 NSWLR 462 at 464-5; Cantrell v Williams [2004] NSWSC 579 at [7]-[8].) However the discretion should be exercised having regard to "rules of reason and justice" with due regard to the whole of the surrounding circumstances."

The order for provision out of the estate of a deceased person may 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 an order for the payment of an amount of money, that 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 in relation to the estate of the deceased. As the deceased died leaving a Will, her estate includes all property that would, on a grant of probate of the Will, vest in the executor of the Will (s 63(2) of the Act). An order may also be made in relation to property that is not part of the estate of a deceased, or that has been distributed, if it is designated as notional estate of the deceased person by an order under Part 3.3 of the Act (s 63(5)).

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. In view of the submissions that were made, I set out the terms of s 66:

"(1) The Court may, in addition to, or as part of, a family provision order, make orders for or with respect to all or any of the following matters for the purpose of giving effect to the family provision order:

(a) the transfer of property of the estate directly to the eligible person in whose favour the order is made, or to any other person as trustee for that person,

(b) where property is to be held on trust, the purpose of the trust and the way in which it is to be constituted,

(c) the appointment of a trustee of property of the estate,

(d) the powers and duties of a trustee of property of the estate, including any trustee constituted or appointed under this section,

(e) the vesting in any person of property of the estate,

(f) the exercise of a right or power to obtain property for the estate,

(g) the sale of or dealing with property of the estate,

(h) the disposal of the proceeds of any sale or other realising of property of the estate,

(i) the securing, either wholly or partially, of the due performance of an order under this Part,

(j) the management of the property of the estate,

(k) the execution of any necessary conveyance, document or instrument, the production of documents of title or the doing of such other things as the Court thinks necessary in relation to the performance of the family provision order,

(l) any other matter the Court thinks necessary.

(2) The Court may make such additional orders as it considers necessary to adjust the interests of any person affected by a family provision order and to be just and equitable to all persons affected by the order.

(3) The execution of an instrument relating to property in the notional estate of a deceased person pursuant to an order under this section is not liable to duty under the Duties Act 1997."

It can be seen that the discretion given to the court by the section is also a wide one.

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).

Notional Estate

It is not necessary to discuss the principles that apply in respect of notional estate, since the parties are agreed that I should publish my reasons and allow them an opportunity to discuss the manner in which any order will be satisfied before designating property as notional estate (if that is necessary).

One of the alternatives about which Kenneth gave evidence, for example, related to the possibility of the sale of the Station Street property. Another alternative, identified by Judith, was that she and her husband had $250,000 that they would be prepared to lend to the estate to satisfy, in whole or in part, any order for a lump sum that the court ordered by way of provision for John.

I shall permit the parties to conduct some discussions, for a short period after these reasons are published, and if agreement cannot be reached, I shall then consider any competing submissions on the consequential and ancillary orders that may be required to give effect to the family provision order (e.g. s 66 and s 92 of the Act).

Section 93 of the Act is relevant in this case. That section enables the legal representative of the estate of the deceased to distribute the property in the estate if:

(a) the property is distributed at least 6 months after the deceased person's death, and

(b) the legal representative has given notice in the form approved under section 17 of the Civil Procedure Act 2005 that the legal representative intends to distribute the property in the estate after the expiration of a specified time, and

(d) the time specified in the notice has expired, and

(e) at the time of distribution, the legal representative does not have notice of any application or intended application for a family provision order affecting the estate of the deceased person.

Sub-section (3) provides that for the purposes of the section, notice to the legal representative of an application, or intention, to make any application under this Chapter, must be in writing, signed in accordance with rules for the signing of documents by a party in proceedings under the Uniform Civil Procedure Rules 2005.

As stated, there was no evidence of any such notice given by the Defendants.

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 stated 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 Stott v Cook (1960) 33 ALJR 447, Taylor J, although dissenting in his determination of the case, observed, at 453-4, that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added:

"There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged."

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 testator'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: McKenzie v Topp [2004] VSC 90 at [63]. Freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the court": Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9. Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated.

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, Young J, unreported); Vigolo v Bostin at [11]; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.

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

In relation to a claim under the Act by an adult child of the deceased, the following matters should also be noted:

(a) It is not necessary that the applicant child be dependant on the deceased at the time of the deceased's death in order to be an eligible person, or in order to be successful in his, or her, claim under the Act.

(b) 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. It may be accepted that a child will generally have some claim on the estate of the deceased, despite lack of dependency.

(c) 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 home, or to set their children up in a position where they can acquire a home 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.

(d) 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 as 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 .

(e) Even if an applicant has not taken advantage of the opportunities provided to him for his, or her, advancement in life in the past, this does not preclude further opportunity being provided to him, or her, by way of provision out of the estate, if it is proper to do so in all the circumstances of the case: Sangster v Sangster as executor of the estate of the late Christobel Mary Sangster [2009] NSWSC 695 at [33].

(f) There is no obligation upon the deceased to have treated all of his, or her, children by making provision that is equal.

In Carey v Robson & Anor; Nicholls v Robson & Anor [2009] NSWSC 1142, Palmer J commented:

"57 The strongest ground for relief urged by Rosemary and Marion, though put somewhat obliquely, is that the provision made for them by the testator is vastly disproportionate to the provision made for Alan. One can understand the sense of grievance which one child may have at being treated by a parent differently from another child. Some may be tempted to think that great disproportionality of testamentary treatment in itself indicates some essential error in the testamentary process which requires amelioration under the Family Provision Act so as to achieve approximate equality between a testator's children.

58 That is not, of course, a position from which one can begin in this, or in any other case under the family provision legislation."

Menzies and Fullager JJ in Blore v Lang (1960) 104 CLR 124 at 134-5, commented:

"Bad conduct or character may disentitle a member of the family to needed assistance, but good conduct and honest worth are not to be rewarded by a generous but second-hand legacy at the hands of the Court. Nor, in a case where a testator has chosen to dispose of his estate according to his inclination, ought the generous treatment of a child who has no need of the testator's bounty be used to determine the provision to be made for a child whose need has been disregarded or overlooked. The measure to be applied is not what has been given to one, but what the other needs for his or her proper maintenance, giving due regard to all the circumstances of the case... The Act is legislation for remedying... breaches of a testator's moral duty to make adequate provision for the proper maintenance of his family - not for the making of what may appear to the Court to be a fair distribution of a deceased person's estate among the members of his family. As it has been said in another context, the Act is to provide maintenance, not legacies. Equality is not something to be achieved by the application of the Act, although in some cases equality may set a limit to the order to be made- for instance where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same." (My emphasis)

(g) There is no 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.

In some cases under the Act, and this is one, an applicant who is a child of the deceased, seeks provision by way of an unencumbered home as part of the provision to be made by the Court. Young J observed in Shearer v The Public Trustee (NSWSC, 23 March, 1998, unreported) that it has never been said by any court that the community expects a mother to leave her child in a position to have a house of his, or her, own. His view was repeated by Brereton J in Taylor v Farrugia at [57].

Yet, there is no rule to the effect that proper provision for an adult and presently able-bodied child does not extend to providing him, or her, with a house, or money to buy one, in an appropriate case: Mayfield v Lloyd-Williams at [109]-[110]. An appropriate case may be one in which the estate is very large (for example, in Mayfield , it was in excess of $5 million) and where there are no, or few, competing claimants on the bounty of the deceased, or in which, even if such provision were made, the wellbeing of the competing claimants would not be adversely affected: Lloyd-Williams v Mayfield [2005] NSWCA 189, per Bryson JA, at [31].

In Fung v Ye [2007] NSWCA 115, Young CJ in Equity (as his Honour then was), sitting in the Court of Appeal (with whom Tobias JA and Bell J, as her Honour then was, agreed) said at [25]:

"Returning to the present case, I must say that Gzell J's statement at [31] that " ... there is no rule to the effect that proper provision for an adult and presently able-bodied child does not extend to providing him or her with a house or money to buy one" may give rise to unreasonable expectations by future claimants. The statement is correct as far as it goes, but the statement would also be correct that in very many cases it will not be appropriate to provide a house, or money to buy one, to an able-bodied adult child. In each case one needs to consider the basic human right of freedom of testation of the deceased, the relationship between the plaintiff and the deceased, the size of the estate and the other claimants. I would venture to say that probably in the majority of cases the evaluation of that equation will not result in an able-bodied child being "entitled" to a house or money to buy one."

31. I would prefer a property with some land including a back yard.

32. I would prefer a solidly constructed house in good condition that does not require renovation because I would not be able to afford this. I would prefer something that keeps the wind and the rain out, does not flood and does not have any white ants.

33. I would like to live in a single storey house which is more likely to meet my needs as I grow older and frailer.

34. Given my age and the lack of support from family or friends I am concerned that any house I will buy for myself will need to be in good repair. Although I do not need all the bedrooms in the homes selected, it is difficult to find a one bedroom home and I do not want to live in a unit.

35. I do not have a computer at home.

...

36. I have never owned any real estate. My solicitor has informed me that I may be eligible for the First Home Owners Grant. However I am informed by my Solicitor that the stamp duty concessions for first home buyers of established homes will cease as of 1 January 2012.

37. My Solicitor has advised me that to purchase a property in the range of $300,000.00 - $350,000.00 would involve conveyancing costs of approximately $1,500.00 and stamp duty of approximately $8,990.00 to $11,240.00.

38. All furniture currently in the property belonged to my mother. The furniture is old and dated. ... My siblings collected all the better pieces of furniture and I am not sure what happened to them.

39. To protect the condition of the furniture left in the property, I have covered most of the items with blankets. I had to buy a $10.00 fridge from the tip which is still working.

...

42. I will need to furnish any house I move to when I eventually leave the property. I will need basic furniture such as lounges, washing machine, bed, mattress and bedroom furniture, a refrigerator/freezer, dining table and chairs, television, radio, kitchen utensils and linen. I asked my solicitor to look at various websites to find information on the cost of furniture and white goods.

...

44. I would also require the provision of $50,000 for contingencies and to supplement whatever income I may be able to earn or pension I receive from Centrelink."

Counsel for the Plaintiff submits that a lump sum of $416,012 should be provided being:

(a)

Cost of a home:

$313,667

(b)

Legal fees for purchase of a property:

$ 1,500

(c)

Stamp duty:

$ 10,115

(d)

Motor Vehicle:

$ 20,730

(e)

Furniture and fittings:

$ 20,000

(f)

Contingencies:

$ 50,000

Total:

$416,012

Donald, in his affidavit which was sworn on 18 April 2011, states:

(a) He and his wife have modest means, relying on Centrelink for support. His wife has serious medical problems and Donald receives a Carer's pension. She is on a Disability Support pension. She is aged 72 years.

(b) They own a 37-year-old home and most of the contents are of a similar age. There are repairs and renovations required on the house such as a new roof and the bathroom is leaking and has rotted out the surrounding woodwork. They own two motor vehicles. One is a 1978 vehicle and one is a 1995 vehicle. They have no savings. Donald has superannuation invested of about $60,000. His wife has no superannuation.

Kenneth, in his affidavit sworn 20 April 2011, states:

(a) He is employed by Lasoturn, being a director and manager.

(b) He is living in a de facto relationship in his partner's property in Bomaderry NSW. He pays $175 per week into a joint account in his and his partner's name, the proceeds of which account are used for joint purposes.

(c) He remains the registered proprietor of the Station Street property. I have described the state of this property previously. His two daughters live in the Station Street property, one with her family. They do not pay Kenneth any rent, but they do pay rates and other outgoings.

(d) He has approximately $9,700 in his bank accounts.

(e) He has no superannuation.

(f) His ex-wife, Deborah Margaret Goodsell, has commenced proceedings for a property settlement in the Federal Magistrates' Court. She is seeking a payment of $60,000 and possibly associated costs. As at 20 April 2011, her application is still awaiting allocation of a hearing date.

(g) I have referred to the fact that the shares in Cadodeb and Lasoturn have been transmitted into his name. I have also set out the other benefits that he has received following the death of the deceased.

Valda, in her Affidavit of 7 April 2011, states that she works at Target in Nowra as a shop assistant. She is a casual employee working part-time. She works 24 1/2 hours per week and takes home approximately $380 per week. All of her income is spent on her living expenses. She has no savings.

She is divorced and lives alone in Terara NSW, which is a property she has owned for thirty-four years. She estimates the value of that property to be $240,000. The property is unencumbered. The house is 70 to 80 years-old and in need of repair. Since owning the property, the only improvements to the property that she has carried out are to install a new stove, costing approximately $1,500, and to fit a new roof, costing approximately $8,000. Judith met these expenses in order to assist Valda.

In order to bring the Terara house up to an acceptable standard, Valda believes she would need to invest at least $50,000 including renovating the kitchen, painting the house and fixing or replacing the floors.

She owns a car which is about 10 years-old and worth approximately $5,000. She has a small number of NRMA shares and a minimal amount of superannuation.

Despite what appears to be a fairly weak financial position, and despite the fact that she had not received any distribution from the estate, Valda acknowledged that she did not know when she might receive her inheritance from the deceased's estate; that this would depend on how long Kenneth continued to work using the Princes Highway property; that she accepted she might not receive any distribution for about 28 years; and that she "was content for the moment". She did not believe that, realistically, she would have to wait that long. The basis for this belief was that there had been general discussions between the Defendants.

Judith is retired, as is her husband, Norman Keith Wellington. They are self-funded retirees. They live in a cottage at Station Street Nowra, which she said is valued at about $240,000. It is unencumbered. The last renovations were done on the cottage some 30 years ago and it is in need of urgent repair. Her husband is in poor health and she cares for him. I have earlier mentioned her evidence regarding having cash of $250,000.

Judith, too, was prepared to wait to receive any part of her inheritance from the deceased's estate. She had left it all up to Kenneth and she said also that she had no immediate desire to receive any part of that inheritance.

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

There is no evidence that John is cohabiting with any person. In fact, John says that he does not receive any financial support from, or provide financial support to, anyone.

I formed the impression that it was unlikely that John would cohabit with anyone in the future. He acknowledges that he is someone who enjoys his own company.

(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

John gives no evidence of any physical, intellectual, or mental disability, other than age-related aches and pains. He says that he is capable of, and does, perform manual labour. He lost two fingers on his left hand whilst working with his father. He wears glasses. He does not take any particular medication.

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

John was born in 1949 and is now aged 62 years.

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

John does not assert any financial contributions to the acquisition of the estate of the deceased. However, the evidence reveals that he did work with his father, for about 17 years, in the sawmilling and timber contracting business (between about 1964 and 1981).

He sets out the work that he has done on the Princes Highway property. He was not cross-examined on that work, although it is the subject of dispute in the affidavits.

I have earlier referred to the assistance provided by John to the welfare of the deceased. In addition, it must have been of some comfort to her to know that he was there, if she required him to assist her.

John says that he paid the deceased "always $100 per fortnight". In cross-examination, he said that the amount paid, varied, although usually it was about $100 per fortnight. Sometimes, it was more. In addition, he bought groceries. He said that the deceased told him that he did not have to pay for any utilities, such as electricity or the telephone.

It must be remembered that, otherwise, he received, rent and occupation fee free, accommodation for the period that he provided assistance to the deceased from 2003.

I have also noted that Kenneth confirms that no occupation fee will be sought from him for his occupation of the residence on the Princes Highway property since the death of the deceased (over two years). This means additional provision is received out of the estate of the deceased.

(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

I have referred to the provision made for John in the Will of the deceased.

John lived with the deceased from about 2003 until the date of her death. He still lives in the home constructed on the Princes Highway property. The home is an approximately 30-year-old brick veneer residence with a tile roof. It consists of three bedrooms, walk in robe, study, sewing room, kitchen, walk-in pantry, lounge, dining, bath/shower, vanity, toilet, parent's retreat, family area, shower and toilet, double garage, covered front tiled patio, and timber and lattice enclosed covered rear area.

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

The only other Will in evidence that was executed by the deceased was one made by her on 24 October 2003. Relevantly, that Will provided, for John, as follows:

"...

5. Upon the death of KENNETH NORMAN GOODSELL or when he or the said entities cease to operate the business on the property then I GIVE the property to be divided as follows:

...

f) To hold a one sixth share in trust for my son JOHN GORDON GOODSELL during his lifetime and I DIRECT my executors to use so much of the income and capital on that share as they, in their absolute discretion think fit from time to time for his benefit with the balance (if any) in the fund as at the date of his death to be equally divided amongst such of his natural children as survive him and attain the age of eighteen (18) years.

...

8. I give the remainder of my estate to my executors upon trust to divide equally among such of my children JUDY ANN WELLINGTON, DONALD OWEN GOODSELL, ROBYN JANETTE WRIGHT, VALDA LORRAINE GOODSELL, KENNETH NORMAN GOODSELL and JOHN GORDON GOODSELL as survive me."

It can be seen that there is a difference between the two Wills, at least so far as the provision made for John is concerned. In both, however, it is clear that the deceased made provision for John's "benefit".

There is also a letter, dated 9 January 2008, in the handwriting of the deceased, in the following terms:

"To my Children

I'm writing this note for my children so they are aware of the financial burden that I inherited after their father passed on 1 st August 2003.

My Son Ken works 7 days a week & long hours and with the financial help of my Daughter and Son in law "Judy & Keith" they have paid accounts & money for machinery and a truck to keep JL Goodsell Timbers afloat also maintained my home, paid medical & other expenses this is a large sum of money and ongoing situation.

If Judy & Keith pass on before money is repaid, Ken's Grand Children Haydon Goodsell Mather & Sienna Goodsell Muldoon will inherit the money at Judy & Keith's Request.

If Ken is financial (sic) to repay my Children, equally share the debt, as I have stated in My Will.

I expect my wishes to be Honoured by all of my Children."

There is other evidence relating to the deceased's desire to ensure that Kenneth was able to continue the operation of the business if he chose to do so.

(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

The deceased was not maintaining John prior to her death, other than by providing him with accommodation.

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

Apart from the Commonwealth government's responsibility to continue to provide John with a Newstart allowance, there is no other person with a liability to support him. Accordingly, the only candidates with a liability, currently, to support him, are the state or the estate.

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

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

There was a significant amount of evidence going to John's conduct. However, the conduct involved one, or other, of his siblings, rather than the deceased. In particular, it was accepted by Judith that they "had issues" between them.

Bearing in mind the terms of the deceased's earlier Will and the way in which it was changed in her Will the subject of Probate, I am satisfied that there is no relevant conduct that would adversely affect John's entitlement to provision out of the deceased's estate.

The relevance of John's conduct complained about by one, or other, of his siblings is relevant because it is clear that, so far as is possible, they should not be bound together financially and the sooner that John can achieve his independence, away from the Princes Highway property, the better it will be for them all.

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

Judith was criticised for her conduct following the death of the deceased when she attended the residence to carry out some cleaning. I do not think it necessary to elucidate the allegation and counter-allegation about this incident. It is a petty one and does not assist in the determination of the issues to be decided.

There is, however, one aspect of the conduct of Judith, Kenneth and Valda that is worthy of comment. I have identified the circumstances surrounding the creation of the Cadodeb lease, which has clearly reduced the value of the deceased's actual estate. The fact that Judith and Valda did not have any concern, and Kenneth did not consider, that the deceased might die whilst she was in hospital, highlights the fact that there was really no urgency to have the lease signed. Their actions have clearly affected all of the beneficiaries.

Overall, other than in respect of the Cadodeb lease, I am of the view that the issue of conduct in the present case by one, or other, of the parties, vis-a-vis each other, has been given a significance in the evidence beyond that which it reasonably bears.

(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

I have, of course, taken into account all of the evidence read in the case, including but not limited to what has been expressly stated in these reasons for judgment.

One matter that is of importance is that John's religious beliefs prompt him to make tithes and offerings to the Church. He stated that he would pay tithes of 10 per cent of any provision made for him if by way of lump sum as well as what he described as "offerings", although he had not really thought about what amount he would make by way of "offerings". He stated "You can give whatever offering you like ... Whatever is on your heart to give". (To date, he has made "offerings", which equate to an additional 10 per cent of his fortnightly income.)

In relation to his desire to make tithes and offerings, I am of the view that how he spends any lump sum provision is a matter for John. I note that in Bondy v Vavros (NSWSC, 29 August 1988, unreported) Young J (as his Honour then was) said:

"... in one sense it does not matter if I form the view that the plaintiff is a spendthrift. If a person is entitled to an order what they do with the money that they receive is their business and it is none of my affair if I very much fear that the money will be wasted on wine women and song in a short period of time."

In Howarth v Reed (NSWSC, 15 April 1991, unreported) Powell J referred to the possibility of a provision not being applied by the person for the purposes intended by the Court. His Honour said at 43:

"While, as will be apparent from what I have earlier written, I am deeply concerned at what I regard as the totally unrealistic approach to the management of their affairs adopted by Mr and Mrs Howarth, which approach, if persisted in, will almost inevitably lead to the benefit of any Order which might be made in Mrs Howarth's favour being dissipated in short order, it seems to me that, while that is a matter which may bear on the form of Order to be made, it is not a matter which ought, without more, to be regarded as disqualifying Mrs Howarth from receiving the benefit of any Order to which she might otherwise be entitled. Nor is this a novel view, for a similar approach is reflected in the following passage in the judgment of Young J in Bondy v Vavros ..."

In Hampson v Hampson [2010] NSWCA 359, it was said (in relation to marijuana use by the applicant):

"A tendency on the part of an applicant to waste money on items that are either of no use or are positively damaging to himself can enter into what is adequate provision for proper maintenance of that applicant."

The facts of the present case are nothing like any of the cases to which I have referred. John's religious beliefs, and his desire to comply with the tenets of his faith, do not reveal conduct damaging to John. His intention will be relevant only to the extent that I am aware that he will have less of the provision made for him remaining if he does make such donations. If he chooses to, and, thereby, does deprive himself of something on which the amount of the donation could be spent, that is a matter entirely for him.

Determination

John, as a child of the deceased, is 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 his proceedings were commenced within the time prescribed by the Act.

In these circumstances, the first question for determination is whether, at the time when the court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made, has not been made, by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both.

Counsel for Kenneth, Judith and Valda, in written submissions, accepted that "some alternative provision should be made ...".

In light of the practical considerations that arise in this case, and despite the terms of the deceased's Will, it was accepted that John's financial and material circumstances were such that the court could find that inadequate provision had been made for him.

I am satisfied that, in the circumstances of the case, as at the date of hearing, adequate provision for the proper maintenance or advancement in life of John has not been made. The terms of the deceased's Will, taken with the grant of the lease to Cadodeb, result in the practical possibility that he will not receive any provision out of the estate in the immediate future, if at all. Much will depend upon Kenneth and Cadodeb. John's financial circumstances make it otherwise apt to come to this conclusion.

Then, I must consider whether an order should be made, and if so, the nature of that order. I am of the view that an order should be made. He states "a cash legacy should be substituted for his contingent interest ... on the proviso that he vacates the house forthwith".

Kenneth, Judith and Valda submit that "a cash legacy should be substituted for his contingent interest ... on the proviso that he vacates the house forthwith". It is submitted that the quantum of the legacy should be limited to what is required for his proper maintenance as no claim is made for education and "on his own evidence he has no desire or plans that could amount to advancing his situation in life". They say that he should receive an amount only sufficient to provide him with "the equivalent material circumstances that he was quite happy to accept whilst she was alive".

Ultimately, they submit that he should receive provision that allows him to purchase a one-bedroom apartment in, or near, a major town with similar facilities and services as provided by Nowra. He should also receive a sufficient amount to enable him to purchase a reasonable quality second hand vehicle.

I do not accept the proposition that, because an applicant has lived in spartan conditions during the lifetime of the deceased, he, or she, must continue to do so, if those conditions can be alleviated, or at least improved, by provision out of the deceased's estate. John's evidence was consistent with wanting to better his financial position and no longer live the way that he has been. In this way, he seeks advancement in life.

Yet, I do not consider that John should receive provision that enables him to purchase a 3-bedroom home in Coffs Harbour, of the type the subject of his evidence. (That, perhaps, in the future, he may have friends or acquaintances, whom he may wish to stay over, does not mean that there is a need for such accommodation.) Not only did he provide no basis for requiring a 3-bedroom home, he did not describe any affinity with Coffs Harbour, or provide any particular reasons why he would wish to live there, other than that it had a warm climate.

Furthermore, I do not consider that the size of the estate and/or the obligation owed to him by the deceased warrants the making of the provision of a fund large enough to provide the purchase price of a three bedroom home.

As to the other "needs" that he professed he had, they included for example, an amount to enable him to purchase a 54 inch plasma television, a surround sound system, and a blu-ray disc player. When questioned on these "needs", he admitted that he watched television between 4:00 a.m. and 6:00 a.m. each day, and did not really know what a surround sound system was, or what a blu-ray player was. His only explanation for seeking a bed he described as "top of the line" (for $4,100) was because he wanted one.

In coming to my conclusion on what is adequate and proper, I must be careful that the provision I order to be made does not leave John potentially worse off than he is under the deceased's Will. The possibility that was advanced was that the Cadodeb lease might be surrendered after the case was concluded, with the result that a much larger estate than exists with the lease on foot would be available for distribution to the remaining beneficiaries.

I raised with counsel, during submissions, the possibility of provision which could be made by way of an interest-free advance, in a sum which would satisfy John's immediate needs, which advance would be effectively repaid when the Princes Highway property was sold, in whole, or in part. If sold in part, the amount payable to John, as his one-sixth share of the net proceeds of sale of the part sold, could be set-off against what he had received by way of interest-free advance.

If the total amount of his one-sixth share on sale of the part of the Princes Highway property were less than he had received, he would receive no part of that share, but the amount to be deducted from his share, when the balance of the land was sold, would be reduced. When the balance of the Princes Highway property was sold, his one-sixth share of the proceeds would be used, first to notionally repay the balance of the advance already made, with the remainder of his share of the net proceeds then paid to him. If the total of his share of the net proceeds of sale of all of the Princes Highway property was insufficient to repay the advance that had been made pursuant to the order for provision, then the balance of the advance would not be repayable by John, but would be treated as part of the family provision order.

After obtaining instructions, I was informed that John was "open-minded", and that Kenneth, Judith and Valda, were "comfortable", with this form of provision. The dispute, then, was as to the amount required by way of advance to satisfy the immediate needs.

Even without the "approval" of the parties as to the form of provision that should be made, I have come to the view that provision of this type is adequate and proper. It has the principal advantage of disturbing the deceased's Will as little as possible, whilst, at the same time, enabling some immediate provision to be made for John. In this regard, s 65(2)(f) provides that a family provision order may require the provision to be made in any manner the court thinks fit.

I am of the view that an amount of $200,000 should be made available for John as an interest-free advance on his share of the deceased's estate. However, the bulk of the amount need only be paid to him simultaneously with him vacating the residence he presently occupies on the Princes Highway land. An amount of say $20,000 (of $200,000) should be made available to John within 14 days of the making of orders so that he can purchase a vehicle into which he can load his belongings.

John's solicitors should be informed of when the balance of the advance will be made. He should vacate the residence on the Princes Highway property no later than 28 days after his solicitors are informed, in writing, that the balance of the advance is available to be paid. His solicitors should inform the Defendants' solicitors when he is to vacate within that 28 day period.

The parties can then determine how, precisely, the payment of the balance of $180,000 will be made, whilst at the same time ensuring that payment is made no earlier than when John vacates the Princes Highway property.

The provision, by way of the advance, will enable John to move from Nowra, since he wishes to do so and to find alternative accommodation in which he can live, with the possibility that when the Princes Highway property is sold, he may be able to purchase alternative accommodation, or provide for himself more of the luxuries of life. The amount, if not used to pay for accommodation, if invested wisely, should provide him with additional income to supplement his Newstart Allowance, which may enable him to rent accommodation. These will be matters entirely for John.

Of course, it will be for John to advise the Defendants of his whereabouts after he has left, so that the Defendants can account to him when the whole, or part, of the Princes Highway property is sold. It would be advantageous if this could be done through his solicitors, but again, this will be a matter entirely for John. He should inform the Defendants in writing of his whereabouts at least once every 12 months, so that if there is any amount payable to him, it can be sent to him promptly.

The Defendants should inform him, in writing, at least once every 12 months, at the address last identified by him, of the position of the estate, even if it is simply to tell him that Cadodeb continues to occupy the Princes Highway property and that no part of that property has been sold. If any part of the Princes Highway property is sold, they should advise him, in writing, of the amount to which he is entitled, or which has been taken into account bearing in mind the advance made. Naturally, any amount to which he is entitled should be paid.

The nature of the provision that I order has the added advantage of not requiring the sale of the Princes Highway property with the lease on foot, and, therefore, at a lesser price, with the result that the other beneficiaries, also, are likely to receive provision out of the estate of the deceased that they might not receive if an order were made for the sale of the property with the lease in existence.

There was a suggestion that part of the Princes Highway land would be sold, with the effect that each of the beneficiaries might receive something within a reasonable period. If this occurs, at least part of the amount to be advanced to John might be able to be repaid immediately from his share of the proceeds of sale.

Unless any party wishes to argue to the contrary, the usual order in respect of each party's costs should be made.

In light of the parties' request, I shall publish my reasons and require them to prepare short minutes that reflect my decision. The matter will be listed on a date convenient to counsel, but in the event that short minutes are agreed, and if I receive them in sufficient time, I shall vacate that date and make orders in Chambers. I shall leave it to the parties, if they can, to determine the precise form of orders.

If the parties are unable to reach agreement on any matter necessary to give effect to these reasons, I shall hear further short submissions on any aspect in dispute.

The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules (2005) and the Court Books may be returned.

An order reserving further consideration should be included.

The parties are to bring in short minutes of order within 14 days, or such other time as is arranged by contacting my Associate.

**********

Decision last updated: 04 November 2011

Medium Neutral Citation:	Goodsell v Wellington & Ors [2011] NSWSC 1232
Hearing dates:	17, 18, 19 October 2011
Decision date:	04 November 2011
Jurisdiction:	Equity Division
Before:	Hallen AsJ
Decision:	Having found that the Plaintiff is an eligible person and that the provision made for him in the Will of the deceased is inadequate, order that the Plaintiff receive, by way of provision, an interest-free advance on his share of the deceased's estate, of $200,000. The lump sum is to be repaid to the estate, in whole or in part, from the Plaintiff's share of the deceased's estate when the Princes Highway property is sold, in whole or in part. If the total of the Plaintiff's share of the deceased's estate, when ultimately realized, is insufficient to repay the whole of the amount of the advance, then he is not required to repay the balance remaining, which balance shall constitute part of the family provision order by way of absolute entitlement. The Defendants should be allowed an opportunity to decide the manner in which they will satisfy the payment of the advance, and, therefore, which part of the estate is to bear the burden of the order. Part of the advance ($20,000) should be paid within 14 days of the delivery of reasons, and the balance within 28 days of the making of orders reflecting the reasons, or within such other time as the parties agree, failing which, interest on any amount not so paid, should be paid, such interest to be calculated at the rate prescribed on unpaid legacies by the Probate & Administration Act 1898, from that date until the date of payment. The Plaintiff should vacate possession of the Princes Highway property simultaneously with the receipt of the balance ($180,000) of the amount the subject of the advance. If the parties are unable to reach agreement on the way in which the lump sum is to be paid, I shall hear further short submissions on which property should be designated as notional estate, and any consequential orders. Subject to any argument about costs, I would propose to make the usual order for costs. The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules and the Court Books may be returned. The parties are to bring in short minutes. The proceedings are adjourned to a date to be fixed.
Catchwords:	The Plaintiff, an adult child of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - Defendants named in the Summons are also adult children of the deceased - The lessee of land owned by the deceased at the date of her death joined as party Defendant - Whether provision made in Will of deceased inadequate and if so, whether order in favour of the Plaintiff should be made
Legislation Cited:	Civil Procedure Act 2005 Family Provision Act 1982 Powers of Attorney Act 2003 Probate & Administration Act 1898 Property (Relationships) Act 1984 Succession Act 2006 Succession Amendment (Family Provision) Act 2008 Uniform Civil Procedure Rules 2005
Cases Cited:	Allardice, In re; Allardice v Allardice (1909) 29 NZLR 959 Blore v Lang (1960) 104 CLR 124 Bondelmonte v Blanckensee [1989] WAR 305 Bondy v Vavros (NSWSC, 29 August 1988, unreported) Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Carey v Robson & Anor; Nicholls v Robson & Anor [2009] NSWSC 1142 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 Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639 Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89 ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193 Fiorentini v O'Neill [1998] NSWCA 79 Foley v Ellis [2008] NSWCA 288 Fung v Ye [2007] NSWCA 115 Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Hampson v Hampson [2010] NSWCA 359 Hastings v Hastings [2010] NSWCA 197 Hawkins v Prestage (1989) 1 WAR 37 Hoobin v Hoobin [2004] NSWSC 705 Howarth v Reed (NSWSC 15 April 1991, unreported) Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 Kay v Archbold [2008] NSWSC 254 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Lloyd-Williams v Mayfield [2005] NSWCA 189 McCosker v McCosker (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Maio v Sacco [2009] NSWSC 413 Mayfield v Lloyd-Williams [2004] NSWSC 419 Permanent Trustee Company Ltd v Fraser (1995) 36 NSWLR 24 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100 Sangster v Sangster as executor of the estate of the late Christobel Mary Sangster [2009] NSWSC 695 Shearer v The Public Trustee (NSWSC, 23 March, 1998, unreported) Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Taylor v Farrugia [2009] NSWSC 801 Vasiljev v Public Trustee [1974] 2 NSWLR 497 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported)
Category:	Principal judgment
Parties:	John Gordon Goodsell (Plaintiff) Judith Ann Wellington (first Defendant) Kenneth Norman Goodsell (second Defendant) Valda Lorraine Goodsell (third Defendant) Cadodeb Pty Ltd (fourth Defendant)
Representation:	Counsel: Mr M Gorrick (Plaintiff) Mr T Rickard (Defendants) Solicitors: RMB Lawyers with Kearns & Garside (Plaintiff) Marriott Oliver Solicitors (Defendants)
File Number(s):	2010/277155

(a)	Money in Bendigo Bank:	$ 209
(b)	Interest in sale of IAG Shares:	$ 5,158
(c)	Station Street, Nowra Property:	$ 230,000
(d)	Princes Highway, South Nowra:	$ 900,000
(e)	Cash in hand:	$ 32,740
(f)	2x shares in Cadodeb P/L:	$ 0
(g)	2x shares in Lasoturn P/L:	$ 0
(h)	Car:	$ 4,300
Total:	$1,172,407

(a)	Cost of a home:	$313,667
(b)	Legal fees for purchase of a property:	$ 1,500
(c)	Stamp duty:	$ 10,115
(d)	Motor Vehicle:	$ 20,730
(e)	Furniture and fittings:	$ 20,000
(f)	Contingencies:	$ 50,000
Total:	$416,012