Gray v Mather

[2016] NSWSC 699

Supreme Court

New South Wales

Medium Neutral Citation:	Gray v Mather [2016] NSWSC 699
Hearing dates:	16, 17 May 2016
Date of orders:	02 June 2016
Decision date:	02 June 2016
Jurisdiction:	Equity
Before:	Hallen J
Decision:	Stands the proceedings over for any argument as to costs and for the making of orders in favour of the Plaintiff, which reflect the reasons for judgment and to enable the Defendant to precisely identify the bank account holding the amount sufficient to satisfy the order for provision to be made in favour of the Plaintiff, any interest thereon, and any costs ordered to be paid out of the notional estate
Catchwords:	SUCCESSION – FAMILY PROVISION – Claim for family provision order under Part 3.2 of the Succession Act 2006 (NSW) – The Defendant, the executor of the Will of the deceased and the person with whom the deceased person was living in a de facto relationship at the time of his death – Probate granted – Defendant the sole beneficiary named in Will – Actual estate consisting of small amount of cash – Notional estate said to be deceased’s interest as joint tenant in real estate and in joint bank accounts held with Defendant – Jointly held property transmitted to the Defendant – Order sought designating deceased’s interest in jointly held property as notional estate – Whether adequate and proper provision not made in Will of the deceased for the Plaintiff – Whether order designating property as notional estate should be made – Nature and quantum of provision, if any, that ought to be made for the Plaintiff.
Legislation Cited:	Family Provision Act 1982 (NSW) Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW)
Cases Cited:	Akkerman v Ewins [1999] NSWCA 386 Andrew v Andrew [2012] NSWCA 308; 81 NSWLR 656 Boettcher v Driscoll [2014] SASC 86; (2014) 119 SASR 523 Bondelmonte v Blanckensee [1989] WAR 305 Bosch v Perpetual Trustee Co Ltd [1983] AC 463 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Butcher v Craig [2009] WASC 164 Chandler v Coulson [2015] NSWSC 172 Chapple v Wilcox [2014] NSWCA 392; 87 NSWLR 646 Christie v Manera [2006] WASC 287 Collicoat v McMillan [1999] 3 VR 803 Cross v Wasson [2009] NSWSC 378 Crossman v Riedel [2004] ACTSC 127 de Angelis v de Angelis [2003] VSC 432 at [45] Edgar v Public Trustee for the Northern Territory [2011] NTSC 5 Flathaug v Weaver [2003] NZFLR 730 Foley v Ellis [2008] NSWCA 288 Goodman v Windeyer [1980] HCA 31; 144 CLR 490 at 498, 505 Goodsell v Wellington [2011] NSWSC 1232 Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison [1997] 2 VR 359 Hawkins v Prestage (1989) 1 WAR 37 Henry v Hancock [2016] NSWSC 71 Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 Hyland v Burbidge [2000] NSWSC 12 In re Allardice; Allardice v Allardice (1910) 29 NZLR 959 In re Allen (Deceased); Allen v Manchester [1922] NZLR 218 Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 MacGregor v MacGregor [2003] WASC 169 Marks v Marks [2003] WASCA 297 Marshall v Carruthers [2002] NSWCA 47 Mayfield v Lloyd-Williams [2004] NSWSC 419 McCosker v McCosker [1957] HCA 82, (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Morier v Liem [2016] NSWSC 582 Phillips v James [2014] NSWCA 4; 85 NSWLR 619 Pogorelic v Banovich [2007] WASC 45 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308 Re Buckland, Deceased [1966] VR 404 Salmon v Osmond [2015] NSWCA 42 Sellers v Scrivenger & Anor [2010] VSC 320 Singer v Berghouse [1994] HCA 40; 181 CLR 201 Smith v Johnson [2015] NSWCA 297 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Sung v Malaxos [2015] NSWSC 186 Taylor v Farrugia [2009] NSWSC 801 Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 Underwood v Gaudron [2015] NSWCA 269 Verzar v Verzar [2012] NSWSC 1380 Verzar v Verzar [2014] NSWCA 45 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Vincent v Lewis [2006] NZFLR 812 White v Barron [1980] HCA 14; 144 CLR 431 Wilcox v Wilcox [2012] NSWSC 1138
Category:	Principal judgment
Parties:	Peter Gray (Plaintiff) Suzanne Joy Mather (Defendant)
Representation:	Counsel: Mr PW Bates (Plaintiff) Mr D Jenkins (Defendant)   Solicitors: Gerard Malouf, Gerard Malouf & Partners (Plaintiff) Hugh Edward McDonald, Davis Faulkner & Co (Defendant)
File Number(s):	2015/84343

Judgment

1. HIS HONOUR: Robert Milton Gray (“the deceased”) died, aged 81 years, on 5 April 2014, leaving surviving him Suzanne Joy Mather (“the Defendant”), the person with whom he was living in a de facto relationship at the time of his death, and Peter Gray (“the Plaintiff”), who is his son by a prior marriage.

2. The Plaintiff makes a claim for a family provision order, under Part 3.2 of the Succession Act 2006 (NSW) (“the Act”), out of the estate and notional estate of the deceased. The Act applies in respect of the estate and notional estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (“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 of the Act, 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.

3. The Plaintiff commenced proceedings by Summons filed on 20 March 2015. It is not in dispute that the proceedings were commenced within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased). The Plaintiff seeks provision because no provision was made for him in the Will of the deceased. He also seeks an order that his costs of the proceedings be paid out of the notional estate of the deceased.

4. At the hearing, without objection, the Plaintiff sought, and was granted, leave to file an amended Summons, in which he corrected some typographical errors in the Summons and also identified the property that he sought to be designated as notional estate, it being agreed by the parties that there is no longer any available actual estate of the deceased out of which an order could be made.

5. It is also not in dispute that, as a child of the deceased, the Plaintiff is an eligible person within the meaning of that term in s 57(1)(c) of the Act.

Factual Background

6. I am satisfied that the following facts have been established, and that they provide a useful background. In relation to any disputed matters to which I refer, the following facts should be regarded as the findings of the Court.

7. The deceased was married to Robyn Jeanette McIntyre in February 1961. They separated in about 1980. A decree nisi of the dissolution of their marriage was dated 30 November 1982. They settled all of their financial and other matters in dispute between them by Deed made on 29 May 1983.

8. There were two children of their marriage, the Plaintiff, who was born in March 1962, and Stephen Robert Gray, who was born in March 1964, but who died in December 1983.

9. The deceased left a Will dated 10 September 2010. In that Will, probate of which was granted to the Defendant (the Plaintiff having renounced his joint executorship with her) on 30 July 2015, the deceased left the whole of his estate to her. In the event that she did not survive the deceased for the period of 30 days, the deceased directed the payment of all his debts, funeral and testamentary expenses, made a gift of his personal belongings to the Plaintiff, gave a legacy of $100,000 to each of two named legatees (two grandchildren), and left one half of the balance to the Plaintiff, and one quarter to each of the two children of the Defendant.

10. There is nothing in the Will to explain the deceased’s reasons for omitting the Plaintiff from his testamentary bounty by way of primary, as opposed to substitutionary, gift. However, the Plaintiff gave evidence that the deceased told him that the Defendant “would have to be looked after, left comfortable… secure in her home” and that from this conversation, the Plaintiff “assumed” that the deceased wanted her “to be left with sufficient money to meet all her expenses and needs” and “to be comfortable in her life”: T28.43 – T29.11.

11. In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased's estate, solely owned at the date of death, was disclosed as having an estimated, or known, value of $11,383, and property owned jointly with the Defendant as being $1,140,381. The solely owned property was shares in a public company ($5,383) and a car ($6,000). The property jointly owned with the Defendant included moneys held on two term deposits ($458,105 and $212,427), moneys in two cheque accounts ($39,128 and $1,719), real estate at Yass (“the Yass property”) ($390,000) and a caravan ($39,000). (I have made no reference to cents in the above estimates.)

12. There were no liabilities of the deceased identified in the Inventory of Property. However, the Defendant paid $9,013 on account of testamentary and other expenses on behalf of the estate.

13. Following the deceased's death, the Defendant sold the caravan for $39,000 and deposited the proceeds into one of the bank accounts.

14. All of the property owned solely by the deceased, or owned jointly with the Defendant, has been transferred or transmitted to the Defendant. It is not clear when she transferred, or transmitted, the property into her name. In an affidavit sworn on 8 April 2016, she states that she now holds the following property (not all of which was previously jointly owned with the deceased):

1. Real estate at Yass, which remains her home ($370,000 to $410,000);

2. Shares in public companies ($5,489 and $2,742);

3. A car ($6,000);

4. Two term deposits ($458,105 and $212,427);

5. Money in a “Retirement Account” ($26,647);

6. Money in a savings account ($5,034); and

7. Superannuation ($69,613).

15. At the hearing, the parties agreed that the jointly owned property, which passed to the Defendant by survivorship, has a gross estimated value of $1,092,213, being the real estate at Yass ($390,000), the two term deposits ($670,532) and the moneys in the Retirement Account and in the savings account ($31,681).

16. During submissions, the parties also agreed that an amount of $19,257 would be paid, as interest on the term deposits, in July 2016.

17. The Defendant does not dispute that one half of the money in the term deposits, and one half of any net proceeds of sale of the Yass property, could be designated as notional estate of the deceased, should it be necessary to do so in order to meet any order for provision and for costs that may be made in favour of the Plaintiff. (Of course, it must be remembered that s 89(2) of the Act provides that the Court must not designate as notional estate property that exceeds that necessary, in the Court’s opinion, to allow the provision that should be made for the Plaintiff, or, if the Court makes an order that costs be paid from the notional estate under section 99, to allow costs to be paid as ordered, or both.)

18. It follows, from the above estimates, that the net distributable value of the potential notional estate of the deceased, is about $546,107. (In this estimate, I have not added any part of the interest since it will not be paid until July 2016. However, it is to be remembered that the Defendant will then receive that amount.)

19. Nor does the estimate of gross value include the value of the shares owned by the deceased at the date of his death. It is not in dispute that whilst the Defendant retains the shares, she paid their value, at the date of death, to the Plaintiff (because she said that the deceased had asked her to do so). The amount that she paid was $9,900, which amount also included the reimbursement of some funeral expenses that he had paid. The estimate also does not include any part of an amount of $15,953, being the costs of an overseas holiday and insurance that the Defendant expended prior to the hearing.

20. Subject to submissions that may be made on the question of costs, usually, in calculating the value of the deceased’s estate and notional estate finally available for distribution, the costs of the present proceedings should be considered with circumspection, since the Plaintiff, if successful, normally will be entitled to an order that his costs, calculated on the ordinary basis, be paid out of the estate of the deceased, whilst the Defendant, as the administrator, irrespective of the outcome of the proceedings, normally, will be entitled to an order that her costs, calculated on the indemnity basis, be paid out of the estate.

21. The Plaintiff’s solicitor with the conduct of the matter, Ms R Nelsen, deposed, in an affidavit sworn on 2 May 2016, and a further affidavit of 13 May 2016, that the Plaintiff’s costs and disbursements of the present proceedings, including counsel’s fees, calculated on the ordinary basis, are $73,615, inclusive of GST (upon the basis of a two day hearing).

22. Mr H E McDonald, solicitor, in an affidavit sworn on 8 April 2016, estimated the Defendant’s costs and disbursements of the present proceedings, including counsel’s fees, calculated on the indemnity basis (upon the basis of a two day hearing), to be about $60,914, inclusive of GST. The Defendant has paid $32,614 out of the jointly held bank accounts, on account of these costs and disbursements, leaving an estimated amount of $28,300 left to be paid.

23. That over $130,000 has been incurred in legal costs in this estate and notional estate, with a relatively modest value (nearly 24 per cent of the total value of the property that forms part of the estate or notional estate of the deceased), and in circumstances where there are not many issues of fact, or law, in dispute, perhaps, demonstrates the high level of emotion and the intense antipathy that exist between the parties.

24. The parties are agreed that if the estimates prove accurate and if an order is made for all of the costs to be paid out of the estate, the total value of the notional estate from which a family provision order could be made is $444,192.

25. Both counsel requested that any determination of how costs should be paid await the determination of the proceedings as one party, or both parties, may wish to tender some evidence on that issue. I shall provide the reasons for judgment and, if necessary, shall stand any argument on costs to a mutually convenient time.

26. The persons described as eligible persons, within the meaning of the Act, are each of the parties in the proceedings and the deceased’s former wife, Robyn Templeman.

27. The Defendant gave evidence that notice of the Plaintiff’s application, and of the Court’s power to disregard her interests, has been served on Ms Templeman, in the manner and form prescribed by the regulations or rules of court: s 61 of the Act.

28. In a letter dated 7 August 2015, a copy of which is Ex. 1, Ms Templeman informed the Defendant’s solicitors that she did “not intend making a claim against the estate of my former husband... But I support our son, Peter Robert Gray, in his family provision claim”. Otherwise, Ms Templeman did not play any part in the proceedings and did not give evidence.

Other Facts   

29. A number of additional facts, the subject of evidence, should be identified. Once again, these facts should be regarded as the findings of the Court to the extent that any are the subject of dispute between the parties.

30. The Defendant was born in January 1951 and is now aged 65 years.

31. She has two children from a former relationship, namely Darren, who was born in October 1969, and Bevan, who was born in September 1970. (They, with the Plaintiff, are the substitutionary residuary beneficiaries named in the Will of the deceased.)

32. In 1981, the Defendant started working for the deceased and about 1 year later, they commenced a relationship. It was not until 1988, that she and the deceased commenced to live together. (The parties are agreed that it does not matter whether a de facto relationship commenced before, or in, 1988, since the relationship between the deceased and the Defendant, on any view, would be regarded as a long standing one, which the deceased, by the terms of his Will, appears to have acknowledged.)

33. There were no children of the relationship of the deceased and the Defendant.

34. The Defendant made a Will on 27 July 1996, a copy of part of which is Ex. A, in which she appointed the deceased and her son, Bevan, to be the executors. The Will then, relevantly, provided:

2. IN THE EVENT that I should inherit any assets from MILTON ROBERT GRAY I dispose of those assets as follows:-

(a) Any real estate or the net proceeds of sale thereof to PETER ROBERT GRAY

(b) The contents of any house or unit to BEVAN CRAIG MATHER;

(c) The sum of FIFTY THOUSAND DOLLARS ($50,000.00) to BEVAN CRAIG MATHER.

3. I GIVE AND BEQUEATH my personal possessions, together with the contents of any hosue in which I may reside to MILTON ROBERT GRAY.

4. I GIVE DEVISE AND BEQUEATH my stamp and coin collection together with the rest and residue of my estate to BEVAN CRAIG MATHER subject to the payment of all my just debts, funeral and testamentary expenses.

35. There is also in evidence (Ex. B) a copy of a Will made by the Defendant on 10 September 2010, which is a mirror Will to the deceased’s last Will made on the same date.

36. There is no evidence of any other Will of the deceased.

37. It is acknowledged that there were some difficulties in the relationship between the deceased and the Defendant. However, as submitted, any disagreements or difficulties in their relationship do not appear to fall outside those that may be usually expected, or experienced, in any relationship of such duration. In this regard, it cannot be forgotten that the Defendant is the sole chosen object of the deceased’s testamentary bounty.

38. The Defendant did not suggest that there was any conduct by the Plaintiff that might reduce the provision to be made for him in the event that adequate provision is found to not have been made by the Will of the deceased (the operation of the intestacy rules in relation to the estate of the deceased being irrelevant).

39. The Plaintiff gave evidence, about which he was not cross-examined, of the building up of the deceased’s estate, prior to his relationship with the Defendant. He said that in 1982, when his parents separated, his mother agreed that the deceased was to retain “the bulk of the assets so that they could be distributed to my brother and I when we were older”.

40. The Defendant accepted that the initial capital contribution towards the purchase of the first parcel of real estate bought by the deceased, which led to the overall increase of capital held at the date of his death, was made solely by the deceased.

The Statutory Scheme – The Act

41. Next, I shall briefly discuss the statutory scheme that is relevant to the facts of the present case. I have collected the principles that are generally applicable in many other cases in similar, if not identical, terms. Because there is really no dispute about the principles that apply, it is not necessary to repeat all of the principles.

42. As stated, there is no dispute that the Plaintiff is an eligible person or that he commenced his proceedings within the time prescribed by the Act. Accordingly, the first issue is whether adequate provision for the proper maintenance or advancement in life of the Plaintiff has not been made, relevantly, by the operation of the Will (the operation of the intestacy rules being irrelevant (s 59(1)(c)).

43. It is this mandatory legislative imperative that drives the ultimate result and, it is only if the Court is satisfied of the inadequacy of provision that consideration is given to whether to make a family provision order (s 59(2)). Only then may "the Court… make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made".

41. Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an 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 made for the applicant in the Will of the deceased, on the one hand, and to the requirement for maintenance or advancement in life of the Plaintiff 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 or advancement in life of the Plaintiff.

42. In Grey v Harrison [1997] 2 VR 359 at 366-367, Callaway JA observed:

“There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight.”

46. The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment (Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 210-211; White v Barron [1980] HCA 14; 144 CLR 431 at 434-5; 443).

47. Under s 59(1)(c), the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the Court is considering the application.

48. During the course of the case, counsel for the Defendant conceded that adequate provision for the proper maintenance, or advancement in life, of the Plaintiff had not been made by the operation of the Will of deceased. It was an appropriate concession to make, in all the circumstances of the case. (It was not conceded that any provision should be made for the Plaintiff.)

49. Whether an applicant has a “need” or “needs” is also a relevant factor in the enquiry: see s 60(2)(d) of the Act. (As will be read, the Court may have regard to the matters set out in s 60(2) for the purpose of determining whether to make a family provision order and the nature of any such order.)

50. “Need” is an elusive, and an elastic, concept to define. The concept involves economic considerations.

51. “Need” has also been used in the context of a value judgment or conclusion, namely, that the applicant is “in need” of maintenance or advancement in life, because inadequate provision has been made for his or her proper maintenance, education and advancement in life: see Gorton v Parks (1989) 17 NSWLR 1 at 10-11 (Bryson J).

52. “Need”, of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45] (Dodds-Streeton J). It is different from “want” and does not simply mean “demand” or “desire”. The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 at [54]:

“‘Need’ is a more flexible word than it might first appear. ‘In need of’ plainly means more than merely ‘want’, but it falls far short of ‘cannot survive without’.”

53. In Boettcher v Driscoll [2014] SASC 86; (2014) 119 SASR 523, David J, at [41], added:

“‘Need’ is not so synonymous with ‘want’ such that the two are interchangeable.”

54. Under s 59(2) and s 60(1)(b) of the Act the Court determines what provision, if any, ought be made for the applicant out of the deceased’s estate or notional estate. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that this decision 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.

55. Section 60(2) of the Act provides:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

56. It can be seen that s 60(2) enumerates 15 specific matters, in addition to any other matter the Court considers relevant, described by Basten JA in Andrew v Andrew [2012] NSWCA 308; 81 NSWLR 656 at [37], as “a multifactorial list”, and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at and [123], as “a valuable prompt” to which the Court may have regard for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order. It has been suggested that the expanded list of criteria provides a “more focused direction to the court”: Phillips v James [2014] NSWCA 4; 85 NSWLR 619 at [51] (Beazley P, Meagher JA agreeing).

57. The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of such of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.

58. The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.

59. A reference to 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 any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).

60. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased’s death, or subsequently.

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

1. the person or persons for whom provision is to be made, and

2. the amount and nature of the provision, and

3. 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

4. any conditions, restrictions or limitations imposed by the Court.

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

63. Any family provision order under the Act takes effect, unless the Court otherwise orders, in the case if the deceased made a will, in a codicil to the will (s 72(1) of the Act).

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

65. Section 99(1) of the Act provides that the Court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the Court thinks fit.

Notional Estate

66. The notional estate provisions of the Act are dealt with in Part 3.3 of the Act. However, in s 3 of the Act, “notional estate” of a deceased person is defined as meaning “property designated by a notional estate order as notional estate of the deceased person”. “Notional estate order” means “an order made by the Court under Chapter 3 designating property specified in the order as notional estate of a deceased person”.

67. It has been said, in respect of the notional estate provisions in the former Act that an applicant for provision “may now apply in the same proceedings for orders for relief and designating property as ‘notional estate’ thereby compelling the ‘disponee’ of a ‘prescribed transaction’ to provide money or property for the purpose of making financial provision for the applicant”: Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422 at 441. The same principle applies in respect of a person to whom property has been distributed.

68. Section 63(3) of the Act provides that a family provision order may not be made in relation to property of the estate that has been distributed by the legal representative of the estate in compliance with the requirements of s 93, except as provided by subsection (5).

69. Section 63(5) provides that a family provision order may be made in relation to property that is not part of the estate of a deceased person, 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.

70. Importantly, the power to make a notional estate order does not arise unless the Court is satisfied that (a) the deceased person left no estate, or (b) the deceased person’s estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, or (c) provision should not be made wholly out of the deceased person’s estate because there are other persons entitled to apply for family provision orders or because there are special circumstances (s 88).

71. Section 79 of the Act, relevantly, deals with the designation of property where the estate of the deceased has been distributed. The section provides:

“The Court may, on application by an applicant for a family provision order or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person if the Court is satisfied that on, or as a result of, a distribution of the deceased person’s estate, property (whether or not the subject of the distribution) became held by a person (whether or not as trustee) or subject to a trust.”

72. The effect of a notional estate order is that a person’s rights are extinguished to the extent that they are affected by a notional estate order (s 84).

73. Because it was accepted that a notional estate order was necessary if the Plaintiff were to receive a family provision order, and an order for costs, it is unnecessary to refer to the other sections of the Act which go to the restrictions and protections relating to a notional estate order. It is apparent that the property to be designated should be such part of one, or both, of the amounts held on term deposit necessary to satisfy the order for provision and any costs order.

74. I shall leave it to the parties to frame the appropriate form of orders which permit the Defendant to determine the source of funds necessary to satisfy the order for provision and any costs that may subsequently be ordered to be paid.

Other Applicable Legal Principles – Substantive Application

75. Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges and I have repeated them in many cases under the Act.

76. Bryson J noted in Gorton v Parks at 6, that it is not appropriate to endeavour to achieve “an overall fair” disposition of the deceased’s estate. It is not part of the Court’s function to achieve some kind of equity between the various claimants. As Pembroke J has recently repeated in Sung v Malaxos [2015] NSWSC 186 at [5]:

“Fairness and equality are not touchstones for relief under the Succession Act.”

77. 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. “Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator’s decisions expressed in his will 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 at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63].

78. Of that freedom, in Grey v Harrison, Callaway JA said, at 366:

“[I]t is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator’s dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator’s bounty and give it to someone else. In conferring a discretion in the wide terms found in s 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent.”

79. In Vigolo v Bostin at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained:

“It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification.”

80. In Goodsell v Wellington [2011] NSWSC 1232 at [108], I noted that:

“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.”

81. As Pembroke J said in Wilcox v Wilcox [2012] NSWSC 1138 at [23]:

“The court does not simply ride roughshod over the testator’s intentions… The court’s power to make an award is limited. The purpose of the discretionary power under Section 59(1) is to redress circumstances where ‘adequate provision’ has not been made for the ‘proper maintenance, education or advancement in life’ of the claimant. The adjectives ‘adequate’ and ‘proper’ are words of circumspection.”

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

83. In Chapple v Wilcox [2014] NSWCA 392; 87 NSWLR 646 Basten JA, at [12], and Barrett JA, at [63]-[64], emphasised the central role played by “community standards” or “community expectations” in any decision whether to take the significant step of overriding the expressed wishes of the deceased.

84. In Henry v Hancock [2016] NSWSC 71 at [69], Brereton J wrote:

"Formerly, the yardstick which was applied was that of the wise and just testator. Nowadays, it is fashionable to couch it in terms of "community standards", although I am not at all sure that this is any different from the moral obligation of a wise and just testator and, as has not infrequently been pointed out, there is no ascertainable external community standard to guide the decision, which involves a broad evaluative judgment unconstrained by preconceptions and predispositions, and affording due respect to the judgment of a capable testator who appears to have duly considered the claims on his or her testamentary bounty - subject to the qualification that the court's determination is made having regard to the circumstances at the time of the hearing, rather than at the time of the testator's will or death."

85. In all cases under the Act, what is adequate and proper provision is necessarily fact specific.

86. 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 (1910) 29 NZLR 959 at 966. The use of the word “proper” requires consideration to be given to more than satisfying the basic needs of an applicant (cf Chandler v Coulson [2015] NSWSC 172 at [26] (Pembroke J)).

85. The standard of living of an applicant during the lifetime of the deceased is relevant, but the fact that he, or she, has lived frugally, or that he, or she, has become accustomed to a life of relative penury, does not mean that the deceased’s obligation under the Act is satisfied so long as the applicant can continue in that state: Pogorelic v Banovich [2007] WASC 45 at [62]; Butcher v Craig [2009] WASC 164.

86. All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singer v Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12 at [56]. Nor does it follow that if the Court decides “it is inappropriate to make a specific provision in respect of one identified head of claim that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment”: Mayfield v Lloyd-Williams [2004] NSWSC 419 at [89].

87. As stated in the above passage, the size of the estate is a significant consideration in determining an application for provision. It is important to remember what Salmond J said in In re Allen (Deceased); Allen v Manchester [1922] NZLR 218 at 221:

“Applications under the Family Protection Act for further provision of maintenance are divisible into two classes. The first and by far the most numerous class consists of those cases in which, owing to the smallness of the estate and to the nature of the testamentary dispositions, the applicant is competing with other persons who have also a moral claim upon the testator. Any provision made by the Court in favour of the applicant must in this class of case be made at the expense of some other person or persons to whom the testator owed a moral duty of support. The estate is insufficient to meet in full the entirety of the moral claims upon it, in the sense that if the testator had possessed more he would have been bound to do more for the welfare of his dependants. In such a case all that the Court can do is to see that the available means of the testator are justly divided between the persons who have moral claims upon him in due proportion to the relative urgency of those claims.”

90. In relation to the Plaintiff’s claim, being a claim by an adult child, the following principles are useful to remember:

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

2. It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, “ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, child up in a position where she or he can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation”: Taylor v Farrugia [2009] NSWSC 801 at [57; McGrath v Eves [2005] NSWSC 1006; Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond [2015] NSWCA 42 at [109].

3. Generally, also, “the community does not expect a parent to look after his or her [children] for the rest of [the child’s life] and into retirement, especially when there is someone else, such as a spouse, who has a primary 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 at [58].

4. If the applicant has an obligation to support others, such as a parent’s obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland, Deceased [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 148; Goodman v Windeyer [1980] HCA 31; 144 CLR 490 at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons: Re Buckland, Deceased at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams at [86].

5. There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37 at [45] (Nicholson J).

6. The adult child’s lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]-[182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig at [17].

7. The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd at 149.

91. A very similar statement of the principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [111], was cited with approval in Chapple v Wilcox at [21] (Basten JA); and at [65]-[67] (Barrett JA); and was referred to, with no apparent disapproval (although in that appeal there was no challenge the correctness of those principles), in Smith v Johnson [2015] NSWCA 297 at [62].

92. In Foley v Ellis [2008] NSWCA 288 at [88], Sackville AJA noted that Singer v Berghouse “strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased’s bounty”. The only claimant in the present case is the Defendant.

93. The Defendant, of course, is not an applicant for provision. She does not have to prove an entitlement to the provision made in the deceased’s Will or otherwise justify such provision. What was written in Edgar v Public Trustee for the Northern Territory [2011] NTSC 5 at [46] by Kelly J should be remembered:

“There is no onus on the... residuary beneficiary under the will to show that she is entitled to be treated as such – or to prove what may be necessary for her proper maintenance and support. Rather the onus is on the plaintiff to show that proper provision is not available for him under the terms of the will. In determining whether this is the case the Court must have regard to all relevant circumstances including the size of the estate and the nature of the competing claim by the [residuary beneficiary]. In performing this task the Court must have due regard to the will of the testator and should interfere only to the minimum extent necessary to make adequate provision for the proper maintenance, education and advancement in life of an applicant who has passed the first jurisdictional hurdle. As Dixon CJ said in the passage from Scales quoted above, due regard must be had to ‘what the testator regarded as superior claims or preferable dispositions’ as demonstrated by his will.” [Footnotes omitted]

94. Whilst the distinction between married relationships and de facto relationships has narrowed considerably over time, there remains binding authority which gives greater weight to the claims of parties who have entered “a formal and binding commitment to mutual support”: Marshall v Carruthers [2002] NSWCA 47; Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308; Sellers v Scrivenger & Anor [2010] VSC 320 at [68].

95. In this case, the de facto relationship of the deceased and the Defendant spanned 26 years (and perhaps longer). It was, as was accepted by the Plaintiff, a very long relationship. In the circumstances, as the deceased recognised, and as he explained to the Plaintiff, his obligation to her, to the extent to which his assets permitted him to do so, was to ensure that she was secure in the home in which they lived together, to ensure that she had an income sufficient to permit her to live in the style to which she was accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies.

96. Concern as to the capacity of the Defendant to maintain herself, independently, and autonomously, also bear upon the notion of what provision ought to be made for the Plaintiff. Her age and earning capacity are also relevant.

97. Importantly, however, it is necessary to remember what Ward J (as her Honour then was), wrote in Cross v Wasson [2009] NSWSC 378; (2009) 2 ASTLR 201, at [98]:

"Of course, the position of surviving spouse no longer attracts any primacy or paramountcy in the face of other competing claims. In Bladwell v Davis [2004] NSWCA 170 Bryson JA (at [18]) noted an inconsistency between according paramountcy to the claims of surviving spouses (in the context of competing claims) and the application to the facts and circumstances of each case of s 7 of the Family Provision Act and the approach established by Singer v Berghouse. His Honour said: "Preconceptions and predispositions are likely to be the source of inadequate consideration of the process required by the Family Provision Act 1982". His Honour considered it would be an error generally to accord to widows (or, by analogy here, widowers) primacy over all other applicants regardless of the circumstances and "regardless of performance of the stages of consideration described in Singer v Berghouse in full and with reference to the instant facts" (para 19).”

Qualifications on “Principles”

98. As I have stated in a number of cases (see, for example, Bowditch v NSW Trustee and Guardian), I do not intend what I have described as “principles” to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I identify them merely as providing useful guidance, which may be applied, with circumspection, in considering the statutory provisions, the terms of which must remain firmly in mind.

99. The importance of the qualifications to which I have referred in the last two paragraphs have been stressed in Chapple v Wilcox by Basten JA, at [18]-[20], and by Barrett JA, at [66]-[67]. They must be remembered.

The Submissions

100. I shall not repeat all of the submissions made by counsel for each party. Each provided written submissions that I have carefully read and which will remain in the Court file. I shall merely provide a summary of those submissions.

101. Counsel for the Plaintiff steadfastly submitted that the claim for provision was for $300,000. I shall refer to how he calculated the amount claimed later in these reasons.

102. He went on to submit that the Defendant would still remain secure in her own home ($390,000) and have the balance of the term deposits ($370,532), the interest to be paid in July, the additional money in the savings and the retirement accounts ($5,034 and $26,047), superannuation ($69,613), shares ($2,742), and a car ($6,000). She would be required to pay the balance of her costs ($28,300).

103. Counsel for the Defendant submitted that even though adequate provision for the proper maintenance and advancement in life had not been made by the Will of the deceased, this is a case in which the strength of the Defendant’s claim on the bounty of the deceased and the nature and value of the notional estate of the deceased was insufficient to satisfy any claim for provision in favour of the Plaintiff.

104. During submissions, counsel for the Defendant submitted, in the alternative, that in the event that a family provision order were made, the maximum lump sum that should be ordered out of notional estate was $75,000. (In his written submissions, the maximum amount was said to be $40,000.)

Additional Facts

105. I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come. I have taken this course, not “to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59” (Verzar v Verzar [2012] at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered.

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

106. I am satisfied that the relationship of the Plaintiff and the deceased was a close and strong one and that it endured until the death of the deceased. There was no suggestion to the contrary.

(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

107. There is no definition of the words “obligations” or “responsibilities” to which the sub-section refers in the Act. Each word is to be understood in its ordinary, grammatical meaning as the condition of being morally or legally bound.

108. The responsibility of the deceased was expressed by Lord Romer in Bosch v Perpetual Trustee Co Ltd [1983] AC 463 at 478-479:

“Their Lordships agree that in every case the Court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father. This no doubt is what the learned judge meant by a just, but not a loving, husband or father.”

109. This factor requires a balancing of potentially competing obligations as between the applicant and the beneficiary.

110. Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to the Plaintiff as a child, once he became an adult, imposed upon him by statute or common law. Yet, an obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life, continues to be recognised. In Flathaug v Weaver [2003] NZFLR 730 at [32], the origin of the obligation which underpins the Act’s recognition of the duty owed by a parent to a child was put in this way:

“The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent’s obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives.”

111. Although the relationship of parent and child is important and carries with it an obligation or responsibility reflected in the Act, it is nevertheless an obligation largely defined by the relationship which actually exists between parent and child during their joint lives: Vincent v Lewis [2006] NZFLR 812 at [81]. The boundaries of that obligation or responsibility are not amenable to rigid definition. Yet, there is no “presumptive testamentary entitlement of an [adult] offspring”: Underwood v Gaudron [2015] NSWCA 269 at [73] (Basten JA).

112. The size of the deceased’s estate is also relevant to the extent of the obligation or responsibility.

113. I have earlier identified the obligation owed by the deceased to the Defendant as his de facto partner. In this case, bearing in mind the length of their relationship and the age of the Defendant, I am of the view that it is a more significant obligation or responsibility than that owed by him to the Plaintiff.

(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

114. I have earlier dealt with these matters. There is no actual estate and the value of property that may be designated as notional estate is not very large.

(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

115. The use of the term “financial resources” adds something to income and property.

116. The Plaintiff’s financial position may be summarised as follows:

Asset	Liability
House	$537,000	$395,977.25
Bank (CBA)	$579.18
Holden Cruz	$13,600	$15,689
Kubota Tractor	$19,500	$13,872.51
Mitsubishi Fuso Truck	$54,000	$35,283
Triton Ute	$9,050
Horse Trailer	$20,000
Quad Bike	$1,500
Lawn Tractor	$1,000
Horses	$40,000
Stock	$10,000
Guns and Saddelry	$40,000
Credit Cards	$70,858
P Gray Super	$61,268.09
D Gray Super	$23,249.33
Tax debt of Partnership	$6,899
$830,747	-$538,578.76
Joint net position	$292,169
Individual net position	$146,084

117. It was accepted that the liabilities set out were joint liabilities of the Plaintiff and his wife. It was also accepted that the Act is not one to enable provision to be made, in an indirect way, to persons who are not eligible persons, or to make provision for a Plaintiff who states that the provision “needed” is to satisfy another person’s financial needs.

118. As was said in Kleinig v Neal (No 2) at 537:

“It was submitted for the defendants that the mother’s potential dependency upon the plaintiff was not relevant to a consideration of his claim on his father’s estate. The defendants objected to the admissibility of evidence that was tendered on this matter. As it seemed to me that actual and potential burdens on the financial resources of an applicant existing at the date of death, including those for which there was only a moral and not a legal responsibility, could be material circumstances in considering an applicant’s claim, I admitted the evidence that was tendered. As the mother herself can have no claim to provision for her maintenance out of the deceased’s estate, any financial dependance of the mother upon an applicant son could not, I think, be used to increase the amount that would otherwise be ordered to be paid to the son if his claim was successful …”

119. In Akkerman v Ewins [1999] NSWCA 386, a claim was made by a step-son for provision out of his step-mother’s estate. An order of Master McLaughlin (as his Honour then was) dismissing his claim for provision was the subject of an appeal. The Plaintiff, in an affidavit read in those proceedings, said that:

“If I am successful in these proceedings I intend to use the money to see family in Holland and to build a granny flat for my mother at the rear of my property at Erina.”

120. Other evidence in that case revealed that a few months before he swore that affidavit, he and his mother had travelled to Holland and had spent some weeks there. Handley JA (with whom Beazley and Fitzgerald JJA agreed) said at [9] – [10]:

“In the light of this evidence I have not been persuaded that the case is one for appellate intervention from this Court. Despite the error on the part of the Master in the sentence on which Mr Weinstein principally relied on a re-exercise of the discretion, or on the making of a new finding on appeal, I would reach the conclusion that the appellant had not made out a case for the intervention of the Court.

Many claimants of the age of the appellant who do not have access to a free amount of capital to meet the contingencies of their declining years seek to establish a case under this legislation on that basis. No such case was made here on behalf of the appellant. Indeed the evidence that I have referred to indicates that any money awarded by way of a modest legacy would not be used as a provision for future contingencies. In those circumstances I would propose that the appeal be dismissed with costs.”

121. It was then submitted by his counsel that the Plaintiff’s needs were identified as follows:

“50% of mortgage         = $197,988.63

50% credit cards           = $35,429

50% finances/loans       = $32,422.25

Buffer for contingencies  = $50,000

                        = $315,839.88”

122. There was some criticism of the information about the Plaintiff’s financial resources, in two respects. Firstly, it was submitted that the true value of the home jointly owned was far more than had been estimated. In this regard, the basis of the submission was the content of Ex. 2, being a copy of an advertisement in which the home had been advertised for sale for $925,000, and Ex.3, being a copy of an application for finance, signed by the Plaintiff and his wife in which the value of their home was disclosed at $850,000.

123. Secondly, it was submitted that the annual income that the Plaintiff and his wife received was far greater than that disclosed in his evidence. Reliance was placed on Ex. 4, which was a copy of an equipment loan and mortgage application signed by the Plaintiff and his wife, in which their gross business annual income was disclosed at $246,000 and their income from personal employment was disclosed at $91,500 per annum.

124. I do not accept the criticism of the evidence given by the Plaintiff and his wife. In regard to the first matter, I accept the Plaintiff’s explanation that the sale price at which the home was advertised, which was many years ago, far exceeded its true value, and that it had been a forlorn hope that such a price would actually be achieved.

125. The Plaintiff’s evidence on this topic was corroborated by his wife, who confirmed that no offer to purchase the property at that, or any other, price had been made during the period of it having been on the market.

126. Furthermore, there was a recent written market appraisal that provided a range (the amount set out above being the mid-point of the range of prices suggested). No objection had been taken to the market appraisal and no attempt had been made, on behalf of the Defendant, to obtain any other market appraisal.

127. Finally, on this topic, the Plaintiff gave evidence that was not the subject of cross-examination that he and his wife continue to conduct their business from the property that is also their home.

128. In relation to the income, whilst the document suggests a far larger income than the Plaintiff stated, his wife gave evidence, which I accept, that the income for that particular year had been far greater than the years before and after that particular year. Evidence of the income received by the Plaintiff over five years was the subject of evidence and it had not been put to him that the income for the other years had been underestimated. He also gave evidence that in February 2016, they had lost a “substantial contract” (which reduced the business income by about $3,000 to $4,000 per month).

129. The Plaintiff did not suggest that he did not have an earning capacity. To the contrary, he gave evidence that he wished to continue to work as a farrier for as long as he could. However, he said, unsurprisingly, that as he became older, he was performing part of the work more slowly with the result that he was not able to achieve as much as he had in the years before.

130. I have earlier set out what was submitted, on his behalf, as to his “needs”.

131. The Defendant’s financial resources and needs were submitted to be (based on Life Expectancy tables, a further 21.62 years, applying a weekly multiplier (816) at a 3% discount over the next 21 years):

Financial Need	Estimated Weekly	Future Estimated Lifetime Need
Living expenses (Range making allowance for a less than very frugal existence and a more comfortable existence)	$423.00 (current) $750.00 $1,000.00	$345,168.00 $612,000.00 $816,000.00
Medication 1. 5 years post judgment – 10 years post judgment @ $50 per week	$50	$12,150
Medication 2. 10 years post judgment – 21 years post judgment @ $100 per week	$100	$49,000
Annual Overseas Holiday ($16,000) (10 years)	$306	$138,695
Two annual domestic visits to sons/friends ($1,000 each trip = $2,000 per annum) (15 years)	$38	$24,237
Modest replacement car in 5 years’ time	$45,000
Fund for Contingencies	$100,000.00
First phase Domestic Assistance 5 years (being 5 years post judgment – 10 years post judgment 4 hours per week @ $40 per hour)	$160	$38,880
Second phase Domestic Assistance 5 years (being 10 years post judgment – 15 years post judgment @ 8 hours per week @ $40 per hour)	$320	$156,800
Aged & Palliative Care Accommodation Payment	$425,000.00
Aged & Palliative Care Daily Fees 6 years (being 15 years post judgment to 21 years post judgement) (Rates of $48.25 per day + $34.91 per day + $11.00 per day)	$659	$189,167
TOTAL	$1,524,098   $1,790,930   $1,994,930

132. As is obvious, the deceased’s notional estate does not have a value of anything like the amount said to be “needed” by the Defendant.

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

133. The Plaintiff is currently cohabiting with his wife. Her financial circumstances have been included above. However, it is to be noted that she has suffered some ill-health which has imposed a significant financial burden on her and the Plaintiff.

(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

134. The Plaintiff did not give any evidence of any physical, intellectual, or mental disability, suffered by him. The evidence given related to the condition of his wife.

135. Because of the claimed “needs” of the Defendant, there was a dispute about one aspect of her medical condition. She had annexed to an affidavit a copy of a report, dated 14 October 2015, of a consultant neurologist who stated that in mid-2014, he had seen the Defendant and had diagnosed her “as having asymmetrical Parkinsonian features on her left side, the cause being early Idiopathic (Primary) Parkinson’s Disease”. He examined her again on 16 July 2015, and observed the same symptoms, with no apparent significant progression, and noted “at the time that [her] symptoms may have been in some part due or exacerbated by stressors related to extant legal proceedings she is facing…She still had very subtle asymmetrical Parkinsonian features on her left side but the lack of progression was a very good prognostic sign. She may still have very early idiopathic Parkinson’s disease but the other possibilities were that all of her symptoms could be stress related”.

136. The medical report went on to state that the Defendant “will need to establish a multidisciplinary support team early on, including a neurologist, a general practitioner, physiotherapist, occupational therapist, speech therapist, dietician, social work (sic) and possibly a specialist nurse” and that she would “need regular medical consultations to monitor any progression of her symptoms”.

137. No more recent report was produced by the Defendant and no explanation for not having produced a more recent report, which might have made the position more clear was given.

138. The Plaintiff submitted that the report did not establish that the Defendant required the amount set out as her “needs” for medical treatment and associated costs. Having considered the report in its entirety, I respectfully agree.

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

139. The Plaintiff is currently aged 54 years. His wife is currently aged 52 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

140. The Plaintiff does give some evidence of the contribution to the acquisition, conservation and improvement of the deceased’s estate. However, the contribution appears to be by way of assistance provided to the deceased whilst he was married to Ms Templeman. His relationship with the deceased does suggest some contribution to the welfare 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

141. There is some evidence from the Defendant that the deceased purchased motor vehicles, motor bikes, horse floats, trucks, and horses for the Plaintiff and the Plaintiff's wife on several occasions. In addition, the Defendant's evidence is that the deceased purchased a block of land in Yass for the Plaintiff and the Plaintiff's wife, which evidence is disputed by the Plaintiff.

142. It is impossible to express a concluded view as to whose evidence is correct. However, it is clear that whatever provision was made by the deceased during his lifetime for the Plaintiff it was not significant.

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

143. I have earlier stated the terms of the deceased’s last Will.

144. The oral evidence of the Defendant about her conversations with the deceased was as follows:

Q. Tell us the first conversation, what was said?

A. He just said to me, and I was out in the yard, and he came out to me and he said: “I am going to change my will,” and I just asked, “Why?” It came out of the blue. I had no idea and he said, “What happens” - “If something happens to me and I die you may go and have a relationship or get involved with somebody else and then my family won’t get anything.” So it was just out of the blue. It was something I did not expect.

Q. What did you say in that conversation?

A. I was shocked. I said, “Why?” Or well before that I had said, “Why?” and he told me if I got involved with somebody else - I said, “Well, after all those years that I have handled our money and everything and you have never worried and if you don’t trust me any more maybe we should separate.”

Q. Did he tell you in that first conversation the changes he wanted to make to the will?

A. No, that was the second conversation.

Q. When did the second conversation happen?

A. It would not have been that much longer after that, just maybe a week or so.

Q. What was said in the second conversation?

A. He said he was going down to make - down to change his will and he wanted to put some of his - half the term deposit in his name.

Q. So half the term deposit, what did he want to do with that money?

A. He didn’t say. I just gathered from the first conversation it was in his name, it would go to Peter but I do not know what he was thinking.

Q. What did you say to him in that second conversation?

A. I said, “Okay, if that’s what you want to do, but when you do just check to see what we have to do legally.” In the first conversation when I said “maybe we should separate”, he agreed.

Q. Sorry?

A. But nothing was ever done about it.

Q. You responded to him in answer to what he said, what, you wanted to separate?

A. Yes. I said, “Maybe we should separate if you don’t trust me,” and he agreed with that.

Q. You raised the topic of separation after he said he wanted to change the will?

A. No, I raised it when I said, “If you don’t trust me any more, maybe we should separate.”

Q. And when you said to him, “If you don’t trust me”, what was the trust that you were referring to?

A. Well, to me the trust between the two of us. We trusted each other with everything, with money, we discussed things.

HIS HONOUR

Q. You said you trusted each other with the money?

A. And the running of the business.

BATES

Q. What did you think he was trusting you to do in relation to his son Peter?

A. Well, I assume, and I do not know that if I got - he came up with the opinion that if I got married to somebody else, I gather, or lived with somebody else, that that other person would have access to his money and that would never happen because our wills are the same, made the same, that half went to Peter because Peter had a brother, Stephen, who died and I have two sons. So half was to go to Peter and the other half shared by my two sons, and that was as simple as we could make it.

Q. But Stephen died a long time ago?

A. Yes, but he still would have been entitled if he lived.

Q. Wasn’t the arrangement with your half that his son Peter would receive half and that your two sons would receive a quarter each?

A. Yes.

Q. The arrangement was that Peter would receive the whole of your husband’s half and your two sons the rest of your half; wasn’t that the arrangement?

A. I guess that’s it. Half each if we both died together.

Q. Although you and your partner had children by your previous relationship?

A. Yes.

Q. And the arrangement you actually had with your partner was that part of the whole would go to his son Peter and the other half would be shared equally between your two sons?

A. That is right.

Q. It was not one third, one third, one third? It was to be a half and one quarter each?

A. That is right, but that was when we both died.

HIS HONOUR: That is what the will says, Mr Bates.

(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

145. The Plaintiff was not being maintained, wholly or partly, by the deceased other than historically as a child. There is no suggestion that he was maintained by the deceased at any time after the Plaintiff left home. In fact, it would appear that the Plaintiff was financially independent of the deceased for many years prior to his death.

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

146. There is no person liable to support the Plaintiff, other than, perhaps, his wife.

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

147. An evaluation of “character and conduct” may be necessary, not for the sake of criticism, but to enable consideration of what is “adequate and proper” in all the circumstances. Importantly, the Act does not limit the consideration of “conduct” to conduct towards the deceased.

148. In Collicoat v McMillan [1999] 3 VR 803 at [40], Ormiston J wrote, in relation to the manner in which an applicant’s behaviour towards the deceased is to be considered:

“Ordinarily each of the persons who have a statutory right to make [an] application are entitled to have their position considered by a testator but their behaviour (right or wrong) towards the testator may only provide a basis for measuring appropriately the testator’s obligation to make provision for each of those applicants. Their sins are irrelevant except in so far as a testator might properly take exception to their behaviour.”

149. I am satisfied that there is no relevant conduct of the Plaintiff before, or after, the death of the deceased. Indeed, counsel for the Defendant wrote in his submissions:

“There is nothing in the plaintiff’s character, or his conduct, which would lead to the view that the deceased had a reason for not naming him as the principal beneficiary in his will. In fact, the plaintiff was named as a major beneficiary in the event the defendant did not survive the deceased. It is just that the deceased chose to make the defendant the sole beneficiary of his estate.”

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

150. I am satisfied that there is no relevant conduct of the Defendant that impacts on the determination of what provision should be made for the Plaintiff out of the estate of the deceased. I remember, of course, that she is the sole chosen object of the deceased’s bounty. She was also in a de facto relationship with the deceased for many years prior to his death. Her contribution to the welfare of the deceased, particularly during his declining years, cannot be forgotten. (It will be remembered that there was a significant age difference between them.)

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

151. This factor is not applicable.

(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

152. The only other matter that I consider relevant is the age of the Defendant. She is about 11 years older than the Plaintiff.

Determination

153. Claims for a family provision order present particular difficulties where the actual and/or notional estate is modest and where there are several competing claims upon the bounty of the deceased. Any provision made by the Court in favour of an applicant must, in this class of case, be made at the expense of the beneficiary who has had to defend the claims and who is the chosen object of the deceased's bounty.

154. Being an “eligible person” is a necessary pre-condition to the Court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. The Plaintiff, as a child of the deceased, is an eligible person within the meaning of that term in s 57(1)(c) of the Act.

155. There is no dispute that the proceedings were commenced within the time prescribed by the Act.

156. As I have recently written in Morier v Liem [2016] NSWSC 582, the fact that no bequest is made in the deceased’s Will for the Plaintiff does not, of itself, bespeak inadequacy. That fact is not all that the Court is required to consider. The totality of the relationship of the Plaintiff and the deceased, the age and capacity of the Defendant, the claim of each on the bounty of the deceased, and the size of the estate and notional estate, are very relevant factors in determining the answer to the question whether it is satisfied, for the purposes of s 59(1)(c) of the Act, that the deceased did not make adequate provision for the proper maintenance and advancement of the Plaintiff.

153. The consideration of all of these matters, taken with the proper concession made by the Defendant, leads me to find that there was a failure, on the part of the deceased, to make adequate provision for the proper maintenance or advancement in life of the Plaintiff. It follows that the Court has jurisdiction to make an order for provision out of the estate of the deceased for the Plaintiff.

154. I turn next to consider the nature and quantum of any provision that should be made. In my view the deceased had no legal obligation to maintain the Plaintiff prior to his death. It is clear that the Plaintiff had been financially independent of the deceased for many years prior to his death, whereas the Defendant had been, at least partly, dependent upon him throughout their relationship.

155. I must also remember the importance of freedom of testation. There was some evidence given by both parties about his testamentary intentions and what he regarded as the primacy of the Defendant’s claim upon his bounty.

156. However, it is to be noted that, whilst the relationship of the deceased and the Defendant was not of short duration, this is not a case of a lifetime marriage, with the shared raising of children, and with a substantial contribution from the Defendant to the assets of both parties. Yet, the evidence, overall, is that the relationship was a close and loving one and that it was continuing at the time of the death of the deceased. I also bear in mind that the Defendant has some health issues that may become more pronounced later in life and little earning capacity.

157. I am satisfied that the deceased did not have an obligation to ensure that the Plaintiff was completely debt free, or that he was otherwise financially secure for the remainder of his life. The size of the notional estate and the deceased’s obligation to, and responsibility for, the Defendant, which he acknowledged, simply does not warrant such an obligation being imposed upon him in death.

158. In my view, having regard to all of the matters that I am required to consider, the Plaintiff should receive a legacy of $150,000.

159. Whilst this amount will not enable the Plaintiff to discharge his share of the family’s debts entirely, it will enable him to repay his share of some of them, or, if he does not do so, will provide a capital sum for exigencies of life.

160. This will still leave the Defendant with an unencumbered home and the balance of the cash on term deposits held by her, to meet the costs of the proceedings, if any are payable out of the notional estate, and to meet her expenses and for exigencies of life. (I have not included the amount of interest which the Defendant will receive in July 2016.)

161. On the question of whether to designate property as notional estate, I am satisfied that the deceased's actual estate is insufficient for the making of the family provision order. It is also unlikely to be sufficient to meet any costs orders, that should be made: s 83(1)(a), s 88(b) and s 89.

162. Then, turning to the property to be so designated, even though the whole of the deceased’s estate has been distributed, there is no reason why the Defendant, as the de facto partner of the deceased at the date of his death, should be placed in the circumstance where she is insecure in the accommodation in which she lived with the deceased and where she continues to live. The substantial justice and merits involved lead to the Court refusing to make such an order.

163. I would not be prepared to make any order designating the deceased's share in the Yass property, which is now owned solely by the Defendant, as notional estate.

164. I turn next to whether any part of the amount held by the Defendant on term deposit should be designated as notional estate in order to meet what is necessary, in the Court’s opinion, to allow the provision that should be made, or, if the Court makes an order that costs be paid from the notional estate under s 99, to allow costs to be paid as ordered, or both: s 89(2) of the Act.

165. In my view, a consideration of the substantial justice and merits of the case, taken with what might be considered to be the reasonable expectation of the Defendant, does not prevent a notional estate order being made for the lump sum to be paid out of one or other of the term deposits.

166. I shall give the Defendant an opportunity to identify the appropriate bank account necessary to be designated as notional estate from which the burden of the order for provision and any costs payable will be borne. It may be necessary for her to identify the bank account that contains sufficient funds to enable the amount to be paid so that the amount may be designated as notional estate.

167. As it may be necessary to hear further from the parties on what costs orders, if any, should be made, they should be given an opportunity to make submissions with respect to the form of the final orders. I shall deal with the precise form of orders as to the designation of property as notional estate after the parties have had an opportunity to consider these reasons.

168. No interest is to be paid on the lump sum of $150,000 (subject to any argument on the amount for costs), if it is paid within 7 days of the date the relevant term deposit matures; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898 (NSW) on unpaid legacies, is to be paid from that date until the date of payment.

169. For the assistance of the parties, the nature of the orders should include:

1. Being satisfied that the Plaintiff is an eligible person and that adequate provision for his proper maintenance or advancement in life has not been made by the Will of the deceased, he should receive provision, by way of a lump sum of $150,000 out of the notional estate of the deceased.

2. The term deposit, or money in a bank account xxx xxx xxx (to be identified) standing to the credit of the Defendant, totalling [$150,000, any interest payable and any costs ordered to be paid], should be designated as notional estate of the deceased ("the notional estate").

3. Interest shall accrue on that lump sum (at the rate for which s 84A of the Probate and Administration Act 1898 NSW provides) calculated from 7 days after the relevant term deposit matures and to the extent that the lump sum and costs are not earlier paid.

4. The obligations for payment of a lump sum, interest and any costs, for which these orders provide, shall be a charge on the notional estate of the deceased.

5. Liberty is to be granted to any party to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to, and implementing, the family provision order and any costs order made in favour of the Plaintiff.

6. The exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

174. The Court stands the proceedings over for any argument as to costs and for the making of orders in favour of the Plaintiff, which reflect the reasons for judgment, and to enable the Defendant to precisely identify the bank account holding the amount sufficient to satisfy the order for provision to be made in favour of the Plaintiff, any interest thereon, and any costs ordered to be paid out of the notional estate.

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Decision last updated: 02 June 2016