Griffiths v Craigie

[2014] NSWSC 1339

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Griffiths v Craigie [2014] NSWSC 1339
Hearing dates:	22 September 2014
Decision date:	02 October 2014
Jurisdiction:	Equity Division
Before:	Hallen J
Decision:	Direct the parties to bring in Short Minutes of Order reflecting the reasons for judgment within 14 days. Stand over the proceedings to deal with any outstanding argument on the form of the Short Minutes of Order
Catchwords:	SUCCESSION - FAMILY PROVISION - The Plaintiff, a minor grandchild of the deceased, applies by tutor for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) - The Defendant, a daughter of the deceased, to whom Probate of the deceased's Will was granted - No dispute that Plaintiff is an eligible person or that there are factors which warrant the making of his application - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff - Other claims by another daughter and another grandchild made for family provision orders and resolved - Estate distributed to Defendant as trustee of a testamentary trust - No question that Defendant will satisfy order for provision made in favour of the Plaintiff - Nature and quantum of provision to be made for the Plaintiff
Legislation Cited:	Civil Procedure Act 2005 (NSW) Family Provision Act 1982 (NSW) Guardianship Act 1987 (NSW) Probate and Administration Act 1898 (NSW) Property (Relationships) Act 1984 (NSW) Succession Act 2006 (NSW) Succession Amendment (Family Provision) Act 2008 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Alexander v Jansson [2010] NSWCA 176 Allardice, In re, Allardice v Allardice (1909) 29 NZLR 959 Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 Aubrey v Kain [2014] NSWSC 15 Bartlett v Coomber [2008] NSWCA 100 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Butcher v Craig [2009] WASC 164 Churton v Christian (1988) 13 NSWLR 241 Collins v McGain [2003] NSWCA 190 de Angelis v de Angelis [2003] VSC 432 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54 Doshen v Pedisich [2013] NSWSC 1507 Edgar v Public Trustee for the Northern Territory [2011] NTSC 5 ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193 Foley v Ellis [2008] NSWCA 288 Fulop, Deceased, Re (1987) 8 NSWLR 679 Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep) Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 Goodsell v Wellington [2011] NSWSC 1232 Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison [1997] 2 VR 359 Hampson v Hampson [2010] NSWCA 359 Hyland v Burbidge [2000] NSWSC 12 In the Estate of the late Anthony Marras [2014] NSWSC 915 Janette Susan Gardiner v Raymond James Gardiner as Administrator of the Estate of the Late Dulcie Eva Gardiner [2014] NSWSC 435 Justyn Marcus Ng v Neville Mark Morgan; Selena Natanie Ng v Morgan; Commonwealth Bank of Australia v Neville Mark Morgan in his capacity as Administrator of the estate of the late Dell Smith [2014] NSWSC 536 Kay v Archbold [2008] NSWSC 254 Kembrey v Cuskelly [2008] NSWSC 262 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 McGrath v Troy [2010] NSWSC 1470 McKenzie v Topp [2004] VSC 90 Manuel v Lane [2013] NSWCA 61 Mayfield v Lloyd-Williams [2004] NSWSC 419 Nowak v Beska [2013] NSWSC 166 O'Dea v O'Dea [2005] NSWSC 46 Palaganio v Mankarios [2011] NSWSC 61 Phillips v James [2014] NSWCA 4 Pogorelic v Banovich [2007] WASC 45 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 Re Hilton [1997] 2 NZLR 734 Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 Sammut v Kleemann [2012] NSWSC 1030 Sayer v Sayer [1999] NSWCA 340 Shaw v Shaw [2003] VSC 318; (2003) 11 VR 95 Simonetto v Dick [2014] NTCA 4 Simons v Permanent Trustee Co Ltd; Re Estate of Hakim [2005] NSWSC 223 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (Supreme Court (NSW), Macready M, 16 December 1996, unrep) Stott v Cook (1960) 33 ALJR 447 Szypica v O'Beirne [2013] NSWSC 297 Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 Tsivinsky v Tsivinsky [1991] NSWCA 269 Verzar v Verzar [2012] NSWSC 1380 Verzar v Verzar [2014] NSWCA 45 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) West v Mann [2013] NSWSC 1852 Wilcox v Wilcox [2012] NSWSC 1138 Williams v Aucutt [2000] 2 NZLR 479
Texts Cited:	J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths Rosalind Atherton, 'The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?' (1999) 5 Australian Journal of Legal History 5
Category:	Principal judgment
Parties:	Kyle Liam Griffiths (by his tutor Mary Hamilton) (Plaintiff) Cherie Annette Craigie (Defendant)
Representation:	Counsel: Ms V Hartstein (Plaintiff) Mr M Gorrick (Defendant) Solicitors: Crown Solicitors' Office (Plaintiff) Adrian Holmes Lawyer (Defendant)
File Number(s):	2013/224633

JUDGMENT

Introduction and the Claims

1. HIS HONOUR: This is the third claim made for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) ("the Act") out of the estate or notional estate of Rhonda Anne Chesworth ("the deceased"). It is made by Kyle Liam Griffiths, a grandson of the deceased, by his tutor, Mary Patricia Hamilton. 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 (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, 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.

1. Ms Hamilton, the Plaintiff's tutor, is a senior caseworker at the Maitland Community Services Centre. She is employed by the Department of Family and Community Services and has had, and continues to have, the day-to-day casework responsibility for the Plaintiff.

1. The Defendant in each of the three proceedings was, and is, Cherie Annette Craigie, a daughter of the deceased and the executrix named in the deceased's Will, to whom Probate was granted.

1. Without any undue familiarity or disrespect intended, and for convenience, I shall refer to the Plaintiff, the Defendant, and any other family members, after introduction, either by his, or her, given name, or by the role each plays in the proceedings.

1. The first claim in time against the deceased's estate was brought by Melissa Anne Burgmann (also known as Melissa Anne Chesworth), a daughter of the deceased and the mother of Kyle (2013/223405) ("Melissa's claim"). The second claim was brought by Steven Burgmann, a grandson of the deceased, also a son of Melissa and a half-brother of Kyle (2014/46436) ("Steven's claim"). Each of these two claims was resolved, notice having been given to the legal representatives of Kyle, that it was intended to seek orders in accordance with the settlement that had been reached. I shall return to the terms of the resolution of each claim later in these reasons.

Formal and Background Facts

1. The following facts are uncontroversial and provide a useful background.

1. The deceased died on 25 July 2012. She was then aged 66 years, having been born in February 1946.

1. The deceased was married twice during her life. Her second marriage was to Trevor Chesworth. He predeceased her, having died in October 2006. There were two children of the marriage, namely Melissa and Mark Chesworth. Melissa was born in December 1975 and is currently aged 39 years. Mark was born in 1972 and is currently aged 42 years. Cherie was the deceased's child by her first marriage. She was born in June 1966 and is currently aged 48 years. (Nothing is disclosed in the evidence about her biological father, the first husband of the deceased.)

1. The deceased left a Will made on 22 November 2011, Probate in common form of which was granted, by this court, to Cherie, on 21 January 2013.

1. The deceased's Will, relevantly, provided for the payment of "all my just funeral and testamentary expenses" (Clause 3) and left the whole of the balance of the estate to Cherie, to be held on trust by her on the terms set out in Clauses 4 and 5 of the Will, for the benefit of the deceased's three children and the deceased's grandchildren. The Will refers to the fund created as a "discretionary trust fund".

1. The parties approached the case upon the basis that the Will created a discretionary trust, the objects of which are, or who may be, the children and grandchildren of the deceased.

1. In the event that the trust were to fail, the whole of the balance of the deceased's estate was to be divided into 10 equal parts, with Kyle ("or his respective issue") receiving one part, Melissa ("or her respective issue") receiving two parts, Mark ("or his respective issue") receiving one part, and Cherie ("or her respective issue") receiving 6 parts.

1. It is necessary to set out part of Clause 5, so far as it relates to the "request" and "wish" of the deceased:

"(h) In considering distributions of income or capital to one or more of the beneficiaries named in paragraph 4, I REQUEST, but do not direct, that my Executor have regard to the following:

It is my wish that any beneficiary named in paragraph 4 be assisted by way of distributions of capital and income for that beneficiary's maintenance, education and advancement until that beneficiary reaches the age of twenty-five (25) years only.

It is my wish that as far as possible the distributions of capital and income from the trust is to be divided between my daughter CHERIE ANNETTE CRAIGIE or her respective issue so that she or her issue receive six-tenths of my estate, my daughter MELISSA BURGMANN or her respective issue so that she or her issue receive two tenths of my estate, my son MARK CHESWORTH or his respective issue so that he or his respective issue receive one-tenth of my estate and to my grandson KYLE LIAM GRIFFITHS or his respective issue so that he or his respective issue receive one-tenth of my estate."

1. In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased's estate, at the date of death, was disclosed as having an estimated, or known, gross value of $1,419,566. No liabilities were disclosed. The estate was said, then, to consist of real estate at Lorn ($705,000), real estate at East Branxton ($349,000), real estate at East Maitland ($355,000), each property in New South Wales, money in current accounts ($8,004), shares in a public company ($2,462) and a box trailer ($100). (I have omitted any reference to cents in the amounts stated which will explain any apparent mathematical miscalculations.)

1. Liabilities of the estate, at the date of death, subsequently, were estimated to be $923.

1. On 23 August 2013, orders were made that Melissa's claim and the claim made in these proceedings be heard, and mediated, together and that evidence in one was to be evidence in the other. (After Steven's proceedings were commenced, he joined in the mediation as well.)

1. On 17 February 2014, Mr G Berecry, a well-known and experienced mediator, mediated the three claims. As stated, Melissa's claim and Steven's claim was each compromised. On 18 March 2014, I made orders and notations by consent disposing of each.

1. In substance, pursuant to the settlement, in lieu of the provision made for her in the Will of the deceased, Melissa received, by way of a family provision order, a devise of the real estate at East Maitland, upon terms that it be held on trust for her by the NSW Trustee and Guardian, and a legacy of $180,000, which sum was to be managed by the NSW Trustee and Guardian, for the use and benefit of Melissa. Her costs, up to an amount of $20,000, plus GST, were to be paid out of the estate. (Other consequential orders and notations were made, but it is not necessary to repeat those.)

1. (I should mention that Melissa's financial affairs were then, and are currently, managed by the NSW Trustee and Guardian, under a financial management order made by the Guardianship Tribunal on 6 July 2005 pursuant to the Guardianship Act 1987 (NSW).)

1. In substance, pursuant to the settlement, in lieu of the provision made for him in the Will of the deceased, Steven received, by way of a family provision order, a legacy of $30,000, to be payable to Allan Lyndon Burgmann and Michael Peter Bestic, as trustees, to be held on trust for Steven on the terms of a Trust Deed, a copy of which was annexed to the orders. (This was done as Steven is a minor.) Steven's costs of the proceedings, including the mediation, calculated on the ordinary basis, were to be paid out of the estate of the deceased. (Other consequential orders and notations were made, but it is not necessary to repeat those.)

1. The settlement of each of Melissa's claim and Steven's claim was upon the basis that the consent to the orders being made, of each of the other Plaintiffs, including Kyle, by his tutor, was obtained and noted.

1. Kyle's claim was not able to be resolved at the mediation and has, therefore, proceeded to hearing.

1. Cherie affirmed, in an affidavit of 27 August 2014, that the real estate at Lorn and at East Branxton had been sold, the debts, funeral and testamentary expenses paid ($923) and, after the distributions made to Melissa and to Steven, the balance had been distributed to her, as trustee. She stated that the current estate, after the payment of expenses paid and to be paid, consisted of the shares ($3,608) and money held in bank on trust ($557,239).

1. Cherie also disclosed, in the affidavit affirmed on 27 August 2014, that the real estate at East Maitland and the legacy of $180,000 had been distributed to Melissa; that Melissa's costs of $20,000 had been paid; that the legacy to Steven of $30,000 had been paid; and that her own legal costs, in respect of Melissa's and Steven's claim ($15,950), had been paid as had the costs and expenses of the mediation ($6,015). (Cherie stated, also, that, during her lifetime, the deceased had given Melissa a 2005 Honda car ($21,000).)

1. Cherie specifically identified, in that affidavit, the capital and income that had been received by, and the expenditure that had been made out of, the deceased's estate. She disclosed that she had distributed $150,000 to herself, by way of a capital distribution, and had made income distributions to her minor son, Harry, of $16,016. She stated, also, that there was a balance of trust income ($36,589) to be paid to Harry in respect of the financial year ending 30 June 2013, and that trust income of $25,206 "has been accounted for as having been distributed to Harry" in respect of the 2014 financial year, but that, to date, it had not been paid.

1. Cherie stated that the balance of Steven's costs and disbursements, estimated to be $15,000, were yet to be paid out of the estate. As well, there were her estimated costs of implementing the orders in respect of Melissa's, and Steven's, claims ($1,500) yet to be paid.

1. The parties agreed, at the hearing, that the gross amount available to satisfy any provision to be made for Kyle would be $557,239 made up of cash ($553,631) and shares ($3,608).

1. In calculating the value of the estate or notional estate of the deceased, that is available, finally, for distribution, the costs of the present proceedings should also be considered, since Kyle, if successful, normally, would be entitled to an order that his costs and disbursements, calculated on the ordinary basis, be paid out of that estate or notional estate, whilst Cherie, 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 or notional estate.

1. Ms C Samuels, a solicitor employed in the office of I V Knight, Crown Solicitor, acting for Kyle's tutor, has estimated Kyle's costs and disbursements, calculated on the ordinary basis, to be $35,200, inclusive of GST. (The total amount already paid, on account of those costs and disbursements, is $16,319, leaving an amount of about $15,681 yet to be paid.) (She estimated Kyle's costs and disbursements, calculated on the indemnity basis to be $38,696, plus GST.)

1. Mr A S Holmes has estimated the balance of Cherie's costs, out of pocket expenses and counsel's fees, inclusive of GST, up to and including the hearing, are $22,000.

1. The parties agreed that, in the event that Kyle is successful, the usual costs orders should be made. If the parties are unable to reach agreement on the quantum of costs to be paid, it will be for an assessor to determine the appropriate quantum of costs. In view of the amount of costs estimated, hopefully, this will be unnecessary.

1. It can be seen, and the parties agreed, that if the estimates of costs ultimately prove accurate, the net amount held by Cherie, available to meet the provision to be made for Kyle, is about $500,000.

1. The parties agreed that the only remaining eligible person who has made a claim is Kyle. Cherie, however, on her own behalf, and on behalf of Harry, submits that each has a moral, and financial, claim upon the bounty of the deceased. I shall return to their competing claims later in these reasons.

1. It is necessary to refer to the deceased's son, Mark, who is also an eligible person. The evidence reveals that he was estranged for a number of years from the deceased. He was served with a prescribed form of notice and also provided with some information about the terms of the deceased's Will and his, and his children's (if he has any), entitlement to be considered as discretionary objects.

1. I note correspondence dated 25 March 2013 to Mark from Cherie's solicitors and the response letter dated 22 April 2013 received from solicitors acting for Mark, in which it is stated:

"Our client instructs us that he does not wish to challenge the provisions of the Will, nor receive any distribution in his favour. He takes no objection to the Executor proceeding to distribute and terminate the trust without any reference to him..."

1. Another letter, dated 29 July 2013, from Cherie's solicitors, includes a Notice of Claim. Mark's solicitors acknowledged service in a letter dated 7 August 2013 and made the statement "he wishes to take no further action".

1. In the circumstances, I am entitled to disregard, and shall disregard, his interests as an eligible person, and his competing claim, if any, on the bounty of the deceased. There is no suggestion that his children, if he has any, are eligible persons. In the circumstances, I do not consider that the children of Mark, if any, have a competing claim upon the bounty of the deceased.

Some Additional Undisputed Background Facts

1. Cherie's evidence is that the whole of the balance of the deceased's estate has been distributed to her as trustee of the testamentary trust created by the Will of the deceased and that her role as executrix of the Will has ended.

1. The date of the distribution of the balance of the estate to Cherie, as trustee, was not disclosed in the evidence. She simply stated that in March 2013, she had completed the administration of the estate and "then held [the deceased's] estate as trustee of the trust established by her Will".

1. However, I note that, by letter dated 21 May 2013, Cherie's solicitors were informed of the intention to make a claim for a family provision order for Kyle and a request was made for "a written undertaking from the executor and trustee of the estate ... that the assets of the estate will not be distributed until Kyle's entitlement can be clarified and the family provision application ... made".

1. By letter dated 28 May 2013, Cherie's solicitors stated "The trustee declines to provide an undertaking sought by you".

1. This raises a question of the designation of distributed property as notional estate: s 79 of the Act. However, commendably, the parties agreed that Cherie will satisfy any order for provision made for Kyle out of the amount held, in cash, by her as trustee, without the need for a designating order. I shall allow the parties to frame orders that give effect to these reasons, including the necessary order to enable the payment to be made. (I am satisfied that Cherie will abide this suggestion as she did so in respect of Melissa's and Steven's claims.)

1. There was also an issue raised regarding the distributions made, or to be made, to Cherie and to Harry, counsel for Kyle submitting, in writing, that the amounts that have been paid should be added back to the amount available to satisfy provision to be made for Kyle. However, it seems to me to be unnecessary to take that step, as there is sufficient available in the balance of the funds held by Cherie, as trustee, to satisfy Kyle's claim and the costs of the proceedings. (At the hearing, counsel accepted that such an order would not be necessary, but that the court could take into account the amounts distributed to each of them.)

1. Cherie and her husband have only one child, Harry, who is aged 10 years. He attends a private school and is in Year 4. Some of the income distributed to him has been used to pay his school fees. Some remains unspent. (The precise details of the expenditure, and what is left of the income actually distributed to Harry from the trust, were not disclosed.)

1. The deceased established the Chesworth Superannuation Fund in July 2008. She and Cherie were the trustees. After the deceased's death, Cherie was the sole surviving trustee. She determined to pay the death benefit ($184,000) to herself, and did so on a date that was not disclosed. (Cherie has used part ($280,000) of the total funds that she received ($334,000) to purchase a patisserie business, which she disclosed as one of her assets.)

1. As noted earlier, Melissa was born in December 1975 and is currently aged 39 years.

1. Steven was born in July 1999 and is currently aged 15 years. He lives with his father and paternal grandmother in country NSW.

1. Kyle's father is Bradley Griffiths. He was born in June 1970. He is Aboriginal. He is currently serving a prison sentence, having been convicted of numerous criminal offences. His minimum release date is January 2016. Kyle has had no contact with him since Kyle was a baby.

1. In circumstances to which I shall turn later in these reasons, Kyle lived with the deceased at various times.

1. On 10 December 2012, a representative of the Department of Community Services made an application to the Children's Court seeking orders, inter alia, that the Minister have parental responsibility for Kyle for 12 months and that, thereafter, Melissa was to have parental responsibility. Since about December 2012, he began transitioning to Melissa's care and in April 2013, he was placed in her full time care. From March 2014, Melissa has had parental responsibility for Kyle and he continues to live with her

1. Melissa has had a mental illness and history since she was 15 years of age. She has been diagnosed with schizophrenia and depression. Her mental health is unpredictable. She has previously utilised support services to manage her mental health.

1. Only Ms Hamilton and Cherie were cross-examined at the hearing. Although Melissa had affirmed an affidavit read in the proceedings, she was not required for cross-examination. Furthermore, although a report from a psychologist was read, and he was available for cross-examination, he, too, was not required. The hearing was listed for one day and was completed within that time.

The Statutory Scheme - The Act

Introduction

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

1. The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008 (NSW). A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers, upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased person's power of disposition by his, or her, will. It is only if the statutory conditions are satisfied that the court is empowered, under the Act, to alter a deceased person's disposition to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary.

1. In cases such as the present, it is necessary for the court to take three steps:

(i) Determine whether the applicant is an eligible person within the meaning of that term in s 57(1) of the Act;

(ii) Determine in the case, relevantly, of a s 57(1)(e) applicant, whether the court is satisfied that there are factors which warrant the making of the application within s 59(1)(b) of the Act; and, if both eligibility and factors warranting are established,

(iii) Determine whether the applicant has been left with inadequate provision for his, or her, proper maintenance, education and advancement in life; and, if so, determine what, if any, provision (or further provision) ought to be made out of the estate for those purposes.

The Substantive Provisions of the Act

Eligibility

1. The key provision is s 59 of the Act. The court must be satisfied, first, that the applicant is an eligible person. In 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 person who was, at any particular time, wholly or partly dependent on the deceased person, and who is a grandchild of the deceased person, or who was a member of the household of which the deceased person was a member" (s 57(1)(e) of the Act).

1. In the present case, Kyle relies upon the fact that he "is a grandchild of the deceased" (rather than "a member of the household of which the deceased was a member"). That language is expressive of his status, as well as his relationship to the deceased. There is no age limit placed on a grandchild making an application.

1. To be an eligible person within this category, there is also a pre-condition of whole, or partial, dependency. The Act contains no definition of the words "dependent on". In general, the word "dependent" connotes a person who relies upon support of another, financial and/or emotional. Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support.

1. There is no dispute, in this case, and I am otherwise satisfied, that Kyle is an eligible person within the meaning of that term in s 57(1)(e) of the Act.

Factors warranting the making of the Application

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

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

1. I have dealt with the meaning of the phrase in other cases, the most recent of which is Doshen v Pedisich [2013] NSWSC 1507. (I note that Slattery J, in Justyn Marcus Ng v Neville Mark Morgan; Selena Natanie Ng v Morgan; Commonwealth Bank of Australia v Neville Mark Morgan in his capacity as Administrator of the estate of the late Dell Smith [2014] NSWSC 536, at [174], agreed with the views that I had expressed in that, and other, cases about the meaning of that phrase.)

1. It is unnecessary to repeat what I wrote in that case, as there is no dispute, in this case, and I am otherwise satisfied, that there are factors warranting the making of Kyle's application. These include the nature and duration of his relationship with the deceased, how she regarded him, and the fact that he is specifically referred to as a potential beneficiary named in her Will.

Inadequacy of Provision

1. It is only if eligibility and, as is necessary in this case, factors warranting the making of the application are found, that the court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is 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".

1. Allsop P, in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, commented, at 658 [6]:

"... the expression of the task in s 59 is subtly different from the previous legislation. A prohibition against making an order unless satisfied of circumstances of an evaluative character, is different in emphasis from a permission to make an order if satisfied of circumstances of an evaluative character... The exercise of power to make the order is conditioned on the Court being satisfied of certain things in s 59(1). The order that may be made is described in s 59(2). The two elements are described in s 60(1)(b) as 'whether to make [an] ... order and the nature of any ... order.' Section 60(2) provides a detailed body of considerations for the task in s 59."

1. Basten JA, at 662-3 [26], put the differences this way:

"As appears from the language of the relevant provisions set out at [66]-[67] below, the Succession Act differs from the Family Provision Act in three significant respects. First, although both conferred similar powers on the court, the conditions of their exercise differ. The Family Provision Act required that the court 'shall not make an order ... unless it is satisfied that' the provision made by the testator is 'inadequate': s 9(2). The Succession Act provides that the court 'may ... make a family provision order ... if the court is satisfied that' the testator has not made 'adequate provision' for the applicant: s 59(1). The changes in language may have been intended to remove double negatives, but there is a resultant change in emphasis. The apparent effect is to widen the discretion vested in the court. That which could satisfy a court that the provision made is 'not adequate', for the purposes of the Succession Act, might not have been sufficient to remove the prohibition under the Family Provision Act, which operated in the absence of affirmative satisfaction that the provision was 'inadequate'. There may well be no bright line boundary between adequacy and inadequacy."

1. Barrett JA, at 677-8 [82] - [86], said:

"The court's task under the new legislation is in substance the same as that under the old. Three differences relevant to the kind of case under discussion may, however, be noted (I leave to one side as irrelevant to such cases the extension of the s 60(2) criteria to the question of 'eligible person' status); and two postulated differences may be rejected.

First, the Succession Act provisions direct attention, upon the initial inquiry into adequacy, to provision made by the deceased's will and the intestacy laws. The former legislation referred merely to provision 'out of the estate' but it was clear that the operation of the intestacy laws was to be taken into account in deciding what provision was available 'out of the estate': see, for example, Smilek v Public Trustee [2008] NSWCA 190.

Second, the Succession Act confines attention, upon that initial inquiry, to provision made by the will and the intestacy laws. There is no reference to provision made during the deceased's lifetime. In this respect, there is a departure from the Family Provision Act approach under which provision made in favour of the eligible person "either during the person's lifetime or out of the person's estate" was to be examined upon the initial inquiry into adequacy.

Attention may, however, still be given to provision made in favour of the applicant during the deceased's lifetime. That is now one of the factors to which regard may be had under s 60(1)(b) when the court is deciding whether to make a family provision order and the nature of the order: see s 60(2)(i). Under the Succession Act, therefore, provision made by the deceased while living thus has a continuing relevance with altered emphasis. Such provision is no longer something to be taken into account in deciding whether adequate provision has been made; but it may be taken into account in deciding whether an order should be made and the nature of the order.

The third difference to be noted is the Succession Act's more comprehensive catalogue of matters that may be taken into account in formulating an order for provision. Section 9(3) of the Family Provision Act empowered the court to 'take into consideration' matters there stated in 'determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person'. Section 60(1)(b) of the Succession Act allows the court to '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'. The Succession Act lists a greater number of such matters than did the Family Provision Act."

1. Relevantly to this case, other than by reference to the provision made by the Will of the deceased (the operation of the rules of intestacy being irrelevant), s 59(1)(c) of the Act 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 Will, 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.

1. 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."

1. It was said in the Court of Appeal (by 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". Stevenson J has described it as "an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific": Szypica v O'Beirne [2013] NSWSC 297, at [40] (citing Manuel v Lane [2013] NSWCA 61, at [9], per Emmett JA, speaking in relation to s 20 of the Property (Relationships) Act 1984 (NSW)).

1. Under s 59(1)(c) of the Act, 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.

1. "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".

1. Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act.

1. The term "maintenance" usually refers to a provision for the supply of the necessaries of life. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, 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."

1. In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), at [18], stated:

"'Proper maintenance' is not limited to the bare sustenance of a claimant [cf Gorton v Parkes [sic] [1989] 17 NSWLR 1], but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility."

1. In J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths), at 542, the learned authors comment upon the difference between the concepts of maintenance and advancement:

"The essential difference between 'maintenance' and 'advancement' is that 'maintenance' denotes a periodical payment or a payment which could validly be made periodically, whereas 'advancement' denotes a definite unique outlay for a specific purpose. Recipients of maintenance must, practically speaking, be infants, but adults may be recipients of an advancement.

An advancement can never be made of a sum of money which the person to whom it is made can immediately pocket, but it must be made with a view to the establishment of that person in a business or profession, or otherwise in some definite way for that person's benefit, the whole essence of an advancement being the immediate payment of a tolerably large sum for an immediate benefit to one beneficiary."

1. 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 p. 128."

1. In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Murphy J noted, at 505:

"Provision for advancement may, for example, extend to retraining or the gaining of a qualification which could advance and perhaps enable an applicant to maintain himself or herself."

1. Master Macready (as his Honour then was) in Stiles v Joseph (Supreme Court (NSW), Macready M, 16 December 1996, unrep) said, at 14-16:

"Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541)

In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274...

In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said:

'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.'

The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that:

'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'"

1. In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J, at [114], 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."

1. In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said:

"The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)."

1. In McCoskerv McCosker [1957] HCA 82; (1957) 97 CLR 566, Dixon CJ and Williams J stated, at 575:

"The presence of the words 'advancement in life' in the ... Act in addition to the words 'maintenance and education' is not unimportant. ... 'Advancement' is a word of wide import."

1. The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton, in 'The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?' (1999) 5 Australian Journal of Legal History 5, at 10, as "an objective, economic test", whereas "proper" prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3), at [72], [77], per Buss JA, which seems to invite more subjective criteria.

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

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

1. Their Lordships went on to state (at 478):

"The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the Court were concerned merely with adequacy. But the Court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration."

1. Dixon CJ and Williams J, in McCosker v McCosker, 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 in life must be considered in the light of all 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."

1. In Goodman v Windeyer, 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."

1. In Vigolo v Bostin, at 228, 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 the 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 used 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."

1. Santow J pointed out, in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), that "adequate" and "proper" are independent concepts. His Honour said, at 12:

"'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied ...".

1. In Palaganio v Mankarios [2011] NSWSC 61, at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life involve value judgments on which minds can legitimately differ, and that there are no definite criteria by which the question can be answered.

1. His Honour further observed, in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522, at [123]:

"The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case 'including the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty' (Singer v Berghouse (1994) 181 CLR 201 at 210)."

1. Until recently, it was unanimously thought that there are two stages of the determination. The first stage, provided for by s 59(1)(c), has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. The court does this by determining whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased and/or by operation of the intestacy rules, for the applicant. If it is not so satisfied, then the court is precluded from making a family provision order. At this stage, the court has regard to, among other things, the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased and the circumstances and needs of the other beneficiaries or potential beneficiaries: see McCosker v McCosker, at 571-572; Singer v Berghouse, at 209-210; Vigolo v Bostin, at [16], [75], [112]; Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, at [70].

1. Whether an applicant has a 'need' or 'needs' is also a relevant factor at the first stage of the enquiry. It is an elusive concept to define, yet, 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 (Tobias JA, with whom Beazley and Hodgson JJA agreed).

1. In Collins v McGain, Tobias JA said at [42] and then at [47]:

"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 focussed. 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.

...

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 because of that context that, in the present case, the 'proper maintenance etc' of the appellant required consideration of a need to guard against the contingency to which I have referred."

1. 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 (at 227) per Gaudron J.

'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 (at 10-11) per Bryson J.

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 (at 575) per Kirby P.

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 (at 227) per Gaudron J. Compare Gorton (at 6-11) per Bryson J; Collicoat v McMillan [1999] 3 VR 803 at [38], [47] per Ormiston J."

1. "Need", of course, is a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]. It is different from "want". 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'."

1. White J has recently written, in Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473, at [147], that "the need a claimant must demonstrate is a need for 'proper' maintenance, education and advancement in life", but that does not mean that "adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others".

1. As Callinan and Heydon JJ emphasised, in Vigolo v Bostin, at 231 [122], the question of the adequacy of the provision made by the deceased "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". The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined.

1. In the event that the court is satisfied that the power to make an order is enlivened (in this case, it is satisfied that Kyle is an eligible person, that there are factors warranting the making of an order, and that adequate provision for his proper maintenance, education or advancement in life 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.

1. The second stage of the process arises under s 59(2) and s 60(1)(b) of the Act. 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.

1. I have dealt with the question that has been raised in other cases whether the two-stage approach identified in Singer v Berghouse continues to apply to the provisions of the Act in other cases, the most recent of which is Aubrey v Kain [2014] NSWSC 15. I remain of the view that the two-stage approach should continue to apply. I shall not repeat what I said in that case, which is not affected by the recent decision of the Court of Appeal in Phillips v James [2014] NSWCA 4, or its decision of Verzar v Verzar [2014] NSWCA 45.

1. (Since I delivered my reasons in Aubrey v Kain, Robb J has also considered the topic in Janette Susan Gardiner v Raymond James Gardiner as Administrator of the Estate of the Late Dulcie Eva Gardiner [2014] NSWSC 435. I respectfully adopt his Honour's reasoning, set out at [117] - [120], and [124], as to the persuasiveness of the reasoning of Barrett JA in Andrew v Andrew. I also refer to what has been written by Bergin CJ in Eq in In the Estate of the late Anthony Marras [2014] NSWSC 915, at [15].)

1. Ultimately, as Allsop P said in Andrew v Andrew, at [6], "it may be an analytical question of little consequence" since the questions remain the same, namely, whether the court can make an order for provision (whether it is satisfied that 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), and if so, whether it should (whether to make an order and, if so, the terms of that order).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA, in Andrew v Andrew, at [37], as "a multifactorial list", and by Lindsay J, in Verzar v Verzar [2012] NSWSC 1380, at [123], as "a valuable prompt" to which the court may have regard, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order.

1. Beazley P, in Phillips v James, at [51], described s 60(2) as involving:

"... a statutory iteration of matters that had always been considered relevant in the determination of claims for provision by persons claiming an entitlement under a testator's will. However, as Basten JA observed in Andrew v Andrew, the factors identified in s 60(2) provide a more focussed direction to the Court as to relevant matters to which regard may be had. His Honour was of the view that the statutory list invites consideration of a broader range of factors than was previously the case. Whether or not that is so, the important matter is that the Court is required to have regard to the circumstances, including those specified in s 60(2), that it considers relevant in determining whether to make an order for family provision and the nature of any such order."

1. White J, in Slack v Rogan; Palffy v Rogan, at [121], wrote that s 60 "lists a wide range of matters that the court 'may have regard to', but these do not provide any tangible assistance in answering the question in any particular case whether the provision made in a will, or on intestacy, was less than adequate for an applicant's 'proper' maintenance, education or advancement in life".

1. In West v Mann [2013] NSWSC 1852, Kunc J, at [12], wrote:

"Section 60(2) provides a helpful checklist but it is no more than that. The Court is not obliged to take those matters into account. The extent to which it does (if at all) will depend upon the facts of each particular case.

Section 60(2)(p) confirms the breadth of matters the Court can take into account. Once enlivened, the discretion is expressly fettered only by the requirement in s 59(2) that if an order is made, it must be such order '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'."

1. 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.

1. The Act 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. For example, when considering eligibility under s 60(1)(a), many of the matters in s 60(2) will be largely, if not wholly, irrelevant.

1. 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).

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.

1. Section 63 identifies the property that may be used for a family provision order. An order for provision may be made out of the estate of the deceased. An order may 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 Pt 3.3 of the Act.

1. 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.

1. 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).

1. Any family provision order under the Act takes effect, unless the court otherwise orders, in the case where the deceased made a Will, as in a codicil to the Will (s 72(1) of the Act).

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

1. 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.

1. In light of the agreement by Cherie that she will meet the order for provision made in Kyle's favour, it is unnecessary to discuss the notional estate provisions of the Act.

Other Applicable Legal Principles - Substantive Application

1. 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.

1. Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, 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. The court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act to correct the hurt feelings, or sense of wrong, felt by an applicant. 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.

1. The court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90, at [63].

1. 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."

1. Of the freedom, in Grey v Harrison, Callaway JA said:

"... It 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 properties from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the widest 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."

1. In Vigolo v Bostin, 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".

1. In Goodsell v Wellington [2011] NSWSC 1232, I also noted, at [108], 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."

1. 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."

1. White J referred to these principles in Slack v Rogan; Palffy v Rogan, at [127]:

"In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and (2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will."

1. 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.

1. As Allsop P said in Andrew v Andrew, at [16]:

"If I may respectfully paraphrase Sheller JA [in Permanent Trustee Co Limited v Fraser (1995) 36 NSWLR 24 at 46F-47B], the Court in assessing the matter at s 59(1) and the order that should be made under s 59(1) and (2), should be guided and assisted by considering what provision, in accordance with prevailing community standards of what is right and appropriate, ought to be made. This, Sheller JA said ... involved speaking for the feeling and judgment of fair and reasonable members of the community. It is to be emphasised that s 59(1)(c) and s 59(2) refer to the time when the Court is considering [an application for a family provision order] and the facts then known to the Court. The evaluative assessment is to be undertaken assuming full knowledge and appreciation of all the circumstances of the case. This ... makes the notion of compliance by the testator with a moral duty (on what he or she knew) apt to distract from the statutory task of the Court."

1. How those community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew, at [36] (Basten JA). His Honour added, in Phillips v James, at [113]:

"As discussed by Allsop P in Andrew v Andrew [2012] NSWCA 308; 81 NSWLR 656 at [16], one can say little more as to the standards and values to be applied than that the court should be guided by its perception of 'prevailing community standards of what is right and appropriate'. Views will undoubtedly vary within the community as to the weight to be given to a testator's wishes as expressed in the will: Andrew v Andrew at [35]."

1. Thus, "there are difficulties for the courts in making their own unaided assessment of current community attitudes in a complex and changing social environment": Williams v Aucutt [2000] 2 NZLR 479, at [44].

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

1. 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. The standard of living of an applicant during the lifetime of the deceased is relevant, but the fact that an applicant 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, [62]; Butcher v Craig [2009] WASC 164, at [21].

1. Where the court is satisfied that provision ought to be made, then it is no answer to a claim for provision under the Act that to make an order would be to defeat the intentions of the deceased identified in the Will. The Act requires, in such circumstances, that the deceased's intention in the Will be displaced: Kembrey v Cuskelly [2008] NSWSC 262, per White J, at [45].

1. 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 Singerv 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, at [89].

1. What was said in Edgar v Public Trustee for the Northern Territory [2011] NTSC 5, by Kelly J, at [46], 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.... 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." (Omitting citations)

1. In relation to a claim by a grandchild, the following general principles are, in my view, relevant and should be remembered:

(a) As a general rule, a grandparent does not have an obligation or responsibility to make provision for a grandchild; that obligation rests on the parent of the grandchild. Nor is a grandchild, normally, regarded as a natural object of the deceased's testamentary recognition.

(b) Where a grandchild has lost his, or her, parents at an early age, or when he, or she, has been taken in by the grandparent in circumstances where the grandparent becomes a surrogate parent, these factors would, prima facie, give rise to a claim by a grandchild to be provided for out of the estate of the deceased grandparent. The fact that the grandchild resided with one, or more, of his, or her, grandparents is a significant factor. Even then, it should be demonstrated that the deceased had come to assume, for some significant time in the grandchild's life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild's support and welfare, or else that the deceased has undertaken a continuing and substantial responsibility to support the applicant grandchild financially or emotionally.

(c) The mere fact of a family relationship between grandparent and grandchild does not, of itself, establish any obligation to provide for the grandchild upon the death of the grandparent. A moral obligation may be created, in a particular case, by reason, for example, of the care and affection provided by a grandchild to his, or her, grandparent.

(d) A pattern of significant generosity by a grandparent, including contributions to education, does not convert the grandparental relationship into one of obligation to the recipients, as distinct from one of voluntary support, generosity and indulgence.

(e) The fact that the grandparent occasionally, or even frequently, made gifts to, or for, the benefit of the grandchild does not, in itself, make the grandchild wholly, or partially, dependent on the grandparent for the purposes of the Act.

(f) The grandchild's dependence, whether whole or partial, on the grandparent must be direct and immediate; it is not sufficient that the grandchild's dependence is the indirect result of the deceased providing support and maintenance for his, or her, own adult child, and thereby, incidentally, benefiting the deceased's grandchildren who are directly dependent on that child.

(g) It is relevant to consider what inheritance, or financial support, a grandchild might fairly expect from his, or her, parents. Yet, the obligation of a parent to provide for his, or her child does not, necessarily, negate, in an appropriate case, the moral obligation of a grandparent to make provision for the maintenance, education or advancement in life of a grandchild out of her, or his, estate.

(h) The fact that the parents, or either of them, of a grandchild have, or has, predeceased the grandparent may be a relevant factor in support of the claim made by a grandchild.

(i) A relative want of resources in the parent of the grandchild may create an obligation of the deceased towards a grandchild. For example, where the deceased is of ample means, she or he, reflective of prevailing community standards, might well recognise, in certain circumstances, a duty to make provision out of her, or his, estate for the grandchild who has needs. If the estate or notional estate could satisfy the grandchild's claim without significant adverse impact on the chosen beneficiaries, a duty to provide for the education, maintenance and advancement in life may arise.

1. The authorities that provide the basis for the above summary include Tsivinsky v Tsivinsky [1991] NSWCA 269; Sayer v Sayer [1999] NSWCA 340; Shaw v Shaw [2003] VSC 318; (2003) 11 VR 95; O'Dea v O'Dea [2005] NSWSC 46; and Simons v Permanent Trustee Co Ltd;Re Estate of Hakim [2005] NSWSC 223. (I set these principles out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275, at [113]. The summary has been referred to as "both apposite and helpful", in Simonetto v Dick [2014] NTCA 4, at [48].)

1. In Foley v Ellis, Sackville AJA, at [88] 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. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act".

1. I make clear that I do not intend what I have described as "principles" to be elevated into rules of law. Nor do I wish to suggest that the jurisdiction should be unduly confined or the discretion at the second stage to be constrained by statements of principle found in dicta in other decisions. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind.

1. As Lindsay J said in Verzar v Verzar [2012], at [131]:

"Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."

1. Also, I respectfully agree with the statement of White J in Slack v Rogan; Palffy v Rogan, at [126]:

"The question of whether the provision, if any, made for an eligible applicant is adequate for his or her proper maintenance, education or advancement in life is to be assessed having regard to the facts and circumstances of each individual case. The assessment involves a broad evaluative judgment which is not to be constrained by preconceptions and predispositions (Bladwell v Davis). This really means that there are no definite criteria for the exercise of the 'evaluative judgment'."

Additional Facts

1. Next, I set out additional facts that I am satisfied are either not in dispute, or that have been established to my satisfaction by the evidence. I do so by reference to the matters in s 60(2) of the Act to which I may have regard. 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

1. The following comment was made by Campbell JA in regard to the court's consideration of the totality of the relationship between the applicant and the deceased in Hampson v Hampson [2010] NSWCA 359, at [80]:

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

1. There is no dispute that Kyle is a grandchild of the deceased. None of the "unusual factors" to which Campbell JA referred exists, so I can deal with their relationship in a broad brush way.

1. Kyle knew the deceased for the whole of his life. She cared for him for approximately six years (a significant period of his young life) and only stopped when she could carry on no longer and needed to be hospitalised. She exercised parental responsibility for him between about 2006 and about 2012. Pursuant to a court order, she had parental responsibility, at law, for Kyle, from November 2011 onwards.

1. Melissa also resided in a granny flat at the deceased's property and regularly interacted with the deceased and Kyle, frequenting the main house and joining them for meals. She, too, when able, provided Kyle with attention and support. She, too, would make parenting decisions for Kyle. There is no doubt that Kyle was at times, wholly, and, at other times, partly, dependant upon the deceased.

1. There was really no dispute that there was an extremely close relationship between Kyle and the deceased throughout his life. That he was the only grandchild specifically referred to, by name, in the deceased's Will, demonstrates the closeness of their relationship. The deceased, herself, described the relationship, in 2009, as "being strong and loving" and indicated, at that time, that she would be prepared to continue to care for him until he attained the age of 18 years.

1. It was only when diagnosed with a terminal brain tumour that the deceased contacted the Department to inform it that she was looking for alternative placement options for Kyle.

1. During the period between June 2007 and June 2012, the deceased was in receipt of a Supported Care Allowance, of approximately $490 per fortnight, as financial assistance for her in caring for Kyle.

(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

1. There is no definition of the "obligations" or "responsibilities" to which the sub-section refers in the Act. One might conclude, however, that what is to be considered is the nature and extent of any legal or moral obligations or responsibilities. The sub-section requires the consideration of obligations or responsibilities as between different applicants, and as between applicants and any beneficiaries, of the deceased's estate.

1. I have set out the nature of the obligations and responsibilities of a grandparent earlier. Yet, the deceased did assume obligations and responsibilities towards Kyle for many years. During part of the period, the deceased took over the direct responsibility for his support and welfare. Accordingly, I am satisfied that, in the circumstances of the present case, the deceased did have an obligation, or responsibility, arising under the Act as a result of her familial relationship as the grandparent of Kyle. I accept that she played a significant role in his life. However, the deceased did not have any legal or financial obligation to him imposed upon her by statute or common law.

1. Other than Steven, the deceased does not appear to have any particular obligation or responsibility to any of her other grandchildren, including to Harry. Whilst he may have had a good relationship with the deceased, it was not suggested that she undertook a continuing and substantial responsibility to support him financially or emotionally. Harry looked to his parents to provide that continuing responsibility. Cherie and her husband, prior to the deceased's death, provided, and they continue to provide, for Harry.

1. 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 Cherie, imposed upon her by statute or common law. However, a moral obligation, or responsibility, to make adequate provision for the proper maintenance or advancement in life is recognised in the case of a child.

(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

1. I have dealt with this earlier in this judgment. On any view, the balance of the deceased's estate, actual and notional, is not, at the date of hearing, a large one. In calculating the value of the net actual and notional estate, the liabilities have been accounted for.

1. I have also dealt with the provision made for each of Melissa and Steven by way of family provision order and the distributions, out of the estate or notional estate, made to Melissa and Harry, and to be made, to Harry.

(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

1. This sub-paragraph, if considered, calls for a comparison of the financial resources (including earning capacity) and financial needs, both present and future, of applicants and the beneficiaries of the deceased's estate.

1. The Plaintiff is a minor and attends primary school. He does not earn any income. He does not currently have an earning capacity, although it is not suggested that he would not have such capacity later. Other than any entitlement by way of family provision order, he has no other property, although, of course, he remains a discretionary object of the testamentary trust. He has received no distributions of income from the testamentary trust.

1. Kyle's accommodation with Melissa is presently secure.

1. Ms Hamilton sets out Kyle's needs as follows:

a. Counselling and other support and therapy on an ongoing basis as required;

b. Private school fees, school uniforms, text books, costs of excursions and other extra curricular and sporting activities;

c. Private tuition to assist Kyle with his school education;

d. Piano and piano lessons;

e. Computer, Ipad, printer, mobile phone and internet connection for educational activities and recreation;

f. Play Station or X Box;

g. Bicycle;

h. Skate board;

i. While Kyle is dependant upon his mother, respite services for his mother to reduce the risk of Kyle's placement breaking down due to pressure and stress upon his mother;

j. Housing and accommodation including set up costs for when Kyle attains adulthood.

k. University, TAFE or college tuition fees, text books and related costs;

l. Regular holidays, as Kyle had done with the deceased, including an annual trip to Shoal Bay or equivalent.

1. In a subsequent affidavit, affirmed 28 August 2014, Ms Hamilton sets out an estimate of costs and expenses to meet the needs identified. The amounts may be treated as a guide to the quantum of the expenses that might be incurred. For this reason, it is not necessary to itemise them in these reasons, other than to note that, presumably, they formed the basis of the submission made, on behalf of Kyle, that he should receive a lump sum of $250,000 out of the deceased's estate or notional estate.

1. So far as was disclosed in her affidavit, Cherie and her husband, have the following assets and liabilities:

Assets	Estimated Value
Lorn Property	$ 680,000
Maitland Property	$ 380,000
Newcastle Property	$ 260,000
Patisserie Business	$ 200,000
Sub total	$1,520,000
Liabilities	Approx amount
Mortgage Lorn Property	$334,000
Mortgage Maitland Property	$335,000
Mortgage Newcastle Property	$236,000
$905,000	$ 905,000
Net assets	$ 615,000

1. As stated, Cherie disclosed that she earned no income from working in the patisserie business. She said, however, in oral evidence, that she works full-time in the business, usually from 6:00 a.m. until 3:00 p.m. five days per week. She denied that there is a notional wage paid to her that she does not receive and which formed a debt owed to her. She does receive some food from the business and the expenses of the business include paying for a car that she drives.

1. Nowhere in her affidavits, did Cherie identify the family's outgoings. In particular, she gave no evidence of the expenditure incurred for Harry, or the basis upon which she had exercised her discretion, as trustee, to distribute all of the trust income for the financial year ending 30 June 2014, to him.

1. It is clear that what was set out in Cherie's affidavit was not the whole of her, or her husband's, property, which includes her, and his, superannuation (the precise amount of each of which she did not know), and moneys in bank accounts jointly and individually held. Specifically, she did not disclose, as an asset, the amount of $50,000, which remains in a business account, which formed part of the amount that she received from the distribution from the trust and the death benefit.

1. I should note that Cherie's husband was present in court throughout the proceedings. Following the conclusion of her evidence, counsel sought a short adjournment to obtain instructions regarding whether to make an application to adduce oral evidence from him. I allowed the short adjournment even though counsel for Kyle foreshadowed that she would oppose any application for such evidence to be given at that late stage of the proceedings. It was unnecessary for her to do so, because counsel, upon returning, stated that he did not wish to make any such application.

1. In the light of the evidence given by Cherie, I am not satisfied that she had fully, adequately, or accurately, disclosed her, and her husband's, financial and material circumstances. The failure of her husband to give evidence as to those circumstances provides some additional support for that conclusion.

1. Where a beneficiary elects to disclose her, or his, financial resources with a view to asserting that she, or he, is a competing financial claimant upon the bounty of the deceased (bearing in mind that there is no statutory mandate requiring a beneficiary to do so: see Sammut v Kleemann [2012] NSWSC 1030 at [134]), then that beneficiary has an obligation to present full and frank evidence of those resources to the court.

1. In Nowak v Beska [2013] NSWSC 166, at [62], I said:

"It is fundamental to the operation of Chapter 3 of the Act that the obligation of full and frank disclosure of financial resources on... any beneficiary who advances his, her, or its, financial circumstances to ground a competing claim under the Act, is performed. It matters little whether the non-disclosure is wilful or accidental, or whether it is a result of misfeasance, or malfeasance or nonfeasance. The obligation is absolute because of the duty of the court to consider all of the circumstances of the case."

1. There is also a general obligation upon a deponent, in making an affidavit, and in giving evidence in the witness box, to tell the truth and the whole truth (ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193, at 197, per Young J; referred to, with approval, in McGrath v Troy [2010] NSWSC 1470, at [124], per White J).

1. Accordingly, whilst I shall consider the claim of each of Cherie and Harry as a beneficiary, and as a chosen object of the deceased's testamentary bounty, as a person with a legitimate claim on the bounty of the deceased, and also as a person whose interest in the estate may bear the burden of the order made in favour of the Plaintiff, I do not consider that either is a competing financial claimant on the bounty of the deceased.

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

1. Kyle presently lives with Melissa. She remains incapable of managing her own financial affairs, and the NSW Trustee and Guardian manages her affairs.

1. Currently, she bears the sole burden of providing for Kyle as his primary caregiver. She is able to (and, in fact, does) obtain funds from her financial manager for Kyle's benefit. It is unlikely that she will receive any financial assistance from Kyle's father.

1. I have referred, earlier, to what Melissa received by way of family provision order.

(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

1. Kyle is currently enrolled in Year 5 at a private school in country New South Wales. The deceased paid his school fees, up to the end of primary school (next year), prior to her death. Ms Hamilton considers it would be in his best interests to remain at the school until completion of his education.

1. The school fees, calculated until the completion of Year 12, are estimated to be about $38,085. (It is not suggested, in any of the reports that have been read, that Kyle would not have the capacity to continue until Year 12.) Counsel for Cherie accepted that this was a legitimate "need" that should be considered by the court.

1. Kyle has suffered from a number of psychological problems and has been diagnosed as having severe Attention Deficit Hyperactivity Disorder and co-morbid Oppositional Defiance Disorder. He has, generally, average skills, with a weakness in the social domain.

1. The psychologist has recommended that Kyle has treatment consisting of 12 fortnightly sessions at $180 per session ($2,160); 6 additional monthly sessions in the first year ($1,080); and monthly sessions thereafter until the end of Kyle's schooling ($10,800, being calculated at the rate of $2,160 per year, for 5 years). Any letter of diagnostic review would cost $90 ($540 per annum) and full assessment reports would, also, be obtained at a cost (3 during high school at $450 each, totalling $1,350). The total costs are $15,930. (At the hearing, it was accepted that, taking into account the rebates available, the net costs would be about $6,800 and that this was also a legitimate "need" to be taken into account.)

1. It is clear from various diary notes and other documents that are in evidence that Kyle's behaviour and health have improved since he has commenced, again, to live with Melissa. His school reports are positive and encouraging and, overall, describe a child whose life is changing as it becomes more stable. The psychologist describes Kyle as "a lovely boy" with whom "it is a pleasure to engage".

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

1. Kyle is now almost 11 years old, having been born in October 2003.

(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

1. Kyle was devoted to the deceased and loved her unconditionally. He was devastated by her death and has not fully come to terms with it. He made a significant contribution to the welfare of the deceased whose life was enhanced by the love she received from her grandson. However, it is clear that he made no contribution, direct or indirect, to building up 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

1. The deceased paid for two weeks annual holidays for herself and her family in the Shoalhaven.

1. The deceased wished to make provision for Kyle and, to that end, in April 2012, she paid $10,000 to his school on account of his tuition fees and for his extra-curricular activities in advance and in anticipation of her death.

1. Also in anticipation of her death, the deceased and Cherie agreed that Kyle would live with Cherie and be cared for by her. In the events that have happened, this has not occurred. As stated earlier, Kyle is presently in Melissa's care.

1. Counsel for Kyle submits that the deceased indicated, in her Will, the amount she thought would be appropriate for Kyle's ongoing maintenance and advancement in life. Strictly speaking, that is not correct. The deceased gave her estate, on trust, to Cherie and provided the discretion to determine the provision that ought to be made for Kyle and others. Counsel for Kyle also indicated that the provision made for Cherie in the deceased's Will took account of the deceased's intention that Cherie would have responsibility for the care of Kyle after the deceased's death. However, this submission is not supported by all of the evidence or by the terms of the Will.

(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

1. During the period in which Kyle resided with her, the deceased wholly maintained Kyle while she was able to do so and until her hospitalisation. What she did was direct and significant.

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

1. His parents are liable to support Kyle. It is accepted that his father is not in a position to do so. Thus, Melissa has the responsibility to support Kyle.

1. As a result of the settlement of her claim against the estate, Melissa is now able to provide a secure and unencumbered home for Kyle in which to live with her. This is important as, understandably, a secure home is necessary for Kyle's future stability and wellbeing.

1. The available amount of income she receives is likely to provide, and has provided, for some of his basic needs. It is unlikely, however, to be able to provide for all of those needs, particularly as he enters his teenage years.

1. Assuming that Melissa's health remains good, any benefits that Kyle might receive from her estate are unlikely to occur for many years.

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

1. 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. The Act does not limit the consideration of "conduct" to conduct towards the deceased. Nor is it limited to character or conduct of the applicant such as to disentitle him, or her, to the benefit of any provision. In referring to character and conduct of an applicant, the Act also contemplates good conduct as it would constitute an injustice if such a factor were not taken into account.

1. There is nothing in the conduct of Kyle that is relevant. As stated, there is no doubt the he had a close and loving relationship with the deceased.

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

1. Cherie made a significant contribution to the care of the deceased and otherwise. It appears, in fact, that she was the primary carer, particularly later in life when the deceased became unwell. I accept her evidence regarding the care and assistance she provided to the deceased, particularly in circumstances where she was in full time employment and juggling the needs of, and her obligations to, her own family. I am satisfied that her conduct towards the deceased was exemplary.

1. There was some criticism of Cherie not being able to look after Kyle following the illness of the deceased. This is, in the circumstances that Cherie described, an unwarranted criticism.

1. However, Cherie has not made any distribution of capital or income for the benefit of Kyle since Probate was granted to her. Her evidence that she did not do so because she did not know the nature and quantum of his needs, is difficult to accept, particularly in circumstances where there is no suggestion that the financial needs of Harry, who had the benefit of support from his parents, were likely to have been greater than those of Kyle. It would have been evident that Kyle's needs were likely to be greater bearing in mind his circumstances.

1. Cherie admitted that she knew, when she sought information about Kyle's needs, that he was living in foster care; that he did not have any money of his own; and that he would be relying upon provision made by the State. Thereafter, it must have been obvious to Cherie, when Kyle returned to Melissa's care, that both Melissa and, therefore, Kyle, were likely to be in straitened financial circumstances and that he was unlikely to obtain the financial assistance of his father. (I note, however, that, for a period of time, Cherie did permit Melissa to live in one of the estate properties on a rent and occupation fee free basis.)

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

1. Cherie gives evidence that, in late 2005 or early 2006, the deceased gave her a document that was headed "Will Details". I shall not set the contents out but, in part, it refers to the deceased's relationship with Mark and states that he should receive 3/15ths of the estate; the deceased's views about Melissa, and states that she should receive 3/15ths of the estate; and, in relation to Cherie, states that she should receive 9/15ths of the estate. There is a reference to "Cherie to manage the grandchildren's education through the trust" and that $30,000 is to be left for each of Steven, Kyle and Harry upon attaining the age of 25 years. (A copy of a Will made by the deceased reflecting these details was not in evidence although a copy of the document referred to was.)

1. In November 2011, the deceased told Cherie that she had changed her Will, stating that the whole of her estate would pass to a trust that Cherie was to control. The deceased in her Will, the subject of Probate, indicated her final intentions.

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

1. Although Kyle is Aboriginal, it is not suggested that this is a relevant consideration.

(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

1. I have earlier referred to the distribution that has been made to Cherie out of the estate and to the death benefit paid to her. I have, also, earlier referred to the distributions made, or to be made, to Harry, out of the income of the estate.

Determination

1. As stated, there is no dispute that Kyle is an eligible person and that there are factors that warrant the making of his application. There is also no dispute that his proceedings were commenced within the time prescribed by the Act.

1. Then, the first question for determination is whether, at the time the court is considering the application, adequate provision for the proper maintenance or advancement in life of Kyle has not been made by the Will of the deceased.

1. Cherie accepted, in my view, correctly, that Kyle has "needs". He does not have any capital fund or any income. The provision that has been made for Melissa, whilst undoubtedly taking into account her obligation to provide for Kyle, should not be treated as a substitute for the deceased's obligation to make provision for him in the circumstances of this case. In any event, I am satisfied that Melissa is unable to provide, from her own resources, other than basics for food, clothing and accommodation.

1. In that context, according to prevailing community standards, I am satisfied, for the purposes of s 59(1)(c) of the Act, that adequate provision for the proper maintenance, education or advancement in life has not been made for Kyle, because the effect of the deceased's Will is that it will be left to the exercise of discretion by Cherie to make provision for him. (I should mention that, in submissions, this was not the subject of dispute by Cherie.)

1. Turning then to s 59(2), namely the question what provision "ought to be made for the maintenance, education or advancement in life" of Kyle having regard to the facts known to the court, the more difficult question is what would constitute adequate and proper provision. There is no formula that can be used to determine the amount of that provision.

1. I am satisfied that there is a clear need for provision for Kyle out of the notional estate of the deceased for his immediate and long-term financial security and for future contingencies. Whilst only some of his "needs" may be able to be quantified with certainty, that does not prevent the court exercising its discretion in awarding additional provision to him to cover those that cannot.

1. Contrary to the submissions made on behalf of Cherie, cases under the Act are decided on the basis of broad principles, not fiscal micrology: Re Hilton [1997] 2 NZLR 734, at 738. The court should not focus only on the particular, or specific, known needs of Kyle but rather upon his needs in the 'relevant sense', namely, in the sense of what is necessary for his proper maintenance, education and advancement in life. As stated earlier, proper provision does not merely mean an amount required for an applicant's subsistence. As Gleeson CJ said in Vigolo v Bostin, at [12]:

"The legislation was not merely, or even primarily, concerned with relieving the state of the financial burden of supporting indigent widows and children. The courts were not empowered merely to make such provision for an applicant as would rescue the applicant from destitution."

1. But this does not mean that the submission made on behalf of Kyle that he should receive a lump sum of $250,000 should be accepted. Such a lump sum would, in my view, be more than adequate and proper provision.

1. In my view, having considered all of the matters I am required to consider, and bearing in mind that, at his age, it is impossible to calculate, with precision, what his current and future needs will be, doing the best I can, I consider the amount of the lump sum that Kyle should receive by way of family provision order should be $195,000.

1. After the payment of what might be regarded as his quantified needs as they are paid, the balance should provide him with a fund for exigencies and contingencies and for a financial start in life as an adult. Income that is paid, may be used also to meet expenses that Melissa is unable to meet.

1. It will be appreciated that, after the payment of that lump sum, and the payment of costs, there will remain an amount of about $305,000 available in the testamentary trust.

1. Bearing in mind Kyle's age and maturity and his emotional and psychological issues, I consider it would not be appropriate to allow any capital payment to him to be paid until he is older than 18 years. Any further provision for him needs to be in the form of a separate trust fund to vest when he attains the age of 25 years (the age stated by the deceased in the Will and in 2005). The trust should provide that both income and capital may be used for the purposes of Kyle's maintenance, education, advancement and benefit until that age. If Kyle does not attain the age of 25 years, any balance of income or capital then remaining, should be paid to Melissa if she is still alive.

1. The court was informed, from the bar Table, that the NSW Trustee and Guardian is prepared to act as the trustee of the lump sum the subject of the family provision order. There is no reason not to appoint the NSW Trustee and Guardian as trustee.

1. I direct the parties, within 14 days, to bring in short minutes of order to give effect to the matters referred to below and any other matters upon which agreement can be reached consistent with these reasons:

(i) Having found that the Plaintiff, Kyle Liam Griffiths, is an eligible person; that there are factors which warrant the making of his application; and that the provision made for him in the Will of the deceased is inadequate for his proper maintenance or advancement in life, order that he is to receive, in lieu of that provision, a lump sum of $195,000 out of the estate of the deceased.

(ii) The burden of the provision made for the Plaintiff, should be borne out of the residuary estate of the deceased that has been distributed to Cherie as trustee of the discretionary trust.

(iii) No interest is to be paid on the lump sum if that lump sum is paid within 7 days of the making of orders; 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.

(iv) Pursuant to s 77(3)(a) of the Civil Procedure Act 2005 (NSW), the lump sum payable out of the estate of the deceased should be paid to the NSW Trustee and Guardian to be held on trust for the maintenance, education, advancement, or benefit of the Plaintiff, until he reaches the age of 25 years. If he does not attain the age of 25 years, any balance held at the date of his death should pass to Melissa.

(v) The costs of all parties shall be paid out of the estate or notional estate, the Plaintiff's costs to be calculated on the ordinary basis, and the Defendant's costs to be calculated on the indemnity basis.

(vi) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW).

(vii) Leave be granted to any party, and to the NSW Trustee and Guardian, as trustee of the amount to be held for the Plaintiff, to apply, in these proceedings, with respect to orders for the purpose of giving effect to, or implementing, the family provision order made in favour of the Plaintiff.

1. I shall stand the matter over for 14 days to enable the preparation of short minutes of order. It would be extremely useful and will, undoubtedly, save further costs, if the amount for Kyle's costs and disbursements could be agreed.

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Amendments

14 October 2014 - "s 76(4)(a)" replaced with "s 77(3)(a)" in first line of subparagraph (iv)

Amended paragraphs: 215(iv)

Decision last updated: 14 October 2014