Grover v NSW Trustee and Guardian

[2015] NSWSC 1048

Supreme Court

New South Wales

Medium Neutral Citation:	Grover v NSW Trustee & Guardian [2015] NSWSC 1048
Hearing dates:	20 and 21 July 2015
Decision date:	04 August 2015
Jurisdiction:	Equity Division
Before:	Hallen J
Decision:	The orders of the court are that: (i)    Sufficient cause having been shown, the time for the making of the Plaintiff’s application be extended to 15 July 2013, the date of the filing of the Summons. (ii)   Having found that the Plaintiff 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, he is to receive a lump sum of $225,000 out of the estate of the deceased. (iii)   The burden of the provision made for the Plaintiff, should be borne out of the share of the residuary estate of the deceased passing to Donna Marea Costigan; and to the extent that it is insufficient, by the balance of the residuary estate. (iv) No interest is to be paid on the lump sum payable to the Plaintiff, if that lump sum is paid within 14 days of the making of these 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. (v)   Unless an application to vary this costs order is made within 7 days of the date of handing down these reasons for judgment, the costs of the Plaintiff, calculated on the ordinary basis; the costs of Donna Marea Costigan, for the period that she was a party between 21 February 2014 and 5 December 2014, calculated on the ordinary basis; and the costs of the Defendant, calculated on the indemnity basis, shall be paid out of the residuary estate of the deceased. (vi) Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW).
Catchwords:	SUCCESSION – FAMILY PROVISION – The Plaintiff, a grandchild of the deceased applies for a family provision order under Part 3.2 of the Succession Act 2006 (NSW) – The Defendant, the executor of the Will of the deceased, to whom Probate was granted – Extension of time for making Plaintiff’s application required – Dispute that Plaintiff is an eligible person – Dependency in issue – Whether 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 – Nature and quantum of provision to be made for the Plaintiff – How burden of the provision is to be borne
Legislation Cited:	Civil Liability Act 2002 (NSW) Family Provision Act 1982 (NSW) Life Insurance Act 1995 (Cth) Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW) Succession Amendment (Family Provision) Act 2008 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Aafjes v Kearney [1976] HCA 5, (1976) 180 CLR 199 Alexander v Jansson [2010] NSWCA 176 Allardice, In re, Allardice v Allardice (1909) 29 NZLR 959 Amaca Pty Ltd v Novek [2009] NSWCA 50 Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 Aubrey v Kain [2014] NSWSC 15 Bartlett v Coomber [2008] NSWCA 100 Bayssari v Bazouni [2014] NSWSC 910 Boettcher v Driscoll [2014] SASC 86; (2014) 119 SASR 523 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Burke v Burke [2015] NSWCA 195 Butcher v Craig [2009] WASC 164 Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748 Challenger Life Company Ltd v Estate of the late Robert John Real [2014] FCA 1325 Chapple v Wilcox [2014] NSWCA 392; (2014) NSWLR 646 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; (2009) 2 ASTLR 89 Doshen v Pedisich [2013] NSWSC 1507 Dunn v McCarthy [2010] NSWSC 675 Edgar v Public Trustee for the Northern Territory [2011] NTSC 5 Foley v Ellis [2008] NSWCA 288 Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep) Gardiner v Gardiner [2014] NSWSC 435 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 Griffiths v Craigie [2014] NSWSC 1339 Hampson v Hampson [2010] NSWCA 359 Harrison v Harrison [2011] VSC 459 Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 Hyland v Burbidge [2000] NSWSC 12 In re Allardice; Allardice v Allardice (1910) 29 NZLR 959 In the Estate of Puckridge, Deceased (1978) 20 SASR 72 In the Estate of the late Anthony Marras [2014] NSWSC 915 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 Kauri Timber Co (Tas) Pty Ltd v Reeman [1973] HCA 8; (1973) 128 CLR 177 Kay v Archbold [2008] NSWSC 254 Kembrey v Cuskelly [2008] NSWSC 262 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 McKenzie v Baddeley [1991] NSWCA 197 McKenzie v Topp [2004] VSC 90 Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146 Mayfield v Lloyd-Williams [2004] NSWSC 419 Middleton v Kiama District Hospital [1970] 3 NSWR 136 Moore v Randall [2012] NSWSC 184 Morrison v Carruthers [2010] NSWSC 430 Neale v Neale [2015] NSWCA 206 Nowak v Beska [2013] NSWSC 166 Palagiano v Mankarios [2011] NSWSC 61 Petrohilos v Hunter (1991) 25 NSWLR 343 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 R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 Re Buckland Deceased [1966] VR 404 Re Dennis (Deceased) [1981] 2 All ER 140 Re Fulop, Deceased (1987) 8 NSWLR 679 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 Salmon v Osmond [2015] NSWCA 42 Sassoon v Rose [2013] NSWCA 220 Simonetto v Dick [2014] NTCA 4 Simons v Permanent Trustee Co Ltd: Estate D. Hakim [2005] NSWSC 223 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Skinner v Frappell [2008] NSWCA 296 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522 Slack-Smith v Slack-Smith [2010] NSWSC 625 Sophron v The Nominal Defendant [1957] HCA 27; (1957) 96 CLR 469 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Szypica v O’Beirne [2013] NSWSC 297 Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 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 Worsley v Solomon [2008] NSWSC 444 Zannetides v Spence [2013] NSWSC 2032
Texts Cited:	J D Heydon and M J Leeming, Jacobs’ Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths) The Macquarie Dictionary 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
Category:	Principal judgment
Parties:	Shaun Stafford Grover (Plaintiff) NSW Trustee & Guardian (Defendant)
Representation:	Counsel: Mr R Wilson SC (Plaintiff) Mr D Stewart (Defendant)   Solicitors: Brazel Moore Lawyers (Plaintiff) NSW Trustee & Guardian (Defendant)
File Number(s):	2013/214385

Judgment

Introduction

1. HIS HONOUR: This is a claim made for a family provision order under Part 3.2 of the Succession Act 2006 (NSW) (“the Act”) out of the estate of Robert John Real (“the deceased”). (There is no estate which is sought to be designated as notional estate.) The claim is made by Shaun Stafford Grover, the only grandchild of the deceased. The Defendant is the NSW Trustee & Guardian, the executor named in the deceased’s last Will, to which Probate has been granted.

2. 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 of the Act, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person.

3. The proceedings were commenced by Summons filed on 15 July 2013, some 6 days later than the time prescribed by the Act for the bringing of proceedings (not later than 12 months after the date of the death of the deceased). At the commencement of the hearing, the Plaintiff, without objection, sought, and was granted, leave to file an amended Summons in which he sought an additional order that the time for the making of his application be extended until the date of the filing of the Summons. The case proceeded upon the basis of the relief sought in that document.

4. On the topic of the extension of time, counsel for the Defendant, in written submissions, wrote:

“As the delay is short; the Estate was put on notice of the potential claim for provision ‘within time’; and no real prejudice other than the delay in finalising the Estate has been caused, but, in circumstances where an issue over an annuity of the deceased was only determined on 5 December 2014, the Defendant does not oppose an extension.”

5. At the hearing, counsel for the Defendant confirmed that the Defendant neither consented to, nor opposed, the making of an order extending the time for the making of the Plaintiff’s application. (Unlike the former Act, which included a provision for time to be extended by consent (s 16(3)), the Act does not include a similar provision. Accordingly, the court may only make an order extending the time for the making of the application, “on sufficient cause being shown”: s 58(2) of the Act.)

6. Without any undue familiarity or disrespect intended, and for convenience, I shall hereafter refer to the Plaintiff and any other natural persons who are identified, after introduction, either by his, or her, given name, or by the role each plays in the proceedings.

7. I wish to make clear that it is impossible to reach clear findings on all of the issues, some of which could not be tested because they involve events that occurred many years ago, and others that involve conversations said to have occurred with the deceased at which the other party was not present. The Court can never know all the circumstances. Nor can this judgment hope to identify all of the detail of the affidavits filed, or to reconcile the many contradictory expressions of fact and opinion that are revealed by those affidavits. I shall record my findings on what I regard as the most important issues.

8. I remember, as well, that the fact a statement is said to have been made by the deceased does not mean, necessarily, that the statement must unquestionably be accepted as true. Such a statement may be just as inaccurate, or as unreliable, as a statement of a living witness, whether as the result of mistake, or failure of memory, or deliberate untruth: Worsley v Solomon [2008] NSWSC 444, per McLaughlin AsJ, at [35].

Background Facts

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

10. The deceased died on 9 July 2012. He was then aged 86 years, having been born in February 1928.

11. The deceased married Shirley Beatrice Real in June 1950. She predeceased the deceased, having died in June 1992. There was only one child of their marriage, namely Paul Stafford Real, who was born in January 1961. He, too, predeceased the deceased, having died in July 2011.

12. Shaun is the only child of Paul and Pamela May Grover. He was born in July 1980.

13. Shaun has the following children from his relationship with Angela Phillips, namely Hailey Grover, who was born in June 2003; Jackson Grover, who was born in June 2004; Jessica Grover, who was born in March 2006; Robert Grover, who was born in August 2009; and Hamish Grover, who was born in August 2012. Raina Phillips, who was born in November 2001, is a child of Angela Phillips. She, too, lives with Shaun, Angela, and their children.

14. The deceased made several wills during his lifetime. Relevantly, he made his last Will on 21 February 2012. Probate in common form of that Will was granted, by this court, to the Defendant, on 21 September 2012.

15. The deceased’s Will, relevantly, provided:

“3   I give the following gifts to my friend DONNA MAREA COSTIGAN if she survives me.

3.1   The gifts are:

- all my real estate

- any motor vehicles I own when I die and all accessories for them

- my dog ‘Lucky’

3.2   If this real estate is charged at the time of my death with the payment of money, for example, by mortgage, I confirm that this real estate so charged will be primarily liable for the payment of the charge.

3.3   If the gift in clause 3 does not take effect, I give this gift to my friend CLINT STUART COSTIGAN if he survives me.

RESIDUE

4   I direct the rest of my estate be used first to pay my estate liabilities.

5   After payment of my estate liabilities, I give the rest of my property to my Trustee on trust to divide into enough parts to pay those of the following gifts which will take effect. All parts are of equal value. (No parts are to be set aside for any gifts which do not take effect).

5.1   I give 1 part to my friend DONNA MAREA COSTIGAN if she survives me.

5.2   I give 1 part to be shared among those of the following people who survive me and those of my grandson SHAUN GROVER’s children who survive me. (This includes children born or adopted after I made this Will):

- my great granddaughter JESSICA GROVER

- my great granddaughter HAYLEY GROVER

- my great grandson JACKSON GROVER

- my great grandson ROBERT GROVER

- my step great granddaughter REYNA [sic] PHILLIPS”

16. (Shaun and Angela have had two children who were born after the death of the deceased. The Defendant has indicated that they, too, may be persons who share in the estate of the deceased under Clause 5.2 of the Will. I was not asked to construe the deceased’s Will in this regard. During his submissions, counsel indicated that the Defendant will give further consideration to the question of their entitlement, if any, to share in the residuary estate, and, if necessary, will allow a representative of those two children to make submissions on the question, which may result in a will construction suit being brought.)

17. In the Will Information Form, dated 18 January 2012, a copy of which was Ex. 1, the original of which was completed by an officer of the Defendant who took instructions for the deceased’s last Will, Shaun was identified as a “Potential Claimant” who may make a claim under the Act. In that document, next to the heading “Reason for Exclusion”, the following appears:

“May claim long term dependency – Testator states that Shaun only used to spend school holidays with him & resided with him briefly for a few months (approx 6 months) some years ago.”

18. Importantly, the deceased did not deny that Shaun had been dependent upon him during the periods that he identified. Nor did he provide any explanation of the type said by Donna to have been provided by the deceased to her, to the officer of the Defendant.

19. 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 $1,514,674. No liabilities were disclosed. The estate was said, then, to consist of real estate at Albion Park, New South Wales, ($400,000), money in bank accounts or in institutions on deposit ($199,672), the deceased’s interest in Paul’s estate ($60,000), a motor vehicle ($16,590) and other personal property ($4,483).

20. There was also included in the Inventory, as part of the deceased’s estate, the proceeds of life policies held with Challenger Life ($833,928). However, as will be detailed later, only part of the proceeds of those life policies formed part of the deceased’s estate. (I have omitted, and shall omit, any reference to cents in the amounts stated which will explain any apparent mathematical miscalculations.)

21. At the commencement of the hearing, the parties agreed that the gross distributable estate, at the date of the hearing was estimated to be $1,384,816. The estate was said to consist of the Albion Park property ($635,000), cash ($198,861), the proceeds of the estate of Paul ($58,511), motor vehicles (which were distributed to Donna) ($25,590), other personalty ($4,483), the proceeds of the Challenger annuity paid after the determination of proceedings in the Federal Court ($459,333) and a taxation credit ($3,036).

22. Out of that amount, the estimated fees and commission of the Defendant ($30,883), the balance of legal costs of Federal Court proceedings to which I have referred ($1,980), the estimated costs and expenses of the preparation of estate tax returns, and a provision of a tax liability of the estate ($2,000) and for CGT ($50,000), should be deducted.

23. The parties also agreed, at the hearing, that the gross amount available to satisfy any provision to be made for Shaun would be $1,299,953. (There is a question whether the estimated CGT, in fact, will need to be paid out of the estate. If it is not paid out of the estate that will increase the amount of the estate by $50,000 (so that it is $1,349,953)).

24. However, in calculating the value of the estate of the deceased, that is available, finally, for distribution, the costs of the present proceedings should also be considered, albeit with circumspection, since an applicant, 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, whilst the executor, irrespective of the outcome of the proceedings, normally, will be entitled to an order that its costs, calculated on the indemnity basis, be paid out of the estate of the deceased. (In stating this, I do not forget that “the Court is required to adopt practices and procedures which seek to resolve the issues between the parties in such a way that the cost is proportionate to the importance and complexity of the subject matter in dispute” or that “[t]he Court also has power to specify a gross sum instead of assessed costs when making a costs order”: Neale v Neale [2015] NSWCA 206, per Basten JA (with whom Macfarlan and Gleeson JJA agreed), at [38].

25. Mr G R Brazel, the Plaintiff’s solicitor, estimated Shaun’s costs and disbursements, calculated on the ordinary basis, to be $75,000, inclusive of GST and upon the basis of a 2 day hearing.

26. Ms J C Brouwer, the Defendant’s solicitor, estimated the Defendant’s costs, out of pocket expenses, and counsel’s fees, inclusive of GST, calculated on the indemnity basis and on the basis of a 2 day hearing, to be $61,059. However, there have been paid out of the estate, some counsel’s fees ($16,480) and the costs of an unsuccessful mediation ($5,571). Accordingly, the balance of the amount that would be payable out of the estate, if the usual costs order in favour of the Defendant is made, will be $39,008.

27. Donna, too, seeks her costs (estimated to be $22,742) incurred in these proceedings whilst she was a party. If an order is made that her costs are to be paid out of the residue of the estate, practically speaking, she will be paying one half of those costs, as she, as to one part, and some of the great- grandchildren of the deceased, as to the other part, share the residue equally. During final submissions, whilst senior counsel for the Plaintiff said that those costs should not be paid out of the estate, the only reason advanced was that two sets of costs should not be paid out of the estate.

18. I note that on 21 February 2014, the parties signed Short Minutes of Order, Paragraph 1 of which was an order that the Plaintiff be granted leave to file an amended Summons joining Donna and Challenger Life Limited as additional Defendants. Although the Plaintiff does not appear to have filed the amended Summons, on a number of directions hearings subsequently, Ms Costigan was represented. On 5 December 2014, an order was made that she be removed as a Defendant in the proceedings.

19. In the circumstances, it seems to me that her costs of appearing, calculated on the ordinary basis, for the period between 21 February 2014 and 5 December 2014, should be paid out of the estate of the deceased.

20. Subject to what was described by senior counsel for the Plaintiff as the “remote possibility” that the terms of an Offer of Compromise might be relevant to the issue of costs, the parties agreed that, in the event that Shaun 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. Hopefully, this will be unnecessary.

21. It can be seen, and the parties agreed, that if the estimates of costs ultimately prove accurate, and all of those costs are ordered to be paid out of the estate, the net estate available to meet the provision to be made for Shaun, is about $1,163,203. (If the CGT is not payable, then the value of the net estate available to meet the provision to be made for Shaun will be $1,213,203.)

22. Senior counsel for the Plaintiff, accepted that the devise of the Albion Park property made to Donna should not bear any part of the burden of the provision, if any, or costs, made for the Plaintiff. He submitted, however, that her share of the residue should bear, entirely, the burden of the provision, if any, to be made, and only if the Plaintiff received a lump sum that exceeded her share of residue, should his children’s share of residue bear the burden of the provision made for him.

23. Counsel for the Defendant submitted that if a family provision order were to be made, it should be a lump sum order that should be borne by the residuary estate, with the effect that both parts of the residuary estate would bear equally the burden of the provision.

24. I should mention that the Albion Park property had an agreed value, at the date of hearing of $635,000. The land comprises 2,077 sq. metres. The home on the property is described as, and photographs depict, “a somewhat large, but dated single level, brick veneer, tile and clip-lock roof detached residential dwelling which appears to have undergone several rear additions over the years. The home provides a spacious four bedroom, two bathroom floorplan, with incorporated single garage, plus large covered in-ground pool with storage area and workshop”: Ex. 2. Apparently, the land has “development potential”.

25. The Plaintiff identified no other eligible persons in the Notice of Eligible Persons served upon the Defendant. The Defendant agreed that there are no persons who are eligible persons. (As stated, it disputed that the Plaintiff is an eligible person.)

26. There is evidence that notice of the Plaintiff’s claim has been given to the tutor of the Plaintiff’s children, Pamela, who had appeared in the Federal Court proceedings to which reference will be made. The tutor did not seek to play any part in the proceedings.

Some Additional Undisputed Background Facts

37. There are other facts that I am satisfied are not in dispute, or that have been established, on the evidence that I have read. These facts may be dealt with under different subject headings that I shall identify.

Prior Testamentary Intentions of the Deceased

38. The deceased made a number of wills during his lifetime. The evidence reveals that the first in time was a Will made on 7 May 1979. In that Will, the deceased left the whole of his estate to Shirley, but if she did not survive him, to Paul, but if he did not survive the deceased, then to “the child or children of my said son who shall survive me and attain or have attained the age of eighteen (18) years”.

39. The Will, second in time, was made by the deceased on 19 October 1994. By that Will, the deceased left the whole of his estate to Paul, but if the gift did not take effect, “I give all my property to my grandson SHAUN GROVER if he survives me by 1 calendar month”.

40. A copy of each of these two Wills was annexed to Shaun’s first affidavit read in the proceedings.

41. The third Will in time was made by the deceased on 11 October 2011 (a copy of which was Ex. 4). That Will, relevantly, appointed the deceased’s then solicitor, Nigel Ian Duncan, and Donna, or the survivor of them, as the executors, and went on to provide:

“5.   I GIVE DEVISE AND BEQUEATH the whole of my property both real and personal of whatsoever nature and wheresoever situate UNTO my said Trustees UPON TRUST to sell call in and convert into money the same or such part or parts thereof as does not already consist of money and from the clear monies arising from such sale calling in and conversion together with any ready moneys forming part of my estate to pay my just debts funeral and testamentary expenses and State and Federal death duty and taxes if any payable in respect of my Estate and to divide the residue then remaining equally between the children of my grandson SHAUN STAFFORD GROVER as shall survive me whether such children of my said grandson are his biological children or step-children.”

42. I have read Donna’s evidence concerning a conversation that she said that she had with the deceased and why he was excluding Shaun from provision in his Will. Whilst I cannot say that the evidence is inaccurate, it is to be noted that the deceased’s statements that he was excluding Shaun because he “is a bit of a no hoper”; because he had not seen Shaun for years; because he had just found out that Shaun was, or had been, in jail; or because if provision were made for Shaun, “he would use it to buy drugs, and those poor little kiddies would get nothing”, does not find its way into any Will or other document.

43. I note, also, that the conversation about the exclusion of Shaun from the October 2011 Will was said to have occurred in a solicitor’s office in the presence of the solicitor. However, the solicitor involved was not called to give evidence of the conversation and his Will file was not produced in evidence.

44. The deceased gave instructions to an officer of the Defendant in about December 2011 to prepare a draft Will, a copy of which draft is Ex. D in the proceedings. That draft relevantly provided for a devise of the deceased’s real estate to Donna, if she survived, and gave to her the deceased’s dog, “Lucky”. The rest and residue of the deceased’s estate was to be used to pay “estate liabilities” as defined and the rest of the deceased’s property was given to “my step-granddaughter REYNER [sic] PHILLIPS and any future children my son [sic] Shaun Stafford may have after making this Will who survive me”.

45. The copy of the Will Information Form, dated 12 December 2011, which was Ex. E, under the heading “Will Instructions”, stated:

“All real estate to 1 Donna then to 2 Clint.

Rest and residue to be divided equally to any issue born to my son 2 Shaun Stafford and Pamela Grover and to also include step-grand daughter Reyner [sic] Phillips (not biological).

I give my ‘German Shepherd’ Lucky to 1 Donna”

46. In this document, reference was made to the Act and the “persons who can make a claim, if not adequately provided for under the Will”, were identified. One such category of eligible person was “f. Grandchildren, wholly or partly dependent on you at any particular time”. Next to the question “Is there anyone in the above (a-h) who has not been adequately provided for in the Will?” the box bearing the word, “No”, was ticked.

47. Under “General Comments” in Ex. E, the following appears:

“Donna Marea Costigan was present and attempted to influence client re: names of beneficiaries, re disposal directions relating to realty. Requested to sign on behalf [of] client, repeatedly stressing her appointment as Guardian and Power of [Attorney].”

48. It seems that a copy of the draft Will was sent to the deceased because Donna subsequently attended at the Wollongong Branch of the Defendant on 17 January 2012 and provided some instructions, in writing, part of which she had written, identifying errors in the draft Will. The copy of the document she provided, part of which was in Ex. C, was in the following terms:

“*   Shaun is GRANDSON (4.1)

*   should be “Reyner Phillips and any biological children Shaun Grover has had prior to this will being made. (4.1)

Should be.

*   Rest of property 50% equally to Donna and children 50% (4.1)

42296511               2pm-8pm

Visiting hours

*   Reyner Phillips and any other children are Roberts great grandchildren (4.1)”

(Other words and numbers in Ex. C were not on the document when it was provided to the officer of the Defendant.)

49. Donna gave evidence that what had been written in Ex. C and communicated to the officer of the Defendant were the instructions that she had received from the deceased. It was not put to her in cross-examination that they were not his instructions. It was put to her, however, that she had sought to influence the deceased, an allegation that she denied.

50. A copy of a Diary Note of Olivera Dornazet, the officer of the Defendant who spoke with Donna on 17 January 2012 is Ex. F and it provides:

“On the 17th January 2011, Donna Mare [sic] Costigan attended NSW Trustee & Guardian Wollongong with draft copy of Robert John Real’s Will.

Mrs Costigan advised that the Will was all wrong and the new changes were written on the back of the draft copy. Handwriting appeared not to be that of Mr Real.

Mrs Costigan then advised that Mr Real was in Lawrence Hargrave Hospital in Thirroul and said that visiting hours were only between 4pm and 8pm and ‘that was the only time I was able to see the client’.

I contacted the hospital and spoke to Louis, Mr Real’s nurse who advised that visiting hours were between 2pm and 8pm. I asked whether myself and a colleague would be able to see Mr Real preferably in the morning. He was happy with that and said that no visitors would be present at that time and that if there should be someone there we would be able to use a private room.

An appointment was schedule [sic] for 10.00am. on the 18th January 2011.”

51. (It was agreed that the year 2011, where it appears in Ex. F, should be a reference to 2012 and that there had been a typographical error made on that document.)

52. I have earlier referred to the last Will of the deceased. It is clear from the copy Will Information Form, which is Ex. 1, to which I have earlier referred, that the instructions for this Will were obtained from the deceased and that Donna was not present when those instructions were given. Under the heading “General Comments”, the following appears:

“Saw Mr Real at hospital alone. He was very clear about his wishes and was able to provide great grandchildren’s names which escaped him last interview. He advised that he was happy with Donna Costigan as his POA jointly with neighbour, Mr Saunders.”

Paul

53. Paul suffered catastrophic injuries in a motorcycle accident in August 1982 (when Shaun was aged 2 years). He suffered a severe head injury which left him wheelchair bound, with incomplete quadriplegia and minimal speech.

54. In 1984, Paul’s action for damages for personal injuries was settled in an amount of $1.9 million, which fund was held by the then Protective Commissioner of NSW, who had been appointed the financial manager of Paul.

55. Following Paul’s motor vehicle accident, he and Pamela separated, and Paul returned to live with the deceased and Shirley. When the deceased purchased the property at Albion Park, Paul moved to Albion Park to live with him.

56. The Albion Park property was purchased for $90,000, by the deceased and Shirley, in March 1987. Subsequently, improvements were done to the property. It appears that the Protective Commissioner, in October 1988, sought a mortgage over the property to secure the amount of $118,545, which amount was repayable on demand and which bore no interest until a demand for interest was made. However, it was agreed that the mortgage would not be registered but that it, with the title deeds for the Albion Park property, would be retained by the Office of the Protective Commissioner.

57. In or about 1988, Paul, the deceased, Pamela and Shaun went to the United States for a holiday. It appears that at least some of the expenses of the holiday were paid by Paul.

58. By February 1992, Paul was being paid $3,000 every four weeks to cover his expenses.

59. In May 1992, the Office of the Protective Commissioner commenced the payment of maintenance for Shaun out of funds held on Paul’s behalf. It paid $100 per fortnight to a bank account in Shaun’s name.

60. For a period of about 6 to 8 months, in 1995 or 1996, Shaun went to live with Paul and the deceased in the Albion Park property to assist in the looking after of Paul. Shaun gave evidence that during the period that he lived there, he received a carer’s pension and allowance, together totalling between $770 and $780 per fortnight. Whilst he used some of this income for his own needs, he did not use any part of it to pay board to the deceased.

61. Shaun’s evidence, at T36.05-T36.15, is:

“A.  I wasn’t there very long.  That’s when I ended up moving down with pop and dad, and taking care of dad.  Pop was finding it a bit hard to deal with dad, as he was getting older, and the carers, it was just costing him too much money, and dad’s money was going so quick.  So I then decided to go down there and, yeah, hang out.

Q. That was the, let’s call it approximately six months, whether it was a bit longer or a bit shorter, but the whole purpose of that move to Albion Park was to support your father, was it?

A.  Yeah, well, support my dad and my grandfather.  As I said, pop was having a really hard time lifting dad and that, you know.  He was getting elderly.”

62. Other than for this relatively short period, the principal burden, for most of Paul’s life following the accident, was borne by his parents, and following Shirley’s death, by the deceased, although Paul did have a number of carers who attended 6 hours per day, 7 days per week.

63. In about 2002, the deceased wrote to the Protective Commissioner as he was concerned about Paul’s future wellbeing, having “no support from any family members”. The deceased also reported to the Illawara Area Health Service that “they have no relatives remaining who would be able to care for Paul”.

64. In 2009, the deceased reported to Northcott Disability Services “that there are no other family members who are able to care for Paul. Paul does have a son but there has been no contact for at least 3 years, his current whereabouts is [sic] unknown”. The deceased also said that he did not consider that Shaun “would be a suitable person to look after [Paul]”.

65. In April 2009, the deceased is said to have reported to the Guardianship Tribunal that he was “Paul’s only family” and that “his grandson does not have contact with his father”.

66. Paul left a Will that he made on 21 June 2006. The Public Trustee (now the NSW Trustee & Guardian) was the executor named in that Will. The NSW Trustee & Guardian filed an election to administer Paul’s estate by Election Letter dated 16 November 2011, a copy of which letter and Will is Ex. 5.

67. By that Will, Paul left the whole of his estate, after payment of estate liabilities (as defined), to the deceased, but if that gift did not take effect, then to Shaun.

68. By letter dated 29 November 2011, the NSW Trustee & Guardian informed the deceased that the estimated value of Paul’s estate was likely to be about $76,000, with a capital commission charge of $3,500, and any other out of pocket expenses, such as legal advertising, Probate Court fees and agents commission, to be deducted.

69. In an affidavit of Administrator, sworn on 16 June 2015, read in these proceedings, Ms Brouwer stated that “[u]pon finalisation of the estate of… Paul… on 24 February 2014, [the Defendant] received into its trust account in the estate of [the deceased] the sum of $58,511”.

70. The amount received by the estate following Paul’s death, as well as the amount paid out of Paul’s funds for improvements carried out to the Albion Park property have increased the value of the deceased’s estate.

71. Following Paul’s death, Shaun received a death benefit of $5,984. This is the only amount that he received out of Paul’s estate.

The Plaintiff

72. Shaun attended high school but did not advance beyond Year 8. He commenced a moulder apprenticeship but only completed about 12 to 18 months of the four year course. He then worked in different jobs for varying periods. Since late 2010, he has been unemployed.

73. He lives with Angela Phillips and their children, and her child, in rented accommodation in a public housing estate in North Gosford. One of their children, Jackson, has been diagnosed with Asperger’s Syndrome.

74. Shaun made reference to having been imprisoned in 2010 in his affidavit, but did not provide details of his criminal conduct. However, some documents produced on subpoena (a copy of which, with a copy of the subpoena was Ex. 3) revealed that his first contact with the Probation and Parole Service was “by way of a supervised Section 9 Bond in 2003. [He had] failed to report to the service and following breach action, the Order was revoked and a further six month Section 9 Bond was imposed”. In 2008, he was subject to a further Section 9 Bond for a period of 18 months, with which he complied “on a superficial level with the offender expressing intent to change his criminal behaviour and drug usage without taking any significant action”. He breached the order “by means of re-offence and was sentenced to a further 12 months Section 9 Bond”.

75. The following passage then appears in a Pre-Sentence Report, dated 20 December 2010, addressed to Gosford Local Court:

“Mr Grover was sentenced to two Community Service Orders in November 2009 in relation to the offences, Larceny and Enter Dwelling with Intent to Steal. As of the date of this report he has completed 86 hours 15 minutes of his assigned 100 hour Orders. It is noted that his compliance with the Orders has been deemed ‘unsatisfactory’ with numerous inexcused [sic] absences and time off for medical reasons and family responsibilities. Despite this an extension has been granted by the court to allow Mr Grover more time to complete his Community Service Order.

SUMMARY AND COMMUNITY BASED SENTENCING OPTIONS

Mr Grover is thirty years of age and at present is on remand at the Parramatta Correctional Centre. The offender reports that prior to his incarceration he was residing with his de-facto partner and their 5 children aged between… 12 months [and] 8 years at Wyoming. Mr Grover has been unemployed for a number of years and is [in] receipt of Centrelink benefits.

During [the] interview the offender acknowledged that at or about the time of committing the subject offences his mis-use of prescription drugs was ‘out of control’. The offender advised that he was addicted to Xanax and Oxycontin which he acquired from an unknown source. Mr Grover further advised that he was using illicit drugs (cannabis) on a regular basis prior to going into custody. He stated that this dependency had been the primary motivating factor for his offending behaviour as he committed the offences in order to support his own addiction.

Mr Grover reports that since going into custody he has ceased his use of Oxycontin and Xanax and has been prescribed an anti-depressant which has provided him with ‘stability’. The offender maintains that he is personally motivated to address his addictions to drugs upon his release and states that he is willing to engage with the appropriate service provider to assist his resolve. It would appear that Mr Grover’s prospects for rehabilitation very much depend on his attendance at counselling and or programs designed at addressing his drug use.

Mr Grover suffers from a pre-existing back condition (bulging disc) and as a result has been prescribed methadone as a pain treatment. The offender advised that he has been receiving treatment for his condition since his incarceration; however he continues to experience discomfort.”

76. Other documents, forming part of Ex. 3, reveal that in 2010, Shaun was charged with several counts of larceny, several counts of maliciously destroy or damage property, and one count of enter enclosed land not prescribed premises without lawful excuse. The larceny value was less than $2,000. He was sentenced in October 2010, to a total sentence period of 1 year and 9 months, but served 1 year only.

77. During his incarceration, “case notes indicated good custodial conduct with nil issues”. He gave evidence that he completed a drug programme whilst in jail and when he was released he was no longer addicted to the drugs that he had been taking. (There was also information regarding cannabis use. He was not asked any questions about whether he continued to use cannabis.)

78. There was no evidence given of any subsequent criminal conduct by the Plaintiff since 2011.

79. Whilst Shaun was incarcerated, in about August 2011, he wrote a letter to the deceased in the following terms:

“To Pop,

Hello Pop it’s me Shaun I hope your good im sorry that I hav’nt written to you before but ive allway worried that you would be disappointed with me for being here in jail and you and dad have always been the only two males in my life im so sorry that I couldnt be there with you and dad when he was sick I will never forgive myself for that I find it hard to be able to say how I feel sometimes but I can say that you and dad done every thing you could do for me when I was growing up you always treated me good and gave me every thing I wanted when I lived with you and somtimes I feel like I let you and dad down but ive always been a bit confused growing up it was hard for me a lot of the time not knowing were I belonged or where I was going to end up and now dad’s gone and I never spent enogh time with him and the kids didn’t get to see him and you as much as I would have liked and I will never forgive myself for that I wish I could of made you and dad proud of me but I get out in ten weeks and I would really like to come visit you with the kids hope to speak with you soon always thinking about you Pop love you ill ring you soon as I get the chance bey Pop.”

80. The importance of this letter is that it is one addressed to the deceased. There is no evidence that Shaun had written a letter, at any earlier time, in similar terms, or at all, to Paul, his father (who had recently died).

81. The deceased responded to this letter in the following terms:

“Dear Shaun,

I was pleased to hear from you and hope you are well.

You know you are always welcome here.

We all do silly things when young, so I hope you have learnt a lesson now.

You have a young family to look after now so I hope you make them proud of you.

I will look forward to seeing you and your family down here when you are released.

Your fond Pop Bob”

82. Donna gave some evidence about the deceased’s comments to her at the time he received the letter from Shaun. She admitted that the deceased was angry with Shaun at the time, but she went on to concede that what he said to her was inconsistent with what he had written to Shaun: T79.13-T79.16.

83. It is not necessary to determine whether I should accept Donna’s evidence on this topic. It is clear that, by the time the deceased wrote the letter to Shaun, any anger held by him towards Shaun appears to have subsided. The contents of the letter clearly reveal affection for, and an interest in, Shaun. The invitation that Shaun should visit, and the expressed anticipation of any such visit, with his family, is evident in the letter.

84. Following his release from jail, Shaun wrote to the deceased again, this time in the following terms:

“Dear Pop

ive been meaning to get in contact with you for a while now but life with all the kids, is a bit chaotic im sorry it’s taken so long for me to make contact. i have also been a bit hesitant to call you i don’t know why but i feel like mabey im intruding when i visit i really wanted to help you and try to get you well again i thought that you might like me to come and stay with you after you came home from hospital but i got the feeling that you didn’t need my help and i know that your carer takes good care of you very well and that’s great it gives me peace of mind knowing your looked after but i would also like to help you get back on your feet and to spend time with you. i would love for you to meet your grandson Robert who i named after you i have so many fond memories of being with you and dad and i would love to spend more time with you Pop and the kids ask me all the time when can we go and see Popie bob we all look forward to hearing from you if you need anything or just want some company i would really like to come and see you again. you are always in our thought’s”

85. Angela gave evidence, which I accept, that she realized that Shaun had not included their telephone number in the letter he had written to the deceased, and she enclosed the following note with the letter:

“Hi Bob,

It’s Angela Shaun’s girlfriend. He forgot to put our phone number in his letter … xxx xxx xxx.

Please don’t hesitate to call us…. anytime xoxo

Hope to hear from you soon

Angela”

86. Shaun visited the deceased and stayed with him for three days in November 2011.

Donna

87. The deceased met Donna in June or July 2010. Thereafter, they appear to have become friends. Over time, Donna played a greater role in the deceased’s life, to the point where, after about 8 months or so, she was visiting him at his home daily, some times for just a few minutes, and at other times, for a longer period. She started to drive him when he needed and she helped him with his shopping and to attend doctor’s appointments. On occasions, she would do his washing and do some housework.

88. Following the deceased’s hospitalisation in July 2011, Donna, at his request, moved into his home, where she stayed for about one month (until early September 2011).

89. The deceased appointed Donna and his neighbour, Alan Saunders, as his joint Attorneys under an Enduring Power of Attorney dated 11 October 2011. However, the appointment was not to become effective “unless I become mentally and/or physically incapable as determined by a Certificate under the hand of a Medical Practitioner”. (I have earlier referred to the deceased’s confirmation of their appointment as his Attorneys in his conversation with an officer of the Defendant in January 2012.)

90. By Appointment of Enduring Guardian dated 11 October 2011, Donna was appointed to be the deceased’s guardian.

91. I shall not set out all of the conversations that Donna says that she had with the deceased. Even if all of the conversations took place, so far as they related to the deceased’s reasons for making his last Will and excluding Shaun, those reasons cannot supplant the court’s enquiry into whether the applicant has been adequately provided for.

92. While a court will consider any explanations given by the deceased in the will, or elsewhere, for excluding a particular person as a beneficiary, such explanations do not relieve the court from engaging in the enquiry required by the Act: Slack-Smith v Slack-Smith [2010] NSWSC 625, at [27]. What an explanation may do is cast light on the relationship between the deceased and that person, at least from the deceased’s perspective.

Challenger Life Annuity

93. There were Federal Court proceedings, heard on 17 November 2014 and determined by Jacobson J, on 5 December 2014. His Honour’s reasons for judgment and the orders made (which were not the subject of appeal), are now published and bear the medium neutral citation Challenger Life Company Ltd v Estate of the late Robert John Real [2014] FCA 1325.

94. In those proceedings which were commenced in September 2014, Challenger sought a direction under s 215 of the Life Insurance Act 1995 (Cth) that it pay the proceeds of a Guaranteed Annuity Policy into Court to be dealt with in accordance with the orders of the Court. In particular, Challenger sought a declaration that, by doing so, it has discharged its liability under the policy.

95. In the Federal Court proceedings, Donna was named as the second Defendant, and Jessica, Hayley, Jackson, Robert, Hamish and Raina, by their tutor, Pamela, were named as the third Defendants. (As stated, Pamela is the mother of the Plaintiff. She was a witness, who was cross-examined, in the current proceedings.)

96. The deceased took out the Policy in September 2011, having previously nominated Donna as a beneficiary for 50% of the proceeds of the Policy. The nomination form left blank the identification of any other beneficiary. At the hearing, Donna contended that the effect of the nomination form was to nominate her as a beneficiary in respect of 50% of the proceeds, with the balance payable to the deceased’s estate. Pamela, as the tutor for the deceased’s great grandchildren, contended that the nomination form was invalid upon the basis that the effect of the contract under which the Policy was issued was that it is not possible for the deceased to nominate a beneficiary for less than 100% of the value of the Policy.

97. The dispute put Challenger in the position that it could not obtain a sufficient discharge of its liability under the Policy otherwise than by invoking the jurisdiction of the Court under s 215.

98. I shall not set out the matters dealt with by his Honour in his reasons for judgment, but the orders his Honour made were:

“(1) Upon the payment into Court by Challenger of the whole of the monies payable by it under Guaranteed Annuity Policy Number 500737931, Challenger is discharged from any further liability in relation to those monies.

(2) The monies paid into Court in accordance with Order 1 are to be dealt with as follows:

(a) 50% of the monies are to be payable to, or to the order of, Ms Donna Costigan;

(b) the remaining 50% of the monies are to be payable to the Estate of the late Robert John Real.

(3) Challenger’s costs of this application are, on a trustee basis, payable out of the proceeds of the Policy.

(4) The great grandchildren should bear Ms Costigan’s costs of the application.

(5) The Estate’s costs should be payable out of the funds comprising the Estate.”

99. (Because it was relied upon as conduct by Donna, I should mention that she gave evidence that a Nomination Form dated 2 November 2011, bearing the deceased’s signature, and nominating her as a beneficiary of 50 per cent, which was sent to Challenger Life Limited, is in Donna’s handwriting. On 14 November 2011, Challenger received a further unsigned nomination form, in the handwriting of the deceased, purporting to change the earlier nomination so that Donna would be entitled to 75 per cent and the estate would be entitled to 25 per cent. The form was returned to the deceased and Challenger was not contacted again with a completed signed form.)

100. Donna’s Bill of Costs and Disbursements, dated 1 June 2015, has been filed for taxation in the Federal Costs. Those costs have been estimated to be $25,746.

101. I have earlier identified the amount received by the Defendant from Challenger Life Company Limited. Donna gave evidence that her share was $459,333, and that part of the amount was retained by her solicitors on account of her costs and disbursements (about $70,000). She is likely to receive some part of the retained amount in due course.

Extension of Time

102. The evidence explaining the delay in commencing the proceedings was given in an affidavit sworn on 13 July 2015, by Shaun’s solicitor, Mr Brazel. In that affidavit, he stated:

(a)   He had obtained instructions from Shaun on 10 October 2012;

(b)   At the time, his instructions were that the deceased died on 16 July 2012.

(c)   On 12 October 2012, he wrote to the Defendant, advising that the Plaintiff disputed the validity of the Will dated 21 February 2012, that a caveat would be lodged in the Probate Registry of the court, and that, in the alternative, the Plaintiff would make a claim for a family provision order out of the deceased’s estate as he was “dependant upon the deceased for a number of years”.

(d)   There were some discussions subsequently, to resolve the proceedings but the matter was unable to be resolved.

(e)   On 11 July 2013, he swore an affidavit seeking leave to file the Summons without having to comply with Practice Note SC Eq. 7, in which affidavit he referred to the incorrect date of death.

(f) On 15 July 2013, he filed the Summons and affidavit. He believed that it had been filed within the time prescribed by the Act but “I am now aware that my belief was mistaken”.

(g)   He had only become aware of the error, when it was pointed out by counsel reviewing the material in preparation of the hearing.

103. Mr Brazel was not cross-examined.

104. There is no evidence of any prejudice suffered by the Defendant (or by the beneficiaries) if time were to be extended. In fact, it was accepted that there was no prejudice.

105. It is also clear that there is no evidence of any conduct, on the part of the Plaintiff, which could be regarded as “unconscionable”. The error appears to have been that of the Plaintiff’s solicitor, although that was based on the mistaken instructions given as to the date of the deceased’s death.

106. It is also to be remembered that the nature and value of the deceased’s estate was not established until the conclusion of the Federal Court proceedings in early December 2014. It would have been difficult to conclude the hearing of this case until such time as the nature and value of the deceased’s estate was established.

The Statutory Scheme - The Act

107. I shall next 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.

108. 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.

109. In cases such as the present, it is to determine (not necessarily in the order set out below) whether:

(i)    The time for the making of the Plaintiff’s application should be extended.

(ii) The Plaintiff is an eligible person within the meaning of that term in s 57(1) of the Act;

(iii) In the case, relevantly, of a s 57(1)(e) Plaintiff, 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 sufficient cause is shown for extending the time for the making of his application, eligibility and factors warranting are established,

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

The Substantive Provisions of the Act

Extension of time for the making of the Application

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

111. Clearly, permitting the Court to “otherwise order” was included in the legislation to avoid the section becoming an instrument of injustice. Yet, “[t]he time constraint imposed by s 58(2) on the making of a family provision application is not a mere formality”: Verzar v Verzar [2012] NSWSC 1380, per Lindsay J, at [98]. It is “a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules”: Re Salmon, Deceased [1981] Ch 167, at 175.

112. In Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146, Pembroke J, at [23]-[24], put it more strongly:

“… Section 58(2) reveals a clear legislative intention to limit applications for family provision orders to those made within a defined, and strictly confined, period. An application is made by filing an originating process commencing proceedings in the registry of the court: Section 58(3).

The short time period imposed by Section 58(2) reflects the judgment of parliament that the welfare of society in connection with the administration of deceased estates is best served by imposing a strictly limited time for making applications. This is not unreasonable. In most cases the putative claimant will be well aware of the testator’s death and the (allegedly) insufficient provision made for him or her. There will only occasionally be a good excuse for not making a claim within time. In fact, experience indicates that the deceased’s relatives usually pay uncommonly close attention to such matters. That is not to say that cases will not arise where, for legitimate reasons, a claimant is quite unaware of the death, or of his or her legal right to make a claim, and is unable to comply with the 12 month time limitation. In those circumstances, the statutory exception requiring ‘sufficient cause’ may well apply.”

113. It follows from these, and other, authorities, that the making of an “otherwise order” is not automatic and it involves the exercise of discretion.

114. In Moore v Randall [2012] NSWSC 184, White J, at [39], said that the expression “sufficient cause” means “sufficient explanation or sufficient justification or excuse for the application not having been made within the prescribed period”. In Verzar v Verzar [2014] NSWCA 45, in the Court of Appeal, Meagher JA wrote, at [24], that “[t]he sufficient cause or reason to which s 58(2) is directed is that for allowing an application to be made out of time”.

115. In another context, the High Court wrote in Sophron v The Nominal Defendant [1957] HCA 27; (1957) 96 CLR 469, at 475:

“... it is a mistake to attempt to reduce the expression ‘sufficient cause’ to a closer or more rigid definition than the legislature has chosen to provide. The words no doubt are concerned with the justice of the case. There must be some positive reason for concluding that as between the parties it would be just to extend the period for giving notice. Fault on the part of the claimant in failing to give notice... must be an element affecting the justice of extending the time and so on the other side must be the prejudice which the nominal defendant has or may have suffered because of that failure.”

116. To refuse to make an order extending the time for the making of an application an extension of time in relation to an application for a family provision order that is devoid of merit would not visit an injustice on the applicant. As Meagher JA noted in Verzar v Verzar, at [33]-[35]:

“There are at least two respects in which the strength of the application sought to be made out of time may be relevant to whether there is ‘sufficient cause’ to extend the time for making it. The first is whether the application as made has sufficient prospects of success to justify an extension. That assessment should be of the application viewed at the time it is or is likely to be heard because of the provisions of s 59(1)(c) and (2)…

The second respect in which the strength of the application may be relevant is if allowing the out of time application to proceed would or may have the effect of improving the applicant’s position from that which would have obtained had the application been made in a timely manner. That is the consideration referred to by Tobias JA in Durham v Durham at [24], [37] when confirming the correctness of the approach adopted by the judge in that case and by Bryson J in Davison v Staley (unreported, Supreme Court of NSW, 21 August 1996)…

Because the assessment of adequacy of provision for proper maintenance, education and advancement in life is to be made at the time the Court is hearing the application (ss 59(1)(c) and (2)), when addressing this question it is necessary first to consider when the application would have been likely to have been heard if made in a timely manner and then to compare the position in that event with the position in fact, namely that the application has been made out of time. Ordinarily, this analysis would assume, as is usually the case and as happened in this proceeding, that the application for an extension of time and the application for substantive relief are made in one proceeding and dealt with in a single hearing. (That was not the case with applications for extensions of time made under the Testator’s Family Maintenance and Guardianship of Infants Act 1916: see De Winter v Johnstone [1995] NSWCA 120 at p 17 per Powell JA).”

117. In Zannetides v Spence [2013] NSWSC 2032, Young AJA wrote, at [15]:

“The subsection that I have set out says that the Court may ‘otherwise order’, but only if sufficient cause is shown. One cannot confine a statutory discretion, but the cases which have been decided on section 58(2) or its predecessors show that the courts have focused on a number of factors, namely:

(a)The excuse for not filing the claim in time.

(b)The knowledge of the plaintiffs of their rights.

(c)The strength of the plaintiffs’ case.

(d)Negligence of the solicitor involved.

(e)Prejudice to the defendant.

(f)Any unconscionable conduct.”

118. Delay caused by mistake or oversight and delay resulting from a change of mind are to be distinguished. Absent prejudice to the Defendant, or the beneficiaries, and provided prompt action is taken once the mistake or oversight is discovered, the court tends to extend time to bring proceedings, particularly if the applicant’s case is a strong one. The court is generally less receptive where there has merely been a change of mind.

119. As well as taking into account the reasonableness of the conduct of the applicant, it will also be necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant, or refusal, of the application for extension of time, the size and nature of the estate, the position of the individual applicant, the rightful expectations of those already interested under the Will, and, to some extent at least, the importance that there be some finality and certainty in the administration of a deceased person’s estate: Harrison v Harrison [2011] VSC 459, at [292].

120. I dealt with the applicable principles in Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572, at [84]-[90]. I shall not repeat what I wrote in that case. A judicial discretion must be exercised and all the relevant circumstances must be taken into account in order to assess the justice of the particular case under consideration. No one factor is necessarily determinative.

121. Also, as I said in Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748, at [117]:

“Ultimately, justice is the paramount consideration in determining whether to extend the time for making an application…”

Eligibility

122. 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).

123. In the present case, Shaun 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. There is no dispute that Shaun is a grandchild of the deceased. However, to be an eligible person within this category, there is also a condition of whole, or partial, dependency.

124. 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.

125. In Amaca Pty Ltd v Novek [2009] NSWCA 50, Campbell JA, with whom other members of the Court of Appeal agreed, said (in the context of a claim under s 15B of the Civil Liability Act 2002 (NSW)), at [45]:

“In my view, the law remains accurately stated by the joint judgment of Sugerman P, Jacobs and Mason JJA in Middleton v Kiama District Hospital [1970] 3 NSWR 136. Their Honours said, at 138:

‘Dependency is, moreover, a complex question of fact, which may involve the consideration of many elements, including both past events and future probabilities. It is not necessarily correlative with a legal duty to maintain. A person may in fact be dependent upon another who is under no legal duty to maintain him; and may be so dependent even though there is also in existence one who has legal duty to maintain, eg a husband [and] his wife. On the other hand there may be no dependency in fact upon a person who is under a legal duty to maintain. The existence of the legal duty is, however, one of the many elements to be taken into account in deciding upon a question of dependency in fact. Dependency and actual support are not necessarily correlative. There may be dependency although for the time being there is no actual support. And it seems to us to be possible to figure cases in which there may have been a provision of support, or of some measure of support, at least for a short time or for some special purpose, which did not amount to dependency. The definition of “dependants” does not merely refer to one who was in fact supported by the deceased worker at the time of his death; a “dependant” is a member of the workers’ family who was “wholly or partly dependent for support upon the worker at the time of his death”. Dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased. As to all the above matters see Hodges v Scotts’ Provision (Wholesale) Pty Ltd [1963] WCR 161 and cases there cited.’”

126. In Skinner v Frappell [2008] NSWCA 296, Young CJ in Eq, (with whom Campbell JA agreed) sitting in the Court of Appeal, wrote, at [85]:

“The matter as to what is required for dependency was fully dealt with by this Court in Petrohilos v Hunter (1991) 25 NSWLR 343. Although dependency is not limited to financial dependency, it does involve one person being beholden to another person for some material or physical help or succour, emotional dependency is not enough.”

127. In Petrohilos v Hunter (1991) 25 NSWLR 343, at 346-347, it had been said by Hope AJA:

“I would respectfully disagree with the Master in both respects. The word ‘dependent’ is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language. This accords with what Samuels JA said in Ball v Newey (1988) 13 NSWLR 489 at 491, that ‘“Dependent” in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed’. If the correct view were that the context of the statute requires a limitation of the word to ‘financial or material’ matters as McLelland J said in Re Fulop Deceased or to ‘other forms of dependence analogous to but distinct from financial dependence’ as Samuels JA suggested in Ball v Newey (at 491), then surely a mother’s services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense, they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father, as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother, when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period.”

128. In Simons v Permanent Trustee Co Ltd: Estate D. Hakim [2005] NSWSC 223, Palmer J, at [42], said:

“Dependence for the purposes of s.6(1)(d), so far as the cases have discussed, is seen as the giving of financial or other material assistance by the deceased over a significant period of time in order to meet a need of the eligible person, with the result that the recipient has come ordinarily to rely upon that assistance.”

129. In Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, at [109], Meagher JA wrote that dependency “in this context means actual reliance on someone else for the total or partial satisfaction of some need. It is not limited to purely financial or material matters”, and at [110], that it “may exist, irrespective of whether the dependent person is financially or physically able to support himself or herself”.

130. In McKenzie v Baddeley [1991] NSWCA 197, Priestley JA (with whom Hope AJA agreed) held that the word “partly” in the phrase “partly dependent”, whilst a word of “some elasticity”, does not mean “substantially”, but means “more than minimally”, or perhaps, “significantly”. Meagher JA commented that “[c]ommon sense requires that certain trivial activities should be disregarded”.

131. A similar view was taken by the Court of Appeal, more recently, in Alexander v Jansson [2010] NSWCA 176 at [13].

132. In Morrison v Carruthers [2010] NSWSC 430, a case involving a claim by a grandchild in which only financial dependency was relied upon, Bergin CJ in Eq, after referring to McKenzie v Baddeley, wrote, at [12]:

“It may be difficult to identify any real difference between the meaning of the words ‘substantially’ (‘of real importance or value’) and ‘significantly’ (‘of real import’) in this context: The Concise Oxford Dictionary, however I am of the view that financially ‘partly dependent’ in this context means that the applicant relied on the deceased to provide financial support without which the applicant would not have been able to meet the reasonable costs of living. The assessment of dependency in respect of a child will be different from the assessment of dependency in respect of an adult. When an adult grandchild claims financial dependency there will be matters that need consideration that would not be relevant in the case of a child. It is important in this regard to draw the distinction between expectation and dependence. If an adult receives payment on a regular basis from the deceased and chooses not to obtain money from another available source because of the expectation of regular payment from the deceased, that does not amount to dependence within the meaning of that term in the Act. Financial dependency in the case of a healthy adult who is able to work means a necessity to rely on the deceased because there is no other source of finance available.”

133. As Macready AsJ noted in Dunn v McCarthy [2010] NSWSC 675, at [29], “[w]ith young children dependency becomes complex, as is illustrated in the cases of grandchildren”.

134. A person may be dependent upon another whether or not there is a co-existing legal duty: Middleton v Kiama District Hospital [1970] 3 NSWR 136 at 138; Bayssari v Bazouni [2014] NSWSC 910, per Ball J at [37].

135. The question of dependency, whether whole or partial, is a complex question of fact: Aafjes v Kearney [1976] HCA 5, (1976) 180 CLR 199. It is not to be determined upon theoretical considerations. It is “the actual fact of dependence or reliance on the earnings of another for support that is the test”: per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v Reeman [1973] HCA 8; (1973) 128 CLR 177, at 189.

136. There is a dispute, in this case, that Shaun is an eligible person within the meaning of that term in s 57(1)(e) of the Act. It is put that “[d]ependency is squarely put in issue in this case by the Defendant”.

Factors warranting the making of the Application

137. 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)).

138. The Act does not specify the “factors which warrant the making of the application”. As Pembroke J noted, in Wilcox v Wilcox [2012] NSWSC 1138, at [16], “[n]o legislative assistance is given as to the intended scope or meaning of this enigmatic requirement”.

139. 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.

140. 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.) I shall not repeat what I wrote in that case.

141. In Sassoon v Rose [2013] NSWCA 220, an application for leave to appeal, Meagher JA (with whom Gleeson JA agreed), at [15], noted:

“In addressing the question whether there were factors warranting the making of her application, Macready AsJ correctly identified the relevant principles as those stated by McClelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681, approved by this Court in Churton v Christian (1988) 13 NSWLR 241 at 252 and applied in cases such as Diver v Neal [2009] NSWCA 54 at [8]. Those ‘factors’ are ones which, when added to the facts which render the applicant an ‘eligible person’ (in Ms Sassoon’s case the fact that she is the former wife of the deceased), give her the status of a person who would generally be regarded, according to community standards and expectations, as a natural object of testamentary recognition.”

142. In Chapple v Wilcox [2014] NSWCA 392; (2014) NSWLR 646, at [4]-[6], Basten JA wrote:

“The primary category of eligible people are spouses, including those in a de facto relationship with the deceased at the time of death and a child of the deceased. Other eligible persons (a category including the claimant) are required to satisfy the court that ‘having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application’: s 59(1)(b). The claimant must also satisfy the court that at the time when the court is considering the application, adequate provision for his proper maintenance, education or advancement in life has not been made by the will of the deceased: s 59(1)(c).

Subsection (1)(c) assumes that some provision should have been made for the claimant by the will of the deceased; subs (1)(b) treats the primary category of eligible persons as naturally satisfying that assumption, whereas the secondary category (into which the present claimant falls) need to justify the assumption: see, in relation to relevantly identical provisions in s 9 of the Family Provision Act 1982 (NSW), Re Fulop Deceased; Fulop v Public Trustee (1987) 8 NSWLR 679 at 681 (McLelland J).

That approach obtains support from the provisions of Ch 4 of the Succession Act dealing with intestacy. Those primarily entitled to a distribution from the estate of an intestate are a surviving spouse (ss 110-113) and the deceased’s children (s 127). A grandchild has an entitlement, but only a presumptive share of a child of the intestate who predeceased his or her parent: s 127(4).”

Inadequacy of Provision

143. It is only if eligibility and, as is necessary in this case, factors warranting the making of the application are found, and if sufficient cause is shown for an order extending the time for the making of the Plaintiff’s application, 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, (the operation of the intestacy rules being irrelevant) (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”.

144. Relevantly, other than by reference to the provision made by the Will in relation to the estate of the deceased, s 59(1)(c) leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for an applicant’s proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the court to the provision actually made by the Will, on the one hand, and to the requirement for maintenance, education or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant.

272. Shaun may have made some contribution to the welfare of the deceased and to Paul prior to 1996, but that contribution lessened thereafter. (In relation to Paul, I remember also that Shaun received a carer’s pension.) Despite the evidence of Donna, I accept that when he visited the deceased, with Angela and his children, he did make some contribution to the welfare of the deceased. He probably also provided some welfare contribution in communications with the deceased after 2011, although, I accept, this would not have been very substantial.

1. 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

   274. I have set out the provision made by the deceased for Shaun during his lifetime. As also stated, Shaun received no provision under the last Will of the deceased.

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

275. I have earlier referred to the terms of the deceased’s prior Wills.

276. Shaun gave evidence of conversations that he had with the deceased relating to the deceased’s testamentary intentions. He gave evidence, as did Angela, that the deceased would often say to him words to the effect of “this is all for you and the kids”.

277. In 2011, while Shaun was in prison, Shaun had the following conversation with the deceased:

“Deceased -    ‘My brother has died and left me a hell of a lot of money. I am giving it all to you and the kids mate, because I know youse got nothing’.

Me -    ‘You don’t have to do that pop. You’re not obligated to do that’.

Deceased -    ‘You’re mine and your father’s only living relative. Who else would I give it to, the bloody government?’”

(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

278. I have set out the periods during which Shaun was being maintained by the deceased. It is clear that the deceased did not maintain him for a number of years before the deceased’s death.

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

279. Apart, perhaps, from the Commonwealth government’s obligation to continue to provide Shaun with a pension, there is no other person liable to support him.

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

280. 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.

281. I have dealt with Shaun’s conduct previously. It seems that he has turned his life around in that there is no suggestion of any criminal conduct since 2010.

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

282. I am satisfied that as far as the deceased was concerned, Donna did assist him as required. This was acknowledged by the deceased. However, the period of that assistance was about 2 years.

283. Although much was made about Donna’s conduct in relation to the draft 2011 Will of the deceased, he subsequently chose her as a beneficiary and devised to her the Albion Park property and a one half share of residue.

284. There is no conduct of the other beneficiaries which should be taken into account.

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

285. This is not relevant in the present case.

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

286. This sub-section provides a wide discretion to look beyond the specific matters set out in the immediately preceding sub-paragraphs.

287. I have also referred to the amount received by Shaun following the death of Paul. I have also referred to the distribution that has been made to Donna by the payment to her of one half of the proceeds of the annuity with Challenger Life.

288. Finally, I have referred to the inheritance by the deceased of Paul’s entire estate (albeit that it was not very large). The genesis of the assets in the deceased’s estate is relevant. Sub-section (h) above is limited to the applicant’s contributions, (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased or to the welfare of the deceased or his or her family.

Determination

289. As stated, Shaun’s proceedings were not brought within the time prescribed by the Act. They were a few days out of time. (Therefore, it is unnecessary to consider when the application would have been likely to have been heard if made within time, and then to compare the position in that event with the position in fact, namely that the application has been made out of time.)

290. I am satisfied that the reason for the delay has been given. Whilst one cannot condone the mistake as to the date of the deceased’s death, that is clearly what it was, a mistake, and had the correct date been known, the proceedings would have been commenced within time. In addition, the Defendant was given notice of the intention to make a claim for a family provision order, and the Defendant, fairly, concedes no prejudice would be suffered if the time for the making of the application were extended.

291. There is also no suggestion of lulling the beneficiaries into a false sense of security so that they order their affairs on the basis that their legacies would not be disturbed, or that allowing Shaun’s application to proceed would have the effect of improving his position from that which would have existed if it had been made in a timely way.

292. Because of these matters, and also because I am satisfied that a family provision order ought to be made in Shaun’s favour, the overall justice of the case requires the court to make an “otherwise order” and to extend the time for the making of Shaun’s application to the date of the filing of the Summons. To do otherwise would permit the section to be used as an instrument of injustice.

293. Being an “eligible person” is a necessary precondition to the court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. As stated, there is some dispute that Shaun is an eligible person. This dispute is limited to whether he was wholly, or partly, dependent upon the deceased, since there was not any dispute that he is a grandchild of the deceased.

294. It is enough for Shaun to establish that he was wholly, or partly, dependent upon the deceased at “any particular time”. In this case, only partial dependency, both financial and emotional, is relied upon.

295. Whilst the evidence about financial dependency is not very strong, overall, I am satisfied that there was partial dependency, to a limited extent financially, but, more importantly, emotionally, upon the deceased. This is hardly surprising bearing in mind Paul’s condition which he suffered when Shaun was 2 years old. In my view, after 1982, until about 1996, the deceased played a significant role in Shaun’s life. In addition, for a period of about 6 months, the deceased provided Shaun with accommodation and board, without cost. True it is that Shaun was there, principally to assist Paul, and indirectly to assist the deceased, but, at that time, he was only 15 or 16 years of age. During this period, Shaun’s dependence upon the deceased was direct and immediate, albeit limited, although it would have been a very important period in Shaun’s life.

296. That it was the deceased to whom Shaun wrote (albeit after the death of Paul) is also an important matter as it sets out Shaun’s view of the deceased at a time well before any proceedings had been commenced.

297. In my view, the letter written by the deceased to Shaun clearly demonstrates more than the mere fact of a family relationship between grandparent and grandchild.

298. Taken with all of the other evidence, including that when he spoke to the officer of the Defendant, in giving instructions for the last Will, the deceased did not expressly deny that Shaun had been dependent upon him, I am satisfied that Shaun was partly dependent upon the deceased. As a partly dependent grandchild of the deceased, he is an eligible person within the meaning of s 57(1)(e) of the Act.

299. I am also satisfied that there are factors that warrant the making of Shaun’s application. These include the personal relationship and emotional bond between Shaun and the deceased, particularly until 1996, and to a lesser extent thereafter; that Shaun was the deceased’s closest blood relative at the date of his death; that, as a result of a payment out of Paul’s compensation, the Albion Park property appears to have been improved, albeit that the improvements were made for Paul’s benefit, with the result that Paul’s property was reduced; that Shaun’s father, Paul, predeceased the deceased; that the whole of Paul’s estate passed to the deceased, rather than to Shaun, his only child; that there is no evidence that Shaun would expect to inherit anything substantial from Pamela’s estate; and finally, that in prior wills of the deceased, Shaun was identified as a beneficiary or substitute beneficiary.

300. Then, the 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 Shaun has not been made by the Will of the deceased.

301. Of course, there is no provision made for Shaun in the Will of the deceased. In considering the answer to the question posed, judged by quantum and looked at through the prism of his, financial and material circumstances, adequate provision for his proper maintenance or advancement in life was not made by the Will of the deceased.

302. As discussed above, “need” in the context of the Act is not determined by reference only to minimum standards of subsistence. Whilst Shaun and Angela are mature adults, they have seven children to support and to provide for. As I have earlier stated, where the applicant has a child who is, or children who are, dependent on him for support and education, that circumstance may be taken into account when considering what is necessary and adequate for the applicant’s proper maintenance. Of course, I have not forgotten that separate provision was made for his children by the deceased’s Will.

303. Shaun has no assets of his own. Most importantly, he has no fund available for exigencies of life. His circumstances are parlous. Furthermore, whilst I consider that Shaun has some earning capacity, he has been unemployed for about 5 years and he does have a prison record. The prospects of obtaining work are likely to be more difficult for him. In addition, he does suffer from depression (albeit that he does not seek treatment) and also has had problems with his back. Clearly, he is afflicted with some limitations that affect his ability to provide for himself and for his large family.

304. Also, there is no evidence that he can expect any significant family provision except from the deceased’s estate. Whilst Pamela is clearly supportive, Shaun has lost the immediate and continuing support of Paul, who might normally be expected to provide some assistance for Shaun’s advancement in life.

305. Whilst a lump sum, for maintenance or advancement in life would be appropriate, that is not all that I am required to consider at the first stage. The totality of the relationship of the applicant and the deceased, the age and capacities of the other beneficiaries, and their claim on the bounty of the deceased, are very relevant factors in determining the answer at the first stage.

306. I bear in mind that Donna and that Shaun’s children and Raina are competing claimants upon the bounty of the deceased. However, Donna, in succession terms, is a “stranger” (not related by marriage or blood to the deceased), and the deceased’s great-grandchildren and step-great-grandchild do not appear to have had any special bond with the deceased. Of course, they are the chosen object of testamentary bounty.

307. 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 Shaun. I am of the view that the deceased’s disappointment, as a wise and just testator, should not have blinded him to the needs of his only grandson for maintenance or advancement in life.

308. Turning then to s 59(2), namely the question what provision “ought to be made for the maintenance, education or advancement in life” of Shaun 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.

309. I am satisfied that there is a clear need for provision for Shaun out of the 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.

310. Contrary to the submissions made on behalf of the Defendant, 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 Shaun’s particular, or specific, known needs, but rather upon his needs in the ‘relevant sense’, namely, in the sense of what is necessary for his proper maintenance or 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.”

311. But this does not mean that the submission made on behalf of Shaun that he should receive a lump sum that would enable him to purchase a 5 bedroom home for himself and his family should be accepted. Even though the estate is of reasonable value, it is not so large as to enable such provision to be made for him. In any event, to do so would, in my view, be more than adequate and proper provision in all the circumstances of this case.

312. Yet, the size of the deceased’s estate is sufficiently large to provide more than $55,000 to $65,000, which lump sum the Defendant submitted should be the order of the court if the court were satisfied of all matters necessary to enable an order to be made. Apart from that, even the higher amount would not provide very much to Shaun by way of a lump sum for exigencies of life bearing in mind the matters to which I have referred. The word “proper” in the relevant section of the Act is important as stated previously.

313. Having considered all of the matters I am required to consider, taking into account all of the circumstances of the case, including the nature and value of the estate, the nature of the relationship of Shaun and the deceased, both before and after 1996, his financial resources (including earning capacity), both present and future, as well as the competing claims of the residuary beneficiaries as the chosen objects of the deceased’s bounty, doing the best I can, I consider the amount of the lump sum that Shaun should receive by way of family provision order should be $225,000.

314. After the payment of what might be regarded as his needs as may be quantified, the balance should provide him with a fund for exigencies, contingencies, and for a financial start in life as an adult. Income, if any, that is paid on the balance of the amount not used for his immediate needs may be used also to meet expenses that he is unable to meet.

315. It is next necessary to determine how the burden of provision for Shaun ought to be met. I must balance Donna’s circumstances, as the primary beneficiary, against the circumstances, needs and claims of Shaun and the other beneficiaries.

316. In this regard, I am of the view that the burden of the provision made for Shaun should be borne out of the share of the residue passing to Donna. In this regard, although she is one of the chosen objects of testamentary bounty, as I have written, she is not related by blood or marriage to the deceased and, more importantly, she only knew him for about 2 years.

317. She has already received $375,000 as a result of the death of the deceased, she has received the cars, and she will be entitled to the Albion Park property ($635,000) absolutely. There is no doubt that the value of the provision for her, even if she bears the whole of the burden, will exceed $1.0 million. It is quite possible, on the estimates provided earlier, if they prove accurate, and even if her share of residue bears the whole of the provision for Shaun, that she will still receive a part of the residuary estate. In the circumstances, she is well provided for and, overall, her financial and material circumstances are, and will remain, far superior to those of Shaun.

318. To order the great-grandchildren of the deceased to bear the burden of provision would reduce, significantly, the share each will receive. Each is unlikely to benefit from her, or his, parents to any significant degree, and the provision out of the estate of the deceased will, at least, provide her, and for him, with a start in life. Whilst they are minors, it may also assist in providing some maintenance.

319. There was a brief argument about Donna’s costs of the proceedings whilst she was a party. In my view, she was joined as a party and, accordingly, she should receive her costs, calculated on the ordinary basis, out of the estate of the deceased. In this regard, such an order will still mean that her share of residue will be bearing a part of her costs.

320. The orders of the court are that:

(i)    Sufficient cause having been shown, the time for the making of the Plaintiff’s application be extended to 15 July 2013, the date of the filing of the Summons.

(ii)   Having found that the Plaintiff 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, he is to receive a lump sum of $225,000 out of the estate of the deceased.

(iii)   The burden of the provision made for the Plaintiff, should be borne out of the share of the residuary estate of the deceased passing to Donna Marea Costigan; and to the extent that it is insufficient, by the balance of the residuary estate.

(iv) No interest is to be paid on the lump sum payable to the Plaintiff, if that lump sum is paid within 14 days of the making of these 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.

(v)   Unless an application to vary this costs order is made within 7 days of the date of handing down these reasons for judgment, the costs of the Plaintiff, calculated on the ordinary basis; the costs of Donna Marea Costigan, for the period that she was a party between 21 February 2014 and 5 December 2014, calculated on the ordinary basis; and the costs of the Defendant, calculated on the indemnity basis, shall be paid out of the residuary estate of the deceased.

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

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Decision last updated: 04 August 2015