Hamilton v Moir - [2013] NSWSC 1200

Supreme Court

New South Wales

Medium Neutral Citation: Hamilton v Moir [2013] NSWSC 1200
Hearing dates: 7, 8 August 2013
Decision date: 02 September 2013
Jurisdiction: Equity Division
Before: Hallen J
Decision:
(i) Having found that the Plaintiff, Vera Caroline Hamilton, is an eligible person, that there are factors warranting the making of the application, that the proceedings were commenced within time, and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, she should receive, in addition to the amount which the Defendants have agreed to pay to her out of the estate of the deceased, a lump sum of $80,000.
(ii) The provision made for the Plaintiff should be borne by the Defendants equally.
(iii) No interest is to be paid on the lump sum, if it is paid within 28 days of the determination of the costs argument, or if there is no costs argument, of today.
(iv) Unless either party wishes to argue the question of costs, the Plaintiff's costs, calculated on the ordinary basis, and the Defendants' costs calculated on the indemnity basis, shall be paid out of the estate of the deceased.
(v) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005.
(vi) Consideration be reserved in respect of making consequential and ancillary orders for the purpose of giving effect to the family provision order.

Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiff seeks a family provision order out of the estate of the deceased under the Succession Act 2006 as a person who, as a foster child, was a member of the household of which the deceased was a member and dependent on the deceased - The Defendants are the executors to whom Probate granted - Nearly the whole estate left to the Defendants who are also biological children of the deceased - No dispute as to Plaintiff's eligibility but dispute whether there are factors warranting the making of the application - Whether to make a family provision order - If order for provision made, quantum of provision that should be made - Distributed estate but no dispute that provision should be borne by the Defendants
Legislation Cited: Child Welfare Act 1939
Family Provision Act 1982
Property (Relationships) Act 1984Succession Act 2006Succession Amendment (Family Provision) Act 2008
Uniform Civil Procedure Rules 2005
Cases Cited: Alexander v Jansson [2010] NSWCA 176Allardice, In re; Allardice v Allardice (1909) 29 NZLR 959
Allen (Dec'd), In re; Allen v Manchester [1922] NZLR 218
Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Barlevy v Nadolski [2011] NSWSC 129
Bartlett v Coomber [2008] NSWCA 100
Belfield v Belfield [2012] NSWSC 416
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Brown v Faggoter [1998] NSWCA 44
Carega Properties SA (formerly Joram Developments Ltd) v Sharratt [1979] 2 All ER 1084; [1979] 1 WLR 928
Carney v Jones [2012] NSWSC 352
Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Curran v Harvey [2012] NSWSC 276
Day v Couch [2000] NSWSC 230
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
Evans v Levy [2011] NSWCA 125
Fede v Dell'Arte [2010] NSWSC 1113
Fiorentini v O'Neil [1998] NSWCA 79
Flathaug v Weaver [2003] NZFLR 730
Foley v Ellis [2008] NSWCA 288
Franks v Franks [2013] NSWCA 60
Frisoli v Kourea; Frisoli v Kourea [2013] NSWSC 1166
Fry v Lukas; Brown v Fry; Estate of Honey; Application of Fry [2011] NSWSC 1329
Fulop Deceased, Re (1987) 8 NSWLR 679
Gardiner v Gardiner (NSWSC, 28 May 1998, unreported)
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Graziani v Graziani (NSWSC, 20 February 1987, unreported)
Grey v Harrison [1997] 2 VR 359
Harrisson v Skinner [2013] NSWSC 736
Hodgson, Re (1886) 31 Ch D 177
Hyland v Burbidge [2000] NSWSC 12
Kay v Archbold [2008] NSWSC 254
Keep v Bourke [2012] NSWCA 64
Kembrey v Cuskelly [2008] NSWSC 262
Lumsden v Sumner [2012] NSWSC 1440
McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566
Mayfield v Lloyd-Williams [2004] NSWSC 419
Neale v Neale [2013] NSWSC 983
Oldereid v Chan [2013] NSWSC 434
Onassis v Vergottis [1968] 2 Lloyd's Rep. 403
Palaganio v Mankarios [2011] NSWSC 61
Penfold v Perpetual Trustee [2002] NSWSC 648
Peters v Salmon [2013] NSWSC 953
Plunkett v Bull [1915] HCA 14; (1915) 19 CLR 544
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Porthouse v Bridge [2007] NSWSC 686
Puckridge, Deceased, In the Estate of (1978) 20 SASR 72
Ross v Collins [1964] 1 All ER 861; [1964] 1 WLR 425
Russell v NSW Trustee and Guardian [2013] NSWSC 370
Sammut v Kleemann [2012] NSWSC 1030
Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100
Sassoon v Rose [2013] NSWCA 220
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Slack v Rogan; Palffy v Rogan [2013] NSWSC 522
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stiles v Joseph (NSWSC, 16 December 1996, unreported)
Stott v Cook (1960) 33 ALJR 447
Szypica v O'Beirne [2013] NSWSC 297
Thornley v Heffernan (NSWSC, 12 September 1995, unreported)
Tobin v Ezekiel [2012] NSWCA 285
Tsivinsky v Tsivinsky [1991] NSWCA 269
Verzar v Verzar [2012] NSWSC 1380
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (NSWSC, 17 May 1996, unreported)
Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123
Weeks v Hrubala [2008] NSWSC 162
White and Tulloch v White (1995) 19 Fam LR 696
Wilcox v Wilcox [2012] NSWSC 1138
Texts Cited: J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, 7th ed, 2006)
Government Gazette No. 38 of 20 February 2009, page 1036
Category: Principal judgment
Parties: Vera Caroline Hamilton (Plaintiff)
Graham James Moir (first Defendant)
Paul Ashley Moir (second Defendant)
Representation: Counsel:
Mr S A Benson (Plaintiff)
Mr R D Wilson (Defendants)
Solicitors:
Turnbull Hill Lawyers (Plaintiff)
Emil Ford Lawyers (Defendants)

File Number(s): 2012/262155

Judgment

Introduction

HIS HONOUR: These reasons relate to proceedings, in which Vera Caroline Hamilton makes a claim for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act"), out of the estate of Marietta Moir ("the deceased"). The deceased and her husband cared for the Plaintiff, as a foster child, for about 18 months.

The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 ("the former Act"), which was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008, effective from 1 March 2009 (s 2(1) Succession Amendment (Family Provision) Act 2008 and Government Gazette No. 38 of 20 February 2009, page 1036). A family provision order is an order made by the Court 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. In addition, the Plaintiff seeks the designation of property as notional estate and her costs of the proceedings.

The Summons was filed on 20 August 2012, that is, within the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased). The Defendants named in the Summons are Graham James Moir and Paul Ashley Moir, each of whom is a biological child of the deceased and together they are the executors named in the deceased's Will.

There were numerous affidavits read, documents tendered and oral evidence heard, during the trial. I have also received written, and heard oral, submissions from counsel. I shall not lengthen these reasons with all the evidence, or all of the submissions, although I have had regard to it all.

Throughout these reasons, I shall refer to the parties and other family members, where necessary, after introduction, by his, or her, first name. This is for convenience and I hope that it will not be thought discourteous.

Background Facts - Formal Matters

The following facts are uncontroversial and provide a useful background.

The deceased died on 6 September 2011, aged 95 years. She was born in May 1916.

The deceased was married to Victor Eugene Thomas Moir. He predeceased the deceased, having died in about 1988. There were two children of their marriage, being Graham, who was born in October 1945, and who is currently 67 years of age and Paul, who was born in December 1947 and who is currently 65 years of age.

At the date of his death, Victor was the registered proprietor of a property at Strathfield, which was the matrimonial home. He had been the registered proprietor from November 1950. By the terms of Victor's Will, which was also made on 5 March 1981, and following the registration of a Transmission application dated 5 September 1988, the deceased became the sole registered proprietor of the Strathfield property on 14 September 1988.

(Vera was named as a beneficiary in Victor's Will also. Clause 4, in which she was named, was in the same terms as the Clause in the deceased's Will to which I shall refer.)

The deceased left a formally executed Will that she made on 5 March 1981. Probate, in common form, of that Will was granted by this Court to Graham and Paul on 26 October 2011.

The Will, in the events that happened (the death of Victor, the sole beneficiary, before the deceased), after a bequest of her jewellery and personal belongings equally to those of her granddaughters who survived her, provided a bequest of one third of the proceeds of her bank accounts, building society accounts and cash in hand, to Vera, and then gave the whole of the residue of the estate not otherwise disposed of, to Graham and Paul in equal shares.

The deceased did not describe Vera, other than by name, in her Will.

In the Inventory of Property placed inside, and attached to, the Probate document, the property owned solely by the deceased was disclosed as consisting of the property at Strathfield, ($880,000), furniture watches and jewellery ($250), cash in bank ($4,434) and shares in companies ($594). The estimated, or known, value of the deceased's estate, at the date of death, was $885,278. (I have omitted, and shall continue to omit any reference to cents, which explains what may appear to be mathematical errors.)

The deceased had no disclosed liabilities at the date of death. There were, of course, funeral expenses to which I shall refer.

The Defendants have distributed the whole of the deceased's estate. In an affidavit sworn on 8 July 2013, the Defendants stated that the Strathfield property was sold, and that the net proceeds of sale were $901,373. They then said that, out of the deceased's estate, each received $450,943 (including $37,875 being one half of the deposit and $257 being one half of the proceeds of sale of the parcel of shares). (Of the amount distributed to them, their current solicitors retained $276,236 out of the share of the estate passing to Graham. It remains in an interest bearing deposit.) On 18 January 2012, the jewellery was distributed to the grandchildren.

On 18 November 2011, a cheque, for $5,684, being the whole of the amount then, in the deceased's bank account, was paid to Vera. (Under the Will, she was only entitled to receive one-third of that amount, but the Defendants say that they paid her the whole amount "as a gesture of goodwill".)

Vera gave evidence that she did not then, and has not since then, deposited the cheque that she was given. This had not been disclosed in any of her affidavits. Her reason for not doing so was "Because I started proceedings. Because... I don't know". (The principal relevance of the failure to present the cheque relates to her financial resources, to which reference will be made later in these reasons.)

At the date of hearing, the amount of $283,535 (including interest of $7,299) remains held in the interest bearing account by the Defendants' solicitors.

Strictly speaking, there is no actual estate available for distribution. Vera seeks to have property that was distributed to Graham and Paul, sufficient to satisfy any provision made for her, as well as her costs of the proceedings, designated as notional estate. However, at the hearing, it was agreed that the Defendants would satisfy the family provision order, if any, made in favour of Vera and her costs of the proceedings. It is, therefore, unnecessary to discuss the notional estate provisions of the Act. They also agreed that they will bear the burden of such provision, and will satisfy any costs orders, equally.

For the purposes of the hearing, the parties agreed that the current gross value of the distributed property is about $914,870. However, from this amount should be deducted $7,083, including GST, for professional costs and disbursements relating to obtaining Probate and dealing with the estate and $9,593, including GST, which has been paid, being the funeral expenses, as well as outgoings on the Strathfield property. It follows that the current net value of the estate, or notional estate, excluding the costs of the proceedings) is $898,194.

In calculating the current net value of the deceased's estate, or notional estate, the costs of the proceedings should be considered, since the Plaintiff, if successful, normally, will be entitled to an order that her costs, calculated on the ordinary basis, be paid out of the estate, whilst the Defendants, as executors, irrespective of the outcome of the proceedings, normally, will be entitled to an order that their costs, calculated on the indemnity basis, be paid out of the estate.

Her solicitor, Mr A Munro, estimated Vera's costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis, to be about $115,162 (inclusive of GST and upon the basis of a two day hearing). (There is an "uplift factor" included in the calculation of costs and disbursements estimated to be $12,919.) He has provided "factors that he says have led to the level of costs above what would ordinarily be required in this matter". He was not cross-examined on his affidavit.

At the hearing, the Court was informed, from the bar Table, without objection, that Vera's costs, calculated on the ordinary basis were estimated to be $77,728.

Their solicitor, Mr D C Ford, has estimated Graham's and Paul's costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis, to be about $106,243, inclusive of GST and upon the basis of a two-day hearing. Of this amount, about $71,196 has been paid, leaving a balance of $35,047 to be paid.

Mr Ford's evidence of the reason why the estimated costs are "higher than what was originally anticipated" is limited to simply stating "the extent of the plaintiff's evidence and the plaintiff's solicitor's conduct of the matter". He, too, was not cross-examined on his affidavit.

That over $220,000 (calculated on the indemnity basis) or $183,971 (calculated on the more usual basis) has been estimated as having been incurred in proceedings involving an estate of less than $900,000 (after payment of debts, funeral and testamentary expenses and costs of obtaining Probate) seems excessive and disproportionate. In Fiorentini v O'Neill [1998] NSWCA 79, Mason P, Handley JA and Fitzgerald AJA said: "The Court should set its face against litigation in which an estate is unnecessarily consumed in costs".

However, since neither of the solicitors was cross-examined on his explanation of why the costs and disbursements were so high, it would not be proper to say any more. Of course, depending upon the result of Vera's claim, and any order made as to costs, the costs and disbursements, if payable out of the estate, will be able to be formally assessed, unless otherwise agreed by the parties. It follows that the amounts referred to are estimates only. Each party wishes to be heard on the question of how costs should be borne and the quantum of costs, following these reasons being published.

It follows, also, depending upon the costs orders that are made, from the value of the estate the total amount of about $183,971, may be payable for the parties' costs, leaving the net value of the estate, to be about $714,223.

There are a number of persons who have been described as eligible persons, within the meaning of the Act. They include the parties and two persons, Lynette Humphries and Lynette Green, each of whom is described as a "foster child" of the deceased. Neither has brought a claim under the Act, or otherwise appeared in these proceedings as a witness, but that is because the Defendants admit that neither has been given the prescribed notice, "as we do not have their contact details and have not been able to find them".

The Defendants give evidence that "they have searched for them through Internet search engines and in the White Pages". They also say that they last saw them "when they left the deceased's care in the early 1960's and returned to the care of what is now called the Department of Family and Community Services ("the Department"). That was their last known whereabouts".

The Act (as will be seen) provides that in determining an application for a family provision order, the Court may disregard the interests of any other person by, or in respect of whom an application for a family provision order may be made (other than a beneficiary of the deceased person's estate), but who has not made an application only if:

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

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

In this case, the Court must determine whether service of any notice is "unnecessary, unreasonable or impracticable" in all of the circumstances.

Whilst I do not think that service of a notice is "unreasonable", I do think that it is "unnecessary" and "impracticable" in the circumstances of this case. It is important to note that whilst Vera is named as a beneficiary in the deceased's Will, neither Lynette is so named. Since there is no suggestion that either had any continued contact with the deceased after the period of time during which she was a foster child, in the early 1960's, the likelihood of either succeeding in a claim under the Act is remote. Therefore, it seems to me to be "unnecessary" to give each notice of Vera's claim.

"Impracticable" is not defined in the Act. Something is said to be "impracticable" when it is incapable, as a practical matter, to do it, or when it is extremely inconvenient, or difficult, to do it, because, for example, of the associated costs. The word is not synonymous with the word "impossible". It directs attention to considerations of a practical, rather than a theoretical, nature arising out of the particular circumstances: Thornley v Heffernan (NSWSC, 12 September 1995, unreported), per McClelland J.

Since nothing more is known of either Lynette, including her current surname, I am also satisfied that it is "impracticable", to serve a notice upon each.

The Statutory Scheme - Family Provision Proceedings

Introduction

First, I shall discuss the statutory scheme that is relevant to the facts of these proceedings. Although I have set out some of what I state 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 their application.

The wording of the Act is similar to the wording of the former Act. However, it is necessary to remember the warning of Kirby P in Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100, at 76,304:

"Purposive construction of the Act

There is always a danger where a reformed Act borrows heavily upon ideas which previously existed in the common law or in an earlier statute, that lawyers will approach the construction of the Act affected by the previous law. Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 2 NSWLR 475, 478. That danger is but an illustration, in the specialised activity of law, of a universal phenomenon of psychology long established in relation to human perception generally. We tend to perceive what we expect. We expect that with which we are familiar.

There is a particular danger in the case of the Family Provision Act in construing its terms by reference to the law which developed around the Testators' Family Maintenance and Guardianship of Infants Act 1916. That Act was passed in earlier times to govern the entitlements of a testator's family, as narrowly defined. The definition by s 3(1) of that Act confined applications to those made by "the widow, husband or children of such persons". There was no mention in it of former spouses. Doubtless this was because, for the early part of this century, divorce was relatively infrequent and then based upon concepts of matrimonial fault which would make interference in the testamentary disposition of the deceased unlikely. When enacted, the statute was a radical interference in the power of testamentary disposition. That was a significant power over private property, the disturbance of which was regarded as highly exceptional."

Whilst the relevant amendments made by the Act are not as significant to those made by the former Act, it remains necessary to bear his Honour's warning in mind in construing the statutory framework. In doing so, a construction that promotes the purpose, or object, of the Act is to be preferred to a construction that would not promote that purpose or object. In my view, the principles applied by the Courts to the former Act continue to apply, except to the extent that the Act otherwise requires.

As stated, the former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008. A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person.

Importantly, this should not be taken to mean that the Act confers upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, Will. The Court is given a statutory power that may be exercised only for the purpose for which it was granted. Thus, it is only if the statutory conditions are satisfied, that the Court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate, to produce a result that is consistent with the purpose of the Act. Even then, the Court's power to do so is discretionary.

Eligibility

The key provision is s 59 of the Act. The Court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). The Court has no power to make an order in favour of an applicant who is not 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.

I take "foster care" to mean substitute residential care and control of a child provided by a person, or persons, other than a parent of the child, when her, or his, own parents cannot care for her, or him, and which is promoted or furthered by a governmental instrumentality or voluntary agency. It may be for a temporary or extended period. A foster child does not legally become the child of her, or his, foster parents no matter how long the foster relationship lasts.

Accordingly, the only category of eligibility that Vera could fall, and the one upon which she relied, is that she is "a person who was, at any particular time, wholly or partly dependent on the deceased person, and who was, at that particular time, or at any other time, a member of the household of which the deceased person was a member" (s 57(1)(e) of the Act). Neither element has a definition provided in the Act. Clearly, however, the language is reflective of the person's status, as well as his, or her, relationship to the deceased. There is no age limit placed on such a person making an application.

The Defendants accept that Vera, for a period of 18 months, was a member of the household of which the deceased was a member and that she was dependant upon the deceased during this period. (The period referred to may be the subject of dispute by Vera.) Therefore, it is not necessary to deal with the meaning of the sub-section, with which I have recently dealt in Russell v NSW Trustee and Guardian [2013] NSWSC 370, at [27] - [51].

Factors Warranting the Making of the Application

In the case of a person who is, relevantly, an eligible person by reason only of paragraph (e) of the definition of "eligible person" in section 57, 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)).

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

However, 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 68 (approved in substance by the Court of Appeal in Churton v Christian [1988] NSWCA 23; (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.

In Re Fulop, M McLelland J also said, at 683:

"In the case of Mr Fulop the main factor is that from an early age (about 4 years) he became a child of the family unit comprising the deceased and his father and remained so until he left home at 18 years of age in the normal course and thereafter the family relationship thus established was recognized on all sides as continuing as if Mr Fulop were a child of the deceased as well as his father."

In Graziani v Graziani (NSWSC, 20 February 1987, unreported), Cohen J, in dealing with an application by stepchildren, said, at 8-11:

"There is nothing in the section to indicate what is meant by "factors", or how far the Court has to take the matter in order to warrant the making of the application ....

... In order to look at the factors which warrant an application in the case of a plaintiff who establishes that he or she is an eligible person under par (d) of the definition, it is necessary to look not only at the nature of the relationship, but the quality of it. The Court should consider the circumstances in which it arose and to some extent it must also look at the weight of the application which might lead to the finding that the plaintiff has been left without adequate provision for his or her proper maintenance, education or advancement in life. The circumstances must vary in every case and it would be foolish to seek to limit them in any way. Where, however, the plaintiff has established a position as a stepchild or perhaps a foster-child then there would be a number of relevant matters in my opinion which the Court should consider in deciding whether factors exist. These include the closeness of the relationship, that is whether it was one which might be properly described as parent and child, whether the plaintiff was brought up as a permanent member of the family, what was the age of the plaintiff when he or she became a member of that family, and the extent to which the plaintiff was supported by the deceased, whether it be financially, educationally or emotionally.

If a consideration of these matters leads the Court to the opinion that the plaintiff was brought up and treated as a child of the testator and if all of the other circumstances show that there may have been a moral duty on the part of that testator to provide for the plaintiff then there are factors which would warrant the making of the application. The presence of only some of these factors, or of others which have not been listed, might also justify the Court's coming to the same opinion. The potential for inclusion in that part of the definition of 'eligible person' as is contained in par (d) is enormous. The range of persons who may be admitted is very great and it includes not only stepchildren but also parents, brothers and sisters, temporary foster children and many others who may have formed part of the household and for a period have been partly dependent upon the deceased. Accordingly it seems to me that those who were raised as part of the family as stepchildren would have less difficulty in establishing factors which warrant their application than would those at the other end of the spectrum who may have been members of the family for only a brief period and with only limited dependence."

Kirby P, in Tsivinsky v Tsivinsky [1991] NSWCA 269, in dealing with the section of the former Act, said, at 13:

"Insofar as s 9(1) gives any guidance concerning the factors 'which warrant the making of the application', it is Delphic. The language used is extremely broad in its generality ('all the circumstances', 'whether past or present', 'factors ... warrant making the application', 'satisfies'). The only real clue as to what is meant is to be derived from the apparent policy of confining this additional, preliminary procedure to the particular categories of 'eligible person' contained in the definition paras (c) and (d) in s 6(1) of the Act."

In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard and Fitzgerald AJJA, there was the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test than that which the Court of Appeal approved in Churton v Christian.

In Penfold v Perpetual Trustee [2002] NSWSC 648, Windeyer J did not follow Brown v Faggoter. Bryson AJ also commented in Porthouse v Bridge [2007] NSWSC 686:

"[7] This provision gives no clear indication of the nature of the factors which should be regarded as warranting the making of the application. Decision whether there are factors which warrant the making of the application is committed to the Court in extremely general language; the Court is to have regard to all the circumstances of the case (whether past or present). The effect is that a very broad power is given to the judge who hears the case to recognize and assess the significance of the circumstances of the case and what regard should be paid to them, what the factors are and what they warrant. There may be very cogent factors which demonstrate that the making of the application is warranted, but it is unlikely that this will often be the case, and the section commits to the Court a power of determination which is difficult to distinguish from a discretion of the broadest kind.

[9] ... The recognition of factors and their weight is left to the determination and opinion of the Judge. In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors ("there are factors") is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination."

In Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89, Basten JA, with whom Allsop P and Ipp JA agreed, said of s 9(1) of the former Act:

"[8] As noted above, compliance with this requirement was not the first issue addressed by the primary judge, although s 9(1) envisages that it is to be determined before the Court decides whether to "proceed with the determination of the application". In practice, the factors relevant to the issue raised as a preliminary matter are, to a significant extent, co-extensive with those which must be addressed in determining whether the testator made adequate provision for the applicant: see Churton v Christian (1988) 13 NSWLR 241 at 242-243 (Hope JA) and 248-249 (Priestley JA). Nevertheless, the express distinction between two classes of eligible person must be recognised. It appears to have been drawn on the basis that persons falling within the first category (comprised of those identified in pars (a) and (b)) are "regarded as natural objects of testamentary recognition", whereas those falling within the second category (identified in pars (c) and (d)) are potentially appropriate objects of testamentary recognition, depending upon their circumstances: see Churton at 252 (Priestley JA) applying the analysis of McLelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681."

More recently, in Evans v Levy [2011] NSWCA 125, Young JA, with whom Campbell JA and Sackville AJA agreed, said:

"[62] It would seem that what the drafter of the legislation of 1982 did was to endeavour to avoid some of the complications that had been found to exist with cases under the 1916 Act as to just who was an eligible person by broadening the category to a very extensive degree. However, to provide some sort of filter, s 9(1) was enacted so that, without the estate having to get into a great expense, the question of whether the application could possibly succeed would be determined early. Unfortunately, experience has shown that that was a vain hope.

[63] However, the intended result of the wide nature of para (d) of the definition of "eligible person" and s 9(1) is to seek to restrict people whose claims should proceed to a hearing to those who are in very similar categories to those who are within paras (a) and (b) of the definition.

[64] On s 9, the decision of M McLelland J in Re Fulop (dec'd) (1987) 8 NSWLR 679 has stood the test of time."

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."

It can be seen that the trend of authorities does not favour the view suggested in Brown v Faggoter, although the Court of Appeal has not said it is wrong. Even so, as Slattery J has noted in Lumsden v Sumner [2012] NSWSC 1440, at [89], "[t]he authorities do not suggest that the applicant's prospects of success cannot be taken into account as a factors warranting".

With great respect, I also regard the views expressed in the authorities referred to by Windeyer J, Bryson AJ, Basten JA, Young JA and Meagher JA as correct and propose, in the circumstances, to follow their decisions. I have done so in other cases: see, for example, Fede v Dell'Arte [2010] NSWSC 1113; Curran v Harvey [2012] NSWSC 276; Sammut v Kleemann; Russell v NSW Trustee and Guardian. Other judges have done so as well: Barlevy v Nadolski [2011] NSWSC 129, per Slattery J, at [196]; Fry v Lukas; Brown v Fry; Estate of Honey; Application of Fry [2011] NSWSC 1329, per White J, at [82]; Wilcox v Wilcox, at [16]; Lumsden v Sumner, at [88]; Frisoli v Kourea; Frisoli v Kourea [2013] NSWSC 1166, per Slattery J, at [145].

Inadequacy of Provision

It is only if eligibility and, as is necessary in this case, factors warranting the making of the application are found, that the Court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is this mandatory legislative imperative that drives the ultimate result and it is only if the Court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). Only then may "the Court ... make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made".

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

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

Basten JA, at [26], put the differences this way:

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

Barrett JA, at [82] -[86] said:

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

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

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

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

The third difference to be noted is the Succession Act's more comprehensive catalogue of matters that may be taken into account in formulating an order for provision. Section 9(3) of the Family Provision Act empowered the court to "take into consideration" matters there stated in "determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person". Section 60(1)(b) of the Succession Act allows the court to "have regard to" the matters set out in s 60(2) "for the purpose of determining ... whether to make a family provision order and the nature of any such order". The Succession Act lists a greater number of such matters than did the Family Provision Act."

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

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

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

It was said in the Court of Appeal (by Basten JA) in Foley v Ellis [2008] NSWCA 288, at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J recently described it as "an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific": Szypica v O'Beirne [2013] NSWSC 297, at [40].

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

"Provision" is not defined by the Act, but it was noted in Diver v Neal, at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".

Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement":

"'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education."

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

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

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

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

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

In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77 King CJ said:

"The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang (1960) 104 CLR 124, per Dixon CJ at 128."

Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16:

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

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

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

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

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

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

In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J, at [114] noted:

"In the context of the Act the expression 'advancement in life' is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase 'advancement in life' has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the 'maintenance and support' of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support."

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

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

The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, whereas "proper" prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127, per Buss JA, at [72], [77].

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

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

Dixon CJ and Williams J, in McCosker v McCosker [1957] HCA 82; 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that:

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

In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Gibbs J said at 502:

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

In Vigolo v Bostin, at 228, Callinan and Heydon JJ said:

"[T]he use of the word 'proper' ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."

Santow J pointed out in Gardiner v Gardiner (NSWSC, 28 May 1998, unreported), that "adequate" and "proper" are independent concepts. He said, at 12:

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

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

His Honour added in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522, at [123]:

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

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

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

In Collins v McGain, Tobias JA said:

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

...

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

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

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

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

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

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

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

As Callinan and Heydon JJ emphasised in Vigolo v Bostin, the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum" or "by looking simply to the question whether the applicant has enough on which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined.

In the event that the Court is satisfied that the power to make an order is enlivened (i.e. in this case it is satisfied that the applicant is an eligible person, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), then, the Court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the Court at the time the order is made.

The second stage of the process arises under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the Court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.

However, Basten JA, in Andrew v Andrew, said of the two stage process referred to:

"29 The combination of changes requires that the court address the nature of the exercise being undertaken. Three potential consequences may be identified. First, there is a simplification of the structure of the process. There is no longer a two-stage process required. A degree of artificiality has thus been removed. The court should now ask what, taking all relevant factors into account, would have been adequate provision for the applicant. There is no first stage of determining whether the actual provision was "inadequate", followed by a discretionary exercise of determining what would be adequate and what should in fact be done.

...

41 As noted above, the language of the Succession Act is not consistent with the two-stage inquiry which was a common feature of earlier legislation: cf Singer v Berghouse at 208-209. In Keep v Bourke [2012] NSWCA 64 the Court appears to have assumed that the two-stage process continued to operate under the Succession Act: at [24]-[29]. However, the issue not having been directly addressed, there is no constraint on this Court now adopting a different approach. Nor does earlier High Court authority construing an earlier statutory scheme govern the approach to be adopted to materially different legislative provisions."

In Andrew v Andrew, Allsop P, at [6], said:

"Whether the process engaged in by the Court in s 59 can still be described as "two-staged" in the sense discussed in Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 208-211 may be an analytical question of little consequence. The task involves an evaluative assessment and a choice as to consequence therefrom, appeal from which is governed by the principles concerning discretionary judgments: Singer v Berghouse at 211 and DAO v R [2011] NSWCCA 63; 278 ALR 765 at [93]."

Barrett JA disagreed with Basten JA, in Andrew v Andrew, saying:

"65 This is the second occasion on which this Court has been called upon to deal with a claim under s 59 of the Succession Act. In the earlier case, Keep v Bourke [2012] NSWCA 64, the Court proceeded on the basis that approaches taken under s 7 of the now superseded Family Provision Act 1982 remained relevant and applicable. That matter was explored in greater detail in the course of argument in the present case. For reasons I am about to state, I am of the opinion that the earlier approaches should continue to be followed in cases such as the present case and Keep v Bourke, that is, cases in which the applicant is a child of the deceased and no previous order for provision out of the estate has been made in favour of that applicant.

...

79 First, it is necessary, having regard to s 59(1)(c), for the court to be satisfied that, at the time when it is considering the application, "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person". Whereas the former s 9(2) provided that an order was not to be made unless the court was "satisfied" in the specified way, the present legislation permits the court to make an order if "satisfied" in the specified way and, by necessary implication, precludes the making of an order if the court is not so "satisfied".

80 Second (and if the court is "satisfied" in the specified way), the "family provision order" that the court is empowered to make is, under s 59(2), "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"; and the court may, pursuant to s 60(1)(b), have regard to the matters specified in s 60(2) in deciding whether to make an order and the nature of the order.

81 Under s 59 and s 60, therefore, the task of the court, in a case of the kind under discussion, is:

(a) to determine the extent of the provision made for the maintenance, education and advancement in life of the applicant by the deceased's will or the intestacy laws;

(b) to form an opinion of the adequacy of that provision;

(c) if the opinion is one of inadequacy, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased person 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; and

(d) in making that evaluative judgment, to take into account, as discretionary factors, the matters in s 60(2).

...

94 As stated in Keep v Bourke (above), the structure and effect of the Succession Act provisions warrant continuing adherence to the two-stage approach indicated by the decisions of the High Court in Singer v Berghouse and Vigolo v Bostin."

In Franks v Franks [2013] NSWCA 60, Young AJA (with whom McColl JA and Sackville AJA agreed), at [17], referred to the primary Judge (Macready AsJ) having "cited the High Court's decision in Singer v Berghouse [supra] and adopted the two stage process required by that decision".

His Honour noted also, at [29], that the appellant (in one of the two appeals) "accepted that it was appropriate for the primary judge to follow the course laid down in Singer v Berghouse and that [the respondent] had surmounted the first hurdle of the two stage process referred to therein. Accordingly, he identified the key question as whether the primary Judge had erred in determining the quantum of the provision made for ... in lieu of that made under the deceased's will".

At [35], his Honour wrote:

"On an appeal against a decision concerning the application of the second limb of Singer v Berghouse, the Court is dealing with a discretionary judgment (see Singer v Berghouse (at 211) and Durham v Durham [2011] NSWCA 62 at [82]; 80 NSWLR 335 (at 352)). It follows that his Honour's decision is reviewable by this Court only in accordance with the principles established in House v The King [1936] HCA 40; 55 CLR 499."

Although the appeal was allowed, that was because the Court found, at [42], that:

"... in formulating the quantum of the provision he made for Brad, the primary judge did not take into account the disparity in the financial circumstances between Gregory and Brad. Accordingly, the primary Judge's decision as to quantum must be set aside."

Nothing in the Court of Appeal's judgment in Franks v Franks suggests that the approach followed by the trial Judge, in adopting the two-stage process required by Singer v Berghouse, was wrong.

At first instance, there are a number of decisions to which reference should be made. In Verzar v Verzar [2012] NSWSC 1380, Lindsay J said:

"92 I refrain from characterisation of these elements of the case as "stages" because that is terminology associated with the Family Provision Act 1982 (NSW) and Singer v Berghouse (1994) 181 CLR 201 at 208-211. Since Andrew v Andrew [2012] NSWCA 308 (14 June 2012) per Allsop P at [5]-[6] and Basten JA at [27], [29] and [41] a single judge of the Court is bound, in my assessment, to regard the two-stage decision-making process identified in Singer v Berghouse, and confirmed by Vigolo v Bostin (2005) 221 CLR 191, as superseded by enactment of ss 59-60 of the Succession Act.

93 Although the provisions of ss 59(1)(c) and 59(2) might formerly have been treated, respectively, as re-embodiments of the first and second of the two-stages of decision-making identified in Singer v Berghouse, the test to be applied in Family Provision cases must be taken by me to have been modified."

Ball J, in Oldereid v Chan [2013] NSWSC 434, after referring to Andrew v Andrew, noted the different approaches being adopted by trial Judges. His Honour said:

"52 More recent decisions at first instance have differed on whether the decision in Andrew v Andrew requires the court to apply a two stage process or not. Lindsay J in Verzar v Verzar [2012] NSWSC 1380 thought that a single judge of the court is bound "to regard the two-stage decision-making process identified in Singer v Berghouse ... as superseded by enactment of ss 59-60 of the Succession Act" (at [92]). Hallen J, on the other hand, has continued to apply the two stage test: see Goldsmith v Goldsmith [2012] NSWSC 1486 at [67]; Nowak v Beska [2013] NSWSC 166 at [113]. A third approach, adopted by Macready AsJ in Morgan v Bohm [2013] NSWSC 145 at [110], is to consider the case on both bases. There are, however, difficulties with that approach. If the two approaches involve real differences, then presumably there are cases where they will produce different results. What, then, is to be done applying both approaches? On the other hand, if the two approaches are bound to produce the same result, the dispute about which test should be applied has no significance.

53 In my opinion, there is clearly a tension between the decisions of the Court of Appeal in Keep v Bourke [2012] NSWCA 64 and Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 which only the Court of Appeal or High Court can resolve. In the meantime, the duty of a trial judge is to follow the later decision: see Ratcliffe v Watters (1969) 89 WN (NSW) Part 1 497 at 505 per Street J. In Andrew v Andrew, both Allsop P and Basten JA regarded the reformulation of the test in s 59 of the Succession Act as changing, perhaps only subtly, the threshold that must be satisfied before an order can be made. Basten JA regarded that change as also changing the way in which the court should approach the question. Allsop P regarded it as an analytical question of little consequence. However it is analysed, though, it is clear from the terms of s 59 that the court must ask itself the question whether it is satisfied that "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made". If it is so satisfied, it must consider whether to make an order and, if so, the terms of that order. In undertaking each of those steps, it may have regard to the matters set out in s 60. Whether those steps should be seen as separate stages that must be followed or as convenient steps in undertaking what is required by the legislation does not matter for present purposes."

It appears that Ball J was not referred to Franks v Franks.

It seems to me, with great respect to those who disagree, that the amendments introduced by the Act do not require, or justify, a different approach. That approach, adopted in the myriad of cases determined under the Act, including Keep v Bourke [2012] NSWCA 64 (in which Macfarlan JA (except as to amount of provision) and Tobias AJA agreed with Barrett JA), and now Franks v Franks (a unanimous decision of the Court of Appeal), requires a trial Judge to continue to follow the two stage approach in determining cases under the Act, until any uncertainty is resolved. Furthermore, as Ball J repeats, the questions remain the same, namely, whether the Court can make an order for provision (whether it is satisfied that "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made"), and if so, whether it should (whether to make an order and, if so, the terms of that order). As Allsop P said in Andrew v Andrew, at [6], "it may be an analytical question of little consequence".

More recently, Ball J in Peters v Salmon [2013] NSWSC 953, at [80], has referred to these decisions and to my own decision in Harrisson v Skinner [2013] NSWSC 736, at [62]-[79] where I stated what is said in the last paragraph, and commented:

"There is much to be said for that conclusion. However, whatever the position, as I pointed out in my judgment in Oldereid v Chan [2013] NSWSC 434 at [53] it seems clear from the terms of s 59 that the court must ask itself the question whether it is satisfied that "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made". If it is so satisfied, it must consider whether to make an order and, if so, the terms of that order. In undertaking each of those steps, it may have regard to the matters set out in s 60."

Perhaps, the way to approach the matter is to simply to refer to the Act containing "twin tasks": Goodman v Windeyer, per Gibbs J, at 502, being the jurisdictional question and the discretionary question, with one task overlapping, to some extent, with the other.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The deceased and Victor encouraged Vera, as a child, in sports and academic pursuits.

Vera married at the age of 15 years, in December 1969. She did not tell the deceased, or Victor, that she was getting married and they did not attend the ceremony. Vera says that they were unhappy when she told them she was pregnant in 1969. However, on occasions, the deceased and others did assist Vera looking after one of her children.

As an adult, the deceased gave Vera a piano and encouraged her to learn to play. She suggested that Vera and Dennis should take up lawn bowls.

Although Vera gives evidence of regular visits that she and Dennis had to the home of the deceased, after 1997, Graham and Paul state that the deceased did not tell them of very many regular visits. However, Graham does admit that the deceased told him, of Vera taking her shopping "half a dozen times ... in the last 10 years of her life".

It is not disputed that the deceased and Vera took several trips together. For example, in August 1991, whilst Vera and Dennis were living in Perth, the deceased visited them and they went to Geraldton, Western Australia, together. (The deceased and Victor had visited them there in 1987.) On another occasion, in 1996, they went to Adelaide and Kangaroo Island.

There is evidence on one of the DVD's that was tendered, of one of the children referring to the deceased as "Grandma". However, I accept Graham's evidence that this word was used, "generally", by young children in referring to the deceased.

The fact, also revealed on the DVD, that the deceased sponsored Vera's daughter's confirmation is relevant also. It does not support the assertion that Vera was "tolerated" or "put up with". However, I do not think that it demonstrates that the deceased regarded Vera as her daughter.

Vera's relationship with the deceased continued from her birth until the deceased's death, although for most of the time, they did not have constant contact. They did maintain contact by reasonably regular visits, telephone calls and letters.

I am satisfied that whilst she lived in the deceased's household, she was provided with care and support. During this period, she was probably treated as a natural child would be, but this is hardly surprising.

I am also satisfied that a relationship, albeit of a different kind, between them continued into Vera's adulthood and until the deceased's death. Considering all of the evidence that I have read and heard, I am not satisfied that the deceased regarded Vera in quite the same way as Vera may have regarded the deceased.

It is not surprising, in my view, that Vera's perception of her relationship with the deceased was as it was. After all, for 18 months, at a formative age, she found herself in a stable, loving, environment, which was very different to the family environment that she had known. That she loved the deceased, also, is not surprising.

Vera may have perceived herself a member of the deceased's family but I do not think that the deceased perceived her in quite the same way. The facts demonstrating the continuing relationship, whilst important, and evidence of the "other relationship between the applicant and the deceased" does not, in my view, establish, to my satisfaction, that there was a "family" relationship maintained between them. The evidence, overall, does not lead me to the view, that the deceased treated Vera as a daughter, or that the deceased regarded her as "very much a part of her family".

Nor do I conclude, however, that the deceased simply "tolerated" or "put up with" Vera. The duration of their relationship, even if it was not quite as described by Vera, satisfies me of this.

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

There is no definition of the words "obligations" or "responsibilities" to which the sub-section refers in the Act. Importantly, the Act does not expressly refer to, or identify, any "moral duty". Yet, one might conclude, however, that what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities.

This factor may require a balancing of potentially competing obligations as between different applicants, or as here, as between an applicant and the principal beneficiaries.

Leaving aside any obligation, or responsibility, arising as a result of their relationship as foster parent and foster child, whilst Vera was living with the deceased and Victor, they did not have any legal obligation to her, or to either of Graham and Paul, as adults, imposed upon them by statute or common law.

Yet, an obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child. In Flathaug v Weaver [2003] NZFLR 730, at 737, the origin of the obligation which underpins the Act's recognition of the duty owed by a parent to a child was put in this way:

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

As stated, previously, whether any obligation or responsibility is owed to Vera as a foster child, will depend upon all of the facts of the case.

The fact that an applicant or a beneficiary was financially independent, for many years, before the deceased's death, is a relevant consideration in determining the extent of any obligation or responsibility owed.

In this case, by her Will, the deceased appears to have accepted that she had a responsibility to provide for her two children. She also seems to have accepted a responsibility to make less provision for Vera. (I do not accept the submission made on behalf of Vera that the deceased divided the estate equally between Vera, Graham and Paul, because she did not own the real estate at Strathfield at the time she made the Will.) What the deceased did was divide what was in her bank accounts between Vera, Graham and Paul equally, but she left the balance of her estate (other than jewellery) to her two children.

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

I have dealt with these matters earlier in these reasons. The net value of the deceased's notional estate is not large.

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

A consideration of this matter calls for a comparison of the financial resources of the applicant and the beneficiaries.

Vera has not worked since 2008, having been terminated from her employment at Wyong hospital on 10 October 2008.

She and Dennis own their own home, which is said to have a value of about $300,000 and which is unencumbered; they have a little under $5,000 on bank deposit, a late model car, and little in the way of furniture, personal effects. She has superannuation (not exceeding about $5,000). They have joint or several liabilities totalling about $552.

Vera is in receipt of a pension and workers compensation payments and her total gross fortnightly income is $1,064, from which she pays $14 in tax (per fortnight). Dennis is in receipt of a disability pension and an allocated pension payment and his total gross fortnightly income is $730 on which he does not pay tax. Accordingly, their combined fortnightly income is $1,794. She says their fortnightly expenditure exceeds their joint income by about $100 per fortnight.

Dennis has moneys on deposit, most of which he inherited, totalling about $219,047.

Vera seeks provision from the estate to be able to pay her debts, make repairs to her home and to provide some security (a buffer) for her to afford future medical bills & any other contingencies that may arise. Her counsel submitted that she should receive a lump sum of between $200,000 and $250,000.

It should be noted that not included in the above, is the amount that Vera will receive out of the deceased's estate. It will be no less than $5,684.

I should also mention that over the last few years, Vera and Dennis have had several holidays. The evidence reveals that the total costs of these holidays amount to no less than about $45,000. In addition, they have given each of their two children $5,000.

Graham's financial resources may be summarised as follows: He has assets in his own name of $347,243 comprising cash (currently held by his solicitors on trust for him) ($283,535), a car ($25,000) and superannuation/shares ($38,708). He has sole liabilities of $1,875 being a credit card debt.

Graham also has joint assets with his wife Margaret of $1,167,217 comprising cash in bank ($126,771), a house ($290,000), two investment properties ($280,000 and $350,000 respectively), and superannuation/shares ($120,446). They have liabilities of $319,826 comprising two home loans ($168,331 and $151,224 respectively) and outstanding utility bills ($271).

Their total monthly income is $1,383 and their total monthly expenditure is $3,954. In cross-examination, Graham states that the shortfall is made up from his savings.

Paul's financial resources may be summarised as follows: He has a car ($5,500) and shares in his company, Quotefast Software Pty Ltd ($0).

Paul also has joint assets with his wife Pam of $701,627 comprising a home ($700,000) and cash in bank ($1,627). Their only liability is a mortgage ($461,440).

Their net annual income is $93,390 and their total annual expenditure is slightly more.

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

This sub-section permits account to be taken of the financial circumstances relating to the cohabitation.

Vera is cohabiting with her husband, Dennis. I have set out his financial circumstances above.

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

Vera gives evidence about some disabilities. She has had a "a frozen right shoulder, regional pain syndrome right arm, and secondary depression; she has a pituitary adenoma and has been assessed as having a 16% whole person impairment on the basis of her disabilities". She remains unfit to work by virtue of a work related injury and is unlikely to work ever again. She describes her health as 'gradually deteriorating with age', and the shoulder, back and other difficulties about which she gives evidence are largely degenerative in nature.

She has, in the past, been in receipt of psychological counselling assistance and found this beneficial in management of her pain symptoms. As at May 2010, she was not in receipt of formal treatment, but occasionally sought physiotherapy treatment for the management of pain and injury symptoms.

Graham gives evidence of his medical condition, which may be summarised as follows: In 2010, he underwent surgery to have a double hernia removed and was hospitalised for two weeks. As a result of the surgery, he developed a hyperechoic non-vascular lesion in his upper right arm. He subsequently underwent two operations in 2011 to remove the lesion.

He states that has a single large gallstone which may need to be surgically removed. He also states that he has a heart problem (although the precise nature was not disclosed), which needs to be checked regularly.

Graham describes Margaret's health as poor. She has suffered from chronic epilepsy since she was about 4 years old. In 1997, she underwent a major operation which stopped the tonic-clonic and tonic seizures from which she used to suffer. She will be required to take medication for the rest of her life and also have annual medical checks.

Paul gives evidence of his medical condition, which may be summarised as follows: Paul states that he suffers from a hiatus hernia and an enlarged prostate, both of which require him to take daily prescription medication. He also has a ruptured disc in his lower spine, which requires him to take semi-regular pain medication.

Paul describes Pam's health as poor. She has suffered from and is still receiving treatment for breast cancer, high blood pressure, type 2 diabetes, high cholesterol, low vitamin D and low potassium. As a result of the breast cancer, she requires ongoing chemotherapy treatment, physiotherapy, regular monitoring and biopsies and pain medication. She may also require a total knee replacement in the future.

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

Vera was born in January 1954 and is currently 59 years of age.

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

There is no evidence that Vera made any direct contributions to the acquisition, conservation and improvement of the estate of the deceased. The Strathfield property itself, or the proceeds of its sale, comprised virtually the whole of the deceased's estate and that was owned by Victor from late 1950.

Dennis would, on occasions, help Victor do odd jobs around the Strathfield property. Usually, he was paid for the work that he did.

Vera made some contribution to the welfare of the deceased. For example, when Victor died, she returned from Perth to attend his funeral and stayed with the deceased for a few weeks. Subsequently, the deceased reimbursed Vera for her airfare.

When her own father died, also in 1988, and her mother died in 1993, Vera again returned to Sydney for the funerals and she stayed with the deceased.

I have referred to Vera having taken the deceased shopping on occasions.

It is clear that each of Graham and Paul provided significant care and assistance to the deceased in her ill health (including extending his home to accommodate the deceased) in order to avoid her having to go into a nursing home. I am satisfied that each of them made a much greater contribution to the deceased than did Vera.

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

The deceased appears to have made some provision for Vera during her lifetime. In 1969, after Vera and Dennis moved into a home unit together, the deceased and Victor assisted them in buying household items, such as blankets, sheets and kitchen utensils. They contributed $100 towards the bond for the unit and when her first child was born, the deceased and Victor bought a pram and other things for the baby.

The deceased and Victor gave Vera a freezer for her 21st birthday. They also paid for a holiday in Tasmania, which they enjoyed together with Paul, his wife, Pam, and Pam's mother.

In addition, Vera gives evidence that in 1981, the deceased provided a deposit of $2,000 to Vera and Dennis to assist in the purchase of their first home in St Mary's. (The deceased had not disclosed this to either of her children.)

When Vera and Dennis moved back to Sydney, in about 1997, they stayed with the deceased.

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

There is no evidence of the testamentary intentions of the deceased other than in the Will to which I have referred.

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

The deceased did not maintain Vera, before her death other than during the period when she was in her care.

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

There is no person with a liability to support Vera, other than, perhaps, the worker's compensation insurer during the period payments are to be made, and Dennis, as her spouse.

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

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

I have dealt with the relationship of Vera and the deceased. There was little relevant conduct relied upon otherwise.

There is no suggestion that there is any adverse conduct by Vera that should be taken into account. Graham and Paul assert, and I have found, that the relationship was not quite as described by Vera.

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

I am satisfied that each of Graham and Paul was a loving son of the deceased who did, and has done, all that he could do in relation to the deceased. Each of them is, of course, the principal chosen object of the deceased's bounty.

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

This is not relevant in the present case.

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

There is no other matter that I consider relevant. (Neither of the parties relied upon any matter under this ground that was not otherwise considered under the other grounds.)

Determination

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. In this case, there is no dispute that Vera, is an eligible person within the meaning of s 57(1)(e) of the Act.

There is also no dispute that Vera commenced the proceedings within the time prescribed by the Act.

In relation to factors warranting the making of her application, although it was submitted that there were none, it is significant that the deceased acknowledged that Vera was a proper object of her testamentary bounty in her Will, which she made in 1981 and did not change her Will at any time before her death.

In Lumsden v Sumner, at [95], Slattery J considered that "by making the Will in [the applicant's] favour as she did, [the deceased] recognised that the relationship of niece and nephew with [the applicant] was one of natural testamentary bounty".

I should mention that counsel for the Defendants submitted that "significantly, in the case of the claim by Mr Fulop, the stepson, McLelland J did not refer to the fact that he received a legacy under the testator's will as one of the factors which established factors warranting the making of the application".

I do not accept that this is so. At 683, following the reference to "factors warranting the making of the application", his Honour wrote:

"It is significant that in her will dated 8 June 1964 the deceased referred to Mr Fulop as "my son" and in her last will dated 14 December 1981 as "my stepson". This change in the description is consistent with the distancing between Mr Fulop and the deceased which occurred in the latter years of her life, but nevertheless shows that in the eyes of the deceased Mr Fulop was still regarded as a member of her family."

In relation to the other Plaintiff in that case, Mrs Bide, his Honour, at 684, said:

"She is referred to in the deceased's last will as "my daughter" and her children are referred to in that will as "my grandchildren" and by cognate expressions."

Furthermore, Vera kept in touch, and had a long, and continuing, association, with the deceased, which appears was one reciprocated by the deceased, after the foster period, although as I have found, her contact with the deceased may not have been as often as she maintained.

Furthermore, it was the type of relationship which enabled the deceased to look past some of the aspects of Vera's life of which she disapproved, for example, her marrying and having a child at such a young age, her smoking, and her going to clubs and playing the poker machines. It would have been relatively easy, one would imagine, for the deceased to terminate the relationship with Vera if the deceased had wished to do so. But she did not.

I am satisfied that there are factors warranting the making of the application.

Having established eligibility and factors warranting the making of the application, the first question for determination is whether, at the time the Court is considering the application, adequate provision for Vera's proper maintenance or advancement in life has not been made by the Will of the deceased.

Having considered the matters I am required to consider, I am also so satisfied. The provision that was made for her in the deceased's Will, is small and the balance of the estate whilst not large, is not tiny.

It is also clear that Vera has some "needs". As stated above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence.

Age and state of health are other factors to which, under the Act, the Court may have regard. At the date of hearing, Vera is not an "able-bodied adult", in the sense that the expression is usually used in connection with family provision litigation, of someone who is, or will be, well able to earn enough by her, or his, own exertions to provide for her, or his needs: Belfield v Belfield [2012] NSWSC 416, per Campbell JA, at [82].

As I have stated, Vera submits that inadequate provision has been made for her and that the Court should make an order that she receive a lump sum. She submits that the deceased owed her an obligation based upon their relationship throughout her life and says that she should be treated as a daughter would be.

In addressing whether adequate provision was made for Vera, another consideration appears to be the assessment of the relative financial position and competing claims of Graham and Paul. When one considers the competing claim of each and financial and material circumstances, the estate is sufficiently large to enable the provision of a capital sum for Vera for exigencies of life.

For these reasons, I am satisfied that the Will of the deceased (the rules of intestacy are irrelevant) does not make adequate provision for the proper maintenance or advancement in life of Vera.

Then, I next consider the nature and amount of any provision, if any, that should be made. I reject the submission that Vera should receive a lump sum of between $200,000 and $250,000. That is more than adequate and not proper, considering the competing claims of Graham and Paul.

Any obligation owed by the deceased to Vera on death could not be greater than the obligation the deceased had to each of her biological children, with whom she had a close and loving relationship and each of whom was a dutiful son. Furthermore, the deceased did not owe Vera a duty to make provision by formally assuming the obligation of parent to a child, when she had no such obligation to Vera during her lifetime.

Furthermore, unlike the facts in Carney v Jones (at [55]), Vera's contact and the relationship arising from it was not such that she adopted a position of major responsibility for the deceased in the last years of the deceased's life. That responsibility remained with Graham and Paul.

However, Vera should receive a lump sum that will provide her with an additional fund for exigencies of life and to protect her, in the future.

In determining the nature and quantum of the provision, I take into account, also, the circumstances surrounding Vera's relationship with the deceased. In my view, in addition to the amount she will receive out of the estate of the deceased, Vera should receive a lump sum of $80,000. Leaving aside the amount for costs, the burden of that provision will be $40,000 by each of Graham and Paul.

There is a fund available to pay the amount of the lump sum, so it should be paid within 28 days of the making of the costs argument.

The orders I make are as follows:

(i) Having found that the Plaintiff, Vera Caroline Hamilton, is an eligible person; that there are factors warranting the making of the application; that the proceedings were commenced within time; and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, she should receive, in addition to the amount the Defendants agreed to pay to her out of the estate of the deceased, a lump sum of $80,000.

(ii) The provision made for the Plaintiff should be borne by the Defendants equally.

(iii) No interest is to be paid on the lump sum, if it is paid within 28 days of the determination of the costs argument, or if there is no costs argument, of today.

(iv) Unless either party wishes to argue the question of costs, the Plaintiff's costs, calculated on the ordinary basis, and the Defendants' costs calculated on the indemnity basis, shall be paid out of the estate of the deceased.

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

(vi) Consideration be reserved in respect of making consequential and ancillary orders for the purpose of giving effect to the family provision order.

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Decision last updated: 02 September 2013

Medium Neutral Citation:	Hamilton v Moir [2013] NSWSC 1200
Hearing dates:	7, 8 August 2013
Decision date:	02 September 2013
Jurisdiction:	Equity Division
Before:	Hallen J
Decision:	(i) Having found that the Plaintiff, Vera Caroline Hamilton, is an eligible person, that there are factors warranting the making of the application, that the proceedings were commenced within time, and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, she should receive, in addition to the amount which the Defendants have agreed to pay to her out of the estate of the deceased, a lump sum of $80,000. (ii) The provision made for the Plaintiff should be borne by the Defendants equally. (iii) No interest is to be paid on the lump sum, if it is paid within 28 days of the determination of the costs argument, or if there is no costs argument, of today. (iv) Unless either party wishes to argue the question of costs, the Plaintiff's costs, calculated on the ordinary basis, and the Defendants' costs calculated on the indemnity basis, shall be paid out of the estate of the deceased. (v) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005. (vi) Consideration be reserved in respect of making consequential and ancillary orders for the purpose of giving effect to the family provision order.
Catchwords:	SUCCESSION - FAMILY PROVISION - The Plaintiff seeks a family provision order out of the estate of the deceased under the Succession Act 2006 as a person who, as a foster child, was a member of the household of which the deceased was a member and dependent on the deceased - The Defendants are the executors to whom Probate granted - Nearly the whole estate left to the Defendants who are also biological children of the deceased - No dispute as to Plaintiff's eligibility but dispute whether there are factors warranting the making of the application - Whether to make a family provision order - If order for provision made, quantum of provision that should be made - Distributed estate but no dispute that provision should be borne by the Defendants
Legislation Cited:	Child Welfare Act 1939 Family Provision Act 1982 Property (Relationships) Act 1984Succession Act 2006Succession Amendment (Family Provision) Act 2008 Uniform Civil Procedure Rules 2005
Cases Cited:	Alexander v Jansson [2010] NSWCA 176Allardice, In re; Allardice v Allardice (1909) 29 NZLR 959 Allen (Dec'd), In re; Allen v Manchester [1922] NZLR 218 Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 Barlevy v Nadolski [2011] NSWSC 129 Bartlett v Coomber [2008] NSWCA 100 Belfield v Belfield [2012] NSWSC 416 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Brown v Faggoter [1998] NSWCA 44 Carega Properties SA (formerly Joram Developments Ltd) v Sharratt [1979] 2 All ER 1084; [1979] 1 WLR 928 Carney v Jones [2012] NSWSC 352 Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Curran v Harvey [2012] NSWSC 276 Day v Couch [2000] NSWSC 230 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 Evans v Levy [2011] NSWCA 125 Fede v Dell'Arte [2010] NSWSC 1113 Fiorentini v O'Neil [1998] NSWCA 79 Flathaug v Weaver [2003] NZFLR 730 Foley v Ellis [2008] NSWCA 288 Franks v Franks [2013] NSWCA 60 Frisoli v Kourea; Frisoli v Kourea [2013] NSWSC 1166 Fry v Lukas; Brown v Fry; Estate of Honey; Application of Fry [2011] NSWSC 1329 Fulop Deceased, Re (1987) 8 NSWLR 679 Gardiner v Gardiner (NSWSC, 28 May 1998, unreported) Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Graziani v Graziani (NSWSC, 20 February 1987, unreported) Grey v Harrison [1997] 2 VR 359 Harrisson v Skinner [2013] NSWSC 736 Hodgson, Re (1886) 31 Ch D 177 Hyland v Burbidge [2000] NSWSC 12 Kay v Archbold [2008] NSWSC 254 Keep v Bourke [2012] NSWCA 64 Kembrey v Cuskelly [2008] NSWSC 262 Lumsden v Sumner [2012] NSWSC 1440 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 Mayfield v Lloyd-Williams [2004] NSWSC 419 Neale v Neale [2013] NSWSC 983 Oldereid v Chan [2013] NSWSC 434 Onassis v Vergottis [1968] 2 Lloyd's Rep. 403 Palaganio v Mankarios [2011] NSWSC 61 Penfold v Perpetual Trustee [2002] NSWSC 648 Peters v Salmon [2013] NSWSC 953 Plunkett v Bull [1915] HCA 14; (1915) 19 CLR 544 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Porthouse v Bridge [2007] NSWSC 686 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Ross v Collins [1964] 1 All ER 861; [1964] 1 WLR 425 Russell v NSW Trustee and Guardian [2013] NSWSC 370 Sammut v Kleemann [2012] NSWSC 1030 Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100 Sassoon v Rose [2013] NSWCA 220 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (NSWSC, 16 December 1996, unreported) Stott v Cook (1960) 33 ALJR 447 Szypica v O'Beirne [2013] NSWSC 297 Thornley v Heffernan (NSWSC, 12 September 1995, unreported) Tobin v Ezekiel [2012] NSWCA 285 Tsivinsky v Tsivinsky [1991] NSWCA 269 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported) Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123 Weeks v Hrubala [2008] NSWSC 162 White and Tulloch v White (1995) 19 Fam LR 696 Wilcox v Wilcox [2012] NSWSC 1138
Texts Cited:	J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, 7th ed, 2006) Government Gazette No. 38 of 20 February 2009, page 1036
Category:	Principal judgment
Parties:	Vera Caroline Hamilton (Plaintiff) Graham James Moir (first Defendant) Paul Ashley Moir (second Defendant)
Representation:	Counsel: Mr S A Benson (Plaintiff) Mr R D Wilson (Defendants) Solicitors: Turnbull Hill Lawyers (Plaintiff) Emil Ford Lawyers (Defendants)
File Number(s):	2012/262155