Hancock, Shaun v Parker; Hancock, Lisa v Parker

Case •

[2017] NSWSC 759

•

20 June 2017

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Hancock, Shaun v Parker; Hancock, Lisa v Parker [2017] NSWSC 759
Hearing dates:22 - 23 March 2017, 13 April 2017
Date of orders: 20 June 2017
Decision date: 20 June 2017
Jurisdiction:Equity
Before: Hallen J
Decision:

The Court:

 

(i) Orders that the two proceedings be heard consecutively, with the evidence in one being evidence in the other.

 

(ii) Orders pursuant to UCPR rule 7.8, that Cheryl Christine Parker and Gary Neville Hancock be appointed as representatives of the deceased’s estate for the purpose of the proceedings and to conduct the proceedings on behalf of the estate.

 (iii) The parties, in each matter, within 14 days, are to consider whether any amendments to the proposed orders are required. The matter is stood over to a convenient date for any argument as to the nature and form of the orders proposed and in relation to costs. Otherwise, any agreed amendments to the proposed orders may be forwarded to the Court, for consideration, in Chambers, or if no amendments are sought, the Court is to be informed and the orders proposed will be entered and the adjourned date vacated. The matter will be adjourned to a mutually convenient date thereafter to determine whether a costs hearing is required.
Catchwords: SUCCESSION – FAMILY PROVISION – Two proceedings, the first in time brought by an adult grandchild of the deceased - The second in time brought by an adult child of the deceased (the mother of the other Plaintiff) - Proceedings by adult child commenced out of time - Each Plaintiff applies for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) - No dispute as to the eligibility of the second Plaintiff as a child of the deceased – Plaintiff grandchild was living with deceased at the time of her death – No dispute as to eligibility - Whether factors warrant the making of the grandchild’s application - The Defendants are adult children of the deceased and are the only other beneficiaries, with the Plaintiff child, named in the Will - Defendants oppose the making of an order in each matter - Whether inadequate provision made in Will of the deceased for each Plaintiff and, if so, the nature and quantum of the provision to be made for him and her respectively - Competing financial claims advanced by each of the Defendants
Legislation Cited: Family Provision Act 1982 (NSW)
Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Andre v Perpetual Trustees WA Ltd (as Executor of the Will of Barbara Helen Owen Stewart) [2009] WASCA 14
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86
Bondelmonte v Blanckensee [1989] WAR 305
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Brown v Faggoter [1998] NSWCA 44
Burke v Burke [2015] NSWCA 195
Butcher v Craig [2009] WASC 164
Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748
Carey v Robson (No 2) [2009] NSWSC 1199
Chan v Chan [2016] NSWCA 222
Chapple v Wilcox [2014] NSWCA 392; (2014) NSWLR 646
Christie v Manera [2006] WASC 287
Churton v Christian (1988) 13 NSWLR 241
Collicoat v McMillan [1999] 3 VR 803
Crossman v Riedel [2004] ACTSC 127
de Angelis v de Angelis [2003] VSC 432
Diver v Neal [2009] NSWCA 54
Evans v Levy [2011] NSWCA 125
Foley v Ellis [2008] NSWCA 288
Forsyth v Sinclair (No 2) (2010) 28 VR 635
Glynne v NSW Trustee and Guardian; Lindsay v NSW Trustee and Guardian [2011] NSWSC 535
Goodman v Windeyer [1980] HCA 31; 144 CLR 490 at 498
Goodsell v Wellington [2011] NSWSC 1232
Gorton v Parks (1989) 17 NSWLR 1
Grey v Harrison [1997] 2 VR 359
Harkness v Harkness (No 2) [2012] NSWSC 35
Harrison v Harrison [2011] VSC 459
Hawkins v Prestage (1989) 1 WAR 37
Henry v Hancock [2016] NSWSC 71
Hills v Chalk [2008] QCA 159; [2009] 1 Qd R 409
Hinderry v Hinderry [2016] NSWSC 780
Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134
Hunter v Hunter (1987) 8 NSWLR 573
Hyland v Burbidge [2000] NSWSC 12
Ilott v The Blue Cross [2017] 2 WLR 979; [2017] UKSC 17
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
MacGregor v MacGregor [2003] WASC 169
Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146
Marks v Marks [2003] WASCA 297
Mayfield v Lloyd-Williams [2004] NSWSC 419
McCosker v McCosker [1957] HCA 82, (1957) 97 CLR 566
McKenzie v Topp [2004] VSC 90
Moore v Randall [2012] NSWSC 184
Page v Page [2016] NSWSC 1218
Penfold v Perpetual Trustee [2002] NSWSC 648
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Porthouse v Bridge [2007] NSWSC 686
R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808
Re Buckland, Deceased [1966] VR 404
Re Fulop Dec'd (1987) 8 NSWLR 679 at 681
Re Salmon, Deceased [1981] Ch 167
Sassoon v Rose [2013] NSWCA 220
Simonetto v Dick [2014] NTCA 4
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253
Smith v Johnson [2015] NSWCA 297
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stott v Cook (1960) 33 ALJR 447
Taylor v Farrugia [2009] NSWSC 801
Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572
Thompson v Sgro [2016] NSWSC 1869
Tramantana v Harborne; Clarke v Harborne; Midson v Harborne [2011] NSWSC 1129
Tsivinsky v Tsivinsky [1991] NSWCA 269
Verzar v Verzar [2012] NSWSC 1380
Verzar v Verzar [2014] NSWCA 45
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep)
White v Barron (1980) 144 CLR 431; [1980] HCA 14
Wilcox v Wilcox [2012] NSWSC 1138
Yee v Yee [2016] NSWSC 360
Category:Principal judgment
Parties: Mr Shaun Anthony Hancock (Plaintiff)
Ms Lisa Maree Hancock (Plaintiff)
Ms Cheryl Christine Parker (first Defendant)
Mr Gary Neville Hancock (third Defendant)
Representation:

Counsel:
Mr A F Stevens (Plaintiff, Shaun Hancock)
Mr K P Tang (Plaintiff, Lisa Hancock)
Mr K Morrissey (Defendants)

  Solicitors:
Owen Hodge Lawyers (Plaintiff, Shaun Hancock)
Hancock Alldis & Roskov (Plaintiff, Lisa Hancock)
Turner Freedman (Defendants)
File Number(s):2015/376756 and 2016/221786

Judgment

The Claims

  1. HIS HONOUR: The Court is concerned with two different proceedings involving the estate of Roma Ellen Hancock (“the deceased”), who died on 13 January 2015, in each of which proceedings, the Plaintiff seeks a family provision order out of the deceased's estate and notional estate pursuant to the Succession Act 2006 (NSW) ("the Act").

  2. By agreement of the parties, both matters were listed on the same days for hearing in the Family Provision running list. At the commencement of the hearing, an order was made, with the agreement of the parties in each of the proceedings, that they be heard consecutively, with the evidence in one being evidence in the other.

  3. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the Court 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. Each Plaintiff also seeks an order that his, and her, costs, respectively, of the proceedings, be paid out of the estate of the deceased.

  4. As there are two different Plaintiffs and two Defendants, after introduction, I shall refer to the parties by his, or her, first name, respectively, in order to avoid confusion. By doing so, I do not mean any disrespect or suggest undue familiarity.

  5. The first proceeding (2015/376756) is one commenced by Shaun Anthony Hancock, a grandchild of the deceased. I shall refer to these as “Shaun’s proceedings.” The Summons was filed on 23 December 2015, that is to say, within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased).

  6. Shaun is the son of Lisa Maree Hancock, who is the Plaintiff in the other proceedings (2016/221786). I shall refer to this proceeding as “Lisa’s proceedings.” Lisa is one of the three children of the deceased. Her Summons was filed on 22 July 2016, that is to say, some 6 months outside the time prescribed by the Act. In the Summons, Lisa sought an order that the time for the making of her application be extended until the date of the filing of the Summons.

  7. The three Defendants in Shaun’s proceedings are Cheryl Christine Parker, Gary Neville Hancock and Lisa. Cheryl and Gary are the two named Defendants in Lisa’s proceedings and two of the three executors named in the Will of the deceased made on 11 February 2005. This Court granted Probate of the deceased’s Will to them, and to Lisa (the third executor named in the deceased’s Will), on 24 November 2015.

  8. In Shaun’s proceedings, Cheryl and Gary have represented the estate of the deceased, even though Lisa is a named Defendant. In Lisa’s proceedings, only Cheryl and Gary are named as the Defendants. They are the appropriate contradictors bearing in mind the nature of each proceeding. For completeness, an order will be made appointing them as representatives of the deceased’s estate, for the purposes of the proceedings, to conduct the proceedings on behalf of the estate. All of the parties consented to the order proposed.

  9. At the commencement of the hearing, the parties also agreed that there was no property that could be designated as notional estate of the deceased. In the circumstances, hereafter, I shall simply refer to the estate of the deceased. Additionally, they agreed that there is no scope for the operation of the intestacy rules, which means that it is only necessary to refer, hereafter, to the Will of the deceased: T129.41 – T129.43.

  10. It was also not in dispute that Shaun is an eligible person within the meaning of that term in s 57(1)(e) of the Act. He is a person who was, at any particular time, wholly or partly dependent on the deceased, and a grandchild of the deceased. Also, Lisa, as a child of the deceased, is an eligible person within the meaning of that term in s 57(1)(c) of the Act. The language of each sub-section referred to is expressive of the person’s status, as well as her, or his, relationship to the deceased. There is no age limit placed on an eligible person making an application.

Background Facts

  1. In a claim for a family provision order, factual context is necessary. It is convenient to begin with a statement of uncontroversial background facts, since these provide part of that context. In relation to any matters that were in dispute, to which I refer, the facts set out hereunder should be regarded as the findings of the Court.

  2. The deceased was born in March 1929 and died in January 2015 aged almost 86 years. She married Keith Burnley Hancock in 1949, but he predeceased her, having died in April 1990. There were three children of the marriage, namely, Cheryl, who was born in April 1950, and who is currently 67 years of age, Gary, who was born in June 1955, who is 62 years of age, and Lisa, who was born in February 1964, and who is currently 53 years of age.

  3. As stated, Shaun is Lisa’s son. He was born in October 1982 and is now 34 years old.

  4. By her Will, the deceased left the whole of her estate, after the payment of “all my just debts, funeral and testamentary expenses, including state and federal death duties, if any,” to Cheryl, Gary and Lisa in equal shares. In addition, by Clause 5 of the Will, Lisa was “permitted to reside in my home at Boatwright Avenue, Lugarno [to which I shall refer as “the Lugarno property”] for a period not exceeding twelve 12 months from the date of my death on condition that she shall be responsible for payment of Council Rates, Water Rates, Insurance Premiums for Building Insurance and payment of electricity and telephone charges relating to the property”.

  5. Despite the terms of the Will, and even though she is one of the executors to whom Probate was granted, Lisa (and Shaun) have, together, continued to live in the Lugarno property since the date of death of the deceased. Neither has paid any rent, or occupation fee, for her, and his, occupation of that property. (Therefore, Lisa has been in occupation for about 16 months longer than the deceased’s Will permitted.) There was evidence given by the Defendants that, as at 3 February 2017, the reasonable rental market rental for the Lugarno property was in the vicinity of $450 per week.

  6. There is a letter dated 29 March 2016, addressed to Lisa, presumably from the solicitors then acting for Cheryl and Gary, referring to the fact that her right to occupy the Lugarno property expired on 13 January 2016, and suggesting “that you obtain separate legal representation in this matter” and that “you obtain separate legal advice as soon as possible”.

  7. On the last day of the hearing, the parties provided me with signed Short Minutes of Order, in different terms, in each matter, that dealt with the manner in which the Lugarno property was to be sold. On 26 April 2017, the Court made orders and notations, in accordance with the agreement of the parties. It is unnecessary to repeat the orders and notations that were made and subsequently entered.

  8. Shaun was not mentioned in the deceased’s Will, other than indirectly (as a child of one of the deceased’s children). Shaun’s claim is for provision, out of the estate of the deceased, whilst Lisa’s claim is one for additional provision.

  9. In the Inventory of Property that was placed inside, and attached to, the Probate document, the deceased’s estate, at the date of death, was disclosed as having an estimated, or known, value of $954,421. The estate was said to consist of the Lugarno property ($950,000), cash in bank accounts ($4,421) and personal belongings, including jewellery (of no commercial value). (I have omitted, and shall continue to omit, a reference to cents. This will explain any apparent mathematical miscalculations.)

  10. At the hearing, the parties agreed that the current estimated value of the Lugarno property was $975,000. The cash has been spent in paying some of the debts funeral and testamentary expenses. It was also agreed that when the Lugarno property was sold, the estimated costs and expenses of sale would be about $25,000.

  11. In addition, there is a mortgage, registered on the title to the Lugarno property, securing a debt of about $80,000. There were also costs and expenses of obtaining Probate of about $5,000. Each of these amounts will need to be deducted from the net proceeds of sale.

  12. Without any deductions at all, for costs and disbursements of the proceedings, it follows that the value of the net distributable estate is estimated to be $865,000.

  13. But for the commencement of proceedings, on present estimates, each of Cheryl, Lisa, and Gary, would have expected to receive about $288,000.

  14. Usually, in calculating the value of the deceased's estate finally available for distribution, the costs of both proceedings should be considered with circumspection, since each plaintiff, if successful, normally would be entitled to an order that his, or her, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendants, as the persons representing the estate of the deceased, irrespective of the outcome of the proceedings, normally will be entitled to an order that their costs, calculated on the indemnity basis, should be paid out of the estate.

  15. As Basten JA put it in Chan v Chan [2016] NSWCA 222 at [54]:

“In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs.”

  1. However, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195; Harkness v Harkness (No 2) [2012] NSWSC 35.

  2. Shaun’s costs and disbursements, calculated on the ordinary basis, of the proceedings, were estimated to be $108,680, inclusive of GST, and on the basis of a three day hearing.

  3. Lisa’s costs and disbursements, calculated on the ordinary basis, of the proceedings, were estimated to be $90,750, inclusive of GST, and on the basis of a three day hearing.

  4. Cheryl’s and Gary’s costs and disbursements, calculated on the indemnity basis, of Shaun’s proceedings, were estimated to be $82,500, inclusive of GST, and on the basis of a three day hearing, whilst their costs and disbursements of Lisa’s proceedings were estimated to be $50,500, making a total of $133,000.

  5. The total of the estimated costs and disbursements ($332,430) is eye-watering. It need hardly be pointed out that the total amount of costs is wholly disproportionate to the value of the deceased’s estate. An object of resolving the issues between the parties, in such a way that the costs to the parties were proportionate to the importance and complexity of the subject-matter in dispute, seems to have been ignored.

  6. The Court informed the parties, during the hearing, that it should not be assumed that all of the estimated costs and disbursements would be deducted from the estate, even if both of Shaun and Lisa were successful.

  7. During submissions, counsel for Shaun informed the Court that Shaun’s costs would be capped at $66,420, whilst Lisa’s counsel informed the Court that Lisa’s costs would be capped at $60,000. Counsel for Cheryl and Gary did not give any indication that their costs would be capped at all.

  8. The parties seemed to accept, in the event that each of Shaun and Lisa is successful, that the Court should make an order that each receive a lump sum calculated as a percentage of the net distributable estate: T131.13 – T131.15. I have made that type of order in other cases: see, for example, Thompson v Sgro [2016] NSWSC 1869.

  9. In the circumstances, and in order to avoid further delay in the administration of the estate, I have considered whether any such order should be made upon the basis that each of the parties is to bear his, her, or their, own costs, respectively, of the proceedings.

  10. In this regard, on 20 April 2016, following the conclusion of the hearing, my Associate, at my request, sent an email to the legal representative of each of the parties in the following terms:

“At the hearing, the parties agreed that if an order were to be made in favour of one, or both, of the Plaintiffs, it should be for an amount that equates to a percentage of the amount in the estate available for distribution after necessary deductions.

Following the submissions, his Honour raised with counsel, the possibility that a family provision order could be made in respect of each Plaintiff, if he, or she, respectively, was successful in establishing an entitlement to such an order, upon the basis that he, or she, was to pay his, or her, own costs, respectively, of the proceedings, and that the Defendants were to pay their own costs of the proceedings out of the balance of the estate passing to them.

His Honour wishes to know whether any party opposes an order of that kind being made, in the event that a family provision order is to be made in favour one, or both, of the Plaintiffs.

If such orders were made, it would avoid any delay in the finalization of these proceedings (as there would be no need for a further costs argument) and in winding up the administration of the deceased’s estate.

If any party opposes such orders being made, it will be necessary to have a hearing to determine the issue of costs immediately following the delivery of his Honour’s reasons for judgment.

Please respond to his Honour’s request in writing by 4:00 p.m. on Wednesday 26 April 2017.”

  1. Counsel for Shaun responded:

“Costs orders may be affected by Offers of Compromise or Calderbank letters that have been served in the proceedings”.

  1. Lisa’s solicitors responded that she did not oppose an order to the effect that she pay her own costs of the proceedings from the additional provision, if any, that she received.

  2. Counsel for Cheryl and Gary responded:

“…the Defendants oppose an order that they pay their own costs or they pay their own costs out of the balance of the estate passing to them.”

  1. In the circumstances, I shall deliver these reasons and allow the parties an opportunity to serve evidence, if thought necessary, and make submissions on how the burden of costs should be borne. Once again, it should not be assumed that any further costs incurred in determining how costs should be borne, will be paid out of the deceased’s estate.

  2. The parties agreed that there are no other eligible persons, other than the parties in both proceedings within the meaning of that term in s 57(1) of the Act.

  3. Neither Cheryl, nor Gary, has made an application for an order under the Act. Each does raise her, and his, financial circumstances, respectively in the proceedings. 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. It follows that the interests of each of Cheryl or Gary, under the Will of the deceased, cannot be disregarded.

Evidence on extension of time - Lisa

  1. In her affidavit sworn 23 March 2017, Lisa states that she first spoke to a solicitor “on an informal basis” in June 2015. However, the solicitor asked her to attend her office for “formal legal advice”. Subsequently, the solicitor sought advice from a barrister in experienced family provision matters, “about making a claim to seek further provision”.

  2. On 8 July 2015, Lisa met with the solicitor and counsel. She wrote that she explained “my own circumstances and that of my family in some detail”.

  3. Lisa then stated:

“[The barrister] then said to me words to the effect:

“You are already sitting on 33%, in this case you can stay on as an executor and do your job. This is only about Shaun having a claim. It’s not you but it’s Shaun who has the claim.”

[The barrister] did not seek any further instructions as to whether I may wish to bring my own claim and did not mention anything about my own claim.”

  1. Lisa did not mention any written advice provided by the solicitor or by the barrister. Nor did she state, explicitly, that she had not been told that any proceedings needed to be commenced within 12 months of the date of death. Rather, on this topic, she asserted that she had not been informed that she did, or even might, have a claim. To the contrary, she stated that she was told that she did not have a claim.

  2. Lisa then stated:

“On or around 6 April 2016 I attended the offices of Hancock Alldis & Roskov to see James Roskov for advice about a letter I received from Macedone Legal, the solicitors instructed to act on behalf of the Estate of My Mother.

I attended several conferences to see James Roskov. At one particular conference I instructed James Roskov to attend the mediation concerning the matter of Shaun Anthony Hancock’s (Shaun) claim against My Mother’s estate.

On 7 June 2016 I attended the mediation with James Roskov and Mr Darien Nagle of Counsel on my behalf.

Following the mediation I became concerned about my position in the matter and I wanted further advice.

On the afternoon following the mediation James Roskov and Mr Nagle advised me that I should become a claimant.

I was surprised to receive this advice given the earlier advice I had received from [the barrister].

On 22 July 2016 A summons was filed on my behalf.”

  1. There is evidence that it was not until a letter dated 27 April 2016, addressed to Lisa’s solicitors, was sent, that the notice of claim was served upon her. Of course, that was 3 months outside the time prescribed by the Act for the commencement of the proceedings, and four months after Shaun’s proceedings were commenced.

  2. Lisa was not asked any questions in cross-examination about these matters.

  3. There is no reason for the Court to not believe her evidence about what she was told, or more importantly, what she was not told, about bringing her own claim for a family provision order.

Factors warranting the making of the application - Shaun

  1. Shaun submitted that the following factors warranted the making of the application:

  1. The nature of his relationship with the deceased was more akin to a surrogate son than a grandchild.

  2. He had lived with the deceased from 1982-1996 (about 14 years), in 1996 for a period, and then again, between 2001 and 2015; they had remained in close contact when they did not live together.

  3. He had been dependent upon the deceased since his birth. She had provided him with significant emotional support especially in light of his vulnerabilities.

  4. His significant mental disabilities, and his needs, were known to the deceased.

  5. He was an alternate, specifically identified, beneficiary named in the Will made by the deceased on 5 July 1996. In that Will, there was a specific legacy of $30,000 given to Lisa, but if she predeceased the deceased, it was to be for Shaun.

  1. Each of the matters asserted, are, as will be read, supported by the evidence in this case.

  2. Counsel for Cheryl and Gary submitted, in writing, that “[t]here is an issue that there are factors which warrant the making of his application”. In support of this submission, counsel wrote:

“13.   The deceased clearly decided she had provided Shaun with enough during her lifetime. On Australia Day 2014, she said to Cheryl:

“When I die, Lisa can have her third and they can learn to stand on their own two feet. I am sick of holding the party.”

14.   In all the circumstances, including the competing interests of the named beneficiaries, the 3 children of the deceased, there are insufficient factors warranting the making of his application and his Summons should be dismissed.”

  1. During submissions, however, counsel for the Defendants said “…Shaun could be regarded as someone who would, in different circumstances, namely a very large estate, be regarded as a natural object of some form of testamentary disposition in a large estate”: T166.31 – T166.33.

The Statutory Scheme

  1. There was really no issue about the legal principles that apply, but as there are different elements to be established by each of Shaun and Lisa to enable a family provision order to be made, it is necessary for me to repeat the principles in relation to those elements. (Although I have set out most of what I write hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is equally important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in the application.)

  2. Usually, in cases such as the present, the Court must determine (not necessarily in the order set out below), if necessary, whether:

  1. The Plaintiff (each of Shaun and Lisa) is an eligible person within the meaning of that term in s 57(1) of the Act;

  2. In the case of a Plaintiff (Shaun) who is an eligible person by reason only of paragraph (e) of the definition of "eligible person" in s 57, having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application: s 59(1)(b) of the Act;

  3. The time for the making of the Plaintiff's (Lisa’s) application should be extended: s 58(2) of the Act;

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

  1. These matters are not entirely distinct, but are related and overlap. For example, the strength of the substantive claim for provision is relevant to the exercise of discretion to make an order extending the time for the making of the application.

  2. I shall deal with each of these matters in turn.

Eligibility

  1. 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): s 59(1). It is only an “eligible person” who may apply to the Court for a family provision order.

  2. As stated, there is no dispute that each of Shaun, and Lisa, respectively, is an eligible person within the meaning of s 57(1)(e) and s 57(1)(c).

Factors warranting the making of the Application – Shaun

  1. Section 59(1)(b) of the Act requires, in the case of certain eligible persons, the Court to 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. However, the Act does not identify the factors that warrant the making of the application.

  2. 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 Dec'd (1987) 8 NSWLR 679 at 681 (approved in substance by the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241) that the factors are factors which, when added to facts which render the applicant an eligible person, give him, or her, the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased.

  3. Kirby P in Tsivinsky v Tsivinsky [1991] NSWCA 269 at 5, in dealing with the section of the former Act, which was in similar terms, said:

"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 paragraphs (c) and (d) in s 6(1) of the Act."

  1. In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard AJA and Fitzgerald AJA, 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.

  2. In Penfold v Perpetual Trustee [2002] NSWSC 648, Windeyer J did not follow Brown v Faggoter.

  3. Bryson AJ also commented in Porthouse v Bridge [2007] NSWSC 686 at [9]:

"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."

  1. In Diver v Neal [2009] NSWCA 54, Basten JA, with whom Allsop P and Ipp JA agreed, said of s 9(1) of the former Act, at [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."

  1. In Evans v Levy [2011] NSWCA 125, Young JA, with whom Campbell JA and Sackville AJA agreed, wrote, at [62] – [64]:

"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.

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.

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

  1. In Sassoon v Rose [2013] NSWCA 220 at [15], the Court of Appeal referred to the fact that the trial Judge (Macready AsJ) had:

"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."

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

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

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

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

  1. It can be seen that the trend of authorities does not favour the view suggested in Brown v Faggoter. With great respect, I also regard the views expressed in the authorities referred to by Windeyer J, Bryson AJ, Basten JA, Campbell JA, and Young JA, as correct, and propose, in the circumstances, to follow their decisions. I have done so in other cases: see, for example, Glynne v NSW Trustee and Guardian; Lindsay v NSW Trustee and Guardian [2011] NSWSC 535; Tramantana v Harborne; Clarke v Harborne; Midson v Harborne [2011] NSWSC 1129; Page v Page [2016] NSWSC 1218, and propose to do so in this case.

Extension of Time – Lisa

  1. Section 58(2) of the Act provides that an application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless, on sufficient cause being shown, the Court otherwise orders. If sufficient cause is shown, then the Court, having regard to all the circumstances of the case, may extend the time for making an application.

  2. In Moore v Randall [2012] NSWSC 184 at [39], White J (as his Honour then was) said that the expression “sufficient cause” means “sufficient explanation or sufficient justification or excuse for the application not having been made within the prescribed period.”

  3. In Verzar v Verzar [2014] NSWCA 45 at [24], in the Court of Appeal, Meagher JA wrote that “[t]he sufficient cause or reason to which s 58(2) is directed is that for allowing an application to be made out of time”.

  4. Clearly, permitting the Court to “otherwise order” was included in the Act to avoid the section becoming an instrument of injustice. Yet, “[t]he time constraint imposed by s 58(2) on the making of a family provision application is not a mere formality”: Verzar v Verzar [2012] NSWSC 1380 at [98].

  5. The equivalent section in similar UK legislation has been described as “a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules”: Re Salmon, Deceased [1981] Ch 167 at 175.

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

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

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

  1. In Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 at [84]-[90], I set out the applicable legal principles relating to an application to extend the time, as follows:

“The decision of the court to extend time is a discretionary decision. Other than “sufficient cause being shown”, there are no statutory criteria that must be taken into account. There are no rigid rules in regard to the exercise of the discretion.

The principles governing that exercise of discretion under the Act are clear. Apart from the reason(s) for the lateness of the claim, the factors to which the court must look, include whether beneficiaries under the Will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by either side; and, finally what is the strength of the claim made by the party seeking an extension of time: see, for example, John v John; John v John [2010] NSWSC 937 at [37]- [51] per Ward J; Campbell v Chabert-McKay [2010] NSWSC 859 at [45]- [47] per White J; Durham v Durham [2010] NSWSC 389 at [15] per Ball J; Taylor v Farrugia [2009] NSWSC 801 at [14] per Brereton J; Burton v Moss [2010] NSWSC 163 at [31] ff, per Macready As J, in which the relevant earlier cases are referred to.

The onus lies on the applicant to establish sufficient cause. It will be for the court to determine the strength of the applicant's claim.

The prejudice to which the section looks is any prejudice occasioned by the delay in lodging the claim rather than any disappointment that might occur consequent upon readjustment of the interests under the will in order to make provision for the applicant: Cetojevic v Cetojevic [2006] NSWSC 431; McCann v Ward & Anor [2010] VSC 452 at [11]. Where there has been a long period since the deceased died, the lapse of time, itself, might create prejudice in any fact-finding exercise: Vasconelos v Bonetig [2011] NSWSC 1029 at [21].

In De Winter v Johnstone (NSWCA, 23 August 1995, unreported), Sheller JA held that the concept of “unconscionable conduct” referred to above was “directed towards a deliberate holding off [in bringing proceedings] designed to lull the beneficiaries into a false sense of security”. Cole JA, whilst not expressing a concluded view, said that it must be doubted whether a change of mind (because of some change in the financial and material circumstances of the Plaintiff which has occurred after the expiry of the limitation period) constitutes unconscionable conduct.

As to the strength of the claim, in De Winter v Johnstone, Powell JA considered that as an application for extension of time was invariably dealt with at the time of the application for substantive relief, no extension of time ought to be granted unless it was established that the applicant seeking an extension of time would, in the event of the extension being granted, be entitled to an order for substantive relief. By contrast, Sheller JA considered that it was only necessary for the applicant to show that the application was not bound to fail.

Where the delay is not unduly long and the estate remains undistributed, ignorance during the period within which proceedings are to be commenced, of the right to claim, followed by a prompt application to extend the time once the right to claim becomes known, will usually be a sufficient explanation: Clark v Burns [2011] VSC 394 at [6].”

  1. To refuse to make an order extending the time for the making of an application that is devoid of merit, or otherwise cannot succeed, would not visit an injustice on the applicant. As Keane JA wrote in Hills v Chalk [2008] QCA 159; [2009] 1 Qd R 409 at [31]:

“The appellants’ submission was that the probability that an application for provision out of the estate will ultimately succeed is a necessary, though not sufficient, condition of the grant of an extension of time. There is support for that view. In Re Terlier, deceased, Townley J said: ‘If it is improbable that the substantive application will succeed it seems idle to grant the extension.’ This statement was approved by Lush J in Re Walker, Deceased where his Honour went on to add that the improbability of success ‘may stem either from the condition of the estate ... or from the facts relevant to the [claimant's] claim, or from both ....’.”

Also see, Andre v Perpetual Trustees WA Ltd (as Executor of the Will of Barbara Helen Owen Stewart) [2009] WASCA 14 at [42].

  1. Meagher JA noted in Verzar v Verzar [2014] at [33]-[35]:

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

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

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

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

  2. As I wrote in Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748 at [117]:

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

Submissions on extension of time

  1. Counsel for Cheryl and Gary submitted that Lisa “was aware of all the relevant circumstances, and as an executor, her son's claim for provision. She has provided no adequate reason for the delay. Her claim seems to have been brought as a defensive action, to support Shaun's claim.”

  2. The factual basis for that submission was not identified, although counsel for Lisa, during submissions, did say “It was, in part, a defensive claim”: T172.48, although earlier he had submitted that “there should be more for Lisa”: T13.14 – T13. 23 and that she sought an order that would provide her with 60 per cent of the deceased’s estate: T13.50 – T14.1; T14.28. (It may be that it was submitted on the basis that the submission that she should receive greater provision was “taking into account that no provision is made for Shaun”: T14.12 – T14.13, although on the second day of the hearing, that submission changed: T48.40 – T48.50.

  3. Lisa, however, during cross-examination, had stated “I really strongly believe I deserved more”: T113.16 – T113.19.)

  4. There was no evidence of any prejudice suffered by Cheryl and Gary if the time for making Lisa’s claim was extended until the date of the filing of the Summons by her. At the time, Shaun’s proceedings remained on foot and had not been heard. It was not suggested that Cheryl and Gary had been unable to settle that claim because Lisa’s claim would still need to be determined.

  5. The deceased’s estate had not been distributed, but, in part, this is because Lisa and Shaun remained in occupation of the Lugarno property. I do not give this circumstance much weight on the topic.

  6. Nor was it submitted that there had been any unconscionable conduct by Lisa. Indeed, it was accepted that there had been no unconscionable conduct by her: T187.38 – T187.41.

Whether either applicant has been left with inadequate provision for his, and her, proper maintenance, education and advancement in life respectively

  1. 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”.

  2. The parties were largely agreed as to the principles to be applied on this topic so it is not necessary to re-state them in detail. I have dealt with them in many cases, one of which is Hinderry v Hinderry [2016] NSWSC 780.

  3. Whether the disposition of the deceased’s estate was not such as to make adequate provision for the proper maintenance, education or advancement in life of the Plaintiff 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: Hunter v Hunter (1987) 8 NSWLR 573 at 575.

  4. Although the existence, or absence, of “needs” which the applicant cannot meet from her, or his, 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 her or his proper maintenance, education and advancement in life: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 227.

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

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

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

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

  1. As Callinan and Heydon JJ emphasised in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [122], the question of the adequacy of the provision made by the deceased “is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably”. The inquiry is not confined only to the material circumstances of the applicant. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined.

  2. If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made.

  3. The questions posed arise 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 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.

  4. Section 60 of the Act provides:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  1. It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [37], as “a multifactorial list”, and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as “a valuable prompt” to which the Court may have regard, together with “any other matter the court considers relevant”, for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order.

  2. 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.

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

  4. A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).

  5. Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on “the discretionary question”, namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at time of the deceased’s death, or subsequently.

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

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

  2. the amount and nature of the provision, and

  3. the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and

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

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

  2. Unless the Court orders otherwise, any family provision order under the Act takes effect as if it were a codicil to the will (s 72(1) of the Act).

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

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

  5. There are some other general principles that should be identified for the benefit of the parties, although I have repeated them in many cases.

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

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

  1. Excluding costs, the gross value of the estate at the date of hearing was estimated to be $865,000. Using that as a guide, and remembering that the parties requested the Court to determine the matters upon the basis of a lump sum that equates to a percentage, I am of the view that Shaun should receive an amount that equates to 7 per cent of the net proceeds of sale. On present estimates, that equates to about $60,000. This amount would enable him to pay for any educational course that he wishes to undertake, buy a sleep apnoea machine, as well as providing a fund for exigencies of life. He needs such a fund bearing in mind his current circumstances.

  2. In coming to this provision, I have borne in mind the significant provision made for Shaun during the deceased’s lifetime and the fact that he has remained living in the Lugarno property since her death.

  3. Next, there was a significant issue about how the burden of the provision made for Shaun should be borne. The Court is required, by s 65(1)(c) of the Act to specify the manner in which the provision is to be provided and the part, or parts, of the estate out of which it is to be provided.

  4. I am satisfied that the provision for Shaun should be made from the net proceeds of sale of the Lugarno property and that the burden of the provision should be borne out of the share of the net proceeds passing to Cheryl and Gary. The financial and material circumstances of each are in the case of Cheryl, much better, and in the case of Gary, better, than those of Lisa.

  5. There was a suggestion that counsel for the Defendants “did not wish to differentiate” between them: T67.09 – T67.26. However, as the case proceeded to hearing, the Court must determine the issue.

  6. Cheryl should bear an amount from her share of the estate that equates to 4.5 per cent (on present estimates $38,925) and Gary should bear an amount from his share of the estate that equates to 2.5 per cent (on present estimates $21,625) making the total of 7 per cent to which Shaun will be entitled.

  7. I do not think that Lisa should bear any of the burden of the provision for Shaun.

  8. The net proceeds of sale of the Lugarno property should be determined by deducting from the gross proceeds of sale, after adjustments for water rates and council rates, the debt secured by the mortgage registered on the title to the Lugarno property, the costs and expenses of obtaining Probate of about $5,000, the costs and expenses of sale of the Lugarno property, and, if so ordered, any costs of the proceedings.

  9. Regrettably, I am unable to deal with the issue of Shaun’s costs. If the parties are unable to agree, I shall list the matter for further evidence upon which the parties intend to rely, and for any argument, at an appropriate time after these reasons are delivered. Having said that, the parties should endeavour to reach agreement and avoid any further costs being incurred.

Lisa’s Proceedings

  1. As stated, is no dispute that Lisa is an eligible person within the meaning of that term in s 57(1)(c) of the Act.

  2. I shall turn next to the question which is whether, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the Will of the deceased. (I am following this course because if I conclude that adequate and proper provision has been made for her, then there is no need to determine the extension of time issue.)

  3. Counsel for the Plaintiff’s written submissions did not descend into what provision ought to be provided. His submissions concluded:

“The Plaintiff has been unable to work for any length of time or undergo training for work or education leading to a qualification due to her carer’s responsibilities. She has no other means of supporting herself and her son apart from the Centrelink benefit.

It is submitted that the Plaintiff discharges the first requirement under s 59(1) (c) of the Succession Act 2006 and asks that the Court determine what order for provision should be made for her.”

  1. I am not satisfied that Lisa should receive a lump sum that would enable her to purchase alternative accommodation when the Lugarno property is sold. Leaving aside any issue of “need” for such accommodation, to make such additional provision would, in my view, be more than adequate and proper provision in all the circumstances of this case, bearing in mind the size of the estate and the competing financial needs of each of Cheryl and Gary.

  2. In any event, Lisa is likely to live with Shaun, as his carer, in the accommodation provided to him by Housing NSW. It is unlikely that she will require her own accommodation, and even if she did, the estate is simply not large enough to enable such provision to be made for her when one considers all of the other circumstances, including the competing claimants on the bounty of the deceased. In any event, the capital sum to which she is entitled under the Will would provide enough to enable her to rent accommodation.

  3. In circumstances where I have determined that Shaun should receive provision out of the deceased’s estate, and where I have determined that the burden of that provision should be borne, in unequal shares, by only Cheryl and Gary, the share of one third of the deceased’s estate for Lisa will remain untouched (subject to an order for costs). Using the calculations mentioned previously, and ignoring costs, the result will mean that Lisa will be entitled to about $288,000.

  4. A consideration of the deceased’s Will would not suggest inadequate provision was made for Lisa. The deceased divided her estate equally between her only three children. Furthermore, with the exception of a fund required to enable her to purchase accommodation, and bearing in mind that Shaun will have available a capital fund, and, therefore, the need to financially assist him (even assuming that there were to be such a need) will be lessened, her “needs” are modest.

  5. In coming to this conclusion, I have borne in mind the significant provision made for Lisa during the deceased’s lifetime and her continued occupation of the Lugarno property since the death of the deceased.

  6. Consistent with prevailing community standards, having considered, amongst other things, Lisa’s financial and material resources, her, albeit limited, earning capacity, her close relationship with the deceased, taken with the fact that each of Cheryl and Gary has asserted a competing financial claim upon the bounty of the deceased, I am not satisfied, for the purposes of s 59(1)(c) of the Act, that at the time when I am considering the application, adequate provision for the proper maintenance or advancement in life of Lisa has not been made by the Will of the deceased. In the circumstances, her Summons must be dismissed.

  7. It is, therefore, unnecessary to determine whether the time for the making of her application should be extended as there would be no utility in doing so.

  8. I should mention however, that had it been necessary to determine whether time should be extended, I would have concluded that it ought to be. It appears that Lisa was not given the prescribed form of notice until late April 2016; she did explain the reason for not commencing proceedings within time, namely that the advice she received did not appear to have considered, independently of Shaun, her right, as an eligible person, to bring a claim, or whether, by bringing a claim, she would, thereby, be able to preserve her share of the estate from bearing the burden of the provision, if any, made for Shaun.

  9. It seems to me, despite the way in which her case was presented at trial, a significant issue in the proceedings related to whether Lisa should bear any part of the provision to be made for Shaun. As I understood the position advanced by Cheryl and Gary, they maintained the position that she should bear part of the burden made for him. If that understanding is correct, it is most regrettable, that they did not consider the costs that would be incurred in adopting that approach, or if they did, by ignoring that consideration.

  10. Finally, I should note, since it was referred to more than once, that Shaun and Lisa, together, would be likely to pool their resources, which means that they will receive about 40 per cent of the net distributable estate. In total, without any deduction for costs, this amounts to about $348,800. Cheryl will receive about 28.8 per cent, or $249,400, whilst Gary will receive 30.8 per cent (or $266,800.

  11. In the circumstances, and subject to the parties raising any matters about the form of the orders, the orders which may be made are:

Shaun’s Proceedings

  1. Orders that the two proceedings be heard consecutively, with the evidence in one being evidence in the other.

  2. Orders pursuant to UCPR rule 7.8 that Cheryl Christine Parker and Gary Neville Hancock be appointed as representatives of the deceased’s estate for the purpose of the proceedings and to conduct the proceedings on behalf of the estate.

  3. Orders, having found that the Plaintiff is an eligible person; that there are factors warranting the making of his application; that the proceedings were commenced within time; and that the provision made for him in the Will of the deceased is inadequate for his proper maintenance or advancement in life, that he receive a lump sum that equates to 7 per cent of the net proceeds of sale of the Lugarno property.

  4. Orders that the burden of the provision made for Shaun should be borne as follows: Cheryl should bear an amount from her share of the estate that equates to 4.5 per cent ($38,925) and Gary should bear an amount from his share of the estate that equates to 2.5 per cent ($21,625) making the total of 7 per cent to which Shaun will be entitled.

  5. Orders that no part of the provision made for Shaun should be borne from Lisa’s share of the estate.

  6. The net proceeds of sale of the Lugarno property should be determined by deducting from the gross proceeds of sale, after adjustments for water rates and council rates, the debt secured by the mortgage, registered on the title to the Lugarno property, the costs and expenses of obtaining Probate of about $5,000, the costs and expenses of sale of the Lugarno property, and, if so ordered, any costs of the proceedings.

  7. Orders that the lump sum be paid within 7 days of completion of the sale of the Lugarno property.

  8. Orders that provided the lump sum is paid within 7 days of completion of the sale of the Lugarno property, no interest is payable; otherwise, interest at the rate prescribed under s 84A(3) of the Probate and Administration Act 1898 (NSW) is payable from that date until the date of payment.

Lisa’s Proceedings

  1. Orders that the two proceedings be heard consecutively, with the evidence in one being evidence in the other.

  2. Orders pursuant to UCPR rule 7.8 that Cheryl Christine Parker and Gary Neville Hancock be appointed as representatives of the deceased’s estate for the purpose of the proceedings and to conduct the proceedings on behalf of the estate.

  3. Orders that the burden of the provision made for Shaun should not be borne, as to any part, by Lisa.

  4. Orders that, otherwise, these proceedings be dismissed.

  1. I have not dealt, separately, with the occupation of Shaun and Lisa, remaining in occupation of the Lugarno property after the 12 month period allowed for by the deceased’s Will. However, I have taken it into account in determining the provision, if any, that should be made for each. It is thus, unnecessary, in my view, to make any specific order, by way of additional provision, permitting each to have remained in occupation after the 12 month period. In addition, it is noted that each, in the other orders made, has agreed to vacate possession of the Lugarno property, to enable its sale.

  2. In relation to costs, I shall allow the parties to consider the form of orders and have discussions regarding how the costs of the proceedings should be met. If agreement cannot be reached regarding costs, I shall hear the costs argument, including whether costs of any or all parties should be capped, and if so, at what amount.

  3. The parties, in each matter, within 14 days, are to consider whether any amendments to the proposed orders are required. The matter is stood over to a convenient date for any argument as to the nature and form of the orders proposed and in relation to costs. Otherwise, any agreed amendments to the proposed orders may be forwarded to the Court, for consideration, in Chambers, or if no amendments are sought, the Court is to be informed and the orders proposed will be entered and the adjourned date vacated. The matter will be adjourned to a mutually convenient date thereafter to determine whether a costs hearing is required.

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Decision last updated: 20 June 2017

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Oates v Oates [2025] NSWSC 548
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Oates v Oates [2025] NSWSC 548
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72

Statutory Material Cited

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Chan v Chan [2016] NSWCA 222
Carey v Robson (No 2) [2009] NSWSC 1199
Forsyth v Sinclair (No 2) [2010] VSCA 195