Harkness v Harkness - [2011] NSWSC 1421

Supreme Court

New South Wales

Medium Neutral Citation: Harkness v Harkness [2011] NSWSC 1421
Hearing dates: 22 November 2011; 16 December 2011 (Plaintiff's application for leave to re-open)
Decision date: 19 December 2011
Jurisdiction: Equity Division
Before: Hallen AsJ
Decision:
(a) Order that the Plaintiff's Summons be dismissed.
(b) In the event that the parties are unable to agree on costs, adjourn the matter for further submissions to a date suitable to the parties and the Court.

Catchwords: Proceedings commenced by the sister of the deceased for a family provision order - Defendant is the brother of the deceased and the executor named in the deceased's Will - Question whether the Plaintiff was a person with whom the deceased was living in a close personal relationship at the time of the deceased's death
Legislation Cited: Family Provision Act 1982
Property (Relationships) Act 1984
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Cases Cited: Allardice, In re, Allardice v Allardice (1909) 29 NZLR 959
Barlevy v Nadolski [2011] NSWSC 129
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Brown v Faggoter [1998] NSWCA 44
Chao v Chao (No 2) [2008] NSWSC 612
Churton v Christian (1988) 13 NSWLR 241
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Dridi v Fillmore [2001] NSWSC 319
Evans v Levy [2011] NSWCA 125
Foley v Ellis [2008] NSWCA 288
Fulop Deceased, Re (1987) 8 NSWLR 679
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Hayes v Marquis [2008] NSWCA 10
Hughes v Charlton [2008] NSWSC 467
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
McCosker v McCosker (1957) 97 CLR 566
Marsh-Johnson v Hillcoat [2008] NSWSC 1337
Mayfield v Lloyd-Williams [2004] NSWSC 419
Palaganio v Mankarios [2011] NSWSC 61
Penfold v Perpetual Trustee [2002] NSWSC 648
Permanent Trustee Company v Fraser (1995) 36 NSWLR 24
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9
Popescu v Borun [2011] NSWSC 1532
Porthouse v Bridge [2007] NSWSC 686
Przewoznik v Scott [2005] NSWSC 74
Puckridge, Deceased, In the Estate of (1978) 20 SASR 72
Richardson v Kidd [2002] NSWSC 306
Rojo Building Pty Ltd v Jillcris Pty Ltd [2006] NSWSC 309
Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100
Sharpless v Mckibbin [2007] NSWSC 1498
Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201
Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132
Thompson v The Public Trustee of New South Wales [2010] NSWSC 1137
Tsivinsky v Tsivinsky [1991] NSWCA 269
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (NSWSC, 17 May 1996, unreported)
Ye v Fung [2006] NSWSC 243
Texts Cited:
Macquarie Dictionary
The Second Reading Speech (Legislative Assembly, (Hansard) 26 May 1999, p 535)
Category: Principal judgment
Parties: Janine Margaret Harkness (Plaintiff)
Peter Geoffrey Harkness (as executor of the Estate of the Late Coraline June Harkness) (Defendant)
Representation: Counsel:
Mr M Lawson (Plaintiff)
Ms J Healey (Defendant)
Solicitors:
Campbell Paton & Taylor (Plaintiff)
Rossi Simicic Lawyers (Defendant)

File Number(s): 2011/85506

Judgment

The Applications

HIS HONOUR: These reasons relate to proceedings commenced by Janine Margaret Harkness, the sister of Coralie June Harkness ("the deceased"), in which a claim for a family provision order, under Chapter 3 of the Succession Act 2006 ("the Act"), is made.

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, effective from 1 March 2009. A family provision order is an order made by the court, under Chapter 3, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person.

The Summons was filed on 16 March 2011, within the time prescribed by the Act (within 12 months of the deceased's death). An amended Summons was filed, without objection, on 21 March 2011.

The Defendant named in the proceedings is Peter Geoffrey Harkness, the brother of the deceased and the Plaintiff and the executor named in the deceased's Will to whom Probate in common form was granted.

There is no question, in the present case, of any provision being sought by the Plaintiff out of notional estate of the deceased.

Further Application

The matter having been completed on 22 November 2011, I reserved judgment. On 14 December 2011, my Associate informed the parties that judgement would be delivered on 16 December 2011.

On 15 December 2011, the Plaintiff forwarded a notice of motion and two affidavits in support, by which she made an application to re-open her case in order to adduce the evidence referred to in her affidavit sworn on 15 December 2011.

The application was said by the Plaintiff to be based upon further instructions, given at the conclusion of the case, to her solicitor and barrister. She stated that, because of certain discussions during submissions between counsel and the Bench, she thought that her evidence had been misunderstood, and that there was further evidence that she wished to adduce on the topic of the times and days when she "had stayed at [the deceased's] home".

The Defendant, by Mr Smith of counsel, who did not appear at the hearing, opposed the Plaintiff's application upon the basis that it should have been made earlier than it was; that the matters raised were not fresh evidence, but evidence that the Plaintiff could have given at the hearing; and that the Defendant was prejudiced by the late reliance upon the evidence sought to be adduced. He did not specifically identify the prejudice other than "it may delay the reasons for judgment being delivered".

Having read the affidavits in support of the application, and heard the submissions of both counsel, I considered that I should allow the Plaintiff to rely upon the additional evidence and indicated I would take it into account the evidence that she adduced in this affidavit. I also indicated I would provide reasons in the reasons for judgment.

Background Facts

The following facts are uncontroversial.

The deceased died on 6 July 2010. She was then aged 51 years, having been born in June 1959. In 2006, she had been diagnosed with primary breast cancer. The cancer metastasised and she developed secondary carcinomas in about October 2009. In December 2009, she stopped chemotherapy.

The deceased was not married, nor living in a de facto relationship, at the date of her death. She had no children.

The deceased left a Will that she made on 13 January 2010, Probate in common form, of which was granted by the Supreme Court of New South Wales on 15 December 2010.

After making a gift of identified chattels to a friend, the deceased left the whole of the residue of her estate, after payment of debts, legacies, funeral and testamentary expenses and death, estate or succession duties, to be divided between the Plaintiff, the Defendant, Stephen Harkness, Matthew Harkness, Kathleen Guerin, Randa Magdi, and Patricia Baker.

In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased's estate, at the date of death, was disclosed as having an estimated, or known, gross value of $403,503. No liabilities were disclosed. The estate was said to consist of real property at Millthorpe, New South Wales ($320,000), money held on deposit in bank accounts ($75,503), and personal and household effects ($8,000). (I have omitted a reference to the cents and shall continue to do so.)

In his affidavit sworn on 22 November 2011, the Defendant states that the net distributable estate available consists of cash held by his solicitors ($210,417) and moneys held in two bank accounts ($63,434 and $275). The total gross distributable estate was estimated to be $274,126.

A reason why the value of the estate decreased between the date of death and the date of hearing was that there was a mortgage debt ($88,809), a credit card debt ($457) and other debts that arose after the deceased's death ($4,832) that were paid. In addition, part of the Defendant's costs ($24,818) has been paid out of the estate. Presumably, funeral expenses have been paid also.

In calculating the value of the estate, finally available for distribution, the costs of the present proceedings should also be considered, since the Plaintiff, if successful, normally, will be entitled to an order that her costs be paid out of the estate of the deceased, whilst the Defendant, irrespective of the outcome of the proceedings, normally, will be entitled to an order that his costs be paid out of the estate.

The Plaintiff's costs and disbursements of the proceedings, including counsel's fees, calculated on the ordinary basis, have been estimated to be $52,360 (inclusive of GST and upon the basis of a two day hearing).

The Defendant's costs and disbursements of the present proceedings, including counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a two day hearing), are estimated to be $54,535. As some of these costs and disbursements have already been paid, the estimated balance left to be paid is $29,717.

The parties agreed that, for the purposes of the hearing, and assuming the estimates of costs prove accurate, and the usual order for costs is made, the estimated net distributable value of the estate will be in the order of $192,049. Accordingly, each of the beneficiaries, including the Plaintiff, could expect to receive a lump sum of about $27,435 out of the deceased's estate.

(The Defendant has reserved his position on whether he will claim commission. If he seeks, and is allowed, commission, this will reduce each residuary beneficiary's entitlement by one-seventh of the amount allowed.)

The only persons described by the Defendant as persons who are, or who may be, eligible persons, within the meaning of the Act, are Ms Magdi and Ms Baker. There is a dispute as to the eligibility of the Plaintiff (to which I shall return).

The prescribed notice advising of the Plaintiff's claim under the Act, has been served upon all of the beneficiaries, other than the Plaintiff and the Defendant. Only the Plaintiff has commenced proceedings under the Act.

Leave to Re-open

It is unnecessary to burden these reasons with the principles that are applicable in determining whether leave to re-open should be granted.

The guiding principle for a court in determining whether to grant an application for leave to re-open is clearly whether the interests of justice are better served by allowing, or by rejecting, the application: Chao v Chao (No 2) [2008] NSWSC 612; The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132 at [4]. In determining the answer to this question, since the application was made before judgment, the primary consideration should be that of embarrassment, or prejudice, to the defendant: Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256, at 267.

(The Plaintiff referred to Rojo Building Pty Ltd v Jillcris Pty Ltd [2006] NSWSC 309. That was a case involving summary judgment and in which the application for leave to re-open occurred after the delivery of judgment, albeit on the same day that judgment was delivered. I do not think that what is said in that case assists in the determination of the Plaintiff's application in this case.)

In this case, it was submitted that there may have been a misapprehension of the facts as a result of some of the evidence that the Plaintiff gave following a request by me to consider the contents of the calendar kept by the deceased, a copy of which was tendered.

In those circumstances, and whilst there is merit in the Defendant's submission that the application should have been made earlier than it was, and, perhaps, that the Plaintiff's evidence on the topic could have been more carefully considered (both before and after my request for her to consider the contents of the calendar), I am satisfied that no prejudice could be suffered by the Defendant in allowing the evidence to be read, even at this stage of the proceedings. As in Chao v Chao (No 2) , the Plaintiff's application was made when the status of the case was that the judgment stood reserved, but had not been given.

It was only necessary to delay the delivery of judgment by the weekend, so no prejudice has been suffered, other than the costs of appearing on 16 December 2011. The application took about 15 minutes.

Since I have acceded to the Plaintiff's application, I shall refer to the additional evidence later in these reasons.

The Statutory Scheme - The Act

Introduction

I shall discuss the statutory scheme that is relevant to the facts of the present case. 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 be able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions.

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 as 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.

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 person's power of disposition by his, or her, will. It is only if the statutory conditions are satisfied, that the court is empowered, under the Act, to alter a deceased person's disposition to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary.

The Substantive Provisions of the Act

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). There are six categories of persons by, or on whose behalf, an application may be made. One category is "a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death" (s 57(1)(f)). That is the only category of eligibility on which the Plaintiff relies in the present case.

"Close personal relationship" is defined in s 3(3) of the Act to mean "a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care". This definition calls for two different links, the first being that the adult persons are "living together" and the second being that "one, or each, of whom provides the other with domestic support and personal care". The definition is not prescriptive as to the gender of the adult persons, so it applies, equally, to those who are of the same gender.

Importantly, also, the close personal relationship must exist "at the time of the deceased person's death".

Section 3(4) of the Act provides that for the purposes of subsection 3(3), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care (a) for fee and reward, or (b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation). (It is not suggested that either exception applies in the present case.)

An "adult person" is a person of, or above, the age of 18 years: s 3(1) of the Property (Relationships) Act 1984. Persons are related by family if, for example, they have a parent in common: s 5A of the Property (Relationships) Act . A reference to those definitions are apt in cases under the Act.

Relevant authorities that have discussed "close personal relationship" include Dridi v Fillmore [2001] NSWSC 319; Richardson v Kidd [2002] NSWSC 306; Przewoznik v Scott [2005] NSWSC 74; Ye v Fung [2006] NSWSC 243; Sharpless v Mckibbin [2007] NSWSC 1498 ; Hayes v Marquis [2008] NSWCA 10; Hughes v Charlton [2008] NSWSC 467; Marsh-Johnson v Hillcoat [2008] NSWSC 1337; Thompson v The Public Trustee of New South Wales [2010] NSWSC 1137; Barlevy v Nadolski [2011] NSWSC 129; Popescu v Borun [2011] NSWSC 1532.

The phrase, "living together" is not defined by the Act. Given that the two adults may be members of the same family, concepts relating to "a couple" are not relevant. Thus, the existence of a romantic, or sexual, relationship, a practical union of lives and property, and the public aspects are not necessary criteria.

Without attempting to define the term more precisely than the legislature has done; remembering that it is necessary to consider the evidence as a whole, not under isolated headings; that the question must be decided on an individual case basis, without circumscribing any particular factor; that the circumstances of human affairs are varied; and bearing in mind the authorities referred to, it seems to me that the notion or concept of "living together", has the following elements that require evaluation:

(a) Co-habitation, although not necessarily fulltime; however, there must be sufficient shared residence, which invites a consideration of such factors as whether the persons said to be living together had a common residential address; where they usually slept at night (for example, when not absent temporarily for holidays, employment or for other reasons); and where they usually kept their clothing, domestic and personal effects; regardless of the number of days or nights spent, perhaps, at another place;

(b) Physical proximity in the same residence, in the sense of simultaneous physical presence;

(c) Some personal association with each other;

(d) The sharing of facilities of day-to-day living on a regular and recurrent basis, often described as sharing a household, including but not limited to, the performance of domestic tasks;

(e) Deciding household questions together and, whilst a social and economic partnership of the parties is not required, there should be a sharing of the burden of maintaining a household;

(f) Regarding the place, or places, in which the two adults live as "their home";

(g) There being no present intention of definite or early removal; a continuity of association with the place; remaining for an undetermined period, not infrequently, but not necessarily combined with design to stay permanently.

Whilst each element suggested does not import any concept of proportion of time, each should exist over a long enough period, to amount to "living together".

The test whether the notion or concept of living together is satisfied is an objective one. It involves assessing the nature and extent of the claimed common residence as well as other aspects of the relationship.

It can be seen from the definition of "close personal relationship" in the Act, that the requirements that the persons live together, and that one, or each, provides the other with domestic support and personal care, are not themselves definitions, but qualifying conditions that must be satisfied before the relationship will fall within the definition in the Act.

The second requirement is itself cumulative. The expressions, also, are not defined. However, the adult persons must be living together at the same time as one, or each, provides to, and/or receives, domestic support and personal care from, the other. (It is clear that the indicia of domestic care and personal support need only be given by one of the adult persons to the other.)

However, neither domestic support nor personal care, provided alone, suffices. Both must be provided.

The word "domestic" carries connotations of matters relating to a household. The Macquarie Dictionary definition includes "having to do with the home, the household, or household affairs".

Some of the primary meanings of "personal" include "of, or pertaining to, concerning or affecting the individual person or self; one's own; of or pertaining to one's person or body or figure; bodily". In broad terms it requires one person caring, in a personal way, for the needs of another such as assistance with mobility, personal hygiene, physical comfort and emotional support: Hayes v Marquis at [168]. However, the notion of "personal care" should not be confined to matters relating to physicality: Hayes v Marquis at [87]. The Second Reading Speech (Legislative Assembly, (Hansard) 26 May 1999, p 535) contemplated that personal care services may encompass ensuring the physical and emotional comfort of one or both parties for the other.

In the case of an applicant who falls within s 57(1)(d), (e) or (f), 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)). This is relevant in the present case.

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

Kirby P in Tsivinsky v Tsivinsky [1991] NSWCA 269, in dealing with section 9(1) of the former Act, which was in similar terms to s 59(1)(b) of the Act, 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 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 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 .

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:

"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 (also (2009) 2ASTLR 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."

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, and Young JA as correct and propose, in the circumstances, to follow their decisions.

Then, if those considerations are satisfied, 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 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)). It may take into consideration, then, the matters referred to in s 60(2) of the Act. In this way, the court carries out a two-stage process.

Other than by reference to the provision made in 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) leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for the applicant's proper maintenance, education or 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 or advancement in life of the applicant on the other.

It was said in the court of Appeal (per Basten JA) in Foley v Ellis [2008] NSWCA 288 at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment".

Importantly, there no longer appears to be any sanction to consider, in s 59(1)(c) of the Act, the provision made by the deceased during his, or her, lifetime for the applicant (see, s 9(2) of the former Act).

Under both s 59(1)(c) and s 59(2) of the Act, the time at which the court gives its consideration to the question is the time when the court is considering the application and the order is made.

"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 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 are the words 'maintenance' and 'advancement in life' defined in the Act. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at [115], 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 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."

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

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 or advancement in life: Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 at [72] and at [77] per Buss JA.

Each of the 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) 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) 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 [114], 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."

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 and 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.

The first stage of the process provided for by s 59(1)(c) has been described as "the jurisdictional question": Singer v Berghouse (No 2) [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.

Whether the applicant has a 'need' is a relevant factor at the first stage of the enquiry. It is an element in determining whether 'adequate' provision has been made for the 'proper' maintenance, education or advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 at [42] (Tobias JA, with whom Beazley and Hodgson JJA agreed).

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 focused. 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 the cause of that context that, in the present case, the "proper maintenance etc" of the appellant required consideration 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]."

In the event that the court is satisfied that the power to make an order is enlivened (i.e. it is satisfied that the applicant is an eligible person, and, where necessary, that factors warranting have been satisfied, 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) (No 2) and s 60(1)(b). 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.

The discretion should be exercised carefully and conservatively according to community perceptions of the provision that would be made by a wise and just testatrix: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 146. The standards of the wise and just testator of today, not of an era ago, are pertinent to that assessment: Permanent Trustee Company v Fraser (1995) 36 NSWLR 24 at [30].

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 which the court may take into account, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order, and, if so, the nature of any such order. There is no hierarchy as between the various factors. The weight to be attached to each of them is likely to differ depending upon the individual circumstances of the particular case. Nor is there a mandatory command to take into account any of the matters enumerated. None of the matters differentiate in their application between classes of eligible person or types of relationship. Similarly, there is no distinction based on gender.

Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. For example, when considering eligibility under sub-s (1)(a), many of the matters in sub-s (2) will be largely, if not wholly, irrelevant.

Furthermore, consideration of 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 of other eligible persons, as well as of the beneficiaries, whilst others do not. Importantly, also, many of the matters in sub-s (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).

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

This does not mean, however, that some of the matters referred to in s 60(2) will be irrelevant to the jurisdictional question to be determined at the first stage. I am comforted in reaching this conclusion by the following comments made in Singer v Berghouse (No 2) (at 209-210):

"... The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant."

And by the comments of Callinan and Heydon JJ in Vigolo v Bostin , who wrote (at [122]):

"We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made 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. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all the potential beneficiaries must be taken into account and weighed with all of the other relevant factors."

Section 61 of the Act permits the court to 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. However, the court may disregard any such interests 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.

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

(a) the person or persons for whom provision is to be made;

(b) the amount and nature of the provision; and

(c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided; and

(d) any conditions, restrictions or limitations imposed by the court.

The order may be made, relevantly, in this case, in relation to the estate of the deceased.

The order for provision out of the estate of a deceased person may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner which 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).

Any family provision order under the Act will take effect, unless the court otherwise orders, as if the provision was made in a codicil to the will of the deceased, or in the case of intestacy, as in a will of the deceased (s 72(1) of the Act).

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

The Court, also, may, at the time of distribution of an estate that is insufficient to give effect to a family provision order, make such orders concerning the abatement, or adjustment, of distributions from the estate, as between the person in whose favour the family provision order is made and the other beneficiaries of the estate as it considers to be just and equitable among the persons affected (s 72(2) of the Act).

Section 99 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 or notional estate, or both, in such manner as the Court thinks fit.

Applicable Legal Principles

In addition to the above matters, there are some general principles that are relevant to the facts of this case. Whilst most of these were given in the context of the previous legislation, they are equally apt in a claim such as this one.

Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, in relation to the former Act, that it is not appropriate, to endeavour to achieve a 'fair' disposition of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants. The Court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Rather, the Court's role is of a specific type and goes no further than the making of 'adequate' provision in all the circumstances for the 'proper' maintenance, education or advancement in life of an applicant.

In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the Court to be vigilant in guarding "against a natural tendency to reform the deceased's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant".

The Court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair.

Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education or advancement in life of the applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: The Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9 at 19; Walker v Walker ( NSWSC, 17 May 1996, unreported); Vigolo v Bostin at [11]; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.

The Act is not a "destitute persons Act", and it is not necessary, therefore, that an applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1909) 29 NZLR 959 at 966.

I make it clear that I do not intend what I have described as "applicable legal principles" to be elevated into rules of law. Nor do I wish to suggest that the jurisdiction should be unduly confined. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind.

Credibility of the Witnesses

I am satisfied that many of the basic facts were not, ultimately, in dispute between the parties. This is not a case that really turned upon the impression of witnesses or relevant determinations of their credit.

There are several matters, however, that do require determination because the evidence of the witnesses in relation to them differed. The first matter related to the Plaintiff's evidence that she started living together with the deceased in late January 2010, following her release from the hospital, and that during that period, the witness, Ms Baker, was not there, particularly during the period between 1 and 21 February 2010.

In her further evidence, the Plaintiff did not seek to depart from, or add to, the evidence that she gave on this aspect.

Overall, in relation to the February period, I prefer the evidence of Ms Baker who says that she had annual leave during this period and, apart from three days, stayed with the deceased. The Plaintiff tendered the wage records of Ms Baker, which recorded that Ms Baker was, in fact, on annual leave between 1 February 2010 and 19 February 2010, and that she returned to work on 22 February 2010.

The deceased's calendar, has the notation "Patsy" for each of the days between 1 and 10 February, 2010, notes "Pat early morning gone" on 11 February, and then again the notation "Patsy" from 16 to 21 February 2010.

Finally, on this topic, although the Plaintiff was, initially, firm on the question whether Ms Baker had been there in that period, ultimately, she said "I don't recall any of February Pat Baker being there".

In the circumstances, I am satisfied that the only days in February 2010, when the Plaintiff was present at the deceased's home, were on 15 and 22 to 25 February 2010.

The second aspect that must be decided relates to the other periods when the Plaintiff was at the deceased's home. I am comforted in reaching my conclusion on this aspect by the evidence of the Plaintiff in relation to the factual authenticity of parts of the deceased's calendar. To her credit, upon considering the calendar overnight, she made appropriate concessions (although she sought to add to the evidence by what she stated in her affidavit of 15 December 2011).

The Plaintiff agreed that, usually, she was not at the deceased's home on the occasions when Ms Baker (or any other of the deceased's friends, or the Defendant) was there, or on weekends. In the additional evidence that she gave, she identified some specific exceptions. One was that she stayed at the deceased's home and cooked dinner for the deceased and the Defendant on 28 June 2010. However, she left at about 7:30 p.m. on this occasion.

In relation to the information on the calendar about which the Plaintiff was uncertain, I am satisfied that the person shown on the calendar was present, or at least that the Plaintiff was not present, at the deceased's home, and that the calendar was fairly accurate. That determination is not very significant, since there were only 14 days, between February and July 2010, where the identity of the person present with the deceased was not certain, so far as the Plaintiff was concerned.

I was satisfied that the Plaintiff was present at the deceased's home on at least some, or all, of 8, 9, 10, 11, 18, 22 to 25 and 29 to 31 March 2010; 1, 19, 27, 28 and 29 April 2010; most of May 2010, except for 1, 2, 7, 8, 14, 15, 21, 22, 28 and 29; between 7 to 10, 15 to 17, and 20 to 24 June 2010. She stayed at the deceased's home between 24 June 2010 and 6 July 2010 only on 3 and 4 July 2010 (at the same time as Ms Baker).

In the additional evidence that she gave, the Plaintiff said she was also present at the deceased's home on 25 June 2010, during which day she collected Fiona Lange from the airport and drove her to the deceased's home. She also says that she was present on 2 July from 1:00 p.m. until 6:00 p.m. and that she remained there on 5 July 2010 (with Ms Baker). I have earlier recorded her additional evidence regarding where she was on 23, 25 and 28 June 2010. I shall assume, without deciding, because it has not been tested, that her evidence in the additional affidavit is correct.

I have not concluded that she was there at all times when no name is on the calendar, because the Plaintiff conceded that she did not have a personal diary to which she could turn for assistance in stating when she was actually there. Whilst she believed that she was there, at times, when another, or others were not, the Defendant did not accept that was so.

Also, I cannot be satisfied that her recollection of precise dates, without them having been contemporaneously recorded by her, is so clear as to accept, uncritically, her evidence on the topic.

This is not to say that, on other occasions, the Plaintiff was not at, or did not go to the deceased's home. However, she did not stay for any continuous period on those occasions once another person arrived or whilst another person was present other than on the occasions to which I have referred.

It is quite clear, from the evidence I read and heard that the Plaintiff's evidence that "she lived with the deceased at her home in Millthorpe on a weekly basis from Sunday afternoon until Friday afternoon ... from the end of January 2010 until the deceased's death on 6 July 2010", is wrong.

The conclusions set out above also suggest that the Plaintiff may have slightly exaggerated what she did for the deceased. Whilst I have no doubt that when she was with her, the Plaintiff attended to all matters necessary to assist in looking after the deceased, at times when the Plaintiff was not there, others assisted the deceased in much the same way. Importantly, however, the Plaintiff was there on occasions stated when the deceased required her to be during the last months of the deceased's life.

I accept, also, that the deceased remained independent until about April or May 2010, although, it is likely that there were times when the assistance of others was offered and accepted.

The final matter that is important was whether the Plaintiff had a key to the deceased's home. In this regard, she has not satisfied me that she did have a key. Ms Baker, for example, states that the deceased had given her a key but had asked her not to give it to anyone else. Ms Baker's belief was that she was the only person to whom the deceased had given a key. Ms Baker's belief, in this regard, does not establish that the Plaintiff did not have a key, but it is a matter to which I must have regard.

One other matter that is relevant on this topic is the request made by the Plaintiff, through her solicitors, to the Defendant, about six weeks or so after the death of the deceased, for the return of the items said by the Plaintiff to have been left at the deceased's home. The letter speaks of the Defendant having "failed to allow our client to attend [the deceased's] home to collect those personal items". There is some merit in the Defendant's submission that had the Plaintiff held a key to the deceased's home, she could have collected her personal items without contacting the Defendant and well before the request was made.

Additional Facts

I next set out the additional facts that I am satisfied are either not in dispute, or that have been established by the evidence. I do so by reference to s 60(2) of the Act. Where necessary, and where it is possible, even though none of the residuary beneficiaries filed evidence as to his, or her, financial and material circumstances, I shall also consider the competing claim of each of the residuary beneficiaries, so far as I am able to.

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

The Plaintiff is the sister of the deceased. They appear to have had a close relationship throughout their lives, although at the time the Plaintiff was hospitalised, there was some tension between them. However, I attribute this to the Plaintiff's then medical condition, rather than to any disagreement between them.

The deceased visited when the Plaintiff was in hospital, even though, by that time, she was, herself, unwell. She would visit the Plaintiff after she, herself, had undergone chemotherapy. They would sit together and talk.

For about five years, they lived in adjoining houses, in Sydney. There was, then, some time when they lived geographically distant from one another. The Plaintiff moved to Queensland for a relatively short period and the deceased moved to Millthorpe in 2007. When she returned, the Plaintiff lived with the deceased for about two weeks until she found alternative accommodation, in Orange (which is located a short distance from Millthorpe).

The Plaintiff gave evidence that between August 2007 and November 2009, she assisted the deceased with her personal care "but we resided in separate premises".

Following her release from hospital, the Plaintiff did assist the deceased. She gave evidence that following her own release from hospital, she said to the deceased:

"I am here to help you. You tell me if you don't want me staying overnight, I will come in the day time, whatever you need".

And that the deceased said "I am scared to be alone" and I said "I will stay with you."

There is also no dispute that the Plaintiff did stay overnight in order to relieve the deceased's anxiety about staying at her home alone. However, on each occasion, she brought with her a suitcase of clothing for the time she was to be there, and she took it with her when she left.

The deceased acknowledged to Ms Guerin, who gave evidence and was cross-examined, that the Plaintiff was "looking after her" and that the Plaintiff "had been very kind" in taking her to the hospital and "just generally looking after" her.

There is no dispute that the deceased and the Plaintiff were adult persons related by family, or that the Plaintiff provided the deceased with domestic support and personal care.

Because there is no dispute that she provided domestic support and personal care to the deceased during the last months of the deceased's life, it is not necessary to detail all the support and care that she provided. I accept that she did all that she could to assist during the times when she was at the deceased's home.

(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

The deceased did not have any legal, or financial, obligation to the Plaintiff imposed upon her by statute or common law.

(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 this earlier in this judgment.

On any view, the deceased's estate is a modest one. It will be even more modest if the estimated costs are deducted.

There is no notional estate.

(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

The Plaintiff has a Diploma of Teaching, a Bachelor of Education, a Master of Arts and a Bachelor of Architecture. She has, in the past, worked as a primary school teacher, a university teacher, and as a graduate architect in private practice.

The Plaintiff is currently unemployed, although she said in her evidence, which I accept, that she would like to work if she is able. She has recently made an application to Centrelink for a disability pension. (No mention of the success or failure of her application was mentioned in the Plaintiff's affidavit dated 15 December 2011.)

The Plaintiff's treating general practitioner considers that she is presently not fit to work. With some improvement in her mental state, he considers that she may be able to undertake part-time work, but he considers it would be difficult for her to work full-time.

The Plaintiff's financial circumstances are stated to be as follows:-

Assets

(a)

House:

$335,000

(b)

Car:

$ 25,000 - $30,000

(c)

Furniture and artworks:

$ 10,000

(d)

Savings Account:

$ 9,200

(e)

Business Account:

$ 890

She had superannuation of $36,956 but in March 2011 withdrew it to use for living expenses. Her monthly expenses total about $2,288.

The Plaintiff has no liabilities.

No information has been provided about the financial resources (including earning capacity) and financial needs, both present and future, of any other beneficiary of the deceased's estate.

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

The Plaintiff is not co-habiting with any other person. She lives alone.

(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

The Plaintiff suffers from bi-polar affective disorder, which, at the present time, is being effectively managed. Relapse, however, is common. She was admitted to Canobolas Clinic at Bloomfield Hospital in January 2010, where she was treated for about 2.5 weeks.

She is currently experiencing depressed mood with quite high levels of anxiety. She avoids social situations and, at times, finds it difficult to leave her home for even routine daily matters.

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

The Plaintiff is aged 55 years.

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

"Contributions" are not defined in the Act. However, as stated in the sub-section, what may be considered includes financial and non-financial contributions, including to the welfare of the deceased.

The Plaintiff refers to "the Camperdown property that I owned jointly with the deceased in July 2007" and there is some suggestion that the deceased did not have very much before she obtained an interest in that property. However, I do not know whether the Plaintiff made any contribution to this property other than as a co-owner.

I have referred to the domestic support and personal care that the Plaintiff provided to the deceased. There is no doubt that this was a contribution to the deceased's welfare. There is no suggestion of any consideration being given by the deceased to the Plaintiff.

(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 made no specific provision, during her lifetime, for the Plaintiff. However, the Plaintiff shares, equally with others, the residue of the deceased's estate.

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

While this sub-section permits the court to accept evidence of the reasons for the provision, or lack of provision, it does not compel the court to attribute any particular weight to that evidence, or to accept the deceased's statement as establishing the truth of what is asserted.

The evidence of testamentary intentions of the deceased, relates to conversations that she had with a number of people stating that she was concerned about the Plaintiff's level of expenditure and the concern that the Plaintiff might spend all of her inheritance quickly.

There is some evidence to support the deceased's concern in this regard. However, it is to be remembered that the Plaintiff has not received a steady income for some years and that part of the expenditure was for living expenses. It is also possible that the level of expenditure may have been caused by the Plaintiff's medical condition (but this is speculation).

The deceased made a prior Will in September 2007, in which she appointed the Plaintiff her executrix, and gave her half of the residue of the estate. The other half of the residue was divided between the Defendant, Stephen Harkness, Matthew Harkness, Kathleen Guerin, Randa Magdi and Patricia Baker.

(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

There is no evidence that the deceased maintained the Plaintiff, either wholly or partly, before her death.

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

Apart from the Commonwealth government's responsibility to provide the Plaintiff with a pension if she qualifies, there is no other person with any liability to support the Plaintiff.

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

There was not very much evidence on this topic other than in respect of matters already dealt with. There is nothing in the character and conduct of the Plaintiff, either before, or after, the death of the deceased, that would disentitle her to provision out of the estate of the deceased. As previously recorded, any disharmony between them in late 2009, I attribute to the Plaintiff's medical condition.

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

I am satisfied that all of the other named residuary beneficiaries assisted the deceased to the best of his, and her, ability. Ms Baker, in particular, spent much time with her in the last few months of the deceased's life.

I am also satisfied that in about March 2010, Ms Guerin offered, in the event that she did not obtain a job for which she had applied, to "come up and be your permanent carer", which offer the deceased was happy to accept. In the events that happened, this did not occur.

There is ample justification, if that were needed, for each being named by the deceased as a beneficiary in each of her Wills.

(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

The evidence reveals that the only items that the Plaintiff said were left at the deceased's home and that were there after her death, were one summer shirt, two pairs of summer pants, two original aboriginal paintings, a DVD, a bar fridge (which had been in the deceased's bedroom), a queen size blanket and a pair of wire cutters.

Determination

In this case, the Defendant accepted that there was a relationship between two adult persons, who were related to each other, one or each of whom provided the other with domestic support and personal care, albeit to a far lesser extent than the Plaintiff alleged.

The real dispute between the parties related to whether the Plaintiff and the deceased were "living together" at the time that the domestic support and personal care was provided.

Regrettably, I have come to the conclusion that the Plaintiff and the deceased were not "living together". The Plaintiff would come and stay, at different times, with the deceased and provide domestic support and personal care to the deceased whilst she stayed there. It was circumstances, rather than any intention to live together, that bought the parties together during these times.

The Plaintiff did not say that she regarded the deceased's residence as her home. To the contrary, she says that she lived with the deceased at "her home" and that she would return to "my home" (or "my own house") on weekends. Her intention was not to remain living in the deceased's home for an undetermined period or to stay permanently. The length of her stay was usually determined by when another person was coming to stay with the deceased. In this regard, it is clear that she did not regard both places as her home.

In relation to what has been recorded in the last two paragraphs, I note that this is precisely how the Plaintiff described what she would do in her affidavit of 15 December 2011. She stated:

"8 After the case had finished I spoke with my solicitor and barrister and instructed them that I had stayed at my sister's home as follows..." (My emphasis)

There was never any question that the Plaintiff would return to her own home when another person was, or other persons were, staying with the deceased in the deceased's home. In this regard, I note that the Plaintiff usually was there for a few days at a time, bringing only what she would need, whilst she was there. Then, she went back to her own home in Orange where she carried on her own life. Their separate residences were precisely that.

There can be little doubt that when the Plaintiff came to the deceased's home, it was temporary only, and until another person, or other persons, came to stay with the deceased. Keeping a calendar demonstrates that the deceased, also, wished to know who was coming to stay with her and when.

Also, to conclude that they were living together would lead, logically, to the conclusion that the deceased and Ms Baker were living together, since there were many days, sometimes continuously, when she, too, stayed at the deceased's home and provided domestic support and personal care.

When others stayed, each used the same bedroom that the Plaintiff used. This suggests that neither she, nor the deceased, regarded that bedroom as belonging to the Plaintiff.

I mention, in passing, the failure of the Plaintiff to satisfy me that she had a key to the home of the deceased. This is an aspect that is relevant to "living together".

Significantly, also, the Plaintiff does not appear to have stayed at the deceased's home between 24 June 2010 and 6 July 2010, other than for three or four days. In the circumstances, this, too, demonstrates that she and the deceased were not living together at the time of the deceased's death.

It follows, that I am not satisfied that the Plaintiff is an eligible person, and in those circumstances, her claim cannot succeed. Her Summons must be dismissed.

In case I am in error in reaching the conclusion to which I have come, I shall turn to the other matters necessary to deal with, had eligibility been established. It will be appreciated that I address these issues on the necessarily hypothetical, and in light of my conclusion, the artificial, basis, that the Plaintiff is an eligible person.

The first is whether there are factors warranting the making of the application. In my view, there are. Leaving aside the assistance provided by the Plaintiff to her, the deceased, herself, recognised the Plaintiff as an object of testamentary bounty and had provided for her in each of the Wills that she had made.

Then, had the Plaintiff established eligibility and factors warranting the making of the application, since the Plaintiff had commenced the proceedings within the time prescribed by the Act, the question would have been whether the provision made for her in the Will of the deceased was adequate for her proper maintenance, education or advancement in life.

In this regard, in determining the answer at the first stage of the two-stage process, I must consider the provision made, as well as the totality of the relationship of the applicant and the deceased, the age and capacities of the other beneficiaries, and the claim of each on the bounty of the deceased.

The provision made for the Plaintiff is estimated to be less than $30,000. She has very little by way of capital. In my view, she would succeed in establishing jurisdiction and that the provision made for her in the Will of the deceased is inadequate.

I then turn to the second stage and consider whether an order should be made, and if so, the nature of the order to be made. Again, I would find in favour of the Plaintiff that an order should be made. In this regard, I do not forget that none of the other beneficiaries gave any evidence of a competing financial need, although, of course, each is a chosen object of the deceased's bounty and a competing claimant, with the Plaintiff, in that regard.

In my view, in lieu of the provision made in the Will of the deceased, I would find that a lump sum of $85,000 would have been adequate and proper in all the circumstances. This amount would provide a capital sum that would provide for the exigencies of life. It would supplement any income that she would receive if her application for a disability pension were successful, or if it were not, it would provide capital and income until she obtained employment (if she was able to).

As I have written earlier, s 99 of the Act provides that the Court may order that the costs of proceedings in relation to the estate or notional estate of a deceased person (including costs in connection with mediation) be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit.

I would hope, even though the Plaintiff has been unsuccessful, that the parties are able to reach agreement on the question of costs. If they are unable to reach agreement, I shall hear further submissions.

I order that the Plaintiff's Summons be dismissed.

I adjourn the matter for further submissions on costs to a date suitable to the parties and the Court.

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Decision last updated: 20 December 2011

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Citations

Harkness v Harkness [2011] NSWSC 1421

Most Recent Citation

Harkness v Harkness (No 2) [2012] NSWSC 35

Cases Citing This Decision

5

Khadarou v Antarakis [2021] NSWSC 743

Calokerinos, Executor of the Estate of the late George Sclavos v Yesilhat; Yesilhat v Calokerinos, Executor of the Estate of the late George Sclavos [2017] NSWSC 666

Pupo v Pupo; Pupo v Pupo [2015] NSWSC 1633

Cases Cited

40

Statutory Material Cited

4

Chao v Chao (No 2) [2008] NSWSC 612

The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132

Smith v New South Wales Bar Association [1992] HCA 36

Medium Neutral Citation:	Harkness v Harkness [2011] NSWSC 1421
Hearing dates:	22 November 2011; 16 December 2011 (Plaintiff's application for leave to re-open)
Decision date:	19 December 2011
Jurisdiction:	Equity Division
Before:	Hallen AsJ
Decision:	(a) Order that the Plaintiff's Summons be dismissed. (b) In the event that the parties are unable to agree on costs, adjourn the matter for further submissions to a date suitable to the parties and the Court.
Catchwords:	Proceedings commenced by the sister of the deceased for a family provision order - Defendant is the brother of the deceased and the executor named in the deceased's Will - Question whether the Plaintiff was a person with whom the deceased was living in a close personal relationship at the time of the deceased's death
Legislation Cited:	Family Provision Act 1982 Property (Relationships) Act 1984 Succession Act 2006 Succession Amendment (Family Provision) Act 2008
Cases Cited:	Allardice, In re, Allardice v Allardice (1909) 29 NZLR 959 Barlevy v Nadolski [2011] NSWSC 129 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Brown v Faggoter [1998] NSWCA 44 Chao v Chao (No 2) [2008] NSWSC 612 Churton v Christian (1988) 13 NSWLR 241 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54 Dridi v Fillmore [2001] NSWSC 319 Evans v Levy [2011] NSWCA 125 Foley v Ellis [2008] NSWCA 288 Fulop Deceased, Re (1987) 8 NSWLR 679 Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Hayes v Marquis [2008] NSWCA 10 Hughes v Charlton [2008] NSWSC 467 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 McCosker v McCosker (1957) 97 CLR 566 Marsh-Johnson v Hillcoat [2008] NSWSC 1337 Mayfield v Lloyd-Williams [2004] NSWSC 419 Palaganio v Mankarios [2011] NSWSC 61 Penfold v Perpetual Trustee [2002] NSWSC 648 Permanent Trustee Company v Fraser (1995) 36 NSWLR 24 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9 Popescu v Borun [2011] NSWSC 1532 Porthouse v Bridge [2007] NSWSC 686 Przewoznik v Scott [2005] NSWSC 74 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Richardson v Kidd [2002] NSWSC 306 Rojo Building Pty Ltd v Jillcris Pty Ltd [2006] NSWSC 309 Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100 Sharpless v Mckibbin [2007] NSWSC 1498 Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132 Thompson v The Public Trustee of New South Wales [2010] NSWSC 1137 Tsivinsky v Tsivinsky [1991] NSWCA 269 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported) Ye v Fung [2006] NSWSC 243
Texts Cited:	Macquarie Dictionary The Second Reading Speech (Legislative Assembly, (Hansard) 26 May 1999, p 535)
Category:	Principal judgment
Parties:	Janine Margaret Harkness (Plaintiff) Peter Geoffrey Harkness (as executor of the Estate of the Late Coraline June Harkness) (Defendant)
Representation:	Counsel: Mr M Lawson (Plaintiff) Ms J Healey (Defendant) Solicitors: Campbell Paton & Taylor (Plaintiff) Rossi Simicic Lawyers (Defendant)
File Number(s):	2011/85506

Assets
(a)	House:	$335,000
(b)	Car:	$ 25,000 - $30,000
(c)	Furniture and artworks:	$ 10,000
(d)	Savings Account:	$ 9,200
(e)	Business Account:	$ 890