Harrisson v Skinner - [2013] NSWSC 736

Supreme Court

New South Wales

Medium Neutral Citation: Harrisson v Skinner [2013] NSWSC 736
Hearing dates: 22 May 2013
Decision date: 11 June 2013
Jurisdiction: Equity Division
Before: Hallen J
Decision:
Orders that the Plaintiffs' Summons be dismissed. Orders that any argument as to costs be listed on a date to be arranged. Meantime, the Exhibits should be returned.

Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiffs, daughters of the deceased, each applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendants are also daughters of the deceased to whom Probate of the deceased's Will granted - Proceedings not commenced within time - Question whether sufficient cause to extend time established - Whether adequate and proper provision not made in Will of the deceased for each Plaintiff and if so the nature and quantum of the provision to be made - Very small estate - Competing claims of beneficiaries
Legislation Cited: Civil Procedure Act 2005
Family Provision Act 1982
Probate and Administration Act 1898
Property (Relationships) Act 1984
Succession Amendment (Family Provision) Act 2008
Succession Act 1981 (Qld)
Succession Act 2006
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Allardice v Allardice, In re Allardice, (1910) 29 NZLR 959
Andrew v Andrew [2012] NSWSCA 308; (2012) 81 NSWLR 656
Bartlett v Coomber [2008] NSWCA 100
Blore v Lang (1960) 104 CLR 124
Bondelmonte v Blanckensee [1989] WAR 305
Borebor v Keane [2013] VSC 35
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bowyer v Wood [2007] SASC 327; (2007) 99 SASR 190
Buckland Deceased, Re [1966] VR 404
Butcher v Craig [2009] WASC 164
Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748
Cassel, Re Estate [2000] NSWSC 294
Christie v Manera [2006] WASC 287
Collins v McGain [2003] NSWCA 190
Commissioner of Stamp Duties (Q'land) v Livingston [1964] UKPCHCA 2; (1964) 112 CLR 12
Cooper v Dungan (1976) 50 ALJR 539
Crossman v Riedel [2004] ACTSC 127
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Estate Harriett Cassel, Re [2000] NSWSC 294
Flathaug v Weaver [2003] NZFLR 730
Foley v Ellis [2008] NSWSC 288
Franks v Franks [2013] NSWCA 60
Gardiner v Gardiner (NSWSC, 28 May 1998, unreported)
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Grey v Harrison [1997] 2 VR 359
Harris, In Re (1936) 5 SASR 497
Hawkins v Prestage (1989) 1 WAR 37
Hitchcock v Pratt [2010] NSWSC 1508
Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Hyland v Burbidge [2000] NSWSC 12
In re Allen (Dec'd); Allen v Manchester [1922] NZLR 218
Kallidis, Estate of; Kallidis v Kallidis [2012] NSWSC 1485
Kay v Archbold [2008] NSWSC 254
Keep v Bourke [2012] NSWCA 64
Kembrey v Cuskelly [2008] NSWSC 262
Kleinig v Neal (No. 2) [1981] 2 NSWLR 532
McLeod v Johns (1981) 1 NSWLR 347
McCosker v McCosker (1957) 97 CLR 566
McGrath v Eves [2005] NSWSC 1006
McKenzie v Topp [2004] VSC 90
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
Moore (bht NSW Trustee & Guardian) v Randall [2012] NSWSC 184
Oldereid v Chan [2013] NSWSC 434
Palaganio v Mankarios [2013] NSWSC 61
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Puckridge, Deceased, In the Estate of (1978) 20 SASR 72
Re Salmon, Deceased [1981] Ch 167
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Slack v Rogan; Palffy v Rogan [2013] NSWSC 522
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stiles v Joseph (NSWSC, 16 December 1996, unreported)
Stott v Cook (1960) 33 ALJR 447
Szypica v O'Beirne [2013] NSWSC 297
Taylor v Farrugia [2009] NSWSC 801
Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572
Twomey v McDonald [2012] NSWSC 22
Union-Fidelity Trustee Co of Australia Ltd v Montgomery (1976) 1 NSWLR 134
Verzar v Verzar [2012] NSWSC 1380
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (NSWSC, 17 May 1996, unreported)
Worladge v Doddridge [1957] HCA 45; (1957) 97 CLR 1
Category: Principal judgment
Parties: Terese Ellen Harrisson (first Plaintiff)
Karen Drinkwater (second Plaintiff)
Christine Mary Skinner (first Defendant)
Julie Anne Nott (second Defendant)
Representation: Counsel:
Mr M Vincent (Plaintiffs)
Mr R Colquhoun (Defendants)
Solicitors:
Bale Boshev Lawyers (Plaintiffs)
Borthwick Wilson & Mitchell Solicitors (Defendants)

File Number(s): 2012/373173

Judgment

HIS HONOUR: These reasons relate to proceedings, in which a claim for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act") is made by two children, Terese Ellen Harrisson and Karen Drinkwater, out of the estate of their father, Alan Frederick Hinton ("the deceased"). 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 Plaintiffs' Summons was filed on 29 November 2012. It was not filed within the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased). The Plaintiffs filed an amended Summons, seeking an additional order under s 58(2) of the Act, on 16 April 2013.

Whilst the Defendants, Christine Mary Skinner and Julie Ann Nott, each of whom is also a child of the deceased, did not oppose the filing of the amended Summons, they do oppose an order being made extending the time for the making of the Plaintiffs' application.

The Defendants are two of the executors named in the deceased's Will. The other two executors, Marie Josephine Bradford and Gregory Anthony Hinton, who are also children of the deceased, renounced Probate.

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

Formal Matters

The following facts are uncontroversial and provide a useful background.

The deceased died on 14 July 2010 aged 87 years, having been born in March 1923.

The deceased was married to the mother of the Plaintiffs, Ellen Hinton, who died in February 2001. There were 10 children of the marriage, nine of whom survived the deceased.

The deceased left a Will that he made on 2 November 2007. The Will provided for "the rest and residue of my Estate of whatsoever kind and wheresoever situate, to my children, the said Marie Josephine Bradford ... Gregory Anthony Hinton ... Julie Anne Knott, Douglas James Hinton ... Christine Mary Skinner, Theresa Helen Connaughton, Alan Joseph Hinton Patricia Anne Hinton and Karen Louise Drinkwater or such of them as shall survive me and if more than one as tenants in common in equal shares".

The deceased's Will went on to provide that in the event that Patricia predeceased the deceased, or did not survive the deceased by 30 days, then "the share that would have been receivable by her hereunder shall be receivable by my grandson SHAUN DOUGLAS HINTON".

Clauses 4 and 5 of the deceased's Will provided:

"4. NOTWITHSTANDING any hereinbefore contained, I DIRECT my Executors that my aforesaid daughter PATRICIA ANNE HINTON shall be entitled to remain in any house property owned by me at the date of my death for so long as she may require whilst she remains single or is not living in a de facto relationship and I DIRECT that my aforesaid daughter CHRISTINE MARY SKINNER and her husband GRAHAM SKINNER may remain in the house to support her.

5. I DIRECT that my Executors shall be entitled to sell any house property owned by me to any of my children as my Executors may determine and I DIRECT that any child of mine being an Executor of this my Will shall notwithstanding such appointment be entitled so to purchase any such house property. "

This Court granted Probate in common form of the deceased's Will to the Defendants on 8 June 2011.

In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased's estate was disclosed as having an estimated or known value of $338,749. The deceased's property was said to consist of real estate at Dungog (comprising two Lots which shall hereafter be referred to as Lot 1 and Lot 2) ($300,000), furniture ($2,000), cash in hand ($200), money in bank ($14,214), shares ($19,926), assurance policies ($258), an unregistered motor vehicle ($150) and the proceeds of a funeral benefit ($2,000). (I have omitted, and shall continue to omit, any reference to cents.)

At the hearing, the parties were unable to agree upon the current value of Lot 1 and Lot 2 together, or Lot 1 alone. They agreed, however, that Lot 2 had a value of $80,000. They also agreed that if Lot 2 were required to be sold, the costs and expenses of sale would be about $4,640 (inclusive of GST). The range of values provided for Lot 1 was between $130,000 and $275,000. They agreed that the range of costs and expenses of sale was between $6,290 and $11,075 (in each case, inclusive of GST).

(The Defendants' evidence is that whilst the real estate actually contains two Lots, the local agent estimates that if it was attempted to sell the Lots separately that they would be worth less than the combined Lot. Further, it is not practical or reasonable to sell Lot 2 by itself. They say that because of the terrain of the Lots, they are best treated as one single Lot and that it is impracticable to sell the vacant land adjoining the house. The Plaintiffs disagree. There is simply not enough evidence to decide this issue finally. If it remains in dispute between the parties, the question may have to be decided in other proceedings.)

In about early October 2011, the Defendants made a partial distribution of $926 to each of the children of the deceased.

In calculating the value of the actual estate, finally available for distribution, the costs of the proceedings should be considered, since the Plaintiffs, if successful, normally, will be entitled to an order that their costs be paid out of the estate of the deceased, whilst the Defendants, as executors, irrespective of the outcome of the proceedings, normally, will be entitled to an order that their costs be paid out of the estate.

Their solicitor, Mr P. Brogan, estimated the Plaintiffs' costs and disbursements of the proceedings, including counsel's fees, calculated on the ordinary basis, to be about $30,750 (inclusive of GST and upon the basis of a one day hearing). The hearing, in fact, was not completed until 1:00 p.m. on the second day.

During the course of the hearing, a document was tendered (to which I shall refer in more detail later), the contents of which suggested that the Costs Agreement made by the Plaintiffs and their solicitors was a contingency costs agreement - that is one which would result in "no win no fee". The Plaintiffs' counsel acknowledged during submissions that "in the event that the Plaintiffs were unsuccessful, no professional fees would be charged to them by their solicitors". However, the contingency costs agreement does not relate to disbursements.

Their solicitor, Mr A. B. Mitchell, has estimated the Defendants' costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis, to be about $35,000 (inclusive of GST and upon the basis of a one day hearing).

It can be seen, even taking the highest value attributed to Lots 1 and 2, the actual estate is small. Deducting the costs, as estimated ($65,750) would make the value of the net distributable estate significantly less.

The parties agreed that in the event that the Plaintiffs were successful, the usual costs orders should be made, although if the Plaintiffs' claims were dismissed, the Defendants sought costs of the proceedings.

The persons described as eligible persons, within the meaning of the Act, are the Plaintiffs, the Defendants, and the other children of the deceased. Shawn (also referred to in the proceedings as "Shaun") may also be an eligible person. The only eligible persons who have commenced proceedings are the Plaintiffs.

Each of Christine, Julie and Patricia has provided evidence of her financial and material circumstances and asserts a competing financial and moral claim upon the bounty of the deceased. There is also evidence of Shaun's financial resources.

Each of the children who is not a party, has been served with a prescribed notice informing him and her of the Plaintiffs' claims but none has sworn an affidavit read in the proceedings. Only the Plaintiffs have commenced proceedings under the Act.

There was no dispute that Patricia, Shawn, Christine and Graham (as well as three adult sons of Christine and Graham) continue to remain in the house and that they use both Lots 1 and 2. (There was the question whether the "house property" identified in Clause 4 of the deceased's Will meant only Lot 1, on which the house is situated or whether it meant both Lots 1 and 2. The Plaintiffs did not seek to further amend the amended Summons and the Defendants did not seek to file a Cross-Claim raising the issue. Accordingly, if anyone wishes to agitate an issue about the construction of the deceased's Will, he, she or they will have to do so in separate proceedings.)

The deceased wrote a letter, addressed to Terese that was retained by him in an envelope marked: "to be kept important". The Defendants found the envelope and the letter following his death. It was unsigned and undated and was in the following terms (as written):

"Dear Trease

I was very anoid by your rudeness of you hanging it on me when I was trying to tell you about Patrice be able to live in this house untill she dies or marries or take a de facto. She is the one that has lived with me ever since she was born. She washes my clothes make my bed and cookes my meals also gives me my tablets. I was also very anodid when I heard that you were going to contest my Will fancy before I am dead one of my children even thinking of that. It lookes to me as if all you are think off all I want is his money also I was very anoid when I was sick in hospital how you came out to my place which I own and sold that table to that Bill for $100 and never told me about it that table has been mind for 28 years which you bought for 2 pounds and brought home and said I bought this table for you dad also the china cabinet you said the same thing you do not own any thing in this house also what I do in this house or who ever I have in this house has nothing to do with you or any one else I struggled to buy this house and I will do what I like with it and any one that try to contest my Will will only be entitled to $100 from the estate I asked Christine and Graham to come an live with me because Patricia could not manage every thing on her own and Graham mowes my lorn and lookes after the up keep of the house & grounds. I am sorry to have to wright this letter to you becaus you would not lisson to me the other day and I might say whoever is telling you what is happening down here to get there facts right and to mind there own business I think the world of my family and I still think the world of you as you still mean the world to me and I would do any thing for you and when I do die the executives have full control of what stays and what goes out of this house."

The Statutory Scheme - The Act

Introduction

Next, 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 are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions.

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

Power to Extend Time for the Commencement of the Proceedings

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 the court otherwise orders on sufficient cause being shown. (Consent is no longer referred to.)

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

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

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

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

Section 58(2) is in terms similar to s 16 of the former Act, except that the words "for the application not having been made within that period" are not included after the words "sufficient cause being shown".

In Moore (by her tutor the NSW Trustee & Guardian) v Randall [2012] NSWSC 184, White J, at [39], said that the expression "sufficient cause" "means sufficient explanation or sufficient justification or excuse for the application not having been made within the prescribed period".

In 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]."

My decision was followed, by Nicholas J, recently, in Twomey v Mcdonald [2012] NSWSC 22 at [8]. I maintain the views expressed in that decision.

By way of example, ignorance of the right to apply for relief may constitute a sufficient explanation for delay as can financial constraint: Verzar v Verzar [2012] NSWSC 1380 at [103] - [104].

As I said in Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748, at [117]

"[U]ltimately, justice is the paramount consideration in determining whether to extend the time for making an application ....".

Thus, as well as taking into account the reasonableness of the conduct of the applicant(s), it will also be necessary to take into account 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].

Eligibility and Inadequacy of Provision

I turn now to the substantive claims.

The key provision is s 59 of the Act. The Court must be satisfied, first, that each applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made. Relevantly, one category is "a child of the deceased" (s 57(1)(c) of the Act). Clearly, that language is expressive of the person's status, as well as his, or her, relationship to the deceased. There is no age limit placed on a child making an application.

The Court, if satisfied of each applicant's eligibility, must, in this case, then determine whether adequate provision for the proper maintenance, education, or advancement in life, of that 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)). In this way, it is said that the Court carries out a two-stage process. It may take into consideration the matters referred to in s 60(2) of the Act at both stages. (The operation of the intestacy rules is irrelevant to this case.)

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

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

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

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

Under s 59(1)(c) of the Act, the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the Court is considering the application. Under s 59(2), the Court has regard to the facts known to the Court at the time 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 is the word "maintenance", nor the phrase "advancement in life", defined in the Act. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement":

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dixon CJ and Williams J, in McCosker v McCosker (1957) 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 228, Callinan and Heydon JJ said:

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

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

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

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

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

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

Until recently, it was unanimously thought that there are two stages of the determination. The first stage, provided for by s 59(1)(c), has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. The Court does this by determining whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased and/or by operation of the intestacy rules, for the applicant. If it is not so satisfied, then the Court is precluded from making a family provision order.

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

In Collins v McGain, Tobias JA said:

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

...

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

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

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

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

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

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

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

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

However, Basten JA, in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, said of the two stage process referred to:

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

...

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

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

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

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

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

...

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

80 Second (and if the court is "satisfied" in the specified way), the "family provision order" that the court is empowered to make is, under s 59(2), "such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made"; and the court may, pursuant to s 60(1)(b), have regard to the matters specified in s 60(2) in deciding whether to make an order and the nature of the order.

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

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

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

(c) if the opinion is one of inadequacy, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased person for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the court at the time the order is made; and

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

...

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

In Franks v Franks [2013] NSWCA 60, Young AJA (with whom McColl JA and Sackville AJA agreed), at [17], referred to the primary Judge (Macready AsJ) having "cited the High Court's decision in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 and adopted the two stage process required by that decision".

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

At [35], his Honour wrote:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

There is no definition in the Act of "financial resources" (which term is referred to in s 60(2)(d)). However, there is a definition of that term in s 3 of the Property (Relationships) Act 1984, which I consider helpful:

"'financial resources' ... includes:

(a) a prospective claim or entitlement in respect of a scheme, fund or arrangement under which superannuation, retirement or similar benefits are provided,

(b) property which, pursuant to the provisions of a discretionary trust, may become vested in or used or applied in or towards the purposes of the parties ...,

(c) property, the alienation or disposition of which is wholly or partly under the control of the parties to the relationship or either of them and which is lawfully capable of being used or applied by or on behalf of the parties to the relationship or either of them in or towards their or his or her own purposes, and

(d) any other valuable benefit."

Of course, sub-s (2)(d) refers also to "earning capacity", which means no more than the capacity to find employment to earn or derive income.

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 any other eligible person, as well as of any beneficiary, 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 not be relevant to the jurisdictional question to be determined at the first stage. Happily, I am not alone in reaching this conclusion which is supported by the following comments made in Singer v Berghouse, 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, at 230-231:

"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 of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors."

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

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

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

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

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

The order for provision out 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).

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). (As I have written, intestacy is irrelevant in these proceedings.)

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

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.

Pursuant to Paragraph 24 of Practice Note SC Eq 7, orders may be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the value of the estate is less than $500,000.

Other Applicable Legal Principles - Substantive Application

Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act.

Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve "an overall fair" disposition of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants. The Court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act to correct the hurt feelings, or sense of wrong, felt by an applicant. Rather, the Court's role is of a specific type and goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance, education and advancement in life of an applicant.

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 testator'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". Freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the court": Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 19.

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

"There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged."

Also, in Vigolo v Bostin, Gleeson CJ pointed out that the legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour stated, at [10], that it "preserved freedom of testamentary disposition, but subjected that freedom to a new qualification"

White J referred to these principles in Slack v Rogan at [127]:

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

Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (NSWSC, 17 May 1996, unreported); Vigolo v Bostin at 199 and 204; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. How those community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew at [36].

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

The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1910) 29 NZLR 959 at 966.

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

All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singerv Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12 at [56]. Nor does it follow that if the Court decides it is inappropriate to make a specific provision in respect of one identified head of claim that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams, at [89].

The size of the estate is a significant consideration in determining an application for provision. In a small estate, as this one is, it is important to remember what Salmond J said in In re Allen (Dec'd);Allen v Manchester [1922] NZLR 218, at 221:

"Applications under the Family Protection Act for further provision of maintenance are divisible into two classes. The first and by far the most numerous class consists of those cases in which, owing to the smallness of the estate and to the nature of the testamentary dispositions, the applicant is competing with other persons who have also a moral claim upon the testator. Any provision made by the Court in favour of the applicant must in this class of case be made at the expense of some other person or persons to whom the testator owed a moral duty of support. The estate is insufficient to meet in full the entirety of the moral claims upon it, in the sense that if the testator possessed more he would have been bound to do more for the welfare of his dependants. In such a case all that the Court can do is to see that the available means of the testator are justly divided between the persons who have moral claims upon him in due proportion to the relative urgency of those claims."

In relation to a claim by an adult child, the following principles are useful to remember:

(a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.

(b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his or her children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801.

(c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute: Taylor v Farrugia, at [58].

(d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland Deceased [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 148; Goodman v Windeyer at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons: Re Buckland Deceased at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams, at [86].

(e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37, per Nicholson J at 45.

(f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003) at [179] - [182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164, at [17].

(g) The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd, at 149.

(h) Although some may hold the view that equality between children requires that "adequate provision" not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the Court's determination of an applicant's case.

(i) There is no obligation on a parent to equalise distributions made to his or her children so that each child receive benefits on the same scale as the other: Cooper v Dungan at 542.

In Blore v Lang (1960) 104 CLR 124, Fullagar and Menzies JJ said, at 135:

"The measure to be applied is not what has been given to one, but what the other needs for his or her proper maintenance, giving due regard to all the circumstances of the case... The ... legislation [is] for remedying, within such limits as a wide discretion would set, breaches of a testator's moral duty to make adequate provision for the proper maintenance of his family - not for the making of ... a fair distribution of ... [the] estate ... Equality is not something to be achieved by the application of the Act, although in some cases equality may set a limit to the order to be made - for instance, where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same."

Relevantly to each Plaintiff's claim, Menzies and Fullagar JJ in Blore v Lang, at 135, also commented, in respect of "a married woman with a healthy husband in satisfactory employment who supports her in reasonable comfort", "her need is not for the bread and butter of life, but for a little of the cheese or jam that a wise and just parent would appreciate should be provided if circumstances permit".

Even more vividly, but to similar effect, is the approach in Worladge v Doddridge [1957] HCA 45; (1957) 97 CLR 1 at 12, in which Williams and Fullagar JJ approved the following statement, from In Re Harris (1936) 5 SASR 497 at 501:

"Proper maintenance is (if circumstances permit) something more than a provision to keep the wolf from the door - it should at least be sufficient to keep the wolf from pattering around the house or lurking in some outhouse in the backyard - it should be sufficient to free the mind from any reasonable fear of any insufficiency as age increases and health and strength gradually fail."

I make clear that I do not intend what I have described as "principles" to be elevated into rules of law. Nor do I wish to suggest that the jurisdiction should be unduly confined or the discretion at the second stage to be constrained by statements of principle found in dicta in other decisions. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the bases for a family provision order has been established.

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

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

I respectfully agree, also, with the statement of White J in Slack v Rogan, at [126]:

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

Facts relating to the Extension of Time

Terese gave evidence that the Will was read following the death of the deceased. She says that she did not understand its terms and was unhappy about the term that provided for Christine and Graham to have "residency".

She also said that "shortly after [the deceased's] death, I contacted the office of Leal (sic) Aid NSW to seek advice in relation to [the] will." This was not quite accurate, as her first contact appears to have been with the Law Society of NSW and the request was made for "referral to a solicitor".

The evidence reveals that by letter dated 26 July 2010, the Law Society Solicitor Referral Service provided the names of three firms of solicitors in the Maitland area, one of which Terese contacted. She says that she telephoned and was informed: "You won't get legal aid. It will cost you $15,000 to go to Court not including the barrister." She says that she could not afford $15,000.

However, subsequently she made application to Legal Aid New South Wales. Her application was received on 20 September 2010 and was responded to by letter dated 5 October 2010, in which letter certain information was sought in order to determine whether "the application satisfies the merits test ... [t]he purpose [of which] is to assess whether it is reasonable in all the circumstances to grant legal aid".

Terese admits that she did not provide the information sought by Legal Aid and that she received a letter, dated 19 January 2011, from Legal Aid by which she was informed that her application had been refused. She was also informed that she had a right to appeal the decision, but did not do so.

Nothing appears to have been done by her until some time in about January 2012, when her brother, Douglas, informed her that he had seen someone from the firms of solicitors, Bale Boshev. In fact, Douglas' wife, Kim, forwarded an email, dated 13 January 2012, from Mr Brogan, to her, which email was, relevantly, in the following terms:

"...

I confirm that the deceased passed away over 12 months ago and left a Will dated 2 November 2007 by which he gifted his estate to his 9 children in equal shares however subject to a right to occupy the residence to Patricia (whilst she remains single) and Christine and Graham to support her.

The Will has the effect of creating a right to occupy the property being of unknown duration and potentially until Patricia's death. This could mean that some beneficiaries never actually realise their share.

It is common ground that Patricia has financial needs. She is unemployed and has the care of her disabled son. However, there are certain of the other children with financial needs as well.

There is an argument that the Will fails to make adequate and proper provision to other children in need. Under the Succession Act NSW children are eligible persons able to bring a claim challenging a Will if there is evidence to establish that the Will fails to make adequate and proper provision for their maintenance, education and advancement in life. There is a limitation period of 12 months in which to make the claim. That time frame has expired and we will need to consider the reasons for the claim not having been brought within time. We will need to seek leave from the Court to apply out of time. The claims should be filed quickly to avoid any further delay.

I will need to receive instructions from those children in the most need as to their financial and other circumstances. I understand that (in no particular order) the claimants may be Marie, Alan and Karen.

In terms of legal costs, I confirm that we agree to act on a "no win/ no fee" arrangement. Payment of our fees would normally be made upon conclusion of the matter and as part of the settlement or relating to Court order. In acting on this basis, we have to assess your claim and be confident that your case has reasonable prospects. This in both your interests as well as our own. We will issue a written fee agreement as soon as we understand who we will be acting for."

The email ended with a request for information.

The precise date that Kim forwarded the email to Terese was not disclosed in the evidence.

Terese was asked when it was that she had her first discussion with someone from Bale Boshev. She responded "I'd say it would be a week after January or three weeks after January, I'm not sure. My solicitor has a letter there." No letter was produced.

In any event, as previously stated, the Summons was not filed until 29 November 2012, that is about 9 months later. However, it appears that Terese swore her first affidavit in support of the Summons on 21 September 2012. No explanation was provided for the delay between the date the email was received by her, the day she swore her first affidavit, and/or the date of the filing of the Summons.

Of course, it is to be noted that the deceased had died more than 12 months before January 2012.

Karen gives some evidence about the circumstances that led to her claim being made out of time. In her first affidavit, sworn 30 October 2012, she stated:

"...

37. I was not aware of my rights to make application for provision from the estate of the deceased, before now.

38. I had believed that there was nothing that could be done to rectify what I consider the inadequacy in Dad's Will and that is, that whilst all of his children are beneficiaries, only two thereof are beneficially treated by a right of residency in what is principally the sole asset being his former home and adjacent vacant land.

39. There would appear to be no prejudice to other parties, the main asset being the real estate is still held in the name of the executors. There has been no distribution of assets to my knowledge excepting the savings owned by Dad resulting in each child previously receiving about $900."

She says in her second affidavit made in May 2013:

"12 I refer to the reasons for my late application. Further thereto, after [the deceased] died, there was some dispute between family members over the terms of his Will.

13 The former executors Marie Bradford and Greg Hinton were seeking that the vacant block that adjoins the house block be sold to enable the distribution of proceeds of sale.

...

17 My brother Douglas Hinton consulted Bale Boshev Lawyers in 2012 and it was after my discussions with my brother Douglas that I made contact with Bale Boshev Lawyers that culminated in their agreeing to act on my benefit."

In cross-examination, she admitted that she, through her husband to whose computer it had been sent, had received the email from Bale Boshev that was sent to her by Kim. She also admitted that she then consulted Bale Boshev and that when she did so she decided that she was going to challenge the deceased's Will.

There is no evidence given by Karen as to when she first consulted Bale Boshev or why the Summons was not filed until 29 November 2012. In relation to the first matter, she said "I'm not sure of the date, but I'm sure its written down somewhere. My solicitor would have that."

No evidence was given by the Plaintiffs' solicitor, who was present in Court, of any of these matters. No explanation was provided for the delay between the date the email was received by her, the day she swore her first affidavit, and/or the date of the filing of the Summons.

The failure to call their solicitor to provide more precise details of the sequence of events does not assist the Plaintiffs. I draw an inference that his evidence would not assist either of them on this topic.

Additional Facts

Next, I set out additional facts that I am satisfied are either not in dispute, or that have been established to my satisfaction by the evidence. I do so by reference to the matters in s 60(2) of the Act to which I may have regard. Where necessary, I shall express the conclusions to which I have come. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar, at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered.

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

Each of the Plaintiffs is a daughter of the deceased and each says that she grew up in the family household. Each says that she felt she had a close relationship with the deceased.

Terese says she first left home at the age of 22, several years after she had a daughter. After leaving home, she continued to see the deceased regularly, even moving back to the family home for a number of months in about 1993. In 1996, she and her family moved to Queensland following which there were weekly telephone calls and yearly visits to the family home.

Karen says she left home at the age of about 18. After leaving home, Karen met her future husband, Troy, and lived with him until they married. She continued to live in the Dungog area, except for about 2 years. She kept in regular contact with the deceased.

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

There is no definition of the "obligations" or "responsibilities" to which the sub-section refers in the Act. One might conclude, however, that what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities.

Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to any of his children, as adults, imposed upon him by statute or common law.

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

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

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

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

I have dealt with these matters earlier in these reasons. The value of the estate is extremely small.

(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

Terese has been unemployed since 1992. She receives a disability support pension of $609 per fortnight. She also receives family tax benefits consisting of a Part A Family Payment ($251 per fortnight) and a Part B Family Payment ($20 per fortnight). Her husband Trevor receives a disability support pension of $609 per fortnight and also a Carer's Allowance (as he is Terese's carer) of $114 per fortnight.

Their monthly expenditure is $3,054 comprising mortgage repayments ($776), food ($1,000), utility bills ($145), telephone bills ($180), council rates ($160), various insurance policies ($243), credit card repayments ($310), car registration, maintenance and petrol ($160) and medications ($80).

They have joint assets of $311,600, comprising a house ($300,000), two cars ($3,000 and $3,500 respectively), savings ($100) and furniture ($5,000). Trevor also has $2,600 in superannuation.

They have joint liabilities of $87,270, comprising a debt secured by mortgage ($74,000) and credit card debts ($13,270).

Karen is employed as a cleaner with IGA Supermarkets and Turner Holder and also undertakes some private house cleaning. From this employment, she works about 35 hours per week. Her total net income is between $630 and $680 per week. Her husband is employed as a truck driver/ heavy machinery operator with Burns Earthmoving Pty Ltd. His gross annual salary is $45,000.

Their combined monthly expenditure is $4,531, comprising rent ($1,250), food ($800), utility bills ($343), telephone bill ($350), various insurance policies ($153), car maintenance, registration and petrol ($185), medications ($50), entertainment ($100), loan repayments ($500), credit card repayments ($600) and incidentals ($200).

They have joint assets of $23,000 comprising household contents ($2,000), savings ($1,500) and two cars ($18,000 and $1,500 respectively). Additionally, they both have a small amount of superannuation (Karen ($700) and Troy ($2,324)).

They have joint liabilities of $45,700 comprising credit card debts ($24,000), a personal loan ($3,700), and a car loan ($18,000).

Christine is employed as a cleaner on a casual basis with Clarence Town Bowling Sport and Recreation Club. She earns between $200 and $300 per week, depending on the availability of shifts. Her husband, Graham, is employed by Clarence Town Hardware and earns $642 per week.

Christine is an undischarged bankrupt. She and her husband's joint assets are as follows: money in different bank accounts ($100, $60 and $169 respectively), furniture ($1,500) and two cars ($1,000) and ($1,000). She has not disclosed any liabilities (joint or otherwise).

The household expenses are largely paid from a "household fund" to which each member of the house contributes. Each of their sons contributes $70 per week. Patricia pays $170 per week. To the extent that those amounts are insufficient to pay weekly expenses, Christine and Graham make the necessary extra payments to ensure that the expenses are paid. Each also contributes to food purchases. To the extent that there are other expenses such as urgent repairs or other quarterly expenses, each member of the household contributes some money to ensure that those expenses are paid.

Patricia is unemployed. She receives a Carer's Allowance of between $755 and $795 per fortnight. At the date of hearing, Shawn receives a disability support pension of about $385, which is controlled by Patricia. However, it was disclosed in cross-examination that this would increase to $733 per fortnight upon his attaining the age of 21, later in May, 2013. An undisclosed portion of this money is contributed to the household fund. In addition to the $170 that Patricia contributes to the fund, she states in her affidavit that she also has the following monthly expenses: utilities ($180), food ($200), medication ($60), personal ($134), credit card repayments (between $50 and $70) and personal loan repayments ($560).

She has assets of about $5,100 comprising of furniture ($5,000) and savings ($100). She has liabilities of $28,000 comprising a personal loan ($24,000) and a credit card debt ($4,000).

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

I have referred to the financial circumstances of the spouse of each Plaintiff. The financial resources of Trevor and Troy respectively has been addressed. Toby Harrisson and Sam Drinkwater is each aged 16 years, and is each financially dependant on his parents.

(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

Terese has a number of medical complaints. She suffers from chronic lower back pain, degenerative changes in the spine, ankylosing spondylosis, reduced vision, depression, migraine headaches, gastro-oesophageal reflux disease and fibromyalgia. There is an expectation that there will be a decline in Terese's musculoskeletal state.

Karen suffers from major depression, recently exacerbated by increasing musculo-skeletal problems. (Troy has also suffered from long-standing depression and post-traumatic stress disorder and drug and alcohol problems.)

Patricia's health is poor. Her thyroid has been removed. She takes prescribed medication.

Shawn, who is now 21 years of age, suffers from what has been described as severe development delay with behavioural disturbance, mild autism and mild ADHD. He requires supervision as he has significant behavioural problems. He attends "Mai-Well", an organisation for developmentally delayed people in Maitland throughout the year, except for a couple of weeks at Christmas.

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

Terese is currently aged 53.

Karen is currently aged 44.

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

There is no suggestion that either of the Plaintiffs made any contribution to the acquisition, conservation and improvement of the estate of the deceased.

No doubt, however, as a child of the deceased, each contributed to the welfare of the deceased. The nature of the contribution to the welfare of the deceased has been identified above.

There is no suggestion that either Plaintiff made any contribution to the estate of the deceased after his death.

(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

Each of the Plaintiffs received an interim distribution out of the estate of $926. Neither gives evidence of any provision made for her during the lifetime of the deceased.

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

There is no evidence of the testamentary intentions of the deceased other than in his last Will to which I have referred. Even then, the provision that was to be made in certain events, for each of the Plaintiffs, was modest.

I have earlier referred to the letter addressed to Terese by the deceased.

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

The deceased did not maintain any of the Plaintiffs, before his death, other than during her childhood.

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

There is no person, other than, perhaps, each Plaintiff's husband, with a liability to support her.

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

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

I have dealt with the relationship of each Plaintiff and the deceased and her conduct towards the deceased earlier in these reasons. The Defendants do not submit that there is any relevant conduct.

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

There is no conduct that is relevant. The letter by the deceased to which I have referred does refer to conduct by Patricia, Christine and Graham. There was no suggestion by either of the Plaintiffs that the deceased erroneously disclosed the conduct referred to.

(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 Plaintiffs submit that the interpretation given by the Defendants to the right of residence provided by the Will is relevant. Had Lot 2 been sold, additional distributions could have been made to all of the deceased's children. Whilst modest, that distribution would have made some improvement to the financial resources of each of the Plaintiffs.

I have earlier dealt with this issue. One would hope, however, that further legal costs and expenses could be avoided by the parties adopting a co-operative approach to determine whether, for example, Lot 2 could be sold and if so, what steps would be required (for example, imposed by Council) to ready it for sale.

Determination

Extension of Time

As stated, the deceased died on 14 July 2010. The Plaintiffs' application should have been made not later than 12 months after the date of the death, that is to say, by 14 July 2011. It was not made until 16.5 months later, on 29 November 2012. Thus, the delay is quite long.

Accordingly, I must determine whether "sufficient cause" has been shown to "otherwise order". In determining this, since there is no reference in the section, as there was in the former Act, limiting consideration "for the application not having been made within that period", the Court is able to consider not only the period of 12 months after the date of death of the deceased, but all of the facts, including the whole of the period before the commencement of the proceedings, to determine whether, in all the circumstances, there is sufficient cause to justify an "otherwise order".

Overall, I am not satisfied that "sufficient cause" has been shown. Whilst it may be that Terese was unable to afford $15,000, plus barrister's fees, to proceed with the case to completion, there is no evidence that she sought out, or that she was unable to afford, advice as to the strength of her case, in order to determine whether such a case should be brought. Nor did she seek any alternative views as to what it would cost. She appears to have done nothing following the conversation with the lawyer to whom she refers in her affidavit within the prescribed period. Even when she did obtain advice, initially that was through her brother.

In the case of Karen, she says that she did not know of her rights to bring a case. She says that, as at 3 May 2011, she was enquiring, through the Hunter Community Legal Centre of the status of the probate application and when a distribution was to be made to her.

However, it is clear that she, too, was unhappy with the terms of the deceased's Will, yet there is no evidence that she sought any advice as to whether she had rights, and, if so, what those rights were, or whether they were required to be exercised within a specified period of time. She appears to have done nothing at all.

No lawyer at the Hunter Community Legal Centre gave evidence of the nature of any advice given to Karen.

There was some delay obtaining Probate of the deceased's Will and some dispute between the four named executors, which resulted in two of the named executors renouncing. However, even though Karen mentioned it, there is no evidence that either of these matters was a relevant matter preventing either of the Plaintiffs from commencing the proceedings. In any event, an application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted: s 58(1) of the Act.

Even assuming that the reasons given explaining the delay by each Plaintiff for not commencing proceedings was acceptable, in about January 2012, upon receipt of the email from Bale Boshev, each was informed that any proceedings needed to be commenced promptly. Following receipt of that email, Terese's stated reason was no longer a valid one and Karen, then, had the requisite knowledge of her rights to bring proceedings, and the date by when the proceedings should have been brought.

Then, there was a delay of another 9.5 months before the proceedings were, in fact, commenced. There is simply no explanation at all for that period of delay. Despite being informed that they would have to seek an indulgence from the Court to bring the proceedings, they did not act promptly to apply for the extension of time. The further delay, during this period, has not been satisfactorily explained, or for that matter, explained at all.

Furthermore, I do not accept the Plaintiffs' submission that each has a strong case. In my view, the strength of the case of each is not a matter in favour of an affirmative conclusion on this issue. I am not satisfied that either is entitled to substantive relief. Thus, as will be shown, there is no purpose in extending the time with respect to claims that are to fail.

(Had it been necessary, otherwise, I would have found that there was no relevant prejudice occasioned by the delay in lodging the claim, since Patricia, Shawn, Christine and Graham have continued to have the use and occupation of Lots 1 and 2. I would have also found that there was no unconscionable conduct by either of the Plaintiffs directed towards a deliberate holding off designed to lull beneficiaries into false sense of security.)

Thus, having considered all the above matters and the evidence in this case, I am of the view that each Plaintiff has not established sufficient cause to justify the Court extending time in relation to her application. I also am of the view that the application of each is bound to fail given her situation in life and the competing claims on the bounty of the deceased.

Whether adequate and proper provision

I turn now to the substantive claims. As stated, there is no dispute that each Plaintiff is an eligible person.

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

Each Plaintiff is entitled to one-ninth of the deceased's estate. However, neither will receive that share, or any substantial part of it, so long as Patricia and others remain living in the house property. (At the present time, I am assuming, without deciding, that the house property consists of both Lots 1 and 2.) The only part of the estate that each of the Plaintiffs has received is the amount of $926 which was paid by way of an interim distribution.

Whilst it is accepted that each has "needs", that is not all that I am required to consider at the first stage. The totality of the relationship of each Plaintiff and the deceased, the age and capacities of the competing claimants and the claim of each on the bounty of the deceased, are relevant factors in determining the answer at the first stage.

Considering the situation in life of each Plaintiff at this time, I am not satisfied that adequate provision for the proper maintenance, education or advancement in life of each Plaintiff has not been made by the Will of the deceased.

This is a case where owing to the smallness of the estate and to the nature of the testamentary dispositions, the Plaintiffs are competing with other persons who have, according to the deceased, a greater claim upon his bounty. Bearing in mind Patricia's circumstances, with Shawn, it is hardly surprising that he felt that way. That he permitted Christine and Graham to live with Patricia and Shawn is also unsurprising as he felt that Patricia would require respite, which they could provide.

In this case, any provision the Court makes in favour of either Plaintiff has to be made at the expense of other persons to whom the deceased believed provision ought to be made and whose claims to provision from his estate appear more compelling than those of each of the Plaintiffs. The Court must consider the available means of the deceased and consider the competing claims upon him, bearing in mind the relative urgency of those claims.

Those considerations lead me to find that there was no failure, on the part of the deceased, to make adequate provision for each Plaintiff. Accordingly, each Plaintiff fails at the jurisdictional stage. That finding concludes the matter and must lead to the dismissal of the Plaintiffs' proceedings.

If there were additional property that would not require the sale of the home in which Patricia and Shawn live, with Christine and Graham, the Plaintiffs might not have commenced these proceedings, or they might have obtained the benefit of an order for provision in her favour. However, the Court should not interfere with the security of accommodation provided for the persons chosen by the deceased as requiring that accommodation, in order to make provision for either of the Plaintiffs.

However, in case I am wrong, I turn, then, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased for the maintenance, education or advancement in life of each Plaintiff, having regard to the facts known to the court at the time the order is made.

The same considerations would, at the second stage, produce the result that, as a matter of discretion, I would not be satisfied that a family provision order ought to be made for each Plaintiff. This is a case in which "due regard must be had to what the deceased regarded as superior claims or preferable dispositions as demonstrated by his will": Dixon CJ in Pontifical Society for the Propagation of the Faith v Scales at [6].

For these reasons, the Summons filed by the Plaintiffs should be dismissed.

The Defendants' counsel submitted that there should be an order for costs in the event that the Plaintiffs' claims were dismissed. I have carefully considered that question, but in the circumstances, and subject to further argument, I may defer the determination of how the burden for costs should be borne.

I consider that this may be an appropriate course because of the issue to which I have referred regarding Lot 2 and the construction of the deceased's Will. As I have stated, one can only hope that further litigation will not be necessary to determine this issue and the question which may then arise whether Lot 2 can, or should, be sold.

I commend to the Defendants to give real consideration, before additional costs are incurred, to the question whether it is possible and commercially feasible, to sell Lot 2. If they conclude that it is not, they might provide detailed reasons to all of the other beneficiaries, so that they, too, can come to comprehend why Lot 2 is not to be sold. It would be a further travesty for this family to be involved in more litigation.

I stand over to a mutually convenient date, any argument about costs to allow the parties to consider whether they can reach agreement on that issue and, if not, whether any argument on costs should be deferred.

Meantime, however, the Exhibits should be returned.

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Decision last updated: 11 June 2013

Medium Neutral Citation:	Harrisson v Skinner [2013] NSWSC 736
Hearing dates:	22 May 2013
Decision date:	11 June 2013
Jurisdiction:	Equity Division
Before:	Hallen J
Decision:	Orders that the Plaintiffs' Summons be dismissed. Orders that any argument as to costs be listed on a date to be arranged. Meantime, the Exhibits should be returned.
Catchwords:	SUCCESSION - FAMILY PROVISION - The Plaintiffs, daughters of the deceased, each applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendants are also daughters of the deceased to whom Probate of the deceased's Will granted - Proceedings not commenced within time - Question whether sufficient cause to extend time established - Whether adequate and proper provision not made in Will of the deceased for each Plaintiff and if so the nature and quantum of the provision to be made - Very small estate - Competing claims of beneficiaries
Legislation Cited:	Civil Procedure Act 2005 Family Provision Act 1982 Probate and Administration Act 1898 Property (Relationships) Act 1984 Succession Amendment (Family Provision) Act 2008 Succession Act 1981 (Qld) Succession Act 2006
Cases Cited:	Alexander v Jansson [2010] NSWCA 176 Allardice v Allardice, In re Allardice, (1910) 29 NZLR 959 Andrew v Andrew [2012] NSWSCA 308; (2012) 81 NSWLR 656 Bartlett v Coomber [2008] NSWCA 100 Blore v Lang (1960) 104 CLR 124 Bondelmonte v Blanckensee [1989] WAR 305 Borebor v Keane [2013] VSC 35 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Bowyer v Wood [2007] SASC 327; (2007) 99 SASR 190 Buckland Deceased, Re [1966] VR 404 Butcher v Craig [2009] WASC 164 Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748 Cassel, Re Estate [2000] NSWSC 294 Christie v Manera [2006] WASC 287 Collins v McGain [2003] NSWCA 190 Commissioner of Stamp Duties (Q'land) v Livingston [1964] UKPCHCA 2; (1964) 112 CLR 12 Cooper v Dungan (1976) 50 ALJR 539 Crossman v Riedel [2004] ACTSC 127 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54 Estate Harriett Cassel, Re [2000] NSWSC 294 Flathaug v Weaver [2003] NZFLR 730 Foley v Ellis [2008] NSWSC 288 Franks v Franks [2013] NSWCA 60 Gardiner v Gardiner (NSWSC, 28 May 1998, unreported) Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison [1997] 2 VR 359 Harris, In Re (1936) 5 SASR 497 Hawkins v Prestage (1989) 1 WAR 37 Hitchcock v Pratt [2010] NSWSC 1508 Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 Hyland v Burbidge [2000] NSWSC 12 In re Allen (Dec'd); Allen v Manchester [1922] NZLR 218 Kallidis, Estate of; Kallidis v Kallidis [2012] NSWSC 1485 Kay v Archbold [2008] NSWSC 254 Keep v Bourke [2012] NSWCA 64 Kembrey v Cuskelly [2008] NSWSC 262 Kleinig v Neal (No. 2) [1981] 2 NSWLR 532 McLeod v Johns (1981) 1 NSWLR 347 McCosker v McCosker (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 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 Moore (bht NSW Trustee & Guardian) v Randall [2012] NSWSC 184 Oldereid v Chan [2013] NSWSC 434 Palaganio v Mankarios [2013] NSWSC 61 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Re Salmon, Deceased [1981] Ch 167 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (NSWSC, 16 December 1996, unreported) Stott v Cook (1960) 33 ALJR 447 Szypica v O'Beirne [2013] NSWSC 297 Taylor v Farrugia [2009] NSWSC 801 Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 Twomey v McDonald [2012] NSWSC 22 Union-Fidelity Trustee Co of Australia Ltd v Montgomery (1976) 1 NSWLR 134 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported) Worladge v Doddridge [1957] HCA 45; (1957) 97 CLR 1
Category:	Principal judgment
Parties:	Terese Ellen Harrisson (first Plaintiff) Karen Drinkwater (second Plaintiff) Christine Mary Skinner (first Defendant) Julie Anne Nott (second Defendant)
Representation:	Counsel: Mr M Vincent (Plaintiffs) Mr R Colquhoun (Defendants) Solicitors: Bale Boshev Lawyers (Plaintiffs) Borthwick Wilson & Mitchell Solicitors (Defendants)
File Number(s):	2012/373173