Jones v Jones
[2014] NSWSC 960
•22 July 2014
Supreme Court
New South Wales
Medium Neutral Citation: Jones v Jones [2014] NSWSC 960 Hearing dates: 3 July 2014 Decision date: 22 July 2014 Before: Hallen J Decision: See Paragraph 232 of these reasons for judgment
Catchwords: SUCCESSION - Two Plaintiffs, each a child of the deceased, makes a claim for a family provision order - No dispute as to eligibility - Some provision made for each Plaintiff in the Will of the deceased - Legacy to third child of the deceased - The Defendant and two grandchildren of the deceased are residuary beneficiaries - Small estate -Whether family provision order should be made for either Plaintiff, and if so, the nature and quantum of the further provision to be made - Order for provision for each Plaintiff - Necessary to make adjustment order under s 66 of the Act Legislation Cited: Family Provision Act 1982 (NSW)
Civil Procedure Act 2005 (NSW)
Practice Note No SC Gen 18
Practice Note SC Eq 7
Probate and Administration Act 1898 (NSW)
Property (Relationships) Act 1984 (NSW)
Succession Amendment (Family Provision) Act 2008 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)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
Aubrey v Kain [2014] NSWSC 15
Bartlett v Coomber [2008] NSWCA 100
Baychek v Baychek [2010] NSWSC 987
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Buckland Deceased, Re [1966] VR 404
Butcher v Craig [2009] WASC 164
Cameron v Cameron [2009] SASC 27
Christie v Manera [2006] WASC 287
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 9 ALR 93; (1976) 50 ALJR 539
Crossman v Riedel [2004] ACTSC 127
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Flathaug v Weaver [2003] NZFLR 730
Foley v Ellis [2008] NSWSC 288
Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep)
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Grey v Harrison [1997] 2 VR 359
Hampson v Hampson [2010] NSWCA 359
Harrisson v Skinner [2013] NSWSC 736
Hawkins v Prestage (1989) 1 WAR 37
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 (Deceased); Allen v Manchester [1922] NZLR 218
In the Estate of the late Anthony Marras [2014] NSWSC 915
Janette Susan Gardiner v Raymond James Gardiner as Administrator of the Estate of the Late Dulcie Eva Gardiner [2014] NSWSC 435
Kay v Archbold [2008] NSWSC 254
Kembrey v Cuskelly [2008] NSWSC 262
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Luciano v Rosenblum (1985) 2 NSWLR 65
MacGregor v MacGregor [2003] WASC 169
Marks v Marks [2003] WASCA 297
Mayfield v Lloyd-Williams [2004] NSWSC 419
McCosker v McCosker [1957] HCA 82; 97 CLR 566
McGrath v Eves [2005] NSWSC 1006
Morris v Smoel [2014] VSC 32
Neale v Neale [2013] NSWSC 983
Palaganio v Mankarios [2013] NSWSC 61
Phillips v James [2014] NSWCA 4
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Pogorelic v Banovich [2007] WASC 45
Puckridge, Deceased, In the Estate of (1978) 20 SASR 72
Re Bull [2006] VSC 113
Re Coventry (Deceased) [1979] 3 All ER 815
Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473
Dion Giuseppi Sergi by next friend Aileen Solowiej v Sergi [2012] WASC 18
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 (Supreme Court (NSW), Macready M, 16 December 1996, unrep)
Stott v Cook (1960) 33 ALJR 447
Szypica v O'Beirne [2013] NSWSC 297
Taylor v Farrugia [2009] NSWSC 801
Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 75
Verzar v Verzar [2012] NSWSC 1380
Verzar v Verzar [2014] NSWCA 45
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep)
West v Mann [2013] NSWSC 1852
Wheat v Wisbey [2013] NSWSC 537
White v Barron
White and Tulloch v White (1995) 19 Fam LR 696Texts Cited: J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths)
Rosalind Atherton, 'The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?' (1999) 5 Australian Journal of Legal History 5Category: Principal judgment Parties: Mark Andrew Jones (first Plaintiff)
Martin Conrad Jones (second Plaintiff)
Antony Donald Jones (Defendant)Representation: Counsel:
Mrs M Bridger (Plaintiffs)
Mr M Lawson (Defendant)
Solicitors:
Williamson Isabella (Plaintiffs)
McNamara & Associates (Defendant)
File Number(s): 2013/226032
Judgment
The Claims
HIS HONOUR: These reasons relate to proceedings in which a family provision order pursuant to the Succession Act2006 (NSW) ("the Act") is sought by two Plaintiffs, Mark Andrew Jones and Martin Conrad Jones, out of the estate of their mother, Yvonne Jones ("the deceased"). A family provision order is an order made by the court in relation to the estate, or notional estate, of a deceased person, to provide from that estate and/or notional estate, for the maintenance, education, or advancement in life, of an eligible person. (In fact, in this case, there is no property that may be designated as notional estate.) 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 Act1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009.
The proceedings were commenced by one Summons filed on 25 July 2013, within the time prescribed by the Act (within 12 months of the deceased's death).
The Defendant named in the proceedings is Antony Donald Jones, who is also a son of the deceased. He was appointed, in the last Will of the deceased, as the executor. However, no grant of administration in respect of the deceased's Will has been made.
The Plaintiffs did not seek to amend the Summons, to seek an additional order under s 91 of the Act (an order for a grant of administration in respect of the estate of the deceased to the applicant(s) for the purposes only of permitting the application concerned to be dealt with), although the matter was raised at the commencement of the hearing. However, the Defendant indicated that, if the court were satisfied that such an order should be made, he did not oppose the making of an order that enabled the Plaintiff's application to be dealt with. I shall return to this aspect later in these reasons.
The following form of orders was necessary, in any event, and was made, since it was clear that a deceased person's estate had an interest in the proceedings, but was not represented:
"Order, pursuant to Uniform Civil Procedure Rules 2005 (NSW) ('UCPR'), rule 7.10(2)(b), that the Defendant be appointed to represent the deceased's estate and notional estate for the purposes of these proceedings.
Any order subsequently entered or made in the proceedings binds the deceased person's estate to the same extent as the estate would have been bound had a personal representative of the deceased person been the Defendant in the proceedings."
Without intending to convey undue familiarity, with no disrespect intended, for convenience, and for clarity, I shall refer, hereafter, to the parties and family members, after introduction, by his, or her, given name or by the role he plays in the proceedings.
The hearing proceeded with the reading of the affidavit evidence filed. There were only a few objections to parts of the affidavits that needed to be ruled upon. The cross-examination of each of the Plaintiffs and of the Defendant then occurred. Two other deponents, whose affidavits were read, were asked some questions on eligibility and were cross-examined, but extremely briefly. Finally, counsel made oral submissions in support of the written submissions, which are retained in the court file. The estimated duration of the hearing was one day, and the proceedings were concluded within that time.
Formal Matters
I shall commence by outlining the following facts that are uncontroversial.
The deceased died on 26 July 2012. She was then aged 63 years having been born in 1949.
The deceased was married to the father of the parties, Gwynfor Jones, on a date not disclosed in the evidence. There were four children of the marriage, namely Mark, Martin, Karina Patricia Jones, and Antony.
The deceased and her husband separated and, subsequently, in about 1980, a divorce order was made. No evidence was given concerning whether the deceased and her husband had a property settlement at, or about, the time of the dissolution of their marriage.
The deceased left a Will that she made on 19 July 2012 ("the Will"). The Will provided for a pecuniary legacy of $20,000 to each of Mark, Martin, and Karina. The residue of the estate was divided equally between Antony and two of the grandchildren of the deceased, namely Nakia Misty Sarah Camelia Jones and Ashley Dean Jones, each of whom is a child (now adult) of Karina.
Antony gave evidence that he had been unable to finalise the administration of the estate because he was not in a position "to pay the solicitor's bill". He added, in answers to questions from the Bench, that he had found it "very hard" to deal with the deceased's death and the administration of the deceased's estate. He acknowledged that he appreciated that, now, "this must be done". He said, and I accept, that, although it will be hard for him to do so, he realises Probate must be obtained and the estate property sold, debts, funeral and testamentary expenses paid, and the net proceeds of sale distributed.
Apparently, Antony's current solicitors may agree to act for him in obtaining Probate, even though the costs and disbursements thereof may only be payable once Probate is granted and the estate property is sold. Undoubtedly, it would be of benefit to the parties and the other beneficiaries if this were to occur.
I have dealt with the requirement for a grant of administration to be made in order to deal with an application for a family provision order in Wheat v Wisbey [2013] NSWSC 537, at [29] - [60]. I shall not repeat what I said in that case.
The parties submitted, and I accept, that, in the circumstances of this case, it is necessary for an order for administration to be made. The court should be satisfied that it is proper for the following orders to be made:
"Pursuant to s 91 Succession Act 2006 (NSW), that administration in respect of the estate and notional estate of the deceased, Yvonne Jones, be granted to each of the Plaintiffs, for the purposes only of permitting his application for a family provision order to be dealt with.
Orders that compliance with the Court Rules in relation to the preceding order be dispensed with."
I propose to make each of these orders.
(I should mention that s 91 permits an order for administration to be made "in respect of the estate of the deceased person ... to the applicant for the purposes only of permitting the application concerned to be dealt with". I consider that the application referred to is the application for a family provision order, rather than the application for the grant. It would be more practical and expedient if the Act provided for the grant to be made "to any suitable person". This would enable, in a case such as this, involving a grant made for the purposes only of permitting the application concerned to be dealt with, for the grant to be made to the Defendant. In a case where there was only notional estate, the court could make the grant to the holder of the property that the Plaintiff seeks to be designated as notional estate since that person is, usually, a party to the proceedings. In my view, the Act should be amended accordingly.)
Although there is no Inventory of Property disclosed to the court under s 81A of the Probate and Administration Act 1898 (NSW), in an affidavit sworn 22 October 2013, Antony stated that the property owned solely by the deceased at the date of her death, had an estimated (or known) gross value of $283,000. The deceased's actual estate was said to consist of real estate at Ulladulla ($280,000) ("the Ulladulla property"), a motor vehicle ($800), household contents and personal effects ($2,500) and money in bank ($51). (I have omitted, and shall continue to omit, any reference to cents, which explains what may appear to be minor mathematical errors.)
In the same affidavit, Antony stated that there are estate liabilities of $16,931, being council rates ($6,711), water accounts ($4,435), electricity accounts ($347), a telephone account ($170), and what are described as "testamentary expenses", being funeral and cremation costs, paid by Gwynfor ($5,266), which costs are to be repaid to him. These liabilities have not yet been paid, as there have been no available funds in the deceased's estate. They must be paid out of the proceeds of sale of the Ulladulla property.
The parties agreed, also, that there are likely to be costs of obtaining Probate and associated administration expenses ($4,682).
The Ulladulla property is described in the evidence as a single level brick veneer home with a land size of 648 square metres. It is said to be "in poor condition". It has three bedrooms, an open plan lounge and dining room, with a small kitchen. There is also a bathroom with a bath and shower, a separate toilet, internal laundry, carport and fenced yard. It needs maintenance, such as painting and new carpets. The cook top and oven need replacing, as does the vanity in the bathroom.
At the commencement of the hearing, the parties agreed that the estimated current gross value of the Ulladulla property is $267,000. They also agreed that, when the Ulladulla property was sold, there would be costs and expenses of sale, including agent's commission, advertising and associated expenses, and legal costs (in total, $7,500), which are testamentary, or administration, expenses.
The parties also agreed that the estimated current value of the motor vehicle, which is presently unregistered, is $600.
It was also agreed, by the parties, that the legacy of $20,000 to Karina should not bear the burden of the provision, if any, made for either Plaintiff.
In the event that provision is made for one, or both, of the Plaintiffs, I raised with the parties the possibility that the Ulladulla property could sell for more, or for less, than the agreed estimated gross value, with the result that some, or other, of the beneficiaries, might be detrimentally affected by its actual sale price if a family provision order by way of lump sum were made. I suggested that it would be prudent, in the event that either Plaintiff was, or both Plaintiffs were, successful, to provide him with a percentage of the net proceeds of sale (which phrase could be defined). Such additional orders as are considered necessary to adjust the interests of any person affected by the family provision order and to be just and equitable to all persons affected by the order (the residuary beneficiaries) may then be made. Consequently, all of the beneficiaries would benefit if the Ulladulla property were sold for a greater price than had been estimated, or all would be detrimentally affected if it sold for less.
After obtaining instructions, each of the parties stated, through their, or his, counsel, respectively, that any lump sum to be paid, whether absolutely or otherwise, should be calculated by reference to a percentage of the actual net proceeds of sale. An order should be made in lieu of the provision made for each in the Will of the deceased and adjustment orders could also be made. I am prepared to follow this course.
In calculating the value of the actual estate, finally available for distribution, the costs of the present proceedings should also be considered, since the Plaintiffs, if successful, normally, will be entitled to an order that their costs and disbursements, calculated on the ordinary basis, be paid, whilst the Defendant, as the person representing the estate in the proceedings, irrespective of the outcome of the proceedings, normally, will be entitled to an order that his costs, calculated on the indemnity basis, be paid out of the estate of the deceased.
The Plaintiffs' solicitor, Mr J Isabella, in an affidavit sworn on 23 May 2014, estimated their costs and disbursements of the proceedings, including counsel's fees, calculated on the ordinary basis, to be about $46,500 (inclusive of GST and upon the basis of a one day hearing).
I shall refer, later in these reasons, to Practice Note SC Eq 7 and the general rules on costs in an estate with a value of less than $500,000. (The Defendant had made submissions to the effect that the costs and disbursements of the Plaintiffs, in the event that one or both are successful, should be capped.)
During the submissions, counsel for the Plaintiffs informed me that her instructing solicitor had agreed to cap the Plaintiffs' costs and disbursements at $40,000 and that they would not be charged any additional amount. In all the circumstances, and bearing in mind the size of the estate, that was an appropriate, yet generous, gesture made by their legal representatives.
The Defendant's counsel then informed me that it was agreed that, in the event the Plaintiffs succeeded, those costs, capped at the amount of $40,000, should be paid out of the deceased's estate.
The Defendant's solicitor, Ms R A Ferguson, in an affidavit sworn on 16 June 2014, estimated his costs and disbursements, including counsel's fees, calculated on the indemnity basis, to be about $19,527 (inclusive of GST and upon the basis of a one day hearing). It was agreed that, whatever the result of the case, those costs and disbursements should be paid out of the deceased's estate.
It can be seen that, if the sale proceeds are $267,000, and the car has a value of $600, the gross estate has an estimated value of $267,600. There must be deducted the costs and expenses of sale ($7,500); the costs and expenses of obtaining Probate ($4,682); the debts, funeral and testamentary expenses ($16,931); the legacy to Karina ($20,000) and the total costs and disbursements of the parties ($59,527). This leaves an estimated amount of about $158,960 available, from which any order in favour of each Plaintiff may be made. The parties agreed that it was this amount that could be used as a guide in determining each Plaintiff's claim for a family provision order.
The parties agreed that the only eligible persons who have commenced proceedings under the Act are Mark and Martin. Of course, each of Antony and Karina, as a child of the deceased, is also an eligible person, but neither has commenced proceedings. However, as each is a beneficiary named in the Will, the court will not disregard his and her interests. (Since Karina will receive the pecuniary legacy to which she is entitled under the Will, it is unnecessary to consider her position in any detail.)
Nakia, a grandchild of the deceased, lived with the deceased from when she was in year 5 until she completed her Higher School Certificate, a period of 10 years. When the question whether she was an eligible person was raised, counsel for the Defendant sought leave ask Nakia some questions about her "dependency" upon the deceased. Having heard that evidence, I am satisfied that she was partly dependent upon the deceased and, therefore, is an eligible person.
Ashley, a grandchild of the deceased, lived with the deceased from when he was 9 until he was 18 years of age, and then again for two years subsequently. He says nothing else about that period in which he was living with the deceased. When the question whether he was an eligible person was raised, counsel for the Defendant sought leave ask Ashley some questions about his dependency upon the deceased. Having heard that evidence, I am satisfied that he, too, was partly dependent upon the deceased and, therefore, is an eligible person.
Even if I were wrong in reaching that conclusion, as each is a beneficiary named in the Will, the court will not disregard her, and his, interests. Each has sworn an affidavit that has been read in the proceedings. Neither was cross-examined on its contents.
Later in these reasons, I shall refer to the claim of each of the residuary beneficiaries as a competing claimant.
Gwynfor, as a former spouse of the deceased is also an eligible person. There was no evidence that he had been served with a notice of the Plaintiffs' application, and of the court's power to disregard any interest that he may have, in the manner and form prescribed by the regulations or rules of court. However, Antony gave oral evidence that Gwynfor was aware of the Plaintiffs' application and that he had told Antony that he did not intend to make any application for provision out of the estate of the deceased. I accept this evidence.
In any event, bearing in mind the date of the dissolution of the marriage, I am satisfied that service of any such notice is unnecessary in the circumstances of the case. I propose to disregard his interest as a person by, or in respect of whom, an application for a family provision order may be made but who has not made an application.
The Statutory Scheme - The Act
Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out most 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 equally important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in the application.
The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008 (NSW). A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers, upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased'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.
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. There is no dispute that these proceedings were commenced within time.
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, in this case, Mark and Martin each relies upon the category of eligibility referred to in s 57(1)(c) of the Act, namely that he is a child of the deceased. The language of the relevant section is expressive of the person's status, as well as his relationship to the deceased. There is no age limit placed on a child making an application. There is no dispute that each is an eligible person and, therefore, has the standing to bring the present proceedings.
Relevantly to this case, it is only if eligibility is found, that the court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is this mandatory legislative imperative that drives the ultimate result and it is only if the court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). Only then may "the Court ... make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made".
Allsop P, in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, commented, at [6]:
"... the expression of the task in s 59 is subtly different from the previous legislation. A prohibition against making an order unless satisfied of circumstances of an evaluative character, is different in emphasis from a permission to make an order if satisfied of circumstances of an evaluative character... The exercise of power to make the order is conditioned on the Court being satisfied of certain things in s 59(1). The order that may be made is described in s 59(2). The two elements are described in s 60(1)(b) as 'whether to make [an] ... order and the nature of any ... order.' Section 60(2) provides a detailed body of considerations for the task in s 59."
Basten JA, at [26], put the differences this way:
"As appears from the language of the relevant provisions set out at [66]-[67] below, the Succession Act differs from the Family Provision Act in three significant respects. First, although both conferred similar powers on the Court, the conditions of their exercise differ. The Family Provision Act required that the Court 'shall not make an order ... unless it is satisfied that' the provision made by the testator is 'inadequate': s 9(2). The Succession Act provides that the Court 'may ... make a family provision order ... if the Court is satisfied that' the testator has not made 'adequate provision' for the applicant: s 59(1). The changes in language may have been intended to remove double negatives, but there is a resultant change in emphasis. The apparent effect is to widen the discretion vested in the court. That which could satisfy a court that the provision made is 'not adequate', for the purposes of the Succession Act, might not have been sufficient to remove the prohibition under the Family Provision Act, which operated in the absence of affirmative satisfaction that the provision was 'inadequate'. There may well be no bright line boundary between adequacy and inadequacy."
Barrett JA, at [82] - [86], said:
"The court's task under the new legislation is in substance the same as that under the old. Three differences relevant to the kind of case under discussion may, however, be noted (I leave to one side as irrelevant to such cases the extension of the s 60(2) criteria to the question of 'eligible person' status); and two postulated differences may be rejected.
First, the Succession Act provisions direct attention, upon the initial inquiry into adequacy, to provision made by the deceased's will and the intestacy laws. The former legislation referred merely to provision 'out of the estate' but it was clear that the operation of the intestacy laws was to be taken into account in deciding what provision was available 'out of the estate': see, for example, Smilek v Public Trustee [2008] NSWCA 190.
Second, the Succession Act provisions confine attention, upon that initial inquiry, to provision made by the will and the intestacy laws. There is no reference to provision made during the deceased's lifetime. In this respect, there is a departure from the Family Provision Act approach under which provision made in favour of the eligible person 'either during the person's lifetime or out of the person's estate' was to be examined upon the initial inquiry into adequacy.
Attention may, however, still be given to provision made in favour of the applicant during the deceased's lifetime. That is now one of the factors to which regard may be had under s 60(1)(b) when the court is deciding whether to make a family provision order and the nature of the order: see s 60(2)(i). Under the Succession Act, therefore, provision made by the deceased while living thus has a continuing relevance with altered emphasis. Such provision is no longer something to be taken into account in deciding whether adequate provision has been made; but it may be taken into account in deciding whether an order should be made and the nature of the order.
The third difference to be noted is the Succession Act's more comprehensive catalogue of matters that may be taken into account in formulating an order for provision. Section 9(3) of the Family Provision Act empowered the court to 'take into consideration' matters there stated in 'determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person'. Section 60(1)(b) of the Succession Act allows the court to 'have regard to' the matters set out in s 60(2) 'for the purpose of determining ... whether to make a family provision order and the nature of any such order'. The Succession Act lists a greater number of such matters than did the Family Provision Act."
Other than by reference to the provision made in the Will of the deceased, or, if relevant, by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) of the Act leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for the applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the court to the provision actually made in the deceased's Will, or on intestacy, or both, on the one hand, and to the requirement for maintenance, education and advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant.
In Grey v Harrison [1997] 2 VR 359, at 366-367, Callaway JA observed:
"There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."
It was said in the Court of Appeal (by Basten JA), in Foley v Ellis [2008] NSWCA 288, at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J has described it as "an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific": Szypica v O'Beirne [2013] NSWSC 297, at [40].
Under s 59(1)(c) of the Act, the time at which the court gives its consideration to the question of inadequacy of provision is the time when the court is considering the application.
"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89, 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.
The term "maintenance" usually refers to a provision for the supply of the necessaries of life. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement":
"'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education."
In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), at [18], stated:
"'Proper maintenance' is not limited to the bare sustenance of a claimant [cf Gorton v Parkes (sic) [1989] 17 NSWLR 1], but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility."
In J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths), at 542, the learned authors comment upon the difference between the concepts of maintenance and advancement:
"The essential difference between 'maintenance' and 'advancement' is that 'maintenance' denotes a periodical payment or a payment which could validly be made periodically, whereas 'advancement' denotes a definite unique outlay for a specific purpose. Recipients of maintenance must, practically speaking, be infants, but adults may be recipients of an advancement.
An advancement can never be made of a sum of money which the person to whom it is made can immediately pocket, but it must be made with a view to the establishment of that person in a business or profession, or otherwise in some definite way for that person's benefit, the whole essence of an advancement being the immediate payment of a tolerably large sum for an immediate benefit to one beneficiary."
In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77, King CJ said:
"The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang (1960) 104 CLR 124, per Dixon CJ at 128."
Master Macready (as his Honour then was) in Stiles v Joseph (Supreme Court (NSW), Macready M, 16 December 1996, unrep) 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)."
In McCoskerv McCosker [1957] HCA 82; (1957) 97 CLR 566, Dixon CJ and Williams J stated, at 575:
"The presence of the words 'advancement in life' in the ... Act in addition to the words 'maintenance and education' is not unimportant. ... 'Advancement' is a word of wide import."
The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton, 'The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?' (1999) 5 Australian Journal of Legal History 5, at 10, as "an objective, economic test", 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], which seems to invite more subjective criteria.
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."
Their Lordships went on to state (at 478):
"The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the Court were concerned merely with adequacy. But the Court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration."
Dixon CJ and Williams J, in McCosker v McCosker, at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that:
"It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."
In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Gibbs J said, at 502:
"[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."
In Vigolo v Bostin, at 228, Callinan and Heydon JJ said:
"[T]he use of the word 'proper' ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."
Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), that "adequate" and "proper" are independent concepts. He said, at 12:
"'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied ..."
In Palaganio v Mankarios [2011] NSWSC 61, at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life involve value judgments on which minds can legitimately differ, and there are no definite criteria by which the question can be answered.
His Honour added, in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522, at [123]:
"The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case 'including the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty' (Singer v Berghouse (1994) 181 CLR 201 at 210)."
Until recently, it was unanimously thought that there are two stages of the determination. The first stage, provided for by s 59(1)(c), has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. The court does this by determining whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased and/or by operation of the intestacy rules, for the applicant. If it is not so satisfied, then the court is precluded from making a family provision order. At this stage, the court has regard to, among other things, the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased and the circumstances and needs of the other beneficiaries or potential beneficiaries: see McCosker v McCosker, at 571-572; Singer v Berghouse, at 209-210; Vigolo v Bostin, at [16], [75], [112]; Tobin v Ezekiel [2012] NSWCA 285, at [70]; Verzar v Verzar [2014] NSWCA 45, at [39].
Whether an applicant has a 'need' or 'needs' is also a relevant factor at the first stage of the enquiry. It is an elusive concept to define, yet, it is an element in determining whether "adequate" provision has been made for the "proper" maintenance, education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 (Tobias JA, with whom Beazley and Hodgson JJA agreed).
In Collins v McGain, Tobias JA said:
"42. Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies.
...
47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is 'proper maintenance etc' of the eligible person. It is because of that context that, in the present case, the 'proper maintenance etc' of the appellant required consideration of a need to guard against the contingency to which I have referred."
In Devereaux-Warnes v Hall (No 3), at [81] - [84], Buss JA said, in respect of the first stage of the process:
"The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227.
'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11.
The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575.
Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]."
"Need", of course, is a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]. White J has recently written in Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473, at [147], that "the need a claimant must demonstrate is a need for 'proper' maintenance, education and advancement in life", but that does not mean that "adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others".
As Callinan and Heydon JJ emphasised in Vigolo v Bostin, the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum" or "by looking simply to the question whether the applicant has enough on which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined.
In the event that the court is satisfied that the power to make an order is enlivened (i.e. in this case it is satisfied that the applicants are eligible persons, and that adequate provision for their proper maintenance, education or advancement in life has not been made), then, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made.
The second stage of the process arises under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.
However, Basten JA, in Andrew v Andrew, said of the two stage process referred to:
"29 The combination of changes requires that the court address the nature of the exercise being undertaken. Three potential consequences may be identified. First, there is a simplification of the structure of the process. There is no longer a two-stage process required. A degree of artificiality has thus been removed. The court should now ask what, taking all relevant factors into account, would have been adequate provision for the applicant. There is no first stage of determining whether the actual provision was 'inadequate', followed by a discretionary exercise of determining what would be adequate and what should in fact be done.
...
41 As noted above, the language of the Succession Act is not consistent with the two-stage inquiry which was a common feature of earlier legislation: cf Singer v Berghouse at 208-209. In Keep v Bourke [2012] NSWCA 64 the Court appears to have assumed that the two-stage process continued to operate under the Succession Act: at [24]-[29]. However, the issue not having been directly addressed, there is no constraint on this Court now adopting a different approach. Nor does earlier High Court authority construing an earlier statutory scheme govern the approach to be adopted to materially different legislative provisions."
In Andrew v Andrew, Allsop P, at [6], said:
"Whether the process engaged in by the Court in s 59 can still be described as 'two-staged' in the sense discussed in Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 208-211 may be an analytical question of little consequence. The task involves an evaluative assessment and a choice as to consequence therefrom, appeal from which is governed by the principles concerning discretionary judgments: Singer v Berghouse at 211 and DAO v R [2011] NSWCCA 63; 278 ALR 765 at [93]."
Barrett JA disagreed with Basten JA, in Andrew v Andrew, saying:
"65 This is the second occasion on which this Court has been called upon to deal with a claim under s 59 of the Succession Act. In the earlier case, Keep v Bourke [2012] NSWCA 64, the Court proceeded on the basis that approaches taken under s 7 of the now superseded Family Provision Act1982 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."
I have dealt with the question that has been raised in other cases whether the two-stage approach identified in Singer v Berghouse continues to apply to the provisions of the Act in other cases, the most recent of which is Aubrey v Kain [2014] NSWSC 15. I remain of the view that the two-stage approach should continue to apply. I shall not repeat what I said in that case, which is not affected by the recent decision of the Court of Appeal in Phillips v James [2014] NSWCA 4, or its decision of Verzar v Verzar [2014] NSWCA 45.
(Since I delivered my reasons in Aubrey v Kain, Robb J has also considered the topic in Janette Susan Gardiner v Raymond James Gardiner as Administrator of the Estate of the Late Dulcie Eva Gardiner [2014] NSWSC 435. I respectfully adopt his Honour's reasoning, set out at [117] - [120], and [124], as to the persuasiveness of the reasoning of Barrett JA in Andrew v Andrew. I also refer to what has been written by Bergin CJ in Eq in In the Estate of the late Anthony Marras [2014] NSWSC 915 at [15].)
Ultimately, as Allsop P said in Andrew v Andrew, at [6], "it may be an analytical question of little consequence" since 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 has not been made), and if so, whether it should (whether to make an order and, if so, the terms of that order).
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 [2012] NSWSC 1380, at [123], as "a valuable prompt" to which the court may have regard, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order.
It was 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.
In West v Mann [2013] NSWSC 1852, Kunc J at [12], wrote:
"Section 60(2) provides a helpful checklist but it is no more than that. The Court is not obliged to take those matters into account. The extent to which it does (if at all) will depend upon the facts of each particular case.
Section 60(2)(p) confirms the breadth of matters the Court can take into account. Once enlivened, the Discretion is expressly fettered only by the requirement in s 59(2) that if an order is made, it must be such order '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'".
Beazley P, in Phillips v James, at [51], described s 60(2) as involving:
"... a statutory iteration of matters that had always been considered relevant in the determination of claims for provision by persons claiming an entitlement under a testator's will. However, as Basten JA observed in Andrew v Andrew, the factors identified in s 60(2) provide a more focussed direction to the Court as to relevant matters to which regard may be had. His Honour was of the view that the statutory list invites consideration of a broader range of factors than was previously the case. Whether or not that is so, the important matter is that the Court is required to have regard to the circumstances, including those specified in s 60(2), that it considers relevant in determining whether to make an order for family provision and the nature of any such order."
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.
Section 60(2)(d) refers to "earning capacity", which means no more than the capacity to find employment to earn or derive income.
A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).
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. 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."
As was also pointed out by Barrett JA, in Andrew v Andrew, at [88] - [89]:
"... leaving aside its relevance to the 'eligible person' inquiry, the s 60(2) catalogue is directed to the question of what, if any, order for provision should be made and is not, in terms, applied to the initial question of the adequacy of the provision made by the will or the intestacy laws.
It can be said at once that the s 60(1)(b) directive corresponds with that in the former s 9(3) to the extent that it relates to the decision regarding provision to be made. There is no express legislative intention, under either piece of legislation, that the enumerated factors are to be taken into account in deciding the initial question of adequacy of provision. There is accordingly no reason to think that those factors are to be afforded any special relevance in approaching the adequacy question. But they will, at that point, be given, independently of s 60(1)(b), such weight as they deserve in their own right as indicators of the 'adequacy' question. As the primary judge recognised at [57], this is consistent with what was said by the High Court in Singer v Berghouse in relation to the former Act."
As Beazley P confirmed in Phillips v James, at [49] and [53], "there may not be a strict or bright line division between each stage of the process".
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 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 takes 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). (Intestacy is irrelevant in these proceedings.)
Thus, the practical effect of an order is to alter the provisions of a deceased person's will, or the distribution of an estate according to the intestacy provisions of the Act.
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.
Practice Note SC Eq 7, which applies to claims for a family provision order, currently provides, in Clause 24, that "[o]rders 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". (Of course, this is only one basis upon which costs may be capped. See, for example, s 98 of the Civil Procedure Act 2005 (NSW). Also, see Baychek v Baychek [2010] NSWSC 987. Also see, Dion Giuseppi Sergi by next friend Aileen Solowiej v Sergi [2012] WASC 18, per E M Heenan J at [50] - [52].
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) 9 ALR 93; (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". Thus, testamentary freedom is not absolute.
White J referred to these principles in Slack v Rogan; Palffy 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."
Gleeson CJ observed in Vigolo v Bostin, at 199, that the justification for interference with freedom of testation is to be found in the failure of a deceased to meet the obligations, which the community would expect in terms of maintenance, for those persons within the class of eligible persons. The process requires the court to "connect the general but value-laden language of the statute to the community standards".
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 (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.
As Allsop P said in Andrew v Andrew, at [16]:
"If I may respectfully paraphrase Sheller JA [in Permanent Trustee Co Limited v Fraser (1995) 36 NSWLR 24 at 46F-47B], the Court in assessing the matter at s 59(1) and the order that should be made under s 59(1) and (2), should be guided and assisted by considering what provision, in accordance with prevailing community standards of what is right and appropriate, ought to be made. This, Sheller JA said ... involved speaking for the feeling and judgment of fair and reasonable members of the community. It is to be emphasised that s 59(1)(c) and s 59(2) refer to the time when the Court is considering [an application for a family provision order] and the facts then known to the Court. The evaluative assessment is to be undertaken assuming full knowledge and appreciation of all the circumstances of the case. This ... makes the notion of compliance by the testator with a moral duty (on what he or she knew) apt to distract from the statutory task of the Court."
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. The use of the word 'proper' requires consideration to be given to more than satisfying the basic needs of an applicant. The standard of living of an applicant during the lifetime of the deceased is relevant, but the fact that an applicant has lived frugally, or that he or she, has become accustomed to a life of relative penury, does not mean that the deceased's obligation under the Act is satisfied so long as the applicant can continue in that state: Pogorelic v Banovich [2007] WASC 45, at [62]; Butcher v Craig [2009] WASC 164, at [21].
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 (Deceased); Allen v Manchester [1922] NZLR 218, at 221:
He gave no evidence, in his affidavit, of how the expenditure, which is significantly more than their disclosed income, is met. However, when he was cross-examined, he said that he "robbed Peter to pay Paul" and that, when necessary, he and Genevieve would not pay one expense in order to enable them to pay another.
In re-examination, he identified, on a bank statement that had been tendered (Ex. P3), relating to Genevieve's home loan, that there was a debit showing the payment of an electricity account. It was put that this corroborated his evidence about their financial difficulties. I accept this evidence.
Mark gave evidence that he currently owns no assets, save for furniture jointly owned with Genevieve and a tow truck. No value was attributed to that furniture. The truck was said to be worth $6,000 in August 2013. As at 22 May 2014, it is said to be "unregistered with bald tyres".
Later, I shall refer to an amount that Mark received following a work accident as well as amounts he has received, by way of compensation, in respect of the injuries he suffered.
The home in which Mark resides is said to have a value of approximately $220,000. However, in his affidavit, Mark asserted that Genevieve owed $221,000 to Westpac Bank, secured on that home. At the hearing, Ex. P3 revealed that the amount outstanding, as at 1 April 2014, was $213,960 and that, as at 23 April 2014, an additional $302 had not been paid, as required.
Mark does not otherwise disclose any liabilities.
Counsel for the Defendant conceded that such investigations as had been carried out, did not reveal any financial information that would cause the court to doubt that what Mark had said about his financial and material circumstances was, generally, accurate.
Martin lives with his de facto partner, Sonia, and their three children, Mia (aged 2) Samuel (aged 1), and a newborn third child. (Martin has two other children, from previous relationships, aged 24 years and 8 years, respectively. However, they do not reside with him.) The home is co-owned by Sonia and her two siblings.
Subject to what is outlined below, Martin says that his finances are "kept separate and apart" from Sonia's. (This is probably not entirely accurate since he also said that he gives the whole of the amount he receives by way of unemployment benefits to Sonia and that "she uses that to bring up the children and pay the rent and other household expenses".)
Martin is currently unemployed, although he is registered with a job network provider in Bowral. Also, Martin has recently re-obtained his driver's licence and is "hopeful" that this may improve his prospects for future employment.
He currently receives Newstart unemployment benefits in the order of $394 per fortnight.
I am satisfied that Martin has an earning capacity.
Martin says that he does not have any assets and that he has "no significant savings". His bank statement, at February 2014, showed a balance of just over $1.
There is little doubt that the joint income of Martin and Sonia is used entirely in day-to-day living expenses. Martin estimated the monthly household expenditure to be $2,790. Whilst he was cross-examined about these expenses, I am satisfied that his financial and material circumstances are dire.
Martin has liabilities in the order of $14,590 comprising an AGL energy bill ($840), a Centrelink debt ($5,050), an amount outstanding in relation to a motor vehicle accident ($1,700), court fines and damages ($6,000) and unpaid child support payments ($1,000).
Counsel for the Defendant conceded that such investigations as had been carried out, did not reveal any financial information that would cause the court to doubt that what Martin had said about his financial and material circumstances was, generally, accurate.
Nakia, who is aged 22 years, is in the second year of a Bachelor of Arts degree at Wollongong University. She has savings ($30), household contents ($500) and an unregistered car ($500). She has a Centrelink debt of $500. She currently receives a Centrelink Austudy allowance of $125 per week. She is about to start working casually at a call centre for a Wollongong real estate agent. I am satisfied that she has an earning capacity.
She gives evidence that her expenditure exceeds her income.
Ashley, who is aged 25 years, works on a permanent part-time basis as a sales clerk. He has a de facto partner who is a stay-at-home mother to their two children, aged 2 and almost 4 years of age. He has savings ($1,000), household contents ($2,000) and a car ($2,000). He has a credit card debt of just over $1,000. His net weekly wage is approximately $500. I am satisfied that he has an earning capacity.
Antony lives with his wife, Sharron, his daughter, from a previous relationship, Katie (aged 15), and his stepson, Daniel (aged 21).
Antony disclosed assets totalling $10,939, comprising:
Money in bank
$ 266
Flight Centre Account
$1,900
1995 Commodore
$2,000
Household contents and personal effects
$2,000
1987 Toyota Camry (belonging to Sharron)
$1,800
Superannuation
$2,973
He has a liability of $11,110 owing on a Commonwealth Bank Mastercard.
Antony is employed on a casual basis as a kitchen hand at a golf club, working 10 to 15 hours per week. Antony says that he receives approximately $180 per week, supplemented by $520 Newstart Allowance.
During cross-examination, Antony gave evidence that he previously worked building, servicing and repairing, computers. He did this through his own business, first, from premises in Ulladulla and, then, in a mobile capacity, visiting clients at their homes and businesses. Antony ceased operating the computer business in 2011. It was put to him, during cross-examination, that, by virtue of his experience with computers (seven to eight years), he has the capacity to obtain work of this type and earn a higher income than he currently does. Antony says that he had "lost the motivation" to work in this area after the death of the deceased but accepted that he "could become motivated again" and that he is "actually looking for more work".
It was also put to Antony, during cross-examination, that, if he wished, he could do more work at the golf club. However, he said that the work available was "seasonal" and that the amount of shifts he works depends on whether or not it is holiday season.
Antony said, in answer to a question from the Bench about his future employment prospects, that he is currently looking for work, giving résumés to possible employers and applying with job networks. He says "[i]t is very hard to find work down in Ulladulla ... It is very selective." He says that his current job at the golf club "is the only job [he] could find at the time".
Counsel for the Plaintiffs also put to Antony that his non-disclosure of tax returns for 2011 and 2012 was a result of his attempting to withhold information about supplementary income derived from continued work with computers on a cash-in-hand basis. This was denied by Antony.
I accept that Antony has a continuing earning capacity.
Antony disclosed the expenditure of his household to be between $900 and $1,000 per week.
(e) if the applicant is cohabiting with another person-the financial circumstances of the other person
Until October 2013, Mark's de facto partner, Genevieve, worked on a full-time basis with the Department of Fisheries, earning a net income of $2,006 per month. In October 2013, she began her maternity leave. Her six month period of leave expired on 10 April 2014. Mark gave evidence that Genevieve was to receive "half pay" during that period.
Since April 2014, Genevieve has not returned to work. She intends to do so in October 2014. She currently receives Centrelink Parental Leave Allowance in the sum of $4,488 per month.
Jason works full-time as a sub-contracted labourer at Albatross Naval Base, Jervis Bay. No evidence was provided regarding his income. Mark says that Jason "does not pay any board or contribute to the household and maintenance expenses for the house or the family". He said, in answer to a question from the bench, that Genevieve holds the view that Jason should not contribute to household expenditure.
Martin's de facto partner, Sonia, previously worked part-time and earned $181 net per week. As stated, she gave birth to their third child shortly before the hearing. Sonia also receives approximately $510 per fortnight in Centrelink benefits. Martin gave evidence that the birth of their third child has resulted in an increase in the government benefits to which Sonia is entitled.
Martin says that he is "not aware of Sonia's assets" but gave evidence of assets in the order of $24,575, comprising household and personal effects ($20,000), shares ($1,575) and a motor vehicle ($3,000).
Martin says that to the best of his knowledge, Sonia's debts total approximately $1,912.
Antony's wife, Sharron, has liabilities of $62,830. During cross-examination, Antony accepted that Sharron's debts, primarily related to past business ventures, and were incurred personally by her. However, he contended that he assumed some joint responsibility for those debts, saying: "but now we are married".
Sharron works on a casual basis as a cleaner, earning $80 per week. This is supplemented by a Newstart Allowance of $520.
Antony's stepson, Daniel, contributes $50 per week in the form of board. No evidence was provided, otherwise, about his financial circumstances.
(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
Mark suffered injuries to his left hand in a work accident in March 2004. A Certificate, dated 8 August 2013, issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), states that he has lost 9 per cent use of his left upper extremity.
He received compensation of $225,000, inclusive of costs, in April 2011, but, after the refund of workers compensation and other payments ($69,502) and legal costs ($50,000), he said he received about $31,000. (It may be that he actually received slightly more.)
In August 2013, the Medical Appeal Panel awarded Mark $11,250 in compensation in respect of injuries sustained to his left hand in a work accident in 2002. He subsequently received $10,125 (after deduction). He says that this payment was used to carry out general maintenance and repairs on Genevieve's home ($6,000 to $7,000) and that the balance was given to his son, to assist him in going to Queensland to find work.
Mark does not suffer intellectual or mental disability. He states that, other than the injury to his hand, he is otherwise in good health (although his blood pressure is "a little elevated"). He is not taking any medication.
Martin says that he is "in reasonable health".
(g) the age of the applicant when the application is being considered
Mark was born in October 1967 and is currently aged 47 years of age.
Martin was born in January 1969 and is currently aged 45 years.
(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant
Mark says that, on occasions, when he was financially able to do so, he would assist the deceased financially. He gives, by way of example, the payment of her car registration and insurance, on three or four occasions, the last of which was shortly before her death. He also says that he did work on her car that kept it running.
He says that he often mowed her lawns and did other gardening for her. Sometimes, he did handyman jobs around the Ulladulla property or, if he was unable to do these jobs, he arranged for others to do them. Otherwise, he states "I would care for the deceased in the same way any son would care for his mother. I would provide her with loving care and support".
He says that his de facto partner would sometimes go with him to visit the deceased and, if the deceased had no money, it was Genevieve who would pay for groceries.
Martin says that, on the occasions that he visited the deceased, he would mow the lawns, sweep the path, prune the trees and clean a fishpond.
Each of Mark and Martin refer to his relationship with the deceased as contributing to her welfare.
(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 is to receive a legacy of $20,000 under the terms of the Will. It is not suggested that any provision was made for each during the deceased's lifetime.
(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 any testamentary intentions of the deceased other than those disclosed by the Will. However, I note that the deceased attended on a solicitor to have the Will drawn. No doubt, she attempted to leave her limited property as she thought best in all the circumstances.
Nakia gives evidence of a conversation, shortly before the deceased's death, in which the deceased, somewhat prophetically, said:
"I've left you a share in my house but you'll have to stand up for yourself. The others will want to fight you for it."
(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 either Mark, or Martin, wholly or partly, at the time of her death. However, it is clear, that at other times, when they were children, she did maintain each of them.
(l) whether any other person is liable to support the applicant
Apart from the Commonwealth government's responsibility to continue to provide each of Mark and Martin with a pension, there is no other person with a liability to support either.
(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 referred to Antony's criticism of Mark earlier.
In addition, he disputes the extent of the deceased's relationship with each of the Plaintiffs. However, overall, I am satisfied that each did what he could to assist the deceased.
(n) the conduct of any other person before and after the date of the death of the deceased person
Antony lived, mostly, with the deceased until he was 25 years of age. He returned to live with her just after Christmas 2007. He lived there for about 6 months, after which he continued living in the Ulladulla area. They would spend a lot of time together. He would assist her in any way that he could. When he remarried, in July 2012, the marriage took place within the hospital grounds where the deceased was a patient so that the deceased could be a part of the ceremony.
I am satisfied that Antony had a close relationship with the deceased and that he was a loving and dutiful son to her. He is, with Nakia and Ashley, the chosen object of the deceased's bounty.
There is no suggestion that the relationship of the deceased and each of Nakia and Ashley was not a close one. Each, after all, is also a chosen object of her testamentary bounty.
(o) any relevant Aboriginal or Torres Strait Islander customary law
This is not relevant.
(p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered
There is no other matter that I consider relevant.
Determination
Being an "eligible person" is a necessary precondition to the court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. In this case, as already stated, there is no dispute that each of Mark and Martin, as a child of the deceased, is an eligible person within the meaning of s 57(1)(c) of the Act.
There is also no dispute that each commenced the proceedings within the time prescribed by the Act.
Having established eligibility and that the proceedings were commenced within time, relevantly, 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 Mark, and of Martin, has not been made by the Will of the deceased. Whether such provision has been made for each requires an assessment of his individual financial position, the size and nature of the deceased's estate, the relationships between each and the deceased and other persons who have legitimate claims upon her bounty and the circumstances and needs of those other persons: see Tobin v Ezekiel, at [70]; McCosker v McCosker, at 571-572; Singer v Berghouse, at 210; Vigolo v Bostin, at [16], [75] and [112]; and Verzar v Verzar [2014], at [39].
Having considered the matters I am required to consider, I am satisfied that the deceased did not make adequate provision for the proper maintenance and advancement in life of each of the Plaintiffs by her Will. Whilst the net estate is very small, the financial and material circumstances of each are not very good. In addition, each has children to support and, whilst each is in a relationship, the circumstances of his de facto partner is not such that I would regard it as resulting in a significant change to those circumstances.
It is clear that each of Mark and Martin has some immediate "needs". As stated above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence. Nor is it limited to whether the applicant has, at the date of hearing, an immediate need for financial assistance with respect to his maintenance. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The term is also used in the in the sense of what was necessary for the applicant's "proper maintenance, education and advancement in life": Akkerman v Ewins [2003] NSWCA 190, per Tobias JA, with whom Beazley and Hodgson JJA agreed.
Neither appears currently able to survive with an income that is derived, principally, from a pension. In each case, without some provision, it is highly unlikely that either will be able to improve his station in life. Each has a need for capital that is immediate.
In coming to this conclusion, I also have taken into account the legitimate claims upon the bounty of the deceased and the obligation and responsibility that the deceased had to provide for Antony, Nakia and Ashley. In the case of Nakia and Ashley, each is young and starting out in her, and his, economic journey of life. In the case of Antony, he seems to be better able to provide for himself than either of Mark or Martin.
Therefore, I reject the Defendant's primary submission that adequate and proper provision has been made for each of Mark and Martin by the Will of the deceased.
The more difficult question then arises, namely what provision "ought to be made for the maintenance, education or advancement in life" of each of Mark and Martin, having regard to the facts known to the court. This involves "an instinctive synthesis that takes into account all the relevant factors and gives them due weight": Grey v Harrison. It is not a scientific, or arithmetic, exercise. As agreed, any provision that is made should be made in lieu of his entitlement under the Will and should be borne out of the proceeds of sale of the Ulladulla property.
In the event that the court reached the conclusion that further provision ought be made, each counsel made submissions about the extent of the provision that ought to be made. Interestingly, they were not very far apart.
Counsel for the Plaintiffs submitted that each Plaintiff should receive a lump sum that equates with 25 per cent of the net estate. Counsel for the Defendant submitted that each Plaintiff should receive no more than 20 per cent of the net estate.
Doing the best I can, I am of the view, that each Plaintiff should receive a lump sum that equates to 21 per cent of the net estate. Such a lump sum will provide something as a buffer for exigencies of life.
That leaves 58 per cent of the net estate. Although each party submitted that the share of the estate left to Antony should not bear the burden of any provision made for each Plaintiff, I do not consider that such a result would be to be just and equitable to Nakia and Ashley. In this regard, the deceased considered each of them in the same way as she considered Antony, by leaving each one third of the residuary estate.
However, in considering this question, I must also consider all of the other facts in the case, including the financial and material circumstances of each and the age and stage of life of each at the date of hearing.
Again, doing the best I can, I am of the view that Antony should receive 28 per cent of the net estate and that each of Nakia and Ashley should receive 15 per cent.
Then, using the estimate of $158,960 as a guide, each Plaintiff, in lieu of the provision made for him in the Will, would receive about $31,792; Antony will receive about $44,508; and each of Nakia and Ashley will receive about $23,844. (I have done this calculation simply by way of demonstration.)
Accordingly, the court:
(i) Orders, pursuant to Uniform Civil Procedure Rules 2005 (NSW), rule 7.10(2)(b), that the Defendant be appointed to represent the deceased's estate and notional estate for the purposes of these proceedings.
(ii) Any order subsequently entered or made in the proceedings binds the deceased person's estate to the same extent as the estate would have been bound had a personal representative of the deceased person been the Defendant in the proceedings.
(iii) Orders, pursuant to s 91 Succession Act 2006 (NSW), that administration in respect of the estate and notional estate of the deceased, Yvonne Jones, be granted to each of the Plaintiffs, for the purposes only of permitting his application for a family provision order to be dealt with.
(iv) Orders that compliance with the Court Rules in relation to Order (iii) above be and is hereby dispensed with.
(v) Orders, pursuant to s 66(1)(d) of the Act, that the Defendant sell the deceased's property at Ulladulla and the deceased's car.
(vi) Orders that the first Plaintiff, in lieu of the provision made for him in the will of the deceased, is to receive, out of the estate, a legacy that equals 21 per cent of the net estate of the deceased.
(vii) Orders that the second Plaintiff, in lieu of the provision made for him in the will of the deceased, is to receive, out of the estate, a legacy that equals 21 per cent of the net estate of the deceased.
(viii) Orders that the burden of the provision made for each of the Plaintiffs be borne by the residuary beneficiaries and that, pursuant to s 66 of the Succession Act:
(a) the Defendant, in lieu of the provision made for him in the Will of the deceased, receive a legacy which equals 28 per cent of the net estate of the deceased; and that
(b) each of Nakia Jones and Ashley Jones receive, in lieu of the provision made for her, and him, in the in the Will of the deceased, a legacy which equals 15 per cent of the net estate of the deceased.
(ix) Orders that the Plaintiffs' costs, assessed and agreed at $40,000, be paid out of the estate of the deceased.
(x) Orders that the Defendant's costs, assessed and agreed at $19,527, be paid out of the estate of the deceased.
(xi) Notes that the net estate of the deceased is to be calculated by deducting, from the gross proceeds of sale of the Ulladulla property and from the sale proceeds, if any, of the car owned by the deceased at the date of her death, the costs and expenses of obtaining Probate of the deceased's Will (estimated to be $4,682), the debts, funeral and testamentary expenses (estimated to be $16,931), the costs and expenses of sale of the Ulladulla property (estimated to be $7,500), the legacy payable to the deceased's daughter, Karina ($20,000), the costs of the Plaintiffs ($40,000) and the costs of the Defendant (estimated to be $19,527) and any other expenses that are agreed by the parties and by Nakia Jones and Ashley Jones. (In each case, the actual, rather than the estimated, amount should be deducted.)
(xii) Grants liberty to any party to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to and implementing the orders made herein.
(xiii) Directs that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10), and Practice Note No SC Gen 18 (Para 26).
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Decision last updated: 22 July 2014
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