Khreich v NSW Trustee and Guardian - [2012] NSWSC 1299

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Khreich v NSW Trustee & Guardian [2012] NSWSC 1299
Hearing dates: 22 October 2012
Decision date: 30 October 2012
Jurisdiction: Equity Division
Before: Hallen AsJ
Decision:
(a) Direct that the parties bring in short minutes of orders which reflect the provision made for each of the Plaintiffs and, which, if possible, deals with the issue of costs.
(b) Stand the proceedings over to a date suitable to the parties and to the Court.

Catchwords: SUCCESSION - FAMILY PROVISION - Three Plaintiffs, the wife and two of four children of the deceased, each seeks family provision order out of the estate of the deceased under the Succession Act 2006 - The Defendant, the executor to whom Probate granted - No dispute as to eligibility - Whether to make a family provision order - If order for provision made, how the burden of that provision should be borne
Legislation Cited: Family Provision Act 1982
NSW Trustee and Guardian Act 2009
Probate and Administration Act 1898
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Uniform Civil Procedure Rules 2005
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Allardice, In re; Allardice v Allardice (1909) 29 NZLR 959
Allen (Deceased), In re, Allen v Manchester [1922] NZLR 281
Anasson v Phillips (NSWSC, 4 March 1988, unreported)
Andrew v Andrew [2012] NSWCA 308
Bartlett v Coomber [2008] NSWCA 100
Bennett v Public Trustee [1999] NSWSC 724
Bladwell v Davis [2004] NSWCA 170
Blore v Lang (1960) 104 CLR 124
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Buckland v Trustees Executors and Agency Co Limited (1966) 40 ALJR 164
Buckland Deceased, Re [1966] VR 404
Bull, Re; Bentley v Brennan [2006] VSC 113
Butcher v Craig [2009] WASC 164
Carey v Robson; Nicholls v Robson [2009] NSWSC 1142
Christie v Manera [2006] WASC 287
Clifford v Mayr [2010] NSWCA 6
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Crewe, Re [1956] NZLR 315
Crossman v Riedel [2004] ACTSC 127
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89
Foley v Ellis [2008] NSWCA 288
Ford v Simes [2009] NSWCA 351
Gardiner v Gardiner (NSWSC, 28 May 1998, unreported)
Gillies v Executors of the Will of Sitch [2005] VSC 308
Golosky v Golosky [1993] NSWCA 111
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Grainger v The Public Trustee (WASC, Steytler J, 6 December 1995, unreported)
Gregory v Hudson (No 2) (NSWSC, 18 September 1997, unreported)
Hampson v Hampson [2010] NSWCA 359
Hawkins v Prestage (1989) 1 WAR 37
Hughes v National Trustees Executors and Agency Co. of Australasia Ltd (1979) 143 CLR 134
Hunter v Hunter (1987) 8 NSWLR 573
Kay v Archbold [2008] NSWSC 254
Keep v Bourke [2012] NSWCA 64
Kembrey v Cuskelly [2008] NSWSC 262
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Langtry v Campbell (NSWSC, 7 March 1991, Powell J, unreported)
Lathwell v Lathwell [2008] WASCA 256
Lumb v McMillan [2007] NSWSC 386
McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566
McGrath v Eves [2005] NSWSC 1006
McKenzie v Lucas [2011] NSWSC 1012
MacGregor v MacGregor [2003] WASC 169 (28 August 2003)
Magill v Magill [2006] HCA 51; (2006) 226 CLR 551
Marks v Marks [2003] WASCA 297
Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47
Mayfield v Lloyd-Williams [2004] NSWSC 419
McCann v Ward & Burgess [2012] VSC 63
Milillo v Konnecke [2009] NSWCA 109
Miller v Miller [2006] UKHL 24; [2006] 2 AC 618
Moore v Moore (NSWCA, 16 May 1984, unreported)
Neil v Jacovou [2011] NSWSC 87
O'Loughlin v O'Loughlin [2003] NSWCA 99
Palaganio v Mankarios [2011] NSWSC 61
Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361
Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24
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
Salmon v Blackford [1997] NSWCA 274
Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100
Savic v Kim [2010] NSWSC 1401
Sellers v Scrivenger [2010] VSC 320
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Slack-Smith v Slack-Smith [2010] NSWSC 625
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stiles v Joseph (NSWSC, 16 December 1996, unreported)
Stott v Cook (1960) 33 ALJR 447
Taylor v Farrugia [2009] NSWSC 801
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (NSWSC, Young J, 17 May 1996, unreported)
Welsh v Mulcock [1924] NZLR 673
Worladge v Doddridge (1957) 97 CLR 1
Category: Principal judgment
Parties: Lily Khreich (first Plaintiff)
Youssef Khreich (second Plaintiff)
Marwan Khreich (third Plaintiff)
NSW Trustee & Guardian (Defendant)
Representation: Counsel:
Ms J Needham SC; Mr S Chapple (Plaintiffs)
Mr R Jefferis (Defendant)
Solicitors:
Sommerville Legal (Plaintiffs)
NSW Trustee & Guardian (Defendant)

File Number(s): 2011/277600

Judgment

The Claim

HIS HONOUR: These are proceedings commenced, initially, by five Plaintiffs, in which each applies for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act") out of the estate of Emile Khreich ("the deceased"). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the Court, under Chapter 3, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person.

The Plaintiffs commenced the proceedings by Summons filed on 29 August 2011, that is, within the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased). The Plaintiffs named in the Summons, as filed, are the deceased's wife, Leila Khreich (also known as "Lily"), his three sons, Youssef (also known as "Joe"), Marwan, and Adel, and his daughter, Samia.

The Defendant named in the Summons is the NSW Trustee & Guardian, the executor appointed in the Will of the deceased to whom Probate was granted. (In the Will, the Defendant is referred to as the Public Trustee. Paragraph 3(1)(d) of Schedule 1 to the NSW Trustee and Guardian Act 2009, which commenced on 1 July 2009, provides that a reference to the Public Trustee is to be read as a reference to the NSW Trustee and Guardian. By Paragraph 11 of Schedule 1, the NSW Trustee & Guardian is to be taken, for all purposes, to be a continuation of the Public Trustee. The NSW Trustee and Guardian, is constituted as a corporation by section 5 of the NSW Trustee and Guardian Act.)

At the hearing, only three Plaintiffs wished to proceed. With the consent of the Defendant (being an active party), Adel and Samia each filed in Court a copy of a notice of discontinuance dated, in each case, 12 October 2012, signed by the solicitor for each of the parties. In the circumstances, each discontinued his, and her, proceedings as to all claims for relief against the Defendant.

Without any undue familiarity, or disrespect intended, and for convenience, I shall refer, hereafter, only to the Defendant by its role in these proceedings, and to the Plaintiffs and other family members, or witnesses, after introduction, by her, or his, anglicised given name (since each was often referred to during the hearing in this way).

Formal Matters

The following facts are uncontroversial.

The deceased died on 1 September 2010. He was then aged 77 years, having been born in July 1933.

The deceased and Lily married in about 1958, when she was aged 17 years. There were four children of their marriage, being Joe, Marwan, Adel and Samia. Adel was born in October 1964 and Samia was born in May 1966.

The deceased came to Australia, from Lebanon, in about 1969 and remained living here for the remainder of his life. Joe came to Australia in about 1974 and the other family members followed in about 1976.

The deceased left a Will that he made on 25 June 1996, Probate of which was granted, to the Defendant, on 25 August 2011, by this Court. That Will, relevantly, provided:

"1.00I give all of my property, after payment of my estate liabilities to the Public Trustee and direct him to divide it into enough parts to pay those of the following gifts which take effect. All parts are of equal value. (No parts are to be set aside for any gifts which do not take effect).

1.10I give 4 parts to my grandson EMILE KHREICHE if he survives me by 1 calendar month.

1.20I give 3 parts to be shared among my other grandsons I may have after making this Will who survive me by 1 calendar month. This does not include my grandson, Emile.

1.30I give 1 part to the Public Trustee to be placed in Trust to be used for the education of any granddaughters I may have after making this Will who survive me by 1 calendar month up until the time they reach 25 years of age. At the end of the Trust, any surplus money remaining to be shared equally among any grandsons I may have including Emile.

2.00The term "estate liabilities" includes:

- my funeral expenses

- all debts I owe when I die

- all expenses my Trustee incurs in administering the

estate

- all charges my Trustee makes for doing the work."

There are 10 grandchildren of the deceased, who survived him. Three grandchildren, Emile, Jessica, and Mary, are the children of Joe; two grandchildren, Aidan and Matthew, are the children of Marwan; two grandchildren, Daniel and Justin, are the children of Adel; and three grandchildren, Jon, Alana, and Nathan, are the children of Samia. Each of the grandchildren, other than Emile, is presently a minor.

It can be seen that Emile receives 50 per cent of the residuary estate; Aidan, Matthew, Daniel, Justin, Jon and Nathan share 37.5 per cent of the residuary estate, and 12.5 per cent is held on trust for the education of Jessica, Mary and Alana, until the time they reach 25 years of age.

No provision was made for any of the Plaintiffs, and none of them were referred to, otherwise, in the deceased's Will.

In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the property owned solely by the deceased at the date of death, was disclosed as follows:

Assets

(a)

Parramatta property (est)

$ 540,000

(b)

Granville property (est)

$ 395,000

(c)

Money in Bank accounts

$ 64,872

(d)

Shares in public companies

$1,186,986

(e)

Taxi plate

$ 400,000

Total:

$2,586,858

(I have omitted any reference to the cents and shall continue to do so. This may appear to result in minor mathematical miscalculations in the figures set out below.)

No liabilities were disclosed in the Inventory of Property.

In an affidavit sworn on 17 October 2012, by Sandra Malouf, a legal officer of the Defendant, she disclosed that the current value of the shares in the estate is $1,495,244; that the current value of the real property at Parramatta is $595,000 and the real property at Granville is $425,000; the taxi plate remains currently valued at $400,000; and the estate account balance, as at 16 October 2012, is $236,026. (Some assets have been realised.)

The parties agreed that the gross value of deceased's estate, at the date of hearing, is $3,151,271. This does not include an amount ($225,000), which may be due to the estate, secured by registered mortgage, over another property, at Granville, owned by Marwan. There is a dispute about whether the principal and interest due was repaid to the deceased.

Ms Malouf also stated in the same affidavit that there are certain liabilities of the estate, namely trustee's commission ($41,264) and the legal costs and disbursements of the proceedings.

In calculating the value of the 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 her and his costs be paid out of the estate of the deceased, whilst the Defendant, as executor, irrespective of the outcome of the proceedings, normally, will be entitled to an order that its costs be paid out of the estate.

The Plaintiffs' costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis, were estimated to be about $97,809 (inclusive of GST and upon the basis of a two day hearing). Their costs and disbursements, calculated on the ordinary basis, are estimated to be $78,247. (There is no differentiation between all of the Plaintiffs' costs and disbursements and the costs and disbursements of the Plaintiffs who have filed a notice of discontinuance. The Defendant did not take issue with these costs, since at least some of the affidavits of Adel and Samia were read in the proceedings.)

The Defendant's costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis, were estimated to be about $43,150 (inclusive of GST and upon the basis of a two day hearing). No part of these costs and disbursements has been paid out of the estate.

The parties, thus, accepted, for the purposes of the hearing, that I should determine the Plaintiffs' application upon the basis that the estimated value of the net distributable estate, after the payment of such anticipated expenses, and if a costs order is made in relation to each of the parties, will be about $2,988,610. (In fact, as the case was completed in one day, they agreed, subsequently, that the net value of the distributable estate should be taken to be $3,000,000.)

The parties also agreed, in light of the terms of the deceased's Will, that the burden of the provision made for each of the remaining Plaintiffs should be borne out of the share of the estate passing to the grandsons of the deceased and not the share to be held in trust to be used for the education of any granddaughters of the deceased. This was a sensible and practical agreement bearing in mind the terms of the deceased's Will.

It follows that the value of the deceased's residuary estate available to meet the provision to be made for each of the remaining Plaintiffs will be about $2,625,000, after the payment of costs and other expenses.

How the costs and disbursements of the parties, which will be the subject of submissions in due course, will be borne was not the subject of the agreement. Of course, depending upon the result of each remaining Plaintiff's claim, and any order made as to costs, the costs and disbursements, if payable out of the estate, will be able to be formally assessed, unless otherwise agreed by the parties. It follows that the amounts referred to are estimates only.

The persons who are, or who may be, eligible persons, within the meaning of the Act, are the original Plaintiffs. It is accepted that none of the grandchildren is an eligible person as each was never wholly, or partly, dependent upon the deceased.

Only three of the original Plaintiffs continued proceedings under the Act. Clearly Adel and Samia, as original parties, were aware of the proceedings and at least one affidavit from each was read.

The deceased's grandson, Emile, was served with a prescribed notice of claim and has sworn an affidavit that has been read in the proceedings.

The other beneficiaries are all minors and the Defendant has represented his, and her, interests, as beneficiaries, named in the deceased's Will. (There is no evidence of service of a notice upon each.) In any event, the Court is not permitted to disregard his and her interests as a beneficiary. To the contrary, as Master McLaughlin (as his Honour then was) said in Bennett v Public Trustee [1999] NSWSC 724, at [57], "[T]he Court should be absolutely scrupulous in protecting the rights of those who, because of their age, are not in a position to protect their own rights".

On the morning of the hearing, a number of affidavits were filed by the Defendant going to the "needs" of each of the grandchildren. Relevantly, the Plaintiff, in each case, swore the affidavit going to such needs of his or her child or children. (The affidavit was, apparently, prepared by the solicitor of the Defendant and sent to the Plaintiffs' solicitor for swearing.) Each affidavit, read in the proceedings, advances a case that the grandchild referred to is a competing claimant, at least financially upon the bounty of the deceased.

Evidence regarding Certain Properties

The deceased's real estate at Parramatta is in a residential area amid similar freestanding brick and tile roof dwellings built in the mid-1950's. The home is situated on a major local connecting road carrying large volumes of traffic. The location is within easy walking distance of Parramatta Town Centre.

The home consists of three bedrooms, an enclosed front verandah, a lounge room, one bathroom, an L-shaped dining room/family room and kitchen. There is no laundry. The kitchen and bathroom are dated and due for upgrading. Internal and external painting is required. The carpet needs cleaning. The carport and garage are dilapidated. Roof tiles require replacing. (There is no expert evidence about the costs of carrying out the repairs, although Lily estimates the costs to be about $70,000. The basis of her estimate is unknown.)

The deceased's property at Granville contains two flats, the front flat consisting of a front verandah to entrance front door, a hallway, two bedrooms, bathroom, lounge room and new kitchen. The front flat has recently been updated with fresh paint, floor coverings, and a tiled kitchen floor.

The rear flat, with a side door entrance, leads to a combined lounge/dining/kitchen, one bedroom and one bathroom. There are two separate laundry buildings.

Overall, the building on the Granville property is said to be old, with a rusted corrugated iron roof that appears to be leaking. The side fence is dilapidated and falling down.

The deceased purchased a property at Granville in June 1978 for $34,000. He sold that property to Marwan, in about May 1995, for $225,000. On the same date, the deceased and Marwan entered into a mortgage for the same amount. The Deed of Conveyance and the Memorandum of Mortgage were registered. I shall refer to the mortgage debt later in these reasons.

As at July 2012, the Granville property transferred to Marwan was rented for $360 per week.

The Granville property transferred to Marwan requires some repairs, including the removal and replacement of roof tiles, reinstatement of some walls, kitchen and bathroom renovations, repainting internally, supplying and installing carpets, removing deteriorating electrical wiring and installing new power board and RCD (in effect, circuit-breaker) protection, and excavating and removing the existing driveway and reinstalling a new driveway. With GST, insurances, builder's supervision, rubbish removal, overheads and the builder's margin, the estimated costs are $104,170.

Marwan and Joe are registered proprietors of a property at Seven Hills, which was purchased in 1988 for $105,000. (In fact, as will be seen later, Joe accepts that he has no interest in this property.)

The property at Seven Hills requires some repairs, including the removal and replacement of roof tiles, reinstatement of some walls, bathroom renovations, repainting internally, and supplying and installing carpets. With GST, insurances, builder's supervision, rubbish removal, overheads and the builder's margin, the estimated costs are $48,290.

There is evidence that the current weekly rental is estimated to be $370 to $380 per week (although it was rented for $350 per week).

The Witnesses

Generally, the evidence in the case, apart from a few aspects that related to the financial and material circumstances of Joe and Marwan were not the subject of dispute. In fact, only Joe and Marwan were cross-examined. I accept the submission that each endeavoured to tell the truth to the best of his ability.

On the areas of disputes, I find as follows:

(a) Despite the fact that Joe and Marwan are shown as registered proprietors in equal shares on the title to a property situated at Seven Hills, Joe acknowledged that he owned his share on trust for Marwan. He stated that he had "not contributed a single cent toward buying it or anything of that nature" and that he had never received any of the income from that property, all of which was paid to Marwan. Marwan is entitled to a declaration and, if necessary, the transfer of Joe's interest of the Seven Hills property to him.

(In the circumstances, there was no reason for Joe to have disclosed as part of his financial and material circumstances, his interest in the Seven Hills property. I reject any criticism of Joe's evidence of his financial circumstances on the basis that he omitted any reference to his interest in this property.)

(b) Marwan, from 1994 until 2000, repaid $1,300 per month from his salary to the deceased in respect of the debt, secured by mortgage on a property in Granville registered in Marwan's sole name. Upon his redundancy, he repaid a further $40,000 to the deceased. In addition, the deceased retained all of the rent from that property and did not account to Marwan for that rent.

(d) The parties agreed that it was not possible to calculate, with any precision, the amount that had been repaid to the deceased or the amounts to which Marwan was entitled, but which the deceased retained (including tax refunds which had not been paid to Marwan by the deceased). They agreed, therefore, that in order to avoid the costs of determining precisely what was payable, if any, one to the other, that as part of any provision made for Marwan, and upon him releasing the estate from any claims that he might have for amount of tax refunds that the deceased should have paid to him, Marwan should receive a discharge of the mortgage over the Granville property. (This agreement did not alter the estimate of the net value of the estate, because the amount of the alleged debt ($225,000) had not been included as part of the deceased's estate in the estimates set out above.)

There was one aspect upon which Joe's evidence was particularly vague and upon which it is difficult to express a firm finding. There was no dispute that Joe had received a property, which he still owns, at Parramatta, a substantial part of the purchase price of which the deceased paid. The deceased, apparently, borrowed the balance of the purchase price (estimated to be about $125,000) from a relative overseas, but he required Joe to repay the amount borrowed.

Joe's evidence was that he was repaying interest only. His taxation return referred to $16,000, being interest on a loan. However, Joe could produce no documents to substantiate the loan, or to substantiate the repayments that he had made. In addition, in his evidence, he did not identify the lender, other than as "a relative overseas" and did not provide any details at all about the terms of the loan, including when the principal was to be repaid.

In addition, there was no reference to any debt owed to a relative overseas in any affidavit sworn by Joe. Whilst there was also no reference to the ownership of this property in any of his affidavits, senior counsel for sought, and was granted, leave to adduce that evidence in chief. Yet, Joe gave no evidence, as part of that evidence in chief, of any debt owed to any relative overseas in respect of that property.

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 some of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in their application.

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

"Purposive construction of the Act

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

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

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

The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008. A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased'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.

The key provision is s 59 of the Act. The court must be satisfied, first, that an 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, Lily is the wife of the deceased person at the time of the deceased person's death (s 57(1)(a) of the Act), whilst Joe and Marwan is each a child of the deceased (s 57(1)(c) of the Act). Clearly, the language in s 57(1)(c) is expressive of the person's status, as well as his or her relationship to the deceased. There is no age limit placed on a child making an application.

Inadequacy of Provision

Then, if eligibility is found, the court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is only if the court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). In this way, it has been said that the court carries out a two-stage process.

Allsop P in Andrew v Andrew [2012] NSWCA 308, has recently 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 in Andrew v Andrew, 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."

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

It was said in the Court of Appeal (per Basten JA) in Foley v Ellis [2008] NSWCA 288 at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment".

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

"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54; (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. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement":

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that:

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

In Goodman v Windeyer (1980) 144 CLR 490, Gibbs J said at 502:

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

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

"[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."

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

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

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

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.

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

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]."

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. it is satisfied that the applicant is an eligible person, and, where necessary, that factors warranting have been satisfied, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made by the will of the deceased and/or by operation of the intestacy rules), 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: s 59(2) and s 60(1)(b).

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

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

"29The 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.

...

41As 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 The Queen [2011] NSWCCA 63; 278 ALR 765 at [93]."

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

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

...

79First, 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".

80Second (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.

81Under 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).

...

94As 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."

It seems to me that the two stage approach adopted in the myriad of cases determined under the former Act and under the Act, including Keep v Bourke [2012] NSWCA 64, enables me, despite what has been said by Basten JA, and until any uncertainty is resolved, to continue to follow that approach in determining cases under the Act. As Allsop P said, "it may be an analytical question of little consequence" since what has to be decided by the Court is whether to make a family provision order and the nature of any 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", 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. 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. There is no limit to the matters to which, in any particular case, the Court may have regard other than relevance.

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

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

"'financial resources' ... includes:

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

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

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

(d) any other valuable benefit."

Of course, s 60(2)(d) refers also to "earning capacity", which means no more than the capacity to find employment to earn or derive income.

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

Leaving aside the question of eligibility, the Court may have regard to the matters referred to in s 60(2) on "the discretionary question", namely whether to make an order and the nature of any such 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 comforted in reaching this conclusion 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.

a. Payment of school fees in the sum of $13,000 per year for 12 years for Daniel, and $19,000 per year for 4 years for pre-school/day care and then $13,000 per year for 13 years for Justin, the total of which is $401,000.

b. Contribution towards tertiary education costs for Daniel and Justin in the sum of $112,000.

(iii) His children will also require private tutoring at a cost of approximately $8,000 per year over twelve years whilst in primary and high school.

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

As stated, Lily lives in the home of Adel and his family. However, she remains a widow and single.

Joe lives with his wife and his three children.

Marwan lives with his wife and his two children.

(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

Lily suffers from a number of health conditions including a recently broken hip, and the hip and bone conditions. She also has a heart defect and some circulation/cholesterol issues.

Joe says that he suffers from a number of health issues, including high blood pressure, a left ventricle enlargement and diabetes. He has no apparent disabilities. However, he takes a number of medications.

Marwan is said to suffer from an unspecified mental disorder about which his brother, Adel, makes some observations. Adel says that Marwan's mental health is "fragile" and has been throughout his life.

Adel also says that his brother received more abuse than the other family members. He has a lack of self-esteem and self-confidence, and a fear of social groups. He also suffers from asthma.

Marwan has two sons aged about 7 and 5. One of them has severe allergies. Marwan is unable to leave them with their mother due to her mental health problems.

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

Lily is currently aged 71 years, having been born in October 1941.

Joe is currently aged 53 years having been born in September 1959.

Marwan is currently aged 50 years having been born in 1962.

(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

Lily contributed directly, by provision of her salary to her husband for some 20 years, and by working on the various properties that he owned. She made a significant contribution to the deceased's welfare throughout their marriage and, it would appear, even when they were separated. She bore the burden of looking after their four children when they were young.

In addition, the deceased required Lily to cook and clean the home and to assist her children in its maintenance.

In relation to Joe, the Defendant concedes:

"6.3... it is clear that he was of continually assisting his father with his business affairs, and that his father could not have managed without him."

I have earlier referred to some of his contribution to the maintenance of the deceased's properties. He also assisted with the management of taxi leases, particularly after the death of the deceased.

Marwan also assisted the deceased with maintenance of properties and management of taxi leases.

(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

I have earlier noted that no provision is made for any of the remaining Plaintiffs in the deceased's Will.

However, Lily did receive provision of the two taxi plates and a half-share in a property at Parramatta (albeit without her knowledge or any direct benefit accruing to her from those assets during his lifetime). However, it is likely that her earnings contributed to the purchase price of the taxi plates and also her interest in the Parramatta property.

The deceased also told the Defendant's officer who prepared the Will that he had borrowed to buy the taxi plates in Lily's name, and that there were also shares in her name, the purchase price of which he had borrowed.

The deceased gave Joe a house situated in Parramatta as a wedding gift but that gift, it is said, came with the burden of paying off the loan to a relative. Otherwise, Joe says that he never received any financial assistance from the deceased before or after he left home.

Marwan says that no provision was ever made for him by the deceased.

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

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

A copy of the Will made on 19 September 1994 by the deceased provides:

"I Emile Khreiche and this is my will and I ask for it to be executed to the letter. All what I possess to my son Youssef Emile Khreiche and after him to his male sons. His wife, if she left him is not entitled to anything in my inheritance in case of a divorce between her and my son Youssef.

My son Marwan, my son Joseph from the net income of my inheritance 30 per cent after deducting the taxes. And if he gets married and is in need Marwan gets from the income of my inheritance after deducting the taxes the ratio of 50% only for the education of his children. My son Adel is not entitled to anything of my inheritance also my daughter Samia.

My wife Laila if she is in need takes from the income of my inheritance according to her need until she dies. My son Youssef Hanna Khreiche is given from the income of my inheritance the sum of 4000 dollars per year until he dies."

I have earlier referred to other statements made by the deceased about his relationship with Joe as being "satisfactory or mostly completely satisfactory". However, he then went on to categorise Joe as a wastrel. No evidence to justify such an assessment was put forward by the Defendant.

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

There is no evidence that any of the Plaintiffs were being maintained, either wholly or partly, by the deceased prior to his death. Each of Joe and Marwan accept that the deceased maintained them during their childhood.

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

There is no other person with a liability to support any of the Plaintiffs. (I have referred to the fact of the assistance provided by Adel to Lily.)

Adel and his wife (and to some extent Joe) support Marwan voluntarily and temporarily.

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

The Defendant does not assert any specific conduct of any Plaintiff that would disentitle her or him to provision out of the deceased's estate. To the contrary, in the submissions filed on behalf of the Defendant, it is written:

"4.1 ...There is no explanation or reason the Defendant can point to, which would explain the failure of the deceased to make any provision for Mrs Kreich and the two children of the deceased who seek provision.

4.2Having regard to what might reasonably have been expected of the testator, and taking into account the circumstances of each of the applicants, and the factors described in section 60, the Defendant cannot argue that adequate provision has been made. In fact there has been no provision made at all for the wife and children of the deceased, and that is not in accord with current community standards as referred to in Andrew v Andrew.

4.4Each plaintiff needs to be looked at separately, Before doing so; it is observed that on all of the evidence the deceased, for whatever reason was not an easy man to deal, and that was the case with each of the applicants and their relationship with him."

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

I have earlier referred to the conduct of the deceased. All of the Plaintiffs gave evidence of that conduct and each is consistent. There is also the contemporaneous AVO complaint in regard to his conduct towards Lily.

It appears that of the grandchildren, only Emile was born when the deceased's Will was drafted.

There is not a great deal of evidence about the relationship of any of the grandchildren with the deceased. However, each is a chosen object of the deceased's bounty.

Emile states that he is in "full support of the claims made out of the estate by the Plaintiffs".

Emile says nothing about his relationship with the deceased in his affidavit.

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

This is not relevant in the present case.

However, Joe refers to his "culture" in which "the eldest child has the responsibility to care for their (sic) parents".

(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 in the present case.

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. There is no dispute that each of the remaining Plaintiffs is an eligible person.

Having established eligibility, there is also no dispute that the proceedings were commenced within the time prescribed by the Act.

Then, the question for determination is whether, the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of each Plaintiff, has not been made, relevantly in this case, by the Will of the deceased. (The operation of the intestacy rules is irrelevant.)

The deceased made no provision out of his estate for any of the remaining Plaintiffs. Counsel for the Defendant fairly conceded in relation to Lily:

"5.1The Defendant does not put forward any contention that the deceased's wife ought not to have further provision made for her, given the circumstances described in detail in her evidence, and reinforced by the affidavits of her children.

5.2The Defendant does not take any issue with the material that has been put forward by on her account. Any further comment is unnecessary, save to recognise her age and her present circumstances. The Defendant acknowledges that that whilst she was "separated" from the deceased, it was certainly not could be described as usual in Australia. In particular the fact that she continued to carry on as a " housekeeper" is one the Court can accept would be a unique situation, and in her favour.

5.3In terms of the factors outlined under s.60, there is no doubt in the circumstances the deceased had an obligation to provide for his wife. There are no matters to the knowledge of the defendant that would weigh against further provision. It is accepted that provision should on the facts of this case be at the higher end of the available range."

In relation to Joe, he submitted:

"6.1In respect of this applicant, the first issue that arises is a factual issue. It concerns the property at ... Seven Hills. This property is owned with Marwan as a tenant in common; at least that is what appears on the title. However, there is no mention of it in [Joe's] evidence, nor do his tax returns disclose that he has, or is, receiving an income from it.

6.2In that event, the financial circumstances of [Joe] are on the face of it some $225,000 greater than he has stated.

6.3Having regard to the relevant factors for provision, it is clear that he was of continually assisting his father with his business affairs, and that his father could not have managed without him. Some further provision may be made for [Joe], however the extent of it is it is submitted linked to the position with the [Seven Hills] property."

In respect of Marwan, he submitted:

"7.1The Defendant ... accepts that given the position of Marwan, where he is not working and has family issues that further provision could be made for him. The difficulty that presents itself is in respect of the mortgage on the [Granville] property, and the extent to which the Court can take account of the claims that he has been denied rightful payments of rental for this property, because of the actions of the deceased.

7.2However, leaving those issues to one side in terms of the obligation to make further provision, and ought to have been provided for to a greater degree than any of his siblings. The Court would be entitled in the particular circumstances of this case to have particular regard to section 60 (2)(m). The Defendant also sets accepts that it is a significant factor in undertaking any assessment that Marwan is unemployed, and seemingly that is not a situation that will alter."

In my view, in all the circumstances of the case, the jurisdictional threshold has been satisfied in relation to each of the remaining Plaintiffs. I accept that the deceased had a domineering, aggressive and abusive character which led to the difficulties with each of the members of his family.

It is clear that each of the remaining Plaintiffs has "needs". As stated above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence. By way of example, Lily has no capital sum to provide for the exigencies of life. She is 71 years of age with no earning capacity. Joe has three children who require financial and other assistance with their educational needs. Marwan is unemployed and has three family members to support. Important, also, is the size of the deceased's estate and the fact that none of the beneficiaries is an eligible person.

Thus, I am satisfied that adequate provision for the proper maintenance or advancement in life of each of the remaining Plaintiffs has not been made by the Will of the deceased.

Then, I next consider the nature and amount of any provision that should be made. In calculating the provision that each should receive, I should bear in mind the matters referred to in s 60(2) of the Act.

Having regard to all of the matters that I may consider, including amongst other things, the size and nature of the deceased's estate, the lack of provision made for each remaining Plaintiff during the lifetime of the deceased, the relationship between each and the deceased, as well as the relationship between the deceased and his grandchildren, who are the chosen objects of testamentary bounty, I am satisfied that some provision should be made for each Plaintiff out of the estate of the deceased.

I also note that in respect of each of Joe and Marwan, the Defendant acknowledges that any provision made will benefit his children.

In the case of Lily, I am of the view that she should be provided with security of accommodation and a capital sum for exigencies of life. In my view, she should receive the Parramatta property owned by the deceased ($600,000) and a lump sum, out of the estate of the deceased of $220,000. After payment of renovation costs and the purchase of furniture, she will have assets with a value in excess of $1.1 million to provide both income and capital for her remaining years. If she requires additional income, she can seek one half of the income from their property that presently goes to Joe.

In the case of Joe, I am of the view that he should receive a capital sum of $400,000. This amount will enable him to repay, if he chooses to, the whole of the secured debt on his family home, and provide a capital sum for exigencies of life. In reaching this amount, I also bear in mind, if Emile considers that Joe needs additional financial assistance, he can provide such assistance from the balance of the share of the deceased's estate to which he (Emile) is entitled. He is now an adult and can make such additional provision for his father, as he considers appropriate.

In the case of Marwan, I am of the view that he, too, should receive a capital sum, but in the amount of $500,000. This amount will enable him to carry out and pay for the renovations to his property at Granville in which he wants to live, as well as providing him with a capital sum for exigencies of life.

In coming to this amount, I bear in mind that he and the deceased did not have any form of relationship for the many years prior to the death of the deceased. Whilst I find that their lack of relationship was caused, principally, by the deceased's character and conduct, the fact that there was a complete lack of relationship for so many years prior to death, does restrain amplitude in the provision that ought to be made for him. However, his earning capacity is more limited than Joe's and if he moves into one of the properties which currently provides him with an income, his overall income will be reduced.

If he wishes to receive the taxi plate ($400,000) in specie, which will provide him with an income in the future, then he should receive it as part of the provision. (This would have the added advantage of enabling the Defendant not to have to sell the taxi plate or, if it is retained, to continue to administer the asset as part of the deceased's estate.) In that event, he should receive a capital sum of $100,000.

In addition, Marwan should be provided with a discharge of mortgage, in registrable form, which mortgage remains registered on the Granville property. I have earlier referred to the parties' agreement upon this aspect.

In reaching my conclusions, I have borne in mind the competing claims of the grandsons of the deceased. I remember that none is an eligible person, but importantly, that each is the chosen object of the deceased's testamentary bounty.

No interest is to be paid on each of the lump sums, if it is paid within 42 days of the making of the orders or such other time as the parties agree; otherwise, interest calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898, on unpaid legacies, is to be paid from that, or the agreed, date until the date of payment of the lump sum.

Unless the parties wish some other order to be made, the short minutes should include an order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the costs of the proceedings and one that the Court Book should be returned.

In view of the matters referred to above, and so as to enable the parties to reach agreement on the question of the costs of the proceedings, I direct that they bring in short minutes of orders which reflect the provision made for each of the remaining Plaintiffs and, which, if possible, deal with the issue of costs.

I shall stand the matter over to a date suitable to the parties and to the Court.

**********

Amendments

19 November 2012 - address of property altered

Amended paragraphs: 43(a)

Decision last updated: 19 November 2012

Medium Neutral Citation:	Khreich v NSW Trustee & Guardian [2012] NSWSC 1299
Hearing dates:	22 October 2012
Decision date:	30 October 2012
Jurisdiction:	Equity Division
Before:	Hallen AsJ
Decision:	(a) Direct that the parties bring in short minutes of orders which reflect the provision made for each of the Plaintiffs and, which, if possible, deals with the issue of costs. (b) Stand the proceedings over to a date suitable to the parties and to the Court.
Catchwords:	SUCCESSION - FAMILY PROVISION - Three Plaintiffs, the wife and two of four children of the deceased, each seeks family provision order out of the estate of the deceased under the Succession Act 2006 - The Defendant, the executor to whom Probate granted - No dispute as to eligibility - Whether to make a family provision order - If order for provision made, how the burden of that provision should be borne
Legislation Cited:	Family Provision Act 1982 NSW Trustee and Guardian Act 2009 Probate and Administration Act 1898 Succession Act 2006 Succession Amendment (Family Provision) Act 2008 Uniform Civil Procedure Rules 2005
Cases Cited:	Alexander v Jansson [2010] NSWCA 176 Allardice, In re; Allardice v Allardice (1909) 29 NZLR 959 Allen (Deceased), In re, Allen v Manchester [1922] NZLR 281 Anasson v Phillips (NSWSC, 4 March 1988, unreported) Andrew v Andrew [2012] NSWCA 308 Bartlett v Coomber [2008] NSWCA 100 Bennett v Public Trustee [1999] NSWSC 724 Bladwell v Davis [2004] NSWCA 170 Blore v Lang (1960) 104 CLR 124 Bondelmonte v Blanckensee [1989] WAR 305 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Buckland v Trustees Executors and Agency Co Limited (1966) 40 ALJR 164 Buckland Deceased, Re [1966] VR 404 Bull, Re; Bentley v Brennan [2006] VSC 113 Butcher v Craig [2009] WASC 164 Carey v Robson; Nicholls v Robson [2009] NSWSC 1142 Christie v Manera [2006] WASC 287 Clifford v Mayr [2010] NSWCA 6 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Crewe, Re [1956] NZLR 315 Crossman v Riedel [2004] ACTSC 127 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89 Foley v Ellis [2008] NSWCA 288 Ford v Simes [2009] NSWCA 351 Gardiner v Gardiner (NSWSC, 28 May 1998, unreported) Gillies v Executors of the Will of Sitch [2005] VSC 308 Golosky v Golosky [1993] NSWCA 111 Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Grainger v The Public Trustee (WASC, Steytler J, 6 December 1995, unreported) Gregory v Hudson (No 2) (NSWSC, 18 September 1997, unreported) Hampson v Hampson [2010] NSWCA 359 Hawkins v Prestage (1989) 1 WAR 37 Hughes v National Trustees Executors and Agency Co. of Australasia Ltd (1979) 143 CLR 134 Hunter v Hunter (1987) 8 NSWLR 573 Kay v Archbold [2008] NSWSC 254 Keep v Bourke [2012] NSWCA 64 Kembrey v Cuskelly [2008] NSWSC 262 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Langtry v Campbell (NSWSC, 7 March 1991, Powell J, unreported) Lathwell v Lathwell [2008] WASCA 256 Lumb v McMillan [2007] NSWSC 386 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 McKenzie v Lucas [2011] NSWSC 1012 MacGregor v MacGregor [2003] WASC 169 (28 August 2003) Magill v Magill [2006] HCA 51; (2006) 226 CLR 551 Marks v Marks [2003] WASCA 297 Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47 Mayfield v Lloyd-Williams [2004] NSWSC 419 McCann v Ward & Burgess [2012] VSC 63 Milillo v Konnecke [2009] NSWCA 109 Miller v Miller [2006] UKHL 24; [2006] 2 AC 618 Moore v Moore (NSWCA, 16 May 1984, unreported) Neil v Jacovou [2011] NSWSC 87 O'Loughlin v O'Loughlin [2003] NSWCA 99 Palaganio v Mankarios [2011] NSWSC 61 Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 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 Salmon v Blackford [1997] NSWCA 274 Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100 Savic v Kim [2010] NSWSC 1401 Sellers v Scrivenger [2010] VSC 320 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack-Smith v Slack-Smith [2010] NSWSC 625 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (NSWSC, 16 December 1996, unreported) Stott v Cook (1960) 33 ALJR 447 Taylor v Farrugia [2009] NSWSC 801 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, Young J, 17 May 1996, unreported) Welsh v Mulcock [1924] NZLR 673 Worladge v Doddridge (1957) 97 CLR 1
Category:	Principal judgment
Parties:	Lily Khreich (first Plaintiff) Youssef Khreich (second Plaintiff) Marwan Khreich (third Plaintiff) NSW Trustee & Guardian (Defendant)
Representation:	Counsel: Ms J Needham SC; Mr S Chapple (Plaintiffs) Mr R Jefferis (Defendant) Solicitors: Sommerville Legal (Plaintiffs) NSW Trustee & Guardian (Defendant)
File Number(s):	2011/277600

Assets
(a)	Parramatta property (est)	$ 540,000
(b)	Granville property (est)	$ 395,000
(c)	Money in Bank accounts	$ 64,872
(d)	Shares in public companies	$1,186,986
(e)	Taxi plate	$ 400,000
Total:	$2,586,858