Kusumo v Kusumo
[2014] NSWSC 1704
•02 December 2014
Supreme Court
New South Wales
Medium Neutral Citation: Kusumo v Kusumo [2014] NSWSC 1704 Hearing dates: 17 November 2014 Decision date: 02 December 2014 Jurisdiction: Equity Division Before: Hallen J Decision: Direct the parties to bring in Short Minutes of Order giving effect to these reasons for judgment within 14 days.
Stand over the proceedings to deal with any outstanding argument on the form of the Orders and/or costs.
Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiff, an adult child of the deceased, applies for family provision order under Chapter 3 Succession Act 2006 (NSW) - The Defendant, also an adult child of the deceased, the executor named in the Will but not a beneficiary - Whether adequate and proper provision not made in the Will of the deceased for the Plaintiff and, if so, the nature and quantum of the provision to be made for him - Order for provision made Legislation Cited: Family Provision Act 1982 (NSW)
Practice Note SC Gen 18
Probate and Administration Act 1898 (NSW)
Succession Amendment (Family Provision) Act 2008 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: Akkerman v Ewins [2003] NSWCA 190
Allardice v Allardice; In re Allardice (1910) 29 NZLR 959
Allen (Deceased), In re; Allen v Manchester [1922] NZLR 218
Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Aubrey v Kain [2014] NSWSC 15
Barna v Barna [2008] NSWSC 1402
Bartlett v Coomber [2008] NSWCA 100
Boettcher v Driscoll [2014] SASC 86
Borebor v Keane [2013] VSC 35
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bouttell v Rapisarda [2014] NSWSC 1192
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Buckland Deceased, Re [1966] VR 404
Butcher v Craig [2009] WASC 164
Chapple v Wilcox [2014] NSWCA 392
Christie v Manera [2006] WASC 287
Collicoat v McMillan [1999] 3 VR 803.
Collins v McGain [2003] NSWCA 190
Crossman v Riedel [2004] ACTSC 127
de Angelis v de Angelis [2003] VSC 432
Dennis (Deceased), Re [1981] 2 All ER 140
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89
Flathaug v Weaver [2003] NZFLR 730
Foley v Ellis [2008] NSWSC 288
Gardiner v Gardiner (Supreme Court (NSW) Santow J, 28 May 1998, unrep)
Gardiner v Gardiner [2014] NSWSC 435
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Goodsell v Wellington [2011] NSWSC 1232
Gorton v Parks (1989) 17 NSWLR 1
Grey v Harrison [1997] 2 VR 359
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] HCA 2; (1979) 143 CLR 134
Hyland v Burbidge [2000] NSWSC 12
Kay v Archbold [2008] NSWSC 254
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Lowe v Lowe [2014] NSWSC 371
MacGregor v MacGregor [2003] WASC 169
Marks v Marks [2003] WASCA 297
Marras, In the Estate of the late Anthony [2014] NSWSC 915
Matthews v Wear [2011] NSWSC 1145
Mayfield v Lloyd-Williams [2004] NSWSC 419
McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566
McGrath v Eves [2005] NSWSC 1006
McKenzie v Topp [2004] VSC 90
Palaganio v Mankarios [2013] NSWSC 61
Phillips v James [2014] NSWCA 4
Pogorelic v Banovich [2007] WASC 45
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Poole v Barrow [2014] VSC 576
Puckridge, Deceased, In the Estate of (1978) 20 SASR 72
R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808
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
Sammut v Kleemann [2012] NSWSC 1030
Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100
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
Szypica v O'Beirne [2013] NSWSC 297
Taylor v Farrugia [2009] NSWSC 801
Tobin v Ezekiel [2012] NSWCA 285
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), 17 May 1996, Young J, unrep)
West v Mann [2013] NSWSC 1852
Wilcox v Wilcox [2012] NSWSC 1138
Williams v Aucutt [2000] 2 NZLR 479Texts Cited: 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
J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths)Category: Principal judgment Parties: Iskandar Kusumo (first Plaintiff)
Nadia Kusumo (second Plaintiff)
Ishak Kusumo (Defendant)Representation: Counsel:
Mr M Meek SC (Plaintiffs)
Mr M Sneddon (Defendant)
Solicitors:
Carroll & O'Dea Lawyers (Plaintiffs)
Frankie Chan & Co Solicitors (Defendant)
File Number(s): 2014/102439
JUDGMENT
The Claim
HIS HONOUR: These reasons relate to a claim in which, initially, there were two Plaintiffs, namely Iskandar Kusumo and Nadia Kusumo, who are, respectively, a child and a grandchild of the late Ani Kristomuljo ("the deceased"). Each sought a family provision order, pursuant to the Succession Act2006 (NSW) ("the Act"), and costs out of the estate, and notional estate, of 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, or notional estate, for the maintenance, education, or advancement in life of an eligible person.
(In this case, despite the relief claimed in the Summons, there is no suggestion of any property to be designated as notional estate of the deceased. Accordingly, the claim is one for provision only out of the estate of the deceased.)
Without intending to convey undue familiarity, with no disrespect intended, and for convenience and clarity, I shall refer, hereafter, to the parties, and other family members, after introduction, by his, or her, given name.
In the submissions filed on behalf of the Defendant, a few days before the hearing, the court was informed that Nadia's claim had been settled. At the commencement of the hearing, the court was informed of the principal order giving effect to the settlement. I shall refer, later in these reasons, to the provision to be made for Nadia, noting that Iskandar consents to the provision being made in her favour.
It is now only necessary to deal, in these reasons, with the claim by Iskandar, although it will be necessary to state the effect, on the estate, of the orders made in Nadia's claim. Final orders disposing of her claim will be made at the same time as the orders to be made in Iskandar's claim. To that end, the Short Minutes of Order should include orders dealing with Nadia's claim as well as orders to be made in respect of Iskandar's claim.
Iskandar and Nadia commenced the proceedings by one Summons filed on 4 April 2014. There is no dispute that they filed the Summons within the time prescribed by the Act (within 12 months of the date of the death of the deceased).
The Defendant named in the Summons is Ishak Kusumo, who is also child of the deceased and a sibling of Iskandar.
Background Facts
The following background facts are uncontroversial.
The deceased died on 24 April 2013. She was then aged 82 years, having been born in January 1931.
The deceased was married to Musa Kusumo. He predeceased the deceased, having died in December 2002. There were four surviving children of their marriage, namely, Wina, who was born in February 1956 and who currently resides in Indonesia; the Plaintiff, Iskandar, who was born in April 1959; Yusuf, who was born in March 1961 and who also currently resides in Indonesia; and the Defendant, Ishak, who was born in May 1963. Another child of the marriage, Ibrahim, predeceased the deceased, having died in 2001.
Nadia, who is one of two children of Iskandar, was born in October 1986 and is now 28 years of age. She has one child, Paul, aged 10 years. Paul currently lives with Iskandar, Iskandar's wife, Narty, and their son, Eldadh.
Jessica Kusumo, who is a child of Ishak, was born in April 1991 and is aged 23 years of age. (There is virtually no other evidence about her.)
The deceased left a duly executed Will that she made on 7 August 2008. This court granted Probate in common form of that Will to Ishak on 18 July 2013.
By the Will, after the revocation of all former wills and other testamentary dispositions, the deceased provided for the payment of debts, funeral and testamentary expenses. She then gave a legacy of $400,000 to "my granddaughter, Jessica Kusumo, because her father, Ishak Kusumo, has contributed an approximate sum of $400,000.00 when my residence at ... Kensington was rebuilt". The residue of her estate was then given, as to 15/100ths to Wina, 15/100ths to Iskandar, 35/100ths to Yusuf, and 35/100ths to Jessica.
The Will also provided:
"6. If my granddaughter Jessica Kusumo has already died or dies before me without leaving children, then my son Ishak Kusumo shall take the gifts which my deceased granddaughter would otherwise have taken.
7. My Trustees shall have the following powers in addition to those conferred upon him by law:
...
7.2 To retain any asset which I may own at the date of my death for as long as my Trustees may in their absolute discretion determine."
Ishak gave the following unchallenged evidence about the terms of the deceased's Will:
"10. I believe that only the persons named in clause 4.1 and clause 4.2 of the deceased's Will are beneficially entitled to the distributable estate subject to the following:-
a.Jessica Kusumo, who is the beneficiary named in clause 4.1 and clause 4.2.4 of the Will, is my daughter ('Jessica').
b.The gift under clause 4.1 to Jessica is meant to be a repayment to me personally of a loan of $400,000.00 which I made to the deceased for rebuilding the Kensington home after the hailstorm damage in April 1999.
c.The gift under clause 4.2.4 to Jessica is meant to be for me personally as one of the children of the deceased but I specifically asked the deceased to make such gift to Jessica because I was concerned about the possible breakdown of my relationship with my partner at that time and the potential claim which might be made against me by my then partner."
According to 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 her death was disclosed as having an estimated, or known, gross value of $1,503,609. At the date of death, her estate was said to consist of the Kensington property ($1,500,000), cash in bank ($50) and the proceeds of a life insurance policy ($3,559). No jointly held, or other, property, in which the deceased held an interest at the date of her death, was disclosed. There were also no liabilities disclosed. (I have omitted, and shall continue to omit, any reference to cents in the amounts to which I shall refer, which will explain any minor mathematical errors.)
In an affidavit sworn on 6 June 2014, Ishak stated that there were some liabilities of the estate, namely funeral and associated expenses ($10,967), the legal costs of administration of the estate ($3,000) and outstanding council rates payable on the Kensington property ($2,112). Ishak has personally paid these liabilities. He does not seek reimbursement of the council rates as he has been living in the Kensington property since the death of the deceased. He does, however, seek to be reimbursed for the other expenses.
(There was some criticism of Ishak, as executor, for continuing to live, rent and occupation fee free, in the Kensington property. However, any complaint in that regard was not the subject of any claim in the Summons, brought effectively on behalf of the estate, for any rent or occupation fee. I also note that Nadia has lived, and continues to live, in the Kensington property, rent and occupation fee free, and without paying any outgoings on that property. I bear in mind, also, the terms of Clause 7.2 of the Will of the deceased referred to above.)
The parties agreed that, at the date of hearing, the value of the Kensington property is $1,875,000. When it is sold, as all agreed it must be, the selling, marketing and legal costs of sale, together with the real estate agents' commission, are estimated to total $51,063.
In calculating the estimated net value of the estate finally available for distribution, the costs of the present proceedings should also be considered, since Iskandar, as the Plaintiff, if successful, normally, will be entitled to an order that his costs and disbursements, calculated on the ordinary basis, be paid, whilst Ishak, 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.
Iskandar's current solicitor, Ms H Indari, in an affidavit sworn on 3 November 2014, estimated the Plaintiffs' costs and disbursements of the proceedings, including senior counsel's fees, calculated on the ordinary basis, to be $49,500 (inclusive of GST and upon the basis of a one day hearing). The estimated amount is said to include "an allowance for the work done by the previous lawyers for the Plaintiffs". (The amount referable to those lawyers is not identified.)
Ms Indari also states that the Plaintiffs "have not paid any amount towards costs and disbursements".
The costs and expenses have been calculated for both Iskandar and Nadia. However, the amount for which Nadia resolved her proceedings, was a lump sum "inclusive of costs", which may mean that the estimated costs and expenses, as stated by Ms Indari, will be reduced if a costs order in favour of Iskandar is made. (However, counsel for Ishak did not submit that a different amount should be used as a guide in calculating the estimated value of the distributable estate.)
Ishak's solicitor, Mr F Chan, in an affidavit sworn 4 November 2014, estimated Ishak's costs and disbursements, including counsel's fees, calculated on the indemnity basis, to be $65,000 (inclusive of GST and upon the basis of a one day hearing). (No doubt, the level of Ishak's costs and disbursements was increased by defending Nadia's part of the claim.) He stated that Ishak had personally paid $3,000, in May 2014, on account of administration costs and disbursements and $5,000 "from the estate account" in relation to the conduct of these proceedings, on 15 October 2014. It follows that the amount yet to be paid on account of the Defendant's costs and disbursements is $60,000.
The parties requested that the court not make any order for costs until after judgment is delivered. However, the parties agreed that the usual costs order would be appropriate unless further submissions on the issue of costs become necessary following the reasons for judgment being delivered.
If the usual costs orders are made, and if the parties are unable to reach agreement on the quantum of costs to be paid, it will be for an assessor to determine the appropriate quantum of costs for both parties. Hopefully, this will not be necessary and the parties will be able to reach agreement without the need for additional costs to be incurred.
At the hearing, senior counsel for Iskandar accepted that the amount of the legacy to Jessica should be paid out of the estate upon the basis that no claim by Ishak is made for repayment of the loan to which reference was made in the Will. Ishak's counsel seemed to accept that this would be appropriate in all the circumstances. Accordingly, in determining the amount available for distribution, the amount of $400,000, payable to Jessica, should be taken into account.
It follows, if orders for costs are made, if the costs estimates prove accurate (in total, $109,500), if Ishak is reimbursed for the expenses he has paid ($13,967), if the legacy to Nadia ($50,000) is paid, if the legacy to Jessica ($400,000) is paid, and if the costs and expenses of sale ($51,063) are also paid, out of the gross proceeds of sale of the Kensington property ($1,875,000), that the net value of the estate, available for distribution, will be about $1,250,470.
Under the terms of the deceased's Will, using the estimates set out above, Iskandar would receive out of the estate, absent any order for additional provision, a lump sum of $187,570.
The parties both submitted, in the event additional provision is to be made for Iskandar, that it should have the effect of increasing the percentage of the net proceeds of sale that Iskandar should receive, rather than provision by way of a lump sum. I shall return to the appropriateness of the type of order suggested later in these reasons.
At the hearing, the parties agreed that the only eligible persons are the four surviving children of the deceased and Nadia. Only Ishak and Nadia commenced proceedings under the Act and Nadia's claim has been resolved.
There is evidence from Ishak's solicitor, Mr Chan, that he sent a copy of the Summons and the first affidavit of Iskandar, and of Nadia, to each of Wina, Yusuf and Jessica, by post, on 6 June 2014. The letter also included a copy of the Probate, Will and Inventory of Property. The letter stated, amongst other things, that "we have instructions from Ishak to defend the last Will of your late mother".
Mr Chan, in a later affidavit, stated that he sent a copy of the other affidavits in letters dated, respectively, 13 June 2014, 14 July 2014, 24 October 2014 and 4 November 2014. He went on to say that he spoke to Wina and to Yusuf, separately, by telephone, on 10 November 2014, and to Jessica, on 11 November 2014, and each acknowledged receipt of the letter and attached documents.
In yet another affidavit, sworn 13 November 2014, Mr Chan stated that he served a copy of the notice of claim, under cover of a letter dated 13 November 2014, upon Wina and Yusuf, by post, sent on that date. He also stated, in this affidavit, that he handed a copy of the notice to Ishak. He did not mention having served a notice upon Jessica (but she was present in court during the hearing).
With the leave of the court, and without objection, Ishak gave the following evidence:
"Q. First, so far as Wina, is she aware of these proceedings?
A. Yes.
Q. Is she aware of this court case?
A. Yes.
...
Q. Is Wina happy with the will?
A. Yes.
Q. Or does she want to challenge the will?
A. No, she always like to stand on my mother's wish that, in her will.
Q. Does she wish to put on evidence before the court in relation to her financial circumstances?
A. No.
Q. And your brother Yus[u]f?
A. Mm.
Q. Does he want to challenge your mother's will or is he okay with the will?
A. He is, both my brother and my sister would stand firm on the will that my mother signed.
Q. And does your brother wish to put on evidence before the court in relation to his financial position?
A. No.
...
Q. Jessica is your daughter?
A. Yes.
Q. Do you know or not know whether she wants to put on evidence as to her financial position in life?
A. No.
HIS HONOUR
Q. Does that mean no you don't know or no she does not wish to?
A. She doesn't wish to, because I sometimes spoke to her and she says she doesn't want to... increase or decrease, she just want to stand on her [grand]mother's wish on her will and when we asked the other day, sometimes we asking about financial problem, about things like that, I just ask her and she said no."
Whilst this evidence is not particularly satisfactory, it is clear that each of the beneficiaries is aware of the claim by Iskandar.
There is also evidence that Wina and her husband came to Australia to participate in a family conference, in which the claim, or potential claim, by Iskandar for further provision, was discussed. I shall return to the document that was created following this meeting later in these reasons.
(In the Plaintiffs' notice of eligible persons, Jessica, also, was identified as an eligible person. There is no evidence that she was wholly, or partly, dependent upon the deceased at any particular time. The Defendant accepted, at the hearing, that she is not an eligible person within the meaning of that term in s 57(1) of the Act.)
Each of the other children of the deceased, namely Wina and Yusuf, is an eligible person and, with Jessica, is each a beneficiary named in the Will of the deceased. None has raised her, and his, respective competing financial claim on the bounty of the deceased. Only Ishak has raised his competing moral claim on the bounty of the deceased, although this is only peripherally relevant to the position of Jessica. After all, he is not a beneficiary named in the Will of the deceased.
In these circumstances, whilst the competing claim of each, as a chosen object of testamentary bounty, should not be disregarded, the court may assume that each does not wish his, or her, respective financial resources (including earning capacity) and financial needs, both present and future, to be taken into account: Matthews v Wear [2011] NSWSC 1145, at [45], per Macready AsJ.
In Sammut v Kleemann [2012] NSWSC 1030, I wrote, at [137] - [140]:
"The question, then, is what flows from a beneficiary's silence? The answer is, in those circumstances, that the court is entitled to infer that the beneficiary has adequate resources upon which to live and that he, or she, does not wish to advance a competing financial claim upon the bounty of the deceased: Anderson v Teboneras [1990] VicRp 47; [1990] VR 527, at 535, per Ormiston J; Frey v Frey(as personal representatives of the estate of H E Frey, dec'd) [2009] QSC 43, at [148], per A Lyons J; Edgar v Public Trustee for the Northern Territory, at [54], per Kelly J; Neil v Jacovou [2011] NSWSC 87, at [248], per Slattery J; Haklany v Gittany [2011] NSWSC 1549, at [49]-[51] per Slattery J; Hyatt v Covalea [2011] VSC 334, at [128], per Zammitt AsJ; Davis v Davis [2012] NSWSC 201, at [80], per Slattery J; Paola v State Trustees Ltd [2012] VSC 158, at [46], per Zammitt AsJ; and Collins v Mutton [2012] NSWSC 548.
However, the claims of a beneficiary, as the chosen object of the deceased's testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, and also as a person whose interest in the estate may bear the burden of the order made in favour of the applicant, are to be borne in mind. (It is to be remembered that the court must specify, amongst other things, 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: s 65(1)(c) of the Act.)
Where there is no evidence from the beneficiary, it is those claims (i.e. as the chosen object of the deceased's testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, or as a person whose interest in the estate may bear the burden of the order made in favour of the applicant), rather than any financial claim upon the bounty of the deceased, that should be considered. Put another way, and using the oft-quoted words of Salmond J in Re Allen (dec'd); Allen v Manchester [1922] NZLR 218, at 220, the court is not able to have regard to 'the means' of the beneficiary, but the court may still consider 'the deserts of the several claimants' and the 'relative urgency' of the various moral claims upon [the deceased's] bounty.
The court will, thereby, give due regard to 'what the testator regarded as superior claims or preferable dispositions' as demonstrated by his, or her, will: Pontifical Society for the Propagation of the Faith v Scales at 19, per Dixon CJ. In this way, too, the court gives weight to the principle of freedom of testation...".
To the authorities referred to, one should add Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, at [95], and Borebor v Keane [2013] VSC 35, at [65].
Other Background Facts
In respect of Clause 4.1 of the Will, the deceased executed a loan agreement on 18 December 2001, by which:
(a) Ishak was defined as "the Lender";
(b) The deceased was defined as "the Borrower";
(c) Ibrahim was defined as "the deceased";
(d) The Kensington property was defined as "the Property";
(e) Recital D acknowledged and provided that "The [deceased] and [Ibrahim] requested that [Ishak] lend the sum of Four Hundred Thousand Dollars ("the Principal Sum") to assist [the deceased] and [Ibrahim] to build a new dwelling on the Property";
(f) Recital E acknowledged and provided that "[Ishak] agreed to lend and has in fact lent the Principal Sum to [the deceased] and [Ibrahim] for the purposes of building a new dwelling on the Property";
(g) "Since the new dwelling has been built, [Ibrahim] passed away and [the deceased] now becomes the sole owner of the Property": Recital F;
(h) The deceased, by Clause 1.1.1, acknowledged the prior receipt of the $400,000 from Ishak; and
(i) By reason of Clause 2.1.1, $400,000 was required to be repaid to Ishak on "the date on which [the deceased] dies": cf Clause 2.2.
In view of what has been written above regarding the agreement of the parties to pay the legacy of $400,000 to Jessica, the terms of the agreement are of less significance. However, the Loan Agreement does support Ishak's evidence as to his contribution to the building up of the assets of the estate.
It emerged during the cross-examination of Iskandar that he had inherited, from Narty's father, some property in Indonesia. It appears that, in about 2000 or 2001, he inherited a house and an interest, with the siblings of his wife, in a small commercial factory. He stated that the house had been sold and all of the proceeds of sale used to pay the debts secured on it. It was not possible to glean from his evidence whether he continued to retain any interest in the small commercial factory. (It may be, from the tenor of the questions asked by counsel for Ishak, that it was accepted that the small commercial factory had been sold as well. However, this is only speculation and there were no submissions on the lack of evidence from Iskandar about this.)
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 wording of the Act is similar to the wording of the Family Provision Act 1982 (NSW) ("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."
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 (or the disposition on intestacy) 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 the 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, Iskandar relies upon the category of eligibility referred to in s 57(1)(c) of the Act. There is no dispute that he is a child of the deceased.
The language of the relevant sub-section is expressive of the person's status, as well as his, or her, relationship to the deceased. There is no age limit placed on an eligible person making an application.
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, relevantly, by the Will of the deceased (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".
Other than by reference to the provision made by the Will in relation to the estate of the deceased, the operation of the rules of intestacy being irrelevant in the present case, 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 an 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 by the Will, 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 and advancement in life of the applicant.
Importantly, in s 59(1)(c) of the Act, there no longer appears to be any sanction to consider the provision made by the deceased during his, or her, lifetime for the applicant (see s 9(2) of the former Act).
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.
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 Re Dennis (Deceased) [1981] 2 All ER 140, Browne-Wilkinson J, at 145, wrote:
"The court has, up to now, declined to define the exact meaning of the word 'maintenance' and I am certainly not going to depart from that approach. But in my judgment the word 'maintenance' connotes only payments which, directly or indirectly, enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him. The provision that is to be made is to meet recurring expenses, being expenses of living of an income nature. This does not mean that the provision need be by way of income payments. The provision can be by way of lump sum, for example, to buy a house in which the applicant can be housed, thereby relieving him pro tanto of income expenditure. Nor am I suggesting that there may not be cases in which payment of existing debts may not be as appropriate as a maintenance payment; for example, to pay the debts of an applicant in order to enable him to continue to carry on a profit-making business or profession may well be for his maintenance."
In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77, King CJ said:
"The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang (1960) 104 CLR 124, per Dixon CJ at 128."
In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Murphy J wrote, at 505:
"Provision for advancement may, for example, extend to retraining or the gaining of a qualification which could advance and perhaps enable an applicant to maintain himself or herself."
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 had 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 in '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] and [77]. The word "proper" 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, Gibbs J wrote, 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 [2005] HCA 11; (2005) 221 CLR 191, 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, 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]; and Tobin v Ezekiel, at [70].
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. In Collins v McGain [2003] NSWCA 190, Tobias JA, with whom Beazley and Hodgson JJA agreed, 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]. It is different from "want". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808, at [54]:
"'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'."
In Boettcher v Driscoll [2014] SASC 86, David J, at [41], added:
"'Need' is not so synonymous with 'want' such that the two are interchangeable."
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.
Yet, in referring to the concept of "need", it should also be noted that the statutory formula makes no reference to "need", but rather to "adequate provision for the proper maintenance, education or advancement in life". No doubt, this has prompted White J to write, 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". I respectfully agree.
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 Iskandar is an eligible person, and that adequate provision for his 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.
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 [2012] NSWCA 308; (2012) 81 NSWLR 656. I also refer to what Bergin CJ in Eq has written 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.
White J in Slack v Rogan; Palffy v Rogan, at [121], wrote 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."
In Chapple v Wilcox [2014] NSWCA 392, Basten JA, at [7], wrote:
"Section 60 of the Succession Act spells out the matters which the Court may have regard to in determining whether the claimant 'is an eligible person' and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the 'nature of any such order', which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b)."
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.
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.
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
The matter, however, will be listed before me on a mutually convenient date in case agreement cannot be reached on the form of the Short Minutes of Order. On that date, if necessary, I will also deal with any outstanding argument on costs. If I am able to deal with the matter in Chambers, the date to which the matter is adjourned will be vacated.
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Decision last updated: 03 December 2014
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