Life v Hall

[2016] NSWSC 316

Supreme Court

New South Wales

Medium Neutral Citation:	Life v Hall [2016] NSWSC 316
Hearing dates:	7 March 2016
Date of orders:	31 March 2016
Decision date:	31 March 2016
Jurisdiction:	Equity
Before:	Hallen J
Decision:	Direct the parties to prepare Short Minutes of Order within 21 days giving effect to these reasons.  Stand the matter over to a date convenient to the parties and to the Court for the making of orders and for determining any questions about the form of the orders, in the event agreement cannot be reached.
Catchwords:	SUCCESSION - FAMILY PROVISION - The Plaintiff, a son of the deceased, applies, out of time, for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant is also a child of the deceased and the sister of the Plaintiff - Deceased left a Will - Provision made for the Plaintiff – Modest actual estate and no notional estate – Whether sufficient cause for making an order extending the time for the making of the Plaintiff’s application – Sufficient cause established - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and if so the nature and quantum of the provision to be made – Order for further provision by way of an amount equating to an additional percentage of the net estate absolutely, and, if the Plaintiff purchases accommodation, partly by way of an amount which equates to an additional percentage, which amount is by way of loan from the Defendant’s share of the estate, repayable to the Defendant, and secured, by registered mortgage, on any property purchased by the Plaintiff
Legislation Cited:	Family Provision Act 1982 (NSW) Succession Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 Bartlett v Coomber [2008] NSWCA 100 Boettcher v Driscoll [2014] SASC 86; (2014) 119 SASR 523 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 Butcher v Craig [2009] WASC 164 Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748 Chandler v Coulson [2015] NSWSC 172 Chapple v Wilcox [2014] NSWCA 392; (2014) 87 NSWLR 646 Christie v Manera [2006] WASC 287 Crisp v Burns Philp Trustee Company Ltd (Supreme Court (NSW), 18 December 1979, unrep) Collicoat v McMillan [1999] 3 VR 803 Crossman v Riedel [2004] ACTSC 127 de Angelis v de Angelis [2003] VSC 432 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 Edgar v Public Trustee for the Northern Territory [2011] NTSC 5 Flathaug v Weaver [2003] NZFLR 730 Foley v Ellis [2008] NSWCA 288 Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep) 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 Harrison v Harrison [2011] VSC 459 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 Hunter v Hunter (1987) 8 NSWLR 573 Hyland v Burbidge [2000] NSWSC 12 In re Allardice; Allardice v Allardice (1910) 29 NZLR 959 In re Allen (Deceased); Allen v Manchester [1922] NZLR 218 In the Estate of Puckridge, Deceased (1978) 20 SASR 72 John v John [2010] NSWSC 937 Kay v Archbold [2008] NSWSC 254 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 McCosker v McCosker (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 MacGregor v MacGregor [2003] WASC 169 McKenzie v Topp [2004] VSC 90 Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146 Marks v Marks [2003] WASCA 297 Mayfield v Lloyd-Williams [2004] NSWSC 419 Moore v Randall [2012] NSWSC 184 Palagiano v Mankarios [2011] NSWSC 61 Palmer v Dolman [2005] NSWCA 361 Phillips v James [2014] NSWCA 4; 85 NSWLR 619 Pogorelic v Banovich [2007] WASC 45 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 Re Buckland, Deceased [1966] VR 404 Re Salmon, Deceased [1981] Ch 167 Salmon v Osmond [2015] NSWCA 42 Singer v Berghouse [1994] HCA 40; 181 CLR 201 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253 Smith v Johnson [2015] NSWCA 297 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stewart v Stewart [2015] QSC 238 Sung v Malaxos [2015] NSWSC 186 Szypica v O’Beirne [2013] NSWSC 297 Taylor v Farrugia [2009] NSWSC 801 Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 Underwood v Gaudron [2015] NSWCA 269 Verzar v Verzar [2012] NSWSC 1380 Verzar v Verzar [2014] NSWCA 45 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Vincent v Lewis [2006] NZFLR 812 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) White v Barron [1980] HCA 14; 144 CLR 431 Wilcox v Wilcox [2012] NSWSC 1138
Texts 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
Category:	Principal judgment
Parties:	Paul Graeme Life (Plaintiff) Francene Gai Hall (Defendant)
Representation:	Counsel: Ms V Hartstein (Plaintiff) Mr E Petersen (Defendant)   Solicitors: Reid Lawyers (Plaintiff) A C Knibb Kaine & Associates (Defendant)
File Number(s):	2015/190156

Judgment

The Claim

1. HIS HONOUR: This is a claim for a family provision order, under Part 3.2 of the Succession Act 2006 (NSW) (“the Act”), out of the estate and notional estate of Marjorie Aileen Life (“the deceased”) who died on 16 May 2013. It is made by Paul Graeme Life, a child of the deceased. (Although there is an order sought “designating as notional estate such property as the evidence may disclose”, the parties agreed at the hearing, that there is no property that may be designated as notional estate.)

2. The Act applies in respect of the estate and notional estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (“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 of the Act, 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. In this case, the Plaintiff seeks greater provision than that made for him in the Will of the deceased.

3. The Defendant in the proceedings is Francene Gai Hall, also a child of the deceased and the only sibling of the Plaintiff. She is the sole executrix named in the deceased’s Will, an appointment which was not changed by the Codicil made by the deceased on 16 September 2004.

4. Every opportunity was given to the parties to resolve the proceedings without incurring the costs that have been incurred. That a case between the only two children of the deceased has proceeded, with virtually all matters put in issue (with the exception of eligibility), provides yet another example of the high level of emotion that can be generated in relation to the distribution of a parent’s estate. (As will be read, it was only at the hearing that a number of the issues were able to be resolved by agreement.)

5. It is also clear, from the evidence, that the relationship of the Plaintiff and the Defendant has broken down, it seems, irretrievably, and that it is not, and, since at least 2010, has not been, a close one. No doubt, this, also, has contributed to the matter proceeding to a final hearing.

6. The Plaintiff commenced proceedings by Summons filed on 29 June 2015. It is not in dispute that the proceedings were commenced outside the time prescribed by the Act (not later than 12 months after the date of the death of the deceased). However, the Plaintiff did not seek an order extending the time for the making of his application until he filed an amended Summons on 9 November 2015.

7. The Defendant submits that an order should be not be made extending the time for the making the Plaintiff’s application, principally because his substantive claim should be dismissed.

Background Facts

8. I am satisfied that the following facts have been established, and that they provide a useful background. In relation to any disputed matters to which I refer, the following facts should be regarded as the findings of the Court.

9. The deceased died aged 88 years, having been born in February 1925.

10. The deceased was married to Allan George Life, and they remained married until his death in March 1992, at 70 years of age.

11. The deceased and Allan had only two children, who are the parties in the proceedings. The Plaintiff was born in August 1948 and the Defendant was born in February 1957.

12. The deceased left a Will dated 22 July 1996 and a Codicil dated 16 September 2004. There is no dispute that, pursuant to the Will and the Codicil, the deceased’s jewellery and furniture passes to the Defendant and that the residuary estate of the deceased is shared, equally, between the Plaintiff and the Defendant.

13. (There was evidence from the Plaintiff that the deceased gave her jewellery to the Defendant during her lifetime. Nothing really turns on this other than it is to be observed the Plaintiff considered that this involved a preferential gift to the Defendant, about which he was unhappy “because there is a principle involved”: T20.14 – T20.16.) The furniture remains in the deceased’s home, but, it seems, is of no commercial value.

14. (In the Codicil, the bequest of one quarter share to the Defendant’s husband, Robert Arthur Hall, was revoked and the quarter share passing to him, passes to the Plaintiff. There is a suggestion in the evidence that the Plaintiff encouraged the deceased to change the Will to exclude her son-in-law, but it is not suggested that this was not the deceased’s testamentary intention when she executed the Codicil.)

15. The Will then gave the Defendant, as executrix, power, in her absolute discretion, “to sell call in and convert into money the whole or any part of my estate as she shall think fit at such time or times in such manner at such price and upon such terms as she shall think appropriate” (Clause 5(a)) and “[t]o postpone the sale calling in and conversion of my estate or any part of it for so long as my Trustee without being liable to account shall think proper” (Clause 5(b)). (These powers were not changed by the Codicil.)

16. This Court granted Probate of the Will and a Codicil on 28 August 2013.

17. According to the Inventory of Property, a copy of which was attached to the Probate, the property solely owned by the deceased, at the date of her death, was disclosed as having an estimated, or known, gross value of $519,536. Her estate was said to consist of real estate at Kariong (“the Kariong property”) ($410,000), and monies in bank accounts or otherwise on deposit ($109,536). (Kariong is a town situated on the Central Coast of New South Wales, west of Gosford.)

18. In her affidavit sworn 28 August 2015, the Defendant disclosed liabilities of the estate, which had been paid, as $8,016. She also stated that “a few hundred dollars” had been deducted by the Bank, as “withholding tax”. She asserted that there were additional liabilities of the estate, amounting to $9,828, which had not been paid, including some legal costs of associated proceedings to which I shall refer. (She also stated that “Executor’s Commission” was “to be determined”.)

19. Following the grant of Probate, the estate was “partially realised”. The title to the Kariong property has been transmitted to the Defendant as executrix and the cash has been collected and is held in either a controlled money account or in the trust account of the Defendant’s solicitors. Other than as set out below, there have been no distributions made.

20. The deceased and Allan purchased the Kariong property in about 1984. They lived together in that property until Allan’s death and the deceased continued to live there (other than when she was hospitalised in 2010) until October 2011, when she was admitted to a nursing home in Erina, where she remained until her death.

21. I should mention that the Kariong property comprises land, irregular in shape, of about 601 square metres, upon which is built a single level brick and tile roof house, comprising a kitchen, 3 bedrooms, 2 with built ins, a sunken lounge, a bathroom, a family/meals room, a rumpus room with a separate toilet and hand basin. There is an attached double car garage with internal access. The house is said to be in a satisfactory, if somewhat dated, condition.

22. At the date of hearing, the parties agreed that the deceased’s estate had an estimated value of $594,386. The estate is said to currently consist of the Kariong property (with an agreed value, for the purposes of the hearing, of $530,000) and cash in a controlled moneys account and in the solicitors’ trust account (in total, $64,386).

23. The Defendant has remained in occupation of the Kariong property since the death of the deceased, despite the Defendant’s written requests to vacate. He has not paid any rent, or occupation fee, during the period of his occupation. Indeed, during his period of occupation, even whilst the deceased lived in the Kariong property, she paid the rates and insurance and they shared only the costs of food and electricity. The Plaintiff paid the telephone bills. (Other evidence reveals that council and water rates ($1,566) have been paid for the Kariong property since the death of the deceased out of the estate.)

24. It was necessary for the Defendant to commence proceedings against the Plaintiff to obtain possession of the Kariong property. She commenced proceedings, by Statement of Claim, filed in the Possession List of this Court, on 20 November 2014. Those proceedings have not been determined. The Court’s computerised record system reveals that the only order that has been made is one extending the time for service of the Statement of Claim on the Defendant to 21 August 2015.

25. At the hearing, both counsel agreed that the Court, in these proceedings, had power to make an order that would require the Plaintiff to vacate the Kariong property to enable its sale, if that were necessary. The parties were also able to agree that if an order is made that the Kariong property is to be sold, an additional order may be made that the Plaintiff vacate possession within 42 days of the date of the making of the order.

26. Orders in accordance with their agreement should be made in these proceedings and the Common Law proceedings should be dismissed, with an order that the costs of the Defendant as the Plaintiff in those proceedings, not already paid, are to be paid out of the estate.

27. Subject to submissions which may be made on the question of costs, usually, in calculating the value of the deceased’s estate finally available for distribution, the costs of the present proceedings should be considered, with circumspection, since the Plaintiff, if successful, normally, will be entitled to an order that his costs, calculated on the ordinary basis, be paid out of the estate of the deceased, whilst the Defendant, as the administrator, irrespective of the outcome of the proceedings, normally, will be entitled to an order that her costs, calculated on the indemnity basis, be paid out of the estate.

28. The Plaintiff’s solicitor, Mr S Reid, deposed, in an affidavit sworn on 5 February 2016, that the Plaintiff’s costs and disbursements, calculated on the indemnity basis, are $50,000 plus GST (upon the basis of a one day hearing). He did not disclose those costs and disbursements calculated on the ordinary basis. However, at the hearing, the Court was informed, by counsel for the Plaintiff, from the bar table, without objection, that the Plaintiff’s costs and disbursements, calculated on the ordinary basis, inclusive of GST, are estimated to be $38,500.

29. Mr K J Williams, solicitor, in an affidavit sworn on 17 February 2016, estimated the Defendant’s costs and disbursements of the present proceedings, including counsel’s fees, calculated on the indemnity basis (upon the basis of a one day hearing), to be about $50,000 plus GST. The Defendant has paid $34,355 out of the estate on account of these costs (and the costs of the Common Law possession proceedings), with the amount of $20,645 left to be paid.

30. (I was informed by counsel that each of the parties has made a Calderbank offer that may be relevant to how the costs of each party is to be borne. Accordingly, whether all of the costs of one party and/or the other are to be paid out of the estate, cannot be determined at this time.)

31. The parties were also able to agree that if the Kariong property is sold, the estimated costs and expenses of sale, including agent’s commission and legal costs, will be $18,750.

32. It follows, that if all of the estimates prove accurate, and if all of the liabilities set out above are ordered to be paid out of the estate, the estimated amount that will be available for distribution equally between the parties will be $516,491. Subject to any family provision order, each will, therefore, receive out of the estate, about $258,245.

33. Then, the parties agreed that if further provision is to be made for the Plaintiff, it should be calculated as an additional percentage of the estate rather than a lump sum based upon the estimates. This will enable the actual net proceeds of sale of the Kariong property, added to the cash also held, to be calculated, from which the payment of the liabilities of the estate may be made. This will provide more precise calculations of the entitlement of the parties to be made.

34. I am satisfied that this is an appropriate way to proceed. In coming to the conclusion as to the method of calculating any family provision order to be made for the Plaintiff, I have remembered that McDougall J in Bouttell v Rapisarda [2014] NSWSC 1192 at [96], raised the concern that “to make provision by way of a share, the value of which can only be ascertained until after realisation of all the estate's assets, runs the very real risk of under-providing (or over-providing) for [the applicant's] needs”.

35. Whilst this is undoubtedly true, it seems to me that in some cases, for example where the estate has a value that cannot be precisely determined because of the volatility of the real estate market, to make a lump sum order will not be the most appropriate way of determining what is “proper” in all the circumstances of the case. In this way, both the Plaintiff and the Defendant would benefit if the Kariong property were sold for a price greater than had been agreed for the purposes of the hearing, and each would be detrimentally affected if it sold for less than the agreed figure. There would also be certainty of the price, the costs and the expenses upon which calculations could be made. It cannot be forgotten that the actual value of the estate is a relevant consideration in determining the adequacy and propriety of the provision. Furthermore, the Act, in s 65(2), specifies the ways in which provision may be made, and includes, "in any other manner the Court thinks fit".

36. In this case, it is also relevant to note that the deceased chose to divide the residue of her estate equally, rather than providing the Plaintiff with a pecuniary legacy.

37. I shall use the estimates agreed upon to provide a guide to whether an order should be made, and the quantum of the family provision order, if any, to be made in favour of the Plaintiff.

38. The parties agreed that there are no other eligible persons in respect of whom an application for a family provision order may be made.

Other Facts

39. A number of additional facts, the subject of evidence, should be identified. Once again, these facts should be regarded as the findings of the court to the extent that any are the subject of dispute between the parties.

39. The deceased appointed the Defendant her Enduring Guardian on 11 February 2004. The Plaintiff made application to the Guardianship Tribunal to review that appointment in March 2010. He also sought a review of the making, operation and effect of an Enduring Power of Attorney which the deceased made in favour of the Defendant on 22 July 1996. On 28 May 2010, the Guardianship Tribunal dismissed both applications for review. In each case, the Plaintiff had stated that the application “was made because of the conflict between [the Defendant] and himself and concerns about the decisions being made by [the Defendant]”: Ex. 1/93.

40. There is a copy document dated 12 September 2004, signed by the Plaintiff, in which he stated that he did “not wish to have joint Power of Attorney with my sister Mrs Francene Gai Hall. Nor do I wish to be executor of my mother Mrs Marjorie Aileen Life’s estate”.

41. The Plaintiff purchased a property at Agnes Water, a town in Central Queensland, located 70 kilometres northwest of Bundaberg, in 1999, for $35,000. It was, and remains, vacant, uncleared, land comprising 4.25 acres. He has placed a small removable one bedroom home, with a satellite dish, on a concrete slab on the land, as well as a caravan.

42. The Plaintiff has spent various amounts of time at the Agnes Water property. He has, in the past, also rented it for $130 per week, but, currently, it is not rented.

Open Offer made by the Plaintiff

44. During the hearing, the Plaintiff tendered a letter dated 6 March 2016 which was said to contain an open offer made on Sunday 6 March 2016, and which offer had expired through effluxion of time. It would not have been admissible at the time of the tender other than on the question of costs. However, it was relevant because the terms of the offer set out in the letter, with one term added, was made as an open offer at the commencement of the hearing.

45. The open offer made by the Plaintiff at the commencement of the hearing was in the following terms (Ex. B):

“1.   In lieu of the provision made for him in the will of the deceased, the plaintiff receive, by way of provision, an order in the nature of a Crisp order (Crisp v Burns Philp Trustee Co Ltd (NSWSC, 18 December 1979, unreported) a flexible and portable life estate to the estate property known as xx xxxx xxxx, Kariong and thereafter to such accommodation as he requires and upon the death of the plaintiff the defendant is to receive the entire remaining residue of the estate of late Marjorie Aileen Life.

2.   The plaintiff shall execute an irrevocable will leaving 50% of his estate to the defendant.

2A   In the event that the plaintiff sells his property at Agnes Water he shall place one half of the net proceeds of sale in an interest bearing account and not remove any part of the capital sum from that account.

3.   The plaintiff’s costs of the proceedings be paid by the estate on the ordinary basis;

4.   The defendant’s costs of the proceedings be paid by the estate on an indemnity basis;

5.   Any net residue of the estate to be divided equally between the plaintiff and defendant.”

46. The Defendant, during the hearing, did not indicate acceptance of the open offer. Indeed, I infer that the open offer was rejected as the hearing proceeded to its conclusion. The relevance, if any, of the open offer, now is that it demonstrates the nature of one order that the Plaintiff seeks, and the terms on which it is sought. It may also, perhaps, be relevant on the question of costs of the proceedings.

The Statutory Scheme – The Act

47. Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. I have collected the principles that are generally applicable in many other cases in similar, if not identical, terms. However, in view of the importance of this case to the parties, I repeat these principles. It is equally important that they are able to follow the reasoning and for each of them to be satisfied that I have considered the evidence and the submissions in the application and borne in mind the principles to which I have adverted.

48. In cases such as the present, the court must determine (not necessarily in the order set out below) whether:

(a) The Plaintiff is an eligible person within the meaning of that term in s 57(1) of the Act;

(b)   The time for the making of the Plaintiff’s application should be extended; and

(c)   The Plaintiff has been left with inadequate provision for his proper maintenance, education and advancement in life; and, if so, what, if any, provision (or further provision) ought to be made out of the estate for those purposes.

49. These matters are not entirely distinct, but are related and overlap. For example, as will be read, the strength of the substantive claim for provision is relevant to the exercise of discretion to make an order extending the time for the making of the application.

Eligibility

50. 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)). It is only an “eligible person” who may apply to the Court for a family provision order. Relevantly, in this case, the Plaintiff 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.

51. 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.

Extension of Time

52. Section 58(2) of the Act provides that an application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the court otherwise orders on sufficient cause being shown. If sufficient cause is shown, then the court, having regard to all the circumstances of the case, may extend the time for making an application.

53. In Moore v Randall [2012] NSWSC 184, White J, at [39], said that the expression “sufficient cause” means “sufficient explanation or sufficient justification or excuse for the application not having been made within the prescribed period.” In Verzar v Verzar [2014] NSWCA 45, in the Court of Appeal, Meagher JA wrote, at [24], that “[t]he sufficient cause or reason to which s 58(2) is directed is that for allowing an application to be made out of time”.

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

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

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

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

56. In Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 at [84]-[90], I set out the applicable legal principles relating to an application to extend the time, as follows:

“The decision of the court to extend time is a discretionary decision. Other than “sufficient cause being shown”, there are no statutory criteria that must be taken into account. There are no rigid rules in regard to the exercise of the discretion.

The principles governing that exercise of discretion under the Act are clear. Apart from the reason(s) for the lateness of the claim, the factors to which the court must look, include whether beneficiaries under the Will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by either side; and, finally what is the strength of the claim made by the party seeking an extension of time: see, for example, John v John; John v John [2010] NSWSC 937 at [37]- [51] per Ward J; Campbell v Chabert-McKay [2010] NSWSC 859 at [45]- [47] per White J; Durham v Durham [2010] NSWSC 389 at [15] per Ball J; Taylor v Farrugia [2009] NSWSC 801 at [14] per Brereton J; Burton v Moss [2010] NSWSC 163 at [31] ff, per Macready As J, in which the relevant earlier cases are referred to.

The onus lies on the applicant to establish sufficient cause. It will be for the court to determine the strength of the applicant's claim.

The prejudice to which the section looks is any prejudice occasioned by the delay in lodging the claim rather than any disappointment that might occur consequent upon readjustment of the interests under the will in order to make provision for the applicant: Cetojevic v Cetojevic [2006] NSWSC 431; McCann v Ward & Anor [2010] VSC 452 at [11]. Where there has been a long period since the deceased died, the lapse of time, itself, might create prejudice in any fact-finding exercise: Vasconelos v Bonetig [2011] NSWSC 1029 at [21].

In De Winter v Johnstone (NSWCA, 23 August 1995, unreported), Sheller JA held that the concept of “unconscionable conduct” referred to above was “directed towards a deliberate holding off [in bringing proceedings] designed to lull the beneficiaries into a false sense of security”. Cole JA, whilst not expressing a concluded view, said that it must be doubted whether a change of mind (because of some change in the financial and material circumstances of the Plaintiff which has occurred after the expiry of the limitation period) constitutes unconscionable conduct.

As to the strength of the claim, in De Winter v Johnstone, Powell JA considered that as an application for extension of time was invariably dealt with at the time of the application for substantive relief, no extension of time ought to be granted unless it was established that the applicant seeking an extension of time would, in the event of the extension being granted, be entitled to an order for substantive relief. By contrast, Sheller JA considered that it was only necessary for the applicant to show that the application was not bound to fail.

Where the delay is not unduly long and the estate remains undistributed, ignorance during the period within which proceedings are to be commenced, of the right to claim, followed by a prompt application to extend the time once the right to claim becomes known, will usually be a sufficient explanation: Clark v Burns [2011] VSC 394 at [6].”

57. To refuse to make an order extending the time for the making of an application that is devoid of merit would not visit an injustice on the applicant. As Meagher JA noted in Verzar v Verzar [2014] at [33]-[35]:

“There are at least two respects in which the strength of the application sought to be made out of time may be relevant to whether there is ‘sufficient cause’ to extend the time for making it. The first is whether the application as made has sufficient prospects of success to justify an extension. That assessment should be of the application viewed at the time it is or is likely to be heard because of the provisions of s 59(1)(c) and (2)…

The second respect in which the strength of the application may be relevant is if allowing the out of time application to proceed would or may have the effect of improving the applicant’s position from that which would have obtained had the application been made in a timely manner. That is the consideration referred to by Tobias JA in Durham v Durham at [24], [37] when confirming the correctness of the approach adopted by the judge in that case and by Bryson J in Davison v Staley (unreported, Supreme Court of NSW, 21 August 1996)…

Because the assessment of adequacy of provision for proper maintenance, education and advancement in life is to be made at the time the Court is hearing the application (ss 59(1)(c) and (2)), when addressing this question it is necessary first to consider when the application would have been likely to have been heard if made in a timely manner and then to compare the position in that event with the position in fact, namely that the application has been made out of time. Ordinarily, this analysis would assume, as is usually the case and as happened in this proceeding, that the application for an extension of time and the application for substantive relief are made in one proceeding and dealt with in a single hearing. (That was not the case with applications for extensions of time made under the Testator’s Family Maintenance and Guardianship of Infants Act 1916: see De Winter v Johnstone [1995] NSWCA 120 at p 17 per Powell JA).”

58. As well as taking into account the reasonableness of the conduct of the applicant, it will also be necessary to have regard to the history of the proceedings, the conduct of the other parties, the nature of the litigation, and the consequences for the parties of the grant, or refusal, of the application for extension of time, “the size and nature of the estate, the position of the individual applicants, the rightful expectations of those already interested under the will, and, to some extent at least, the importance that there be some finality and certainty in the administration of a deceased person’s estate”: Harrison v Harrison [2011] VSC 459 at [292].

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

“Ultimately, justice is the paramount consideration in determining whether to extend the time for making an application…”

Inadequacy of Provision

60. It is only if eligibility is satisfied, and if sufficient cause for an order extending the time for the making of the Plaintiff’s application is shown, 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 operation of the Will (the operation of the intestacy rules being irrelevant (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”.

61. Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) 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 made for the applicant in the Will of the deceased, 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.

62. 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.”

63. Basten JA, in Foley v Ellis [2008] NSWCA 288 at [3], commented 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].

64. Under s 59(1)(c), 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.

65. 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 early period of life in the members of the family: Blore v Lang, per Dixon CJ at p. 128.” [Footnotes omitted]

66. In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 at [505], Murphy J wrote:

“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.”

67. 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).”

68. 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 reached upon “a purely economic and objective basis”, 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 at [72] and [77] (Buss JA) which seems to invite more subjective criteria.

69. 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.”

70. 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.”

71. 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 all 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.”

72. 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.”

73. In Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at [114], Callinan and Heydon JJ said:

“[T]he use of the word ‘proper’… implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here… The use of the word ‘proper’ means that attention may be given, in deciding whether adequate provision has been made, to such matters as what 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.”

74. 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 wrote, 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…”

75. In Palagiano 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 “[t]here are no definite criteria by which the question can be answered.”

76. The question whether the deceased has made adequate provision for an applicant is a question of objective fact the determination of which involves an evaluative judgment (Singer v Berghouse [1994] HCA 40; 181 CLR 201 at [210]-[211]; White v Barron [1980] HCA 14; 144 CLR 431 at [434]-[5]; [443]).

77. If the court is satisfied that inadequate provision for the proper maintenance, education or advancement in life has been made by the Will of the deceased, for the applicant, then the court may make a family provision order. In determining the question, the court has regard to, among other things, the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased and the circumstances and needs of the other beneficiaries or potential beneficiaries: see McCosker v McCosker at [571]-[572]; Singer v Berghouse at [209]-[210]; Vigolo v Bostin at [16], [75], [112]; Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 at [70]; Verzar v Verzar [2014] at [39].

78. The determination of the question whether the disposition of the deceased’s estate was not such as to make adequate provision for the applicant will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant’s “needs” that cannot be met from his, or her, own resources on the other: See Hunter v Hunter (1987) 8 NSWLR 573 at 575 (Kirby P).

79. Thus, whether an applicant has a “need” or “needs” is also a relevant factor in the enquiry: see s 60(2)(d) of the Act. It is an elusive and an elastic 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. The concept involves economic considerations.

80. “Need” has also been used in the context of a value judgment or conclusion, namely, that the applicant is “in need” of maintenance, education or advancement in life, because inadequate provision has been made for his or her proper maintenance, education and advancement in life: see Gorton v Parks (1989) 17 NSWLR 1 per Bryson J, at 10-11.

81. Although the existence, or absence, of “needs” which the applicant cannot meet from her, or his, 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, maintenance education and advancement in life: see Singer v Berghouse at [227] (Gaudron J). Compare Gorton v Parks, at 6-11 (Bryson J); Collicoat v McMillan [1999] 3 VR 803 at [38], [47] (Ormiston J).

82. “Need”, of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45] (Dodds-Streeton J). It is different from “want” and does not simply mean “demand” or “desire”. 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’.”

83. In Boettcher v Driscoll [2014] SASC 86; (2014) 119 SASR 523, David J, at [41], added:

“‘Need’ is not so synonymous with ‘want’ such that the two are interchangeable.”

84. As Callinan and Heydon JJ emphasised in Vigolo v Bostin at [122], 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 upon 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. Thus, “need” may be assessed by considering the applicant’s financial position, lifestyle and general expectations in life and health: Stewart v Stewart [2015] QSC 238 at [11] (Applegarth J).

85. In the event that the court is satisfied that the power to make an order is enlivened (i.e. in this case, it is satisfied that the Plaintiff is an eligible person, that sufficient cause has been established to extend the time for the making of his application, 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.

86. Then, under s 59(2) and s 60(1)(b) of the Act the court determines what provision, if any, ought be made for the applicant out of the deceased’s estate or notional estate. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at [211], affirmed that this decision 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.

87. Section 60(2) 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.”

88. It can be seen that s 60(2) enumerates 15 specific matters, in addition to any other matter the Court considers relevant, described by Basten JA in Andrew v Andrew [2012] NSWCA 308; 81 NSWLR 656 at [37], as “a multifactorial list”, and by Lindsay J in Verzar v Verzar [2012] at [121] and [123], as “a valuable prompt” to which the court may have regard for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order. It has been suggested that the expanded list of criteria provides a “more focused direction to the court”: Phillips v James [2014] NSWCA 4; 85 NSWLR 619 at [51] (Beazley P, Meagher JA agreeing).

89. White J wrote in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253 at [121], that s 60 “lists a wide range of matters” that the court “may have regard to”, but these do not provide any tangible assistance in answering the question in any particular case whether the provision made in a will was less than adequate for an eligible applicant’s “proper” maintenance, education or advancement in life.

90. In Chapple v Wilcox [2014] NSWCA 392; (2014) 87 NSWLR 646, 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).”

91. 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.

92. The section also 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.

93. 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).

94. 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.

95. Sub-section (2)(d) refers to “earning capacity”, which means no more than the capacity to find employment to earn or derive income.

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

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

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

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

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

97. The order for provision may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or “in any other manner the Court thinks fit” (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).

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

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

100. Section 99(1) of the Act provides that the court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the court thinks fit.

Other Applicable Legal Principles – Substantive Application

101. Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges and I have repeated them in many cases under the Act.

102. Bryson J noted in Gorton v Parks, at [6], that it is not appropriate to endeavour to achieve “an overall fair” disposition of the deceased’s estate. It is not part of the court’s function to achieve some kind of equity between the various claimants. As Pembroke J has recently repeated in Sung v Malaxos [2015] NSWSC 186, at [5]:

“Fairness and equality are not touchstones for relief under the Succession Act.”

103. The court’s discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased’s freedom of testation. “Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator’s decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court”: Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at [19] (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63].

104. Of that freedom, in Grey v Harrison, Callaway JA said, at [366]:

“[I]t is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator’s dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator’s bounty and give it to someone else. In conferring a discretion in the wide terms found in s 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent.”

105. In Vigolo v Bostin, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained:

“It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification.”

106. In Goodsell v Wellington [2011] NSWSC 1232, I noted, at [108], that:

“Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated.”

107. As Pembroke J said in Wilcox v Wilcox [2012] NSWSC 1138 at [23]:

“The court does not simply ride roughshod over the testator’s intentions… The court’s power to make an award is limited. The purpose of the discretionary power under Section 59(1) is to redress circumstances where ‘adequate provision’ has not been made for the ‘proper maintenance, education or advancement in life’ of the claimant. The adjectives ‘adequate’ and ‘proper’ are words of circumspection.”

108. Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at [19]; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.

109. In Chapple v Wilcox, Basten JA, at [12], and Barrett JA, at [63]-[64], emphasised the central role played by “community standards” or “community expectations” in any decision whether to take the significant step of overriding the expressed wishes of the deceased.

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

111. The Act is not a “Destitute Persons Act” and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice; Allardice v Allardice (1910) 29 NZLR 959 at [966]. The use of the word “proper” requires consideration to be given to more than satisfying the basic needs of an applicant (cf Chandler v Coulson [2015] NSWSC 172 at [26] (Pembroke J)).

112. The standard of living of an applicant during the lifetime of the deceased is relevant, but the fact that he, or she, has lived frugally, or that he, or she, has become accustomed to a life of relative penury, does not mean that the deceased’s obligation under the Act is satisfied so long as the applicant can continue in that state: Pogorelic v Banovich [2007] WASC 45 at [62]; Butcher v Craig [2009] WASC 164.

113. All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singer v Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12 at [56]. Nor does it follow that if the court decides “it is inappropriate to make a specific provision in respect of one identified head of claim that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment”: Mayfield v Lloyd-Williams [2004] NSWSC 419 at [89].

114. As stated in the above passage, the size of the estate is a significant consideration in determining an application for provision. It is important to remember what Salmond J said in In re Allen (Deceased); Allen v Manchester [1922] NZLR 218 at [221]:

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

115. In relation to the Plaintiff’s claim, being a claim by an adult child, the following principles are useful to remember:

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

(b)    It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, child up in a position where she or he can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801 at [57]; Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond [2015] NSWCA 42 at [109].

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

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

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

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

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

116. A very similar statement of the principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [111], was cited with approval in Chapple v Wilcox at [21] (Basten JA); and at [65]-[67] (Barrett JA); and was referred to, with no apparent disapproval (although in that appeal there was no challenge the correctness of those principles), in Smith v Johnson [2015] NSWCA 297, at [62].

117. In Foley v Ellis, Sackville AJA, at [88], noted that Singer v Berghouse “strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased’s bounty. These claimants include other beneficiaries entitled to a share of the deceased’s estate, whether or not they themselves have made a claim under the Family Provision Act”.

118. In other words, any additional provision for the Plaintiff must be considered in the context of the proper claims that the deceased herself recognised needed to be satisfied out of her testamentary bounty. The Defendant, of course, is not an applicant for provision. She does not have to prove an entitlement to the provision made in the deceased’s Will or otherwise justify such provision. What was written in Edgar v Public Trustee for the Northern Territory [2011] NTSC 5 at [46] by Kelly J should be remembered:

“There is no onus on the... residuary beneficiary under the will to show that she is entitled to be treated as such – or to prove what may be necessary for her proper maintenance and support. Rather the onus is on the plaintiff to show that proper provision is not available for him under the terms of the will. In determining whether this is the case the Court must have regard to all relevant circumstances including the size of the estate and the nature of the competing claim by the [residuary beneficiary]. In performing this task the Court must have due regard to the will of the testator and should interfere only to the minimum extent necessary to make adequate provision for the proper maintenance, education and advancement in life of an applicant who has passed the first jurisdictional hurdle. As Dixon CJ said in the passage from Scales quoted above, due regard must be had to ‘what the testator regarded as superior claims or preferable dispositions’ as demonstrated by his will.” [Footnotes omitted]

119. In Palmer v Dolman [2005] NSWCA 361, Ipp JA held, at [115], that the circumstances to be taken into account in that case included the fact that none of the beneficiaries nominated in the deceased’s will (other than the applicant and one other beneficiary) “had any claim on [the testator’s] bounty or demonstrated need”.

Qualifications on “Principles”

120. As I have stated in a number of cases (see, for example, Bowditch v NSW Trustee and Guardian), I do not intend what I have described as “principles” to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I identify them merely as providing useful guidance, which may be applied, with circumspection, in considering the statutory provisions, the terms of which must remain firmly in mind.

121. It is necessary for the court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the bases for a family provision order have been established. Every case is different and must be decided on its own facts. As Lindsay J said in Verzar v Verzar [2012] at [131]:

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

122. The importance of the qualifications to which I have referred in the last two paragraphs have been stressed in Chapple v Wilcox by Basten JA, at [18]-[20], and by Barrett JA, at [66]-[67]. They must be remembered.

Extension of Time

123. As is clear from what has been written, the Plaintiff’s Summons was filed approximately 2 years and one month after the death of the deceased. Accordingly, it was filed 13 months outside the time prescribed by the Act.

124. The Plaintiff provided some evidence which goes to explaining his failure to commence proceedings within the time prescribed by the Act. He stated in an affidavit sworn on 7 July 2015 that he suffered from “chronic depression for which I receive a disability pension”.

125. In a subsequent affidavit, sworn on 14 August 2015, he again referred to his chronic depression, but to this affidavit he annexed a report from his treating psychologist, as well as two reports from his general practitioners. I shall return to the contents of these reports later in these reasons.

126. He then stated:

“My depression continues to have a significant impact on my daily life and it has an enormous impact on my ability to make decisions. I find that when I am faced with certain situations my depression can cause me to feel overwhelmed and I shut down feeling that everything is becoming too much for me.”

127. The Plaintiff gives evidence of having received a number of letters from the Defendant demanding that he vacate the Kariong property. He says that he was not able to deal with this correspondence and simply “buried his head in the sand”.

128. Counsel for the Defendant did not object to the Plaintiff’s evidence, or challenge that evidence in cross-examination. Nor was it suggested to the Plaintiff, in cross-examination, that he did not commence proceedings in order to delay having to vacate possession of the Kariong property.

129. However, the Defendant countered that the Plaintiff’s medical condition had not prevented him from commencing proceedings, in the Guardianship Tribunal, in 2010, in which proceedings he sought a review of the appointment of the Defendant as the deceased’s enduring guardian. Nor did the evidence reveal that his psychological condition prevented him from comprehending that the Defendant, as executrix, desired to sell the Kariong property, a matter about which he told his medical practitioners.

130. The Plaintiff says that he first sought legal advice in December 2013. He states that he instructed his solicitor “to send a letter to [the Defendant’s] solicitor setting out my wish to buy her share of the property”. Following further correspondence between solicitors, the Plaintiff says that he “asked his then solicitor to do what he could to allow me to buy the property but my sister maintained the position that I had to vacate the house and that it should be put on the market and sold”. He also states that he met with his current solicitors on 17 February 2015 and “instructed them to continue to do whatever could be done to negotiate an outcome with my sister that would allow me to stay in the house or, alternatively, for me to buy the house from my sister.”

131. There is no evidence from any solicitor who has acted for the Plaintiff. Accordingly, the Court does not know what advice, if any, was given to the Plaintiff as to rights to commence proceedings seeking a family provision order and when, if at all, such advice was first given. The lack of evidence does not assist the Plaintiff.

132. Importantly, the Plaintiff does not assert, in any of his affidavits, that he was not told of his right to make a claim for a family provision order by the solicitor first retained by him in December 2013 (which was within the prescribed period for making a claim).

133. The Plaintiff does not state when his current solicitor gave him advice concerning the making of a family provision claim, although it may be inferred that it was at or about the time the Plaintiff first saw him in mid to late February 2015. I have drawn this inference from the contents of a letter dated 18 March 2015, which refers to “our previous correspondence…and in particular email of 9 March 2015 in which we indicated our instructions to bring a family provision claim pursuant Succession Act (sic)”. A copy of the letter was Ex. A in the proceedings.

134. It was submitted that there were AVO proceedings and breach of AVO proceedings brought by the Defendant, and that she continued to make demands, through solicitors, to have the Plaintiff vacate the Kariong property, “all of that … was a distraction for him and something that he says in his affidavit made him feel sick”: T56.29 – T56.32.

135. Counsel for the Plaintiff also submitted that there were communications from the Plaintiff’s solicitors to the effect that the Plaintiff wished to buy the Defendant’s interest in the Kariong property and that these communications, and any similar earlier communications, should be taken into consideration in explaining the delay in commencing the proceedings.

136. Of course, the proceedings were not commenced until June 2015. The only explanation for the delay in commencing proceedings in the period between February 2015 and June 2015, is that the parties were in negotiations to resolve the threatened proceedings.

137. The difficulty with accepting, unequivocally, the Plaintiff’s submission about the overall delay in commencing proceedings is the lack of evidence, by the Plaintiff or any solicitor, that the Plaintiff did not commence the proceedings because he was awaiting such negotiations to be completed.

138. The Defendant did not put on any specific evidence about the prejudice, if any, she has suffered as a result of the Plaintiff not commencing the proceedings within time. In any event, prejudice, alone, is not the relevant touchstone, but it is a factor.

139. The Plaintiff, despite repeated requests to do so, has refused to vacate possession; he has not offered any rent, or occupation fee, whilst he has remained living in the Kariong property; and legal costs have been incurred in the Defendant having to commence proceedings for possession. It is clear, in addition, that administration of the estate has not been completed and that the estate has not been able to be distributed.

140. It is also correct to note, as counsel for the Plaintiff submitted, the value of the Kariong property has increased between the date of death and the date of hearing, with the result that each of the parties will receive more than he and she, respectively, would have received had it been sold immediately after Probate was granted.

141. Neither party gave any evidence of unconscionable conduct.

142. In regard to the prospects of success of the Plaintiff’s claim, this is a case in which “on a preliminary consideration”, I conclude that the Plaintiff has a reasonable claim for an additional provision out of the estate for a family provision order. As will be read, I propose to make an order for additional provision for the Plaintiff.

Additional Facts

143. Next, I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come. I have taken this course, not “to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59” (Verzar v Verzar [2012] at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered.

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

144. The following comment was made by Campbell JA in Hampson v Hampson [2010] NSWCA 359 at [80], in regard to the Court's consideration of the totality of the relationship between the applicant and the deceased

“The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge.”

145. The Plaintiff lived with the deceased until he was aged 22 years (in about 1970). He returned to live with the deceased in about 1997 and continued to live with her until either 2002 (as alleged by the Defendant) or early 2004 (as alleged by the Plaintiff) when he moved back to the Agnes Water property. (Until about 2000, the deceased’s mother also lived in the Kariong property.)

146. The Plaintiff returned to live with the deceased towards the end of 2004 and he continued to do so. However, each year, whilst the deceased remained living in the Kariong property, he would take a holiday at the Agnes Water property. The periods of absence varied but in 2008, he was away from the Kariong property for about 9 weeks. During this period, the deceased stayed with the Defendant and her husband.

147. The Plaintiff states that whilst he lived with the deceased, the level of care and assistance she required increased significantly. He states that as her condition worsened, he was required to assist her with toileting and personal hygiene. He would take her to some medical appointments and attend to the household chores. It was only when he was unable to provide the care that the deceased required that she moved to the nursing home.

148. He states that he would do the shopping and would take her on outings. Even when he was not living with her, he “would stay in contact… and check on her”.

149. It appears that the Plaintiff received a carer’s allowance. When he first received it, in 1996, the amount received was about $100 per fortnight. He did not give evidence of the amounts he has received subsequently.

150. After her move to the nursing home, the Plaintiff remained in occupation of the Kariong property. He states that he would visit her twice a day and help her with anything that he could.

151. I am satisfied that the Plaintiff’s relationship with the deceased was, generally, a close and loving one, and that he did what he could to assist her. (I have read the evidence of an incident, in 2004, which is recorded in the Defendant’s evidence. Whilst what is recorded does not paint the Plaintiff in the best light, that appears to be the only specific incident involving the Plaintiff and the deceased, to which reference is made.)

152. There is no dispute about the relationship of the deceased and the Defendant. I am also satisfied that her relationship with the deceased was a close and loving one, and that she did what she could to assist the deceased. The fact that the deceased appointed the Defendant as her Attorney and Enduring Guardian provides some additional evidence of their relationship.

153. (Although there is quite a lot of evidence about the relationship of the Plaintiff and the Defendant, it is not necessary to rehearse that evidence.)

(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

154. There is no definition of the words “obligations” or “responsibilities” to which the sub-section refers to in the Act. Each word is to be understood in its ordinary, grammatical meaning as the condition of being morally or legally bound.

155. The responsibility of the deceased was expressed by Lord Romer in Bosch v Perpetual Trustee Co Ltd, at [478]-[479]:

“Their Lordships agree that in every case the Court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father. This no doubt is what the learned judge meant by a just, but not a loving, husband or father.”

156. This factor requires a balancing of potentially competing obligations as between the applicant and the beneficiary.

157. Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to each of her children, once they became adults, imposed upon her by statute or common law. (There is no suggestion of any promise of testamentary benefaction having been made, or that the Plaintiff, to the knowledge of the deceased, changed his position in the expectation of an inheritance.)

158. Yet, an obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child. In Flathaug v Weaver [2003] NZFLR 730 at [32], the origin of the obligation which underpins the Act’s recognition of the duty owed by a parent to a child was put in this way:

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

159. Although the relationship of parent and child is important and carries with it an obligation or responsibility reflected in the Act, it is nevertheless an obligation largely defined by the relationship which actually exists between parent and child during their joint lives: Vincent v Lewis [2006] NZFLR 812 at [81]. The boundaries of that obligation or responsibility are not amenable to rigid definition. Yet, there is no “presumptive testamentary entitlement of an [adult] offspring”: Underwood v Gaudron [2015] NSWCA 269, at [73] (Basten JA).

160. The size of the deceased’s estate is also relevant to the extent of the obligation or responsibility.

(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

161. I have earlier dealt with these matters. The net value of the estate is not large.

(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

162. The Plaintiff has no formal education of qualifications. He only completed two years of high school.

163. The Plaintiff receives a disability pension and currently has no other income. He has been receiving that pension since about 1997. I am satisfied that he has no earning capacity.

164. The Plaintiff says that he is not receiving rent from the Agnes Water property as he realises it will need to be sold to supplement the legacy he receives from the deceased’s estate.

165. He sets out his additional assets and liabilities as follows:

Assets
Cash in Bank	$9,000.00
Motor Vehicle 1991 Mitsubishi 4x4 L300	$2,500.00
1987 Mazda T3500 (ex bus)	$10,000.00
Trailer, tiny boats	$3,000.00
Superannuation	Nil
1226 Rafting Ground Road, Agnes Water	$190,000.00
Total	$214,500.00
Liabilities
Loans	Nil
Total	Nil

166. The Plaintiff said that he does not wish to live in the Agnes Water property as it is too isolated. He states that he “would like to be able to continue to live” at the Kariong property. He also says that he requires a new car, which he estimates would cost $45,000. (In submissions, counsel for the Plaintiff conceded that the size of the estate was such that the level of cost for a car could not be justified as a “need” in this case.)

167. In addition, there is evidence that the Plaintiff requires dental work at an estimated cost of $61,656.

168. The Plaintiff set out his income from a disability pension of $811 per fortnight. However, that was in an affidavit sworn in July 2015. In answer to a question from the Bench, he said that he thought the disability income, currently, was $883 per fortnight. His fortnightly expenditure (as disclosed in his 2015 affidavit) is $810. There was no evidence that his expenditure had increased.

169. Counsel for the Plaintiff submits:

“Paul wants to be able to stay in the estate property where he has lived for many years. There he has room for his beloved dogs and where he has many friends and supports in the neighbourhood.   If this is not possible he wishes to be able to buy a property in the same area where he can have his dogs and remain close to his support network.”

170. The Plaintiff says that he “would feel much happier being able to stay in the family home and not face the prospect of having to relocate”. However, he did give evidence of the cost of alternative accommodation. The range of cost would appear to be between about $340,000 and $400,000 (with the “wider range of houses available in my price range of around $310,000 to $340,000”.) He also said that he would “like to be left with a sum of around $75,000 as backup for any unforeseen expenses for the remainder of my life so I could buy a more reliable car”.

171. The Defendant outlines her assets and her husband’s assets and income as follows (as amended to take into account valuations that have been read in the proceedings and upon which there was no cross-examination):

Ms Francene Hall	Mr Robert Hall
Assets	Value	Assets	Value
Real estate: 50% share of xx xxx, Wamberal	$600,000	Real estate: 50% share of xx xxx, Wamberal	$600,000
Real estate: 50% share of xx xxxx, Umina	$292,500	Real estate: 50% share of xx xxxx, Umina	$292,500
Superannuation	$100,077	Superannuation	$107,664
Bank deposit (50% share)	$112,500	Bank deposit (50% share)	$112,500
Shares	$4,000	Shares (50% share)	$10,357
Car 2010 Kluger	$18,000	Car 2003 Ute	$2,500
Car 2010 Sedan	$12,000
Total	$1,127,077	Total	$1,137,521
Income	Income
Average of taxable income 2010/2011 to 2013/2014	$66,687 pa	Average of taxable income from 2009/10 to 2013/2014	$55,687 pa

172. (Although there was a dispute about the value of the real estate owned by the Defendant and her husband, the estimates set out above are the agreed estimates of value as at the date of hearing: T11)

173. The Defendant works full-time as a real estate agent or licensed business agent or both. Her husband is employed as a maintenance supervisor. He has been employed in that position for 31 years. He is currently aged 64 years.

174. (Other evidence reveals that the Defendant’s 2014 income tax return disclosed a higher income than that included in the affidavit. However, it was said that the amount of income in the affidavit was the “average taxable income” calculated using the financial years 2009 to 2014.)

175. The Defendant estimated that her and her husband’s total weekly liabilities and expenditure were approximately $1,517, or about $79,000 per annum. She conceded in cross-examination that the figures in her affidavit demonstrated that she and her husband had a surplus of income over liabilities of about $20,000 per year: T46.05 – T47.09.

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

176. There is no evidence that the Plaintiff is currently cohabiting with any person. Indeed, he states that he is single and that he has no children.

177. (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

178. There is no dispute that the Plaintiff does suffer from a major depressive disorder. Specifically, he was described by his clinical psychologist as having “feelings of low mood, anhedonia [an inability to take pleasure in the common experiences of life which people usually find pleasurable], poor concentration, low energy, feelings of worthlessness/hopeless and thoughts about death/dying”. His clinical psychologist recommended that in light of his persistent depression, he should “take steps that enable him to consolidate the social support and community links he has developed over the 14+ years he has resided in the Kariong property.”

179. There is also evidence that he has heavy alcohol intake, hypertension, gastro-oesophageal Reflux disease, gout, haemorrhoids and dermatitis on his left foot.

180. The Defendant has also some health issues. These include feelings of anxiousness and tension, tiredness, muscle aches and headaches.

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

181. The Plaintiff is currently aged 67 years.

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

182. The Plaintiff does not give any evidence of any contribution to the acquisition, conservation and improvement of the deceased’s estate.

183. The Plaintiff gives evidence of the contributions that he says he made to the welfare of the deceased and of the deceased’s mother (his grandmother). Whilst, I think he may have slightly exaggerated what he did, and that he did not give credit to the assistance provided by the Defendant, it cannot be forgotten that he was the person living in the deceased’s home at a time when she was ageing.

184. I have noted that the Plaintiff received a carer’s pension. Also, he did live rent, and accommodation fee, free in the Kariong property throughout the time that he contributed to the deceased’s welfare.

1. 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

   185. By permitting the Plaintiff to reside in the Kariong property for as long as she did, the deceased made a substantial and generous provision for the Plaintiff during her lifetime. In addition, he receives one half of the residuary estate.

   186. Since the death of the deceased, in May 2013, he has continued to reside in the Kariong property despite efforts made by the Defendant, as executrix of the deceased’s Will, to obtain possession of that property from him. During the period of post-death occupation, he has not paid any rent or occupation fee to the estate.

   187. Whilst there is no evidence of the value of the rent that could have been obtained if the Kariong property had been rented, it must have some value. (Counsel for the Plaintiff submits that because the Kariong property has increased in value, no loss to the estate has been suffered. However, if he had paid rent or an occupation fee whilst he was living there, the value of the estate would have increased by, at least, a part of that amount as well as any capital gain.)

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

188. The deceased made a Will in 1992. In that Will, the Defendant was appointed to be executrix of the Will and the whole of the deceased’s estate was to be held on trust “for such of my children as survive me … and if more than one in equal shares as tenants in common.” Similar powers were given to the Defendant in regard to selling, calling in and conversion of the estate and of postponing sale.

189. It follows that the deceased’s long held testamentary intention was to divide her estate equally between her two children.

190. The Plaintiff gave evidence that even though he knew the terms of the deceased’s last Will, he did not ever tell her that he wanted more than half of her estate. He said that he would not “have the hide to do that”.

191. However, he does give evidence that following his divorce in 1996, the deceased did say to him “Don’t worry, you always got a home down here with us”: T20.22 - T20.28.

(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

192. I have referred to the Plaintiff’s occupation of the Kariong property.

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

193. There is no person liable to support the Plaintiff. (He does, however, receive a pension, which is likely to continue to be paid to him.)

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

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

195. In Collicoat v McMillan, at [40], Ormiston J wrote, in relation to the manner in which an applicant’s behaviour towards the deceased is to be considered:

“Ordinarily each of the persons who have a statutory right to make [an] application are entitled to have their position considered by a testator but their behaviour (right or wrong) towards the testator may only provide a basis for measuring appropriately the testator’s obligation to make provision for each of those applicants. Their sins are irrelevant except in so far as a testator might properly take exception to their behaviour.”

196. Other than the one episode in 2004, there is no suggestion of any significant conduct by the Plaintiff that is relevant.

197. Also, I have referred to his conduct, after the death of the deceased, in failing to vacate the Kariong property despite the repeated requests of the Defendant.

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

198. The Plaintiff criticised the Defendant for retaining a blue topaz ring, the stone in which he had dug up. He had given the stone to the deceased who had it made into the ring. The deceased gave it to the Defendant some time later. There had been a discussion between the Plaintiff and the Defendant in which he had said that she could keep the ring, but when he changed his mind and asked her to return it to him, she refused. Nothing turns on this issue. There was also an issue about the retention of the deceased’s ashes. That these complaints were the subject of evidence, simply shows the level of antipathy between the Plaintiff and the Defendant.

199. I am satisfied that there is no relevant conduct of the Defendant that impacts on the determination of what provision should be made for the Plaintiff out of the estate of the deceased. I remember, of course, that she is one of the chosen objects of the deceased’s bounty. She is also a child of the deceased

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

200. This factor is not applicable.

(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

201. There is no other matter that I consider relevant.

Determination

202. 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 the Plaintiff, as a child of the deceased, is an eligible person within the meaning of that term in s 57(1)(c) of the Act.

203. In John v John [2010] NSWSC 937 at [44], Ward J (as her Honour then was) considered that sufficient explanation given for the failure to commence proceedings in time was “a threshold requirement” that had to be met before considering the other discretionary factors. I respectfully agree that in this case the Court should first determine whether an order should be made pursuant to subs 58(2) of the Act extending the time for the making of the Plaintiff’s application under the Act.

204. Importantly, I accept that the Plaintiff’s evidence that his psychological condition, when he was faced with the requests to vacate the Kariong property, led him to a state of paralysis in deciding what to do and that he “buried his head in the sand”.

205. Counsel put it slightly differently in submissions, saying that the Plaintiff is “so fixed on staying in [the Kariong] property and is unable to face the possibility that he can’t stay there”: T54.14 – T54.15. I accept that this is so.

206. I am satisfied, weighing up all of the matters the court must consider, that the Plaintiff has shown sufficient cause for extending the time for the making of his application until the date of the filing of the Summons. The fact that I propose to make a family provision order in his favour fortifies my conclusion that the justice of the case requires me to make such an order and that the making of an order extending time is not futile.

207. I must next consider whether, at the time of the hearing, adequate provision for the proper maintenance, education, or advancement in life of the Plaintiff has not been made by the Will of the deceased. As stated, there is no scope for the operation of the intestacy rules.

208. In considering this question, I remember the Plaintiff’s entitlement under the Will and the Codicil of the deceased, which, as stated previously, will be in the order of $258,245. He has available the Agnes Water property, which, upon sale, should provide to him about $180,000. It follows that the Plaintiff would then have a lump sum of about $438,245. I also remember that he has remained in occupation of the Kariong property after the death of the deceased.

209. Of course, once the Kariong property is sold, the Plaintiff will be homeless. Whilst, as a matter of general principle, the obligation of a parent, is not, necessarily, to provide an unencumbered home for an adult child, whether that is so depends upon all of the circumstances of the case.

210. In this case, when I consider the current financial and material circumstances of the Plaintiff, including his lack of earning capacity, his lack of other resources, such as superannuation, his age, his physical and psychological condition, I am satisfied that the provision made for him in the Will of the deceased is neither adequate nor proper.

211. I bear in mind in reaching this conclusion the Plaintiff’s necessity for alternative accommodation, the possibility that the Agnes Water property might not sell immediately, and if it does not, his lack of capital to meet other exigencies of life.

212. I also take into account the competing financial and material circumstances of the Defendant. However, she is in a significantly better position financially than is the Plaintiff. That was rightly conceded by her. The competing moral claim of the Defendant and the fact that she is a chosen object of testamentary bounty cannot be disregarded.

213. I am also of the view that the deceased’s estate, whilst modest, is sufficient, taking to account the provision that I consider should be made for the Plaintiff, to meet the claims of the parties upon it.

214. I then turn to the question what amount of provision should be ordered in favour of the Plaintiff? In crafting an order under the Act, the court must seek to disturb the provisions of the deceased's Will as little as possible conformably with the requirement to make adequate and proper provision for an applicant. The deceased's wish to ensure that the Defendant inherit a share of her estate is a wish that the Court should respect, provided that doing so is consistent with the same objectives.

215. As earlier stated, the parties requested that the case be determined upon the basis of a percentage of the estate after the payment of costs and expenses of sale and the costs of these proceedings (which amount I shall hereafter describe as “the net estate”).

216. Whilst I think that the Plaintiff should receive provision that will enable him to purchase alternative accommodation, I do not think that all of the provision should be by way of a percentage that equates to a capital sum absolutely. There is no obligation on a parent to provide an unencumbered home for an adult child.

217. I am satisfied that the Plaintiff may have to spend at least $330,000, or a little more, to purchase a property in, or not too far from, Kariong. (If he requires any additional amount to purchase a property, some of the proceeds of sale of the Agnes Water property could be used.)

218. I consider that having an available support network, about which there is some evidence, including medical evidence that “social support is an important factor for promoting recovery from depression”, is relevant to the geographical area in which the Plaintiff might live. (I also accept that he has formed a professional relationship with his local doctor with whom he feels very comfortable.)

219. In my view, the Plaintiff should receive an amount equal to an additional 7.5 per cent of the net estate absolutely. On the present estimates, this equates to an additional lump sum of about $38,735. He should also receive an amount equal to an additional 7.5 per cent from the Defendant’s share of the estate, which amount should be a loan to him, secured by way of a registered mortgage, on any real estate that the Plaintiff purchases. If he does not purchase accommodation on which the mortgage may be registered, then he should not receive this additional sum (which is based upon his need for the ownership of such alternative accommodation).

220. He should be permitted 6 months, or such other time as the parties are able to agree, from the time of the sale of the Kariong property, to purchase such alternative accommodation. There is no reason why he cannot commence his search for such accommodation immediately. To permit him a longer time to purchase a property for himself, would simply further delay the final administration of the deceased’s estate and the distribution of the balance of that estate to the Defendant.

221. In this regard, I have borne in mind the date of the deceased’s death and the Defendant’s continued involvement, as executrix of the estate, in endeavouring to administer the estate. The emotional toll upon her is relevant.

222. No interest should be payable on the additional sum, and it should only be repayable on the completion of the subsequent sale of the property purchased by the Plaintiff, or within 3 months of the Plaintiff’s death, whichever is the first to occur. (If the parties are able to agree upon different terms then I am content to abide those terms.) If it is not so paid following the death of the Plaintiff, interest at the rate prescribed on unpaid legacies should be paid from that date until the date of payment.

223. I have taken into account the submission, by way of an open offer that the Plaintiff should receive a Crisp order (an order of the kind made by Holland J in Crisp v Burns Philp Trustee Company Ltd (Supreme Court (NSW), 18 December 1979, unrep). Generally speaking such an order gives a plaintiff an interest for life in real property or in an interest in the property, with the right to it (should the need arise) for the purposes of securing, for the plaintiff’s benefit, more appropriate accommodation.)

224. During the course of submissions, when this matter was raised, I expressed the view to counsel that, in an acrimonious relationship between siblings, the court should endeavour to bring about a clean break between the parties: T71.41 – T72.10. I remain of that view. The conclusion reached on the provision to be made for the Plaintiff, will not involve any continuing relationship between them once the net estate is calculated, the amounts are distributed to the Plaintiff or as he directs, and the mortgage to secure the additional amount is registered. The legal representatives of the parties should work co-operatively in this regard and there should be no real need for the parties to be involved with each other thereafter.

225. I stress that in providing an amount and stating that it may be secured by a registered mortgage, the Defendant will not be regarded as a co-owner of the property, the subject of the registered mortgage. No legal, or equitable, rights, which would enable her to force sale of the property by the Plaintiff, will be created. It is only when he sells the property, or he dies, that the amount to be secured by the registered mortgage on that property will be payable to the Defendant. Provided the address shown on the mortgage document remains current, or the Plaintiff is informed of any change of the Defendant’s address, no continuing contact between the parties needs to occur.

226. Thus, in lieu of the provision made for the Plaintiff in the Will of the deceased, he will receive an amount which equates to 57.5 per cent of the net estate by way of capital sum absolutely, and an additional amount, which equates to 7.5 per cent of the net estate by way of a loan, which additional amount would be paid to him upon condition that he purchases accommodation and upon him executing a mortgage, in registrable form, in favour of the Defendant, which should then be registered on title to the property purchased.

227. It follows that the Defendant’s share of the estate will effectively be reduced by an amount, some of which she will recover in the future. The Plaintiff will be able to purchase a property with the total amount which equates to about 65 per cent of the net estate (say, $335,000) and will be able to use the proceeds of sale of the Agnes Water property to pay any additional amount required to purchase a property, the associated costs and expenses of purchase, and for such of the other “needs” about which he has given evidence. There should remain available to him from the proceeds of sale of the Agnes Water property, a reasonable capital sum for the exigencies of life and to provide an income to supplement his disability pension.

228. On distribution of the balance of the net estate as currently estimated, the Defendant should receive about $180,000. Then, on the sale of any property, on which the mortgage is registered, or shortly after the death of the Plaintiff, whichever event occurs first, she will receive the amount of about $38,735 (on current calculations). The reduction of her share of the estate should not impact upon her plans for retirement and the amount that she receives upon distribution could be utilised as part of her retirement fund: T61.09 – T61.16.

229. Unless any party wishes to argue to the contrary, the usual order in respect of each party's costs should be made.

230. I note that during the hearing, the Plaintiff, by his counsel, agreed that he would vacate the Kariong property within 42 days of the orders being made. An order for possession, with the execution of the writ to be stayed until the date agreed upon would be appropriate. (An order will need to be made in the Common Law proceedings, dismissing those proceedings.)

231. I also consider that an order should be made granting liberty to any party to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to, and implementing, the family provision order made in favour of the Plaintiff.

232. I shall publish my reasons and require the parties’ legal representatives, within 21 days, to prepare Short Minutes of Order that reflect my decision. I encourage them to reach agreement on how the net estate is to be calculated, the form of the mortgage to be registered, and the most advantageous method of selling the Kariong property.

233. The matter will be listed on a date convenient to counsel, but in the event that Short Minutes of Order are agreed, and if I receive the document in sufficient time to enable me to consider it, I shall vacate that date and make orders in Chambers. If the parties are unable to reach agreement on any matter necessary to give effect to these reasons, I shall hear further short submissions on any aspect in dispute on the adjourned date.

234. The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005.

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Decision last updated: 31 March 2016