McMahon v Smith; Turner v Smith; and Smith v Smith - [2011] NSWSC 487

Supreme Court

New South Wales

Medium Neutral Citation: McMahon v Smith; Turner v Smith; and Smith v Smith [2011] NSWSC 487
Hearing dates: 24 February 2011; 25 February 2011; 4 April 2011
Decision date: 03 June 2011
Jurisdiction: Equity Division
Before: Hallen AsJ
Decision:
(a) Being satisfied that each is an eligible person, I conclude that each of Mathew and Ebony has satisfied the jurisdictional threshold. In the case of Kristy, I am not so satisfied.
(b) Order that Mathew receive a lump sum of $40,000 and that Ebony should receive a lump sum of $30,000.
(c) Order that the proceedings commenced by Kristy be dismissed.
(d) I stand the proceedings over to enable the parties to bring in short minutes dealing with these matters. At that time, unless the parties are able to agree, I shall deal with consequential orders to give effect to the orders for provision and the question of costs and whether those costs should be capped.

Catchwords: Three proceedings heard together, with evidence in one, being evidence in the others - Plaintiff in first proceedings - son of the deceased - Plaintiff in second proceedings - former de facto wife of the deceased, and mother of the Plaintiff in the first proceedings - Plaintiff in third proceedings - daughter of the deceased with whom he had virtually no contact from shortly after the time of her birth - Defendant - widow of Deceased - Property held by the deceased and the Defendant as joint tenants
Legislation Cited: Family Provision Act 1982
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Wills, Probate & Administration Act 1898
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Ball v Newey (1988) 13 NSWLR 489 (NSWCA, 18 June 1991, unreported)
Bladwell v Davis [2004] NSWCA 170
Blyth v Spencer; Spencer v Neville [2005] NSWSC 653
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Brown v Faggoter (NSWCA, 13 November 1998, unreported)
Burton v Moss [2010] NSWSC 163
Campbell v Chabert-McKay [2010] NSWSC 859
Cetojevic v Cetojevic [2006] NSWSC 431
Challenger Property Asset Management Pty Ltd v Stonnington City Council [2011] VSC 184
Churton v Christian (1988) 13 NSWLR 241; [1988] NSWCA 23
Coates v National Trustees Executors and Agency Co Ltd & Anor (1956) 95 CLR 494
Coffey v Bennett [1961] VR 264
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
D'Albora v D'Albora [1999] NSWSC 468
De Winter v Johnstone (NSWCA, 23 August 1995, unreported),
Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Durham v Durham [2010] NSWSC 389; [2011] NSWCA 62
Electricity Commission of NSW v Arrow (1994) 85 LGERA 418
Foley v Ellis [2008] NSWCA 288
Fulop Deceased, Re (1987) 8 NSWLR 679
Gibson v Haselgrove; Delmont v Haselgrove [2009] NSWSC 496
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Hastings v Hastings [2010] NSWCA 197
John v John [2010] NSWSC 937
Lewis v Lewis & Anor [2001] NSWSC 321
McCosker v McCosker [1957] HCA 52; (1957) 97 CLR 566
McKenzie v Topp [2004] VSC 90
McLeod v Johns [1981] 1 NSWLR 347
Mansfield v Mansfield [2003] WASC 214
Marland (dec), Re [1957] VR 338
Mayfield v Lloyd-Williams [2004] NSWSC 419
Menzies v Marriott [2009] VSC 345
Nassim (dec), Re [1984] VR 51
Penfold v Perpetual Trustee [2002] NSWSC 648
Petschelt v Petschelt [2002] NSWSC 706
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9
Porthouse v Bridge [2007] NSWSC 686
Puckridge, Deceased, In the Estate of, (1978) 20 SASR 72
Robinson v Tame (NSWCA, 9 December 1994, unreported)
Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201
Skinner v Frappell [2008] NSWCA 296
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stott v Cook (1960) 33 ALJR 447
Taylor v Farrugia [2009] NSWSC 801
Tsivinsky v Tsivinsky (NSWCA, 5 December 1991, unreported)
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (NSWSC, 17 May 1996, unreported)
Wentworth v Wentworth [1992] NSWCA 268
Zirkler v McKinnon [2002] NSWSC 285
Texts Cited: Government Gazette No. 38 of 20 February 2009
Category: Principal judgment
Parties: Mathew McMahon (aka Turner) (Plaintiff) (2009/291280)
Kristy Ann Turner (Plaintiff) (2009/291281)
Ebony Smith (Plaintiff) (2011/48505)
Clara Smith (aka Clara Gomes & Clara Evans) (Defendant)
Representation: Counsel:
Mr P Sternberg (Plaintiff) (2009/291280 & 2009/291281)
Mr J D Shaw (Plaintiff) (2011/48505)
Mr D Flaherty (Defendant)
Solicitors:
Elias Gates & Associates (Plaintiff) (2009/291280 & 2009/291281)
WA Baxter & Co (Plaintiff) (2011/48505)
Quinn Lawyers (Defendant)

File Number(s): 2009/291280; 2009/291281; and 2011/48505
Publication restriction:

JUDGMENT

The Claims and Formal Matters

HIS HONOUR : These reasons for Judgment concern three separate proceedings commenced under the Family Provision Act 1982 ("the Act"), even though that Act has been repealed, effective from 1 March 2009. Under clause 11(2) of Schedule 1 of the Succession Act 2006 , the provisions of the Act "continue to apply in relation to the estate of a person who dies before the commencement of this clause, in so far as they are not affected by the operation of this Part". That clause commenced on 1 March 2009: s. 2(1) Succession Amendment (Family Provision) Act 2008 and Government Gazette No. 38 of 20 February 2009, page 1036.

The hearing of the three matters proceeded over three days. In each, the applicant seeks a family provision order and consequential relief. A family provision order is an order made by the court in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person. An order was previously made that the three proceedings be heard together, with the evidence in one, being evidence in the other.

Danny Smith (hereafter called "the deceased") died on 20 October 2004 aged 44 years. It is in respect of his estate, or notional estate, that each of the proceedings relate.

In proceedings 2009/291280, the Plaintiff, Mathew McMahon, is a son of the deceased. In proceedings 2009/291281, the Plaintiff, Kristy Ann Turner, is a former de facto wife of the deceased and the mother of Mathew McMahon. Each commenced his, and her, proceedings by Summons filed on 9 November 2009, that is, almost 3 years and 7 months outside the time prescribed by s 16(1)(b) of the Act (within 18 months after the date of the death of the deceased). (The same firm of solicitors and counsel represented them both, although a separate Summons, in each case was filed.)

In proceedings 2011/48505, the Plaintiff, Ebony Elisabeth Smith, is a daughter of the deceased with whom he had virtually no contact from shortly after the time of her birth. She commenced her proceedings by Summons filed on 7 February 2011, that is, more than 4 years and 10 months outside the time prescribed by s 16(1)(b) of the Act. (She was represented in the proceedings by a different firm of solicitors and counsel.)

The deceased left a Will, made and published by him, on 26 February 2001. Probate of that Will was granted, on 10 June 2010, to his widow, Clara Smith, the executor appointed under the Will and the Defendant in each of the proceedings.

Palmer J had heard and determined earlier proceedings involving the Will of the deceased, because the Defendant was a beneficiary and one of the attesting witnesses to the deceased's signature on the Will and she sought relief under s 13 of the Wills, Probate & Administration Act 1898.

I shall, without any disrespect or undue familiarity, refer to each of the Plaintiffs, to the Defendant, and where necessary, after introduction, to each of the other family of the deceased by his, or her, given name.

In the events that have happened, the Will provided for:

(a) a bequest of a horseshoe gold ring and his baby photos to Mathew;

(b) a bequest of a gold garnet ring and her baby photos to Ebony;

(d) the residue of the estate to Clara.

In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the actual estate of the deceased was disclosed as having an estimated, or known, gross value of about $75,218. The actual estate was said to consist of the deceased's interest in real estate at Kalkite (held as tenants in common with Clara) ($75,000) and superannuation ($218).

The Inventory also disclosed that there was property held by the deceased and Clara as joint tenants, being a property at Cessnock ($174,500) and another property at Killarney Vale ($161,500).

There must have been some debts, funeral and testamentary expenses, but these were not disclosed in the Inventory.

The parties agreed that prior to the commencement of the proceedings, the deceased's actual estate, other than the Kalkite property, had been distributed to Clara in accordance with the terms of the Will, and that the jointly held property had been transmitted to her. The entitlements of Mathew and Ebony were not, however, distributed to them. It would seem that Mathew received what had been left to him at, or about, the date of the hearing.

There is no evidence of any notice, in the manner and form prescribed by rules of court, of the intention to distribute property in the estate after the expiration of the time prescribed in the notice: see s 35 of the Act. However, in view of the fact that the only asset distributed was the proceeds of superannuation, this probably does not matter too much. The deceased's interest as tenant in common, in equal shares with Clara, in the Kalkite property remains part of the actual estate of the deceased.

At the hearing, the parties agreed that the gross value of the deceased's interest in the Kalkite property is, currently, $112,500, and that the value of his interest in the Killarney Vale property, is $182,500. There was a dispute about the value of the Cessnock property.

The evidence of Todd Hadley, a registered valuer without limitation in New South Wales, called on behalf of the Plaintiffs, was to the effect that the market value of the Cessnock property was $925,000.

Mr Hadley described the area of the land and noted that erected upon it were two single storey buildings, both of which had been converted for residential flat usage. One building contained four flats, some with external laundry areas, whilst the other building was divided to provide five flats. Seven flats provided one bedroom accommodation, one flat contained two bedrooms, and one contained three bedrooms. It was said that both buildings appeared to have been erected over 60 years ago and that they are "in satisfactory order and condition and appear to have been maintained regularly". Neither building appeared to require any immediate attention.

Mr Hadley appears to have reached his valuation figure using the current rental income of $60,840 per annum ($1,170 per week) taking into account that one of the flats had been rented for $70 per week, which he thought was a concessional rent, and that another flat returned no rent. He applied a rental value of $150 and $160 per week respectively for these two flats and added that to the current rental income. Having reached a notional rental of $73,320 per annum ($1,430 per week), Mr Hadley then capitalised that figure at 8 per cent, with the result that the estimated value of the Cessnock property was $916,500. Alternatively, he capitalised the figure at 7.5 per cent, with the result that the estimated value of the Cessnock property was $946,065. He also used a direct comparison approach of $100,000 to $102,500 per flat, with the result that the estimated value of the Cessnock property was between $900,000 and $922,500. In those circumstances, he selected the value of $925,000 (GST exclusive).

Mr Hadley was cross-examined.

Clara's evidence was that she had attempted to sell the Cessnock property in 2007 and 2008 for between $380,000 and $420,000 and that she had not been able to obtain a buyer. (In fact, the property was "under offer", but the "offer was withdrawn after the buyer [had] done their due diligence".) It was submitted that there was no evidence that, then, it had not been marketed properly, or that, since then, it had undergone some significant improvement, or change, which would have resulted in its value increasing so substantially.

Also, Clara placed reliance on a written market appraisal of the Cessnock property by Bryce Gibson, whose office had acted for Clara in trying to sell the property in 2007/2008. His view was that the property had a current value of about $440,000. He did not consider a valuation based on rental income, but rather, based his estimate on comparable sales of residential buildings and the Cessnock property itself. He also stated that whilst the replacement value of each flat might be $100,000, that value could not be regarded as the value for each flat in its present condition.

Mr Gibson was not cross-examined, but there was no dispute that he is a real estate agent, not a qualified valuer, and that he had provided an appraisal, not a valuation.

In determining the issue of value, it is important to remember what Kirby P said, in Electricity Commission of NSW v Arrow (1994) 85 LGERA 418 at 419:

"Valuation is not a science. It is an imprecise, opinionative activity involving the consideration of many variables, sometimes with equally legitimate outcomes."

I also remember that the role of the Court is not "to bring a third set of opinions into the arena" or to "piece together a valuation of [its] own": Challenger Property Asset Management Pty Ltd v Stonnington City Council [2011] VSC 184 at [17]. But, as Croft J added:

"18 This does not mean, however, that the evidence of one valuer must be accepted on all issues. It is open to the Court to accept the evidence of one valuer on one issue and the evidence of another valuer on another, separate, issue. Thus Zelling J said in Doherty v Commissioner of Highways :

"Judges do not have to accept the valuations of the valuers of either side and frequently arrive at a figure or figures which constitute a modification or modifications of the figures submitted by one or more valuers. For a typical example of the process, see the judgment of Walsh J in Anthony v The Commonwealth , especially at p 94. They are guided in coming to the conclusion by the evidence of the valuers together with the other evidence in the case."

Nevertheless, as Batt J indicated in 101 Collins Street , care needs to be taken by the Court when it adjusts the evidence of valuers:

"Whilst I cannot piece together a valuation of my own ( Brewarrana [Pty Ltd v Commissioner of Highways (No. 2) (1973) 6 SASR 541] at 545), it appears to me that I am entitled, by reference to evidence of one valuer, to adjust on a number of aspects the valuation of another valuer, provided that I make allowance for the fact that one variable in a component consisting of several variables may in fact have been balanced in the latter valuer's valuation by one or more of the other variables. In such a case it might, depending upon the circumstances, be necessary to refrain from making the adjustment and to adopt the component in full or not at all."

(Omitting citations)

I have given careful consideration to the valuation evidence of Mr Hadley. I do not accept that the value of the Cessnock property is as high as $925,000, because of the following matters:

(a) The Cessnock property had been purchased in about 1999 for $233,000. It seems to have been accepted that no properties in Cessnock have quadrupled in value in 11 years.

(b) There is no dispute that Clara did attempt to sell the Cessnock property in 2007/2008 for between $380,000 and $420,000 and that the property failed to sell, even though it was marketed for about 1 year. (Mr Hadley may not have been aware of this fact.)

(c) Mr Hadley's calculations were based upon "the projected gross income" which was greater than the actual gross income of the Cessnock property.

(d) Mr Hadley accepted that if the rents generated were, in total, $1,170 per week, and if the capitalisation rate of 8 per cent were used, that would result in a value of $760,500, whilst if the capitalisation rate were 7.5 per cent the value would be $785,000. If the rental generated was $1,015 and if the capitalisation rate of 8 per cent were used, that would result in a value of $659,750, whilst if the capitalisation rate were 7.5 per cent, the value would be $681,032.

(These estimated amounts for rent generated were calculated taking into account the evidence of actual rent received from the Cessnock property.)

(e) What were said to be comparable sales were properties in geographical areas quite different from Cessnock; some also had different land values, and also were of different construction type. The comparability was said to be as to "yields".

(f) Although he was not a valuer, Mr Gibson was a real estate agent who had worked in Cessnock for almost 10 years and, in my view, was likely to have had a better idea of the likely sale price at which the property might be sold.

(g) Clara, in February 2010, had in applying for a loan, had estimated the value of the property at $600,000. There would, then, have been no need to underestimate its value.

Doing the best I can, taking into account the evidence of both the valuer and, to a lesser extent, the real estate agent, I am of the view that the Cessnock property has a present value of between $660,000, and $760,000. I shall take the value to be $660,000 because of the matters to which I have referred above.

Accordingly, the gross value of the deceased's interest in the Cessnock property, had it not been transmitted to the Defendant, and should it be designated as notional estate, will be taken to be $330,000 at the date of hearing.

There was no dispute that if the Cessnock property is sold, capital gains tax and other selling costs (in total) would be in the order of between $52,000 and $149,000, depending upon the price at which the Cessnock property is sold. I shall assume a figure of about $85,000 for capital gains tax based upon a value of $660,000, of which half would be the deceased's share; the other half will be considered as a liability of the Defendant.

There was also no dispute that the total amount of debt secured on each of the Killarney Vale and Cessnock properties was $460,593 (as at 16 February 2011).

Thus, leaving aside any costs of the proceedings, to which I shall turn, but taking the net value of the actual estate as $112,500, and the net value of the deceased's interest in property that may be designated as notional estate (Killarney Vale ($182,500) and Cessnock ($330,000)) as $512,500, and deducting about $273,000, (being one half of the debt secured ($230,300) and one half of the capital gains tax (say $42,500), upon the basis that its value is $660,000), the value of what may be available for distribution is about $352,000.

If I were to take the highest value of Cessnock, namely $925,000 as accurate, then the value of the estate, before any costs are deducted, would be about $452,000. (I have reached this figure by taking the highest CGT estimate that must be deducted.)

If I were to take the lowest value of Cessnock, namely $440,000, as accurate, then the value of the estate, before any costs are deducted, would be about $260,000. (I have reached this figure by taking the lowest CGT estimate that must be deducted.)

(It is a mere coincidence that the assessment of $352,000, based on the value of the Cessnock property at $660,000 provides an estate and notional estate value which is almost the average of the values attributed by the Plaintiffs and by Clara.)

It can be seen that, on any view (the range of values, being between $260,000 and $452,000), before any costs are deducted, the size of the estate and notional estate is very small.

In calculating the value of what may be designated as estate, or notional estate, at the date of hearing, the costs of the present proceedings should be taken into consideration, since the Plaintiffs, if successful, will, normally, be entitled to an order that his, or her, costs be paid, whilst the Defendant, irrespective of the outcome of the proceedings, will, normally, be entitled to an order that her costs be paid.

Mathew's and Kristy's costs and disbursements, including counsels' fees, and upon the basis that the matter concluded in two days, totals $78,000. Those costs and disbursements, since the case did not conclude in that time, have been increased by about $12,500. Thus, the total amount of their costs and disbursements are in the order of $90,000.

Ebony's costs and disbursements, including counsels' fees, calculated on the indemnity basis, and upon the basis that the matter concluded in two days, totals $19,695. Those costs, calculated on the ordinary basis, have been estimated, for a two-day hearing, with junior counsel, to be the same (inclusive of GST) because the estimate is based on legal aid rates. On the third day of the hearing, the estimate was recalculated by adding $6,000 to $8,000. I shall, therefore, estimate Ebony's costs for the whole of the hearing at about $27,000.

The Defendants' costs and disbursements, including counsel's fees, calculated on the indemnity basis, are estimated, for a two-day hearing, to be $75,000. On the third day of the hearing, the estimate of costs and disbursements was increased by $18,290, making a total of about $93,290.

If the estimates of the value of the estate and notional estate attributed above are correct ($352,000), and if the costs and disbursements ($210,290) ultimately prove accurate, and if costs orders are made under the Act in favour of each of the Plaintiffs, the value of the net estate and notional estate is likely to be no more than about $142,000.

I shall hear the parties, if agreement cannot be reached between them, on why the costs of the proceedings should not be capped (see Practice Note SC Eq 7 at [24]).

The persons described as eligible persons, within the meaning of the Act, are the parties to the three proceedings and the mother of Ebony, Karen Smith. Three of Clara's children are also identified as eligible persons. Each was served with a notice. Only the named Plaintiffs have made a claim under the Act.

Background Facts

The following facts are either not the subject of any real dispute in the proceedings, or I find them to be established by the evidence:

Mathew

(a) He is the son of the deceased and Kristy.

(b) He is aged 21 years, having been born in August 1989.

(c) He was a beneficiary of an earlier will made by the deceased on 30 May 1994. (The estate was to be divided between the children of the deceased.)

(d) In September 1996, the deceased and Kristy agreed that she was to have the responsibility for the long term and day to day care welfare and development of Mathew. Contact with the deceased was to be by cards, letters and photographs.

(e) Mathew did not have very much to do with the deceased, because Kristy, it would seem with some justification, took him to South Australia to live when he was very young.

(f) In 1998, the deceased wrote a letter intended for Mathew stating his new address to which future correspondence should be sent. He also sent Mathew a birthday gift. Later, in 1998, he wrote to Mathew directly, stating, amongst other things "Would love for you to write or ring me". He wrote several times again to Mathew.

(g) Mathew saw the deceased at various times before, and in, 1999, on about four occasions.

(h) It was not until September 2009 that he again sought to make contact again with the deceased. He telephoned and spoke with the Defendant who informed him that the deceased had died in 2004.

(i) Clara gives evidence that she sent a letter to his grandparent's house in Bateau Bay. Other evidence establishes that he did not receive it.

(j) Mathew is single with no dependents. He is in good health.

(k) He left school at the age of 16 years.

(l) Although he was employed for a short period earlier this year, he is no longer employed. He is, however, looking for work. Prior to that time, he worked on different occasions, for relatively short periods of time.

(m) He was apprenticed as a cabinetmaker. He has been unable to complete his apprenticeship. He could return to his apprenticeship, but that may prove difficult to achieve.

(n) He plans to continue to live in South Australia. He presently lives in rented accommodation with two others.

(o) He has some cash (about $100) and superannuation ($3,000). He has liabilities of $5,550. He frequently receives financial assistance from Kristy.

(p) Mathew received some small amounts of cash and some small gifts from the deceased. However, these were insignificant. He received some small items in the deceased's Will, but these too would be of sentimental value only.

(q) The Defendant concedes his financial position "is not strong".

Mathew explains his delay in commencing the proceedings, firstly, upon the basis that he did not know that the deceased had died. He also says he did not see a lawyer about challenging the Will and did not obtain specific advice about his rights until he first visited his present solicitor on 2 December 2009. He admits he knew of a "general right to challenge an unfair will", but was unaware of the period of time within which any challenge could be made or the "further restrictions arising from the fact that the Estate had been distributed".

Mathew sets out his "needs" as follows:

(a) To pay off his debts of approximately $5,550.

(b) Funds to purchase a V.I.P. Home Services franchise the quoted price for which is $37,217.61. (He has had trouble finding stable employment over the past year and he has not been able to obtain an apprenticeship as a cabinetmaker.) He needs to be independent and can achieve this by starting his own business. A mowing and gardening maintenance business would suit him. He is said to be very serious about wishing to purchase such a business. He believes that he would receive allocated work of $800 per week if he purchased a particular franchise.

(c) Funds to purchase a motor vehicle. He does not have any vehicle at present. He relies on his mother to drive him to work in the mornings as the bus timetable does not coincide with his work start times. He travels home after work by bus. If he proceeds with the purchase of a V.I.P. business he would have to ensure that the motor vehicle purchased would be reliable and suitable for the purpose of pulling a trailer. He estimates he would need in the range of $25,000 to $35,000 to purchase and insure a recent model second hand Toyota Hi-lux (apparently the vehicle preferred by V.I.P Home Services).

(d) A fund to cover any contingencies that may arise while he is starting out in business, for example funds to cover costs of motor vehicle maintenance and repairs.

It is clear that the value of the estate and notional estate of the deceased, taken at its highest is insufficient to meet all the stated needs, particularly when one considers the competing claims.

Kristy

(a) She is aged 47 years, having been born in June 1963.

(b) She had an "on and off" de facto relationship with the deceased from about May 1988 until June 1993.

(c) The relationship between the deceased and Kristy was a volatile one, which she says was caused by the deceased's drinking and drug use.

(d) During the relationship, the deceased injured his leg in an accident and it was Kristy who looked after him. (It was this accident that led to a claim in the Supreme Court and a subsequent award of damages that, at least in part, enabled the purchase of property in which the deceased had an interest.)

(e) She says that the deceased was regularly violent towards her and it is this violence, as well as other abuse, that led to her leaving, with Mathew, in 1993 and moving to Adelaide, where she changed her name.

(f) In 1994, the deceased made application for contact with Mathew. Kristy sought sole custody and guardianship. The proceedings were contested but were resolved as set out above.

(g) It was during the Family Court proceedings, that Kristy learned that the deceased had formed a relationship with Clara.

(h) The deceased paid Kristy lump sum child support ($45,000) in 1998.

(i) Kristy facilitated contact between Mathew and the deceased in 1999. Subsequently, she attempted to do so again, but Mathew resisted suggesting that the deceased should contact him.

(j) Kristy first consulted solicitors in October 2009.

(k) Kristy is generally in good health, apart from a painful cervical spine condition consistent with a right C-6 nerve root compression, numbness and pain in her right arm, and an eye condition called "Possner Schlossman Syndrome", for which she uses eye drops twice daily. She also takes anti-depressant medication, as she suffers depression.

(l) Kristy has superannuation ($34,214), and a car ($1,500). She is employed, but intends to resign her employment in about July 2011, in order to return to Sydney to care for her aging parents. She anticipates applying for a Carer's Pension.

(m) She hopes to enrol in an on-line Certificate IV Business Administration course in order to keep up and improve her employment skills when she returns to Sydney.

(n) Kristy is bankrupt. She has debts of about $26,000 and administration fees of $3,200. Unless she repays these amounts beforehand, she should be discharged from bankruptcy in May 2012.

Kristy explains her delay in commencing the proceedings upon the basis that she did not know about the deceased's death until about October 2009 and that she did not see a solicitor until a short time afterwards. Thereafter, the proceedings were commenced promptly.

Kristy sets out her "needs" as follows:

(a) She wishes to repay the amount of approximately $26,000 still owing and administration fees of approximately $3,200, so that she can be discharged from bankruptcy.

(b) She has made inquiries of TAFE and is aware that payment of an up-front fee of $2,600 is currently required to enrol in Certificate IV in Business Administration.

(c) She will require an estimated $20,000 to buy a replacement vehicle as continuing to run and maintain her vehicle in the long term will be uneconomical.

(d) She will require funds to rent and furnish premises in the vicinity of her parent's home on her return to Sydney. She estimates she would need about $10,000 to cover the costs of a rental bond, payment of two weeks rent in advance, pay for connection of services and for the purchase of furniture, white goods and other essentials.

(e) She assumes she may be able to find a rental property at around $300 per week. She would need to share with another person to afford that amount of rent if her only income is a Carer's Payment from Centrelink.

(f) She would need funds for ongoing treatment of her neck problem. She does not yet know what surgery will cost if that is recommended to her.

(g) In the long term, when she is no longer required to care for her parents it is her intention to return to Adelaide to be close to Mathew. She would like to be able to purchase her own residential apartment in Adelaide in the future.

(h) She would need a deposit of at least five per cent of the purchase price of an apartment with a price range of $225,000 to $250,000 being in the range of $12,500 to $15,000 plus an additional amount to cover legal fees and moving expenses.

(i) She needs $3,500 to repay her parents money borrowed from them.

It is clear that the estate and notional estate of the deceased, taken at its highest, and with competing claims, is insufficient to meet all the stated needs.

Ebony

(a) She is aged 24 years, having been born in August 1986.

(b) Her mother married the deceased in April 1986 and they were divorced in July 1998.

(c) She was a beneficiary of an earlier will made by the deceased on 30 May 1994. (The estate was to be divided between the children of the deceased.)

(d) Ebony has 3 children aged 6 years, 3 years and 1.75 years.

(e) She had no relationship, at all, with the deceased, but knew who he was. (In 1996, her mother told her that her stepfather was not her father and that if she wanted to find her natural father, she would have to do so herself.)

(f) In November 2004, she received a letter from Clara informing her that she was the deceased's wife and that she was writing to inform Ebony that the deceased had passed away. The letter included the following passage:

"He loved and thought of you constantly and always hoped you would find him one day. He just wanted to be there for you but things happened between your parents .... Just rember (sic) that till the day he died he thought about you and loved you so much from afar. I hope that this letter will give you closure and you'll know that you were truly loved by a wonderful person."

(g) The letter did not refer to the fact that Ebony was a beneficiary named in the deceased's Will; nor did it enclose the items left to her in that Will.

(h) Ebony replied to Clara expressing her joy at receiving Clara's letter and asking Clara for a picture of the deceased taken not too long before he passed away.

(i) Ebony only became aware that she could make a claim when she was joined as a party to the Probate proceedings before Palmer J to which reference has been made. (Clara's proceedings were commenced in January 2010.)

(j) Subsequently, Ebony received a telephone call from a solicitor who informed her that she had a brother, Mathew, who is "fighting for properties that were left to Clara". She subsequently received documents relating to Clara's Probate proceedings.

(k) In August 2010, Ebony contacted solicitors, in Gunnedah, to seek advice in relation to the deceased's estate. A legal aid application was made. Legal aid to commence proceedings for a family provision order was granted in December 2010.

(l) Ebony completed school until Year 10. She has completed a Child Care course at TAFE and an Aged Care Certificate 3 course.

(m) Ebony is hard of hearing in her right ear and has a little hearing loss in her left ear.

(n) She receives $579 per fortnight by way of single parent pension and $75 per week in child support. She has no significant savings or assets. She has liabilities of $7,000. She has a loan from Centrelink that she is paying off at $25 per week.

Ebony explains her delay in commencing the proceedings, upon the basis that whilst she was informed of the deceased's death, she did not know of any rights that she had to make any claim on his estate.

Ebony sets out her "needs" as follows:

(a) She needs money to pay off her debts and to buy a car. She has her learner's permit and has had one driving lesson but can't afford any more lessons. If she could get her driver's licence and buy a second car, not only would it make it easier for her and her children, she could try and get a job in aged care as she needs a car to work in this field of work. She could buy a safe and roadworthy second-hand car for about $15,000.

(b) In the event that the estate is adequate for making greater provision than the needs she has outlined, she could provide a better standard of living for herself and children and could provide for their maintenance, education and advancement in life over the next 15 years or so.

Clara

In Foley v Ellis [2008] NSWCA 288, Sackville AJA at [88] noted that Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 "... 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 ."

It is thus necessary to consider the circumstances of Clara, including her financial and material circumstances. I am satisfied that the following facts are not in dispute or have been established by the evidence.

(a) She is aged 60 years having been born in July 1950.

(b) In June 1994, she and the deceased commenced to live together in a de facto relationship.

(c) Throughout their relationship, Clara worked full-time, as the deceased was not able to because of the injuries sustained in 1990. Their main sources of income were her income, and the rental derived from the Cessnock property.

(d) In 1997, the deceased received an award of damages for $833,103 plus costs. In June 1998, the Court of Appeal confirmed the quantum of the award (and orders indemnity costs to be paid).

(e) In October 1997, the deceased and Clara purchased Killarney Vale (for $190,000). This became their family home. The purchase price was paid partly from the damages award, partly from savings and partly by way of borrowed funds.

(f) In February 1999, the deceased and Clara purchased Cessnock for $233,000. The purchase price was paid partly from the damages award and partly by way of borrowed funds. It was an old property at the time of purchase. There have been significant renovation and maintenance costs, including the installation of separate water meters. The income from the Cessnock property is applied against the mortgage debts and the costs of upkeep.

(g) The Kalkite property was purchased by the deceased and Clara in about May 1999. The purchase price ($22,000), or a part of it, was borrowed, but the amount borrowed was secured on the Killarney Vale property. The balance was paid partly from the damages award and partly from savings.

(h) The Kalkite property is occupied by Clara's son, and is used as a family holiday house. He does not pay rent but pays some of the outgoings on the property. (It is suggested that this has caused a loss to the estate. However, there is no evidence that the Kalkite property was ever rented during the deceased's lifetime. Furthermore, the expenses of that property are contributed to, with the result that the estate has not had to bear the burden of those expenses.)

(i) In July 2000, the deceased and Clara married.

(j) Following the death of the deceased, Clara was advised that it was unnecessary to obtain a grant of Probate since the estate consisted, essentially of jointly held property, some jewellery and some personal effects. Also, she did not want to go to the trouble of expense. (It is for this reason that the Kalkite property remains in the name of the deceased and Clara.)

(k) Clara disclosed that she had shares ($3,000), savings ($900) and superannuation ($135,000). She is employed full time as a clinical nurse consultant, earning approximately $88,000 per annum. Her wages vary depending upon the shifts that she does.

(l) Clara suffers from multiple health conditions and chronic illnesses, including Wegners Granulomatosis, an autoimmune disease, and diabetes, both of which have consequential impacts upon her health.

(m) Clara hopes to work until she is 65 years of age but does not know whether she will be able to because of her state of health.

(n) Clara states that because of the litigation, she will have to sell the Cessnock property but does not know how quickly it will sell or for what price. She says that she will use the proceeds of sale to discharge the debt secured by mortgage on that property and if there is any surplus, the debts secured on the Killarney Vale property.

It is to be remembered that there is no onus on Clara, as the sole beneficiary named in the deceased's Will, to show that she is entitled as such, or to prove what may be necessary for her proper maintenance, education and advancement in life. The nature of her strong competing claim is as the widow of a reasonable long relationship, who is the chosen object of testamentary bounty.

Clara gave evidence that the deceased told her that he was not making any provision for Mathew because he had paid Kristy moneys to look after him and because he was now a man. He said he did not know Ebony. There is no reason to disbelieve this evidence.

It has been submitted that there should also be included as part of Clara's financial and material circumstances, household contents with a value of $230,000, because in 2006, she included in a loan application house contents with a value of $230,000. Whilst it is likely that she has house contents, from what I have read, it is unlikely that their value would be that high. Also, even if they were included, as the widow of the deceased, it is unlikely that any order would be made the result of which would be to require her to sell the contents of her home, or even some of them.

Credibility of Witnesses

I am satisfied that each of Mathew, Kristy and Ebony was endeavouring to give his, and her, evidence truthfully. The Defendant's counsel did not submit the contrary. I accept the evidence of each.

Whilst I do not think that Clara was trying to mislead the Court or the parties as to the nature and value of the deceased's actual or notional estate, she could have been more forthcoming in the way in which her evidence was presented. I have, in other cases, confirmed the duty of the Defendant administrator to disclose, fully and accurately, the nature and value of the estate, and the property that is, or might be, notional estate. This obligation is enshrined in the applicable Practice Note as well.

I am satisfied that, ultimately, there was disclosure of the actual and notional estate. I am not satisfied that Clara was obliged to disclose, in detail, how the balance of the judgment proceeds received by the deceased some years before his death were spent, particularly since some was spent to purchase property which is, or was, in Clara's and/or the deceased's, name. It should be remembered that the deceased was not working during that period and that records relating to daily expenditure are unlikely to have been kept or preserved.

There were two aspects of Clara's evidence that were inaccurate or wrong. These were:

(a) She deposed that the purchase price of Killarney Vale was paid partly from the deceased's award of damages, partly from her savings, and partly by way of a mortgage loan. However, other documents demonstrated that the totality of the purchase price was paid from the deceased's award of damages.

(b) She claimed that she had to arrange to borrow about $40,000 in February 2006, for the installation of water meters at the Cessnock property. In cross-examination, she was shown bank statements for the period 1 March 2006 to 31 October 2006. On 2 March 2006, $40,698 was paid into her account and by 31 October 2006 there was a closing balance of $6,384.89. She was unable to identify more than a few hundred dollars of expenditure attributable to the Cessnock property.

Also, I was not impressed with her evidence regarding writing to Mathew, or the circumstances in which she is supposed to have sent the ring and baby photographs to Ebony (without taking any steps to ensure that these items would reach Ebony, or if they did not, that the package containing them would be returned).

In stating the above, I do not conclude that Clara was untruthful, or that she wished to disadvantage the Plaintiffs. However, some of the criticism levelled at her appeared to be justified. In an estate, which, on any view, is very small, the parties should work co-operatively to ensure that unnecessary costs and expenses are not incurred in sterile and avoidable arguments about the nature and value of the deceased's actual or notional estate.

The Law

The Substantive Claim

In cases such as the present, it is usually necessary for the Court to determine whether:

(i) the applicant is an eligible person within the meaning of s 6(1) of the Act.

(ii) in the case of an applicant who is an eligible person within s 6(1)(d) of the Act, there are factors warranting the making of the application.

(iii) time for the making of the applicant's application should be extended.

(iv) the provision made for the Plaintiff is inadequate for his, or her, proper maintenance education and advancement in life.

(v) if so, an order ought be made under s 7 of the Act for provision out of the estate, and in so doing, take into consideration the matters referred to in s 9(3) of the Act.

This approach in determining cases like this one has been approved, and applied, in many decisions after the commencement of the Act (see, for example, Churton v Christian (1988) 13 NSWLR 241; Ball v Newey (1988) 13 NSWLR 489 (NSWCA, 18 June 1991, unreported); Tsivinsky v Tsivinsky (NSWCA, 5 December 1991, unreported)).

In this case, there may also be the question of whether to designate property as notional estate.

Being an "eligible person" is a necessary precondition under s 7 of the Act to the Court being empowered to make an order for the maintenance, education, or advancement in life of the eligible person.

If the applicant is an eligible person by reason only of sub-para (d) of the definition of eligible person in section 6(1), the Court is next required, by section 9(1) of the Act, to "first determine whether, in its opinion, having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application". Unless the Court is satisfied that there are those factors, it is required by section 9(1) to refuse to proceed with the determination of the application and to make the order. An onus is cast upon the Plaintiff to establish that the application is warranted.

The Act does not specify the "factors which warrant the making of the application". In considering the meaning of what he described as "this poorly conceived and clumsily expressed subsection (which formed no part of the Draft Bill produced by the Law Reform Commission)", M McLelland J said, in Re Fulop Deceased (1987) 8 NSWLR 679 at 681 (approved in substance by the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241) and most recently in Evans v Levy [2011] NSWCA 125 at [64]), that the factors are factors which, when added to facts which render the applicant an eligible person, give him, or her, the status of a person who would be generally regarded as a natural object of testamentary recognition by a testator".

Kirby P in Tsivinsky v Tsivinsky (NSWCA, 5 December 1991, unreported) in dealing with this section of the Act said:

"Insofar as s 9(1) gives any guidance concerning the factors 'which warrant the making of the application', it is Delphic. The language used is extremely broad in its generality ('all the circumstances', 'whether past or present', 'factors... warrant making the application', 'satisfies'). The only real clue as to what is meant is to be derived from the apparent policy of confining this additional, preliminary procedure to the particular categories of 'eligible person' contained in the definition paras (c) and (d) in s 6(1) of the Act."

In Brown v Faggoter (NSWCA, 13 November 1998, unreported), a decision of the Court of Appeal constituted by Sheller JA, Sheppard AJA and Fitzgerald AJA, there seems to be the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test than that which the Court of Appeal approved in Churton v Christian .

In Penfold v Perpetual Trustee [2002] NSWSC 648, Windeyer J did not follow Brown v Faggoter . Bryson AJ also commented in Porthouse v Bridge [2007] NSWSC 686:

"In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors ("there are factors") is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination."

More recently, in Diver v Neal [2009] NSWCA 54, Basten JA, with whom Allsop P and Ipp JA agreed, said of s 9(1):

"8 As noted above, compliance with this requirement was not the first issue addressed by the primary judge, although s 9(1) envisages that it is to be determined before the Court decides whether to "proceed with the determination of the application". In practice, the factors relevant to the issue raised as a preliminary matter are, to a significant extent, co-extensive with those which must be addressed in determining whether the testator made adequate provision for the applicant: see Churton v Christian (1988) 13 NSWLR 241 at 242-243 (Hope JA) and 248-249 (Priestley JA). Nevertheless, the express distinction between two classes of eligible person must be recognised. It appears to have been drawn on the basis that persons falling within the first category (comprised of those identified in pars (a) and (b)) are "regarded as natural objects of testamentary recognition", whereas those falling within the second category (identified in pars (c) and (d)) are potentially appropriate objects of testamentary recognition, depending upon their circumstances: see Churton at 252 (Priestley JA) applying the analysis of McLelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681."

Even though, respectfully, I regard the views expressed in the authorities referred to by Windeyer J, Bryson J, Basten JA, and Campbell JA, as correct, I shall consider both tests.

There is a distinction between "factors which warrant the making of the application' and the factors that warrant the making of an order. Merely establishing that an applicant is an eligible person and that she, or he, has a financial need, would not, as such, entitle her, or him, to an order. In addition, even if there are factors that warrant the making of the application, the applicant may fail in establishing that an order for provision should be made.

In Foley v Ellis at [3]-[8], Skinner v Frappell [2008] NSWCA 296 at [4]-[16], and Diver v Neal at [16], it is made clear that:

(a) both s 9(1) and s 9(2) require an applicant, affirmatively, to establish factors sufficient to engage the Court's power;

(b) in each case a multi-faceted evaluative judgment is required, which is dependent, at least in part, on the application of community standards and expectations.

Section 9(2) of the Act provides that the Court shall not make an order under s 7 unless it is satisfied that the provision (if any) made in favour of the eligible person by the deceased person either during his lifetime or out of his estate:

"[I]s, at the time the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advance in life of the eligible person."

Thus, the power of the Court to make an order under the Act is enlivened by the formation of an opinion that the disposition of the deceased's estate effected during his lifetime, or by his Will, is not such as to make adequate provision from his estate for the proper maintenance, education or advancement in life of the applicant. The court is empowered, at its discretion, to order that such provision as the court thinks fit is made out of the estate of the deceased for that purpose: Gleeson CJ in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at [4].

In each case, the criteria to be applied are largely unconstrained, imprecise and may readily give rise to differing views. 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". The determination requires an evaluation that necessarily takes the court to the provision actually made during the lifetime of the deceased and in the deceased's Will, on the one hand, and to the needs for maintenance and advancement in life of the applicant on the other. It has conventionally been said that this involves a consideration of the relationship between the deceased, the applicant and other relevant persons having similar claims for adequate provision to be made for them: see Goodman v Windeyer (1980) 144 CLR 490 at 496).

"Provision" is not defined by the Act, but it was noted in Diver v Neal at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".

Neither are the words 'maintenance' and 'advancement in life' defined. However, in Vigolo v Bostin , Callinan and Heydon JJ, at [115], said, of the words 'maintenance', 'support' and 'advancement':

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

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

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

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

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

Recently, it has also been noted that 'proper maintenance' is not limited to the bare sustenance of an applicant (cf Gorton v Parks (1989) 17 NSWLR 1), but requires consideration of the totality of his, or her, position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he, or she, is accustomed, and mobility: Alexander v Jansson [2010] NSWCA 176 at [18].

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

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

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

Dixon CJ and Williams J, in McCosker v McCosker [1957] HCA 52; (1957) 97 CLR 566 at 571, after citing Bosch v Perpetual Trustee Co Ltd , went on to say, of the word 'proper', that:

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

In Goodman v Windeyer at [502], Gibbs J said:

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

In Vigolo v Bostin at [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 use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."

In Vigolo v Bostin , at [122], their Honours added:

"... Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question of whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however, will never be conclusive. The age, capacities, means, and competing claims of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors."

In Foley v Ellis , Sackville AJA noted at [86]:

"As Gleeson CJ pointed out in Vigolo v Bostin at [5]-[6] (197), this formula requires the court to make judgments by reference to criteria expressed in the most general terms. In particular, the word "proper" incorporates "value-laden concepts" that must "have a source external to the decision-maker". Much the same point can be made about the word "inadequate"."

Unless the court comes to the conclusion that inadequate provision has been made, it is not empowered to make an order for provision. This is commonly referred to as "the jurisdictional question".

If the court answers the jurisdictional question favourably to the applicant, the nature and quantum of the order that the court is then empowered to make is limited by s 7 to one that:

"... in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person."

In Singer v Berghouse (No 2) , the High Court described the approach that a court should take as a two stage process. At 209, it was said:

"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Ltd . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

In Vigolo v Bostin , Gleeson CJ and Gummow and Hayne JJ at [5], [74] and [82] - [83] approved the two-stage test set out in Singer v Berghouse .

At the first stage, the court will consider whether it can make an order for provision for the maintenance, education and advancement in life of a particular applicant. In the event that the court is satisfied that the power to make an order is enlivened (i.e. it is satisfied that he, or she, is an eligible person, and, where necessary, that factors warranting have been satisfied, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), 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.

It has recently been repeated by Campbell JA in Durham v Durham [2011] NSWCA 62:

"81 Under both the Family Provision Act and the Succession Act whether the jurisdictional question is satisfied is a matter of whether an evaluative standard has been met, rather than truly a matter of discretion. ...

82 A judge's decision as to the amount and type of an award to be made is a true discretionary decision, whether that decision is made under the Family Provision Act or under the Succession Act ."

Whether the applicant has a 'need' is a relevant factor at the first stage of the enquiry. It is an element in determining whether 'adequate' provision has been made for the 'proper' maintenance education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 [42] (Tobias JA, with whom Beazley and Hodgson JJA agreed).

Tobias JA said:

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

...

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

In Devereaux-Warnes v Hall (No 3) at [81]-[85], Buss JA said, in respect of the first stage of the process:

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

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

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

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

If the inadequacy of provision is established, the Court is vested with a discretion to order that provision (or further provision) be made from the estate. At that point, described as the second stage of the inquiry ( Singer v Berghouse ), the factors set out in s 9(3) become relevant, although at least in some circumstances they will also be relevant at the first stage of inquiry, which itself requires consideration of "the totality of the relationship between the applicant and the deceased", as well as the needs of the applicant: Singer at 210; Hastings v Hastings [2010] NSWCA 197 at [10].

Section 9(3) provides:

"In determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person, the Court may take into consideration:

(a) Any contribution made by the eligible person whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to:

(i) the acquisition, conservation or improvement of property of the deceased person; or

(ii) the welfare of the deceased person, including a contribution as a homemaker;

(b) The character and conduct of the eligible person before and after the death of the deceased person;

(c) Circumstances existing before and after the death of the deceased person; and

(d) Any other matter which it considers necessary in the circumstances."

The provision to be made by the order of the court may be made in a variety of ways, including a lump sum, periodic sum or "in any other manner which the Court thinks fit": s 11 of the Act. The court, if it makes an order for provision, "may specify the beneficial entitlements in that estate which shall bear the burden of the provision and, in relation to each entitlement, the part of the burden it is to bear": s 13 of the Act. The court is empowered, at its discretion, to order that such provision as the court thinks fit is made out of the estate of the deceased for that purpose. An order takes effect as a codicil to the will, or where the deceased died intestate, in a will of the deceased person: s 14 of the Act.

It is not part of the court's role to achieve some kind of equality between the various applicants or to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Rather, the court's role is of a specific type and goes no further than the making of 'adequate' provision in all the circumstances for the 'proper' maintenance, education and advancement in life of an applicant.

To the extent that either Mathew or Ebony relies upon the conduct of the deceased in not maintaining a close relationship with her, or him, it must be remembered that the Act is not one that provides reparations for wrongful conduct by the deceased. In the case of Kristy, it is not legislation to deal with the righting of moral, or other, wrongs committed whilst the relationship between the deceased and the applicant existed ( Robinson v Tame (NSWCA, 9 December 1994, unreported); Gibson v Haselgrove; Delmont v Haselgrove [2009] NSWSC 496 at [80]).

In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the court to be vigilant in guarding "against a natural tendency to reform the deceased's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant".

In Stott v Cook (1960) 33 ALJR 447 at 450, Taylor J, although dissenting in his determination of the case, observed, at 453-4, that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added:

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

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 ( Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9, per Dixon CJ at [19]; McKenzie v Topp [2004] VSC 90 at [63]). Freedom of testamentary disposition remains a prominent feature of the Australian legal system.

In considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life, 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: The Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (NSWSC, 17 May 1996, unreported); Vigolo v Bostin at [11]; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.

Because of the size of the estate and/or notional estate, it is also necessary to remember what Bryson JA (with whom Stein AJA and Ipp JA agreed) in Bladwell v Davis [2004] NSWCA 170 at [11]:

"As recurringly happens, it is not possible to meet all the claims on the testator's bounty which have been shown to exist. Determination whether there is power to make an order under the Family Provision Act 1982 , and also what order should be made, requires the Court to have regard to the assets available for distribution; and the assets available are not sufficient to satisfy all proved needs and claims on the testator's bounty. There can be no truly satisfactory outcome for this litigation. No-one with a claim on the testator's bounty could receive adequate provision in relation to that person's needs except at the expense of making less than adequate provision available for some other such person."

Extension of Time

The Act provides that an order shall not be made unless the application for the order is made within " the prescribed period " (eighteen months from the date of death) or " within such further period as the Court may, having regard to all the circumstances of the case, but subject to sub-sec (3), by order, allow " (s 16(2) of the Act).

Sub-section (3) of s 16 provides that the Court shall not make an order under sub-s (2), allowing an application in relation to a deceased person to be made after the expiration of the prescribed period unless:

(a) the parties to the proceedings concerned have consented to the application being made after the end of that period, or

(b) " sufficient cause " is shown for the application not having been made within that period.

It can be seen that the decision of the court to extend time is a discretionary decision. 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 [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.

Ultimately, what the applicant must establish is a sufficient explanation or excuse to justify the granting of an extension of time. The onus lies on her, or him, to establish sufficient cause and, thus, to provide the reason(s) for not commencing within time, to demonstrate a lack of prejudice due to the delay in instituting proceedings, and any unconscionable conduct by the defendant or other beneficiaries. It will be for the court to determine the strength of the applicant's claim.

In Cetojevic v Cetojevic [2006] NSWSC 431, Campbell J (as his Honour then was) explained that the prejudice to which the section looks is any prejudice occasioned by the delay in lodging the claim.

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.

Extensions of time have been granted where the plaintiff was unaware of the right to apply: Coates v National Trustees Executors and Agency Co Ltd & Anor (1956) 95 CLR 494 at 505; where the applicant was aware of her rights but could not afford to pursue them: Coffey v Bennett [1961] VR 264; where the applicant was unaware of the true size of the deceased's estate: Re Nassim (dec) [1984] VR 51 at 56 and 57; where the applicant was unaware or under a misapprehension of the extent of her own interests under the deceased's will: Re Marland (dec) [1957] VR 338 at 340.

Perhaps, also relevant to the present case, is what was said in Mansfield v Mansfield [2003] WASC 214 at [65]:

"65 The authorities also show, as in Young v Kestel , that in some circumstances a failure to make an application under the Act in the prescribed time may be explained and justified by a lack of information in the hands of an applicant. A lack of information may support the view that the applicant was not in a position to make a responsible decision about whether or not to institute proceedings under the Act."

Notional Estate

An additional issue in this case that also arises, because the bulk of the deceased's actual estate has been transmitted to the Defendant, is whether property in which the deceased's held an interest, should be designated as notional estate of the deceased.

The non-severance, before the deceased's death, of the joint tenancy is a matter clearly capable of giving rise to a designation of notional property. As such, it is necessary to consider certain other sections of the Act.

Section 27 also requires the Court to consider various matters:

"(1) On an application in relation to a deceased person, the Court shall not make an order designating property as notional estate of the deceased person unless it has considered:

(a) the importance of not interfering with reasonable expectations in relation to property,

(b) the substantial justice and merits involved in making or refusing to make the order, and

(c) any other matter which it considers relevant in the circumstances.

(2) In determining what property should be designated as notional estate of a deceased person, the Court shall have regard to:

(a) the value and nature of property the subject of any relevant prescribed transaction or distribution from the estate of the deceased person,

(b) where, in relation to any such prescribed transaction, consideration was given, the value and nature of the consideration,

(c) any changes over the time which has elapsed since any such prescribed transaction was entered into, any such distribution was made or any such consideration was given in the value of property of the same nature as the property the subject of the prescribed transaction, the distribution or the consideration, as the case may be,

(d) whether property of the same nature as the property the subject of any such prescribed transaction, any such distribution or any such consideration could, during the time which has elapsed since the prescribed transaction was entered into, the distribution was made or the consideration was given, as the case may be, have been applied so as to produce income, and

(e) any other matter which it considers relevant in the circumstances."

In Petschelt v Petschelt [2002] NSWSC 706, at [68], McLaughlin M (as his Honour then was), considered the meaning of "reasonable expectations":

"That phrase does not, however, indicate the person by whom those reasonable expectations are held. Clearly the Court must consider the reasonable expectations of the First Defendant in relation to property. By the same token, however, the Court should also consider the reasonable expectations of the Deceased herself in relation to property, and also, possibly, the reasonable expectations of the Plaintiff."

In D'Albora v D'Albora [1999] NSWSC 468, at [53], Macready M (as his Honour then was) gave examples of the circumstances which might give rise to reasonable expectations for the purposes of this section:

"Under s 27(1)(a) the Court has to consider the importance of not interfering with the reasonable expectations in relation to the property. Such reasonable expectations may well occur in a number of circumstances. For example, a beneficiary who receives a property may have spent money on the property or worked on the property. ... Another common area where one often sees in this matter is where there is a promise in relation to the property and the acting by an intended beneficiary on the fact of that promise."

In Wentworth v Wentworth [1992] NSWCA 268, Priestley JA, with whom Samuels AP and Handley JA agreed said:

"Section 27(1) for example, says the court shall not make an order designating property as notional estate unless it has considered, amongst other things, the importance of not interfering with reasonable expectations in relation to property. If someone is in possession of property, otherwise than by gift, after having given up something of equivalent value in order to obtain that property, it would be entirely reasonable for that person to expect to remain in possession of it."

Section 28 also requires the Court to consider other matters:

"(1) On an application in relation to a deceased person for an order for provision in favour of an eligible person, the Court shall not make an order designating property as notional estate of the deceased person unless the deceased person left no estate or unless it is satisfied:

(a) that the estate of the deceased person is insufficient to allow the making of provision that, in its opinion, should be made, or

(b) that, by reason of the existence of other eligible persons or the existence of special circumstances, provision should not be made wholly out of the estate.

(2) On an application in relation to a deceased person, the Court shall not make an order designating as notional estate of a deceased person property in excess of that necessary to allow the making of provision that, in its opinion, should be made."

In this case, subject to the order or orders for provision, sub-s (1) would be satisfied.

Section 28(5) of the Act imposes an additional hurdle that needs to be overcome by an applicant who brings his, or her, application only because an extension of time is granted. The subsection provides:

"(5) On an application in relation to a deceased person, being an application:

(a) made pursuant to an order under section 16 allowing the application to be made, or

(b) for an order under section 8 for additional provision,

the Court shall not make an order designating property as notional estate of the deceased person by reason of a prescribed transaction or a distribution unless it is satisfied:

(c) that:

(i) the property was the subject of the prescribed transaction or distribution,

(ii) the person by whom it is held holds the property as a result of the prescribed transaction or distribution as trustee only, and

(iii) the property is not vested in interest in any beneficiary under the trust, or

(d) that there are other special circumstances (including, in the case of an application made as referred to in paragraph (a), the incapacity, during any relevant period, of the person by or on whose behalf the application is made) which justify the making of an order so designating the property."

The meaning of "special circumstances" in s 28(5) of the Act, has been considered in a number of cases (see, for example, Lewis v Lewis [2001] NSWSC 321; Zirkler v McKinnon [2002] NSWSC 285; Blyth v Spencer; Spencer v Neville [2005] NSWSC 653; Cetojevic v Cetojevic ; Campbell v Chabert-McKay ; John v John; and Alexander v Jansson .

The following summary regarding the section may be gleaned from the authorities which have dealt with s 28 of the Act:

(a) The sub-section in the Act gives some indication of the types of circumstances that may count as special circumstances, namely circumstances involving such things as property not finally vesting in interest, and lack of capacity in the plaintiff.

(b) The term prescribes a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition.

(c) The qualifying adjective, "special", looks to circumstances that are unusual, uncommon or exceptional; the Oxford Dictionary defines "special" as meaning "of such a kind as to exceed or excel in some way that which is usual or common; exceptional in character, quality or degree"; the Macquarie Dictionary states the meaning: "of a distinct or particular character or purpose"; "being a particular one"; "particular, individual or certain"; "different from what is ordinary or visual"; "extraordinary, exceptional".

(d) A circumstance may be "special" by reason of degree, as well as of kind; circumstances need not be unique to be special, but they will be unusual; it is legitimate to have regard to a combination of factors in reaching the conclusion that they are special.

(e) More should be demonstrated to prove "special circumstances" than to justify an extension of time; the latter requires "sufficient cause" to be shown; however, to establish such special circumstances does not require the court to exclude circumstances considered under s 16 (3) of the Act.

(f) Whether circumstances answer the description must depend upon the context in which they occur; it is the context that allows one to say that the circumstances in one case are markedly different from the usual run of cases. Their existence is also, in a sense evaluative in character.

One final matter of principle should be dealt with and that relates to the bankruptcy of Kristy. The right to apply for relief under the Act is personal, and does not vest in a person's trustee in bankruptcy: Coffey v Bennett ; McLeod v Johns [1981] 1 NSWLR 347; Menzies v Marriott [2009] VSC 345 at [46]. That means that the applicant, not his, or her, trustee in bankruptcy, is the appropriate party to bring the proceedings.

However if, whilst the applicant remains an undischarged bankrupt, he, or she, receives money, or other property, following an order for provision having been made, such property will be available to the trustee for distribution to creditors. That is a relevant factor to be taken into account: Thomas v Jackson [2002] NSWSC 660; Strano v Jovcevski [2008] NSWSC 380; is Diver v Neal [2009] NSWCA 54.

Determination

Mathew and Ebony assert, and Clara does not dispute, that he, and she, is an eligible person within the meaning of that term in s 6(1)(b) of the Act, as a child of the deceased.

Kristy asserts that she is an eligible person under s 6(1)(d) of the Act, that is, a person:

"(i) who was, at any particular time, wholly or partly dependent upon the deceased person; and

(ii) who was ... at that particular time, or at any other time, a member of the household of which the deceased was a member."

There is no dispute that she, too, is an eligible person.

As an eligible person under s 6(1)(d) she must establish there are factors warranting the making of the application. In this case, the following factors are relied upon:

(a) There was no property settlement between the deceased and Kristy following the cessation of the de facto relationship.

(b) Kristy became pregnant with Mathew a few months after commencing cohabitation with the deceased. She was then employed by the Department of Health and continued working until she was 8 months pregnant. To the detriment of her own financial prospects, she did not work again during her relationship with the deceased.

(c) The deceased did not work after sustaining the injury in 1990. Thereafter, he received workers' compensation payments and Kristy received Family Benefit Payments from the Department of Social Security. On occasions, the deceased took control of the payments received by Kristy which caused her to request financial assistance from her parents to purchase food, basic necessities and for the payment of rent. She also pawned possessions in order to get cash as well as having to rely on food vouchers from charity organisations.

(d) Kristy raised and cared for Mathew, as well as performing all domestic tasks for the deceased. She cared for the deceased after his injury, attended to dressing his leg, taking him to physiotherapy and medical appointments. The deceased was significantly incapacitated and required a walking stick that he used for the duration of the relationship. Kristy performed these tasks notwithstanding his violent episodes when she was severely beaten.

(e) Notwithstanding the relationship ending in 1993, the deceased continued, at least to 1999, to express strong feelings of endearment and affection towards Kristy, which included giving her a gift bracelet. To her credit, she did not stand in the way of there being contact between Mathew and the deceased.

I have also considered the fact that there was no, or little, contact after 1998 and that the deceased did pay lump sum maintenance to her for Mathew.

I am satisfied, whichever test is applied, that Kristy has established factors warranting the making of the application. I am also satisfied that, but for the size of the actual and notional estate, she had reasonable prospects of success in making her claim.

It follows that Mathew, Kristy and Ebony, have established their eligibility to make a claim under the Act.

The next question is whether the court should make an order extending the time for the making of the application of each of them. In the case of each of Mathew and Kristy, it is clear that he, and she, was unaware of the deceased's death until well after expiration of the prescribed period. That provides a reasonable explanation for the delay in commencing the proceedings. In respect of Ebony, she was informed, within the prescribed period of the deceased's death, but, then, she did not have the financial capacity to then commence any proceedings.

I am also satisfied that, in failing to disclose, in the letter that Clara sent to Ebony, that there was a Will of the deceased in which Ebony was named as a beneficiary, and in respect of Mathew, doing no more than purporting to send a letter along somewhat similar lines, the receipt of which she did not confirm, Clara did not act as an executrix should have.

I would be satisfied that, in the case of each of Mathew and Ebony, the time for the making of his, and her, application should be extended until the date of the filing of the Summons. In the case of Kristy, for reasons to which I shall come, it is futile to make an order extending the time.

I must consider, next, whether, at the present time, adequate provision for the proper maintenance, education, or advancement in life, of each Plaintiff was not been made by the deceased's Will.

There was virtually no provision in the deceased's Will made for either Mathew or Ebony. There was no provision at all made for Kristy. This does not, automatically mean that he, or she, has established the jurisdictional threshold.

There is no suggestion of any conduct by any of the Plaintiffs that would constitute conduct of the type to disentitle him or her to an order for provision. In particular, it is not suggested that the lack of contact between the deceased and each of Mathew and Ebony would result in no order being made. In any event, I would be satisfied on the evidence that I have read that the deceased, despite their being a lack of contact, continued to regard each as a child to whom he owed a duty.

In the case of Kristy, there does appear to have been residual affection held by the deceased towards her until about 1998. However, there is no suggestion of any real contact between them thereafter.

Taking into account all of the matters that I am required to consider in the first stage, including each applicant's financial position, the nature and value of the estate and property that might be designated as notional estate, the relationship between each applicant and the deceased, and the relationship between the deceased and other persons who have legitimate (and in this sense competing) claims upon the deceased's bounty (that of Clara), I conclude that each of Mathew and Ebony has satisfied the jurisdictional threshold. In the case of Kristy, I am not so satisfied. In addition, she remains a bankrupt. In such circumstances, I am satisfied that, in her case, the court should not interfere with the deceased's testamentary freedom to make no provision for her.

That conclusion would be sufficient to enable me to dismiss her Summons. However, in case I am wrong in my conclusion, I shall consider her position, also, in my determination of whether to make a family provision order and, if so, the nature of any such order.

In my view, in relation to each of the applicants, this is a more difficult question principally because of the value of the estate and property that might be designated as notional estate, the very strong competing claim of Clara, and the recognition of the deceased's freedom of testation. I cannot forget that Clara is the spouse of the deceased, and that their relationship was a reasonably long one. Furthermore, she had made a significant contribution to the deceased both financially and non-financially. As he recognised, it was to her that he owed a primary moral obligation.

Even so, he recognised that he had children for whom some provision, albeit of articles of sentiment, should be made. In the circumstances, I have come to the view that some provision ought to be made for each of Mathew and Ebony. I am unable, at the second stage, and as a matter of discretion to conclude that provision should be made for Kristy (if I were wrong in relation to her claim at the jurisdictional stage). The value of the estate and the value of the property that could be designated as notional estate are simply not large enough to enable me to do so.

I am of the view that Mathew should receive a lump sum of $40,000 and that Ebony should receive a lump sum of $30,000.

The Kalkite property forms part of the actual estate of the deceased and the provision I have concluded that should be made for each of the Plaintiffs may be paid out of that estate. However, it may be that Clara would not want to sell that property but would seek to raise funds sufficient to satisfy what is a very modest order for provision made in favour of each of Mathew and Ebony.

Before making any orders as to how the burden of the provision should be met, I shall allow Clara an opportunity to consider how she will satisfy the order for provision and any order as to costs. I do not accept any submission that Clara should have to sell the Killarney Vale property since it is clear that there is other property that is available to be sold to satisfy the orders for provision and, if appropriate, costs.

I order that the proceedings commenced by Kristy be dismissed.

I stand the proceedings over to enable the parties to bring in short minutes dealing with these matters. At that time, unless the parties are able to agree, I shall deal with consequential orders to give effect to the orders for provision and the question of costs and whether those costs should be capped.

**********

Decision last updated: 09 June 2011

Medium Neutral Citation:	McMahon v Smith; Turner v Smith; and Smith v Smith [2011] NSWSC 487
Hearing dates:	24 February 2011; 25 February 2011; 4 April 2011
Decision date:	03 June 2011
Jurisdiction:	Equity Division
Before:	Hallen AsJ
Decision:	(a) Being satisfied that each is an eligible person, I conclude that each of Mathew and Ebony has satisfied the jurisdictional threshold. In the case of Kristy, I am not so satisfied. (b) Order that Mathew receive a lump sum of $40,000 and that Ebony should receive a lump sum of $30,000. (c) Order that the proceedings commenced by Kristy be dismissed. (d) I stand the proceedings over to enable the parties to bring in short minutes dealing with these matters. At that time, unless the parties are able to agree, I shall deal with consequential orders to give effect to the orders for provision and the question of costs and whether those costs should be capped.
Catchwords:	Three proceedings heard together, with evidence in one, being evidence in the others - Plaintiff in first proceedings - son of the deceased - Plaintiff in second proceedings - former de facto wife of the deceased, and mother of the Plaintiff in the first proceedings - Plaintiff in third proceedings - daughter of the deceased with whom he had virtually no contact from shortly after the time of her birth - Defendant - widow of Deceased - Property held by the deceased and the Defendant as joint tenants
Legislation Cited:	Family Provision Act 1982 Succession Act 2006 Succession Amendment (Family Provision) Act 2008 Wills, Probate & Administration Act 1898
Cases Cited:	Alexander v Jansson [2010] NSWCA 176 Ball v Newey (1988) 13 NSWLR 489 (NSWCA, 18 June 1991, unreported) Bladwell v Davis [2004] NSWCA 170 Blyth v Spencer; Spencer v Neville [2005] NSWSC 653 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Brown v Faggoter (NSWCA, 13 November 1998, unreported) Burton v Moss [2010] NSWSC 163 Campbell v Chabert-McKay [2010] NSWSC 859 Cetojevic v Cetojevic [2006] NSWSC 431 Challenger Property Asset Management Pty Ltd v Stonnington City Council [2011] VSC 184 Churton v Christian (1988) 13 NSWLR 241; [1988] NSWCA 23 Coates v National Trustees Executors and Agency Co Ltd & Anor (1956) 95 CLR 494 Coffey v Bennett [1961] VR 264 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 D'Albora v D'Albora [1999] NSWSC 468 De Winter v Johnstone (NSWCA, 23 August 1995, unreported), Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54 Durham v Durham [2010] NSWSC 389; [2011] NSWCA 62 Electricity Commission of NSW v Arrow (1994) 85 LGERA 418 Foley v Ellis [2008] NSWCA 288 Fulop Deceased, Re (1987) 8 NSWLR 679 Gibson v Haselgrove; Delmont v Haselgrove [2009] NSWSC 496 Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Hastings v Hastings [2010] NSWCA 197 John v John [2010] NSWSC 937 Lewis v Lewis & Anor [2001] NSWSC 321 McCosker v McCosker [1957] HCA 52; (1957) 97 CLR 566 McKenzie v Topp [2004] VSC 90 McLeod v Johns [1981] 1 NSWLR 347 Mansfield v Mansfield [2003] WASC 214 Marland (dec), Re [1957] VR 338 Mayfield v Lloyd-Williams [2004] NSWSC 419 Menzies v Marriott [2009] VSC 345 Nassim (dec), Re [1984] VR 51 Penfold v Perpetual Trustee [2002] NSWSC 648 Petschelt v Petschelt [2002] NSWSC 706 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9 Porthouse v Bridge [2007] NSWSC 686 Puckridge, Deceased, In the Estate of, (1978) 20 SASR 72 Robinson v Tame (NSWCA, 9 December 1994, unreported) Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Skinner v Frappell [2008] NSWCA 296 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Taylor v Farrugia [2009] NSWSC 801 Tsivinsky v Tsivinsky (NSWCA, 5 December 1991, unreported) Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported) Wentworth v Wentworth [1992] NSWCA 268 Zirkler v McKinnon [2002] NSWSC 285
Texts Cited:	Government Gazette No. 38 of 20 February 2009
Category:	Principal judgment
Parties:	Mathew McMahon (aka Turner) (Plaintiff) (2009/291280) Kristy Ann Turner (Plaintiff) (2009/291281) Ebony Smith (Plaintiff) (2011/48505) Clara Smith (aka Clara Gomes & Clara Evans) (Defendant)
Representation:	Counsel: Mr P Sternberg (Plaintiff) (2009/291280 & 2009/291281) Mr J D Shaw (Plaintiff) (2011/48505) Mr D Flaherty (Defendant) Solicitors: Elias Gates & Associates (Plaintiff) (2009/291280 & 2009/291281) WA Baxter & Co (Plaintiff) (2011/48505) Quinn Lawyers (Defendant)
File Number(s):	2009/291280; 2009/291281; and 2011/48505
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