Meres v Meres

[2017] NSWSC 285

Supreme Court

New South Wales

Medium Neutral Citation:	Meres v Meres [2017] NSWSC 285
Hearing dates:	28 February 2017
Date of orders:	28 March 2017
Decision date:	28 March 2017
Jurisdiction:	Equity
Before:	Hallen J
Decision:	Orders that the Plaintiff’s Summons be dismissed. Orders that any argument as to costs of the proceedings, and how those costs are to be borne, be listed on a date to be arranged when these reasons are published.
Catchwords:	SUCCESSION – FAMILY PROVISION – The Plaintiff, an adult child of the deceased, makes a claim for a family provision order – No dispute as to the Plaintiff’s eligibility as a child of the deceased – The Defendant is also an adult child of the deceased and a beneficiary named in the Will –– Reasonably sized estate in value principally comprising real property – Plaintiff and Defendant share equally the real property under terms of the Will - No competing financial claim advanced by the Defendant – Whether family provision order should be made, and if so, the nature and quantum of the provision to be made
Legislation Cited:	Civil Procedure Act 2005 Family Provision Act 1982 (NSW) Probate and Administration Act 1898 (NSW) Property (Relationships) Act 1984 (NSW) Succession Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Anderson v Teboneras [1990] VR 527; [1990] VicRp 47 Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 Boettcher v Driscoll [2014] SASC 86; (2014) 119 SASR 523 Bondelmonte v Blanckensee [1989] WAR 305 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Butcher v Craig [2009] WASC 164 Burke v Burke [2015] NSWCA 195 Carey v Robson (No 2) [2009] NSWSC 1199 Chan v Chan [2016] NSWCA 222 Chapple v Wilcox [2014] NSWCA 392; 87 NSWLR 646 Christie v Manera [2006] WASC 287 Collicoat v McMillan [1999] 3 VR 803 Crossman v Riedel [2004] ACTSC 127 de Angelis v de Angelis [2003] VSC 432 Devereaux-Warnes v Hall (No 3) Diver v Neal [2009] NSWCA 54 Foley v Ellis [2008] NSWCA 288 Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 Fung v Ye [2007] NSWCA 115 Geoghegan v Szelid [2011] NSWSC 1440 Goodman v Windeyer [1980] HCA 31; 144 CLR 490 Goodsell v Wellington & Ors [2011] NSWSC 1232 Gorton v Parks (1989) 17 NSWLR Grey v Harrison [1997] 2 VR 359 Hall v Hall (2016) 332 ALR 1 Harkness v Harkness (No 2) [2012] NSWSC 35 Hawkins v Prestage (1989) 1 WAR 37 Henry v Hancock [2016] NSWSC 71 Heyward v Fisher (NSW Court of Appeal, 26 April 1985, unrep Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2 Hunter v Hunter (1987) 8 NSWLR 573 Hyland v Burbidge [2000] NSWSC 12 Ilott v The Blue Cross & Ors [2017] UKSC 17 Jodell v Woods [2017] NSWSC 143 Kay v Archbold [2008] NSWSC 254 Kennon v Spry; Spry v Kennon (2008) 238 CLR 366 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 MacGregor v MacGregor [2003] WASC 169 Marks v Marks [2003] WASCA 297 Mayfield v Lloyd-Williams [2004] NSWSC 419 McCosker v McCosker [1957] HCA 82, (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 Palagiano v Mankarios [2011] NSWSC 61 Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4 Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 Re Smith, Deceased (1991) 8 FRNZ 459 Salmon v Osmond [2015] NSWCA 42 Sammut v Kleemann [2012] NSWSC 1030 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack v Rogan & Anor; Palffy v Rogan & Anor [2013] NSWSC 522; (2013) 85 NSWLR 253 Smith v Johnson [2015] NSWCA 297 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Szypica v O’Beirne [2013] NSWSC 297 Taylor v Farrugia [2009] NSWSC 801 Thompson v Sgro [2016] NSWSC 1869 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) White v Barron (1980) 144 CLR 431; [1980] HCA 14 White and Tulloch v White (1995) 19 Fam LR 696 Wilcox v Wilcox [2012] NSWSC 1138
Category:	Principal judgment
Parties:	Lennie Meares (Plaintiff) Rodney Stanley Meares (Defendant)
Representation:	Counsel: Ms L Goodchild (Plaintiff) Mr D Liebhold (Defendant)   Solicitors: LJ Sharpe & Co (Plaintiff) Owen Hodge Lawyers (Defendant)
File Number(s):	2016/203508

Judgment

1. HIS HONOUR: This is litigation between twin brothers in relation to the estate of their mother, Olga Gene Meres (“the deceased”), who died on 7 July 2015. The Plaintiff, Lennie Meres, seeks additional provision out of the deceased's estate and notional estate pursuant to the Succession Act 2006 (NSW) ("the Act"). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009. 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. The Plaintiff also seeks an order that his costs of the proceedings be paid.

2. On 5 November 2015, this Court granted Probate of the deceased’s Will, made on 23 December 2014, to the Plaintiff. On 1 November 2016, an order was made, by agreement of the parties, that Rodney Stanley Meres, the Defendant, be appointed to conduct the proceedings on behalf of the estate, he being the only other beneficiary named in the deceased’s Will. This order was clearly appropriate since it is his interest in the estate of the deceased that will have to bear the burden of additional provision, if any, made for the Plaintiff. The Defendant has resisted the Plaintiff’s claim submitting that it should be dismissed with costs.

3. At the commencement of the hearing, the parties agreed that there was no property that could be designated as notional estate. In the circumstances, hereafter, I shall simply refer to the estate of the deceased. There is also no scope for the operation of the intestacy rules with the consequence that it is only necessary to refer to the Will of the deceased.

4. The Plaintiff commenced these proceedings by Summons filed on 5 July 2016. He filed an amended Summons (correcting the spelling of the deceased’s name) on 2 February 2017. It is not in dispute that the proceedings were commenced within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased).

5. It is also not in dispute that, as a child of the deceased, the Plaintiff is an eligible person within the meaning of that term in s 57(1)(c) of the Act. The language of the relevant sub-section is expressive of the person’s status, as well as his, or her, relationship to the deceased. There is no age limit placed on an eligible person making an application.

6. (The Plaintiff is also said to be a person “who was, at any particular time, wholly, or partly, dependent on the deceased person, and who was, at that particular time, or at any other time, a member of the household of which the deceased person was a member": s 57(1)(e) of the Act. It is unnecessary for the Plaintiff to rely upon this category of eligibility and it may be ignored so far as it is relied upon to establish the eligibility of the Plaintiff.)

Background Facts

7. In a claim for a family provision order, factual context is necessary. It is convenient to begin with a statement of background facts, since these provide part of that context. In relation to any matters that were in dispute, to which I refer, the facts set out hereunder should be regarded as the findings of the Court.

8. The deceased was born in April 1924 and died in July 2015 aged 91 years. She married Ronald Stanley Meres, but he died on 13 December 2015. The deceased and the parties’ father separated, and lived apart, from about 2004.

9. In 2004, the deceased and the parties’ father each executed a new Will. Each also appointed the Plaintiff to be her, and his, Attorney and Guardian, respectively. They also reached agreement on the division of the matrimonial properties, with the deceased retaining sole ownership of the former matrimonial home, at Bestic Street, Rockdale (“the Rockdale property”) and the parties’ father assuming residence, and sole ownership, of a property at Banyandah Street, Durras Lake (“the Durras Lake property”).

10. There were only two children of the deceased’s marriage, being the parties in these proceedings. They were born in February 1951 and, each, currently, is 66 years of age.

11. By his Will, the parties’ father left the whole of his estate to the Plaintiff. The evidence revealed that his estate has been fully administered, the debts, funeral and testamentary expenses paid, the Durras Lake property has been sold, the Plaintiff has received the net proceeds of sale and that the other property of the estate has been distributed to him also.

12. By her Will, the deceased appointed the Plaintiff as the sole executor and trustee of her Will. She gave him a legacy of $20,000 and then devised the rest and residue, after payment of debts funeral and testamentary expenses, as to the Rockdale property, to the Plaintiff and the Defendant as tenants in common in equal shares, and as to the balance of the estate, to the Plaintiff absolutely.

13. In the Inventory of Property that was placed inside, and attached to, the Probate document, the deceased’s estate at the date of death, was disclosed as having an estimated, or known, value of $1,140,161. The estate was said to consist of the Rockdale property ($1,125,000), cash in bank accounts ($9,016) and shares in different public companies ($6,144). (I have omitted, and shall continue to omit, a reference to cents. This will explain any apparent mathematical miscalculations.)

14. Part of the deceased’s estate has already been spent. The Plaintiff has paid $17,701, made up of the funeral expenses ($9,234) and some legal and administration costs ($8,467) (but not the costs of the proceedings).

15. Following the lodgement of a Transmission Application dated 13 November 2015, the Plaintiff became the registered proprietor of the Rockdale property as executor of the Will of the deceased.

16. At the date of hearing, the gross value of the deceased’s estate was $1,201,917, and it consisted of the Rockdale property ($1,200,000) and cash in bank accounts ($1,917). It is a reasonably sized estate in value. Without any deductions at all, for costs and disbursements of the proceedings, and the costs and disbursements of sale of the Rockdale property, the share of each of the parties would be $600,958.

17. Usually, in calculating the value of the deceased's estate finally available for distribution, the costs of the proceedings should be considered with circumspection, since the plaintiff, if successful, normally would be entitled to an order that his, or her, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the proceedings, normally will be entitled to an order that his, or her, costs, calculated on the indemnity basis, should be paid out of the estate.

18. As Basten JA put it in Chan v Chan [2016] NSWCA 222, at [54]:

“In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs.”

19. However, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195; Harkness v Harkness (No 2) [2012] NSWSC 35.

20. At the hearing, the Plaintiff’s costs and disbursements, calculated on the ordinary basis, of the proceedings, were estimated to be $47,000, inclusive of GST. The Defendant’s costs and disbursements, calculated on the indemnity basis, of the proceedings, were estimated to be $71,500, inclusive of GST. (The Plaintiff complains about the quantum of the Defendant’s costs bearing in mind that the matter was relatively straightforward and because it was heard and determined in one day.)

21. Counsel did not accept that, in the event the Plaintiff is successful to any extent, an order should be made that his costs, calculated on the ordinary basis, should be paid out of the deceased’s estate. Nor did they agree that the Defendant’s costs, calculated on the indemnity basis, should be paid out of the estate. The Court was informed that a document might be relevant on the issue of costs: T53.07 – T53.12. I shall, therefore, not determine how the burden of costs should be borne until after these reasons are published and any docuemtns are tendered and considered.

22. (I should mention that on 1 November 2016, the parties participated in a judicial settlement conference. Regrettably, the matter did not resolve, and on 20 December 2016, the matter was listed for hearing. At the judicial settlement conference, the then costs of the parties were estimated to be, in total, $40,000. Thereafter, almost $80,000, in total, has been incurred in costs.)

23. Using the estimates of costs and disbursements provided, and taking into account the possibility that the costs might be ordered to be paid out of the deceased’s estate, an amount of $118,500 would be payable. (This is not to say that the quantum of costs has been agreed. That will be for the parties to consider.)

24. In the event that it becomes necessary to sell the Rockdale property, the parties agreed that the estimated costs and expenses of sale would be $25,850.

25. The Rockdale property is described by the Plaintiff as “a two bedroom bungalow with a large yard” at the back of which is a greenhouse of approximately 6 metres by 3 metres. A number of expensive, and other, plants are housed in the greenhouse. The Plaintiff is a keen gardener and he has spent time, over many years, maintaining the garden and the plants at the Rockdale property.

26. The Rockdale property was also described by the Plaintiff as a “fixer-upper”. He then added, at T26:

“It's aged, it hasn't had a great deal of renovation done on it. It is still in a reasonable condition. I have maintained it, I have kept it, I have kept it as well as I possibly can, but it's a - it's a - it's a 60 odd year old bungalow, so. And the age of the dwelling shows. …”

27. Counsel for the Plaintiff submitted that it may not be necessary for the Rockdale property to be sold, as the Plaintiff would meet any costs order made in favour of the Defendant. This makes clear that the Plaintiff’s case is that he should receive, effectively, by way of provision, the whole of the deceased’s estate. However, the way the Plaintiff’s claim was fashioned, ultimately, was that he should receive the interest in the Rockdale property passing to the Defendant under the deceased’s Will, upon condition that he paid an amount of money to the Defendant. It will be necessary to return to the evidence of the Plaintiff on this aspect later in these reasons.

28. The estimated net value of the deceased’s distributable estate available, after the identified costs and disbursements of the proceedings and the costs and expenses of sale of the Rockdale property, are deducted, would be about $1,057,567. It follows, on the basis of the calculations made, that the entitlement of each of the parties would be about $528,783. If the Rockdale property were sold, but the costs were not deducted from the estate, the entitlement of each party would be to about $588,000. If the Rockdale property is not sold, but the identified costs and disbursements of the proceedings were to be paid out of the estate, the value of each party’s interest under the Will of the deceased would be about $541,708.

29. The parties also agreed that there are no other eligible persons within the meaning of that term in s 57(1) of the Act.

30. The Defendant has not made an application for an order under the Act. Nor does he raise his financial circumstances in the proceedings.

31. The parties also seemed to accept, in the event the Plaintiff is successful but does not receive the whole of the estate, that the Court should make an order that he receive a specific lump sum, to be paid out of the share of the proceeds of sale of the Rockdale property passing to the Defendant, rather than a lump sum calculated as a percentage of the net proceeds of sale in lieu of the provision made for him in the Will. The Court raised the latter possibility, but as the parties appear to be prepared to have the Court base any order for provision being by way of a lump sum, based upon the agreed estimated, rather than an actual, value of the Rockdale property, I would not, necessarily, make the type of order that I have made in other cases: see, for example, Thompson v Sgro [2016] NSWSC 1869.

The Relationship of the Plaintiff with the deceased

32. The relationship of each of the parties with the deceased is, of course, an important consideration. As will be read, the Act specifically provides for consideration of “the character and conduct of the applicant” and “the conduct of any other person”. (Although the reference to conduct does not expressly refer to the conduct of the deceased and of the beneficiaries, it must be a relevant factor in assessing the relationship of the deceased and any other person”: Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107, per Basten JA, at [25]).

33. The Plaintiff deposed to a loving and caring relationship with both the deceased and the parties’ father that had existed since his childhood. Following the deterioration in the health of both the deceased and the parties’ father, the Plaintiff also asserted, and I accept, that he assumed a significant degree of caregiving responsibilities for each of them as well.

34. In 1980, the Plaintiff was sentenced to 5.5 years jail (with a non-parole period of 2 years and 9 months) for trying to import 10 kilograms of cannabis into Australia. His parents provided the security of their home to secure the Plaintiff’s bail and they visited him whilst he was incarcerated.

35. It is likely that the Plaintiff’s criminal conduct, even if not directly affecting the deceased, created what might be regarded as the "normal disappointment and anguish of a mother at her son's wrongdoing” (Re Smith (Deceased) (1991) 8 FRNZ 459 at 463). However, this did not prevent her making provision for him in her last Will or in earlier testamentary instruments.

36. After being released from jail, the Plaintiff did not live with the deceased until about 1989 or 1990. From then, he lived with them, and then with the deceased alone, at the Rockdale property.

37. After the deceased suffered a stroke in 1994-5, her vision, which was already compromised by macular degeneration, deteriorated further. The Plaintiff says that this resulted in her increased reliance upon him. As a result of the combined health problems of the deceased and the parties’ father (who had also suffered a stroke in 1991), the Plaintiff states that “for the next 20 years I continued looking after my parents and did the vast majority of the house work and cleaning and the like”.

38. I accept his evidence in this regard as there was no substantial challenge to it. It demonstrates that the Plaintiff is a child of the deceased who had remained exceptionally close to her, and who had supported and nurtured her in her old age. However, the Plaintiff accepts that, at least in part, he “was living off my parents’ various pensions but I was working hard for the money”. In 2014, the Plaintiff began receiving a carer’s allowance.

32. Although separated, the deceased and the parties’ father maintained an amicable relationship and remained in close contact. When a fall in 2014 meant that the parties’ father was placed in a nursing home in Sydney, the Plaintiff took the deceased every week to the nursing home to visit.

33. The deceased wrote a letter, dated 8 March 2004, in which she referred to an incident when the Defendant used offensive language towards her and the Defendant’s maternal grandmother. The letter ended with the statement “I do not want Rodney to get a penny from my estate”.

34. Similarly, in a prior Will made on 3 July 2013, the deceased wrote:

“I HAVE NOT made provision for my son RODNEY STANLEY MERES as we have not had a mother/son relationship for approximately 40 years and I DO NOT wish him to benefit under my Will”.

42. In that Will, the Plaintiff received the Rockdale property in remainder following the death of the parties’ father who had received it “for life or until remarriage or until he permanently vacates the home whichever event first occurs”.

43. However, after the deceased became seriously unwell and was hospitalised in late December 2014, her stance towards the Defendant softened. The Plaintiff asserts that it was as a result of medical advice that the deceased was not expected to survive more than 6 weeks that the she changed her Will to provide for the Defendant.

44. (The reasons for the change are not very important since it is not asserted that the Defendant had anything to do with the deceased changing the Will.)

45. As her health care needs increased, the deceased was admitted to a nursing home in June 2015. Following this, the Plaintiff visited the deceased every day, often bringing the parties’ father to visit the deceased as well.

46. There was really no dispute that the Plaintiff was a loving, caring and dutiful son to the deceased.

The Relationship between the Defendant and the deceased

47. Whilst the Plaintiff described his and the Defendant’s relationship with their parents as “close” when they were young, he asserted that by his mid-30’s, his “parent’s relationship with my brother had totally fallen apart”. He attributes the initial breakdown of their relationship to his parents’ disapproval of the Defendant’s relationship, at that time, with a woman who had two children by a previous marriage.

48. The Defendant’s view of his relationship with his parents was that “it was strained…and my childhood and teenage years were not happy.”

49. The Plaintiff also suggested that the estrangement between the Defendant and the deceased, at least in part, was due to the threat of physical violence from the Defendant towards the deceased. The Plaintiff asserted that the deceased told him that the Defendant had “threatened to kill me with a shotgun”, and that the deceased, therefore, took out an apprehended violence order and that as a result, “from that that time on there was no contact [between the Defendant and the deceased] at all for many, many years”.

50. The Plaintiff contended that the Defendant was estranged from the deceased, from their father, and from the Plaintiff himself, for over 20 years prior to the death of the deceased, stating that “I have had no contact with my brother, nor have my parents, to my knowledge, since my father had his major stroke in 1991. On that occasion he showed up for an hour and visited. He has not to my knowledge visited my mother or father since that time”. This was really not disputed by the Defendant.

51. A copy of a letter, dated 8 March 2004, in the handwriting of the parties’ father, stated that “My second son Rodney Stanly (sic) Meres is to receive no benefits from my will”. The letter goes on to explain that this decision was based on behaviour by the Defendant which the parties’ father felt indicated a lack of respect for the deceased which led to the Defendant being asked to move out of the family home.

52. The Plaintiff also deposed that the Defendant did not attend the funeral of either the deceased or the parties’ father. The Plaintiff contends he had a conversation with the Defendant on 18 June 2016 where the Defendant said words to the effect “I had no intention of showing up to mum’s funeral but I was thinking of showing up for dad’s but when I found out that he left me nothing in the Will I was glad that I didn’t.”

53. Although in his affidavit sworn 22 November 2016, the Defendant admitted to the deterioration of his relationship with the deceased and his father as a consequence of their disapproval over his then relationship, he denied ever having made the threats referred to by the Plaintiff. Although he denied that there was ever an apprehended violence order in place, the Defendant did, nonetheless, admit that there had been a court order, at the time, in place, that prevented him from “going anywhere near [the Rockdale property] or having any further dealings with [his] parents”.

54. Although the Defendant confirmed he had spoken to the Plaintiff on the 18 June 2016, he denied the contents of the conversation as stated by the Plaintiff. He asserted that he did not become aware of the death of the deceased until he read the death notices in the local newspapers about a week after the funeral had taken place. Nothing significant turns on the disputed evidence.

55. Far more important is the fact that there is no evidence that indicates that the Defendant took any steps to remedy any estrangement that existed between himself and the deceased (or the parties’ father) that had existed for so many years. As to the reasons for the estrangement itself, the Defendant stated that “I had a strained relationship with my parents and that my childhood and teenage years were not happy”. It is clear, from all of the evidence, that the Defendant had made his life entirely separately from the deceased for many years before her death.

56. Having gone into the relationship in some detail, and even though the relationship of the Defendant and the deceased was not a close one, it cannot be forgotten that he is a chosen object of the deceased’s testamentary bounty. The deceased decided, by making the Will that she did, that she had a remaining obligation to make provision for her independent adult son despite their relationship. It follows that the Defendant does not have to explain or justify the provision made for him, or prove that he deserved the provision that the deceased chose to make for him.

57. The Court, in determining an application for a family provision order, may disregard the interests of any other person by, or in respect of whom, an application for a family provision order may be made (other than a beneficiary of the deceased person’s estate) but who has not made an application: s 61 of the Act.

58. Finally, I should mention that the Defendant was not cross-examined.

Plaintiff’s Financial and Material Circumstances

59. As stated, the Plaintiff is 66 years of age, and is a single man with no dependents. He is unemployed, having not been in full-time employment for over 20 years. I am satisfied that he does not have an earning capacity.

60. The Plaintiff has lived in the Rockdale area for most of his life. He gave unchallenged evidence that all of his friends and associates live in the area or in the St George municipality; his stepdaughter is close by in Marrickville; his medical general practitioner is in Arncliffe; his treating oncologist is at Hurstville; he does his shopping at Rockdale Plaza; and his solicitors are at Rockdale or Kogarah. He feels comfortable in the area and is able to get around the area readily. He frequents the local beaches and clubs.

61. The Plaintiff emphasised the importance of his connection with the garden at the Rockdale property, to which garden he has tended for over 20 years. In cross-examination, however, he gave the following evidence, at T30.36 - T31.05:

“Q. Mr Meres, you would agree with me, wouldn't you, as a long term resident of Rockdale, that $550,000 is enough money in which to purchase a property in Rockdale?

A. I would have to answer yes, that would be enough money to purchase a property at Rockdale. But it does not take into account for that sort of money, I would have to consider living in a unit, and I just that is something that is just too much for me to accept. I have maintained the gardens. I am an avid gardener. I have so many plants down there, it's the reason why I am seeking to live in that property is because that garden represents survival for me. During the time that I was looking after my mother when she was seriously ill, and when I was going through my own illnesses, that garden was the only thing that represented anything to me for my spiritual and mental well being.

Q. Just stop you there, Mr Meres. You do describe your attachment to the garden and the plants in your affidavit?

A. Yes.

Q. …Do you accept that there are properties available in the range between $550,000 and $750,000 that have gardens?

A. Yes, I have to accept that.”

62. There was some criticism made of the Plaintiff for not having referred to his desire to remain living in the Rockdale property in his first affidavit, but rather that he would like “a nest egg of $400,000”. The Plaintiff said it was an oversight and that his “wish from day one, as I have just said, is that I could stay in that property. It is my fervent wish”.

63. As at 21 February 2017, the Plaintiff had cash in bank, being the proceeds of sale of the Durras Lake property ($351,564); other money from his father’s estate ($6,881) and a 1968 Porsche 911 Coupe ($20,000). (The parties’ father had certain IAG shares, but they were sold and the proceeds of sale were banked are included in the money: T37.10-T37.13.)

64. The Plaintiff did not disclose any liabilities, but, of course, he will have some, including perhaps, some costs of these proceedings.

65. At the hearing, the Plaintiff stated that he received income only by way of the aged pension of about $877 per fortnight, and that his expenditure was about $816 per fortnight, leaving a surplus of about $61 per fortnight: T33.20 – T33.27.

66. The Plaintiff was cross-examined about the lack of documents produced by him in answer to a Notice to Produce: Ex. 2. The cross-examination, principally, seemed to relate to documents surrounding his ownership of the 1968 Porsche 911 Coupe. Whilst it was suggested to him in cross-examination that the car had a greater value than the Plaintiff had attributed to it, really nothing much turns on this. The car was described by the Plaintiff as in the course of restoration and as “an unfinished project”. It was not suggested that the Plaintiff, otherwise, had not disclosed his current financial circumstances.

67. The Plaintiff gave evidence of suffering from a number of health complaints: back and neck pain and restriction of movement relating to a snow skiing accident in 1989 and two car accidents (in 2014 and June 2015); diagnosis of cancer of the tongue in November 2015; a history of coronary problems (heart attacks in 2000 and 2006); and a more recent diagnosis of diverticulitis.

68. At the hearing, the Plaintiff acknowledged that in relation to a car accident in which he was involved in June 2015, he had started proceedings for damages for personal injury. He stated that he believed that “an application to the Medical Assessment Service of the State Regulatory Authority will be made sometime later this year”.

69. However, the Plaintiff said that he had not been given advice on the precise quantum of damages he could expect to receive if successful in his claim, although he had “discussed with [his] lawyers who represent you in those proceedings the range of likely outcomes” and that he had been told that he might win the case. He was unsure of the likely amount of compensation because although he had seen the doctors for the insurance company and his solicitors had referred him to medicolegal specialists, he had not completed all of the medical appointments. He also accepted that his lawyers, in those proceedings, had agreed to act on a “no win no fee basis”: T 25.40 – T26.15. (I infer that liability remains in dispute.)

70. I regard his claim for damages as a financial resource.

71. During the course of his oral evidence, the Plaintiff stated that he was prepared to pay all of the cash that he has to the Defendant in order to obtain the Defendant’s interest under the deceased’s Will in the Rockdale property. His evidence in cross-examination (at T35.15 – T38.10) was:

“Q. Mr Meres, in your affidavit of 2 December last year you state that you had offered to my client a settlement under which you would receive the whole of the Bestic Street property and, in return, you would pay to my client the net proceeds of your late father's property at Durras Lakes. Is that correct?

A. Yes.

Q. And is that what you now say that the Court should order?

A. Yes.

Q. So your case is that my client should receive ($)351,000, which is what you've said is the net proceeds of the sale of the Lake Durras property?

A. Yes.

Q. And that Bestic Street should go to you outright?

A. Could I just say there's additional costs that have come in on top of that. It's come up very close to $360,000. All of the assets, the shares and everything that were sold have all been put into the same account to make it appear that I'm prepared to give every asset that was available to me from the Durras Lakes property to my brother.

Q. And that is your case today?

A. Yes.

Q. So you're saying not only the net proceeds of the Durras Lakes property, but also your other assets, which would be about another 7 or 8 thousand in cash?

A. Could you just confirm that those two bank statements add up to that amount, please.

Q. Well, your fairly recent affidavit of February the 21st or the 8th states that there was $6,881.97 in your father's bank account.

A. Yes.

…

HIS HONOUR: All right. So there's $358,446. And as I understand Mr Meres's evidence, he's prepared to give that sum in its entirety to the defendant on the basis that he would retain the defendant's interest in the Bestic Street property.

…

Q. Mr Meres, in fact the whole story about needing or wanting to stay in Bestic Street, I put it to you, is nothing more than an attempt by you to make it appear to the Court that the provision made for you by your mother is inadequate when in fact it is obviously, together with what you received from your father's estate, his whole estate, quite obviously adequate and proper for you.

A. Sir, you are presuming that - that I'm in it for monetary gain, and I'm not. The only thing that's on my mind is that I would dearly love to stay in that property in Bestic Street. That's it.”

72. Following the series of questions and answers set out, I endeavoured to clarify the position (at T39.35 – T40.50):

“Q. …Now, as I understood your evidence so far as Mr Liebhold's questions to you, was that to the extent that there's $358,000, being effectively the proceeds of the property you inherited from your father, you'd be prepared to give all of that to your brother effectively to purchase his interest in the Rockdale property?

A. Yes ...

Q. Have I understood that correctly?

A. Yes ...

Q. Thank you. And … you also said that you'd be prepared to sell the Porsche if that was necessary?

A. Yes.

Q. Could you help me then by telling me how would you be able, in that circumstance of having sold your Porsche, having effectively been prepared to give your brother all of the cash that you have available, how would you be able to pay your own legal costs of these proceedings?

A. Something I haven't considered, to be honest with you ...

Q. And similarly, to the extent that costs have been incurred by the defendant in defending the proceedings because you're the executor of the estate

A. Yes ...

Q. How would his costs be paid, in the scenario that you've advanced?

A. Yes. I can't answer it ...

Q. That's the difficulty of the case, is it not, Mr Meres?

A. Yes.

Q. That really, taking into account effectively - I think it's something in the order of $118,500, which is the sum of the two costs estimates -

A. Yes.

Q. $358,000 effectively becomes $240,000, and that would be if all of those costs were paid, that would be all that would be left.

A. Yes.

…

Q. And what I'd like to know in those circumstances, realistically, is it possible to keep the Rockdale property?

A. I would do everything in my power to, your Worship.

Q. But you couldn't raise any more money. You've said you went to see the bank.

A. Yes.

Q. They said no.

A. Yes.

Q. There's just no way of raising any additional money, is there?

A. No, your Worship. Even if I sold the Porsche, your Worship, I don't know how much I could achieve on that. You know, I would like to think that Mr Liebhold has been sprouting the prices, $200,000 or whatever, or $68,000. I'd ideally like to achieve that price, then I could.

Q. Don't worry about that. On your estimate, there isn't even enough in the proceeds of sale of the Porsche to pay your legal expenses.

A. Yes.”

73. (The reference to approaching the Bank relates to evidence given by the Plaintiff that he had approached the Commonwealth Bank at Rockdale to see if he could borrow “a couple of hundred thousand dollars”. The Bank had refused to provide a loan.)

74. The Defendant submitted that the fact that the Plaintiff has lived in the Rockdale property for so long is relevant, but to establish the provision made for the Plaintiff by the deceased during her lifetime, in providing him with free accommodation for almost all of his adult life. In addition, he has enjoyed sole use of the Rockdale property since the death of the deceased.

75. The issue of rent for his occupation was raised in a letter dated 2 September 2016 from the Defendant’s solicitors to the Plaintiff’s solicitors. The latter responded, by letter dated 8 September 2016, stating “Our client does not have the means to pay $650 per week rent and accordingly will not be doing so. Rent can obviously be adjusted notionally.”

76. The Defendant submitted that by November 2016, the Plaintiff had enjoyed 77 weeks of rent-free accommodation in the Rockdale property since the death of the deceased. He provided some evidence (based on correspondence from a number of different real estate agents in the area, none of which was based on an inspection of the Rockdale property) that the rental value that could have been obtained (in about August 2016) was between $550 and $650 per week. The total value of the benefit obtained by the Plaintiff was estimated to have been about $50,000, calculated at the rate of $650 per week. It is about $42,350 if calculated at the rate of $550 per week. (In fact, the benefit to the Plaintiff would be half of any rent paid to the estate because of the terms of the deceased’s Will.)

77. Of course, whatever is the correct estimate for the rent that would have been payable, it is clear that the Plaintiff has enjoyed a significant benefit by way of rent free accommodation since the death of the deceased. By the date of hearing, the Plaintiff had enjoyed another 13 weeks of rent free accommodation.

78. The Plaintiff is not cohabiting with another person.

79. The Plaintiff did not give any evidence of the costs of alternative accommodation in the Rockdale area, or otherwise. However, shortly before the hearing, the Defendant’s solicitor, Mr J Kelly, swore an affidavit to which was annexed “a number of recent notices of properties for sale within the Rockdale area, together with letters from three real estate agents providing estimates of the likely sale prices of three house properties”.

80. The covering letter dated 20 February 2017, addressed to the Plaintiff’s solicitors from the Defendant’s solicitors, summarised the position as follows:

“Please find enclosed, by way of service, a copy of [9 identified properties] within the St George area from $550,000 to $749,000.”

81. Mr Kelly was not cross-examined.

82. I have used this evidence simply to provide a guide as to what alternative accommodation might cost in the Rockdale area. (I also take into account that there would be stamp duty, legal costs of sale, and moving expenses.) It is clear that Mr Kelly’s evidence was used to extract the concessions from the Plaintiff regarding the availability of alternative accommodation.

The Defendant’s Financial and Material Circumstances

83. I have earlier noted that the Defendant has chosen not to disclose his financial and material circumstances. He put on no evidence that he was in financial need, or that he would be significantly prejudiced if provision were made in favour of the Plaintiff. The evidence that was read revealed that he had managed his life for many years without any benefit, or expectation of benefit, from the deceased.

84. The Defendant is married and has two children.

85. Of course, the Defendant is entitled to elect to remain silent about his financial resources and needs, and simply look to the Court to not disregard the deceased’s freedom of testamentary disposition and the deceased’s disposition to him as a part devisee, regardless of his financial position or needs.

86. On this topic, in Sammut v Kleemann [2012] NSWSC 1030, at [137] – [140], recently repeated in Jodell v Woods [2017] NSWSC 143, I wrote:

“The question, then, is what flows from a beneficiary's silence? The answer is, in those circumstances, that the court is entitled to infer that the beneficiary has adequate resources upon which to live and that he, or she, does not wish to advance a competing financial claim upon the bounty of the deceased…

However, the claims of a beneficiary, as the chosen object of the deceased's testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, and also as a person whose interest in the estate may bear the burden of the order made in favour of the applicant, are to be borne in mind. (It is to be remembered that the Court must specify, amongst other things, the manner in which the provision is to be provided and the part, or parts, of the estate out of which it is to be provided: s 65(1)(c) of the Act.)

Where there is no evidence from the beneficiary, it is those claims (i.e. as the chosen object of the deceased's testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, or as a person whose interest in the estate may bear the burden of the order made in favour of the applicant), rather than any financial claim upon the bounty of the deceased, that should be considered. Put another way, and using the oft-quoted words of Salmond J in Re Allen (deceased); Allen v Manchester [1922] NZLR 218, at 220, the Court is not able to have regard to "the means" of the beneficiary, but the Court may still consider "the deserts of the several claimants" and the "relative urgency" of the various moral claims upon [the deceased's] bounty".

The Court will, thereby, give due regard to "what the testator regarded as superior claims or preferable dispositions" as demonstrated by his, or her, will: Pontifical Society for the Propagation of the Faith v Scales at 19, per Dixon CJ. In this way, too, the Court gives weight to the principle of freedom of testation referred to earlier.”

87. Also see, Anderson v Teboneras [1990] VR 527; [1990] VicRp 47 at 535, per Ormiston J; Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285, at [94]; Poletti v Jones, at [23] (Basten JA).

The Statutory Scheme

88. Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. The Act stipulates no automatic entitlement to provision and the deceased’s Will applies unless a specific application is made to, and acceded to, by the Court.

89. As the Plaintiff’s eligibility to make an application and the commencement of the proceedings within time is each not in issue, the only questions for the Court to determine are whether the Plaintiff has been left with inadequate provision for his proper maintenance, education and advancement in life and, if so, what, if any, further provision ought to be made out of the estate of the deceased for those purposes. It is this mandatory legislative imperative that drives the ultimate result, and it is only if the Court is satisfied of the inadequacy of provision that consideration is given to whether to make a family provision order (s 59(2)). Only then may “the Court… make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made”.

90. The parties were largely agreed as to the principles to be applied on this topic. I have dealt with them in many cases. For the benefit of the parties, I shall repeat some of what I have written elsewhere.

91. Whether the disposition of the deceased’s estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the Plaintiff 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: Hunter v Hunter (1987) 8 NSWLR 573 at 575 (Kirby P).

92. "Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 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".

93. Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement":

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

94. Although discussed in the context of legislation in the United Kingdom that has a few similarities, (and omitting parts of the reasons that, clearly, would not apply to the Act) in Ilott v The Blue Cross & Ors [2017] UKSC 17, at [14] – [15], the following passage in the judgment of Lord Hughes: (with whom Lord Neuberger, Lady Hale, Lord Kerr, Lord Clarke, Lord Wilson and Lord Sumption agreed) appears:

“The concept of maintenance is no doubt broad… It must import provision to meet the everyday expenses of living…

The level at which maintenance may be provided for is clearly flexible and falls to be assessed on the facts of each case. It is not limited to subsistence level. Nor, although maintenance is by definition the provision of income rather than capital, need it necessarily be provided for by way of periodical payments, for example under a trust. It will very often be more appropriate, as well as cheaper and more convenient for other beneficiaries and for executors, if income is provided by way of a lump sum from which both income and capital can be drawn over the years… Lump sum orders are expressly provided for... There may be other cases appropriate for lump sums; the provision of a vehicle to enable the claimant to get to work might be one example and, as will be seen, the present case affords another. As Browne-Wilkinson J envisaged (obiter) in In re Dennis … there is no reason why the provision of housing should not be maintenance in some cases…”

95. Although the existence, or absence, of “needs” which the applicant 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, education and advancement in life: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 227 (Gaudron J). Compare Gorton v Parks (1989) 17 NSWLR 6-11 (Bryson J); Collicoat v McMillan [1999] 3 VR 803, at 816 [38], 820 [47] (Ormiston J).

96. “Need”, of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45] (Dodds-Streeton J). It is different from “want” and does not simply mean “demand” or “desire”. The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 at [54]:

“‘Need’ is a more flexible word than it might first appear. ‘In need of’ plainly means more than merely ‘want’, but it falls far short of ‘cannot survive without’.”

97. In Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235, Buss JA wrote, at [81]:

"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.”

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

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

99. As Callinan and Heydon JJ emphasised in Vigolo v Bostin at [122], the question of the adequacy of the provision made by the deceased “is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably”. The inquiry is not confined only to the material circumstances of the applicant. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined.

100. 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) per Buss JA, at [72], [77]. What is adequate must be relative, not only to the applicant’s needs, but also to his, or her, own capacity and resources for meeting them: Pontifical Society for the Propagation of Faith v Scales (1962) 107 CLR 9, at 19.

101. The words “adequate” and “proper” 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."

102. Dixon CJ and Williams J, in McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that:

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

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

104. Section 60 of the Act provides:

“(1)The court may have regard to the matters set out in subsection

(2) For the purpose of determining:

(a) whether the person in whose favour the order is sought to be made (the ‘applicant’) is an eligible person, and

(b) whether to make a family provision order and the nature of any such order.

(2) The following matters may be considered by the court:

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

(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,

(c) the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,

(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,

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

(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,

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

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

(i) any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,

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

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

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

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

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

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

(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.”

105. It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [37], as “a multifactorial list”, and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380, at [123], as “a valuable prompt” to which the Court may have regard, together with “any other matter the court considers relevant”, for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order. It has been suggested that the expanded list of criteria provides a “more focused direction to the court”: Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4, at [51] (Beazley P, Meagher JA agreeing).

106. In Chapple v Wilcox [2014] NSWCA 392; 87 NSWLR 646 at [7], Basten JA wrote:

“Section 60 of the Succession Act spells out the matters which the Court may have regard to in determining whether the claimant ‘is an eligible person’ and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the ‘nature of any such order’, which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b).”

107. The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of such of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.

108. The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.

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

110. Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on “the discretionary question”, namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased’s death, or subsequently.

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

"'financial resources' ... includes:

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

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

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

162. Of course, the Plaintiff may not be required to spend about $749,000 on accommodation. Indeed, he accepted that “$550,000 is enough money in which to purchase a property in Rockdale” (T 30.37 – T30.39). However, I have taken the highest estimate of the cost of purchasing alternative accommodation because he added (at T 30.40 – T30.48):

“for that sort of money, I would have to consider living in a unit, and I just that is something that is just too much for me to accept. I have maintained the gardens. I am an avid gardener. I have so many plants down there, it's the reason why I am seeking to live in that property is because that garden represents survival for me. During the time that I was looking after my mother when she was seriously ill, and when I was going through my own illnesses, that garden was the only thing that represented anything to me for my spiritual and mental well being.”

173. The Plaintiff does not have responsibility for anyone else. There is no evidence that a sum in the amount remaining available to him, when taken with the income that he currently receives by way of the pension, and any additional income he received by way of interest on the capital sum is not adequate to provide for his continued needs as he gets older.

174. Consistent with prevailing community standards, having considered, amongst other things, the Plaintiff’s financial and material resources, his lack of earning capacity, his close and loving relationship with the deceased, and the medical conditions from which he suffers, taken with the fact that the Defendant has not asserted a competing financial claim upon the bounty of the deceased, I am not satisfied, for the purposes of s 59(1)(c) of the Act, that at the time when I am considering the application, adequate provision for the proper maintenance or advancement in life of the Plaintiff has not been made by the Will of the deceased. It follows the Plaintiff’s case must be dismissed.

175. Of course, in the above calculations, the costs of these proceedings have not been deducted from the value of the deceased’s estate. It seems to me, in the circumstances of this case, that is the way the Plaintiff’s case must be determined, since no costs order has yet been made and there is the possibility of a special costs order being made based upon the service of an Offer of Compromise or a Calderbank offer. The issue of costs will have to be determined, so it seems to me, taking contextual circumstances of the litigation and the conduct of the parties into account. To do otherwise, might suggest a predetermination of how the costs of the proceedings are to be borne.

176. In case I am wrong in concluding that adequate provision for the proper maintenance, or advancement in life has not been made for him by the Will of the deceased, as a matter of discretion I would not make an order for provision in favour of the Plaintiff. Whilst I accept that the Plaintiff’s relationship with the deceased was far closer than that between the deceased and the Defendant, that does not create an entitlement to receive a greater portion of the estate by way of a reward for the Plaintiff’s conduct.

177. As was submitted by counsel for the Defendant, it is important to remember:

“Where (a) the provision made by the testator for an applicant falls within a range within which views may legitimately differ and (b) the circumstances have not materially changed between the time of making the will and the court’s considering the position, “a court should not substitute its judgment for that of the testator to determine that the provision made was inadequate”: Friend v Brien [2014] NSWSC 613 at [63] per White J.

178. The deceased made her last Will just over 6 months before her death. There is nothing to suggest that at the time, the financial and material circumstances of the Plaintiff were different from his present financial and material circumstances. He was then, as now, not working; he was then, as now, living in the Rockdale property; whilst then, he may have been receiving a carer’s pension, in addition to the pension that he was receiving, that was because he was providing the deceased and/or his father with care and assistance. It is true that he had not suffered the motor vehicle accident that he suffered in June 2015, but, as earlier stated, he has made a claim for compensation for the injuries he sustained in that accident.

179. There is no evidence to suggest that when the deceased made her Will, one half of the value of the Rockdale property would not have provided sufficient funds to enable the Plaintiff to purchase alternative accommodation.

180. But there was one significant difference between when the deceased made her last Will and the date of hearing. At the time the deceased made her last Will, the parties’ father was still alive. Even if the deceased knew the contents of his Will, she did not know that the Plaintiff would come to have available an amount of $358,000 to add to the provision made for him by her Will. That he did so, at the date of hearing, is a relevant consideration.

181. I accept that the deceased, in her Will, provided the Plaintiff with a legacy of $20,000 and the residue of the estate. But it must have been clear to her, that she would have had less than that sum available on bank deposit, and some shares, the total value of which would not provide enough for the legacy to be paid, after her debts, funeral and testmanetary expenses were paid. In addition to all of the matters referred to above, it cannot be forgotten that the Plaintiff has had rent free accommodation in the Rockdale property since the death of the deceased in July 2015.

182. Taking all of the matters into account, as a matter of discretion, I would not substitute my judgment for that of the deceased, particularly when the calculations of what would be available to the Plaintiff, when one considers his own assets, resulting in the need for accommodation on sale of the Rockdale property, and a lump sum for exigencies of life, are able to be satisfied. As stated, the Plaintiff would have an unencumbered home (with a value of upto $749,000) and about $163,000 (or more if less is spent on the accommodation) to provide for exigencies of life, and until spent, a modest income to supplement his pension.

183. I have tested my conclusions another way. Had no provision at all been made in the Will of the deceased for the Plaintiff, bearing in mind all of the circumstances of the case, would he have been likely to receive provision out of the estate greater than that left for him in the deceased’s Will (excluding the legacy of $20,000 and the residue)? In my view, the answer to this question is in the negative.

184. I cannot but help to remember what was said by Dixon CJ in Pontifical Society for the Propagation of the Faith v Scales, at 19:

"All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court."

185. Whilst the Court readily appreciates that the Plaintiff may feel hurt and upset that the deceased has chosen to provide one half of the Rockdale property for the Defendant, in the circumstances of this case, an order for further provision cannot be made. The legislation does not justify orders to remedy perceived unfairness or hurt feelings.

186. At this time, it is not possible to anticipate the economic consequences for the parties of the dismissal of the proceedings, other than to note that the amount of the distributable estate may be diminished as a result of the costs orders that will be made. However, it seems to me that the possibility of that occurring is a risk that the Plaintiff was prepared to take. His desired outcome was to receive the Rockdale property. As he stated, at T 29.30, “…it is not about the money. It is about the investment I have done into the property, and the feeling I have that is my home. You know, like it's not about the money…”.

187. The case is very different one in which an adult child has been excluded completely from a parent’s will. Here, the Plaintiff received a substantial benefit, that as a result of his own conduct may be reduced.

188. The order of the Court is that the Plaintiff’s Summons be dismissed.

189. In view of the request of the parties that the question of costs of the proceedings be determined following these reasons being published, I order that any argument as to costs of the proceedings and how those costs are to be borne, be listed on a date to be arranged when these reasons are published.

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Decision last updated: 28 March 2017