Nashaty v NSW Trustee and Guardian - [2012] NSWSC 1063

Supreme Court

New South Wales

Medium Neutral Citation: Nashaty v NSW Trustee & Guardian [2012] NSWSC 1063
Hearing dates: 3 September 2012
Decision date: 11 September 2012
Jurisdiction: Equity Division
Before: Hallen AsJ
Decision:
(a) The Plaintiff's Summons is dismissed.
(b) The Plaintiff should pay the Defendant's costs of the proceedings as assessed or agreed, such costs to be calculated on the ordinary basis; to the extent that there is a difference between the costs recovered from the Plaintiff, and the Defendant's costs calculated on the indemnity basis, they should be paid out of the estate of the deceased.
(c) The Exhibits should be returned.

Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiff, a son of the deceased, seeks family provision order - very small estate - competing claimant - widow of the deceased of short marriage - Jurisdiction - need for cogent evidence of Plaintiff's financial circumstances before jurisdiction is established - Failure to disclose complete financial and material circumstances - Summons dismissed
Legislation Cited: Evidence Act 1995
Family Provision Act 1982
Probate and Administration Act 1898
Property (Relationships) Act 1984
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Allardice v Allardice, In re Allardice, (1910) 29 NZLR 959
Andrew v Andrew [2011] NSWSC 115
Auckland City Mission v Brown [2002] 2 NZLR 651
Bartlett v Coomber [2008] NSWCA 100
Blore v Lang (1960) 104 CLR 124
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Buckland Deceased, Re [1966] VR 404
Butcher v Craig [2009] WASC 164
Cairns v Cairns [2006] NSWSC 364
Christie v Manera [2006] WASC 287
Collings v Vakas [2006] NSWSC 393
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Crossman v Riedel [2004] ACTSC 127
Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Edgar v Public Trustee for the Northern Territory [2011] NTSC 5
Foley v Ellis [2008] NSWCA 288
Ford v Simes [2009] NSWCA 351
Foye v Foye [2008] NSWSC 1305
Gardiner v Gardiner (NSWSC, 28 May 1998, unreported)
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Hampson v Hampson [2010] NSWCA 359
Harris, In Re (1936) 5 SASR 497
Hawkins v Prestage (1989) 1 WAR 37
Hill v Buckley [2008] NSWSC 1374
Hughes v National Trustees Executors and Agency Co. of Australasia Ltd (1979) 143 CLR 134
Hunter v Hunter (1987) 8 NSWLR 573
Hyland v Burbidge [2000] NSWSC 12
Kay v Archbold [2008] NSWSC 254
Keep v Bourke [2012] NSWCA 64
Kembrey v Cuskelly [2008] NSWSC 262
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Lathwell v Lathwell [2008] WASCA 256
McCosker v McCosker (1957) 97 CLR 566
McGrath v Eves [2005] NSWSC 1006
MacGregor v MacGregor [2003] WASC 169
Magill v Magill [2006] HCA 51; (2006) 226 CLR 551
Marks v Marks [2003] WASCA 297
Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47
Mayfield v Lloyd-Williams [2004] NSWSC 419
Mikan v Velcic (No 2) [2011] NSWSC 505
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170
Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Puckridge, Deceased, In the Estate of (1978) 20 SASR 72
Savic v Kim [2010] NSWSC 1401
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stiles v Joseph (NSWSC, 16 December 1996, unreported)
Stott v Cook (1960) 33 ALJR 447
Taylor v Farrugia [2009] NSWSC 801
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (NSWSC, Young J, 17 May 1996, unreported)
Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123
Worladge v Doddridge (1957) 97 CLR 1
Worsley v Solomon [2008] NSWSC 444
Zuckerman v Public Trustee, In re Green, deceased [1951] NZLR 135
Category: Principal judgment
Parties: Frank Nashaty (Plaintiff)
NSW Trustee & Guardian (Defendant)
Representation: Mr J Drummond (Plaintiff)
Mr G A Rich (Defendant)
Scully Legal (Plaintiff)
Avoca Beach Law (Defendant)

File Number(s): 2011/377558

Judgment

The Application

HIS HONOUR: These reasons relate to proceedings, in which a claim for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act") is made by Frank Nashaty. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is one made by the court, under Chapter 3 of the Act, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person.

An order was sought in the Summons seeking a declaration of trust, or in the alternative, an equitable charge, over real estate owned solely by the deceased at Condell Park ("the Condell Park property"), but that relief was not pursued. The Plaintiff's solicitors gave notice of the intention not to pursue that relief to the Defendant and to the Court several weeks prior to the hearing.

The deceased person whose estate is the subject of the claim for the family provision order, is John Marie Nachaty ("the deceased"). (There is a difference in the spelling of the family name of the deceased and of the Plaintiff. The Plaintiff gave evidence that he had changed the spelling of his family name by Deed Poll, for professional reasons, as previously it was found to be difficult to pronounce.)

The Plaintiff commenced the proceedings by Summons filed on 25 November 2011. It was filed within the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased).

The Defendant named in the Summons is the NSW Trustee & Guardian, the executor named in the Will of the deceased.

There is no notional estate the subject of the Plaintiff's claim.

For convenience and without intending undue familiarity or disrespect, I shall refer to family members, other than the parties, after introduction, by her, or his, first name.

Formal Matters and Background Facts

The following facts are uncontroversial and provide a useful background.

The deceased died on 27 November 2010. He was then aged 87 years, having been born, in Egypt, in May 1923.

The Plaintiff is the child of the marriage of the deceased and Pauline Brocktoff. The deceased and Pauline were married in 1946. She predeceased the deceased having died in June 2002. At the date of her death, they had been married for about 56 years.

There were two other children of the marriage of the deceased and Pauline, being Nadia, who was born in March 1953, and Lila, who was born in May 1955, and who died in March 2006.

The deceased met Claire Sidhom, in about May 2006. They commenced to live in a de facto relationship in about June 2006. They were married in August 2006 and remained married at the date of his death. There were no children of their union.

Claire was born, also in Egypt, in December 1933. She came to Australia in about 1966 with her husband and six children. Her husband predeceased her, having died in September 1995.

At the date of their marriage, the deceased was 83 years of age and Claire was 73 years of age.

The deceased left a Will that he made on 12 December 2007, Probate of which was granted, on 21 March 2011, by this Court, to the Defendant.

The deceased's Will, relevantly, provided for the whole of his real and personal estate to pass to Claire, for her sole use and benefit absolutely, provided she survived him by one calendar month. In the event that she did not, three-fifths of the estate was to be divided and distributed equally between Claire's five named children, and two-fifths to the Salvation Army (NSW) Property Trust. No provision was made in the Will of the deceased for the Plaintiff and he was not otherwise referred to in it.

In the Inventory of Property, a copy of which 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, gross value of $568,269. The property referred to, owned solely by the deceased, was the Condell Park property ($565,000) and money in bank ($3,269). An additional amount of $115 (being a Centrelink pension payment) was later disclosed as forming part of the estate. (I have omitted, and shall continue to omit, any reference to cents in amounts referred to.)

No liabilities were disclosed in the Inventory of Property, although the Defendant, by its branch manager, in an affidavit affirmed on 22 February 2012, gave evidence that there were liabilities at the date of death, being a debt secured by mortgage on the Condell Park property ($278,922), funeral expenses ($7,285) and outstanding rates ($340).

In an affidavit affirmed on 23 August 2012, a senior legal officer of the Defendant, David Mayo Webb, stated that the estate, now comprises only the Condell Park property ($565,000). The current liabilities of the estate include the mortgage debt (now $320,000), the funeral expenses ($7,285), trustee's commission on value of realty ($12,815), and the debit balance in the Defendant's estate account ($5,961).

In an affidavit affirmed on 30 August 2012, Mr Webb estimated the likely costs and disbursements of the sale of the Condell Park property to be $600 and the agent's commission on sale to be $14,830.

Therefore, the total of all estate liabilities and potential liabilities is $361,491. Mr Webb estimates that the net value of the estate, at the date of hearing, is $203,509. (It appears that the Condell Park property may have to be sold, if for no other reason than to pay off the mortgage debt. Claire does not accept that this is so and in submissions, counsel for the Defendant submitted that she might be able to retain that property, particularly if she was able to pay off the mortgage utilising the proceeds of sale of a property at Kincumber which she owns.)

The parties agreed that, at the date of hearing, the estimated value of the estate, without deducting the costs of the proceedings, should be taken to be $203,509.

None of the estate of the deceased has been distributed.

In calculating the value of the estate finally available for distribution, the costs of the present proceedings should also be considered, since the Plaintiff, if successful, normally will be entitled to an order that his costs, calculated on the ordinary basis, be paid out of that estate, whilst the Defendant, irrespective of the outcome of the proceedings, normally will be entitled to an order that its costs, calculated on the indemnity basis, be paid out of that estate.

The Plaintiff's legal costs and disbursements are estimated to be $20,755, if calculated on the ordinary basis, and $27,372, if calculated on the indemnity basis. The estimate, in each case, is inclusive of GST and is based on a one-day hearing.

The Defendant's costs and disbursements are estimated to be $31,923, if calculated on the indemnity basis. The estimate is inclusive of GST and is based on a one-day hearing.

It can be seen, therefore, that the estimated value of the net distributable estate, after the payment of the Plaintiff's estimated costs calculated on the ordinary basis and the balance of the Defendant's estimated costs calculated on the indemnity basis ($52,678 in total), is in the order of $150,831.

Of course, depending upon the result of the Plaintiff's claim and any order made as to costs, the costs and disbursements, if payable out of the estate will be able to be formally assessed, unless otherwise agreed by the parties.

At the hearing, the parties agreed that since the death of the deceased, part of the Condell Park property has been rented. The net amount (after deduction of real estate agent's commission) that Claire has received between 25 May 2011 and the date of hearing is $13,894. She gave evidence that she has paid some expenses on the Condell Park property, including some electricity expenses for the granny flat, some part of the water rates, and the insurance. She has also paid for the garden to be regularly maintained.

The precise amount of what Claire has paid, in total, was not the subject of evidence. It appears to be less than the amount of rent that she has received.

The persons described as eligible persons, within the meaning of the Act, are the Plaintiff, Claire and Nadia. None of Claire's children has been identified as a person who is, or who may be, eligible. This is not surprising as there is no evidence that any of them was a member of the household of which the deceased was a member, or that she, or he, was wholly, or partly, dependent upon the deceased at any particular time. In the events that have happened, none of Claire's children is a beneficiary.

There is evidence of service of the prescribed notice on Claire and Nadia.

Only the Plaintiff has commenced proceedings. Claire has sworn two affidavits in which she has given evidence about her financial and material circumstances, and a case has been advanced that she is a competing claimant, financially, and otherwise, upon the bounty of the deceased. Even though she has not made a claim, the Court is not entitled to disregard her interests, as she is a beneficiary of the deceased's estate.

Nadia has given no evidence in the proceedings. Since she has been served with the prescribed notice, I may disregard her interests as a person by, or in respect of whom, an application for a family provision order may be made.

Additional Background Facts

The following facts are also not the subject of any dispute between the parties.

In 1969, the deceased purchased a vacant block of land at Georges Hall. Thereafter, he constructed a home on that land.

In 1990, the deceased sold the Georges Hall property and purchased the Condell Park property. Claire, of course, made no financial, or other, contribution, to the acquisition of the Condell Park property.

In September 2006, the deceased entered into a mortgage securing a debt of $200,000, which mortgage was registered on the title to the Condell Park property. The amount of the loan was increased by $20,000 subsequently. There was no evidence from Claire, in her affidavits, on how the moneys borrowed were spent. However, when cross-examined, she gave evidence that some of the money borrowed was spent on cars that the deceased purchased for her and for himself; that some was spent on a trip, travelling first class, to Egypt by the deceased and her; some was spent on repairing and maintaining the Condell Park property; and the balance was spent on living expenses. (At the date of his death, there was a small amount left in the bank account, in the deceased's name, into which the money borrowed had been placed.)

Several days after the deceased made his Will, he also executed a handwritten Statutory Declaration, which was contained in an envelope on which had been written "Will of John Nachaty (Sealed envelope to be opened only when his children contest Will)".

The Statutory Declaration was in the following terms:

"John Nachaty do solemnly & sincerely declare that I am of sound mind and in full control of my faculties.

As such, I have knowingly and intentionally changed my Last Will & Testament to exclude my children Frank Nachaty & my daughter Nadia Taylor.

I would like my home at ... Condell Park and the furniture to go to my wife Claire Sidhom and if she should pass away before me, it should be evenly divided amongst her children: Mamdooh Sidhom, George Sidhom, Mariam Jhia, Margo Morris & Maggie White.

I have intentionally excluded my children from benefiting in any way from my estate because of the way they have treated me in the past twelve months. They have been very aggressive and rude to my wife and in one instance she was physically assaulted.

S [sic] has had to contend with frequent abusive and threatening phone calls, to the extend [sic] that we had to apply For A.V.O. to Police Bankstown. On many occasions my children have tried to coerce me into signing my home over to them. They have humiliated me and tried to undermine me by accusing me of not being mentally competend [sic]. This was their last attempt of getting me to sign home over to them before [I] pass away."

(In making reference to the Statutory Declaration as not the subject of dispute, I am simply referring to the fact that it was in the handwriting of the deceased and signed by him. I do not intend to suggest that the Plaintiff admitted all of the facts asserted in the Statutory Declaration that relates to the conduct of the deceased's children.)

In August 2006, there were certain events involving Nadia, her husband Alf Taylor, the deceased and Claire, that led her to seek an apprehended violence order against Alf, and another, later, against Nadia. (Ultimately, she did not proceed.) As Nadia has made no claim against the deceased's estate for a family provision order, and as Alf is not an eligible person, it is not necessary to do other than note the events as having occurred and refer to the Plaintiff's involvement. The conduct of Nadia and Alf, at least so far as it relates to Claire, is not relevant to any issues to be decided in the case of the Plaintiff.

There is a reference to the Plaintiff in the factual circumstances that founded the application against Alf. I shall return to this aspect as it was the subject of dispute between the Plaintiff and Claire.

The deceased and Claire signed a Deed of Financial Agreement on 7 September 2006 ("the Deed"). The recitals in the Deed included:

"...

G.Claire has assets and resources in her own name.

H.John has assets and resources in his own name.

I.It is the desire of each party by this Agreement to finalise once and for all any and all claims that they may have against the other with regard to division of property and financial resources and spousal maintenance.

J.In reaching the decision to enter into this Agreement each party has, so far as is possible, considered any foreseeable changes in their health and future needs.

K.The parties intend this Agreement to resolve all financial matters between them in the event that their relationship is terminated for any reason including death within the first year of the marriage. After that period the parties agree to be bound by its terms unless an alternative agreement is entered into pursuant to the Family Law Act 1975 as amended.

...

O.The parties accept that for the purpose of sec 31 of the Family Provision Act 1982 the provisions of this Agreement including the release referred to below are fair and reasonable."

The Deed also included the following covenants:

"...

9.At any time after the approval of this Agreement either John or Claire or his or her personal representative may request the other party or his or her legal personal representative to join in an application to the Supreme Court for the approval of this agreement to relinquish all claims under the Family Provision Act 1982 pursuant to section 31 of that Act. If such a request is made the other covenants to comply with such request and do all things necessary to obtain the approval of the Supreme Court of New South Wales or such other court exercising competent jurisdiction. Each of John and Claire shall bear his or her own of any such application.

10.Each of John and Claire acknowledge and agree that:

10.1Each of them has had independent legal advice from a legal practitioner before executing this Agreement as to the effect of this Agreement on their rights pursuant to the Act;

10.2Each of them have considered the advantages and disadvantages of entering into the provisions of this Agreement."

The parties agreed that since the approval of the release in the Deed has not been sought, or granted, it is of no effect: s 95(1) of the Act. However, they also agreed that the Deed is relevant to, and depicts, the intentions of the deceased and Claire at the time it was entered into.

The Issue of Forgery

An issue that has arisen in the present case, at least on the affidavits, is one relating to alleged conduct of the Plaintiff.

In May 2007, in a document, which was headed "NSW Police Fraud Report Form", the deceased made a complaint to the NSW Police Force in which he alleged:

"Summary of Allegation:

...

I went to the Commonwealth Bank to borrow money against my home they done research they find the form that I borrow money in 1994 $255,000. I think my son done it and he signe [sic] my sygnature [sic] & his mother. I never borrow any money from National bank. I want to know how the bank give him this money."

In that document, which was signed by him, the deceased acknowledged that no civil litigation had been commenced against the Plaintiff and that he did not intend to "instigate" such civil litigation in the future. He also acknowledged that he had not "confronted the alleged offender".

In support of the complaint, a copy of a mortgage dated 8 December 1994, in the names of the deceased and Pauline, referring to what is agreed was the Condell Park property, was given to the Police (and forms part of the evidence in this case). The stamp duty on the mortgage appears to have been calculated on the amount of $255,000, which I infer, was the amount borrowed.

The copy of the mortgage appears to bear the copy signatures of both the deceased and Pauline.

The Plaintiff did not object to the copy documents that were annexed to one of Claire's affidavits. He denied that he had forged the deceased's and Pauline's signature on the original mortgage. He gave evidence that, in 1994, his "parents assisted me in setting up a business known as Raine & Horne Bankstown and they provided the Deeds to the property as security to enable me to obtain a loan from the National Australia Bank... for this purpose". He also said that his "parents made no payments under the loan and I repaid the loan in full to the Bank within approximately 2 to 3 years of the loan being taken out".

The Plaintiff was not cross-examined on this evidence.

The Defendant, of course, is unable to say whether the Plaintiff did, in fact, forge the signature of each of his parents on the original mortgage.

The copy documents to which I have referred form part of Claire's evidence, but she, also, is unable to say, from her own knowledge, whether the Plaintiff forged the signatures. In her affidavit, she has simply repeated what she was told by the deceased and has provided evidence of the documents said to be supporting what she was told.

Neither party retained an expert to attempt to establish the truth or falsity of the assertion that the signatures on the mortgage had been forged.

Interestingly, no evidence was given by the Plaintiff, in his first affidavit, about the indirect assistance provided by his parents to enable him to set up the business of the Raine & Horne franchise, although he gave evidence of having conducted that franchise business. To the contrary, he maintained in his first affidavit: "I have not received any ... benefits from the deceased".

It follows that what I am faced with is the deceased's assertion, made to the Police and to Claire, a copy of the documents that were relied upon by the deceased, and the Plaintiff's denial of that assertion.

Notably, the deceased did not make any such allegation in the Statutory Declaration, which I note, was made after the complaint to the Police.

Section 100 of the Act, in sub-s (2), provides that in any proceedings under Chapter 3, evidence of a statement made by a deceased person, subject to the section, is admissible as evidence of any fact stated in it of which direct oral evidence by the deceased person would, if the person were able to give that evidence, be admissible. Sub-section (5) provides that where a statement made by a deceased person during the person's lifetime was contained in a document, the statement may be proved by the production of the document or, whether or not the document is still in existence, by leave of the Court, by the production of a copy of the document, or of the material part of the document, authenticated in such manner as the Court may approve. Sub-section (9) provides that subject to subsection (11) (which is not relevant to the present facts), where evidence of a statement of a deceased person is admitted under this section, evidence is admissible for the purpose of destroying, or supporting, the credibility of the deceased person.

Allegations of this kind are often difficult to test whenever made and, particularly when the party making the allegation is deceased. He is unable to be cross-examined and the version put forward by the party against whom the allegation is made cannot be put in order to determine the response.

In determining whether I should accept the deceased's allegation, I must remember s 140 of the Evidence Act 1995 which sets out the standard of proof to be applied, together with a non-exhaustive list of "matters" to be taken into account:

"(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence, and

(b) the nature of the subject-matter of the proceeding, and

(c) the gravity of the matters alleged."

I also bear in mind what was said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 by Mason CJ, Brennan, Deane and Gaudron JJ said at 170-171:

"The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." (citations omitted)

And at 172:

"When an issue falls for determination on the balance of probabilities and the determination depends on a choice between competing and mutually inconsistent allegations of fraudulent conduct, generalisations about the need for clear and cogent proof are likely to be at best unhelpful and at worst misleading. If such generalisations were to affect the proof required of the party bearing the onus of proving the issue, the issue would be determined not on the balance of probabilities but by an unbalanced standard. The most that can validly be said in such a case is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately, however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities."

I also remember what was pointed out by Emmett J in Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123:

"48... When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2)."

On balance, I am not satisfied that the very serious allegation made by the deceased against the Plaintiff is true.

Even if were wrong in reaching that conclusion, there is no suggestion that the money borrowed was not repaid, or that the deceased and Pauline suffered any loss as a result of the mortgage having been granted. The deceased appears to have accepted that someone had been making the repayments and there is no suggestion that all of the repayments were not made.

In the circumstances, although some time was spent on this issue, it is not a matter that bears on the ultimate result of the proceedings.

Issue regarding the Conduct of the Plaintiff towards Claire

Another matter that occupied some time in the affidavits, in the cross-examination and in the submissions, related to an allegation made by Claire in relation to events that occurred at the offices of solicitors in about August 2006. I have earlier referred to these events, so far as they concerned Nadia, and her husband Alf, and the application for an apprehended violence order that Claire sought at that time against Alf, and subsequently, against Nadia.

The circumstances of the complaint made against the Plaintiff contained the following paragraph of a document annexed to Claire's affidavit:

"...

On Monday the 21 August 2006 Alf and Nadia demanded that Claire attend the solicitor's office.

...

Claire was getting up to walk out again as she was frightened to stay there any longer. John's son Frank NACHATY [sic] came in and grabbed Claire by her right arm and squeezed tightly forcing her out the door of the office. At the time she had extreme fears for her safety and felt intimidated. Both Frank and Alf have threatened physical action against Claire stating. 'I will get you wait and see what happens.'"

In her oral evidence in chief, Claire gave a different version of the events, which was as follows:

"Q. And in relation to that meeting, why was that meeting called?

A. They want to have the house for my husband. His son wanted the house, to sign it. So they take him upstairs with the solicitor, George Chad, and we stayed with my son downstairs and take father out, upstairs to let him sign - he want the house for his father. The father refused to give him the house. And after one hour we'd been upstairs with my son and the only thing I said 'That's finished, we have to go' and Frank come from outside and hit me in front of everybody. Very bad.

...

Q. Did he say anything else to you?

A. Nothing - just to say that - he's coming from the door and take me and hit me - I was standing.

Q. Where did he grab you? Or where did he take you? Or where did he hold you?

A. On my shoulders --

HIS HONOUR: Well, she said he hit her. Why don't you ask the question

RICH

Q. Where did he hit you?

A. Mmm?

Q. Where did he hit you?

A. To my shoulders. He take me in my shoulders and hit me. You know, pushed me (indicating) very hard.

Q. And where was your husband at this stage?

A. He was sitting in the chair. John was sitting with my son and his daughter, Nadia, and her husband.

Q. Did your husband say anything?

A. Yes, he's very sad. Very upset. You know, very cranky, and he told me that we have to go to the police and report it. And we went."

In cross-examination, she said:

"Q. And I'm suggesting to you that at no stage did Mr Frank Nashaty ever take hold of your arm, squeeze it tightly or hit you.

A. He hit me."

The Plaintiff denied having touched Claire on that occasion, or at any other time. He also gave the following oral evidence, in chief, about the events that occurred in the office of the solicitors:

"Q. Look at an affidavit of Clare Sidhom sworn 9 March 2010 and I have opened the document up at what is annexure B to that affidavit which is a statement behind a complaint by Clare Sidhom for an apprehended violence order against Alf Taylor dated 24 August 2006. (Shown) You have seen that statement before?

A. Yes.

Q. I ask you to go to the second page of that statement and you will see a final paragraph commencing 'She felt some pain' Do you see that paragraph?

A. Yes.

Q. You will in the second sentence of that paragraph there is a statement that you came into the room, grabbed her by her right arm and squeezed it tightly forcing her out of the office, is that correct or incorrect?

A. No, it is incorrect.

Q. Were you present at this meeting?

A. Yes, I was.

Q. Can you tell us what you say, if anything, occurred in the course of that meeting?

A. I just wanted to talk to my dad privately and he stood up and I said 'Dad can I talk to you outside the room?' and I grabbed his arm, Ms Sidhom--

Q. You took your father's arm?

A. I asked him to come out with me, out of the room.

Q. Was he coming with you?

A. Yes, he wanted to come.

Q. What happened then?

A. Ms Sidhom stood up and said 'If you go out or sign any documents I will leave you.'

Q. Who was that said to?

A. To John, my late father.

Q. What did you observe about your father when that was said?

A. Dad started to cry.

Q. What happened then, did you leave the room with your father?

A. Yes. I said 'It will only take a few minutes' and he walked out with me.

Q. At any time in the course of that meeting did you take hold of Clare Sidhom's right arm?

A. Absolutely not.

Q. Did you at any stage of the meeting touch her or take hold of her at all?

A. Absolutely not.

Q. At any time in that meeting did you have any harsh words to Ms Sidhom?

A. No."

In cross-examination, he said:

"Q. I suggest to you at this meeting your father didn't want to go outside with you, you wanted to take your father out and have a talk to him?

A. Yes, I wanted to have a chat to him privately without anyone else with my sister, my sister and I wanted to have a talk to him.

Q. Your sister also wanted to have a talk to him at the same time?

A. Yes.

Q. Or just you?

A. Both of us wanted to have a chat to him.

Q. Are you saying Ms Sidhom didn't want him to go outside?

A. Ms Sidhom was afraid we were going to change his mind.

Q. You didn't want that to happen?

A. No.

Q. So when she said something I suggest to you you did in fact suggest that she didn't come outside, you didn't want her to go outside, did you?

A. No, I was mainly wanting to talk to my dad on his own. She objected to that.

Q. And I suggest when she objected you were unimpressed with her objecting, you didn't want her out there?

A. I didn't want to discuss anything with her. It is my dad I wanted to talk with.

Q. You did try and restrain--

A. I didn't touch Ms Sidhom.

Q. Did you raise your voice?

A. No.

Q. Did your sister raise her voice?

A. I don't recall.

Q. You would recall that if your sister had raised her voice in the meeting with the solicitor?

A. I don't recall."

It is difficult to determine where the truth lies between the two competing versions. Having observed both witnesses, my view is that it probably lies somewhere in between both of their versions. Emotions must have been running high on the day. The Plaintiff believed that the deceased was acting out of character in wanting to borrow a large sum of money without explaining the use to which it was to be put. The involvement of Claire, a newcomer to the family, no doubt, caused suspicion. Claire thought that his children were urging the deceased to transfer the Condell Park property to them and wished to talk him out of borrowing money that she believed he wanted to borrow.

The incident was extremely unfortunate, stressful, and difficult, for all concerned. No doubt, the conflicting emotions also reflected the different perspectives that each of the participants had. For his part, the deceased appears to have believed that the Plaintiff was not acting in a way that he thought his son should act. From the Plaintiff's point of view, he was concerned about the deceased's conduct and was suspicious of the influence that Claire was having on the deceased, whom he believed was acting out of character.

In these circumstances, it is impossible to accept that the Plaintiff was as calm as he asserts he was during what was, undoubtedly, a very difficult and stressful occasion. However, I tend to think that if Claire had been "hit" by the Plaintiff, as she asserted in her oral evidence, she would have informed the Police of that fact and that such an allegation would have been noted in the circumstances of the complaint. It was not.

The Statutory Scheme - The Act

Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out some of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions.

The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008. A new Chapter 3 was added to the Act, which deals with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, will. It is only if the statutory conditions are satisfied, that the court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate, to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary.

The key provision is s 59 of the Act. The court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made. Relevantly, one category is "a child of the deceased" (s 57(1)(c) of the Act). Clearly, that language is expressive of the person's status, as well as his, or her, relationship to the deceased. There is no age limit placed on a child making an application.

The court, if satisfied of the applicant's eligibility, must, in this case, then determine whether adequate provision for the proper maintenance, education or advancement in life of that applicant has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is only if the court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). In this way, the court carries out a two-stage process. It may take into consideration the matters referred to in s 60(2) of the Act at both stages. (The operation of the intestacy rules is irrelevant to this case.)

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

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

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

"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"It means proper in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement 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 (1980) 144 CLR 490, Gibbs J said at 502:

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

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

"[T]he use of the word 'proper' ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."

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

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

The first stage of the process provided for by s 59(1)(c) has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education and advancement in life of a particular applicant.

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

Tobias JA said:

"42. Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly 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 because of that context that, in the present case, the 'proper maintenance etc' of the appellant required consideration of a need to guard against the contingency to which I have referred."

In Devereaux-Warnes v Hall (No 3) at [81] - [84], Buss JA said, in respect of the first stage of the process:

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

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

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

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

In the event that the court is satisfied that the power to make an order is enlivened (ie it is satisfied that the applicant is an eligible person, and, where necessary, that factors warranting have been satisfied, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), then, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made.

The second stage of the process arises under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.

Section 60 of the Act, at least in part, is new. It provides:

"(1)The court may have regard to the matters set out in subsection (2) for the purpose of determining:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It can be seen that s 60(2) enumerates 15 specific matters which the court may take into account, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order, and, if so, the nature of any such order. The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of such of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance, and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.

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

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

(d) any other valuable benefit."

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

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

Leaving aside the question of eligibility, the 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.

This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the first stage. Happily, I am not alone in reaching this conclusion which is supported by the following comments made in Singer v Berghouse, at 209-210:

"... The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

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."

And by the comments of Callinan and Heydon JJ in Vigolo v Bostin, at 230-231:

"We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made 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. 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."

Section 61 of the Act permits the court to 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. However, the court may disregard any such interests only if:

(a) notice of the application, and of the court's power to disregard the interests, is served on the person concerned, in the manner and form prescribed by the regulations or rules of court, or

(b) the court determines that service of any such notice is unnecessary, unreasonable or impracticable in the circumstances of the case.

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

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

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

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

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

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

The order may be made, relevantly, in this case, in relation to the estate of the deceased. As the deceased died leaving a Will, his estate includes all property that would, on a grant of probate of the Will, vest in the executor of the Will (s 63 of the Act).

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

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

The Court, also, may, at the time of distribution of an estate that is insufficient to give effect to a family provision order, make such orders concerning the abatement, or adjustment, of distributions from the estate, as between the person in whose favour the family provision order is made and the other beneficiaries of the estate as it considers to be just and equitable among the persons affected (s 72(2) of the Act).

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

Practice Note No. SC Eq 7, which applies to claims for a family provision order, provides in Clause 24, that "[o]rders may be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the value of the estate is less than $500,000".

Other Applicable Legal Principles - Substantive Application

Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were promulgated in the context of previous legislation, they are equally apt in a claim brought pursuant to the Act.

Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve a "fair" disposition of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants. The Court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act to correct the hurt feelings, or sense of wrong, felt by an applicant. 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.

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 testator'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". Freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the court": Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 19.

In Stott v Cook (1960) 33 ALJR 447, 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."

Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (NSWSC, Young J, 17 May 1996, unreported); Vigolo v Bostin at 199 and 204; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.

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

The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1910) 29 NZLR 959 at 966.

Where the Court is satisfied that provision ought to be made, then it is no answer to a claim for provision under the Act that to make an order would be to defeat the intentions of the deceased identified in the Will. The Act requires, in such circumstances, the deceased's intention in the Will to be displaced: Kembrey v Cuskelly [2008] NSWSC 262, per White J, at [45].

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

What was said in Edgar v Public Trustee for the Northern Territory [2011] NTSC 5, per Kelly J at [46] should be remembered:

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

In relation to a claim by an adult child, the following principles are useful to remember:

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

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

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

(d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland Deceased [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co. of Australasia Ltd (1979) 143 CLR 134 at 148; Goodman v Windeyer at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons to whom the applicant, however reasonably, wishes to support, where there is no obligation to support such persons: Re Buckland Deceased at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams, at [86].

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

(f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003) at [181], [182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17].

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

In Blore v Lang (1960) 104 CLR 124, Fullagar and Menzies JJ said, at 135:

"The ... legislation [is] for remedying, within such limits as a wide discretion would set, breaches of a testator's moral duty to make adequate provision for the proper maintenance of his family - not for the making of ... a fair distribution of ... [the] estate ... Equality is not something to be achieved by the application of the Act, although in some cases equality may set a limit to the order to be made - for instances, where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same."

Estrangement

On the topic of the relationship between an applicant and the deceased, Campbell JA (with whom Giles JA and Handley AJA agreed) recently noted, in Hampson v Hampson [2010] NSWCA 359:

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

Because, in this case, there is a factor raised by the Defendant that bears on the quality of the relationship, being that the Plaintiff and the deceased were said to be estranged for some years before his death, it is necessary to set out some other general principles which should be remembered:

(a) The word 'estrangement' does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties. Whether the claim of the Plaintiff on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case: Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Dec) v Lathwell [2008] WASCA 256 at [33].

(b) The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 at [88]-[94]; Foley v Ellis.

(c) There is no rule that irrespective of a Plaintiff's need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to "ample" provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases.

(d) The Court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one "who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility": Ford v Simes [2009] NSWCA 351 at [71] per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed.

The Plaintiff was born in September 1950 and is currently aged 62 years.

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

The Plaintiff asserts a financial contribution to the acquisition and conservation of the estate of the deceased. He says that when the deceased borrowed $3,000 to enable the completion of the building on the Georges Hall land, it was he who made the repayments of approximately $20 or $30 per month until the loan was repaid.

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

I have referred to the indirect assistance provided by the deceased to the Plaintiff to purchase his Raine & Horne franchise business in about 1994.

Claire gives evidence that the deceased told her that he had bought the Plaintiff a motor bike, valued at $1,000, when they first arrived in Australia and that he had lent the Plaintiff $20,000, in 2006, which the Plaintiff had repaid.

The Plaintiff does not deny the contents of the statements made by the deceased to Claire as to the provision made for him during the lifetime of the deceased. As stated, there is no provision made for the Plaintiff from the deceased's estate.

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

There is evidence of the deceased's prior testamentary intentions contained in a will made by him in August 2006 (prior to the events referred to at the solicitor's office). That will, relevantly, provides:

"4.I DECLARE that as regards to my home at ... Jensen Street, Condell Park that my Trustee allow CLAIRE SIDHOM to have the use occupation and enjoyment thereof or to receive the net income there from during her lifetime upon the following conditions:

(a) that she pay all rates, taxes and outgoings;

(b)that she keep the premises in a good and habitable state of repair

(c)that she keep it insured against fire, flood, tempest and other insurable risks.

AND I DECLARE that upon the death of CLAIRE SIDHOM if she shall survive me or upon my death if she shall not survive me my Trustees shall stand possessed of my house UPON TRUST for FRANK NACHATY and NADIA TAYLOR as survive me, and if more than one as tenants in common in equal shares, estate of whatsoever kind and wheresoever located for their benefit absolutely PROVIDED ALWAYS that should either of the said FRANK NACHATY and NADIA TAYLOR predecease me leaving surviving issue then the surviving issue, and if more than one as tenants in common equally, shall take in substitution that part of my estate that his, her or their parent would have taken had he or she survived me and attained a vested interest in my estate.

5.PROVIDED that she survives me by thirty (30) days I GIVE to CLARIE SIDHOM my residuary estate of whatsoever kind and wheresoever located for her benefit absolutely."

(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

The deceased did not maintain the Plaintiff, wholly or partly, before his death, other than during his childhood in Australia.

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

There is no person with a liability to support the Plaintiff other than, perhaps, Ms Lundstrom.

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

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

I have dealt with the relationship of the Plaintiff and the deceased earlier in these reasons. Overall, I am of the view that prior to the marriage of the deceased and Claire, the relationship between them was as described by the Plaintiff.

Thus, when one considers the totality of their relationship, its breakdown and the period of disharmony is not of sufficiently long duration to give rise to the complete termination of the deceased's duty to provide for the Plaintiff, if his circumstances otherwise warrant that provision should be made.

The Defendant does not assert any conduct that could affect the entitlement to provision if provision were otherwise apt.

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

It is necessary to consider Claire's conduct also. Importantly, the relationship was of no more than five years duration and the deceased and Claire had no children together. It was a second marriage, late in life, for both of them. I also accept that she did not contribute to the building up of the deceased's estate.

However, I am satisfied that Claire was a loving spouse of the deceased. I also cannot forget, that she is the chosen object of the deceased's testamentary bounty.

There is no conduct of Claire, after the death of the deceased, which is relevant.

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

This is not relevant in the present case.

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

There is no other matter that I consider relevant.

Determination

Claims for a family provision order present particular difficulties where the actual estate is so small and where there is more than one competing claim upon the bounty of the deceased. Any provision made by the Court in favour of an applicant must, in this class of case, be made at the expense of the beneficiary who has had to defend the claims and who is the chosen object of the deceased's bounty.

Being an "eligible person" is a necessary precondition to the court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. In this case, there is no dispute that the Plaintiff, as a child of the deceased, is an eligible person within the meaning of s 57(1)(c) of the Act.

There is also no dispute that the proceedings were commenced within the time prescribed by the Act.

Then, the first question for determination is whether, at the time when the court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the Plaintiff, has not been made by the Will of the deceased.

Counsel for the Defendant did not accept that the Plaintiff has "need". As discussed above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence. Counsel submitted, even though no provision was made for the Plaintiff in the Will of the deceased, that the jurisdictional threshold had not been satisfied. He relied upon the failure by the Plaintiff to disclose, fully and accurately, his current financial circumstances.

In Collings v Vakas [2006] NSWSC 393, a case decided under the former Act, Campbell J (as his Honour then was) stated:

"66. Before the Court can make an order in the plaintiff's favour, it needs to be satisfied that she was left, at the testator's death, without adequate provision for her maintenance, education or advancement in life. It is clear that she owns no real estate (unlike her brothers), and that she has ongoing family responsibilities.

67. However, before a court can be satisfied that a plaintiff has been left without adequate provision, the court needs to be persuaded that it has been presented, at least in broad outline, with the whole picture concerning the plaintiff's financial situation. In the present case, even though there are two elements of the plaintiff's financial situation about which I am satisfied (that she owns no real estate, and has family responsibilities), when another crucial element of the plaintiff's financial situation (namely, her income and expenditure) is not satisfactorily proved, it is not possible to conclude that she has been left without adequate provision.

68. In these circumstances, the plaintiff's claim is dismissed."

A similar approach was taken by McLaughlin As J in Foye v Foye [2008] NSWSC 1305, in which his Honour said:

"14. It cannot be emphasised too strongly that it is incumbent upon an applicant for provision to disclose to the Court as fully and as frankly as possible all details of that applicant's financial and material circumstances. Where an applicant is living with a spouse or partner, that obligation extends also to the circumstances of such spouse or partner. It is quite inappropriate for an applicant to fail (as Edward has failed in the instant case) to set forth the financial and material circumstances of his wife, and then to say that he was not asked to provide any information concerning her finances. Whether or not he is expressly requested to provide such information, an applicant has an obligation to place that information before the Court.

15. Neither the Court nor the Defendant should be required to embark upon a search for information which Edward himself had an obligation to provide frankly and voluntarily in support of his claim. If he chooses not to inform the Court of the details of the finances of the wife with whom he is living, then the Court is entitled to draw appropriate inferences from that omission.

...

41. I have already referred to the obligation of an applicant for provision to place before the Court as fully and as frankly as possible all information concerning the applicant's financial and material circumstances. I have also referred to the fact that it is not the responsibility of the Defendant to elicit evidence concerning those circumstances which the applicant herself fails to provide voluntarily."

This view was also stated in Mann v Starkey [2008] NSWSC 263, in which case White J noted:

"25. It has often been said that an applicant for provision must make a full and frank disclosure of his or her "financial and material circumstances" (e.g. Fraser v Venables (Supreme Court of New South Wales, McLaughlin M, 30 September 1998, unreported); BC9805011; Draper v Nixon [1999] NSWSC 629 at [35]; Bennett v Bennett [2001] NSWSC 987 at [23]; Ernst v Ryf [2001] NSWSC 1167 at [37]; Van Ooyen v O'Driscoll [2002] NSWSC 445 at [55], [56]; Zaleski v Patterson [2005] NSWSC 54 at [42]; Troy v Slede [2005] NSWSC 1080 at [20]; Wheatley v Wheatley [2006] NSWCA 262 at [26]). The defendant's solicitors in correspondence stressed to the plaintiff's solicitors that the plaintiff had such an obligation, even going to the length of citing the abovementioned and other authorities for that proposition. They complained of the plaintiff's failure to produce bank statements, tax invoices and to explain how he had dealt with the distribution from the estate. They also complained that whilst it appeared that there had been substantial withdrawals from both his personal cheque account and from the V2 Plus account of Mann Securities, the plaintiff had given no explanation and produced no documents to show how the withdrawals had been applied. The plaintiff's personal cheque account with the ANZ Bank showed that there had been withdrawals totalling at least $57,463 during the period from 22 February 2006 to July 2007. The V2 Plus account of Mann Securities showed withdrawals of about $44,000 between 22 January 2007 and 1 July 2007.

...

29. Counsel for the plaintiff submitted that as the plaintiff had given sworn evidence as to his assets and income and as none of his evidence about those matters were shown to be untrue, it ought to be accepted. However, the plaintiff needs to bring me to a state of persuasion or reasonable satisfaction, on the balance of probabilities, that his financial position is as he describes it and hence that he has financial needs (Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 per Dixon J). I do not consider that the Court has been given the full picture. The particular matters of concern are:

(a) the plaintiff's inability to account for the whereabouts of the distribution he received from the estate in October 2006, giving rise to the inference that he has an account or accounts with a financial institution which have not been disclosed, or that a third person has held moneys on his behalf and may still do so;(b) the absence of any financial statements or other evidence as to the income derived by Mann Securities since its commencement of business in January 2007, notwithstanding that the plaintiff is the sole shareholder and director of the company;(c) the absence of evidence as to the plaintiff's income for any financial year other than 2006;

(d) the lack of detail as to how the plaintiff calculated his taxable income for the 2006 financial year and the absence of any corroboration of that estimate;

(e) the non-production of any income tax returns and the lack of explanation as to why no income tax returns had been prepared for at least the 2005 and 2006 financial years;

(f) the absence of explanation as to why the plaintiff apparently incurred an expense of over $7,000 for golf fees payable to the Eleanora Country Club if his financial position were as depicted in his affidavits;

(g) the lack of evidence as to the plaintiff's occupation after 1968; and

(h) the lack of explanation as to why the plaintiff finds himself in the precarious financial position which he described in his affidavit.Having regard to the above matters I am not persuaded on the balance of probabilities that the plaintiff's financial position is as he depicts it."

In the present case, the Plaintiff has neglected, or failed, to give satisfactory evidence about the Nachaty Investment Trust, despite the Defendant and Claire having pointed out the deficiency some time before the hearing. It is quite apparent, from this omission, as well as other aspects of his evidence, that he has deliberately chosen not to do so. I have earlier referred to his counsel's written submission about his financial circumstances.

In my view, the omissions are significant and his failure to disclose any information about the Trust, including its property, is a matter of importance. Taken with other aspects of his financial and material circumstances, including significantly underestimating how much he had in his bank account and the fact that he is living with someone else, materially affects his credibility on this issue.

Despite the fact that s 60(1) provides that the Court may have regard to the matters set out in subsection (2) for the purpose of determining whether to make a family provision order and the nature of any such order, and that sub-s (2)(d) provides that "the financial resources (including earning capacity) and financial needs, both present and future, of the applicant ..." is only one of those matters, I am of the view that where an applicant does not make complete disclosure of those financial resources, the Court is unable to make a family provision order because it cannot properly determine the true "needs" of the applicant, compare those needs with his, or her, financial resources, evaluate whether those needs can be met from his, or her, own resources, and, thereby determine whether inadequate provision for the applicant's maintenance and advancement in life has been established.

Without complete disclosure the Court is prevented from answering the questions posed by the Act and determining the applicant's case in accordance with the requirements of the Act.

In this case, the Court cannot be satisfied that the Plaintiff's financial circumstances are as he claims them to be, and it is unable to make findings as to his complete financial circumstances. There is simply too much information omitted.

Thus, even though the Plaintiff is an eligible person, he has not satisfied the jurisdictional threshold, namely that the provision made for him in the Will of the deceased is inadequate. Accordingly, I must dismiss the Plaintiff's Summons.

For completeness, I should make reference to Hill v Buckley [2008] NSWSC 1374, in which Young CJ in Eq, at [14], commented:

"A properly prepared case under the Act sets out in plain detail, brought up-to-date as at the hearing, the plaintiff's statement of assets, her statement of liabilities and her statement of income."

Even if I were wrong in reaching that conclusion, I would not, as a matter of discretion, make an order in favour of the Plaintiff. What has been established is that the Plaintiff, a son of the deceased, is a person who appears to have been financially independent of the deceased for many years; he is in reasonably good health and is able to work. He has property, which generates an income, and a reasonably large amount in the bank (which amount, coincidentally, is about equal to the value of the net estate after costs are deducted).

In addition, the Plaintiff received an indirect benefit from the deceased in about 1994, when the Condell Park property was used as security for a business that he was purchasing. The fact that the Plaintiff repaid the whole borrowing does not mean that a significant benefit was not provided to him during the lifetime of the deceased. Finally, the estate is small and the competing claimant on the bounty of the deceased is his widow. Even though the marriage was a short one, she was the chosen object of the deceased's bounty.

In the circumstances, the Plaintiff's Summons must be dismissed.

I have considered carefully the question of costs of the proceedings. I have previously stated in Mikan v Velcic (No 2) [2011] NSWSC 505, at [17] that the following matters are relevant in determining the burden of costs:

"...I am of the view that the following principles apply (in respect of costs applications made under the Family Provision Act or the Succession Act ):

(a) The view of some practitioners advising a potential applicant contemplating a claim for a family provision order, that there is little risk, and probably much to be gained, in making a claim, however tenuous, because even if the claim fails the applicant will, very likely, get his, or her, costs out of the estate and that he, or she, will not be significantly out of pocket, and the legal practitioner will receive his, or her, costs and disbursements in any event, has been thoroughly discredited.

(b) Parties should not assume 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] VSCA 195. It is now much more common than it previously was for an unsuccessful applicant to be ordered to pay the defendant's costs of the proceedings (Lillis v Lillis [2010] NSWSC 359 at [23]) and be disallowed his, or her, own costs.

(c) Where, as here, the issue is whether the unsuccessful applicant should bear the costs of the successful Defendant, s 98 of the Civil Procedure Act 2005, and the rules quoted above will apply, and, in the absence of some good reason to the contrary, there should be an order that the costs of the successful defendant be paid by the unsuccessful plaintiff: Moussa v Moussa [2006] NSWSC 509.

(d) An unsuccessful plaintiff will, usually, be ordered to pay costs where the claim was frivolous, vexatious, made with no reasonable prospects of success, or where she, or he, has been guilty of some improper conduct in the course of the proceedings: Re Sitch [2005] VSC 383.

(e) In small estates particularly, the court should be careful not to foster the proposition that obstinacy and unreasonableness will not result in an order for costs: Dobb v Hacket (1993) 10 WAR 532, at 540.

(f) Proceedings for a family provision order involve elements of judgment and discretion beyond those at work in most inter partes litigation: Jvancich v Kennedy (No 2) [2004] NSWCA 397.

(g) In exercising its discretion in relation to costs, the court will have regard to the overall justice of the case. The 'overall justice of the case' is 'not remote from costs following the event'. However, the court may be more willing to depart from the general principle than in other types of case: Moussa v Moussa; Carey v Robson; Bartkus v Bartkus [2010] NSWSC 889 at [24].

(h) As proceedings for a family provision order are essentially for maintenance, a court may properly decide to make no order for costs, even though it were otherwise justified, against an unsuccessful applicant, if it would adversely affect a financial position which had been taken into account in dismissing the application: McDougall v Rogers; Estate of James Rogers [2006] NSWSC 484; McCusker v Rutter [2010] NSWCA 318 at [34].

(i) There are also other circumstances that may lead the Court to order payment out of the estate of the costs of an unsuccessful Plaintiff. The court may allow an unsuccessful plaintiff costs out of the estate, if in all the circumstances the case was meritorious, reasonable or 'borderline': McDougall v Rogers; Estate of James Rogers; Re Bodman [1972] Qd R 281; Shearer v The Public Trustee (Supreme Court of NSW, Young J, 21 April 1998, unreported)."

It seems to me that the Plaintiff must pay the costs of the proceedings. He has chosen not to disclose, completely, his financial resources, despite the Defendant and Claire giving him notice that this was an issue in the proceedings.

There were no submissions made to the contrary by the Plaintiff's counsel.

In the circumstances, I order:

(a) The Plaintiff's Summons is dismissed.

(b) The Plaintiff should pay the Defendant's costs of the proceedings as assessed or agreed, such costs to be calculated on the ordinary basis; to the extent that there is a difference between the costs recovered from the Plaintiff, and the Defendant's costs calculated on the indemnity basis, they should be paid out of the estate of the deceased.

**********

Decision last updated: 13 September 2012

Medium Neutral Citation:	Nashaty v NSW Trustee & Guardian [2012] NSWSC 1063
Hearing dates:	3 September 2012
Decision date:	11 September 2012
Jurisdiction:	Equity Division
Before:	Hallen AsJ
Decision:	(a) The Plaintiff's Summons is dismissed. (b) The Plaintiff should pay the Defendant's costs of the proceedings as assessed or agreed, such costs to be calculated on the ordinary basis; to the extent that there is a difference between the costs recovered from the Plaintiff, and the Defendant's costs calculated on the indemnity basis, they should be paid out of the estate of the deceased. (c) The Exhibits should be returned.
Catchwords:	SUCCESSION - FAMILY PROVISION - The Plaintiff, a son of the deceased, seeks family provision order - very small estate - competing claimant - widow of the deceased of short marriage - Jurisdiction - need for cogent evidence of Plaintiff's financial circumstances before jurisdiction is established - Failure to disclose complete financial and material circumstances - Summons dismissed
Legislation Cited:	Evidence Act 1995 Family Provision Act 1982 Probate and Administration Act 1898 Property (Relationships) Act 1984 Succession Act 2006 Succession Amendment (Family Provision) Act 2008
Cases Cited:	Alexander v Jansson [2010] NSWCA 176 Allardice v Allardice, In re Allardice, (1910) 29 NZLR 959 Andrew v Andrew [2011] NSWSC 115 Auckland City Mission v Brown [2002] 2 NZLR 651 Bartlett v Coomber [2008] NSWCA 100 Blore v Lang (1960) 104 CLR 124 Bondelmonte v Blanckensee [1989] WAR 305 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Buckland Deceased, Re [1966] VR 404 Butcher v Craig [2009] WASC 164 Cairns v Cairns [2006] NSWSC 364 Christie v Manera [2006] WASC 287 Collings v Vakas [2006] NSWSC 393 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Crossman v Riedel [2004] ACTSC 127 Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54 Edgar v Public Trustee for the Northern Territory [2011] NTSC 5 Foley v Ellis [2008] NSWCA 288 Ford v Simes [2009] NSWCA 351 Foye v Foye [2008] NSWSC 1305 Gardiner v Gardiner (NSWSC, 28 May 1998, unreported) Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Hampson v Hampson [2010] NSWCA 359 Harris, In Re (1936) 5 SASR 497 Hawkins v Prestage (1989) 1 WAR 37 Hill v Buckley [2008] NSWSC 1374 Hughes v National Trustees Executors and Agency Co. of Australasia Ltd (1979) 143 CLR 134 Hunter v Hunter (1987) 8 NSWLR 573 Hyland v Burbidge [2000] NSWSC 12 Kay v Archbold [2008] NSWSC 254 Keep v Bourke [2012] NSWCA 64 Kembrey v Cuskelly [2008] NSWSC 262 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Lathwell v Lathwell [2008] WASCA 256 McCosker v McCosker (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 MacGregor v MacGregor [2003] WASC 169 Magill v Magill [2006] HCA 51; (2006) 226 CLR 551 Marks v Marks [2003] WASCA 297 Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47 Mayfield v Lloyd-Williams [2004] NSWSC 419 Mikan v Velcic (No 2) [2011] NSWSC 505 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Savic v Kim [2010] NSWSC 1401 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (NSWSC, 16 December 1996, unreported) Stott v Cook (1960) 33 ALJR 447 Taylor v Farrugia [2009] NSWSC 801 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, Young J, 17 May 1996, unreported) Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123 Worladge v Doddridge (1957) 97 CLR 1 Worsley v Solomon [2008] NSWSC 444 Zuckerman v Public Trustee, In re Green, deceased [1951] NZLR 135
Category:	Principal judgment
Parties:	Frank Nashaty (Plaintiff) NSW Trustee & Guardian (Defendant)
Representation:	Mr J Drummond (Plaintiff) Mr G A Rich (Defendant) Scully Legal (Plaintiff) Avoca Beach Law (Defendant)
File Number(s):	2011/377558