Nicholas v Nicholas - [2013] NSWSC 697

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Nicholas v Nicholas [2013] NSWSC 697
Hearing dates: 20 May 2013
Decision date: 04 June 2013
Jurisdiction: Equity Division
Before: Hallen J
Decision:
Direct the parties, within 14 days, to bring in short minutes of order to give effect to the matters referred to in Paragraph 251 of these reasons for judgment.

Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiffs, two grandchildren of the deceased, each applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant the son of the deceased, to whom Probate of the deceased's Will was granted and to whom the estate left, in equal shares, with another son who predeceased the deceased - Meaning of "beneficiary of the deceased person's estate" - Deceased son the father of the Plaintiffs - That each Plaintiff is an eligible person and that there are factors which warrant the making of his and her application not in dispute - Whether adequate and proper provision not made in Will of the deceased for each Plaintiff - Nature of family provision order to be made - How the burden of provision made in favour of each Plaintiff and the costs ordered to be paid should be borne
Legislation Cited: Civil Liability Act 2002
Family Provision Act 1982
Probate and Administration Act 1898
Property (Relationships) Act 1984
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Uniform Civil Procedure Rules 2005
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Allardice, In re; Allardice v Allardice (1910) 29 NZLR 959
Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Bartlett v Coomber [2008] NSWCA 100
Borebor v Keane [2013] VSC 35
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Bowyer v Wood [2007] SASC 327; (2007) 99 SASR 190
Cameron v Read (1887) 13 VLR 849
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Estate of the late Harrigan, Re; Cowmey v Whibley [2012] NSWSC 291
Foley v Ellis [2008] NSWCA 288
Franks v Franks [2013] NSWCA 60
Gardiner v Gardiner (NSWSC, 28 May 1998, unreported)
Gonzales v Claridades [2003] NSWSC 508; (2003) 58 NSWLR 188
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Hakim, Re Estate of; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223
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
McCosker v McCosker (1957) 97 CLR 566
Mayfield v Lloyd-Williams [2004] NSWSC 419
Nowak v Beska [2013] NSWSC 166
O'Brien v McCormick [2005] NSWSC 619
O'Dea v O'Dea [2005] NSWSC 46
Oldereid v Chan [2013] NSWSC 434
Palaganio v Mankarios [2011] NSWSC 61
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
Sammut v Kleemann [2012] NSWSC 1030
Sayer v Sayer [1999] NSWCA 340
Scarlett v Scarlett [2012] VSC 515
Shaw v Shaw [2003] VSC 318; (2003) 11 VR 95
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Slack v Rogan; Palffy v Rogan [2013] NSWSC 522
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stiles v Joseph (NSWSC, 16 December 1996, unreported)
Stott v Cook (1960) 33 ALJR 447
Szypica v O'Beirne [2013] NSWSC 297
Tsivinsky v Tsivinsky [1991] NSWCA 269
Thompson v MacDonald [2013] VSC 150
Verzar v Verzar [2012] NSWSC 1380
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (NSWSC, 17 May 1996, unreported)
Category: Principal judgment
Parties: Troy Keith Nicholas (first Plaintiff)
Rhonda Lee Hodges (second Plaintiff)
Ronald William Nicholas (Defendant)
Representation: Counsel:
Mr J Clifton (Plaintiffs)
Mr L Ellison SC; Ms T Fishburn (Defendant)
Solicitors:
Dooley & Associates (Plaintiffs)
Maclarens Lawyers (Defendant)

File Number(s): 2012/103207

Judgment

HIS HONOUR: The Plaintiffs, Troy Keith Nicholas and Rhonda Lee Hodges, each applies for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act") out of the estate of his, and her, grandmother, Florence Queen Nicholas ("the deceased"). 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 an order made by the Court, under Chapter 3, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person.

The Plaintiffs commenced the proceedings by one Summons, filed on 2 April 2012, that is, 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, Ronald William Nicholas, is one of the three sons, of the deceased and the executor appointed in the Will of the deceased to whom Probate was granted.

Without any undue familiarity, or disrespect intended, and for convenience, I shall refer to the Plaintiffs, the Defendant, and any other family members, after introduction, either by his, or her, given name, or by the role each plays in the proceedings.

Formal and Background Facts

The following facts are uncontroversial and provide a useful background.

The deceased died on 21 April 2011. She was then aged 96 years, having been born in July 1914.

The deceased was married to Keith Nicholas. He predeceased her, having died in about 1978. There were three children of their marriage, namely Keith Jnr, who died without issue, aged 17 years, in a car accident, in about 1953, the Defendant, and Trevor Nicholas, who died in 1996 who is the father of Troy, Rhonda and of Trevor (who is known, and shall be referred to hereafter, as "Todd").

Trevor's first wife, Yvonne Nicholas, who was the mother of the two Plaintiffs and Todd, died in October 1976.

Trevor married Rhonda Margaret Nicholas (to whom I shall refer, to avoid confusion, as Rhonda Margaret) in about 1982. There were two children of their marriage, being Nicole Florence Nicholas and Ben Edwin Nicholas. Each survived Trevor and the deceased.

The deceased left a Will that she made on 31 October 1978, Probate in common form of which was granted, by this Court, on 7 June 2011.

The deceased's Will, relevantly, provided for the whole of the deceased's estate to pass to Ronald and Trevor "in equal shares share and share alike for their own use and benefit absolutely".

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 $665,462. No liabilities were disclosed. The estate was said then, to consist of money in current accounts held by the NSW Trustee & Guardian. (I shall omit any reference to the cents in amounts stated hereafter.)

(The NSW Trustee & Guardian, or the Protective Commissioner of New South Wales, as it was in 2003, had been appointed the financial manager of the deceased, by orders made in October 2003. When the application was first made, in June 2003, the Defendant was authorised to continue to act as the financial manager of the deceased who was, then, a resident of a nursing home and suffering from moderate to severe Alzheimer's disease, pursuant to an enduring power of attorney executed in about 2000.)

A document tendered during the hearing revealed that, as at 14 July 2011, the amount held by the NSW Trustee & Guardian in an account for the deceased, was $669,266. On that date, the amount appears to have been paid to the Defendant's solicitors. From that amount, those solicitors deducted the costs and expenses ($4,952) of obtaining administration.

On 3 August 2011, Ronald received, by way of an interim distribution, $332,157, calculated as one half of the amount then held on behalf of the estate. The Defendant's solicitors retained the balance on account of the share that would pass under the deceased's Will to Trevor's estate (to which I shall return).

Subsequently, the NSW Trustee & Guardian received various amounts, being a redemption of deposits ($12,714) and amounts of interest accrued (totalling $658). On 29 October 2012, the NSW Trustee & Guardian paid the amount of $13,372 to the Defendant's solicitors.

On 4 April 2013, Counsel's fees ($6,050) were paid from the amount of $13,372 that was received, leaving the amount of $7,322 held by the Defendant's solicitors.

It would seem, therefore, that after the payment of the costs and expenses of obtaining administration and paying some Counsel's fees, the value of the deceased's estate, had there been no distribution to Ronald, was $671,637.

The Defendant's solicitors currently hold $335,818 (which is said to be the amount which would pass to Trevor's estate), and $3,661, held on behalf of Ronald, by the Defendant's solicitors.

At the hearing, the parties agreed that the amount of $339,479 is the amount, before the payment of any costs of the proceedings, which is currently available for distribution. However, the Defendant accepts that the amount, from the deceased's estate distributed to him, or some part of it, could be designated as notional estate, either for the purposes of a family provision order, or for the purposes of an order that the whole, or part, of the costs of proceedings in relation to the estate or notional estate of a deceased, be paid from the notional estate of the deceased.

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

The Plaintiffs' costs and disbursements have been estimated to be $72,200, if calculated on the ordinary basis, and $89,000, if calculated on the indemnity basis. The estimate, in each case, is inclusive of GST but was based on a one day hearing. (In fact, the case proceeded for a short time on a second day for completion of submissions.)

Once again, it is necessary to comment on the quantum of costs and disbursements that have been incurred. The Plaintiffs' disbursements include $32,000 for Counsel's fees (if calculated on the ordinary basis) or $40,000 (if calculated on the indemnity basis). It is difficult to see, in this case where the size of the estate is relatively modest, and the issues are not complex, there having been filed only six affidavits on the part of the Plaintiffs (of which one was a costs affidavit and the other was an affidavit by each Plaintiff in reply), how the Plaintiffs' costs and disbursements could be so high. The party who incurs such costs and disbursements should not assume that all those costs and disbursements will be allowed on assessment.

I was informed from the bar table, without objection, that $2,826, on account of the Plaintiffs' disbursements have also been paid.

The Defendant's costs and disbursements are estimated to be $48,500, if calculated on the indemnity basis. The estimate is inclusive of GST and is based on a one-day hearing. Of this amount, about $6,050 has been paid out of the deceased's estate. The balance remaining to be paid out of the estate is about $42,450. (The costs of obtaining probate and other administration expenses have also been paid out of the estate.)

(I note, by way of contrast, the Defendant's costs and disbursements, including senior Counsel's fees, are significantly less than the Plaintiffs' costs and disbursements.)

It can be seen, therefore, that the estimated value of the net estate that has not been distributed, after the payment of the Plaintiff's estimated costs and disbursements, calculated on the ordinary basis, and the balance of the Defendants' estimated costs and disbursements, calculated on the indemnity basis ($111,650 in total), would be about $224,829. The amount to which I have referred that has been paid to Ronald ($332,157) or part of it, may also be designated as notional estate.

There was no dispute that one of the duties of administration is to deal with any claim made for a family provision order - dealing with such claims is one example of the task of administration of ascertaining the identity of the persons to whom the legal personal representative must transfer the net estate assets: Gonzales v Claridades [2003] NSWSC 508; (2003) 58 NSWLR 188, at [48].

In O'Brien v McCormick [2005] NSWSC 619, Campbell J also noted:

"[28] The defence of Family Provision Act 1982 proceedings is one of the tasks an executor performs in administering the estate: Re Woodman, deceased; ex parte The Trustee (1940) 11 ABC 159 at 175; Re Linning [1995] 1 QdR 274 at 276; Re Lowe [2000] NSWSC 1180 at [5].

...

[56] It has been the law for a very long time that a trustee is entitled to be reimbursed out of the trust property in respect of all the charges and expenses properly incurred in the execution of the trust: Worrall v Harford (1802) 8 Ves Jun 4 at 8; 32 ER 250 at 252; In re Grimthorpe, deceased [1958] 1 WLR 381; Carver v Duncan (Inspector of Taxes); Bosanquet v Allen (Inspector of Taxes) [1983] 1 WLR 494 at 502. That principle also applies to executors. ... Whether conduct of an executor in defending Family Provision Act 1982 proceedings is reasonable is influenced by the executor's duty to place before the court all material which a beneficiary wishes to have placed before the Court, except to the extent that the executor knows that that material is false: Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 503-4; Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639 at 654 per Kirby P, 655 per Hope JA."

Thus, there is no reason why the costs of the proceedings, if there is an order for costs, should be paid solely out of the undistributed share of the deceased's estate passing to Trevor's estate. They should be notionally deducted before the entitlement of the Defendant, and of Trevor's estate, are calculated.

Of course, depending upon the result of the case, and the order, or orders, for costs, if any, that is, or are, made, the costs and disbursements, if payable out of the estate will be able to be formally assessed, unless otherwise agreed by the parties.

The parties agreed that there are a number of eligible persons who fall within the meaning of that term in the Act. They are the Plaintiffs and the Defendant, and Todd.

There is evidence of the Defendant's solicitor, Michael John Witts, of having telephoned Todd, in October 2012, and of having sent a letter to him shortly thereafter, enclosing a Notice of Claim. In the letter, the Defendant's solicitor suggested that Todd obtain independent legal advice as to his position. Apparently, Todd telephoned the office of the Defendant's solicitor, on 26 October 2012, and acknowledged that he had received the letter that had been sent. No proceedings have been commenced by, or on behalf, of Todd, and he has played no part at all in these proceedings. (The parties, in any event, seem to agree that the share of the estate that will pass to him, as a result of the deceased's Will and the intestacy of Trevor, should not bear the burden of the provision, if any, made for either of the Plaintiffs.)

Although it had been suggested that Ben and Nicole may be eligible persons, at the hearing it was agreed that neither was. (Ben and Nicole gives evidence that he and she lived, with their parents, "in a granny flat out the back of the deceased's house".) Each has sworn an affidavit that has been read in the proceedings. Neither was cross-examined and each, otherwise, has played no part in the proceedings. I shall refer to the evidence given by each where necessary. However, the parties, in any event, seem to agree that the share of the estate that will pass to each, as a result of the deceased's Will and the intestacy of Trevor, should not bear the burden of the provision, if any, made for either of the Plaintiffs.

Rhonda Margaret, also, does not assert that she is an eligible person. She, too, has sworn an affidavit that has been read in the proceedings. I shall refer to the evidence given by her where necessary.

Preliminary Matters

Devolution of the deceased's estate passing to Trevor

Before turning to the statutory scheme that applies in cases under the Act, it is convenient to mention how the share of the deceased's estate passing to Trevor devolves as a result of his death prior to the deceased.

Because the deceased's Will was made before 1 March 2008, and even though the deceased died after that date, the parties agree that s 29 of the Probate and Administration Act 1898 applies. The effect of that section is that the devise or bequest to Trevor, who died in the lifetime of the deceased (but before 1 March 2008), leaving issue living at the time of her death, does not lapse, but takes effect as if Trevor's death happened immediately after the death of the deceased. (There is no contrary intention expressed in the deceased's Will.)

Section 29 does not operate to provide a substitution of the children, or issue, of Trevor: Cameron v Read (1887) 13 VLR 849 at 853. Rather, the section provides for a fictitious prolongation of the life of the child (Trevor) so that he is treated as having survived the deceased.

Thus, as Trevor died intestate, the result is that the devise or bequest to him, made in the deceased's Will, passes to the personal representative of Trevor's estate, to be distributed on intestacy.

(Section 41 of the Act, which applies in circumstances not relevant to this case, now provides that the surviving issue take the original beneficiary's share according to the intestacy provisions which would apply had the original beneficiary died intestate leaving only issue.)

As Trevor died in 1996, the provisions of s 61B(3) of the Wills Probate & Administration Act, 1898 apply with the result that his estate would be distributed as follows:

"(3) If the intestate leaves a spouse and also leaves issue, then if the value of the estate (excluding any household chattels) does not exceed the prescribed amount, the whole estate shall be held in trust for the spouse, but if the value of the estate (excluding any household chattels) exceeds the prescribed amount, then:

(a) the household chattels (if any),

(b) the prescribed amount, and

(c) one-half of the estate (excluding any household chattels and the prescribed amount),

shall be held in trust for the spouse and the residue of the estate shall be held in statutory trust for the issue of the intestate."

The prescribed amount, in 1996, was $150,000.

Other than his interest in the deceased's estate, there is no evidence of Trevor having any other substantial solely owned property that formed part of his estate on his death. The parties agreed, therefore, that the effect of s 29 of the Probate and Administration Act, and s 61B(3) of the Wills Probate & Administration Act was as follows, assuming that the amount of $335,818 is available for distribution to Trevor's estate: Rhonda Margaret would receive the prescribed amount ($150,000) and one half of the balance ($92,909), whilst each of Trevor's five children would receive an equal share of the balance ($92,909), namely $18,581. (Of course, that calculation does not take into account any deduction for any part of the costs of the proceedings from the share of the deceased's estate passing to Trevor.)

Who is a "Beneficiary of the deceased's estate"?

There was a second preliminary issue raised, namely whether I should admit Rhonda Margaret's, Ben's and Nicole's evidence of financial resources and whether each should be regarded as "a beneficiary" for the purposes of Chapter 3 of the Act.

As I have stated above, Ronald, Rhonda Margaret, Nicole and Ben, each swore at least one affidavit that was read in the proceedings. Each gave evidence of her, and his, financial, material, and other circumstances. The Defendant and Rhonda Margaret, was each cross-examined, but not about his, or her, financial and material circumstances, respectively.

It was submitted, on behalf of the Plaintiffs, that each of Rhonda Margaret, Ben and Nicole, was not a "beneficiary of the deceased's estate", but rather a beneficiary, on intestacy, of Trevor's estate, that is to say that the interest of each was a derivative one. It was submitted, accordingly, that I should not consider her, and his, circumstances, respectively, under various sub-sections of s 60(2) of the Act.

In deciding that I should admit the evidence objected to, I referred the parties to Estate of the late Harrigan, Re; Cowmey v Whibley [2012] NSWSC 291, in which Ward J (as her Honour then was) considered a similar question. As her Honour put it, the relief sought, in that case, included:

"[2] A declaration that evidence of the financial resources (including earning capacity) and financial needs, both present and future, of any beneficiary of the estate of the late George Whibley is irrelevant to the hearing and determination of the plaintiff's application pursuant to the Succession Act 2006 (NSW) (the Act) that a family provision order be made in her favour from the estate of the late Violet Eugenie Harrigan."

Her Honour stated, at [22]:

"Essentially, the dispute on the present motion turns on whether the next of kin of the late Mr George Whibley are beneficiaries of Ms Harrigan's deceased estate for the purposes of s 60(2)(d) of the Act or are persons whose financial needs and circumstances may otherwise be relevant to the determination of Ms Cowmey's application for financial provision."

It is not necessary for me to repeat her Honour's reasons set out in [22] - [46] of the judgment, with which I respectfully agree. With the greatest respect, I cannot do better than quote paragraph [46] of her Honour's judgment which applies equally to the present case:

"... the interests to which one must have regard (when determining what provision ought be made for a claimant who has satisfied the first stage of the Singer v Berghouse test) would include not only named beneficiaries and those persons with a competing claim on the testator's bounty (the former class of persons not necessarily also being within the latter) but also those who may otherwise be beneficially entitled to a share of the deceased estate (say, through a share of the intestate estate of a since deceased named beneficiary) and who therefore may be affected by the burden of such an order. I see no basis to conclude that the court could not properly take into account, in determining what is the provision for the applicant for a family provision order, the effect of that order on persons beneficially entitled to a share of the estate though not named in the will."

There is one further consideration that satisfies me that the conclusion is correct. Section 61(1) of the Act provides that in determining an application for a family provision order, the Court "may disregard the interests of any other person by, or in respect of whom, an application for a family provision order may be made (other than a beneficiary of the deceased person's estate) but who has not made an application". Importantly, the section does not refer to "a beneficiary named in the Will of the deceased", or to "a beneficiary entitled on intestacy". The language of qualification is simply "a beneficiary of the deceased person's estate". The same terminology is used in s 60(2)(b), (d), and (f) of the Act.

If the legislature had intended the term "beneficiary" to have the limited application contended for by the Plaintiff, it would have been relatively easy for it to define the term with that limited application, for example, by referring to a "beneficiary named in the will of the deceased", or by referring to "a beneficiary entitled on intestacy".

In my view, the phrase "a beneficiary of the deceased person's estate" refers to any person who receives, or is entitled to receive, or who stands to receive, a benefit from the deceased's person's estate. Whether he, or she, receives the benefit directly, or through the conduit of a deceased beneficiary, does not matter.

Introduction to the Statutory Scheme

I shall next discuss the statutory scheme and the principles that are 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 be able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in the application.

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 dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased person'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 a deceased person's disposition to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary.

In cases such as the present, it is necessary for the Court to take three steps:

(i) determine whether each applicant is an eligible person within the meaning of that term in s 57(1) of the Act;

(ii) determine in the case, relevantly, of a s 57(1)(e) applicant, whether the Court is satisfied that there are factors which warrant the making of the application within s 59(1)(b) of the Act, and, if both eligibility and factors warranting are established;

(iii) determine whether adequate provision for the proper maintenance, education or advancement in life of each applicant has not been made by the Will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both, and, if so, determine what, if any, provision (or further provision) ought to be made out of the estate for those purposes.

The Substantive Provisions of the Act

Eligibility

The key provision is s 59 of the Act. The Court must be satisfied, first, that each applicant is an eligible person. 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 person who was, at any particular time, wholly or partly dependent on the deceased person, and who is a grandchild of the deceased person, or who was a member of the household of which the deceased person was a member" (s 57(1)(e) of the Act).

In the present case, each Plaintiff relies upon the undisputed fact that he and she "is a grandchild of the deceased". The language of the sub-section referred to, is expressive of his, and her, status, as well as his, and her, relationship to the deceased. There is no age limit placed on a grandchild making an application.

To be an eligible person within this category, there is also a pre-condition of whole, or partial, dependency. The Act contains no definition of the words "dependent on". In general, the word "dependent" connotes a person who relies upon support of another, financial and/or emotional. Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support.

There is no dispute that each Plaintiff was partly dependant upon the deceased and that he and she is an eligible person, so it is unnecessary to discuss this aspect further.

Factors warranting the Making of the Application

Where an applicant falls within the definition of eligible person, relevantly, within s 57(1)(e) of the Act, the Court must next consider and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application (s 59(1)(b)).

I have set out the relevant authorities on the meaning of the phrase in other cases, including, recently in Nowak v Beska [2013] NSWSC 166.

In the present case, there is no dispute that there are factors warranting the making of each Plaintiff's application. Thus, it is also unnecessary to discuss this requirement further.

Inadequacy of Provision

The Court, if satisfied of each applicant's eligibility, and also that there are factors warranting the making of the application, must 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, it is said that 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 so far as it relates to the deceased's estate.)

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 (by Basten JA) in Foley v Ellis [2008] NSWCA 288, at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J recently described it as "an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific": Szypica v O'Beirne [2013] NSWSC 297, at [40].

Under s 59(1)(c) of the Act, the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the Court is considering the application. 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 ..."

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

His Honour added, in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522, at [123]:

"The question of what level of maintenance or advancement in life is "proper" depends on all of the circumstances of the case "including the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty" (Singer v Berghouse (1994) 181 CLR 201 at 210)."

Until recently, it was unanimously thought that there are two stages of the determination. The first stage, provided for by s 59(1)(c), has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. The Court does this by determining whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased and/or by operation of the intestacy rules, for the applicant. If it is not so satisfied, then the Court is precluded from making a family provision order.

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).

In Collins v McGain 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 focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies.

...

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

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

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

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

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

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

In the event that the Court is satisfied that the power to make an order is enlivened (i.e. in this case it is satisfied that the applicant is an eligible person, 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.

However, Basten JA in v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, said of the two stage process referred to:

"29 The combination of changes requires that the court address the nature of the exercise being undertaken. Three potential consequences may be identified. First, there is a simplification of the structure of the process. There is no longer a two-stage process required. A degree of artificiality has thus been removed. The court should now ask what, taking all relevant factors into account, would have been adequate provision for the applicant. There is no first stage of determining whether the actual provision was "inadequate", followed by a discretionary exercise of determining what would be adequate and what should in fact be done.

...

41 As noted above, the language of the Succession Act is not consistent with the two-stage inquiry which was a common feature of earlier legislation: cf Singer v Berghouse at 208-209. In Keep v Bourke [2012] NSWCA 64 the Court appears to have assumed that the two-stage process continued to operate under the Succession Act: at [24]-[29]. However, the issue not having been directly addressed, there is no constraint on this Court now adopting a different approach. Nor does earlier High Court authority construing an earlier statutory scheme govern the approach to be adopted to materially different legislative provisions."

In Andrew v Andrew, Allsop P, at [6], said:

"Whether the process engaged in by the Court in s 59 can still be described as "two-staged" in the sense discussed in Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 208-211 may be an analytical question of little consequence. The task involves an evaluative assessment and a choice as to consequence therefrom, appeal from which is governed by the principles concerning discretionary judgments: Singer v Berghouse at 211 and DAO v R [2011] NSWCCA 63; 278 ALR 765 at [93]."

Barrett JA disagreed with Basten JA, in Andrew v Andrew, saying:

"65 This is the second occasion on which this Court has been called upon to deal with a claim under s 59 of the Succession Act. In the earlier case, Keep v Bourke [2012] NSWCA 64, the Court proceeded on the basis that approaches taken under s 7 of the now superseded Family Provision Act 1982 remained relevant and applicable. That matter was explored in greater detail in the course of argument in the present case. For reasons I am about to state, I am of the opinion that the earlier approaches should continue to be followed in cases such as the present case and Keep v Bourke, that is, cases in which the applicant is a child of the deceased and no previous order for provision out of the estate has been made in favour of that applicant.

...

79 First, it is necessary, having regard to s 59(1)(c), for the court to be satisfied that, at the time when it is considering the application, "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person". Whereas the former s 9(2) provided that an order was not to be made unless the court was "satisfied" in the specified way, the present legislation permits the court to make an order if "satisfied" in the specified way and, by necessary implication, precludes the making of an order if the court is not so "satisfied".

80 Second (and if the court is "satisfied" in the specified way), the "family provision order" that the court is empowered to make is, under s 59(2), "such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made"; and the court may, pursuant to s 60(1)(b), have regard to the matters specified in s 60(2) in deciding whether to make an order and the nature of the order.

81 Under s 59 and s 60, therefore, the task of the court, in a case of the kind under discussion, is:

(a) to determine the extent of the provision made for the maintenance, education and advancement in life of the applicant by the deceased's will or the intestacy laws;

(b) to form an opinion of the adequacy of that provision;

(c) if the opinion is one of inadequacy, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased person for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the court at the time the order is made; and

(d) in making that evaluative judgment, to take into account, as discretionary factors, the matters in s 60(2).

...

94 As stated in Keep v Bourke (above), the structure and effect of the Succession Act provisions warrant continuing adherence to the two-stage approach indicated by the decisions of the High Court in Singer v Berghouse and Vigolo v Bostin."

In Franks v Franks [2013] NSWCA 60, Young AJA (with whom McColl JA and Sackville AJA agreed) referred, at [17], to the primary Judge (Macready AsJ) having "cited the High Court's decision in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 and adopted the two stage process required by that decision".

His Honour noted also, at [29], that the appellant (in one of the two appeals) "accepted that it was appropriate for the primary judge to follow the course laid down in Singer v Berghouse and that [the respondent] had surmounted the first hurdle of the two stage process referred to therein. Accordingly, he identified the key question as whether the primary Judge had erred in determining the quantum of the provision made for ... in lieu of that made under the deceased's will".

At [35], his Honour wrote:

"On an appeal against a decision concerning the application of the second limb of Singer v Berghouse, the Court is dealing with a discretionary judgment (see Singer v Berghouse (at 211) and Durham v Durham [2011] NSWCA 62 at [82]; 80 NSWLR 335 (at 352)). It follows that his Honour's decision is reviewable by this Court only in accordance with the principles established in House v The King [1936] HCA 40; 55 CLR 499."

Although the appeal was allowed, that was because the Court found, at [42], that:

"... in formulating the quantum of the provision he made for Brad, the primary judge did not take into account the disparity in the financial circumstances between Gregory and Brad. Accordingly, the primary Judge's decision as to quantum must be set aside."

Nothing in the Court of Appeal's judgment in Franks v Franks suggests that the approach followed by the trial Judge, in adopting the two stage process required by Singer v Berghouse, was wrong.

At first instance, there are a number of decisions to which reference should be made. In Verzar v Verzar [2012] NSWSC 1380, Lindsay J said:

"92 I refrain from characterisation of these elements of the case as "stages" because that is terminology associated with the Family Provision Act 1982 (NSW) and Singer v Berghouse (1994) 181 CLR 201 at 208-211. Since Andrew v Andrew [2012] NSWCA 308 (14 June 2012) per Allsop P at [5]-[6] and Basten JA at [27], [29] and [41] a single judge of the Court is bound, in my assessment, to regard the two-stage decision-making process identified in Singer v Berghouse, and confirmed by Vigolo v Bostin (2005) 221 CLR 191, as superseded by enactment of ss 59-60 of the Succession Act.

93 Although the provisions of ss 59(1)(c) and 59(2) might formerly have been treated, respectively, as re-embodiments of the first and second of the two-stages of decision-making identified in Singer v Berghouse, the test to be applied in Family Provision cases must be taken by me to have been modified."

More recently, Ball J, in Oldereid v Chan [2013] NSWSC 434, after referring to Andrew v Andrew, noted the different approaches being adopted by trial Judges. His Honour said:

"52 More recent decisions at first instance have differed on whether the decision in Andrew v Andrew requires the court to apply a two stage process or not. Lindsay J in Verzar v Verzar [2012] NSWSC 1380 thought that a single judge of the court is bound "to regard the two-stage decision-making process identified in Singer v Berghouse ... as superseded by enactment of ss 59-60 of the Succession Act" (at [92]). Hallen J, on the other hand, has continued to apply the two stage test: see Goldsmith v Goldsmith [2012] NSWSC 1486 at [67]; Nowak v Beska [2013] NSWSC 166 at [113]. A third approach, adopted by Macready AsJ in Morgan v Bohm [2013] NSWSC 145 at [110], is to consider the case on both bases. There are, however, difficulties with that approach. If the two approaches involve real differences, then presumably there are cases where they will produce different results. What, then, is to be done applying both approaches? On the other hand, if the two approaches are bound to produce the same result, the dispute about which test should be applied has no significance.

53 In my opinion, there is clearly a tension between the decisions of the Court of Appeal in Keep v Bourke [2012] NSWCA 64 and Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 which only the Court of Appeal or High Court can resolve. In the meantime, the duty of a trial judge is to follow the later decision: see Ratcliffe v Watters (1969) 89 WN (NSW) Part 1 497 at 505 per Street J. In Andrew v Andrew, both Allsop P and Basten JA regarded the reformulation of the test in s 59 of the Succession Act as changing, perhaps only subtly, the threshold that must be satisfied before an order can be made. Basten JA regarded that change as also changing the way in which the court should approach the question. Allsop P regarded it as an analytical question of little consequence. However it is analysed, though, it is clear from the terms of s 59 that the court must ask itself the question whether it is satisfied that "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made". If it is so satisfied, it must consider whether to make an order and, if so, the terms of that order. In undertaking each of those steps, it may have regard to the matters set out in s 60. Whether those steps should be seen as separate stages that must be followed or as convenient steps in undertaking what is required by the legislation does not matter for present purposes."

It appears that Ball J was not referred to Franks v Franks.

It seems to me, with great respect to those who disagree, that the amendments introduced by the Act do not require, or justify, a different approach. That approach, adopted in the myriad of cases determined under the Act, including Keep v Bourke [2012] NSWCA 64 (in which Macfarlan JA (except as to amount of provision) and Tobias AJA agreed with Barrett JA), and now Franks v Franks (a unanimous decision of the Court of Appeal), requires a trial Judge to continue to follow the two stage approach in determining cases under the Act, until any uncertainty is resolved. Furthermore, as Ball J repeats, the questions remain the same, namely, whether the Court can make an order for provision (whether it is satisfied that "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made"), and if so, whether it should (whether to make an order and, if so, the terms of that order). As Allsop P said, "it may be an analytical question of little consequence".

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew at [37] as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380, at [123], as "a valuable prompt" to which the court may have regard, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order.

It has recently been said by White J in Slack v Rogan; Palffy v Rogan, at [121], that s 60 "lists a wide range of matters that the Court "may have regard to", but these do not provide any tangible assistance in answering the question in any particular case whether the provision made in a will was less than adequate for an eligible applicant's "proper" maintenance, education or advancement in life".

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

It does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. For example, when considering eligibility under s 60(1)(a), many of the matters in s 60(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 any other eligible person, as well as of any beneficiary of the deceased person's estate, 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 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 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).

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). (As I have written, intestacy in relation to the deceased's estate is irrelevant in these proceedings.)

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

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 in such manner as the Court thinks fit.

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 stated in the context of the former Act, 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 "an overall fair" disposition of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants. 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."

Also, in Vigolo v Bostin, Gleeson CJ pointed out that the legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour stated, at [10], that it "preserved freedom of testamentary disposition, but subjected that freedom to a new qualification"

White J referred to these principles in Slack v Rogan at [127]:

"In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and (2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will."

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, 17 May 1996, unreported); Vigolo v Bostin at 199 and 204; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. How those community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew at [36].

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 by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12 at [56]. Nor does it follow that if the Court decides it is inappropriate to make a specific provision in respect of one identified head of claim that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams, at [89].

The size of the estate, or notional estate, is a significant consideration in determining an application for provision. However, its size does not justify the Court in rewriting the Will in accordance with its own ideas of justice and fairness: Bowyer v Wood [2007] SASC 327; (2007) 99 SASR 190, per Debelle J at [41]; Borebor v Keane [2013] VSC 35 at [67].

In relation to a claim by a grandchild, the following general principles are, in my view, relevant and should be remembered:

(a) As a general rule, a grandparent does not have an obligation or responsibility to make provision for a grandchild; that obligation rests on the parent of the grandchild. Nor is a grandchild, normally, regarded as a natural object of the deceased's testamentary recognition.

(b) Where a grandchild has lost his, or her, parents at an early age, or when he, or she, has been taken in by the grandparent in circumstances where the grandparent becomes a surrogate parent, these factors would, prima facie, give rise to a claim by a grandchild to be provided for out of the estate of the deceased grandparent. The fact that the grandchild resided with one, or more, of his, or her, grandparents is a significant factor. Even then, it should be demonstrated that the deceased had come to assume, for some significant time in the grandchild's life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild's support and welfare, or else that the deceased has undertaken a continuing and substantial responsibility to support the applicant grandchild financially or emotionally.

(c) The mere fact of a family relationship between grandparent and grandchild does not, of itself, establish any obligation to provide for the grandchild upon the death of the grandparent. A moral obligation may be created, in a particular case, by reason, for example, of the care and affection provided by a grandchild to his, or her, grandparent.

(d) It has been said that a pattern of significant generosity by a grandparent, including contributions to education, does not convert the grandparental relationship into one of obligation to the recipients, as distinct from one of voluntary support, generosity and indulgence.

(e) The fact that the grandparent occasionally, or even frequently, made gifts to, or for, the benefit of the grandchild does not, in itself, make the grandchild wholly, or partially, dependent on the grandparent for the purposes of the Act.

(f) The grandchild's dependence, whether whole or partial, on the grandparent must be direct and immediate; it is not sufficient that the grandchild's dependence is the indirect result of the deceased providing support and maintenance for his, or her, own adult child, and thereby, incidentally, benefiting the deceased's grandchildren who are directly dependent on that child.

(g) It is relevant to consider what inheritance, or financial support, a grandchild might fairly expect from his, or her, parents. Yet, the obligation of a parent to provide for his, or her child does not, necessarily, negate, in an appropriate case, the moral obligation of a grandparent to make provision for the maintenance, education or advancement in life of a grandchild out of her, or his, estate.

Nicole could only be described as being in a relatively good financial position for a young woman who is 29 year old. She is a dance instructor and currently owns, and operates, the business 'Dance Expression'. At the date of hearing, her monthly net income is $2,200, which comprises her wage ($1,600) and a one half share of rental income from the investment property in Queensland, that is jointly owned with her husband, Nicholas ($600).

Her total monthly expenditure is $7,838 comprised of utility and other household bills ($1,520), petrol ($240), health, home and contents, tenant and life insurance policies ($442), car registration ($75), medication ($50), mortgage repayments ($5,012) and personal loan repayments ($500). However, she deposes that she and Nicholas jointly contribute to their combined living expenses.

She has assets of $470,000 comprised of a one half interest in a car ($5,000), furniture ($5,000), a one half share in the matrimonial home in Wentworthville ($235,000) and a one half share in the investment property ($225,000). Her share of the mortgage liability is $377,432.

Ben is currently employed as a Mechanical Services Technician with Mini Pickers Access Equipment Hire. At the date of hearing, his net income is between $800 and $1,200 per week.

His total monthly expenditure is calculated at $2,473, comprising rent ($680), electricity ($120), food ($290), phone ($74), Internet cost ($69), petrol and other car related expenses ($670), clothes ($200), hobbies ($100), massage and physiotherapy treatment ($120) and tools ($250).

He has assets totalling $50,241 comprising a car ($3,850), furniture ($2,500), a go-kart and trailer ($3,850), tools ($8,000), bicycle ($500), savings ($4,800) and superannuation ($26,691).

He has liabilities of $3,000, that he attributes to an "Allianz accident".

Rhonda Margaret gives evidence of her financial resources. She is currently employed as a sales assistant with Big W. Her current income is not disclosed in evidence. However, her taxable income for the financial year ending 30 June 2012 was $25,216.

At the date of hearing, Rhonda Margaret's total monthly expenditure is $1,354 comprising rent ($680), electricity ($120), food ($290), phone ($49), medicines ($55), petrol ($105) and car maintenance ($55). Ben lives with her and contributes to household expenses.

She has assets of ($50,627), being furniture ($10,000), a car ($4,000), shares ($4,173) and superannuation ($32,454).

She has not disclosed any liabilities.

I also note that none of the persons who inherit the part of the deceased's estate passing to Trevor's estate are chosen objects of the deceased's bounty. However, as a named beneficiary in the Will of the deceased, Ronald is. The Court will, therefore, give due regard to "what the testator regarded as superior claims or preferable dispositions" as demonstrated by his, or her, will: Pontifical Society for the Propagation of the Faith v Scales at 19, per Dixon CJ. In this way, too, the Court gives weight to the principle of freedom of testation.

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

I have dealt with the failure by each of Troy and Rhonda to disclose the financial and material circumstances of the person, or each of the persons, with whom he, and she, respectively, is cohabiting.

(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

Troy is in good health and does not take any medication.

Rhonda's health is fair. She has hypertension and diabetes, which she controls with medication.

Ronald's health is poor. In 1954, he lost the sight in his left eye. In 1990 he had part of his right lung removed. In 2009, he was diagnosed with Asbestos Related Plural Disease. In 2010, he underwent a double bypass operation and had a heart valve replaced. He has diabetes, which he controls with diet and medication, and skin cancers, requiring surgery. He also has pain in his knees, which are said by him to affect his mobility.

Nicole suffers from asthma and severe anxiety, the latter of which is controlled by medication. Her health is otherwise good.

Ben suffers from neurofibromatosis (nf1), a condition that causes tumours to grow on the body. He has had some of the larger tumours surgically removed. He gives evidence that the tumours cause him pain. Aside from this condition, his health is good.

Rhonda's health is fair. She suffers from diabetes, high cholesterol and blood pressure, all of which she controls with medication.

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

Troy is currently is 45 years of age, having been born in September 1967.

Rhonda is currently is 50 years of age, having been born in February 1963.

(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

Taking contributions into account is not a principle of reward and should not be permitted to degenerate into such a principle.

Whilst living in the deceased's property, Troy contributed money to pay power bills, assisted with maintenance around the house, cooked and cared for the deceased. He was also responsible for household tasks in the main house, such as vacuuming, moving furniture, changing light bulbs, mowing the lawn, maintaining the garden and outbuildings, washing the windows, painting and wallpapering the interior and painting the exterior of the house.

In 1984, Troy converted the two granny flats into one single unit ("the unit"). In 1986, Darren moved into the unit. Troy converted one of the kitchens to operate a hairdressing studio and also added a door to create internal access to a bathroom. He paid for the building materials and carried out the building himself. He continued to maintain and renovate the unit whilst residing there.

Between 1986 until 1994, and subsequently from 2001, Troy would cook and share an evening meal with Darren and the deceased. He looked after the deceased's hair dressing needs on a weekly basis. He also drove the deceased to and from outings to the local RSL Club. In the early 1990s, he provided post-operative care to the deceased upon her return from hospital.

Rhonda gives evidence that following the death of her grandfather in about 1978, she assisted the deceased to maintain the main house. At various times, she undertook such tasks as wallpapering the bedrooms, painting a bedroom and the bathroom, and assisting generally with maintaining the main house and the garden.

Furthermore, I accept that each contributed, as a grandchild, to the deceased's welfare.

Ronald gives evidence that he assisted the deceased with maintenance around the house. He was also appointed her Attorney and looked after her affairs until the appointment of the NSW Trustee & Guardian. For a period of time, he paid the amount of $200 per month on behalf of the deceased to enable her to continue to live in the nursing home.

I am satisfied that he made a significant contribution, financially and otherwise, to the welfare of the deceased.

Nicole, Ben, and Rhonda Margaret, each gives no evidence of any specific contributions.

(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

From about June 1978 until about September 1984, Troy lived with the deceased in her "main house". The deceased provided for him financially and emotionally. For example, she paid for groceries, utility bills, school uniforms, schoolbooks, a television and clothes. Troy gives evidence that his father contributed to Troy's upkeep during this period, although no specific details were provided. Troy did not pay any rent or board to the deceased during that time.

Later in 1984, Troy moved into one of the two granny flats located adjacent to the main house ("the first granny flat"). (There is another granny flat located on the property ("the second granny flat"), in which Trevor resided, from about 1978 until about 1982). Troy resided in the first granny flat until November 2001. From about 1985, he paid rent to the deceased of about $20 or $30 per month.

In August 1976, Rhonda commenced living with the deceased in the main house. She resided there until October 1982. During that time, the deceased was Rhonda's primary caregiver, providing both financial and emotional support, such as by making her lunch, taking her to medical appointments, cooking meals, paying for groceries and utility bills, and purchasing clothes and schoolbooks.

In about 1978, the deceased paid $500 for Rhonda to undertake a course at the Receptionist Centre in Parramatta.

In early October 1982, Rhonda married her first husband, Stephen. She gives evidence that the deceased organised the engagement party. She also gives evidence that the deceased organised the wedding and paid for items such as the wedding dress, bridesmaid's dresses, accessories and hair styling.

In late October 1982, Rhonda and Stephen moved into the first granny flat and commenced to pay the deceased rent of $50 per week.

In early October, Rhonda's first child, Sean, was born. She gives evidence that the deceased assisted her with cooking and cleaning and caring for him.

In June 1984, Rhonda and Stephen relocated to the Central Coast of New South Wales so that he could take up a promotion in his employment.

In December 1985, Rhonda separated from Stephen. She and Sean returned to live in the main house with the deceased. She gives evidence that the deceased provided emotional support during this time and also looked after Sean when she returned to work.

Rhonda also gives evidence that she received a financial benefit from the deceased with an in-kind value of between $4,160 and $6,000, being the saving of rent that would have otherwise been paid, or paid at market value.

In late 1986, Rhonda commenced a relationship with Mark Hodges, whom she later married. In about October 1987, Rhonda and Sean, with Mark, moved out of the main house to the property in Erskine Park. Thereafter, she did not reside with the deceased but would visit her regularly.

Ronald gives evidence, which Rhonda did not dispute, that she had withdrawn about $2,200 from the deceased's bank account (leaving only $95) to pay arrears on her car loan.

As a result of Trevor having died intestate, Troy and Rhonda would receive a share of the deceased's estate passing to Trevor's estate. I have earlier noted that, leaving aside the issue of costs of these proceedings, each would have received slightly more than $18,000.

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

In the Report dated 23 October 2003, to the Guardianship Tribunal, there is a reference to a statement made by Rhonda Margaret to the effect that the deceased "had always said that she would look after the grandkids (financially)". In cross-examination, Rhonda Margaret confirmed that the deceased had said that to her "once or twice" and that when she had made the statement, the deceased had been referring to the three children of Trevor.

The Defendant, who was present when Rhonda Margaret had made the statement, did not disagree with it when it was made at the Guardianship Tribunal. He was asked about the deceased's statement in the following exchange:

"Q. Do you agree that the deceased said she would always look after the plaintiffs financially?

A. Yes."

(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

I have earlier referred to how the deceased maintained each of Troy and Rhonda and the basis upon which she did so.

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

This sub-section, if considered, calls for consideration of the legal or moral liability of others to maintain a person applying for a family provision order out of the deceased's estate.

There is no other person liable to support Troy or Rhonda. I have referred to the evidence of each relating to the person or persons with whom each cohabits.

Furthermore, there is no parent to whose estate Troy and Rhonda may look for provision. Neither received any provision from either parent's estate. Trevor inherited his wife's (their mother's) estate when she died in 1976 and his estate, such as it was, passed to Rhonda Margaret upon his death in 1996. Rhonda Margaret gave evidence that after payment of debts and the sale of all property (at least some of which was jointly held), she received about $60,000.

(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. The Act does not limit the consideration of "conduct" to conduct towards the deceased. Nor is it limited to character or conduct of the applicant such as to disentitle him, or her, to the benefit of any provision. In referring to character and conduct of an applicant, the Act also contemplates good conduct as it would constitute an injustice if such a factor were not taken into account.

I have dealt with the relationship of each Plaintiff and the deceased earlier in these reasons. There is no evidence to suggest any conduct of the type towards the deceased that might disentitle him, or her, to relief under the Act.

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

There is evidence of the Defendant's conduct towards the deceased. Ronald had an excellent relationship with her. He was trusted by the deceased to hold her Power of Attorney. He helped fund the deceased's expenses in circumstances where her pension was insufficient. He told the Guardianship Tribunal that he had to resume working part-time after he had retired because he could not afford the extra fees out of his pension.

I am satisfied that he was a loving and dutiful son. I remember, also, that he is a chosen object of the testamentary bounty of the deceased.

I have also referred to Rhonda Margaret, Nicole and Ben. There is no relevant conduct of each before, or after, the deceased's death.

(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

As stated, there is no dispute that each Plaintiff is an eligible person and that there are factors that warrant the making of his, and her, application.

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 the Court is considering the application, adequate provision for the proper maintenance or advancement in life of each Plaintiff has not been made by the Will of the deceased.

The Defendant accepted, in my view, correctly, that each of Troy and Rhonda has a "need". Each does not have, and probably will not be able to acquire, to any substantial extent, the financial ability to deal with the exigencies and vicissitudes of life. In addition, as was submitted by the Plaintiffs, they have lost any possibility of immediate, or continuing, support from either of their parents. Each has no capital fund for the exigencies of life.

In that context, according to prevailing community standards, the deceased ought to have made some provision for each of them. I am satisfied, for the purposes of s 59(1)(c) of the Act, that adequate provision for the proper maintenance, education or advancement in life has not been made for each of the Plaintiffs, by the deceased, because the effect of her Will is such that each receives a very modest amount (at best about $18,000) as a result of Trevor's death on intestacy.

Turning then to s 59(2), namely the question what provision "ought to be made for the maintenance, education or advancement in life" of each of the Plaintiffs having regard to the facts known to the Court, the real area of concern is how to deal with the claim of each, whilst bearing in mind the competing claim of the Defendant.

Although there were no submissions, in relation to each Plaintiff receiving unequal provision, this is a case where each should not receive an equal amount by way of lump sum, provision. The financial resources of each are different and this should be reflected in the provision made. In determining the quantum of that provision, I also bear in mind that Troy received substantial assistance from the deceased, by her provision of accommodation, over many years.

In my view, Troy should receive a lump sum of $85,000, which amount will provide a nest egg for him for the future and which will enable him to pay off his debts. That amount should be calculated taking into account what he receives from Trevor's estate. In other words, the amount he should receive out of Trevor's estate should be $85,000 in total.

Rhonda should receive a lump sum of $75,000, which amount will provide a nest egg for her for the future or will enable her to pay off some of her debts. That amount should be calculated taking into account what she receives from Trevor's estate. In other words, the amount she should receive out of Trevor's estate should be $75,000 in total.

I turn then to how the burden of the provision for each of Troy and Rhonda should be borne. In my view, it should be borne entirely out of the share of the estate passing to Trevor's estate passing to Rhonda Margaret. The amount to which each of Nicole, Ben and Todd receives should be calculated first, and paid to each, before provision is made to each of the Plaintiffs.

It may also be necessary to designate property as notional estate in order to pay some of the costs of the proceedings.

Using the amounts referred to earlier as a guide only, the value of the actual estate held by the solicitors for the Defendant is currently $339,479. The value of the estate distributed to Ronald was $332,157. Then, assuming there had been no distribution to Ronald, and ignoring any interest that would have accrued on the amount that was, in fact, distributed to him, the current value of the net distributable estate would have been $671,636. Then, deducting the balance of costs and disbursements of the proceedings (in total, $111,650), there would be $559,986. Distributing the estate equally as provided for in the deceased's Will, Ronald would receive $279,993. He has, in fact, received, $52,164 more than he would have received and it is that amount (or the amount after more precise calculations are done) which should be designated as notional estate, should such an order be necessary.

Then, Trevor's estate, will be entitled to receive $279,993, from which the lump sum payable to each of Troy and Rhonda will be paid (in total, $160,000), leaving a lump sum of $119,993. That amount should be distributed to Rhonda Margaret, after the entitlement of Todd, Ben and Nicole has received the amount to which he and she would be entitled on Trevor's intestacy.

I direct the parties, within 14 days, to bring in short minutes of order to give effect to the matters referred to below:

(i) Having found that the Plaintiff, Troy Keith Nicholas is an eligible person, that there are factors which warrant the making of his application and that the provision made for him in the Will of the deceased is inadequate for his proper maintenance or advancement in life, order that he is to receive a lump sum of $85,000 out of the estate of the deceased.

(ii) Having found that the Plaintiff, Rhonda Lee Hodges is an eligible person, that there are factors which warrant the making of her application and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, order that she is to receive a lump sum of $75,000 out of the estate of the deceased.

(iii) The burden of the provision made for each Plaintiff, should be borne out of the share of the residuary estate of the deceased passing to the estate of Trevor Nicholas. Then, it should be borne entirely out of the share of the deceased's estate passing to Trevor's estate, which devolves to Rhonda Margaret. Each of Todd, Ben and Nicole, should receive the whole of the share of the deceased's estate passing to Trevor's estate to which he, or she, is entitled on Trevor's intestacy.

(iv) No interest is to be paid on the lump sum if that lump sum is paid within 21 days of the making of orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment.

(v) The costs of the Plaintiffs, calculated on the ordinary basis, should be paid out of the estate (and notional estate), of the deceased before the calculation of the amount payable to Ronald and to Trevor's estate and before the lump sum for each Plaintiff is deducted.

(vi) The costs of the Defendant, calculated on the indemnity basis, should be paid out of the estate (and notional estate) of the deceased before the calculation of the amount payable to Ronald and to Trevor's estate and before the lump sum for each Plaintiff is deducted.

(vii) To the extent that the Defendant has received, by distribution, a share of the deceased's estate greater than that to which he is entitled, designate that amount as the notional estate of the deceased.

(viii) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the costs of the proceedings.

**********

Amendments

27 August 2013 - Date of Probate being granted amended from 21 April 2011 to 7 June 2011

Amended paragraphs: 10

Decision last updated: 27 August 2013

Medium Neutral Citation:	Nicholas v Nicholas [2013] NSWSC 697
Hearing dates:	20 May 2013
Decision date:	04 June 2013
Jurisdiction:	Equity Division
Before:	Hallen J
Decision:	Direct the parties, within 14 days, to bring in short minutes of order to give effect to the matters referred to in Paragraph 251 of these reasons for judgment.
Catchwords:	SUCCESSION - FAMILY PROVISION - The Plaintiffs, two grandchildren of the deceased, each applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant the son of the deceased, to whom Probate of the deceased's Will was granted and to whom the estate left, in equal shares, with another son who predeceased the deceased - Meaning of "beneficiary of the deceased person's estate" - Deceased son the father of the Plaintiffs - That each Plaintiff is an eligible person and that there are factors which warrant the making of his and her application not in dispute - Whether adequate and proper provision not made in Will of the deceased for each Plaintiff - Nature of family provision order to be made - How the burden of provision made in favour of each Plaintiff and the costs ordered to be paid should be borne
Legislation Cited:	Civil Liability Act 2002 Family Provision Act 1982 Probate and Administration Act 1898 Property (Relationships) Act 1984 Succession Act 2006 Succession Amendment (Family Provision) Act 2008 Uniform Civil Procedure Rules 2005
Cases Cited:	Alexander v Jansson [2010] NSWCA 176 Allardice, In re; Allardice v Allardice (1910) 29 NZLR 959 Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 Bartlett v Coomber [2008] NSWCA 100 Borebor v Keane [2013] VSC 35 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Bowyer v Wood [2007] SASC 327; (2007) 99 SASR 190 Cameron v Read (1887) 13 VLR 849 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54 Estate of the late Harrigan, Re; Cowmey v Whibley [2012] NSWSC 291 Foley v Ellis [2008] NSWCA 288 Franks v Franks [2013] NSWCA 60 Gardiner v Gardiner (NSWSC, 28 May 1998, unreported) Gonzales v Claridades [2003] NSWSC 508; (2003) 58 NSWLR 188 Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Hakim, Re Estate of; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223 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 McCosker v McCosker (1957) 97 CLR 566 Mayfield v Lloyd-Williams [2004] NSWSC 419 Nowak v Beska [2013] NSWSC 166 O'Brien v McCormick [2005] NSWSC 619 O'Dea v O'Dea [2005] NSWSC 46 Oldereid v Chan [2013] NSWSC 434 Palaganio v Mankarios [2011] NSWSC 61 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 Sammut v Kleemann [2012] NSWSC 1030 Sayer v Sayer [1999] NSWCA 340 Scarlett v Scarlett [2012] VSC 515 Shaw v Shaw [2003] VSC 318; (2003) 11 VR 95 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (NSWSC, 16 December 1996, unreported) Stott v Cook (1960) 33 ALJR 447 Szypica v O'Beirne [2013] NSWSC 297 Tsivinsky v Tsivinsky [1991] NSWCA 269 Thompson v MacDonald [2013] VSC 150 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported)
Category:	Principal judgment
Parties:	Troy Keith Nicholas (first Plaintiff) Rhonda Lee Hodges (second Plaintiff) Ronald William Nicholas (Defendant)
Representation:	Counsel: Mr J Clifton (Plaintiffs) Mr L Ellison SC; Ms T Fishburn (Defendant) Solicitors: Dooley & Associates (Plaintiffs) Maclarens Lawyers (Defendant)
File Number(s):	2012/103207