Nowak v Beska - [2013] NSWSC 166

Supreme Court

New South Wales

Medium Neutral Citation: Nowak v Beska [2013] NSWSC 166
Hearing dates: 20 February 2013
Decision date: 06 March 2013
Jurisdiction: Equity Division
Before: Hallen J
Decision:
(i) Having found that the Plaintiff is an eligible person; being satisfied 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 receive out of the estate of the deceased, a lump sum of $60,000.
(ii) Order that the provision made for the Plaintiff should be borne by the residuary estate.
(iii) Order that no interest be paid on the lump sum of money if it is paid within 14 days of the making of these orders, or within such other time as the parties agree or the court otherwise 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.
(iv) Subject to any further submissions, order that the Plaintiff's costs, calculated on the ordinary basis, and the Defendants' costs, calculated on the indemnity basis, be paid out of the estate of the deceased.
(v) Order that the Defendants be restrained from disbursing any of the funds held in the estate without first having paid the lump sum ordered by way of provision for the Plaintiff and also her costs of the proceedings.
(vi) For the purposes of (v), it will be satisfactory compliance with orders (i) and (iv)(so far as it relates to the Plaintiff's costs) if the Defendants pay to the Plaintiff, or as she may direct, the lump sum ordered by way of provision for her in (i) above, and any interest accrued thereon, and also pay to her solicitors, to be held by them in trust pending agreement of the parties, or the completion of assessment of the Plaintiff's costs calculated on the ordinary basis, the amount of $37,500.
(vii) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the matters referred to in order (iv) above.

Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiff, the sister of the deceased, seeks a family provision order out of the estate of the deceased under the Succession Act 2006 - The Defendants, were friends and carers of the deceased, the executors to whom Probate granted and sole beneficiaries named in Will - No dispute as to Plaintiff's eligibility - Dispute as to factors warranting the making of the application - Whether to make a family provision order - If order for provision made, how the burden of that provision should be borne - Part of the deceased's estate distributed by Defendants - Breach of inter partes undertaking by Defendants
Legislation Cited: Family Provision Act 1982
Practice Note SC Eq 7
Property (Relationships) Act 1984
Probate and Administration Act 1898Succession Act 2006Succession Amendment (Family Provision) Act 2008
Uniform Civil Procedure Rules 2005
Cases Cited: Alexander v Jansson [2010] NSWCA 176Allardice, In re; Allardice v Allardice (1909) 29 NZLR 959
Andrew v Andrew [2012] NSWCA 308
Barlevy v Nadolski [2011] NSWSC 129
Bartlett v Coomber [2008] NSWCA 100
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Brown v Faggoter [1998] NSWCA 44Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Curran v Harvey [2012] NSWSC 276
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639
Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89
ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193
Evans v Levy [2011] NSWCA 125
Faulkner v McLeod [2011] NSWSC 92
Fede v Dell'Arte [2010] NSWSC 1113
Fiorentini v O'Neil [1998] NSWCA 79
Foley v Ellis [2008] NSWCA 288
Fry v Lukas; Brown v Fry; Estate of Honey; Application of Fry [2011] NSWSC 1329
Fulop Deceased, Re (1987) 8 NSWLR 679
Gardiner v Gardiner (NSWSC, 28 May 1998, unreported)
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Graziani v Graziani (NSWSC, 20 February 1987, unreported)
Hampson v Hampson [2010] NSWCA 359
Kay v Archbold [2008] NSWSC 254
Keep v Bourke [2012] NSWCA 64
Kembrey v Cuskelly [2008] NSWSC 262
Jenkins v Livesey (1985) AC 424
Lumsden v Sumner [2012] NSWSC 1440
McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566
Mcgrath v Troy [2010] NSWSC 1470
Maio v Sacco [2009] NSWSC 413
Mayfield v Lloyd-Williams [2004] NSWSC 419
Palaganio v Mankarios [2011] NSWSC 61
Penfold v Perpetual Trustee [2002] NSWSC 648
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Porthouse v Bridge [2007] NSWSC 686
Puckridge, Deceased, In the Estate of (1978) 20 SASR 72
Sammut v Kleemann [2012] NSWSC 1030
Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stiles v Joseph (NSWSC, 16 December 1996, unreported)
Stott v Cook (1960) 33 ALJR 447
Taylor v Farrugia [2009] NSWSC 801
Thom v The Public Trustee (NSWSC, 2 April 1992, unreported)
Tsivinsky v Tsivinsky [1991] NSWCA 269
Vasiljev v Public Trustee [1974] 2 NSWLR 497
Verzar v Verzar [2012] NSWSC 1380
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (NSWSC, 17 May 1996, unreported)
Wheatley v Wheatley [2006] NSWCA 262
Wilcox v Wilcox [2012] NSWSC 1138
Category: Principal judgment
Parties: Anna Nowak (Plaintiff)
Krzystof Beska (first Defendant)
Katarzyna Beska (second Defendant)
Representation: Counsel:
Mr D M Jay (Plaintiff)
Mr R Hanrahan (Defendants)
Solicitors:
Adams & Partners (Plaintiff)
Drexler & Partners (Defendants)

File Number(s): 2011/316918

Judgment

The Nature of the Claim

HIS HONOUR: These reasons relate to proceedings commenced by the Plaintiff, Anna Nowak, who applies for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act") upon the basis that she is a person who was a member of the household of her sister, Emilia Von Rymon Lipinski ("the deceased"), and who was wholly, or partly, dependant upon the deceased at that, or other, particular time. 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 Plaintiff commenced the proceedings by Summons filed on 5 October 2011, 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 Defendants named in the Summons are Krzysztof Beska and Kataryzyna Beska, who are friends of the deceased, the executors appointed in her Will to whom Probate was granted, and the sole beneficiaries named in that Will.

Formal Matters

The following facts are uncontroversial.

The deceased died on 6 October 2010. She was then aged 84 years, having been born in March 1926.

The deceased was born in Poland. She lived there, with her family, until, in 1939, she was forced to travel to Germany and work as forced labour. When the deceased spoke to the Plaintiff later in life, the deceased told her that she had been forced to work on agricultural farms and sometimes in factories. Naturally, the experience had been traumatic for the deceased and she did not often talk about those years.

At about the time that the deceased was taken from her family, her mother died. The Plaintiff continued to live with her father and her brother. They, too, struggled to survive during the War years.

In 1946, the Red Cross located the deceased and she returned to her family in Poland.

The Plaintiff was married to Kazimierz Nowak in about 1949. They had two children, Ted, in 1953, and Barbara, in 1958.

In 1960, the deceased migrated to Australia alone. She married Bruno Lipinski in 1961. Bruno died in January 2004. There were no children of their marriage. (The deceased did not tell the Plaintiff of Bruno's death although a mutual friend did.)

The deceased left a Will that she made on 15 September 2008, Probate in common form of which was granted, to the Defendants, on 22 December 2010. The deceased left the whole of her estate to the Defendants, as tenants in common in equal shares. No provision was made for the Plaintiff, and she was not referred to, otherwise, in the deceased's Will.

The only property of the deceased at the date of her death disclosed by the Defendants in the Inventory of Property attached to the Probate document, was real estate situated at St Clair ($450,000), and furniture, jewellery and personal items (of no commercial value). (I have omitted any reference to cents and shall continue to do so.)

Mrs Beska, when cross-examined, gave evidence that, at the date of death, the deceased and she held a joint savings account into which the deceased's pension had been paid (and into which account she said she had made some deposits). Mrs Beska also disclosed that there was about $40,000 in that joint account at the date of the deceased's death, and that, subsequently, she had retained the funds in the joint account. (I shall return to the topic of the Defendants' non-disclosures of this, and other, matters later in these reasons.)

The St Clair property owned by the deceased at the date of her death was transmitted into the name of the Defendants in January 2011. They sold the St Clair property in about February 2012 for $400,000. After the payment of costs and expenses of sale, the net proceeds were $390,000.

The Defendants held $390,000 in a term deposit, for 3 months, from 7 February 2012, at an interest rate of 5.6 per cent per annum. The amount of interest generated on this term deposit, although not disclosed by them, was calculated to be $5,460.

Part ($140,000) of the net proceeds of sale of the St Clair property, was distributed to the Defendants in May 2012. They used this amount to purchase an apartment in Poland. (By then, of course, the Plaintiff had commenced the proceedings. There was evidence that the Defendants were aware of the Plaintiff's claim as early as October 2011.)

On 7 May 2012, the Defendants deposited the balance of the net proceeds of sale ($250,000) in a term deposit, for 5 months, earning interest of 5.2 per cent per annum. The amount of interest generated on this term deposit, although not disclosed by them, was calculated to be $5,416.

At about this time, the Defendants gave an undertaking to the Plaintiff in writing. The Defendants' solicitors sent the undertaking to the Plaintiff's solicitor under covering letter dated 11 May 2012. The letter stated:

"...

A sum of $250,000.00 has been deposited by our clients on behalf of the estate to a fixed term deposit of which details are enclosed with this letter and which expire (sic) on 7 October 2012.

Our clients undertake to retain the funds in the suitable term deposit attracting interest in order to alleviate the additional costs to the estate generated by your client's belated application for provision.

There is no dispute that these funds will be properly regarded as notional state [sic] and would in any event be source [sic] of funds to fulfil any order made by the court.

We confirm that the personalty listed in the inventory to the probate consisting of jewellery and other personal items for collection."

The written undertaking given by the Defendants to the Plaintiff was in the following terms:

"We Krzysztof & Katarzyna Beska, the executors and trustees of the estate of the late Emilia Lipinska do hereby undertake to retain a fund of $250,000.00 on term deposit and not to deal with or otherwise disperse those funds before resolution of the claim for family provision made by Anna Nowak without giving notice thereof."

A copy of the Account Confirmation Receipt, bearing stamp 11 May 2012, setting out the duration of the term deposit as well as other details referred to above, was included with the letter and written undertaking.

Despite that undertaking, the Defendants say that the gross amount currently held on account of the estate, at the date of hearing, is $170,000. They admit that, since they gave the undertaking to the Plaintiff, they have used at least $80,000 for their "ordinary living expenses" (between October 2012 and January 2013).

The Defendants produced no Account Confirmation Receipt showing the deposit of any part of the $250,000 between 7 October 2012 and 7 January 2013. Accordingly, it is not possible to precisely calculate the interest that would have been earned for this period. Assuming an interest rate of about 4.75 per cent (an estimate based on the mean of interest rates on a term deposit before and after this period), the estimate of interest would be about $2,968.

The Defendants deposited $170,000 in a term deposit, for 3 months, from 8 January 2013, at an interest rate of 4.35 per cent per annum. The amount of interest generated on this term deposit, although not disclosed by them, was calculated to be $1,848.

The Defendants assert that about $9,500 will need to be paid to them out of the deceased's estate for the cost of a burial plot ($2,500) and the funeral expenses ($7,000), which they paid personally. Other than the costs of the proceedings, there are no other liabilities of the estate to be paid.

It follows, that the value of the net estate, ignoring the interest that would have been earned on estate moneys deposited, and deducting the funeral expenses referred to, would be in the order of $160,500.

In calculating the value of the actual estate, finally available for distribution, the costs of the proceedings should be considered, since the Plaintiff, if successful, normally, will be entitled to an order that her costs be paid out of the estate of the deceased, whilst the Defendants, as executors, irrespective of the outcome of the proceedings, normally, will be entitled to an order that their costs be paid out of the estate.

The solicitor has estimated the Plaintiff's costs and disbursements of the proceedings, including counsel's fees, calculated on the ordinary basis, to be about $37,500 (inclusive of GST and upon the basis of a one day hearing).

The Defendants' solicitor has estimated their costs and disbursements of the proceedings, including counsel's fees, calculated on the ordinary basis, to be about $35,000 (exclusive of GST and upon the basis of a one day hearing). Their costs and disbursements, calculated on the indemnity basis, are estimated to be $45,000 (inclusive of GST and upon the basis of a one day hearing).

The parties, thus, accept, for the purposes of the hearing, that I should determine the Plaintiff's application upon the basis that the estimated value of the net distributable estate, after the payment of the estimated legal costs and expenses of each of the parties, will be about $78,000.

Because a significant part of the deceased's estate has been distributed, it may have been necessary to consider whether an order designating such property as notional estate was required if the order for provision, and costs, were greater than the amount remaining in the estate. In view of the orders I propose to make in favour of the Plaintiff, it is not necessary to discuss the principles that apply in respect of notional estate so far as it relates to property that has been distributed. There will be sufficient to satisfy the lump sum provision order and the order for her costs out of the amount held on behalf of the estate.

The parties agreed that in the event that the Plaintiff were successful, the usual costs orders should be made, but that I should allow each an opportunity, at the time of delivering reasons, to make submissions to vary the usual costs order. I am prepared to follow that course and, following further submissions, the costs order made may be varied, if appropriate.

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

The only person who is, or who may be, an eligible person, within the meaning of the Act, is the Plaintiff. The Defendants do not assert that either he or she is an eligible person. However, they advance the case that as chosen objects of the deceased's bounty, they should be considered as competing claimants.

Other Established Facts

I am satisfied that the following facts are agreed or have been established by the evidence.

The deceased met the Defendants in about 1990, which is about 20 years before she died. They became friends and the Defendants later became the carers of Bruno and the deceased, and then the deceased only during her last years. The Defendants washed, did the house work, the gardening, the toileting and the bathing of the deceased, took her to the doctor and to church, prepared food for her, and fed her when she could not eat by herself. Mr Beska assisted about the deceased's home by installing a railing and alarm by her bed. In the year prior to her death, the deceased was essentially bed-ridden and required more care on a daily basis, which care the Defendants provided.

Other witnesses give evidence of the assistance provided by the Defendants to the deceased and the appreciation that the deceased expressed about the Defendants' care and consideration for her.

In April 1998, Bruno and the deceased gave the Defendants a block of land (which I shall describe as "Lot 103") at St Clair. (The Transfer shows a consideration of $1.00.) The Defendants built a house on the land and in about 1999, moved in.

At the hearing, the Defendants gave evidence that they still live in the house and that it is currently worth $350,000. (The land is currently unencumbered.)

At about this time, the deceased had a conversation with Magdalena Piotrowski, a close friend, in which the deceased said:

"Bruno and I have given Krzystof and Katarznya a block of land nearby so that they can build a house and live close to us. They will look after us when we need and we will give our property to them after we die."

In September 2002, Bruno and the deceased gave the Defendants another block of land (which I shall describe as "Lot 102") at St Clair. (The Transfer shows a consideration of $1.00.) This information had not been disclosed by the Defendants in any of the affidavits sworn by them, or either of them, which were read in the proceedings. However, documents tendered support these facts, which were admitted during cross-examination.

The Defendants sold Lot 102 in January 2012 for $225,000. This information, also, had not been disclosed by the Defendants in any of the affidavits sworn by them, or either of them, which were read in the proceedings. However, documents tendered support these facts, which were admitted during cross-examination.

The deceased, in February 2004, signed a document, written in the Polish language, the translation of which is:

"I, Emilia Lipinski, wife of late Bruno Lipinski, state herein that only these persons that were included in the list of the testament that was constituted by myself, Emilia Lipinski and my late husband, Bruno Lipinski, will receive from the estate.

If, whoever wanted to apply for the estate, the one has no right to application."

The deceased appointed the Defendants her Attorneys pursuant to a General and Enduring Power of Attorney dated 18 April 2005. They were also appointed her enduring guardians pursuant to an Appointment of Enduring Guardians dated 19 April 2005.

In February 2007, the deceased signed a letter addressed "To whom it may concern" stating:

"...

I, Emilia Lipinski of xxxx, St Clair declare that it is my final wish that all beneficiaries of my last will and testament uphold and respect my decisions of bequest."

In early 2010, the deceased said to the Defendant, Mrs Beska: "When I die, I want my gravestone to be inscribed that I was the loving wife of Bruno and the cherished mother of you and Krzystof". The Defendants complied with this request.

The Witnesses

In the present case, the ambit for dispute about matters that are fundamental to the Plaintiff's claim was not great. The basic facts about the family relationships and the financial and domestic circumstances of the Plaintiff were not in substantial dispute.

However, as there were some disputes of fact relating, principally, to the relationship of the Plaintiff and the deceased, that I have to decide, I should set out reasons for preferring the Plaintiff's evidence to that of the Defendants.

I found the Plaintiff to be a generally truthful witness. She did not exaggerate the contact that she and the deceased had, particularly after 1988. She stated, for example, that after her husband's death, the deceased and Bruno did not continue to visit her for very long and that she thought that they could have visited her more, particularly since she was lonely.

I accept the Plaintiff's evidence about the nature of her relationship with the deceased. In particular, I accept her evidence that it was the deceased who invited her to the deceased's 80th birthday party, and that she (the Plaintiff) did not intend uninvited.

I also found that the Plaintiff was realistic about her needs, rather than exaggerating them, when she gave her oral evidence. I shall refer to that evidence later in these reasons.

The Plaintiff's daughter, Barbara, was also cross-examined. It was clear from the nature and duration of the cross-examination, that there was no serious challenge to the contents of her affidavit. I accept her, also, as a witness of truth.

Each of the Defendants was cross-examined. I was unimpressed with the evidence given by each of them. Some examples of the conduct of one or both suffice to justify this view are sufficient:

(i) The Defendants had each given a solemn undertaking to the Plaintiff, in writing, the significance of which was understood. Neither Defendant provided any satisfactory reason for not having complied with the undertaking.

(ii) The amount that was spent by them following the giving of the undertaking reduced the amount held by about one-third.

(iii) There had been no disclosure of the existence of the joint bank account in the name of the deceased and Mrs Beska at the date of death, or the amount held in that account at that time. No bank records were produced corroborating Mrs Beska's evidence that it was a joint account, or one into which she had also made payments. She did not disclose, until cross-examination, that she had retained that amount following the death of the deceased.

(iv) The Defendants did not disclose the transfer to them by Bruno and the deceased of Lot 102; that they had sold Lot 102 at about the same time as they had sold the deceased's property at St Clair; or that the sale price of Lot 102 was $225,000. Nor did they disclose what they had done with the proceeds of sale.

(v) Mr Beska had not disclosed the receipt by him of various amounts, in about 2009, by way of settlement of a compensation claim, or by way of superannuation payments. Nor did he disclose what he had done with those amounts. The amounts were substantial.

(vi) The Defendants did not disclose the interest earned on the term deposits.

(vii) The Defendants failed to comply with a notice to produce that had been served on behalf of the Plaintiff, the receipt of which each acknowledged.

(viii) The Defendants did not disclose, in the affidavits relied upon, their complete financial resources.

The Defendants provided no satisfactory explanation for the non-disclosures. Leaving aside the obligation of a deponent, in making an affidavit, which obligation is the same as when one is giving evidence in the witness box, namely to tell the truth and the whole truth (as stated in ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193, at 197, per Young J; referred to with approval in Mcgrath v Troy [2010] NSWSC 1470, at [124] per White J; Maio v Sacco [2009] NSWSC 413, at [25], per White J), reference should also be made to s 60(2)(c) and (d) of the Act, each being a matter that the court may take into account.

Furthermore, as Lord Brandon said in Jenkins v Livesey [1984] UKHL 3; (1985) AC 424, at 437:

"I stated earlier that, unless a court is provided with correct, complete and up-to-date information on the matters to which, under section 25(1), it is required to have regard, it cannot lawfully or properly exercise its discretion in the manner ordained by that subsection. It follows necessarily from this that each party concerned in claims for financial provision and property adjustment (or other forms of ancillary relief not material in the present case) owes a duty to the court to make full and frank disclosure of all material facts to the other party and the court. This principle of full and frank disclosure in proceedings of this kind has long been recognised and enforced as a matter of practice. The legal basis of that principle, and the justification for it, are to be found in the statutory provisions to which I have referred."

I do not accept the evidence of either of the Defendants where it conflicts with that of the Plaintiff, or where it conflicts with that of witnesses called on her behalf, at least so far as it relates to the relationship of the Plaintiff and the deceased. I have earlier referred to their evidence relating to their conduct towards Bruno and the deceased, the broad substance of which has been corroborated by other witnesses, which evidence I do accept.

The only other witness cross-examined was Alphonse Baranowski. His evidence, which for the most part was not challenged, supports the Defendants' conduct towards Bruno and the deceased. I have had regard to the evidence of other witnesses, who were not cross-examined.

The Duty of Administrators

In cases in which a family provision order is sought, the administrators have certain duties. They should identify as fully, and as early as possible, the actual estate, the property that does, or which may, form part of the notional estate of the deceased, the condition and value of the property disclosed, at the date of death and at the date of hearing, and the exact burden of the costs order likely to fall on the estate: See, Practice Note SC Eq 7, Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 503; Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639 at 654 and Fiorentini v O'Neill [1998] NSWCA 79.

In Faulkner v McLeod [2011] NSWSC 92, I stated, at [79]:

"It must not be forgotten that the Defendant is the administrator of the deceased's estate and was duty bound to provide to the court, and to the Plaintiff, precise details of the nature and value of the deceased's estate at the date of death and at the hearing: Fiorentini v O'Neill [1998] NSWCA 79. That obligation would include, in this case, how cash held by the deceased had been spent by the Defendant before the hearing of the proceedings."

As is clear from what I have written above, the Defendants did not comply with this duty.

Duty of Beneficiary as a competing financial claimant

In Sammut v Kleemann [2012] NSWSC 1030, I wrote:

"[134] There is no statutory mandate requiring a beneficiary, or beneficiaries, to provide such details of his, or her, financial circumstances to the court. A beneficiary is entitled to elect to remain silent in relation to all matters, and in particular, as to his, or her, financial resources (including earning capacity) and financial needs, both present and future. In addition, as here, a beneficiary may expressly decline to submit that he, or she, has a competing financial need and provide no evidence of financial resources or needs.

...

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

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

Where a beneficiary does disclose his, or her, financial resources with a view to asserting that he, or she, is a competing financial claimant upon the bounty of the deceased, then that beneficiary has the same obligation to present full and frank evidence of those resources to the Court.

It is fundamental to the operation of Chapter 3 of the Act that the obligation of full and frank disclosure of financial resources on an applicant, on an administrator in relation to the nature and value of the estate, and on any beneficiary who advances his, her, or its, financial circumstances to ground a competing claim under the Act, is performed. It matters little whether the non-disclosure is wilful or accidental, or whether it is a result of misfeasance, or malfeasance or nonfeasance. The obligation is absolute because of the duty of the court to consider all of the circumstances of the case.

Accordingly, whilst I shall consider the claims of each as a beneficiary, and as a chosen object of the deceased's testamentary bounty, as a person with a legitimate claim on the bounty of the deceased, and also as a person whose interest in the estate may bear the burden of the order made in favour of the Plaintiff, I do not consider that either is a competing financial claimant on the bounty of the deceased.

The Statutory Scheme

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

The wording of the Act is similar to the wording of the former Act. However, it is necessary to remember the warning of Kirby P in Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100, at 76,304:

"Purposive construction of the Act

There is always a danger where a reformed Act borrows heavily upon ideas which previously existed in the common law or in an earlier statute, that lawyers will approach the construction of the Act affected by the previous law. Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 2 NSWLR 475, 478. That danger is but an illustration, in the specialised activity of law, of a universal phenomenon of psychology long established in relation to human perception generally. We tend to perceive what we expect. We expect that with which we are familiar.

There is a particular danger in the case of the Family Provision Act in construing its terms by reference to the law which developed around the Testators' Family Maintenance and Guardianship of Infants Act 1916. That Act was passed in earlier times to govern the entitlements of a testator's family, as narrowly defined. The definition by s 3(1) of that Act confined applications to those made by "the widow, husband or children of such persons". There was no mention in it of former spouses. Doubtless this was because, for the early part of this century, divorce was relatively infrequent and then based upon concepts of matrimonial fault which would make interference in the testamentary disposition of the deceased unlikely. When enacted, the statute was a radical interference in the power of testamentary disposition. That was a significant power over private property, the disturbance of which was regarded as highly exceptional."

Whilst the relevant amendments made by the Act are not as significant to those made by the former Act, it remains necessary to bear his Honour's warning in mind in construing the statutory framework. In doing so, a construction that promotes the purpose, or object, of the Act is to be preferred to a construction that would not promote that purpose or object. In my view, the principles applied by the courts to the former Act continue to apply, except to the extent that the Act otherwise requires.

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's power of disposition by his, or her, will. It is only if the statutory conditions are satisfied, that the court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate, to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary.

The key provision is s 59 of the Act. The court must be satisfied, first, that an applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made.

Relevantly, in this case, the Plaintiff relies upon the category of eligibility referred to in s 57(1)(e) of the Act, namely that she is a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased was a member.

It can be seen, from the sub-section, that there are two limbs. Relevantly, the first is a relationship of dependence, whether wholly or partial, upon the deceased; the second is being "a member of the household of which the deceased person was a member". (The difference between this sub-section and the former Act, which referred to "a member of a household of which the deceased person was a member", is not relevant in the present case.)

There is no dispute, in this case, that the Plaintiff was a member of the household of which the deceased was a member for a period of time. The precise period may be in issue, but the Act does not state any requisite period of time during which an applicant must be a member of the household. There is also no dispute that during part of the time that she was a member of the household of which the deceased was a member, the Plaintiff was at least partly dependent upon the deceased.

Where an applicant falls within the definition of eligible person 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)).

The Act does not specify the "factors which warrant the making of the application". As Pembroke J in Wilcox v Wilcox [2012] NSWSC 1138, noted at [16], "[N]o legislative assistance is given as to the intended scope or meaning of this enigmatic requirement".

However, in considering the meaning of what he described as "this poorly conceived and clumsily expressed subsection" in the former Act (which did not form part of the Draft Bill produced by the Law Reform Commission), M McLelland J said, in Re Fulop Deceased (1987) 8 NSWLR 679 at 68 (approved in substance by the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241) that the factors are factors which, when added to facts which render the applicant an eligible person, give him, or her, the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased.

In Re Fulop, McLelland J also said, at 683:

"In the case of Mr Fulop the main factor is that from an early age (about 4 years) he became a child of the family unit comprising the deceased and his father and remained so until he left home at 18 years of age in the normal course and thereafter the family relationship thus established was recognized on all sides as continuing as if Mr Fulop were a child of the deceased as well as his father."

In Graziani v Graziani (NSWSC, 20 February 1987, unreported), Cohen J, in dealing with an application by stepchildren, said, at 8-11:

"There is nothing in the section to indicate what is meant by "factors", or how far the Court has to take the matter in order to warrant the making of the application ....

... In order to look at the factors which warrant an application in the case of a plaintiff who establishes that he or she is an eligible person under par (d) of the definition, it is necessary to look not only at the nature of the relationship, but the quality of it. The Court should consider the circumstances in which it arose and to some extent it must also look at the weight of the application which might lead to the finding that the plaintiff has been left without adequate provision for his or her proper maintenance, education or advancement in life. The circumstances must vary in every case and it would be foolish to seek to limit them in any way. Where, however, the plaintiff has established a position as a stepchild of perhaps a foster-child then there would be a number of relevant matters in my opinion which the Court should consider in deciding whether factors exist. These include the closeness of the relationship, that is whether it was one which might be properly described as parent and child, whether the plaintiff was brought up as a permanent member of the family, what was the age of the plaintiff when he or she became a member of that family, and the extent to which the plaintiff was supported by the deceased, whether it be financially, educationally or emotionally.

If a consideration of these matters leads the Court to the opinion that the plaintiff was brought up and treated as a child of the testator and if all of the other circumstances show that there may have been a moral duty on the part of that testator to provide for the plaintiff then there are factors which would warrant the making of the application. The presence of only some of these factors, or of others which have not been listed might also justify the Court's coming to the same opinion. The potential for inclusion in that part of the definition of 'eligible person' as is contained in par (d) is enormous. The range of persons who may be admitted is very great and it includes not only stepchildren but also parents, brothers and sisters, temporary foster children and many others who may have formed part of the household and for a period have been partly dependent upon the deceased. Accordingly it seems to me that those who were raised as part of the family as stepchildren would have less difficulty in establishing factors which warrant their application than would those at the other end of the spectrum who may have been members of the family for only a brief period and with only limited dependence."

Kirby P, in Tsivinsky v Tsivinsky [1991] NSWCA 269, in dealing with the section of the former Act, said, at 13:

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

In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard and Fitzgerald AJJA, there was the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test than that which the Court of Appeal approved in Churton v Christian.

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

"[7] This provision gives no clear indication of the nature of the factors which should be regarded as warranting the making of the application. Decision whether there are factors which warrant the making of the application is committed to the Court in extremely general language; the Court is to have regard to all the circumstances of the case (whether past or present). The effect is that a very broad power is given to the judge who hears the case to recognize and assess the significance of the circumstances of the case and what regard should be paid to them, what the factors are and what they warrant. There may be very cogent factors which demonstrate that the making of the application is warranted, but it is unlikely that this will often be the case, and the section commits to the Court a power of determination which is difficult to distinguish from a discretion of the broadest kind.

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

In Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89, Basten JA, with whom Allsop P and Ipp JA agreed, said of s 9(1) of the former Act:

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

More recently, in Evans v Levy [2011] NSWCA 125, Young JA, with whom Campbell JA and Sackville AJA agreed, said:

"[62] It would seem that what the drafter of the legislation of 1982 did was to endeavour to avoid some of the complications that had been found to exist with cases under the 1916 Act as to just who was an eligible person by broadening the category to a very extensive degree. However, to provide some sort of filter, s 9(1) was enacted so that, without the estate having to get into a great expense, the question of whether the application could possibly succeed would be determined early. Unfortunately, experience has shown that that was a vain hope.

[63] However, the intended result of the wide nature of para (d) of the definition of "eligible person" and s 9(1) is to seek to restrict people whose claims should proceed to a hearing to those who are in very similar categories to those who are within paras (a) and (b) of the definition.

[64] On s 9, the decision of M McLelland J in Re Fulop (dec'd) (1987) 8 NSWLR 679 has stood the test of time."

It can be seen that the trend of authorities does not favour the view suggested in Brown v Faggoter. With great respect, I also regard the views expressed in the authorities referred to by Windeyer J, Bryson AJ, Basten JA and Young JA as correct and propose, in the circumstances, to follow their decisions. I have done so in other cases: see, for example, Fede v Dell'Arte [2010] NSWSC 1113; Curran v Harvey [2012] NSWSC 276; Sammut v Kleemann. Other judges have done so as well: Barlevy v Nadolski [2011] NSWSC 129, per Slattery J, at [196]; Fry v Lukas; Brown v Fry; Estate of Honey; Application of Fry [2011] NSWSC 1329, per White J, at [82]; Wilcox v Wilcox at [16]; Christine Anne Lumsden v Ian Ross Sumner as executor of the estate of the late Dorothy Jean Lawliss [2012] NSWSC 1440, per Slattery J at [88].

Inadequacy of Provision

Then, if eligibility and, as is necessary in this case, factors warranting the making of the application are found, the court must determine whether adequate provision for the proper maintenance, education or advancement in life of the 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 has been said that the court carries out a two-stage process.

Allsop P in Andrew v Andrew [2012] NSWCA 308, has recently commented, at [6]:

"... the expression of the task in s 59 is subtly different from the previous legislation. A prohibition against making an order unless satisfied of circumstances of an evaluative character, is different in emphasis from a permission to make an order if satisfied of circumstances of an evaluative character... The exercise of power to make the order is conditioned on the Court being satisfied of certain things in s 59(1). The order that may be made is described in s 59(2). The two elements are described in s 60(1)(b) as "whether to make [an] ... order and the nature of any ... order." Section 60(2) provides a detailed body of considerations for the task in s 59."

Basten JA in Andrew v Andrew, at [26], put the differences this way:

"As appears from the language of the relevant provisions set out at [66]-[67] below, the Succession Act differs from the Family Provision Act in three significant respects. First, although both conferred similar powers on the Court, the conditions of their exercise differ. The Family Provision Act required that the Court "shall not make an order ... unless it is satisfied that" the provision made by the testator is "inadequate": s 9(2). The Succession Act provides that the Court "may ... make a family provision order ... if the Court is satisfied that" the testator has not made "adequate provision" for the applicant: s 59(1). The changes in language may have been intended to remove double negatives, but there is a resultant change in emphasis. The apparent effect is to widen the discretion vested in the court. That which could satisfy a court that the provision made is "not adequate", for the purposes of the Succession Act, might not have been sufficient to remove the prohibition under the Family Provision Act, which operated in the absence of affirmative satisfaction that the provision was "inadequate". There may well be no bright line boundary between adequacy and inadequacy."

Other than by reference to the provision made in 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) leaves undefined the norm by which the Court must determine whether the provision, if any, made is inadequate for the applicant's proper maintenance, education or 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 or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education or advancement in life of the applicant.

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

Under s 59(1)(c) of the Act, the time at which the court gives its consideration to the question 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 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 or advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 at [72] and at [77], per Buss JA.

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

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

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

"It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of 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] HCA 31; (1980) 144 CLR 490, Gibbs J said at, [18]:

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

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.

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.

It is an element in determining whether "adequate" provision has been made for the "proper" maintenance, education or 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). Whether the applicant has a "need" or "needs" is a relevant factor at the first stage of the enquiry.

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]."

As Callinan and Heydon JJ emphasised in Vigolo v Bostin, at 231 the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum" or "by looking simply to the question whether the applicant has enough on which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined.

In the event that the court is satisfied that the power to make an order is enlivened (i.e. it is satisfied that the applicant is an eligible person, and, where necessary, that factors warranting have been satisfied, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made by the will of the deceased and/or by operation of the intestacy rules), 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: s 59(2) and s 60(1)(b).

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.

Basten JA, in Andrew v Andrew, 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."

It seems to me that the two stage approach adopted in the myriad of cases determined under the former Act and under the Act, including Keep v Bourke [2012] NSWCA 64, enables me, despite what has been said by Basten JA, and until uncertainty is resolved, to continue to follow that approach in determining cases under the Act. As Allsop P said, "it may be an analytical question of little consequence" since what has to be decided by the Court is whether to make a family provision order and the nature of any order.

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

Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. For example, when considering eligibility under 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 only 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, s 60(2)(d) refers also to "earning capacity", which means no more than the capacity to find employment to earn or derive income.

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

Leaving aside the question of eligibility, the Court may have regard to the matters referred to in s 60(2) on "the discretionary question", namely whether to make an order and the nature of any such 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. I am comforted in reaching this conclusion 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."

Yet, the deceased and Bruno attended events involving the Plaintiff's family, including the wedding of the Plaintiff's daughter, Barbara, in 1992. The Plaintiff also attended family events involving the deceased and Bruno, including attending their 25th wedding anniversary.

Following the Defendants involvement in the deceased's life, the visits between the Plaintiff and the deceased lessened. They would speak on the telephone sometimes, but not often, because the deceased complained that she could not hear what the Plaintiff was saying. They would speak at Church, but not for very long. They would sometimes sit together and have a cup of coffee after the service.

After Bruno's death, in about 2004, the relationship between the Plaintiff and the deceased improved slightly. The deceased attended the deceased's 80th birthday party, as I have found, at the invitation of the deceased. On this occasion, they were sociable and happy.

Following the Plaintiff finding out that the deceased was unwell in about 2007, she made a greater effort to speak with her more often. However, it is clear that her attempts were not as regular as they might have been. However, their contact at Church continued.

In March 2009, the deceased attended the Plaintiff's 80th birthday. On this occasion, also, they were sociable and happy.

The Plaintiff visited the deceased several times while she was in hospital immediately prior to her death. Yet, it is acknowledged that it was never as close as it had been before about 1988.

The deceased did not tell the Plaintiff she was unwell. However, the Plaintiff found out from other Church members and spoke with the deceased who said that she had not wanted to worry the Plaintiff. On one occasion, this was raised, the deceased did tell the Plaintiff that she had been in hospital and that she had therapy. Following this conversation, the Plaintiff hugged the deceased.

Grace Parojus gives evidence that the deceased said to her:

"Anna is disdainful of me and I feel frustrated by that, as I had wished to have her by my side."

I should add for completeness that there was some evidence of the relationship between the deceased and the deceased's daughter, Barbara. This does not seem particularly relevant other than to disclose the general nature of the familial relationship whilst Barbara was growing up.

(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

There is no definition of the "obligations" or "responsibilities" to which the sub-section refers in the Act. Nor is either word in the sub-section preceded by the word "financial". One might conclude, however, that what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities owed to the applicant by the deceased.

The deceased had no legal or financial obligations or responsibilities to the Plaintiff. Nor does being the sister of the deceased, necessarily, give rise to any other obligation or responsibility to make adequate provision for the Plaintiff's proper maintenance or advancement in life. Equally, the deceased had no legal or financial obligations or responsibilities to the Defendants. In each case, however, she may have had a moral obligation to each.

(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

I have dealt with the nature and extent of the estate. It is a very small estate with, or without, a consideration of the distributions that have been made and with or without the interest added.

(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

The Plaintiff gives evidence of her current financial and material circumstances as follows. She is a widow (her husband passed away in 1991) and she has no dependant children. She currently has no assets of substance. She retired as a kitchen hand in 1985 aged 56. She accumulated no superannuation whilst working. She has no earning capacity because of her age.

She receives an age pension. Her total fortnightly income from the pension, as at February 2013, is $772. Her assets comprise a bank account with a small balance ($395) and some household effects. She spends most of her pension on food, living expenses, medication and entertainment in the Polish community. Her monthly expenditure ($1,380) is less than her monthly income ($1,544).

The car she owned was sold for scrap in 2012. She continues to repay $50 per fortnight on the loan made to purchase the car. There is currently $2,000 owing.

The Plaintiff's husband received an invalid pension from 1984. When he passed away she inherited his half share in their home. His estate had no other assets. The home was sold in about 2000. Of the net proceeds of sale ($125,000) $60,000 was spent renovating her daughter's home to add a bedroom, bathroom and laundry and a small kitchen and living area so as to accommodate the Plaintiff. The Plaintiff spent an additional $5,000 on plumbing and furnishings and gave a gift of $10,000 each to her children. (The expenditure on the home of her daughter may be regarded as a financial resource.)

The Plaintiff, in her affidavit, sought further provision from the estate to obtain a modest level of security in her old age. The claim is in respect of accommodation at the Blessed Frances Siedliska Retirement Village ($300,000), a fund to contingencies ($10,000 - $20,000) and medication ($10,000 - $20,000).

The Plaintiff did, however, give the following oral evidence on this topic:

"Q. When you sold your house in 2000 you moved in with your daughter, is that right?

A. WITNESS: Yes.

Q. You helped your daughter to renovate her house, is that right?

A. WITNESS: Yes.

Q. You spent about $65,000 on that?

A. WITNESS: Yes.

Q. And you gave each of your son and daughter a gift of money, is that right?

A. WITNESS: Yes. $10,000 for my daughter and $10,000 for my son. That's all.

Q. And that was all from the proceeds of the sale of the house that you and your husband had lived in, is that right?

A. INTERPRETER: Yes. Yes, it was after the sale.

A. WITNESS: After that house sale, when I sell my house, then I give it to my daughter 10,000 and to my son 10,000 and then the rest of them I try to build my house for myself in my daughter's place.

Q. And that would enable you to be close to your daughter, would it?

A. INTERPRETER: Yes. My daughter and my granddaughters and my beautiful, very good soninlaw and we live together.

Q. And was there an agreement between you and your daughter and her family that they will look after you if you were to be getting sick or anything like that?

A. WITNESS: Yes, yes.

Q. Or you needed help; there was?

A. INTERPRETER: Well, that's not but I feel I going to be with my daughter and I going to have very good life and a safe life and I know my daughter always comes to help me, anything I like. And that is like that now.

...

Q. Madam, do you remember I was asking you about an arrangement that you have with your daughter? You live in your house within her house. Do you remember those questions?

A. INTERPRETER: At the moment, yes.

Q. Are you happy with those arrangements?

A. WITNESS: Very much.

...

Q. There is nothing else that you need at the moment in your arrangement with your daughter, is there?

A. WITNESS: Nothing else.

Q. I think you said that you would like to go to a nursing home and that that might cost you $300,000, is that right?

A. WITNESS: Yes, yes if I need live in, more help for my health so I like to go there but not yet. I still good and my kids look after me.

Q. Do you agree that you would like to stay with your daughter for as long as possible?

A. WITNESS: Yes.

Q. And while you're with your daughter and you have got your pension money coming in you have got enough money to spend every week, haven't you?

A. WITNESS: Yes.

Q. And you have even got enough money to go to the Penrith Panthers when you feel like it for your entertainment?

A. WITNESS: Yes, yes, I enjoy myself everywhere I like to go. I enjoy my life and I happy and I go whatever I like."

During submissions, her counsel submitted that the Plaintiff needed a fund for exigencies, which fund should include enough to enable the payment of part of the amount required in the event that she moved into a retirement village or nursing home.

So far as it is known, the Defendants own property with an estimated value of "under $500,000". That property includes the property in Poland purchased for $140,000. They assert credit card debts of $40,000.

I have mentioned that I am not satisfied that what has been said by each is a full and accurate picture of his, her, or their, financial resources.

Mr Beska sustained an injury at work in 2006, which limited his ability to work. He currently works casually for AQIS. He hopes to continue to work with that company in the future. Mrs Beska said that she does not currently work but will have to go back to work in the future.

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

The Plaintiff, since 1999, has lived with her daughter and son-in-law. She does not pay board to them. She does make some contribution to utilities and she pays for her own food. If she borrows her daughter's car, she contributes to petrol costs.

The Plaintiff's son now lives with her because he is unemployed. Some of her expenses include items purchased for him (e.g. food).

The Plaintiff's daughter and son-in-law are not dependant upon her. Her son is, at least at the present time, partly dependant upon her.

(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

The Plaintiff says that she says that her health is poor. She suffers from high blood pressure, arthritis, high cholesterol and poor eyesight. As a result of those conditions, she moved in with her daughter in 1999. She takes various medications.

Mr Beska said that in November 2006, whilst working, he sustained an injury to his dominant right arm when he fell from the top of a shipping container. He has been unable to work on a full time basis since then, although more recently he has been able to perform some casual work.

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

The Plaintiff is almost 84 years of age, having been born in March 1929. The Defendant did not dispute that her life expectancy was about 8 years.

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

From 1963 to 1967, the Plaintiff and her family lived with the deceased and Bruno, on a poultry farm in St Marys. It was a 7 acre, working poultry farm with one freestanding three bedroom brick home at the premises. The Plaintiff and her family shared the home with the deceased and Bruno.

The Plaintiff worked on the farm as well as carrying out some domestic duties such as cleaning, dusting and vacuuming, washing and ironing. The deceased, generally, did the cooking for all. The Plaintiff would collect and wash eggs, dry store the eggs and place them into cartons. She describes the work that she did as "physically demanding".

The Plaintiff's husband milled and sacked the chicken feed, watering the chicken troughs, undertaking general maintenance on the property, cutting the grass, tending to a vegetable garden, building and fixing sheds, and generally tidying the property.

During 1964, the deceased and Bruno travelled for 3 months to Europe and Poland. During this time, the Plaintiff and her husband looked after the poultry farm. They did not handle the financial aspects of the business. They were not paid for their work during this period.

The deceased and her husband travelled again to Poland in 1966. Again they looked after the poultry farm for no pay.

During the time that the Plaintiff and her family lived on the poultry farm with the deceased and Bruno, neither she nor her husband received any remuneration. However, nor did they pay any board, rent or other expenses for food or otherwise to the deceased.

The Plaintiff accepts that she did not seek payment from the deceased as she "was thankful to [the deceased] for giving my family somewhere to live".

I am satisfied that during these periods the Plaintiff and her husband made some contribution to the conservation of the estate of the deceased. However, I bear in mind that the relevant periods were more than 40 years before the death of the deceased. I also bear in mind that the benefit that the Plaintiff and her family received by living on the poultry farm rent and board free.

I am satisfied also that as a sister of the deceased, the Plaintiff made some contribution to the welfare of the deceased. However, she acknowledges that their relationship was not as close as it might have been, after 1988, although it did improve after 2004.

(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

The deceased made provision for the Plaintiff and her family during her lifetime, by providing them with accommodation and food in the 1960's. I have referred to this matter above. Otherwise, the deceased made no provision for the Plaintiff during her lifetime or from her estate.

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

While this sub-section permits the court to accept evidence of the reasons for the provision, or lack of provision, it does not compel the Court to attribute any particular weight to that evidence, or to accept the deceased's statement as establishing the truth of what is asserted.

In this case, there is evidence of the statement and letter signed by the deceased, to which I have earlier referred. In addition, Mr Beska stated that in a conversation with Bruno, at which the deceased was present and did not demur, Bruno said:

"I appreciate how you have looked after me and my wife and that is the reason we wish to leave you and your husband all of our property when we die."

When the deceased attended upon her solicitor to make her Will, she described the Defendants as "like my children". Subsequently, the deceased repeated that she had left them the whole of her estate "because you have both done all that is necessary to take care of me".

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

The deceased did not maintain the Plaintiff, wholly or partly, for many years before her death. I have earlier referred to the provision of accommodation on the poultry farm.

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

Other than the Commonwealth government's responsibility to continue to provide the Plaintiff with a pension, there is no other person with a liability to support her.

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

Counsel for the Defendants acknowledged that there was no conduct of a disentitling nature, or of a nature that reduced provision that might be made for the Plaintiff, before or after the death of the deceased, that was relevant.

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

I have referred to the conduct of the Defendants towards the deceased and Bruno before her and his death.

Mrs Beska gave evidence of an undertaking not to deal with, or disperse, a sum of $250,000 from the deceased's estate, without giving notice to the Plaintiff. Despite that undertaking, and with no evidence that notice was given of the intention to make distributions, she freely admitted using a part of those funds for her and her husband's benefit. As noted previously, they consumed $80,000 in cash between October 2012 and January 2013. Earlier they purchased a property in Poland for $140,000, which had also been distributed to them with the knowledge of the Plaintiff's claim.

There is no evidence that the Defendants complied with the notice requirements for distributing the estate in s 93 of the Act. Certainly, at the time each of the distributions was made, they were well aware of the proceedings commenced by the Plaintiff.

(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 are two other matters that I consider relevant. The Plaintiff provided a gift of $10,000 each to her daughter and her son. The Plaintiff received an inheritance in about 2006 of approximately $9,897. She used that inheritance for her living expenses.

Determination

Being an "eligible person" is a necessary precondition to the court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. In this case, as stated, there is no dispute that the Plaintiff was a member of the household of which the deceased was a member or that she was partly dependent upon the deceased, at least during the period before about 1967. Thus, she is an eligible person within s 57(1)(e) of the Act.

There was a significant dispute that factors warranting the making of the application had been established. Counsel for the Plaintiff submits that there are such factors, namely:

"a. Anna's family and the Deceased and her husband lived together in the same household for four years and were, in effect, a single family unit. The Deceased treated Barbara (Anna's daughter) "...as if she were my own daughter".

b. Anna made a significant contribution to the Deceased's early financial success in Australia by reason of working on the Poultry Farm five days a week without pay for four years. That contribution assisted in building the Deceased's Estate. She also provided domestic assistance in this period.

c. The Deceased's husband has passed away and she had no children. Anna is the last living immediate relative of the Deceased: Pitkin v Henderson [2001] NSWSC 207. The Deceased has a niece (Barbara) and two nephews (Ted and Ryszard) but they have made no claim on the Estate.

d. The Deceased promised to reward Anna for the work she did on the Poultry Farm.

e. The strong relationship of dependence developed in the years of deprivation during and following the Second World War: Somogy v Kune [1999] NSWSC 1168.

f. The sole beneficiaries are unrelated to the Deceased and are not eligible persons.

g. The Executors have already benefitted from the Estate. In 1997 they received a block of land in St Clair from the Deceased and her husband which they built a home on."

Counsel for the Defendant submitted that there were no such factors. He wrote:

"Firstly, the relationship between the Plaintiff and the deceased ended in about1967, some 40 years before the deceased died. Thereafter there was no continuing contact between them of any significant kind, despite random and occasional meetings at church or other functions. The Plaintiff would submit that she made significant contributions by way of working on the farm as she felt "obligated" to the Deceased and the Deceased's husband for contributions they made to the welfare of the Plaintiff and her family. For example, the deceased sponsored the Plaintiff and her family's migration and the deceased's husband paid for their travel cost to Australia. Further, the Deceased and her husband provided free food and lodging to the Plaintiff and her family for a period of about 4-5 years. The Plaintiff does not argue that she or her family were forced to work or lacked the freedom to leave the deceased's household at any time should she or her family not be satisfied with the circumstances. The Plaintiff also claims that she and her family had the option to "stay with Kim's sister in Australia". However, she and her husband chose to stay in the deceased's household "for a little bit longer and then we will find a new place".

In 1967 the deceased and the Plaintiff went their separate ways and led their own lives. It is submitted that neither party made any contribution, thereafter to the welfare, or property, of the other. There was no continuing relationship between the Plaintiff and the deceased, or any provision of maintenance, or other, support. It could not reasonably have been intended, or expected, by either that maintenance or support would continue after death, especially when it is submitted that the Plaintiff estranged the deceased in a personal and social context. This has been deposed to in the Affidavits filed for the Defendants."

Overall, I am satisfied that there are factors warranting the making of the Plaintiff's application. I do not accept that the relationship of the Plaintiff and the deceased ended in 1967, or that "they went their separate ways" and "led their own lives". To the contrary, I find that there was a continuing relationship between them, although it might not have been as close as some siblings or as close as either of the deceased and the Plaintiff would have wished it to be.

I also consider that the factors referred to in (b), (c), (d) and (e) of the Plaintiff's submissions which I have repeated above, constitute such factors. These factors separately, and together, lead me to the view that a deceased person would generally regard a person such as the Plaintiff as a natural object of testamentary recognition. I am, therefore, satisfied that factors warranting the making of the Plaintiff's application exist.

Having established eligibility and factors warranting the making of the application, there is also no dispute that the proceedings were commenced within the time prescribed by the Act.

Then, the question for determination is whether, the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the Plaintiff, has not been made, relevantly in this case, by the Will of the deceased. (The operation of the intestacy rules is irrelevant.)

The deceased made no provision out of her estate for the Plaintiff.

In my view, in all the circumstances of the case, the jurisdictional threshold has been satisfied. It is clear that the Plaintiff has "needs". As stated above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence. By way of example, she has no capital sum to provide for the exigencies of life. She is almost 84 years of age. It is not suggested that she retains any earning capacity. Important, also, is the size of the estate and the fact that neither of the Defendants is an eligible person.

In reaching this conclusion, I do not forget that the Defendants are the chosen objects of the deceased's bounty and competing claimants upon that bounty. However, the estate, whilst very small, is sufficient to enable modest provision to be made for the Plaintiff.

Thus, I am satisfied that adequate provision for the proper maintenance or advancement in life of the Plaintiff has not been made by the Will of the deceased.

Then, I next consider the nature and amount of any provision that should be made.

Having regard to all of the matters that I may consider, including amongst other things, the size and nature of the deceased's estate, the relationship between the Plaintiff and the deceased, as well as the relationship between the deceased and the Defendants, each of whom also has a significant legitimate claim upon the deceased's bounty, as well as the provision made for the Defendants during the lifetime of the deceased by way of provision of a block of land upon which they built a home, and another block of land which they sold, that the Plaintiff is elderly, and notwithstanding that the relationship of the Plaintiff and the deceased had deteriorated after 1988, I am satisfied that some provision by way of a lump sum should be made for the Plaintiff out of the estate of the deceased.

However, as the relationship of the Plaintiff and the deceased is acknowledged not to have been as close as it might have been, whilst not disentitling the Plaintiff to provision, it "restrains the amplitude", of the provision that should be made. Also, I do not consider that the size of the estate and/or the obligation owed to the Plaintiff by the deceased warrants the making of the provision of a fund large enough to provide the purchase price of accommodation in a nursing home or retirement village if and when that need arises.

I find that the Plaintiff does not have any need, at the date I am determining her application, for an amount for alternative accommodation. I am satisfied that she lives with her daughter in a safe and secure environment and that she will be looked after by Barbara and her family should the need arise. However, to the extent that the Plaintiff does require nursing home accommodation at some time in the future, then the lump sum, if retained, should be sufficient to provide a deposit for the costs thereof.

In my view, the Plaintiff should receive a lump sum, out of the estate of the deceased of $60,000. This amount will provide her with a capital sum to be used as a buffer against the vicissitudes of life. It will also provide an income supplement until it is used should that be required.

Of course, that amount will significantly reduce the balance of the residue of the estate. However, the Defendants will have received, or will receive, a total of about $238,000 out of the estate, even after all costs are paid. I do not ignore what they received, during the lifetime of the deceased, and the moneys in what is said to have been a joint bank account upon her death. (I ignore the interest that accrued on the terms deposits to which I have referred.)

In view of the failure of the Defendants to adhere to their undertaking, I propose to make an order restraining them from distributing the balance of the amount held until such time as they have satisfied the order for provision and for costs that I shall make. I raised this possibility during the course of the hearing and the Defendant's counsel did not submit that I should not do so.

I order that:

(i) Having found that the Plaintiff is an eligible person; being satisfied 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 receive out of the estate of the deceased, a lump sum of $60,000.

(ii) Order that the provision made for the Plaintiff should be borne by the residuary estate.

(iii) Order that no interest be paid on the lump sum of money if it is paid within 14 days of the making of these orders, or within such other time as the parties agree, or the court otherwise 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.

(iv) Subject to any further submissions, order that the Plaintiff's costs, calculated on the ordinary basis, and the Defendants' costs, calculated on the indemnity basis, be paid out of the estate of the deceased.

(v) Order that the Defendants be restrained from disbursing any of the funds held in the estate without first having satisfied the amount of provision ordered for the Plaintiff and her costs of the proceedings.

(vi) For the purposes of (v), it will be satisfactory compliance with orders (i) and (iv), so far as it relates to the Plaintiff's costs, if the Defendants pay to the Plaintiff, or as she may direct, the lump sum ordered by way of provision for her in (i) above, and any interest accrued thereon, and also pay to her solicitors, to be held by them in trust pending agreement of the parties, or the completion of assessment of the Plaintiff's costs calculated on the ordinary basis, the amount of $37,500.

(vii) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the matters referred to in order (iv) above.

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Decision last updated: 06 March 2013

Medium Neutral Citation:	Nowak v Beska [2013] NSWSC 166
Hearing dates:	20 February 2013
Decision date:	06 March 2013
Jurisdiction:	Equity Division
Before:	Hallen J
Decision:	(i) Having found that the Plaintiff is an eligible person; being satisfied 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 receive out of the estate of the deceased, a lump sum of $60,000. (ii) Order that the provision made for the Plaintiff should be borne by the residuary estate. (iii) Order that no interest be paid on the lump sum of money if it is paid within 14 days of the making of these orders, or within such other time as the parties agree or the court otherwise 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. (iv) Subject to any further submissions, order that the Plaintiff's costs, calculated on the ordinary basis, and the Defendants' costs, calculated on the indemnity basis, be paid out of the estate of the deceased. (v) Order that the Defendants be restrained from disbursing any of the funds held in the estate without first having paid the lump sum ordered by way of provision for the Plaintiff and also her costs of the proceedings. (vi) For the purposes of (v), it will be satisfactory compliance with orders (i) and (iv)(so far as it relates to the Plaintiff's costs) if the Defendants pay to the Plaintiff, or as she may direct, the lump sum ordered by way of provision for her in (i) above, and any interest accrued thereon, and also pay to her solicitors, to be held by them in trust pending agreement of the parties, or the completion of assessment of the Plaintiff's costs calculated on the ordinary basis, the amount of $37,500. (vii) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the matters referred to in order (iv) above.
Catchwords:	SUCCESSION - FAMILY PROVISION - The Plaintiff, the sister of the deceased, seeks a family provision order out of the estate of the deceased under the Succession Act 2006 - The Defendants, were friends and carers of the deceased, the executors to whom Probate granted and sole beneficiaries named in Will - No dispute as to Plaintiff's eligibility - Dispute as to factors warranting the making of the application - Whether to make a family provision order - If order for provision made, how the burden of that provision should be borne - Part of the deceased's estate distributed by Defendants - Breach of inter partes undertaking by Defendants
Legislation Cited:	Family Provision Act 1982 Practice Note SC Eq 7 Property (Relationships) Act 1984 Probate and Administration Act 1898Succession Act 2006Succession Amendment (Family Provision) Act 2008 Uniform Civil Procedure Rules 2005
Cases Cited:	Alexander v Jansson [2010] NSWCA 176Allardice, In re; Allardice v Allardice (1909) 29 NZLR 959 Andrew v Andrew [2012] NSWCA 308 Barlevy v Nadolski [2011] NSWSC 129 Bartlett v Coomber [2008] NSWCA 100 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Brown v Faggoter [1998] NSWCA 44Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Curran v Harvey [2012] NSWSC 276 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639 Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89 ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193 Evans v Levy [2011] NSWCA 125 Faulkner v McLeod [2011] NSWSC 92 Fede v Dell'Arte [2010] NSWSC 1113 Fiorentini v O'Neil [1998] NSWCA 79 Foley v Ellis [2008] NSWCA 288 Fry v Lukas; Brown v Fry; Estate of Honey; Application of Fry [2011] NSWSC 1329 Fulop Deceased, Re (1987) 8 NSWLR 679 Gardiner v Gardiner (NSWSC, 28 May 1998, unreported) Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Graziani v Graziani (NSWSC, 20 February 1987, unreported) Hampson v Hampson [2010] NSWCA 359 Kay v Archbold [2008] NSWSC 254 Keep v Bourke [2012] NSWCA 64 Kembrey v Cuskelly [2008] NSWSC 262 Jenkins v Livesey (1985) AC 424 Lumsden v Sumner [2012] NSWSC 1440 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 Mcgrath v Troy [2010] NSWSC 1470 Maio v Sacco [2009] NSWSC 413 Mayfield v Lloyd-Williams [2004] NSWSC 419 Palaganio v Mankarios [2011] NSWSC 61 Penfold v Perpetual Trustee [2002] NSWSC 648 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Porthouse v Bridge [2007] NSWSC 686 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Sammut v Kleemann [2012] NSWSC 1030 Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (NSWSC, 16 December 1996, unreported) Stott v Cook (1960) 33 ALJR 447 Taylor v Farrugia [2009] NSWSC 801 Thom v The Public Trustee (NSWSC, 2 April 1992, unreported) Tsivinsky v Tsivinsky [1991] NSWCA 269 Vasiljev v Public Trustee [1974] 2 NSWLR 497 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported) Wheatley v Wheatley [2006] NSWCA 262 Wilcox v Wilcox [2012] NSWSC 1138
Category:	Principal judgment
Parties:	Anna Nowak (Plaintiff) Krzystof Beska (first Defendant) Katarzyna Beska (second Defendant)
Representation:	Counsel: Mr D M Jay (Plaintiff) Mr R Hanrahan (Defendants) Solicitors: Adams & Partners (Plaintiff) Drexler & Partners (Defendants)
File Number(s):	2011/316918