Penberthy v Manasseh - [2013] NSWSC 317

Supreme Court

New South Wales

Medium Neutral Citation: Penberthy v Manasseh [2013] NSWSC 317
Hearing dates: 3 April 2013
Decision date: 04 April 2013
Jurisdiction: Equity Division
Before: Hallen J
Decision:
(i) Having found that the Plaintiff is an eligible person, 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 $225,000.
(ii) Order that no interest is to be paid on the lump sum, if that lump sum is paid within 28 days of the making of these 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.
(iii) Order that the costs of the Plaintiff, calculated on the ordinary basis, and the costs of the Defendant, calculated on the indemnity basis, should be paid out of the estate of the deceased.
(iv) Order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the costs of the proceedings.

Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiff, a daughter of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant is the son of the deceased, to whom Probate of the deceased's Will was granted, and the sole beneficiary named in the Will of the deceased - No dispute that adequate and proper provision was not made in the Will of the deceased for the Plaintiff - Sole issue is the nature and quantum of the provision to be made for the Plaintiff out of the deceased's estate.
Legislation Cited: Family Provision Act 1982
Probate and Administration Act 1898
Property (Relationships) Act 1984
Succession Amendment (Family Provision) Act 2008
Succession Act 2006
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Allardice v Allardice, In re Allardice, (1910) 29 NZLR 959
Andrew v Andrew [2012] NSWSCA 308
Bartlett v Coomber [2008] NSWCA 100
Blore v Lang (1960) 104 CLR 124
Bondelmonte v Blackensee [1989] WAR 305
Borebor v Keane [2013] VSC 35
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bowyer v Wood [2007] SASC 327; (2007) 99 SASR 190
Buckland Deceased, Re [1966] VR 404
Butcher v Craig [2009] WASC 164
Christie v Manera [2006] WASC 287
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Crossman v Riedel [2004] ACTSC 127
Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Flathaug v Weaver [2003] NZFLR 730
Gardiner v Gardiner (NSWSC, 28 May 1998, unreported)
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Harris, In Re (1936) 5 SASR 497
Hawkins v Prestage (1989) 1 WAR 37
Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Hyland v Burbidge [2000] NSWSC 12
Kay v Archbold [2008] NSWSC 254
Keep v Bourke [2012] NSWCA 64
Kembrey v Cuskelly [2008] NSWSC 262
Kleinig v Neal (No. 2) [1981] 2 NSWLR 532
McCosker v McCosker (1957) 97 CLR 566
McGrath v Eves [2005] NSWSC 1006
MacGregor v MacGregor [2003] WASC 169
Marks v Marks [2003] WASCA 297
Mayfield v Lloyd-Williams [2004] NSWSC 419
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Puckridge, Deceased, In the Estate of (1978) 20 SASR 72
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
Verzar v Verzar [2012] NSWSC 1380
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (NSWSC, 17 May 1996, unreported)
Worladge v Doddridge (1957) 97 CLR 1
Category: Principal judgment
Parties: Hazel Penberthy (Plaintiff)
Harold Manasseh (Defendant)
Representation: Counsel:Mr S Chapple (Plaintiff)
Mr R Wilson (Defendant)
Solicitors:
Butlers Wills Dispute Lawyers (Plaintiff)
Anthony N Walker (Defendant)

File Number(s): 2011/328426

Judgment

The Application

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

There were separate, but related, proceedings commenced by another child of the deceased, namely, Heather Manasseh, also seeking a family provision order out of the deceased's estate, but those proceedings were resolved shortly before the hearing. At the commencement of the hearing, her Summons was dismissed, with an order that her costs be paid out of the estate, and an agreement of the parties, in those proceedings, was noted.

The Plaintiff made her claim in a Summons filed on 14 October 2011, that is within the time prescribed by s 58(2) of the Act (within 12 months of the death of the deceased.)

The Defendant named in the Summons is Harold Manasseh, another child, and the executor and universal legatee named in the Will of the deceased.

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

Background Facts

The following facts are uncontroversial and provide a useful background.

The deceased died on 4 November 2010. She was then aged 86 years.

The deceased was predeceased by her husband, the father of the three children to whom I have referred. He died in August 2010, a few months before the deceased.

The deceased and the family had migrated to Australia, from Singapore, in 1968. They continued to live in Australia, but the Plaintiff did not. She moved to the United States of America, in 1994, with her husband, Norman Penberthy.

The deceased left a Will made on 21 October 2011. The Defendant obtained a grant of Probate in common form of that Will, from this Court, on 2 May 2012, to give effect to his appointment as the sole executor of the deceased's estate.

As I have stated, the deceased's Will provided for the whole estate to pass to the Defendant. In Clause 7, it provided that no provision had been made for the Plaintiff and for Heather, "as they have been assisted financially by myself and my deceased husband in the past and they are both well established financially and own their own homes".

In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased's estate, at the date of death, was disclosed as having an estimated, or known, gross value of $1,521,303.

The property then owned solely by the deceased was real estate at Pagewood ("the Pagewood property") ($850,000), real estate at Hillsdale ("the Hillsdale property")($340,000), cash in bank ($167,851), shares in public companies ($108,992), and an interest in the estate of her husband ($54,459). (I have omitted, and shall continue to omit, any reference to cents in amounts referred to. This may result in what might appear to be minor mathematical miscalculations in the figures set out below.)

No liabilities were disclosed in the Inventory of Property.

The parties agreed that the deceased's estate, at the date of hearing, consists of the Pagewood property and the Hillsdale property (in total $1,190,000), furniture, watches and jewellery ($55,676), cash in bank ($180,550), shares in public companies ($173,742) and the interest in her husband's estate ($56,412). The gross value of the estate is estimated to be $1,656,381.

In calculating the value of the 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 Defendant, as executor, irrespective of the outcome of the proceedings, normally, will be entitled to an order that his costs be paid out of the estate.

Her solicitor, Ms L McPherson, estimated the Plaintiff's costs and disbursements of the proceedings, including counsel's fees, calculated on the ordinary basis, to be about $67,903 (inclusive of GST and upon the basis of a one day hearing).

His solicitor, Mr A N Walker, has estimated the Defendant's costs and disbursements of the various proceedings in which the estate has been involved (including probate proceedings brought by the Plaintiff in which costs of $19,427 were incurred), and counsel's fees, calculated on the indemnity basis, to be about $70,113 (inclusive of GST and upon the basis of a one day hearing). An amount of $29,757 has been paid out of the estate on account of those cots and disbursements, leaving a liability for the estate, of $40,356.

In addition, there is an amount for Heather's costs that is yet to assessed and paid. Her solicitor has estimated those costs at $45,000. The Defendant does not accept that the amount claimed is payable as costs calculated on the ordinary basis, but for the purposes of the hearing, I have been asked to assume that amount as a guide.

It follows that from the gross estate, at the date of hearing, of $1,656,381, the total amount of $153,259 may be payable for costs, leaving a net estate, available for distribution, of $1,503,122. (There may be some brokerage fees if the Defendant is required to sell shares to meet any family provision order made for the Plaintiff in excess of the amounts available in cash in the estate. However, the amount of those fees cannot be estimated and, in any event, should not be substantial.)

The parties, thus, accepted, 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 in both proceedings, will be about $1,500,000.

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 these reasons, to make submissions to vary the usual costs order. I am prepared to follow that course and, following further submissions, the costs order I propose to make 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 persons described as eligible persons, within the meaning of the Act, are the Plaintiff, Heather Manasseh, and the Defendant. Each is, or has been, a party to proceedings for a family provision order under the Act.

Additional Agreed Facts

The Defendant did not dispute, in this case, that the Plaintiff was a loving and dutiful child to both her parents, or that, despite the geographical distance separating them (because the Plaintiff lives in the United States of America), she did all that she could to support the deceased, particularly in the last months of the deceased's life when the Plaintiff lived with her. During this period, it was from the Plaintiff that the deceased principally sought assistance and care.

The Defendant also did not dispute that an order for provision should be made for the Plaintiff. He accepted that, as no provision for the Plaintiff had been made in the Will of the deceased, the Court should be satisfied that adequate provision for her proper maintenance or advancement in life had not been made and, accordingly, that a family provision order should be made in her favour.

The Plaintiff acknowledged that in about April 2007, she received $80,000, from her father, which she used to repay a debt secured by mortgage over real property, of which she is the sole registered proprietor, at Hillsdale. She had purchased the property in about 1995 as an investment. She had, originally, funded the purchase price ($140,000), partly from a redundancy payout ($30,000), and from an amount borrowed ($110,000) and secured by mortgage on that property.

However, she says that in return for her father providing funds to enable her to repay the debt secured by mortgage, he became a signatory on an account held in her name, into which rental income was deposited, and that he was permitted to, and, in fact, did, withdraw funds from that account.

In cross-examination, the Plaintiff accepted that between 2007 and 2010, he had withdrawn three amounts ($4,000, $5,000 and $8,568) and that she had withdrawn one amount for him ($2,600). The total amount withdrawn by him, or on his behalf, was $20,168, which amount she regarded as a part repayment of the amount that he had given to her. (In other words, she asserted that he had provided about $60,000 to her.)

The Statutory Scheme - The Act

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In Goodman v Windeyer (1980) 144 CLR 490, Gibbs J said at 502:

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

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

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

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

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

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.

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

In Collins v McGain Tobias JA said:

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

...

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

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

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

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

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

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

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

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

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

Basten JA, in Andrew v Andrew [2012] NSWCA 308 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 referred to in s 60(2)(d)). However, there is a definition of that term in s 3 of the Property (Relationships) Act 1984, which I consider helpful:

"'financial resources' ... includes:

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

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

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

(d) any other valuable benefit."

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

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

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

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

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

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant."

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

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

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

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

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

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

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

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

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

Any family provision order under the Act will take effect, unless the court otherwise orders, as if the provision was made in a codicil to the will of the deceased, or in the case of intestacy, as in a will of the deceased (s 72(1) of the Act). (As I have written, testacy is irrelevant in these proceedings.)

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

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

Other Applicable Legal Principles - Substantive Application

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

Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve "an overall fair" disposition of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants. The Court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act to correct the hurt feelings, or sense of wrong, felt by an applicant. Rather, the Court's role is of a specific type and goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance, education and advancement in life of an applicant.

In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the Court to be vigilant in guarding "against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant". Freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the court": Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 19.

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

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

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

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

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

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

All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singerv Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12 at [56]. Nor does it follow that if the Court decides it is inappropriate to make a specific provision in respect of one identified head of claim that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams, at [89].

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

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

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

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

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

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

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

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

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

(h) Although some may hold the view that equality between children requires that "adequate provision" not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the Court's determination of an applicant's case.

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

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

Relevantly to the Plaintiff's claim, Menzies and Fullagar JJ in Blore v Lang, at 135, also commented, in respect of "a married woman with a healthy husband in satisfactory employment who supports her in reasonable comfort", "her need is not for the bread and butter of life, but for a little of the cheese or jam that a wise and just parent would appreciate should be provided if circumstances permit".

Even more vividly, but to similar effect, is the approach in Worladge v Doddridge (1957) 97 CLR 1 at 12, in which Williams and Fullagar JJ approved the following statement, from In Re Harris (1936) 5 SASR 497 at 501:

"Proper maintenance is (if circumstances permit) something more than a provision to keep the wolf from the door - it should at least be sufficient to keep the wolf from pattering around the house or lurking in some outhouse in the backyard - it should be sufficient to free the mind from any reasonable fear of any insufficiency as age increases and health and strength gradually fail."

I make clear that I do not intend what I have described as "applicable legal principles" to be elevated into rules of law. Nor do I wish to suggest that the jurisdiction should be unduly confined or the discretion at the second stage to be constrained by statements of principle found in dicta in other decisions. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind.

As Lindsay J said in Verzar v Verzar, at [131]:

"Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."

Additional Facts

Next, I set out additional facts that I am satisfied are either not in dispute, or that have been established to my satisfaction by the evidence. I do so by reference to the matters in s 60(2) of the Act to which I may have regard. Where necessary, I shall express the conclusions to which I have come. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar, at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered.

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

The Plaintiff is a child of the deceased. She had a long, close, and loving relationship with the deceased. She lived with both of her parents until 1980, when, at the age of 28, she married her first husband. After moving out of the family home, she visited her parents regularly each week and often ate dinner with them.

In 1994, the Plaintiff moved to the United States with Norman. Between 1994 and 2010, she returned to Sydney each year to visit her parents. On each occasion, she stayed with them for a period of between one and two months. After the introduction of Skype, in about 2006, she would speak with her parents three or four times per week.

When her father became ill in 2010, she returned to Australia and stayed with her parents for a month. Her father passed away on 10 August 2010, and she again immediately returned to stay with the deceased. The Plaintiff stayed with the deceased until the deceased's death (in November 2010).

The Plaintiff states that from August 2010 she cared for the deceased. The deceased, by then, was in need of significant care and during this period, the Plaintiff was the only person living with the deceased.

The deceased was stricken by grief following her husband's death, was permitted to eat only pureed food at home, and weighed approximately 36kg. At least by October 2010, the deceased was said to be suffering from chronic renal failure, anaemia, and mild to moderate cognitive impairment.

Undoubtedly, in these months, the Plaintiff provided substantial live-in care for the deceased. The Plaintiff's evidence is, and I accept, that she dressed the deceased, organised her medications, did her housework, and generally kept her company. She purchased household items for the deceased and also some new clothes.

As I have earlier written, throughout her life, the Plaintiff was a loving and dutiful daughter who did all that she could to assist the deceased.

(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. One might conclude, however, that what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities.

Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to any of her children, as adults, imposed upon her by statute or common law.

Yet, an obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child. In Flathaug v Weaver [2003] NZFLR 730, at 737, the origin of the obligation which underpins the Act's recognition of the duty owed by a parent to a child was put in this way:

"The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives."

The fact that an applicant was financially independent, for many years, before the deceased's death, is a relevant consideration in determining the extent of any obligation or responsibility owed.

(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 these matters earlier in these reasons. The value of the estate is reasonably large.

(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's only solely owned assets are the real estate that she owns at Hillsdale ($375,000), a car ($10,000), household contents ($12,000), and a small amount of cash ($3,030).

The Plaintiff is unemployed and although she continues to look for work, she has not worked since she was retrenched in November 2007. Her only income is rent from her property at Hillsdale. The net annual income from this property is approximately $9,358. (There have been short periods of time when the Hillsdale property is untenanted.)

The Plaintiff asserts that she and Norman live a modest lifestyle and, as a result, they are able to meet their expenses from their income.

The Defendant, as at June 2012, earned a net salary of $2,462 per month and has additional income (from interest) of about $80 per month making a total monthly income of $2,542. He estimates his expenditure at $1,591 per month. He has cash of $134,769 held in various bank accounts and superannuation of $66,803. He owns a car ($6,000).

The Defendant does not own any real property, although depending upon the quantum of the family provision order made in favour of the Plaintiff, it is likely that he will be able to retain both the Pagewood property and the Hillsdale property. He has no dependants and currently lives in the Pagewood property. He commenced a relationship, in June 2012, but he and his friend spend no more than one night per week together.

The Defendant says that the Pagewood property requires maintenance and repair. The roof was leaking but he spent $3,000 repairing it; the house needs repainting; and the bathroom and carpets need to be replaced.

The Defendant is aged 50 years, having been born in 1963.

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

The Plaintiff is married to Norman. She married him in 1992. They live in Arizona in the United States of America. He receives a military pension, which provides him with a gross income of $17,924, and a gross annual salary, from his employment as a flight scheduler, of $77,049. His net income is $58,733. He also receives income from the rental of the property in Anaheim, California, of $14,320.

Norman is the sole owner of the property at Anaheim, California, ($250,000), which is subject to a mortgage debt ($130,503). He also owns the property in Gilbert, Arizona, in which he and the Plaintiff live ($208,000), which is subject to a mortgage debt ($204,581). He has two other debts totalling about $28,000. He has a car ($13,000) and a small amount in cash ($6,832).

The Plaintiff and her husband moved from Anaheim in about 2009 when his employer transferred her husband to Arizona. He was unable to sell the Anaheim property at that time. Although currently rented, his tenants propose to vacate the property later this month.

(The amounts referred to in relation to Norman are in US dollars but for the purposes of the hearing, the parties agreed that the US dollar was equivalent to the Australian dollar.)

I have described all of the property referred to in the United States of America as Norman's property, I have not forgotten that the Plaintiff and Norman have been married for about 20 years. It is likely, in the event of a breakdown of their marriage (which was not suggested) that she may have some interest in matrimonial assets. I consider such an interest to be a financial resource.

(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 suffers from arthritis, high cholesterol and high blood pressure for which she takes medication. (Norman suffers from high cholesterol and blood pressure and recently stress. In addition, he has been diagnosed with central serous retinopathy, an eye condition related to stress.)

The Defendant suffers from insulin dependant diabetes, which was diagnosed in 1990. He also suffers from Bells Palsy (three years) and from sleep apnoea. However, he continues to work as a technical assistant with AMF Tenpin Bowling (since 1984). On occasions, the Bells Palsy makes it difficult for him to work.

He has been diagnosed with lower back pain resulting from the compression of his C4 and C5 vertebrae. In December 2012, he underwent knee surgery.

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

The Plaintiff is currently aged 61 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

It is not necessary to further detail the contribution, financial and otherwise, provided by the Plaintiff to her parents, and then to the deceased. I accept that she made a significant contribution, generally, to the conservation of the deceased's property and to the welfare of the deceased.

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

I have earlier referred to the amount of $80,000 that the Plaintiff received during the lifetime of the deceased from her father and to the amount of about $20,000 withdrawn from the Plaintiff's account by, or on behalf of, her father.

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

The deceased made a will in 1980 in which she left the whole of her estate to her husband, and if he did not survive her, divided her estate equally between her three children.

I have earlier noted that the deceased made her last Will about two weeks prior to her death.

(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, before her death, other than during her childhood.

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

There is no person, other than, perhaps, the Plaintiff's husband, 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

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

I have dealt with the relationship of the Plaintiff and the deceased and her conduct towards the deceased earlier in these reasons.

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

It is necessary to consider the Defendant's conduct also. I am satisfied that he, too, was a loving and dutiful child to the deceased. There is no conduct after the death of the deceased, which is relevant.

(There was some criticism made of the Defendant in taking the deceased to a solicitor to make her last Will shortly before her death. I am satisfied that he did so at the behest of the deceased who asked him to do so. In any event, any concerns the Plaintiff had about the validity of that Will, presumably, would have been raised by her in the Probate proceedings to which I have earlier referred.)

(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 no other matters that I consider relevant.

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, there is no dispute that the Plaintiff, as a child of the deceased, is an eligible person within the meaning of s 57(1)(c) of the Act.

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

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

Counsel for the Defendant accepted that the Plaintiff had "need". As discussed above, "need" in the context of the Act is not determined by reference to minimum standards of subsistence alone. Counsel also acknowledged that since no provision was made for the Plaintiff in the Will of the deceased, the jurisdictional threshold had been satisfied.

In deciding whether the jurisdictional threshold is satisfied, I must not only consider the lack of provision made for the Plaintiff in the Will of the deceased, but, also, such matters as: the totality of her relationship with the deceased; the age and capacity of the Defendant; and the claim of each on the bounty of the deceased.

I am satisfied that there was a failure, on the part of the deceased, to make adequate provision for the proper maintenance or advancement in life of the Plaintiff. Whilst she owns the Hillsdale property, which is unencumbered, that is the extent of her property of any real value. Apart from the income generated by renting the Hillsdale property, she is entirely dependent upon her husband.

Having found that she is an eligible person and that the provision made for her in the Will of the deceased is inadequate, I turn to the second stage and next consider the nature and quantum of any provision that should be made.

The Plaintiff submitted that her needs would be met by the sum of $350,000. Although it was submitted that the lump sum was "adequate and proper", how it had been calculated was not disclosed during submissions. Counsel submitted, in writing, that the Plaintiff "would like a lump sum to have as a contingency fund to provide her with income in the way of superannuation and to provide her with a buffer for the future. In those circumstances, the plaintiff seeks an order for substantial provision from the estate of the deceased."

It seemed to me, however, that the lump sum was based upon a calculation of the family's liabilities, so that those liabilities could be completely satisfied, leaving a modest cash amount available to the Plaintiff, and hence, significantly more income to the household.

The Defendant's counsel submitted that a lump sum of about $60,000 was adequate and proper in the circumstances. She would then have a capital sum that would not require her to sell the Hillsdale property if she did not wish to do so. (He had earlier submitted in writing: "The Plaintiff has made a lifestyle choice in retaining the Hillsdale property. If that property were to be sold, there would be sufficient funds available to discharge the mortgages over her husband's Gilbert, Arizona property, the Anaheim, California property, together with providing a small capital sum which could be used to cover contingencies").

Considering her age and stage of life, I do not think that the Plaintiff should be required to sell the Hillsdale property, which, after all, is her only property of value and to discharge the liabilities of her husband. Accordingly, I reject the Defendant's submission. However, this does not mean it is those liabilities that should be the touchstone of how the provision to be made for the Plaintiff should be calculated.

In my view, having regard to all of the matters that I am required to consider, including amongst other things, the size and nature of the deceased's estate (about $1,500,000), the totality of the relationship between the Plaintiff and the deceased, as well as the relationship between the deceased and the Defendant who has a legitimate claim upon her bounty, the Plaintiff should receive a lump sum of $225,000 which will provide her with a capital sum for exigencies of life. She may, if she chooses, use the whole, or part, of the lump sum, in effect, to purchase an interest in the Arizona home, so that she has a legal interest in it and, thereby, additional security of accommodation. In this way, Norman may reduce the mortgage debt on that property. Otherwise, she may retain all, or part, of the lump sum to provide capital and additional income for herself and her husband.

Of course, the distribution of that lump sum will reduce the size of the estate to about $1,275,000, but the Defendant will be able to retain the Pagewood property and the Hillsdale property ($1,190,000) and will have remaining, a lump sum of about $85,000, which amount, when added to the cash amount which he currently has ($134,769), will total about $220,000.

No interest is to be paid on the lump sum if it is paid within 28 days of the making of orders; otherwise, interest calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment.

As neither party wishes to advance any argument as to costs, I order that the costs of the Plaintiff, calculated on the ordinary basis, and the costs of the Defendant, calculated on the indemnity basis, should be paid out of the estate of the deceased.

I order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005.

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Decision last updated: 09 April 2013

Medium Neutral Citation:	Penberthy v Manasseh [2013] NSWSC 317
Hearing dates:	3 April 2013
Decision date:	04 April 2013
Jurisdiction:	Equity Division
Before:	Hallen J
Decision:	(i) Having found that the Plaintiff is an eligible person, 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 $225,000. (ii) Order that no interest is to be paid on the lump sum, if that lump sum is paid within 28 days of the making of these 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. (iii) Order that the costs of the Plaintiff, calculated on the ordinary basis, and the costs of the Defendant, calculated on the indemnity basis, should be paid out of the estate of the deceased. (iv) Order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the costs of the proceedings.
Catchwords:	SUCCESSION - FAMILY PROVISION - The Plaintiff, a daughter of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant is the son of the deceased, to whom Probate of the deceased's Will was granted, and the sole beneficiary named in the Will of the deceased - No dispute that adequate and proper provision was not made in the Will of the deceased for the Plaintiff - Sole issue is the nature and quantum of the provision to be made for the Plaintiff out of the deceased's estate.
Legislation Cited:	Family Provision Act 1982 Probate and Administration Act 1898 Property (Relationships) Act 1984 Succession Amendment (Family Provision) Act 2008 Succession Act 2006
Cases Cited:	Alexander v Jansson [2010] NSWCA 176 Allardice v Allardice, In re Allardice, (1910) 29 NZLR 959 Andrew v Andrew [2012] NSWSCA 308 Bartlett v Coomber [2008] NSWCA 100 Blore v Lang (1960) 104 CLR 124 Bondelmonte v Blackensee [1989] WAR 305 Borebor v Keane [2013] VSC 35 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Bowyer v Wood [2007] SASC 327; (2007) 99 SASR 190 Buckland Deceased, Re [1966] VR 404 Butcher v Craig [2009] WASC 164 Christie v Manera [2006] WASC 287 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Crossman v Riedel [2004] ACTSC 127 Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54 Flathaug v Weaver [2003] NZFLR 730 Gardiner v Gardiner (NSWSC, 28 May 1998, unreported) Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Harris, In Re (1936) 5 SASR 497 Hawkins v Prestage (1989) 1 WAR 37 Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 Hyland v Burbidge [2000] NSWSC 12 Kay v Archbold [2008] NSWSC 254 Keep v Bourke [2012] NSWCA 64 Kembrey v Cuskelly [2008] NSWSC 262 Kleinig v Neal (No. 2) [1981] 2 NSWLR 532 McCosker v McCosker (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 MacGregor v MacGregor [2003] WASC 169 Marks v Marks [2003] WASCA 297 Mayfield v Lloyd-Williams [2004] NSWSC 419 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 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 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported) Worladge v Doddridge (1957) 97 CLR 1
Category:	Principal judgment
Parties:	Hazel Penberthy (Plaintiff) Harold Manasseh (Defendant)
Representation:	Counsel:Mr S Chapple (Plaintiff) Mr R Wilson (Defendant) Solicitors: Butlers Wills Dispute Lawyers (Plaintiff) Anthony N Walker (Defendant)
File Number(s):	2011/328426