Polistena v Mitton; Agnew v Mitton - [2011] NSWSC 931

Supreme Court

New South Wales

Medium Neutral Citation: Polistena v Mitton; Agnew v Mitton [2011] NSWSC 931
Hearing dates: 15 August 2011
Decision date: 31 August 2011
Jurisdiction: Equity Division
Before: Hallen AsJ
Decision:
Declare that the amount of $254,458 forms part of the actual estate of the deceased.
Having found that the Plaintiff, Pauline Polistena, is an eligible person and that the provision made for her on intestacy is inadequate, order that in lieu of the entitlement on intestacy, she is to receive out of the estate or notional estate of the deceased, a lump sum of $100,000. That sum should not include the amount of $2,000 that was the subject of the gift to her by the deceased.
Whilst the Plaintiff, Christine Agnew, is an eligible person, provided that she receives one third of the amount declared to form part of the actual estate of the deceased, namely $82,500, her entitlement on intestacy is not inadequate. Order that her Summons is dismissed.
Parties to bring in short minutes to reflect the declaration and these orders.
The matter is adjourned for further argument on costs if the parties are unable to agree.

Catchwords: Two different proceedings, in which a claim for a family provision order under Chapter 3 of the NSW Succession Act 2006 by two adult daughters of deceased - Proceedings heard together, the evidence in one being evidence in the other - first Defendant is a child of the deceased, and sister of Plaintiffs, and second Defendant is a grandchild of the deceased and son of first Defendant - Whether gift of cash made by the deceased - Whether other property in the estate - whether designation of property as notional estate necessary
Legislation Cited: Family Provision Act 1982
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Cases Cited: Blore v Lang (1960) 104 CLR 124
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Cabban v Cabban [2010] NSWSC 1433
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Everett, Re; Executor Trustee & Agency Co of South Australia Ltd v Everett [1917] SALR 52
Foley v Ellis [2008] NSWCA 288
Ford v Simes [2009] NSWCA 351
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Hampson v Hampson [2010] NSWCA 359
Hawkins v Prestage (1989) 1 WAR 37
Hitchcock v Pratt [2010] NSWSC 1508
Horsley v Phillips Fine Art Auctioneers Pty Ltd [1995] NSWSC 78
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Hunter v Hunter (1987) 8 NSWLR 573
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Lathwell v Lathwell [2008] WASCA 256
Leue v Reynolds (1986) 4 NSWLR 590
McCosker v McCosker (1957) 97 CLR 566
McGrath v Eves [2005] NSWSC 1006
Mayfield v Lloyd-Williams [2004] NSWSC 419
Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361
Permanent Trustee Company v Fraser (1995) 36 NSWLR 24
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9
Puckridge, Deceased, In the Estate of (1978) 20 SASR 72
Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100
Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Taylor v Farrugia [2009] NSWSC 801
Thomas v Times Book Co Ltd [1966] 2 All ER 241
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Vukic v Luca Grbin; Estate of Zvonko Grbin [2006] NSWSC 41
Walker v Walker (NSWSC, 17 May 1996, unreported)
Weeks v Hrubala [2008] NSWSC 162
Zahra v Francica [2009] NSWSC 1206
Category: Principal judgment
Parties: Pauline Annette Polistena
(Plaintiff in proceedings 2010/266480)
Christine Denise Agnew
(Plaintiff in proceedings 2010/304148)
Linda Vivienne Mitton
(first Defendant in both proceedings)
Cameron Mitchell Mitton
(second Defendant in both proceedings)
Representation: Counsel:
Ms E Glover
(Plaintiff in proceedings 2010/266480)
Ms L W Chan
(Plaintiff in proceedings 2010/304148)
Mr J Armfield
(Defendants in both proceedings)
Solicitors:
Doherty Partners
(Plaintiff in proceedings 2010/266480)
Dignan & Hanrahan
(Plaintiff in proceedings 2010/304148)
Adrian Byrne & Co
(Defendants in both proceedings)

File Number(s): 2010/266480; 2010/304148

Judgment

The Applications

HIS HONOUR: These reasons relate to two different proceedings, in each of which a claim for a family provision order under Chapter 3 of the NSW Succession Act 2006 ("the Act") is made. The proceedings were heard together, the evidence in one being evidence in the other.

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 deceased, whose estate is the subject of the claims, is Phyllis Beatrice Mitton ("the deceased").

The first application was made in the Summons, filed on 11 August 2010, by Pauline Annette Polistena, a daughter of the deceased. The second application was made in the Summons, filed on 13 September 2010, by Christine Denise Agnew, who is also a daughter of the deceased. Each Summons was filed within the time prescribed by the Act (within 12 months of the deceased's death).

The Defendants, in each of the proceedings, are Linda Vivienne Mitton, the youngest daughter of the deceased, and Cameron Mitchell Mitton, a grandchild of the deceased and the son of Linda Mitton. At the hearing, with the consent of the parties, I made an order that they represent the estate of the deceased, limited to the hearing.

Without any undue familiarity, or disrespect intended, I shall refer to each of the Plaintiffs, each of the Defendants, and any other family members, by her, or his, given name, in these reasons.

Background Facts

The following facts are uncontroversial.

The deceased died on 22 February 2010. She was then aged nearly 82 years, having been born in July 1928.

The deceased was married to Carlton Mitton in April 1949. He predeceased her, having died in September 2005.

The deceased left no Will. The parties agree that after the payment of debts, funeral and testamentary expenses, the net actual estate, if any, will be divided between them equally.

On 17 August 2010, this Court granted limited letters of administration to Pauline "for the purpose of an application being made under Chapter 3" of the Act. Otherwise, there has been no grant of administration in respect of the deceased's intestate estate.

In an affidavit sworn on 21 July 2011, Linda states that the actual and/or notional, estate, as at the date of death, included the deceased's joint interest in real estate, situated at Austral, New South Wales ($475,000), moneys in cash and in bank on deposit ($237,000), household contents (little value), and an amount ($2,000) being a gift to Pauline (made shortly before the death of the deceased). Subsequently, some shares ($960) were located. These shares are, in fact, held in the name of the deceased's husband and would have passed to the deceased. (I have stated, and, hereafter, shall state, only the dollar amount and omit the cents.)

No liabilities of the deceased were disclosed. However, the parties are agreed that the funeral expenses were $7,315 and that this amount should be paid (or reimbursed to Linda). There was an additional expense of $572 for a nameplate, which also is to be paid (or reimbursed as the case may be). Thus, for the purposes of the hearing, the amount of $7,887 will be deducted from the total gross value of the actual, or notional, estate.

The deceased and her husband purchased the Austral land, as joint tenants, in about 1984. It measures 12,140 square metres. Two single storey residential cottages are erected on the land. The main cottage is constructed of brick veneer and has an attached granny flat. The other cottage is of fibro construction. For some years, the fibro cottage was rented. In the last years of her life, the deceased lived in the granny flat.

In 1985, Linda moved to the Austral property and resided there with her parents. In about June 1996, Linda was added as a joint registered proprietor, with her parents, of the Austral property. In about 1997, Linda and Cameron moved from the fibro cottage into the main brick house on the Austral property. The fibro house was partially renovated in about 2008 or 2009.

At the date of death, the Austral land was held by the deceased and Linda as joint tenants. Following the deceased's death, and in late March 2010, Linda lodged a Transmission application, pursuant to which the whole of the Austral land was registered in her name alone. Linda, then, transferred a one half interest in the Austral land to Cameron. The Transfer lodged for registration discloses the consideration of $475,000, but Linda agreed, in cross-examination, that Cameron had not paid the consideration, or any part of it, and that she did not expect him to do so. The Defendants are now registered as tenants in common in equal shares of the Austral land.

The parties are agreed that, at the date of hearing, the value of the deceased's interest in the Austral land is $550,000 (the total value of the Austral land being $1,100,000).

The cash referred to was, in part, ($218,000) found in the granny flat, at, or about, the date of the deceased's death. The balance ($19,000) was held in bank accounts in the name of the deceased.

Linda asserts that $200,000 of the cash found, was gifted to her, by the deceased, shortly before death. The Plaintiffs dispute the alleged gift. I shall return to that issue later in these reasons.

On 26 February 2010, the amount of $200,000, being part of the money located in the granny flat, was deposited, for a term of 12 months, into an account in the name of Cameron. The date that term deposit matured was 26 February 2011, on which date, interest of $12,000 was paid. The whole amount, including interest, was then re-invested and at the date of hearing, the total amount held by Linda, inclusive of interest, is $254,458.

The present value of the shares is $960.

If there had been a gift to Linda by the deceased, the actual estate would be limited to $37,000, the value of the shares, and the household contents (of negligible value). If the gift is not established, the actual estate of the deceased will be increased to $254,458 and the value of the shares and the household contents. In either case, whether any property should be designated as notional estate might have to be determined. After deducting $7,887, the net amount in the estate is $247,531.

At the hearing, the parties were able to agree that the estimated gross value of the estate and/or notional estate was about $807,418 (subject to the payment of costs of these proceedings) and subject to another matter to which I shall turn. After deduction of the funeral expenses and nameplate, the net estimated value was $799,531.

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

Pauline's costs and disbursements, including counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a 3 day hearing), are estimated to be $85,000. Her costs, calculated on the ordinary basis, have been estimated to be $69,000.

Christine's costs and disbursements, including counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a 3 day hearing), are estimated to be $69,737. Her costs, calculated on the ordinary basis have been estimated to be $52,027.

The Defendants' costs and disbursements of the present proceedings, including counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a 3 day hearing), have been estimated to be $71,500.

Subject to the other matter, the parties agreed, for the purposes of the hearing, and assuming that the estimates of costs prove accurate, and the usual order for costs is made, that the estimated net distributable value of the estate and/or notional estate, will be in the order of $607,004.

The persons described as eligible persons, within the meaning of the Act, are each of the Plaintiffs and the Defendants. The notice prescribed by the Act has not been served on any of them. However, each has filed at least one affidavit that has been read in the proceedings. I am satisfied that service of such notice is, therefore, unnecessary.

In any event, the evidence reveals that Cameron has informed Linda he does not propose to make any claim on the estate of the deceased and he has not, in fact, made any claim. He has, however, given evidence about his competing claim upon the bounty of the deceased. He, of course, is not a beneficiary on intestacy, although he is a person who may make an application for a family provision order. He is endeavouring to protect an interest in the Austral land transferred to him by Linda after the death of the deceased. However, he gave no consideration for his interest in that land.

Linda is aged 49 years, having been born in November 1961. Cameron is aged 21 years, having been born in May 1990.

I am requested to allow Linda and Cameron a period of time to enable them to consider how an order, if any is made, in favour of Pauline and/or Christine, will be satisfied or how the entitlement of each will be met. There is no dispute that I should do so, and accordingly, I shall allow a period of time to the Defendants to determine how the orders that I make will be satisfied. I am also requested to determine the burden of costs then, as submissions will be made unless agreement is reached.

The parties accept that depending upon the conclusions to which I come regarding the alleged gift of the cash to Linda and to the other matter to which I shall turn, it may be necessary for Letters of Administration on intestacy to be obtained.

During submissions, Mr J E Armfield of counsel, who appeared for the Defendants, stated that it may not be necessary to determine whether the property of the deceased formed part of her actual, or notional, estate as the Defendants, or either of them, would satisfy any order for provision made in favour of either, or both, of the Plaintiffs and that the Defendants would satisfy any order for provision that was made. This was a reasonable and appropriate concession.

However, it seems to me, in relation to the alleged gift and the other matter to which I shall come, that it is necessary for me to determine whether the cash referred to, and to be referred to, forms part of the actual estate of the deceased, because, if it does, it will be held on statutory trust for Pauline, Christine and Linda equally. Only then will the questions raised in the substantive proceedings be able to be determined.

The Other Matter referred to

The cross-examination of Linda and Cameron revealed that:

(a) On 26 February 2010, $200,000 was deposited for a term of 7 months in the name of Cameron. The date that term deposit matured was 26 September 2010, on which date, interest of $6,969 was paid.

(This was a different amount to the cash found in the granny flat on the Austral property, the subject of the alleged gift to Linda.)

(b) The amount deposited on 26 February 2010 had been held in cash, by Linda, at the main cottage.

(c) Of the amount originally deposited, Linda said that $99,000 was her money; about $71,000 belonged to a person, Mark Reay, with whom she was, then, in a relationship; and about $29,000 was Cameron's, being part of an amount that Linda had been able to save from child support payments that had been made by Cameron's father to her.

(d) Linda denied that she had found more than $218,000 in cash in the granny flat and that the separate amount of $200,000 had also been found. She denied that these moneys belonged to the deceased.

The question that was agitated, initially, was whether this amount, too, was part of the deceased's estate. On the third day of the hearing, following the submissions on this topic by Ms E K Glover, counsel for Pauline, and Ms L Chan, counsel for Christine, the Defendants sought leave to re-open their case, and produced a "Customer Receipt" from the St George Bank, which revealed that, on 27 September 2010, the amount of $107,573, by bank cheque, was made payable to Mr Reay, the amount of $48,221 was transferred to Cameron, and the amount of $44,171 was transferred to Linda. The term deposit from which these moneys were paid was that opened on 26 February 2010.

Linda also gave evidence of regular fortnightly withdrawals from a bank account in the name of Mr Reay, totalling about $74,000. She could not say whether the amounts paid to her were from the account. However, she said she had received from him, on nearly each occasion, the same amount as had been withdrawn from that account. (In this regard, a schedule of withdrawals was tendered, on which schedule she identified amounts that she had actually received.)

Credibility of the Witnesses

I am satisfied that many of the basic facts were not in dispute between the parties. However, in some areas there was a significant dispute. Because the issue of the nature and value of the actual estate of the deceased has become so important, I shall deal with the issue of the credibility of the parties first.

There were a number of aspects of Linda's evidence that lead me to the view that I must consider her evidence very carefully. Overall, I am not prepared to accept some of her evidence.

Firstly, she did not disclose, in any of her affidavits, or in her oral evidence in chief, the receipt of about $68,000, in cash, from the deceased in about 2005. She acknowledged she had understood, when she had sworn her first affidavit that it was important to disclose any provision made for her by the deceased during her lifetime. No explanation for the non-disclosure was offered.

In relation to the alleged gift of $200,000, in cross-examination, she gave evidence of a conversation with Cameron, shortly after the death of the deceased, in which she said "Mum has left us some money". In answer to a question from me, she said that she told Cameron that the deceased "gave us some money". When I enquired about the difference in her affidavit and oral evidence, she said:

"Well, left to me is she left us some money."

She did not appear to appreciate the difference between "left us" and "gave me". She then said that she could not remember the exact words spoken to Cameron. There had been no previous suggestion of an inability to remember the conversation with Cameron.

Despite the terms of the conversation that she said she had with the deceased at hospital relating to the cash belonging to the deceased and hidden at the Austral property, she had only claimed $200,000 was the subject of the gift, whereas $218,000, in cash, had been located (albeit at different times). This is an important matter considering that in her affidavit, she had stated that the deceased "told me where to find the money" and "I went to the house and found a total of $218,000 in cash".

In submissions, Mr Armfield submitted that Linda had been told where to find the money (the kitchen cupboard) and the total amount of cash found there was $200,000. An additional $18,000 was found a few days later elsewhere (in a tub of birdseed). Because she had not been told about this amount, she did not assert that it formed part of the gift. I observe that the deceased did not, according to Linda, tell her where to find the $18,000. In my view, this throws an additional doubt on whether the conversation with the deceased occurred.

A few months after the death of the deceased, there had been a conversation between Pauline and Linda, in which Pauline asked whether any cash had been found in the cottages. Linda did not disclose the amount that had been found (other than to say that it was "a bit more" than $10,000), or that there had been a prior gift, by the deceased, to Linda of the cash found and therefore, it was not relevant to Pauline's entitlement on intestacy.

In fact, even on her own evidence, Linda did not disclose to Pauline any conversation with the deceased about the gift. The circumstances suggest that had there been such a conversation, its terms would have been disclosed to Pauline.

Cameron's evidence about the conversation that he had with Linda is:

"My mother come home before my grandmother did die, she said that my grandmother told my mother that there was cash in the house and for us to go and get it, to mind it for her. She said it was ours if she didn't come back out, but we minded it. Supposed to be minded too because we thought she was coming back out. That was $200,000."

Linda had not disclosed, in any of her affidavits, that the other amount of $200,000 (said not to be the deceased's money) had been kept, in cash, in the Austral property; nor had she disclosed the sources of that amount, or the circumstances in which it had been kept, or deposited, or when the term deposit matured, how it had been disbursed, and to whom.

Mark Reay had not sworn an affidavit in support of Linda's case. Linda had not sought, and did not intend, to call him as a witness, otherwise, and there was no explanation for the failure to have him swear an affidavit, or to give evidence. She accepted they had kept in contact since the breakdown of their relationship, and that, on occasions, since then, he attended the Austral land. She also knew where he worked as a prison officer. Linda's solicitors had even produced some of Mr Reay's bank records.

The failure to call Mr Reay was significant, since it had been Linda's evidence that $72,000 of the $200,000 had been his money and that following the term deposit maturing, she had paid him $107,573.

Neither Linda, nor her solicitors, had co-operated with Pauline's solicitors in arranging service of a subpoena to produce documents upon Mr Reay. A number of affidavits of attempted service of a subpoena to produce documents were read, without objection.

Linda, Mr Reay and Cameron had each conducted bank accounts. Linda did not disclose in her evidence, the reasons why she, and/or Mr Reay, had retained $200,000, in cash, at the Austral property, or why, on 26 February 2010, they had decided to invest that exact amount in a term deposit in the name of Cameron alone. There were no reasons proffered for keeping such a large amount in cash, particularly if the sources of $101,000 were as stated by Linda.

Linda admitted in cross-examination that the deposits that were made in Cameron's name because, at that time, she was receiving a part carer's allowance. She stated that she "did not want to explain where the money had come from". This was said to demonstrate deception on her part, which intention to deceive she conceded.

Linda's explanation surrounding the deposit of $37,000 that she admitted was the deceased's money (and not claimed to be part of the alleged gift) lacked credibility (see, T112-115). It seemed that she had needed to construct a version of events because of the word "nanna" appeared on one of the internet banking transactions.

Finally, Linda did not disclose what she had said was a commercial arrangement made with her parents that led to her being named as a joint tenant with them on title to the Austral land. No explanation was advanced for the failure to do so.

Cameron did not fare very well as a witness either.

(a) He could not remember the circumstances in which the amount of $18,000 was found following the death of the deceased - i.e. whether he had found it or whether someone else had. In fact, he had not disclosed in his affidavit, that he had been the person who had found $200,000 in cash in the granny flat, or that he had participated in counting the cash that had been found.

(b) He could not remember the circumstances surrounding various internet bank transactions that he had carried out on behalf of Linda.

(c) He seemed to have some difficulty remembering who was present when the amount of $200,000 was discovered and counted. (He thought only he had been present with Linda, but it took him some time to remember this.)

(d) His recollection of the counting of the money was a little vague. However, he was "quite sure" that it was "exactly" $200,000 that had been found. He "vaguely remembered" writing down the stacks that he counted.

(e) He was unable to remember any conversation with Linda in which she told him that the deceased had given the cash found in the granny flat to her.

(f) He, too, had not mentioned, in his affidavit, the amount of $200,000, part of which was said to be Mr Reay's money, although he had been in attendance when that amount was invested in the term deposit.

In relation to Pauline, overall, I thought that she gave her oral evidence truthfully and without prevarication. She admitted a number of matters about her relationship with the deceased immediately, when asked, and did not attempt to justify her conduct, particularly in the period between about 1971 and 2005.

Pauline's husband swore an affidavit in the proceedings that set out his financial and material circumstances. He was not cross-examined. This suggests that they had accurately disclosed their financial and material circumstances.

However, her evidence going to her estimates of the costs and expenses associated what she claimed her "needs" was extremely weak.

In submissions, there was a hint of criticism in relation to one aspect of evidence that Pauline had not revealed in any of her affidavits. This related to a conversation she said she had with the deceased following the death of Christine's daughter in July 2007. Not only had she not referred to this conversation, she had only revealed it to her legal representatives following the cross-examination of Christine.

Linda gave a different version of the conversation and the circumstances in which Pauline had communicated the information concerning the death of Christine's daughter to the deceased.

In my view, the reasons for Pauline revealing the conversation, for the first time, during the hearing, were understandable. She should not be criticised. I do not accept that she revealed the conversation to her legal representatives to bolster Christine's case. The content of the conversation would have been extremely hurtful to Christine and would have painted the deceased in a most unflattering light. In these circumstances, there was a reasonable basis for not having disclosed the conversation.

Also, despite a submission by Mr Armfield to the contrary, I think it is quite possible that each version, by Pauline, and by Linda, on the topic of what had occurred is possible. Pauline did not remember the telephone conversation to which Linda referred and Linda was not present at the conversation to which Pauline referred.

In the circumstances, I am satisfied that the conversation as disclosed by Pauline did occur. I am also satisfied that a telephone conversation, as alleged by Linda, occurred as well. The two events are able to stand together.

I was not very impressed with Christine's oral evidence. Firstly, her evidence about her financial "needs" and the costs that she required to satisfy those needs was not very clear or complete. The evidence that she gave, except in one instance, was based on a telephone conversation with a person who, for the most part, in providing an estimate, was relying simply on what he was told over the telephone and on Pauline's description of the type of work that was required. I was singularly unimpressed with this evidence.

Whilst I appreciate that in an estate of this size, the costs of the parties must be proportionate, to justify an order, there must be evidence that is reliable, particularly on an issue such as the amount required to satisfy the "needs" of an applicant.

Christine gave evidence that she was contributing $45 per week to superannuation. However, in the document, upon which she relied, disclosing her financial and material circumstances, under the heading "Superannuation", there had been typed "Not Applicable". No evidence as to the current amount of superannuation was disclosed.

I was also unimpressed with the lack of real information in her affidavits about her husband's financial and material circumstances. There was some evidence about what she understood his earnings to be, but the documents to demonstrate the basis of her understanding, were not placed in evidence until she had left the witness box. Those documents revealed that her husband's taxable income for the year ending 30 June 2008 was $35,496, for the year ending 30 June 2009 was $14,217, and for the year ending 30 June 2010 was $2,075.

(There was some misunderstanding about whether he conducted his business through a company. I accept that he did not.)

Christine stated that a notice to produce had been served, and that in answer, documents had been produced. However, other than the income tax assessments for her and her husband, a copy of the relevant documents that had been produced did not find their way into the evidence.

Christine's husband had not sworn an affidavit in the proceedings and there was no explanation why he had not done so. There was no evidence of the value of his business (even if he conducted it personally) or the stock that he held for sale.

I also had some difficulty accepting Christine's evidence that in her teens, her starting salary, at Woolworths, her first job, was $35 per week, and that with income from babysitting, the deceased had been able to save $6,000 in about 5 years. Taken with her evidence that the deceased used part of the wages Christine received "to help support the family" and that $1,000 from her saved wages, in 1975, was spent on a colour television set, virtually all of her income must have been saved by the deceased. She also said that there remained $1,100 in her bank account at the time she moved out in 1976. However, I was reminded, during submissions, that her evidence on this topic was not seriously challenged.

In relation to her relationship with the deceased, Christine was more frank. She accepted that she had made no effort to reconcile with the deceased, but stated that she did not do so because any attempt to do so "would have been a waste of time". She stated that if the deceased's personality were known and understood, that conclusion would not have been challenged.

Her view of the deceased was corroborated by Linda, who agreed that the deceased was one who would continue to hold a grudge and would have been unlikely to succumb to any attempts by Christine to reconcile, had those attempts been made.

If the conversation to which Pauline referred is accepted (as I consider it should be), it provides a vivid demonstration of the personality and character of the deceased and makes it more likely than not that any entreaties by Christine to mend past hurts would have been rejected.

Christine could not really provide any satisfactory explanation why she had not endeavoured to contact her father, with whom she said that she had a good relationship, between 1974 and his death in 2005. In this regard, I do not accept her explanation that she did not know where he and the deceased were living at different times.

Christine accepted that she made a conscious decision to avoid all contact with the deceased, as it was easier, and less stressful, for her to do so, and because she believed that any entreaties would have been pointless. She also accepted that she was prepared to allow her sister, Linda, to deal with the deceased's personality and to look after her, particularly when the deceased had been unwell.

To suggest, as Christine did, that she would have been available if assistance had been sought, does not really assist her case, particularly when the period of no contact exceeds 3 decades and during the whole of this period not one offer of assistance was made by her.

I accept, however, that it might have been extremely difficult for Christine to contact the deceased after about mid-2007, when Christine had to deal with her own grief on the death of her daughter. However, by that date, it had been over 30 years since she had any contact with the deceased. That tragic event does not explain or justify the preceding three decades without contact.

Whether there was a Gift by the deceased to Linda

The onus is on Linda to affirmatively establish the gift of the cash to her by the deceased according to the ordinary civil standard on the probabilities. It is not that the Court looks on the case with suspicion and as prim facie fraudulent, but it scrutinizes the evidence very carefully to see whether it is true or untrue: Plunkett v Bull (1915) 19 CLR 544 per Isaacs J.

The conversation relied upon by Linda to found a gift appears in her first affidavit affirmed 15 October 2010. She states:

"Immediately before my mother's death, and whilst she was in hospital, she said to me "There is money in the house. Take it, it is your money. She told me where to find the money".

In answer to some a question from me she said:

"You know I have money in the house. Take it, it's yours. If I don't make it out think of it as yours"

...

She told me it was in the kitchen cupboard."

...

My reply to that was "Don't be silly, you'll probably be out tomorrow. I will take it anyway. At least someone is at home at my house" rather than leaving it over at her house".

This conversation is different from the conversation in her affidavit to which I have referred above. There was no reference in the affidavit to the condition referred to, namely the non-survival of the deceased.

On the question whether I accept this conversation as having occurred, I remember what Bryson AJ said in Zahra v Francica [2009] NSWSC 1206:

"In these proceedings the plaintiff makes claims against the deceased's estate and the facts that he alleges depend for proof very largely upon his own evidence. In approaching his evidence and making findings on a matter he alleges, I bear in mind the need for careful scrutiny to which evidence in such a case should be subjected. This need is well established and was stated clearly by Isaacs J in Plunkett v Bull (1915) 19 CLR 544. Two more modern statements appear in the judgment of McLelland CJ in Eq in Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACSR 785 at 789 in a passage which was cited with approval in the judgment of Sheller JA in Eggins v Robinson (2000) NSWCA 61 at [26]:

"... in a claim based on communications with a deceased person the Court will treat uncorroborated evidence of such communications with considerable caution, and will regard as of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available."

A clear re-statement of the principle showing its continuing applicability was made by Sheller JA in Eggins v Robinson , see particularly pars [26] to [28] inclusive. Powell JA agreed with Sheller JA and Meagher JA reached the same conclusion although without referring to these authorities. It should be remembered that as appears in Sheller JA's par [28] observations in the High Court of Australia in Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170 at 171 show that the standard of proof is not affected, and the relevant standard is proof on the balance of probabilities."

Carefully scrutinising Linda's evidence, and considering the matters to which I have referred above regarding aspects of that evidence, particularly the conversation between Linda and Cameron subsequently, and Cameron's evidence about the conversation, I cannot be satisfied that the conversation occurred, or that there was a gift made of the cash to Linda. Furthermore, there was nothing, otherwise, to corroborate her version of the conversation or that there was a gift made: Weeks v Hrubala [2008] NSWSC 162, at [20]; Vukic v Luca Grbin; Estate of Zvonko Grbin [2006] NSWSC 41).

Also, if there had been the conversation, as asserted by Linda, there would have been no reason to withhold information about the conversation, the amount found, or the fact of the gift, from Pauline.

Even if the conversation relied upon by Linda did occur in the terms asserted, I am of the view that it did not create a gift at law.

There are three recognised methods for making a valid gift, inter vivos, of a chose in possession, such as cash. Those methods are deed, declaration of trust, by oral words of gift and delivery. There is no suggestion of a deed or declaration of trust.

In this regard, I refer to Horsley v Phillips Fine Art Auctioneers Pty Ltd [1995] NSWSC 78, in which case Santow J (as his Honour then was) said at 13-14:

"Delivery in this circumstance means the voluntary transfer of possession of the goods to another, whether by means of the physical transfer of the property itself or by some constructive delivery. Constructive delivery will be appropriate where ... the chattels are bulky or consist of a collection of pieces or articles not readily susceptible of manual delivery: Lock v Heath (1892) 8 TLR 295; Rawlinson v Mort (1905) 21 TLR 774.

... Importantly though, the delivery need not be made at the time of the gift. Delivery may occur prior to or contemporaneous with or subsequent to the words of gift: Re Stoneham; Stoneham v Stoneham [1919] 1 Ch 149 ...

...

where possession has remained in the donor, words of present gift may not suffice without delivery ... But if the goods are already in the possession (or custody) of the donee, an effective oral gift of those goods may be made without the need for any further delivery, because delivery has occurred prior to the words of gift: Re Stoneham; Stoneham v Stoneham [1919] 1 Ch 149; Elder's Trustees and Executor Co Ltd v Gibbs [1922] NZLR 21; Pascoe v Turner [1979] 2 All ER 945 ..."

Accompanying delivery, there must be an intention to make a gift, usually expressed by words of present gift, and an intention, on the part of the donee, to accept the gift. Even assuming that the deceased had an intention to make an immediate gift of the cash (which I doubt), there is no evidence of Linda's intention to accept the gift. Her stated intention was to collect the cash, for safekeeping, until the deceased was discharged from hospital. She said nothing to the deceased evidencing her acceptance of the gift.

Santow J in Horsley, at [59], also confirmed that "in order for a gift to be held to be effectual in such circumstances, that is to say, where there is no further act of delivery or change of possession, it must first be established that the donee already had possession, or, at the least, custody of the chattels at the time of the words of gift".

I also remember what was said by Murray CJ in Re Everett; Executor Trustee & Agency Co of South Australia Ltd v Everett [1917] SALR 52 at 58 that "[d]elivery in this connection does not necessarily mean manual delivery. What is required is that the donee should have possession. He may already be in possession, but, if not, he must be put in possession by some mode which the law recognises as sufficient to invest him with possession".

In this case, despite the fact that the cash was said by the deceased to be hidden in the main cottage on the Austral land, it was not in the possession or custody of Linda. It was in the granny flat in which the deceased lived. Linda and Cameron lived in separate accommodation in the main cottage. Linda requested Cameron to retrieve the cash from the granny flat. It was not submitted that the cash was already in the possession, or custody, of Linda before her conversation with the deceased in the hospital. If one were to accept her evidence, she did not know it was there. She could, therefore, not have been in possession of it

It was, however, submitted that it is sufficient delivery if the donor puts the donee in possession of the cash, or if the donee obtains possession of it with the donor's consent. To support this submission, Mr Armfield referred to Thomas v Times Book Co Ltd [1966] 2 All ER 241, at 246, in which it was said:

"It is then said on behalf of the plaintiff that even if Dylan Thomas intended to give this manuscript to Mr Cleverdon, he did not succeed in giving effect to that intention because there was no delivery of the subject matter of it to Mr Cleverdon by Dylan Thomas. I feel bound to reject that argument. The fact is that Mr Cleverdon got possession of this manuscript from the Soho public house in which it had been left by Dylan Thomas, and he got that possession with the consent of Dylan Thomas. That, in my judgment, is sufficient delivery to perfect a gift in Mr Cleverdon's favour. I can see nothing in the case of Re Cole (a Bankrupt), Ex p The Trustee v Cole , on which counsel for the plaintiff relied, which precludes me from taking what appears to me to be the common sense view of the matter, and concluding that when Mr Cleverdon got possession of the manuscript with the consent of Dylan Thomas, the gift was perfected."

However, in the present case, it appears that the consent to retrieving the cash was to enable it to be kept safe pending the discharge of the deceased from the hospital. Linda, subsequently, requested Cameron to retrieve the cash from the granny flat for this purpose, not with the intention of retaining ownership of it. Of course, following the deceased's death, Linda did retain it, but it had been retrieved for a different purpose.

In this regard, I should mention that although the deceased died several hours after the conversation occurred, she was not then thought to be in any danger of death. Whilst she had been in intensive care, she was to be moved, that evening, to a general ward. It was not contemplated that she was dying. I mention this to avoid any suggestion that there was a donatio mortis causa .

Overall, I am not satisfied that the amount of $218,000, which was found in the granny flat, was gifted to Linda. It follows that the whole amount of $254,458 forms part of the actual estate of the deceased.

It follows that the whole of the cash ($254,458) forms part of the actual estate of the deceased. Deducting the amount of $7,887, the amount available for distribution (excluding the payment of costs) would be $246,571 and the shares ($960).

The Other Term Deposit

As a result of the contents of the copy bank document tendered following the application to re-open the Defendants' case, I am prepared to accept Linda's evidence that when the term deposit matured, she disbursed the moneys as that document records.

Linda says that the amount paid to Mr Reay was not only the original amount he had contributed, but also included an amount that was a repayment of other moneys that he had advanced to her. The amount paid to Cameron was not only the amount initially referred to, but also the balance of all child support payments made (about $15,000), as well as moneys he had loaned to Linda that she then repaid (about $4,000). With some hesitation, I accept her evidence in this regard.

Whilst the failure to call Mr Reay and the non-disclosure of the amount in any affidavit, causes me some concern, I find that the funds that were held in the term deposit that matured on 26 September 2010 do not form part of the estate of the deceased. To the contrary, I am satisfied that it belonged to Mr Reay, Linda and Cameron as was asserted by Linda.

The Statutory Scheme - The Act

Introduction

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 be able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions on this part of each 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 person's power of disposition by his, or her, will. It is only if the statutory conditions are satisfied, that the court is empowered, under the Act, to alter a deceased person's disposition to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary.

The requirement for Estate Administration

As has been noted above, whilst there has been a grant of administration in respect of the deceased's estate for the purpose of Pauline making a claim under Chapter 3 of the Act, no such grant was sought, or made, in Linda's case. A preliminary question, namely whether it is actually necessary for there to be a grant of administration, was raised, briefly, at the commencement of the hearing.

An application for a family provision order may be made in respect of the estate of a deceased person. In s 3 of the Act, "deceased person" is defined as "including any person in respect of whose estate administration has been granted". The use of the word "including", suggests that the phrase is not limited to only such a person. In this regard, the Act is different from the former Act, which, in s 7, specifically referred to "a deceased person in respect of whom administration has been granted".

Section 55 of the Act sets out the circumstances in which "administration is granted in respect of the estate of a deceased person". In s 4 of the Act, "administration" is defined by reference to s 55 of the Act. The latter section provides that "administration" is granted in respect of the estate of a deceased person in certain specified events including "where letters of administration of the estate of the deceased person are granted in New South Wales ... whether for general, special or limited purposes": s 55(1)(b).

Recently, in Hitchcock v Pratt [2010] NSWSC 1508, Brereton J noted:

"... I would not have dismissed the proceedings on the ground that there was no relevant grant in New South Wales. A grant was not previously a precondition to the institution of proceedings, although one had to be obtained before an order was made [ Leue v Reynolds (1986) 4 NSWLR 590]. Under the current legislation, not even that is necessary. And even if it were, a grant under s 91 could be made prior to any family provision order."

Respectfully, I agree that a grant of administration is not required before the commencement of proceedings under the Act. Leaving aside the decision of Leue v Reynolds (1986) 4 NSWLR 590, s 58(1) of the Act specifically provides that an application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted.

In Cabban v Cabban [2010] NSWSC 1433, Macready As J discussed the principles on this topic. I shall not repeat what his Honour said at [54] to [58].

In this case, which is slightly different to each of Leue v Reynolds and Cabban v Cabban , I have come to the view that a separate grant is not necessary in Linda's case. I shall refer to s 59(1), which provides when a family provision order in relation to the estate of a deceased person may be made.

Whilst, strictly, it may be possible to make a further grant (s 91(3) of the Act), that is not required. A limited grant has already been made, and although it was not "for the purposes of permitting the application concerned (i.e. Linda's application) to be dealt with", the deceased is a person in respect of whose estate administration (albeit for a limited purpose) has been granted.

The Substantive Provisions of the Act

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). There are six categories of persons by, or on whose behalf, an application may be made. One category is "a child of the deceased" (s 57(1)(c)).

In the case of an applicant who falls within s 57(1)(d), (e) or (f), 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)). This is irrelevant in the present case.

Then, if those considerations are satisfied, the court must determine whether adequate provision for the proper maintenance, education and 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)). It may take into consideration, then, the matters referred to in s 60(2) of the Act. In this way, the court carries out a two-stage process.

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, is inadequate for the 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".

Importantly, there no longer appears to be any sanction to consider, in s 59(1)(c) of the Act, the provision made by the deceased during his, or her, lifetime for the applicant (see, s 9(2) of the former Act).

Under both s 59(1)(c) and s 59(2) 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.

"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 are the words 'maintenance' and 'advancement in life' defined in the Act. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at [115], 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 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."

In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J 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."

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 at [72] and at [77] per Buss JA.

Each of the 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, 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 [114], 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."

The first stage of the process provided for by s 59(1)(c) has been described as "the jurisdictional question": Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education and advancement in life of a particular applicant.

Whether the applicant has a 'need' is a relevant factor at the first stage of the enquiry. 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 [42] (Tobias JA, with whom Beazley and Hodgson JJA agreed).

Tobias JA said:

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

...

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

In Devereaux-Warnes v Hall [No 3] at [81]-[85], 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. it is satisfied that the applicant is an eligible person, and, where necessary, that factors warranting have been satisfied, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), then, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made.

The second stage of the process arises under s 59(2) and s 60(1)(b). 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.

The discretion should be exercised carefully and conservatively according to community perceptions of the provision that would be made by a wise and just testatrix: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 146. The standards of the wise and just testatrix of today, not of an era ago, are pertinent to that assessment: Permanent Trustee Company v Fraser (1995) 36 NSWLR 24 at [16].

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It can be seen that s 60(2) enumerates 15 specific matters which the court may take into account, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order, and, if so, the nature of any such order. There is no hierarchy as between the various factors. The weight to be attached to each of them is likely to differ depending upon the individual circumstances of the particular case. Nor is there a mandatory command to take into account any of the matters enumerated. None of the matters differentiate in their application between classes of eligible person or types of relationship. Similarly, there is no distinction based on gender.

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

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

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

This does not mean, however, that some of the matters referred to in s 60(2) will be irrelevant 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 , who wrote (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 the potential beneficiaries must be taken into account and weighed with all of the other relevant factors."

Section 61 of the Act permits the court to disregard the interests of any other person by, or in respect of whom, an application for a family provision order may be made (other than a beneficiary of the deceased person's estate), but who has not made an application. However, the court may disregard any such interests only if:

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

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

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

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

(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 may be made, relevantly, in this case, in relation to the estate of the deceased. A family provision order may be made in relation to property that is not part of the estate of the deceased, or that has been distributed, if it is designated as notional estate of the deceased person by an order under Part 3 of the Act (s 63(5) of the Act).

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 which the court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).

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

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

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

Although in this case there is a claim for property to be designated as notional estate, since the parties are agreed that the Defendants will satisfy any order for provision that is made, it is not necessary to set out the statutory bases for making a designating order.

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

Applicable Legal Principles

In addition to the above matters, there are some general principles that are relevant to the facts of this case. Whilst most of these principles were given in the context of the previous legislation, they are equally apt in a claim such as this one.

Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, in relation to the former Act, that it is not appropriate, to endeavour to achieve a 'fair' disposition of the deceased's estate. It is not part of the court's function to achieve some kind of equity between the various claimants. The court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. 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 deceased'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".

The court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair.

Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life, 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: The Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker ( NSWSC, 17 May 1996, unreported); Vigolo v Bostin at [11]; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.

In relation to a claim by an adult child, the following principles, in my view, are relevant:

(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 their 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 a spouse, who has a prime 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 .

(d) There is no the need for an adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) [1981] 2 NSWLR 532; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45.

(e) 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 .

(f) Although some may hold the view that equality between children does not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not entirely 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 the 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 instances, where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same."

Estrangement of Applicant and the Deceased

Because in the case of Christine, there is no dispute that there was a period of estrangement for many years prior to the death of the deceased, and in the case of Pauline, it is clear that there was relatively little contact with the deceased for many years, I shall set out some additional principles that are relevant to this issue.

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

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

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

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

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

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

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

(e) As was recognised by the Court of Appeal of New South Wales in Hunter v Hunter (1987) 8 NSWLR 573 at 574 per Kirby P (with whom Hope and Priestley JJA agreed):

"If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator's will."

(f) The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, will operate to restrain amplitude in the provision to be made.

In this case, I shall deal with the conduct of each of Pauline and Christine and the deceased later in these reasons and the relationship between them that resulted.

Additional Facts

I next set out the additional facts that I am satisfied are either not in dispute, or that have been established by the evidence. I do so by reference to s 60 of the Act and by a consideration of the factors relevant to both claims at the same time, as this will permit the application of the statutory criteria to be weighed comparatively in relation to the claims. Where necessary, I shall also consider the competing claim of Linda and Cameron.

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

Pauline and Christine is each a child of the deceased.

Pauline was about 15 years of age when the family migrated from England to Australia. Christine was then about 13 years of age.

Pauline met her husband, Salvatore, in 1971. She moved out of the family home then and married him in May 1973.

It seems clear that Pauline and the deceased had their disagreements. Pauline asserts that "the deceased was extraordinarily difficult" and that it was her attitude that caused little contact between them for many years. Even Linda described the deceased as "a hard, frugal and uncompromising woman".

Pauline also says that the deceased was extremely critical of all with whom she had contact and controlling of her whole family. By way of example, Pauline gave evidence that the deceased wanted Pauline to hand over all of her wages, prior to her marriage, so that she (the deceased) could look after it and pay all the bills. The same occurred with Christine. The deceased thought that Salvatore was "not good enough" for Pauline and objected to Pauline wanting to cook for him prior to their marriage. She did not like the fact that he was Italian. Pauline's parents, however, were invited to, and did attend, her wedding to Salvatore.

Pauline gives evidence that, encouraged by her husband, she maintained contact with the deceased. There was no dispute about this fact. The contact, at least until September 2005 (when her father died), was infrequent. There were a number of years when they did not see, or communicate with, each other.

Pauline stated that this was caused by the deceased constantly bringing up matters from the past which were trifling, being critical of her and her sisters, not expressing interest in her children, and not seeking to spend time with, or contact, them. Despite these matters, on occasions, she and her husband would take her parents to a local club and for drives. She took her children to visit her parents but even then, the deceased complained that the children would not go to her straight away.

Following the death of her father, Pauline visited the deceased 2 or 3 times per week. In this period, she says that her relationship with the deceased gradually changed and that she was able to discuss aspects of her own life and her children with the deceased and that the deceased was not critical as she had been in the past. Her relationship with the deceased seemed to improve. When she visited her, they would talk for hours and the deceased seemed to enjoy that. Her attitude to Pauline also improved.

The deceased told Pauline not to inform Christine about the death of their father and also about the deceased's illness. The deceased said that Christine had not bothered about them for many years and that it was a waste of time to tell her. The deceased became upset with Pauline when Pauline did tell Christine about the death of their father (some 18 months after he had died).

In broad summary, counsel for each of the parties accepted, during submissions, that the relationship between the deceased and Pauline was not as close as it might have been, but, that she was never estranged, completely, from the deceased. She endeavoured, particularly towards the end of the deceased's life to put events of the past behind her, and their relationship "improved".

Christine admits that in early 1976, after she reached the age of 21 years, and because of the difficult relationship she had with the deceased, she decided to move out of the family home. The deceased asked her to leave, which she did. Although she says that she did not leave with the intention of never returning, in fact, she never did return. She had no contact with the deceased from that time onwards.

Christine's relationship with the deceased is in stark contrast to the relationship of Pauline and of Linda with the deceased.

The initial and perhaps, primary, cause of the estrangement appears to have been that the deceased did not like Christine's then boyfriend (subsequently, and presently, her husband). The deceased made clear that she did not welcome him to her home. However, it was accepted that, otherwise, there were many arguments between Christine and the deceased and that they were "never that close". Christine described them as "always arguing".

From the time she left home, Christine thought it was less stressful to have no contact with the deceased. She says that after she left home she "was sick for several years with stress related illnesses (e.g. stomach ulcers). She relies upon this fact to justify the lack of contact:

"I made a conscious decision not to go so I could save my health."

Yet, she never wanted to know anything about the deceased, including where she lived. In this regard, she admitted that she did not actually telephone Pauline to find out anything about 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

Disregarding any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal, or financial, obligation to either Pauline or Christine imposed upon her by statute or common law. Each had been financially independent for many years prior to the deceased's death.

There was no legal obligation or responsibility to Linda or to Cameron either. However, the fact that she and he had lived with the deceased as long as both of them had, and that, in the case of Christine, she was a joint co-owner with her, might suggest a moral obligation.

(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 this earlier in this judgment. The value of the actual estate and/or notional estate, on any view, is not 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

Pauline says that:

(a) Her present income is a disability support pension of $275 and dividends of $4 per week. Her husband, also, receives a disability pension of $275 per week.

(b) Their weekly personal expenditure totals $485 per week.

(c) Her and her husband's assets include their home at Hinchinbrook, with a value of $500,000. They have household contents with a total value of $2,000. They have cash in bank of $5,345. The house is unencumbered.

(d) Pauline owns shares in Woolworths Limited ($4,611) and has superannuation of $21,477.

(e) Her husband has superannuation of about $108,000.

As to her needs, it was submitted that she requires a capital sum for exigencies of life, including for the costs of medical treatment, holidays, a car, repairs and renovations to her and her husband's home, including costs of a kitchen renovation and repainting, and an amount to enable them to pre-pay for her funeral. (Her evidence about the costs of many of these things were not corroborated, for the most part, by written quotations or other admissible evidence.)

She also sets out a number of needs of her husband, Salvatore, caused by medical and health issues, but since he is not an eligible person, it seems to me that his needs are not relevant, other than to demonstrate that part of their joint income and, perhaps, their capital, may be used.

It is submitted, on Pauline's behalf, that she should receive a lump sum for exigencies of life, which should be calculated as 25 per cent of the value of the estate and/or notional estate. This equates to about $200,000.

Christine says that:

(a) Her present income totals $570 per week. Her husband's income is $250 per week. Their weekly expenditure is $456.

(b) She and her husband own their home at Glen Alpine ($640,000) which is a 5 bedroom home, and which is unencumbered. Only they live in it. She has moneys on deposit in her name ($60,922) and in a term deposit ($12,000) and other funds on deposit with her husband ($46,509). They own a car ($6,000). They have household contents ($5,000).

(d) They have credit card debts of $17,000.

As to her needs, Christine says that she is saving the money on deposit (part of which she inherited from her daughter) so that she can help her children purchase a first home.

She, too, seeks a capital sum to assist her and her husband in retirement, to enable her to have a holiday, and to carry out repairs and renovations, including re-carpeting and re-painting, to the home in which she and her husband live. She also seeks to buy some new furniture and whitegoods. She wishes to replace a car ($40,000).

It is submitted that she should receive a lump sum of $120,000.

Linda says that she is unemployed, single and has no home, other than the Austral property. She has no capital other than what she says was the gift made to her. Her income totals $235 per week. She lives off her capital.

It is submitted that she needs the Austral property in which she can continue to live and the cash for exigencies of life.

Cameron, of course, is not a beneficiary of the deceased's estate. Nor is he a person who has made a claim under the Act. However, it seems to me that since he has an interest in the Austral property that may be affected by any order that is made in favour of one or both applicants, I should consider his position.

He gives evidence that he is employed as a security officer, earning a net weekly income of $869. He has money on deposit which totals $52,300 and superannuation which was, as at December 2010, $5,961. He assists by making contributions totalling $95 per week to the upkeep of the Austral property. His other expenses total $448 per week. He has two cars (with a value of $4,000 and $16,000 respectively), household contents and effects ($2,000).

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

I have earlier set out the financial and material circumstances of Pauline's husband, Salvatore. He has sworn an affidavit in the proceedings. He is 65 years of age.

Their daughter, Carmelina, who also lives with them (since September 2010), for 4 days a week. She pays $50 per week by way of "board". She does not eat all her meals with Pauline and Salvatore.

Christine lives with her husband, Malcolm, who is 63 years of age, and who, she says, "is self employed selling electrical items to various retail outlets throughout the metropolitan area and other centres".

Christine, until very recently, also lived with her son, Geoffrey, who is aged 23 years and who, she says, is "partially dependent" on her.

Neither Christine's husband, nor her son, Geoffrey, has sworn an affidavit in the proceedings, although Christine's first affidavit, details of which I have referred to, does itemise the joint assets of her and Malcolm. (An affidavit from Geoffrey may not have been necessary since, at the date of hearing, he no longer lives with Christine and Malcolm.)

I have earlier noted that I am not satisfied that the Court has been made aware of full details of Malcolm's financial and material circumstances.

(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

Pauline has sustained an injury to her back (in 2003), neck and wrist (in 2005), each of which causes her some pain. She has been, since 1981, an insulin dependent diabetic. She has hypercholesterolemia (which, I understand, is not a disease, but a metabolic derangement, and which involves the presence of high levels of cholesterol in the blood). She also has osteopenia, which I understand to be a condition where bone mineral density is lower than normal. In respect of each condition, she takes medication.

Pauline also has been diagnosed with acute angle closure glaucoma in both eyes. She does not know the prognosis of this condition and admits that the future need for treatment cannot be predicted. She has mild non-proliferative diabetic retinopathy. Her condition will be reviewed in 6 to 10 months.

Christine discloses no physical, intellectual or mental disability. Nor did she provide any evidence to corroborate the medical conditions from which she said she suffered which led her not to be in contact with the deceased.

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

Pauline is 59 years of age, having been born in May 1952. Christine is 56 years of age, having been born in December 1954.

(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

Pauline does not assert any financial contributions to the acquisition, conservation and improvement of the estate or notional estate of the deceased other than what she has said the deceased took from her wages whilst she was living at home.

However, she does say that after September 2005, she would visit the deceased, 2 or 3 times a week for several hours at a time. She would take the deceased to her own home once a week when the deceased was feeling well. She assisted by doing some vacuuming, washing up, and generally tidying. She would take food that she had made for the deceased and would purchase meat for her. She states that she would do "what I could" for the deceased. What she did clearly was a contribution to the deceased's welfare. There is no suggestion of adequate consideration being received by Pauline (although the gift of $2,000 was made during this period).

When asked by Linda for assistance, Pauline refused to commit to specific days, or times. Her response to a request from Linda for assistance was "I'm not being compelled to do certain things on certain days. I do what I want, when I want."

Christine submits that she lent the deceased $6,000, which was used to assist in purchasing the deceased's home at Mascot in about 1978. It is submitted that this amount equated to about 16 per cent of the value of the Mascot property. Whilst the deceased promised to repay that amount when the Mascot home was sold, that was not done. Christine also says that she contributed to household expenses. (There is some dispute about the amount contributed. Christine was cross-examined on the basis that only $2,000 had been contributed.)

Whatever the amount, the loan was not repaid by the deceased. In addition, Christine bought her parents a colour television in 1975 for $1,000.

There is no suggestion of any contribution by Christine to the deceased's welfare either before, or after, she left home.

Linda spent many years living with the deceased. She describes what she did as including looking after the Austral property as well as caring for the deceased. She rarely went away, and if she did it was for one or two days and on one occasion, for four days. The deceased encouraged her to take "breaks", which she did, only when Cameron was not working and was available to look after the deceased. She did not travel any distance that was more than a short car ride away from the Austral property.

On one occasion, she changed shifts to accommodate the deceased's concern about being left alone at night.

During the period, 2005 to 2010, she took the deceased to doctors' appointments, specialists at hospital and therapists, sometimes three times a week often half a day at a time. Cameron was available if she was away. In 2006, she reduced her hours of work and, in 2008, reduced her hours again. She then started to receive a part-carer's pension as the workload of caring for the deceased became greater.

(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

On intestacy, each of the deceased's children receive an equal share of the deceased's actual estate. After the payment of debts, funeral and testamentary expense, each could receive an extremely tiny amount. If all of the costs are paid out of the actual estate, each would be entitled to about $18,000.

Pauline acknowledges receiving $2,000 from the deceased a short time before the deceased died. She states that the deceased offered to assist her in paying for some dental work, but that she died before that was done.

It is obvious that there was no provision made during the deceased's lifetime for Christine.

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

The deceased appears to have made a telephone call to a solicitor, at Riverwood, in about 2009, in which she sought advice about severing the joint tenancy. However, nothing was done and the Austral property passed, by survivorship, to Linda.

The evidence is that despite being encouraged to do so by Linda, the deceased did not wish to make a will, or to otherwise disclose any testamentary intentions in writing. Linda gives evidence that the deceased said that she did not see the point in making a will "as the house is already yours and there is nothing much of value in the belongings".

(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

There is no evidence that the deceased maintained either of the Plaintiffs, either wholly, or partly, at the date of her death. The evidence is to the contrary (apart from the suggestion that the deceased would assist Pauline in paying some future medical expenses).

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

Apart from the Commonwealth government's responsibility to continue to provide Pauline with a pension, there is no other person with a liability to support either of the Plaintiffs.

Christine's husband, however, does contribute towards household expenses.

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

The Act does not limit the consideration of "conduct" to conduct towards the deceased.

To her credit, and despite having to deal with the deceased's difficult personality, Pauline maintained contact with the deceased throughout her life, even though until 2005, the relationship was not particularly close and even though doing so was difficult. From 2005, she appears to have assisted the deceased, and whilst her response to the request by Linda might have been harsh, at least she did provide some assistance to the deceased in the last years of her life.

Until she left home in about 1976, Christine appears to have had a somewhat volatile relationship with the deceased. However, she did abide the wish of the deceased and gave to her the whole of her wages, only a very small part of which was returned to Christine for her own needs. Whether the contribution by Christine was $6,000, as she alleges, or $2,000 as Linda put to Christine, does not really matter a great deal. The parties were agreed that the deceased did use some of Christine's saved wages to enable the purchase of the Mascot home.

Also, I cannot forget that the parties agree that the deceased was an extremely difficult, demanding, critical, and, unforgiving, person. In this regard, it might be said, if it were relevant, that the blame for the lack of relationship cannot be laid wholly at Christine's door. The deceased's reasons for maintaining the lack of contact, apart from her own personality and character were not made clear. This was demonstrated by Linda's evidence:

"Q. Did you ever discuss the possibility of your mother having a reconciliation with Christine over the years?

A. No.

Q. Why not?

A. I knew her thoughts on it.

Q. What were her thoughts?

A. That she washed her hands of her because she left the family home and didn't want to come back, and as the years went on there was no contact and that was it.

Q. So it was your view, I hope I summarise your evidence accurately, that you didn't bring up the subject of a possible reconciliation between Christine and your mother?

A. No.

Q. Because you believed it would have been futile?

A. Yes."

This, however, does not mean that Christine was blameless. She could have done more to try to mend relations with the deceased. From about 1976, there was no contact, of any kind, between them. Christine's explanation is that she believed that the deceased would simply have ripped any cards or letters up and that "it would have been futile to send ... anything". She did not invite her parents to her wedding in 1978, or ask them to attend the baptism of any of her children. The reason she proffered was that she "did not think mum would come" and, in relation to her wedding, that "if mum had been there then the day could have turned nasty".

I accept that Christine could not telephone the deceased because the deceased did not have a telephone. I also accept that Christine, when informed of the deceased's death, did attend the funeral.

In view of the lack of evidence regarding Christine's medical condition, I am not prepared to accept that any medical problems provide a satisfactory reason for her not contacting the deceased. In this regard, the lack of evidence from Malcolm is also important.

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

Linda had a very close relationship with the deceased. She appears to have lived with her parents, and then after the death of her father, with the deceased, for virtually the whole of her life (apart from about two years). It was acknowledged, by Pauline, that Linda was the primary carer of the deceased at least until September 2005. The deceased appointed her a signatory to her St George bank account in about 2009.

Pauline accepted that it was Linda who "had to put up" with the deceased's personality.

Linda says that since 1985, she devoted herself to the care of her parents and to the maintenance and upkeep of the Austral property after it was purchased. (The only evidence of the latter aspect relates to gardening.) As the person who lived with her parents, and then with the deceased alone, it is more probable than not that she bore the significant burden looking after them, and then her. I accept Linda's evidence regarding what she did for the deceased.

I also accept the evidence of Pauline that the deceased complained about the care provided by Linda. There does not appear to be any objective evidence to suggest that the complaints were warranted or justified. To the contrary, complaining about the conduct of one, or other, of her children, appears to have been something that the deceased had done throughout their lives.

I am satisfied that Linda was the person who carried the main burden for looking after the deceased. I accept also that, because of the deceased's personality, this was likely to have been a difficult, and perhaps, unrewarding task.

Cameron, too, was a person to whom the deceased was very close. He assisted his mother, to some extent, with the deceased's care.

(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

A matter that I consider relevant is that, in 2009, the deceased gave Pauline $2,000.

More important, is the provision made for Linda during the deceased's lifetime. Linda's parents assisted her to purchase a property in Melbourne. When it was sold, she repaid them what they had lent her from the proceeds of sale. It appears that they did not charge her interest on the moneys loaned.

Then, to obtain an interest in the Austral land, whilst she made payments by monthly instalments over a period of about 10 years, exactly how much she paid is not clear from the evidence. (How she was able to make the payments between 1990 and 1995, during which period she was unemployed, is not disclosed.)

Of course, the accommodation provided to Linda for almost all of her life is a relevant consideration also. It also cannot be forgotten that from December 2007, whilst she looked after the deceased, and for 10 weeks after the deceased's death, Linda received a part carer's allowance.

Finally, there is the receipt of $68,000 by Linda in about 2005 (which she did not disclose).

Determination

Eligibility

Pauline and Christine, as a daughter of the deceased, is each an eligible person under s 57(1)(c) of the Act. As such, she does not have to establish factors warranting the making of her application.

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

It is clear that if costs come out of the estate, that each of Pauline, Christine and Linda will receive about $18,000. If costs were not to be paid out of the actual estate, but otherwise, each would receive, on intestacy, about $82,000.

In determining the answer at the first stage of the two-stage process, I must consider the provision made, as well as the totality of the relationship of the applicant and the deceased, the age and capacities of the other beneficiaries, and the claim of each on the bounty of the deceased.

In the case of Pauline, in my view, the provision made for Pauline, in either case is inadequate. She has very little by way of capital and her superannuation is modest in the extreme. In my view, she succeeds in establishing jurisdiction and has established that the provision made for her on intestacy is inadequate.

In relation to Pauline, I then turn to the second stage and consider whether an order should be made, and if so, the nature of the order to be made.

Having found that Pauline is an eligible person and that the provision made for her on intestacy is inadequate, I order that she is to receive out of the estate or notional estate of the deceased, in lieu of her entitlement on intestacy, a lump sum of $100,000. That sum should not include the amount of $2,000, which was the subject of the gift to her by the deceased. This amount will provide a lump sum for exigencies of life.

In the case of Christine, I would not be so satisfied if she received a one third share on intestacy, if the costs were not paid out of the actual estate. In those circumstances, being entitled to about $82,500, I would find that the provision, on intestacy, was not inadequate, and that she had not succeeded in establishing jurisdiction. Her Summons would be dismissed.

In view of the concession made on behalf of the Defendants, I do not need to determine what provision I would have determined would have been adequate in circumstances where the costs of the proceedings are paid out of the actual estate. Christine should receive the amount equal to one third of the actual estate or $82,500.

Even if the deceased was an extremely difficult person, the Act is not about repairing historical wrongdoing, or providing reparations for what is said to be improper conduct by a parent. An application under the Act should not succeed on that basis.

I shall stand over the proceedings to allow the parties to consider these reasons and to make submissions on whether, and if so, how the Plaintiffs' costs of the proceedings will be met.

**********

Decision last updated: 31 August 2011

Medium Neutral Citation:	Polistena v Mitton; Agnew v Mitton [2011] NSWSC 931
Hearing dates:	15 August 2011
Decision date:	31 August 2011
Jurisdiction:	Equity Division
Before:	Hallen AsJ
Decision:	Declare that the amount of $254,458 forms part of the actual estate of the deceased. Having found that the Plaintiff, Pauline Polistena, is an eligible person and that the provision made for her on intestacy is inadequate, order that in lieu of the entitlement on intestacy, she is to receive out of the estate or notional estate of the deceased, a lump sum of $100,000. That sum should not include the amount of $2,000 that was the subject of the gift to her by the deceased. Whilst the Plaintiff, Christine Agnew, is an eligible person, provided that she receives one third of the amount declared to form part of the actual estate of the deceased, namely $82,500, her entitlement on intestacy is not inadequate. Order that her Summons is dismissed. Parties to bring in short minutes to reflect the declaration and these orders. The matter is adjourned for further argument on costs if the parties are unable to agree.
Catchwords:	Two different proceedings, in which a claim for a family provision order under Chapter 3 of the NSW Succession Act 2006 by two adult daughters of deceased - Proceedings heard together, the evidence in one being evidence in the other - first Defendant is a child of the deceased, and sister of Plaintiffs, and second Defendant is a grandchild of the deceased and son of first Defendant - Whether gift of cash made by the deceased - Whether other property in the estate - whether designation of property as notional estate necessary
Legislation Cited:	Family Provision Act 1982 Succession Act 2006 Succession Amendment (Family Provision) Act 2008
Cases Cited:	Blore v Lang (1960) 104 CLR 124 Bondelmonte v Blanckensee [1989] WAR 305 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Cabban v Cabban [2010] NSWSC 1433 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54 Everett, Re; Executor Trustee & Agency Co of South Australia Ltd v Everett [1917] SALR 52 Foley v Ellis [2008] NSWCA 288 Ford v Simes [2009] NSWCA 351 Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Hampson v Hampson [2010] NSWCA 359 Hawkins v Prestage (1989) 1 WAR 37 Hitchcock v Pratt [2010] NSWSC 1508 Horsley v Phillips Fine Art Auctioneers Pty Ltd [1995] NSWSC 78 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 Hunter v Hunter (1987) 8 NSWLR 573 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Lathwell v Lathwell [2008] WASCA 256 Leue v Reynolds (1986) 4 NSWLR 590 McCosker v McCosker (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 Mayfield v Lloyd-Williams [2004] NSWSC 419 Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 Permanent Trustee Company v Fraser (1995) 36 NSWLR 24 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100 Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Taylor v Farrugia [2009] NSWSC 801 Thomas v Times Book Co Ltd [1966] 2 All ER 241 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Vukic v Luca Grbin; Estate of Zvonko Grbin [2006] NSWSC 41 Walker v Walker (NSWSC, 17 May 1996, unreported) Weeks v Hrubala [2008] NSWSC 162 Zahra v Francica [2009] NSWSC 1206
Category:	Principal judgment
Parties:	Pauline Annette Polistena (Plaintiff in proceedings 2010/266480) Christine Denise Agnew (Plaintiff in proceedings 2010/304148) Linda Vivienne Mitton (first Defendant in both proceedings) Cameron Mitchell Mitton (second Defendant in both proceedings)
Representation:	Counsel: Ms E Glover (Plaintiff in proceedings 2010/266480) Ms L W Chan (Plaintiff in proceedings 2010/304148) Mr J Armfield (Defendants in both proceedings) Solicitors: Doherty Partners (Plaintiff in proceedings 2010/266480) Dignan & Hanrahan (Plaintiff in proceedings 2010/304148) Adrian Byrne & Co (Defendants in both proceedings)
File Number(s):	2010/266480; 2010/304148