Savic v Kim

[2010] NSWSC 1401

CITATION:	Savic & Ors v Kim [2010] NSWSC 1401
HEARING DATE(S):	1 December 2010
JUDGMENT DATE :	16 December 2010
JUDGMENT OF:	Hallen AsJ
DECISION:	1. I order that the proceedings be heard consecutively with the evidence in one being evidence in the other. 2. I order that each Summons be dismissed. 3. I make no order as to the Plaintiffs’ costs, to the intent that she, and he, bears her, and his, own costs of the proceedings. 4. I direct that the exhibits and court books be returned.
CATCHWORDS:	SUCCESSION - family provision orders sought - adequacy of provision - Plaintiffs - spouse and children of the deceased - estate left to de facto wife of deceased - small estate - financial and material circumstances of Plaintiffs - whether Plaintiffs have been left without adequate provision for proper maintenance and advancement in life - no provision to be made for Plaintiffs
LEGISLATION CITED:	Succession Act 2006 Succession Amendment (Family Provision) Act 2008
CATEGORY:	Principal judgment
CASES CITED:	Bladwell v Davis & Anor [2004] NSWCA 170 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Cameron v Cameron [2009] SASC 27 Clifford v Mayr [2010] NSWCA 6 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 Foley v Ellis [2008] NSWCA 288 Golosky v Golosky (NSWCA, 8 September 1993, unreported) Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Heyward v Fisher (NSWCA, 26 April 1985, unreported) In the Estate of Puckridge, Deceased (1978) 20 SASR 72 Kleinig v Neal (No 2) (1981) 2 NSWLR 532 Luciano v Rosenblum (1985) 2 NSWLR 65 McCosker v McCosker (1957) 97 CLR 566 McKenzie v Topp [2004] VSC 90 Magill v Magill [2006] HCA 51; (2006) 226 CLR 551 Marshall v Carruthers [2002] NSWCA 47 Mayfield v Lloyd-Williams [2004] NSWSC 419 O’Loughlin v O’Loughlin [2003] NSWCA 99 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9 Re Bull [2006] VSC 113 Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308 Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100 Sellers v Scrivenger & Anor [2010] VSC 320 Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker, (NSWSC, 17 May 1996, unreported) Welsh v Mulcock [1924] NZLR 673
PARTIES:	Zdravka Savic (Plaintiff) Ljiliana Savic (Plaintiff) Igor Savic (Plaintiff) Seok Soon Kim (Defendant)
FILE NUMBER(S):	SC 2010/271083; 2010/86421; 2010/271048
COUNSEL:	Mr K Morrissey (Plaintiffs) Mr R Nair (Defendant)
SOLICITORS:	Lapaine Pomare & Forster (Plaintiffs) Cambridge Lawyers (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HALLEN AsJ

16 DECEMBER 2010

2010/271083 Z SAVIC v KIM
2010/86421 L SAVIC v KIM
2010/271048 I SAVIC v KIM

JUDGMENT

: Before me, for hearing, on 1 December 2010, were three proceedings to be decided under Chapter 3 of the NSW Succession Act 2006 (“the Act”), which applies in respect of the estate of a person who died on, or after, 1 March 2009. In each, the Plaintiff sought a family provision order, which 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.

2 An order was made, at the commencement of the proceedings, by consent, that the proceedings be heard consecutively, with the evidence in one being evidence in the other.

3 The Plaintiffs are Zdravka Savic (“the wife”), Ljiliana Savic (“the daughter”) and Igor Savic (“the son”) respectively. Milan Savic (“the deceased”) was the husband of the wife and the father of the daughter and of the son. The Defendant, in the proceedings, was Seok Soon Kim, the de facto wife of the deceased at the time of his death.

4 The wife commenced her proceedings by Summons filed on 16 August 2010; the daughter commenced her proceedings by Summons filed on 8 April 2010; and the son commenced his proceedings by Summons filed on 16 August 2010. Each Summons was filed within the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased person).

Formal Matters

5 The following facts are uncontroversial.

6 The deceased died on 17 August 2009. He was aged 74 years at the date of his death.

7 The deceased left a Will made on 31 July 2009, probate of which was granted, on 18 December 2009, by the Supreme Court of New South Wales, to the Defendant, the executrix appointed under the Will and the sole beneficiary of the deceased’s estate. The deceased described her, in his Will, as “my wife”.

8 There was no explanation in the Will, or otherwise, by the deceased, why no provision had been made for any of the Plaintiffs.

9 In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased’s estate, at the date of death, was disclosed as having an estimated, or known, value of $350,000. The estate was said to consist of the deceased’s interest, as a tenant in common in equal shares with the Defendant, in an unencumbered property at Liverpool ($350,000) (“the Liverpool property”), which property is land of 520 square metres, on which is built a two-storey residence with 4 bedrooms and 3 bathrooms.

10 There were no liabilities of the deceased identified in the Inventory of Property.

11 The parties, ultimately, agreed that, the present gross value of the distributable actual estate was estimated to be $270,000. (The total value of the Liverpool property was $560,000.) The estimated value does not take into account the estimated costs of the present proceedings, but does take into account the estimated costs and disbursements of selling the Liverpool property (estimated to be $20,000).

12 The deceased also held property, being land, situated at Tomingley, near Narromine, New South Wales, with the Defendant, as joint tenants, at the date of his death. As she survived the deceased, the Defendant is now the sole registered proprietor of the Tomingley land. It has an estimated value of $50,000. That estimate does not take into account the estimated costs and disbursements of selling the Tomingley land ($3,000).

13 The Tomingley land consists of about 100 hectares. It has neither electricity, nor water, connected, and it has only a dilapidated and unoccupied shed built on it.

14 There was no dispute that one half of any net proceeds of sale ($23,500) of the Tomingley land could be designated as notional estate, should it be necessary to do so.

15 It follows, from the above estimates, that the net distributable value of the actual, and, if necessary, notional, estate, of the deceased, is about $293,500 (less any costs and disbursements of the proceedings that are ordered to be paid).

16 There is also property, outside Australia, in which the deceased had an interest. Firstly, there is land, on which is built a two-storey house, in Gradiska, a town in northwestern Bosnia and Herzegovina, which the deceased owned equally with his brother, Milovan, (who is deceased). The house, apparently, is divided into what might be described as two “flats”, with a separate entrance for each. The wife and the son’s de facto partner, live in the top “flat”. The family of the deceased’s brother live in the bottom “flat”.

17 The evidence is that the house is more than 40 years old and somewhat dilapidated. The parties agree that the value of the deceased’s interest in this property is $20,422. There is said to be no possibility of separation of the deceased’s share as a separate building unit, other than by the other co-owner purchasing the deceased’s interest. Even if an attempt were made to separate the deceased’s share, the costs thereof are likely to be significant.

18 In addition, there is some vacant agricultural land owned by the deceased, about 4 kilometres from Gradiska, which the parties agree has a value of about $3,000. The evidence is that the land has not been worked on for a number of years (other than by the wife, partly as a vegetable garden) and that it needs to be cultivated to make it usable. The costs of sale of this land would be substantial.

19 Shortly after the commencement of the hearing, the Defendant, without admissions, by her counsel, confirmed that the Defendant makes no claim to the deceased’s interest in the house, or to his interest in the vacant agricultural land, in Gradiska, and that she is content for the deceased’s interest in each to be conveyed to the wife, the daughter and the son, as they agree, provided that she does not have to bear the burden of costs of this being done.

20 The Plaintiffs’ counsel described this as a “hollow offer”, as there will be some difficulty in achieving the transfer of either property out of the name of the deceased.

21 Neither party submitted that I should make any order in respect of the overseas property. In the circumstances, I note that the Defendant disclaims any interest in the overseas property.

22 In calculating the value of the estate, actual and notional, finally available for distribution, the costs of the present proceedings should also be considered, since, unless the overall justice of the case requires some different order to be made, each Plaintiff, if successful, normally, will be entitled to an order that her, or his, costs should be paid out of the estate of the deceased, whilst the Defendant, irrespective of the outcome of the proceedings, normally, will be entitled to an order that her costs should be paid out of the estate.

23 The Plaintiffs’ costs and disbursements of the proceedings, including counsel’s fees ($29,750) calculated on the indemnity basis, have been estimated to be $63,250 (inclusive of GST). It is said, by the Plaintiffs’ solicitor that “the matter has been more complicated, due to the solicitor for the Defendant ceasing to act in August 2010, following which the Defendant has been unrepresented. This has resulted in the Plaintiffs incurring additional fees, including the need to attend two formal Mediation (sic) and additional Directions Hearings”. Furthermore, I was informed from the bar table, without objection, that there had been three mediations.

24 The Plaintiffs’ costs and disbursements, calculated on the ordinary basis, are estimated to be $40,000.

25 The Defendant’s costs and disbursements of the proceedings, including counsel’s fees ($15,000), calculated on the indemnity basis (inclusive of GST), have been estimated to be about $32,000.

26 In the circumstances, the parties agree, using the estimates given as a guide, that the value of the available actual estate, and if designated as such, the notional estate, for distribution, will be no more than about $221,500.

27 The persons described as eligible persons, within the meaning of the Act, are the parties in the proceedings. No one else has been identified as an eligible person. It was unnecessary for the Defendant to bring any proceedings as she is the sole beneficiary of the deceased’s actual estate and inherits the deceased’s interest as joint tenant in the Tomingley land by survivorship.

The Statutory Scheme – The Act

28 I shall discuss the statutory scheme that is relevant to the facts of the present case.

29 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.”

30 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.

31 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 testator’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 testator'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.

32 An application for a family provision order may be made by an eligible person 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”. Section 55 of the Act sets out the circumstances in which “administration is granted in respect of the estate of a deceased person”.

33 The key provision is s 59 of the Act. Assuming that estate administration has been granted, the court must consider, first, whether the applicant is an eligible person within the meaning of s 57 (s 59(1)(a)). There are six categories of persons by, or on whose behalf, an application may be made. In the case of an applicant who falls within s 57(1)(d), (e) or (f), the court must next consider whether the court is satisfied that there are factors which warrant the making of the application (s 59(1)(b)). 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 it is satisfied of the inadequacy of provision, that the court considers 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.

34 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.

35 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”.

36 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).

37 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.

38 “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”.

39 Neither are the words ‘maintenance’ and ‘advancement in life’ defined. 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.”

40 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.”

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

“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.”

42 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.

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

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

44 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.”

45 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."

46 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.”

47 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.

48 Whether the applicant has a 'need' is a relevant matter at the first stage of the enquiry. It is an element to consider 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, at [42] (Tobias JA, with whom Beazley and Hodgson JJA agreed).

49 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.”

50 In Devereaux-Warnesv 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].”

51 In the event that the court is satisfied that the power to make an order is enlivened (i.e. it is satisfied that the Plaintiff 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.

52 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.

53 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.”

54 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. "May" is permissive; it is not directory or mandatory. Thus, there is no mandatory command to take into account any of the matters enumerated. None of the matters differentiate in their application between classes of eligible person. Similarly, there is no distinction based on gender.

55 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 ss (1)(a), many of the matters in ss (2) will be largely, if not wholly, irrelevant.

56 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 named in the deceased’s will, whilst others do not. Importantly, also, many of the matters in ss (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).

57 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.

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

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

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

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

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

60 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.

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

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

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

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

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

62 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).

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

64 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).

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

66 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).

67 (It is not necessary, in this case, to discuss the notional estate provisions of the Act. The parties approached this aspect upon the basis that one half of the net proceeds of the Tomingley land could be designated as notional estate.)

68 In addition to the above matters, there are some general principles that are relevant to the facts of this case. Whilst the principles to which I shall refer, were espoused in the context of the previous legislation, they are equally apt in a claim such as the present one.

69 Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate, to endeavour to achieve a ‘fair’ disposition of the deceased's estate. It is not part of the court's role 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.

70 In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the court to be vigilant in guarding "against a natural tendency to reform the testator’s will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant".

71 The court’s discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased’s freedom of testation (Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9, per Dixon CJ at 19); McKenzie v Topp [2004] VSC 90 at [63]. Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Usually, the deceased is in a far better position than a court to know, and understand, the claims on his, or her, bounty: Stott v Cook (1960) 33 ALJR 447, per Taylor J, at 453.

72 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 proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker, (NSWSC, 17 May 1996, unreported); Vigolo v Bostin at [11]; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.

73 In Vigolo v Bostin Gleeson CJ, at [11], cited with approval the observations of Salmond J in Welsh v Mulcock [1924] NZLR 673 at 685 that:

"… the testamentary duty of a man towards his family is not limited to a merely eleemosynary provision sufficient to provide the necessities of existence. This may be the measure of the legal obligation of a husband or a father in his lifetime under the Destitute Persons Act, but it is not the measure of that moral obligation - that officium pietatis , as the Roman lawyers called it - which he owes to his family in respect of the testamentary disposition of his estate, and which is recognised and enforced by the Family Protection Act."

74 Gleeson CJ went on to say at [12]:

"The 'testamentary duty' which justified legislative interference with a free exercise of testamentary capacity, that is, the duty of a man to make provision for his wife and children, was seen as a moral duty. The legislation was not merely, or even primarily, concerned with relieving the State of the financial burden of supporting indigent widows and children. The courts were not empowered merely to make such provision for an applicant as would rescue the applicant from destitution. The legislative power was to make 'proper' provision. Judicial explanation of what was meant by proper provision was based upon the idea of a moral obligation arising from a familial relationship. That is one of the fundamental ideas upon which the structure of our society is based."

75 And in Magill v Magill [2006] HCA 551; (2006) 226 CLR 551, albeit in another context, his Honour said, at [24]:

“The structure of marriage and the family is intended to sustain responsibility and obligation.”

76 Generally, the duty of the deceased to his widow, to the extent to which his assets permit him to do so, is to ensure that she is secure in the matrimonial home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies: see, for example, Luciano v Rosenblum (1985) 2 NSWLR 65, at 69. The Court of Appeal, in O’Loughlin v O’Loughlin [2003] NSWCA 99, approved that “broad general rule”.

77 In Bladwell v Davis & Anor [2004] NSWCA 170, the Court of Appeal noted that “rules of thumb” should not be elevated to rules of law. Bryson JA, with whom Ipp and Stein JJA agreed, said at [19]:

“In the application of the test in s 7, and of the exposition thereof in Singer v Berghouse by Mason CJ, Deane and McHugh JJ at 409–411 it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse , in full and with reference to the instant facts. Defeat of the opponents' claims does not necessarily follow from a demonstration, which the claimant can make, that all her needs with respect to income, home renovation, and provision for contingencies cannot be met if any provision is made for the opponents; indeed she could well demonstrate that even if the provisions of the will took effect without any modification, the provision for her is not adequate. That is not a demonstration that no claim by an eligible person can succeed; the claims and circumstances of the opponents also have to be weighed, and they too have their needs and merits.”

78 Ipp JA added (at [2]) that:

“… where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others.”

79 In McKenzie v Topp, Nettle J considered the claims of children of a first marriage to the estate of their parent, compared with the claims of the parent’s widow. At [58], his Honour observed:

“For just as community attitudes are the touchstone of adequate provision, so too are they the criterion of responsibility to provide. Other things being equal, right thinking members of society are likely to accept that the needs of the widow of a second marriage should rank in priority ahead of the claims of the children of a first marriage; although of course it is always a question of fact. But equally, upon the death of the widow, and as it were in the event of a surplus, most would surely say that the children of the first marriage should rank for their fair share. For once the widow is gone, and therefore no longer in need of provision, her needs no longer warrant that the children rank behind her or thus her chosen successors.”

80 In any event, the general principle should not be regarded as one of immutable application: Marshall v Carruthers [2002] NSWCA 47; Clifford v Mayr [2010] NSWCA 6 at [142]-[144].

81 Whilst the distinction between married relationships and de facto relationships has narrowed considerably over time, there remains binding authority which gives greater weight to the claims of parties who have entered “a formal and binding commitment to mutual support”: Marshall v Carruthers; Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308; Sellers v Scrivenger & Anor [2010] VSC 320 at [68].

82 It is not the purpose of the Act to punish, or redress, past bad, or unfeeling parental behaviour, where that behaviour does not still impinge on the applicant's present financial situation. In other words, a claim under the Act does not encompass compensation, or reparations, to an applicant for the deceased as his, or her, parent, having failed in the legal or moral duty to be a good and responsible parent of the child: Re Bull [2006] VSC 113; Cameron v Cameron [2009] SASC 27 at [41].

83 Similarly, the purpose of the jurisdiction conferred by the Act is not the correction of the hurt feelings of, or the sense of wrong felt by, the competing claimants. The Court is obliged simply to respond to the application of the eligible person and to consider whether, as claimed, the provision made by the will is inadequate for that person’s proper maintenance and advancement in life (see: Golosky & Anor v Golosky (New South Wales Court of Appeal, 8 September 1993, unreported) and Heyward v Fisher (New South Wales Court of Appeal, 26 April 1985, unreported).

84 An adult son does not fall into any special category and it is not necessary for him to establish some special need, or special claim, before he can be entitled to the benefit of an order for provision: Kleinig v Neal (No 2) (1981) 2 NSWLR 532.

85 There is no obligation upon the deceased to have treated all of his, or her, children equally in making provision in the Will.

86 The important consideration is whether, in all the circumstances, the community expectation of the deceased would be for greater benefaction to have been made for the proper or adequate provision for the person, or persons, seeking provision. Gleeson CJ observed in Vigolo, at [11] that the justification for interference with freedom of testation is to be found in the failure of a deceased to meet the obligations, which the community would expect in terms of maintenance, for those persons within the class of eligible persons.

Credibility of Witnesses

87 Overall, I consider that each witness gave her, or his, oral evidence truthfully. I am satisfied that, generally, there were not many facts seriously in dispute. Neither party made any submission to the contrary.

88 The one matter that caused me some disquiet was the evidence of the wife that she had no income whatsoever, other than the moneys sent to her, intermittently, by the daughter and by the son. I found the wife’s evidence in this regard a little evasive.

89 Despite my concern, there was no evidence, advanced by the Defendant, which established the wife was receiving any pension, or other income, which she had not identified or disclosed.

90 I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60 of the Act.

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

91 The wife and the deceased married in about 1969 and remained married until the deceased’s death, although the deceased lived, principally, in Australia before 1970. The deceased had become an Australian citizen on 16 December 1970.

92 They had been married for about 40 years at the date of the deceased’s death, although there is no suggestion that they spent any significant time together from, at least, 1987. In fact, the wife said, during her cross-examination, that, in 1987, the deceased “came and picked up all the jewellery and that was it”. It appears that the deceased did not return to Gradiska until 2004, when he spent a short time there.

93 The deceased maintained little contact with the wife during the period that he lived in Australia, except they did have conversations about the daughter and the son. The contact was cordial.

94 The wife became aware, in 1994, when the son told her, that the deceased was living, in Sydney, with the Defendant. She accepted that fact as something that she could not change (“It is the way it was and I am not able to change anything about it.”). I gather, from her evidence, generally, that, by this time, she had accepted the inevitable about their marital relationship.

95 Even though the wife maintained during her cross-examination that she would “always” be the wife of the deceased, I formed the impression that this was in a cultural, or religious, sense. The deceased, for many years prior to his death, did not regard her as his wife.

96 I accept, however, that she was sad when, in 2009, the daughter and the son told her that the deceased was dying, and that she loved the deceased because he was the father of the daughter and the son.

97 In all the circumstances, I regard the wife as the spouse of the deceased with whom he had not lived for at least 25 years.

98 As stated, the daughter and the son is each a child of the deceased.

99 The daughter, at the invitation of the deceased, came to Australia in 2003, and stayed with the deceased and the Defendant until 2007. From that time on, although she remained living in Sydney, she saw the deceased irregularly, and, generally, not when the Defendant was present. She visited the deceased in around March 2009, after he was released from Hospital. It was then that he told her that he had been diagnosed with cancer. I am satisfied that her relationship with the deceased was reasonably close and loving.

100 Prior to travelling to Australia in 1994, the son did not see very much of the deceased. The deceased assisted him to travel to Australia then. The son stayed with the deceased and the Defendant. However, the son would return to Gradiska, to assist the wife, regularly. When he returned to Australia, he would stay with the deceased and the Defendant.

101 The deceased informed the son, in 2009, that he was very ill. The son travelled to Sydney to visit him. I am satisfied that the son’s relationship with the deceased was close and loving.

102 The deceased and the Defendant met, in about 1984, and began living together in a de facto relationship shortly thereafter. They remained living together until his death. They had no children together. The daughter and the son stayed with the deceased and the Defendant at various times to which I shall refer from 1994.

103 The Defendant and the deceased had, therefore, been living together for about 25 years. There is nothing to suggest that the relationship was other than close and loving. (In this regard, I do not accept the implicit criticism regarding the Defendant’s treatment of the deceased shortly before his death, by the son.)

(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

104 Leaving aside any obligation, or responsibility, arising as a result of their relationship as spouses, the deceased did not have any legal, or financial, obligation to the wife imposed upon him by statute or common law. They were separated, but there were no court orders in force relating to the provision of maintenance.

105 However, an obligation, or responsibility, to make adequate provision for an applicant’s proper maintenance and advancement in life may be recognised in the case of a spouse, even though, as here, they have not lived together for a long time, especially if there has been no property settlement.

106 Whilst it appears to be admitted that the deceased did provide some financial assistance to the wife, the daughter and son, whilst they lived in Gradiska, there is a dispute as to the amount and regularity of the financial assistance that he provided. There is no dispute that he sent some moneys to the daughter to attend university, but when he stopped doing so, she could no longer attend.

107 I have read a statutory declaration made by the deceased on 24 September 2001, which was submitted for the purposes of assisting the daughter to obtain a visa. In that statutory declaration, the deceased stated that he was supporting the daughter financially.

108 Considering the evidence of the Defendant that the deceased did not work for much of the period of time that she lived with him, it is likely that the financial assistance that was provided was sporadic, and probably, in Australian dollar terms, not very much. However, there is nothing to suggest that the deceased did not provide as much as he could, bearing in mind his own financial commitments.

109 The deceased did not assume any obligations, or responsibilities, towards the daughter and the son, at the time of his death. Each was, by then, an adult and in employment, or mostly in employment. Neither was each financially dependent upon him at the time of his death and, probably, for some years previously. The deceased did, however, allow the son to live with him and the Defendant rent and board free for some time. The deceased appears to have been less generous to the daughter, as she maintained that she paid some rent to the deceased while she lived with him and the Defendant.

110 Any obligation, or responsibility, to the daughter and the son was that naturally arising from his parental relationship to each.

111 Leaving aside any obligation, or responsibility, arising as a result of their relationship as de facto partners, the deceased did not have any legal, or financial, obligation to the Defendant imposed upon him by statute or common law. There were no court orders in force relating to the provision of maintenance. However, an obligation or responsibility would be recognised in the case of a de facto partner of 25 years.

(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

112 I have dealt with this earlier in this judgment.

113 It is relevant to note that the whole of the actual estate is the deceased’s interest in the Liverpool property, which he owned, with the Defendant, as tenants in common in equal shares at the date of his death. It was the matrimonial home of the Defendant and the deceased from about 2002. It remains the Defendant’s home.

114 The parties agree that there is some notional estate, but it is of relatively little value.

115 On any view, on the basis of the agreement of the parties on the estimates of value, the deceased’s estate, actual and notional, is a very small one. It will be even smaller if the estimated costs, or even a part of those costs, are deducted.

(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

116 The wife does not receive any state pension, or other form of financial assistance from any person other than the son and the daughter. Because of her age and because of the difficulty in obtaining work in Gradiska, I find that she does not have any earning capacity. She has no assets (other than about $100 - $200) and no liabilities.

117 The wife wishes to come to live in Australia. She estimates the costs of obtaining a visa and associated costs are $53,840. The travel costs are estimated to be about $3,000. She also states that she requires income to support herself for at least a period of two years. If she came to Australia, she would like to buy a one-bedroom home unit ($250,000 to $350,000), which she would need to furnish ($15,000 - $20,000). She seeks an additional amount for exigencies of life.

118 The daughter is an Australian citizen. She works as a sales assistant on a part time basis. She has been employed since coming to Australia in 2003, although she has had the occasional period of unemployment. She works no less than 15 hours a week and no more than 25 hours a week. Her net income is $1,600 per month. Her expenses equal her income. At her age and stage of life, she has an earning capacity. She accepted, in cross-examination that she is able to work and look after herself. She has $3,000 in savings.

119 She sets out her needs as follows:

(a) Monies to undergo study at University: $6,000 - $10,000

(b) To replace her motor vehicle with a new car: $20,000 - $25,000

(c) Purchase a one or two bedroom home unit: $200,000 - $250,000

(d) To purchase furniture and furnishings: $25,000

(e) To visit her family in Bosnia every two years: $6,000 - $10,000

120 The son is an Australian citizen also. He is a plasterer by trade. He has been living in Sydney, most recently, since July 2010. He lives with the daughter. His de facto wife lives in Gradiska. He states that he has difficulty obtaining regular employment, but when he does, he earns about $1,000 per week. He has no assets apart from a car ($5,000) and no liabilities. At his age and stage of life, he has an earning capacity. He did not dispute that he is quite able to work and look after himself.

121 He sets out his needs as follows:

(a) He would like to obtain formal qualifications to improve his prospects of obtaining long-term employment.

(b) He asserts he has an aptitude for computer-assisted design. In order to obtain such qualifications he would need sufficient funds to enable him to study as a mechanical engineer. He believes this would cost between approximately $15,000 - $20,000.

(c) His car is 11 years old and he asserts it is in very poor condition. He estimates a modest replacement car would cost approximately $20,000.

(d) If his mother were to emigrate to Australia, it would be his desire to purchase a unit to house himself and his de facto partner in close proximity to any property that his mother could purchase or rent. He understands from inquiries that accommodation in Australia for a two-bedroom unit can vary from $300,000 to $550,000 (in Sydney) depending on location. He estimates rent for a similar to-bedroom unit would be approximately $400 per week to $500 per week.

(e) He would like to purchase modest furnishings at a cost of between $15,000 and $25,000.

122 The Defendant currently receives Centrelink benefits, as she is not working. She owns a car ($3,000). She goes to TAFE where she is learning English. She performs some voluntary work teaching sewing for which she is not paid. She has about $300 in savings. She, of course, is entitled to the whole of the deceased’s estate.

123 Depending upon the results of these proceedings, the Defendant hopes to be able to rent one of the rooms in the Liverpool property, to supplement her income. She has some working capacity, although she has not, apparently, worked for some years.

124 Whilst the wife is unlikely to be able to advance herself in life, I have little doubt, having observed each of the daughter and son, that she and he will be able to do so. It is unlikely that the Defendant will be able to advance herself in life.

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

125 The wife, so far as is known, is not co-habiting with any other male person. She lives with the son’s de facto wife.

126 The daughter is not co-habiting with any other person, other than the son.

127 The son is not co-habiting with any other person, other than the daughter, but he anticipates that when his de facto wife emigrates to Australia, they will live together.

128 The Defendant is not co-habiting with any 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

129 The wife has what is described in her affidavit as “a spinal condition”. However, I gather from her oral evidence that this is back pain. She is otherwise healthy.

130 The daughter is, generally, in good health.

131 The son is in good health.

132 The Defendant, whilst stressed by these proceedings, does not suggest that she is in ill health.

133 There is no intellectual or mental disability from which any of the parties suffers.

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

134 The wife is presently aged 60 years.

135 The daughter is presently aged 31 years.

136 The son is presently aged almost 38 years.

137 The Defendant is aged 57 years.

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

138 Each of the Plaintiffs admits that she, and he did not contribute directly to the acquisition of the Liverpool property, or to the Tomingley land. However, it is submitted that because the deceased did not provide substantially for their maintenance especially in the years he lived in Australia, they indirectly did so.

139 I do not accept his submission. There is nothing to suggest that the deceased did not do what he could, bearing in mind his financial circumstances, to provide for the Plaintiffs. When he worked, it appears that he worked as a labourer. It is unlikely that he earned a large income. There is no suggestion that he and/or the Defendant lived an extravagant lifestyle. His assets, at the date of death, reflect that his life, even in Australia, did not provide him with great financial wealth.

140 It is clear that the Defendant made a significant financial, and other, contribution to the purchase of the property of the deceased. Her evidence is that she worked as a dressmaker and embroiderer during her relationship with the deceased, sometimes, in more than one job. At the time she met the deceased, she had savings of $20,000, which she contributed to the purchase of the first property, in Marrickville, which was registered in the deceased’s name. They lived there together for 18 years. She also contributed to making mortgage payments ($800 per month) in respect of the Marrickville property. Her income went, in part at least, also to assisting in the payment of their living expenses.

141 When the Liverpool property was purchased, after using the whole of the net proceeds from the sale of the Marrickville property, $6,000 was borrowed and secured by mortgage. The Defendant has subsequently repaid that debt.

142 The Defendant acknowledges that she did not contribute towards the purchase price ($25,000) of the Tomingley land. The deceased used part of the proceeds of a compensation payment made to him in about 1989 for that purpose.

143 There is no doubt that the wife made a significant contribution to the welfare of the daughter and the son. In effect, she brought them up alone.

(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

144 The deceased made no specific provision out of his estate, for any of the Plaintiffs. There is a dispute about the provision made for each during the deceased’s lifetime. I have dealt with this previously.

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

145 There is no evidence that is relevant to this matter.

(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

146 Other than as set out above, there is no evidence that the deceased maintained any of the Plaintiffs, either wholly, or partly, before his death.

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

147 There is no other person with a liability to support any of the Plaintiffs. However, I note that the son, and on occasions, the daughter, does provide financial assistance to the wife.

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

148 The paragraph is not confined to character or conduct disentitling or conduct towards the deceased.

149 There is nothing in the wife’s character, or her conduct, which would lead to the view that the deceased had a reason for not naming her as a beneficiary in his Will. The suggestion made by the deceased to the Defendant that the wife had an affair was denied by the wife and was, otherwise, unsupported by the evidence. (Even if she had another relationship after 1984, in the circumstances of this case, one could not be critical of the wife.)

150 At all relevant times, in caring for the daughter and the son, in effect, on her own, no doubt in trying financial, and other, circumstances, I find that the wife’s conduct was exemplary.

151 There is nothing in the character of the daughter, or of the son, that would lead to the view that the deceased had a reason for not naming her, or him, as a beneficiary in his Will. That the daughter had some disagreements with the Defendant whilst the deceased was alive may explain why she had more limited contact with the deceased after 2007.

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

152 The Defendant was the chosen object of the deceased’s bounty. She had been the deceased’s de facto wife for 25 years and there is nothing to suggest that the relationship was not a happy one. Her conduct towards the deceased does not warrant any criticism.

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

153 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

154 There is only one other matter that I consider relevant. That relates to the property of the deceased overseas, to which the Defendant makes no claim. The wife and the children may take such steps as they can to ensure that the interest of the deceased in each parcel of land passes to them. In any event, the wife has had, and continues to have, the use of part of the residence, as she has had for over 40 years.

Submissions

155 Each of the counsel provided written submissions that I shall leave with the papers.

156 Mr K Morrissey submitted that each of the Plaintiffs should receive a lump sum. In the case of the wife, he submitted that the wife should receive $60,000, which sum would enable her to travel to Australia and provide a small buffer for her when she arrived. In relation to the daughter and the son, each should receive a lump sum of $30,000 as a capital fund to assist them.

157 Alternatively, he submitted that a lump sum sufficient to enable the wife to come to Australia should be ordered. He submitted that the Defendant would have sufficient to purchase a two bedroom home unit in Liverpool.

158 Mr R Nair for the Defendant submitted that the estate was of insufficient size to make provision for any of the Plaintiffs. He submitted that the competing claim of the Defendant was so strong as to justify there being no order made in this case. He submitted, also, that as the Defendant was disclaiming any interest in the property overseas, this would, in effect, provide at least secure accommodation for the wife. The daughter and son were adult and able bodied and capable of looking after herself and himself.

Determination

159 Claims for a family provision order present particular difficulties where the estate is small. Any provision made by the Court in favour of the applicant must, in this class of case, be made at the expense of the beneficiary who has had to defend the claims.

160 There is no dispute that each of the Plaintiffs is an eligible person within the meaning of that term in s 57(1)(a) and (c), respectively, of the Act. It is, thus, unnecessary to consider whether there are any factors warranting the making of her, and his, application.

161 As each of the Plaintiff’s proceedings has been commenced within the time prescribed by the Act, the first question for determination is whether, at the time when the court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made, 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.

162 There was no provision whatsoever in the deceased’s Will made for any of the Plaintiffs. The operation of the intestacy rules is irrelevant. Having regard to the familial relationship between each and the deceased, I find that adequate provision for the proper maintenance or advancement in life of each Plaintiff was not made by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.

163 It is, then, necessary to consider whether to make a family provision order and the nature of any such order.

164 In the case of each Plaintiff, I have come to the view that no order should be made. The nature and the value of the deceased’s estate, the practical and inevitable effect (being the sale of the matrimonial home in which she has lived for the last 8 years) of any order that might be made in making any provision in favour of each of the Plaintiffs, taken with the strength of the competing claim of the Defendant, are very important matters in coming to my conclusion. It is quite clear that the estate, actual and notional, is insufficient to meet the entirety of the claims upon it.

165 No doubt, if the deceased had possessed more when he died, he would have been bound to do more for each of the Plaintiffs. As it is, the estate is barely sufficient to meet the deceased’s obligation to the Defendant, with whom he had lived for 25 years, let alone to permit provision to be made for any of the Plaintiffs. That is, no doubt, an unfortunate result so far as the Plaintiffs are concerned, but it is one that comes about because of the limited confines of the available assets in this estate.

166 In the circumstances, it is unnecessary to consider the nature of the orders that should be made.

167 Each party made submissions on costs upon the basis that I may find that the Plaintiffs would not succeed. Mr Nair made a “formal” submission that the Plaintiff, in each case, should pay the costs if the Summons, was dismissed. However, he fairly accepted that to do so might be somewhat harsh in the circumstances of this case, where a lump sum, by way of advancement, for each of the Plaintiffs, in a larger estate, might have been appropriate.

168 Mr Morrissey submitted that even if the Plaintiffs were unsuccessful, no order for costs should be made.

169 In the circumstances, and with some hesitation, I find that no order for costs against the Plaintiffs should be made in the present case. The reason for my hesitation is that the Plaintiffs should have been aware, or should have been made aware, of the nature and value of the deceased’s estate at the time the proceedings were commenced, and of the very significant obligation owed by the deceased to the Defendant.

170 This is a borderline case on costs. The fact that has, ultimately, swayed me, is that had the estate been larger, the Plaintiffs’ claims might well have succeeded. However, this fact should not be seen as giving rise to a general principle of not ordering unsuccessful applicants to pay costs in proceedings in which a family provision order is sought. In small estates, particularly where there is, or are, valid and significant competing claims of one, or more beneficiaries, Plaintiffs should be carefully advised before making a claim.

171 I order that the proceedings be heard consecutively with the evidence in one being evidence in the other. I order that each Summons be dismissed. I make no order as to the Plaintiffs’ costs, to the intent that she, and he, bears her, and his, own costs of the proceedings.

172 There does not seem to be any point making an order that the Defendant’s costs should be paid out of the estate, since she is the sole beneficiary of the deceased’s estate. I am, however, prepared to make such an order if the Defendant desires it, for other reasons.

173 I direct that the exhibits and court books be returned.

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