Shakespeare v Flynn; Shakespeare v Flynn - [2014] NSWSC 605

Supreme Court

New South Wales

Medium Neutral Citation: Shakespeare v Flynn; Shakespeare v Flynn [2014] NSWSC 605
Hearing dates: 30 April, 1 May 2014
Decision date: 19 May 2014
Jurisdiction: Equity Division
Before: Hallen J
Decision:
Direct the parties, within 14 days, to bring in Short Minutes of Order giving effect to these reasons and any agreement reached between them as to costs. Stand the matter over to a convenient date in May 2014.

Catchwords: SUCCESSION - Two Plaintiffs, each of whom is a child of the deceased, make a claim for a family provision order - One of the Plaintiffs is a person under a legal incapacity - No dispute as to the Plaintiffs' eligibility - Some provision made for each Plaintiff in the Will of the deceased, but only after the death of the first Defendant, the widow of the deceased - Grandchild of the deceased also a contingent beneficiary upon death of the widow - Whether family provision order should be made for either Plaintiff, and if so, the nature and quantum of the further provision to be made - Order for provision of each Plaintiff - Necessary to make adjustment order under s 66 of the Act
Legislation Cited: Family Provision Act 1982 (NSW)
NSW Trustee and Guardian Act 2009 (NSW)
Practice Note SC Eq 7
Probate and Administration Act 1898 (NSW)
Property (Relationships) Act 1984 (NSW)
Protected Estates Act 1983 (NSW)
Succession Amendment (Family Provision) Act 2008 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Akkerman v Ewins [2003] NSWCA 190
Alexander v Jansson [2010] NSWCA 176
Allardice v Allardice; In re Allardice (1910) 29 NZLR 959
Andrew v Andrew [2012] NSWSCA 308; (2012) 81 NSWLR 656
Aubrey v Kain [2014] NSWSC 15
Bartlett v Coomber [2008] NSWCA 100
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Buckland Deceased, Re [1966] VR 404
Butcher v Craig [2009] WASC 164
Christie v Manera [2006] WASC 287
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 9 ALR 93; (1976) 50 ALJR 539
Crossman v Riedel [2004] ACTSC 127
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Edgar v Public Trustee for the Northern Territory [2011] NTSC 05
Flathaug v Weaver [2003] NZFLR 730
Foley v Ellis [2008] NSWSC 288
Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep)
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Grey v Harrison [1997] 2 VR 359
Hampson v Hampson [2010] NSWCA 359
Harrisson v Skinner [2013] NSWSC 736
Hawkins v Prestage (1989) 1 WAR 37
Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Hyland v Burbidge [2000] NSWSC 12
Kay v Archbold [2008] NSWSC 254
Kembrey v Cuskelly [2008] NSWSC 262
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Luciano v Rosenblum (1985) 2 NSWLR 65
MacGregor v MacGregor [2003] WASC 169
Magill v Magill [2006] HCA 51; (2006) 231 ALR 277
Marks v Marks [2003] WASCA 297
Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47
Mayfield v Lloyd-Williams [2004] NSWSC 419
McCosker v McCosker (1957) 97 CLR 566
McGrath v Eves [2005] NSWSC 1006
Neale v Neale [2013] NSWSC 983
O'Loughlin v O'Loughlin [2003] NSWCA 99
Palaganio v Mankarios [2013] NSWSC 61
Phillips v James [2014] NSWCA 4
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Pogorelic v Banovich [2007] WASC 45
Puckridge, Deceased, In the Estate of (1978) 20 SASR 72
Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Slack v Rogan; Palffy v Rogan [2013] NSWSC 522
Slack-Smith v Slack-Smith [2010] NSWSC 625
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stiles v Joseph (Supreme Court (NSW), Macready M, 16 December 1996, unrep)
Stott v Cook (1960) 33 ALJR 447
Szypica v O'Beirne [2013] NSWSC 297
Taylor v Farrugia [2009] NSWSC 801
Tobin v Ezekiel [2012] NSWCA 285
Verzar v Verzar [2012] NSWSC 1380
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep)
West v Mann [2013] NSWSC 1852
White and Tulloch v White (1995) 19 Fam LR 696
Texts Cited: J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths)
Rosalind Atherton, 'The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?' (1999) 5 Australian Journal of Legal History 5
Category: Principal judgment
Parties: Coco Shakespeare (Plaintiff in 2013/28936)
Tori Shakespeare (by her tutor the NSW Trustee & Guardian) (Plaintiff in 2013/38273)
Elizabeth Anne Flynn (first Defendant in both proceedings)
Genevieve Margaret Corish (second Defendant in both proceedings)
Representation: Counsel:
Mr D Liebhold (Plaintiff in 2013/28936)
Mrs M Bridger (Plaintiff in 2013/38273)
Mr G M McGrath (Defendants)
Solicitors:
De Groots Will & Estate Lawyers (Plaintiff in 2013/28936)
Shaw McDonald Lawyers (Plaintiff in 2013/38273)
Staunton & Thompson (Defendants)

File Number(s): 2013/28936; 2013/38273

Judgment

The Claims

HIS HONOUR: These reasons relate to two different proceedings, in which a family provision order pursuant to the Succession Act2006 (NSW) ("the Act"), and costs, are sought out of the estate and/or notional estate of Clive Richard Shakespeare ("the deceased"). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the court in relation to the estate, or notional estate, of a deceased person, to provide from that estate and/or notional estate, for the maintenance, education, or advancement in life, of an eligible person.

In the proceedings, commenced first, by Summons filed on 30 January 2013, that is within the time prescribed by the Act (within 12 months of the deceased's death), the Plaintiff is Coco Shakespeare, a daughter of the deceased.

In the proceedings, commenced second, by Summons filed on 7 February 2013, also within the time prescribed by the Act, the Plaintiff is Tori Shakespeare, also a daughter of the deceased, by her tutor, the NSW Trustee and Guardian.

The Defendants named in each of the proceedings are Elizabeth Anne Flynn, the widow of the deceased at the date of his death, and Genevieve Margaret Corish, a long time friend of the deceased. Both were appointed in the Will of the deceased as the executors and are the persons to whom Probate of the deceased's Will was granted.

Without intending to convey undue familiarity, with no disrespect intended, and for convenience, I shall refer, hereafter, to the parties and family members, after introduction, by her, or his, given name.

Prior to the hearing, with the consent of the parties, I had made an order, pursuant to Uniform Civil Procedure Rules 2005 (NSW), rule 28.5, in each case, that the proceedings should be heard one immediately after the other, with the evidence in one being evidence in the other. This was a necessary course because there are similar issues in both proceedings; as the estate (and notional estate) of the same deceased person is involved; because to do so would allow the efficient disposal of the business of the court as well as the efficient use of available judicial and administrative resources; and because it would permit the timely disposal of the proceedings at a cost more affordable to the respective parties.

The hearings proceeded with the reading of the evidence filed in each matter. There were only a few objections to parts of the affidavits that needed to be ruled upon. The cross-examination of Coco, her mother, Slava, and Elizabeth, and of a clinical psychologist, Ms M Morrow, who had prepared two reports read in Tori's case, then occurred. None of the other deponents, whose affidavit was read, were cross-examined. Finally, counsel made oral submissions in support of the written submissions, which are retained in the court file. The estimated duration of the hearing was two days, and the proceedings were concluded within that time.

However, in view of an issue that arose during the cross-examination of Elizabeth (being her entitlement to an increased pension if her income is reduced), which the legal representatives thought might be able to be resolved by providing additional agreed facts, I granted leave to the parties to provide me with a statement of agreed additional facts after the hearings had concluded, by 8 May 2014. At the request of the parties, the time was extended until 13 May 2014.

On 14 May 2014, the court received a document headed "Agreed facts in relation to the effects of the sale of the [Newtown property] on the pension of the first Defendant". I have marked this document as Ex. A. (I have also included some of the agreed facts later in these reasons.)

Formal Matters

The following facts are uncontroversial. In relation to a number of the formal matters, as to amounts, they were included in a document headed "Agreed Figures", which was tendered as Ex. P1.

The deceased died on 15 February 2012. He was then aged 64 years having been born in June 1947, in England. He had migrated with his family to Australia, settling in Sydney in about 1964.

The deceased had been a founding member of the pop rock group "Sherbet", which had some commercial success in Australia in the 1970s. He left the group in about 1976, having co-written a number of the band's songs.

The deceased was married to Slava Shakespeare in 1969. There were two children of the marriage, namely Coco and Tori. The deceased and Slava separated and, subsequently, in July 1993, a divorce order was made. The deceased and Slava had a property settlement at, or about, the time of the dissolution of their marriage.

The deceased married Elizabeth in December 2001 and remained married to her at the date of his death. They had commenced a relationship in April 1993 and commenced living together, on a full-time basis, in 1997. Their relationship, therefore, in total, spanned almost 19 years. There were no children of their marriage.

The deceased left a Will that he made on 21 December 2007 ("the Will"), Probate in common form of which was granted, by this court, to Elizabeth and Genevieve, on 29 May 2012. By the Will, after the revocation of all former wills and other testamentary dispositions, the deceased, relevantly, provided for:

(a) a bequest of all his "household chattels", which term was defined, and all income from "my music royalties" to Elizabeth: Clause 3;

(b) a devise of all his right, title and interest in the freehold property at Newtown ("the Newtown property") to Elizabeth for her life, and upon her death, to those of Coco, Tori and Ruby Shakespeare (Coco's daughter), who survived and attained the age of 21 years, as tenants in common in equal shares, with a direction that any, or all, income from the Newtown property, was to be applied by Elizabeth, in her absolute discretion, to those of Elizabeth, Coco, Tori and Ruby, as she should so decide: Clause 4;

All counsel agreed that Clause 4 provided that the trustee of the Newtown property is Elizabeth only; that the income from the Newtown property passes to Elizabeth, for her life, absolutely, but that she may, in her absolute discretion, apply it to those of Coco, Tori and Ruby, as she should decide; and that the devise of the remainder to Coco, Tori and Ruby, is contingent upon each of surviving Elizabeth; and in the case of Ruby, also attaining the age of 21 years.

The Inventory of Property disclosed to the court under s 81A of the Probate and Administration Act 1898 (NSW), a copy of which Inventory was attached to the Probate document, stated that the property owned solely by the deceased at the date of his death, had an estimated (or known) gross value of $868,454. The deceased's actual estate was said to consist of the Newtown property ($800,000), monies in current accounts ($4,074), shares in public companies ($12,064), a motor vehicle ($5,650), other personal property ($45,000) and music royalties ($1,665). (I have omitted, and shall continue to omit, any reference to cents, which explains what may appear to be mathematical errors.)

No jointly held, or other, property, in which the deceased held an interest at the date of his death, was disclosed in the Inventory of Property.

Although no liabilities were disclosed in the Inventory of Property, the debts and funeral expenses, partially paid out of the estate ($7,000), initially, amounted to about $12,000. Elizabeth paid the balance of the funeral expenses and makes a claim for the balance ($5,000). Probate costs of $7,958 were paid out of the estate.

At the commencement of the hearing, the parties agreed that the estimated gross value of the Newtown property, at the date of the hearing, was $800,000. They also agreed that, if it became necessary to sell the Newtown property, there would be CGT payable ($81,765) and that there would be costs and expenses of sale, including agent's commission, advertising and associated expenses, and legal costs (in total, $22,000). Each would be a testamentary, or administration, expense.

At the date of the hearing, the Newtown property remained registered in the name of the deceased. There was no reason why it had not been transmitted into the name of Elizabeth, as trustee.

The other property, which forms part of the actual estate of the deceased, was agreed as having a gross value of $60,890. That property consisted of shares in public companies ($17,882), a car ($3,000), musical instruments and equipment (if able to be sold) ($38,000) and royalties received by Elizabeth ($2,008) since the death of the deceased.

All of the net rental income from the Newtown property has been distributed to Elizabeth ($37,753). The parties requested that I treat the amount distributed as provision received by Elizabeth out of the estate of the deceased. (Of course, under the Will, she was entitled to receive that income.)

In the event that provision is made for one, or both, of the Plaintiffs, it was accepted that the Newtown property would need to be sold. I raised with the parties the possibility that it could sell for more, or for less, than the agreed estimated gross value, with the result that one party, or the other, might be detrimentally affected by its actual sale price if a lump sum order were made. I suggested that it would be prudent, in the event that each Plaintiff is successful, to provide her, absolutely, or otherwise, with a percentage of the net proceeds of sale of the Newtown property. In this way, all of the beneficiaries would benefit if that property were sold for a greater price than had been estimated, and all would be detrimentally affected if it sold for less.

After obtaining instructions, each of the parties stated, through her counsel, respectively, that any lump sum to be paid, whether absolutely or otherwise, should be calculated by reference to a percentage of the actual net proceeds of sale. I shall follow this course. It will result in Elizabeth, as the sole residuary beneficiary, retaining the other property referred to above. (In any event, there is evidence that suggests that the other property has already been distributed to Elizabeth absolutely.)

In each Summons, Coco and Tori, respectively, sought provision out of the estate and the notional estate of the deceased. The parties agreed that, at the date of his death, the deceased and Elizabeth conducted a joint bank account which then held $333,000. They agreed that as at 3 April 2014, the amount held in the account is $286,000. This amount passed to Elizabeth by survivorship. It forms part of her financial resources to which reference will be made.

At the hearing, counsel for each of the Plaintiffs stated that, in the event an order is made in each Plaintiff's favour, there will be enough in the actual estate (in effect, the net proceeds of sale of the Newtown property), to satisfy the order for provision and costs, and, in those circumstances, it would not be necessary to designate any jointly held, or distributed, property as notional estate. (The fact that Elizabeth has received the joint funds and distributed property, also will be taken into account as provision received by Elizabeth as a result of the death of the deceased.)

The deceased's superannuation of about $46,375, which was paid to Coco and Tori equally, in September 2013, may also be designated as notional estate. The payment followed the deceased having signed a death benefit nomination in favour of each of them. The fact that each has received about $23,601, also will be taken into account as provision received as a result of the death of the deceased.

In the circumstances, I need not refer to notional estate further.

In calculating the value of the actual estate, finally available for distribution, the costs of the present proceedings should also be considered, since each Plaintiff, if successful, normally, will be entitled to an order that her costs and disbursements, calculated on the ordinary basis, be paid, whilst the Defendants, as the persons representing the estate in the proceedings, irrespective of the outcome of the proceedings, normally, will be entitled to an order that their costs, calculated on the indemnity basis, be paid out of the estate, or notional estate, of the deceased.

Coco's solicitor, Mr P A McGowan, in an affidavit sworn on 19 March 2014, estimated Coco's costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis, to be about $84,457 (inclusive of GST and upon the basis of a two day hearing). I was informed by counsel, from the bar table, without objection, that Mr McGowan estimated those costs and disbursements, calculated on the ordinary basis, to be $70,000.

Coco asserted that she had borrowed $10,000 from Slava, which amount has been deposited into the solicitor's trust account on account of costs and disbursements. Of course, if an order is made for Coco's costs and disbursements to be paid out of the deceased's estate, then this amount, or at least a proportion of it, will be reimbursed. Until then, it is a liability to which I shall refer later in these reasons.

Tori's solicitor, Mr W A K Hart, in an affidavit sworn on 25 March 2014, estimated Tori's costs and disbursements of the proceedings, including counsel's fees, calculated on the ordinary basis, to be between $39,254 and $45,154 (inclusive of GST and upon the basis of a two day hearing).

At the hearing, Tori's counsel informed me, from the bar table, again without objection, that Tori's costs and disbursements, calculated on the ordinary basis, were actually $52,655. (There had been omitted from Mr Hart's previous calculations the fees of Ms Morrow, whose reports were to be read, and the fees of an accountant, Mr A Frazer.)

The evidence also reveals that there has been paid, on account of Tori's costs and disbursements, an amount of $23,354 from funds held by the NSW Trustee and Guardian on her behalf. Of course, if an order is made for her costs and disbursements to be paid out of the estate, then this amount, or at least a proportion of it, will be reimbursed to Tori.

The Defendants' solicitor, Mr B L Thompson, in two affidavits, one read in each proceeding, had estimated their costs and disbursements of both proceedings, including counsel's fees, calculated on the indemnity basis, to be about $63,277 (inclusive of GST and upon the basis of a two day hearing). At the hearing, their counsel informed me, from the bar table, again without objection, that their costs and disbursements, calculated on the indemnity basis, totalled $72,000.

Counsel for Elizabeth and Genevieve acknowledged that $12,874 had been paid on account of the costs and disbursements of the proceedings, leaving an amount of $61,826 to be paid. (Of the amount paid, $10,174 had been paid out of the estate and Elizabeth had paid $2,700 personally. Accordingly, in calculating the balance to be paid, only the amount paid out of the estate has been taken into account.)

It follows that, if orders for costs are made in each matter, and if the costs estimates prove accurate (in total, $184,481), the net value of the deceased's actual estate, available for distribution, will be about $572,644. In addition, there is an amount of $5,000, which should be repaid out of the estate to Elizabeth, being the balance of the funeral expenses that she has paid personally.) Then, the estimated value of the net distributable estate will be $567,644.

If the parties are unable to reach agreement on the quantum of costs to be paid out of the estate, it will be for an assessor to determine the appropriate quantum of costs.

Elizabeth acknowledged that in the event that each of Coco's and Tori's proceedings was dismissed, she would bear the Defendants' costs of the proceedings in order to avoid the Newtown property having to be sold to pay those costs and expenses. (In that event, and if an order for the Defendants' costs is made, those costs should be repaid to her estate when the Newtown property is sold.)

The parties requested me to delay making any orders for costs of the proceedings, as there may be matters relevant to the determination of that matter not able to be disclosed at this time. I shall abide this request also.

(Whilst I am grateful for the assistance provided by the legal advisers at the commencement of the hearing in reaching agreement on a number of matters to which I have referred above, I should say that the court expects the legal representative of each of the parties, in a claim for family provision order, to give careful consideration to the contents of his, or her, affidavit of costs and disbursements, filed and served shortly before the hearing. He, or she, should provide an accurate and proper estimate of the costs and disbursements of the party represented. It is inappropriate for "evidence" to be given from the bar Table going to this issue and for time to be spent, at the commencement of the hearing, recalculating the estimated value of the net distributable estate. Consideration should be given by all parties to the nature and gross value of the deceased's estate and notional estate at the date of the hearing.

If possible, all of these matters should be the subject of discussion and agreement, at least as to the estimates, if not as to the actual quantum, so that the value of the net distributable estate is ascertained before the commencement of the hearing and so that the trial judge is aware of them when the hearing commences.)

The parties agreed that the only eligible persons who have commenced proceedings under the Act are Coco and Tori. Of course, Elizabeth, as the wife of the deceased at the date of his death, is also an eligible person, but she has not commenced proceedings. However, as she is a beneficiary named in the Will, the court will not disregard her interests. Later in these reasons, I shall refer to her claim as a competing claimant.

Slava is also an eligible person (being a former spouse of the deceased). She has not commenced proceedings, but has sworn an affidavit that was read, so she is clearly aware of the proceedings. She does not intend to make a claim under the Act. Although no notice of the court's power to disregard her interests, has been served on Slava, in the manner and form prescribed by the regulations or rules of court, I am satisfied that service of any such notice is unnecessary in the circumstances of the case. I propose to disregard her interests as a person by, or in respect of whom, an application for a family provision order may be made: s 61 of the Act.

Although Coco's notice of eligible persons, served in accordance with Practice Note SC Eq 7, Paragraph 6(b), identifies Ruby as an eligible person, and whilst she is a grandchild of the deceased, there is no evidence that she was, at any particular time, wholly or partly dependent on the deceased. At the hearing, the parties agreed that there is no evidence to establish she is an eligible person. However, as she is a contingent beneficiary named in the Will, the court will not disregard her interests. Later in these reasons, I shall also refer to her claim as a competing claimant.

Additional Background Facts

These facts are also not in issue and I find them to be established.

In 1997, the deceased purchased, in his sole name, the Newtown property for $280,000. He borrowed $140,000 of the purchase price and paid the balance from his share of the sale proceeds of the former matrimonial home (at Lindfield).

Between November 2001 and November 2002, the deceased received an inheritance from the estate of his father. The amounts he received totalled $351,168.

In February 2003, the deceased repaid the balance of the mortgage debt (about $130,000) secured on the Newtown property. From that time, the Newtown property remained unencumbered, although it was only recently that the registered mortgage on that property was formally discharged.

Throughout the relationship and marriage of the deceased and Elizabeth, the deceased rented the Newtown property to third parties. The current tenants, who have been in occupation for about 5.5 years, until recently, paid rent of $440 per week. They now pay rent of $450 per week. The rates, taxes and insurance on the Newtown property total $3,240 per year. Elizabeth estimates ongoing repairs and maintenance to be about $2,500 per year.

At the time he made the Will, the deceased also made a Statutory Declaration dated 21 December 2007, which was in the following terms:

"1. Contemporaneously with the execution of this Statutory Declaration I am executing my last Will and testament.

2. In that Will I have made reasonable and adequate provision for my two daughters Coco Shakespeare and Tori Shakespeare and my granddaughter Ruby.

3. Both Coco and Tori suffer from severe drug addiction problems: Coco since 1992 and Tori from about 2000.

4. Both are registered addicts and are currently on a methadone program in an effort to cure their addiction.

5. Tori has also suffered from schizophrenia.

6. I have tried to look after each of them during their lives but it is clear to me that they are unable to manage their own financial affairs.

7. For these reasons, together with my obligations to my wife Elizabeth Anne Flynn, I believe that the provision for them in my Will is adequate, reasonable and fair."

Elizabeth gave evidence that the deceased was aware, at the time, that Coco was no longer using heroin.

As stated, Tori's tutor is the NSW Trustee and Guardian. It was appointed as Manager of her estate, initially by order dated 17 July 2007 of the Mental Health Tribunal under the Protected Estates Act 1983 (NSW), which order was continued, on 6 June 2008, by direction under s 90(3) of the NSW Trustee and Guardian Act 2009 (NSW). I shall return to Tori's medical condition later in these reasons.

John Franklin, a legal officer at the NSW Trustee and Guardian, was delegated to manage the proceedings on behalf of Tori. He swore two affidavits that were read. His knowledge of Tori's past was extremely limited. He was not cross-examined.

Elizabeth, who is currently aged 66 years, having been born in March 1948, was previously married. That marriage ended in about 1992. There were two children of the marriage. Each is an adult and is no longer financially dependent upon Elizabeth. (One of her children, Tara Elizabeth Andrews, swore an affidavit read in the proceedings, but was not cross-examined.)

Following the dissolution of her first marriage, there was a property settlement, which resulted in Elizabeth receiving one half of the proceeds of the former matrimonial home (situated in Brisbane). She used her share of the net proceeds of sale to purchase a home in Lord Street, Newtown ("the Lord Street property"), in which she and the deceased lived until his death, and in which she continues to live. She borrowed about $35,000 to enable her to pay the balance of the purchase price and the costs and expenses of the purchase.

Since its purchase, Elizabeth has repaid the debt secured by mortgage from her own resources. The deceased made no contribution to the repayment of that debt. In addition, Elizabeth has paid all the council rates, water rates and insurance that have been payable since she has owned the Lord Street property.

Ruby was born in August 2005 and is currently aged 8 years. She lives with Coco. (I shall return to the nature of the living arrangements of Coco and Ruby later in these reasons.)

Slava gave evidence, about which she was not cross-examined, as follows:

"2. In or about 2010 or 2011, approximately one to two years before Clive died, I had a telephone conversation with Clive.

I said to Clive:

'How about you and I go halves in an investment unit somewhere in Ruby's name'.

He replied:

'No way am I going halves in property with anyone'.

I felt a bit awkward for having made such a suggestion and I responded by saying to Clive:

'Well, I suppose that takes me back to square one'.

I said to Clive words to the effect:

'Rob (my partner Robert Harden) is taking care of Jessie (his daughter). I am taking care of ours. Rob has money put away for his daughter. I have money put away for our daughters'.

Clive then said to me:

'How much?'

I hesitated to tell Clive, but I said to Clive words to the effect of:

'About $300,000'.

Clive then said to me:

'That sounds like a better way to go, I might do that.'"

Slava also gave evidence (by affidavit filed without objection, and with leave, during submissions) in which she stated that she currently resided with her partner, Robert Harden, Coco and Ruby; that Robert had retired from full time employment about 2 years ago; that since his retirement, she and he had travelled for about four months in 2012 and were currently "part way through a nine month trip travelling around Australia"; and she anticipated that, in the future, they would travel together about three months a year, sometimes consecutively for that period.

Slava owns the townhouse in which she, Robert, Coco and Ruby live. It is a three-bedroom townhouse in a "gated community". The townhouse has two storeys with two bathrooms and a toilet downstairs. It has communal amenities such as extensive grounds, a swimming and spa pool, a gymnasium, as well as a barbecue and children's play areas. It has an on-site caretaker for security. (Coco gave evidence that apart from walking in the grounds, she does not use, or allow Ruby to use, the other amenities.)

The Statutory Scheme - The Act

Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out most 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 equally important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in the application.

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

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

Relevantly, in this case, Coco and Tori each relies upon the category of eligibility referred to in s 57(1)(c) of the Act, namely that she is a child of the deceased. The language of the relevant section is expressive of the person's status, as well as her relationship to the deceased. There is no age limit placed on a child making an application. There is no dispute that each of Coco and Tori is an eligible person. Each has the standing to bring the present proceedings.

Relevantly to this case, it is only if eligibility is found, that the court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is this mandatory legislative imperative that drives the ultimate result and 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)). Only then may "the Court ... make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made".

Allsop P in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, commented, at [6]:

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

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

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

Barrett JA, at [82] - [86], said:

"The court's task under the new legislation is in substance the same as that under the old. Three differences relevant to the kind of case under discussion may, however, be noted (I leave to one side as irrelevant to such cases the extension of the s 60(2) criteria to the question of 'eligible person' status); and two postulated differences may be rejected.

First, the Succession Act provisions direct attention, upon the initial inquiry into adequacy, to provision made by the deceased's will and the intestacy laws. The former legislation referred merely to provision 'out of the estate' but it was clear that the operation of the intestacy laws was to be taken into account in deciding what provision was available 'out of the estate': see, for example, Smilek v Public Trustee [2008] NSWCA 190.

Second, the Succession Act provisions confine attention, upon that initial inquiry, to provision made by the will and the intestacy laws. There is no reference to provision made during the deceased's lifetime. In this respect, there is a departure from the Family Provision Act approach under which provision made in favour of the eligible person 'either during the person's lifetime or out of the person's estate' was to be examined upon the initial inquiry into adequacy.

Attention may, however, still be given to provision made in favour of the applicant during the deceased's lifetime. That is now one of the factors to which regard may be had under s 60(1)(b) when the court is deciding whether to make a family provision order and the nature of the order: see s 60(2)(i). Under the Succession Act, therefore, provision made by the deceased while living thus has a continuing relevance with altered emphasis. Such provision is no longer something to be taken into account in deciding whether adequate provision has been made; but it may be taken into account in deciding whether an order should be made and the nature of the order.

The third difference to be noted is the Succession Act's more comprehensive catalogue of matters that may be taken into account in formulating an order for provision. Section 9(3) of the Family Provision Act empowered the court to 'take into consideration' matters there stated in 'determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person'. Section 60(1)(b) of the Succession Act allows the court to 'have regard to' the matters set out in s 60(2) 'for the purpose of determining ... whether to make a family provision order and the nature of any such order'. The Succession Act lists a greater number of such matters than did the Family Provision Act."

Other than by reference to the provision made in the Will of the deceased, or, if relevant, by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) of the Act leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for 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.

In Grey v Harrison [1997] 2 VR 359, at 366-367, Callaway JA observed:

"There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."

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

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

"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89, at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".

Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act.

The term "maintenance" usually refers to a provision for the supply of the necessaries of life. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement":

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

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

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

In J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths), at 542, the learned authors comment upon the difference between the concepts of maintenance and advancement:

"The essential difference between 'maintenance' and 'advancement' is that 'maintenance' denotes a periodical payment or a payment which could validly be made periodically, whereas 'advancement' denotes a definite unique outlay for a specific purpose. Recipients of maintenance must, practically speaking, be infants, but adults may be recipients of an advancement.

An advancement can never be made of a sum of money which the person to whom it is made can immediately pocket, but it must be made with a view to the establishment of that person in a business or profession, or otherwise in some definite way for that person's benefit, the whole essence of an advancement being the immediate payment of a tolerably large sum for an immediate benefit to one beneficiary."

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

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

Master Macready (as his Honour then was) in Stiles v Joseph (Supreme Court (NSW), Macready M, 16 December 1996, unrep) said, at 14-16:

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

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

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

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

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

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

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

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

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

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

In McCoskerv McCosker [1957] HCA 82; (1957) 97 CLR 566, Dixon CJ and Williams J stated, at 575:

"The presence of the words 'advancement in life' in the ... Act in addition to the words 'maintenance and education' is not unimportant. ... 'Advancement' is a word of wide import."

The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton, 'The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?' (1999) 5 Australian Journal of Legal History 5, at 10, as "an objective, economic test", whereas "proper" prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127, per Buss JA, at [72], [77], which seems to invite more subjective criteria.

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

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

Their Lordships went on to state (at 478):

"The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the Court were concerned merely with adequacy. But the Court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration."

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

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

In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Gibbs J said, at 502:

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

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

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

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

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

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

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

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

Until recently, it was unanimously thought that there are two stages of the determination. The first stage, provided for by s 59(1)(c), has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. The court does this by determining whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased and/or by operation of the intestacy rules, for the applicant. If it is not so satisfied, then the court is precluded from making a family provision order. At this stage, the court has regard to, among other things, the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased and the circumstances and needs of the other beneficiaries or potential beneficiaries: see McCosker v McCosker, at 571-572; Singer v Berghouse, at 209-210; Vigolo v Bostin, at [16], [75], [112]; Tobin v Ezekiel [2012] NSWCA 285, at [70].

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

In Collins v McGain, Tobias JA said:

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

...

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

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

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

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

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

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

"Need", of course, is a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]. White J has recently written in Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473, at [147], that "the need a claimant must demonstrate is a need for 'proper' maintenance, education and advancement in life", but that does not mean that "adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others".

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

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

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

However, Basten JA, in Andrew v Andrew, said of the two stage process referred to:

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

...

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

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

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

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

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

...

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

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

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

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

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

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

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

...

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

I have dealt with the question that has been raised in other cases whether the two-stage approach identified in Singer v Berghouse continues to apply to the provisions of the Act in other cases, the most recent of which is Aubrey v Kain [2014] NSWSC 15. I remain of the view that the two-stage approach should continue to apply. I shall not repeat what I said in that case, which is not affected by the recent decision of the Court of Appeal in Phillips v James [2014] NSWCA 4, or its decision of Verzar v Verzar [2012] NSWSC 1380.

(Since I delivered my reasons in Aubrey v Kain, Robb J has also considered the topic in Janette Susan Gardiner v Raymond James Gardiner as Administrator of the Estate of the Late Dulcie Eva Gardiner [2014] NSWSC 435. I respectfully adopt his Honour's reasoning, set out at [117] - [120], and [124], as to the persuasiveness of the reasoning of Barrett JA in Andrew v Andrew.)

Ultimately, as Allsop P said in Andrew v Andrew, at [6], "it may be an analytical question of little consequence" since the questions remain the same, namely, whether the court can make an order for provision (whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made), and if so, whether it should (whether to make an order and, if so, the terms of that order).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In West v Mann [2013] NSWSC 1852, Kunc J at [12], wrote:

"Section 60(2) provides a helpful checklist but it is no more than that. The Court is not obliged to take those matters into account. The extent to which it does (if at all) will depend upon the facts of each particular case.

Section 60(2)(p) confirms the breadth of matters the Court can take into account. Once enlivened, the Discretion is expressly fettered only by the requirement in s 59(2) that if an order is made, it must be such order 'as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made'".

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

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

There is no definition in the Act of "financial resources" (which term is referred to in s 60(2)(d)). However, there is a definition of that term in s 3 of the Property (Relationships) Act1984 (NSW), which I consider helpful:

"'financial resources' ... includes:

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

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

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

(d) any other valuable benefit."

In Neale v Neale [2013] NSWSC 983, in relation to the meaning of that term, I referred to White and Tulloch v White (1995) 19 Fam LR 696 and the statement made in that case that the "term [connotes] some degree of entitlement to, control over, or relative certainty of receipt of property".

Of course, s 60(2)(d) refers also to "earning capacity", which means no more than the capacity to find employment to earn or derive income.

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

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

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

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

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

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

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

As was also pointed out by Barrett JA, in Andrew v Andrew, at [88] - [89]:

"... leaving aside its relevance to the 'eligible person' inquiry, the s 60(2) catalogue is directed to the question of what, if any, order for provision should be made and is not, in terms, applied to the initial question of the adequacy of the provision made by the will or the intestacy laws.

It can be said at once that the s 60(1)(b) directive corresponds with that in the former s 9(3) to the extent that it relates to the decision regarding provision to be made. There is no express legislative intention, under either piece of legislation, that the enumerated factors are to be taken into account in deciding the initial question of adequacy of provision. There is accordingly no reason to think that those factors are to be afforded any special relevance in approaching the adequacy question. But they will, at that point, be given, independently of s 60(1)(b), such weight as they deserve in their own right as indicators of the 'adequacy' question. As the primary judge recognised at [57], this is consistent with what was said by the High Court in Singer v Berghouse in relation to the former Act."

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

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

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

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

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

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

Any family provision order under the Act takes 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). (Intestacy is irrelevant in these proceedings.)

Thus, the practical effect of an order is to alter the provisions of a deceased person's will or the distribution of an estate according to the intestacy provisions of the Act.

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

Section 99(1) of the Act provides that the court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the court thinks fit.

Counsel for Tori submits that Danny "has mental health and drug problems", which submission is supported, somewhat weakly, by the evidence of Ms Morrow, who states that Tori told her that "he's a hoarder and that he picks things up and brings them back to the unit" and that Slava "said to me that she knew and liked Danny but he also has drug and alcohol drug problems and mental health problems". Danny presented to Ms Morrow "as somebody who would have such problems, but other than what the mother said ... I didn't ask him any questions about it".

(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

As stated, Coco receives a disability pension. She states that she has severe back problems that restrict her ability to walk, sit or stand for any length of time. Her evidence is that the problems cannot be helped by surgical, or medical, intervention and that, as a result, she is unlikely ever to be able to enter the workforce.

This evidence appears to be, at least partly, inconsistent with a medical report which makes it clear that, after her hospitalisation in 2011 for back pain, an MRI was performed following which she was reviewed by Associate Professor Youssef, who "explained to her that the MRI scan excluded any significant structural abnormality in the spine". He recommended hydrotherapy and Pilates.

In addition, Coco suffers from anxiety, is dependent on methadone and has Hepatitis C.

Dr R Graham, a specialist in addiction medicine, has opined (in a report dated 22 March 2013) that she has been successfully treated for heroin use and opioid dependency and that she may be able to reduce her methadone use, possibly completely, over the next 2 to 5 years. (He also states that the use of methadone "may be physiologically dependent", rather than psychological, that is, used to improve her health and function.

Dr Graham believes that Coco "does have some chance of eventually obtaining and maintaining employment, although this may be a few years away".

I am satisfied, from the evidence overall, that Coco has a limited earning capacity.

Tori has been assessed as qualifying for a disability pension. She suffers from schizoid personality disorder and addiction to methadone/heroin. It is unnecessary to set out the medical conditions from which she suffers in more detail as I am satisfied that she has no earning capacity.

There is no evidence that Ruby has any physical, intellectual or mental disability. At her age, she currently has no earning capacity but there is nothing to suggest that this would extend into adulthood.

Elizabeth suffers from cardiac problems, secondary to atrial fibrillation, chronic intermittent vertigo and chronic lumbar spine pain, secondary to disc lesions. She may require spinal surgery. Her back condition was "secondary to and exacerbated by" her duties in caring for the deceased. Unsurprisingly, she was depressed and grieving more than a year after his death.

Medical evidence suggests that she was permanently unfit for work at that time. At her age, and stage of life, she has an extremely limited, if any, earning capacity.

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

Coco was born in April 1977 and is currently aged 37 years.

Tori was born in February 1979 and is currently aged 35 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

I have earlier referred to Coco's relationship and the emotional support provided by her to the deceased following the breakdown of the marriage of her parents.

During 1992 and 1993, Coco did most of the housework and looked after Tori at the expense of her schoolwork. When she returned to live with the deceased one or two nights per week, (after 1995), she continued to assist him with domestic tasks.

As a teenager, Coco also regularly assisted the deceased with his professional work without remuneration.

After the deceased commenced his relationship with Elizabeth, Coco had the care and responsibility for Tori every second week when the deceased was staying at Elizabeth's home.

Mr Franklin deposes that he is "unaware of any contributions by Tori to the acquisition, conservation and improvement of the estate of the deceased or to the welfare of the deceased or the deceased's family before or after his death".

Elizabeth gives evidence about her contributions. Following the sale of the deceased's former matrimonial home, she and the deceased agreed that he would purchase real estate, that he would continue to live in the Lord Street property, rent free, that the property purchased would be rented, with the rent being used to pay the mortgage, after the complete payment of which, the rent would be their income. There is no dispute that their discussion was put into effect.

After the purchase of the Newtown property, Elizabeth assisted in its general maintenance. At other times, she organised tradespeople to carry out maintenance or repairs. She found a number of the tenants, who rented the property without the intervention of an agent, over the years. She prepared the tenancy agreements and lodged bonds with the Rental Bond Board.

She also assisted the deceased financially. She says that "quite often", when the deceased was receiving social security benefits, she would subsidise his expenses, including paying for groceries, petrol and entertainment. As the deceased's health deteriorated, she took on the sole responsibility for the payment of their living expenses.

There is much evidence about Elizabeth's contribution to the welfare of the deceased. It is not necessary to detail that contribution, which, in my view, was significant.

(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

Coco's evidence is that, in 2011, the deceased paid medical expenses for her of more than $1,000 and that he provided her with a laptop computer.

Mr Franklin deposes that he is "unaware of any provision made for [Tori] by the deceased during the deceased person's lifetime or made from the deceased person's estate, other than as provided in the Deceased's Will".

I have made reference to the amount received on behalf of Coco and Tori from the deceased's superannuation. (The amount said, by Coco, to have been paid to her was $22,702, which is slightly less than the amount received by Tori.) I have earlier also stated the entitlement of each under the Will.

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

Slava states that during the last two years of his life, the deceased was adamant that he would look after Coco and Tori and that, in 2010 or 2011, he was planning to make a new will. There is no evidence that he went to a solicitor to draft any such will or that he told any other person of his desire to do so.

Elizabeth states that when he was diagnosed with inoperable cancer in 2002, the deceased said "I want you to be looked after for the rest of your life with income from the property and our savings". This sentiment accords with the Will.

I have earlier referred to the Statutory Declaration made by the deceased at the time he made the Will. I am of the view that it accurately reflects the deceased's testamentary intentions.

(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

Neither Coco, nor Tori, was being maintained, either wholly or partly, by the deceased at the time of his death. However, it is clear, that at other times, the deceased did maintain each.

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

Apart from the Commonwealth government's responsibility to continue to provide each of Coco and Tori with a pension, there is no other person with a liability to support her. (The reference to Brett Hart, the father of Ruby, in the submissions filed for the Defendants, is in error. He is liable to pay child support for Ruby, not to support Coco.)

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

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

There is comment made about Coco's, and Tori's, respective addictions. There is also some suggestion, in Coco's evidence, that she was introduced to drug taking by the deceased. Whether or not that be so, the issue of drug taking, it seems to me, in the case of Coco, is irrelevant to the issue of the nature of the provision, if any, to be made for her. After all, her addiction is now "effectively controlled" and she has demonstrated "stability" in this regard. In the case of Tori, the issue, it seems to me, goes to whether, and if so, how, any provision made for her should be protected. Even though provision would be regulated by the NSW Trustee and Guardian, there was some suggestion that funding, when released to her, would "be spent on illegal drugs and cigarettes" or on alcohol.

There was some criticism of the fact that Coco had spent some (about $10,000) of the proceeds of the superannuation that she received, on a two-week holiday for herself and Ruby. I do not regard this as relevant conduct. To the contrary, the fact that Coco has retained the balance (about $13,000) does her credit and suggests that she is trying to ensure that she has a nest egg available for her and Ruby.

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

There is no suggestion that the relationship of the deceased and Elizabeth was not a close one, or that she was not a loving spouse of the deceased. I am satisfied that their relationship was a long standing, close, and loving one. The fact that there was no caring for children is unimportant, in this case, in view of the age of each of the deceased and Elizabeth when they met and the duration of the relationship. Her role in looking after the deceased when he became ill is significant.

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

This is not relevant.

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

There is no other matter that I consider relevant.

Determination

Being an "eligible person" is a necessary precondition to the court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. In this case, there is no dispute that each of Coco and Tori, as a child of the deceased, is an eligible person within the meaning of s 57(1)(c) of the Act.

There is also no dispute that each commenced her proceedings within the time prescribed by the Act.

Having established eligibility and that the proceedings were commenced within time, relevantly, the first question for determination is whether, at the time the court is considering the application, adequate provision for the proper maintenance or advancement in life, of Coco, and of Tori, has not been made by the Will of the deceased. Whether such provision has been made for each requires an assessment of her individual financial position, the size and nature of the deceased's estate, the relationships between her and the deceased and other persons who have legitimate claims upon his or her bounty and the circumstances and needs of those other persons: see Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 75 at [70] and McCosker v McCosker [1957] HCA 82; 97 CLR 566 at 571-572; Singer v Berghouse at 210; and Vigolo v Bostin at [16], [75], [112].

Having considered the matters I am required to consider, I am satisfied that the deceased did not make adequate provision for the proper maintenance and advancement in life for each of Coco and Tori by his Will. Each is unlikely to receive any provision until after the death of Elizabeth. At the age of 66, her life expectancy is about 21 years. I also bear in mind that each of Coco and Tori are the deceased's only surviving children.

In coming to this conclusion, I also have taken into account Elizabeth's legitimate claims upon the bounty of the deceased and the obligation and responsibility that the deceased had to provide for her. I have also taken into account the Statutory Declaration made by the deceased and the careful consideration that he gave to the way in which his estate should be distributed. His views about what was proper for Coco and Tori do not bind the Court but they are relevant and worthy of consideration.

However, it is clear that each of Coco and Tori has some immediate "needs". As stated above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence. Nor is it limited to whether the applicant has, at the date of hearing, an immediate need for financial assistance with respect to her maintenance. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The term is also used in the in the sense of what was necessary for the applicant's "proper maintenance, education and advancement in life": Akkerman v Ewins [2003] NSWCA 190, per Tobias JA, with whom Beazley and Hodgson JJA agreed.

The fact that each is currently able to survive with an income that is derived from a pension and that each has a small amount of capital available, is of little significance when one considers the obligation and responsibility owed by the deceased to each.

In the case of Coco, she is, currently, incapable of providing for herself, and it may be that, because of her medical conditions, she will never be able to do so. In the case of Tori, she is currently incapable of providing for herself, and the likelihood is that, because of her medical conditions, she will never be able to do so. In each case, without some immediate provision, it is highly unlikely that either will be able to improve her station in life. Each has a need for capital that is present rather than future.

These matters lead me to reject the submission, made on behalf of the Defendants, that the status quo should be maintained and that Coco's claim should be dismissed. In the case of Tori, I reject the submission that only what has been offered should be provided as adequate and proper.

The more difficult question then arises, namely what provision "ought to be made for the maintenance, education or advancement in life" of each of Coco and Tori, having regard to the facts known to the court. This involves "an instinctive synthesis that takes into account all the relevant factors and gives them due weight": Grey v Harrison. It is not a scientific, or arithmetic, exercise. Any provision that is made should be made in lieu of her entitlement under the Will and should be borne out of the proceeds of sale of the Newtown property.

I do not accept the submission that Coco should receive sufficient out of the estate to purchase unencumbered accommodation. Nor do I consider that any entitlement of Ruby out of the estate that will follow, if the Newtown property is sold, necessarily should be used for the purpose of enabling accommodation to be purchased. In this regard, the evidence is that the deceased wished to provide for Ruby's education.

In my view, when one considers the obligation owed to Tori, and the significant obligation owed by the deceased to Elizabeth, the estate is of insufficient size to enable a lump sum to be provided, out of the estate, to enable Coco, or Coco and Ruby, to purchase an unencumbered home.

Furthermore, if she accepts the suggestion that Coco requires a home unit in which Coco and Ruby will live, Slava may assist in providing part of the purchase price. She may be prepared to contribute an amount that would be held on behalf of Ruby. After all, she had asked the deceased to join with her in purchasing accommodation to be held for Ruby. (I do not suggest that she will do so since no questions were asked of her on this topic. I also note her desire for Coco and Ruby to continue to live in her townhouse.)

However, if Slava were to provide an additional amount for Coco and/or Ruby, the lump sum that I regard as adequate and proper for Coco, when taken with the entitlement of Ruby, may be supplemented by what she provides. In this way, if thought advisable, the amounts could be used for the purchase of such accommodation.

Elizabeth has indicated that she would be prepared to continue to act as trustee for Ruby in relation to the capital held for her under the terms of the Will. She could be noted on the title of any property purchased as trustee for Ruby's share of that property.

I am of the view that Coco should receive an amount that equates to 20 per cent of the net proceeds of sale of the Newtown property. In my view, this percentage will provide what is adequate and proper in all the circumstances.

That amount may be used as part of the purchase price of accommodation or, to provide income, which, when added to what she says she currently pays to Robert and Gregory, may be enough to rent a two bedroom property close to Ruby's school.

In the case of Tori, she needs a lump sum that would provide an amount of capital for exigencies of life, when added to the capital amount held on her behalf. She also requires a capital amount that should be used, over time, for obtaining the services of a private case manager, who might be able to assist her in the ways suggested by Ms Morrow. I bear in mind Ms Morrow's evidence in this regard. No doubt, some of services that the case manager suggests, including detoxification and rehabilitation will need to be purchased over this period. I shall bear this in mind also. If not so used, it may be added to the capital sum that will additionally provide a small income and a further buffer so that she may, if able, enjoy some of the joys of life, such as a holiday.

In total, I consider that Tori should receive an amount that equates to 18 per cent of the net proceeds of sale of the Newtown property. The NSW Trustee and Guardian, in considering how the amount should be utilised in the future for the benefit of Tori, should consider the reports of Ms Morrow, upon which it has relied in these proceedings and any subsequent reports obtained. It should also take into account that Tori:

"...understands that she's not in a position that she wants to be in. She understands that her mental illness and her use of drugs have contributed to that. She has the hope of getting better and wants to get better..."

Under s 66(2) of the Act, I consider it is necessary to make an additional order to adjust the interests of other persons affected by a family provision order and to be just and equitable to all persons affected by the order. In my view, it is necessary to make an order adjusting the interests of Elizabeth and of Ruby.

Doing the best I can, I consider that Ruby should receive, in lieu of her entitlement under the Will, an amount that equates to 10 per cent of the net proceeds of sale of the Newtown property. She is a grandchild of the deceased. Her claim to the bounty of the deceased is not as great as that of Elizabeth, Coco and Tori: Kitson v Franks [2001] WASCA 134 [71] per Parker J; Butcher v Craig [2009] WASC 164 [19]; Daniels v Hall (as Administrator of the Estate of Arnold Edward Daniels) [2014] WASC 152, per Heenan J, at [115].

As I have earlier stated, the amount provided for Ruby may be utilised to purchase a share in a home unit, to be held on trust for her until she attains the age of 21 years (as the deceased directed), or may be otherwise invested. Elizabeth or, if she agrees, some other suitable person (other than Coco) may be the trustee of the fund to be held for Ruby.

Elizabeth should then receive the balance of the proceeds of sale of the Newton property (and the balance of the estate) absolutely. She will receive 52 per cent of the net proceeds of sale. This will provide her with an income as well as a capital sum to augment the capital she already has.

I have earlier referred to the agreed facts. In my view, what is evidenced does not take into account the significant obligation that the deceased owed to Elizabeth and to the freedom of testation. In this regard, I note the deceased's statement of his obligation to Elizabeth and to each of the Plaintiffs.

In coming to these conclusions, I have also borne in mind an important consequence of the provision to be made. The parties agreed that the interest of Elizabeth in the Newtown property is a life interest only and that the interest of each of Coco, Tori and Ruby is contingent upon her surviving Elizabeth, and in the case of Ruby, also attaining the age of 21 years. Of course, during her lifetime, Elizabeth would be entitled to the income only from the Newtown property. She would receive no part of the capital.

Subject to her exercising a discretion to provide some income to Coco, Tori and Ruby, each would receive nothing until Elizabeth's death if she survived, and, in the case of Ruby, attained the age of 21 years. Nor would they receive any share of the capital of the net proceeds of sale so long as Elizabeth was alive. Each, of course, may not survive Elizabeth.

The provision that I consider adequate and proper in all the circumstances converts each of the interests into an absolute interest in capital, payable immediately, rather than, in the case of Elizabeth, by way of income for life and, in the case of Coco, Tori and Ruby, at some later time assuming the contingency is satisfied.

(In coming to my conclusions, I have read the calculations made by Mr Frazer, a Fellow of the Institute of Chartered Accountants, annexed to an affidavit sworn 24 April 2014. However, the mathematical calculations that he has done are not determinative and I must consider all of the circumstances of each case.)

In calculating the net proceeds of the Newtown property, the parties have agreed that the categories of expenses referred to (but not, unless agreed, the quantum) in Ex. P1. Elizabeth, as the sole trustee of the Newtown property should have control of the sale, although, as a matter of comity, she should advise the solicitors acting for each of Coco and Tori, of what is being done in that regard. The property should be put on the market for sale within 3 months from the date of making orders, or such other time as the parties are able to agree in writing. Provided the amount to which each of Coco, Tori and Ruby is entitled is paid, within 14 days of completion of the sale of the Newtown property, no interest is payable. Otherwise, interest at the rate prescribed under s 84A(3) of the Probate and Administration Act 1898 (NSW) is payable from that date. (Until completion of the sale, Elizabeth should continue to receive the income from the Newtown property.)

Of course, in the Short Minutes of Order, there should be included an order granting leave to approach the court to make additional orders for the purpose of giving effect to the family provision orders to be made.

As stated previously, I have been requested to make no order as to costs until after these reasons are published. Unless the parties wish to argue the issue of costs, the usual order for costs should be made.

I direct the parties to provide to my Associate, within 14 days, agreed Short Minutes of Order, in each matter, giving effect to these reasons or, if that is not possible, to provide competing versions. If possible, agreement should be reached on the costs orders to be made and, if it is at all possible, perhaps, agreement could be reached on the quantum of costs. This may avoid further disputes at a later time in determining the net proceeds of sale. However, in the event that agreement cannot be reached, the estimated costs of Coco and of Tori should be used as a guide to determine the quantum of the net proceeds of sale. I shall stand the proceedings over for any argument as to costs to a convenient date later in May 2014.

There should be an order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10), and Practice Note No SC Gen 18 (Para 26) following the determination of the costs of the proceedings.

In the event that the parties are able to reach agreement on the terms of the Short Minutes of Order, in each matter, and the costs orders, I shall deal with the matter in Chambers without the need for a further appearance.

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Decision last updated: 19 May 2014

Medium Neutral Citation:	Shakespeare v Flynn; Shakespeare v Flynn [2014] NSWSC 605
Hearing dates:	30 April, 1 May 2014
Decision date:	19 May 2014
Jurisdiction:	Equity Division
Before:	Hallen J
Decision:	Direct the parties, within 14 days, to bring in Short Minutes of Order giving effect to these reasons and any agreement reached between them as to costs. Stand the matter over to a convenient date in May 2014.
Catchwords:	SUCCESSION - Two Plaintiffs, each of whom is a child of the deceased, make a claim for a family provision order - One of the Plaintiffs is a person under a legal incapacity - No dispute as to the Plaintiffs' eligibility - Some provision made for each Plaintiff in the Will of the deceased, but only after the death of the first Defendant, the widow of the deceased - Grandchild of the deceased also a contingent beneficiary upon death of the widow - Whether family provision order should be made for either Plaintiff, and if so, the nature and quantum of the further provision to be made - Order for provision of each Plaintiff - Necessary to make adjustment order under s 66 of the Act
Legislation Cited:	Family Provision Act 1982 (NSW) NSW Trustee and Guardian Act 2009 (NSW) Practice Note SC Eq 7 Probate and Administration Act 1898 (NSW) Property (Relationships) Act 1984 (NSW) Protected Estates Act 1983 (NSW) Succession Amendment (Family Provision) Act 2008 (NSW) Succession Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Akkerman v Ewins [2003] NSWCA 190 Alexander v Jansson [2010] NSWCA 176 Allardice v Allardice; In re Allardice (1910) 29 NZLR 959 Andrew v Andrew [2012] NSWSCA 308; (2012) 81 NSWLR 656 Aubrey v Kain [2014] NSWSC 15 Bartlett v Coomber [2008] NSWCA 100 Bondelmonte v Blanckensee [1989] WAR 305 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Buckland Deceased, Re [1966] VR 404 Butcher v Craig [2009] WASC 164 Christie v Manera [2006] WASC 287 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 9 ALR 93; (1976) 50 ALJR 539 Crossman v Riedel [2004] ACTSC 127 de Angelis v de Angelis [2003] VSC 432 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54 Edgar v Public Trustee for the Northern Territory [2011] NTSC 05 Flathaug v Weaver [2003] NZFLR 730 Foley v Ellis [2008] NSWSC 288 Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep) Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison [1997] 2 VR 359 Hampson v Hampson [2010] NSWCA 359 Harrisson v Skinner [2013] NSWSC 736 Hawkins v Prestage (1989) 1 WAR 37 Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 Hyland v Burbidge [2000] NSWSC 12 Kay v Archbold [2008] NSWSC 254 Kembrey v Cuskelly [2008] NSWSC 262 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Luciano v Rosenblum (1985) 2 NSWLR 65 MacGregor v MacGregor [2003] WASC 169 Magill v Magill [2006] HCA 51; (2006) 231 ALR 277 Marks v Marks [2003] WASCA 297 Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47 Mayfield v Lloyd-Williams [2004] NSWSC 419 McCosker v McCosker (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 Neale v Neale [2013] NSWSC 983 O'Loughlin v O'Loughlin [2003] NSWCA 99 Palaganio v Mankarios [2013] NSWSC 61 Phillips v James [2014] NSWCA 4 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Pogorelic v Banovich [2007] WASC 45 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522 Slack-Smith v Slack-Smith [2010] NSWSC 625 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (Supreme Court (NSW), Macready M, 16 December 1996, unrep) Stott v Cook (1960) 33 ALJR 447 Szypica v O'Beirne [2013] NSWSC 297 Taylor v Farrugia [2009] NSWSC 801 Tobin v Ezekiel [2012] NSWCA 285 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) West v Mann [2013] NSWSC 1852 White and Tulloch v White (1995) 19 Fam LR 696
Texts Cited:	J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths) Rosalind Atherton, 'The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?' (1999) 5 Australian Journal of Legal History 5
Category:	Principal judgment
Parties:	Coco Shakespeare (Plaintiff in 2013/28936) Tori Shakespeare (by her tutor the NSW Trustee & Guardian) (Plaintiff in 2013/38273) Elizabeth Anne Flynn (first Defendant in both proceedings) Genevieve Margaret Corish (second Defendant in both proceedings)
Representation:	Counsel: Mr D Liebhold (Plaintiff in 2013/28936) Mrs M Bridger (Plaintiff in 2013/38273) Mr G M McGrath (Defendants) Solicitors: De Groots Will & Estate Lawyers (Plaintiff in 2013/28936) Shaw McDonald Lawyers (Plaintiff in 2013/38273) Staunton & Thompson (Defendants)
File Number(s):	2013/28936; 2013/38273