Spata v Spata - [2011] NSWSC 1221

Supreme Court

New South Wales

Medium Neutral Citation: Spata v Spata [2011] NSWSC 1221
Hearing dates: 12 October 2011
Decision date: 24 October 2011
Jurisdiction: Equity Division
Before: Hallen AsJ
Decision:
Having found that the Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, order that the Plaintiff receive the residence at Belmore and the deceased's interest in the Leichhardt property absolutely, but subject to a charge to secure the amount referred to in favour of the three sons of the deceased equally.
The parties should be allowed an opportunity to decide the manner in which the charge will be secured and over which property or properties.
If the parties are unable to reach agreement on the manner in which the charge is to be secured or otherwise, I shall, hear further short submissions on the matters remaining in dispute and any consequential orders.
Subject to any argument about costs, I would propose to make the usual order for costs.
The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules and the Court Books may be returned.
The proceedings are adjourned to enable the parties to bring in short minutes.

Catchwords: Plaintiff the widow of the deceased seeks family provision order - Marriage of about 30 years - Beneficiaries are sons of the deceased by a prior marriage - Only issue is the nature of provision to be made for Plaintiff
Legislation Cited: Family Provision Act 1982
Probate and Administration Act 1898
Property (Relationships) Act 1984
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Uniform Civil Procedure Rules (2005)
Cases Cited: Bladwell v Davis [2004] NSWCA 170
Blore v Lang (1960) 104 CLR 124
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Butcher v Craig [2010] WASCA 92
Clifford v Mayr [2010] NSWCA 6
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Court v Hunt (NSWSC, 14 September 1987, unreported)
Crewe, Re [1956] NZLR 315
Crisp v Burns Philp Trustee Company Ltd (NSWSC, 18 December 1979, unreported)
Devenish v Devenish [2011] WASC 129
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [[2009] NSWCA 54
Foley v Ellis [2008] NSWCA 288
Golosky v Golosky [1993] NSWCA 111
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Grainger v The Public Trustee (WASC, 6 December 1995, unreported)
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Kay v Archbold [2008] NSWSC 254
Langtry v Campbell (7 March 1991, unreported)
McCosker v McCosker (1957) 97 CLR 566
McKenzie v Topp [2004] VSC 90
Magill v Magill [2006] HCA 51; (2006) 226 CLR 551
Marshall v Carruthers [2002] NSWCA 47
Mayfield v Lloyd-Williams [2004] NSWSC 419
Milillo v Konnecke [2009] NSWCA 109
Miller v Miller [2006] UKHL 24; [2006] 2 AC 618
Moore v Moore (NSWCA, 16 May 1984, unreported)
Neil v Jacovou [2011] NSWSC 87
O'Loughlin v O'Loughlin [2003] NSWCA 99
Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Pogorelic v Banovich & Ors [2007] WASC 45
Puckridge, Deceased, In the Estate of (1978) 20 SASR 72
Salmon v Blackford [1997] NSWCA 274
Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100
Sellers v Scrivenger [2010] VSC 320
Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201
Sitch (deceased), Re the Will of; Gillies v Executors of the Will of Sitch [2005] VSC 308
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (NSWSC, 17 May 1996, unreported)
Welsh v Mulcock [1924] NZLR 673
Worladge v Doddridge (1957) 97 CLR 1
Texts Cited: Mason and Handler's "Succession Law and Practice New South Wales"
Category: Principal judgment
Parties: Gina Spata (Plaintiff)
Sam Spata (first Defendant)
Robert Spata (second Defendant)
Representation: Counsel:
Mr J Armfield (Plaintiff)
Mr A Hill (Defendants)
Solicitors:
Coorey & Fitzgerald (Plaintiff)
Hunter Lawyers (Defendants)

File Number(s): 2010/284663

Judgment

HIS HONOUR: These are proceedings to be decided under Chapter 3 of the NSW Succession Act 2006 ("the Act"), which applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 ("the former Act"), which was repealed, effective from 1 March 2009.

The Plaintiff, Gina Spata, seeks a family provision order, that is an order made by the Court, under Chapter 3 of the Act, in relation to the estate, or notional estate, of a deceased person, to provide for the maintenance, education or advancement in life of an eligible person from that estate. There is no question, in the present case, of any provision being sought out of notional estate of the deceased.

The deceased, whose estate is the subject of the claim, is Rosario Spata ("the deceased").

The Plaintiff, who is the widow of the deceased, commenced the proceedings by Summons filed on 27 August 2010, that is, within the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased person). Although there is a reference to the notional estate, it is clear that the Plaintiff's claim is for provision out of the actual estate of the deceased.

The Defendants named in the Plaintiff's Summons are Salvatore (Sam) Spata and Roberto (Robert) Spata, each of whom is a son of the deceased, and the executors named in the Will of the deceased, to whom Probate was granted.

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

Background Facts - Formal

The following facts are uncontroversial.

The deceased died on 7 February 2010. He was then aged 83 years, having been born in September 1926.

The deceased married his first wife, Nunziata (Nancy) Barone, in about 1953. She predeceased him, having died on 21 December 1973. There were three children of their marriage, namely Sam, who was born in May 1954, Giovanni (John), who was born in September 1955, and Robert, who was born in May 1957.

The deceased and Gina married in March 1980. They remained married at the date of the deceased's death. Accordingly, they were married for about 30 years.

The deceased made a Will on 16 June 2005. That Will, relevantly, provided for a bequest of household chattels (as defined) to the Plaintiff, as well as a right to reside in the deceased's principal place of residence, (at Belmore), as long as she wished, provided that she paid the rates, taxes and other outgoings on the premises, kept it insured and maintained the residence in a state similar to that in which it was at the deceased's death. The residence was not to be sold without Gina's consent, except when she remarried, entered into a de facto relationship, ceased to live there permanently, or if she failed to comply with the conditions referred to. Upon sale of the residence, the proceeds were to form part of the balance of the deceased's estate, which, after the payment of debts, funeral and testamentary expenses, was to be divided equally between the children of the deceased who survived him and reached the age of 18 years.

On 12 May 2010, this Court granted Probate of the deceased's Will to Sam and Robert.

In the Inventory of Property attached to, and forming part of, the Probate document, the deceased's estate, as at the date of death, was disclosed as consisting of the residence at Belmore ($465,000), real estate at Rockdale ($600,000), the deceased's one-sixth interest in real estate at Leichhardt ($70,833), moneys in bank on deposit ($86,862), and shares ($5,994). The household chattels were not listed in the Inventory so I assume that they had no commercial value. The then total gross value of the deceased's estate was estimated to be $1,228,689. (I have stated, and, hereafter, shall state, only the dollar amounts and shall omit a reference to the cents.)

No liabilities of the deceased, as at the date of death, were disclosed.

In an affidavit sworn by Sam, on 8 December 2010, he disclosed additional shares with a value of $3,050 and stated that the value of the residence at Belmore was $600,000 (as at the date of death).

At the hearing, the parties were able to agree that the estimated gross value of the estate is $1,287,939 (subject to the payment of costs of the proceedings). The estate, currently, consists of the residence at Belmore ($600,000), the other real estate to which I have referred (the value of which is said not to have increased since the death of the deceased), and cash in the Defendants' solicitors' trust account ($17,106). However, the household goods, effectively, have been distributed to Gina in accordance with the terms of the deceased's Will.

There are no liabilities, other than the costs of the proceedings, disclosed by the Defendants.

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

Gina's costs and disbursements, including counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a 2 day hearing), are estimated to be $71,945. Her costs, calculated on the ordinary basis, have been estimated to be $60,000.

Sam's and Robert's costs and disbursements of the present proceedings, including senior and junior counsel's fees, calculated on the indemnity basis, (inclusive of GST and upon the basis of a 2 day hearing), are said to total $74,684. Part of these costs ($40,769) has been paid out of the estate, with the result that about $33,915 remains left to be paid.

In fact, although the proceedings were listed for 2 days, they were completed within 1 day. This may result in a saving of costs. However, for the purposes of the proceedings, the parties requested me to use the above estimates as the basis of determining the net value of the distributable estate.

Sam and Robert have stated that no commission is to be charged against the deceased's estate.

The parties agreed, for the purposes of the hearing, and assuming that the estimates of costs prove accurate, and the usual order for costs is made, that the value of the current estimated net distributable estate, will be in the order of $1,194,024. It will be appreciated, therefore, that this is an estate of reasonable size.

The persons who are eligible persons, within the meaning of the Act, are Gina, Sam, Robert and John. So far as is known, there is no other person who is, or who may be, an eligible person within the meaning of the Act. The only persons entitled to a share of the deceased's estate are those persons.

There is some evidence that the prescribed notice has been served on John, who, until recently, lived in Japan. Since each of the eligible persons has filed affidavits that have been read in the proceedings, each is obviously aware of the proceedings and no other notice thereof is necessary.

Only Gina has commenced proceedings.

Following some evidence from Gina as to the nature of her claims, the parties agreed that, before incurring the costs of independent tradespeople repairing and/or renovating the residence in Belmore, a reasonable opportunity should be given to the three sons of the deceased, to carry out the work required to be done with such professional assistance as they might require.

Gina accepted, in cross-examination, that her real concern, in this regard, did not relate to the quality of the work that they would perform, but rather the time within which it could be performed. She accepted that the quality of their work was likely to be satisfactory.

Each of the sons of the deceased gave evidence that, with some professional assistance which might be required, and with the assistance of each other, they would be able to commence the work immediately, and that it would take no more than 4 to 6 weeks to complete.

I was requested to allow the parties an opportunity to discuss this aspect further after I delivered my reasons for judgment. For reasons to which I shall come, this seems an eminently sensible course to follow.

The Statutory Scheme - The Act

Introduction

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

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

"Purposive construction of the Act

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

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

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

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

The Substantive Provisions of the Act

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

There is no definition of "wife" in the Act. However, it is clear that the Plaintiff must be able to establish that, at the time of the deceased's death, she was married to the deceased, and, at that time, their marriage had not been dissolved. There is no dispute about Gina's status in the present case.

In the case of an applicant who falls within s 57(1)(d), (e) or (f), the Court must next consider and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application (s 59(1)(b)). This sub-section is not relevant in the present case.

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

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

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

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

Under both s 59(1)(c) and s 59(2) of the Act, the time at which the court gives its consideration to the question is the time when the court is considering the application.

"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54, at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime". It also permits consideration of future requirements for support and assistance. Contingent events may be taken into account, as well as what may be considered certain, or exceedingly likely to happen. Reasonable foresight of eventualities that may arise should also be considered.

Neither are the words 'maintenance' and 'advancement in life' defined in the Act. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at [115], said, of the words 'maintenance', 'support' and 'advancement':

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

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

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

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

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

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

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

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

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

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

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

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

In Vigolo v Bostin , at [114], Callinan and Heydon JJ said:

"[T]he use of the word "proper"...implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."

The use of the word "proper" to qualify the words "maintenance, support, education or advancement" requires consideration to be given to more than satisfying the basic needs of an applicant: Butcher v Craig [2010] WASCA 92, at [21]; Devenish v Devenish [2011] WASC 129, at [73].

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

Whether the applicant has a 'need' is a relevant factor at the first stage of the enquiry. It is an element in determining whether 'adequate' provision has been made for the 'proper' maintenance, education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 at [42] (Tobias JA, with whom Beazley and Hodgson JJA agreed).

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 focused. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies.

...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

There is no definition in the Act of "financial resources" (which term is referred to in sub-s (2)(d). However, there is a definition of that term in the Property (Relationships) Act , 1984, which I consider helpful:

""financial resources" ... includes:

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

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

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

(d) any other valuable benefit."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Applicable Legal Principles

Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were given in the context of the previous legislation, they are equally apt in a claim such as this one.

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

Windeyer J in Blore v Lang (1960) 104 CLR 124 at 137, commented:

"The jurisdiction under the Testator's Family Maintenance Act is to provide for deserving persons according to their requirements, not to reward past services. This is sometimes overlooked and evidence concerning the present and probable future requirements of the applicant is subordinated to or submerged in evidence of past services to the testator. Allegations and denials concerning episodes in the past are then likely to become emphasised at the expense of evidence directed to the central issues in the case."

In Cooper v Dungan (1976) 50 ALJR 539; (1976) 9 ALR 93, Stephen J, at 542, reminded the Court to be vigilant in guarding "against a natural tendency to reform the deceased's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant". Freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the court": Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9.

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

Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: The Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker ( NSWSC, 17 May 1996, unreported); Vigolo v Bostin at [11]; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.

The following principles are particularly relevant to a claim by a widow of the deceased.

(a) A wife, particularly of many years, has a primary right to be considered by her husband, but the extent that he should provide for her is to be governed by her needs, both at present, and in the foreseeable future. It is also governed by the claims and circumstances of the competing claimants, whose positions also have to be weighed with their needs and merits: Bladwell v Davis [2004] NSWCA 170, per Bryson JA, with whom Ipp JA concurred.

(b) As a broad general rule, and in the absence of special circumstances, the general duty of the deceased to his widow, to the extent to which his assets permit him to do so, is to ensure that she is secure in the matrimonial home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies. Generally speaking, the amount should be sufficient to free her mind from any reasonable fear of any insufficiency as she grows older and her health and strength fail (see: Permanent Trustee Co Ltd v Fraser ). Concern as to the capacity of the widow to maintain herself independently and autonomously may also bear upon the notion of what is proper provision.

The Court of Appeal approved the "broad general rule" in O'Loughlin v O'Loughlin [2003] NSWCA 99. However, the principle is not one of immutable application: Marshall v Carruthers [2002] NSWCA 47; Clifford v Mayr [2010] NSWCA 6 at [142] - [144].

(c) The three elements identified in (b) above are not necessarily mutually independent. While an applicant's standard of living during the lifetime of a deceased may be a useful yardstick, it is not necessarily decisive as to what would be an appropriate provision for them in the future: see Grainger v The Public Trustee (Supreme Court of Western Australia, Steytler J, 6 December 1995, unreported) at 18; Welsh v Mulcock [1924] NZLR 673, per Salmond J at 687; Pogorelic v Banovich & Ors [2007] WASC 45. The court is not to approach the assessment of what is proper by attempting precisely to replicate the way of life that the deceased and the applicant widow planned to have had he survived: Neil v Jacovou [2011] NSWSC 87 at [163].

(d) There remains binding authority which gives greater weight to the claims of parties who have entered "a formal and binding commitment to mutual support": Marshall v Carruthers ; Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308; Sellers v Scrivenger [2010] VSC 320 at [68]. In Magill v Magill [2006] HCA 51; (2006) 226 CLR 551, Gleeson CJ, at [24], said:

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

However, in Bladwell v Davis , Bryson JA stated:

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

Ipp JA added:

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

Bladwell v Davis was referred to, with approval, by the Court of Appeal in Milillo v Konnecke [2009] NSWCA 109 at [80] - [82].

(e) Where, after competing factors have been taken into account, it is possible to do so, a widow ought to be put in a position where she is mistress of her own life, and in which, for the remainder of her life, she is not beholden to executors, or trustees and, still less, to remaindermen: Langtry v Campbell (7 March 1991, Powell J, unreported).

(f) The capacity of the widow, herself, to provide for her own needs must also be considered. In Re Crewe [1956] NZLR 315, at 323, it was said:

"It may probably be said with truth that the proper maintenance which a testator owes to his widow in cases where there are no claims of other dependants is such maintenance as will enable her, taken in conjunction with her own means, to live with comfort and without pecuniary anxiety in such state of life as she was accustomed to in her husband's lifetime, or would have been so accustomed to if her husband had then done his duty to her."

(g) Usually, a mere right of residence will be an unsatisfactory method of providing for a widow's accommodation. This is because a widow may be compelled, by sickness, age, urgent supervening necessity, or otherwise, with good reason, to leave the residence. The widow will then be left without the kind of protection which is normally expected should be provided by a deceased who is both wise and just: Moore v Moore (NSWCA, 16 May 1984, unreported), per Hutley JA, p 2; Golosky v Golosky [1993] NSWCA 111.

The observations of Lord Nicholls of Birkenhead (admittedly in a different context) in Miller v Miller [2006] UKHL 24; [2006] 2 AC 618, at [22], underline the importance of the matrimonial home:

" The parties' matrimonial home, even if this was brought into the marriage at the outset by one of the parties, usually has a central place in any marriage. "

(h) That provision of a capital asset to an applicant may, incidentally, enable her, or him, in due course, to pass that asset to others contrary to the wishes of the deceased, is not determinative of the propriety of such provision: Worladge v Doddridge (1957) 97 CLR 1 at 19; Salmon v Blackford [1997] NSWCA 274 at 6.

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

(j) Like all cases under the Act, what is adequate and proper provision is necessarily fact specific.

In McKenzie v Topp [2004] VSC 90, Nettle J considered the claim of a stepson of the deceased to her estate, the applicant's father having left his entire estate to the deceased previously. At [58], his Honour observed:

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

Because it has been raised in submissions, I should refer to what is described in the cases as a "Crisp order". That is an order of the kind made by Holland J in Crisp v Burns Philp Trustee Company Ltd (NSWSC, 18 December 1979, unreported), extracted in part, in Mason and Handler's " Succession Law and Practice New South Wales " at 13580, at [9433]. Such an order gives an applicant an interest for life in real property, or in an interest in real property, with the right to it (should the need arise) for the purposes of securing, for the applicant's benefit, more appropriate accommodation. That type of order is intended to provide flexibility, by way of a life estate, the terms of which could be changed to cover the situation of the applicant moving from her own home to retirement village to nursing home to hospital. The flexibility provided by such an order underlies the notion that a Crisp order confers a "portable life interest": Court v Hunt (NSWSC, 14 September 1987, unreported), cited with approval by Ipp JA in Milillo v Konnecke at [47] - [48].

I make it clear that I do not intend what I have described as "applicable legal principles" to be elevated into rules of law. Nor do I wish to suggest that the jurisdiction should be unduly confined. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind.

Credibility of the Witnesses

I am satisfied that many of the basic facts were not in dispute between the parties. This is not a case that really turned upon the impression of witnesses or relevant determinations of their credit.

Gina had her affidavits translated to her before each was sworn and she gave her evidence through an interpreter. I am satisfied that she was a witness of truth. Counsel for Sam and Robert made no submission to the contrary.

Apart from the failure of Sam, Robert and John to respond satisfactorily to a notice to produce by producing the documents referred to in it, Gina's counsel made no criticism of the evidence of each. Whilst I was not overly impressed with the evidence of each in regard to failure to produce documents, it was not submitted that each had not disclosed, accurately, his financial and material circumstances.

Additional Facts

I next set out the additional facts that I am satisfied are either not in dispute, or that have been established by the evidence. I do so by reference to s 60(2) of the Act. Where necessary, I shall also consider the competing claim of each of the deceased's sons.

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

The relationship between Gina and the deceased was that of wife and husband. At the time of the deceased's death, they had been married for almost 30 years. There were no children of their marriage.

Gina admits that she and the deceased "had our ups and downs like any other marriage, but generally we were very happy together". They lived together in the residence at Belmore for over 20 years.

The relationship between Gina and the deceased appears to have been one of love, affection, mutual dependence and support, for many years. Indeed, there were no submissions to the contrary and no cross-examination of Gina to suggest otherwise.

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

Disregarding any obligation, or responsibility, arising as a result of their relationship as spouses, the deceased did not have any legal, or financial, obligation to Gina, imposed upon him by statute or common law. However, as set out above, after such a long marriage, one could not but conclude that he had both an obligation, and a responsibility, to provide for her out of his estate.

Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal, or financial, obligation to any of his sons, each of whom is an adult, imposed upon him by statute or common law. It is clear that each was financially independent, for many years, before the death of the deceased.

Yet, an obligation, or responsibility, to make adequate provision for children, if the estate is sufficiently large to enable this to be done, may be recognised in the case of a child of the deceased.

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

I have dealt with this earlier in this judgment. The value of the deceased's estate is of reasonable size.

(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

Gina's financial circumstances and financial needs, both present and future may be summarised as follows:

(a) She owns a five-sixths share of a unit at Tebbutt Street Leichhardt ($354,166). With the consent of the Defendants, she has been receiving all of the rent from this unit since the death of the deceased. They do not seek to recover the estate's share of the rent received by her.

(b) She has money in bank or on term deposit ($25,254).

(c) She receives a part pension, from Centrelink, of $419 per fortnight. She has applied for an Italian pension. Her application may take about 4 years to process and, if it is successful, she will receive about $50 per week.

(d) She has a shortfall of present expenditure over income of about $7,693 per annum. The parties agree that, based upon her life expectancy (about 15 years), the capital sum that would generate sufficient income to meet this shortfall is about $143,000. In fact, the Defendants did not dispute that such an amount should be included in the provision made for Gina by way of a lump sum. In those circumstances, subject to any claim for costs of the repairs and renovations to which I have referred, and shall refer, in respect of the Belmore residence (which are estimated to be about $71,500), Gina does not seek any additional capital sum out of the estate.

(e) In relation to the residence at Belmore, Gina says that remedial work is necessary in order to improve its condition. The detail of the work that is required need not be repeated since there is no dispute about it, the work has been identified in her first affidavit (at [30]) and there is a quotation for the costs from a building maintenance company. It is that work which the deceased's sons are prepared to carry out. Copies of photographs depicting the present state and condition of the residence were tendered. Clearly, that work is necessary.

(f) In relation to the residence at Belmore, Gina also says:

"52. I wish to continue to reside in the property the said xxxxxx, Belmore.

It's been my home since 1988 and I would like to own it outright and I wish to and need to carry out the works referred to in paragraph 30 of this Affidavit. I wish to be able to continue to live there for security and comfort purposes as I am used to living there.

...

54. I am concerned that, one day, I may need to move into hostel or nursing home accommodation and, if this happens, I need to have sufficient financial resources to pay an accommodation fund and any annual fees in respect thereto."

There is some evidence of the costs of nursing home accommodation. This evidence reveals that, currently, a bond of about $300,000 would be required and that there are additional daily costs for rent and accommodation. In respect of one of the organisations that provides such accommodation, a monthly amount, for a period of 5 years, is deducted from the bond.

Sam's financial circumstances and financial needs, both present and future may be summarised as follows:

(a) He owns a home at Blakehurst ($900,000).

(b) He has a car ($35,000).

(d) He earns a net income of $48,000 per annum. His wife earns a net income of about $6,000 per annum. Their expenses are about the same as their joint income. (He has two adult children from his prior marriage, neither of whom are dependent upon him.)

(e) The mortgage debt secured on his Blakehurst home is about $500,000.

Sam says that he will use the inheritance that he receives from the deceased's estate to reduce his home loan as he "is finding it difficult to make ends meet with such a big mortgage".

Robert's financial circumstances and financial needs, both present and future may be summarised as follows:

(a) He owns a property at Rockdale ($500,000) in which he lives. He has an investment unit at Henley ($470,000) and another in Pyrmont ($460,000). His hire car business is said to be worth $100,000.

(b) He has a mortgage debt secured on the Rockdale property ($190,000) and other "loan investment debts" ($640,000).

(c) He supports his daughter, who is a single mother, as she and his grandchild live with him for 3 days a week. He is divorced and has another adult child.

(d) He is self-employed, but does not disclose in his affidavit, his weekly income. However, a copy of his income tax return for the year ending 30 June 2011 (one of the documents that he did produce) reveals a taxable income of $40,486 and net distributions from partnerships and trusts of $60,007. The same income tax return reveals that the investment properties are negatively geared.

Robert's evidence is that he will use the inheritance that he receives from the deceased's estate to reduce his debts generally.

John's financial circumstances and financial needs, both present and future may be summarised as follows:

(a) He lives in a de facto relationship. He has five daughters from a previous marriage and a son from his present relationship.

(b) He has no assets and, so far as the evidence reveals it, neither does his de facto partner.

(c) He and his de facto partner have recently returned from Japan, where they were living, following the earthquake and tsunami that occurred there.

(d) He presently receives a Workstart allowance and is looking for employment.

(e) He and his family are living in the estate property at Rockdale.

(f) He states that he is unlikely to be in any position to purchase real estate. He hopes, from his share of the estate, to purchase the share of his brothers in the estate property at Rockdale.

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

Gina is not cohabiting with any 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

Gina gives evidence that her health, for a person of her age, is good. She does, however, suffer from high blood pressure and high cholesterol, for which she takes medication. She does not have arthritis, but says that she would have difficulty walking up and down stairs.

Sam gives no evidence of any physical, intellectual or mental disability.

Robert gives no evidence of any physical, intellectual or mental disability.

John gives evidence that his health is not good and that he suffers from depression, which appears to have been precipitated by these proceedings and his concerns that he may lose the accommodation in which he lives with his family. He also says that he will require cataract surgery on his eyes in the future. He has renal colic and 50 per cent hearing loss in his left ear.

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

Gina was born in January 1937. She is aged 74 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

Gina gives evidence of her contribution as follows:

"20. As to contributions, financial or otherwise to acquisition, conservation and improvement of the estate of the deceased, I say that, as at the date of our marriage, I was working at AWA at Ashfield as a full-time process worker. I continued to work there for approximately 8 years after our marriage. I used my earnings therefrom to pay for joint living expenses of the deceased and myself.

...

22. I continued to work at AWA until 1988 when I retired. We had been living in the Leichhardt unit and at that time I and the deceased both moved into the deceased property at xx xxxxx, Belmore. This property had been in the process of being renovated during the previous eight years. We then rented out the other properties at xx xxxxx, Rockdale and the Leichhardt unit and we lived off the rent derived from those two properties.

...

23. As from the date of my retirement we both stayed at home, I did all of the housework except that the cooking was shared by us both. Whilst I was working, we used a joint banking account for living expenses. After we moved to Belmore, we started to use separate accounts. The rent derived from the Leichhardt unit was paid into my account and that from xxx xxxxxx, Rockdale was received in full by the deceased and both those funds were used for our joint living expenses.

...

26. In around 2004, the deceased developed dementia and began to slow down with his pace of live and began to say inappropriate things such as personal insults including swear words and foul language directed at myself and to our neighbours from time to time. This behaviour continued for approximately four years. He stopped cooking around 2004 and I began to take over all of the domestic and financial duties including the payment of bills, the shopping, cleaning and similar household duties. By approximately mid-way during 2006, the deceased became incontinent and, for the next 18 months, I had to attend to the cleaning and dealing with the results of his incontinence, bathing him, dressing him.

...

28. After he was admitted to that Village, I visited him on six or seven days per week and would remain with him for around five hours daily. I would feed him, comfort and talk to him. I would bring my own lunch from home and eat it with him. I took him for walks and he spoke to me until he lost his power of speech, this loss happening four or five months prior to his death. I am a non-driver and I was therefore obliged to travel to and from the Village by public transport. I would leave home at 9.30 am each day and return at 4.30 pm, this every day of the week. This practice continued until the date of his death."

In another affidavit, Gina states:

"12. ... when the deceased and I would go out together he would invariably pay the expenses thereof. However, if I was shopping on my own, I would pay for things like groceries, transport, clothing and gifts from my own monies. I estimate that I withdrew an average of approximately $500.00 per month from my banking account and that this money was applied towards our joint living expenses. For the first nine years the deceased and I collected the rent and for the last six years, commencing when he became ill, Robert would collect the rent and he paid the monies to us irregularly."

Gina admits that she did receive some support with the care of the deceased from Sam about one year before the deceased entered the nursing home at Bexley in 2008. She admits that, whilst the deceased lived at home after 2004, Sam would make appointments for hospital staff to attend upon the deceased in the shower and would take the deceased to Church, on walks, and, sometimes, on picnics.

She also acknowledges that on one occasion, Robert offered to drive her to the nursing home, but that she refused.

It is clear that she provided care, love and companionship to the deceased and in his years of ill health, did all she could for him.

Each of the deceased's sons, from a relatively early age, assisted the deceased with work around the home and on the properties purchased by the deceased. During their youth, and until each married, he made some financial contribution from his wages to the deceased. Each was told that the deceased used the income provided to assist in the purchase of one or other of the different properties. Property that was purchased included property in Italy.

After each of the deceased's sons was married, he contributed his time and his labour to assist the deceased to maintain the properties that had been purchased. It is difficult to determine how much was done by each and/or over what period of time. Bearing in mind the state of the residence at Belmore, as depicted in the photographs, it is unlikely that much work has been done by any of them in recent times.

The evidence of the contributions by each of the sons is corroborated by other witnesses who gave evidence of conversations that he, or she, had with the deceased, in which the deceased stated that his sons gave him money that he saved, and which was used to assist in paying the purchase price of the properties that were purchased.

In my view, the contributions by each of the deceased's sons were significant, and they provide the basis for powerful legitimate competing claims on the bounty of the deceased.

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

I have referred to the provision made for Gina in the Will of the deceased.

Gina says that during her marriage to the deceased, and before he became ill, she was used to a more "affluent" lifestyle. They would travel to Coolangatta twice a year for about 4 weeks at a time. On two occasions, instead of going there, they went to Italy for periods of several months at a time. Their income was from the unit at Leichhardt, which they owned together, from the Rockdale property which the deceased owned and an Italian pension that the deceased received.

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

The only other Will made by the deceased was one made in April 1989 in which he appointed Robert as his executor, and left the Rockdale property to his three sons, left the residence at Belmore together with all furniture and household effects to Gina, for her use and benefit for life, and upon her death, to his sons in equal shares, and the rest and residue of his estate, after payment of debts, funeral and testamentary expenses, to Gina, Robert, Sam and John in equal shares.

There is some evidence that the deceased expressed to a number of different people sentiments reflected in a conversation to the effect of "all the properties that I have will be for my sons as me and [Nunziata's] dream is to have one property for each son as we don't want them to struggle like we did". As is clear, these conversations occurred prior to his marriage to Gina.

There is also evidence that the deceased told Gina, on at least three occasions between 2000 and 2003, in relation to the residence at Belmore, that it was to be hers one day.

The terms of the deceased's Wills, and what he said to others, clearly demonstrate the considerable affection the deceased had for his sons.

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

There is evidence that the deceased maintained Gina, at least partly, during his lifetime. I am satisfied that she was not entirely dependent upon him, since she was entitled to, and did, receive, five-sixths of the rental income from the unit at Leichhardt.

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

Apart from the Commonwealth government's responsibility to continue to provide Gina with a part pension, and, perhaps, the responsibility of the Italian government to also provide a pension, there is no other person with a liability to support her.

She has some assets of her own, but these are insufficient to support her. Accordingly, the only candidates with a liability, currently, to support her, are the estate or the state.

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

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

I am satisfied that Gina was a considerate and loving wife of the deceased. Their marriage was a long one and there is no suggestion that she was anything other than a dutiful wife. There is no conduct relied upon which may reduce Gina's entitlement to provision. I note, also, that Sam and Robert's counsel does not assert any conduct that is relevant under this sub-section.

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

The conduct of each of the deceased's sons is each relevant. Each was a loving son to the deceased. They are the chosen objects of the deceased's testamentary beneficence. There is nothing in the conduct of any of them that is relevant to reduce his claim upon the bounty of the deceased. No conduct was suggested by counsel for Gina.

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

This is not relevant in the present case.

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

The deceased, in October 1982, purchased Gina's sister's share of the unit at Leichhardt. A copy of the Transfer refers to a consideration of $9,083 having been paid, although Robert gives evidence that an amount of $20,000 was paid.

The deceased, in July 1991, sold another property at Rockdale (next door to the Rockdale property owned by the deceased at the date of his death) to Robert. A copy of the Transfer refers to a consideration of $180,000 having been paid (although Robert accepts that it was paid "over a period of time"). Robert says that was its then market value. There is no evidence to the contrary.

This property requires repair and maintenance. The quotation received to carry out the work recommends that the house be demolished and a similar type home, in a brick veneer style, should be constructed on the land.

Determination

Eligibility

There is no dispute that Gina is an eligible person within s 57(1)(a) of the Act. She does not, as such, have to establish factors warranting the making of her application.

In respect of her claim, as the proceedings were commenced within the time prescribed by the Act, the first question for determination is whether, at the time when the court is considering the application, adequate provision for the proper maintenance, education or advancement in life of Gina, has not been made, by the Will of the deceased.

I am of the view that the provision made for Gina in the deceased's Will was neither adequate nor proper. It did not take into account the possibility that, in the future, alternative accommodation might be required. The limitations placed upon her right of accommodation were unreasonable, unduly restrictive, conditional and precarious. The gift of household chattels, whilst it may have been of use, was of no particular value. She received nothing else. In addition, she has some financial needs that are unable to be met from her own resources. This is not in contest.

I am satisfied that Gina has established the jurisdictional threshold. There was no dispute that this finding should be made.

Having found that Gina is an eligible person and that the provision made for her in the Will of the deceased is inadequate, I next consider whether an order for provision should be made and the nature and quantum of any order. I am of the view that an order should be made. Again, there was no dispute about this.

I have previously noted that Sam and Robert accepted that such provision as is made by the Court should include the estate's share of the rent that she has received since the deceased's death and $143,000 by way of capital sum to supplement her income. I am of the view that if the lump sum is paid within 2 months of the date of the making of orders, no interest should be paid; however, if not so paid, interest at the rate prescribed on unpaid legacies under the Probate and Administration Act 1898 should be paid from that date until the date of payment.

The real area of dispute as to the additional provision, related to whether Gina should receive the deceased's interest in the Belmore residence and in the Leichhardt unit absolutely, or whether she should receive a more limited interest therein. Counsel did not dispute that Gina required security and flexibility in her accommodation, or that the Court should recognise that she wishes to remain in the residence at Belmore, which has been her home for over 20 years.

During the submissions, Mr Armfield, for Gina, submitted that she should receive the deceased's interest in each property absolutely; that if I did not accept that submission, she should receive the deceased's interest in each absolutely, but subject to a charge in favour of each of the sons (first, by reference to a lump sum amount, or, in the alternative, by reference to a percentage of the value of those two properties); and lastly, by way of a Crisp order.

Not surprisingly, Mr Hill, for Sam and Robert, submitted the priority in reverse as that advanced by Mr Armfield.

I am of the view that the extreme position advanced by each counsel should not prevail and that Gina should receive the deceased's interest in each property absolutely, subject to a charge in favour of each of the sons of the deceased, which charge would only be able to be satisfied on the sale of the relevant property the subject of the charge, or on the death of the deceased, whichever is first.

The Plaintiff accepted, at least in relation to the unit at Leichhardt, that she was concerned to receive the rental income for the remainder of her life. She made no point regarding absolute ownership of the deceased's one-sixth interest. It was clear to me that she was keen to ensure that she received the share of income to which the estate would otherwise be entitled for her life.

In other circumstances, I might have provided a life estate in the deceased's interest in that property to her, but the alternative, which I consider provides adequate and proper provision, is one that will give her an absolute interest, but require her to provide a charge, secured over that property, or otherwise to the satisfaction of the deceased's sons. This will avoid any involvement of the Defendants in Gina's life, whilst, at the same time, ensuring that on the sale of that property, or on Gina's death, each son will receive an additional share of the estate. It will also provide her with flexibility, independence and autonomy.

In relation to the deceased's interest in the residence at Belmore, whilst I accept that Gina, after such a long marriage is entitled to ensure that she is secure in her accommodation, and that she is not beholden to any of the deceased's sons, I cannot ignore the significant financial, and other, contributions, made by each of his sons, or the relative strengths of his competing claim of testamentary recognition as provided in the deceased's Will. This is not a case in which each of the beneficiaries nominated in a Will has no legitimate claim on the deceased's bounty or demonstrated need.

Furthermore, in crafting an order under the Act, the court must seek to disturb the provisions of the deceased's Will as little as possible conformably with the requirement to make adequate and proper provision for an applicant. The deceased's wish to ensure that his sons inherited his property is one that the Court should respect, provided that doing so is consistent with the same objectives.

In my view, ensuring that Gina is secure in her accommodation and otherwise without pecuniary anxiety, whilst, at the same time, ensuring that on her death, or on sale of property that she receives by family provision order, the deceased's sons should rank for their fair share, is achieved. For once Gina is gone, and, therefore, no longer in need of provision, her needs no longer warrant that the sons' rank behind her, or, thus, her chosen beneficiaries (she has no children of her own). Yet, whilst alive, she will be the mistress of her own life and not beholden to the Defendants and/or their sibling. She will be able to enjoy a similar, if not better, standard of living, than she did during the lifetime of the deceased.

I have considered the need, in an acrimonious relationship, to bring about a clean break between the parties. In this case, despite the proceedings, I did not form the view that there was such a relationship. In this regard, I refer to what I have said about the repairs to the property being carried out by the deceased's sons.

I am of the opinion that the effect of any order in favour of Gina which provides her with an absolute interest, should be that the deceased's sons, together, receive a sum, calculated as 39 per cent of the value of the deceased's interest in the unit at Leichhardt and of the residence at Belmore, but only at the time of the sale of the property over which the charge, or part of the charge, is secured, or on Gina's death, whichever is first to occur. Using the current values, this percentage equates to $261,624, or $87,208 to each son.

For the avoidance of any doubt, if, for example, Gina wishes to secure the charge only over the whole of the unit at Leichhardt, then simultaneously with the deceased's interest in it being transferred to her, she should grant a charge, which, on present values, would result in about 61.5 per cent of the value of the whole of that property ($261,624 $425,000). If, on the other hand, she wishes the charge to be secured only over the residence at Belmore, simultaneously with the deceased's interest in it being transferred to her, then she may grant a charge, which, on present values, would result in about 43.6 per cent of the value of that property ($261,624 $600,000). A third alternative might be that the charge be secured over both properties, which, on present values, would result in 25.5 per cent of the value of the each property (about $153,249 and $108,375 respectively). In that event, the time at which the sum is payable would be received, in part, on the sale of each property. No doubt, the ingenuity of the legal representatives and/or the parties can provide other alternatives.

I have tested my conclusion in this way (using present values). If, for example, Gina were to sell the unit in Leichhardt and the residence in Belmore immediately, she would receive about $1,025,000. She would have, as well, the lump sum of $143,000 and cash in bank ($24,254). She would be required to pay to the deceased's sons, a total of $261,624, leaving her with about $930,630, which amount would be more than sufficient to meet her accommodation needs as well as providing capital and income from the balance.

To make provision for Gina, in this way, does not effectively remove her from the residence at Belmore and/or affect the continued lifestyle in that home which she shared with the deceased for so many years. By providing her with the deceased's interest in the unit at Leichhardt absolutely, her income will not be reduced. The lifestyle she enjoyed during the deceased's lifetime, and which she might expect to continue to enjoy thereafter, will be continue, since only in the future will the charge be satisfied. She will also have the flexibility of access to most of the capital value of the properties if required.

I stress that in providing an amount and stating that it may be secured by a charge, I do not intend the sons of the deceased to be regarded as co-owners of the property, or properties, the subject of the charge. No legal, or equitable, rights, which will enable them, or any of them, to force sale of the property, or properties, by Gina, are intended to be created. It is only when she sells the property, or she passes away, that the amount to be secured by the charge on that property, or those properties, will be payable to the deceased's sons.

I shall leave it to the parties, if they can, to determine the precise manner of securing the amount for the deceased's sons. In each case, a reasonable period (say upon receipt of proceeds of sale, or 2 months whichever is earlier) to enable the payment of the amount to be paid should be allowed.

For their part, it seems to me that the deceased's sons should be permitted to lodge and maintain on the title of the property or properties, a caveat to secure the charge created, upon the basis that upon reasonable request from Gina the caveat will be withdrawn.

Unless any party wishes to argue to the contrary, the usual order in respect of each party's costs should be made.

In light of the parties' request, I shall publish my reasons and require them to prepare short minutes that reflect my decision. The matter will be listed on a date convenient to counsel, but in the event that short minutes are agreed, and if I receive them in sufficient time, I shall vacate that date and make orders in Chambers.

If the parties are unable to reach agreement on any matter necessary to give effect to these reasons, I shall hear further short submissions on any aspect in dispute.

The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules (2005) and the Court Books may be returned.

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Decision last updated: 24 October 2011

Medium Neutral Citation:	Spata v Spata [2011] NSWSC 1221
Hearing dates:	12 October 2011
Decision date:	24 October 2011
Jurisdiction:	Equity Division
Before:	Hallen AsJ
Decision:	Having found that the Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, order that the Plaintiff receive the residence at Belmore and the deceased's interest in the Leichhardt property absolutely, but subject to a charge to secure the amount referred to in favour of the three sons of the deceased equally. The parties should be allowed an opportunity to decide the manner in which the charge will be secured and over which property or properties. If the parties are unable to reach agreement on the manner in which the charge is to be secured or otherwise, I shall, hear further short submissions on the matters remaining in dispute and any consequential orders. Subject to any argument about costs, I would propose to make the usual order for costs. The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules and the Court Books may be returned. The proceedings are adjourned to enable the parties to bring in short minutes.
Catchwords:	Plaintiff the widow of the deceased seeks family provision order - Marriage of about 30 years - Beneficiaries are sons of the deceased by a prior marriage - Only issue is the nature of provision to be made for Plaintiff
Legislation Cited:	Family Provision Act 1982 Probate and Administration Act 1898 Property (Relationships) Act 1984 Succession Act 2006 Succession Amendment (Family Provision) Act 2008 Uniform Civil Procedure Rules (2005)
Cases Cited:	Bladwell v Davis [2004] NSWCA 170 Blore v Lang (1960) 104 CLR 124 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Butcher v Craig [2010] WASCA 92 Clifford v Mayr [2010] NSWCA 6 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Court v Hunt (NSWSC, 14 September 1987, unreported) Crewe, Re [1956] NZLR 315 Crisp v Burns Philp Trustee Company Ltd (NSWSC, 18 December 1979, unreported) Devenish v Devenish [2011] WASC 129 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [[2009] NSWCA 54 Foley v Ellis [2008] NSWCA 288 Golosky v Golosky [1993] NSWCA 111 Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Grainger v The Public Trustee (WASC, 6 December 1995, unreported) Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 Kay v Archbold [2008] NSWSC 254 Langtry v Campbell (7 March 1991, unreported) McCosker v McCosker (1957) 97 CLR 566 McKenzie v Topp [2004] VSC 90 Magill v Magill [2006] HCA 51; (2006) 226 CLR 551 Marshall v Carruthers [2002] NSWCA 47 Mayfield v Lloyd-Williams [2004] NSWSC 419 Milillo v Konnecke [2009] NSWCA 109 Miller v Miller [2006] UKHL 24; [2006] 2 AC 618 Moore v Moore (NSWCA, 16 May 1984, unreported) Neil v Jacovou [2011] NSWSC 87 O'Loughlin v O'Loughlin [2003] NSWCA 99 Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Pogorelic v Banovich & Ors [2007] WASC 45 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Salmon v Blackford [1997] NSWCA 274 Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100 Sellers v Scrivenger [2010] VSC 320 Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Sitch (deceased), Re the Will of; Gillies v Executors of the Will of Sitch [2005] VSC 308 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported) Welsh v Mulcock [1924] NZLR 673 Worladge v Doddridge (1957) 97 CLR 1
Texts Cited:	Mason and Handler's "Succession Law and Practice New South Wales"
Category:	Principal judgment
Parties:	Gina Spata (Plaintiff) Sam Spata (first Defendant) Robert Spata (second Defendant)
Representation:	Counsel: Mr J Armfield (Plaintiff) Mr A Hill (Defendants) Solicitors: Coorey & Fitzgerald (Plaintiff) Hunter Lawyers (Defendants)
File Number(s):	2010/284663