Sreckovic v Sreckovic

[2018] NSWSC 1597

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Sreckovic v Sreckovic [2018] NSWSC 1597
Hearing dates:	17 – 18 September 2018
Date of orders:	23 October 2018
Decision date:	23 October 2018
Jurisdiction:	Equity
Before:	Hallen J
Decision:	See Paragraph 299
Catchwords:	SUCCESSION — FAMILY PROVISION — The Plaintiff, an adult child of the deceased, makes a claim for a family provision order — No dispute as to the Plaintiff’s eligibility as a child of the deceased — Proceedings not commenced within time prescribed by Act — No consent to extension of time — Whether sufficient cause shown — Deceased made statements in her Will, and otherwise, providing reasons for making no provision for the Plaintiff — Nature of relationship of the Plaintiff and the deceased — Estate comprises, at the date of hearing, only the deceased’s home in which the Defendant, the sole beneficiary, lived for many years — Competing claim of the Defendant — Reasonably large estate in value — Whether family provision order should be made, and if so, the nature and quantum of the provision to be made
Legislation Cited:	Civil Procedure Act 2005 (NSW) Family Provision Act 1982 (NSW) Justice Legislation Amendment Act 2018 No 4 (NSW) Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW) Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Andre v Perpetual Trustees WA Ltd (as Executor of the Will of Barbara Helen Owen Stewart) [2009] WASCA 14 Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 Benham v Benham [2004] NSWSC 416 Bondelmonte v Blanckensee [1989] WAR 305 Borebor v Keane [2013] VSC 35 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327 Burke v Burke (2015) 13 ASTLR 313; [2015] NSWCA 195 Butcher v Craig [2009] WASC 164 Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748 Carey v Robson (No 2) [2009] NSWSC 1199 Cetojevic v Cetojevic [2006] NSWSC 431 Chan v Chan [2016] NSWCA 222 Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 Charles v Charles (Supreme Court (NSW), Young J, 25 March 1988, unrep) Christie v Manera [2006] WASC 287 Collicoat v McMillan [1999] 3 VR 803 Condello v Kim [2018] NSWSC 394 Crossman v Riedel [2004] ACTSC 127 Delacour v Waddington (1953) 89 CLR 117; [1953] HCA 64 Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235 Diver v Neal [2009] NSWCA 54 Dugac v Dugac [2012] NSWSC 192 Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 Goodsell v Wellington [2011] NSWSC 1232 Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison [1997] 2 VR 359 Handley v Walker (1903) 22 NZLR 932 Harkness v Harkness (No 2) [2012] NSWSC 35 Hawkins v Prestage (1989) 1 WAR 37 Heyward v Fisher (Court of Appeal (NSW), Kirby J, 26 April 1985, unrep) Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159 Hughes v National Trustees Executors & Agency Company of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2 Hunter v Hunter (1987) 8 NSWLR 573 In re Green, deceased; Zukerman v Public Trustee [1951] NZLR 135 Kalmar v Kalmar; estate of Kalmar [2006] NSWSC 437 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 MacGregor v MacGregor [2003] WASC 169 Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146 Marks v Marks [2003] WASCA 297 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Moore v Randall [2012] NSWSC 184 Nicholas v Tubb [2016] TASSC 53 Nock v Austin (1918) 25 CLR 519; [1918] HCA 73 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 Re Salmon, Deceased [1981] Ch 167 Re the Will of Gilbert (1946) 46 SR (NSW) 318 RHG Mortgage Corporation Ltd v Ianni [2016] NSWCA 270 Salmon v Osmond [2015] NSWCA 42 Sgro v Thompson [2017] NSWCA 326 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Slack-Smith v Slack-Smith [2010] NSWSC 625 Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297 Sophron v The Nominal Defendant (1957) 96 CLR 469 at 475; [1957] HCA 27 Steinmetz v Shannon [2018] NSWSC 1090 Stone v Stone [2016] NSWSC 605 Stott v Cook (1960) 33 ALJR 447 Sung v Malaxos [2015] NSWSC 186 Taylor v Farrugia [2009] NSWSC 801 Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 Tobin v Ezekiel (2012) 83 NSWLR 75; [2012] NSWCA 285 Toscano v Toscano [2017] NSWSC 419 Underwood v Gaudron [2014] NSWSC 1055 Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269 Valbe v Irlicht [2001] VSC 53 Verzar v Verzar [2012] NSWSC 1380 Verzar v Verzar (2014) 12 ASTLR 523; [2014] NSWCA 45 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 White v Barron (1980) 144 CLR 431; [1980] HCA 14 Worsley v Solomon [2008] NSWSC 444 Yee v Yee [2017] NSWCA 305
Texts Cited:	Rosalind Atherton, “The Concept of Moral Duty in the Law of Family Provision – a Gloss or Critical Understanding?” (1999) 5(1) Aust J Leg Hist 5
Category:	Principal judgment
Parties:	Ljiljana Sreckovic (Plaintiff) Gina Sreckovic (Defendant)
Representation:	Counsel: Mr R M Higgins (Plaintiff) Mr M Cleary (Defendant)   Solicitors: Patrick Hargraves & Co (Plaintiff) Giles Payne & Co (Defendant)
File Number(s):	2017/143021

Judgment

Introduction

1. HIS HONOUR: In these proceedings, the Plaintiff, Ljiljana Sreckovic, who also goes by the name “Lillian”, seeks provision out of the estate and/or notional estate of her mother, Josipa Sreckovic (“the deceased”) pursuant to Chapter 3 of the Succession Act 2006 (NSW) ("the Act”). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. It replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009.

2. As in so many cases, nowadays, which proceed to hearing, involving a claim by a mature, adult child, seeking provision, or additional provision, out of the estate of a parent, the major issues revolve, principally, around the character and conduct of the applicant and her, or his, relationship with the deceased, the deceased’s views of those things, as well as the relationship of the deceased with one, or more, of her, or his, other children, as reflected by the last Will that was made.

3. In the present case, a further issue is whether the Plaintiff’s application should be permitted to be made since it was not commenced within the time permitted by the Act. Although I do not suggest the solicitor for the Plaintiff was the cause of the failure to commence proceedings within time, the case serves as a further reminder that a legal representative acting for an applicant under the Act should ensure that instructions are obtained to, and that they do, file, and serve, the application within the period prescribed by the Act. A significant issue would have been avoided had that occurred.

4. As in so many other cases, the person seeking to uphold the testamentary wishes of the deceased, is a sibling of the applicant. Often, and regrettably, the cases heard by the Court also involve, as this one does, the somewhat acrimonious relationship of the siblings. Here, the Defendant is Gina Sreckovic, the only other child of the deceased.

5. Finally, in this case, also, is the unresolved sense of hurt, felt by the Plaintiff, in not appearing to not have been considered an important, positive, part of the overall life of the deceased, and not being recognised for what are said to be her contributions, by way of assistance to, and support of, the deceased, throughout most of the deceased’s life. Whilst an applicant’s feeling of hurt will not be a relevant consideration in the determination of a family provision claim, often it explains, at least partially, a driving motive in the cases that are not resolved other than by contested hearing.

The Claim

6. The deceased, who was born in September 1925, died, a widow, on 20 December 2015, aged 90 years. Her only husband, Jezdimir Sreckovic, had predeceased her, having died in October 1996. There were only two children of their marriage, being the Plaintiff, who was born in November 1952, and who is aged almost 66 years, and the Defendant, who was born in June 1959, and who is aged 59 years.

7. The Plaintiff filed a Summons on 12 May 2017, in which she sought an order that the time for the making of her application be extended to the date of the filing of the Summons, the family provision order, and an order for her costs to be paid out of the deceased’s estate. 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, for the maintenance, education, or advancement in life, of an eligible person.

8. The Defendant is the sole executrix and universal legatee appointed in the Will made on 24 January 2005, by the deceased, and the person to whom this Court granted Probate of the deceased’s Will on 1 April 2016.

9. Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order. It is not in dispute that, as a child of the deceased, the Plaintiff is an eligible person within s 57(1)(c) of the Act. The language of the sub-section is expressive of the person’s status, regardless of age, as well as her, or his, relationship to the deceased.

10. Section 58(2) provides that an application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown, or the parties to the proceedings consent to the application being made out of time. (Relevantly, the Act was recently amended by the Justice Legislation Amendment Act 2018 No 4 (NSW), which was assented to on 21 March 2018. Section 58(2) of the Act commenced, as amended, on 2 July 2018.)

11. It is not in dispute that the Plaintiff did not commence the proceedings within the time prescribed by the Act. The time for making the claim is calculated from the date of death of the deceased to the date of filing of the Summons in the Court Registry: s 58(3). The Plaintiff’s Summons was filed about 5 months out of time.

12. As the Defendant does not consent to the time for the making of the application being extended, the Plaintiff must show “sufficient cause” for the Court to “otherwise order”.

13. It was also agreed by the parties that there is no scope for the operation of the intestacy rules, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.

14. A family provision order may be made in relation to property that is not part of the deceased person’s estate, but is designated as “notional estate” of the deceased person by an order under Part 3.3 of the Act: s 63(5). “Notional estate” of a deceased person is defined in s 3 of the Act to mean property designated by a notional estate order as notional estate of the deceased person. “Notional estate order” means an order made by the Court under Chapter 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.

15. Section 63(3) of the Act provides that a family provision order may not be made in relation to property of the estate that has been distributed by the legal representative of the estate in compliance with the requirements of s 93, except as provided by sub-section (5).

16. Section 63(5) provides that a family provision order may be made in relation to property that is not part of the estate of a deceased person, or that has been distributed, if it is designated as notional estate of the deceased person by an order under Part 3.3 of the Act.

17. Section 79 of the Act permits the Court, on application by an applicant for a family provision order, or on its own motion, to make a notional estate order designating property specified in the order as notional estate of a deceased person if the Court is satisfied that on, or as a result of, a distribution of the deceased's estate, property (whether or not the subject of the distribution) became held by a person (whether or not as trustee) or subject to a trust.

18. There was evidence that the Defendant lodged a Transmission Application in order to transfer a property in Pagewood, a suburb of Sydney, (“the Pagewood property”), which was registered in the name of the deceased at the date of death, to the Defendant, “as beneficiary under the Will of the deceased registered proprietor”: Ex. D2.

19. There was no evidence that the Defendant had given notice, in the form approved under s 17 of the Civil Procedure Act 2005 (NSW), of any intention to distribute property in the estate after the expiration of a specified time: s 93(1) of the Act. Counsel for the Defendant acknowledged that the Transmission Application had been lodged less than 6 months after the death of the deceased.

20. The parties then agreed that there would not need to be a debate whether any part of the distributed property should be designated as notional estate. Counsel had read my decision in Soens v Rathborne [2018] NSWSC 302, at [39] – [48], in which I dealt with alternatives available to the Court in circumstances of a premature distribution of part of the estate. Counsel agreed that the Defendant would satisfy the orders for provision, and costs, if any, made in favour of the Plaintiff. The consequence of their agreement is that it is not necessary to deal with the notional estate sections of the Act in order to determine whether a notional estate order should be made.

21. Finally, in terms of the proceedings, the Plaintiff had caused to be filed a caveat on the title to the Pagewood property. During the course of the hearing, she agreed to withdraw, or cause to be withdrawn, that caveat within 7 days. The Court noted her agreement to do so: T96.08 – T96.26; T112.46 – T113.30. (There has been no application, since the hearing, to suggest that the agreement was not complied with.)

Background Facts

22. In claims such as these, factual context is necessary. It is convenient to begin with a statement of some of the background, and the formal, facts, since these provide the context in which the issues in the case arise. Many of these facts are taken from the affidavits read in the proceedings, or from the oral, or other, evidence, given during the hearing, which are uncontroversial. In relation to any factual matters that were in dispute in those affidavits, or otherwise, to which I refer, the background facts set out hereunder should be regarded as the findings of the Court.

23. The deceased came to Australia, with her two children, in about June 1969 to join her husband (and their father). He had been living in Sydney, having arrived, in about 1968, from Serbia. Between their arrival and 1979, the family lived together, in different accommodation, in Sydney.

24. On two occasions, between 1976 and 1978, the Plaintiff had left her parents’ home, for about six to eight months, in total, to move in with a boyfriend. On each occasion, when the relationship ended, she returned to their home.

25. In about 1979, the deceased and her husband purchased the Pagewood property for about $64,000. The deceased, her husband, and the parties, lived in the Pagewood property thereafter.

26. In 1987, the Plaintiff moved from the Pagewood property to Canberra. She lived there with a man (she had hoped to marry), until about 1994, when they moved to Brisbane. The Plaintiff had a son, Benjamin Parry, in May 1991. Regrettably, the Plaintiff’s relationship ended and she, again, returned to live in the Pagewood property, with Benjamin, in about December 1997. They remained living there, with the deceased, and the Defendant, until February 2005. She and Benjamin left, then, following receipt of a letter from the deceased’s solicitors, to which I shall refer later in these reasons.

27. There is an issue, to which it will also be necessary to return, about the relationship of the Plaintiff and the deceased, after January 2005 and the death of the deceased. There is no dispute, however, that the Plaintiff moved back into the Pagewood property, for approximately six months, after the deceased was discharged from Prince of Wales Hospital on 21 October 2014. She moved out again after the deceased went to live in a nursing home in March 2015.

28. Relevantly, the deceased’s Will provided that:

1. All former wills and testamentary dispositions were revoked;

2. The whole of the deceased’s estate was left to the Defendant absolutely. (In the event that the Defendant did not survive the deceased, the whole of the estate was left, in equal shares, to any surviving issue of the Defendant that had attained the age of 21. Relevantly, the Defendant does not have any issue. Alternatively, the whole of the estate was left to the deceased’s niece, Jolanda Kunic, who was said to reside in Croatia.)

3. No provision, at all, was made for the Plaintiff.

4. Clause 6 of the Will was in the following terms:

“6. I HAVE omitted to provide for my daughter LJILJANA SRECKOVIC because she owns sufficient property and has the financial resources to assist her and her son BENJAMIN JAMES DAVID PERRY [sic] (hereinafter “my grandson”) whilst my younger daughter GINA SRECKOVIC does not own any such property and FURTHER I have omitted LJILJANA SRECKOVIC because she and my grandson have been disrespectful to me whilst residing with me in my home and she has intentionally distanced my grandson from me. My daughter LJILJANA SRECKOVIC and my grandson have caused me great distress and have not cared for me and assisted me the way my daughter GINA SRECKOVIC has done for many years.”

29. The Plaintiff disputed some of the matters in Clause 6 and it will be necessary to return to her evidence on this topic.

30. In the Inventory of Property attached to, and placed with, the Probate document, the property owned solely by the deceased, at the date of her death, was the Pagewood property (E$1,500,000), and cash in bank ($36,000). The total gross value of the deceased’s estate was estimated to be $1,536,000. (I shall omit the reference to cents in the amounts to which I shall refer. This will explain any seeming mathematical errors.)

31. The Pagewood property is described as a single storey, detached brick veneer residence, with a garage and pergola. It includes three bedrooms and one bathroom. The Defendant, in cross-examination, accepted that it is a “rather large house for one person”: T95.01 – T95.03.

32. There were no liabilities disclosed in the Inventory of Property. However, in an affidavit sworn on 5 July 2017, the Defendant stated that $8,087 had been paid to her solicitors “to obtain the grant of Probate”; that $1,963 had been paid for the Supreme Court filing fee (for the Probate application); that $136 had been paid for the registration fee for the transmission of the Pagewood property into her name; and $2,730 had been paid to her solicitors in respect of costs and disbursements of these proceedings.

33. At the commencement of the hearing, the parties agreed that the deceased’s estate has an estimated current gross value of $1,500,000 and that it is made up solely of the Pagewood property. (As will be read, some of the remaining cash has been paid out of the estate on account of the Defendant’s costs of these proceedings.) They also agreed that if the Pagewood property is sold, there will be costs and disbursements of sale, which are estimated to be (no more than) $42,000: T6.33 – T7.41.

34. Counsel for the Defendant accepted that it was not certain that the sale would be necessary, as the Defendant will attempt to satisfy the orders of the Court, if any orders are made. On the second day of the hearing, the parties agreed that, in the event orders are made, the Defendant should be given 8 weeks to satisfy those orders for provision and costs before the sale of the Pagewood property is ordered: T111.42 – T112.43.

29. The only eligible persons identified and agreed are the two children of the deceased, namely the parties in these proceedings. Only the Plaintiff has made a claim for a family provision order.

30. The Plaintiff asserted, in the notice of eligible persons served upon the Defendant that her son, Benjamin, is also an eligible person, but this was disputed by the Defendant. There is no evidence that the notice of the Plaintiff’s application, and of the Court's power to disregard his interests, has been served upon Benjamin. He has not played any part in the proceedings.

31. Counsel for the Plaintiff informed the Court, without objection, that he had conferred with Benjamin, who is aware of the Plaintiff’s proceedings, and has informed counsel that he does not wish to make a claim for provision out of the deceased’s estate: T6.24 – T6.31.

32. In the circumstances, the dispute about eligibility does not matter, as I am satisfied that service of any notice upon Benjamin is unnecessary, and I shall disregard his interests as a person by, or in respect of whom, an application for a family provision order may be made but who has not made an application: s 61 of the Act. (However, I shall discuss his failure to give evidence, otherwise, in the Plaintiff’s case.)

33. The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though she, or he, has not made a claim: s 61. She, or he, is entitled to rely, as a chosen object of the deceased’s testamentary bounty, upon the terms of the deceased’s Will. It is only her, or his, situation that needs to be considered as a competing claimant on the bounty of the deceased.

34. The Defendant raised her financial resources and needs, in the proceedings. She also gave evidence of the reasons why she has a legitimate claim on the bounty of the deceased. She was cross-examined. I shall return to her evidence later in these reasons.

35. In all the circumstances of this case, I do not propose to disregard the Defendant’s interest as the chosen object of the testamentary bounty of the deceased. I shall refer to her legitimate claim on that bounty.

Costs and Disbursements of the Proceedings

42. Usually, in calculating the value of the deceased's estate available out of which a family provision order may be made, the costs of proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the Defendant, as the person representing the estate of the deceased, irrespective of the outcome of the proceedings, normally, would be entitled to an order that her costs, calculated on the indemnity basis, should be paid out of the estate.

43. Basten JA wrote in Chan v Chan [2016] NSWCA 222, at [54], that “[I]n considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs.”

44. However, as I have repeated many times, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195; Harkness v Harkness (No 2) [2012] NSWSC 35.

45. In an affidavit sworn on 15 August 2018, by Mr A G Hatsatouris, solicitor, the Plaintiff’s costs and disbursements, including a share of the costs of mediation, to the conclusion of a 2 day hearing, were estimated to be $73,104. Mr Hatsatouris did not state, in the affidavit, whether the estimated costs had been calculated on the ordinary, or the indemnity basis. He also did not state whether the Plaintiff had paid any amount on account of the costs and disbursements. (These are matters that should always be included in a solicitor’s affidavit as to costs relied upon at the hearing.)

46. At the commencement of the hearing, counsel for the Plaintiff, informed the Court, without objection, that the estimate had been calculated on the ordinary basis. Counsel for the Defendant accepted, for the purposes of the calculation of the estate which may be available for distribution, that the estimate should be used in order to determine the value of the estate out of which an order for provision may be made: T4.30 – T4.38.

47. On the second day of the hearing, the Court was informed, again, from the Bar table, without objection, that the Plaintiff had paid $16,342 on account of those costs and disbursements, with an additional $1,000 then being held the solicitors’ trust account: T113.32 – T113.44.

48. In an affidavit sworn on 15 August 2018, by Ms P Becker, solicitor, the Defendant’s costs and disbursements, including a share of the costs of mediation, to the conclusion of a 2 day hearing, calculated on the indemnity basis, were estimated to be $86,632. Ms Becker also stated that $34,610 had been paid on account of those costs and disbursements by the Defendant out of the estate of the deceased, and that $7,820, had been paid by the Defendant personally.

49. It will be for the Defendant to meet, from her other resources, the balance of the costs and disbursements ($44,220) if an order for costs is made unless the Pagewood property is sold.

50. The parties agreed that, whatever the result of the proceedings, what may be regarded as the usual order for costs should be made. Counsel requested that the Court resolve the issue of how the costs and disbursements of the proceedings should be borne as part of these reasons, as there are no documents that impact upon that issue.

51. Finally, it was agreed that if the estimate of the costs of each party proves accurate, and if an order for costs to be paid out of the estate is made, a total estimate of $117,324, on account of the costs, will need to be deducted from the estimated value of the estate: T5.39 – T5.50. The amount of $42,000 should also be notionally deducted as the costs and expenses of sale of the Pagewood property.

52. It follows, and counsel agreed, that the value of the net distributable estate, from which any order for provision could be made, is about $1.34 million: T7.35 - T7.45. It can be seen, therefore, that the estate of the deceased is of reasonable value.

Prior Will of the deceased

53. In Steinmetz v Shannon [2018] NSWSC 1090, Pembroke J, after referring to an earlier Will of the deceased in that case, which Will had made much more generous provision for the applicant, stated that “the proximity of death and the clear light of perspective sometimes focus [sic] the mind; providing a final opportunity for considered reflection. The only Will that matters is the deceased’s last Will.”

54. Whilst the last sentence quoted is, undoubtedly, correct, so far as the principal questions for determination under the Act are concerned, the earlier testamentary intentions of the deceased, as disclosed in a prior Will, or Wills, are also important, particularly if there was a long standing testamentary intention revealed by earlier Wills, and where there has been an incident, or incidents, that have caused a change to those long held testamentary intentions.

55. An earlier Will of the deceased may also reflect the recognition by the deceased, at the time of the prior Will, of a degree of testamentary duty owed by her, or him, towards the applicant.

56. Also, as will be read, one of the matters to which the Court may have regard, is “any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person”: s 60(2)(j) of the Act.

57. The deceased had made a Will on 10 March 1997 (“the 1997 Will”), in which she appointed both of her children to be executors and trustees and left the whole of her estate, upon trust, to sell, call in, and convert the same into money, with power to postpone sale, calling in, and conversion, and after the payment of all debts, funeral, and testamentary expenses, and all death duties and estate duties in respect of her estate, or by reason of her death, she left the balance for “such of my children as should survive me and if more than one, equally between them”. (The 1997 Will was the only prior Will of the deceased that formed part of the evidence in the proceedings.)

Statements made by the deceased

58. Section 100(2) of the Act provides that in any proceedings under Chapter 3, evidence of a statement made by a deceased person is, subject to the section, admissible as evidence of any fact stated in it of which direct oral evidence by the deceased person would, if the person were able to give that evidence, be admissible. A statement in the section “includes any representation of fact whether or not in writing” s 100(1).

59. Sub-section (5), (6), and (8) of s 100, provide:

"100 Evidence

(5) Where a statement made by a deceased person during the person's lifetime was contained in a document, the statement may be proved by the production of the document or, whether or not the document is still in existence, by leave of the Court, by the production of a copy of the document, or of the material part of the document, authenticated in such manner as the Court may approve.

(6) Where, under this section, a person proposes to tender, or tenders, evidence of a statement contained in a document, the Court may require that any other document relating to the statement be produced and, in default, may reject the evidence or, if it has been received, exclude it.

…

(8) In estimating the weight, if any, to be attached to evidence of a statement tendered for admission or admitted under this section, regard must be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, including:

(a) the recency, or otherwise, at the time when the deceased person made the statement, of any relevant matter dealt with in the statement, and

(b) the presence or absence of any incentive for the deceased person to conceal or misrepresent any relevant matter in the statement.”

60. Many years before the inclusion of the section, Gibbs J had written in Hughes v National Trustees Executors & Agency Company of Australasia Ltd (1979) 143 CLR 134, at 150; [1979] HCA 2:

"… in Australia for many years the courts have admitted evidence of statements made by a testatrix explaining why she made her will as she did. In taking this course the courts have no doubt been influenced by a desire to be informed of the reasons which actuated the testatrix to make the dispositions she had made, and by the consideration that in cases of this kind a claim is made against the estate of a person who is deceased and can no longer give evidence in support of what she has done. It is doubtful whether, in most cases, such evidence is relevant, but usage justifies its reception. The question is for what purpose it may be used, once admitted. The balance of authority clearly favours the view that it is admissible only to provide some evidence of the reason why the testatrix has disposed of her estate in a particular way, and that it is not admissible to prove that what the testatrix said or believed was true: Re Jones (1921) 21 SR (NSW) 693, at p 695; In re Smith (1928) SASR 30, at p 34; In the Will of Joliffe (1929) St R Qd 189, at p 193; Re G. Hall, deceased (1930) 30 SR (NSW) 165, at p 166; In re Green, deceased; Zukerman v Public Trustee (1951) NZLR 135, at pp 140-141 (a case decided before the amending legislation was enacted in New Zealand). This view was accepted as correct by Taylor J. in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR, at p 24; Taylor J. dissented in the result in that case but there is nothing to suggest that his opinion on this point differed from that of the majority of the Court."

61. Apart from Clause 6 of the 2005 Will, the deceased made a statement to a solicitor, Ms Marilyn Rossides, which was typed, and then signed by the deceased on the same day as she made her Will (24 January 2005). Before it was signed, it was read, and translated, to the deceased, by a Serbian speaking interpreter.

62. Ms Rossides, who swore an affidavit on 29 November 2017, annexed a copy of the statement to her affidavit. Ms Rossides was not cross-examined.

63. Although it is lengthy, I shall set out the whole of the signed written statement, verbatim:

“STATEMENT OF JOSIPA SRECKOVIC

1.    I refer to my Will dated 24 January 2005.

2.   I have not bequeathed any of my Estate to my daughter Ljiljana Sreckovic (hereinafter ‘Ljiljana’) or her son Benjamin James David Perry (hereinafter ‘Ben’) as she has demonstrated a lack of respect for me in my lifetime.

3.   My daughter and her son Ben were residing with me and my other daughter Gina Sreckovic (hereinafter ‘Gina’) in my property at [the Pagewood Property] since 1996.

4.   Whilst in my home, Ljiljana and her son treated me inappropriately. This caused me great distress and unhappiness.

5.   Whilst in my home Ljiljana and Ben do not greet me, they eat alone and have a total disregard for me in my home. Ljiljana does not assist me in any of my care needs.

6.   Ljiljana lives in my home rent free yet she does not assist in any of the household chores. She takes advantage of me and my home. She has used my husband’s car since 1996 and refuses to return it to me or pay for it.

7.   Ljiljana has not showed any interest for my care and well being.

8.   I have asked Ljiljana and her son to leave my home on many occasions, however she refuses to leave. Each time I would ask her to leave she would threaten to call the police. I have instructed my solicitors to forward to her a letter requesting that she leave my home and pay for the car.

9.   My grandson Ben has upset me greatly as recently for no apparent reason he called the police on me.

10.   Ljiljana has intentionally distanced my grandson from me and my daughter Gina.

11.   Ljiljana has brought many problems to me and my late husband. I believe that the stress and shame that Ljiljana brought to our family caused my husband to have a heart attack.

12.   Ljiljana not only has no respect for her family but she also withdrew funds from our savings account without our authorization. This caused us severe financial hardship. My husband and I did not take legal action against her for this as this would have brought further shame to the family.

13.   In my lifetime I communicated to Ljiljana my concerns about her attitude and behaviour towards me and I tried encouraging Ljiljana to treat me in a better way so as to restore our relationship, however she did not change.

14.   For these reasons I do not give any part of my estate to Ljiljana or my grandson Ben.

15.   I was not and am not financially or otherwise dependent on my daughter Ljiljana.

16.   My daughter Ljiljana owns property in Canberra which can provide her with the financial assistance that she and her son require therefore she does not need any further financial assistance from me on my death.

17.   My daughter Gina has been my sole carer and keeper. She assists me in all my household chores; she takes me to my medical appointments, cleans and cooks for me. I am indebted to her for her help, care and love towards me.

18.   My daughter Gina and I have entered into an arrangement whereby Gina pays for outgoings on my property including but not limited to water, council rates, telephone, electricity, and insurance. I am financially dependant on Gina for her contributions.

19.    I would not be able to afford to stay in my family home if it wasn’t for the financial assistance from my daughter Gina towards the maintenance of the property.

20.    Gina does not own any property and does not have a husband or family therefore she requires and deserves the entire financial benefit from my estate.

21.   It is only fair and just that Gina inherits my entire estate.”

64. In addition, in her affidavit, Ms Rossides stated:

“8.   I recall the deceased saying to me words to the effect of:

‘My daughter is making me very upset in the house causing too many problems. Gina [sic] and her son do not even speak to us. I can’t live this way. I want her to leave from my house. I want you to tell her to leave.’

9.   I was instructed by the deceased to send a letter to Ljiljana requesting that she vacate the Botany property as the domestic tension was intolerable. Annexed hereto and marked ‘C’ is a copy of the letter that was sent.”

65. I shall not repeat the contents of the letter referred to but it reflects the instructions of the deceased that she wished the Plaintiff and Benjamin to leave the Pagewood property.

66. There was no dispute that, following receipt of the letter, the Plaintiff and Benjamin did vacate the Pagewood property on 2 February 2005.

67. In her signed written statement, the deceased appears to have weighed the testamentary claims upon her, in an apparently sensible way and by considering her only two children. It appears to be a case where the deceased did “expose to the world the delicate, and perhaps indefinable, relations that exist within [her] family circle” or where she “felt quite justified from [her] own standpoint in limiting [her] family benefit, and for reasons which sufficiently appealed to [her], but which no one else could mentally measure or appreciate”: Nock v Austin (1918) 25 CLR 519; [1918] HCA 73, per Isaacs J, at 527.

68. While the Court will consider any explanations given by the deceased in the Will, or elsewhere, for excluding a particular person as a beneficiary, such explanations do not relieve the Court from engaging in the enquiry required by the Act: Slack-Smith v Slack-Smith [2010] NSWSC 625 at [27]. What an explanation may do is cast light on the relationship between the deceased and that person, at least from the deceased's perspective.

69. Where the truth of the statement made by the deceased is admitted, or where the facts asserted in the statement are corroborated by other evidence, due weight should be given to the statement.

70. I have borne in mind, also, that the Court must exercise caution in determining whether to accept the statements of the deceased, and, if accepted, carefully consider the weight to be attached to them. In Benham v Benham [2004] NSWSC 416, Master McLaughlin made the point, at [81], that:

“[T]he Court should not, however, overlook the fact that testators are human. A statement by a testator (which, by definition, cannot be tested under cross-examination), although admissible in evidence, need not be accepted by the Court unquestioningly or uncritically.”

71. As I have written, in other cases, in relation to statements by the deceased, the Court should bear in mind, also, what was said by the Court of Appeal of New Zealand in In re Green, deceased; Zukerman v Public Trustee [1951] NZLR 135 at 141 (which passage was approved by the majority of the High Court in Hughes v National Trustees Executors and Agency Company of Australasia Ltd, at 152):

"If reasons are given by the testator reflecting on the character or conduct of that child, the court must, in considering the sufficiency or otherwise of the reasons, endeavour to decide upon the truth or otherwise of the allegations. But the testator should not be allowed from the grave to condemn the child and to impose upon that child the positive duty of disproving the allegations as an essential preliminary to prosecuting a claim."

72. Thus, a statement is made by the deceased does not mean, necessarily, that it must unquestionably be accepted as true. Such a statement may be just as inaccurate, or as unreliable, as a statement of a living witness, whether as the result of mistake, or failure of memory, or deliberate untruth: Worsley v Solomon [2008] NSWSC 444, per McLaughlin AsJ, at [35].

73. In Sgro v Thompson [2017] NSWCA 326, at [83], White JA (McColl JA agreeing) adhered to the view that he had expressed in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522, at [127], namely, that:

“…respect should be given to a capable testator’s judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator’s death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant’s evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant’s maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased’s death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator’s testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453–454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court’s determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased’s death or will.”

74. His Honour added, at [86]:

“To recognise that the court is not in as good a position as a capable testator to assess what maintenance or advancement in life is proper for an applicant having regard to all of a family’s circumstances, including the relationships between the applicant and the deceased, and the merits and claims of other family members, is not to put a gloss on the statute. Rather, it is to acknowledge the superior position of the testator. The most important word in s 59(1)(c) is ‘proper’. Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties’ financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court’s assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate.”

75. In Steinmetz v Shannon, Pembroke J repeated what he had written in Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146, at [32] – [33], that:

“There are sound practical reasons for not encroaching too readily on the testator’s freedom of testamentary disposition and especially not in accordance with abstract concepts such as fairness or the misguided notion that there should be equality … In Pontifical Societyfor the Propagation of the Faith v Scales (supra) at 20 Dixon CJ articulated the unique difficulty which these cases present with the following memorable apophthegm:

The difficulty is that the Court itself can never be certain that it knows all the circumstances. More often than not, one may be sure that the Court knows few of them. Experience of forensic contests should confirm the truth of the common saying that one story is good until another is told, but a testator is dead and cannot tell his.

To similar effect were some observations of Taylor J in Stott v Cook (1960) 33 ALJR 447 at 453-4, who explained that the reason why a court does not have a mandate to rework a will according to its own notions of fairness, is because such an approach would serve justice no better than:

…acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics.”

76. In this case, it should also be noted that the 2005 Will and the written statements were each made by the deceased at, or immediately after, a particular event that was, obviously, significant in the mind of the deceased. The deceased died 15 years later and there were some intervening events that may also reflect on their overall relationship.

The Plaintiff’s evidence about her relationship with the deceased

77. The Plaintiff dealt with the statement made by the deceased in Clause 6 of the Will. She wrote:

“Clause 6 of the Probated Will contains a number of statements which seek to serve as an explanation as to why the deceased omitted me from her Will.

As noted above the Will was signed on 24 January 2005, following the incident when the police were called to the home.

Noting the date of the Will and the date of the letter I received a letter from my mother’s solicitors, dated 25 January 2005, I believe that when the deceased makes comment of myself and my son being ‘disrespectful’ to her and causing her ‘great distress’ she is referring to this incident.

I believe that the deceased gave these instructions in the heat of our disagreement and would not have given such instructions had the Will been drafted at any other time.

The deceased and I began reconciled [sic] our relationship thereafter, to the point where we were calling each other every day. Indeed, for her last months in her own home I was her sole carer, and during her last six months of life she had appointed me as her guardian. After our reconciliation, I also frequently heard my mother telling people:

‘I am very proud of my grandson’

Regarding the statement that I have financial resources whilst Gina does not ‘own any such property,’ I can only infer that this is in reference to my real estate in Canberra.

This asset however is by no means adequate to support even myself, as my financials disclose.

My sister Gina has always lived at home and had no dependants. I have no idea of her accumulated savings.

With regard to the statement that I had ‘deliberately distanced’ my son from her, I do not know what the deceased is referring to given that in or around December 1997 I had quit my job and removed my son from his school to move to Sydney from Brisbane to live with the deceased at her request.

I believe this is reflective of the fact that in the midst of a disagreement, oftentimes my mother could behave in a manner that was volatile and in a way that indicated that she was not thinking clearly and rationally.”

78. It is difficult to accept that the relationship of the Plaintiff and the deceased repaired as quickly as the Plaintiff asserted, particularly when the deceased had viewed its cause as sufficiently significant to involve a solicitor. However, I think it more likely than not that their relationship was volatile and that it was not the same as the deceased’s relationship with the Defendant, which appears, overall, to have been much more stable and calm.

Benjamin’s failure to give evidence

79. In RHG Mortgage Corporation Ltd v Ianni [2016] NSWCA 270, Ward JA (with whom Meagher JA agreed), wrote, at [160] – [161], and at [165]:

“It is well known that a Jones v Dunkel inference is open where there is an unexplained failure to call evidence as to a matter which calls for explanation from a person whom it could reasonably be expected would be called to give such evidence. The rule in such a case permits evidence in relation to that matter to be given greater weight, and an inference or inferences to be more readily drawn, when the party who might have called evidence to the contrary has chosen not to do so. In Commonwealth of Australia v McLean (Court of Appeal (NSW), 31 December 1996, unrep), Handley JA and Beazley JA, as her Honour then was, said that ‘[t]he rule typically applies to strengthen or weaken an inference otherwise available on the evidence for the benefit of the party not in default’.

RHG accepts that a Jones v Dunkel inference, if one does arise, can do no more than permit the court to infer that the uncalled evidence or missing material would not have assisted the relevant party’s case; it does not permit the court to infer that the uncalled evidence would have been positively damaging to that case. Thus, it allows for the more ready acceptance of evidence which might have been contradicted but which was not. What a Jones v Dunkel inference does not permit is a choice between two guesses or conjectures, nor does it supply missing gaps in evidence (Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) [2006] FCA 446; (2006) 229 ALR 136 at [50]).

…

It is important to keep in mind that the ‘rule’ in Jones v Dunkel is not mandatory (as McColl JA noted in the earlier judgment of this Court and as the primary judge noted in his judgment following the remittal). If a judge is comfortably satisfied on the evidence (circumstantial or otherwise) that a particular inference favourable to the party in question should be drawn, as the primary judge here was, then the rule does not mandate that an adverse inference should instead be drawn by reason of that party’s failure to call a witness who might reasonably be expected to be able to shed light on that particular issue.”

80. One would have expected Benjamin to give evidence since he, as well, as the Plaintiff, is specifically referred to in the Will, and in the written, and other, statements, made by the deceased. He was also the person said to have called the police at the time of the incident in 2005, following which the deceased saw the solicitor who was instructed to write to the Plaintiff and Benjamin requesting that they leave the Pagewood property.

81. There were no reasons given why Benjamin was not called, although, as stated, he had conferred with counsel. Whilst I have borne the failure to call Benjamin as a relevant matter in considering the weight to be placed on the deceased’s statements, I have come to a clear view concerning the conduct of the Plaintiff with the result that no inference is drawn from his failure to give evidence.

The Statutory Scheme

82. In order to place into context the reasons for the Court’s decision, it is, next, convenient to consider the statutory regime and the legal principles that govern the circumstances in which the Court can exercise the discretion under the Act. The legal principles are not in dispute.

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

84. As stated, s 58(2) of the Act, relevantly, provides that an application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown. (It is to be noted that s 58(2) is in terms similar to s 16 of the former Act, but the words “for the application not having been made within that period” are not included after the words “sufficient cause being shown“.)

85. If sufficient cause is shown, then the Court, having regard to all the circumstances of the case, may extend the time for making an application. Clearly, permitting the court to “otherwise order” was included in the legislation to avoid the section becoming an instrument of injustice.

86. Yet, “[T]he time constraint imposed by s 58(2) on the making of a family provision application is not a mere formality”: Verzar v Verzar [2012] NSWSC 1380, at [98]. (The equivalent section in similar UK legislation has been described as "a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules": Re Salmon, Deceased [1981] Ch 167 at 175.)

87. In Madden-Smith v Madden (Estate of the late Doris Linda Madden), at [23] – [24], Pembroke J put it more strongly:

“… Section 58(2) reveals a clear legislative intention to limit applications for family provision orders to those made within a defined, and strictly confined, period. An application is made by filing an originating process commencing proceedings in the registry of the court: Section 58(3).

The short time period imposed by Section 58(2) reflects the judgment of parliament that the welfare of society in connection with the administration of deceased estates is best served by imposing a strictly limited time for making applications. This is not unreasonable. In most cases the putative claimant will be well aware of the testator’s death and the (allegedly) insufficient provision made for him or her. There will only occasionally be a good excuse for not making a claim within time. In fact, experience indicates that the deceased’s relatives usually pay uncommonly close attention to such matters. That is not to say that cases will not arise where, for legitimate reasons, a claimant is quite unaware of the death, or of his or her legal right to make a claim, and is unable to comply with the 12 month time limitation. In those circumstances, the statutory exception requiring ‘sufficient cause’ may well apply.”

88. In Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572, at [84] – [90], I set out the applicable legal principles relating to an application to extend the time, as follows:

“The decision of the court to extend time is a discretionary decision. Other than ‘sufficient cause being shown’, there are no statutory criteria that must be taken into account. There are no rigid rules in regard to the exercise of the discretion.

The principles governing that exercise of discretion under the Act are clear. Apart from the reason(s) for the lateness of the claim, the factors to which the court must look, include whether beneficiaries under the Will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by either side; and, finally what is the strength of the claim made by the party seeking an extension of time: see, for example, John v John; John v John [2010] NSWSC 937 at [37]-[51] per Ward J; Campbell v Chabert-McKay [2010] NSWSC 859 at [45]-[47] per White J; Durham v Durham [2010] NSWSC 389 at [15] per Ball J; Taylor v Farrugia [2009] NSWSC 801 at [14] per Brereton J; Burton v Moss [2010] NSWSC 163 at [31] ff, per Macready As J, in which the relevant earlier cases are referred to.

The onus lies on the applicant to establish sufficient cause. It will be for the court to determine the strength of the applicant's claim.

The prejudice to which the section looks is any prejudice occasioned by the delay in lodging the claim rather than any disappointment that might occur consequent upon readjustment of the interests under the will in order to make provision for the applicant: Cetojevic v Cetojevic [2006] NSWSC 431; McCann v Ward & Anor [2010] VSC 452 at [11]. Where there has been a long period since the deceased died, the lapse of time, itself, might create prejudice in any fact-finding exercise: Vasconelos v Bonetig [2011] NSWSC 1029 at [21].

In De Winter v Johnstone (NSWCA, 23 August 1995, unreported), Sheller JA held that the concept of ‘unconscionable conduct’ referred to above was ‘directed towards a deliberate holding off [in bringing proceedings] designed to lull the beneficiaries into a false sense of security’. Cole JA, whilst not expressing a concluded view, said that it must be doubted whether a change of mind (because of some change in the financial and material circumstances of the Plaintiff which has occurred after the expiry of the limitation period) constitutes unconscionable conduct.

As to the strength of the claim, in De Winter v Johnstone, Powell JA considered that as an application for extension of time was invariably dealt with at the time of the application for substantive relief, no extension of time ought to be granted unless it was established that the applicant seeking an extension of time would, in the event of the extension being granted, be entitled to an order for substantive relief. By contrast, Sheller JA considered that it was only necessary for the applicant to show that the application was not bound to fail.

Where the delay is not unduly long and the estate remains undistributed, ignorance during the period within which proceedings are to be commenced, of the right to claim, followed by a prompt application to extend the time once the right to claim becomes known, will usually be a sufficient explanation: Clark v Burns [2011] VSC 394 at [6].”

89. In Charles v Charles (Supreme Court (NSW), Young J, 25 March 1988, unrep) his Honour, at 7, wrote that “… there must be something more than mere incompetence or inattention by a solicitor before time can be extended under this Act”.

90. In Cetojevic v Cetojevic [2006] NSWSC 431, Campbell J (as his Honour then was) observed, at [55], that Young J's statement was a rule of thumb which could not confine the statutory discretion.

91. In Kalmar v Kalmar; estate of Kalmar [2006] NSWSC 437, White J (as his Honour then was) said of Young J's statement, at [24]:

“His Honour's statement that inattention or incompetence by a solicitor is an insufficient ground to warrant an order extending time does not mean that an application for extension must be refused if the limitation period expired through the fault of the solicitor. Contrary to the impression conveyed in the passage quoted from De Groot and Nickel, Family Provision in Australia, it was not held in Charles v Charles that the extension ought not to be granted in that case. In fact, an extension of time was granted as notice of intention to apply had been given before the limitation period expired and the beneficiaries were not prejudiced by an extension.”

92. In Moore v Randall [2012] NSWSC 184, at [39], White J wrote that the expression “sufficient cause” means “sufficient explanation or sufficient justification or excuse for the application not having been made within the prescribed period”.

93. In Stone v Stone [2016] NSWSC 605 at [36], Brereton J (as his Honour then was) made the following observations about the operation of s 58(2) of the Act:

“The effect of the section is to confer on the Court a discretion to extend time, having regard to all the circumstances of the case, but only if sufficient cause is shown for the application not having been made within the 12-month period. This limitation period is not merely procedural nor a mere formality, but is substantive. An applicant for such an extension must demonstrate that there was sufficient cause for not having made the application within the 12-month period. So much is mandatory. This requires some explanation for the failure to make the application during that period. Once sufficient cause is shown for not having made the application within that period, the discretion to extend time (by making an ‘otherwise order’) is enlivened. It is not a jurisdictional prerequisite that sufficient cause be shown for any further delay after the expiry of the 12-month period; however, any such further delay and the reasons for it are plainly part of ‘all the circumstances of the case’ to which the Court must have regard in exercising the discretion. Other discretionary considerations include whether the extension of time would occasion prejudice to any beneficiary under the will; whether there is any unconscionable conduct on the part of the applicant (which is essentially concerned with deliberate decisions not to make an application, upon which an executor or a beneficiary has acted to their detriment); and the strength of the applicant's case for relief under the Succession Act. A mere change of mind on the part of an eligible person, who has decided not to make a claim - even if that change of mind is triggered by the success of a claim of another eligible person, or by another eligible person bringing a claim - is ordinarily not sufficient cause for granting an extension of time.”

94. However, a slightly different view to that expressed in Stone v Stone seems to have been expressed in Verzar v Verzar (2014) 12 ASTLR 523; [2014] NSWCA 45, at [24], in the Court of Appeal, in which Meagher JA wrote that “[t]he sufficient cause or reason to which s 58(2) is directed is that for allowing an application to be made out of time”.

95. Although in another context, the High Court had written in Sophron v The Nominal Defendant (1957) 96 CLR 469 at 475; [1957] HCA 27:

“... it is a mistake to attempt to reduce the expression ‘sufficient cause’ to a closer or more rigid definition than the legislature has chosen to provide. The words no doubt are concerned with the justice of the case. There must be some positive reason for concluding that as between the parties it would be just to extend the period for giving notice. Fault on the part of the claimant in failing to give notice... must be an element affecting the justice of extending the time and so on the other side must be the prejudice which the nominal defendant has or may have suffered because of that failure.”

96. With great respect, I respectfully agree that the meaning of “sufficient cause” is sufficient, in all the circumstances, to justify the granting of an extension of time.

97. Unlike the legislation in some other States, in New South Wales, the application for provision under the Act and an application for an extension of time within which to make an application are not discrete and separate applications. Thus, to refuse to make an order extending the time for the making of an application that is devoid of merit, or otherwise cannot succeed, would not visit an injustice on the applicant.

98. As Keane JA wrote in Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159 at [31]:

“The appellants’ submission was that the probability that an application for provision out of the estate will ultimately succeed is a necessary, though not sufficient, condition of the grant of an extension of time. There is support for that view. In Re Terlier, deceased, Townley J said: ‘If it is improbable that the substantive application will succeed it seems idle to grant the extension.’ This statement was approved by Lush J in Re Walker, Deceased where his Honour went on to add that the improbability of success ‘may stem either from the condition of the estate ... or from the facts relevant to the [claimant's] claim, or from both ...’.”

99. Also see, Andre v Perpetual Trustees WA Ltd (as Executor of the Will of Barbara Helen Owen Stewart) [2009] WASCA 14 at [42].

100. Meagher JA noted in Verzar v Verzar [2014], at [33] – [35]:

“There are at least two respects in which the strength of the application sought to be made out of time may be relevant to whether there is ‘sufficient cause’ to extend the time for making it. The first is whether the application as made has sufficient prospects of success to justify an extension. That assessment should be of the application viewed at the time it is or is likely to be heard because of the provisions of s 59(1)(c) and (2). …

The second respect in which the strength of the application may be relevant is if allowing the out of time application to proceed would or may have the effect of improving the applicant’s position from that which would have obtained had the application been made in a timely manner. That is the consideration referred to by Tobias JA in Durham v Durham at [24], [37] when confirming the correctness of the approach adopted by the judge in that case and by Bryson J in Davison v Staley (unreported, Supreme Court of NSW, 21 August 1996). …

Because the assessment of adequacy of provision for proper maintenance, education and advancement in life is to be made at the time the Court is hearing the application (ss 59(1)(c) and (2)), when addressing this question it is necessary first to consider when the application would have been likely to have been heard if made in a timely manner and then to compare the position in that event with the position in fact, namely that the application has been made out of time. Ordinarily, this analysis would assume, as is usually the case and as happened in this proceeding, that the application for an extension of time and the application for substantive relief are made in one proceeding and dealt with in a single hearing. (That was not the case with applications for extensions of time made under the Testator’s Family Maintenance and Guardianship of Infants Act 1916: see De Winter v Johnstone [1995] NSWCA 120 at p 17 per Powell JA).”

101. Gillard J in Valbe v Irlicht [2001] VSC 53, had written, at [31]:

"In my opinion the strength of the case is an important and relevant factor to take into account. The period of delay and the reason for it, whilst important, are not factors which carry much weight in the absence of prejudice and in the face of a strong claim. Justice is the paramount consideration and to deny a person an extension of time in the face of a strong claim could amount to an injustice."

102. I repeated part of this statement in Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748, at [117]:

“Ultimately, justice is the paramount consideration in determining whether to extend the time for making an application…”

103. Thus, whilst it is clear that the burden imposed on the Plaintiff in regard to the issue of extending time is no triviality and that she must make out the case for the Court to exercise its statutory discretion to “otherwise order”, it seems to me that if there is a relatively short period of delay, no unconscionable conduct, and no question of prejudice if the indulgence is granted, an inadequate explanation for not bringing the proceedings within time should not stand in the way of a just result.

104. In Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269, Basten JA, at [89], stated that the factor of prejudice:

“… added to the incomplete justification for the delay and lack of notice to the respondents, permitted the Court, unless satisfied on a preliminary consideration of a strong claim for a family provision order, to refuse to ‘otherwise order’ pursuant to s 58(2). On that basis, the application should have been dismissed without a full consideration of the circumstances of the claim.”

105. Because I am satisfied, on a preliminary consideration, that the Plaintiff does have a reasonable claim for a family provision order, I do not propose to dismiss her application without a full consideration of the circumstances of the claim.

Adequacy and propriety of provision

106. It is only if eligibility is found, and if sufficient cause for an order extending the time for the making of the Plaintiff’s application is shown, that the Court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made. 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”.

107. There is no automatic entitlement to provision stipulated by the Act and the deceased’s Will applies unless a specific application is made and acceded to by the Court.

108. As I wrote in Dugac v Dugac [2012] NSWSC 192, at [29]:

“The long title of the Act describes [Chapter 3] 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.”

109. Whether the disposition of the deceased’s estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the applicant, will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant’s “needs” that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573, at 575.

110. This statement is not intended to suggest that an applicant’s “needs”, when compared with the provision made for her, or him, out of the deceased’s estate, should be the only, or even, the dominant consideration. An applicant’s financial needs and the financial needs of other persons with claims on the deceased’s testamentary bounty are important, and often highly important, considerations. But, as Basten JA wrote in Chan v Chan, at [22]:

“… [I]t is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs.”

111. "Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime". Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act.

112. The word “adequate” connotes something different from the word “proper”. “Adequate” is concerned with the quantum, described by Rosalind Atherton in “The Concept of Moral Duty in the Law of Family Provision – a Gloss or Critical Understanding?” (1999) 5 Aust J Leg Hist 5, 10, as reached upon “a purely economic and objective basis”, whereas “proper” prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235, at [72] and [77] (Buss JA), which seems to invite more subjective criteria.

113. 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.”

114. 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.”

115. Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 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 in life must be considered in the light of all 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.”

116. As was written in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, by Dixon CJ, at 19, the words “adequate” and “proper” are always relative and that what the testator regarded as “superior claims or preferable dispositions” is a relevant consideration:

“The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning.”

117. In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11, at [114], Callinan and Heydon JJ wrote:

“…the 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 used 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.”

118. Section 60 of the Act 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.”

119. It can be seen that s 60(2) enumerates 16 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, at [37], as “a multifactorial list”, and by Lindsay J in Verzar v Verzar [2012], at [123], as “a valuable prompt” to which the Court may have regard, together with “any other matter the court considers relevant”, for the purpose of determining whether the applicant is an “eligible person”, whether a family provision order should be made, and if so, the nature of any such order. There is no mandatory command to take into account any of the matters enumerated. In the context of the section, “may” does not mean “must”.

120. 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 each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. None of the matters listed are, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.

121. The section also 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.

122. 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).

123. 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.

124. The relationship of the Plaintiff, and others, particularly the Defendant, with the deceased will be an important consideration. 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. (The Act does not refer to the Court’s power to refuse to make an order in favour of any person whose “character and conduct” is such as to disentitle him or her to the benefit of such an order: see, s 3(2) of the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) the predecessor of the former Act.)

220. The Defendant also disclosed her material financial circumstances. At the time of swearing her affidavit in November 2017 affidavit, she was working as an Accounts Administrator, earning a gross weekly income of approximately $1,200. The Defendant accepted that she, currently, makes $981 “after tax”: T125.26 – T125.42.

221. It was submitted that she had assets comprising of the Pagewood property ($1,500,000), cash in bank including “two redundancy payments” ($155,000), superannuation ($263,000), and a car ($8,300). However, in cross-examination, she gave evidence that her current bank balance has been reduced to “approximately $107,000” on account of legal costs that had been paid: T126.09 – T126.28.

222. Her superannuation has increased, since she swore her affidavit disclosing financial circumstances, and now comprises $295,625: T124.46 – T125.08.

223. The Defendant did not disclose any liabilities, with the result that the gross value of her property is approximately $1,910,925. It will be remembered, however, that if a family provision order and costs orders are made, the Defendant will have to meet the amounts out of that property.

224. The Defendant also disclosed her weekly expenditure, which was $462, and included, groceries, motor vehicle expenses (including petrol, insurance and on road costs), telephone (mobile and home), council rates, utilities, medical (including private health insurance), dental, household repairs and maintenance, internet, clothing, and entertainment. She accepted that this was her “total weekly expenditure, give or take $20 or $30 today”: T125.01 – T125.03. Consequently, she has a surplus of income, after paying tax and meeting her expenditure, of about $519.

225. The Defendant also did not serve, or seek to read, an affidavit to update her financial and material circumstances. (What has been written above in relation to Paragraph 17 of Practice Note SC Eq. 7 applies equally to any beneficiary who is putting forward her or his financial circumstances as a relevant fact to be considered by the Court.) In cross-examination, she stated that the only other update to her financial position was “my personal savings. They’re reducing drastically because of my legal bills”: T126.10 – T126.12.

226. Additionally, in her affidavit sworn 29 November 2017, the Defendant gave evidence that the Pagewood property is about 38 years old and “has had no major renovations because it was a brand new house when we moved in to the house in about 1979”. She stated that the house is in reasonable condition, but considers that it will need work in the near future.

227. In support of her assertion, a report, dated 18 November 2017, from Jim’s Building Inspections, and titled “Building and Timber Pest Inspection Report” was read without objection. It stated the inspector had found at least one of each of “safety hazard”, “major defect”, “minor defect”, “timber pest damage” and “conditions conductive to timber pest activity”. Recommendations included, replacing the electrical switchboard and installing a safety switch thereon, the installation of electrical junction boxes to “seal off and protect” wiring in the roof void/subfloor, and replacing storeroom tiles to prevent water penetration and subsequent water damage. The costs of future renovations to remedy the defects were not specified.

228. Although the Defendant has been a relationship for many years, she gave evidence that “we have always lived separately and maintained separate bank accounts”. Her evidence in this regard was not challenged and there is no reason, otherwise, to disbelieve her.

229. It is to be remembered that the Defendant has no dependants.

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

240. The Plaintiff gave evidence, in her affidavit in chief, that she lived with Benjamin, who was a full time student, and who is currently studying the degree of Juris Doctor of Law at the University of Technology Sydney. Benjamin was said to be completely dependent on the Plaintiff and she pays him “pocket money”.

241. However, in cross-examination, she stated that Benjamin will finish his law degree this year: T49.15 – T49.18. She gave further evidence, at T49.43 – T49.17, that:

1. He is training to be a solicitor;

2. He is now working for a law firm and is being paid a salary (the amount of which the Plaintiff did not know); and,

3. He no longer lives with the Plaintiff, but lives in Botany with friends, for which she understands her son to be paying rent.

242. However, whilst, initially, the Plaintiff did not accept that Benjamin was not dependent upon her, she also gave the following evidence at T51.22 – T51.30:

“Q. All children depend on their parents for a long time, but that the moment financially he is independent from you?

A. This month yes.

Q. From this month going forward?

A. I guess.

Q. Yes or no?

A. Yes, yes.”

243. Consequently, I am satisfied that Benjamin is no longer living with, or dependent upon, the Plaintiff.

(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

244. The Plaintiff suffers from a number of medical conditions. In a letter dated 28 September 2016, from her General Practitioner, Dr J Salmon, these conditions included “stress, high blood pressure and possible sleep apnoea and coronary artery disease”. She is also being treated by a cardiologist.

245. In cross-examination, the Plaintiff accepted that she was “relatively” healthy and that she takes “high blood pressure medication” for a heart condition: T52.09 – T59.16. It was put to the Plaintiff that this medication “doesn’t affect your ability to work”, to which she answered “No it doesn’t”: T59.12 – T59.20.

246. The Defendant is currently 59 years old and reports being in generally good health. However, she has also stated that she has “high blood pressure and [has] suffered from this condition for about 22 years. I am on Carvalside and Norvasc to control it”. She stated that although she had requested a letter verifying this condition from her General Practitioner, “he has not provided it to me”.

247. She also reported that she has issues with her teeth. She believes that some of her teeth “will need to be pulled out and replaced with a bridge or dentures in the near future as [she is] in some pain”. In support, the Defendant annexed a letter, dated 8 November 2017, to her affidavit sworn 29 November 2017, from Dr G Selia, her dentist, which stated that “[t]he likely budget for the next few years will be at least in the vicinity of $75,000 - $110,000. This is very hard to predict accurately”.

248. The Defendant was not cross-examined on the state of her health.

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

249. The Plaintiff is currently 65 years old.

(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

250. I have earlier discussed some of the contributions to the family household between 1969 and 1987, and then, between 1997 and 2005.

251. In addition to this, the Plaintiff gave the following evidence, in her affidavit in chief, as to her financial contributions to the deceased’s estate, between 1997 and 2005:

“During that time I also paid 100% of the costs to replace a pergola after a hail storm in 1999 and around 95% of the costs to reupholster the chairs in the dining room. I also purchased a new washing machine for the household.”

252. The Plaintiff’s evidence in regards to the dining room chairs and the pergola was accepted by the Defendant. The Plaintiff estimated that the pergola cost approximately $500, whereas, the cost of reupholstering the chairs was approximately $1,200. She also noted that the washing machine cost about $1,000, however, she took it with her when she moved from the Pagewood property in 2005.

253. The Defendant also gave evidence that she had repaid the Plaintiff at least some of the cost of the re-upholstering. She annexed a copy of a cheque butt that referred to payment of $1,000 in which the payee was the Plaintiff. In cross-examination the Defendant accepted that the cheque butt referred to her payment towards the re-upholstering and that she “did not repay [the Plaintiff] for the pergola”: T104.25 – T104.50.

254. The Plaintiff’s contribution, in this regard, was a relatively small contribution, in all the circumstances.

255. It would appear that at least until 1997, the deceased regarded the Plaintiff favourably. She certainly did not distinguish between her two daughters in the 1997 Will. I have earlier noted that their relationship changed in the following years, until early 2005, and then they were estranged, thereafter, until about 2011. From then until about 2014, she would bring food to the deceased, on her way to work and would see her every weekend.

256. She also gave evidence that she attended multiple doctor appointments, as well as other health related appointments, with the deceased, in which she took time off work, because the deceased “had some difficulty understanding English and required assistance”.

257. On this topic, the Defendant stated, in reply, that the Plaintiff had attended some appointments and to her recollection this was “usually at a time when she had [an] … appointment also”. She also stated that the majority of the deceased’s medical appointments “were arranged by me, sometimes for both of us, and I accompanied the deceased to those appointments as well as to any referrals to specialists”.

258. The Defendant also advanced that the Plaintiff was reimbursed for expenses in relation to the deceased lunch, which was paid to her, or to her son as “pocket money”. The Plaintiff denied this allegation, although she accepted that she was aware of one occasion where the deceased asked the Defendant to give Benjamin money, which the Plaintiff later offered to repay.

259. When the Plaintiff was told about the deceased’s illness in 2014, she immediately took a two week period of leave, and, subsequently, took six months leave from her job in order to assist the deceased. This was not in dispute. There is other evidence that establishes that she took a leave of absence from work from 21 October 2014 until 8 April 2015. It seems that in doing so, she used all leave available to her, by taking her sick leave as Carer’s Leave, all her Annual Leave and all Long Service Leave. On her return to work on 8 April 2015, the Plaintiff had no leave left owing to her at all.

260. The Plaintiff also gave evidence, that, in order to care for the deceased, she moved back into the Pagewood property. This was put by the Plaintiff as coinciding with the deceased’s wishes of not being required to move to a nursing home. She retained her home unit which she was renting.

261. I accept her evidence on this topic which was not challenged. (Indeed, it was accepted by the Defendant, in cross-examination, that the Plaintiff “took six months off work in order to care for [the deceased]”; that the Plaintiff was at the Pagewood Property “most of the time … all day most days … caring for [the deceased]”; and that the Plaintiff was the deceased’s “primary carer during the day”, while the Defendant was at work, however, in the evening, both the Plaintiff and the Defendant cared for the deceased: T115.49 – T116.26.)

262. However, in her affidavit sworn 29 November 2017, in reply, at [70], the Defendant gave evidence that:

“During the six (6) month period, in the space of a couple of weeks apart, my mother said words to me to the effect: ‘I am going to tell your sister to take her stuff and go home to her son. I don’t want her here.’ I didn’t ask the deceased why she wanted [the Plaintiff] to leave the first time she said this to me because she did not seem as adamant about it. I did ask the second time and she replied with words to the effect: ‘She does not look after me as well as you do. She snaps at me and she likes to rummage.’

I believe the deceased asked my sister to leave that same night. …”

263. Whilst such a conversation, if it did occur, demonstrates some momentary frustration with the Plaintiff, the fact remained that having the Plaintiff there meant that the deceased was not required to leave the Pagewood property. It seems that by the end of the six months, the deceased was no longer able to live at home because of her medical condition, having sustained a broken femur as a result of a fall. Even then, for the last months of the deceased’s life, the Plaintiff continued to visit her daily, and on many of her visits, she brought dinner. In this regard, overall, I am satisfied that the Plaintiff made a contribution to the deceased’s welfare and particularly during the last years of the deceased’s life.

(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

264. The Defendant alleged that the Plaintiff had taken approximately $35,000 from the bank account of her parents to “furnish a unit and buy a motor vehicle for her then partner”, as she recalled a conversation of her parents discussing this matter.

265. This was denied by the Plaintiff, who stated in her affidavit of 22 February 2018, at [5] and [21]:

“At no time did I receive any money from our parents to furnish a unit or buy a motor vehicle. When I moved out, I used $3,000 of my own money to purchase 2 chairs, a coffee table and a couch, as well as to pay the deposit on a car. The balance of the car was paid for by finance, with the repayments being made by me. When I moved back home, the 2 chairs and the couch were sold by auction, with our parents taking the proceeds of sale. My parents kept the coffee table, and it is still in the family home. My father took the car. He used it for a while and then sold it. My parents kept the proceeds of the sale.

…

… I never touched my parent’s bank account. With respect to the suggestion that they paid for furniture and a car for me, I repeat paragraph 5 above. …”

266. In cross-examination, the Plaintiff, again, denied the accusation that she had taken money from her parents’ bank account: T54.45 – T55.04. In referring to what was stated by deceased in her testamentary statement, the Plaintiff could not offer any reason for the deceased having fabricated the assertion other than to blame the Defendant: T55.40 – T56.45.

267. Counsel for the Plaintiff also questioned the Defendant on this topic, in which there was the following exchange (T98.04 – T98.10):

“Q. In it you suggest that you overheard a conversation with your parents talking about your sister taking approximately $35,000?

A. Yes.

Q. You have no idea whether that conversation - whether those events happened or not, do you?

A. No, I don’t personally. I’m only going by what our mother said.”

268. In all the circumstances, and bearing in mind the limited evidence that would support such a finding, I am not prepared to conclude that $35,000 was given to, or taken by, the Plaintiff during the lifetime of the deceased.

269. I also bear in mind lived in the Pagewood property, effectively rent-free, for so many years.

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

270. I have earlier discussed the terms of the Will and the written statement the deceased made, in combination with the Will, as evidence of the deceased’s testamentary intentions. The terms of the 1997 Will, to which reference has also been made, should not be forgotten.

(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

271. There is no evidence that the Plaintiff was being maintained by the deceased in the years immediately prior to the deceased’s death.

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

272. There is no person with any liability to support the Plaintiff.

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

273. I have discussed, already, that the deceased and the Plaintiff, were estranged between 2005 and about 2011. Yet, thereafter, to the credit of both, their relationship was resurrected. I have also considered the conduct of the Plaintiff in sacrificing her leave entitlements, in order to care for the deceased, following the deceased’s stroke and ensuring that she did not go into a nursing home.

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

274. The Defendant gave the following evidence in her affidavit sworn 29 November 2017 which was not the subject of any challenge:

“While I lived at home, I supported my mother financially, physically and emotionally particularly towards the end of her life. I was not reliant on my mother financially or physically but I did enjoy living with and sharing my life with mother.”

275. After the deceased was discharged from hospital following her stroke, the Defendant continued to take time off work to attend appointments with the deceased. She also made various contributions to the deceased’s welfare, which included:

1. Organising with the pharmacy to prepare medication in blister packs;

2. Organising various services for the deceased, including the adjustment of the shower and “Vital-call”;

3. When the deceased was in a nursing home, visiting the deceased, at first, three times a day and, after about 5 months, twice a day, until the deceased passed away; and,

4. Also, while, she was in the nursing home, assisting the deceased by preparing her breakfast, bringing her lunch, doing her laundry and ensuring she had the necessary toiletries.

276. I am more than satisfied that the Defendant made a very significant contribution to the deceased’s welfare, both financially and emotionally, throughout their joint lives. This was not really the subject of any dispute and is amply demonstrated by the content of the deceased’s last Will and the written statement. It is not necessary to repeat the other evidence in this regard.

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

277. This factor is not applicable.

(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

278. There are no other matters that I consider relevant.

Determination

279. Having established eligibility, and as the proceedings were not commenced within time, the question for consideration is whether the Plaintiff has established that an order should be made permitting her application to be made outside the period prescribed by the Act for the making of her application. This requires the Court to consider, amongst other things, the adequacy of any explanation for the delay, any possible prejudice to either party arising from that delay, any unconscionable conduct by either party and the merits of the Plaintiff’s substantive claim.

280. As stated, the Plaintiff did not provide any reason for not making the claim within time. For almost the whole of the 12 month period following the death of the deceased, she had legal representation, and I have not accepted her evidence that she was not aware of the time prescribed by the Act for the making of her application.

281. Yet, I do not regard her lack of action in commencing the proceedings by December 2016, as fatal, principally because the delay following that period was not inordinate, being a matter of 5 months. The Defendant did not give any evidence that she would suffer any prejudice, actual or presumptive, if the time were extended, or that there was any unconscionable conduct on the part of the Plaintiff in not bringing the application within time. Importantly, also, for reasons to which I shall come, I am satisfied that an order for provision, in favour of the Plaintiff should be made. A refusal to extend time would result in prejudice to the Plaintiff. The justice of the case, in my view, requires the Court to make an “otherwise order”.

279. In all the circumstances, the Plaintiff has satisfied me that there is sufficient cause, to which s 58(2) is directed, for allowing her application to be made out of time.

280. The next 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 the Plaintiff, has not been made by the Will of the deceased.

281. What is written below should be read as a continuation of what has been written above. In addition, I have regarded the factual matters, so far as they are relevant, to the circumstances set out below.

282. There was no provision in the deceased's last Will made for the Plaintiff. However, this does not, automatically, mean that she will have satisfied the jurisdictional threshold. A person may fail to satisfy the description of being “left without adequate and proper provision” even though no, or little, provision is made for her in the deceased’s Will.

283. Yet, judged by quantum, and looked at through the prism of her financial and material circumstances, adequate provision for the Plaintiff’s proper maintenance or advancement in life could be seen as not having been made by the Will of the deceased.

284. As stated, the test established by s 59 of the Act has regard not only to what is “adequate” by reference to the applicant’s needs, but also to what is “proper” in all the circumstances of the case. Whether the deceased ought to have made provision for the Plaintiff is influenced by an assessment of the Plaintiff’s circumstances, including the nature and extent of her present and reasonably anticipated future needs, the size and nature of the deceased’s estate, the relationship between the Plaintiff and the deceased, including the Plaintiff’s conduct towards her, the competing claims of the Defendant, as the only other person with a legitimate claim upon the bounty of the deceased and the chosen object of the deceased’s bounty, and the Defendant’s circumstances and needs: see, for example, McCosker v McCosker, at 571–572; Singer v Berghouse, at 210; Vigolo v Bostin, at [16], [75], [112]; and Tobin v Ezekiel (2012) 83 NSWLR 75; [2012] NSWCA 285 at [70].

285. This is a case where, apart from a period of about 6 years of their joint lives, there was a reasonably close relationship between the Plaintiff and the deceased, although, at times during their relationship, they did not always get on. In this regard, it is also to be remembered that for the majority of the Plaintiff’s life, she lived in the same house as the deceased. In such circumstances, a wise and just parent will recognise that disharmony between parent and child is almost inevitable. In family relationships, hurts are inflicted or suffered, sometimes consciously, and sometimes unconsciously. Regrettably, this is part of family life.

286. That their relationship deteriorated to the point where the deceased felt that she required legal assistance to have the Plaintiff vacate the Pagewood property, is, of course, a relevant factor, as is the fact that they had no, or little, contact thereafter for about 6 years. However, contact was resurrected, and then, for the last few years of the deceased’s life, the Plaintiff did make a contribution to the welfare of the deceased.

287. The Court should take into account, and evaluate, the whole of the circumstances regarding the relationship of the Plaintiff and the deceased. It should also be remembered that the last Will was made at the time of the event in 2005 that had caused their relationship to breakdown. The 1997 Will made equal provision for the Plaintiff.

288. One cannot, and must not, ignore the claim of the Defendant, who the deceased chose as the recipient of the whole of the estate. I am more than satisfied that the Defendant throughout her joint life with the deceased was a loving and dutiful daughter, and as a carer, who assisted the deceased to the best of her ability. She has a powerful competing claim and one that the deceased, herself, recognised.

289. Taking all of the circumstances into account, I am satisfied that adequate provision for the Plaintiff’s proper maintenance and advancement in life was not made by the Will of the deceased. Whilst her conduct in the period between 2005 and about 2011, may restrain the amplitude of provision, the Plaintiff’s conduct over the whole of her and the deceased’s joint lives is not such as to disentitle her, completely, to provision out of the estate of the deceased.

290. The more difficult question then arises, namely what provision “ought to be made for her maintenance, education or advancement in life”, 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 [1997] 2 VR 359 at 367. It is not a scientific, or arithmetic, exercise and it is often difficult to articulate the factors which contribute to that “instinctive synthesis”. However, similar considerations as are set out above often arise.

291. Having considered the matters I am required to consider, and remembering that what is “proper” requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties’ financial circumstances, I am satisfied that the Plaintiff should receive a capital sum for exigencies of life. It seems to have been accepted by her counsel that a capital sum (submitted to be $150,000) should be the provision made for the Plaintiff.

292. In coming to the conclusion on the quantum of the provision to be made for the Plaintiff, the deceased’s entitlement to testamentary freedom, and the fact that she made a detailed statement setting out the reasons she had for making no provision for her are of course important and have been given significant weight.

293. In relation to the Defendant, who made a very substantial contribution, as a daughter, her claim upon the bounty of the deceased, and her competing financial claim on the deceased’s bounty, is very significant. Nor have I forgotten that, generally, the community does not expect a parent to look after an adult child for the rest of that child’s life and into retirement.

294. The provision for the proper maintenance and advancement in life of the Plaintiff that ought to be made, in my view, is by way of a lump sum of $100,000. In coming to this conclusion on quantum, I have taken into account, amongst other things, the value of the estate; the competing claim of the Defendant; the fact that the Plaintiff has no person who has responsibility to assist in maintaining her; and that whilst she does have the real estate in the ACT, which provides her with a rental income to supplement her earnings, and capital upon its sale, she really does not have any immediately available lump sum to meet the exigencies of life. The capital sum will, until spent, also provide some additional income to supplement her earnings and rental income.

295. The amount of the lump sum that is to be ordered is within the financial reach of the Defendant without having to sell the Pagewood property. Whilst, of course, the payment of the lump sum, and the costs, will have the practical effect of reducing the value of her current assets, the lump sum is modest, equating to less than 10 per cent of the current agreed value of the Pagewood property. The costs may have been avoided, in whole or in part, by serving an appropriate offer of compromise, or otherwise resolving the proceedings. As counsel stated, the Defendant wished to uphold the wishes of the deceased, which, of course, she was perfectly entitled to do. Regrettably, there are usually costs associated with doing so, in circumstances where a family provision order is made by the Court.

296. The Court:

1. Orders, sufficient cause having been shown, that the time for the making of the Plaintiff’s application be extended until 12 May 2017, the date of the filing of the Summons herein.

2. Orders, having found that the Plaintiff is an eligible person, and that adequate provision for her proper maintenance or advancement in life has not been made for her in the Will of the deceased, that the Plaintiff receive by way of provision out of the estate of the deceased, a lump sum of $100,000.

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

4. Orders that the Plaintiff's costs, calculated on the ordinary basis, of the proceedings, be paid out of the estate of the deceased.

5. Orders that the Defendant's costs, calculated on the indemnity basis, of the proceedings, be paid, or retained, as the case may be, out of the estate of the deceased.

6. Grants liberty to any party to apply, in these proceedings, after 8 weeks from the making of these orders, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to, and implementing, the family provision order, and costs order made in favour of the Plaintiff, including, but not limited to, obtaining an order that the property situated at XXX, Pagewood, registered in the sole name of the Defendant, be sold, and that the total of $100,000, any interest payable to the Plaintiff in accordance with these orders, costs ordered to be paid, and any costs subsequently ordered to be paid, of the net proceeds of sale, be paid to the Plaintiff, or as she may direct in writing.

7. Orders that any subpoenaed material may be returned.

8. Orders that the Exhibits 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.

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Amendments

24 October 2018 - [75] Formatted to italics "(Estate of the late Doris Linda Madden)".

[79] Removed italics from "RHG" in paragraph [161] of quote.

[95] "Defendant" changed to "defendant" in quote.

[103] "not" added before "bringing".

[124] Close bracket moved to end of sentence.

[145] "to" added after "challenge".

[146] Kirby J changed to Kirby P.

Decision last updated: 24 October 2018