Stone v Stone

[2016] NSWSC 605

Supreme Court

New South Wales

Medium Neutral Citation:	Stone v Stone [2016] NSWSC 605
Hearing dates:	Thursday, 24 March 2016; written submissions closed Thursday, 7 April 2016
Date of orders:	12 May 2016
Decision date:	12 May 2016
Jurisdiction:	Equity - Family Provision List
Before:	Brereton J
Decision:	Extension of time granted; deceased could and should have made provision for plaintiff consistent with fulfilling primary obligation to widow; special circumstances established; family provision order and designating order made.
Catchwords:	SUCCESSION – Family Provision – application by adult daughter of second marriage – where estate left to longstanding third wife absolutely – where plaintiff in circumstances of clear and obvious need – where deceased did not meet obligations to plaintiff during his lifetime – where application made out of time – where defendant had represented that extension of time would be allowed and then resiled and distributed estate – whether time should be extended – whether plaintiff left with inadequate provision – whether family provision order should be made – whether designating order should be made – whether special circumstances established
Legislation Cited:	(NSW) Succession Act 2006, s 58, s 59, s 60, s 61, s 79, s 87, s 90 (NSW) Family Provision Act 1982, s 16
Cases Cited:	Alexander v Jansson [2010] NSWCA 176 Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 Baker v The Queen [2004] HCA 45; (2004) 210 ALR 1; (2004) 78 ALJR 1483 Barker v Magee [2001] NSWSC 563 Bladwell v Davis [2004] NSWCA 170 Burke v Burke [2015] NSWCA 195 Campbell v Chabert-McKay [2010] NSWSC 859 Cetojevic v Cetojevic [2006] NSWSC 431 Charnock v Handley [2011] NSWSC 1408 Collicoat v McMillan [1999] 3 VR 803 Court v Hunt (NSWSC, Young J,14 September 1987, unreported) Dare v Furness (1998) 44 NSWLR 493 De Winter v Johnstone (NSWCA, 23 August 1995, unreported) Fancett v Ware (NSWSC, Needham J, 3 June 1986, unreported) Flathaug v Weaver [2003] NZFLR 730 Foley v Foley [2008] NSWSC 233 Fulop Deceased, Re (1987) 8 NSWLR 679 Gorton v Parks (1989) 17 NSWLR 1 Guskett, Re [1947] VLR 212 Harrisson v Skinner [2013] NSWSC 736 Henry v Hancock [2016] NSWSC 71 John v John [2010] NSWSC 937 Kohari v Snow [2013] NSWSC 452 Lewis v Lewis [2001] NSWSC 321 Marras, In the Estate of the late Anthony [2014] NSWSC 915 Massie v Laundy (NSWSC, Young J, 7 February 1986, unreported) McKenzie v Topp [2004] VSC 90 Newman v Newman [2015] NSWSC 1207 Pitkin v Henderson [2001] NSWSC 207 Salmon v Osmond [2015] NSWCA 42 Salmon, Deceased, Re [1981] Ch 167 Seeto v Seeto [2013] NSWSC 1232 Sikorski v Michalowski [2007] NSWSC 666 Singer v Berghouse (No 2) (1994) 181 CLR 201; [1994] HCA 40 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522 Smith v Johnson [2015] NSWCA 297 Stewart v McDougall (NSWSC, Young J, 19 November 1987, unreported) Stojcesvska v Tosevski [2001] NSWSC 274 Taylor v Farrugia [2009] NSWSC 801 Underwood v Gaudron [2014] NSWSC 1055 Vanderloo v Milne [2014] NSWSC 1932 Vasconelos v Bonetig [2011] NSWSC 1029 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Warren v McKnight (1996) 40 NSWLR 390 Zirkler v McKinnon [2002] NSWSC 285
Category:	Principal judgment
Parties:	Bettina Stone (plaintiff) Estelle Beryl Stone (defendant)
Representation:	Counsel: L Clarke (plaintiff) G Smith (defendant)   Solicitors: Frankham Family Lawyers (plaintiff) Max Menzies (defendant)
File Number(s):	2015/234662

Judgment

1. The deceased Aston Stone died on 27 June 2014 aged 83, survived by the defendant Estelle Beryl Stone (now aged 87, his third wife to whom he had been married for 39 years since 1975, and with whom he had cohabitated before marriage for a further 7 years since 1968), the plaintiff Bettina Stone (now aged 53, a daughter of his second marriage), and his step-daughters (the defendant’s daughters) Susan Caddy (also aged 53) and Christina Caddy-Gold (aged 47). His second wife Suzanne Stone (formerly Anush, aged 77, from whom he was divorced in 1972, having finally separated in 1968 after a marriage of about six years) and their other daughter Nicole (aged 48) also survived him, but they are neither beneficiaries nor claimants. The evidence is scant as to the status of his first wife Frances Stanton (from whom he must have been divorced not later than 1961 when he was 30 years of age); their daughter Jennifer Cufar was apparently adopted, at or about nine years of age, by Ms Stanton’s new partner following her remarriage. [1] Where in this judgment I use first names, it is for convenience and clarity, and without intending any disrespect.

   1. All the eligible persons other than the parties, with the exception of Frances Stanton, have been served with notices of claim; no-one other than the plaintiff has brought a claim. Given that the deceased separated from Frances Stanton more than fifty years ago and that she remarried, and that her daughter Jennifer Cufar has been given notice, I am satisfied for the purposes of Succession Act, s 61(2)(b), that notice to her is unnecessary.

2. The only asset of the deceased’s estate referred to in the inventory of property that accompanied the probate application was a half interest as tenant-in-common with the defendant in their home unit at XX/XX Diamond Bay Road, Vaucluse, to which half-share a value of $400,000 was attributed in the probate application (dated 13 January 2015). The defendant has adduced an appraisal of the unit in the range of $750,000 to $800,000 as at 1 September 2015, and the plaintiff has adduced an appraisal of $825,000 to $900,000 as at 23 March 2016; neither of the appraisals was tested nor the subject of analysis in submissions; in the view I take, whether the unit is worth $750,000 or $900,000 makes no material difference to the outcome. Cross-examination of Estelle established that the deceased probably also had some personal effects and an interest (jointly with her) in a bank account, but these too are of limited ultimate significance, although I will take them into account in the order that I will ultimately make in the manner later described.

3. The liabilities of the estate amount to $93,115.57 and comprise:

1. Centrelink, for $40,000, in respect of a judgment obtained by Centrelink against the deceased for unemployment benefits to which he was not entitled, which is charged on the Vaucluse unit but not enforceable until the death of the later of the deceased and the defendant;

2. Vaucluse Aged Care Facility, where the deceased resided from 2011 until his death, for $5,016.32, in respect of his accommodation for an early part of that period;

3. Probate costs and disbursements, of $3,898.75;

4. Strata levies from date of death to transfer of property, of $1,860;

5. Funeral expenses, of $14,340.50; and

6. Estate legal expenses, of $28,000.

4. By his will dated 27 September 1990, the deceased appointed Estelle to be his executor and trustee and gave the whole of his estate to her; but in the event (which, of course, did not occur) that she predeceased him, appointed his step-daughters Susan and Christina as executors and gave a legacy of $5,000 to Bettina and the rest and residue to Susan and Christina in equal shares. Probate of the will was granted to Estelle on 13 January 2015. On 31 July 2015, the deceased’s half interest in the Vaucluse unit was transmitted to her as executor and sole beneficiary.

5. By summons filed on 11 August 2015 – about six weeks after the expiry of the twelve month limitation period – Bettina claims a family provision order under (NSW) Succession Act 2006, and in connection therewith, an extension of time in which to commence proceedings, and an order designating notional estate.

6. As a daughter of the deceased, Bettina’s standing as an eligible person is not in question. Because the estate has been distributed, any order for provision can be made only out of notional estate. In those circumstances, the real issues are:

1. Has the plaintiff established sufficient cause for not having made the application within time and, if so, should time be extended as a matter of discretion;

2. Has the plaintiff been left with inadequate provision for her maintenance and advancement in life and, if so, what if any provision should be made for her; and

3. Should a designating order be made? This includes whether there are special circumstances (for the purposes of Succession Act, s 90(2)(b)), such as to permit a designating order to be made in respect of notional estate, notwithstanding that the application is made out of time.

7. However, as is usual in applications of this kind, those issues are not entirely distinct, but are related and overlap: the strength of the substantive claim for provision is relevant to the discretion to extend time and whether there are “special circumstances”, and considerations relevant to the extension of time can also inform whether there are “special circumstances”.

Family history

8. The deceased was born on 21 January 1931. From about 1952 (when he was 21), he was a taxi-driver driving taxis for his father Jack Stone, who was a taxi proprietor.

9. The evidence does not reveal when he married his first wife Frances Stanton, nor the date of birth of their child Jennifer, who was later adopted at or about the age of nine following Ms Stanton’s remarriage. However, the deceased and Frances Stanton must have separated by 1961, as the deceased married his second wife Suzanne Anush on 7 January 1962.

10. Bettina was the first daughter of this marriage; she was born on 27 October 1962. Subsequently, Nicole Stone was born on 30 April 1967; although the deceased was not her natural father, he was registered as her father and treated her as his daughter.

11. The deceased and Suzanne Stone separated in about 1967, reconciled, and finally separated by 1968; they divorced on 12 April 1972. In 1968, the deceased also began to cohabit with the defendant, whom he had first met in 1966, and whose de facto relationship had ended also in 1968. She had a child Susan Caddy born 31 July 1962, and was pregnant with a second child Christina Caddy, who would be born on 28 October 1968.

12. Following the separation, Suzanne Stone received an eviction notice, the rent in respect of the premises which she occupied with Bettina and Nicole not having been paid. [2] She brought maintenance proceedings against the deceased in the Court of Petty Sessions at Waverly, which ordered the deceased to pay the rent and arrears, and to pay child maintenance of £7 per child per week. [3] According to Suzanne Stone’s evidence, which is the only admissible and probative evidence on the subject and which I accept, he never did so; and she did not seek to enforce the order because she considered it futile. [4]

    2. Although the defendant submitted that Nicole was not the child of the deceased, her father being another man, she was born during the marriage of her mother and the deceased; she was legally his daughter and was treated by the deceased as his daughter.

    3. The reference to imperial currency suggests that this could not have been later than early 1966, although the testimonial evidence is that separation was in 1967; however, just when this took place is ultimately of no significance.

    4. The defendant objected that Suzanne Stone’s evidence was served later, and precluded the defendant from investigating the allegation that no maintenance was paid; but such an allegation had been raised in the plaintiff’s initiating affidavit of 11 August 2015 and denied in the defendant’s affidavit of 11 November 2015.

13. In 1972, according to Suzanne Stone, Bettina's paternal grandfather Jack Stone sold his taxi for $22,000, and gave $11,000 from the proceeds to the deceased. The defendant disputed this, but she would not necessarily have known of any such payment. At about the same time, Jack Stone told Suzanne that he had set up a trust for Bettina with $4,000.

14. Jack Stone died in 1973. Under his will dated 13 April 1964, the whole of his estate passed to his wife Minnie, she having survived him. However, the inventory of property in the application for probate of his will referred to “various moneys in savings accounts held by himself for his own use and jointly with his wife and son in trust”, and listed a number of accounts including:

1. Interest Bearing Deposit No. 33XXX - $2,600.00

2. Account No. 62XXX jointly with Aston and Minnie Stone as trustees for Bettina [sic] Stone - $336.21

3. Interest Bearing Deposit No. SC332XXX - $2,000.00

15. The deceased and the defendant were married in 1975.

16. According to Bettina, in about 1980, upon her attaining 18 years of age, the deceased handed Bettina a bank passbook for an account in the Commonwealth Bank which then held $2,000, and recorded an earlier withdrawal of a further $2,000. The account was in the name of the deceased as trustee for Bettina. This was corroborated by Suzanne Stone, to whom Bettina showed the passbook, which they say recorded the deceased as the trustee. If the deceased was the sole trustee, that account would not have appeared in the inventory of property in Jack Stone’s estate; the account with $336, referred to above, may have been a different account. On the evidence of Bettina and Suzanne, I accept that there was a trust account for Bettina, of which the deceased was trustee, and from which he took $2,000 and did not repay.

17. On 30 August 1985, the deceased and the defendant acquired the Vaucluse home unit, as joint tenants, for $73,500, of which $65,000 was provided by a home loan, and the deposit of $7,000 was advanced by the defendant’s mother. On 14 September 1988, the title was transferred from joint tenancy to tenancy in common. Save that the transfer was apparently prepared and lodged by Bartier Perry Purcell Solicitors, the evidence does not explain it. The transfer notes as a prior encumbrance dealing V9252XX, which was the mortgage securing the home loan from St George Bank.

18. In 1992, the deceased was involved in a serious motor vehicle accident and was admitted to St Vincent’s Hospital. He was in a coma for some weeks in the hospital and subsequently a rehabilitation centre for some months. The defendant visited him daily. Although I doubt that the plaintiff visited him every day, as she claimed, I accept that she often visited him in hospital, and occasionally in the rehabilitation centre, when the defendant was not present; Suzanne Stone’s evidence is corroborative of this.

19. The deceased received an insurance payment of $100,000. He became entitled to an aged pension from 21 January 1996 when he attained 65 years of age.

20. In 1993, the Commonwealth sued the deceased in the District Court to recover unemployment benefits paid to him during a period he was allegedly driving taxis; on 22 December 1999, a consent judgment was entered against him for $47,000, which was apparently half of the amount claimed. The deceased and the Commonwealth entered into a mortgage dated 22 December 1999 securing the judgment debt on his interest in the unit, but including a term that there would be no power of sale until after the death of both the deceased and the defendant. In the meantime, Centrelink continued to deduct fortnightly debt repayments from the deceased's pension.

21. On 17 February 2004, the title to the Vaucluse unit was transferred from tenancy in common to joint tenancy. There is no evidence as to the circumstances save the transfer itself, which does not bear any indicia of having been prepared by a solicitor. It was executed by the deceased and the defendant, as transferors and again as transferees, and duly witnessed. The evidence provides no explanation for this dealing.

22. On 28 May 2008, the deceased was involved in another motor vehicle accident; the defendant, who was in the car, was injured and was admitted to St Vincent’s Hospital. On 5 June 2008, she executed a transfer unilaterally severing joint tenancy. Her explanation, offered in the witness box, was that Mr Carroll of Carroll & O’Dea Solicitors attended on her in the hospital and advised her that in the circumstances it would be better for her to hold the title in tenancy in common; she did not really understand why, but did as advised. This was two years before Mr Carroll prepared the deceased’s last will on 27 September 2010; the provisions of his then will, if he had one, are not known. Presumably, the underlying intent was that should the defendant not have survived, her interest would not pass to the deceased by survivorship, but would pass under her will, presumably to her daughters. There is some corroboration for her version, as the transfer was apparently prepared and lodged by Carroll & O’Dea Solicitors; it was executed by the defendant (as a unilateral transfer) alone and witnessed by Mr Carroll at Darlinghurst (where St Vincent’s Hospital is located) on 5 June 2008. Notice of the transfer was given by the Registrar General to St George Bank (as mortgagee), to the Commonwealth Bank (as mortgagee), and to the deceased.

23. Following the second car accident, the deceased’s health declined. He made his last will on 27 September 2010, leaving the whole of his estate to Estelle, but if she predeceased him, gave a legacy to Bettina of $5,000, and the rest and residue to his step-daughters Susan and Christina in equal shares.

24. The deceased was admitted to the Vaucluse Aged Care Facility in 2011, but Bettina did not learn of this until 8 February 2013, as a result of her mother Suzanne Stone making contact with Christina Caddy-Gold. While the deceased’s accommodation was covered by his pension, there was a period early in his admission which was not, from which arises the estate’s outstanding debt to the Aged Care Facility.

25. The deceased died on 27 June 2014. Probate of his will was granted to Estelle on 13 January 2015.

Commencement of proceedings

26. It is not in dispute that the plaintiff obtained the advice of a number of solicitors in the year following the death of the deceased, and was aware of her right to claim provision and the statutory time limit for doing so well before it expired. By April 2015 – well prior to the one-year anniversary of the deceased’s date of death – the defendant and her legal representative had been notified that she intended to make a claim. On 22 June 2015, a few days before the expiry of the 12-month period, Ginny Giorgio, solicitor, on behalf of Bettina, wrote to Max Menzies, solicitor, who was acting for the estate, requesting agreement to a 14-day extension of time for filing any summons, and inviting a without prejudice telephone conference within the next 24 to 48 hours. On 23 June 2015, Mr Menzies responded by email to Ms Giorgio, in the following terms:

We will agree to the 14-day extension. I will get back to you within that time.

27. On 24 June 2015, Mr Menzies sent a letter to Ms Giorgio:

My client cannot respond by 25 June. She will consent to any Summons being filed within 14 days of her response.

28. The 12-month period expired on 27 June 2015. On 2 July 2015, Ms Giorgio sent a letter to Mr Menzies providing information about Bettina’s claim, including an outline of the plaintiff's circumstances in anticipation of the proposed telephone conference. On 8 July 2015, Mr Menzies responded:

We met with Counsel yesterday and he referred us to Section 587 of the Succession Act. Unlike the previous Family Law Provision [sic] legislation, the new Section does not allow for an extension of time simply with consent of the other party. Accordingly the offer has no effect and is withdrawn.

A letter is being drafted to be sent to you next week. In essence it will be rejecting the proposal set out in your letter. However it will contain an offer in an attempt to limit costs.

29. On 22 July 2015, Mr Menzies sent an email:

I am still waiting for the barrister and have given him a reminder. He did say he was very busy.

30. On 29 July 2015, Mr Menzies sent a without prejudice letter to Ms Giorgio, covering an advice from counsel, and containing a small offer said to be made on a commercial basis to avoid cost and delay. On 6 August Ms Giorgio responded in some detail, rejecting the offer and making a counter-offer, and observing:

With all due respect it is a matter for you to argue at trial that your mistake of fact in offering my client an extension of time, which she relied on, should be relied on by you in order to deny my client justice. Your offer meant that my client did not file a summons pursuant to the Court rules.

31. On 31 July 2015, the title of the Vaucluse unit was transmitted to the defendant.

32. The plaintiff commenced proceedings for a family provision order on 11 August 2015.

The estate

33. At the date of death, the deceased’s only asset of significance was his half share in the Vaucluse property, now worth between $400,000 and $450,000. As a result of the proceedings brought against the deceased in 1993 for the outstanding Centrelink debt, the deceased’s interest in the property was subject to a mortgage to the Commonwealth of Australia with an outstanding balance of $39,235. Other estate debts, funeral and testamentary expenses increased the total estate liabilities (before costs of these proceedings) to $65,115.57.

34. In circumstances where the defendant has distributed to herself the only assets of the estate, and is now personally liable for the estate’s liabilities, it is appropriate – in deciding what, if any, order should be made – that their source as liabilities of the estate and her assumption of them be taken into account. If one treats the potential notional estate as a half interest in the unit (say $425,000), and allows for the estate liabilities and the defendant’s costs of these proceedings (estimated at $28,000), the net potential notional estate is in the order of $320,000.

Extension of time

35. The plaintiff commenced these proceedings on 11 August 2015, five weeks outside the 12-month period after the date of the death of the deceased. Succession Act, s 58(2), provides:

(2) 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.

36. 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. [5] 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. [6] 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. [7]

    5. Vanderloo v Milne [2014] NSWSC 1932 at [62] (Robb J); Harrisson v Skinner [2013] NSWSC 736 at [31] (Hallen J); Verzar v Verzar [2012] NSWSC 1380 at [98] (Lindsay J); Re Salmon, Deceased [1981] Ch 167 at 175.

    6. Re Guskett [1947] VLR 212; Massie v Laundy (NSWSC, Young J, 7 February 1986, unreported); Fancett v Ware (NSWSC, Needham J, 3 June 1986, unreported); De Winter v Johnstone (NSWCA, 23 August 1995, unreported); Warren v McKnight (1996) 40 NSWLR 390 at 394E; Taylor v Farrugia [2009] NSWSC 801 at [14]; Vasconelos v Bonetig [2011] NSWSC 1029 at [16] (White J); Verzar v Verzar [2014] NSWCA 45 at [25]; Henry v Hancock [2016] NSWSC 71 at [47].

    7. Zirkler v McKinnon [2002] NSWSC 285; Foley v Foley [2008] NSWSC 233; Taylor v Farrugia [2009] NSWSC 801 at [14]; Henry v Hancock [2016] NSWSC 71 at [47].

37. The period of 12 months from the date of the deceased’s death within which an application ought to have been made expired on 27 June 2015; the plaintiff’s application was not commenced until 11 August 2015. Thus, the first question is whether sufficient cause is shown for the application not having been made within the 12-month period.

38. In my judgment, the plaintiff has amply shown sufficient cause for the application not having been made within the 12-month period. The defendant had been on notice of the intention to make a claim since April 2015. The plaintiff was aware of her rights and of the limitation period, and her lawyers sought and obtained agreement from the defendant to an extension of time for 14 days, while efforts were made to engage the defendant in negotiations without commencing formal court proceedings. On the faith of the representation that such an extension would be permitted, proceedings were not commenced when otherwise I am satisfied that they would have been, albeit by merely filing a summons to prevent time from running. The flavour of the subsequent correspondence of 22 July was to the effect that pending a response to the request for a conference, an extension would be agreed to. The defendant submitted that under Succession Act, s 58 – in distinction to the position under the predecessor provision in Family Provision Act 1982, s 16 – an extension can no longer be granted merely by consent. Nonetheless, a defendant’s representation that an extension will be permitted that is relied on by the plaintiff may well constitute “sufficient cause” for not applying within time.

39. Having surmounted that hurdle, the plaintiff must also persuade the Court that the discretion to extend time should be exercised in her favour, having regard to all the circumstances. Those circumstances relevantly include that after the defendant resiled from the representation that an extension would be permitted on 29 July 2015, the plaintiff commenced proceedings within a further two weeks. An extension of time will occasion no prejudice to the defendant, who has been on notice of the intention to claim at all material times, while the plaintiff who is in plain circumstances of need will be deprived of a viable claim. There has been no “unconscionable conduct” on the part of the plaintiff; the only such conduct has been the defendant’s departure from the representation that an extension of time would be permitted.

40. In my judgment, time for commencing the proceedings should be extended up to and including the date on which the summons was filed.

Family provision principles

41. Applications such as these for provision out of the estate of a deceased person were described by the High Court of Australia, in the context of the former (NSW) Family Provision Act 1982, in Singer v Berghouse (No 2), [8] as involving a two stage approach: the first requiring the determination of the jurisdictional fact – whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life, and the second – which arises only if the first is resolved affirmatively – involving the discretionary assessment of what provision ought to be made out of the estate for the applicant. However, as the High Court explained, similar considerations inform both stages of the process:

The determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance, et cetera, appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the Court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant.

8. (1994) 181 CLR 201; [1994] HCA 40.

42. Although there have been suggestions that subtle changes in the language now used in Succession Act, s 59, may have affected this, [9] the prevalent view is that there is no change to the conventional two-stage approach; [10] moreover, even if there is, it is unlikely to make any practical difference. That said, because the considerations relevant to both stages overlap, consideration of a family provision application does not always divide neatly into the two questions, as Callinan and Heydon JJ pointed out in Vigolo v Bostin. [11]

    9. Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656

    10. In the Estate of the late Anthony Marras [2014] NSWSC 915 [15] (Bergin CJ in Eq).

    11. (2005) 221 CLR 191, 192; [2005] HCA 11

43. Thus, on an application by an eligible person for a family provision order, the Court must consider whether the plaintiff has been left with inadequate provision for his or her proper maintenance, education and advancement in life; and if so, what (if any) provision or further provision ought to be made out of the estate for those purposes. The Court considers both these questions as at the date of hearing; s 59(1)(c) requires the Court to determine whether the provision (if any) made in favour of an eligible person by the deceased person, either during the person’s lifetime or out of the person’s estate, is inadequate for his or her proper maintenance, education and advancement in life, as at the time the Court is determining whether or not to make a family provision order; while s 60(2)(p) requires the Court in determining what provision should be made out of the estate or notional estate of the deceased person for the maintenance, education or advancement in life of the eligible person to have regard to the circumstances at the time the order is made.

44. The relevant principles and considerations that inform those questions were summarised by McLelland J, as the later Chief Judge then was, in Re Fulop Deceased:[12]

In making these determinations, the following principles apply: First, the Court should not interfere with the dispositions in the will except to the extent necessary to make adequate provision for the plaintiff's proper maintenance, education and advancement in life. Secondly, the expression 'proper' in this context connotes a standard appropriate to all the circumstances in the case, and thirdly, the Court may take into consideration any matter (whether existing or occurring before or after the death of the deceased which it considers relevant in the circumstances, including (a) the nature and quality of the relationship between the plaintiff and the deceased, (b) the character and conduct of the plaintiff, (c) the nature and extent of the plaintiff's present and reasonably anticipated future needs, (d) the size and nature of the estate of the deceased, (e) the nature and relative strength of the claims to testamentary recognition by the deceased of those taking benefits under the will of the deceased, and (f) any contribution, financial or otherwise, direct or indirect, by the plaintiff to the property or welfare of the deceased.

12. (1987) 8 NSWLR 679.

45. It is important also to bear in mind the principle articulated by Young J, as he then was, in Stewart v McDougall, [13] in explaining that the court's role is limited to making adequate provision for an eligible person's proper maintenance and advancement:

It is important to state what the Family Provision Act permits a Court to do and what it does not permit a Court to do. The Act recognises that Australians have freedom to leave their property by their will as they wish with one exception. The exception is that a person must fulfil any moral duty to make proper and adequate provision for those whom the community would expect such provision to be made before they can leave money as they wish. Thus, in these cases, one does not ask if the will is fair, one does not ask if the testatrix divided her property equally, one does not as a judge ask how would I have made a will had I been the testatrix. What must be asked is did the testatrix fail in her moral duty to those who have a claim on her. Even if the Court comes to the view that the question should be answered in the affirmative, the Court still does not remake the will, but only alters it to the extent adequate provision is made for the eligible person in respect of whom the testatrix failed in her moral duty.

13. NSWSC, Young J, 19 November 1987, unreported.

46. Formerly, the yardstick applied was that of the wise and just testator. Nowadays, it is fashionable to couch it in terms of “community standards”, although I am not at all sure that this is any different from the moral obligation of a wise and just testator: the community would expect a testator to act wisely and justly; and, as has not infrequently been pointed out, there is no ascertainable external community standard to guide the decision, which involves a broad evaluative judgment unconstrained by preconceptions and predispositions, and affording due respect to the judgment of a capable testator who appears to have duly considered the claims on his or her testamentary bounty – subject to the qualification that the Court’s determination is made having regard to the circumstances at the time of the hearing, rather than at the time of the testator’s will or death. [14]

    14. Bladwell v Davis [2004] NSWCA 170 at [12]-[19]; Slack v Rogan; Palffy v Rogan [2013] NSWSC 522 at [125] (White J); Burke v Burke [2015] NSWCA 195 at [101]-[102] (Ward JA); Henry v Hancock [2016] NSWSC 71 at [69].

The plaintiff

47. The plaintiff is now 53 years of age. She completed the Higher School Certificate in 1980. From 1983, she worked in various jobs, usually on a casual or part-time basis, in the broadcasting and music industry. In the early 1990s, she was employed part-time at the University of Technology Sydney in an administrative position. In 1995, she moved to Melbourne to live with her domestic partner, where she continued in casual employment in the music industry. She returned to Sydney in about 1998 or 1999, following the breakdown of that relationship.

48. Her medical condition is well-documented. In about 2005, she was diagnosed with chronic facial dermatitis, which continues to affect her and of which she is highly self-conscious. This has led to diagnoses of a range of anxiety disorders, including agoraphobia, which impede her capacity for employment. This was compounded by bereavement issues arising from her father’s death, resulting in a referral to a psychologist on a mental health plan in 2015 and 2016.

49. Bettina has no assets. Her income does not meet her expenditure, and she is reliant on her mother for financial assistance to cover her rent. She lives alone in rented accommodation in a small flat in Potts Point, and she is presently unemployed and will have great difficulty in finding employment. She wishes to undertake a degree course in naturopathy at a cost of $55,634 to $72,337, to purchase a small residence outside Sydney with a deposit of $100,000, to acquire a motor vehicle at a cost of $10,000, to have some dental work at a cost of $10,000, and to contribute $50,000 to superannuation. These aspirations total $242,337.

50. Before the deceased separated from Suzanne, the plaintiff and he had a close relationship, which continued after the separation, during her childhood and later. When the deceased formed his new relationship with the defendant the plaintiff was aged 6 years. As well as visits at her home and at school, she had contact with him – often at his new home and in the presence of the defendant Estelle – on weekends. In those days, she felt welcomed there, and Estelle contributed to this. Bettina also developed a close friendship, and played together often, with Susan Caddy who was of similar age.

51. However, although the deceased appears to have remained on reasonably friendly terms with Suzanne, he felt under pressure of loyalty to his new wife Estelle – particularly after their marriage in 1972 – to limit or conceal his contact with his former family – including Bettina – other than in Estelle’s presence; this may have been reinforced by Estelle. On the other hand, I do not doubt that Bettina became increasingly resentful of the intrusion of Estelle into their relationship. As a result, their contact reduced in frequency; but I accept that he visited her at her unit in Elizabeth Bay in 1995 – after his 1992 motor vehicle accident, before she left for Melbourne in 1995. I also accept that he visited her at least once after she moved into a unit in St Neot Avenue, Potts Point in 2003. However, the relationship declined, and Bettina did not see the deceased for several years prior to his death. Her agoraphobia (with which she was diagnosed in 2010) may have contributed to this, but she gave up trying: she would call the deceased, leave a message for him and he did not return the call; she tried to arrange times to meet the deceased and would be rebuffed by him. Her last contact with him was in about 2009 or 2010, when she saw him at his Vaucluse unit and at Westfield Bondi Junction. She did not learn of the deceased’s admission in 2011 to the aged care facility until February 2013, but even then she did not visit him there.

52. I am unpersuaded that Bettina’s contact and relationship with the deceased was as frequent and close as she suggests, particularly in later years. However, while the quality of the relationship is a relevant factor, it is not the dominant one in this case: Bettina’s claim is founded on paternity, her manifest circumstances of need, and the failure of the deceased to make provision for her during his lifetime, and particularly during her childhood. In a way, the deceased acknowledged her claim by leaving her a legacy of $5,000, albeit only to apply in the event that the defendant predeceased him.

The defendant

53. Estelle is the 87-year-old widow of a 37-year marriage (total 44 year relationship). Her contributions to the deceased’s estate and welfare – both financially, from her consistent income from employment until her retirement in 1992, and as a spouse and homemaker – considerably exceed those of any other person in his life. She (and her mother) contributed more to the purchase of the property and the mortgage payments than the deceased, who also detracted from the joint matrimonial estate by incurring the Centrelink debt.

54. Estelle has advanced macular degeneration which severely impacts her sight; her hearing is obviously poor; and she suffers from a chronic digestive illness.

55. She still resides in the Vaucluse residence, which is on the third level of an apartment block and is accessible only by stairs. Although it was suggested that it might be appropriate for her to seek alternative accommodation, she wishes to remain there, and there is no reason why anyone other than she should decide whether and when she should cease to do so.

53. Other than the Vaucluse unit, she owns its contents and some jewellery, and has a small amount of cash in the bank. The liabilities of the estate are now effectively her personal liabilities. Although some criticism was made of her disclosure, and one significant bank account (in the name of the defendant and the deceased) was disclosed only after the plaintiff had issued a subpoena for it, I am unpersuaded that she has undisclosed assets of any significance. While the undisclosed bank account reveals multiple deposits of round cash sums, this is explicable by her receipt in 2013 of a bequest of $50,000 from a cousin, which she has used to supplement her pension income and contribute to her needs, and her occasional sale of furniture and other items to generate cash for expenses.

54. The plaintiff submitted that the transfer of the unit into a tenancy in common arrangement on 12 June 2008 showed that the defendant and deceased had an agreement to hold the property in separate names and had a joint understanding about property division; but as it was a unilateral transfer, I do not accept that it evidences any agreement. Even if, as I think, the defendant did so in order to ensure that her half share would pass under her will (presumably to her two daughters) and not to the deceased, that is of little significance where the deceased in any event, and correctly, recognised that his primary testamentary obligation was to his spouse of 46 years.

Proper provision for the plaintiff

58. There is no doubt that the deceased’s primary testamentary obligation was to the defendant, and the plaintiff does not suggest otherwise. This is supported by the defendant's age, the length of the relationship and marriage between the defendant and the deceased, and the defendant's need for secure accommodation and financial stability in the future. Indeed, in my view, had the deceased not provided for the defendant to be able to remain in the Vaucluse unit, and to change her accommodation should she wish to do so, an application by the defendant for provision to that effect would have inevitably succeeded. However, the question is whether in the circumstances of this case – in particular, the deceased’s disregard of his parental obligations during childhood, and his failure to make any provision for the plaintiff at any stage – the deceased could discharge his obligations to the defendant consistently with making some provision for the plaintiff.

59. The obligation of parent towards a child is not extinguished by the child’s attainment of adulthood, as was said in Flathaug v Weaver [2003] NZFLR 730 at [32]:

The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent’s obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives.

60. In particular, denial of opportunities in childhood may found an obligation to make provision in later life. This notion was adverted to by Ormiston J in Collicoat v McMillan [1999] 3 VR 803 at 823:

More often than not claims coming before the courts have been brought by middle-aged children against the estates of parents who have died in their 60s, 70s or 80s. Many years have passed since those children were brought up by their parents, trained for life as best they could be and launched into a very different adult world…Consequently, even 30 to 40 years later when opportunities may appear to be greater and expectations certainly are, one is nevertheless still dealing with applications such as these, brought by applicants whose lives have been largely moulded many years in the past and whose opportunities were, in some senses, restricted by that upbringing. Their moral claims and, more importantly, the correlative moral obligation of their parents must reflect that background and cannot be ignored in ascertaining what is adequate for their proper maintenance and support.

61. In Taylor v Farrugia,[15] in a passage which appears subsequently to have received general approval,[16] I said in the context of a claim by an adult child:

These are claims by adult children. It is impossible in this area to describe in terms of universal application the moral obligation or community expectation of a parent in respect of an adult child. I think, however, it can be said that ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life – such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation [McGrath v Eves [2005] NSWSC 1006].

Generally speaking, the community does not expect a parent to look after his or her children for the rest of their lives and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute. It is no longer the case, if it ever was, that an adult child has to establish a special need before obtaining provision from the estate of a deceased parent.

15. [2009] NSWSC 801.

16. See, for example, Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond [2015] NSWCA 42 at [109]; Newman v Newman [2015] NSWSC 1207 at [114] (Hallen J); Burke v Burke [2015] NSWCA 195 at [106] (Ward JA); Smith v Johnson [2015] NSWCA 297 at [92] (Sackville AJA).

62. Despite the strength of the defendant’s claim, this is a case in which the plaintiff’s need is very clear, and is coupled with a failure to make any kind of financial provision for the plaintiff at any stage of her life. It is not necessary to evaluate the realism of Bettina’s aspirations concerning studies in naturopathy; her current unemployed status, coupled with her medical condition and the difficulties she will encounter in obtaining employment are plain enough. She never had the financial support from her father during childhood that every child is entitled to expect from her parents; as a consequence, she was denied opportunities as a child and young adult to build skills and acquire knowledge to equip her for life in the future. Even less did she receive support to gain a tertiary qualification, let alone a start in life such as a deposit on a home. And through not meeting his obligation to support the plaintiff, the deceased’s own financial position benefitted, ultimately enhancing his (and the defendant’s) estate.

63. The Court should not readily accede to a position whereby a father who has evaded his obligation to make proper provision for a child during childhood, can then avoid making provision for her out of his accumulated estate by deferring to a primary obligation to another. In Gorton v Parks, [17] Bryson J (as he then was) firmly rejected the notion that the moral obligations arising from parenthood could be extinguished or diminished by sustained evasion or repudiation:

The idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds acknowledgement of the obligations or of the child appears to me to be an idea from a distant age. There have been large changes over long periods in the beliefs of the community about moral duty to children, and there seems in the distant past to have been some acceptance of a view that unless children were legitimate or were acknowledged by their father, he had no duty towards them…Under modern legislation parental duties are not distinguished according to acknowledgement or legitimacy. The idea that acknowledgement by a parent of a child or full accordance of status by a parent might increase the responsibilities of a parent or be significant to moral duty towards the child, with the contrary implications, seems a very strange idea and it is curious to find it, even in a limited way, in a judgment published as recently as 1962.

17. (1989) 17 NSWLR 1 at 9-10.

64. Even in the context of a powerful widow’s claim, obligations to the adult children of earlier relationships can, without affording a reason not to make what would otherwise be proper provision for the widow, affect the form or structure of that provision, so as to avoid setting asunder the testator’s intentions in other respects. Thus in Court v Hunt, [18] Young J, as he then was, said:

There is another factor here too that must not be overlooked. The plaintiff's first marriage produced three children and her second marriage (to the deceased) one daughter. That daughter has two girls and the testator provided that those two granddaughters were to receive the whole of his estate after the plaintiff's demise. The plaintiff's intended testamentary provision would be that these granddaughters only receive two-fifths of the estate. Accordingly, the court must be particularly careful against being involved in any scheme whereby the property would be sold and either maintained as cash or alternatively put into a strata title retirement unit, which would then be sold for cash, so that persons in respect of whom the testator had no intention to benefit would receive substantial capital sums in a short period of time to the prejudice of his granddaughters, whom he did wish to benefit. The fact that this may happen is, of course, no reason in itself for not making a capital provision for the widow, but it is always something which the court must bear in mind.

18. NSWSC, Young J,14 September 1987, unreported

65. Thus, while acknowledging the primacy of the widow’s claim, the Court may – at least where the assets are sufficient – shape and structure the provision for her to avoid effects such as subverting the testator’s intentions beyond the extent necessary to make proper provision for the eligible person. In the current case, similar considerations inform how the Court should proceed where it is not a matter of subverting intentions, but of defeating other moral obligations. A different aspect of the same conundrum was referred to by Nettle J (when he was a judge of the Supreme Court of Victoria) in McKenzie v Topp,[19] in accepting that where a testator left the whole of his estate to his widow, to the exclusion of adult children of earlier marriages, the widow may incur a moral obligation to make provision for those children :

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

…

[60] That said, the point of principle for present purposes is one of modest proportions. If children of a first marriage have stood aside in order that their father might make adequate provision for the widow of a second marriage, and upon her death there are assets in her estate, the amount left by their father to the widow maybe relevant to the question of whether she is responsible to provide for them.

19. [2004] VSC 90 at [56]-[60].

66. In my view, despite the admitted primacy of the deceased’s obligation to the defendant, he was not entitled to continue to ignore the claim of his child the plaintiff, at a time when he was able to make some provision for her and she was in plain need. The deceased could and should have remedied his past omissions by providing something for the plaintiff, while recognising the primary claim of the defendant. The estate was not so small as to make that impracticable, although recognition and securing of the defendant’s right to remain in the Vaucluse unit so long as she wants constrains the timing and structure of any gift to the plaintiff; and its quantum is constrained by the circumstance that on any view the defendant’s daughters Susan and Christina have a significant claim on the deceased’s testamentary bounty – a factor he recognised by leaving them all but $5,000 of his estate should the defendant predecease him. But the deceased could have fulfilled his obligation to the defendant – by ensuring that she was able to continue to reside in the Vaucluse unit, and to sell it and purchase an alternative – while concurrently preserving an interest in the remainder for the plaintiff. Given the claims of Susan and Christina, who in many ways were closer to the deceased than Bettina, but on the other hand may be expected to inherit from their own mother Estelle, proper provision for Bettina would have been a one-third interest in remainder in the deceased’s half-interest in the Vaucluse unit, postponed to the defendant’s life interest in that one-third – the defendant receiving the other two-thirds absolutely. As a result, the defendant would have become entitled in all to five-sixths of the property absolutely, and to a life estate in the remaining one-sixth. If she wished to sell in due course, she would be entitled to five-sixths of the proceeds absolutely (on current values, in the order of $705,000), and to the income generated by the remaining sixth ($140,000).

Designating order and special circumstances

67. Because Bettina’s claim is brought in circumstances where the estate has been distributed, an order in her favour will be of utility only if property that has been distributed is designated as notional estate. Property may be designated as notional estate of a deceased person if the Court is satisfied that on, or as a result of, a distribution of the deceased person’s estate, property (whether or not the subject of the distribution) became held by a person. [20] Here, as a result of the distribution of the estate, property – namely the deceased’s half share in the unit – has become held by Estelle.

    20. Succession Act s 79.

68. The Court must not make a notional estate order unless it has considered (a) the importance of not interfering with reasonable expectations in relation to property, and (b) the substantial justice and merits involved in making or refusing to make the order. [21] The defendant submitted that under s 87(a) the Court ought to take into account the reasonable expectations of Estelle arising in relation to her home of 31 years, including amongst other considerations that the home was purchased by the deceased and Estelle in 1985 with significant contribution to the purchase price of the property by Estelle’s mother, and Estelle’s greater contribution to payment of the mortgage and ongoing upkeep and maintenance of the property and the contributions she also made to the estate and welfare of the deceased, the deceased being unable to walk without a walking frame or wheel chair for the last 21 years of his life. While these are relevant considerations as to whether a family provision order should be made – and I have taken them into account in that context – they are not the kind of expectations to which s 87(a) is directed; its focus being the expectations of one who holds property that such ownership will not be disturbed. As Estelle came to hold the relevant property only after resiling from her agreement to extend time for the plaintiff to make an application, and with notice of the plaintiff’s impending claim, I do not consider that she was entitled to entertain any reasonable expectation that her ownership would not be disturbed.

    21. Succession Act s 87.

69. Although the defendant submitted that the substantial justice and merits of the case did not warrant the making of such an order, in my view, there is no injustice in doing so given the circumstances by which the defendant became registered with notice of the claim, immediately after resiling from an agreement to extend time for the plaintiff’s claim; and given also the absence of prejudice to the defendant, there having been no subsequent dealing with the property or detrimental reliance on ownership.

70. Succession Act, s 90 (Restrictions on out of time or additional applications), provides:

(1) This section applies to proceedings where:

(a) an application for a family provision order is made later than 12 months after the date of the death of the deceased person, or

(b) an application for a family provision order is made in relation to an estate that has been previously the subject of a family provision order.

(2) The Court must not make a notional estate order in the proceedings unless:

(a) it is satisfied that:

(i) the property to be designated as notional estate is property that was the subject of a relevant property transaction or of a distribution from the estate of a deceased person or from the estate of a deceased transferee, and

(ii) the person who holds the property holds it as a result of the relevant property transaction or distribution as trustee only, and

(iii) the property is not vested in interest in any beneficiary under the trust, or

(b) it is satisfied that there are other special circumstances that justify the making of the notional estate order.

71. The use of the formula “special circumstances” reflects an intention that judicial discretion not be confined by a list of relevant factors, by capturing circumstances of potential relevance which are so various as to defy precise definition. [22] Circumstances are special if they are unusual, uncommon or exceptional in character, quality or degree; if they differ from the ordinary or the usual; or if they are particular or individual; but they need not be unique. [23] Circumstances may be special by reason of their weight as well as their quality, and because of a combination of factors. [24] The terms of s 90(2) indicate that property not vesting in interest, incapacity, and circumstances analogous thereto, may constitute special circumstances; but special circumstances are not limited to those suggested by the terms of the section or closely analogous to them. [25] Factors that contribute to a decision to extend time under Family Provision Act, s 16, can also contribute to a finding of “special circumstances”,[26] although more is required to establish special circumstances under Succession Act, s 90(2), than to justify an extension of time under Succession Act, s 58(2). [27]

    22. Cetojevic v Cetojevic [2006] NSWSC 431 at [77], applying Application of O and P [2005] NSWSC 1297 at [57]-[60]; Director-General Department of Community Services v The Adoptive Parents [2005] NSWCA 385 at [44]; Baker v The Queen [2004] HCA 45; (2004) 210 ALR 1; (2004) 78 ALJR 1483 at [13].

    23. Charnock v Handley [2011] NSWSC 1408 at [89] (Hallen AsJ); Underwood v Gaudron [2014] NSWSC 1055 at [203] (Hallen J).

    24. Cetojevic v Cetojevic [2006] NSWSC 431 at [77].

    25. Lewis v Lewis [2001] NSWSC 321 at [85] (Hodgson J); Cetojevic v Cetojevic [2006] NSWSC 431 at [77] (Campbell J); see also Barker v Magee [2001] NSWSC 563 at [51] (Macready M).

    26. Campbell v Chabert-McKay [2010] NSWSC 859 at [87]-[88] (White J); Seeto v Seeto [2013] NSWSC 1232 at [116] (Slattery J); Charnock v Handley [2011] NSWSC 1408 at [89] (Hallen AsJ); Underwood v Gaudron [2014] NSWSC 1055 at [203] (Hallen J).

    27. Campbell v Chabert-McKay [2010] NSWSC 859 at [86].

71. Factors that have contributed to findings of special circumstances have included incapacity as a result of infancy,[28] the fact that it was no fault of the applicant that application was not made within time,[29] the strength on the merits of an applicant’s claim,[30] the absence of prejudice (such as the fact that there has been no significant dealing with the notional estate in the meantime),[31] and the belated falsification, after time for bringing an application for provision had expired, of a reasonable expectation that if fulfilled would have made an application unnecessary. [32]

    28. Dare v Furness (1998) 44 NSWLR 493; Stojcesvska v Tosevski [2001] NSWSC 274 at [45].

    29. Stojcesvska v Tosevski [2001] NSWSC 274 at [46]; Cetojevic v Cetojevic [2006] NSWSC 431 at [77]; Pitkin v Henderson [2001] NSWSC 207; Sikorski v Michalowski [2007] NSWSC 666.

    30. Stojcesvska v Tosevski [2001] NSWSC 274 at [46]; Cetojevic v Cetojevic [2006] NSWSC 431 at [77], [79]; Campbell v Chabert-McKay [2010] NSWSC 859.

    31. Campbell v Chabert-McKay [2010] NSWSC 859; John v John [2010] NSWSC 937.

    32. Alexander v Jansson [2010] NSWCA 176 at [24]; cf Henry v Hancock [2016] NSWSC 71 at [62].

72. In this case, the defendant’s initial agreement to an extension of time materially contributed to the plaintiff’s failure to bring proceedings within time; the plaintiff’s claim is a strong one; the defendant took the transfer of the property with notice of the plaintiff’s family provision claim; and there is no prejudice as there has been no dealing with the notional estate in the meantime. In my judgment, the defendant’s resiling from an agreement to extend time, coupled with the prompt institution of proceedings thereafter – at least in the absence of prejudice – more than suffices to satisfy the requirement for special circumstances.

Conclusion, costs and orders

74. My conclusions may be summarised as follows:

75. Time for commencing the proceedings should be extended up to and including the date on which the summons was filed.

76. Despite the admitted primacy of the deceased’s obligation to the defendant, he was not entitled to continue to ignore the claim of his child the plaintiff, at a time when he was able to make some provision for her and she was in plain need. The deceased could and should have remedied his past omissions by providing something for the plaintiff, while recognising the primary claim of the defendant. The deceased could have fulfilled his obligation to the defendant – by ensuring that Estelle was able to continue to reside in the Vaucluse unit, and to sell it and purchase an alternative – while concurrently preserving an interest in the remainder for the plaintiff. Given the claims of Susan and Christina, who in many ways were closer to the deceased than Bettina, but on the other hand may be expected to inherit from their own mother Estelle, proper provision for Bettina would have been a one-third interest in remainder in the deceased’s half-interest in the Vaucluse unit, postponed to the defendant’s life interest in that one-third – the defendant receiving the other two-thirds absolutely. As a result, the defendant would have become entitled in all to five-sixths of the property absolutely, and to a life estate in the remaining one-sixth.

77. The defendant’s resiling from an agreement to extend time, coupled with the prompt institution of proceedings thereafter – at least in the absence of prejudice – more than suffices to satisfy the requirement for special circumstances.

78. Ordinarily, the plaintiff having succeeded in obtaining a family provision order would also receive her costs, while the defendant’s costs would be paid out of the estate. However, the estate having been distributed, the defendant will have to bear personally from her share the various remaining liabilities of the estate, including costs. A costs order in favour of the plaintiff would necessitate sale of the unit (unless the defendant could raise funds, which seems unlikely). This would defeat the defendant’s ability to remain in the unit so long as she wishes, which I am not prepared to countenance. However, the plaintiff’s lawyers have agreed that in the event that an order is made in her favour, her obligation to pay their costs will be deferred until she becomes entitled to receive any provision that may be made for her. In that light, and acknowledging that the defendant will have to bear her own costs and the other estate liabilities out of her share (but that she also receives the other minor assets which were not included in the probate application), it provides a just and more practical result in the circumstances of this case if the order in favour of the plaintiff is inclusive of her costs. In other words, if the defendant’s costs, and the costs theoretically payable by the defendant to the plaintiff, were deducted from the potential notional estate, the plaintiff’s entitlement would be less than a one-third remainder interest in the deceased’s half interest in the unit. I have therefore taken into account the plaintiff’s costs in quantifying the substantive order in her favour.

79. Accordingly, the Court orders that:

1. Pursuant to Succession Act, s 58(2), the time for the plaintiff to apply for a family provision order be extended up to the date on which the summons was filed.

2. Pursuant to Succession Act, s 79, a one-half share in the property situated at and known as XX/XX Diamond Bay Road, Vaucluse, being the land comprised in folio identifiers 13/SPXXXX and 17/SPXXXX, be designated as notional estate of the deceased.

3. Pursuant to Succession Act, s 59, by way of provision for the plaintiff Bettina Stone from the notional estate of the late Aston Stone:

1. The defendant receive a two-thirds share of the deceased’s half interest in the Vaucluse property absolutely, and a life estate in the other one-third share; and

2. The plaintiff receive the remainder in the said one-third share.

4. There be no order as to costs, to the intent that each party bear her own costs.

5. Liberty to apply in the event of any difficulty arising in the implementation of these orders.

**********

Endnotes

Decision last updated: 13 May 2016