Tramantana v Harborne; Clarke v Harborne; Midson v Harborne

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Tramantana v Harborne; Clarke v Harborne; Midson v Harborne [2011] NSWSC 1129
Hearing dates: 19, 20 & 21 September 2011
Decision date: 20 October 2011
Jurisdiction: Equity Division
Before: Hallen AsJ
Decision:
(i) The proceedings commenced by Michelle Tramantana are dismissed.
(ii) Having found that the Plaintiff, Joe-Anne Clarke, is an eligible person, and that the provision made for her in the Will of the deceased is inadequate, order that she receive, in lieu of that provision, a lump sum of $100,000, the burden of which provision shall be paid out of residue of the estate;
(iii) 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 the Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment;
(iv) Having found that the Plaintiff, Brooke Anne Midson, and the Plaintiff, Harley Midson, is each not an eligible person within the meaning of the Act, and also that there are no factors warranting the making of her, and his, application, the proceedings commenced by each is dismissed.
(v) Reserve question of costs for further argument and stand the matter over to a date to be agreed.

Catchwords: Three different proceedings, each a claim for a family provision order - Two applications are by daughters of deceased - Third application by two grandchildren of deceased - Defendants are executor named in Will of deceased, to whom Probate was granted, and the person said to be the de facto partner of the deceased at the date of his death - Additional issue in the proceedings brought by one Plaintiff relates to whether one of the properties, owned by the deceased, is held in trust for her.
Legislation Cited: Civil Liability Act 2002
Family Provision Act 1982
Probate and Administration Act 1898
Property (Relationships) Act 1984
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Cases Cited: Amaca Pty Ltd v Novek [2009] NSWCA 50
Blore v Lang (1960) 104 CLR 124
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Brown v Faggoter [1998] NSWCA 44
Churton v Christian (1988) 13 NSWLR 241
Collins v McGain [2003] NSWCA 190
Como v Helmers [2011] WASC 179
Cooper v Dungan (1976) 50 ALJR 539
Delaforce v Simpson-Cook [2010] NSWCA 84
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Donis v Donis [2007] VSCA 89
Evans v Levy [2011] NSWCA 125
Foley v Ellis [2008] NSWCA 288
Ford v Simes [2009] NSWCA 351
Fulop Deceased, Re (1987) 8 NSWLR 679
Galaxidis v Galaxidis [2004] NSWCA 111
Giumelli v Giumelli (1996) 196 CLR 101
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Hampson v Hampson [2010] NSWCA 359
Hawkins v Prestage (1989) 1 WAR 37
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Hunter v Hunter (1987) 8 NSWLR 573
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Dec) v Lathwell [2008] WASCA 256
MacEwan Shaw v Shaw [2003] VSC 318
McCosker v McCosker (1957) 97 CLR 566
McGrath v Eves [2005] NSWSC 1006
Mayfield v Lloyd-Williams [2004] NSWSC 419
O'Dea v O'Dea [2005] NSWSC 46
Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361
Pascoe v Turner [1979] 1 WLR 431
Penfold v Perpetual Trustee [2002] NSWSC 648
Permanent Trustee Company v Fraser (1995) 36 NSWLR 24
Petrohilos v Hunter (1991) 25 NSWLR 343
Plimmer v Mayor of Wellington (1884) 9 AC 699
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Porthouse v Bridge [2007] NSWSC 686
Puckridge, Deceased, In the Estate of (1978) 20 SASR 72
Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100
Sayer v Sayer [1999] NSWCA 340
Simons v Permanent Trustee Co Ltd: Estate D Hakim [2005] NSWSC 223
Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201
Skinner v Frappell [2008] NSWCA 296
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Sullivan v Sullivan [2006] NSWCA 312
Taylor v Farrugia [2009] NSWSC 801
Tsivinsky v Tsivinsky [1991] NSWCA 269
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (NSWSC, 17 May 1996, unreported)
Zahra v Francica [2009] NSWSC 1206
Category: Principal judgment
Parties: Michelle Tramantana
(Plaintiff in 2010/309744)
Joe-Anne Clarke
(Plaintiff in 2010/383588)
Brooke Anne Midson
(First Plaintiff in 2010/391072)
Harley Midson (by his tutor Brooke Anne
Midson)
(Second Plaintiff in 2010/391072)
Roger Harborne executor of the Estate of
the late Joseph Tramantana
(First Defendant)
Gwen Hancock
(Second Defendant)
Representation: Mr M B Evans (Plaintiff in 2010/309744)
Mr N Bilinsky (Plaintiff in 2010/383588)
Mr K Morrissey (Plaintiff in 2010/391072)
Ms E Glover (first and second Defendants) in each matter
Brydens (Plaintiff in 2010/309744)
Marriott Oliver (Plaintiff in 2010/383588)
Breens Solicitors (Plaintiff in 2010/391072)
RMB Legal (first Defendant)
Marsdens (second Defendant)

File Number(s): 2010/309744; 2010/383588; 2010/391072

Judgment

HIS HONOUR: These reasons relate to three different proceedings, in each of which a claim for a family provision order under Chapter 3 of the NSW Succession Act 2006 ("the Act") is made. The proceedings were heard consecutively, with the evidence in one being evidence in the others.

The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the Court, under Chapter 3, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person.

An additional issue, in the proceedings brought by one Plaintiff, relates to whether a constructive trust, in her favour, should be imposed on one of the properties, owned by the deceased. This part of the claim was referred to me, at the request of the parties, and by order of Bergin CJ in Equity, made on 15 September 2011.

The deceased, whose estate is the subject of the claims, is Joseph Tramantana ("the deceased").

The first application was made in the Summons, filed on 17 September 2010, by Michelle Tramantana, a daughter of the deceased. It is in her application that a declaration is sought that one ("No 69") of two of the deceased's properties at Busby, New South Wales (to which I shall refer as "No 67" and "No 69") is held on a constructive trust for her.

The second application was made in the Summons, filed on 15 November 2010, by Joe-Anne Clarke, who is also a daughter of the deceased.

The third application was made in a Summons filed on 24 November 2010, by Brooke Anne Midson and Harley Midson, by his tutor, Brooke Anne Midson. Each is a child of the Plaintiff, Michelle, and, thus, a grandchild of the deceased.

Each Summons was filed within the time prescribed by the Act (within 12 months of the deceased's death).

Although reference is made in each Summons to notional estate, the whole of the deceased's estate comprises actual estate. To the extent that No 69 is found by the Court to be held on trust for Michelle, it will not form part of the actual estate of the deceased.

The Defendants, in each of the proceedings, are Roger Arthur Harborne, the executor named in the Will of the deceased, to whom Probate was granted, and Gwen Hancock, a person said to be the de facto partner of the deceased at the date of his death. That she was, is subject of dispute.

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

Background Facts - Formal

The following facts are uncontroversial.

The deceased died on 16 December 2009. He was then aged 74 years, having been born in November 1935.

The deceased was married to Betsey-Anne Tramantana in December 1962. She predeceased him, having died in December 1987. She left a Will made on 25 August 1987, Probate of which was granted to the deceased. He was the sole beneficiary named in her Will, and subject to an order made under the former Act in favour of Joe-Anne, to which I shall refer shortly, the whole estate was left to the deceased absolutely. (In the event that the deceased did not survive her, the whole of her estate was divided between Joe-Anne and Michelle in equal shares "on their attaining the age of 25 years".)

In addition, the deceased inherited the interest of his wife, as a joint tenant, in No 69 and in a property at Greenwell Point, NSW. No 69 was the deceased's parents' house and had been given to the deceased and Betsey-Anne as a wedding gift. It is located next door to No 67, although there is no dividing fence between the two properties.

The deceased made a Will on 29 November 1996. That Will, relevantly, provided:

" 4. I MAKE the following specific devices (sic):

(i) I give to my daughter MICHELLE TRAMANTANA the property known as No 67 xxx Road, Busby and the furnishings and chattels within that same property.

(ii) I give to my daughter JOANNE (sic) CLARKE the sum of Ten thousand dollars ($10,000.00) because she was well provided for under my late wife BETSEY TRAMANTANA'S Estate, when Betsey died in 1987.

(iii) I give to TANIA McGEOWN of ... the sum of Ten thousand dollars ($10,000.00).

(iv) I give to ANGELA TAKIS of ... the sum of Ten thousand dollars ($10,000.00).

5. I GIVE DEVISE AND BEQUEATH the rest of my estate with real and personal of whatsoever kind and nature and wheresoever situate within Australia unto GWEN HANCOCK absolutely.

6. I NOMINATE all debts, funeral and testamentary expenses and the pecuniary legacys (sic) to be paid from the sale of my Home Unit, xx Railway Parade, Fairfield.

7. UNDER no circumstances is xx Greens Road, Greenwell Point to be sold if Gwen survives me for a period of more than sixty (60) days, xx Greens Road, Greenwell Point together with all its furnishings and chattels is to be given to Gwen Hancock unencumbered and absolutely.

8. IN THE EVENT that GWEN HANCOCK predecease (sic) me or dying within sixty (60) days of my death, THEN I GIVE DEVISE AND BEQUEATH all my real and personal estate of whatsoever kind and nature and wheresoever situate within Australia, unto my surviving Grandchildren absolutely in equal shares as tenants in Common and to be held in trust until they attain the age of eighteen (18) years.

On 8 June 2010, this Court granted Probate of the deceased's Will to Roger.

In the Inventory of Property attached to, and forming part of, the Probate document, the deceased's estate, as at the date of death, was disclosed as consisting of No 67 and No 69 ($290,000 and $310,000 respectively), real estate at Fairfield, New South Wales ($190,000), real estate at Greenwell Point, New South Wales ($280,000), moneys in cash and in bank on deposit ($34,353), shares in IAG ($1,186), cars ($1,000, $500, and unknown value respectively), household contents (no commercial value), and a boat ($20,000). The then total gross value of the deceased's estate was estimated to be $1,127,039. (I have stated, and, hereafter, shall state, only the dollar amount and omit a reference to the cents.)

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

At the hearing, the parties were able to agree that the estimated gross value of the estate was $1,143,377 (subject to the payment of costs of the proceedings). The estate, currently, consists of cash in bank ($181,977), No 67 ($330,000) and No 69 ($307,500), the real estate at Greenwell Point ($310,000), the boat (now said to be of little value), and two motor vehicles ($12,500 and $500 respectively) and a motorcycle ($900).

There is an allegation that there are two amounts owing to the estate by Michelle, which total $40,890. The first amount claimed from her is $22,595, being the total debts incurred on a credit card, in the deceased's name, in respect of which she was a secondary cardholder. That credit card debt has been repaid out of the deceased's estate. The second relates to Roger's indemnity costs, incurred in respect of caveat proceedings, ordered to be paid, by Michelle, which are estimated to be $18,295.

For the purposes of calculating the gross value of the estate, ultimately, it was accepted that these amounts, totalling $40,890, are payable by her to the estate.

The only liabilities (other than the costs of the proceedings) disclosed are a claim for commission by Roger (estimated to be $13,500), the costs of applying to pass accounts and seek commission ($12,000 to $15,000), and the costs of winding up the estate, estimated to be $5,000.

The parties are agreed, also, that the two pecuniary legacies (totalling $20,000) to Tania and Angela, should be paid out of the estate and should not bear the burden of the provision, if any, made for any of the Plaintiffs.

The parties agreed, then, that the current value of the gross distributable estate, excluding the costs of the proceedings and costs of applying to pass accounts and seek commission, is, therefore, $1,145,767.

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

Michelle's costs and disbursements, including counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a 3 day hearing), are estimated to be $86,280. Her costs, calculated on the ordinary basis, have been estimated to be $60,396.

Joe-Anne's costs and disbursements, including counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a 3 day hearing), are estimated to be $61,180. Her costs, calculated on the ordinary basis, have been estimated to be $42,826.

Brooke's and Harley's costs and disbursements, including counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a 3 day hearing), are estimated to be $59,860. Their costs, calculated on the ordinary basis, have been estimated to be $42,000.

The balance of Roger's costs and disbursements, including counsel's fees, calculated on the indemnity basis, (inclusive of GST and upon the basis of a 3 day hearing), yet to be paid, have been estimated to be $17,000.

Gwen's costs and disbursements, including counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a 3 day hearing), have been estimated to be $99,591. It is submitted that her costs, calculated on the indemnity basis, of defending the proceedings, should be paid out of the estate, since Roger's costs were limited because of her involvement in the proceedings.

The parties agreed, for the purposes of the hearing, and assuming that the estimates of costs prove accurate, and the usual orders for costs are made, that the value of the current estimated net distributable estate, will be in the order of $884,494. It will be appreciated, therefore, that this is not a large estate.

The persons who are eligible persons, within the meaning of the Act, are Michelle, Joe-Anne and Gwen. There is a dispute about the eligibility of Brooke and Harley. The notice prescribed by the Act has not been served on any of them. However, each has filed at least one affidavit that has been read in the proceedings (with the exception of Harley). Despite his age, he was present, in Court, during the proceedings. I am satisfied that service of such notice is, therefore, unnecessary.

Since the pecuniary legacy payable to each of Tania and Angela will be paid, and since it is not suggested that either is an eligible person, I am satisfied it is unnecessary to serve the prescribed notice on each of them.

Other Background Facts

The following additional facts are also not controversial.

The deceased met Roger in about 1968 or 1969. They remained friends throughout the deceased's life.

The deceased purchased the land at Greenwell Point and built a home there in about 1986 or 1987. He moved, there, to live, on a full time basis, in about June 2008.

No 67 was the family home of the deceased, Betsey-Anne, Joe-Anne and Michelle. It is a three-bedroom property. The deceased's parents also owned No 69, which is a two-bedroom property.

The deceased was diagnosed with leukaemia in the late 1990s. The disease was slow moving in his case, and he seems to have, generally, been well thereafter, although there is some dispute about when his health started to decline. Later in his life, he suffered from other conditions such as diabetes.

Gwen is aged 69 years, having been born in April 1942.

The deceased and Gwen met in about 1990. She moved into No 67 in about 1991. Between 1991 and 2003, they would go together to the Greenwell Point property to stay every second weekend. It is agreed that she did not live with the deceased after 2003. There was a dispute about the nature of their relationship between 2003 and the date of the deceased's death.

In March 1990, Joe-Anne commenced proceedings, out of time, in which the deceased was named as the Defendant, in which proceedings she sought provision under the former Act out of Betsey-Anne's estate. Windeyer J heard the proceedings in July 1992. His Honour found that Joe-Anne was "a good and caring daughter" to her mother. His Honour extended the time for the making of the application to the date of the filing of the Summons, and ordered that Joe-Anne should receive a lump sum of $50,000 and interest if the lump sum was not paid by 1 September 1992 out of Betsey-Anne's estate. His Honour also ordered that Joe-Anne should receive her costs calculated "on the common fund basis".

There is no dispute that the deceased paid to Joe-Anne the lump sum and her costs as ordered. However, after her legal costs were paid, she said that she received about $30,000.

At the date of that hearing, Michelle was living, with Brooke, and the deceased, in No 67.

Joe-Anne has four children aged 25, 23, 20 and 19 years. None of the grandchildren had any relationship with the deceased. There was an occasion, shortly before the deceased's death, when one of the grandchildren met the deceased in Sydney, but this was not a planned, but a chance, meeting.

The Statutory Scheme - The Act

Introduction

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

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

"Purposive construction of the Act

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

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

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

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

The Substantive Provisions of the Act

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

The Act contains no definition of the words "dependent on". In general, the word "dependent" connotes a person who relies upon support of another, financial and/or emotional. Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support.

In Amaca Pty Ltd v Novek [2009] NSWCA 50, Campbell JA, with whom other members of the Court of Appeal agreed, said (in the context of a claim under section 15B of the Civil Liability Act 2002 ) :

"44 In my view, the law remains accurately stated by the joint judgment of Sugerman P, Jacobs and Mason JJA in Middleton v Kiama District Hospital [1970] 3 NSWR 136. Their Honours said, at 138:

'Dependency is, moreover, a complex question of fact, which may involve the consideration of many elements, including both past events and future probabilities. It is not necessarily correlative with a legal duty to maintain. A person may in fact be dependent upon another who is under no legal duty to maintain him; and may be so dependent even though there is also in existence one who has legal duty to maintain, eg a husband his wife. On the other hand there may be no dependency in fact upon a person who is under a legal duty to maintain. The existence of the legal duty is, however, one of the many elements to be taken into account in deciding upon a question of dependency in fact. Dependency and actual support are not necessarily correlative. There may be dependency although for the time being there is no actual support. And it seems to us to be possible to figure cases in which there may have been a provision of support, or of some measure of support, at least for a short time or for some special purpose, which did not amount to dependency. The definition of "dependants" does not merely refer to one who was in fact supported by the deceased worker at the time of his death; a "dependant" is a member of the workers' family who was "wholly or partly dependent for support upon the worker at the time of his death". Dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased. As to all the above matters see Hodges v Scotts' Provision (Wholesale) Pty Ltd [1963] WCR 161 and cases there cited.'"

In Skinner v Frappell [2008] NSWCA 296, Young CJ in Eq, (with whom Campbell JA agreed) sitting in the Court of Appeal at [85] wrote:

"The matter as to what is required for dependency was fully dealt with by this Court in Petrohilos v Hunter (1991) 25 NSWLR 343. Although dependency is not limited to financial dependency, it does involve one person being beholden to another person for some material, or physical, help or succour, emotional dependency is not enough."

In Petrohilos v Hunter (1991) 25 NSWLR 343, at 346, it had been said by Hope AJA:

"I would respectfully disagree with the Master in both respects. The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language. This accords with what Samuels JA said in Ball v Newey at 491, that "'Dependent' in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed". If the correct view were that the context of the statute requires a limitation of the word to "financial or material" matters as McClelland J said in Re Fulop (dec'd) or to "other forms of dependence analogous to but distinct from financial dependence" as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period."

In the case of an applicant who falls within s 57(1)(d), (e) or (f), the Court must next consider and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application (s 59(1)(b)). This is relevant in the present case to the applications of Brooke and Harley.

The Act does not specify the "factors which warrant the making of the application". In considering the meaning of what he described as "this poorly conceived and clumsily expressed subsection" in the former Act (which did not form part of the Draft Bill produced by the Law Reform Commission), M McLelland J said, in Re Fulop Deceased (1987) 8 NSWLR 679 at 681 (approved in substance by the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241) that the factors are factors which, when added to facts which render the applicant an eligible person, give him, or her, the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased.

Kirby P in Tsivinsky v Tsivinsky [1991] NSWCA 269, in dealing with the section of the former Act, which was in similar terms, said:

"Insofar as s 9(1) gives any guidance concerning the factors 'which warrant the making of the application', it is Delphic. The language used is extremely broad in its generality ('all the circumstances', 'whether past or present', 'factors... warrant making the application', 'satisfies'). The only real clue as to what is meant is to be derived from the apparent policy of confining this additional, preliminary procedure to the particular categories of 'eligible person' contained in the definition paras (c) and (d) in s 6(1) of the Act."

In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard AJA and Fitzgerald AJA, there was the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test than that which the Court of Appeal approved in Churton v Christian .

In Penfold v Perpetual Trustee [2002] NSWSC 648, Windeyer J did not follow Brown v Faggoter . Bryson AJ also commented in Porthouse v Bridge [2007] NSWSC 686:

"In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors ("there are factors") is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination."

In Diver v Neal [2009] NSWCA 54 (also (2009) 2ASTLR 89), Basten JA, with whom Allsop P and Ipp JA agreed, said of s 9(1) of the former Act:

"8 As noted above, compliance with this requirement was not the first issue addressed by the primary judge, although s 9(1) envisages that it is to be determined before the Court decides whether to "proceed with the determination of the application". In practice, the factors relevant to the issue raised as a preliminary matter are, to a significant extent, co-extensive with those which must be addressed in determining whether the testator made adequate provision for the applicant: see Churton v Christian (1988) 13 NSWLR 241 at 242-243 (Hope JA) and 248-249 (Priestley JA). Nevertheless, the express distinction between two classes of eligible person must be recognised. It appears to have been drawn on the basis that persons falling within the first category (comprised of those identified in pars (a) and (b)) are "regarded as natural objects of testamentary recognition", whereas those falling within the second category (identified in pars (c) and (d)) are potentially appropriate objects of testamentary recognition, depending upon their circumstances: see Churton at 252 (Priestley JA) applying the analysis of McLelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681."

More recently, in Evans v Levy [2011] NSWCA 125, Young JA, with whom Campbell JA and Sackville AJA agreed, said:

"[62] It would seem that what the drafter of the legislation of 1982 did was to endeavour to avoid some of the complications that had been found to exist with cases under the 1916 Act as to just who was an eligible person by broadening the category to a very extensive degree. However, to provide some sort of filter, s 9(1) was enacted so that, without the estate having to get into a great expense, the question of whether the application could possibly succeed would be determined early. Unfortunately, experience has shown that that was a vain hope.

[63] However, the intended result of the wide nature of para (d) of the definition of "eligible person" and s 9(1) is to seek to restrict people whose claims should proceed to a hearing to those who are in very similar categories to those who are within paras (a) and (b) of the definition.

[64] On s 9, the decision of M McLelland J in Re Fulop (dec'd ) (1987) 8 NSWLR 679 has stood the test of time."

It can be seen that the trend of authorities does not favour the view suggested in Brown v Faggoter . With great respect, I also regard the views expressed in the authorities referred to by Windeyer J, Bryson AJ, Basten JA, Campbell JA, and Young JA as correct and propose, in the circumstances, to follow their decisions.

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

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

It was said in the court of Appeal (per Basten JA) in Foley v Ellis [2008] NSWCA 288 at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment".

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

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

"Provision" is not defined by the Act, but it was noted in Diver v Neal 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 are the words "maintenance" and "advancement in life" defined in the Act. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at [115], said, of the words 'maintenance', 'support' and 'advancement':

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tobias JA said:

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

...

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

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

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

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

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

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

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

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

The discretion should be exercised carefully and conservatively according to community perceptions of the provision that would be made by a wise and just testator or testatrix: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 146. The standards of the wise and just testator, or testatrix, of today, not of an era ago, are pertinent to that assessment: Permanent Trustee Company v Fraser (1995) 36 NSWLR 24 at [35].

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

'"financial resources" ... includes:

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

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

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

(d) any other valuable benefit.'

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

Section 60(2)(p) is open ended. It enables the court to look beyond the specific statutory matters that are set out in the immediately preceding sub-paragraphs and to consider any other matter it considers relevant.

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

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

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

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

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

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

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

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

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

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

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

The order may be made in relation to the estate of the deceased. As the deceased died leaving a Will, his estate includes all property that would, on a grant of probate of the Will, vest in the executor of the Will (s 63(2) of the Act). An order may also be made in relation to property that is not part of the estate of a deceased, 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 (s 63(5)).

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

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

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

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

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

It seems to me that this section, when read with s 66(2) (to which I shall refer later), the court may specify, as it could under the former Act, the beneficial entitlements in the estate which shall bear the burden of the provision and, in relation to each of those entitlements, the part of the burden which it shall bear (s 13 of the former Act).

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

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

Section 66 of the Act sets out the consequential and ancillary orders that may be made. Importantly, the Court may make such additional orders as it considers necessary to adjust the interests of any person affected by a family provision order and to be just and equitable to all persons affected by the order (s 66(2)).

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

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

Applicable Legal Principles

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

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

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

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

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

In relation to a claim by an adult child, the following principles, in my view, are useful to remember:

(a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.

(b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. 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, 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 his or her 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; Taylor v Farrugia [2009] NSWSC 801.

(c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life 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 a parent 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: Taylor v Farrugia .

(d) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) [1981] 2 NSWLR 532; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45.

(e) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd .

(f) Although some may hold the view that equality between children does not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not entirely consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the Court's determination of the applicant's case.

In Blore v Lang (1960) 104 CLR 124, Fullagar and Menzies JJ said (at 135):

"The ... legislation [is] for remedying, within such limits as a wide discretion would set, breaches of a testator's moral duty to make adequate provision for the proper maintenance of his family - not for the making of...a fair distribution of ... [the] estate. Equality is not something to be achieved by the application of the Act, although in some cases equality may set a limit to the order to be made - for instances, where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same."

In relation to a claim by a grandchild, the following general principles are, in my view, relevant and should be remembered:

(a) To be an eligible person within this category, there is a precondition of whole, or partial, dependency.

(b) As a general rule, a grandparent does not have a responsibility to make provision for a grandchild; that obligation rests on the parent of the grandchild. Nor is a grandchild, normally, regarded as a natural object of the deceased's testamentary recognition.

(c) Where a grandchild has lost his, or her, parents at an early age, or when he, or she, has been taken in by the grandparent in circumstances where the grandparent becomes in loco parentis , these factors would, prima facie, give rise to a claim by a grandchild to be provided for out of the estate of the deceased grandparent. The fact that the grandchild resided with one, or more, of his, or her, grandparents is a significant factor. Even then, it should be demonstrated that the deceased had come to assume, for some significant time in the grandchild's life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild's support and welfare, or else that the deceased has undertaken a continuing and substantial responsibility to support the applicant grandchild financially or emotionally.

(d) The mere fact of a family relationship between grandparent and grandchild does not, of itself, establish any obligation to provide for the grandchild upon the death of the grandparent. A moral obligation may be created in a particular case by reason, for example, of the care and affection provided by a grandchild to his, or her, grandparent.

(e) Generosity by the grandparent to the grandchild, including contribution to the education of the child, does not convert the grandparental relationship into one of obligation to provide for the grandchild upon the death of the grandparent. It has been said that a pattern of significant generosity by a grandparent, including contributions to education, does not convert the grandparental relationship into one of obligation to the recipients, as distinct from one of voluntary support, generosity and indulgence.

(f) The fact that the deceased occasionally, or even frequently, made gifts to, or for, the benefit of the grandchild does not, in itself, make the grandchild wholly, or partially, dependent on the deceased for the purposes of the Act.

(g) It is relevant to consider what inheritance, or financial support, a grandchild might fairly expect from his, or her, parents.

The authorities that provide the basis for the above summary, include Tsivinsky v Tsivinsky ; Sayer v Sayer [1999] NSWCA 340; MacEwan Shaw v Shaw [2003] VSC 318; O'Dea v O'Dea [2005] NSWSC 46; Simons v Permanent Trustee Co Ltd: Estate D Hakim [2005] NSWSC 223.

Estrangement of Applicant and the Deceased

In the case of Joe-Anne, there is no dispute that there was a period of estrangement for many years prior to the death of the deceased.

On the topic of the relationship between an applicant and the deceased, Campbell JA (with whom Giles JA and Handley AJA agreed) recently noted, in Hampson v Hampson [2010] NSWCA 359:

"[80] The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge."

Because, in this case, there is a factor raised by the Defendants that bears on the quality of the relationship, being that Joe-Anne and the deceased were said to be estranged for many years, it is necessary to set out some other general principles which should be remembered:

(a) The word 'estrangement' does not, in fact, describe only the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties. Whether the claim of the Plaintiff on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case ( Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Dec) v Lathwell [2008] WASCA 256 at [33]).

(b) The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 at [88]-[94]; Foley v Ellis .

(c) There is no rule that irrespective of a Plaintiff's need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to "ample" provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases.

(d) The Court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one "who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility": Ford v Simes [2009] NSWCA 351 at [71] per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed.

(e) As was recognised by the Court of Appeal of New South Wales in Hunter v Hunter (1987) 8 NSWLR 573 at 574 - 575 per Kirby P (with whom Hope and Priestley JJA agreed):

"If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator's will."

(f) The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, will operate to restrain amplitude in the provision to be made.

(g) Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. In addition, s 60(2)(m) permits the Court to consider the character and conduct of the applicant at the second stage of the process. Care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time: Foley v Ellis at [102].

In this case, I shall deal with the conduct of Joe-Anne and the deceased later in these reasons and the relationship between them that resulted.

I make it clear that I do not intend what I have described as "applicable legal principles" or other general principles to be elevated into rules of law. I identify them merely as providing useful assistance in considering the statutory provisions the terms of which must remain firmly in mind.

Credibility of the Witnesses

I am satisfied that many of the basic facts were not in dispute between the parties. However, in some areas there was a significant dispute. Because of the issue of the nature and value of the actual estate of the deceased, including whether or not a constructive trust should be imposed, I shall deal with the issue of the credibility of the witnesses first.

Before turning to the parties, I shall deal, in a summary way, with the evidence of those witnesses who were not cross-examined and whose evidence, to which I shall refer, I accept.

Kevin Smith, a neighbour of the deceased at Greenwell Point and a close friend, knew him for over 20 years. He says that following her move to Greenwell Point, he would see Michelle at least 3 times a week. The deceased said of her that she "only comes down when she wants money" whilst at the same time acknowledging that "if it wasn't for Michelle and the kids, I wouldn't know how to cope". On one occasion, the deceased said: "Michelle is well looked after in the Will although she does not deserve it".

Mr Smith also gives evidence of the deceased's hostility towards Joe-Anne. The deceased described her to Mr Smith as "that bloody bastard daughter of mine".

Finally, Mr Smith says that he had not seen Gwen for at least 4 to 5 years prior to the deceased's death.

Dave White, another neighbour of the deceased states that he was aware of the relationship between the deceased and Gwen and that the relationship continued despite the fact that she went to look after her own mother.

Robyn White, also a neighbour of the deceased, states that even after Gwen went to look after her mother, "Joe and Gwen remained partners and saw each other whenever they could". She talks about observing Gwen coming to the Busby property regularly, which suggests, that the period to which she is referring is before June 2003.

James Larue, Gwen's brother in law, and Jan Larue, her sister, each gives evidence (in exactly the same terms) of having observed "over the last 20 years ... an ongoing relationship between Gwen and [the deceased] ... [which] continued, from my observation until [the deceased's] death". Neither gives any details of his, or her, observations.

William Hancock, Gwen's brother, states that "from my observations she and [the deceased] remained very close together and she also cared and looked after [him] as much as she could until his death".

Christine Hesel, a friend of Gwen, who would visit Gwen's mother's home, says that "on numerous occasions", she would see the deceased, who was "mainly sick and resting". She says that Gwen had taken him to the doctor, although how she knows this is not explained.

Caterina Tramantana, the sister-in-law of the deceased, states that she, Gwen and the deceased, socialised with her and her husband "on many occasions, up to and including a few weeks before his death".

Mel Moylan, an age care worker, who helped Gwen look after her mother since July 2009, says that when she visited, she would find the deceased "lying on the lounge being cared for by Gwen".

Joady Marshall, who met Michelle in about 2004, became friends with the deceased. She would see him regularly and they would visit each other. She says that from about February 2009 to April 2009, she collected rent from tenants of No 69 and deposited what she collected directly into Michelle's bank account. She does not state on whose authority this was done, although she says that she was present when the deceased, in response to a query from a tenant, said "It's Michelle's house so you have to sort it out with her direct".

Ms Marshall also says that, in the time she knew the deceased, she had never met Gwen. The deceased did not identify Gwen, to her, as a woman with whom he was having a relationship.

I turn then to the parties.

There were many aspects of Michelle's evidence that lead me to the view that I must consider her evidence very carefully. Her evidence, I thought, was coloured by her animosity towards the Defendants and towards Joe-Anne. In addition, she seemed, at times, to demonstrate the view that she had an absolute right to further provision out of the deceased's estate and, on occasions, one of which is referred to below, she refused point blank to answer questions put to her in cross-examination. She expressed the view: "You don't need to know my whole life story. I think that is my business. You don't need to know everything."

Overall, I am not satisfied that I can have confidence about much of her evidence. The following aspects of her evidence demonstrate that this view is not unduly harsh.

More than once, counsel and I each requested Michelle to allow the cross-examiner to finish the question before she answered. Despite these requests, she did not do so.

It was quite clear that many of the dates stated in her affidavits were wrong. She explained the errors in the dates she had given under oath as being based upon a faulty memory caused by her drug taking. Whilst I am prepared to accept that explanation for some of the inaccuracies in her evidence as to the dates, I am not prepared to accept that explanation in relation to two specific dates, and to various other aspects of her evidence.

The specific dates to which I refer relate to the date she said that the deceased's relationship with Gwen ended. At first, she said that it ended in 2001. Later, she said it ended in 2006. Her evidence that it ended completely is also inaccurate, as has been, and will be, demonstrated by some of the objective evidence and by Gwen's evidence, which I accept.

She denied, initially, when asked, whether there had been a period of estrangement between the deceased and her for about 8 years between 1992 and 2000. She denied that there had been and said that on occasions when she returned to Sydney, she would see the deceased "around the streets". When the statement in her affidavit to the effect that there had been estrangement for that period of time was put to her, she accepted that her oral evidence was wrong.

She stated that she had assisted the deceased in various matters, including driving him to doctor's appointments and to hospital treatments from about 2006. In a Claim for a Carer's Payment and/or Carer's Allowance, completed by her in August 2008, she had stated that she had started to provide care to the deceased in February 2005 "on 6 to 7 days a week". She did not assert in that document that she provided "constant" care.

In a similar document, dated November 2008, this changed and she asserted that she was providing "constant care".

She had stated in her affidavit evidence that, in 2006, and 2007, she had been conducting a take-away business. When it was put to her that she could not have been looking after the deceased throughout 2006 and 2007, as she had described, initially, she said that she had not had to work very hard in that business because of a lack of customers. However, when it was pointed out to her that she had stated to a psychologist, whom she had seen in relation to injuries and disabilities alleged to have been suffered by her in a motor vehicle accident in December 2007, that she had been conducting a take-away business in which she used to work 7 days a week, spending over 70 hours per week, she admitted that, perhaps, the assistance that she had provided to the deceased had commenced in early 2008.

It was put to her that she had told the psychologist that she "first drove four months following the accident". She then agreed that her oral evidence was incorrect and that the assistance she provided to the deceased had commenced in about "the middle of 2008".

She also gave evidence that from 2006 onwards she was doing volunteer work at Harley's school.

Whilst she admitted, in cross-examination, that there had been some disputes between her and the deceased in 2006, she denied any disputes between the deceased and Brooke, or that the deceased had ever asked her to leave No 67 (where, for about 2 weeks, she, Brooke and Harley, had been living with the deceased and Gwen).

I have dealt with this earlier in this judgment. The value of the deceased's estate, on any view, is not large.

(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

Michelle's financial resources and financial needs, both present and future, may be summarised as follows (omitting her entitlement under the deceased's Will):

(a) She receives a total of $502 per fortnight by way of Centrelink benefits.

(b) Her expenses total about $430 per week.

Michelle has been out of work, apart from conducting the take-away business, and performing some casual work between February and July 2011, for many years. Whilst she does have an earning capacity, it is unlikely that she will obtain employment in the immediate future, particularly as she appears to suffer from disabilities following the motor vehicle accident in 2007.

Reference was made to a damages claim arising out of the motor vehicle accident that she suffered in December 2007. There was no evidence of the value of such a claim as she is still seeing doctors to determine the extent of the injuries and disabilities from which she suffers.

Joe-Anne's financial resources and financial needs, both present and future may be summarised as follows (omitting her entitlement under the deceased's Will):

(a) She and her husband have no assets, other than minimal second hand furniture. They do not own any property, or a motor vehicle; they have no savings; and no superannuation. They have no liabilities.

(b) They recently lost much of their bedding in the Queensland floods.

(c) She states that she needs provision to enable her to purchase a 3 or 4 bedroom home ($530,000 - $677,000), as well as $20,000 to purchase a car, and a sum of $50,000 for exigencies of life as she has no savings or superannuation.

Joe-Anne is now working as a landscape worker. She is casually employed on a 15 weeks probation period. She works 5 days a week, approximately 7 hours per day. She earns $16 per hour before tax. In addition, she receives Centrelink payments of between $215 and $265 per fortnight. All of their income is spent.

Brooke's and Harley's financial resources (including earning capacity) and financial needs, both present and future may be summarised as follows:

(a) Each has no assets.

(b) The financial resources of each includes her, and his, claim for damages arising out of the motor vehicle accident that she and he suffered in December 2007. There was no evidence of the value of such a claim as each is still seeing doctors to determine the extent of the injuries and disabilities from which she, and he, suffers.

(d) Brooke estimates that Harley's expenses total about $135 per week. He also requires money for school excursions, which can cost $230 per excursion and about $70 for school items. At the moment, Michelle is paying these expenses.

(e) Brooke was interested in doing a TAFE course in motor mechanics. She made enquiries about enrolling in a TAFE course in 2012. However, after she was informed that she had to do a short course in maths to qualify for the course she decided not to enrol because she knew that she would not be able to satisfactorily complete the maths course. She is also interested in bar work, which would require her to complete a short bar course, at an estimated cost of $90.

In my view, Brooke has some earning capacity.

(f) Brooke anticipates her financial needs are as follows:

(i)

Cost of accommodation comprised of 12 months rent, furnishing a flat:

$ 30,000

(ii)

Motor vehicle including on road expenses:

$ 25,000

(iii)

Future contingencies:

$ 45,000

Total:

$100,000

(g) Brooke anticipates Harley's financial needs as follows:

(i)

Assistance for education and extracurricular expenses:

$30,000

(ii)

Assistance to purchase a motor vehicle when he obtains licence:

$20,000

(iii)

Future contingencies:

$ 40,000

Total:

$90,000

(h) At his age, Harley does not currently have an earning capacity. However, in the future, he will have.

(i) Michelle has given evidence that she will continue to provide a home and support for Brooke and Harley.

Gwen's financial resources (including earning capacity) and financial needs, both present and future may be summarised as follows (omitting her entitlement under the deceased's Will):

(i) She receives an age pension of $716 per fortnight. She has no other income.

(ii) Until the proceedings are resolved, she can remain living in her mother's Housing Commission flat for which she pays $160.00 rent per fortnight.

(iii) Her expenses total $658 per fortnight.

(iv) She owns a 1996 Nissan Pulsar worth about $2,000.

(v) She has no assets other than savings of $4,631.

(vi) At her age, it is unlikely that she has an earning capacity.

She states:

"I need a home to live in to give me security. I hope to move down to the Greenwell Point property and live there for the rest of my life. I need cash to assist me in paying rates, property expenses and upkeep and maintenance of the home. I also need a new car which I estimate the value would be $30,000. I would also love to have a holiday after I have been looking after my mother and Pep for so many years. I would love to travel to Greece and I would estimate I would need $10,000 for that trip."

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

There is no evidence that Michelle is cohabiting with any person other than Brooke and Harley. I have set out the financial circumstances of each.

Joe-Anne is cohabiting with her husband and four children. Her husband is not working and receives unemployment benefits (said to be $510 per fortnight). On occasions, he works for several days a week as a bricklayer.

As at November 2010, her son, Warren, was working; her son, Christopher, was injured in a motor vehicle accident, and was receiving unemployment benefits; her son, Ryan, was also injured in a motor vehicle accident and was receiving unemployment benefits; whilst her daughter, Kirsty, was in Year 12, and was receiving a Youth Allowance, which was used to fund her educational expenses. None of the adult children pay regular board, although, they are said by Joe-Anne to contribute towards grocery supplies "when they are able".

There is, otherwise, no evidence about the financial circumstances of any of Joe-Anne's children.

(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

Michelle was injured in a motor vehicle accident in December 2007. The medical reports that I have read, the most recent of which are dated mid-2009, reveal that she sustained multiple bruising, that she had pain in her neck and right shoulder, which had resolved, and that her ongoing problem was ongoing pain in the lumbar spine. Her prognosis was then "uncertain". She appears to have Adjustment Disorder with Mixed Anxiety and Depressed Mood.

Brooke's medical records, also dated in mid-2009, reveal that she, too, was injured in the same motor vehicle accident. She had neck pain, but that settled, leaving her with headaches on a daily basis and some dizziness. Her prognosis was then also "uncertain". She was described as suffering a Major Depressive Disorder and an Adjustment Disorder with Anxiety.

Brooke also says that she suffers Attention Deficit Hyperactivity Disorder and chronic asthma.

Harley was injured in the same motor vehicle accident. His medical records, also from mid-2009, reveal that he had some generalised bruising with continued anxiety said to be due to post-anxiety stress. He has been described as suffering Separation Anxiety and Major Depressive Disorder. It is said that he, too, suffers from Attention Deficit Hyperactivity Disorder.

Michelle says that Harley is doing well at school although he does need assistance by tutoring. She admits that, for various reasons, he missed a lot of school.

Joe-Anne gives no evidence of any physical, intellectual or mental disability. However, she states that her husband suffers from chronic obstructive pulmonary disease, severe osteoporosis, wedge fractures of the thoracic spine, and recurrent pneumonia with hospital admissions. In addition, he suffered a work injury in 2008. He has been medically unfit to work since February 2008 (although he does work, on occasions, as a bricklayer).

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

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

Michelle was born in April 1970. She is aged 41 years.

Joe-Anne was born in February 1967. She is aged 44 years.

Brooke was born in October 1991. She is aged almost 20 years.

Harley was born in March 1999. He is aged 12 years.

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

None of the Plaintiffs assert any financial contributions to the acquisition of the estate of the deceased. Michelle, however, asserts that during the period that she lived in No 69, she paid $30 per week for each of the council rates and taxes and $30 per week for other outgoings. If made, these payments were not made for very long.

Michelle also asserts that upon her return to NSW in 2001, she assisted the deceased in his business, Liverpool Crane Services, by attending to all paperwork and banking. She also wrote down jobs, provided invoices and attended to other secretarial duties.

I have earlier referred to the assistance provided by Michelle to the welfare of the deceased. In addition, it must have been of some comfort to him to know that she and the children were living next door, and, after he moved to Greenwell Point, not very far away.

There is nothing to suggest that Joe-Anne made any contribution to the welfare of the deceased in the last 18 years of his life. Any contribution appears to have been limited to the assistance provided by her husband, to the construction of the Greenwell Point property, for which assistance, he was paid very little (estimated by her to have been $300 - $400).

Brooke's and Harley's contribution, if any, could only be to the welfare of the deceased. There is simply no evidence of that contribution, other than Michelle stating that Brooke did assist the deceased with some household tasks. No doubt, their presence, with their mother, would have provided some comfort to the deceased.

It has not been submitted that Gwen made any financial contributions to the acquisition of the estate of the deceased. I am satisfied, however, that Gwen made a significant contribution to the maintenance of No 67 and the Greenwell Point properties and to the welfare of the deceased from about 1991, until she moved out of the deceased's home in about 2003. Even though they did not continue to live together, and despite the fact that Gwen was caring for her elderly mother, she still found the time, and made the effort, to assist the deceased. Her contribution to his welfare, in this regard, was significant.

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

I have referred to the provision made for Michelle and Joe-Anne in the Will of the deceased.

I have earlier dealt with the occasions that Michelle lived in one, or other, of No 67 or No 69 and the provision of accommodation for her and her children for many years.

Upon her return from Queensland in about May 1991, Michelle enrolled herself in a TAFE course studying finance, computers and GST, with a view to obtaining secretary qualifications. The deceased paid for her enrolment, textbooks, and stationery.

There is evidence that the deceased attended with Michelle to obtain the credit card (to which reference has been made earlier), to assist her with the take-away business she ran, with Brooke, between 2006 and 2007.

Michelle gives evidence of receiving from the deceased, the rent that he was obtaining from No 69 after she moved to Nowra. There is no evidence of how much, or for how long, she received that rent. She states that the period during which she received $250 per week was between 12 November 2008 and the date of the deceased's death. She also admits that she received $2,000 from the deceased in 2009.

There is no suggestion that any financial provision was made during his lifetime for Joe-Anne. He is said to have given her and her husband $300 for the assistance provided in the construction of the Greenwell Point property.

There is no suggestion that any financial provision was made during his lifetime for either Brooke or Harley. In the events that have happened, neither receives any provision out of the deceased's estate, although I note that, as grandchildren, they formed part of the class of substitutionary beneficiaries in the event that Gwen did not survive the deceased and each attained the age of 18 years.

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

The only direct evidence of the deceased's testamentary intentions is contained in the Will the subject of the grant of Probate. However, in the judgment of Windeyer J, there is a reference to the deceased saying that he and his wife "agreed to make mutual wills and that he intends to abide by that agreement". However, his Honour "was not at all sure that there was a binding agreement to make a will and leave it unrevoked".

There is evidence from Mr Smith that in 2006, the deceased told him that he had made another Will. However, the contents of that Will, other than referring to Michelle being well provided for, were not disclosed.

I have earlier referred to Joe-Anne's evidence about the terms of another Will. I do not accept her evidence on this topic.

Brooke states that when she went to visit the deceased, in hospital, shortly before his death, he said that she could have his motorcycle and a short time later, on the drive home from the hospital, that Harley could have his boat.

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

There is no evidence that the deceased maintained any of the Plaintiffs, either wholly, or partly, at the date of his death. I have referred to the evidence that does not support Michelle's evidence that she was receiving the rent from No 69. I have also referred to Michelle, Brooke and Harley living in No 69.

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

Apart from the Commonwealth government's responsibility to continue to provide each of the Plaintiffs with a pension or other allowances, there is no other person with a liability to support her or him.

Michelle, as a parent of Harley, does have a legal obligation to support him, as does his father. However, the evidence discloses that there is no contact between Harley and his father, and no financial assistance is provided.

Joe-Anne's husband, whilst being unemployed, does contribute towards household expenses.

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

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

I have referred to the fact that each of Michelle and Joe-Anne has served a term of imprisonment. I have also referred to Michelle's drug taking (which type of conduct the deceased found reprehensible).

I have also referred to the conduct of each towards the deceased.

There is no conduct of Brooke or Harley that is relevant. It is unsurprising that there were occasions when grandfather and grandchild did not agree.

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

Gwen's conduct is relevant and I have described her conduct, particularly towards the deceased, previously. The deceased appears to have had every reason to make provision of the type that he did for her, bearing in mind their relationship.

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

This is not relevant in the present case.

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

That Joe-Anne received some provision out of the estate of her mother, whilst Michelle did not is a relevant matter to be considered. Whilst Joe-Anne had a statutory right to make a claim, the fact that she did, and that it was successful, did mean that it reduced the deceased's estate by the total amount of the lump sum and costs that were ordered to be paid.

It was submitted that Michelle was entitled to a share of her mother's estate. As set out above, she was only entitled if the deceased did not survive his wife.

Following the deceased's death, Michelle, Brooke and Harley moved into the Greenwell Point property, did not pay any occupation fee, and then refused to leave. Ultimately, however, they did leave.

Determination

Eligibility and Factors Warranting the making of the Application

Michelle and Joe-Anne, as a daughter of the deceased, is each an eligible person under s 57(1)(c) of the Act. As such, she does not have to establish factors warranting the making of her application.

There is no dispute that the proceedings of each of them were commenced within the time prescribed by the Act.

There is no dispute that each of Brooke and Harley is a grandchild of the deceased. However, each also has to establish that she and he was wholly or partly dependent on him as well, in order to establish eligibility.

I am not satisfied that either Brooke or Harley was wholly, or partly, dependant upon the deceased. To the contrary, the evidence reveals that they were, at all relevant times, when they lived in No 67 (for about 2 weeks) or in No 69, wholly dependent upon Michelle. It was she who was their sole caregiver and the person who had the sole responsibility for their maintenance, care and support.

I do not accept the submission that the deceased was in loco parentis to each of them. There is no evidence that they ever lived with the deceased without Michelle, or that the deceased did anything that would demonstrate that he took on such a role.

In my view, the dependence of each upon the deceased was not direct or immediate; it was the indirect result of the deceased providing assistance for Michelle, his own adult child, and, thereby, incidentally benefiting Brooke and Harley who were directly dependent on her.

Nor is there any evidence that the deceased made any gifts or provided any benefits of such regularity and significance that one can say that he had clearly assumed a continuing and substantial responsibility for their support and welfare. Apart from an amount of money to assist Brooke to purchase a second hand car, there is no evidence that the deceased provided any money to either of them.

Even if I were satisfied that there was a personal relationship and emotional bond between them, it seems to me that it was no more than is appropriate to any grandparent and grandchild. There is simply no evidence to suggest a closer bond between either and the deceased.

Having reached the conclusion that Brooke and Harley are not eligible persons, their Summons must be dismissed. However, in case I am wrong, I shall consider whether there are any factors which warrant the making of their application.

I am not satisfied that there are factors that warrant the making of the application. In this regard, I have not forgotten Clause 8 of the deceased's Will, which provided, in the event that Gwen did not survive the deceased, or if she died within 60 days of his death, for the residue of the estate to pass "to my surviving grandchildren in equal shares as tenants in common and to be held in trust until they attain the age of 18 years".

Importantly, the substitutionary gift in Clause 8 is to the class of grandchildren of the deceased, not just to Brooke and/or Harley. As stated earlier, none of Joe-Anne's children had any relationship with the deceased. Accordingly, it does not seem that the deceased, himself, considered that Brooke and/or Harley had any relationship with him that extended beyond what might be considered a normal grandparent/grandchild relationship.

For this reason also, their Summons must be dismissed. However, in case I am in error, and the matter goes further, I shall deal with the questions whether the Court can make an order under the Act, and if so, whether it should do so.

In respect of the claim by Michelle and Joe-Anne, as the proceedings by each were commenced within the time prescribed by the Act, the first question for determination is whether, at the time when the court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made, has not been made, by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both.

Turning firstly to Michelle, she receives a devise of No 67 under the Will of the deceased. It has a value of $330,000. If the amount owing to the estate by her is repaid ($40,890), she would receive $289,110. Assuming some costs and expenses of sale, she is likely to receive about $280,000. Excluding costs, this is almost 25 per cent of the value of the deceased's gross estate.

Even after the payment of her other liabilities, she will have almost $250,000 available to her. That amount will provide her with a capital sum for exigencies of life, and should not reduce her Centrelink benefits. It will also provide her with some supplement to her income.

There is no evidence to suggest that the housing accommodation currently provided to her is not secure (the lease is for another 7 or 8 years). There is also no evidence that the same, or alternative, housing would not then be available to her. In any event, it has not been suggested that her current housing is in any way inadequate.

I am satisfied, in those circumstances, that the deceased did make adequate and proper provision for Michelle. In the circumstances, that conclusion will result in the dismissal of Michelle's proceedings.

However, even if I were wrong, I would not, as a matter of discretion, make an order in favour of Michelle. In submissions, all parties agreed that the person to whom the deceased owed the principal obligation was to Gwen. Her financial and material circumstances must be considered also. Doing so, I am of the view that the terms of the deceased's Will, so far as it relates to Michelle and Gwen reflect a consideration of the comparable obligations owed to each by the deceased. His testamentary freedom should not be interfered with to make greater provision for Michelle.

I have tested my conclusion in another way. Had no provision been made for Michelle in the deceased's Will, bearing in mind all of the circumstances of the case, including the size of the estate, would she be likely to receive provision out of the estate greater than about $330,000? In my view, the answer to this question is in the negative.

Subject to the Court's view of the relationship of the deceased and Joe-Anne, it was accepted that her financial and material circumstances were such that the Court could find that inadequate provision had been made for Joe-Anne. In the light of my conclusion that there was not a complete breakdown of their relationship, and that she did have some contact with the deceased following the claim by her in respect of Betsey-Anne's estate, I have come to the conclusion that adequate provision in the deceased's Will was not made for her.

Then, I must consider whether an order should be made, and if so, the nature of that order. I am of the view that an order should be made. The provision should be in lieu of the provision made in the Will, and she should receive a lump sum of $100,000. This will provide her with a capital sum for exigencies of life, as well as providing her with some additional income.

Again, when one considers the provision made for Michelle and for Gwen, this seems proper in all the circumstances.

Had I found that Brooke and Harley was each an eligible person and that each had established factors warranting the making of her, and his, application, I would have found that some modest provision should be made for each. The amount of the provision would have been $30,000 for each of Brooke and Harley. However, in the circumstances, I cannot make an order in her, and his, favour.

Thus, leaving aside the costs of the proceedings, Michelle receives a property with a value of $330,000 (from which she should repay the estate $40,890), Joe-Anne will receive, by way of provision, a lump sum of $100,000, and Gwen will receive the residue of the estate. The burden of costs may reduce the amount that Gwen receives.

I make the following orders:

(i) The proceedings commenced by Michelle Tramantana are dismissed.

(ii) Having found that the Plaintiff, Joe-Anne Clarke, is an eligible person, and that the provision made for her in the Will of the deceased is inadequate, order that she receive, in lieu of that provision, a lump sum of $100,000, the burden of which provision shall be borne out of residue of the estate of the deceased.

(iii) No interest 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 the Probate and Administration Act 1898, on unpaid legacies, be paid from that date until the date of payment;

(iv) Having found that the Plaintiff, Brooke Anne Midson, and the Plaintiff, Harley Midson, is each not an eligible person within the meaning of the Act, and also that there are no factors warranting the making of her, and his, application, the proceedings commenced by each is dismissed.

(v) Reserve the question of costs for further argument if the parties are unable to reach agreement on costs and stand the matter over to a date to be agreed.

**********

Amendments

28 October 2011 - restored missing paragraphs

Amended paragraphs: 254 - 317

Decision last updated: 28 October 2011

[2011] NSWSC 1129

20 October 2011

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Succession Law

Family Provision Order

Trusts & Equity

Equitable Estoppel

Medium Neutral Citation:	Tramantana v Harborne; Clarke v Harborne; Midson v Harborne [2011] NSWSC 1129
Hearing dates:	19, 20 & 21 September 2011
Decision date:	20 October 2011
Jurisdiction:	Equity Division
Before:	Hallen AsJ
Decision:	(i) The proceedings commenced by Michelle Tramantana are dismissed. (ii) Having found that the Plaintiff, Joe-Anne Clarke, is an eligible person, and that the provision made for her in the Will of the deceased is inadequate, order that she receive, in lieu of that provision, a lump sum of $100,000, the burden of which provision shall be paid out of residue of the estate; (iii) 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 the Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment; (iv) Having found that the Plaintiff, Brooke Anne Midson, and the Plaintiff, Harley Midson, is each not an eligible person within the meaning of the Act, and also that there are no factors warranting the making of her, and his, application, the proceedings commenced by each is dismissed. (v) Reserve question of costs for further argument and stand the matter over to a date to be agreed.
Catchwords:	Three different proceedings, each a claim for a family provision order - Two applications are by daughters of deceased - Third application by two grandchildren of deceased - Defendants are executor named in Will of deceased, to whom Probate was granted, and the person said to be the de facto partner of the deceased at the date of his death - Additional issue in the proceedings brought by one Plaintiff relates to whether one of the properties, owned by the deceased, is held in trust for her.
Legislation Cited:	Civil Liability Act 2002 Family Provision Act 1982 Probate and Administration Act 1898 Property (Relationships) Act 1984 Succession Act 2006 Succession Amendment (Family Provision) Act 2008
Cases Cited:	Amaca Pty Ltd v Novek [2009] NSWCA 50 Blore v Lang (1960) 104 CLR 124 Bondelmonte v Blanckensee [1989] WAR 305 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Brown v Faggoter [1998] NSWCA 44 Churton v Christian (1988) 13 NSWLR 241 Collins v McGain [2003] NSWCA 190 Como v Helmers [2011] WASC 179 Cooper v Dungan (1976) 50 ALJR 539 Delaforce v Simpson-Cook [2010] NSWCA 84 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54 Donis v Donis [2007] VSCA 89 Evans v Levy [2011] NSWCA 125 Foley v Ellis [2008] NSWCA 288 Ford v Simes [2009] NSWCA 351 Fulop Deceased, Re (1987) 8 NSWLR 679 Galaxidis v Galaxidis [2004] NSWCA 111 Giumelli v Giumelli (1996) 196 CLR 101 Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Hampson v Hampson [2010] NSWCA 359 Hawkins v Prestage (1989) 1 WAR 37 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 Hunter v Hunter (1987) 8 NSWLR 573 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Dec) v Lathwell [2008] WASCA 256 MacEwan Shaw v Shaw [2003] VSC 318 McCosker v McCosker (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 Mayfield v Lloyd-Williams [2004] NSWSC 419 O'Dea v O'Dea [2005] NSWSC 46 Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 Pascoe v Turner [1979] 1 WLR 431 Penfold v Perpetual Trustee [2002] NSWSC 648 Permanent Trustee Company v Fraser (1995) 36 NSWLR 24 Petrohilos v Hunter (1991) 25 NSWLR 343 Plimmer v Mayor of Wellington (1884) 9 AC 699 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Porthouse v Bridge [2007] NSWSC 686 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100 Sayer v Sayer [1999] NSWCA 340 Simons v Permanent Trustee Co Ltd: Estate D Hakim [2005] NSWSC 223 Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Skinner v Frappell [2008] NSWCA 296 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Sullivan v Sullivan [2006] NSWCA 312 Taylor v Farrugia [2009] NSWSC 801 Tsivinsky v Tsivinsky [1991] NSWCA 269 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported) Zahra v Francica [2009] NSWSC 1206
Category:	Principal judgment
Parties:	Michelle Tramantana (Plaintiff in 2010/309744) Joe-Anne Clarke (Plaintiff in 2010/383588) Brooke Anne Midson (First Plaintiff in 2010/391072) Harley Midson (by his tutor Brooke Anne Midson) (Second Plaintiff in 2010/391072) Roger Harborne executor of the Estate of the late Joseph Tramantana (First Defendant) Gwen Hancock (Second Defendant)
Representation:	Mr M B Evans (Plaintiff in 2010/309744) Mr N Bilinsky (Plaintiff in 2010/383588) Mr K Morrissey (Plaintiff in 2010/391072) Ms E Glover (first and second Defendants) in each matter Brydens (Plaintiff in 2010/309744) Marriott Oliver (Plaintiff in 2010/383588) Breens Solicitors (Plaintiff in 2010/391072) RMB Legal (first Defendant) Marsdens (second Defendant)
File Number(s):	2010/309744; 2010/383588; 2010/391072

(i)	Cost of accommodation comprised of 12 months rent, furnishing a flat:	$ 30,000
(ii)	Motor vehicle including on road expenses:	$ 25,000
(iii)	Future contingencies:	$ 45,000
Total:	$100,000

(i)	Assistance for education and extracurricular expenses:	$30,000
(ii)	Assistance to purchase a motor vehicle when he obtains licence:	$20,000
(iii)	Future contingencies:	$ 40,000
Total:	$90,000