Wheat v Wisbey - [2013] NSWSC 537

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Wheat v Wisbey [2013] NSWSC 537
Hearing dates: 19 & 20 March 2013
Decision date: 13 May 2013
Jurisdiction: Equity Division
Before: Hallen J
Decision:
(i) Having found that each Plaintiff is an eligible person, and that adequate provision for her proper maintenance or advancement in life has not been made for her in the Will of the deceased, order that the Plaintiff, Cheryl Ann Kennedy, receive a lump sum of $50,000; the Plaintiff, Dianne Patricia Doherty, receive a lump sum of $40,000; and the Plaintiff, Lorraine Kathleen Meharg, receive a lump sum of $35,000 out of property designated as notional estate of the deceased unless otherwise paid by the Defendant, Faye Anderson Wisbey.
(ii) Being satisfied that the deceased's actual estate is insufficient for the making of the family provision orders, and the costs orders, that should be made, the burden of the provision made for each Plaintiff, any interest thereon, and the costs, should be borne out of property designated as notional estate of the deceased unless otherwise paid by the Defendant.
(iii) Order that the Defendant pay each of the lump sums and pay or provide security for the Plaintiffs' costs within 28 days, failing which consideration is reserved to any party to apply for an order designating property held by the Defendant for the purposes of satisfying the family provision orders made any interest thereon, and for satisfying the orders for costs of proceedings.
(iv) Order that no interest is to be paid on each lump sum, if that lump sum is paid within 28 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment of the lump sum.
(v) Order that the Defendant pay the costs of the Plaintiffs, calculated on the ordinary basis, and her own costs calculated on the indemnity basis out of the notional estate of the deceased unless otherwise paid by her.
(vi) Order pursuant to s 72 of the Succession Act 2006 that each family provision order not take effect as if the provision was made in a codicil to the will of the deceased.
(v) Order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the costs of the proceedings.

Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiffs, daughters of the deceased, each applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant is the widow of the deceased - Deceased left Will but no application for administration made at date of hearing - Whether grant of administration is necessary in order to deal with application - Whether adequate and proper provision not made in Will of the deceased for each Plaintiff and if so the nature and quantum of the provision to be made.
Legislation Cited: Civil Procedure Act 2005
Family Provision Act 1982
Probate and Administration Act 1898
Property (Relationships) Act 1984
Succession Amendment (Family Provision) Act 2008
Succession Act 1981 (Qld)
Succession Act 2006
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Allardice v Allardice, In re Allardice, (1910) 29 NZLR 959
Andrew v Andrew [2012] NSWSCA 308
Bartlett v Coomber [2008] NSWCA 100
Blore v Lang (1960) 104 CLR 124
Bondelmonte v Blanckensee [1989] WAR 305
Borebor v Keane [2013] VSC 35
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bowyer v Wood [2007] SASC 327; (2007) 99 SASR 190
Buckland Deceased, Re [1966] VR 404
Butcher v Craig [2009] WASC 164
Cassel, Re Estate [2000] NSWSC 294
Christie v Manera [2006] WASC 287
Collins v McGain [2003] NSWCA 190
Commissioner of Stamp Duties (Q'land) v Livingston [1964] UKPCHCA 2; (1964) 112 CLR 12
Cooper v Dungan (1976) 50 ALJR 539
Crossman v Riedel [2004] ACTSC 127
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Estate Harriett Cassel, Re [2000] NSWSC 294
Flathaug v Weaver [2003] NZFLR 730
Foley v Ellis [2008] NSWSC 288
Franks v Franks [2013] NSWCA 60
Gardiner v Gardiner (NSWSC, 28 May 1998, unreported)
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Harris, In Re (1936) 5 SASR 497
Hawkins v Prestage (1989) 1 WAR 37
Hitchcock v Pratt [2010] NSWSC 1508
Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Hyland v Burbidge [2000] NSWSC 12
Kay v Archbold [2008] NSWSC 254
Keep v Bourke [2012] NSWCA 64
Kembrey v Cuskelly [2008] NSWSC 262
Kleinig v Neal (No. 2) [1981] 2 NSWLR 532
McLeod v Johns (1981) 1 NSWLR 347
McCosker v McCosker (1957) 97 CLR 566
McGrath v Eves [2005] NSWSC 1006
McKenzie v Topp [2004] VSC 90
MacGregor v MacGregor [2003] WASC 169
Marks v Marks [2003] WASCA 297
Mayfield v Lloyd-Williams [2004] NSWSC 419
Official Receiver in Bankruptcy v Schultz [1990] HCA 45; (1990) 170 CLR 306
Oldereid v Chan [2013] NSWSC 434
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Puckridge, Deceased, In the Estate of (1978) 20 SASR 72
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Slack v Rogan; Palffy v Rogan [2013] NSWSC 522
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stiles v Joseph (NSWSC, 16 December 1996, unreported)
Stott v Cook (1960) 33 ALJR 447
Szypica v O'Beirne [2013] NSWSC 297
Taylor v Farrugia [2009] NSWSC 801
Union-Fidelity Trustee Co of Australia Ltd v Montgomery (1976) 1 NSWLR 134
Verzar v Verzar [2012] NSWSC 1380
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (NSWSC, 17 May 1996, unreported)
Worladge v Doddridge (1957) 97 CLR 1
Category: Principal judgment
Parties: Lynette Gail Wheat (first Plaintiff)
Cheryl Ann Kennedy (second Plaintiff)
Lorraine Kathleen Meharg (third Plaintiff)
Dianne Patricia Doherty (fourth Plaintiff)
Faye Anderson Wisbey (Defendant)
Representation: Counsel:
Mr J Loxton (Plaintiffs)
Mr M Bradford; Ms A Poljak (Defendant)
Solicitors:
Gamble Law & Estate Planning (Plaintiffs)
Lindsay Brien Solicitor (Defendant)

File Number(s): 2012/124617

Judgment

HIS HONOUR: These reasons relate to proceedings, in which a claim for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act") was made, initially, by four children, Cheryl Ann Kennedy, Dianne Patricia Doherty, Lorraine Kathleen Meharg and Lynette Gail Wheat, out of the estate of their father, Raymond Joseph Wisbey ("the deceased"). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision 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.

The Plaintiffs' Summons was filed on 19 April 2012, that is, within the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased). The Defendant named in the Summons is Faye Anderson Wisbey, the widow of the deceased and the executrix named in his Will. There was no dispute that she was the proper Defendant in the proceedings.

Without any undue familiarity, or disrespect intended, and for convenience, I shall refer to the parties either by the role each plays in the proceedings or by her first name. I shall refer to other family members, after introduction, by her, or his, first name.

In October 2012, Lynette, the first Plaintiff, discontinued her claim on terms that did not involve an adverse costs order. She has played no further part in the proceedings.

At the commencement of the hearing, it having been observed, at the pre-trial directions hearing, that there had been no grant of administration, and in the Defendant's submissions, that the Plaintiffs had not sought to designate any property as notional estate, the Plaintiffs sought leave to file an amended Summons to add the following additional relief:

"2 An order pursuant to s 63 of the Act designating as notional property of the said deceased the property identified in paragraph 5 of the defendant's affidavit made 20 June 2012.

3 An order pursuant to s 91 of the Act granting administration of the Estate of the late Raymond Joseph Wisbey deceased to the plaintiffs."

Without objection, I granted leave to the Plaintiffs to file the Amended Summons and the case has proceeded upon the basis of the relief sought in that document.

Background Facts

The following facts are uncontroversial and provide a useful background.

The deceased died on 25 April 2011 aged 79 years.

The deceased was married to the mother of the Plaintiffs, Beryl Hughes, in about 1952, and they were divorced in 1978. (There was a property settlement between them but its precise nature was the subject of dispute.)

For most of the time that he was married to Beryl, the deceased worked as a manager for Caltex Oil in Wollongong. Shortly before their separation and then divorce, they moved from Wollongong to Shoalhaven Heads so that the deceased could pursue his interest in training pacers. It was the deceased and his brother, Barry Wisbey, who originally bought, and trained, "Koala King", a champion pacing horse of the 1970s and 1980s.

Faye was born in about 1944 and is currently about 68 years of age. Before she moved to the Shoalhaven area and married the deceased, she grew up and lived in Victoria. She described herself, prior to her marriage to the deceased, as "a woman of independent means".

The deceased married Faye in August 1978 and they remained married at the date of his death. Thus, their marriage was of almost 33 years duration. There were two children of their marriage, namely Lisa Fitzpatrick and Nicole Wisbey. Lisa was born in March 1979 and Nicole was born in April 1980.

After his marriage to Faye, the deceased continued with his career as a trainer. In 1980 "Koala King" won the feature pacer race, the Inter Dominion Pacing Championship.

The deceased left a Will made on 12 August 1993. Faye was the executrix appointed, and was the universal legatee named, in that Will. However, in the event that she did not survive him, the deceased left a pecuniary legacy of $20,000 to each of Cheryl, Dianne, Lorraine and Lynette, and divided the remainder of his estate between Lisa, Mitchell and Nicole, if each survived and attained the age of 21 years. (Mitchell Watson is Faye's son by a prior marriage, and is the stepson of the deceased. He did not play any part in the proceedings.)

Faye has not sought, or obtained, a grant of Probate in common form of the deceased's Will to give effect to her appointment as the sole executrix of the deceased's estate. She stated that she did not do so, "as he did not leave any assets requiring formal administration of his estate" and because, to the best of her knowledge and belief, "the deceased did not hold assets in his sole name at the date of his death".

The parties agreed that at the date of his death, the deceased and Faye held real estate at Far Meadow (near Berry, New South Wales), as joint tenants, which passed, by survivorship, to Faye following the death of the deceased. It was said to have a total value of $1,200,000 at the date of death. In addition, there was a jointly held bank account, in which there was $700,000 at the date of death. (Sensibly, the parties ignored the personal effects of the deceased for the purposes of the case.)

The property at Far Meadow is a small rural holding on which is constructed a pacer training track and horse stables. The deceased and Faye lived there for some years prior to his death and Faye continues to live there.

There were liabilities of the estate at the date of death, including council and water rates, utilities, medical accounts and funeral and associated expenses. Only the funeral and associated expenses, totalling approximately $10,000, were disclosed in evidence. Faye has paid all of the debts, funeral and associated expenses.

At the hearing, the parties agreed that the current value of the real estate was $1,305,000 and that the jointly held cash was $650,000. They also agreed, in the event that provision was to be made for any of the Plaintiffs, that property with a value of about $977,500 could be designated as notional estate. However, before any property was designated as notional estate, they agreed that Faye should be given an opportunity to satisfy the burden of any provision ordered by the Court to be made. That was a commendable approach that saved time at the hearing, since it was unnecessary to make submissions on the issue of notional estate, and has saved time in producing these reasons, since it is unnecessary to refer to the notional estate provisions of the Act.

In calculating the value of the notional estate, finally available for distribution, the costs of the proceedings should be considered, since the Plaintiffs, if successful, normally, will be entitled to an order that their costs be paid out of the estate, or notional estate, of the deceased, whilst the Defendant, as executrix, irrespective of the outcome of the proceedings, normally, will be entitled to an order that her costs be paid out of the estate or notional estate.

Their solicitor, Mr Michael Gamble, estimated the Plaintiffs' costs and disbursements of the proceedings, including counsel's fees, calculated on the ordinary basis, to be about $40,000 (inclusive of GST and upon the basis of a two day hearing).

Her solicitor, Mr Lindsay Brien, has estimated the Defendant's costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis, to be about $38,000 (inclusive of GST and upon the basis of a two day hearing).

It follows that from the gross value of the notional estate (say $977,500), the total amount of $78,000 may be payable for the parties' costs, leaving a net value of notional estate, available for distribution, of about $900,000. Excluding the estimated value of the deceased's interest in the real estate at Far Meadow ($652,500), the amount of $247,500, in cash, is available to satisfy any family provision orders.

The parties agreed that in the event that the Plaintiffs were successful, the usual costs orders should be made, although if all of the Plaintiffs' claims were dismissed, the Defendant wishes to be heard on costs.

(I should mention that it was refreshing to see estimates of costs and disbursements that appeared reasonable. The parties, and their legal representatives, for that reason, and otherwise, should be commended for the way in which the case was conducted.)

The only persons described as eligible persons, within the meaning of the Act, are the Plaintiffs, the Defendant, Beryl, and Lisa, Mitchell and Nicole. Lisa, Mitchell and Nicole do not wish to seek an order under the Act which would reduce the entitlement of Faye, their mother. Beryl is a witness in the proceedings and she has not made a claim.

The Statutory Scheme - The Act

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

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

Administration of the Estate - requirement for grant of administration

As has been noted above, there has been no grant of administration in respect of the deceased's estate. Of course, since there was no real and personal estate which the deceased died seised or possessed of, or entitled to, in New South Wales, at the date of death (because all property of the deceased was jointly held and passed to Faye by survivorship), a grant of administration of the deceased's Will was not necessary in order to have property of the deceased vest in the executor: s 44 Probate and Administration Act 1898.

However, a preliminary question, namely whether it is necessary for there to be a grant of administration in this estate, before the Plaintiff's application can be dealt with, has been raised, so I shall deal with it.

Section 59 of the Act simply states that the Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person upon being satisfied of certain things to which I shall turn later in these reasons. For present purposes, it need only be said that there is no requirement, in s 59, that a grant of administration is a pre-condition of the power to make an order.

In s 3 of the Act, "deceased person" is defined as "including any person in respect of whose estate administration has been granted". The use of the word "including", suggests that the phrase is not limited to only such a person. In this regard, the Act differs from the former Act, which, in s 7, specifically referred to "a deceased person in respect of whom administration has been granted". This wording in the former Act meant that the Court had no power to make an order under the section unless and until there had been a grant of administration.

"Estate" is not defined in the Act, although under s 6 of the former Act, it was defined "in relation to a person dying leaving a will, includes property which would, on a grant of probate of the will, vest in the executor of the will or, on a grant of administration with the will annexed, vest in the administrator appointed under that grant". There is no reason to think that the definition would not be equally applicable to the Act.

"Notional estate" of a deceased person is defined in s 3 of the Act to mean property designated by a notional estate order as notional estate of the deceased person. "Notional estate order" means an order made by the Court under Chapter 3 designating property specified in the order as notional estate of a deceased person. A person's rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.

Section 55 of the Act sets out the circumstances in which "administration is granted in respect of the estate of a deceased person". In s 3 of the Act, "administration" is defined by reference to s 55 of the Act. That section provides in sub-s (1), that "administration" is granted in respect of the estate of a deceased person in certain specified events including where "probate of the will of the deceased person is granted in New South Wales or granted outside New South Wales but sealed in accordance with section 107(1) of the Probate and Administration Act 1898" or where "letters of administration of the estate of the deceased person are granted in New South Wales ... whether for general, special or limited purposes".

In Hitchcock v Pratt [2010] NSWSC 1508, Brereton J wrote, at [43]:

"... I would not have dismissed the proceedings on the ground that there was no relevant grant in New South Wales. A grant was not previously a precondition to the institution of proceedings, although one had to be obtained before an order was made [Leue v Reynolds (1986) 4 NSWLR 590]. Under the current legislation, not even that is necessary. And even if it were, a grant under s 91 could be made prior to any family provision order."

Respectfully, I agree that a grant of administration is not required at the time an application for a family provision order is made. Section 58(1) of the Act specifically provides that an application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted (my emphasis). (However, there is a note to s 58(1) that administration may be granted for the purposes of an application for a family provision order under s 91.)

Section 91 of the Act, in fact, provides:

"Grant of probate or administration to enable application to be dealt with

(1) This section applies if an application is made by a person for a family provision order, or notional estate order, in respect of the estate of a deceased person, or deceased transferee, respectively, in relation to which administration has not been granted.

(2) The Court may, if it is satisfied that it is proper to do so, grant administration in respect of the estate of the deceased person or deceased transferee to the applicant for the purposes only of permitting the application concerned to be dealt with, whether or not the deceased person or deceased transferee left property in New South Wales.

(3) The granting of administration under the Probate and Administration Act 1898 does not:

(a) prevent the Court from granting administration under this section, or

(b) unless the Court otherwise orders, affect any previous grant of administration under this section.

(4) The provisions of the Probate and Administration Act 1898 apply to a grant of administration under this section, and to the legal representative of the estate, in the same way as they apply to a grant of administration under that Act and the legal representative of any estate for which such a grant has been made."

Thus, under s 91, the Court may, if it is satisfied that it is proper to do so, grant administration in respect of the estate of the deceased person for the purposes only of permitting the application concerned to be dealt with (my emphasis). The application referred to is for a family provision order or for a notional estate order.

Section 91 does not provide for the making of a grant for the purposes of an application for a family provision order or for a notional estate order before such an application is made.

Importantly, s 91 is different from s 41A of the Probate and Administration Act 1898, which provided for a grant to be made "in order to permit an application to be made under the Family Provision Act 1982".

Thus, it seems to me that the Act differentiates between "when an application is made" (the date of the filing of the Summons) and "when the application ... is dealt with" (the date of making a family provision order or notional estate order, whether by agreement of the parties, or following a contested hearing).

The common prerequisite for the section to apply, at either date, is that there is an estate of a deceased person, or deceased transferee, respectively, in relation to which administration has not been granted.

The use of the word "permitting" in the section, in my view, is important. The word usually means "authorising", "allowing" or "not preventing". What follows in the sub-section avoids the need for there to be real and personal estate which the deceased died seised or possessed of, or entitled to, in New South Wales, a pre-requisite to the Court having jurisdiction to grant administration: s 40 Probate and Administration Act.

The Court is not given any guidance about how to exercise the power in s 91. Not unnaturally, the section does not provide any criteria by reference to which the Court should be satisfied. No requirements are prescribed by the Act to assist the Court to determine if it is proper to grant administration in respect of the estate of the deceased or deceased transferee, to the applicant, solely for the purpose of permitting the application concerned to be dealt with.

Nor is it useful to purport to lay down an exhaustive list of the criteria by reference to which an application ought to be determined. Whether or not the court is satisfied that it would be proper will be fact specific and determined on its own merits.

It seems to me, however, that there are several matters that might be relevant at the time the application under s 91 is being considered, namely: whether a family provision order or notional estate order in favour of the applicant is to be made; whether administration is required to facilitate dealing with the real and personal estate which the deceased dies seised or possessed of or entitled to in New South Wales, or the property the subject of the notional estate order to give effect to the family provision order which is to be made; and whether there is consent of any other party in the proceedings to the making of an order under s 91(2).

Section 91 would be an unnecessary inclusion in the Act if a grant were not required for the purposes of the application that has been made being dealt with. Yet, the discretion given to the Court ("may, if it is satisfied that it is proper to do so") should be noted. The discretion suggests that there may be cases when it would not be proper to do so.

I have considered whether the Court could be satisfied that it would be "proper to do so" if there were only property of the deceased that could be the subject of a notional estate order. There may be such occasions since s 91 applies to both an application for a family provision order or for a notional estate order.

There is one other matter that I consider relevant to the determination of whether a grant of administration is necessary. Section 72 of the Act, relevantly, provides:

"A family provision order takes effect, unless the Court otherwise orders, as if the provision was made:

(a) in a codicil to the will of the deceased person, if the deceased person made a will, or

(b) in a will of the deceased person, if the deceased person died intestate."

Thus, the applicant in favour of whom a family provision order is made, receives that benefit as the result of the creation of rights pursuant to the making of the order. That result is reached because the order takes effect as if it had been made in a codicil to the will of the deceased: also see, Union-Fidelity Trustee Co of Australia Ltd v Montgomery (1976) 1 NSWLR 134, at p 141; McLeod v Johns (1981) 1 NSWLR 347, at p 349.

In addition, as was pointed out in Official Receiver in Bankruptcy v Schultz [1990] HCA 45; (1990) 170 CLR 306, at 315-316 (dealing with s 41 Succession Act 1981 (Qld):

"The wide powers conferred by s 41 and the manner in which sub-s. (10) is expressed strongly suggest that the effect of an order under the section is not to change the benefits to be expected from the right to due administration arising pursuant to the will, but to superimpose upon the duty of due administration a judicial order made pursuant to statute. In other words, a new and independent obligation is created which has an impact upon the way in which the executor administers the estate pursuant to his or her existing duty, by compelling him or her to comply with the terms of the court's order. Each beneficiary's right to due administration is made subject to the terms of the order in the sense that the order governs the executor's actions to the exclusion of any inconsistent direction contained in or derived from the will."

Thus, an applicant who obtains a family provision order has the right to seek orders giving effect to the family provision order against the executor or administrator of the deceased's estate to whom probate or administration has been granted because of the effect of s 72. As a person then beneficially entitled to part of the deceased's estate, he or she does not have a proprietary interest in the property which is the subject of the family provision order but possesses a right to have the estate duly administered: Commissioner of Stamp Duties (Q'land) v Livingston [1964] UKPCHCA 2; (1964) 112 CLR 12; (1965) AC 694.

However, as provided for in s 72, the Court has power to make an order that a family provision order not have the effect set out in (a) and (b) of that section. Thus, in a case where an order under s 91 is not sought or made, but where the holder of property that may be designated as notional estate is a party to the proceedings, the Court would need to make an "otherwise order" under s 72, thereby permitting the Plaintiff to proceed against the holder of property designated as notional estate in the event that the family provision order were not satisfied.

Practically speaking, the issue regarding whether an order under s 91 does not arise very often. The cases where there is only notional estate are reasonably rare. Then, an order is made, for the purposes of the proceedings, that the holder of the property sought to be designated as notional estate is joined as a party to the proceedings. Usually, as in this case, it is the holder of the property sought to be designated as notional estate, who is the contradictor in the proceedings. The executor named in the Will to whom probate or administration has not been granted usually does not play any role in the proceedings although he, she, or it, may be named as a defendant.

Also, usually, as in this case, the property sought to be designated as notional estate agrees to satisfy the family provision order made in favour of the applicant, often without the necessity for a notional estate order being made.

In summary, then, in a case where there is an application for a family provision order in respect of the estate of a deceased person, or deceased transferee, or a notional estate order, in relation to which administration has not been granted:

(a) Where there is real and personal estate of which the deceased person dies seised, or possessed of, or entitled to, in New South Wales, at the date of death, a grant of administration is required before an application for a family provision order can be dealt with and it would be proper to make an order under s 91.

(b) In any other case, where there is no such real or personal estate, if:

(i) the holder of the property the subject of the application for a notional estate order is a party to the proceedings;

(ii) a family provision order and a costs order is made in favour of the applicant;

(iii) a notional estate order is, or may be, made in respect of the property the subject of the application for a notional estate order for the purposes of a family provision order, or for the purposes of an order that the whole, or part, of the costs of proceedings in relation to the estate or notional estate of a deceased person be paid out of the notional estate of the deceased person;

(iv) an order is made that the holder of the property the subject of the notional estate order, or that person agrees, to satisfy the family provision order; and

(v) the court makes an order that the family provision order not take effect as set out in s 72(a) or (b),

then, it may not be "proper" to make a s 91 grant.

In stating my view, there is much to be said for the view expressed by Young J (as his Honour then was) in Re Estate Harriett Cassel [2000] NSWSC 294, although in that case, he was speaking of the former Act:

"[8] The grant under s41A is not a grant entitling the grantor to administer the estate in any way at all. It is a grant purely to get over the barrier that would otherwise prevent an application being made under the Family Provision Act.

[9] Accordingly, what usually occurs in this sort of case is that a grant is made to the plaintiff who is about to bring proceedings under the Family Provision Act. The Court, when hearing those proceedings, then needs to appoint a person to represent the estate under Pt 8 r16, or some other rule under Pt 8.

[10] All this seems rather pointless. A grant is made purely to remove the barrier to the Family Provision Act claim. It does not provide for the administration of the estate, provide authority for anyone to enquire as to the deceased's assets or the identity or wishes of the beneficiaries. It is left to the plaintiff to make a series of applications, (1) to the Probate Court for a grant; and (2) to the Equity Court for directions as to who should be a representative defendant. These costly applications confer no real benefit on anyone. It may well be that s41A should be amended or the Family Provision Act amended so as to permit applications to be made without a grant, provided that the Court is able to appoint a person to represent the estate."

In the present case, since Faye is a party to the proceedings and has agreed to satisfy any family provision order and costs order made in favour of the Plaintiffs, before a notional estate order is made, I do not think it is necessary, and, therefore, it is not proper, to grant administration under s 91 in this case.

(I mention that I have taken the approach, in the conduct of the Family Provision List where I consider it proper to do so, if the parties have agreed on the resolution of the Plaintiff's case, but there is no grant of administration, when an application is made (by the Plaintiff seeking to amend the Summons, or if a grant of administration will, in any event, be applied for, by the Defendant making an application, for administration), to make an order in favour of that applicant under s 91. I have done so with s 56 of the Civil Procedure Act 2005 in mind and bearing in mind the Court's obligation to determine completely and finally all matters in controversy between the parties and to avoid all multiplicity of legal proceedings concerning any of those matters. Also, in such circumstances, I have, generally, dispensed with the requirement to comply with any Rules requiring the filing of a separate Summons and associated matters.)

Eligibility and Inadequacy of Provision

I turn now to the substantive claims.

The key provision is s 59 of the Act. The court must be satisfied, first, that each applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made. Relevantly, one category is "a child of the deceased" (s 57(1)(c) of the Act). Clearly, that language is expressive of the person's status, as well as his, or her, relationship to the deceased. There is no age limit placed on a child making an application.

The Court, if satisfied of each applicant's eligibility, must, in this case, then determine whether adequate provision for the proper maintenance, education, or advancement in life, of that 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)). In this way, it is said that the court carries out a two-stage process. It may take into consideration the matters referred to in s 60(2) of the Act at both stages. (The operation of the intestacy rules is irrelevant to this case.)

Other than by reference to the provision made in the Will of the deceased, or, if relevant, by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for each 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 (by Basten JA) in Foley v Ellis [2008] NSWCA 288, at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J recently described it as "an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific": Szypica v O'Beirne [2013] NSWSC 297, at [40].

Under s 59(1)(c) of the Act, the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the Court is considering the application. Under s 59(2), the Court has regard to the facts known to the Court at the time the order is made.

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

Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement":

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

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

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

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

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

Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16:

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

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

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

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

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

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

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

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

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

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

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, per Buss JA, at [72], [77].

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

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

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 228, Callinan and Heydon JJ said:

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

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

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

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

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

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

Until recently, it was unanimously thought that there are two stages of the determination. The first stage, provided for by s 59(1)(c), has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. The Court does this by determining whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased and/or by operation of the intestacy rules, for the applicant. If it is not so satisfied, then the Court is precluded from making a family provision order.

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

In Collins v McGain Tobias JA said:

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

...

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

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

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

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

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

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

In the event that the court is satisfied that the power to make an order is enlivened (i.e. in this case it is satisfied that the applicant is an eligible person, 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) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the Court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.

However, Basten JA, in Andrew v Andrew [2012] NSWCA 308 said of the two stage process referred to:

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

...

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

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

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

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

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

...

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

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

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

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

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

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

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

...

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

In Franks v Franks [2013] NSWCA 60, Young AJA (with whom McColl JA and Sackville AJA agreed) referred, at [17], to the primary Judge (Macready AsJ) having "cited the High Court's decision in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 and adopted the two stage process required by that decision".

His Honour noted also, at [29], that the appellant (in one of the two appeals) "accepted that it was appropriate for the primary judge to follow the course laid down in Singer v Berghouse and that [the respondent] had surmounted the first hurdle of the two stage process referred to therein. Accordingly, he identified the key question as whether the primary Judge had erred in determining the quantum of the provision made for ... in lieu of that made under the deceased's will".

At [35], his Honour wrote:

"On an appeal against a decision concerning the application of the second limb of Singer v Berghouse, the Court is dealing with a discretionary judgment (see Singer v Berghouse (at 211) and Durham v Durham [2011] NSWCA 62 at [82]; 80 NSWLR 335 (at 352)). It follows that his Honour's decision is reviewable by this Court only in accordance with the principles established in House v The King [1936] HCA 40; 55 CLR 499."

Although the appeal was allowed, that was because the Court found, at [42], that:

"... in formulating the quantum of the provision he made for Brad, the primary judge did not take into account the disparity in the financial circumstances between Gregory and Brad. Accordingly, the primary Judge's decision as to quantum must be set aside."

Nothing in the Court of Appeal's judgment in Franks v Franks suggests that the approach followed by the trial Judge, in adopting the two stage process required by Singer v Berghouse, was wrong.

At first instance, there are a number of decisions to which reference should be made. In Verzar v Verzar [2012] NSWSC 1380, Lindsay J said:

"92 I refrain from characterisation of these elements of the case as "stages" because that is terminology associated with the Family Provision Act 1982 (NSW) and Singer v Berghouse (1994) 181 CLR 201 at 208-211. Since Andrew v Andrew [2012] NSWCA 308 (14 June 2012) per Allsop P at [5]-[6] and Basten JA at [27], [29] and [41] a single judge of the Court is bound, in my assessment, to regard the two-stage decision-making process identified in Singer v Berghouse, and confirmed by Vigolo v Bostin (2005) 221 CLR 191, as superseded by enactment of ss 59-60 of the Succession Act.

93 Although the provisions of ss 59(1)(c) and 59(2) might formerly have been treated, respectively, as re-embodiments of the first and second of the two-stages of decision-making identified in Singer v Berghouse, the test to be applied in Family Provision cases must be taken by me to have been modified."

More recently, Ball J, in Oldereid v Chan [2013] NSWSC 434, after referring to Andrew v Andrew, noted the different approaches being adopted by trial Judges. His Honour said:

"52 More recent decisions at first instance have differed on whether the decision in Andrew v Andrew requires the court to apply a two stage process or not. Lindsay J in Verzar v Verzar [2012] NSWSC 1380 thought that a single judge of the court is bound "to regard the two-stage decision-making process identified in Singer v Berghouse ... as superseded by enactment of ss 59-60 of the Succession Act" (at [92]). Hallen J, on the other hand, has continued to apply the two stage test: see Goldsmith v Goldsmith [2012] NSWSC 1486 at [67]; Nowak v Beska [2013] NSWSC 166 at [113]. A third approach, adopted by Macready AsJ in Morgan v Bohm [2013] NSWSC 145 at [110], is to consider the case on both bases. There are, however, difficulties with that approach. If the two approaches involve real differences, then presumably there are cases where they will produce different results. What, then, is to be done applying both approaches? On the other hand, if the two approaches are bound to produce the same result, the dispute about which test should be applied has no significance.

53 In my opinion, there is clearly a tension between the decisions of the Court of Appeal in Keep v Bourke [2012] NSWCA 64 and Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 which only the Court of Appeal or High Court can resolve. In the meantime, the duty of a trial judge is to follow the later decision: see Ratcliffe v Watters (1969) 89 WN (NSW) Part 1 497 at 505 per Street J. In Andrew v Andrew, both Allsop P and Basten JA regarded the reformulation of the test in s 59 of the Succession Act as changing, perhaps only subtly, the threshold that must be satisfied before an order can be made. Basten JA regarded that change as also changing the way in which the court should approach the question. Allsop P regarded it as an analytical question of little consequence. However it is analysed, though, it is clear from the terms of s 59 that the court must ask itself the question whether it is satisfied that "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made". If it is so satisfied, it must consider whether to make an order and, if so, the terms of that order. In undertaking each of those steps, it may have regard to the matters set out in s 60. Whether those steps should be seen as separate stages that must be followed or as convenient steps in undertaking what is required by the legislation does not matter for present purposes."

It appears that Ball J was not referred to Franks v Franks.

It seems to me, with great respect to those who disagree, that the amendments introduced by the Act do not require, or justify, a different approach. That approach, adopted in the myriad of cases determined under the Act, including Keep v Bourke [2012] NSWCA 64 (in which Macfarlan JA (except as to amount of provision) and Tobias AJA agreed with Barrett JA), and now Franks v Franks (a unanimous decision of the Court of Appeal), requires a trial Judge to continue to follow the two stage approach in determining cases under the Act, until any uncertainty is resolved. Furthermore, as Ball J repeats, the questions remain the same, namely, whether the Court can make an order for provision (whether it is satisfied that "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made"), and if so, whether it should (whether to make an order and, if so, the terms of that order). As Allsop P said, "it may be an analytical question of little consequence".

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew at [37] as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380, at [123], as "a valuable prompt" to which the court may have regard, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order.

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

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

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

There is no definition in the Act of "financial resources" (which term is referred to in s 60(2)(d)). However, there is a definition of that term in s 3 of the Property (Relationships) Act 1984, which I consider helpful:

"'financial resources' ... includes:

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

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

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

(d) any other valuable benefit."

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

Furthermore, consideration of some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, 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 not be relevant to the jurisdictional question to be determined at the first stage. Happily, I am not alone in reaching this conclusion which is supported by the following comments made in Singer v Berghouse, at 209-210:

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

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

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

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

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

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

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

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

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

The order for provision out 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). (As I have written, intestacy is irrelevant in these proceedings.)

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

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 in such manner as the Court thinks fit.

Other Applicable Legal Principles - Substantive Application

Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act.

Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve "an overall 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 to correct 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 testator'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, at 19.

In Stott v Cook (1960) 33 ALJR 447, Taylor J, although dissenting in his determination of the case, observed, at 453-4, that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added:

"There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged."

Also, in Vigolo v Bostin, Gleeson CJ pointed out that the legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour stated, at [10], that it "preserved freedom of testamentary disposition, but subjected that freedom to a new qualification"

White J referred to these principles in Slack v Rogan at [127]:

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

Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, 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: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (NSWSC, Young J, 17 May 1996, unreported); Vigolo v Bostin at 199 and 204; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. How those community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew at [36]; 664.

In all cases under the Act, what is adequate and proper provision is necessarily fact specific.

The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1910) 29 NZLR 959 at 966.

Where the Court is satisfied that provision ought to be made, then it is no answer to a claim for provision under the Act that to make an order would be to defeat the intentions of the deceased identified in the Will. The Act requires, in such circumstances, the deceased's intention in the Will to be displaced: Kembrey v Cuskelly [2008] NSWSC 262, per White J, at [45].

All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singerv Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12 at [56]. Nor does it follow that if the Court decides it is inappropriate to make a specific provision in respect of one identified head of claim that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams, at [89].

The size of the estate or notional estate is a significant consideration in determining an application for provision. However, its size does not justify the Court in rewriting the will in accordance with its own ideas of justice and fairness: Bowyer v Wood [2007] SASC 327; (2007) 99 SASR 190, per Debelle J at [41]; Borebor v Keane [2013] VSC 35 at [67].

In relation to a claim by an adult child, the following principles 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 primary 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, at [58].

(d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland Deceased [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 148; Goodman v Windeyer at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons: Re Buckland Deceased at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams, at [86].

(e) 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) at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37, per Nicholson J at 45.

(f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003) at [179] - [182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164, at [17].

(g) 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, at 149.

(h) Although some may hold the view that equality between children requires that "adequate provision" not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not 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 an applicant's case.

(i) There is no obligation on a parent to equalise distributions made to his or her children so that each child receive benefits on the same scale as the other: Cooper v Dungan at 542.

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

"The measure to be applied is not what has been given to one, but what the other needs for his or her proper maintenance, giving due regard to all the circumstances of the case... 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 instance, where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same."

Relevantly to each Plaintiff's claim, Menzies and Fullagar JJ in Blore v Lang, at 135, also commented, in respect of "a married woman with a healthy husband in satisfactory employment who supports her in reasonable comfort", "her need is not for the bread and butter of life, but for a little of the cheese or jam that a wise and just parent would appreciate should be provided if circumstances permit".

Even more vividly, but to similar effect, is the approach in Worladge v Doddridge (1957) 97 CLR 1 at 12, in which Williams and Fullagar JJ approved the following statement, from In Re Harris (1936) 5 SASR 497 at 501:

"Proper maintenance is (if circumstances permit) something more than a provision to keep the wolf from the door - it should at least be sufficient to keep the wolf from pattering around the house or lurking in some outhouse in the backyard - it should be sufficient to free the mind from any reasonable fear of any insufficiency as age increases and health and strength gradually fail."

I make clear that I do not intend what I have described as "applicable legal principles" to be elevated into rules of law. Nor do I wish to suggest that the jurisdiction should be unduly confined or the discretion at the second stage to be constrained by statements of principle found in dicta in other decisions. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind.

As Lindsay J said in Verzar v Verzar, at [131]:

"Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."

I respectfully agree with the statement of White J in Slack v Rogan, at [126]:

"The question of whether the provision, if any, made for an eligible applicant is adequate for his or her proper maintenance, education or advancement in life is to be assessed having regard to the facts and circumstances of each individual case. The assessment involves a broad evaluative judgment which is not to be constrained by preconceptions and predispositions (Bladwell v Davis). This really means that there are no definite criteria for the exercise of the "evaluative judgment"."

Additional Facts

Next, I set out additional facts that I am satisfied are either not in dispute, or that have been established to my satisfaction by the evidence. I do so by reference to the matters in s 60(2) of the Act to which I may have regard. Where necessary, I shall express the conclusions to which I have come. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar, at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered.

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

Cheryl is a daughter of the deceased. She says that she felt she had a close relationship with the deceased, who she described as "loving" and "generous".

She married her husband, Michael Kennedy, in 1974. She stated that immediately prior to that time she had lived at home with her parents.

She admits that she did not see the deceased as often as she might have wished to after his marriage to Faye and that they mainly kept in touch by telephone. When she did see the deceased, they usually met at the home of his brother, Barry. She says that she would send the deceased birthday, and Christmas, cards.

Dianne was about 17 years old when her parents separated. She was then living at home with them. She describes the family as "happy and close". In cross-examination, she also agreed that the deceased was loving to all of his daughters. She, too, described him as being "generous" to all of them. She never went without anything she needed, but denied that "there were luxuries floating around".

She did not feel that her relationship with the deceased changed after he and Beryl separated, although her relationship with him did change after he married Faye. She did continue to keep in contact with the deceased.

She says that following her leaving school, after completing Year 10, she worked in Wollongong before moving to Melbourne, where she met her husband who she married in 1976. They lived in Melbourne for about 15 years. She says that she kept in contact with the deceased through Barry, and that when she came back to New South Wales, on visits to see her family, she would see the deceased. On occasions, after her return from Victoria, the deceased would visit her.

Lorraine described the deceased as "a good father" and says that she "never felt we wanted for anything".

She admits that she was upset with the deceased when he decided to leave Beryl, but that did not did not cause her to terminate her relationship with him. They, too, met as often as they could and usually at Barry's home.

The Defendant, in submissions, refers to the evidence of each Plaintiff to the effect that they continued to have a relationship with the deceased after his divorce from their mother in 1978. She does not dispute as much, but submits that "the bulk of the evidence, such as it is, does not suggest that any of them were particularly close to the deceased after his marriage to the Defendant". I am satisfied that this is an apt description of the relationship of each Plaintiff and the deceased, after his marriage to Faye, but that may have been because the deceased was living with his second family. The relationship of child and parent, in the case of each Plaintiff, continued until the deceased's death.

(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

There is no definition of the "obligations" or "responsibilities" to which the sub-section refers in the Act. One might conclude, however, that what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities.

Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to any of his children, as adults, imposed upon him by statute or common law.

Yet, an obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child. In Flathaug v Weaver [2003] NZFLR 730, at 737, the origin of the obligation which underpins the Act's recognition of the duty owed by a parent to a child was put in this way:

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

The fact that an applicant was financially independent, for many years, before the deceased's death, is a relevant consideration in determining the extent of any obligation or responsibility owed.

There can be no doubt that an obligation, or responsibility, to make adequate provision for the proper maintenance and advancement in life is usually recognised in the case of a spouse. I consider as relevant, and agree with the view expressed by Nettle JA in McKenzie v Topp [2004] VSC 90, at [58], that "[O]ther things being equal, right thinking members of society are likely to accept that the needs of the widow of a second marriage should rank in priority ahead of the claims of the children of a first marriage". However, ranking in priority does not, mean, necessarily, that the claims of the children of a first marriage are extinguished completely.

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

I have dealt with these matters earlier in these reasons. The value of the notional estate is not extremely large and if one ignores the value of the deceased's interest as a joint tenant in the former matrimonial home, it is extremely modest.

(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

Until June 2012, Cheryl was employed as a stock controller earning about $1,700 per fortnight. Her husband used to undertake general farming jobs in the Goulburn area. She described him earning "pocket money". Now he cares for his 85-year-old mother.

She and her husband own a farm ($600,000), which they hope to sell shortly. It is not mortgaged. It does not produce income. They have two cars ($8,000 and $6,000 respectively), on one of which there was a debt owed of $8,000, which has now been repaid. They have no other debts. They have savings of about $7,600. They have combined superannuation of about $90,000.

Cheryl currently receives a NewStart Allowance of $440 per fortnight. Her husband receives a Carer's pension of $715 per fortnight. Their income is sufficient to meet their outgoings.

They have not found alternative accommodation. One possibility advanced, is that they will move to an area near Moruya and take her husband's mother with them. They will then build a granny flat on any home they purchase. Cheryl does not suggest that the proceeds of sale of the farm will be insufficient to purchase alternate accommodation.

Dianne has worked throughout her life (other than when she had children), but retired in April 2011. She has had to return to work to help boost retirement savings. She currently works casually with the number of hours varying from week to week. She earns about $10,000 per year.

Her husband continues to work and now earns $65,000 to $75,000 per annum. His employment is secure. He intends to keep working as long as health permits. They own their home ($700,000), which is unencumbered. They own two cars ($4,000 and $10,000 respectively). She has superannuation ($15,000) and her husband has superannuation of $190,000. They have savings of about $10,000.

They have some credit card bills which she describes as "manageable" and no other liabilities.

In cross-examination, Dianne gave evidence that her husband's name appears as the registered proprietor of a home unit in Flinders, but that the property really belongs to their youngest son. It was required to be registered in her husband's name because moneys were borrowed to pay out the son's partner. The amount borrowed is $280,000 and it is secured by registered mortgage on the title to that property.

Her husband received about $4,000 per annum from rent, which amount he discloses in his income tax return. The income is used to assist in repaying the mortgage. It equates to about half of the total rent received. (The total amount of rent received is paid into an account in Diane's name and it is from that account the mortgage repayments are made.)

I accept that the evidence given by Dianne about these matters.

Lorraine was married first in 1970 and was subsequently divorced. She remarried in November 1999 and remains married. There were two children of her first marriage.

Lorraine's son died following an asthma attack (at a time not disclosed in the evidence) and she now assists his partner financially, as well as by helping her with their three children. One of the grandchildren is partially deaf and requires an operation to restore his eardrum. Lorraine intends to pay the cost of the operation, which is likely to be more than $10,000.

Lorraine has held a number of jobs as a sales representative but is not working currently. She currently receives a NewStart Allowance of $420 per fortnight and is looking for work.

Her husband retired from his job as a coal miner in December 2010 upon being diagnosed with prostate cancer. He currently receives a disability pension of $580 per fortnight. They have recently sold their home (for $435,000) and, at the date of hearing, have not yet found alternative accommodation. They own a car ($35,000) and a caravan. She has superannuation ($320,000) and her husband has superannuation of $120,000. They have savings of about $4,000. She has a Visa card, the balance of which she usually clears at the end of each month. They have no other debts.

Faye is retired and, as a hobby, breeds and breaks in horses. She has set out her financial resources as follows: the whole of the property at Far Meadow ($1,305,000), all of the savings in a bank account ($650,000), a car ($70,000 - $75,000), three brood mares ($500 each), three foals ($2,000 each) and three yearlings ($2,500 each).

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

I have referred to Cheryl's husband's financial circumstances.

I have referred to Dianne's husband's financial circumstances. Dianne gave oral evidence that her three sons are back living at home. Each works and two of them pay board of $100 per week "occasionally ... not very week". Her sons are aged 26, 24 and 22 years.

I have referred to Lorraine's husband's financial circumstances.

(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

Cheryl is in fairly good health, apart from suffering from high blood pressure. She recently was diagnosed with macular degeneration in one eye.

Dianne is not in good health. She says she suffers from high blood pressure and is on medication. (She says her husband suffers from heart disease and high blood pressure.)

Lorraine was in good health but following the death of one of her children, her health has suffered. She suffers depression although takes medication. She has asthma and high blood pressure.

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

Cheryl was born in January 1953 and is currently aged 60 years.

Lorraine was born in May 1954 and is currently almost 59 years.

Dianne was born in March 1957 and is currently 56 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

There is no suggestion that any of the Plaintiffs made any contribution to the acquisition, conservation and improvement of the estate of the deceased. (I ignore the fact that as young adults, whilst they lived at home, they paid a small amount of board.)

No doubt, however, each contributed to the welfare of the deceased. The nature of the contribution to the welfare of the deceased has been identified above.

There is nothing to lead to the view that the marriage of Faye and the deceased was not a close, loving, and, generally, a harmonious one, in which Faye did all that she could to provide for the happiness and welfare of the deceased. Their relationship appears to have been one of love, affection and mutual dependence and support. Indeed, there were no submissions to the contrary and no cross-examination of Faye to suggest otherwise.

(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

Cheryl says that she never received any financial help as an adult. However, she admits that when her daughter was injured in a horse riding accident in 1993, the deceased offered to assist to pay the medical bills.

Dianne says that she never received any provision from the deceased, but admitted, when asked in cross-examination, she never sought any.

Lorraine says that the only financial assistance she received from the deceased after leaving home was $5,000, which he gave her to assist with her son's funeral expenses. Faye gives evidence, which was not disputed, that she and the deceased also gave Lorraine a further $8,000 to "help her with her grief" and assist her to "get by".

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

There is no evidence of the testamentary intentions of the deceased other than in his last Will to which I have referred. Even then, the provision that was to be made in certain events, for each of the Plaintiffs, was modest.

(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

The deceased did not maintain any of the Plaintiffs, before his death, other than during her childhood.

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

There is no person, other than, perhaps, each Plaintiff's husband, or de facto partner, with a liability to support her.

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

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

I have dealt with the relationship of each Plaintiff and the deceased and her conduct towards the deceased earlier in these reasons.

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

It is necessary to consider the Defendant's conduct also. I am satisfied that she was a loving and dutiful spouse to the deceased. Their marriage was an extremely long one and there was no suggestion that it was not harmonious and loving. There is no conduct after the death of the deceased, which is relevant.

The complaint that each of the Plaintiffs makes about the Defendant and that she makes of each of them, is not uncommon in circumstances of a second, or later, marriage, where there are children of an earlier marriage. Nor is it particularly relevant to the matters I have to decide.

(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

There are no other matters that I consider relevant.

Determination

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

There is also no dispute that the Plaintiffs' proceedings were commenced within the time prescribed by the Act.

Then, the first question for determination is whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life of the Plaintiff has not been made by the Will of the deceased.

I am satisfied, for the purposes of s 59(1)(c) of the Act, that adequate provision for the proper maintenance, education or advancement in life has not been made for each of the Plaintiffs, by the deceased, because the effect of his Will is such that none of them receives anything. Additionally, each has no capital fund for the exigencies of life.

(In relation to Lorraine, I appreciate that she and her husband have reasonably large amounts of superannuation. But, I note, also, that Lorraine is currently not working; that she is 59 years of age, and that she currently suffers from depression.)

Turning then to s 59(2), namely the question what provision "ought to be made for the maintenance, education or advancement in life" of each of the Plaintiffs having regard to the facts known to the Court, the real area of concern is how to deal with the claim of each, whilst bearing in mind the significant competing claim of the Defendant.

Although there were no submissions, in relation to each Plaintiff receiving different provision, this is a case where each should not receive an equal amount by way of lump sum, provision. The financial resources of each are different and this should be reflected in the provision made.

In my view, Cheryl should receive a lump sum of $50,000. Her husband does not work. She and her husband have security of accommodation, two cars (of modest value), a small amount of superannuation and meagre savings. The lump sum will provide a nest egg for Cheryl for the future.

Diane should receive a lump sum of $40,000. She and her husband both work (albeit that her income is modest); they are secure in their accommodation; they have two cars; her husband has a reasonable amount of superannuation, whilst her superannuation is small; and they have some savings. Again, the lump sum will provide a nest egg for Dianne for the future.

Lorraine should receive a lump sum of $35,000. Whilst her husband no longer works, they have the proceeds of sale of their home (which is not suggested will be insufficient to enable the purchase of alternative accommodation); they own a car and a caravan; and each has a reasonable amount of superannuation. They, too, have meagre savings. (I also take into account the financial assistance provided by the deceased and Fay referred to previously.)

It will be seen that, after payment of the total amount of the lump sums ($125,000) and the Plaintiffs' costs on the ordinary basis (estimated to be $40,000), and her own costs on the indemnity basis (estimated to be $38,000), the Defendant will still have about $447,000 on deposit, a car, and an unencumbered home in which to live ($1,305,000).

No interest should be paid on each lump sum if it is paid within 28 days of the making of the orders; and if not so paid, interest should be paid as on unpaid legacies. The usual order for costs should be made.

I am satisfied that the deceased's actual estate is insufficient for the making of the family provision orders, and the costs orders, that should be made: s 83(1)(a), s 88(b) and s 89 and, if necessary, there will need to be an order designating property as notional estate. However, in accordance with the agreement of the parties, the Defendant should first consider how the orders should be met, before a designating order is made. She should be given the opportunity to determine how best to meet the order for provision, and for costs, in each case, that has been made.

I make the following orders:

(i) Having found that each Plaintiff is an eligible person, and that adequate provision for her proper maintenance or advancement in life has not been made for her in the Will of the deceased, order that the Plaintiff, Cheryl Ann Kennedy, receive a lump sum of $50,000; the Plaintiff, Dianne Patricia Doherty, receive a lump sum of $40,000; and the Plaintiff, Lorraine Kathleen Meharg, receive a lump sum of $35,000; out of property designated as notional estate of the deceased unless otherwise paid by the Defendant, Faye Anderson Wisbey.

(ii) Being satisfied that the deceased's actual estate is insufficient for the making of the family provision orders, and the costs orders, that should be made the provision made for each Plaintiff and the costs of the proceedings, should be borne out of property designated as notional estate of the deceased, unless otherwise paid by the Defendant.

(iii) Order that the Defendant pay each of the lump sums and pay or provide security for the Plaintiffs' costs within 28 days, failing which consideration is reserved to any party to apply for an order designating property held by the Defendant for the purposes of satisfying the family provision orders made any interest thereon, and for satisfying the orders for costs of proceedings.

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

(v) The Defendant is pay the costs of the Plaintiffs, calculated on the ordinary basis, and her own costs calculated on the indemnity basis out of the property designated as notional estate of the deceased unless otherwise paid by her.

(vi) Pursuant to s 72 of the Succession Act 2006 that each family provision order not take effect as if the provision was made in a codicil to the will of the deceased.

(v) Order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the costs of the proceedings.

**********

Amendments

14 May 2013 - "has" changed to "had" in last line of paragraph.

Amended paragraphs: 32

Decision last updated: 14 May 2013

Medium Neutral Citation:	Wheat v Wisbey [2013] NSWSC 537
Hearing dates:	19 & 20 March 2013
Decision date:	13 May 2013
Jurisdiction:	Equity Division
Before:	Hallen J
Decision:	(i) Having found that each Plaintiff is an eligible person, and that adequate provision for her proper maintenance or advancement in life has not been made for her in the Will of the deceased, order that the Plaintiff, Cheryl Ann Kennedy, receive a lump sum of $50,000; the Plaintiff, Dianne Patricia Doherty, receive a lump sum of $40,000; and the Plaintiff, Lorraine Kathleen Meharg, receive a lump sum of $35,000 out of property designated as notional estate of the deceased unless otherwise paid by the Defendant, Faye Anderson Wisbey. (ii) Being satisfied that the deceased's actual estate is insufficient for the making of the family provision orders, and the costs orders, that should be made, the burden of the provision made for each Plaintiff, any interest thereon, and the costs, should be borne out of property designated as notional estate of the deceased unless otherwise paid by the Defendant. (iii) Order that the Defendant pay each of the lump sums and pay or provide security for the Plaintiffs' costs within 28 days, failing which consideration is reserved to any party to apply for an order designating property held by the Defendant for the purposes of satisfying the family provision orders made any interest thereon, and for satisfying the orders for costs of proceedings. (iv) Order that no interest is to be paid on each lump sum, if that lump sum is paid within 28 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment of the lump sum. (v) Order that the Defendant pay the costs of the Plaintiffs, calculated on the ordinary basis, and her own costs calculated on the indemnity basis out of the notional estate of the deceased unless otherwise paid by her. (vi) Order pursuant to s 72 of the Succession Act 2006 that each family provision order not take effect as if the provision was made in a codicil to the will of the deceased. (v) Order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the costs of the proceedings.
Catchwords:	SUCCESSION - FAMILY PROVISION - The Plaintiffs, daughters of the deceased, each applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant is the widow of the deceased - Deceased left Will but no application for administration made at date of hearing - Whether grant of administration is necessary in order to deal with application - Whether adequate and proper provision not made in Will of the deceased for each Plaintiff and if so the nature and quantum of the provision to be made.
Legislation Cited:	Civil Procedure Act 2005 Family Provision Act 1982 Probate and Administration Act 1898 Property (Relationships) Act 1984 Succession Amendment (Family Provision) Act 2008 Succession Act 1981 (Qld) Succession Act 2006
Cases Cited:	Alexander v Jansson [2010] NSWCA 176 Allardice v Allardice, In re Allardice, (1910) 29 NZLR 959 Andrew v Andrew [2012] NSWSCA 308 Bartlett v Coomber [2008] NSWCA 100 Blore v Lang (1960) 104 CLR 124 Bondelmonte v Blanckensee [1989] WAR 305 Borebor v Keane [2013] VSC 35 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Bowyer v Wood [2007] SASC 327; (2007) 99 SASR 190 Buckland Deceased, Re [1966] VR 404 Butcher v Craig [2009] WASC 164 Cassel, Re Estate [2000] NSWSC 294 Christie v Manera [2006] WASC 287 Collins v McGain [2003] NSWCA 190 Commissioner of Stamp Duties (Q'land) v Livingston [1964] UKPCHCA 2; (1964) 112 CLR 12 Cooper v Dungan (1976) 50 ALJR 539 Crossman v Riedel [2004] ACTSC 127 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54 Estate Harriett Cassel, Re [2000] NSWSC 294 Flathaug v Weaver [2003] NZFLR 730 Foley v Ellis [2008] NSWSC 288 Franks v Franks [2013] NSWCA 60 Gardiner v Gardiner (NSWSC, 28 May 1998, unreported) Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Harris, In Re (1936) 5 SASR 497 Hawkins v Prestage (1989) 1 WAR 37 Hitchcock v Pratt [2010] NSWSC 1508 Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 Hyland v Burbidge [2000] NSWSC 12 Kay v Archbold [2008] NSWSC 254 Keep v Bourke [2012] NSWCA 64 Kembrey v Cuskelly [2008] NSWSC 262 Kleinig v Neal (No. 2) [1981] 2 NSWLR 532 McLeod v Johns (1981) 1 NSWLR 347 McCosker v McCosker (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 MacGregor v MacGregor [2003] WASC 169 Marks v Marks [2003] WASCA 297 Mayfield v Lloyd-Williams [2004] NSWSC 419 Official Receiver in Bankruptcy v Schultz [1990] HCA 45; (1990) 170 CLR 306 Oldereid v Chan [2013] NSWSC 434 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (NSWSC, 16 December 1996, unreported) Stott v Cook (1960) 33 ALJR 447 Szypica v O'Beirne [2013] NSWSC 297 Taylor v Farrugia [2009] NSWSC 801 Union-Fidelity Trustee Co of Australia Ltd v Montgomery (1976) 1 NSWLR 134 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported) Worladge v Doddridge (1957) 97 CLR 1
Category:	Principal judgment
Parties:	Lynette Gail Wheat (first Plaintiff) Cheryl Ann Kennedy (second Plaintiff) Lorraine Kathleen Meharg (third Plaintiff) Dianne Patricia Doherty (fourth Plaintiff) Faye Anderson Wisbey (Defendant)
Representation:	Counsel: Mr J Loxton (Plaintiffs) Mr M Bradford; Ms A Poljak (Defendant) Solicitors: Gamble Law & Estate Planning (Plaintiffs) Lindsay Brien Solicitor (Defendant)
File Number(s):	2012/124617