Young & Grainger v Outtrim - [2011] NSWSC 391

Supreme Court

New South Wales

Medium Neutral Citation: Young & Grainger v Outtrim [2011] NSWSC 391
Hearing dates: 27, 28, 29 April 2011
Decision date: 13 May 2011
Jurisdiction: Equity Division
Before: Hallen AsJ
Decision:
(i) Having found that each Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, the first Plaintiff should receive a lump sum of $650,000 (subject to [126], [127] and [128]), and the second Plaintiff should receive a lump sum of $290,000.
(ii) The Defendant should be allowed an opportunity to decide the manner in which she will satisfy the payment of each lump sum, and, therefore, which property should be the subject of a notional estate order.
(iii) Each lump sum should be paid within 28 days of the making of orders, failing which, interest on any amount not so paid, should be paid, such interest to be calculated at the rate prescribed on unpaid legacies by the Probate & Administration Act , 1898, from that date until the date of payment.
(iv) If the parties are unable to reach agreement on the way in which the lump sums are to be paid, I shall, hear further short submissions on which property should be designated as notional estate, and any consequential orders.
(v) Subject to any argument about costs, I would propose to make the usual order for costs.
(vi) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules.
(vii) The parties are to bring in short minutes.
(viii) The proceedings are adjourned to a date to be fixed.

Catchwords: The Plaintiffs, the children of the deceased by his first marriage, seek a family provision order out of the estate or notional estate of the deceased and an order designating property as notional estate - The deceased provided for the whole of his estate to pass to the Defendant, his wife of 32 years - Reasonably large estate or notional estate - Whether provision should be made for each Plaintiff and, if so, the nature of the provision to be made
Legislation Cited: Administration and Probate Act 1958 (Vic)
Family Provision Act 1982
Probate & Administration Act 1898
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Cases Cited: Allardice in re, Allardice v Allardice, (1910) 29 NZLR 959
Alexander v Jansson [2010] NSWCA 176
Anasson v Phillips (NSWSC, Young J, 4 March, 1988, unreported)
Anderson (deceased), re (1975) 11 SASR 276, 284
Blore v Lang [1960] HCA 73; (1960) 104 CLR 124
Bondelmonte v Blanckensee [1989] WAR 305
Bondy v Vavros (NSWSC, Young J, 29 August 1988, unreported)
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Buckland v Trustees Executors and Agency Co. Limited (1966) 40 ALJR 164
Buckland deceased, re [1966] VR 404
Carey v Robson; Nicholls v Robson [2009] NSWSC 1142
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Durham v Durham [2011] NSWCA 62
Edgar v Public Trustee for the Northern Territory & Anor [2011] NTSC 5
Foley v Ellis [2008] NSWCA 288
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Green, deceased; Zuckerman v Public Trustee; in re [1951] NZLR 135
Hampson v Hampson [2010] NSWSC 217
Harris, re (1936) SASR 497
Hastings v Hastings [2010] NSWCA 197
Hawkins v Prestage (1989) 1 WAR 37
Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134
Hyland v Burbidge [2000] NSWSC 12
Kay v Archbold [2008] NSWSC 254
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Lee-James [2006] WASC 224
Lloyd-Williams v Mayfield [2005] NSWCA 189
Luciano v Rosenblum (1985) 2 NSWLR 65
McCosker v McCosker [1957] HCA 52
McGrath v Eves [2005] NSWSC 1006
McKenzie v Topp [2004] VSC 90
Mayfield v Lloyd-Williams [2004] NSWSC 419
Neil v Jacovou [2011] NSWSC 87
O'Loughlin v O'Loughlin [2003] NSWCA 99
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9
Puckridge (dec'd), in the Estate of (1978) 20 SASR 72
Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100
Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stott v Cook (1960) 33 ALJR 447
Taylor v Farrugia [2009] NSWSC 801
Tchadovitch v Tchadovitch [2010] NSWCA 316
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Vukic v Grbin; Estate of Grbin [2006] NSWSC 41
Walker v Walker (NSWSC, 17 May 1996, unreported)
Worladge v Doddridge (1957) 97 CLR 1
Texts Cited: Government Gazette No. 38, 20 February 2009
Category: Principal judgment
Parties: Suzanne Elizabeth Young (first Plaintiff)
Julie Louise Grainger (second Plaintiff)
Marci Anne Outtrim (Defendant)
Representation: Counsel:
Mr M Thompson (Plaintiffs)
Mr L Ellison SC; Ms M Painter (Defendant)
Solicitors:
Gerard Malouf & Partners (Plaintiffs)
Masons Lawyers (Defendant)

File Number(s): 2009/288577

Judgment

The Application and Formal Matters

HIS HONOUR: These are proceedings under the Family Provision Act 1982 ("the Act") even though that Act has been repealed, effective from 1 March 2009. Under clause 11(2) of Schedule 1 of the Succession Act 2006 , the provisions of the Act "continue to apply in relation to the estate of a person who dies before the commencement of this clause, in so far as they are not affected by the operation of this Part". That clause commenced on 1 March 2009: s 2(1) Succession Amendment (Family Provision) Act 2008 and Government Gazette No. 38 of 20 February 2009, page 1036.

Alec Charles Outtrim (hereafter called "the deceased") died on 15 August 2008, aged 78 years.

The deceased left a Will, made and published by him, on 25 June 1997. Probate of that Will was granted, on 7 November 2008, to the deceased's wife, Marci Anne Outtrim, the executor appointed under the Will and the Defendant in these proceedings.

The Plaintiffs are Suzanne Elizabeth Young and Julie Louise Grainger, each of whom is a child of the deceased from his first marriage. The proceedings were commenced by Summons filed on 28 April 2009, that is, within the time period prescribed by s 16 of the Act (18 months from the date of death). An amended Summons was filed on 8 October 2010. In the amended Summons, each Plaintiff seeks a family provision order out of the estate or notional estate of the deceased and an order designating property (monies in bank - $6,025,249 and real estate at Fullerton Bay) as notional estate.

Pursuant to the deceased's Will, and in the events that have happened, the whole of his estate passed to the Defendant. (If she had not survived him, the deceased's estate would have passed to his daughters, Terri Anne Outtrim, Kate Louise Outtrim and Karin Lee Outtrim, who survived and attained the age of 21 years. Each is a child of the deceased and the Defendant. If none of those daughters survived and attained a vested interest, the estate was left to the Plaintiffs.)

With no disrespect, or undue familiarity, intended, I shall, hereafter, refer to the family members and any spouse by her, or his, first name.

The deceased left a Statutory Declaration made on 15 August 2008, explaining the contents of his Will. The deceased wrote:

"1. I have not included my two daughters Suzzanne (sic) Elizabeth Young and Julie Louise Grainger in my will. As I feel that my ongoing contributions to them have put them in a very comfortable position by contributing to each girl various family homes (all with no debt). Many cars, cash payments and numerous gifts adding up to QUITE SUBSTANTIAL SUMS.

2. Also I established both girls in separate businesses for an income which put Julie in good stead to continue and prosper in the operation of their own business. Sue and her husband resigned from the company I had established for their benefit soon after winning $800,000.00 in Lotto. Julie and Sue have also received the entire estate from my 1 st marriage with nil debt on the passing of their mother. In my opinion they have been well and truly looked after.

3. I would like to continue my obligation to the children of my 2 nd Marriage of 32 years. Terri Anne Outtrim, Kate Louise Outtrim and Karin Lee Outtrim. Who are still in the family home to have the same situation of home ownership as Sue and Julie.

4. With no income only assets for my present wife it is important for me to provide for her over Her lifetime."

The deceased repeated the substance of the statements made in the Statutory Declaration regarding the provision, during his lifetime, for each of Suzanne and Julie, to Marci and others.

It is well established that a statement made by a deceased person in a document (for example, a deceased's reasons for making his, or her, Will), is admissible as evidence of any fact stated therein of which direct oral evidence by the deceased person would, if the person were able to give that evidence, be admissible: s 32(1) of the Act.

In estimating the weight, if any, to be attached to the evidence of a statement admitted under s 32, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy, or otherwise, of the statement, including the recency, or otherwise, at the time when the deceased made the statement, of any relevant matter dealt with in the statement and the presence or absence of any incentive for the deceased person to conceal or misrepresent any relevant matter in the statement: s 32(8) of the Act.

If a statement of the deceased is admitted, evidence is admissible for the purpose of destroying or supporting the credibility of the deceased person: s 32(9) of the Act.

I also bear in mind what was said by the Court of Appeal of New Zealand in In re Green, deceased; Zuckerman v Public Trustee [1951] NZLR 135 at 141 ( which passage was approved by the majority of the High Court in Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 135, at 152):

" ... the testator should not be allowed from the grave to condemn the child and to impose upon that child the positive duty of disproving the allegations as an essential preliminary to prosecuting the claim."

There is some dispute about the facts stated in the deceased's Statutory Declaration. Later in these reasons, I shall deal with the provision made for each of the Plaintiffs and the deceased's other children during the deceased's lifetime. I have done so in order to determine whether there is real substance in the explanation that he provided, which, of course, I must consider.

In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the actual estate of the deceased was disclosed as having an estimated, or known, gross value of $541,919. The estate was said to consist of two parcels of real estate at Fern Bay (with a value of $240,000 and $300,000 respectively) and monies held in a bank account ($1,919). In addition, property held jointly with Marci, being two parcels of real estate in Medowie ($750,000 and $300,000) was disclosed.

There were no debts, funeral and testamentary expenses disclosed in the Inventory of Property.

There is no dispute that the Inventory of Property was incorrect, at least as to jointly held property. At the hearing, it was accepted by Marci, that, at the date of death, there were two joint bank accounts held by the deceased and her, in one of which there was held, about $3,707,811, and in the other, $5,716. The funds in each account came to be held by Marci, alone, following the deceased's death.

In addition, it was revealed that a third joint bank account, which held $177,456 (including interest) was closed in June 2008 and that Marci had received the whole of the amount in that account.

In an affidavit, sworn on 27 November 2009, by Marci, the likely gross value of the deceased's actual estate was estimated to be $633,919. The estate was then said to consist of the real estate at Fern Bay, monies held in the bank account, and two cars ($92,000). Funeral expenses of $5,200 and a liability to the Australian Taxation Office of $76,000 were also disclosed.

Marci also stated in that affidavit that the two cars had been distributed to her and that she estimated the net distributable actual estate, then, to be $552,719. She set out what were, or what may have been, a number of "prescribed transactions". These included property that she held jointly with the deceased that had been transmitted to her by survivorship, being the two properties in Medowie, and monies in two bank accounts totalling $1,856,763. She also disclosed a transfer to her, within 12 months prior to the deceased's death of a property at Fullerton Cove ($390,000).

The parties agreed that, at the date of hearing, the actual estate consisted of the two properties at Fern Bay with a combined value of $585,000 ($270,000 and $315,000 respectively), the cash in bank ($1,918) and the two cars ($85,000 and $7,000 respectively). Accordingly, it was agreed that the value of the actual estate, at the date of hearing, is $678,918.

They also agreed that the deceased's interest in the following property, at least, could be designated as notional estate:

(i) each of the two parcels of real estate at Medowie ($725,000 and $545,000 respectively) with a value of $635,000;

(ii) the two jointly held bank accounts, two of which were held at the date of death ($5,718 and $3,710,000) and cash withdrawn out of joint bank accounts ($453,500) with a value of $2,084,609;

(iii) an amount of $100,000 withdrawn from a joint bank account and paid into the superannuation fund held for Marci a short time before the deceased's death, with a value of $50,000; and

(iv) the Fullerton Cove property ($390,000) that was transferred to Marci, on 1 May 2008, that is, within 12 months prior to the date of the deceased's death, with a value of $195,000.

It follows that I should treat the value of the gross distributable estate and the property that could be designated as notional estate, as having a combined value of $3,643,527.

I was requested by the parties, in the event that provision is to be made for Suzanne and/or Julie, not to make any order designating property as notional estate, but to allow Marci an opportunity to make arrangements to satisfy the provision ordered to be made, failing which a designating order could then be made to the extent necessary to satisfy the order for provision and any costs ordered to be paid. I indicated that I was prepared to adopt that course because it was both practical and sensible.

In calculating the value of the deceased's estate now, the costs of the present proceedings must be taken into consideration, since the Plaintiff, if successful, will, normally, be entitled to an order that her costs be paid out of the estate of the deceased, whilst the Defendant, irrespective of the outcome of the proceedings, will, normally, be entitled to an order that her costs be paid out of the estate.

The Plaintiff's costs and disbursements, including counsels' fees, calculated on the ordinary basis, up to, and including, the hearing, are estimated to be $234,176 (inclusive of GST and upon the basis of a two day hearing). Of that amount, $57,706 is the estimate of counsel's fees and $45,764 is for disbursements.

The Plaintiff's solicitor was cross-examined and gave evidence that his employer entered into a contingent costs agreement with the Plaintiffs, with the effect that if neither of the Plaintiffs obtains an order for provision out of the estate, they will not be liable for any costs or disbursements. He said that if only one Plaintiff obtains an order for provision, it might be that there will be some reduction of the costs and disbursements, although the bulk of the work that has been done was common to both matters. He expressly denied that there was any term in the contingent costs agreement permitting an "uplift factor".

The Defendant's costs and disbursements, including counsel's fees, calculated on the indemnity basis, up to, and including, the hearing, are estimated to be $204,154. Of that amount, $112,157 is the estimate of senior and junior counsel's fees.

If the estimates of the costs and disbursements, ultimately, prove accurate, and if orders are made under the Act in favour of one, or both, Plaintiffs, the net value of the agreed actual estate, and of the property that may be designated as notional estate, is about $3,205,197.

The only persons described as eligible persons, within the meaning of the Act, by Marci in the administrator's affidavit, are the parties to the proceedings, the other children of the deceased and Marci, and the six grandchildren of the deceased. A prescribed Notice, dated 2 June 2009, was given to each of those persons who are not minors. Only Suzanne and Julie have commenced proceedings under the Act. (I have some doubt whether any of the grandchildren are, in fact, eligible persons.)

Background Facts

The deceased derived the bulk of his wealth by selling a property at Fern Bay that he had owned since about 1986. It was, originally, a low-lying property that required filling to enable it to be developed. Kurri Steel Pty Limited (to which reference will be made later in these reasons) carried out this work. In 1997, a development application for use of the land as mobile home sites was approved and following its development, it was sold, in April 2007, for about $8 million. (The capital gains tax subsequently paid by the deceased was about $1.77 million.)

In relation to Suzanne, I am satisfied that the following facts are either not in dispute, or that they have been established by the evidence.

(a) She was born in May 1956 and is almost 55 years of age.

(b) She is a daughter of the deceased, by his marriage to Shirley May Outtrim, who died in April 1985. They had been married for 23 years at the time of their divorce in June 1976. Final orders in the Family Court were made in December 1977.

(c) She left school at the age of 15 years. She worked in the deceased's business until 1976. Thereafter, because of her medical condition, she has not worked (other than in entities associated with the deceased).

(d) She was married in 1982 to Stephen Dereck Young, was separated from him in 2006, and they were divorced in 2007. She has one son of that marriage, and a daughter by a prior relationship, each of whom is an adult. Her daughter (and the daughter's child) lives with Suzanne.

(e) When they married, Stephen worked, in a business operated by the deceased known as Kurri Steel Pty Limited. (I shall refer to this company later in these reasons.) From about 1990, he worked in a business started by the deceased, S.A.M.S. Engineering Pty Limited. They were given shares in the latter company and received some dividends. It was acknowledged, by Marci, that Stephen was a hard worker who accepted as much overtime as was available. (There is no suggestion that he was not paid an appropriate wage for the work that he performed. At the time he resigned, Marci thought that he was earning about $1,000 per week.) (S.A.M.S. Engineering Pty Limited was deregistered in May 2000.)

Suzanne was also shown as an employee of both Kurri Steel Pty Limited and of S.A.M.S. Engineering Pty Limited for at least each of the financial years ending 1992, 1993 and 1994. There is no suggestion that she was not paid an appropriate wage for the work that she performed.

(f) In about 1994/1995, Suzanne and Stephen won $800,000 in Lotto, following which Stephen resigned from his position in both companies. Suzanne also ceased to be employed by the company. At this time, they were paid $14,736 for the shares in the company, which shares had earlier been gifted to them.

(g) Unfortunately, by 2000, the whole of the Lotto winnings had been spent by Suzanne and Stephen. For about two years following his resignation from the companies, Stephen did not work and it was necessary for the family to use capital to pay for their living expenses. They also carried out renovations to their home, which included putting in a swimming pool and spa, with awnings built over the pool, as well as landscaping the surrounds. They also added an entertainment room and pergola. They purchased two cars, as the cars they had driven were leased by Kurri Steel Pty Limited or S.A.M.S. Engineering Pty Limited and were returned. They took several trips overseas. Stephen gave his parents money ($30,000) and he bought them a car. Suzanne gave money ($30,000) to Julie. They purchased the house next door as an investment property, which house was subsequently sold.

(h) They spent some of the Lotto winnings gambling. How much precisely was spent gambling is not known.

(i) Suzanne had a close and loving relationship with the deceased throughout his life, although, on occasions, she found it hard to discuss certain matters with him.

(j) The deceased was financially generous to Suzanne during his lifetime. In 1987, he gave her $40,000 (as a birthday present), which she used to pay off her mortgage. In addition, in that year, he paid $5,430 for some dental work for her.

In 1991, the deceased gave Suzanne various amounts totalling $42,613 to assist her and Stephen with renovations to their home.

In 1992, the deceased arranged for Suzanne and her husband to receive a parcel of real estate at Stockton, in a three-way arrangement made with Julie and her husband, Philip, and himself and Marci. The value of the real estate transferred to Suzanne and her husband was disclosed (in a Deed of Family Arrangement) to be $95,000.

In 2006 and 2007, the deceased gave Suzanne various small cash gifts ($5,000 in total) as well as a laptop computer and printer ($2,700), and a camcorder ($1,000).

In 2007, the deceased paid Suzanne's legal expenses associated with her divorce ($14,000), paid Stephen $41,000 to enable Suzanne to obtain his interest in their former matrimonial home, and gave $50,000 to Suzanne for emergencies and "as security".

Some part of the cash amount given to her was gambled by Suzanne. (The precise amount spent by her on gambling out of the amount given to her is not known, but the evidence reveals it was no more, and somewhat less, than about half the amount. To the extent that it was submitted that she won moneys also from gambling, this is not demonstrated in her oral evidence, or in the banking records that were tendered.)

The deceased paid Suzanne $800 per month from July 2007 until his death. (This was to assist her following her separation, and subsequent divorce, from Stephen.) Marci has continued making these payments to her. (The total amount paid, in total, is about $37,600.)

(k) By the end of 2010, Suzanne had spent the whole of the amount given to her by the deceased. (I am prepared to accept Suzanne's evidence that not all of the moneys withdrawn from an ATM, situated within a Club, which was disclosed in an exhibit tendered by the Defendant, were spent on gambling.)

(l) Kurri Steel Pty Limited was a company in which the deceased had an interest during his marriage to the mother of Suzanne and Julie. There is some evidence that, at the time of their divorce, the deceased said words to his former wife to the effect:

"Leave the business (Kurri Steel) out of the divorce"

and

"...if you leave the business alone, it will be able to look after all of us".

Suzanne has disclosed her financial and material circumstances. I accept that these circumstances are:

(a) She owns a property at Fletcher, near Newcastle ($450,000). A photograph of the property, which forms part of a written market appraisal that was tendered, depicts it to be a modern, single residential brick dwelling, with a double garage.

(b) She has a car ($5,000) and household furniture ($50,000).

(d) Her monthly expenditure is no less than the amount she receives and often more. She shares, with her daughter, some of the day-to- day expenses. (It is likely that her daughter will not be living with her for much longer.)

(e) As at 22 November 2010, she had $393 in her bank account.

(f) She has no other property, or resources, including superannuation.

There is evidence of Suzanne's state of health about which there was no dispute:

(a) She contracted poliomyelitis at a young age and has been disabled since then. As a result, she has been left with considerable weakness in her legs. She now uses crutches, or when longer distances are involved, a wheelchair. She has had over 12 operations, most recently in April 2010 (it was an operation to her left elbow) and in September 2010 (an operation to her left shoulder).

(b) She has severe scoliosis of the lumbosacral spine; she has had lower lumbar fusion extending from at least L3 to S1.

(c) She requires a lot of assistance with household chores and mobility. She has a professional person to mow her lawns and has another professional person who cleans her home once a fortnight. Otherwise, her children assist her.

(d) She is able to drive.

(e) She spends about $30 per visit to her general practitioner; $3,000 for a new calliper; $800 for orthopaedic shoes; and about $1,500 for replacement crutches and a wheelchair.

(f) She is likely to have further deterioration in joint and muscle strength over time, with more aids and household care and assistance being required.

(g) She suffers from hypertension and mild asthma that is being treated. She continues to have continuing symptoms of mechanical backache. She also has shoulder and elbow pain associated with the prolonged use of crutches.

(h) She wears a locked knee brace on the left leg which leg is severely wasted. There is total paralysis in the whole left leg. There is weakness of flexion and extension in the knee, ankle and hip on the right hand side but there is active movement in the joints. Formal rehabilitation is not required.

(i) She uses a combination of rest, heat packs, and medication to manage her pain.

Suzanne sets out her "needs" (about some of which there is dispute) as follows:

(a) In the future, she is likely to have further surgery and ongoing medical treatment, and, in due course, nursing care. There is no estimate of some of these types of expenses.

(b) As she gets older, she will find it more difficult to look after herself and get around. As a result, she will require more assistance.

(c) She states that her home requires maintenance and repairs, including replacing venetian blinds ($5,000), replacing the carpet ($10,000) repainting the inside ($5,000) and roof restoration ($3,000). She says that she requires certain landscaping work to be done ($50,000) and the closing in of a back pergola ($25,000). She says that she needs a new driveway ($20,000), a new clothes dryer ($500), new furniture and whitegoods ($60,000), an adjustable bed ($10,000 - $11,000) and an adjustable lift chair ($2,500). She also needs a new car ($60,000 - $70,000).

(Unfortunately, most of the estimates provided were simply "estimates" or "guesses" and without supporting documentation.)

(d) Suzanne states that she would like to assist her daughter to purchase accommodation for herself. She would wish to provide a deposit to assist her daughter (about $35,000). She would also like to take herself, her daughter and her granddaughter on a holiday ($20,000).

(e) She would also like to assist her son by providing him with a capital sum to "help him out financially and put him in a more secure financial position for the future".

(f) Finally, she states that she requires a capital sum of $250,000, which would provide a nest egg for her and enable her to obtain an income of about $250 per week.

On the question of her medical condition and needs, there is a report from an Occupational Therapist relied upon by Suzanne. That report was not the subject of an affidavit by the Occupational Therapist, but a copy was annexed to the affidavit of the Plaintiffs' solicitor, which affidavit was read in the proceedings without objection.

The Occupational Therapist assessed Suzanne over a period of 1.5 hours at her home. The assessment comprised an interview, a functional assessment and observation as she carried out routine activities of daily living. She states that Suzanne demonstrated functional limitations consistent with decreased mobility and balance, upper limbs and hip pain. She has difficulty with, or is unable to perform, routine activities of daily living that require walking, standing, running, squatting, lifting, bending, carrying, and repetitive movements.

She opines that the provision of equipment and simple aids for use in showering and dressing will increase Suzanne's safety. In particular, she recommends that Suzanne obtain a shower chair, a long handled brush or sponge, a long handled reacher, a dressing stick, an electric reclining armchair, elbow crutches, a four-wheel walker and a manual wheelchair for community access.

Her prognosis is that Suzanne will experience increased difficulty with personal care over time, as the ageing process and sedentary lifestyle impact on her functional mobility, with further deterioration in strength and mobility. She considers that Suzanne will need assistance with personal care by the age of 65 years. Again, there was no dispute about these matters. (The dispute lay as to the costs of care and its duration.)

The Occupational Therapist goes on to state that Suzanne will require daily assistance with personal care of about 3.5 hours per week and also that assistance from a professional agency (gardening and domestic and handyman chores, as well as shopping, laundry, cleaning, mopping and sweeping) is already required. She estimates a total of 9 hours per week to provide such weekly assistance is required.

The Occupational Therapist estimates the total cost at about $354,000. This amount is calculated using the 5 per cent tables. Her calculations were based on the commercial cost for domestic tasks and gardening between the date of hearing and the date of anticipated death (about $277,000) and for personal care from the age of 65 years and the date of anticipated death (about $69,000) plus about $9,000 for the recommended items.

There was no dispute that the amount would be about $445,000, if one used the 3 per cent tables. The calculations based on commercial cost for domestic tasks and gardening between the date of hearing and the date of anticipated death (about $358,000) and for personal care from the age of 65 years and the date of anticipated death (about $77,000) plus about $9,000 for the recommended items. (The Plaintiffs' counsel provided this calculation.)

Counsel for the Defendants did not dispute the mathematics of the calculations. They made no submissions on whether the 5 per cent or 3 per cent discount table should be used. They accepted some of the amounts that the Occupational Therapist had stated, namely the various items of equipment ($6,957), personal care for 3.5 hours per week from age 65 years ($43,329) and weekends ($26,000), and they submitted that some aspects of the calculations could be obtained at a substantially cheaper cost. For example, they submitted that personal care was calculated at a cost of about $38 per hour, whereas Suzanne gave evidence that she had paid Homecare $10 per hour, and was presently paying $15 per hour, for 2 hours per fortnight, to the person who cleaned her home. It was submitted that one, or other, of these rates, and for the time presently utilised should be used ($8,660 - $12,988). The amount for gardening and handyman expenses ($47,200) was also said to be excessive and should be allowed, if at all, for 2 hours per fortnight at the rated of $32 per fortnight ($13,988).

Another criticism of the amounts allowed by the Occupational Therapist was that Suzanne could use a computer to do her shopping from home, with the result that the amount allowed based on 2 hours per week at about $38 per hour (in total $65,721) was completely unnecessary. Similarly, the amount allowed for laundry based on 2 hours per week at about $38 per hour ($66,621) was also unnecessary.

The Defendant's counsel submitted that the total amount that should be allowed for all care for Suzanne was between $116,951 and $121,280.

44(a) Whilst there was no cross-examination of the Occupational Therapist to put such matters raised by the Defendant's counsel, that may have been because of what was said by Campbell JA (with whom Allsop P and Young JA agreed) in Tchadovitch v Tchadovitch [2010] NSWCA 316:

"53 The task of a court in assessing damages at common law is to provide fair compensation for a legal wrong. That measure of compensation must be fair to the defendant, as well as to the plaintiff. The task of a court in assessing the amount of provision that should be made for an "eligible person" under the Family Provision Act is to ascertain "such provision ... as in the opinion of the court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person" (section 7). Some factors that the court must in some circumstances take into account, and others that it may take into account, are listed in section 9. However, the quantum of the provision is a matter for exercise of a judicial discretion, exercised bearing in mind the circumstances of the particular claimant. The principles on which the two types of award are made are not the same. Thus the method for calculating common law damages is not necessarily the method to use in arriving at a Family Provision Act award.

54 There are insurmountable difficulties in carrying out an accurate calculation of the amount that will make proper provision for certain needs of a person for the rest of their life. As well as the unpredictability of future inflation rates and taxation regimes that Todorovic allows for in an extremely broad-brush way, Family Provision Act claims concerning a claimant who is to be provided for for the rest of his or her life have an additional complexity arising from the uncertainty of the length of that person's life. That dimension of uncertainty does not appear with quite the same acuteness in calculation of damages for personal injury, because the calculation for loss of earning capacity is made for a determinate period of time, up to the ordinary date of retirement of the plaintiff in question, with the prospect of earlier death being allowed for as one matter that goes into the deduction that is made for contingencies of life. In an estate that is large enough to satisfy all the claims upon it, it would be a significant detraction from the adequacy of the provision made for a widow that it left her at risk of not being properly provided for if she were to live for longer than the statistical average for a woman of her age.

55 Depending on the evidence and submissions made in a particular case, it can be part of the task for a judge fixing the quantum of a Family Provision Act award to make a judgment about whether, and if so to what extent, any discount table is of assistance in assessing the proper provision for the eligible person. At least until such time as a court has the benefit of argument that seeks to narrow the range of discount tables that might be used for that purpose, there is no reason of principle why the 3% tables should be treated as the bottom of the range of discount tables that are considered. In Todorovic , in the different economic conditions that then prevailed, Stephen and Murphy JJ were of the view that a nil discount should be applied in calculations of common law damages, and Mason J would have preferred to use the 2% tables, but agreed with use of the 3% tables for the sake of comity. Likewise it is part of the judge's task to decide (if asked) whether, and if so to what extent, any actuarial calculations that are tailored to the individual circumstances of that claimant are helpful. In my view, there is no principle requiring that the 3% discount table always be used.

56 There is a world of difference between it perhaps sometimes being appropriate to calculate a lump sum for the purposes of the Family Provision Act by using the 3% discount tables, and it always being required as a matter of principle. Just as the nature and quantum of the provision that is made for an applicant under the Family Provision Act involves an exercise of judicial discretion, that is exercised in the light of the facts of the particular case and the evidence and submissions in the particular case, so the choice of the appropriate methodology to use in arriving at the quantum is a matter of judicial discretion, that is likewise exercised in the light of the facts of the particular case and the evidence and submissions in the particular case. In my view the Appellant's submission that adoption of the 3% discount tables as a common approach "will not affect or diminish the exercise of a judge's discretion when determining what provision is, in any case, adequate for the proper maintenance of an applicant" is wrong. In the present case it was within the scope of the discretion open to him for the judge to have regard (as he did) to the 3% tables, as one factor taken into account, but also within the scope of his discretion to award a sum different to that obtained from the use of the 3% tables."

And as Slattery J observed in Neil v Jacovou [2011] NSWSC 87:

"There was a degree of false precision in the mathematical forward planning of both Julie and Charli's future lives to enable the actuarial calculations of future expenses. This is not surprising. The Court of Appeal recently cautioned about the limits of usefulness of such material: Tchadovitch v Tchadovitch [2010] NSWCA 316 and pointed out features of the use of such evidence: at [74], there are insurmountable difficulties in making an accurate calculation of the amount that will make proper provision for certain needs of a person for the rest of their life; at [71] particularly where the applicant has decades to live actuarial calculations could not be anything more than a check or guide; at [75], it can be part of the task of the judge fixing a Family Provision Act award to make a judgment about whether and if so to what extent that a discount table is of assistance in assessing what is proper provision; at [56], the choice of the appropriate methodology to use in arriving at the quantum of the provision is a matter of judicial discretion exercised in light of the facts, evidence and submissions in the particular case; at [68], it may be appropriate to use the actuarial calculations as a check on the methodology followed; and at [73] the Court may not give any further analysis or explanation of such evidence than to say that it was taken into account."

I do not propose to treat Suzanne's claim for a family provision order as if it were a personal injury claim. I shall take into account the Occupational Therapist's assessment, as well as what has been submitted on behalf of the Defendant, in reaching the amount of provision that will, in all the circumstances, be adequate and proper provision for Suzanne.

In relation to Julie, I am satisfied that the following facts are either not in dispute, or that they have been established by the evidence.

(a) She was born in September 1957 and is 53 years of age.

(b) She left school at 18 years of age, having completed her Higher School Certificate. She has worked since then, most recently in the business to which I shall refer.

(d) She had a reasonably close relationship with the deceased throughout his life, except for a period between 1994 and 2001. Occasionally, before, and after, that time, there would be disagreements between them, but these, generally, were not as serious. None of the disagreements caused an estrangement between them. (There is no suggestion of any conduct disentitling by Julie.) She was not as close to the deceased as was Suzanne.

(e) The deceased employed Julie and Phillip in his business between 1988 and 1991. Each was paid wages for the work that she or he performed, including work on the Fern Bay property that was subsequently sold. It is not suggested that the wages that were paid were less than should have been paid to her and him or that they were otherwise inadequate.

(f) The deceased was also generous to Julie. In 1975, while she was in Year 11 of High School, he gave her a second hand car. In 1977, she was given another car.

When she turned 21, he gave her a "Tudor" watch.

When her daughter, Terrianne, was born in 1979, the deceased bought Julie a washing machine. When her daughter Kelly was born in 1982, the deceased bought her a pair of children's beds, one for each child.

In 1983, he gave her some cash ($2,000).

In 1984, Julie and Phillip received a gift from the deceased of $5,000 and Julie received an additional $2,000.

In 1985, the deceased paid a deposit of $6,000 on a property that Julie and Phillip were going to, but ultimately did not, purchase.

In 1987, the deceased gave Julie $2,000.

In 1989, the deceased purchased a second hand Nissan station wagon for Julie and Phillip. In 1989, the deceased paid for the cost of their garage ($8,240) and a security door ($258).

In 1990, the deceased bought Julie an outdoor furniture setting ($968).

In 1991, the deceased paid for a pergola ($5,440). Later, in that year, he paid for carpets ($1,000) and gave them a dishwasher ($1,059) for Christmas.

In September 1991, Fern Bay Plant Hire & Earthmoving Pty Limited was registered. Julie and Phillip were made directors and shareholders. The deceased and Marci were also shareholders.

In 1993, Julie and Phillip were given a parcel of real estate in Stockton by the deceased and Marci in the three-way arrangement referred to earlier. There is a dispute about its value at the date of transfer to them, but in the Transfer (and the Deed of Family Arrangement entered into) the amount of $200,000 is stated. Of course, they transferred their land ($95,000) to Suzanne at the same time.

The deceased subsequently paid $5,000 for renovations to their Stockton property.

In 1995, the deceased and Marci gave to Julie and Phillip, their shares (estimated then to be have a value of $16,796) in Fern Bay Plant Hire & Earthmoving Pty Limited. Julie and Phillip, since then, have continued to operate that business under the name and style "Grainger's Heavy Haulage".

The earthmoving equipment owned by the company was, in 1995, heavily used and wearing out. By late 1996, or early 1997, Phillip purchased a truck (a prime mover) for $68,000 and a trailer ($30,000).

In 1995, the deceased contributed $12,000 towards the purchase of a car for Julie.

Between 1996 and 2007, with the consent of the deceased, Julie and Phillip parked the company's truck and trailer on land owned by him at no charge.

Julie has disclosed her, and her husband's, financial and material circumstances. Subject to what follows, I accept that their circumstances are as follows:

Assets

(a)

Mitchell Street, Stockton:

$1,250,000

(b)

Elder Street, Lambton:

$300,000

(c)

Scott Close, Raymond Terrace:

$250,000

(d)

Links Drive, Raymond Terrace:

$250,000

(e)

Quintrex boat:

$10,000

(f)

Household furniture:

$50,000

Liabilities

(a)

Mortgage Loan IMB:

$21,000

(b)

Mortgage Loan NPBS:

$114,000

(c)

Mortgage Loan NPBS:

$89,000

(d)

Mortgage Loan IMB:

$185,000

Superannuation entitlements for Julie total $48,729 and for Phillip total $102,846.

In her affidavits, Julie did not disclose a joint bank account that she held with Phillip, which, in late November 2010, held $33,960, or the value of the business that she and her husband conduct through the company (which, at that time, held in a bank account $24,142). Currently, there is $28,637 in the joint bank account and $31,612 in the company's bank account.

Julie stated that, other than the truck and trailer, each of which is encumbered, the business conducted by the company cannot be sold, as it is essentially a business in which the truck and trailer are hired on an hourly basis. Julie's husband drives the truck. She asserts that the company has little, or no, value. This assertion seems to be supported by the company's Balance Sheet for the financial year ending 30 June 2009, which reveals total assets with a value of $211,026, total current liabilities of $88,569, and non-current liabilities of $142,251. The Profit and Loss Statement for the same year reveals a loss of $12,435, although it should be noted that in calculating that loss, there is "depreciation of assets" ($82,847), motor vehicle expenses ($66,117), superannuation contributions ($18,780) and wages ($62,700), some of which, at least, are for the benefit of Julie and Phillip.

Julie and Phillip receive taxable income from the business of about $62,700 per annum (in 2009) and from their rental properties ($3,360 per month in total). Their mortgage repayments total $3,144 per month. There are other expenses on the rental properties, including insurances of $320 per month, land rates of $326 per month, water rates of $170 per month and electricity and gas of $170 per month.

Julie gave evidence of her state of health. She says that her health is good, as is Phillip's, although more recently, he is suffering from shoulder pain, which causes him discomfort whilst working. He may have difficulty driving the truck and trailer in the not too distant future.

Julie sets out her "needs" (which are the subject of dispute) as follows:

(a)

Replace the kitchen:

$35,000

(est)

(b)

Replace household furniture:

$50,000

(est)

(c)

Re-carpet the house:

$8,000

(est)

(d)

Purchase new curtains:

$15,000

(est)

(e)

Renovate the bathrooms:

$25,000

(est)

(f)

Repair or replace two cracked windows:

$1,000

(est)

(g)

Replace the furniture in the children's bedrooms:

$15,000

(est)

(h)

Install a swimming pool:

$40,000

(est)

(i)

Pay off mortgages on her investment properties at Lambton and Raymond Terrace:

$380,000

(j)

Holiday in Australia and another holiday overseas:

$38,000

(k)

Pay off a loan taken out to pay for her stepsons to establish a smash repair business:

$21,000

(l)

Reduce her daughter Terriann's mortgage:

$250,000

(m)

Reduce her daughter Kelly's mortgage:

$220,000

(n)

Reduce her daughter Kelly's HECS debt:

$15,000

(o)

Reduce her stepson Ben's mortgage:

$380,000

(p)

Provide financial help to her daughter, Leah, who is currently paying rent

(q)

Provide financial help to her stepson, Karl, who is currently paying rent after selling his home

One matter relating to both Suzanne and Julie does require separate consideration. It was submitted by counsel that each, with her husband, made a significant contribution, of a non-financial nature, by way of providing services to the deceased, being a contribution directly, or indirectly, to the conservation and improvement of the Fern Bay property.

Whilst there is no reference in s 9(3)(a) to the receipt by the eligible person of remuneration for the services provided, it seems to me, that this fact is relevant. That an eligible person (and, in this case, her spouse), provided such services, for which adequate consideration (not including any pension or other benefit) was received, is important (see, for example, s 60(2)(h) of the Succession Act 2006).

Thus, I do not accept, entirely, the submission made on Julie's behalf, that "she and her husband by their personal efforts on the Fern Bay property contributed during the deceased's lifetime to the accumulation of assets of the estate". What is omitted from the submission is the undisputed fact that they received adequate consideration for the services that they performed.

In Foley v Ellis [2008] NSWCA 288, Sackville AJA at [88] noted that Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 "... strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act ."

I therefore, next, refer to matters relating to Marci. I am satisfied that the following facts are either not in dispute, or have been established by the evidence:

(a) She was born in September 1952 and is aged 58 years.

(b) She married the deceased in July 1976. They remained married until the deceased's death in 2008. They were married for 32 years.

(d) During the marriage, Marci was a full time wife and mother. Prior to her marriage, she worked as a nurse. She would assist, sometimes, in the activities of Kurri Steel Pty Limited, delivering things for the deceased or doing the banking.

(e) When the deceased became unwell, shortly prior to his death, Marci assisted him. Julie acknowledged the assistance provided by her shortly after the death of the deceased.

(f) She was a loving and devoted wife to the deceased. She made a significant contribution to his welfare, which the deceased recognised.

(g) She is in good health.

(h) She assists her daughters by providing housekeeping services for them and by caring for Kate's daughter.

(i) In January 1988, Kurri Steel Pty Limited purchased the land at Fullerton Cove. In July 2002, it was transferred to the deceased and Marci as tenants in common in equal shares.

Marci has disclosed her financial and material circumstances, which I accept, are as follows:

(a)

Medowie property (family home):

$725,000

(b)

Medowie property (land):

$545,000

(c)

Fern Bay property:

$270,000

(d)

Fern Bay property:

$315,000

(e)

Fullerton Cove property:

$390,000

(f)

Kurri Kurri property:

$70,833

(g)

ANZ Term Deposit:

$400,000

(h)

CBA Account 065:

$17,274

(i)

CBA Account 403:

$1,574,409

(j)

CBA Term Deposit:

$527,388

(k)

CBA Netbank Saver Account:

$144,010

(l)

Cash in safety deposit box:

$140,000

(m)

Bond with Reserve Bank:

$250,000

(n)

Gold bullion held in safety deposit box:

$490,006

(o)

Superannuation investments:

$1,428,957

(p)

2006 Range Rover:

$85,000

(q)

1997 Range Rover:

$7,000

(r)

Box trailer:

$500

(s)

Farm equipment:

$90,000

(t)

Jewellery:

$18,000

TOTAL

$7,488,377

Real property, and other assets, distributed out of the estate of the deceased and from his estate prior to his death have been included. Accordingly, so as to avoid presenting an inaccurate picture of her financial position, I notionally deduct the same amount as I have included as the value of the actual estate and the property that may be designated as notional estate ($3,643,527) from the total value of her property.

It can be seen, even when this is done, that the value of Marci's property is still reasonably substantial ($3,844,850). Of course, she will be entitled to receive the balance of the actual estate and/or the balance of the property that may be designated as notional estate that is not utilised to satisfy any orders for provision for the Plaintiffs, and costs.

Apart from accruing taxes and expenses together with legal costs accruing in these proceedings, Marci's only liabilities are the balances on her credit cards (approximately $2,000 in total as at April 2011).

Marci's income, through personal investments and superannuation is said to total $13,670 per month. She estimates her expenditure at $16,129 per month. The shortfall is paid from capital. She states that the lifestyle she enjoys is the same as that which she enjoyed during the deceased's lifetime.

Marci states that she would like to carry out certain repairs, renovations and improvements to her home ($500,000). She states that what she has must last for the balance of her life. In addition, she would like to assist her daughters and her grandchild.

It is to be remembered that there is no onus on Marci, as the sole beneficiary named in the deceased's Will, to show that she is entitled as such, or to prove what may be necessary for her proper maintenance, education and advancement in life. The nature of her strong competing claim is as the widow of a long marriage, who is the chosen object of testamentary bounty. This was not the subject of any dispute by the Plaintiffs.

Although they are not persons who have any direct interest in the deceased's estate, I set out some brief facts about each of the children of the deceased and Marci, since each is also an eligible person, whose affidavit was read in the proceedings. None of them was cross-examined.

I am satisfied that the following facts are either not in dispute, or have been established by the evidence:

Terri

(a) She was born in September 1976.

(b) She had a close and loving relationship with the deceased.

(d) She is employed as a solicitor and earns approximately $52,000 before tax.

(e) She and her husband are financially independent. Terri lives in a house owned by her husband. She has no independent property holdings other than savings ($70,000) and a car ($20,800).

(f) The deceased (and Marci) was generous, financially, to Terri. In October 2006, she received $50,000 following the sale of the Fern Bay property. In April 2007, she received $46,231, which amount she used to purchase her car. In addition, her parents paid all of her university expenses (including HECS fees, rent and money to live on) and upon graduation gave her $10,000.

Kate

(a) Kate was born in November 1977.

(b) She had a close and loving relationship with the deceased.

(d) Marci continues to provide financially for Kate and Kate's infant daughter Grace. Kate receives a single parenting payment and family tax benefit from Centrelink.

(e) Kate has a car ($29,900) and modest savings ($27,000).

(f) She has a HECS debt ($14,782), a debt to Centrelink ($500) and a credit card debt ($1,000).

(g) She, too, received $100,000 from the deceased (and Marci). She used $50,000 to purchase her car, $10,000 on setting up her daughter's nursery and then her bedroom and $10,000 on a surgical procedure. The balance constitutes her current savings.

(h) In addition, she received $10,000 upon her graduation. Her parents purchased a car for her when she was at school and sent her money whilst she was overseas.

Karin

(a) She was born in August 1984.

(b) She had a close and loving relationship with the deceased.

(d) She is employed as a MRI Technician, earns $63,000 gross, and with her husband owns her own home ($600,000) which is subject to mortgage (about $350,000).

(e) The deceased gave her $100,000 from the sale of the Fern Bay property, part of which she used for the purchase price of her home ($50,000), for an overseas trip ($10,000) and for her car ($35,000).

(f) Marci gave her $100,000 in 2010.

(g) She has a car ($22,000) and some savings ($5,000).

(h) She has a small credit card debt ($300).

(i) Marci paid for her wedding in December 2010 (between $70,000 and $80,000).

(j) She received financial, and other, assistance from her parents whilst she was growing up, including the purchase for her of a number of horses (the most expensive one of which was $20,000), the costs of competing in equestrian events, all university and HECS fees, and $10,000 in cash, for her graduation.

The Court may disregard the interests of any eligible persons who have not made an application in relation to the deceased person, since notice of the application before it and of the Court's power to disregard those interests has been served upon that eligible person in the manner and form prescribed by rules of court: s 20 of the Act. In this case, a notice has been served.

In the circumstances, whilst I may disregard the interests of each of the children of the deceased and Marci, I have not done so. However, I regard any claims of each upon the bounty of the deceased to be of lesser priority than those of the parties to these proceedings. I also bear in mind that they are likely to be provided for by Marci (as she acknowledged).

I have had the benefit of receiving a written outline of submissions from counsel for the respective parties. Those will be retained in the Court file.

The Law

Being an "eligible person" is a necessary precondition under s 7 of the Act to the Court being empowered to make an order for the maintenance, education or advancement in life of the eligible person.

Section 9(2) of the Act provides that the Court shall not make an order under s 7 unless it is satisfied that the provision (if any) made in favour of the eligible person by the deceased person either during his lifetime or out of his estate:

"[I]s, at the time the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advance in life of the eligible person."

Thus, the power of the Court to make an order under the Act is enlivened by the formation of an opinion that the disposition of the deceased's estate effected, relevantly, during his lifetime, or by his Will, is not such as to make adequate provision from his estate for the proper maintenance, education or advancement in life of the applicant. The court is empowered, at its discretion, to order that such provision as the court thinks fit is made out of the estate of the deceased for that purpose: Gleeson CJ in Vigolo v Bostin [2005] HCA 11; 221 CLR 191 at [4].

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". The determination requires an evaluation that necessarily takes the court to the provision actually made during the lifetime of the deceased and in the deceased's Will, on the one hand, and to the needs for maintenance and advancement in life of the applicant on the other. It has conventionally been said that this involves a consideration of the relationship between the deceased, the applicant and other relevant persons having similar claims for adequate provision to be made for them: see Goodman v Windeyer (1980) 144 CLR 490 at 496).

"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 are the words 'maintenance' and 'advancement in life' defined. However, in Vigolo v Bostin , Callinan and Heydon JJ, at [115], said, of the words 'maintenance', 'support' and 'advancement':

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

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

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

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

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

Recently, it has also been noted that 'proper maintenance' is not limited to the bare sustenance of an applicant (cf Gorton v Parks (1989) 17 NSWLR 1), but requires consideration of the totality of his, or her, position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he, or she, is accustomed, and mobility: Alexander v Jansson [2010] NSWCA 176 at [18].

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

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

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

Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571, 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 , Gibbs J said at 502:

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

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

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

In Vigolo v Bostin at [122], their Honours added:

"... Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question of 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."

In Foley v Ellis , Sackville AJA noted at [86]:

"As Gleeson CJ pointed out in Vigolo v Bostin at [5]-[6] (197), this formula requires the court to make judgments by reference to criteria expressed in the most general terms. In particular, the word "proper" incorporates "value-laden concepts" that must "have a source external to the decision-maker". Much the same point can be made about the word "inadequate"."

In Singer v Berghouse (No2) , the High Court described the approach that a court should take as a two stage process. At 209, it was said:

"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Ltd . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or 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 applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

In Vigolo v Bostin , Gleeson CJ and Gummow and Hayne JJ at [5], [74] and [82] - [83] approved the two-stage test set out in Singer v Berghouse .

At the first stage, the court will consider whether it can make an order for provision for the maintenance, education and advancement in life of a particular applicant. In the event that the court is satisfied that the power to make an order is enlivened (i.e. it is satisfied that the Plaintiff is an eligible person, and, where necessary, that factors warranting have been satisfied, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), then, the court determines whether it should make an order, and if so, the nature and quantum of any such order, having regard to the facts known to the court at the time the order is made. That order is limited to one that:

"... in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person."

It has recently been repeated by Campbell JA in Peter Robert Durham v Bruce Albert Durham & Ors [2011] NSWCA 62:

"81 Under both the Family Provision Act and the Succession Act whether the jurisdictional question is satisfied is a matter of whether an evaluative standard has been met, rather than truly a matter of discretion. ...

A judge's decision as to the amount and type of an award to be made is a true discretionary decision, whether that decision is made under the Family Provision Act or under the Succession Act ."

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

Tobias JA said:

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

...

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

In Devereaux-Warnes v Hall (No 3) at [81]-[85], 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]."

Yet, the "needs" of an applicant are not, necessarily, the underlying legal limit on provision that may be ordered: per Bryson JA in Lloyd-Williams v Mayfield [2005] NSWCA 189 at [29]; Kay v Archbold [2008] NSWSC 254 at 121.

Some care should be taken to distinguish between assessing the applicant's "needs", her, or his, goals in life, and the manner in which she, or he, proposes to use financial resources, if available: Diver v Neal at [67].

It is not possible to apply mathematical precision to the determination of what constitutes adequate provision for proper maintenance and advancement in life: Lee-James and Anor v Mayer As Executor of the Estate of John Richard James (Dec'd) [2006] WASC 224 at [49].

Section 9(3) provides:

"In determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person, the Court may take into consideration:

(a) Any contribution made by the eligible person whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to:

(i) the acquisition, conservation or improvement of property of the deceased person; or

(ii) the welfare of the deceased person, including a contribution as a homemaker;

(b) The character and conduct of the eligible person before and after the death of the deceased person;

(c) Circumstances existing before and after the death of the deceased person; and

(d) Any other matter which it considers necessary in the circumstances."

The provision to be made may be made in a variety of ways, including a lump sum, periodic sum or "in any other manner which the Court thinks fit": s 11 of the Act. The court, if it makes an order for provision, "may specify the beneficial entitlements in that estate which shall bear the burden of the provision and, in relation to each entitlement, the part of the burden it is to bear": s 13 of the Act. The court is empowered, at its discretion, to order that such provision as the court thinks fit is made out of the estate of the deceased for that purpose. An order takes effect as a codicil to the will, or where the deceased died intestate, in a will of the deceased person: s 14 of the Act.

It is not part of the court's role to achieve some kind of equality between the various applicants or to reward an applicant, or to distribute the deceased's estate according to notions of fairness. 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".

In Stott v Cook (1960) 33 ALJR 447 at 450, 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."

The court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation ( Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9, per Dixon CJ at 19); McKenzie v Topp [2004] VSC 90 at [63]. Freedom of testamentary disposition remains a prominent feature of the Australian legal system.

The Act is not a "destitute persons Act", and it is not necessary, therefore, that an applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1909) 29 NZLR 959 at 966.

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

Promises made and expectations raised by a deceased have always been regarded as relevant to the ascertainment of what is proper provision for a claimant ( Re Anderson (deceased) (1975) 11 SASR 276, 284; Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 135, 148). This is particularly so where a claimant has relied to his, or her, detriment on any such promise or expectation: Vukic v Luca Grbin & Ors; Estate of Zvonko Grbin [2006] NSWSC 41).

All of the financial needs of the applicant have to be taken into account and considered by reference to the other factors referred to in section 9(3) of the Act and in Singer v 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: Barbara Mayfield v Suzy Carolyn Lloyd-Williams [2004] NSWSC 419).

In relation to a claim under the Act by an adult child of the deceased, the following matters should also be noted:

(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. However, where a child is adult and able-bodied, different views exist on whether such an applicant is someone for whom provision "ought" be made from the estate for his or her "maintenance, education or advancement in life" and whether there is any generally held social view as to the existence of a moral, or natural, obligation to an adult able-bodied child, sufficient to deprive a parent of the unfettered right of testamentary disposition: Hastings v Hastings [2010] NSWCA 197 at [7] and at [20].

(b) Thus, 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 their children up in a position where he, or she, 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 a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia .

(d) There is no obligation upon the deceased to have treated all of his, or her, children equally. In Carey v Robson; Nicholls v Robson [2009] NSWSC 1142, Palmer J commented:

"57 The strongest ground for relief urged by Rosemary and Marion, though put somewhat obliquely, is that the provision made for them by the testator is vastly disproportionate to the provision made for Alan. One can understand the sense of grievance which one child may have at being treated by a parent differently from another child. Some may be tempted to think that great disproportionality of testamentary treatment in itself indicates some essential error in the testamentary process which requires amelioration under the Family Provision Act so as to achieve approximate equality between a testator's children.

58 That is not, of course, a position from which one can begin in this, or in any other case under the family provision legislation."

(e) There is no the need for an adult child to show some special need or some special claim: McCosker v McCosker (1957) 97 CLR 566; Kleinig v Neal (No 2) [1981] 2 NSWLR 532; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45.

(f) If an applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that might be a matter to be taken into account. One might say that all of the family circumstances in which an applicant finds herself, or himself, is relevant in assessing whether she, or he, has a need for provision. But s 7 does not permit orders to be made to provide for the support of third persons who the applicant, however reasonably, simply wishes to support: Re Buckland deceased [1966] VR 404 at 412; Kleinig v Neal (No 2) at 537.

There is also a passage Hampson v Hampson - Estate of the late Iris Willena Hampson [2010] NSWSC 217, which is particularly relevant to the claim of Suzanne:

"72 Having regard to the course which Lynne Hampson's life has taken up to now it is unlikely that she will ever achieve significant earnings or economic independence. There are no aspects of her conduct or character, towards her mother or otherwise, which are significantly adverse to her claim for provision out of her mother's estate. She falls into a well recognised class of adult sons and daughters, sometimes identified by a harsh sobriquet, who are incapable of economic independence for reasons that are not strikingly unmeritorious and for whom parents should make adequate provision for maintenance and advancement, even though overall the result may seem hard to some degree on other family members who do not have corresponding shortcomings."

Relevantly, in respect of Julie, Menzies and Fullager JJ in Blore v Lang at 134-5, commented in respect of "a married woman with a healthy husband in satisfactory employment who supports her in reasonable comfort" that, "[H]er 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, 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."

It is also necessary to consider the duty owed to Marci. In relation to the duty owed by a deceased to his widow, generally, it is to ensure, to the extent to which his assets permit him to do so, that she is secure in the matrimonial home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies: see, for example, Luciano v Rosenblum (1985) 2 NSWLR 65, at 69. That "broad general rule" was approved, by the Court of Appeal, in O'Loughlin v O'Loughlin [2003] NSWCA 99. These cases are cases where the widow was the applicant. Here Marci is not. She is the sole beneficiary of the deceased's estate.

As was recently said in Edgar v Public Trustee for the Northern Territory & Anor [2011] NTSC 5 at [46]:

"There is no onus on the widow as residuary beneficiary under the will to show that she is entitled to be treated as such - or to prove what may be necessary for her proper maintenance and support. Rather the onus is on the plaintiff to show that proper provision is not available for him under the terms of the will. In determining whether this is the case the Court must have regard to all relevant circumstances including the size of the estate and the nature of the competing claim by the widow. In performing this task the Court must have due regard to the will of the testator and should interfere only to the minimum extent necessary to make adequate provision for the proper maintenance, education and advancement in life of an applicant who has passed the first jurisdictional hurdle. As Dixon CJ said in the passage from Scales quoted above, due regard must be had to "what the testator regarded as superior claims or preferable dispositions" as demonstrated by his will." (Omitting citation)

In this case, there is one other principle that should be remembered. In Re Buckland deceased , Adam J was applying section 5 of the Administration and Probate Act 1958 (Vic) which gave the Court jurisdiction to make provision where the distribution of an estate was such " as not to make adequate provision for the proper maintenance and support of the deceased's ... children ". At 415, his Honour said:

"I consider the proper conclusion to be drawn from the authorities is that the court's jurisdiction, whatever the size of the estate, is limited by the claimant's need for maintenance and support; but that the maintenance and support to which he or she may for this purpose be treated as needing is that appropriate to his or her station or condition in life. For a child, particularly a dependant daughter of an exceptionally wealthy father, the standard of maintenance may justly be set high ensuring a degree of comfort and freedom from anxiety for the future which for those not so circumstanced might well seem somewhat extravagant, but it should fairly come within the conception of maintenance and support. The greater the estate the more may contingencies, even remote contingencies which may arise in the future, be provided for in the assessment of such maintenance."

An appeal from the judgment of Adam J was dismissed by the High Court in May 1966. The High Court found no significant error of fact or of law in the reasons for judgment of the trial judge, and could not conclude that the amount of the provision ordered in the circumstances of the case, stemmed from some misconception of fact or from some error or misapplication of principle: Buckland v Trustees Executors and Agency Co. Limited (1966) 40 ALJR 164.

In Anasson v Phillips (NSWSC, 4 March, 1988, unreported) Young J (as his Honour then was) said:

"With a very large estate ... there is great temptation on a Court to be overgenerous with other people's money. This is especially so when the Court can see that Plaintiffs have been very hardly done by at the hands of a domineering testatrix. However, the case should not be approached in this way, as the application has to be determined in accordance with the legal principles. These principles include the fact that in Australia there is freedom of a person to leave her property in whatever way she wishes, to love whom she wishes, to hate whom she wishes, and it is only when there has been a failure to comply with a moral duty to those who in the community's eyes she should have made proper provision for, that anyone can legally complain about another person's will. Even then, the Court has no power to rewrite the will, but can only adjust things, in substitution for the testatrix, in such a way as to fulfil her moral duty.

If the estate is a large one, the Court has a slightly different approach. The basic principles are the same, that is, the will can only be affected to the extent that it is necessary to discharge the moral duty by making adequate provision for the Plaintiffs, but where there is a large estate, competition between claimant and claimant, and claimant and beneficiary under the will is much reduced or eliminated. Further, there may be a more liberal assessment of the moral duty owed, to be reflected in what is proper provision for the Plaintiffs. In particular, the lifestyle that has been enjoyed by the Plaintiffs, because they have been associated with a wealthy testatrix, is a relevant factor."

These last two mentioned cases have been referred to and followed many times. They remain relevant.

Consideration

There is no dispute that Suzanne and Julie, as a child of the deceased, is each an eligible person within s 6(1)(b) of the Act.

I must first consider, whether, at the present time, adequate provision for the proper maintenance, education, or advancement in life, of each has not been made, during the lifetime of the deceased or by his Will.

There was no provision in the deceased's Will made for either. This does not, automatically, mean that she will have established the jurisdictional threshold. This general statement is confirmed because of the generosity of the deceased to each of Suzanne, and to a lesser extent to Julie, during his lifetime, which, also, must be considered: s 9(2)(a) of the Act.

Taking into account all of the matters that I am required to consider in the first stage, including the financial position of each, the size and nature of the estate, the relationship between each and the deceased and the relationship between the deceased and other persons who have legitimate (and in this sense competing) claims upon the deceased's bounty (the widow and their children), I am satisfied that each has satisfied the jurisdictional threshold.

In the case of Suzanne, that is, in my view, quite clear. There was faint argument in opposition to such a conclusion.

In relation to Julie, whilst she and her husband own their home, it is subject to a very small mortgage. They have three investment properties but each is encumbered. Julie has some superannuation, which is not, on any view, large bearing in mind her age, and the amount is not likely to increase significantly between now and her retirement. She has some, but not a great, earning capacity. She does not, have any reasonable capital sum immediately available to protect her from the vicissitudes of life. Also all of her property is owned jointly with Phillip (other than superannuation which is modest).

It is then necessary to consider whether to make a family provision order and the nature of any such order. In this regard, I do not forget s 9(3). I have earlier dealt with s 9(3)(a) of the Act. So far as s 9(3)(b) is concerned, there is nothing in the character, or conduct, of either Suzanne or Julie before, or after, the deceased's death adverse to her claim. Subsections 9(3)(c) and (d) are general and I have dealt with factual matters that may be relevant under one, or other, of these sub-sections.

In the case of Suzanne, I am of the view that an order for provision should be made for her. Her financial need is for a capital sum that (a) will enable her to pay any debts, or reasonable expenses, that she will incur, as well as provide for the vicissitudes of life, and (b) will be sufficient to pay for required medical, and other, expenses of care, as her condition worsens. In relation to (b), there are two periods to consider, namely (i), until the age of 65 years and (ii) from then until her death.

The first lump sum (what is described as (a)) should be $165,000, payable to Suzanne, which she will be able to use as she wishes. Until it is spent, it might also provide an income to supplement her pension.

The second (what is described as (b)(i)) should be $185,000, should be used to provide for the expenses associated with her care between now and the age of 65 years. A trustee, who has discretion to advance income, or capital, to her for her general care should be appointed to hold the amount on her behalf.

The third (what is described as (b)(ii)) should be $300,000, should be used to provide for the expenses of care from the age of 65 years. Until that time, it should be held, on her behalf, by a trustee, and be prudently invested for capital growth. From the age of 65, or if the court otherwise orders before then, the trustee shall have a discretion to advance income or capital for Suzanne's care. (I have referred to the court making a further order in the event that Suzanne to allow for the possibility that she may need the level of care described earlier than in 10 years time.)

In regard to the second and third parts, I have not based my conclusions solely on the estimates provided by the Occupational Therapist, but consider that the total lump sum ($650,000) is what is adequate and proper in all the circumstances of this case, taken with the capital sum referred to in the first part. Whilst I have imposed a trust on part of that lump sum, it is not my intention that the capital does not vest in Suzanne. I have imposed the trust so as to protect part of the total amount from immediate expenditure, and so that Suzanne will be looked after as her condition deteriorates.

Upon Suzanne's death, any amount in relation to capital amounts held by the trustee, and which is not expended, will form part of Suzanne's estate.

In relation to the power of the court to make this type of order, I rely to s 11 of the Act, which enables the court to require the provision to be made by way of lump sum (s 11(1)(a)), and specify the manner in which a sum of money is to be paid, or made available, to the person in whose favour the order is made (s (11)(1)(c). There was no suggestion during submissions that this type of an order could not be made.

In addition, the court is also entitled to take into account the history of Suzanne's expenditure of money not only on gambling. A wise and just parent would be likely to take that sort of expenditure into account in fixing the amount of provision, but also in deciding whether it should be protected in some way (cf Bondy v Vavros (NSWSC, Young J, 29 August 1988, unreported at 10)).

In the case of Julie, I am of the opinion that a lump sum of $290,000 should be provided to her absolutely.

In reaching my conclusions as to the provision that should be made, the total amount of the provision is $940,000. I am satisfied that the size of the actual and notional estate permits, and justifies, a generous assessment of the provision that ought to be made. It will still leave property with a value of approximately $2,265,000 that Marci will retain (even after the payment of costs as estimated).

I shall allow the Defendant an opportunity to decide the manner in which she can satisfy the payment of each of the lump sums and, therefore, which property should be the subject of a notional estate order. As requested, I shall not designate particular property of the Defendant as notional estate.

The lump sum, in each case, should be paid within 28 days of the making of orders, failing which, interest on any amount not so paid, should be paid, such interest to be calculated at the rate prescribed on unpaid legacies by the Probate & Administration Act 1898, from that date until the date of payment.

If the parties are unable to reach agreement on the way in which either of the lump sums is to be paid, the identity of the trustee to hold the amount of $485,000, or on any other matter necessary to give effect to these reasons, I shall, hear further short submissions on any aspect in dispute.

The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules.

Subject to any argument about costs, I would propose to make the usual order for costs.

The parties are to bring in short minutes. The proceedings are adjourned to a date to be fixed.

**********

Decision last updated: 19 May 2011

Medium Neutral Citation:	Young & Grainger v Outtrim [2011] NSWSC 391
Hearing dates:	27, 28, 29 April 2011
Decision date:	13 May 2011
Jurisdiction:	Equity Division
Before:	Hallen AsJ
Decision:	(i) Having found that each Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, the first Plaintiff should receive a lump sum of $650,000 (subject to [126], [127] and [128]), and the second Plaintiff should receive a lump sum of $290,000. (ii) The Defendant should be allowed an opportunity to decide the manner in which she will satisfy the payment of each lump sum, and, therefore, which property should be the subject of a notional estate order. (iii) Each lump sum should be paid within 28 days of the making of orders, failing which, interest on any amount not so paid, should be paid, such interest to be calculated at the rate prescribed on unpaid legacies by the Probate & Administration Act , 1898, from that date until the date of payment. (iv) If the parties are unable to reach agreement on the way in which the lump sums are to be paid, I shall, hear further short submissions on which property should be designated as notional estate, and any consequential orders. (v) Subject to any argument about costs, I would propose to make the usual order for costs. (vi) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules. (vii) The parties are to bring in short minutes. (viii) The proceedings are adjourned to a date to be fixed.
Catchwords:	The Plaintiffs, the children of the deceased by his first marriage, seek a family provision order out of the estate or notional estate of the deceased and an order designating property as notional estate - The deceased provided for the whole of his estate to pass to the Defendant, his wife of 32 years - Reasonably large estate or notional estate - Whether provision should be made for each Plaintiff and, if so, the nature of the provision to be made
Legislation Cited:	Administration and Probate Act 1958 (Vic) Family Provision Act 1982 Probate & Administration Act 1898 Succession Act 2006 Succession Amendment (Family Provision) Act 2008
Cases Cited:	Allardice in re, Allardice v Allardice, (1910) 29 NZLR 959 Alexander v Jansson [2010] NSWCA 176 Anasson v Phillips (NSWSC, Young J, 4 March, 1988, unreported) Anderson (deceased), re (1975) 11 SASR 276, 284 Blore v Lang [1960] HCA 73; (1960) 104 CLR 124 Bondelmonte v Blanckensee [1989] WAR 305 Bondy v Vavros (NSWSC, Young J, 29 August 1988, unreported) Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Buckland v Trustees Executors and Agency Co. Limited (1966) 40 ALJR 164 Buckland deceased, re [1966] VR 404 Carey v Robson; Nicholls v Robson [2009] NSWSC 1142 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54 Durham v Durham [2011] NSWCA 62 Edgar v Public Trustee for the Northern Territory & Anor [2011] NTSC 5 Foley v Ellis [2008] NSWCA 288 Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Green, deceased; Zuckerman v Public Trustee; in re [1951] NZLR 135 Hampson v Hampson [2010] NSWSC 217 Harris, re (1936) SASR 497 Hastings v Hastings [2010] NSWCA 197 Hawkins v Prestage (1989) 1 WAR 37 Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134 Hyland v Burbidge [2000] NSWSC 12 Kay v Archbold [2008] NSWSC 254 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Lee-James [2006] WASC 224 Lloyd-Williams v Mayfield [2005] NSWCA 189 Luciano v Rosenblum (1985) 2 NSWLR 65 McCosker v McCosker [1957] HCA 52 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Mayfield v Lloyd-Williams [2004] NSWSC 419 Neil v Jacovou [2011] NSWSC 87 O'Loughlin v O'Loughlin [2003] NSWCA 99 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9 Puckridge (dec'd), in the Estate of (1978) 20 SASR 72 Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100 Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Taylor v Farrugia [2009] NSWSC 801 Tchadovitch v Tchadovitch [2010] NSWCA 316 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Vukic v Grbin; Estate of Grbin [2006] NSWSC 41 Walker v Walker (NSWSC, 17 May 1996, unreported) Worladge v Doddridge (1957) 97 CLR 1
Texts Cited:	Government Gazette No. 38, 20 February 2009
Category:	Principal judgment
Parties:	Suzanne Elizabeth Young (first Plaintiff) Julie Louise Grainger (second Plaintiff) Marci Anne Outtrim (Defendant)
Representation:	Counsel: Mr M Thompson (Plaintiffs) Mr L Ellison SC; Ms M Painter (Defendant) Solicitors: Gerard Malouf & Partners (Plaintiffs) Masons Lawyers (Defendant)
File Number(s):	2009/288577

Assets
(a)	Mitchell Street, Stockton:	$1,250,000
(b)	Elder Street, Lambton:	$300,000
(c)	Scott Close, Raymond Terrace:	$250,000
(d)	Links Drive, Raymond Terrace:	$250,000
(e)	Quintrex boat:	$10,000
(f)	Household furniture:	$50,000
Liabilities
(a)	Mortgage Loan IMB:	$21,000
(b)	Mortgage Loan NPBS:	$114,000
(c)	Mortgage Loan NPBS:	$89,000
(d)	Mortgage Loan IMB:	$185,000

(a)	Replace the kitchen:	$35,000	(est)
(b)	Replace household furniture:	$50,000	(est)
(c)	Re-carpet the house:	$8,000	(est)
(d)	Purchase new curtains:	$15,000	(est)
(e)	Renovate the bathrooms:	$25,000	(est)
(f)	Repair or replace two cracked windows:	$1,000	(est)
(g)	Replace the furniture in the children's bedrooms:	$15,000	(est)
(h)	Install a swimming pool:	$40,000	(est)
(i)	Pay off mortgages on her investment properties at Lambton and Raymond Terrace:	$380,000
(j)	Holiday in Australia and another holiday overseas:	$38,000
(k)	Pay off a loan taken out to pay for her stepsons to establish a smash repair business:	$21,000
(l)	Reduce her daughter Terriann's mortgage:	$250,000
(m)	Reduce her daughter Kelly's mortgage:	$220,000
(n)	Reduce her daughter Kelly's HECS debt:	$15,000
(o)	Reduce her stepson Ben's mortgage:	$380,000
(p)	Provide financial help to her daughter, Leah, who is currently paying rent
(q)	Provide financial help to her stepson, Karl, who is currently paying rent after selling his home

(a)	Medowie property (family home):	$725,000
(b)	Medowie property (land):	$545,000
(c)	Fern Bay property:	$270,000
(d)	Fern Bay property:	$315,000
(e)	Fullerton Cove property:	$390,000
(f)	Kurri Kurri property:	$70,833
(g)	ANZ Term Deposit:	$400,000
(h)	CBA Account 065:	$17,274
(i)	CBA Account 403:	$1,574,409
(j)	CBA Term Deposit:	$527,388
(k)	CBA Netbank Saver Account:	$144,010
(l)	Cash in safety deposit box:	$140,000
(m)	Bond with Reserve Bank:	$250,000
(n)	Gold bullion held in safety deposit box:	$490,006
(o)	Superannuation investments:	$1,428,957
(p)	2006 Range Rover:	$85,000
(q)	1997 Range Rover:	$7,000
(r)	Box trailer:	$500
(s)	Farm equipment:	$90,000
(t)	Jewellery:	$18,000
TOTAL	$7,488,377