Anderson v Hill

Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31 Goodsell v Wellington [2011] NSWSC 1232 Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison [1997] 2 VR 359 Harkness v Harkness (No 2) [2012] NSWSC 35 Hawkins v Prestage (1989) 1 WAR 37 Henry v Hancock [2016] NSWSC 71 Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2 Hunter v Hunter (1987) 8 NSWLR 573 Hyland v Burbidge [2000] NSWSC 12 Ilott v The Blue Cross [2017] 2 WLR 979; [2017] UKSC 17 In the estate of Puckridge, Deceased (1978) 20 SASR 72 John v John [2010] NSWSC 937 Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 Kohari v NSW Trustee & Guardian [2017] NSWSC 1080 Langtry v Campbell (Supreme Court (NSW), Powell J, 7 March 1991, unrep) Lillis v Lillis (2010) NSWSC 359 MacGregor v MacGregor [2003] WASC 169 Magill v Magill (2006) 226 CLR 551; [2006] HCA 51 Marks v Marks [2003] WASCA 297 Marshall v Carruthers [2002] NSWCA 47 Mayfield v Lloyd‑Williams [2004] NSWSC 419 McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Milillo v Konnecke (2009) 2 ASTLR 235; [2009] NSWCA 109 Miller v Miller [2006] 2 AC 618; [2006] UKHL 24 Moore v Moore (Supreme Court (NSW), Huntley JA, 16 May 1984, unrep) Pearson & Ors (Joint Administrators of Lean Brothers International (Europe)) v Lehman Brothers Finance (SA) [2010] EWHC 3044 (Ch) Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 Radmacher v Granatino [2011] 1 AC 534; [2010] UKSC 42 Re Bourke (dec'd) and the TFM Act [1968] 2 NSWLR 453 Re Buckland, Deceased [1966] VR 404 Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308 Salmon v Osmond [2015] NSWCA 42 Samsley v Barnes [1990] NSWCA 161 Sellers v Scrivenger [2010] VSC 320 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297 Smith v Woodward (Supreme Court (NSW), Macready M, 9 September 1994, unrep) Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stone v Stone [2016] NSWSC 605 Stott v Cook (1960) 33 ALJR 447 Sung v Malaxos [2015] NSWSC 186 Taylor v Farrugia [2009] NSWSC 801 Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Vincent v Lewis [2006] NZFLR 812 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) White v Barron (1980) 144 CLR 431; [1980] HCA 14 Wilcox v Wilcox [2012] NSWSC 1138 Texts Cited: R Croucher, "Contracts to Leave Property by Will and Family Provision after Barns v Barns [2003] HCA 9" (2005) 27(2) Sydney Law Review 263 Category: Principal judgment Parties: David John Anderson by his tutor NSW Trustee and Guardian (Plaintiff) George Edward Charles Hill (Defendant) Representation: Counsel: A F Stevens (Plaintiff) P O'Loughlin (Defendant)

Solicitors: Makinson d'Apice Lawyers (Plaintiff) Segal & Associates (Defendant) File Number(s): 2016/145932 Publication restriction: Nil

Judgment

1. HIS HONOUR: Michele Leonie Hill ("the deceased") died on 17 May 2015, aged 70 years, having made a Will on 6 March 2015. By that Will, and in the events that happened, she left the whole of the estate to her husband, George Edward Charles Hill, who is the Defendant in these proceedings.
2. The Plaintiff, David John Anderson, is one of the deceased's five children from her prior marriage, and her only son. He seeks provision, by way of a family provision order, out of the deceased's estate and notional estate, pursuant to the Succession Act 2006 (NSW) ("the Act"). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. It replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the Court in relation to the estate, or notional estate, of a deceased person, to provide from that estate, for the maintenance, education, or advancement in life, of an eligible person. The relief sought by the Plaintiff also includes an order that the costs of the proceedings be paid out of the estate of the deceased.
3. As has been read, a family provision order may be made in relation to the estate of a deceased person, but may also be made in relation to property that is not part of the deceased person's estate, if it is designated as "notional estate" of the deceased person by an order under Part 3.3 of the Act: s 63. At the commencement of the hearing, the parties agreed that the property sought to be designated as notional estate of the deceased is the deceased's one half interest as joint tenant in real estate at Ulm Street, Ermington, ("the Ermington property") a suburb of Sydney.
4. There is no dispute that the Plaintiff commenced the proceedings within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased), the Summons having been filed on 12 May 2016. An Amended Summons, naming the correct Defendant, was also filed on 12 May 2016. A Further Amended Summons was subsequently filed on 21 July 2017, nominating a tutor for the Plaintiff, since, by that date, as will be read, he had become a person under a legal incapacity, namely a protected person within the meaning of the NSW Trustee and Guardian Act 2009 (NSW). When new solicitors were appointed to represent the Plaintiff, they filed a Consent to Act as Tutor on behalf of the NSW Trustee and Guardian on 20 July 2017. (A Consent to Act as tutor had been filed on 1 February 2017 by the Plaintiff's previous solicitor, but the basis for his doing so is not clear.)

Formal Matters

1. The following outline of the factual background records my findings of fact based on unchallenged evidence, or where I am satisfied that the background fact is established on the balance of probabilities.
2. The deceased was born in October 1944.
3. The deceased was married to the Defendant in 1991, and they remained married at the date of her death 24 years later. There were no children of their marriage.
4. The deceased, previously, had been married to John William Anderson, but they separated, and were subsequently divorced, on dates not clear on the evidence. There were five children of their marriage, namely Karen Yvonne Taverniti, Fiona Michele Harris, Leigh Blanche Wolki, Angelique Grace Elliot and the Plaintiff (who was born in February 1972, and who is 45 years old), none of whom, other than the Plaintiff, have been involved in these proceedings.
5. The deceased's first husband predeceased the deceased, having died in August 2014.
6. The Defendant has four children from his prior marriage. He does not have a close relationship with any of them and says that he has not seen them for over 26 years.
7. As stated, the deceased left a Will made on 6 March 2015 in which she named the Defendant as the sole executor and universal legatee of the whole of her estate. The Will provided that, in the event the Defendant did not survive the deceased, the whole of her estate was to pass to her five children equally, and if more than one, as tenants in common in equal shares.
8. The Defendant has not sought Probate of the deceased's Will and does not intend to do so. The parties agreed that if it were necessary to do so, (against the submissions of the Defendant) an order should be made under s 91 of the Act, which applies if an application is made by a person for a family provision order, or notional estate order, in respect of the estate of a deceased, in relation to which administration has not been granted. Then, the Court may, if it is satisfied that it is proper to do so, grant administration in respect of the estate of the deceased to the applicant, for the purposes only of permitting the application concerned to be dealt with, whether or not the deceased left property in New South Wales.
9. As I propose to dismiss the proceedings, for the reasons to which I shall come, it is not proper to make an order under s 91 of the Act.

Acquisition of the Ermington Property

1. The Defendant has lived in the Ermington property for about 45 years (since about 1972), having purchased the property with his former wife, and then having acquired her interest after their separation in about 1984. He made a payment of $50,000 to her for her interest and the Transfer of the property to him was dated 9 June 1989.
2. It appears that the Defendant transferred the Ermington property to himself and the deceased, by Transfer dated 20 May 1993 (Ex. 1). The consideration shown on the Transfer is $56,500. The Defendant recollects that the deceased had the amount available and that, after payment, it was deposited into a joint account held in their names. He stated, and I accept, that the amount was subsequently used for "household improvements and living expenses" for them both.
3. The deceased and Defendant also took out a loan of $16,000 for further improvements to the Ermington property, but there is no evidence of how this loan was repaid. At the time, apparently neither was employed.
4. The Defendant gave evidence that the deceased also contributed about $80,000 towards the Ermington property in about 2004-2005, from an inheritance she received from her mother's estate. He contributed about $120,000, which he inherited from a friend, and, then, in about 2006, an amount of $178,000, which he received from his mother. All of these amounts were put towards the cost of rebuilding, and improvements made to, the house on the Ermington property.
5. (Although there was a suggestion in the Plaintiff's submissions that the Defendant's contributions were in issue, he was not asked any questions about them in cross-examination. In any event, there is no reason not to accept the Defendant's evidence in this regard.)
6. Following the death of the deceased, the Defendant was registered as the sole proprietor of the Ermington property, it appears, on about 24 July 2015. (I have taken this date from a copy of a Title Search at Land and Property Information New South Wales, printed on 14 July 2017, annexed to the affidavit of Ms M B Rice affirmed 19 July 2017.) The Defendant remains the sole registered proprietor of the property and it is, by far, his most valuable asset.

The Deceased's Testamentary Intentions

1. The deceased made a number of Wills during her lifetime, being on 16 March 2006, 20 February 2013, 6 March 2013, 29 August 2013 and 6 March 2015. A copy of each of these Wills was annexed to an affidavit affirmed on 9 August 2017 by Mr Sinnadurai.
2. In the Will made on 16 March 2006, the deceased relevantly provided: "3. I GIVE DEVISE AND BEQUEATH to my Trustees my residence known as [the Ermington property] or any other house or residence which shall be owned by me and in which I shall be usually residing at my death together with all household furniture furnishings and effects and other articles of household or domestic use or ornament belonging to me at my death ("my house and furniture") UPON TRUST to permit and allow my husband to have the use occupation and enjoyment thereof or to receive the net income therefrom during his lifetime on condition that he shall keep the house and furniture in good tenantable repair and condition (having regard to the condition thereof at the date of my death) and insured against loss or damage by fire storm and tempest in the names of and to the satisfaction of my Trustees who shall lay out any moneys received in respect of any such insurance in replacing or reinstating the property destroyed or damaged or in purchasing similar property to be held upon and subject to the same trusts and provisions as the property destroyed or damaged AND I DECLARE that upon the death of my husband if he shall survive me or upon my death if he shall not survive me my Trustees shall stand possessed of my house and furniture UPON THE FOLLOWING TRUST :- A. As to one half for such of my children and being KAREN YVONNE TAVERNITI, LEONIE JEAN ANDERSON, LEIGH BLANCH WALKI, FIONA MICHELLE HARRIS AND DAVID JOHN ANDERSON as shall then be living and if more than one equally as tenants in common; B. As to the remaining half for such of my husband's children and being SHEREE LEANNE HILL, GEORGE EDWARD SHANE HILL, SAMANTHA LOUISE HILL AND SHANE MICHAEL HILL as shall then be living and if more than one equally as tenants in common"
3. (It is difficult to see how the provision made would take effect since, at the time, the Ermington property was held by the deceased and the Defendant as joint tenants. However, it is possible that if another property had been purchased, it would be held otherwise than as joint tenants.)

Claim for a Family Provision Order

1. I shall next discuss the statutory scheme and what I have described as general principles. I have discussed these in many cases. For the benefit of the parties, I shall refer to part of what I have written. Where necessary, I shall add other relevant principles.

Eligibility

1. The key provision of the Act is s 59. As stated, the Court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1): s 59(1)(a). There is no dispute that, as a child of the deceased, the Plaintiff is an eligible person within the meaning of that term in s 57(1)(c) of the Act. The language of the relevant sub-section is expressive of the person's status, irrespective of age, as well as his, or her, relationship to the deceased.

Whether adequate provision for the proper maintenance, education or advancement in life of the Plaintiff has not been made in the Will

1. Since eligibility is established, the Court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased: s 59(1)(c). Only then may "the Court … make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made": s 59(2).
2. "Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34] (Basten JA, with whom Allsopp P and Ipp JA agreed), 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".
3. Neither the word "maintenance", nor the phrase "advancement in life", is defined in the Act. However, in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement": "'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education."
4. Although discussed in the context of legislation in the United Kingdom that has a few similarities, (and omitting parts of the reasons that, clearly, would not apply to the Act) in Ilott v The Blue Cross [2017] 2 WLR 979; [2017] UKSC 17, at [14]-[15], the following passage in the judgment of Lord Hughes (with whom Lord Neuberger P, Lady Hale DP, Lord Kerr, Lord Clarke, Lord Wilson and Lord Sumption agreed) appears: "The concept of maintenance is no doubt broad… It must import provision to meet the everyday expenses of living… The level at which maintenance may be provided for is clearly flexible and falls to be assessed on the facts of each case. It is not limited to subsistence level. Nor, although maintenance is by definition the provision of income rather than capital, need it necessarily be provided for by way of periodical payments, for example under a trust. It will very often be more appropriate, as well as cheaper and more convenient for other beneficiaries and for executors, if income is provided by way of a lump sum from which both income and capital can be drawn over the years… Lump sum orders are expressly provided for… There may be other cases appropriate for lump sums …"

Notional Estate

1. The notional estate provisions of the Act are dealt with in Part 3.3 of the Act. However, in s 3 of the Act, "notional estate" of a deceased person is defined as meaning "property designated by a notional estate order as notional estate of the deceased person". "Notional estate order" means "an order made by the Court under Chapter 3 designating property specified in the order as notional estate of a deceased person".
2. It has been said, in respect of the notional estate provisions in the former Act, that an applicant for provision "may now apply in the same proceedings for orders for relief and designating property as "notional estate" thereby compelling the "disponee" of a "prescribed transaction" to provide money or property for the purpose of making financial provision for the applicant": Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422 at 441. (Although the terminology in the Act is different, the same principle applies under the Act.)
3. Rosalind Croucher in "Contracts to Leave Property by Will and Family Provision after Barns v Barns [2003] HCA 9" (2005) 27(2) Sydney Law Review 263 has commented on the notional estate provisions of the former Act: "The introduction of the notional estate provisions brought to the forefront the distinction of 'estate versus notional estate' that had been implicit in the decisions on the legislation prior to the introduction of the Family Provision Act 1982 (NSW). It made explicit in the legislation that 'estate' and 'notional estate' were different. Things subject to contracts (like mutual wills) were not within the definition of 'estate'. To bring such property within the legislation required now the application of the complex procedures and definitions of 'notional estate'. This requires a particular kind of transaction, an absence of relevant consideration, a defined time frame in which the transaction took effect and a range of other matters to be considered before property can be designated as notional estate and made the subject of an order for family provision under the Act."
4. In Galt v Compagnon (Supreme Court (NSW), Einstein J, 24 February 1998, unrep) Einstein J, at 21, wrote that notional estate was "a complex concept" but shortly described it as "property which would have become part of the deceased's estate, had it not been dealt with, or had it been dealt with, by the deceased in a particular way and in particular circumstances, prior to his or her death".

Some Additional Principles

1. There are some other general principles that should be identified, for the benefit of the parties.
2. Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges and I have repeated them in many cases under the Act.
3. Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1 at 6, that it is not appropriate to endeavour to achieve "an overall fair" disposition of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants. As Pembroke J has recently repeated in Sung v Malaxos [2015] NSWSC 186 at [5]: "Fairness and equality are not touchstones for relief under the Succession Act."
4. The Court's discretion under the Act 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) 107 CLR 9, at 19 (Dixon CJ); [1962] HCA 19; McKenzie v Topp [2004] VSC 90 at [63] (Nettle J).
5. In Stott v Cook (1960) 33 ALJR 447 at 453-4, Taylor J, although dissenting in his determination of the case, observed 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."

Qualifications on "Principles"

1. As long ago as 1980, in White v Barron (1980) 144 CLR 431 at 440; [1980] HCA 14, Stephen J wrote: "[T]his jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application."
2. As I have stated in a number of cases (see, for example, Bowditch v NSW Trustee and Guardian), I do not intend what I have described as "principles" or "general principles" to be elevated into rules of law, propositions of universal application, or rigid formulae. They may give some assistance and provide some guidance.
3. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, fetter the Court's discretionary power.
4. It is necessary for the Court, in each case, after having regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the bases for a family provision order have been established. Every case is different and must be decided on its own facts. As Lindsay J said in Verzar v Verzar at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."
5. The importance of the qualifications to which I have referred in the last two paragraphs have been stressed in Chapple v Wilcox at [18]-[20] and at [66]-[67] (Basten, Barrett and Gleeson JJA); and in Burke v Burke (2015) 13 ASTLR 313; [2015] NSWCA 195 at [84] - [85] (Ward JA, with whom Meagher and Emmett JJA agreed). They must be remembered.

Can an Order be made for provision which is to be paid in the future?

1. Somewhat surprisingly, bearing in mind what I understood to be the Plaintiff's submission, the Defendant was asked by counsel whether he was aware that "these proceedings by the Plaintiff have never been commenced with the intention of removing you from your home" to which the Plaintiff responded that he had not been so informed: T30.48 - T31.12.
2. The written submissions by counsel for the Plaintiff had included: "57. An order for provision should be made. An order for provision by way of lump sum payable in the usual way may be appropriate if the Property is to be sold (say to pay the Defendant's legal costs, or otherwise) or if the Defendant is able to secure finance for the payment of provision and costs. 58. Alternatively, an order for provision may be made from the deceased's notional one-half interest in the Property, with the Defendant receiving a two-thirds interest in the deceased's one-half notional estate interest absolutely and a life estate in the other one-third share, and the Plaintiff receiving the remainder in the said one-third share: see for example, Stone v Stone [2016] NSWSC 605 per Brereton J at [79]. This has the benefit of securing a fund for the Plaintiff in the future and causing minimal disturbance to the Defendant."
3. Of course, the only ways in which a lump sum could be paid to the Plaintiff would be from proceeds of sale, or if the Defendant obtained finance to enable such a lump sum payment to be made. However, precisely how the Defendant would be able to obtain finance was not the subject of any evidence. For example, there was no evidence served on the Defendant going to the issue of obtaining what was described as a "reverse mortgage". After the reading of the affidavits, I rejected the tender of a document regarding the availability, and cost, of a reverse mortgage, because I considered that it was unfair to the Defendant to have to deal with it at that late stage of the hearing. Merely pointing to the opportunity to obtain a reverse mortgage, without any evidence of the Defendant's ability to do so, does not assist the Court in this regard.
4. In any event, the Defendant himself when asked, in cross-examination, whether he had sought any finance to enable provision to be made for the Plaintiff, he said he had not, and that he did not think that he should have the concern of having to pay substantial interest on funds borrowed to enable a payment to be made to the Plaintiff.

Additional Facts

1. I next set out some more facts by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come in relation to areas of dispute between the parties. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered.

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

1. The Plaintiff is a child of the deceased. He described an emotionally troubled adolescence and young adult life occurring against a background of growing up in a household marred by domestic violence and being physically abused by his alcoholic father. He described both his parents as rejecting him, and, as a teenager, being evicted from home and being forced to live on the streets.
2. The Plaintiff maintained that his father was violent towards him and the deceased. The Plaintiff's father repeatedly beat the Plaintiff, in front of the deceased, and he also assaulted the deceased in front of the Plaintiff. After the Plaintiff's parents divorced, the Plaintiff was required to live with his father who continued to beat him badly and often. The Plaintiff then went to live on the streets.
3. The Plaintiff lived with the deceased and the Defendant for a short period in about 1992, after the deceased and Defendant married. There was a dispute about the length of time that he did so, the Plaintiff saying that it was for several months, whilst the Defendant says that it was only for a few weeks. Whatever its duration, (and I tend to think that it was for no more than a few weeks), he was not given a key to the Ermington property and was required to enter and exit the residence through his bedroom window, the door to the room being locked in order to prevent him from gaining access to other parts of the property.
4. Whilst he stayed at the Ermington property, he did not eat with the deceased and the Defendant, did not socialise with them, watch television with them, or otherwise converse together, "other than passing comments or what was necessary".
5. The Plaintiff accepted that he was asked to leave by both the deceased and the Defendant. Indeed, the Defendant gave evidence that it was the deceased who "straightaway found him a Housing Commission place": T26.47 - T26.49.
6. The Plaintiff describes his relationship with the deceased as a close relationship. I do not accept that it was as close as he maintained.
7. The deceased visited him at his public housing unit, occasionally, and the Plaintiff visited the deceased at the Ermington property. I do not accept that the Plaintiff visited the deceased at the Ermington property about once a week, usually after he attended church on a Sunday. I tend to the view that it was less often, possibly about three or four times a year. I accept that during the visits, the deceased cooked a meal for the Plaintiff, sometimes gave him food when he left, and, sometimes, small amounts of money.

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

1. There is no definition of the words "obligations" or "responsibilities" to which the sub-section refers to in the Act. Each word is to be understood in its ordinary, grammatical meaning as the condition of being morally or legally bound.
2. The responsibility of a testator was expressed by Lord Romer in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478 - 479: "Their Lordships agree that in every case the Court must place itself in the position of the testator, and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father. This no doubt is what the learned judge meant by a just, but not a loving, husband or father."
3. Yet, the Act does not expressly refer to, or identify, any "moral duty". However, what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities to not only the applicant, but also to the beneficiary or beneficiaries. There is a balancing of potentially competing obligations.
4. Leaving aside any obligation, or responsibility, arising as a result of the relationship as parent and child, the deceased did not have any legal obligation to any of her children, once they became adults, imposed upon her by statute or common law.
5. Yet, an obligation or responsibility to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child. In Flathaug v Weaver [2003] NZFLR 730 at [32] (Rodney Hansen J); (2003) 22 FRNZ 1035; the origin of the obligation which underpins the recognition of the duty owed by a parent to a child in the equivalent Act in New Zealand was put in this way: "The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives."

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

1. The Act does not mandate separate approaches depending upon the nature and extent of the deceased's estate. Without deducting the costs of the proceedings, the estate is of a modest value (about $670,000). It would be reduced, by the incidence of costs if a costs order were to be made. However, as stated earlier, the size of the estate is but one factor that may be taken into account in determining whether to make a family provision order and the nature of any such order.

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

1. The Plaintiff resides in public housing, paying rent of about $218 per fortnight. He appears to have done so since about 1992. There is no evidence that his accommodation needs are not being met by the accommodation in which he lives.
2. His assets are household effects ($5,000); cash savings ($1,000) and moneys in a bank account ($25). He has no liabilities. His sole income is the Disability Support Pension, including an Energy Supplement and a Pension Supplement, of about $888 per fortnight. The Plaintiff lives a modest life on the pension.
3. The Plaintiff has been unemployed since about 1991. There is no indication that he will be able to undertake employment given his chronic condition, to which I shall refer. I am satisfied that he has an extremely limited earning capacity.
4. Ms Lisa Battersby, an Occupational Therapist, prepared a report dated 15 March 2017 in which she recommended that "to optimise his level of function and achieve effective management of his mental and physical health" he requires: "1. Monthly appointments with a psychiatrist, ongoing - $450 per session. 2. Weekly appointments with a clinical or forensic psychologist experienced working with individuals with psychosis, ongoing - $235 per session 3. Clinical case management at 4 hours per month - $180/hour ongoing. 4. Development of a behaviour support and mental health management plan to be utilised by all supporters - $5000. 5. Opportunity to access programs to enhance skills for self-management of conditions and social and emotional function as an inpatient or outpatient - Varied costs dependent on health insurance and programs - Allow $25 000/year for 5 years in addition to top level private health cover. 6. Consultation with a pain specialist and/or surgeon to determine appropriate treatment/management options for back pain. 7. Dental work (individual quote required) and ongoing maintenance. 8. Physical therapy programs that may include physiotherapy, exercise physiology, hydrotherapy and personal training - $20 000/year. 9. Top level private health cover to enable access to psychological and physical rehabilitation programs as an inpatient or outpatient. Inpatient programs are otherwise costed between $10 000 - $25 000 per week, depending on the facility and program. Sample top level cover with Bupa - $5000/year. (NB such programs would NOT be suitable during periods of acute deterioration). 10. Equipment: - Orthopaedic bed and mattress - allow $5000 - Height appropriate lounge chair - allow $2000 - Long handled aids/equipment e.g. shoe horn, easy-reacher - $20."

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

1. The Plaintiff does not cohabit with another person.

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

1. The medical evidence, which was not the subject of any real dispute, reveals that the Plaintiff: 1. has a long history of chronic psychological and interpersonal difficulties with the development of symptoms of post-traumatic stress disorder; 2. suffers from chronic depression; he also suffers chronic back pain; 3. has been diagnosed with chronic paranoid schizophrenia; he was previously diagnosed with Anti-Social Personality Disorder - in the absence of a documented Conduct Disorder; 4. is a "voluntary consumer" of the Ryde Hospital and Community Mental Health Service (since 1993), with intermittent assistance provided to him in 1998, 2002, 2009, 2010, twice in 2011, and in December 2012 (on a weekly and sometimes a daily basis) (the date of the report being 18 March 2013); in 2016, he was reviewed by a service medical officer at four weekly intervals; 5. currently engages with the service and accepts treatment. He is currently compliant with antipsychotic medication and is reviewed regularly by his treating psychiatrist. He continues to require ongoing psychiatric care and support in the community; 6. was admitted to Macquarie Hospital in February 2016; to Royal North Shore Hospital in April 2016; again on 5 July until 25 August 2016 and then between 3 and 14 September 2016; and again in January 2017 due to a relapse of schizophrenia, non-compliance with medication and experiencing multiple losses; he was also admitted, as a result of psychiatric issues, to Hornsby-Ku-Ring-Gai Hospital in 2016; 7. When compliant with his psychiatric treatment, he is not considered to be a risk to himself or others; 8. he was subject to a Community Treatment Order under s 51 of the Mental Health Act 2007 (NSW), in February 2017 until its expiration on 15 August 2017; 9. requires significant dental treatment (at an estimated cost of $5,621); and 10. he is subject to a financial management order under the NSW Trustee and Guardian Act which is to be reviewed in June 2018.
2. The Defendant suffers from ill health. His medical problems include cirrhosis of the liver; inflammation of his pancreas; an enlarged prostate; emphysema; diabetes; gallstones and kidney stones; arthritis of both hands and legs; asthma; tinnitus; and dental problems.

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

1. The Plaintiff is 45 years of age.

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

1. The Plaintiff asserts that he assisted the deceased in renovating the Ermington property. However, the Defendant stated, and I accept, that the Plaintiff was paid for any work that he was asked to do. I also accept that any work that he did was fairly minimal. After the deceased was diagnosed with cancer, the Plaintiff took the deceased fruits, like raspberries, strawberries and mangoes. He does not assert any other contribution. I am satisfied that he did not make any substantial contribution to the welfare of the deceased.
2. The Defendant, on the other hand, provided great assistance to her (to which I shall refer).

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

1. The Plaintiff says that the deceased made no contribution apart from small amounts of money, when he was living in "social housing" and money to help furnish his first unit.
2. However, the Defendant gave evidence that about 3 to 4 weeks prior to her death, the Plaintiff said to the deceased that he wanted "the big vase" when she died. She agreed, but the next day the Plaintiff came to the Ermington property in a taxi, without prior notice and collected the vase (which is a about 5 foot high) and left in the same taxi. The value of the vase is not disclosed in the evidence.

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

1. The statutory language permits the Court to take into account the deceased's expression of testamentary intentions, even though not incorporated in a properly executed Will.
2. I have earlier referred to the various Wills and the oral conversations said to have taken place involving the deceased.

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

1. The Plaintiff accepts that he was not being maintained either wholly or partly by the deceased before her death other than when he was a child and lived with his parents.

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

1. Apart from the Commonwealth government's responsibility to continue to provide him with a disability pension, there is no other person who is liable to support the Plaintiff.

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

1. I am satisfied that there is nothing in the character and conduct of the Plaintiff that is otherwise relevant.

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

1. The Defendant was a loving and dutiful husband to the deceased. He cared for the deceased during her 2.5 to 3 years of suffering with cancer. He always took her to her medical appointments. She did not wish to die in hospital and he ensured that she remained at home.
2. The Defendant says that he wishes to remain living in the Ermington property and that he "carr[ies] the memory of [the deceased] in the home". He does not wish to move into a home unit or smaller accommodation as "confined spaces make me feel very anxious". In addition, there is a workshop in the Ermington property where he likes working "doing various little household projects, including metal work". He would be "very distressed" if he was unable to continue doing that".

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

1. This factor is not applicable.

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

1. There is no other matter that I consider relevant.

Determination

1. Claims for a family provision order present particular difficulties where the actual and/or notional estate is modest and where there is more than one competing claim upon the bounty of the deceased. Any provision made by the Court in favour of an applicant must, in this class of case, be made at the expense of the beneficiary who has had to defend the claims and who is the chosen object of the deceased's bounty.
2. As earlier stated, the Plaintiff, as a child of the deceased, is an eligible person within the meaning of that term in s 57(1)(c) of the Act. There is also no dispute that the proceedings were commenced within the time prescribed by the Act.
3. Judged by quantum, and looked at through the prism of his financial and material circumstances, adequate provision for the Plaintiff's proper maintenance or advancement in life has not been made by the Will of the deceased, in relation to the estate and notional estate of the deceased. But that is only one, among a range, of factors that needs to be taken into account. The totality of the relationship of the Plaintiff and the deceased, the age and capacity of the Defendant, and the claim of each on the bounty of the deceased, and the size of the estate and notional estate, are very relevant factors in determining the answer to the question whether the Court is satisfied, for the purposes of s 59(1)(c) of the Act, that the deceased did not make adequate provision for the proper maintenance and advancement of the Plaintiff.
4. Such an assessment is necessary because of the relation between adequacy and propriety. Whilst the inquiry as to what is "adequate" directs particular attention to the needs of the applicant, what is "proper" requires a consideration of all the circumstances of the case, and in particular the size and nature of the estate and the needs of the other beneficiaries or potential beneficiaries.
5. Whilst I tend to think that the Plaintiff exaggerated his contact with the deceased during the last years of her life, I am satisfied that the deceased loved him as evidenced by her continued, albeit occasional, visits to his home, and the fact that he, with his siblings were named, in different percentages, the substituted beneficiaries, in all of the deceased's Wills (other than the 2006 Will, in which the Defendant was to receive a life interest) and in which they were remainder beneficiaries.

Costs

1. I propose next to deal with the issue of costs. As earlier stated, I have dealt with the relevant principles in Harkness v Harkness (No 2). I shall not repeat what I wrote in that case other than to stress the importance of the following matters: 1. No practitioner should ever advise a potential applicant contemplating a claim for a family provision order, that there is little risk, and probably much to be gained, in making a claim, however tenuous, because even if the claim fails the applicant will not be ordered to pay costs, or will be likely to get his, or her, costs out of the estate. It is now much more common than it previously was for an unsuccessful applicant to be ordered to pay the defendant's costs of the proceedings (Lillis v Lillis [2010] NSWSC 359 at [23]) and be disallowed his, or her, own costs. 2. In smaller estates particularly, the Court should be careful not to foster the proposition that obstinacy and unreasonableness will not result in an order for costs: Dobb v Hacket (1993) 10 WAR 532 at 540. 3. The Court is increasingly alert to the dangers of encouraging litigation, and discouraging settlement of such claims, at an early stage, if costs are allowed out of the estate to the unsuccessful party. Where possible, all minds should concentrate upon the need, regularly, to address the strength, or otherwise, of the case, the benefits and detriments of advancing particular arguments, and the wisdom of searching for alternative forms of resolution of the dispute, whether by compromise or even abandonment: see, albeit in another context, Pearson & Ors (Joint Administrators of Lean Brothers International (Europe)) v Lehman Brothers Finance (SA) [2010] EWHC 3044 (Ch), per Briggs J, at [12]. 4. As I have written elsewhere, "[A]n application for a family provision order ought not to be launched unless there is, or there appears to be, a real chance of success, because the result of the proceedings simply diminishes the estate and notional estate and is a significant hardship on those beneficiaries entitled if the applicant is ultimately unsuccessful in the litigation": Bruce v Greentree (No 2) [2015] NSWSC 1636 at [57].
2. In coming to my conclusion about costs, I bear in mind the following matters: 1. The Plaintiff, whilst he may have exaggerated the closeness of their relationship, did have a continuing relationship with the deceased, as demonstrated by her continued, albeit occasional, visits to his home and his visits to the Ermington property. 2. The Plaintiff suffers from a significant mental condition, which in part, may explain how he was viewed by the deceased. 3. Even though the Plaintiff failed on every level, the conclusions reached were not based on any delinquency of the Plaintiff, but rather upon, amongst other things, the nature and value of the deceased's estate, the very strong competing claim of the Defendant upon the bounty of the deceased, and his contribution to the property sought to be designated as notional estate. 4. The Plaintiff was, at the date of hearing, unemployed, and probably unemployable. He receives a disability pension. He has virtually no assets. In the circumstances, a costs order would be a substantial burden on him. Furthermore, he does not have any capacity now, or probably in the future, to satisfy any costs order. 5. At least by the time the written submissions were served, and during oral submissions, the Plaintiff suggested an alternative method of making provision for the Plaintiff that would not require the sale of the Ermington property. 6. The Defendant was protecting his own position. This is not a case where he was seeking to uphold the terms of a Will or the operation of the rules of intestacy, for the benefit of himself and others. Also, there was no evidence of any offer to resolve the proceedings made by, or on behalf of, the Defendant. (This was somewhat surprising bearing in mind the Defendant had made some provision for the Plaintiff in a number of his Wills, although he gave evidence that the last Will the subject of evidence was no longer his last Will.) 7. The conditional costs agreement, which the Plaintiff entered into with his solicitors, means that, since he is unsuccessful, he does not have to pay his own costs. Presumably, he continued the proceedings (with his current solicitors) secure in the belief that if he were unsuccessful, he would not have to bear the burden of his own costs. 8. The Defendant does not have that luxury of a conditional costs agreement and he is responsible for his own costs albeit, due to the commendable approach of his legal representatives, those costs will not have to be paid until the Ermington property is sold.

Orders

1. In all the circumstances, the Court: 1. Orders, pursuant to UCPR rule 7.8 and rule 7.10(2)(b), that the Defendant be appointed as representative of the deceased's estate and notional estate for the purpose of, and to conduct, the proceedings on behalf of the estate. 2. Orders that the Plaintiff's claim be dismissed. 3. Makes no order as to the Plaintiff's costs. 4. Orders that the exhibits be dealt with in accordance with the UCPR. (There is no need to make an order for the Defendant's costs. He has come to an agreement with his legal representatives that his costs will be paid and when.)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 August 2017