Andrew v Andrew

LEGISLATIVE CONTEXT

1. The Family Provision Act was repealed with effect from 1 March 2009, and replaced by Chapter 3 of the Succession Act.
2. By virtue of transitional provisions attending that repeal and replacement, the plaintiff's claim for family provision relief in relation to the deceased is governed by the Family Provision Act, the deceased having died before the date of repeal and replacement.
3. A claim for family provision relief in relation to Stephne (if made) would be governed by the Succession Act.
4. There is a broad similarity between the terms of the Family Provision Act at the time of its repeal and the terms of the Succession Act.
5. One difference worthy of notice is that, whereas the time limited for the making of an application for a family provision order under the Family Provision Act was 18 months after the death of the deceased person in respect of whom an application might be made, the time limited for the making of an application for a family provision order under the Succession Act is a period of 12 months: Family Provision Act, section 16; Succession Act, section 58(2). In each case, an "extension of time" can be granted upon "sufficient cause" being shown.
6. The plaintiff's application for family provision relief may be taken to have been made upon commencement of these proceedings by a statement of claim filed on 7 July 2017, notwithstanding that it erroneously applied for relief under Chapter 3 of the Succession Act rather than under the Family Provision Act. A consensual amendment of the statement of claim, effected by orders made on 12 March 2019, corrected the plaintiff's error. Procedurally, the plaintiff's amended statement of claim can be taken to have taken effect from the time the statement of claim was filed: Civil Procedure Act 2005 NSW, section 64; Baldry v Jackson [1976] 2 NSWLR 415 at 419D.
7. The plaintiff's application was made (on 7 July 2017) approximately 14 years after the date of death of the deceased (on 14 July 2003) and about 12.5 years after the date (14 January 2005) on or before which it was prima facie required (by section 16 of the Family Provision Act) to have been made.
8. In the factual setting in which the plaintiff's application has been made, her delay in making the application may be viewed as of shorter duration if (by analogy with section 58(2) of the Succession Act) it is measured, not from the date of death of the deceased person in respect of whom an application for family provision relief is made, but from the date of death (on 18 November 2016) of Stephne, his widow - whose estate, if the subject of an order for designation of property as notional estate of the deceased is made, will bear the burden of any family provision order made.
9. The plaintiff's application was made (on 7 July 2017) within about eight months of the death of Stephne, well within the period of 12 months limited by section 58.
10. Of course, this observation has no greater force than an argument advanced by the plaintiff in explanation, if not justification of her decade-long delay. However, it is not without force insofar as her application was made within the 12 month timeframe within which beneficiaries of Stephne may have been required, by considerations of prudence, not to exclude the possibility that an application for family provision relief might be made against her estate.
11. There is no dispute that, as a child of the deceased, the plaintiff is an "eligible person" within the meaning of section 6(1) of the Family Provision Act, thus affording her standing to make an application for a family provision order under section 7 of the Act.
12. So far as is material, sections 7, 9, 16, 24, 27 and 28 of the Family Provision Act are in the following terms (with emphasis added): "7. PROVISION OUT OF ESTATE OR NOTIONAL ESTATE OF DECEASED PERSON Subject to section 9, on an application in relation to a deceased person in respect of whom administration has been granted, being an application made by or on behalf of a person in whose favour an order for provision out of the estate or notional estate of the deceased person has not previously been made, if the Court is satisfied that the person is an eligible person, it may order that such provision be made out of the estate or notional estate, or both, of the deceased person 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. 9. PROVISIONS AFFECTING COURT'S POWERS UNDER SECS 7 AND 8 (1) … (2) The Court shall not make an order under section 7 or 8 in favour of an eligible person out of the estate or notional estate of a deceased person unless it is satisfied that: (a) the provision (if any) made in favour of the eligible person by the deceased person either during the person's lifetime or out of the person's estate … is, at the time the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person. (3) 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 relevant in the circumstances. (4) Nothing in subsection (3)(a) limits the generality of subsection (3) (b), (c) and (d) and the Court may consider a contribution of the same nature as that referred to in subsection (3) (a) or of a different nature in so far as it considers it relevant under subsection (3) (b), (c) or (d). (5) … (6) … 16. TIME FOR APPLICATION FOR PROVISION (1) In this section, prescribed period in respect of an application in relation to a deceased person, means: (a) … (b) …the period of 18 months after the death of the deceased person. (2) An order under section 7 shall not be made unless the application for the order is made within the prescribed period in respect of that application or within such further period as the Court may, having regard to all the circumstances of the case but subject to subsection (3), by order, allow. (3) The Court may not make an order under subsection (2) allowing an application in relation to a deceased person to be made after the end of the prescribed period unless: (a) the parties to the proceedings concerned have consented to the application being made after the end of that period, or (b) sufficient cause is shown for the application not having been made within that period. (4) The Court may make an order under subsection (2) with respect to an application in relation to a deceased person whether or not: (a) the prescribed period in respect of the application in relation to the deceased person has expired, (b) the application for the order under that subsection was made before that period expired, or (c) the application in relation to the deceased person has been made. (5) … 24. NOTIONAL ESTATE - DISTRIBUTED ESTATE On an application in relation to a deceased person, if the Court: (a) is satisfied that an order for provision ought to be made on the application, and (b) finds that, as a result of a distribution from the estate of the deceased person, property became held by a person (whether or not as trustee) or subject to a trust, the Court may, subject to sections 27 and 28, make an order designating as notional estate of the deceased person such property as it may specify, being property which is held by, or on trust for, the person or the object of the trust, whether or not that property is the property distributed. 27. DESIGNATION OF PROPERTY AS NOTIONAL ESTATE - MATTERS TO BE CONSIDERED (1) On an application in relation to a deceased person, the Court shall not make an order designating property as notional estate of the deceased person unless it has considered: (a) the importance of not interfering with reasonable expectations in relation to property, (b) the substantial justice and merits involved in making or refusing to make the order, and (c) any other matter which it considers relevant in the circumstances. (2) In determining what property should be designated as notional estate of a deceased person, the Court shall have regard to: (a) the value and nature of property the subject of any relevant prescribed transaction or distribution from the estate of the deceased person, (b) where, in relation to any such prescribed transaction, consideration was given, the value and nature of the consideration, (c) any changes over the time which has elapsed since any such prescribed transaction was entered into, any such distribution was made or any such consideration was given in the value of property of the same nature as the property the subject of the prescribed transaction, the distribution or the consideration, as the case may be, (d) whether property of the same nature as the property the subject of any such prescribed transaction, any such distribution or any such consideration could, during the time which has elapsed since the prescribed transaction was entered into, the distribution was made or the consideration was given, as the case may be, have been applied so as to produce income, and (e) any other matter which it considers relevant in the circumstances. 28. DESIGNATION OF PROPERTY AS NOTIONAL ESTATE - POWERS AND RESTRICTIONS (1) On an application in relation to a deceased person for an order for provision in favour of an eligible person, the Court shall not make an order designating property as notional estate of the deceased person unless the deceased person left no estate or unless it is satisfied: (a) that the estate of the deceased person is insufficient to allow the making of provision that, in its opinion, should be made, or (b) that, by reason of the existence of other eligible persons or the existence of special circumstances, provision should not be made wholly out of the estate. (2) On an application in relation to a deceased person, the Court shall not make an order designating as notional estate of a deceased person property in excess of that necessary to allow the making of provision that, in its opinion, should be made. (3) The exercise by the Court of its power under section … 24 … to make an order designating as notional estate of a deceased person property held by, or on trust for, a person does not limit or restrict any further exercise by the Court of that power. (4) Where, as a result of … a distribution made from the estate of a deceased person, property becomes held by a person as a trustee only, the Court shall not make an order under section … 24 … by reason of the prescribed transaction or distribution in respect of any property (other than the trust property) held by, or on trust for, the person. (5) On an application in relation to a deceased person, being an application: (a) made pursuant to an order under section 16 allowing the application to be made, … the Court shall not make an order designating property as notional estate of the deceased person by reason of a prescribed transaction or a distribution unless it is satisfied: (c) that: (i) the property was the subject of the … distribution, (ii) the person by whom it is held holds the property as a result of the … distribution as trustee only, and (iii) the property is not vested in interest in any beneficiary under the trust, or (d) that there are other special circumstances (including, in the case of an application made as referred to in paragraph (a), the incapacity, during any relevant period, of the person by or on whose behalf the application is made) which justify the making of an order so designating the property." 29. EFFECT OF ORDER DESIGNATING PROPERTY AS NOTATIONAL ESTATE To the extent that a person's rights are affected by an order made under section …24… those rights are extinguished".
13. These provisions are to be read in the context of the following definitions in section 6(1) of the Family Provision Act: 1. "'estate', in relation to a person dying leaving a will, includes property which would, on a grant of probate of the will, vest in the executor of the will or, on a grant of administration with the will annexed, vest in the administrator appointed under that grant". 2. "'notional estate', in relation to a deceased person, means property designated by the Court under section … 24… as notional estate of the deceased person". 3. "'property' includes real and personal property and any estate or interest (whether a present, future or contingent estate or interest) in real or personal property, and money, and any debt, and any cause of action for damages (including damages for personal injury), and any other chose in action, and any right with respect to property, and any valuable benefit". 4. "'will' includes a codicil".
14. I have not, in these extracts, included references to an application under section 8 of the Family Provision Act for "additional provision" following the making of an order for provision under section 7. Attention must be focussed on section 7.
15. Nor have I extracted sections 21, 22, 23, 25 or 26 of the Family Provision Act (or references to those sections in section 28), which relate to a designation of property as notional estate consequent upon the occurrence of a "prescribed transaction" before the death of the deceased person in respect of whom an application for family provision relief is made.
16. It may be necessary to have regard to those provisions in the construction of sections 24, 27 and 28. In the meantime, their complexity is best avoided in focussing attention on the text of sections 24, 27 and 28. They stipulate what is required for designation of notional estate consequent upon distribution of an estate.

The Deceased's Two Marriages and Children

1. Donald Wallace Whiteway (the deceased), an orthopaedic surgeon, died on 14 July 2003, aged 74 years. He was born in 1929.
2. He first married Sheila Whiteway (as she became known) in 1956. Although he and Sheila separated in January 1984 (when she returned to her native England) they remained married until Sheila's death on 3 December 1985.
3. There were two children of this marriage: 1. Jane (the fourth defendant), who was born in 1959 and is now aged 60 years; and 2. Elizabeth (the plaintiff), born in 1962, now aged 57 years.
4. The deceased's second marriage was to Stephne Whiteway, nee Haertsch, on 21 February 1987. Stephne, a nurse by profession, was about 27 years younger than the deceased. She was born in 1956.
5. There were no children of this marriage, which came to an end on the deceased's death.
6. Stephne died, without issue, on 18 November 2016, aged 60.
7. The deceased's daughter, Jane, is married with two adult daughters of her own. She has made no claim for relief against either the estate of the deceased or the estate of Stephne.
8. Elizabeth, the plaintiff, is a single woman, without children. She has been twice married. Both marriages ended in divorce. Her first marriage occupied the years 1991 - 1997 or thereabouts. Her second marriage, in 1998, lasted about a year. At the time of the death of her father, the deceased, she was living the life of a single, working woman pursuing the career of a corporate manager.
9. The deceased's two children by his first marriage each had a close and loving relationship with him. However, he and Sheila were not happy in their marriage. Whatever might have been the root cause of that unhappiness, Sheila was not content living in Australia, away from home.
10. The deceased's second marriage was decidedly happy. Stephne was a devoted and caring wife. The joy which she brought to the deceased's life was manifest, and has been unreservedly recognised by the plaintiff and her sister in evidence given in these proceedings.
11. The plaintiff maintained a cordial relationship with Stephne, before and after the death of the deceased, although, after his death, their common bond having been broken, the two women drifted apart socially. They maintained contact consistent with recognition of an ongoing family connection, but that fell short of regular, routine social contact.
12. After her marriage to the deceased, Stephne perceived a need, from time to time, to reassure the plaintiff (and, through the plaintiff, the plaintiff's sister) that she was conscious of a moral obligation, to the deceased if not to them, to make testamentary provision for them from wealth which had come to her by reason of her marriage to the deceased.
13. She honoured that obligation, to the extent that she left a legacy of $100,000 to each of the plaintiff and the fourth defendant, but the plaintiff claims that legacy was insufficient to satisfy her entitlement to provision from her father's estate.

Stephne's Family

1. Stephne's testamentary arrangements, and any familial obligations owed by her to or through the deceased, must be understood in the context of her birth family, within which context she was affectionately known as "Joey".
2. Stephne's parents died shortly after her marriage to the deceased. Her father died in 1990, her mother in 1993.
3. Stephne had five siblings: 1. a brother, Peter, born in March 1945 and presently aged 74 years. 2. a brother, Adrian, born in September 1946 and presently aged 73 years. 3. a sister, Antonia (Toni), born in December 1948 and presently aged 70 years. 4. a brother, Paul, who was born in April 1952 and died in about 1965. 5. a brother, Mark, born in May 1958 and presently aged 61 years.
4. Unlike his siblings, Peter is not mentioned in Stephne's will. Each of the others is named as a beneficiary, as are their (adult) children.
5. Adrian and his wife have three children, each aged in their 40s: Simon, Kathryn and Belinda.
6. Mark (divorced and presently separated from his partner) has three children aged in their 30s: Shane, Jessica and Teresa.
7. Antonia and her husband have one child (Benjamin) aged in his 40s.

WILLS AND ESTATES

1. The plaintiff's claim against the (notional) estate of the deceased, and (by reason of her application for a designation order) the estate of Stephne require that notice be taken of the testamentary arrangements made by each of her mother, her father and Stephne.

Sheila's Estate

1. The deceased's first wife (Sheila) left a will dated 12 May 1959, probate of which was granted to the deceased on 4 June 1986.
2. Under that will, the whole of Sheila's estate (the value of which is unknown) passed to the deceased.
3. Shortly after Sheila's death, from his own resources the deceased gave each of their daughters $20,000 or $30,000, representing it to them as a gift from their mother.
4. The plaintiff remembers the amount as $20,000. Her sister deposes to $30,000, the figure nominated by the deceased in a "Statement of Intention" executed by him at the time he executed his final will.

The deceased's estate

1. The deceased left a will dated 10 April 1996, probate of which was granted to Stephne on 12 September 2003.
2. By that will, the deceased gave each of his daughters a legacy of $25,000, and the residue of his estate passed to Stephne.
3. The deceased's gross estate was valued at $1,915,743.52 for probate purposes. It comprised a house at Burradoo (valued at $1,350,000 but subsequently sold for $905,000); furniture and household items (valued at $25,000); and sundry financial investments (valued at $540,743.52 in total). The deceased died without substantial debts.
4. Particular significance may attach to identification of the Burradoo house as part of the estate of the deceased. It was property owned by him which (after his marriage to Stephne) became their matrimonial home and (after his death) passed to her. In due course, when she downsized from a house to a home unit in 2011, the net proceeds of sale of the house funded her purchase of the home unit. That home unit, at Bowral, formed part of her deceased estate. The net proceeds of its sale have yet to be distributed.
5. In the context of section 24 of the Family Provision Act, this may assume importance on consideration of the plaintiff's application for property in Stephne's estate (including the net proceeds of sale of her home unit) to be designated as notational estate of the deceased. There remains in Stephne's estate, albeit in a different form, a "valuable benefit" (to adopt the final words of the definition of "property" in section 6 of the Family Provision Act) which can reasonably be identified with property distributed to Stephne from the deceased's estate.
6. The deceased's estate is represented in these proceedings by the executor to Stephne's estate, her brother Adrian. He also represents Stephne's estate. In each of his two capacities he is the plaintiff's sole contradictor.

Stephne's estate

1. Stephne left a will dated 30 June 2016, probate of which was granted to Adrian on 6 January 2017.
2. By that will: 1. Stephne directed that her residence (a home unit in Bowral purchased after she had downsized by selling the matrimonial home at Burradoo) be sold, and that the net proceeds of sale ($966,035.36) be divided between three named beneficiaries: her nephews Simon and Benjamin and her niece Belinda (with testamentary trusts established for Simon and Belinda). 2. Stephne gave pecuniary legacies (ranging from $25,000 to $125,000 and totalling $825,000) to 10 named beneficiaries, including the plaintiff and her sister: 1. Stephne's niece, Kate: $25,000 2. Stephne's friend, Harriet: $50,000 3. Stephne's brother, Mark: $55,000 4. her nephew, Benjamin: $85,000 5. her niece, Belinda: $85,000 6. her sister, Antonia: $100,000 7. her brother, Adrian: $100,000 8. the plaintiff, $100,000 9. the fourth defendant: $100,000 10. her nephew, Simon (via his testamentary trust): $125,000. 1. Stephne gave her car (valued for probate purposes at $25,000 but since sold for an undisclosed sum) to Adrian. 2. Stephne gave the residue of her estate to three named beneficiaries, her brother Mark's children (Shane, Jessica and Teresa).
3. The plaintiff and her sister represent the deceased's side of family. Most of Stephne's other beneficiaries are members of her extended birth family. The one exception was a personal friend.
4. Stephne died not only without issue but without any person in such a relationship as to be eligible to apply for a grant of family provision relief from her estate, under Chapter 3 of the Succession Act.
5. Stephne's gross estate was valued for probate purposes, at $1,936,542.08. Having been fully realised, but not distributed, it presently comprises financial investments totalling approximately $1,914,466.40 plus interest.
6. In general terms, Stephne's estate can reasonably be viewed as a product of: (a) her inheritance from her late mother and her maternal grandmother; (b) income from her own exertions as a nurse (before and after the deceased's death) and capital investments; and (c) at least to the extent of the net proceeds of sale of her Bowral home unit, her inheritance from the deceased, which funded her purchase of the home unit.
7. Stephne's father left his entire estate to her mother. When her mother died in 1993, Stephne was given an interest in property which, when realised, left her with an inheritance of approximately $450,000 from her parents. In about 2003, upon the death of her maternal grandmother, she inherited from "Nonna" a further sum of $20,000.
8. The plaintiff's application for an order that Stephne's estate, or part thereof, be designated notional estate of the deceased does not have the same force in relation to wealth accumulated by Stephne's own activities or derived from her side of the family as it might have in relation to wealth derived from the deceased's estate. This is a consideration which needs to be borne in mind in the specification of property available to be designated as notional estate pursuant to section 24 of the Family Provision Act, upon consideration of the criteria for the making of a designation order identified in section 27 of the Act; and in identifying factors which may constitute "special circumstances", within the meaning of section 28(5)(d), which may justify the making of an order for the designation of property as notional estate.

The Deceased's Pattern of Will Making

1. The Deceased's Wills. In evidence are the deceased's two known wills (respectively dated 20 May 1987 and 10 April 1996) and a document dated 10 April 1996 entitled "Statement of Intention of Testator, Donald Wallace Whiteway".
2. The terms of the second of the deceased's wills (his final will) have already been noted: his two daughters both received a legacy of $25,000, with the residue of the deceased's estate passing to Stephne.
3. The deceased's will dated 20 May 1987 (executed three months after his marriage to Stephne) gave Stephne all his real estate, together with three quarters of this residuary estate. The remaining quarter of the residuary estate was divided between the plaintiff and the fourth defendant, the deceased's daughters.
4. The Deceased's Statement of Intention. The deceased's "Statement of Intention" dated 10 April 1996 (contemporaneous with his last will) was in the following terms: "I intend that my dear wife Stephne shall inherit all of my estate save for the two specific legacies to my two daughters, Jane and Elizabeth as detailed in my Will dated 10 April 1996. I make such bequests having in mind the substantial contribution that Stephne has made to enhancing the value of our home at Burradoo both by direct financial contribution and by indirect contribution as a homemaker and wife. I am also mindful that Stephne is younger than me by some 20 or more years and it is my wish and intention that she be provided for and made secure from my estate into the future as far as possible. I note that at the time of making this my Will, my daughters Jane and Elizabeth are aged 35 and 33 years respectively. I gave each of my daughters the sum of $30,000 [sic] after the death of my first wife in 1985. I am aware that neither of my daughters is in financial need nor do either of them have any special disability that would require resourcing from my estate additional to the bequests that I have made. I further note that each of my daughters has been educated and assisted to the fullest extent possible and both are in good health".
5. The deceased's "Statement of Intention" bears his signature, witnessed by a solicitor who also attested his execution of the will dated 10 April 1996.
6. A fair inference to be drawn from the documents is that both were prepared, on the deceased's instructions, by or in the office of that solicitor. Another inference fairly available is that the "Statement of Intention" was prepared with section 32 of the Family Provision Act in mind.
7. Section 32 was to the effect that "[in] any proceedings under [the Family Provision Act], evidence of a statement made by a deceased person shall [subject to qualifications not presently material] be 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".
8. As the deceased's daughters were "eligible persons" to make an application for relief under the Family Provision Act, and the only other person who has been identified as a potential "eligible person" was Stephne, another inference to be fairly drawn from the documentation is that, in executing the "Statement of Intention" the deceased was intent upon forestalling any challenge to his will by his daughters.
9. That inference is no less soundly based for the fact that the copy of the "Statement of Intention" adduced in evidence in these proceedings was produced to the Court on subpoena by the solicitors who had acted for Stephne in preparation of her wills and in holding them in safe custody.
10. Although a "statement of intention" may have been prepared with a view to impeding a family provision application it can, axiomatically, have a contrary effect: (a) if identified reasons for the making of a will prove to have had an erroneous factual foundation; or (b) if, between the time the will was made and the time a family provision application falls to be determined, circumstances material to a determination of the application have changed.
11. In the present setting, there are grounds for holding this maxim to be true.
12. Viewed through a prism as at the date of the deceased's death, his "Statement of Intention" might have been challenged on at least two grounds of substance. First, the time of the deceased's death the plaintiff had suffered two failed marriages, undermining the deceased's implicit assumption that all was well in her world and she had no need of assistance. She was admittedly engaged in an apparently successful career as a corporate manager and was able to assist her sister financially with a gift of $15,000 from her savings. However, she was on her own and dependent upon her own exertions and resourcefulness as a means of securing her future. Secondly, she had a mortgage debt of about $460,000.
13. Viewed in the light of the plaintiff's present circumstances as required by section 9(2)(a) of the Family Provision Act, additional grounds might be noticed. First, the plaintiff has markedly aged. She is no longer the vibrant 33 year old described by the deceased. Secondly, she now suffers ill health sufficient to prevent her from working, and to qualify, for the time being, for payments from disability insurance earlier taken out by her.
14. These facts are important upon consideration of the question (the first step of reasoning identified in Singer v Berghouse (1994) 181 CLR 201 at 209 - 210 by reference to section 9(2)(a) whether the plaintiff was left without adequate provision from the deceased's estate for her proper maintenance, education and advancement in life.
15. If that question is resolved in her favour the plaintiff's position is to be assessed in light of the fact that Stephne's death removes from consideration a need to make ongoing provision for her and to secure her wellbeing. This is not to deny Stephne's historical contribution to the deceased's wellbeing, or to augmentation of his estate, or to deny the importance of taking Stephne's testamentary arrangements into account. It is, rather, to acknowledge that, on one view, the passage of time has exhausted the purpose of the deceased in limiting his testamentary provision for the plaintiff as he did.
16. This might assume importance upon consideration of the second step identified in Singer v Berghouse (at 181 CLR 209 - 210) by reference to section 7 of the Family Provision Act: Having regard to currently prevailing circumstances (as required by section 7), what, if any, provision ought to be made out of the notational estate of the deceased, should there be a designation of notional estate?

Stephne's Pattern of Will Making

1. Stephne is known to have made seven wills (including her last) and two codicils.
2. Those wills were respectively dated: 11 June 1997; 19 August 2003; 28 March 2008; 2 June 2011; 10 July 2015; 21 December 2015, with codicils respectively dated 19 January 2016 and 7 March 2016; and 30 June 2016.
3. The 1997 Will. The terms of the 1997 will are not in existence. In the course of argument, counsel for the plaintiff suggested that special significance might attach to those terms (if known) because they might provide evidence of an agreement between Stephne and the deceased about testamentary disposition of Stephne's estate.
4. That is a matter of speculation. Nothing sinister necessarily attaches to a lack of evidence of the terms of the 1997 will. Records of the firm of solicitors who evidently drafted, and kept, Stephne's will record that each of the 1997 will, the 2003 will and the 2008 will was "revoked and destroyed". Subsequent wills are simply recorded as "revoked", but revocation of the first three wills was accompanied by an act of destruction. That copies of the 2003 and 2008 wills are nevertheless available from other sources is not a cause for undue speculation.
5. If any inference is to be drawn against Stephne's estate by reason of the absence of evidence of the terms of the 1997 will, it cannot reasonably go beyond an inference (by analogy with Jones v Dunkel (1959) 101 CLR 298) that evidence of those terms could not have assisted the estate.
6. Wills subsequent to the 1997 Will. Each of Stephne's wills in evidence was made after the death of the deceased on 14 July 2003.
7. Each will made substantial provision for the plaintiff and the fourth defendant, albeit perhaps diminishing in value with successive wills.
8. The 2003 Will. By her 2003 will Stephne generally favoured the same members of her side of the family as she favoured in her final will, with legacies of $35,000 to two friends (only one of whom featured in the last will).
9. In three respects provision was made for the plaintiff and her sister. First, they were to be given a "first offering" of "any furniture or personal belongings" of their father before disposal of the furniture and contents of the former matrimonial home at Burradoo. Secondly, coupled with a direction that the property be sold, they were each to be given one quarter of the net proceeds of sale. Thirdly, they were to be given any savings held in Stephne's name with the Commonwealth Bank.
10. The 2008 Will. Stephne's 2008 will followed the scheme of her 2003 will, save that: (a) she gave a direction for the sale of a home unit she owned in Drummoyne, with each of the plaintiff and the fourth defendant to be given a one quarter share in the proceeds of sale of "any other real estate" that she owned at the date of her death; and (b) the plaintiff and her sister were to be given the benefit of "any investments" held in Stephne's name with a named institution, not the Commonwealth Bank.
11. The 2011 Will. That pattern was varied in the 2011 will. By that time, Stephne had sold the former matrimonial home at Burradoo and purchased a home unit in Bowral. Most of her estate was to be given to those members of her family who were favoured in her final will. No provision was made for the plaintiff and the fourth defendant to be offered "furniture or personal belongings" of their father. They were each to be given a one quarter share of the net proceeds of sale of Stephne's Bowral home unit, together with a legacy of $100,000 each.
12. The Will dated 10 July 2015. The will dated 10 July 2015 followed the pattern of the 2011 will, save that the provision made for the plaintiff and the fourth defendant was limited to a legacy of $100,000 each. The whole of the proceeds of Stephne's Bowral home unit was to be directed to her side of the family.
13. The Will dated 21 December 2015 and Codicils. The will dated 21 December 2015 followed a similar pattern, save that provision was made for the establishment of testamentary trusts in favour of a nephew and a niece of Stephne. The provision made for the plaintiff and the fourth defendant was limited to a legacy of $100,000 each.
14. Stephne's two codicils, respectively dated 19 January and 7 March 2016, simply varied a small number of legacies to beneficiaries other than the plaintiff and the fourth defendant.
15. Stephne's Final Will (dated 30 June 2016). The scheme of the will dated 21 December 2015 (amended by codicils dated 19 January 2016 and 7 March 2016) was followed, with minor variations in the quantum of particular legacies, in Stephne's final will, dated 30 June 2016.
16. General Observations. Three general observations can be made about Stephne's pattern of will making. First, her consistent naming of the plaintiff and the fourth defendant as beneficiaries in her wills may be taken as evidence of a consciousness on her part of a moral obligation owed by her to them as the daughters of the deceased. Secondly, her consistency in favouring her extended birth family in her wills may be said to militate against a finding of a consciousness on her part that she was obliged to make more provision for the plaintiff and the fourth defendant than she did, or to hold property on trust for them. Thirdly, her early references to the plaintiff and the fourth defendant having a choice of personal property identified with the deceased may (as Adrian submits) throw light upon the nature and content of assurances given by Stephne to the plaintiff about "ownership" of property of the deceased.

ASSURANCES OF FUTURE BENEFIT GIVEN BY STEPHNE TO THE PLAINTIFF

1. Towards the end of his life the deceased suffered ill health and was nursed by Stephne.
2. From time to time, commencing in about 2001 and ending in about 2011, Stephne made statements to the plaintiff of varying content, about an intention on her part to confer benefits on the plaintiff and the fourth defendant in acknowledgement of their shared relationship with the deceased.
3. Although these statements varied in content, the plaintiff remembers each one of them as a representation that, upon her death, Stephne would leave to the plaintiff and the fourth defendant property which had belonged to the deceased. Sincere though her memory is, it is not objectively well founded. It is coloured by a strong element of wishful thinking.
4. This can be seen in the plaintiff's evidence of statements made to her by Stephne. In 2001, the plaintiff says, Stephne said, in her presence, of the Burradoo house: "This belongs to the Whiteways and Liz [the plaintiff] is always welcome here". In 2005, the plaintiff says, Stephne made the following declaration to her at the Burradoo house: "I want you to know, I promised [the deceased] that when I pass away everything will come to you [the plaintiff] and Jane [the fourth defendant]." In 2011, the plaintiff says, Stephne made the following declaration to her at the Burradoo house: "These [several items selected by Stephne from the house] are some things from your family I thought you may like to take now as there's not enough room in the new house [the home unit she was then purchasing in Bowral]. I also want you to know that I promised Don [the deceased] that when I pass away, what belonged to the Whiteways will go to the Whiteways".
5. Objectively, the first representation deposed to could not reasonably be construed as anything more than an expression of social acceptance of the plaintiff by Stephne. The second representation conveys a stronger connotation of property, but it remains elusive in its subject matter, "everything". The third representation, possibly, did not extend beyond a reference to sentimental chattels, not including real estate.
6. That Stephne made statements along the lines to which the plaintiff deposes cannot be gainsaid as recent invention on the part of the plaintiff. The fourth defendant (who makes no claim in these proceedings beyond any entitlement she has to Stephne's legacy in her favour) deposes to a conversation with the plaintiff in around 2005. She says that the plaintiff reported to her a conversation she had then recently had with Stephne in which Stephne had said to the plaintiff: "You do know, what is your father's will go to you and Jane [the fourth defendant] if I pass away before you".
7. The fourth defendant deposes to having questioned the plaintiff as to what this may have meant. Her evidence is that the plaintiff explained its meaning by saying to her: "You might get a financial benefit at some time in the future". This explanation, equally applicable to any gift to the plaintiff as it might have been to a gift to the fourth defendant, suggests that, whatever may have been Stephne's precise words, the plaintiff did not construe them literally but, rather took them as a general expression of goodwill. "You might get a financial benefit at some time in the future" is not an explanation which sits comfortably with an alleged representation to found an estoppel, or with reliance upon such a representation.
8. In cross examination, the fourth defendant deposed that, personally, she placed no great reliance in any statement of Stephne such as that reported to her by the plaintiff. This was not, she said a product of any doubt about Stephne's best intentions. She noted, realistically, that Stephne was only a few years younger than herself, and that the prospect of any future benefit from Stephne's estate was at best a remote possibility for that reason alone.
9. I accept that, in a familial spirit, Stephne spoke words of assurance about future benefits to the plaintiff. However, I am not satisfied that, whatever may have been said by Stephne, it was said with a degree of certainty that could reasonably be relied upon by the plaintiff as a representation of a future entitlement to property. Viewing them in the aggregate, Stephne's statements appear to have been directed to nothing more than the type of testamentary provision for the plaintiff (and the fourth defendant) which her successive wills contemplated: a choice of sentimental items and a substantial pecuniary legacy. I am not persuaded that the plaintiff (who always hoped for more) viewed them otherwise.
10. Nothing in the content or timing of Stephne's statements to the plaintiff could, in my assessment, reasonably justify a finding that it was unconscionable for Stephne to die without making further provision for the plaintiff than she did.
11. For these reasons, in my opinion, the plaintiff's claim to a beneficial interest in Stephne's estate, based upon estoppel by representation, must fail.
12. Although Stephne's statements did not rise so high as to ground an estoppel, they were sufficient to constitute: (a) an acknowledgement by Stephne of a perception on her part that, by reason of her marriage to the deceased, she had a moral obligation to make substantial provision for the plaintiff upon her death; and (b) an inducement to the plaintiff to maintain a familial relationship with Stephne despite the death of the deceased and the geographical distance between their respective places of residence.
13. Following the death of her father the plaintiff lived, initially, in Melbourne and, subsequent, in Sydney. Stephne lived in the Southern Highlands, initially at the matrimonial home in Burradoo and subsequently in Bowral. Theirs was a family connection rather than an independent friendship. They were cordial rather than close, but they were genuinely connected by bonds of family.
14. Viewed through that prism, Stephne's statements to the plaintiff may have a bearing upon the plaintiff's application for an extension of time within which to apply for family provision relief from the estate of the deceased, coupled with an order for a designation of notional estate.

Overview

1. The plaintiff's claim for family provision relief can succeed only if: (a) an order for an extension of time within which to apply for relief against the estate of the deceased is made under the Family Provision Act, section 16; (b) the Court is satisfied that an order for the designation of notional estate can, and should, be made in favour of the plaintiff (against the estate of Stephne) by reference to sections 24, 27 and 28 of the Act; and (c) the Court is satisfied that an order for provision out of notional estate so designated should be made in favour of the plaintiff pursuant to section 7 (taking into account the criteria set out in section 9) of the Act.
2. These are distinct, but interconnected elements of a case which the plaintiff bears the onus of proving. They must be considered separately and in the aggregate if an order for provision is to be made in her favour.

The Plaintiff's Application for an extension of time : FPA section 16

1. The plaintiff applies for (and, as her contradictor, Adrian opposes) an order under 16(2) of the Family Provision Act that the time within which she is allowed to apply for family provision relief be extended up to and including the date upon which these proceedings were commenced.
2. In the absence of any consent on the part of Adrian, section 16(3)(b) of the Family Provision Act mandates that an order cannot be made under section 16(2) "unless… sufficient cause is shown" for the application for family provision relief not having been made within the "prescribed period" defined (as the period of 18 months after the death of the deceased) by section 16(1) of the Act.
3. In support of her application for an extension of time the plaintiff emphasises the following factors, which I find sound in fact: (a) the plaintiff had a genuine perception of an assurance by Stephne that she would be provided for from property of the deceased; (b) she lacked knowledge, before Stephne's death, of the size and composition of the deceased's estate and Stephne's property holdings; (c) she believed that the deceased's wealth had been substantially diminished by his years of declining health, coupled with a mistaken belief that Stephne (who had acquired a home unit at Drummoyne with financial assistance from the deceased) did not herself hold significant property; (d) she respected Stephne as the deceased's widow, as a consequence of which she was anxious neither to cause distress to Stephne nor to disrupt her ongoing relationship with Stephne; (e) the deceased's estate, as inherited by Stephne, was ample in comparison with the relatively nominal legacy left to her by the deceased in his will; (f) her application for a grant of family provision is reasonably arguable, having regard to the modest provision made for her by the deceased and her current need for assistance; (e) Stephne's death undermines the deceased's rationale for limiting the provision he made for the plaintiff in his will; and (h) her application for family provision relief following the death of Stephne was timely.
4. In opposing the plaintiff's application for an extension of time, Adrian emphasises the following factors, the first two of which are sound in fact, the others essentially submissional: (a) the length of delay between the time of the deceased's death and the commencement of these proceedings; (b) a conscious (albeit not fully informed) decision on the part of the plaintiff, immediately following the death of the deceased, not to "challenge" the will of the deceased, for whatever reason; (c) the possibility that, if granted an extension of time, the plaintiff will have improved her prospects of a grant of family provision relief from the estate of the deceased compared to her prospects for success had she made an application within time; (d) a denial of the plaintiff's claim to have received assurances from Stephne; (e) a claim of prejudice to Stephne's estate by reason of the present unavailability of Stephne to contest factual assertions by the plaintiff; (f) a claim of prejudice to Stephne's beneficiaries, generally, attributable to the plaintiff's delay; and (g) a denial that the plaintiff was left without adequate provision by the deceased or that she has a present need for provision beyond that which was made for her in the deceased's will.
5. Upon a consideration whether "sufficient cause" has been shown for an application for family provision relief not having been made within time, and the (distinct but related) question whether, having regard to all the circumstances of the case, an extension of time should be granted, the classic approach (generally described by reference to Warren v McKnight (1996) 40 NSWLR 390 at 394E) is to consider four factors. First, the sufficiency of the plaintiff's explanation of delay in making a claim for family provision relief. Secondly, the question whether there would be prejudice to the beneficiaries if an extension of time were to be granted. Thirdly, the question whether there has been any unconscionable conduct by the plaintiff. Fourthly, the strength of the plaintiff's case.
6. In opposing an extension of time, Adrian invites the Court to ask what would have happened if the plaintiff had applied for provision within the prescribed time, contending that the Court should be reluctant to grant an extension of time which may have the effect of improving the plaintiff's position in comparison with that in which she would have stood had she proceeded in a timely way. That approach was approved by the Court of Appeal in Durham v Durham [2011] NSWCA 62 at [37] by reference to a judgment of Bryson J in Davison v Staley (unrep, 21 August 1986).
7. Adrian also relies upon a judgment of White J in Vasconelos v Bonetig [2011] NSWSC 1029 where, at [18], his Honour described a general assurance of future assistance (falling short of a representation that property would be transferred to the plaintiff or that financial assistance would be given) as "no reason for the plaintiff not to make a claim under the Family Provision Act if there were proper grounds for such a claim".
8. At [16] of that judgment his Honour described the expression "sufficient cause" in section 16 of the Act as meaning "sufficient explanation or sufficient justification or excuse for the application not having been made within the prescribed period. If there is such a sufficient explanation then other factors relevant to the exercise of discretion under section 16(2), include any prejudice to the beneficiaries, whether the plaintiff has been guilty of unconscionable conduct by lulling the beneficiaries into a false sense of security, and the strength of the plaintiff's case".
9. Adrian also draws attention to the following observations of Brereton J (omitting references to authority) in Stone v Stone [2016] NSWSC 605 at [36] about the operation of section 58(2) of the Succession Act 2006, the current equivalent of section 16 of the Family Provision Act: "The effect of the section is to confer on the Court a discretion to extend time, having regard to all the circumstances of the case, but only if sufficient cause is shown for the application not having been made within the 12-month period. This limitation period is not merely procedural nor a mere formality, but is substantive. An applicant for such an extension must demonstrate that there was sufficient cause for not having made the application within the 12-month period. So much is mandatory. This requires some explanation for the failure to make the application during that period. Once sufficient cause is shown for not having made the application within that period, the discretion to extend time (by making an "otherwise order") is enlivened. It is not a jurisdictional prerequisite that sufficient cause be shown for any further delay after the expiry of the 12-month period; however, any such further delay and the reasons for it are plainly part of "all the circumstances of the case" to which the Court must have regard in exercising the discretion. Other discretionary considerations include whether the extension of time would occasion prejudice to any beneficiary under the will; whether there is any unconscionable conduct on the part of the applicant (which is essentially concerned with deliberate decisions not to make an application, upon which an executor or a beneficiary has acted to their detriment); and the strength of the applicant's case for relief under the Succession Act. A mere change of mind on the part of an eligible person, who has decided not to make a claim - even if that change of mind is triggered by the success of a claim by another eligible person, or by another eligible person bringing a claim - is ordinarily not sufficient cause for granting an extension of time".
10. In my opinion, the plaintiff has demonstrated (within the meaning of section 16 of the Family Provision Act) "sufficient cause" for her application for family provision relief not having been made in the 18 months after the death of the deceased prescribed the Act, coupled with an explanation of delay beyond that time sufficient to warrant a grant of an extension of time within which to make her application.
11. The plaintiff's delay in making her application is sufficiently explained by: (a) her reasonable expectation of benefit from Stephne's estate as compensation for any disappointment attending administration of the deceased's estate in the interests of Stephne; (b) the respect she paid to the deceased's concern for Stephne's wellbeing, and for her ongoing relationship with Stephne, by deferring any claim she might have had against the deceased's estate until the death of Stephne; and (c) the consistent assurances of future benefit she received from Stephne (in due course acted upon by Stephne), articulated by reference to a common bond with the deceased.
12. The fact that the plaintiff applied for family provision relief against the estate of the deceased, and derivatively against the estate of Stephne, within the time limited for a family provision application against the estate of Stephne qualifies criticism of delay measured from the time of the deceased's death in the circumstances. In substance, the plaintiff asserts a claim against Stephne's estate to the extent that it received a benefit from the deceased's estate which, had the deceased not given it to Stephne, could reasonably be expected to have gone to the plaintiff and her sister.
13. An assessment of any delay on the part of the plaintiff is to be made in light of Stephne's recognition (apparent in her pattern of will-making) of a moral obligation upon her to make testamentary provision for the plaintiff as a daughter of the deceased.
14. There is no material prejudice to any person in the Court's entertaining the plaintiff's application for family provision relief "out of time". The deceased limited the provision which he might otherwise have made for his daughters out of a concern for the wellbeing of Stephne; Stephne's death removes concern about her wellbeing from the equation. The plaintiff's sister, who might have had a claim against the deceased's estate in competition with the plaintiff and Stephne, makes no claim on her own behalf but, on the contrary, supports the plaintiff's claim. Any expectation any other beneficiary named in the will of Stephne might have had must have been contingent upon no application for family provision relief being made against Stephne's estate within the time prescribed by section 58 of the Succession Act, within which period the plaintiff commenced these proceedings.
15. There has been no unconscionable conduct by the plaintiff in the timing, or manner, of her application for family provision relief. Deference she showed to Stephne tends in the opposite direction.
16. If she overcomes a jurisdictional hurdle for which the defendant contends by reference to section 24 of the Family Provision Act, the plaintiff has a strong case for a grant of family provision relief against property in the estate of Stephne designated as notional estate of the deceased. She is one of only three persons with a claim on the bounty of the deceased. Stephne's death removes her from that category. The plaintiff's sister asserts no claim. Contrary to the deceased's expectations at the time he made his will (on 10 April 1996), the plaintiff was left at the time of his death (on 14 July 2003) in a vulnerable position. She had suffered two failed marriages, she was on her own and dependent upon her own exertions and resourcefulness. She was encumbered by a significant mortgage debt. She has since aged considerably, suffering ill health sufficient to prevent her from working. The deceased expressly made his will, with its primary concern for the welfare of Stephne, upon an assumption (by events displaced) that the plaintiff was not in financial need or suffering a special disability that would require resourcing from his estate. With the benefit of hindsight, viewing relationships through the prism of the present, the plaintiff has a substantial claim on the bounty of the deceased, enforceable against the estate of Stephne to the extent amenable to an order for its designation as notional estate of the deceased.
17. This is not a case which can be dismissed simply on the basis that: (a) the plaintiff had a chance to make an application for family provision relief against the estate of the deceased which she elected not to take; or (b) she should not be allowed to "improve" her position on a family provision application by delay.
18. I so find, for two reasons:
19. First, Stephne, in common with the plaintiff, conducted her affairs on the basis that the plaintiff had a reasonable expectation of a testamentary benefit from her estate consequent upon the terms on which the deceased favoured Stephne over the plaintiff and her sister in disposal of his estate. Stephne herself, by her pattern of will-making, manifested a recognition of a continuing moral (as distinct from legal) obligation on her part to make provision for the plaintiff.
20. Secondly, had the plaintiff, within time, applied for family provision relief from the estate of the deceased, it is likely that she would have been granted provision beyond the $25,000 she received under his will, quite possibly to contribute to a reduction (if not discharge) of her mortgage debt. It is not necessary to speculate in detail about what measure of relief might have been granted to her had she taken Stephne to court in or about 2003. It is sufficient to note that, of an estate with an estimated value of $1.9 million (or, more conservatively, as realised, $1.44 million), Stephne inherited all but $50,000, in circumstances in which she had additional resources of her own (including an investment property) and she was, in generational terms, roughly the same age as the plaintiff (only six years her senior). A modest grant of provision, in addition to her $25,000 legacy, could reasonably be thought to have been likely had the plaintiff applied for relief.
21. Upon an exercise of the power "to extend time" for which section 16 of the Family Provision Act provides, account must be taken of all the circumstances of the case including, in the present case, an allowance for the relationship between the plaintiff and (as the person whose estate is sought to be designated as notional estate of the deceased) Stephne, and the interconnectedness of the plaintiff, Stephne and the deceased.
22. For these reasons, I propose to make an order that the time for the plaintiff to make an application for relief under the Family Provision Act be extended up to and including the time of commencement of these proceedings.

The plaintiff's application for a designation order : FPA sections 24, 27 and 28

1. Introduction. The plaintiff's application for an order that property in the estate of Stephne be designated as notional estate of the deceased must address, inter alia, sections 24, 27 and 28 of the Family Provision Act.
2. The Court's jurisdiction: FPA section 24. The opposition to such an order by Adrian, as the plaintiff's contradictor, includes a threshold objection to the jurisdiction of the Court to make a designation order.
3. That objection focusses attention on the words "being property which is held by, or on trust for, the person" in section 24 of the Family Provision Act.
4. The contention is that there is no property which can be designated as notional estate because: 1. the two references to "person" in section 24 must be taken as references to Stephne personally. 2. Stephne's death means that property which "became held by" her during her lifetime ("as a result of a distribution from the estate" of the deceased) within the meaning of section 24 cannot now be characterised as "property which is held by or on trust for" her personally. 3. property which is the subject of a designation order under section 24 must be property which remains "held" by the "person" to whom it was distributed, it being insufficient that such property is held by his or her legal personal representative after death.
5. This contention is supported by a reference to the judgment of Ward J in Stern v Sekers [2010] NSWSC 59 at [191]-[194], in which (in a case which was principally concerned with section 23 of the Family Provision Act) her Honour followed a judgment of Macready AJ in Prince v Argue [2002] NSWSC 1217 at [87]-[88] concerning the operation of section 23.
6. For reasons elaborated in the present judgment, in my opinion the Court does have jurisdiction to make a designation order in favour of the plaintiff under section 24 of the Family Provision Act because: 1. each reference to "person" in section 24 may refer either to Stephne or to Adrian as her legal personal representative. 2. if those references to "person" are to be taken to refer to Stephne then, having regard to the purpose and policy of the Family Provision Act, it is open to the Court to find that, property (as defined by section 6 of the Act) having "become held" by Stephne "as a result of a distribution from the estate of" the deceased, property (as defined by section 6) which is "held" by her legal personal representative is property "held by or on trust for" her. 3. alternatively, the "property"(as defined by section 6 of the Family Provision Act) which is "held" by Stephne's legal personal representative includes property (as defined by section 6) which "became held" by him "as a result of a distribution from the estate of" the deceased.
7. Adrian's objection to the jurisdiction of the Court to make a designation order takes too simplistic a view of section 24 of the Family Provision Act, and does not have regard to nuances in the legislation recognised by Ward J in Stern v Sekers.
8. It is not necessary for the purpose of the present proceedings to form a view about the correctness, or otherwise, of the construction given to section 23 of the Family Provision Act by Prince v Argue and Stern v Sekers. I assume it to be correct. The point is, rather, that section 24 is materially different.
9. In contemplating the nature and scope of section 24, the contrasting language of section 23 should be borne in mind: "23. NOTIONAL ESTATE--PRESCRIBED TRANSACTIONS On an application in relation to a deceased person made by or on behalf of an eligible person, if the Court is satisfied: (a) that an order for provision ought to be made on the application, and (b) that, at any time before death, the deceased person entered into a prescribed transaction: (i) which took effect within the period of 3 years before death and was entered into with the intention, wholly or in part, of denying or limiting, wholly or in part, provision for the maintenance, education or advancement in life of that or any other eligible person out of the deceased person's estate or otherwise, (ii) which took effect within the period of 1 year before death, and was entered into at a time when the deceased person had a moral obligation to make adequate provision, by will or otherwise, for the proper maintenance, education and advancement in life of that or any other eligible person which was substantially greater than any moral obligation of the deceased person to enter into the prescribed transaction, or (iii) which took effect or is to take effect on or after the death of the deceased person, the Court may, subject to sections 26, 27 and 28, make an order designating as notional estate of the deceased person such property as it may specify, being property which is held by, or on trust for the disponee or, where there is more than one disponee, any of the disponees, whether or not that property was the subject of the prescribed transaction.
10. It is not necessary to enter upon the complexity of what constitutes "a prescribed transaction" but, in reading section 23, the provisions of section 21 of the Family Provision Act should be noted: "21 DEFINITIONS In this Division, except in so far as the context or subject-matter otherwise indicates or requires: "disponee", in relation to a prescribed transaction, means: (a) where, as a result of the prescribed transaction, property becomes held by a person (whether or not as trustee)--the person, or (b) where, as a result of the prescribed transaction, property becomes held subject to a trust--the object of the trust. "disponer", in relation to a prescribed transaction, means the person deemed by section 22 to have entered into the prescribed transaction".
11. The focus of Macready AJ in Prince v Argue, and the primary focus of Ward J in Stern v Sekers, was upon section 23 of the Family Provision Act, not section 24.
12. In Stern v Sekers [2010] NSWSC 59 at [193-[195] Ward J wrote the following: "[193] I am of the opinion that the construction adopted by Macready AsJ in Prince v Argue is correct and that, for there to be a designation of property as notional estate for the purposes of s 23 of the Family Provision Act, it is necessary that the property the subject of the prescribed transaction, must remain held by or for the benefit of the person first receiving the property as a result of the prescribed transaction in question (at least unless there are successive transactions so intertwined that the first transaction involving the act or omission of the deceased or distribution of his or her estate can be said to be a cause of the property so being held for on behalf of that subsequent person). That is not the case here. Similar logic applies to s 24 of the Family Provision Act and this [sic] the power to declare distributed estate as notional estate will ordinarily subsist only while the distributed estate is in the hands of the party to whom it was first distributed. [194] This has the effect that the deceased's interest in the share portfolio which he jointly owned with Suzanna is not open to be designated as notional estate nor is that part of the deceased's estate (the Denning Real Estate share) which was distributed to Suzanna. (Although it was suggested, in passing during argument, that property held by Suzanna's trustees under her will might still be said to be held by her, this would require an extended reading of "disponee" to include the disponee's successors, and no authority was cited for that proposition.) Further, the property has since been distributed by Suzanna's trustees, David and Daniel, and it is by no means clear that any claim could be brought against them in their personal capacity for premature distribution of their mother's estate by reference to a claim of which they were, at the time, on notice in respect of their father's estate only - nor was any such claim pleaded. [195] What is open to be designated as notional estate is any part of the deceased's estate which has been distributed to David or Daniel. (Dr Birch in effect acknowledged that any provision to be made for the plaintiffs, unless made by variation of the testamentary trusts in favour of them or their children, will necessarily have to be borne out of the provision made for David and Daniel under the will since there is no other available estate from which provision can be made.)"
13. In Stern v Sekers [2010] NSWSC 59 at [173] , [191] and [193] Ward J spoke of issues arising under sections 23 and 24, as "broadly the same", "similar" or "to the same effect", and the subject of "similar logic".
14. In a broad sense, this must be correct. Both sections address a situation in which, in one way or another, "property" (broadly defined) passes from a deceased person to another, and particular phraseology found in section 23 (read with section 21) recurs in section 24.
15. However, the subject matter of sections 23 and 24 is different, as are subtleties of language which accommodate their different fields of operation. Section 23 is directed to the effect of an inter vivos "prescribed transaction". Section 24 is directed to post mortem distributions of property.
16. Section 23 relates to a designation of property consequent upon a "prescribed transaction", as defined by section 22, entered into by a deceased person before his or her death (section 23(b)) which "took effect", in particular factual circumstances, before death (section 23(b)(i) and (ii)) or on or after death (section 23(b)(iii)). The operation of section 23 is tied to the concept of a "disponee", defined (with its correlative concept "disponor" in section 21), which contemplates that "as a result of [a] prescribed transaction", "property becomes held" either "by a person (whether or not as a trustee)"or "subject to a trust". The concept of a "prescribed transaction", defined in a myriad of particular ways in section 22, depends upon a person (the disponor) doing, or omitting to do, an act (other than the mere act of making a will), "as a result of which" property "becomes held by another person or subject to a trust".
17. Section 24 does not turn at all upon the concept of a "prescribed transaction" entered into before the death of a deceased person. It governs a "distribution from the estate of the deceased person" after death.
18. Whereas section 23 focuses upon a "transaction" entered before death "taking effect" at a range of times and having a particular effect, in terms of "property", section 24 focuses upon a "distribution" having a particular effect (namely, that "property, became held by a person (whether or not, as trustee) or subject to a trust") that is not, in terms, confined as to time save that, implicitly, the "distribution" must have occurred after the death of the deceased person, and it must have "resulted" in the particular, identified effect before the time at which an order is made by the Court under section 24.
19. Section 24 is to be construed with two particular features in mind. First, in speaking of "property" the section speaks of a concept, defined by section 6 of the Family Provision Act, which includes "any valuable benefit". Secondly, the expression "as a result of a distribution from the estate of the deceased person" is not necessarily confined by what might be regarded under the general law of probate as a "distribution".
20. Section 24 is capable of operation in circumstances in which, independently of any "transaction" of the deceased, a person enjoys "a benefit" from the estate of the deceased person "as a result of a distribution" from the deceased person's estate. The field of operation of section 24 is thus broader than the field of operation of section 23, and considerations of legislative purpose and policy underlying the two sections may be different. Section 23 casts a net back in time to bring within the court's jurisdiction dispositions of property that would, under the general law of probate, diminish an estate. Section 24 is concerned with administration of a deceased estate.
21. The notional estate provisions of the Family Provision Act are to be construed with their purpose and policy in mind. If any authority for that proposition be required, particular reference might be made to Easterbrook v Young (1977) 136 CLR 308 at 314-315, 316-317, 320-321 and 324.
22. Within the living memory of senior equity practitioners, the Court's family provision jurisdiction has been governed successively, first, by sections 3-12 of the Testator's Family Maintenance and Guardianship of Infants Act 1916 NSW ("the TFM Act"); then, by the Family Provision Act 1982 NSW; and, since 1 March 2009, by Chapter 3 of the Succession Act 2006 NSW.
23. The common purpose of this legislation has been to authorise the Court to make an order that provision by made out of the "estate" of a deceased person in favour of a member of his or her "family" found (a) to have been left without adequate provision; and (b) to be in need of proper provision for his or her maintenance, education or advancement in life.
24. The tendency of legislative change has been to expand: (a) the class of persons (ostensibly, "family") eligible to make an application for a family provision order; and (b) the property available to a deceased person's "estate"(extended to include notational estate) for satisfaction of such an order.
25. The concept of an order for designation of property as "notional estate" of a deceased person was introduced by the Family Provision Act and retained in the Succession Act.
26. Notwithstanding embodiment of modernising reforms in new legislation from time to time, there is a broad similarity in the conceptual scheme of each of the statutes which has governed the family provision jurisdiction. That enables broad comparisons to be made, but compels attention to detail in particular cases.
27. Although at times necessarily viewed through the prism of the general law of probate (eg, because an order for family provision relief from a deceased estate generally operates as a will or codicil), the Court's jurisdiction to make an order for family provision relief is statutory, requiring the Court to be alive to the purpose and policy of legislation governing the jurisdiction in the particular case.
28. This point was made by the High Court of Australia in Easterbrook v Young (1977) 136 CLR 308 when construing the TFM Act.
29. The headnote to the authorised report of the High Court's judgment accurately summarises the legislative provisions under consideration by the Court, and the Court's determination, in the following terms (with page references to the judgment added): "Section 3 of the Testator's Family Maintenance and Guardianship of Infants Act, 1916 (NSW) empowers the court in certain events to order provision to be made 'out of the estate' of a deceased person for his wife, husband or children. Section 5(1) requires an application for provision to be made within twelve months from the grant of representation, but the court is empowered to extend [the] time for application, provided that any such application 'shall be made before the final distribution of the estate, and no distribution of any part of the estate made before the application shall be disturbed by reason of the application or of an order made thereon'. Section 11 provides for notice to be given by the personal representative inviting claims by creditors and others against the estate, and protects them from liability to persons of whose claims he has no notice at the time of distributing the estate. Sub-section 3 provides that nothing in the section shall prevent the court from ordering provision to be made out of any assets so distributed. Held, (1) That the expression 'out of the estate' of the deceased refers to the assets of which the deceased might at his death dispose and which have come or could come to the hands of the personal representative by reason of the grant of representation: 136 CLR 318, 320. (2) That the completion of the administration of an estate, so that the personal representative holds any assets still in this hands on trust for the beneficiaries or next of kin, does not take the assets out of the estate of the deceased for the purposes of the Act: 136 CLR 316, 317, 324. (3) That where an application is made in time provision may be made out of those assets even if at the time the order is made they have been distributed to the beneficiaries or next of kin: 136 CLR 316, 318, 320-321. (4) That only the complete removal of the whole of the assets of the deceased from the hands or name of the personal representative will be a bar to the extension of time under s. 5(1) if the time should otherwise be extended. But an order made under s. 3 after the extension of the time to apply cannot disturb an actual distribution made before the application for extension": 136 CLR 317-318.
30. Recognising that those terms constituted a limitation on the power of the Court to make a family provision order, the High Court recorded that the question for its determination was the meaning to be attributed to the expressions "the estate of" the deceased in section 3 and "final distribution of the estate" in section 5(2A) in the context of the TFM Act: 136 CLR 314. It recognised that the interpretation of those expressions depended on the terms of the Act, read in accordance with the purpose and policy of the Act as evidenced by its provisions: 136 CLR 314-315.
31. The High Court described "the evident purpose" of the TFM Act as being "to place the assets of the deceased passing to the personal representative [of a deceased person] at the disposal of the Court in the provision of maintenance for the nominated dependants of the deceased": 136 CLR 315.
32. In the course of its judgment, the High Court made the following observations (with emphasis added): "…[An] actual distribution of the deceased's property to persons beneficially entitled thereto shall not preclude the making of an order, even out of the distributed assets. Section 11(3) is explicable only on that footing. The Act in so providing assumes that the sub-section at least covers the case where executorial or administrative duties have already been performed before such distribution has taken place. Thus, by the very terms of the Act, if an application is made in due time, the court may make provision out of any asset which came to the hands of the personal representative from the deceased through his death and the grant of probate or letters of administration. It is, in our opinion, to the totality of those assets that the Act refers in authorising the court to make provision out of the estate of the deceased. As we have emphasised, to give to the court's order the effect of a codicil operating as on the death of the deceased, underlines the fact that the provision of a beneficial interest under the will is no bar to the court's power to make provision for maintenance if needs be out of what is theirs or, but for the order, would be the beneficial property of a beneficiary under the will. Section 11(3) underlines the policy, which has the result that an actual distribution does not place the asset beyond the reach of the court's power to order maintenance: [136 CLR 316]. Further, that policy is already shown in the terms of s. 5(2A). Because the application is out of time a final distribution, which clearly means a complete distribution, will prevent the extension of time: and thus the power to make an order. But if the distribution has only been partial, time may be extended: however, in contrast to the situation of an application made within time, the partial distribution which has taken place will not be disturbed by an order for maintenance made on an application made in the extended time. The contrast of s. 11(3) read with s. 3 and s. 5(2A) is, to us, eloquent of the policy of placing within the power of the court under s. 3 all that passed to the personal representative on the grant of probate or letters of administration. Bearing in mind the nature and purposes of such legislation, it is our opinion that the disabling circumstance in s. 5(2A) is the actual distribution of the estate, its removal from the hands or name of the personal representative and its placement in the hands or name of the testamentary or statutory beneficiary. There is nothing in the language or policy of the Act to suggest that the change in the capacity in which the personal representative holds assets he has received on the grant of probate or letters of administration constitutes either a removal of those assets from the power of the court under s. 3 of a relevant distribution of the estate: [136 CLR 316-317]. "…[The] words 'distribute' and 'distribution' are used in the [TFM] Act itself, not in the sense of a change in the capacity in which the personal representative held the asset, but clearly in the sense of a physical parting with that asset and its placing in the hands or name of an intended beneficiary: see ss. 11 and 12 of the Act. It is, in our opinion, only when the personal representative has parted with all the assets which came to his hands by the grant of probate or letters of administration that there has been a final distribution of the estate of the testator or intestate: [136 CLR 317] … The dominant purpose of this legislation is to enable the court, in a sense, to prevent the operation of [a] will according to its terms in an appropriate case. It is because the will is operating unduly or unjustly in relation to the testator's family that the court is empowered to order maintenance, its order operating as a codicil to change the terms of the will and have them operate in a way different to that expressed by the testator. In relation to the exercise of executorial powers, it may be conceded that upon completion of the executorial duties and with the assent of the executor, the property devolving by the grant of probate on the executor has ceased for those purposes to be the estate of the testator. It has become the property of those to whom it is destined by the will of the testator. But, in our opinion, the [TFM] Act in using the expression 'out of the estate of the testator' is not concerned with these settled doctrines. The words are used to indicate both the financial limits to which the court may go in making provision for those having unsatisfied claims on the testator and the source from which any provision so made shall be satisfied. It is… that which the testator had to dispose of which is relevantly his estate. The court's power to make an order operative as a codicil extends to all that property, notwithstanding that in the case of an application made within the statutory twelvemonth it has been physically handed over or transferred to the intended beneficiary or beneficiaries. Of course, whether a court should disturb a distribution rests in the court's discretion, influenced no doubt by the circumstances of the particular case. As indicated, the situation is different in the case of an application made out of time": [136 CLR 320-321]… "…It is, in our opinion, incongruous to deny jurisdiction [to the court] so soon as executorial duties are complete. To import into the construction of this legislation the technical considerations applicable to the determination of a personal representative's powers is, in our opinion, an unwarranted development because it involves a failure to give due weight to the purpose of the legislation and it results in a frustration, rather than a facilitation, of that purpose: [136 CLR 324]".
33. In Richardson v Rearden [2006] NSWSC 1252 at [22]-[23] Campbell J made the following observations about the nature and scope of section 24 (with emphasis added): "22. I turn to the application under the Family Provision Act 1982. That application is brought late, and at a time when the estate has been distributed. Because the estate has been distributed, the plaintiff can only succeed if the court makes an order designating certain property as notional estate - Lewis v Lewis [2001] NSWSC 321 at [57]. In cases like the present, where the deceased did not enter any prescribed transaction, the power of the court to designate notional estate relates to: '… such property as [the court] may specify, being property which is held by, or on trust for, the person or the object of the trust, whether or not that property is the property distributed." (Section 24 Family Provision Act 1982)'. 23. That provision means that if someone has received a benefit from a deceased estate, it is possible to designate as notional estate an asset of that person, even if that asset is not something into which it would be possible to trace any specific asset of the testator. That ordinarily gives the court a fairly wide power to do practical justice, and make sure that the assets of a deceased estate end up, so far as at least their value is concerned, in the hands that the court decides are the appropriate ones to enable the deceased to fulfil his or her obligations. However, in the present case, even that broad power will not be adequate to meet the present situation of the plaintiff. There is simply no asset that can be identified, of any person who received benefits from the estate of the deceased, which could be designated as notional property. Under these circumstances, the application under the Family Provision Act 1982 would inevitably fail, even if the extension of time were granted".
34. Paraphrasing Easterbrook v Young, the language of section 24 (informed by its purpose and policy considerations underlying the Family Provision Act) indicates both the financial limits to which the Court may go in making provision for an unsatisfied claim on the bounty of the deceased and the source from which any provision so made shall be satisfied. The section is directed to placement at the disposal of the Court in the making of a family provision order property which (to paraphrase Richardson v Rearden) represents a benefit from the deceased's estate appropriate to enable the Court, in all the circumstances, to make an order in fulfilment of the deceased's obligations.
35. In my opinion, Stephne's death does not operate, by reference to section 24, to deprive the Court of jurisdiction to make a designation order affecting Stephne's estate.
36. As a result of a distribution from the estate of the deceased, "property" became held by Stephne, and in due course, by Adrian in his capacity as her legal personal representative. That "property" became (and remains) held by Adrian in his capacity as the legal personal representative of Stephne "as a result of a distribution from the estate" of the deceased no less than it became held by Stephne "a result of a distribution" from the deceased's estate. Stephne's death did not, of itself, break the causal link between the deceased and the property. "Property" emanating from the deceased's estate, identifiably, included the deceased's house at Burradoo, the proceeds of sale of which ($900,000) funded the purchase of Stephne's home unit at Bowral (for $740,000), the net proceeds of sale of which by her estate have yet to be distributed.
37. In terms of section 24, the estate of Stephne (as realised, a fund of approximately $1.9 million) includes a sum (a "benefit" from the deceased's estate) of not less than $740,000.
38. Subject to an application of sections 27 and 28 of the Family Provision Act in favour of the plaintiff, it is open to the Court to make an order under section 24 designating part of Stephne's estate (up to at least $740,000) as notional estate of the deceased. It is not necessary to consider whether some greater amount might be designated as notional estate because (upon an application of sections 7, 9, 16, 24, 27 and 28 of the Family Provision Act read together) $740,000 is sufficient to accommodate any order for family provision that might be made in the plaintiff's favour.
39. Matters to be considered: FPA s27. The Court is directed by section 27(1) of the Family Provision Act to consider particular matters as a pre-condition of making an order designating any property as notional estate. In the factual setting of these proceedings, those matters overlap with those considered in the related, but separate, context of section 16 of the Act.
40. Section 27(1)(a) mandates that the Court consider "the importance of not interfering with reasonable expectations in relation to property". That injunction extends to a consideration of Stephne's testamentary freedom and any expectations her beneficiaries might have.
41. A significant feature of these proceedings is that Stephne appears, by her pattern of wills and her assurances to the plaintiff, consistently to have recognised an obligation to make some testamentary provision for the plaintiff. Any such "obligation" fell short of a "legal" obligation. If it be described as a "moral" obligation that label serves only to refer summarily to the relationship between Stephne and the plaintiff arising from their shared relationship with the deceased and the terms upon which the deceased favoured Stephne over his daughters in disposal of his estate.
42. An associated feature of the proceedings is that, as time passed, Stephne appears to have proceeded, by stages, to an assumption that it was a sufficient discharge of any "obligation" she had to make testamentary provision for the plaintiff to leave the plaintiff no more than a pecuniary legacy of $100,000, allowing her to make provision for a broad array of family and friends beyond her shared experience with the deceased's daughters.
43. That Stephne might reasonably have proceeded upon such an assumption does not carry the consequence that the Court must decline to make a designation order. Stephne was entitled to expect that a substantial proportion of her estate would be available to her for distribution to friends and family other than the plaintiff. Due respect should be paid to any such expectation on the part of Stephne, but her expectation is not, of itself, determinative of an assessment by the Court whether any (and, if so, what) provision should be made by reference to the estate of the deceased.
44. The reasonableness of any expectation Stephne's beneficiaries might have of benefit from her estate must take into account the fact that the current proceedings were commenced within the time limited for an application for family provision relief being made against the estate of Stephne. As earlier mentioned, section 58 of the Succession Act has no direct application to the facts of this case, but, from the perspective of Stephne's beneficiaries, prudence required them to wait until expiry of the time prescribed by section 58 before embrace of an expectation that there would be no claim on Stephne's estate for family provision relief.
45. Section 27(1)(b) of the Family Provision Act mandates that the Court consider "the substantial justice and merits involved in making or refusing to make" an order for designation of property as "notional estate" of the deceased.
46. That injunction invites the Court to take notice of the relationships Stephne and the plaintiff respectively enjoyed with the deceased and, through their connection with him, with each other; the fact that the deceased favoured Stephne, as his bride, over his daughters in distribution of his estate; the fact that, following the death of the deceased, out of respect for Stephne as widow of the deceased (and hopeful of a substantial benefit from Stephne's estate), the plaintiff deferred making a claim on the deceased's estate until after the death of Stephne; the fact that Stephne, by her pattern of will-making and her assurances to the plaintiff, recognised an obligation to make testamentary provision for the plaintiff; and the fact that the plaintiff has fallen on hard times. These factors point towards substantial justice in making a modest order for provision in favour of the plaintiff if property is within the reach of the Court for that purpose.
47. The estate of the deceased having been wholly distributed, no order for provision can be made in favour of the plaintiff unless a designation order is made against the estate of Stephne. If a designation order is made, paying due respect to Stephne's expectation of testamentary freedom qualified by an appreciation that she had a "moral" obligation to make provision for the plaintiff, practical justice might be done via a modest order for additional provision in favour of the plaintiff, charged against Stephne's estate, to the extent designated as notional estate of the deceased.
48. Section 27(2) of the Family Provision Act mandates that "in determining what property should be designated as notional estate of a deceased person" the Court have regard to a number of factors bearing upon: the value and nature of property the subject of a distribution from the estate of the deceased; any changes over the time which has elapsed since any such distribution was made in the value of property of the same nature as the property the subject of the distribution; and the income earning properties of property the subject of a distribution, in addition to any other matters which might be considered relevant in the circumstances.
49. Insofar as is material, Stephne received the benefit of the deceased's house at Burradoo, including proceeds of its sale and the home unit purchased with the proceeds of its sale. The proceeds of sale of the home unit by Stephne's estate form part of the fund which now represents her realised estate. If a designation order is to be made, it naturally falls to be made against that fund.
50. Powers and restrictions: FPA section 28. The principal question for determination in the context of section 28 of the Family Provision Act is whether, in terms of section 28(5)(d), the Court should be satisfied that there are "special circumstances… which justify the making of an order" designating part of the estate of Stephne as notional estate of the deceased.
51. Upon a finding of "special circumstances", only part of Stephne's estate can be designated as notional estate because section 28(2) of the Family Provision Act mandates that the Court not make a designation order "in excess of that necessary to allow the making of provision that, in its opinion, should be made". I am not satisfied that a designation order in excess of $740,000 should be made against Stephne's estate, even allowing for section 33 of the Family Provision Act, which authorises the Court to make an order that the costs of proceedings be paid out of notional estate.
52. I am satisfied that there are special circumstances which justify the making of an order designating $740,000 of the funds in Stephne's estate as notional estate of the deceased. The deceased had a close and loving relationship with the plaintiff as his daughter. In disposition of his estate he subordinated the interests of the plaintiff to those of Stephne for the purpose of granting security to his young bride, expected (as happened) to survive him for a substantial period. The purpose served by that testamentary scheme was exhausted upon the death of Stephne. For her part, Stephne appears at all times to have been conscious of a "moral" obligation to make testamentary provision for the plaintiff, in deference to the favour shown to her by the deceased vis a vis his daughters and in acknowledgement of her shared family connection with them. The deference shown by the plaintiff to Stephne during Stephne's lifetime dovetails with that shown to her by Stephne.
53. Although more than a decade passed after the death of the deceased before the plaintiff made her application for family provision relief, she acted promptly in the institution of proceedings after the death of Stephne. A benefit derived by Stephne (and her deceased estate) from the estate of the deceased remains, identifiably, in the estate of Stephne so that it is available, without material prejudice to any other person, to satisfy the call which the plaintiff, by these proceedings, makes on the bounty of the deceased.
54. Conclusion. For these reasons, I propose to make an order (so far as may be necessary to make provision for the plaintiff and, as may be appropriate, to provide for costs of the proceedings) for designation of not more than $740,000 of Stephne's estate as notional estate of the deceased.

Orders for provision : FPA sections 7 and 9

1. The power conferred on the Court by sections 7 of the Family Provision Act to make a family provision order (in these proceedings, in favour of the plaintiff) is conditioned on the Court being satisfied of certain matters. Section 7 is expressed to be subject to section 9. It also incorporates reference to the expression "eligible person", defined in section 6.
2. By section 7, the Court must be satisfied that an applicant for family provision relief (in these proceedings, the plaintiff) is an "eligible person". As a child of the deceased, the plaintiff has the requisite standing because, as such, she falls within sub-paragraph (b) of the definition of "eligible person".
3. The requirement in section 9(1) of the Family Provision Act that the Court find that there are "factors warranting" the making of an application for family provision relief does not apply to the plaintiff because her standing as an "eligible person" is based upon her status as a child of the deceased, not as one of those classes of "eligible person" to which section 9(1) applies.
4. A matter of which the Court must be satisfied is that "the provision… made in favour of [the plaintiff] by [the deceased] either during [his] lifetime or out of [his] estate is, at the time the Court is determining whether or not to make [a family provision order], inadequate for the proper maintenance, education and advancement in life of the eligible person": Family Provision Act, section 9(2)(a).
5. What is "adequate" and "proper" in a particular case depends on the circumstances of the case; the concepts they embody are relative to those circumstances, not governed by an abstract absolute: Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19. The words "adequate" and "proper" connote something different. "Adequate" is concerned with quantum whereas "proper" is concerned with the standard of maintenance, education and advancement in life of the applicant for relief: Devereaux-Warnes v Hall (No. 3) (2007) 35 WAR 127 at [72]-[77]. Until the Court has identified what is "proper" maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate; what is "proper" requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances: Sgro v Thompson [2017] NSWCA 326 at [86].
6. In my opinion, the provision made by the deceased in favour of the plaintiff is inadequate for the plaintiff's proper maintenance, education and advancement in life.
7. That is because: 1. the plaintiff no longer owns her own home, but is renting. She is living off capital in the form of the proceeds of sale of her home (in August 2016) consequentially upon loss of her regular employment in July 2016. She is presently unemployed. 2. although she has recently (in early 2019, after a two year qualification period) acquired an entitlement to income protection insurance income of about $140,000 per annum net of tax, that income is contingent upon an insurer's periodic (monthly) reassessment of her entitlement. 3. although she has superannuation entitlements with an estimated value of $400,000 or thereabouts, she otherwise lacks significant provision for her old age. 4. Aged 57 years, she is not well placed to resume her business career should her insurance income be terminated. She has a recurrent history of ill-health involving severe depression and hypertension. 5. a standard of what was considered by the deceased to be "proper" provision for the maintenance, education and advancement in life of the plaintiff can be inferred from the deceased's "Statement of Intention" dated 10 April 1996. His reference to Stephne's welfare manifested a concern that she have security "into the future as far as possible". His reference to his daughters manifested a concern about whether they were able to take care of themselves, noting their respective ages, their state of health, the absence of any special disability and a perceived lack of financial need. 6. according to the deceased's assessment of what is "proper" provision for the plaintiff's maintenance, education and advancement in life, she has been left without adequate provision. As a renter, with indifferent health and a contingent income stream, and with fewer resources than Stephne had available to her at the time of the deceased's death (even allowing for inflation in the meantime), she faces an insecure future. 7. that assessment remains true notwithstanding that, recently (in 2017), the plaintiff has enjoyed overseas trips. 8. Nor does Stephne's legacy of $100,000 in favour of the plaintiff render the provision otherwise available to her adequate for her "proper" maintenance, education and advancement in life.
8. For these reasons, I am satisfied that the pre-condition for the making of a family provision order in favour of the plaintiff for which section 9(2)(a) of the Family Provision Act provides has been satisfied.
9. Accordingly, attention turns to the discretionary judgement required to be made by reference to section 7 of the Family Provision Act: what, if any, provision "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 plaintiff?
10. In approaching this question, the Court must endeavour to place itself in the position of the deceased, and to consider what he ought to have done in all the circumstances of the case, in light of facts now known, treating him as wise and just, rather than fond and foolish (In re Allen [1922] NZLR 218 a t 220-221; Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479; Pontifical Society for the Propagation of the Faith v Scales (1962) 17 CLR 9 at 19-20), making due allowance for current social conditions and standards (Goodman v Windeyer (1980) 144 CLR 490 at 502; Andrew v Andrew (2012) 81 NSWLR 656) and, generally, consulting the criteria set out in section 9(3) of the Act.
11. The section 9(3) criteria are not as prescriptive or as numerous as those now found in the Succession Act 2006, section 60(2). There is no evidence that (as a child of the deceased) the plaintiff materially contributed to the acquisition, conservation or improvement of property of the deceased; but her contribution to the welfare of the deceased as a loving daughter (bearing in mind, particularly, the unhappy character of the deceased's first marriage) should be taken into account. So too should the plaintiff's conduct in supporting the deceased in his happy relationship with Stephne, given his particular concern for the ongoing welfare of Stephne. A feature of the case which tells in favour of the plaintiff, vis a vis any entitlement she may have to call upon the bounty of the deceased (via an order for designation of Stephne's estate as notional estate), is the deference she manifested towards Stephne, before and after the death of the deceased. She was a dutiful daughter.
12. The optimistic assessment of the plaintiff's circumstances found in the deceased's 1996 "Statement of Intention" was not borne out by subsequent events. By the time of the deceased's death she had suffered two failed marriages and, although apparently engaged in a successful career, she was on her own and dependent upon her own exertions and resourcefulness as a means of securing her future; a future which has, through the intervention of unemployment and ill health, not materialised. Although she has the benefit of income protection insurance, uncertainty necessarily attends its ongoing availability because it is dependent upon an insurer's entitlement to reassess her continuing eligibility on a monthly basis. She is no longer young.
13. In my opinion, modest provision should be made from property in Stephne's estate available for designation as notional estate of the deceased. But, in what amount?
14. Until the last moments of the hearing counsel for the plaintiff advanced a series of ambit claims which, in one form or another, laid claim to virtually the whole of Stephne's estate. This is unrealistic. Respect must be paid to: (a) the deceased's concern for Stephne to live an independent life after his death; (b) her contribution to her own estate, independently of any contribution made by the deceased; and (c) her entitlement to exercise testamentary freedom in favour of her family and friends. Stephne's estate does not exist simply at the service of the deceased's estate.
15. In my opinion, the provision to be made from notional estate of the deceased (in practical reality, the estate of Stephne) cannot reasonably run, as her counsel has submitted, to the market value of a three bedroom home in Flinders ($1.5 million or thereabouts) or anything of that order. Nor can it extend as far as the sum of $460,000 by analogy with the mortgage debt which burdened her at the time of the deceased's death.
16. If counsel for the defendant made any concession as to what might be an appropriate measure of provision for the plaintiff out of notional estate, it was at best oblique and limited to no more than about $140,000, if that. In my opinion, that approach does less than justice to the plaintiff, bearing in mind her relationships with the deceased and Stephne and her current circumstances. Nevertheless, I take note of the defendant's submissions that (a) on her own evidence, the plaintiff regards her current one bedroom apartment as suitable for her needs; and (b) a one bedroom unit can be bought in Prahran (where the plaintiff lived in 2016 until she sold her house) for about $139,000.
17. In assessing what provision should be made for the plaintiff out of the notional estate of the deceased, the $100,000 legacy given to her by Stephne must be taken into account in both quantitative and qualitative terms. It is not an insignificant amount. It might not unreasonably be characterised as a partial discharge by Stephne of any claim the plaintiff had, or has, on the bounty of the deceased.
18. Conclusion. In my opinion, the appropriate measure of family provision relief to be granted to the plaintiff from so much of Stephne's estate as is designated notional estate of the deceased is the sum of $250,000 (in addition to the $100,000 legacy for which Stephne's will provides in her favour). With the total amount of testamentary provision thus made ($350,000) she will have a degree of security, either to protect her against a loss of her current insurance income stream or in aid of purchase of a small unit. To make a larger grant of relief in her favour from notional estate of the deceased would be to pay insufficient respect for Stephne's reasonable expectation of testamentary freedom in disposition of her estate.

CONCLUSION

1. Accordingly, reserving to the parties an opportunity to make submissions about the form of orders (including costs orders) to be made in disposition of the proceedings, I propose to make orders to the following effect: 1. ORDER that the time within which the plaintiff may make an application for a family provision order against the estate, or notional estate, of the deceased be extended up to and including the date of commencement of these proceedings. 2. ORDER that $740,000 of the estate of Stephne be designated as notional estate of the deceased so far as may be necessary to satisfy the order for provision made in favour of the plaintiff, and any costs orders made, in these proceedings. 3. ORDER that provision be made for the plaintiff out of the notional estate of the deceased by way of a legacy in the sum of $250,000 (payable in addition to the legacy of $100,000 for which Stephne's will provides in favour of the plaintiff). 4. ORDER that no interest be payable on the legacy payable out of notional estate if the legacy be paid within 28 days of the making of these orders; but that, at the expiration of that period of time the legacy accrue interest at the rate for which section 84A of the Probate and Administration Act 1898 NSW provides. 5. ORDER that the burden of the provision made for the plaintiff, and any orders for costs, out of the notional estate of the deceased be borne rateably by the beneficiaries (other than the plaintiff) named in the Will of Stephne. 6. ORDER that the costs of the plaintiff assessed on the ordinary basis, be paid out of the notional estate of the deceased. 7. ORDER that the costs of the defendant, assessed on the indemnity basis, be paid out of the notional estate of the deceased. 8. ORDER that the statement of claim otherwise be dismissed.
2. There may be a need to consider more specifically what orders for costs should be made. Regrettably, the parties' estimates of costs are substantial. The plaintiff's estimate is in the order of $230,000, the defendant's in the order of $139,000. The plaintiff has succeeded in obtaining relief, but nowhere near the measure for which she contended, and limited in kind to a grant of family provision relief.

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: 18 November 2019