Aplin & Aplin v Aplin

Background Facts 6The following facts are uncontroversial. 7The deceased died on 21 June 2010. He was then aged 38 years (having been born in May 1972). Tragically, he was killed, whilst serving in Afghanistan, as a member of the Australian Armed Services. 8The deceased was married to Jennifer in April 1998. They separated in about February 2004 and their marriage was dissolved in August 2007. 9The deceased married Natasha in about July 2008. They had commenced cohabitation in about January 2006. There were no children of their marriage, but she has two children, Ty Burke and Shinae Burke, of a previous marriage. 10Natasha is currently 36 years of age. Ty is aged 15 years and Shinae is aged 13 years. 11The deceased left a Will that he made on 15 December 2009, Probate of which was granted, on 12 January 2011, by the Supreme Court of New South Wales. 12The deceased's Will, relevantly, provided: (a) A bequest of ten per cent of the whole estate to Josie and Daniel equally, such gift to vest absolutely when each child attained the age of 21 years; (b) The residue of the estate to Natasha absolutely. 13The Will empowered the Defendant, as trustee, in her absolute discretion, to apply the whole, or part, of any income or corpus of the expected, contingent, or vested interest of any child, under the trusts of the Will, in, or towards, the maintenance, education or advancement, or otherwise for the benefit of such child. 14In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased's estate in New South Wales, at the date of death, was disclosed as having an estimated, or known, value of $106,075. No liabilities were disclosed. The estate was said to consist of superannuation and life insurance benefits ($100,172) and income tax credit ($5,903). In addition, there was property in Victoria, being proceeds of a life policy ($750,000). (I have stated, and, hereafter, shall state, only the dollar amounts and shall omit a reference to the cents.) 15At the date of hearing, the parties agreed that, following the collection of assets, the amount held in the Defence Force Credit Union on behalf of the estate, including interest accrued to the date of hearing, was about $900,000. There is an estimated tax liability of $1,700. 16In calculating the value of the estate, finally available for distribution, the costs of the present proceedings should be considered, since the Plaintiffs, if successful, normally, will be entitled to an order that their costs be paid out of the estate, or notional estate, of the deceased, whilst the Defendant, irrespective of the outcome of the proceedings, normally, will be entitled to an order that her costs be paid out of the estate, or notional estate. 17Josie's and Daniel's costs and disbursements of the proceedings, including counsel's fees, calculated on the ordinary basis, have been estimated to be about $46,000 (inclusive of GST). On the indemnity basis, the costs and disbursements are $61,500. 18Natasha's costs and disbursements of the present proceedings, including counsel's fees, calculated on the indemnity basis (inclusive of GST), have been estimated to be $25,000. 19The parties agreed, for the purposes of the hearing, and assuming that the estimates of costs prove accurate, and the usual orders for costs are made, that the value of the current estimated net distributable estate, will be about $827,300. (If the Plaintiffs receive costs calculated on the indemnity basis (which order is sought by the tutor), the amount in the estate will be reduced by about $15,500, which would result in the value of the net estate being $811,800.) 20Accordingly, the entitlement of Josie and Daniel, under the Will of the deceased is about $82,730, or $41,365 each (or $81,180 or $40,590 each). (a) Because the deceased was killed on active service, the following payments have been made by the Department of Veterans Affairs ("DVA"). Lump sums Natasha: $120,000 Shinae: $ 73,000 Ty: $ 73,000 Josie: $ 73,000 Daniel: $ 73,000

DVA pensions per fortnight Natasha: $ 171 Shinae: $ 171 Ty: $ 171 Josie: $ 171 Daniel: $ 171

The children's pensions cease upon completion of full-time education. Military Superannuation Lump sum: $ 18,362 Shinae: And a lump sum of: $ 51,174 or a fortnightly pension of: $ 178 Lump sum: $ 18,362 Ty: And a lump sum of: $ 51,174 or a fortnightly pension of: $ 178 Lump sum: $ 18,362 Josie: And a lump sum of: $ 51,174 or a fortnightly pension of: $ 178 Lump sum: $ 18,362 Daniel: And a lump sum of: $ 51,174 or a fortnightly pension of: $ 178

(b) Upon the death of the deceased, the Plaintiffs received the following:- Josie Half share of 10% of deceased's estate: $ 41,365 (or $ 40,590) DVA lump sum: $ 73,000 Military superannuation lump sum: $ 18,362 Total $132,727 (or $131,952) Lump sum (if fortnightly pension of $178 is commuted): $ 51,174 Total if commuted $183,901 (or $183,126)

Daniel Half share of 10% of deceased's estate: $ 41,365 (or $ 40,590) DVA lump sum: $ 73,000 Military superannuation lump sum: $ 18,362 Total $132,727 (or $131,952) Lump sum (if fortnightly pension of $178 is commuted): $ 51,174 Total if commuted $183,901 (or $183,126)

21Natasha received on the deceased's death the following amounts:- Lump sum: $120,000 Fortnightly War Widow's pension: $ 745

22The persons described as eligible persons, within the meaning of the Act, are the persons to whom I have already referred, namely Josie, Daniel, Jennifer, Natasha, Ty and Shinae. Only the Plaintiffs have made a claim under the Act. As Natasha is a party and is defending the proceedings, no further notice of the Plaintiff's claims need to be served.

Appointment of Trustees 23At the hearing, there was some debate about the person, or persons, who should act as trustees of the provision for Josie and Daniel made under the deceased's Will, and, in the event that an order was made for additional provision, then, that additional provision also. It was suggested that the deceased's mother, Margaret Gunnell, and her sister, Wilma Aplin, should be appointed as trustees. (There was no dispute that Natasha should not continue to act as the trustee for the entitlement of Josie and Daniel.) 24Margaret and Wilma had sworn a joint affidavit, which was read in the proceedings in the Plaintiffs' case, in which it was stated: "... 2. I, Margaret Anne Gunnell: (a) am the mother of Timothy James Aplin (deceased) and the grandmother of Josie and Daniel; (b) am currently 60 years of age; (c) have recently retired from the Department Communities - Aboriginal and Torres Strait; Islander Services as an Administration Officer; (d) intend returning to the workforce in 2012; (e) am married to Richard Gunnell an Engineering Estimator employed by Laing O'Rourke (on a part time basis); (f) with my husband, hold net assets of approximately $1,900,000.00 (which includes our residence where we have lived for the last 25 years); and; (g) have experience in money management and investing. 3. I, Wilma Hazel Louise Aplin: (a) am the aunt of Timothy James Aplin (deceased) and the great aunt of Josie and Daniel. Timothy's mother Margaret is my older sister; (b) am currently 53 years of age; (c) am currently employed as a Administrative Assistant by the Sunshine Coast Family Contact Centre at Harmony House, Caboolture, which is a centre that facilitates supervised contact for non residential parents/carers and significant others. I have been employed with this service for over three years. Prior to my current place of employment I worked at the Courier Mail Newspaper in Brisbane for 22 years; (d) have lived with my partner Barbara Hanson, CEO of the Sunshine Coast Family Contact Centre Maroochydore, for a period of 7 years; (e) between Barbara and myself we have combined assets of approximately $900,000.00; (f) have experience in money management and investing. ... 5. As proposed trustees, we propose to invest and manage the entitlement of Josie and Daniel in an interest bearing deposit with the (sic) one of the major banking institutions in Australia or in such other bank deposit as yields the highest and safest return on the investment. ... 7. It is our preference that an Order be made appointing us as joint trustees because we will ensure that the all (sic) funds held on behalf of Josie and Daniel will be properly invested and we will continually review the investment at no cost to Josie and Daniel. We will act in the best interests of Josie and Daniel at all times." 25Following the hearing, I received, without objection, a Consent to Act as Trustee by each of Margaret and Wilma, as well as an affidavit of fitness, from Professor Angela Harthington, which states that she considers each "fit and proper people to act as trustees" and identifies Margaret as "a devoted grandmother to Josie and Daniel". 26Whilst I have read these affidavits, I do not know the attitude of Natasha to the appointment of Margaret and Wilma, and shall, after delivering reasons, and, if necessary, after hearing argument, determine the issue of the identity of the trustees if the parties are unable to reach agreement. If agreement is reached on the appointment of Margaret and Wilma, a consent order should be filed.

The Statutory Scheme - Introduction 27I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out some of what I state hereunder in a number of other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they be able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions on this part of each application. 28The wording of the Act is similar to the wording of the former Act. However, it is necessary to remember the warning of Kirby P in Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100, at 76,304: "Purposive construction of the Act There is always a danger where a reformed Act borrows heavily upon ideas which previously existed in the common law or in an earlier statute, that lawyers will approach the construction of the Act affected by the previous law. Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 2 NSWLR 475, 478. That danger is but an illustration, in the specialised activity of law, of a universal phenomenon of psychology long established in relation to human perception generally. We tend to perceive what we expect. We expect that with which we are familiar. There is a particular danger in the case of the Family Provision Act in construing its terms by reference to the law which developed around the Testators' Family Maintenance and Guardianship of Infants Act 1916 . That Act was passed in earlier times to govern the entitlements of a testator's family, as narrowly defined. The definition by s 3(1) of that Act confined applications to those made by "the widow, husband or children of such persons". There was no mention in it of former spouses. Doubtless this was because, for the early part of this century, divorce was relatively infrequent and then based upon concepts of matrimonial fault which would make interference in the testamentary disposition of the deceased unlikely. When enacted, the statute was a radical interference in the power of testamentary disposition. That was a significant power over private property, the disturbance of which was regarded as highly exceptional." 29Whilst the relevant amendments made by the Act are not as significant as those made by the former Act, it remains necessary to bear his Honour's warning in mind in construing the statutory framework. In doing so, a construction that promotes the purpose, or object, of the Act is to be preferred to a construction that would not promote that purpose or object. In my view, the principles applied by the courts to the former Act continue to apply, except to the extent that the Act otherwise requires. 30The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008. A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Legal rights of inheritance are not created. Nor does it impose any limitation on the deceased's power of disposition by his, or her, will. It is only if the statutory conditions are satisfied, that the court is empowered, under the Act, to alter a deceased's disposition to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary.

The Substantive Provisions 31The key provision is s 59 of the Act. The court must consider, first, whether the applicant is an eligible person within the meaning of s 57 (s 59(1)(a)). I n New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made. Relevantly, one category is "a child of the deceased" (s 57(1)(c) of the Act). 32Then, if eligibility is satisfied, the court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant(s) has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is only if it is satisfied of the inadequacy of provision, that the court considers whether to make a family provision order (s 59(2)). It may take into consideration, then, the matters referred to in s 60(2) of the Act. In this way, the court carries out a two-stage process. 33Other than by reference to the provision made in the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for the applicant's proper maintenance, education or advancement in life. The question would appear to be answered by an evaluation that takes the court to the provision actually made in the deceased's Will, or on intestacy, or both, on the one hand, and to the requirement for maintenance, education and advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education or advancement in life of the applicant. 34It was said in the Court of Appeal (per Basten JA) in Foley v Ellis [2008] NSWCA 288 at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment". 35Importantly, there no longer appears to be any sanction, in s 59(1)(c) of the Act, to consider the provision made by the deceased during his, or her, lifetime for the applicant (see, s 9(2) of the former Act). 36Under s 59(1)(c) of the Act, the time at which the court gives its consideration to the question is the time when the court is considering the application. 37"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89, at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime". It also permits consideration of future requirements for support and assistance. Contingent events may be taken into account, as well as what may be considered certain, or exceedingly likely to happen. Reasonable foresight of eventualities that may arise may also be considered. 38Neither are the terms "maintenance" and "advancement in life" defined. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at [115], said, of the words 'maintenance', 'support' and 'advancement': "'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education." 39In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77 King CJ said: "The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang (1960) 104 CLR 124, per Dixon CJ at 128." 40In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J, at [114], noted: "In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. ( McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support." 41The word 'adequate' connotes something different from the word 'proper'. 'Adequate' is concerned with the quantum, whereas 'proper' prescribes the standard, of the maintenance education or advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 at [72] and at [77] per Buss JA. 42Each of the words was considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 476: "The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances." 43Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572, said of the word 'proper', that: "It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent." 44In Goodman v Windeyer (1980) 144 CLR 490, Gibbs J said at 502: "[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards." 45In Vigolo v Bostin at [114], Callinan and Heydon JJ said: "[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here ...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future." 46The term "proper" supports an assessment that more may be required than that which is sufficient, as a matter of bare necessity, to avoid penury: Goodman v Windeyer at 496-497 (Gibbs J), citing Bosch v Perpetual Trustee Co at 476; Hastings v Hastings [2010] NSWCA 197 at [8]. 47The first stage of the process provided for by s 59(1)(c) has been described as "the jurisdictional question": Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education and advancement in life of a particular applicant. 48Whether the applicant has a "need" or "needs" is a relevant factor at the first stage of the enquiry. It is an element in determining whether "adequate" provision has been made for the "proper" maintenance, education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190, at [42] (Tobias JA, with whom Beazley and Hodgson JJA agreed). 49Tobias JA said: "42. Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focused. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies. ... 47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is "proper maintenance etc" of the eligible person. It is the cause of that context that, in the present case, the "proper maintenance etc" of the appellant required consideration to guard against the contingency to which I have referred." 50In Devereaux-Warnes v Hall (No 3) at [81]-[84], Buss JA said, in respect of the first stage of the process: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227. 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11. The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575. Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]." 51In the event that the court is satisfied that the power to make an order is enlivened (i.e. it is satisfied the applicant is an eligible person, and, where necessary, that factors warranting have been established, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), then, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made. 52The second stage of the process arises under s 59(2) and s 60(1)(b). Mason CJ, Deane and McHugh JJ, in Singer v Berghouse , at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour. 53The discretion should be exercised carefully and conservatively according to community perceptions of the provision that would be made by a wise and just testator or testatrix: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 146. The standards of the wise and just testator, or testatrix, of today, not of an era ago, are pertinent to that assessment: Permanent Trustee Company Ltd v Fraser (1995) 36 NSWLR 24 at 35. 54Section 60 of the Act, at least in part, is new. It provides: "(1) The court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the "applicant") is an eligible person , and (b) whether to make a famil y provision order and the nature of any such order. (2) The following matters may be considered by the court : (a) any family or other relationship between the applicant and the deceased person , including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant , to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person 's estate, (c) the nature and extent of the deceased person 's estate (including any property that is, or could be, designated as notional estate of the deceased person ) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant , of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person 's estate, (e) if the applicant is cohabiting with another person-the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant , any other person in respect of whom an application has been made for a family provision o r der or any beneficiary of the decease d person 's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person 's family, whether made before or after the deceased person 's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant , (i) any provision made for the applicant by the deceased person , either during the deceased person 's lifetime or made from the deceased person 's estate, (j) any evidence of the testamentary intentions of the deceased person , including evidence of statements made by the deceased p e rson , (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person 's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant , (m) the character and conduct of the applicant before and after the date of the death of the deceased person , (n) the conduct of any other person before and after the date of the death of the deceased person , (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the court considers relevant, including matters in existence at the time of the deceased person 's death or at the time the application is being considered." 55It can be seen that s 60(2) enumerates 15 specific matters which the court may take into account, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order , and, if so, the nature of any such order. There is no mandatory command to take into account any of the matters enumerated. None of the matters differentiate in their application between classes of eligible person, there is no distinction based on gender or on age although gender and age is each referred to. 56Section 60(2)(p) is open ended. It enables the court to look beyond the specific statutory matters that are set out in the immediately preceding sub-sections and to consider any other matter it considers relevant. 57Considering each of the matters set out in s 60(2) does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. For example, when considering eligibility under sub-s (1)(a), many of the matters in sub-s (2) will be largely, if not wholly, irrelevant. 58Furthermore, consideration of some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and of other eligible persons, as well as of the beneficiaries named in the deceased's Will, whilst others do not. Importantly, also, many of the matters in sub-s (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1). 59Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently. 60This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the first stage. I am comforted in reaching this conclusion by the following comments made in Singer v Berghouse (at 209-210): "... The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant." 61And also by the comments of Callinan and Heydon JJ in Vigolo v Bostin (at 230-231): "We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all the potential beneficiaries must be taken into account and weighed with all of the other relevant factors." 62Section 61 of the Act permits the court to disregard the interests of any other person by, or in respect of, whom an application for a family provision order may be made (other than a beneficiary of the deceased's estate), but who has not made an application. However, the court may disregard any such interests only if: (a) notice of the application, and of the court's power to disregard the interests, is served on the person concerned, in the manner and form prescribed by the regulations or rules of court; or (b) the court determines that service of any such notice is unnecessary, unreasonable or impracticable in the circumstances of the case. 63Section 65(1) of the Act requires the family provision order to specify: (a) the person or persons for whom provision is to be made; and (b) the amount and nature of the provision; and (c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided; and (d) any conditions, restrictions or limitations imposed by the court. 64The order for provision out of the estate of a deceased person may be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner which the court thinks fit" (s 65(2) of the Act). If the provision is made by an order for the payment of an amount of money, that order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act). 65The order may be made in relation to the estate of the deceased. As the deceased died leaving a Will, his estate includes all property that would, on a grant of probate of the Will, vest in the executor of the Will (s 63(2) of the Act). 66Any family provision order under the Act will take effect, unless the court otherwise orders, as if the provision was made in a codicil to the Will of the deceased, or in the case of intestacy, as in a Will of the deceased (s 72(1) of the Act). 67The court, also, may, at the time of distribution of an estate that is insufficient to give effect to a family provision order, make such orders concerning the abatement, or adjustment, of distributions from the estate, as between the person in whose favour the family provision order is made and the other beneficiaries of the estate as it considers to be just and equitable among the persons affected (s 72(2) of the Act). 68Section 99 of the Act provides that the Court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit.

Applicable Legal Principles 69In addition to the above matters, there are some general principles that are relevant to the facts of this case. Whilst most of these principles were stated in the context of the previous legislation, they are equally apt in a claim such as this one. 70Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, in relation to the former Act, that it is not appropriate, to endeavour to achieve a 'fair' disposition of the deceased's estate. It is not part of the court's role to achieve some kind of equity between the various claimants. The court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Rather, the court's role is of a specific type and goes no further than the making of 'adequate' provision in all the circumstances for the 'proper' maintenance, education or advancement in life of an applicant. 71In Stott v Cook (1960) 33 ALJR 447, Taylor J, although dissenting in his determination of the case, observed, at 453-4, that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged." 72In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the court to be vigilant in guarding "against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant". 73The court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: McKenzie v Topp [2004] VSC 90 at [63]. Freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the court": Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9. Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated. 74Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education or advancement in life, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (NSWSC, 17 May 1996, unreported); Vigolo v Bostin at [11]; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. 75The Act is not a "destitute persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1909) 29 NZLR 959 at 966. 76I make it clear that I do not intend what I have described as "applicable legal principles" to be elevated into rules of law. Nor do I wish to suggest that the jurisdiction should be unduly confined. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind.

Relevant Facts 77I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60 of the Act. (a) any family, or other, relationship between the applicant and the deceased person, including the nature and duration of the relationship 78Josie and Daniel are the only children of the deceased. From the time of her, and his, birth, each lived with the deceased and Jennifer until their parents' separation. Thereafter, they have lived with Jennifer, although at the time of the death of the deceased, he and Jennifer had their "shared care". 79There was a period, in 2007, when Josie and Daniel lived with the deceased and Natasha, whilst Jennifer was recuperating from a back injury. There was also a period, between December 2007 and 2008, when the deceased was stationed in Townsville, where Jennifer, Josie and Daniel were also living. The deceased shared the Plaintiffs' care during this period also. 80Whilst the deceased was stationed in Sydney, Josie and Daniel would come to Sydney on holidays and stay with him and Natasha. 81It is clear that the relationship of the deceased and each of Josie and Daniel, continued throughout the lives of each of them. (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate 82The deceased did have a legal and financial, obligation to each of the Plaintiff imposed upon him by statute. At the date of his death, he was paying $446 per fortnight, by way of child support, for them and that it was close and loving. 83An obligation, or responsibility, to make adequate provision for each Plaintiff's proper maintenance, education or advancement in life is also recognised in the case of a child, particularly an infant. Any obligation, or responsibility, to Josie and Daniel was that naturally arising from his parental relationship to each of them. 84There can be no doubt that the deceased owed Natasha an obligation or responsibility to make provision for her also. However, it must be remembered that her relationship with the deceased lasted for about four and a half years and that there were no children of their relationship. (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered 85I have dealt with this earlier in this judgment. 86The deceased's estate is not a large one. There is no relevant notional estate. (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate 87The evidence reveals that: (a) Josie and Daniel presently require on a per annum basis; Expense Josie Daniel Food $ 5,000 $ 5,000 Clothing $ 1,400 $ 1,400 Flute/recorder lessons and flute hire $ 720 $ 0 Netball fees and uniforms $ 400 $ 0 Holidays and entertainment $ 1,500 $ 1,500 Travel costs to visit deceased's parents $ 1,250 $ 1,250 Other $ 1,500 $ 1,500

Totals $11,770 $10,650

(b) Josie and Daniel are presently entitled to a Legacy benefit, which pays for their music lessons, school fees, to a limit of $2,000 each, compulsory school uniforms and school text books. Once they are in high school, and assuming that they both go to The Cathedral School, the costs will be, with other school expenses, about $9,000 per annum (less $2,000 from Legacy). (c) Neither Josie nor Daniel will be entitled to the payment of tertiary education fees, but will qualify for some benefits. They will be entitled to HELP benefits, which will, in due course, require them to repay tertiary fees. 88It was submitted that the income that each of the children need is about $18,000 per annum. On a weekly basis, $18,000 per annum equates to $346. (Precise calculation is made difficult because for the last three or four years of their education, the children will not pay school fees but they will then have to pay University fees in Josie's case and the expenses of an aviation qualification in Daniel's case.) 89Each child may undertake tertiary education (or in Daniel's case perhaps pilot training) and, if that occurs, each will require a capital sum to provide income until they have completed such tertiary education at say, 23 years. 90The net result is that Josie will require the income for 12 years and Daniel for 14 years. 91It was submitted, then, that the present value of a lump sum, which will provide an income of $346 per week for 12 years for Josie, is $182,411, calculated on 3% tables, and $163,969 calculated on 5% tables. It was also submitted that the present value of a lump sum that will provide an income of $346 for 14 years, for Daniel, is $207,011 calculated on 3% tables and $183,207 if calculated on 5% tables. 92By way of an alternative submission, it was said that if Josie's and Daniel's entitlements were limited to the amount that, but for the deceased's death, they would have received by way of child support, an amount of $113 per week, on a shared care basis, would result, in the case of Josie (for 12 years), in a lump sum of $59,573 calculated on 3% tables and $53,550 calculated on 5% tables. For Daniel (for 14 years), the value of the lump sum would $67,607 calculated on 3% tables and $65,483 calculated on 5% tables. 93I shall return to these submissions shortly. 94Natasha presently receives $7,294 by way of Commonwealth benefits for herself and her children. Their expenditure is $6,583. She is not employed, although she hopes to obtain employment. (She has a history of obtaining reasonably well-paid employment.) Her income will alter when she no longer receives rent assistance once she acquires the home unit presently being purchased by her. (e) if the applicant is cohabiting with another person - the financial circumstances of the other person 95Josie and Daniel are living with the tutor, their mother, who earns $4,861 per month. Family expenditure is $4,327 per month. The surplus income has been expended on legal fees and the making of repairs to the tutor's home. 96Clearly, neither of Josie and Daniel is able to contribute to the expenses of the household, although the income that the tutor receives for each is probably used to defray some of their expenses. (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated 97Josie was, but now does not, consult a child psychologist for behavioural problems. Daniel presently has behavioural problems, for which he is being counselled. (g) the age of the applicant when the application is being considered 98Josie was born in October 2000 and is presently aged 11 years. Daniel was born in April 2002 and is presently aged 9 years. (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant 99"Contributions" are not defined in the Act. However, as stated in the sub-section, what may be considered includes financial and non-financial contributions, including to the welfare of the deceased. 100No doubt, as infant children, they were unable to make any financial contributions. However, I am satisfied that because of their relationship with the deceased, they made some contribution to his welfare. (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate 101I have set out the child support the deceased paid during his lifetime. Of course, they share ten percent of the deceased's estate pursuant to his Will. 102In addition, as a result of the deceased's death, they did, and continue to, receive the amounts to which I have referred. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person 103While this sub-section permits the court to accept evidence of the reasons for the provision, or lack of provision, it does not compel the court to attribute any particular weight to that evidence, or to accept the deceased's statement as establishing the truth of what is asserted. 104Natasha gives evidence of a conversation with the deceased in about February 2009 about taking out insurance, so that "if anything does happen [she would] not have any financial worries". This conversation depicts the deceased's consideration of Natasha as a competing claimant. 105The only other evidence of the deceased's testamentary intentions is the deceased's Will. (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so 106I have referred to the child support being paid by the deceased at the date of his death. (l) whether any other person is liable to support the applicant 107Jennifer, as the mother of Josie and Daniel, is now liable to support them. However, whilst he was alive, the deceased was liable to provide some support for them. I have referred to the other support each child is receiving from Legacy and from DVA. (m) the character and conduct of the applicant before and after the date of the death of the deceased person 108There was not very much evidence on this topic other than in respect of matters already dealt with. 109There is no other relevant conduct by either of the Plaintiffs, or of Natasha, that is relevant. (n) the conduct of any other person before and after the date of the death of the deceased person 110I am satisfied that Natasha was a loving spouse of the deceased. 111There is no suggestion that Jennifer is other than a loving mother to each of Josie and Daniel and doing all that she is can to look after them. (o) any relevant Aboriginal or Torres Strait Islander customary law 112This is not relevant in the present case. (p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered 113There are no other matters that I consider relevant.

Determination 114Being an "eligible person" is a necessary precondition to the court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. There was no dispute, in this case, that Josie and Daniel is each an eligible person under s 57(1)(c) of the Act. 115There is no dispute, also, that the proceedings brought were commenced within the time prescribed by the Act. 116In determining the answer at the first stage of the two-stage process, I must consider the provision made for each of the Plaintiffs, as well as the totality of her relationship with the deceased, the age and capacities of the other beneficiary, her claim on the bounty of the deceased, and the size of the estate. 117In my view, the persons with the most significant claim upon the bounty of the deceased are Natasha and the Plaintiffs. 118In my view, the provision made for each of the Plaintiffs in the Will of the deceased is inadequate. Considering the costs and expenses of providing for what are undisputed "needs", now and in the future, and taking into account exigencies of life, it cannot be said that an amount in the order of $40,000 for each is adequate and proper in all the circumstances. 119I then turn to the second stage and consider whether an order should be made, and if so, the nature of the order to be made. There is little doubt, in my view, that an order should be made in favour of each of Josie and Daniel. The estate is of sufficient size to enable an additional capital sum to be provided which will not only provide an income, but also capital, if it is required. 120I have considered the calculations provided by the Plaintiffs' counsel in his submissions, but, in relation to the gross sums he has suggested, he has omitted to take into consideration Jennifer's obligation to contribute towards the expenses of each of Josie and Daniel. I have considered his calculations by reference to the child support that the deceased was paying at the time of his death, but this is an artificial way of looking at the matter. 121Generally, in relation to the calculations that have been provided, I note Slattery J's observations in Neil v Jacovou [2011] NSWSC 87, at [170], which I find particularly relevant in the present case: "There was a degree of false precision in the mathematical forward planning of both Julie and Charli's future lives to enable the actuarial calculations of future expenses. This is not surprising. The Court of Appeal recently cautioned about the limits of usefulness of such material: Tchadovitch v Tchadovitch [2010] NSWCA 316 and pointed out features of the use of such evidence: at [74], there are insurmountable difficulties in making an accurate calculation of the amount that will make proper provision for certain needs of a person for the rest of their life; at [71] particularly where the applicant has decades to live actuarial calculations could not be anything more than a check or guide; at [75], it can be part of the task of the judge fixing a Family Provision Act award to make a judgment about whether and if so to what extent that a discount table is of assistance in assessing what is proper provision; at [56], the choice of the appropriate methodology to use in arriving at the quantum of the provision is a matter of judicial discretion exercised in light of the facts, evidence and submissions in the particular case; at [68], it may be appropriate to use the actuarial calculations as a check on the methodology followed; and at [73] the Court may not give any further analysis or explanation of such evidence than to say that it was taken into account." 122Furthermore, I do not propose to treat the Plaintiffs' claim for a family provision order as if it were a personal injury claim. I shall take into account the calculations, as well as what has been submitted on behalf of each of the parties. I shall also bear in mind the Plaintiffs' "needs" which have been the subject of evidence as well as the tutor's obligation, as their mother to contribute to their expenses. 123I consider that in lieu of the provision made for each of the children in the Will of the deceased, each should receive a lump sum of $110,000. This amount will provide an income to supplement the income that each of Josie and Daniel receive, as well as providing a capital sum for exigencies of life when they receive it. 124Natasha will be left with a capital sum of about $590,000 from the estate. In addition, she has a capital sum of about $110,000 available to her already. 125I have also not forgotten that Natasha's children, who are not the children of the deceased, have received, as a result of the deceased's death, a capital sum of $73,000 each, as well as an income of $171 per fortnight. Those amounts might, at least in part, assist Natasha in her expenditure for those children if she requires such assistance. 126I order that, in lieu of the provision made for the Plaintiffs in Clause 3 of the Will of the deceased, each of the Plaintiffs is to receive a lump sum of $110,000 out of the estate of the deceased. 127I order that the lump sum should be paid within 28 days, failing which, interest on any amount not so paid, should be paid at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898, calculated from that date until the date of payment. 128I order that the Plaintiff's costs, calculated on the ordinary basis, and the Defendants' costs, calculated on the indemnity basis be paid out of the estate of the deceased. 129That exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

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: 19 December 2011