Armitage v Fraser

melow v Alampi (2016) 50 VR 219; [2016] VSC 135 Burke v Burke (No 2) (2015) 13 ASTLR 313; [2015] NSWCA 195 Butcher v Craig [2009] WASC 164 Carey v Robson (No 2) [2009] NSWSC 1199 Carusi-Lees v Carusi [2017] NSWSC 590 Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222 Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 Christie v Manera [2006] WASC 287 Crossman v Riedel [2004] ACTSC 127 de Angelis v de Angelis [2003] VSC 432 Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235 Diver v Neal [2009] NSWCA 54 Flathaug v Weaver [2003] NZFLR 730; (2003) 22 FRNZ 1035 Foley v Ellis [2008] NSWCA 288 Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep) Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31 Goodsell v Wellington [2011] NSWSC 1232 Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison [1997] 2 VR 359 Hall v Hall (2016) 257 CLR 490; [2016] HCA 23 Harkness v Harkness (No 2) [2012] NSWSC 35 Hawkins v Prestage (1989) 1 WAR 37 Heyward v Fisher (Court of Appeal (NSW), Kirby J, 26 April 1985, unrep) Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2 Hunter v Hunter (1987) 8 NSWLR 573 In re Green (deceased); Zukerman v Public Trustee [1951] NZLR 135 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Liprini v Liprini [2008] NSWSC 423 MacGregor v MacGregor [2003] WASC 169 Marks v Marks [2003] WASCA 297 McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Meres v Meres [2017] NSWSC 285 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Palagiano v Mankarios [2011] NSWSC 61 Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 Pincius v Wood [1998] TASSC 46 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 R (M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 Re Buckland (deceased) [1966] VR 404 Salmon v Osmond (2015) 14 ASTLR 442; [2015] NSWCA 42 Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 Sgro v Thompson [2017] NSWCA 326 Shannon v Steinmetz [2019] HCASL 332 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297 Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Sung v Malaxos [2015] NSWSC 186 Taylor v Farrugia [2009] NSWSC 801 Tobin v Ezekiel [2012] NSWCA 285 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin (2005) 221 CLR 191 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) White v Barron (1980) 144 CLR 431; [1980] HCA 14 Worsley v Solomon [2008] NSWSC 444 Yee v Yee [2017] NSWCA 305 Texts Cited: Rosalind Atherton, "The Concept of Moral Duty in the Law of Family Provision - A Gloss or Critical Understanding?" (1999) 5(1) Australian Journal of Legal History 5 Category: Principal judgment Parties: Jenny Ann Armitage (Plaintiff) Karen Francis Fraser (Defendant) Representation: Counsel: C Birtles (Plaintiff) T Catanzariti (Defendant)

Solicitors: Strutynski Law (Plaintiff) Armstrong Legal (Defendant) File Number(s): 2019/80693

Introduction

1. HIS HONOUR: These proceedings involve the estate of Barbara Fay Sawyer (the deceased) and a claim brought by one of her, now adult, children, Jenny Ann Armitage, for a family provision order, under Ch 3 of the Succession Act 2006 (NSW) (the Act), and for her costs of the proceedings. A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. Relevantly, the Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009.
2. The deceased died on 15 March 2018, leaving a Will dated 7 February 2018. This Court granted Probate of that Will, on 25 July 2018, to Karen Francis Fraser, the only other, now adult, child of the deceased, and the younger sister of the Plaintiff. She is the Defendant in these proceedings.
3. Without intending to convey undue familiarity or disrespect, and for clarity and convenience, I shall refer, hereafter, to the parties, and family members, after introduction, by the name used by the family members.
4. After revoking all previous testamentary dispositions, the deceased, in Clause 5 of her Will, gave a pecuniary legacy of $30,000 to Jenny. In Clause 6, she gave Jenny certain identified chattels and personal effects, including a drawing of "ferns/greenery and blue 'Jenny' wrens", an oil painting of a sunset and rolling hills, a white Buddha statue, her "gold ring with one central pearl and two diamonds on either side"; an art deco lamp and an unfinished canvas painting of a children's nursery. Apart from a gift of her "plain, gold, wedding band", which she left to her grandson, Jake Jordan Armitage, the deceased left the rest and residue of her estate to Karen, to whom she also, specifically, bequeathed two paintings and an opal necklace. I shall return to Clause 10 of the deceased's Will in which she stated her reasons for making the limited provision that she had made for Jenny.
5. This is another case, involving adult siblings, both children of the deceased, who are prepared to incur a significant amount, by way of costs, rather than coming to a resolution of the proceedings. It is also a case where the reasons provided by the deceased have played a prominent role in the proceedings as each party focused on these reasons in the conduct of her case. As such, a major issue revolved around the character and conduct of the applicant, her relationship with the deceased, the deceased's views of the relationship, and the deceased's relationship with the Defendant, the principal beneficiary named in the last Will of the deceased.

The Hearing

1. Consistent with the announcement of the Chief Justice published on the Supreme Court website on 23 March 2020, on and from Tuesday, 24 March 2020, there were to be no personal appearances, in any matters, save in exceptional circumstances with the leave of the Chief Justice or head of jurisdiction. The parties did not suggest any exceptional circumstances existed and, therefore, there were no appearances, in person, in Court, by practitioners, parties or witnesses.
2. Section 62(1) of the Civil Procedure Act provides that the court may, by order, give directions as to the conduct of any hearing. When directions were given on 15 April 2020, it was noted, for abundant caution, that the hearing would take place by remote hearing. Then, with the consent of the parties, practical hearing preparation matters, including the need for a video hearing test-run, were discussed and agreed upon.
3. At the commencement of the hearing on Wednesday, 13 May 2020, without opposition, the Court made the following direction (Tcpt, 13 May 2020, p 3(5-16): "The Court, of its own motion, directs, pursuant to s 5B of the Evidence (Audio and Audio-Visual Links) Act 1998, that each of the parties and any witness to be called by her, or him, respectively, shall give evidence, and make her, and his, submissions, by audio-visual link from a place within Australia, other than Court Room No 2 Hospital Road, Sydney."
4. The effect of ss 5B(1) and (2) of the Evidence (Audio and Audio-Visual Links) Act 1998 (NSW), is that, whilst the Court has a discretion whether or not to permit evidence to be given, or submissions to be made, by video-link, it must not make such an order if satisfied that a direction to allow such a course would be unfair to a party: Antov v Bokan (No 2) [2019] NSWCA 250 at [38] (Bell P, with whom Bathurst CJ and Payne JA agreed). Section 22C of that Act is a special provision dealing with the application of that Act during the COVID-19 pandemic. Relevantly, it provides: (1) This section has effect for the prescribed period and prevails to the extent of any inconsistency with any other provision of this Act or any rules of court. ... (4) The appearance in any proceedings (other than proceedings prescribed by the regulations) of a witness or legal practitioner representing a party may take place by way of audio visual link if the court directs. (5) A direction under subsection … (4), may be made on the court's own motion or following the application of a party but only after the parties have had an opportunity to be heard on the matter. (6) The court is to make a direction under this section only if it is in the interests of justice, having regard to the following - (a) the public health risk posed by the COVID-19 pandemic, (b) the efficient use of available judicial and administrative resources, (c) any relevant matter raised by a party to the proceedings, (d) any other matter that the court considers relevant. (7) If an audio visual link is used the court must be satisfied that a party is able to have private communication with the legal representative of the party and has had a reasonable opportunity to do so. (8) Nothing in this section requires or permits the use of an audio visual link if the necessary audio visual facilities are unavailable or cannot reasonably be made available. ...

Some formal matters not in dispute

1. Jenny commenced the proceedings by Summons filed on 13 March 2019 within the time prescribed by the Act (that is, not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.
2. Section 57(1) of the Act provides that "eligible persons" may apply to the Court for a family provision order in respect of the estate of a deceased person. As a child of the deceased, Jenny is an eligible person within s 57(1)(c) of the Act. The language of the subsection is expressive of the person's status, regardless of age, as well as her, or his, relationship to the deceased. It is not necessary that the child be a dependant at the time of the deceased's death in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an "eligible person" in s 57(1)(c) of the Act).
3. However, under s 60(2) of the Act, relevantly for the purposes of the present case, the Court may consider, on the question whether to make a family provision order and the nature of any such order, "… (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 …". This factor, however, will not be relevant, in the case of a child of the deceased, to the question whether the applicant is an eligible person.
4. As the deceased dealt with all of her estate in her last Will, there is no scope for the operation of the intestacy rules, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.
5. A family provision order may be made in relation to property that is not part of the deceased's estate, but is designated as "notional estate" of the deceased by an order under Pt 3.3 of the Act: s 63(5) of the Act. "Notional estate" of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. "Notional estate order" means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person's rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.

Some background facts

1. It is next convenient to set out some other facts that are not in dispute. To the extent that any of them are identified as being in dispute, the facts stated should be regarded as the findings of the Court.
2. The deceased was born in September 1938 and she died on 15 March 2018, aged 79 years. She married Barry in August 1961, and remained married to him until about August 2013, when a divorce order was made (which became final in September 2013). However, as previously stated, they separated, and ceased cohabiting with each other, in about 1991.
3. The deceased was employed as an accounts clerk at NEC. In 2011 or 2012, she inherited the estate of her mother, Dorothy Manewell.
4. Jenny was born in January 1964, and is 56 years of age. Karen was born in September 1969 and is 50 years of age.
5. Jenny married Gary Armitage in November 1996. They have two children, being Jake, who was born in January 2002 and Ruby, who was born in September 2004. They remained married at the date of the hearing and Gary was a witness in the proceedings. Currently, they live in Eimeo, a coastal town and suburb north of Mackay, in Queensland, with their two children. They moved there in 2006, from Melbourne, after Gary's business had suffered some financial losses, and when he then found work in the mines.
6. Karen married Robert Leigh Fraser in October 2013. They separated, albeit living under the one roof, in December 2019, and remain so. There are no children of their marriage and Karen, otherwise, has no children. Robert was not a witness in the proceedings.
7. Prior to commencing these proceedings, Jenny commenced proceedings in the Supreme Court of Queensland by Originating Application filed 10 October 2018, in which she sought a family provision order. Those proceedings were discontinued, pursuant to rule 304 of the Uniform Civil Procedure Rules 1999 (Qld), with no order as to costs: Ex JS2, Tab 2. Karen's costs, incurred to defend those proceedings, were $74,105, of which $15,747 has not been paid out of the estate of the deceased: Tcpt, 14 May 2020, p 158(10-15).
8. The balance of those costs will, in due course, be taken into account in determining the estimated value of the net distributable estate. I shall return to the evidence about Jenny's costs of those proceedings later in these reasons.

The estate of the deceased

1. On 15 April 2020, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contained: 1. the assets and liabilities of the estate at the date of death; 2. the assets and liabilities of the estate at the date of the schedule; 3. the estimated costs and expenses of any property that is to be sold; 4. the estimated costs of each party calculated on the ordinary, and on the indemnity, basis, inclusive of GST; and 5. any costs of any party that have been paid, and in relation to the Defendants, whether those costs have been paid out of the estate of the deceased.
2. I have taken what follows from the Agreed Schedule, which was marked, without objection, Ex JS1, and from discussions with counsel during the course of the hearing. (I have omitted, and shall continue to omit, any reference to cents. This will explain any apparent arithmetical miscalculation.)
3. The nature and value of the deceased's estate (and property which could have been designated as notional estate) at the date of death, was set out in Ex JS1, as follows: Estates Assets Estimated $ Property at Gerards Hill, Lismore NSW Differing estimates Plaintiff's market appraisal 300,000 and Defendant's valuation by registered valuer 235,000 Eclipse Metals Ltd 250,000 shares 2,500 NAB Account xxx 6588 480,403 NAB Account xxx 6801 30,835 1995 Ford Laser registration BX82RI 900 Household contents and personal chattels Nominal Estate Liabilities Medication and care services 395 Estimated net estate at date of death 749,244 814,244 Property that may be designated as notional estate Distribution to the Defendant 90,000 OneAnswer Allocated Pension Fund 44,132 Plum Superannuation Fund 29,560 Colonial First State Superannuation Fund 112,374 Total property distributed 186,066

1. As at 5 May 2020 (the date of Ex JS1), the deceased's estate comprised the Gerards Hill property (with an agreed value of $240,000); shares in Eclipse Metals Ltd ($750), an amount held in Armstrong Legal trust account ($40,000), cash in bank with NAB ($290,723), the Ford car ($400), and household contents and personal chattels (nominal value).
2. The parties agreed that the gross value of the estate, at the date of hearing, without any deduction for costs, is $571,873: Tcpt, 13 May 2020, p 40(08-42). (Although in Ex JS1, there was a reference to the estimated costs and expenses of selling the Girards Hill property ($10,000), the parties also agreed that this amount should not be deducted, as Karen is likely to move into that property, now that she and her husband have separated: Tcpt, 13 May 2020, p 6(15-31).)
3. There was no dispute that the deceased had left in place a binding death nomination, which directed all of the death benefits to be paid to Karen. Indeed, she received the whole of the death benefits (about $186,066) on 9 November 2018. As shown, there was also an interim distribution of $90,000 made to Karen on 21 March 2019: Tcpt, 13 May 2020, p 41(38-50). As stated earlier, the amount ($276,066) will be taken into account as provision that Karen has received as a result of the death of the deceased.

The Costs of the Proceedings

1. Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3 of the Act, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.
2. Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased's estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.
3. As Basten JA (Simpson and Payne JJA agreeing) put it in Chan v Chan (2016) 15 ASTLR 317 at 330 [54]; [2016] NSWCA 222 at [54]: "In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs."
4. As his Honour had also written, a few years earlier, in Foley v Ellis [2008] NSWCA 288 at [10]: "... To exclude from consideration the diminution in the estate and hence [the applicant's] expectation of provision, flowing from legal expenses incurred in the proceedings, is arguably inconsistent with the statutory mandate to consider the applicant's position at the time the Court 'is determining whether or not to make such an order'."
5. I have repeated, many times, in the context of a claim for a family provision order, that parties should not assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635 at 642 [27]; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18].

The deceased's testamentary intentions

1. Relevantly, Clause 10 of the deceased's Will provided: "10. I DIRECT that my daughter, JENNY ANN ARMITAGE, must not take any benefit or provision from my estate, other than the gifts bequeathed in clauses 5 and 6 herein. The decision to exclude JENNY ANN ARMITAGE, from any further benefit or provision from my estate is made for the following reasons: 10.1 I have not had a close and/or personal relationship with Jenny since in or about October 2013. 10.2 I only speak with Jenny approximately 3 or 4 times per year in order to maintain contact with my grandchildren. 10.3 I do not feel supported by Jenny and consider that she is not willing to spend time maintaining a meaningful relationship with me. 10.4 In light of the size of my estate and my estrangement from Jenny, I consider that the gifts bequeathed to her in clauses 5 and 6 herein, are more than adequate provision." (emphasis in original).
2. Karen was asked in cross-examination whether she had any discussions with the deceased, prior to attending upon the solicitor who prepared the deceased's Will, about the deceased's testamentary intentions. She gave the following evidence at Tcpt, 14 May 2020, p 128(33) - p 129(04): "Q. Ms Fraser, the question that you were asked was did you have any conversation, I assume, prior to attending the solicitor's office when your mother told you what she intended to do when she made her will? A. She just spoke about that she was aware of my father's intentions and that I would be excluded from his estate, that she was aware that he intended to do that. BIRTLES Q. Did she also talk to you about the gift that she intended to make in her will? A. She just said that she knew that his - what his intentions were and she would have to consider that with what she was doing with her estate. Q. Your evidence is that she did not tell you or talk over with you about the gifts that she was to make in her will? A. Not the - no, not the full - just that she knew that dad was leaving all his estate to my sister and she would have to consider that with what she was doing with her will. Q. In those discussions did she ever indicate that she would give more to Jenny than what she did in her February 2018 will? A. No."
3. Karen also gave evidence that there may have been "a very old" Will, made at the time of the deceased's marriage, but she did not know its terms. She also stated that she was not aware of any other Will of the deceased: Tcpt, 14 May 2020, p 127(14-21).

Barry's financial resources

1. Because it is one of the matters referred to by the deceased as relevant to the provision to be made for Jenny, it is convenient, next, to turn to the financial resources of Barry. If he were able to change his Will, the deceased's reasoning might not be as relevant, as any interest that Jenny has under his current Will would be no more than a mere expectation.
2. Barry was born in 1940 and is now 80 years of age. He currently suffers from dementia. He is assigned a level 4 Home Care Package for high care needs. He has difficulty with complex tasks and managing his personal affairs. Since July 2019, Barry has lived with Jenny.
3. Jenny is "the financial manager and the guardian of Barry … so we can assume that he is aware of these proceedings. He has dementia ...": Tcpt, 13 May 2020, p 5(04-07). Jenny was appointed under an order, made on 14 January 2015, by the Guardianship Division of the New South Wales Civil and Administrative Tribunal: Ex JS2, Tab 5.
4. There was evidence that Barry made a Will on 18 July 2013: Ex JS2, Tab 4, the salient terms of which are that he revoked all previous testamentary dispositions; he appointed the NSW Trustee and Guardian as executor and trustee; he gave a pecuniary legacy of $10,000 to Karen; he gave a pecuniary legacy of $50,000 to each of Jenny's children, together with his interests in Commonwealth Bank and IGA; and he devised a property, at Dorrigo, to Jenny and to Patricia Kathleen Sparks, a friend; and he left the residue of his estate, after the payment of estate liabilities, to Jenny, absolutely.
5. In Hall v Hall (2016) 257 CLR 490 at 506-507 [54]-[55]; [2016] HCA 23, French CJ, Gageler, Keane and Nettle JJ wrote, at [54]-[55] (albeit in the context of family law proceedings), that: "The reference to 'financial resources' in the context of s 75(2)(b) [of the Family Law Act] has long been correctly interpreted by the Family Court to refer to 'a source of financial support which a party can reasonably expect will be available to him or her to supply a financial need or deficiency'. The requirement that the financial resource be that 'of' a party no doubt implies that the source of financial support be one on which the party is capable of drawing. It must involve something more than an expectation of benevolence on the part of another. But it goes too far to suggest that the party must control the source of financial support … Whether a potential source of financial support amounts to a financial resource of a party turns in most cases on a factual inquiry as to whether or not support from that source could reasonably be expected to be forthcoming were the party to call on it."

Claim for a Family Provision Order - The Statutory Scheme

1. The principles to be applied are well known and I have dealt with them in many cases. For the benefit of the parties, as it is important that they are able to following the reasoning and for each to be satisfied that I have considered the evidence and the submissions put on their behalf, I shall repeat the relevant principles as I have done in other cases.
2. The starting point is s 59(1) of the Act which confers jurisdiction on the Court to make a family provision order in relation to the estate of a deceased person if, relevantly, the Court is satisfied that: 1. the person in whose favour the order is to be made is an eligible person; and 2. … 3. at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased person.
3. The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment: Singer v Berghouse (1994) 181 CLR 201 at 210-211; [1994] HCA 40 at [20]-[24] (Mason CJ, Deane and McHugh JJ); White v Barron (1980) 144 CLR 431 at 434-435, 443; [1980] HCA 14 at [5] (Barwick CJ, albeit in dissent in the result), [8] (Mason J).
4. This question, provided for by s 59(1)(c) of the Act, has been described as "the jurisdictional question": Singer v Berghouse at 209-21. In answering the question, the Court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. If it is not so satisfied, the Court is precluded from making a family provision order. At this stage, the Court has regard to, among other things, the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased and the circumstances and needs of the other beneficiaries: see McCosker v McCosker (1957) 97 CLR 566 at 575; [1957] HCA 82 (Dixon CJ and Williams J); Singer v Berghouse at 209-210; Vigolo v Bostin (2005) 221 CLR 191 at 200-201 (Gleeson CJ), at 219 (Gummow and Hayne JJ), at 227-228 (Callinan and Heydon JJ); [2005] HCA 11 at [16], [75], [112]; Tobin v Ezekiel [2012] NSWCA 285, at [70] (Meagher JA, with whom Basten and Campbell JJA agreed).

Some Additional Principles

1. Accepting that no two cases will be exactly alike, as each case turns on its unique constellation of facts, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges, and I, have repeated them in many cases under the Act.
2. The Court's discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63] (Nettle J).
3. Bryson J noted in Gorton v Parks, at 6, that it is not appropriate to endeavour to achieve "an overall fair" division of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants.
4. As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186 at [5]: "Fairness and equality are not touchstones for relief under the Succession Act."
5. The role of the Court is not "to address wounded feelings or salve the pain of disappointed expectations" that the Plaintiff might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby J, 26 April 1985, unrep) at 7.
6. In Foley v Ellis at [88], Sackville AJA (Beazley and Basten JJA agreeing) noted that Singer v Berghouse: "… strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the … Act."
7. The only other claimant on the bounty of the deceased in the present case is Karen. She, of course, is not an applicant for provision. She does not have to prove an entitlement to the provision made for her in the deceased's Will, or otherwise justify such provision.
8. In Stott v Cook (1960) 33 ALJR 447 at 453-454, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work a Will according to the Court's 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."

Claim by an adult child

1. I have, in many cases, referred to some general principles in relation to a claim by an adult child of the deceased. I repeat the principles that I have set out: 1. The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. 2. It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, "… ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation": Taylor v Farrugia [2009] NSWSC 801 at [57] (Brereton J); McGrath v Eves [2005] NSWSC 1006 at [67]-[71] (Gzell J); Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond (2015) 14 ASTLR 442 at 463 [109]-[110]; [2015] NSWCA 42 at [109]-[110] (Beazley P, McColl and Gleeson JJA agreeing). 3. Generally, also, "… the community does not expect a parent to look after his or her children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute": Taylor v Farrugia at [58] (Brereton J). 4. If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is appropriate provision for the maintenance of the applicant: Re Buckland (deceased) [1966] VR 404 at 411-412 (Adam J); Hughes v National Trustees Executors and Agency Co of Australasia Ltd at 148 (Gibbs J); Goodman v Windeyer at 498 (Gibbs J), 505 (Murphy J). But the Act does not permit orders to be made to provide for the support of third persons to whom the applicant, however reasonably, wishes to support, where there is no obligation to support such persons: Re Buckland (deceased) at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537 (Holland J); Mayfield v Lloyd-Williams [2004] NSWSC 419 at [86] (White J). 5. There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker at 576 (Dixon CJ and Williams J); Kleinig v Neal (No 2) at 545-546 (Holland J); Bondelmonte v Blanckensee [1989] WAR 305 at 309-310 (Malcolm CJ, Nicholson J agreeing); Hawkins v Prestage (1989) 1 WAR 37 at 44-45 (Nicholson J); Taylor v Farrugia at [58]. 6. The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]-[182] (Templeman J); Crossman v Riedel [2004] ACTSC 127 at [49] (Gray J). Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43] (Wheeler J, albeit in dissent in the result). In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287 at [74]-[90] (Martin CJ); Butcher v Craig [2009] WASC 164 at [17] (Sanderson M). 7. The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd at 149 (Gibbs J, Mason and Aickin JJ agreeing).

Qualifications on "Principles"

1. As long ago as 1980, in White v Barron, at 440, Stephen J wrote: "… this jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application."
2. As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian at [117]), I do not intend what I have described as "principles" or "general principles" to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or that the discretion be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.
3. It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and, I reiterate, must be decided on its own facts, not according to idiosyncratic notions of fairness. Cases involve different classes of eligible person, different factual circumstances, and different competing claims by others upon the estate of the deceased.
4. As Lindsay J wrote in Verzar v Verzar at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."
5. The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox at [18]-[19] (Basten JA), [66]-[67] (Barrett JA, Gleeson JA agreeing); in Burke v Burke (No 2) (2015) 13 ASTLR 313 at 329 [84]-[85]; [2015] NSWCA 195 at [84]-[85] (Ward JA, Meagher and Emmett JJA agreeing); Yee v Yee [2017] NSWCA 305 at [172] (McColl JA, Gleeson and Simpson JJA agreeing); and Steinmetz v Shannon at [37] (White JA). They must be remembered.

Additional Facts

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

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

1. Jenny is one of two children of the deceased. Both lived with their parents, in Melbourne, when they were young. Their parents separated in about 1990. Jenny remained living in Melbourne until she and Gary moved to Mackay in 2006. She and Gary lived with the deceased, in 2003, for about 13 months after the birth of their first child, Jake: Affidavit, Jenny Ann Armitage, 11 March 2019 at par 10.
2. Karen continued living with the deceased apart from some of the time during which Jenny and her family lived there. It is clear that she had a far closer relationship with the deceased than Jenny did.
3. Upon, or shortly after, her retirement, in late 2012, or early 2013, the deceased moved from Melbourne to Mackay, to live with Jenny and her family. Although there is some dispute about the duration of her stay, it is clear that the deceased lived there for some months. Jenny recalls, in her affidavit sworn on 11 March 2019, at par 23, that: "I am glad of the time mum spent living with us in Mackay. During the [time] that mum lived with my family and me, she got to spend considerable time with her grandchildren. She got to see Jake play the trombone and excel at soccer. She saw Ruby's fondness and talent for art. Mum was introduced to my network of friends. She attended children's birthday parties and school concerts with my children. She enjoyed walks on the beach with us and the dog. During that time she attended art lessons and exhibitions."
4. After moving out of Jenny's family home, the deceased lived with Karen for a few weeks during which time Jenny maintained contact with the deceased. The deceased returned to take care of Jenny and Gary's animals, whilst they were on holiday, and she remained living there until her relocation to Lismore: Affidavit, Jenny Ann Armitage, 8 August 2019, par 21.
5. Karen married Robert, in Mackay, in October 2013. It was accepted by Jenny that her relationship with Karen deteriorated in the time leading up to, and following, Karen's marriage.
6. The deceased moved to a property in Lismore that she had inherited some time earlier from her mother, Dorothy. She gave different reasons for doing so to Jenny, than those she gave to Karen. Jenny says that the deceased told her that she owned a property in Lismore; that she had extended family and friends from her childhood there, namely, her cousin Mary Mulley with whom she was particularly close, and that she was worried for Karen (who lived in Brisbane). Karen said that Jenny was the cause of the deceased leaving Mackay, and that there was an estrangement between them following her departure.

(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's estate

1. Jenny submitted, in writing, that the deceased "owed me the obligation of a mother to her daughter". Her counsel submitted that "the deceased's obligation extended to assisting the plaintiff to have a leg up in life": Tcpt, 14 May 2020, p 167(50) - p 168(02).
2. In Flathaug v Weaver [2003] NZFLR 730 at 737 [32]; (2003) 22 FRNZ 1035 at [32], the origin of the obligation which underpins the Act's recognition of the duty owed by a parent to a child was put, by Hansen J, in delivering judgment for the Court, in this way: "The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives."
3. I have otherwise dealt with the general principles on this topic earlier in these reasons.

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

1. As discussed earlier in these reasons, the value of the estate out of which an order could be made, taking into account the costs of the proceedings, will be in the order of $433,200. It is an estate of relatively modest value. Earlier, I have referred also, to the partial distribution made to Karen and to her receipt of the death benefits.

(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 and

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

1. I have referred to these two matters together as the evidence was effectively combined.
2. As at the date of the hearing Jenny is 56 years old. She is married to Gary and as earlier stated, they have children aged 18 and 15 years.
3. At par 2 of an affidavit, sworn on 5 May 2020, Jenny sets out estimates of her, and Gary's, financial resources as at that date. They are summarised as follows: Description Value($) Property 1, Eimeo 380,000 Property 2, Bucasia 440,000 Property 3, Eimeo 300,000 Mazda CX7 10,000 Household furniture and effects 20,000 Camper trailer 2,000 Cash at bank 392 Subtotal 1,152,392 Gary's superannuation 294,049 Jenny's superannuation 29,558 Total Assets 1,476,000

1. In the same affidavit, at par 4, Jenny set out their current liabilities, which may be summarised as follows: Description Amount ($) Mortgage Loans (CBA) 1,103,525 Credit Cards 25,587 Toyota Fortuner Finance 35,192 Council Rate Arrears 7,890 Personal Loans (from friends and family) 40,500 Mackay Christian College 2,562 Total Liabilities 1,215,257

1. Jenny is currently unemployed. She had previously worked from home, casually, retouching photographs, for some time after the birth of her son in 2002, and on Saturdays, at her friend's hairdressing salon in Port Melbourne. At par 41(a) of her affidavit, sworn on 8 August 2019, she states that "[she] probably didn't earn enough to declare or complete a tax return." On relocating to Queensland, Jenny stated that she worked as house cleaner, which work she described in cross-examination as "very spasmodic and cash in hand" (Tcpt, 13 May 2020, p 55(07)) and as a babysitter, and at a local chemist three shifts per week. She had volunteered at her children's school, in art and reading classes, as well as the school library, for which she states that her "contributions were recognised with a reduction in school fees".
2. Jenny had been "help[ing] out" at Kitten Vintage, a shop on Harbour Road, Mackay a few times per week for which she was not paid but through which she had been selling an assortment of objets and curios that she had, mostly, accumulated over the years, or found at garage sales and second-hand shops. For the sale of these items, she would pay the proprietor a commission, and receive other items at cost price. She has also sold two paintings, with some other pieces, presently, on consignment. In respect of sales for the period 11 October 2019 to 10 January 2020, she states that she received $1,480, which amount she averaged to $112 per week.
3. Jenny deposed, however, at par 15 of her affidavit, affirmed on 3 April 2020, that, in early March 2020, she "stopped going into Kitten Vintage" just prior, it would seem, to the temporary closure of the business, on 22 March 2020, in response to the COVID-19 pandemic. Although Jenny regards this to have had "some impact" financially, it would seem that putting to one side the impact of the pandemic and the relatively modest amounts earned, that this a result of, at least in part, her choice reflected in her statement that "she do[es] not need that extra activity at present". This conclusion is reinforced by what follows, in that during that same period, Jenny states that she "did a casual cleaning job for a friend" for which she received $150, at present, however, "she do[es] not have the time to pursue casual cleaning for friends": Affidavit, Jenny Arm Armitage, 3 April 2020 at pars 15-16.
4. Gary is in good health despite having suffered a work-related electrical injury in July 2007, for which he "was off on WorkCover for about twelve months unable to work." Consequent upon which, in July 2008, the General Medical Assessment Tribunal - Psychiatric assessed his symptoms as consistent with the diagnosis of Post-Traumatic Stress Disorder. He received Centrelink benefits for some time thereafter, and a compensation settlement ($407,028, after payment of legal fees) in April 2009, the proceeds of which were spent upon the deposit on the family home ($220,000); the family car ($45,000); a gift to Gary's parents ($15,000); payment to the deceased (between $6,000 and $8,000); accumulated ATO and credit card debt ($40,000); home renovation and repairs ($20,000); and to fund daily living expenses: Affidavit, Jenny Ann Armitage, 8 August 2019 at par 40.

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

1. Jenny has given no evidence of any adverse health issues (apart from stating that she has "had some health issues from time to time. Primary amongst these were broken toes": Affidavit, Jenny Ann Armitage, 8 August 2019 at par 41) or any evidence of any physical, intellectual or mental disability, suffered by her. In my view, the complaints do not affect her capacity to work.
2. Karen experienced difficulty in conceiving a child, for which she had completed three, albeit unsuccessful, cycles of IVF Treatment, which she ceased, on the basis of medical advice, at the age of 46. As a result of those treatments, in particular, Karen states that she has experienced high blood pressure, for which she was at least up until her affidavit, sworn on 18 June 2019, prescribed daily medication.
3. Apart from a period, between 27 March 2020, and at least until 6 April 2020, in which she was hospitalised at The Prince Charles Hospital in Chermside, Karen states that she is in "fairly good health". A medical certificate, marked annexure A, to her affidavit affirmed on 1 May 2020, dated 6 April 2020, confirmed that Karen was unable to attend work from the date of her admission to 20 April 2020 due to a medical condition.

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

1. As earlier stated, Jenny is 56 years old.

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

1. Counsel for Jenny, in his written submissions, acknowledged that Jenny "did not make substantial contributions to the deceased's estate, or to her welfare for which adequate consideration was not received".
2. It is clear that Karen played the principal, almost sole, role, in the welfare of the deceased, particularly in the last few years of the deceased's life. They had also lived together for many years. She had provided the deceased with emotional, practical and financial support.
3. Jenny acknowledged that she was pleased that the deceased had Karen as support and that she could confide in, and seek advice from, her. Jenny also acknowledged that Karen attended to household repairs, maintenance and renovations and had made the deceased's life more comfortable.
4. The deceased's largest asset had been her half share of the Burwood matrimonial home, and Karen had assisted with maintenance, repairs, renovations and removing their father's clutter, and had also prepared the property for sale. Karen had taken unpaid leave and had later travelled, regularly, on weekends, to Lismore, to assist the deceased after the Lismore floods. She had also taken leave to care for the deceased during her final days.

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

1. Jenny acknowledged that during her lifetime, the deceased gave to her a wedding dress; "surprised her with a harpist at her wedding"; lent her between $1,000 or $2,000 (which was repaid) and, shortly before her death, gave her a silver brooch.
2. Of course, Jenny receives a pecuniary legacy of $30,000 and some personal effects out of the estate of the deceased.

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

1. I have dealt with the deceased's testamentary intentions, and statements made by the deceased, earlier in these reasons. It is clear from what I have written that not all of the matters identified by the deceased accurately reflected the true position.

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

1. Jenny was not being maintained by the deceased before her death and had not been maintained for many years prior to her death.

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

1. Section 72 of the Family Law Act 1975 (Cth) provides that a party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately. Jenny's husband, Gary, is liable to support her.

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

1. As has recently been written in Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154 at [34], by Meagher JA (with whom Gleeson and Leeming JJA agreed): "… the matters contained in s 60(2) may be considered for the purpose of determining whether to make a family provision order and the nature of any such order. In that context the reference in para (m) to 'the character and conduct of the applicant' echoes the language of s 3(2) of the Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW), which permitted the Court to refuse to make an order in favour of any person whose 'character or conduct' was such as to disentitle him or her to the benefits of such an order. In Re the Will of FB Gilbert, Jordan CJ (at 321) and Maxwell J (at 326) rejected a submission that perjury committed by the applicant in giving evidence in support of her application amounted to such disentitling conduct. The Chief Justice proffered that the character or conduct with which the Act was concerned was 'for example, misconduct towards the testator, or character or conduct which shows that any need which an applicant may have for maintenance is due to his or her own default'. However, as his Honour then emphasised, that did not mean that the applicant's conduct as a witness may not be taken into account in assessing her evidence and whether her case has been established on the facts."
2. Counsel for Karen submitted that the Court should take into account that by commencing the proceedings for family provision relief in Queensland, and having the estate incur substantial costs Jenny caused a diminution in the value of the deceased's estate in circumstances where there was no property in Queensland and no other connection to Queensland. However, as acknowledged, this was the "error" of Jenny's legal representatives, rather than of Jenny herself. Despite this, the fact remains that the estate of the deceased has been reduced as a result of the costs of the Queensland proceedings.

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

1. Counsel for Jenny, in his written submissions stated: "The Plaintiff does not seek to make any opening submissions in relation to this paragraph."
2. He did not make any subsequent submissions on the topic.
3. Nor could he, since there could be no criticism of Karen, or of the nature and quality of her relationship, respectively, with, and behaviour towards, the deceased. It is not necessary to further repeat her character and conduct as she is the principal chosen object of the deceased's bounty. It is clear that she had a close and loving relationship with the deceased.
4. A matter that speaks in favour of Karen's conduct is her suggestion to the deceased that some provision should be made for Jenny rather than omitting her entirely as an object of testamentary bounty.
5. It was not submitted that the conduct of any of Jenny's family should be considered.

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

1. This is an irrelevant matter in this 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.

1. There are no other matters that I consider relevant.

Determination

1. What is written below should be read as a continuation of what has been written above. In addition, I have had regard to all of the factual, and other, matters, so far as they are relevant, to my conclusions set out below. Merely because specific reference has not been made to facts previously identified, should not lead to the conclusion that they have not been fully considered.
2. Having established eligibility, and that the proceedings were commenced within time, relevantly, the Court must determine whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life, of Jenny, has not been made by the Will of the deceased.
3. Some provision in the Will of the deceased has been made, which means that this is not a case where a child of the deceased has been excluded, completely, from participation in a parent's estate. The jurisdiction is designed to provide for an eligible person where inadequate provision is made for her, or his, maintenance, education or advancement in life: Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 at 29 (Kirby P).
4. Judged by quantum, and looked at through the prism of her own financial resources and needs, adequate provision for Jenny's proper maintenance or advancement in life could be seen as not having been made by the Will of the deceased. As stated above, the test established by s 59 of the Act has regard not only to what is "adequate" by reference to the applicant's needs, but also to what is "proper" in all the circumstances of the case.
5. When the Court approaches the question for which s 59(2) of the Act provides, it should place itself in the position of the deceased, and consider what she ought to have done in all the circumstances of the case. This consideration occurs in light of the facts known at the time when the Court is considering the application. The Court treats the deceased as a wise and just, rather than as a fond and foolish testatrix: Bosch v Perpetual Trustee Co Ltd at 478-479 (Lord Romer for the Board); Pontifical Society for the Propagation of the Faith v Scales at 19-20 (Dixon CJ). The Court should also make allowance for current social conditions and standards: Andrew v Andrew at [34] (Basten JA) and, where it is considered relevant to do so, have regard to the matters set out in s 60(2) of the Act to determine whether to make a family provision order and the nature of any such order.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 July 2020