[2010] NSWCA 176
Andrew v Andrew [2011] NSWSC 115
Andrew v Andrew (2012) 81 NSWLR 656
Blendell v Blendell [2020] NSWCA 154
Boettcher v Driscoll (2014) 119 SASR 523
[2014] SASC 86
Bondelmonte v Blanckensee [1989] WAR 305
Borebor v Keane (2013) 11 ASTLR 96
[2007] SASC 327
Brimelow v Alampi (2016) 50 VR 219
Source
Original judgment source is linked above.
Catchwords
[2010] NSWCA 176
Andrew v Andrew [2011] NSWSC 115
Andrew v Andrew (2012) 81 NSWLR 656Blendell v Blendell [2020] NSWCA 154
Boettcher v Driscoll (2014) 119 SASR 523[2014] SASC 86
Bondelmonte v Blanckensee [1989] WAR 305
Borebor v Keane (2013) 11 ASTLR 96[2007] SASC 327
Brimelow v Alampi (2016) 50 VR 219[2016] VSC 135
Burke v Burke (No 2) (2015) 13 ASTLR 313[2016] NSWCA 222
Chapple v Wilcox (2014) 87 NSWLR 646[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[1979] HCA 2
Hunter v Hunter (1987) 8 NSWLR 573
In re Green (deceased)[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 SalierWilliam Wardy v Gordon Salier
[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
Judgment (36 paragraphs)
[1]
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)
[2]
Solicitors:
Strutynski Law (Plaintiff)
Armstrong Legal (Defendant)
File Number(s): 2019/80693
[3]
Introduction
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.
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.
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.
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.
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.
[4]
The Hearing
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.
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.
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."
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.
...
[5]
Some formal matters not in dispute
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.
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).
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.
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.
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.
Although there is some property that may be able to be designated as notional estate, counsel acknowledged, when it was raised, that the Court must not make a notional estate order unless it is satisfied that (a) the deceased person left no estate, or (b) the deceased person's estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, or (c) provision should not be made wholly out of the deceased person's estate because there are other persons entitled to apply for family provision orders, or because there are special circumstances: s 88 of the Act. They also agreed that the actual estate of the deceased is sufficient for the making of any family provision order, and any order for costs, that may be made for the Plaintiff: Tcpt, 13 May 2020, pp 3(40-44), 4(05-20).
[6]
Some background facts
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.
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.
The deceased was employed as an accounts clerk at NEC. In 2011 or 2012, she inherited the estate of her mother, Dorothy Manewell.
Jenny was born in January 1964, and is 56 years of age. Karen was born in September 1969 and is 50 years of age.
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.
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.
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).
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.
[7]
The estate of the deceased
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.
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.)
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
[8]
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).
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).)
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.
[9]
The Costs of the Proceedings
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.
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.
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."
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'."
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].
[10]
The deceased's testamentary intentions
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).
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."
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).
[11]
Barry's financial resources
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.
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.
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.
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.
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."
[12]
Claim for a Family Provision Order - The Statutory Scheme
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.
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.
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).
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).
[13]
Some Additional Principles
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.
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).
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.
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."
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.
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."
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.
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."
[14]
Claim by an adult child
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).
[15]
Qualifications on "Principles"
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."
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.
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.
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]."
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.
[16]
Additional Facts
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.
[17]
(a) any family or other relationship between the applicant and the deceased, including the nature and duration of the relationship
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.
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.
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."
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.
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.
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.
[18]
(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
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).
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."
I have otherwise dealt with the general principles on this topic earlier in these reasons.
[19]
(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
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 $433,200. It is an estate of relatively modest value. Earlier, I have referred also, to the partial distribution made to Karen and to her receipt of the death benefits.
[20]
(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate and
[21]
(e) if the applicant is cohabiting with another person - the financial circumstances of the other person
I have referred to these two matters together as the evidence was effectively combined.
As at the date of the hearing Jenny is 56 years old. She is married to Gary and as earlier stated, they have children aged 18 and 15 years.
At par 2 of an affidavit, sworn on 5 May 2020, Jenny sets out estimates of her, and Gary's, financial resources as at that date. They are summarised as follows:
Description Value($)
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
[22]
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
[23]
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".
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.
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.
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.
[24]
(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
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.
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.
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.
[25]
(g) the age of the applicant when the application is being considered
As earlier stated, Jenny is 56 years old.
[26]
(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
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".
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.
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.
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.
[27]
(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
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.
Of course, Jenny receives a pecuniary legacy of $30,000 and some personal effects out of the estate of the deceased.
[28]
(j) any evidence of the testamentary intentions of the deceased, including evidence of statements made by the deceased
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.
[29]
(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
Jenny was not being maintained by the deceased before her death and had not been maintained for many years prior to her death.
[30]
(l) whether any other person is liable to support the applicant
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.
[31]
(m) the character and conduct of the applicant before and after the date of the death of the deceased person
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."
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.
[32]
(n) the conduct of any other person before and after the date of the death of the deceased person
Counsel for Jenny, in his written submissions stated:
"The Plaintiff does not seek to make any opening submissions in relation to this paragraph."
He did not make any subsequent submissions on the topic.
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.
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.
It was not submitted that the conduct of any of Jenny's family should be considered.
[33]
(o) any relevant Aboriginal or Torres Strait Islander customary law
This is an irrelevant matter in this case.
[34]
(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.
There are no other matters that I consider relevant.
[35]
Determination
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.
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.
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).
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.
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.
[36]
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
Parties
Applicant/Plaintiff:
Armitage
Respondent/Defendant:
Fraser
Legislation Cited (9)
Evidence (Audio and Audio-Visual Links) Act 1998(NSW)
Family Provision Act 1982(NSW)
Testator's Family Maintenance and Guardianship of Infants Act 1916(NSW)
For the most part, the legal representatives endeavoured to manage the hearing, with the object of resolving the real issues between the parties in such a way that the cost to the parties was proportionate to the importance and complexity of the subject-matter in dispute: Civil Procedure Act 2005 (NSW), s 60. The hearing was set down for two days and was completed within that time, even though extended hearing times, in some other cases, have occurred because of remote hearings necessitated by the COVID-19 pandemic. The pandemic necessitated a remote hearing with the use of video technology and electronic document handling software. This required co-operation, planning, and flexibility, on the part of all involved.
At the hearing, Mr C Birtles of counsel appeared for Jenny and Ms T Catanzariti of counsel appeared for Karen. I am grateful to all of the legal representatives, for the manner in which the hearing was conducted, and for their industry, and effort, in providing written submissions which I have found very helpful.
The challenges of proceeding with a remote, or virtual, hearing applied to both sides equally. Whilst the Court still values the opportunity to see a witness in person, and hear submissions from counsel, who are physically present, I was satisfied that the direction would not be unfair to either party. As stated, each of the parties had an opportunity to be heard on the matter. Neither side submitted that the matter should not proceed in this way. Importantly, neither counsel submitted that there would be any unfairness in conducting the hearing in this way, or that it would not be in the interests of justice to do so.
The virtual hearing was conducted using "Microsoft Teams", which, as I understand it, is a video communication platform that enables multiple persons to appear together online and communicate face-to-face using audio and video facility. (A "test-run" was conducted using the platform in the week before the hearing commenced.)
Despite the hearing being conducted in this way, there was no informality, as counsel, and I, were wigged and robed throughout the hearing which took place with me sitting in my usual Courtroom. The parties, although remote, remained present, and in view. Despite some technical problems, on occasions, which were resolved, I was able to see, and hear, both parties, and both counsel, and they were able to see, and hear, me, almost as each would have, had a live hearing taken place. Having now concluded the hearing, I am satisfied that it was undertaken in a forensically sound, thorough, fair, and just manner. No complaint has been made about the manner in which the hearing was conducted.
The parties were informed that subject to changes in Court operations during the pandemic, reasons for judgment would be handed down remotely, by circulation to their legal representatives, by email, and publication on Caselaw subsequently. I shall follow this course and shall allow the parties an opportunity to resolve the issue of costs. Again, neither party submitted that the reasons for judgment should not be delivered in this way. In current circumstances, it is appropriate.
Property which has been distributed to Karen, or which she has otherwise received ("death benefits which total in the order of $186,000 or thereabouts" and an "interim distribution of $90,000") (Tcpt, 13 May 2020, p 4(20-36)) will be taken into account in determining the provision, if any, to be made for Jenny.
In the circumstances, Jenny did not seek an order that any property of the deceased be designated as notional estate.
The only eligible persons are Jenny, Karen, and their father, Barry Ernest Sawyer, who is the former spouse of the deceased: s 57(1)(d) of the Act. Whilst Jenny, in her Notice of Eligible Persons (at p 4 of the Summons), stated that two of the deceased's grandchildren, namely her children, Ruby Jazz Armitage and Jake Jordan Armitage, are, or could be, eligible persons, there was no evidence of either being a person who was, at any particular time, wholly, or partly, dependent upon the deceased. At the hearing, it was accepted that neither is an eligible person: Tcpt, 13 May 2020, p 4(38-50).
The deceased's former husband, Barry, has not made a claim. There was no evidence that notice of the application, and of the Court's power to disregard his interests, was served on him, in the manner and form prescribed by the regulations or rules of court: s 61(2)(a) of the Act. However, I am satisfied that service of the prescribed notice upon Barry is unnecessary (s 61(2)(b) of the Act), bearing in mind that he and the deceased separated over 25 years prior to the deceased's death and that it appears there was an informal property settlement agreed to, and implemented, by them. It will be necessary to return to Barry's financial circumstances later in these reasons.
Only Jenny has made a claim for provision under the Act. Karen has not commenced proceedings under the Act, but she has given evidence of the bases, financial, and otherwise, of her claim upon the bounty of the deceased as one of beneficiaries named in the deceased's Will. The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though she, or he, has not made a claim: s 61(1) of the Act. A beneficiary is entitled to rely upon the terms of the deceased's Will and her, or his, competing claim, respectively, as a chosen object of the deceased's testamentary bounty. I shall refer to Karen's situation in life, later in these reasons.
Karen, as executor, does not seek any commission, or percentage, for her pains and trouble as is just and reasonable, out of the estate of the deceased pursuant to s 86 of the Probate and Administration Act 1898 (NSW).
Jenny's costs and disbursements of the proceedings, calculated on the ordinary basis were estimated to be $55,000. Those costs and disbursements, calculated on the indemnity basis, were estimated to be $70,000. She has paid $10,000, from her own funds, on account of those costs and disbursements.
Karen's costs and disbursements, calculated on the indemnity basis, were estimated to be $83,224. She has paid $15,298 on account of her costs and disbursements out of the estate of the deceased. It follows that the balance of her costs and disbursements, yet to be paid, are $67,926.
Assuming, without deciding, that the estimates for the costs and disbursements are accurate, and assuming that the costs orders referred to above are made, in the event that Jenny is successful, the total amount of costs and disbursements of these proceedings, payable out of the estate, will be $122,926.
In addition, it is necessary to add to the costs payable out of the estate, the balance of Karen's unpaid costs of the Queensland proceedings ($15,747). It follows, in the event that the estimates of costs prove accurate, that the total amount of costs to be deducted will be $138,673: Tcpt, 13 May 2020, p 41(17-36).
(Mr P Clark, Jenny's solicitor in both these, and in the Queensland, proceedings acknowledged that, at the time the Queensland proceedings were commenced, there was no connection between the deceased's estate and Queensland, and that commencing those proceedings constituted an "error" on the part of Jenny's lawyers. He also conceded that Jenny would not be charged by his firm for costs incurred in respect of the Queensland proceedings, but was unsure whether counsel retained in that matter would seek his fees ($10,000): Tcpt, 13 May 2020, p 47(19-48). Mr Clark also confirmed that those fees had not been included in the estimate of Jenny's costs of these proceedings to which I have earlier referred: Tcpt, 13 May 2020, p 48(19-20).)
Using the amounts set out above as a guide, the net distributable estate out of which any order for provision, for Jenny, could be made, would be about $433,200.
At the commencement of the hearing, the Court asked whether the question how the burden of costs should be borne could be determined as part of these reasons, to which counsel for Karen replied that "there is a document that may be relevant": Tcpt, 13 May 2020, p 8(30-51).
The parties were encouraged to agree on their respective costs, calculated on the ordinary basis for Jenny, as Plaintiff, and also, so far as Karen, the Defendant is concerned, costs, calculated on the indemnity basis. By doing so, the court could make an order, before costs were referred for assessment, to the effect that the party to whom costs are to be paid is to be entitled to a specified gross sum instead of assessed costs: Civil Procedure Act, s 98(4)(c). This would avoid any further delay in the administration of the estate: Tcpt, 13 May 2020, p 9(01-08). Regrettably, they were unable to do so.
In par 18 of an unsigned affidavit, annexed to an affidavit of Mr Clark, sworn on 5 May 2020 and confirmed by her as true and correct on affirmation, Mary Emily Mulley, the deceased's cousin, deposed that the deceased, in 2017, had expressed an intention to divide her estate equally between Jenny and Karen. Ms Mulley stated further that:
"[the deceased] couldn't make up her mind about what to leave to her grandchildren, Jake and Ruby. We talked about this on a number of occasions. [The deceased] never suggested that Jenny be excluded from the Will or receive only a small share in her estate".
More important than this evidence, however, in my view, are the annexures to Karen's affidavit, sworn on 18 June 2019, being a copy of the handwritten file notes, written by the deceased's solicitor, made contemporaneously with the taking of the instructions for, and the drafting of, the deceased's Will. In one of the notes, the deceased's solicitor, with some foresight it seems, wrote:
"I make this file note as I hold concern as to what [the deceased's] daughter, Jenny, may claim at [the deceased's] death. The purpose of this file note is to contemporaneously record [the deceased's] express wishes."
Karen had scheduled the appointment, had attended with the deceased, and was present, for the most part, during the giving of the instructions. The file notes reveal that, at the commencement, the solicitor:
"Spoke with [the deceased] independently … Karen remained in reception. Karen stated she was happy to wait in reception until conclusion of conference. In attendance as she was driving her mother to appointments (in light of illness)."
Subsequently, Karen was invited to, and did, return, at the behest of the deceased, to the conference room, whilst the deceased spoke to the solicitor. I accept, as the notes record, that the solicitor:
"Provided advice as to implications of having Karen in attendance during conference.
• Claim of 'undue influence' may be brought.
• Karen's presence may compromise [the deceased's] Will being administered in accordance with her intentions.
• Particularly relevant were unequal shares being bequeathed.
• Recommendation: Conference alone to eliminate prospects of such a claim.
[The deceased] confirmed that she understood the above; however, she wished for Karen to be present for support only. [The deceased] advised she felt confident that Karen would respect her wishes with respect to the gifts to be made under her Will. [The deceased] spoke independently and I was satisfied that she understood that a Family Provision claim may well be made and on that basis, specifics would be required with respect to any gifts."
I am satisfied that Karen did not play any relevant part in what is recorded as the deceased's instructions and the views of the deceased recorded in the notes were the views that she alone expressed to the solicitor. Indeed, as was recorded in the notes, it was Karen who suggested to the deceased that she make some provision for Jenny.
The content of the notes provide some insight into the deceased's testamentary intentions and her reasons for making the provision that she made for Jenny in her Will, as follows:
"[The deceased] advised that she had been told by her doctor to organise her affairs, as she had been diagnosed with cancer (which significantly impacted upon her life expectancy). This was the impetus for the conference for the drafting of a Will/EPA.
In light of her illness and treatment, [the deceased] had been living with her daughter, Karen.
[The deceased] expressed love and gratitude for Karen's support during the difficult time she was experiencing."
Under the heading "Step 1: Assets/liabilities", reads:
"[The deceased] spoke well about her assets/liabilities she was clear as to her financial position and did not hesitate with her responses. Karen did not speak during this process. [The deceased] spoke independently of Karen and I did not harbour concern in relation to her capacity. There were no moments where I felt [the deceased] was confused/suffering any delusions."
Under the heading "Step 2: Appointment of Executor", reads:
"[The deceased] was clear in only wanting to appoint Karen as her Executor. In reaching this decision, [the deceased] was provided advice as to joint/several/successive Executor(s)/Trustee(s). She remained clear that she only wishes to appoint Karen. In this regard, [the deceased] reasoned:
• Karen has been the only one to help me with [my] health concerns. She has been taking her to all appointments and has always been there for her. She trusts that Karen will effect her testamentary wishes.
• [The deceased] has minimal contact her daughter, Jenny. She does not consider that Jenny would be able to effect her wishes, as their contact is minimal.
• Jenny has the sole responsibility of caring for her father. This is an onerous task and [the deceased] felt that as she is closer to the father and Karen is closer to [the deceased], it would be best to leave this responsibility with Karen.
After providing the above reasons, Karen stated that she was happy to accept the responsibility but would be equally happy to act jointly with Jenny. In response, [the deceased] stated that it was not her wish to appoint Jenny jointly. She was exceptionally clear about this."
Under the heading "Step 3: Distribution of Estate":
"[The deceased] indicated that she wished for the whole of her Estate to go to Karen. She did not wish to make provision for Jenny.
After receiving the above, instruction advice was provided to [the deceased] re : Family Provision Claims and challenging the validity of Wills. Noted that if Jenny excluded, very well may be the case that she brings claim against the Estate. [The deceased] confirmed that she understood the advice. I was satisfied that [the deceased] understood. In reaching this conclusion, I had regard to the fact that she asked questions about the strength of a claim by Jenny.
After the provision of this advice, Karen stated to [the deceased] that provision should be made for Jenny as she was her daughter and they once shared a mother-daughter relationship.
[The deceased] was reluctant to accept Karen's suggestion. I asked for reasons as to why the relationship had broken down.
[The deceased] advised as follows:
• Some time ago, [the deceased] moved from Melbourne to Mackay. At this time, Karen also resided in Mackay. Jenny expressed substantial hostility re Karen's marriage to her current husband. This frustrated [the deceased]. She did not agree with how Jenny was treating Karen. She felt that she should have been supportive of Karen.
• Karen moved back to Brisbane.
• Shortly thereafter [the deceased] moved back into her parent's old property in NSW.
• [The deceased's] and Jenny's relationship broke down from here. [The deceased] advised that she felt that Jenny resented the time [the deceased] spent in helping Karen plan her wedding and that this worsened when she moved away from Jenny. [The deceased] advised that she was not trying to put distance between herself and Jenny; she just 'hated' living in Mackay.
• After [the deceased's] return to NSW, she instructs that she had minimal contact with Jenny. She did not want to remain in contact, however, she did keep some contact so she could speak with her grandchildren.
• [The deceased] instructs she speaks with Jenny 3-4 times per year.
• [The deceased] expressly instructed that she 'does not feel supported by Jenny'. They have not share[d] a close/supportive relationship for many years.
In light of the above, [the deceased] instructed that she did not see why Jenny should get equal share of her estate. [The deceased] noted that she did not see why Jenny would need any part of her estate for her maintenance. In this regard, [the deceased] noted that Jenny was never dependent on her and her partner had an attractive income sufficient to support Jenny and their children.
[The deceased] then instructed that she would like to leave a sum of money ($30,000) to Jenny. The impetus for this gift was that she would like 'Jenny to have a little bit extra for the benefit of her grandchildren'. [The deceased] instructed $30,000 was more than enough to achieve this intention.
As to the reason [the deceased] intended for Jenny to have a lesser gift than Karen, she instructed that:
• Her relationship was/is closer/more supportive/loving with Karen;
• She feels a greater connection with Karen, as Karen makes the effort to speak with/spend time with [the deceased];
• [The deceased] and her ex-husband (Karen/Jenny's father) split their assets when divorced. [The deceased] was aware all of his assets were being left to Jenny as she sighted his Will and he told her of this."
At a subsequent appointment, on 7 February 2018, made to enable the deceased to execute the Will and the Enduring Power of Attorney, another note records:
"[The deceased] confirmed that she did not have any 'any change of heart'. She did not remain in contact with Jenny, and she did not feel supported by her for many years."
There can be no doubt that evidence of the intentions of the deceased in respect of provision for an applicant is admissible in a claim for a family provision order: Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 481-482 (Lord Romer for the Board). Section 60(2)(j) of the Act, specifically, provides that the Court may have regard to any evidence of the testamentary intentions of the deceased, including evidence of statements made by her, or him, for the purpose of determining, relevantly, in this case, whether to make a family provision order and the nature of any such order.
Whilst deference ought to be given to the testamentary dispositions made by a capable testator, it should be remembered, as well, that merely because a statement is made by the deceased concerning the applicant for provision, the statement does not, unquestionably, have to be accepted as true. Such a statement may be just as inaccurate, or as unreliable, as a statement of a living witness, whether as the result of a mistake, or a failure of memory, or a deliberate untruth: Worsley v Solomon [2008] NSWSC 444 at [35] (McLaughin AsJ); Carusi-Lees v Carusi [2017] NSWSC 590 at [59].
I also bear in mind, what was said by Gresson J, in the course of delivering judgment for the Court of Appeal of New Zealand, in In re Green (deceased); Zukerman v Public Trustee [1951] NZLR 135 at 141, (which passage was approved by the majority of the High Court of Australia in Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134 at 138, 152; [1979] HCA 2):
"... the testator should not be allowed from the grave to condemn the child and to impose upon that child the positive duty of disproving the allegations as an essential preliminary to prosecuting the claim."
Earlier in Hughes, at 149, Gibbs J (as his Honour then was) had written:
"Such a statement is admissible as original evidence to prove the knowledge, motive or other state of mind of the testatrix should that be relevant."
At 138, Barwick CJ wrote:
"… When attempting to decide what a particular testator or testatrix ought as a just and wise father or mother to have done, those reasons which that testator or testatrix actually entertained for his or her decision cannot, it seems to me, justly be ignored. Of course, if the evidence in the matter does not support such reasons, they cannot be acted upon simply because the deceased asserted or entertained them."
In Pincius v Wood [1998] TASSC 46, Cox CJ noted at 4:
"A reason based on a belief proved to be mistaken may well be relevant in support of an applicant's claim. Thus if the reason advanced for inclusion is a mistaken belief in the prosperity of an applicant who enjoyed a good relationship with the testator that could properly be taken into account and would be a strong reason for interfering with the will …"
In Diver v Neal (2009) 2 ASTLR 89 at 101 [61]; [2009] NSWCA 54 at [61], Basten JA wrote:
"There will be cases in which intervention in the distribution of the estate will be justified on the basis that the testator was not fully aware of all the relevant circumstances when he or she made his or her will: see, eg, In re Allen (deceased); Allen v Manchester [1922] NZLR 218 at 220-221 (Salmond J). On the other hand, too much weight should not be given to the testator's expressed intention. The Court is not limited to considering the circumstances as they existed when the will was made, or when the testator died. Rather, s 9(2) requires the adequacy of provision to be determined as at the date of the hearing of the application. Furthermore, whatever the semantic phraseology, the authorities are unanimous that the Court is required to apply an objective standard in assessing the adequacy of the provision made."
I repeat what I wrote in Andrew v Andrew [2011] NSWSC 115 at [25]:
"While the Court will consider any explanations given by the deceased in the will, or elsewhere, for excluding a particular person as a beneficiary, such explanations do not relieve the court from engaging in the enquiry required by the Act: Slack-Smith v Slack-Smith [2010] NSWSC 625 at [27]. What an explanation may do is cast light on the relationship between the deceased and that person, at least from the deceased's perspective."
Finally, I refer to what Henry J wrote, more recently, in Piercy v Douras [2019] NSWSC 1013, at [141]-[144]:
"In appropriate cases, considerable weight may be given to a testator's testamentary wishes as to who should benefit from their estate if it can be seen that the testator was capable of, and did, give due consideration to the claims on their estate. This approach recognises that a testator is in a better position than the Court to make such an assessment. But the application of s 59 of the Succession Act is 'not confined by notions of reluctance to interfere with freedom of testation', and the expression of the deceased's testamentary wishes contained in the statement of reasons is just one of many matters to be taken into account: Steinmetz v Shannon [2019] NSWCA 114 at [96] per Brereton JA; Sgro v Thompson [2017] NSWCA 326 at [83]; Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127].
On its terms, the statement of reasons makes clear that the deceased gave consideration to [the applicant] as someone who may have a claim on his estate. The issue is what weight should be given to the assertions regarding [the applicant's] character and conduct, some of which are assertions of a very serious nature, as a justification for excluding [the applicant] from the will.
The statement of reasons does not need to be unquestioningly accepted as the truth of the matters referred to because, just as is the case with a living witness, those matters may be inaccurate or unreliable because of a mistake, failure of memory or a deliberate untruth: Carusi-Lees v Carusi [2017] NSWSC 590 at [59]; Worsley v Solomon [2008] NSWSC 444 at [35].
If the truth of the assertions made by the deceased about [the applicant] in the statement of reasons were admitted or corroborated by the evidence, then due weight might be given to them: McDonald v O'Connor [2019] NSWSC 261 at [174]. Even if [the applicant] cannot disprove the assertions made against him, it does not mean they should be accepted as true or operate to negate his application for a provision order: McDonald v O'Connor ... at [177] - [178]."
I shall refer to the significance of the instructions provided by the deceased, and the weight to be attributed to them, later in these reasons.
As will be read, "the financial resources … both present and future, of the applicant" is one of the matters that may be considered by the Court: s 60(2)(d) of the Act.
A financial summary prepared by the NSW Trustee and Guardian, based on annual accounts received on 30 April 2018 and detailed in a letter dated 12 December 2018 to the Registrar of the Guardianship Division of the NSW Civil and Administrative Tribunal (Ex JS2, Tab 5), reveals that Barry had assets with a total value of almost $490,000, being real estate at Dorrigo ($84,900), shares ($21,837 and $4,641), and moneys on deposit ($356,063 and $22,188). He had an annual income, from different sources, being from investments ($2,590), pensions ($5,774) and superannuation ($12,166) totalling $20,530, and annual expenditure of $32,801.
There was not very much information about Barry's current financial circumstances, although there is no dispute that he now lives with Jenny and her family, which has the financial consequence that a number of his expenses have been reduced. In addition, a comparative market appraisal prepared by Elders Real Estate, on 11 May 2020, estimates that, as at that date, the Dorrigo property had an estimated value of between $125,000 and $150,000. A market appraisal by Ray White Real Estate, on the same date, provides an "achievable sale range" of between $100,000 and $110,000: Ex JS2, Tabs 9-10.
Jenny has primary responsibility for the care of Barry. He came to live with her after she received "complaints of him urinating in public, of grabbing foodstuffs from bins and of him standing on … roadways" from the operator of the caravan park where he had been living previously.
Jenny states, at par 4 of her affidavit, sworn on 3 April 2020, that:
"[Barry] is incontinent. He wanders. He cannot prepare meals. Left by himself he would not bathe. He cannot do laundry … He cannot attend to personal grooming."
Jenny stated that caring for Barry "in the family home is not a permanent fix". Despite the assistance of a carer for 16 hours each week, she describes the situation as "too exhausting physically" and, one might tend to think, although not stated but having regard to her detailed description of a typical day's care for him, emotionally too: Affidavit, Jenny Ann Armitage, 3 April 2020 at par 6.
In this case, I am satisfied that the terms of Barry's Will, which will take effect upon his death, will result in Jenny having a source of financial support that she can reasonably expect will be available to her to supply a financial need or deficiency. Whilst it was not correct to state, as the deceased did, that she would receive the whole of Barry's estate, Jenny will receive a significant share thereof.
In the event that the Court is satisfied that the power to make an order is enlivened (i.e. in this case it is satisfied that the applicant is an eligible person, 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. This part of the process arises under ss 59(2) and 60(1)(b) of the Act. 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.
As the majority (Mason CJ, Deane and McHugh JJ) observed in Singer v Berghouse at 210, each of these "twin tasks" involves similar considerations, because, in each, the Court has to assess what is the "proper" level of maintenance and what is "adequate" provision.
Importantly, the question of the inadequacy of provision is to be assessed at the time when the Court is considering the application: s 59(1)(c) of the Act. This does not mean, however, that considerable weight should not be given to the assessment of a capable testator, who has given due consideration to the claims on her, or his, estate: Sgro v Thompson [2017] NSWCA 326 at [6] (Payne JA). The basis upon which the evaluative judgment is to be undertaken is unrestricted. There is no automatic entitlement to provision stipulated by the Act, and the deceased's Will applies unless a specific application is made, and acceded to, by the Court.
Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for the applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision made for the applicant in the Will of the deceased, on the one hand, and to the requirement for maintenance, education or advancement in life of the applicant on the other. No criteria are prescribed by 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.
"Provision" is not defined by the Act, but it was noted in Diver v Neal at [34] (Basten JA, Allsop P and Ipp JA agreeing), 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".
The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton in "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, 10, as reached upon "a purely economic and objective basis", whereas "proper" prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127 at 145 [72], 145-146 [77]; [2007] WASCA 235 at [72], [77] (Buss JA, Pullin JA agreeing), which seems to invite more subjective criteria.
In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, Dixon CJ (McTiernan J agreeing) at 19, pointed out that the words "adequate" and "proper" are always relative and that what the testator regarded as "superior claims or preferable dispositions" is a relevant consideration:
"The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning."
In Goodman v Windeyer (1980) 144 CLR 490 at 502 [18]; [1980] HCA 31 Gibbs J (as his Honour then was) (Stephen and Mason JJ agreeing) at [18], wrote:
"… the words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."
In Vigolo v Bostin at [114], Callinan and Heydon JJ wrote:
"… the use of the word 'proper' … implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all of the relevant surrounding circumstances and would entitle a court to have regard to a promise of the 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 used 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."
Santow J (as his Honour then was) pointed out in Gardiner v Gardiner (Supreme Court (NSW), 28 May 1998, unrep), that "adequate" and "proper" are independent concepts. He wrote, at 12:
"'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied." (citations omitted.)
In Palagiano v Mankarios [2011] NSWSC 61 at [72], White J (as his Honour then was) observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life "involve value judgments on which minds can legitimately differ", and "[t]here are no definite criteria by which the question can be answered".
White J, in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253 at 283-284 [123]; [2013] NSWSC 522, wrote, at [123]:
"The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case 'including the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty' (Singer v Berghouse … at 210)."
The word "maintenance", and the phrase "advancement in life", is not defined in the Act.
In Vigolo v Bostin, Callinan and Heydon JJ, at [115], commented:
"'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education."
In Alexander v Jansson (2010) 6 ASTLR 432 at 440 [18]; [2010] NSWCA 176, Brereton J (Basten JA and Handley AJA agreeing), wrote, at [18]:
"'Proper maintenance' is not limited to the bare sustenance of a claimant … but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility." (citations omitted)
In McCosker v McCosker at 575; [9], Dixon CJ and Williams J wrote:
"The presence of the words 'advancement in life' in the ... Act in addition to the words 'maintenance and education' is not unimportant ... 'Advancement' is a word of wide import."
In Bartlett v Coomber [2008] NSWCA 100 at [50], Mason P (Hodgson JA agreeing) wrote:
"The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker … at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams …)."
Whether the disposition of the deceased's estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the applicant will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant's "needs" that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573 at 575 (Kirby P, Hope JA agreeing). This statement is not intended to suggest that an applicant's "needs", when compared with the provision made for him, or her, out of the estate, should be the dominant consideration. The existence, or absence, of "needs" which an applicant cannot meet from her, or his, own resources, will always be highly relevant, and quite often decisive: Singer v Berghouse at 227 (Gaudron J, albeit in dissent in the result); Bkassini v Sarkis [2017] NSWSC 1487 at [296]-[297] (Robb J).
In Devereaux-Warnes v Hall (No 3), at 146 [81]-[84], Buss JA (as his Honour then was) wrote:
"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 (at 227) per Gaudron J.
'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 at 10-11 per Bryson J.
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 (at 575) per Kirby P
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 (at 227) per Gaudron J at 227. Compare Gorton (at 6-11) per Bryson J; Collicoat v McMillan [1999] 3 VR 803 at [38], [47] per Ormiston J."
However, as will be read, s 60 of the Act invites the Court to have regard to various matters, including, but not limited to, financial resources and financial needs: s 60(2)(d). If the Court does so, as will also be read, one of the purposes for which that is done is for determining "the nature of any [family provision] order": s 60(1)(b) of the Act.
No doubt, this has prompted White J to write, in 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 at [147], that "… the need a claimant must demonstrate is a need for 'proper' maintenance, education and advancement in life", but that does not mean that "… adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others …". Respectfully, I agree.
Of course, "need" is a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45] (Dodds-Streeton J). It is different from "want" and does not simply mean "demand" or "desire". The latent difference between the words was explained by Lord Neuberger (the former President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (M) v Slough Borough Council [2008] 1 WLR 1808 at 1825 [54]; [2008] UKHL 52 at [54]:
"'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'."
In Boettcher v Driscoll (2014) 119 SASR 523 at 530 [41]; [2014] SASC 86 at [41], David J added:
"'Need' is not so synonymous with 'want' such that the two are interchangeable."
However, no narrow view of what is encompassed by the concept of "need" is to be adopted. In Gorton v Parks (1989) 17 NSWLR 1 Bryson J (as his Honour then was), at 8, commented that "[i]t does not seem possible to give a complete or exhaustive statement of the concept".
Yet, as Basten JA wrote in Chan v Chan, at [22]:
"… it is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. The background to any consideration of the appellant's needs required determination of the size of the estate and the claims of others on the beneficence of the testator."
Callinan and Heydon JJ emphasised in Vigolo v Bostin at 231 [122], the question of the adequacy of the provision made by the deceased "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". The inquiry is not confined only to the material circumstances of the applicant. Adequacy is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined.
Sackville AJA (Macfarlan and Ward JJA agreeing) pointed out in Smith v Johnson (2015) 14 ASTLR 175 at 194 [84]; [2015] NSWCA 297, at [84], that:
"… the assessment of an applicant's needs is not a mechanical process. In Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, at [12], Allsop P observed that "[a]ccepted and acceptable community values permeate or underpin many, if not most, of the individual factors in s 60(2)". That observation applies to the concept of "financial needs" embodied in s 60(2)(d) of the Succession Act. The needs of a person depend on a range of factors that will vary from case to case. Some of those factors, such as the person's age and earning capacity, are specifically mentioned in s 60(2). Other factors, such as the person's financial or non-financial responsibilities to family members, or the standard of living which the deceased encouraged the person to enjoy, are not expressly identified in s 60(2) of the Succession Act."
If the Court is satisfied that, 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, it determines whether to make an order for provision and what provision ought to be made.
Section 60 of the Act 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 family 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 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,
(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 person,
(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.
It can be seen that s 60(2) enumerates 15 specific matters described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656 at 665 [37]; [2012] NSWCA 308 at [37], as a "multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the Court considers relevant", for the purpose of determining whether the applicant is an "eligible person", whether a family provision order should be made, and if so, the nature of any such order.
In Chapple v Wilcox (2014) 87 NSWLR 646 at 649 [7]; [2014] NSWCA 392 at [7], Basten JA wrote:
"Section 60 of the Succession Act spells out the matters which the court may have regard to in determining whether the claimant 'is an eligible person' and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the 'nature of any such order', which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b)."
The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed are, necessarily, of decisive significance, and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender. The sub-section makes clear, since other matters may be taken into account, that the jurisdiction is not exclusively needs-based. Ultimately, it is for the Court to determine what weight should be given to the relevant factors.
Furthermore, the sub-section also does not say how the matters listed are to be used to determine the matters identified in s 60(1) of the Act. Considering each of the relevant matters 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) of the Act, those matters are not identical.
A reference to some of the matters in s 60(2) of the Act not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1) of the Act.
Leaving aside the question of eligibility, the matters referred to in s 60(2) of the Act may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2) of the Act, attention is drawn to matters that may have existed at the deceased's death, or subsequently.
The Court should, and does, give considerable weight to the deceased's wishes in recognition of the better position in which he was placed. Of course, this is subject to the qualification that the Court's determination under ss 59(1)(c) and 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will: Slack v Rogan; Palffy v Rogan at [127] (White J).
In Vigolo v Bostin, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained:
"It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification."
In Goodsell v Wellington [2011] NSWSC 1232, at [108], I also noted that:
"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."
As was written by White JA (McColl and Payne JJA agreeing) in Sgro v Thompson at [86]:
"I adhere to the view I expressed in Slack v Rogan; Palffy v Rogan. To recognise that the court is not in as good a position as a capable testator to assess what maintenance or advancement in life is proper for an applicant having regard to all of a family's circumstances, including the relationships between the applicant and the deceased, and the merits and claims of other family members, is not to put a gloss on the statute. Rather, it is to acknowledge the superior position of the testator. The most important word in s 59(1)(c) is 'proper'. Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court's assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate."
This passage confirmed that the Act is to be applied according to its terms, and is not confined by notions of reluctance to interfere with freedom of testation. As was stated by Brereton JA (Simpson AJA agreeing) in Steinmetz v Shannon (2019) 99 NSWLR 687 at 708 [97]; [2019] NSWCA 114 at [97]:
"The statutory family provision jurisdiction is not to be exercised on the footing that it must be approached with great caution because of its intrusion on testamentary freedom. Rather, the statute is to be given full operation according to its terms, notwithstanding that it encroaches on testamentary freedom."
Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales, at 19, commented upon the consideration that was to be given to the deceased's wishes:
"The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning. The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court."
Of course, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, 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 (Supreme Court (NSW), Young J, 17 May 1996, unrep) at 30-31; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 at [269]-[274] (Ward J).
In all cases under the Act, what is adequate and proper provision is necessarily fact specific.
The size of the estate is a consideration in determining an application for provision. However, its size does not justify the Court re-writing the deceased's Will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190 at 202-203 [41]; [2007] SASC 327 at [41] (Debelle J, Nyland and Anderson JJ agreeing); Borebor v Keane (2013) 11 ASTLR 96 at 110 [67]; [2013] VSC 35 at [67] (Hargrave J).
However, none of the other beneficiaries named in the deceased's Will have to prove an entitlement to the provision made for her, or him, or justify, otherwise, such provision. Nor does each have to explain the decision by the deceased to make the provision that she did for each in the Will.
Section 65(1) of the Act requires a 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.
The Court's order may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the Court thinks fit": s 65(2) of the Act. If provision is made by payment of an amount of money, the 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.
Section 66 of the Act sets out the consequential and ancillary orders that may be made.
Unless the Court orders otherwise, any family provision order made under the Act takes effect, relevantly, as if it were a codicil to the Will: s 72(1)(a) of the Act. As was written by Brereton J (as his Honour then was) in Liprini v Liprini [2008] NSWSC 423 at [14], a family provision order is:
"… a unique [one] which in effect, is not really a judgment or order of the Court at all. It has effect not as a court order, but as a codicil to the Will; and is to be enforced not as a court order but as a codicil, by the remedies which a beneficiary has against a defaulting executor. Such an order does not bind the executor, who is a defendant to the Family Provision Act proceedings, as an order for payment of money or to do an act or thing, but only in an indirect manner insofar as it imposes a new obligation in the trusts of the Will, to be enforced as such."
A very similar statement of these principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [111], was cited with approval in Chapple v Wilcox at [21] (Basten JA); and was referred to, with no apparent disapproval (although in that appeal there was no challenge to the correctness of those principles), in Smith v Johnson at [62] (Sackville AJA).
But, as Brereton JA also wrote, in Steinmetz v Shannon, at [106]-[108]:
"As this Court pointed out in Burke v Burke, such observations are not rules of law, but guidelines that may give assistance and provide guidance that are not to be elevated to rules of law. That does not mean that they are without importance and significance, because, as Basten JA explained in Chapple v Wilcox:
'[19] … the real provenance of the 'principles' is that they constitute a reflection of community values, being a factual matter, but one as to which reasoned findings of judges with experience in these matters may well provide valuable guidance.'
Similarly, Barrett JA explained:
'[67] … [they] provide a useful touchstone that may be applied with circumspection by judges called upon to ascertain and apply 'the feeling and judgment of fair and reasonable members of the community' in cases of the present kind.'
Such guidelines also provide the additional benefit of affording a certain amount of consistency in decision-making, and indication of expectations and advice to litigants. Without such guidelines, decision-making and advising in this field becomes a morass of idiosyncratic decisions devoid of any consistency."
(In relation to Steinmetz v Shannon, I should mention that an application for special leave to appeal the Court of Appeal decision, made to the High Court, was dismissed upon the basis that "[t]he appeal proposed by the applicant would enjoy insufficient prospects of success to warrant the grant of special leave": Shannon v Steinmetz [2019] HCASL 332 at [1] (Gageler and Keane JJ).)
In addition, the formulation of principles, whilst not intended to "constitute a fetter upon the discretion not intended by the legislature", may assist in avoiding arbitrariness and capricious decision-making, and may serve the need for consistency that is an essential aspect of the exercise of judicial power under the Act: see, generally, the discussion of Mason CJ in Latoudis v Casey (1990) 170 CLR 534 at 541-542; [1990] HCA 59 and earlier comments made by his Honour and Deane J in Norbis v Norbis (1986) 161 CLR 513 at 519; [1986] HCA 17.
I do not attribute the deceased leaving Mackay to any encouragement given by Karen. Ms Patricia Sawyer, the deceased's sister in law, who was called as a witness in Karen's case, gave evidence that the deceased "just felt - she felt that Jenny had changed, that Jenny was not the, the friendly daughter that she thought she was and she was having a bit of trouble living in the house with Jenny and her family": Tcpt, 14 May 2020, p 124(21-23).
Jenny acknowledged, and the summary of telephone calls set out in pars 54 - 58 of her affidavit, sworn on 8 August 2019, confirmed that she had, on average, between one and three telephone calls, of various lengths, per month with the deceased. Jenny stated, at par 56(k):
"Even though we might sometimes get to talk to one another only every two or three weeks, we both knew each other's schedules. When we did talk, we would pick up from when we had last spoken."
Separately, Jenny stated at par 55(t), that:
"We always rang on all Birthdays - hers, mine and the grandchildren."
There was an exchange of photographs, mostly of Jenny's children, as well as letters and cards, birthday, and Christmas, gifts. Jenny stated at par 39 of her affidavit, sworn on 11 March 2019, that:
"Mum kept involved and abreast of what was happening with us in Mackay by telephone and by reference to photos which I printed and sent to her by post. Often, I would chat with mum about things that happened in the days prior to our call and then she would raise those same topics in later conversations, once she had received photos from me"
At par 43, of the same affidavit, she stated:
"After mum moved to Lismore, I had to time my calls around her commitments. I never called mum during Home and Away (which she never missed), did not call Saturday mornings (Seventh Day Adventist services), avoided Tuesday late morning to afternoon (lunch with Mary and pokies afterwards), avoided bible studies with Myrtle and avoided Tai Chi."
A birthday card sent by the deceased to Jenny in early 2017 annexed to Jenny's affidavit, sworn on 8 August 2019, and marked annexure "JAA.6", by way of example, reads :
"To Deary [sic] Jenny,
Lots + lots of love Mum x x x
Thanks so much to all of you for the support."
Jenny did see the deceased, shortly before she died, upon first learning of her illness, in February 2018 when she was in hospital in Brisbane. However, the evidence certainly reveals that Jenny only visited the deceased following her move to Lismore, in the five years that she lived there, only once, in January 2015, and even then, the visit was for only for 2 hours: Affidavit, Patricia Sawyer, 24 July 2019 at par 16.
Ms Sawyer was asked, in cross-examination, whether the deceased had ever told her that Jenny did not appear to have an interest in maintaining a relationship with her and she said that the deceased had done so, stating that the deceased "was disappointed that Jenny didn't talk to her more often or come and visit her more often, that she only ever talked to her a couple of times a year": Tcpt, 14 May 2020, p 123(22) - p 124(07).
Whilst I accept that there was not a complete estrangement between them, I am satisfied that the relationship between the deceased and Jenny was not as close as it had been. This is confirmed by the fact that the deceased did not tell Jenny of her diagnosis and medical condition.
However, as Sackville AJA cautioned in Foley v Ellis at [102]:
"Care should be taken, however, not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of the raw emotions experienced at the time."
Karen was also cross-examined about her own relationship with Jenny. However, in my view, this is really irrelevant to the questions that the Court must determine in these proceedings. There is no reason to suggest that any provision made for Jenny will bind her to Karen.
Gary is an electrician. Since November 2017, he has been employed as an Electrical Maintenance Supervisor at CS Energy's Power Station in Biloela, a rural town in Central Queensland and an approximately six hour drive from Mackay. His total taxable income for the financial year ending 30 June 2019 was $142,920.
At par 6 of her affidavit, sworn on 5 May 2020, Jenny estimated her, and Gary's, combined net weekly income to be $3,109, comprising Gary's earnings ($2,360) and rental income, less agent's fees, on their two investments properties ($749). Jenny estimated their joint average weekly expenditure to be $3,264.
Although the Bucasia property was untenanted for an unspecified period, as at the date of the swearing of her 5 May 2020 affidavit, Jenny states that a six month lease had "recently" been entered for $485 per week less agent's fees: par 5.
Despite being "concerned with [her] debt level", it is to be noted that there was no evidence that there had been any default under any of the mortgages referred to, even though their monthly mortgage repayments are approximately $6,586: par 27. Jenny stated, at par 28, that she and Gary had sought advice about refinancing, to which they "were told that the debt secured over our real properties was more than the estimated value." Upon consideration of the email received from their mortgage broker to which Jenny referred, and which was annexed to her affidavit sworn 8 August 2019 and marked "JAA.3", that advice appears to have been sought between October and November 2018. There is no evidence of any further enquiries being made subsequently. That might be explained, on one view, by the fact that in the same email dated 29 November 2018, the mortgage broker thought "it best to wait for the inheritance to come through … so you can reduce some of the exposure".
There are also a number of repairs and maintenance issues relating to failed air conditioners and the replacement of a swimming pool liner, currently underway and in respect of which Jenny, at par 22 of her affidavit sworn on 3 April 2020, stated $4,500 has been paid, and a balance of $5,100 is still outstanding. Other identified maintenance issues relate to the replacement of kitchen appliances and guttering, which Jenny estimates will amount to approximately $4,000.
There is really no explanation given as to why Jenny and Gary have not sold at least one of the investment properties to reduce their level of debt. It is likely that Gary is, or both are, receiving a tax benefit as a result of negative gearing. As was submitted by counsel for Karen, it is a lifestyle choice that Jenny, and Gary, have made and their position could be improved if they sold one, or both, of the investment properties: Tcpt, 14 May 2020, p 173 (43) - p 174(27).
It is also to be remembered that some, or all, of the debts are joint debts, albeit that each of Jenny, and Gary, may be jointly and severally liable.
Jenny also gave evidence that she had, albeit unsuccessfully, attempted to obtain Centrelink benefits as a carer for Barry. She maintained that she will continue to apply for a carer's allowance, which if granted, will yield approximately $130 each fortnight, and possibly "significant Healthcare or Pension card discounts": Jenny Ann Armitage, 3 April 2020 par 24. However, in the course of cross-examination, by counsel for Karen, she revealed (Tcpt, 13 May 2020, p 56(05-45)):
"Q. You say that you intend to apply for a carer's pension for Barry.
A. In the future, yes.
Q. You said in paragraph 24 of your affidavit in April 2020 you intended to apply for a carer's pension.
A. Yes.
Q. You said in paragraph 24 that it was around 130 per week a fortnight.
A. I don't know the exact amount but someone had told me it was around that amount.
Q. That's about $65 per week.
A. Yes.
Q. You haven't applied for that, have you, yet?
A. No, I haven't, given the virus and other people I thought were, had lost their jobs, were more needy, so I, I didn't as yet.
Q. But you say that you're in dire financial need and yet you haven't bothered applying for the carer's pension.
A. I attempted to. There was massive queues around our Centrelink office for quite a while and I tried to go online and it crashed quite a bit so I have attempted to.
Q. But Barry's been living with you since July 2019, hasn't he?
A. Yes, he has.
Q. The COVID crisis with Centrelink, that was only around April 2020, wasn't it?
A. Yes.
Q. So you could have applied between July 2019 and March 2020 for the carer's pension.
A. Yes.
Q. Yet you say that you're in dire financial need and yet you didn't make any attempt between July 2019 and March 2020 to seek the carer's pension.
A. ..(Not transcribable)..
Q. Beg your pardon?
A. No, I hadn't."
In respect of any financial burden incurred by Barry's presence as a member of their household, Jenny deposes that "[she does] not charge board or rent, for his transport or laundry or meal preparation or care generally". In her own assessment, however, she makes the qualification that "[f]inancially I have not gained or lost a result of dad living with me. He pays for his own foodstuffs and pays a contribution towards the household power bill": Jenny Ann Armitage, 3 April 2020 at par 14.
Other than discharging their liabilities, in respect of future needs, Jenny stated further, at par 25, "[we] are putting off the re-stumping work required at home. The home dishwasher needs to be replaced. The car needs a service".
It should not be forgotten that Jenny's financial resources include her expectancy interest, as the principal beneficiary named in Barry's Will.
During the course of the hearing, I referred to the benefits that Jenny is likely to receive from Barry's estate as a financial resource because it is accepted that Barry is unable to change his Will. Whilst doing so, I accept that it is not known when any entitlement will crystallise, or what the value of the part of his estate that passes to Jenny will be, bearing in mind how much of his assets will be absorbed by either his general, or care, expenses.
However, at the date of hearing, it seemed to be accepted that Jenny could receive between $200,000 and $300,000: Tcpt, 13 May 2020, p 88(30-32). The submission made by counsel for Jenny was that "it's an expectancy with some degree of uncertainty about it. It's not a financial resource which is going to do anything for the plaintiff's financial circumstances now …": Tcpt, 14 May 2020, p 162(44-50). Respectfully, for the reasons set out earlier, I disagree. I accept, however, that she does not have immediate access to Barry's assets to satisfy her personal debts.
Jenny's counsel, in his written submissions, put:
"a. The plaintiff does not require provision from the deceased's estate for a deposit on a home. She seeks provision from the deceased's estate to enable her to reduce the debt secured over her home, so that she can retain it; and
b. The plaintiff has fallen on hard times - the value of her property has fallen and the debt burden has increased. The plaintiff's evidence is that the debts which are immediately due and payable are estimated to total $120,000; and
c. The plaintiff has no buffer against contingencies, and no reserve to meet demands."
He continued:
"The plaintiff seeks $270,000 from the deceased's estate to permit the plaintiff to reduce her debts to a level which is more manageable, and so that she and Gary could then take steps to refinance the existing debts, and/or to sell one or both of their investment properties."
During oral submissions, counsel for Jenny submitted, at Tcpt, 14 May 2020, pp 167 (11-32); 169 (27-28):
"I submit the plaintiff being a person with immediate need that is not going to be met from her father's estate, there ought to be an awarded provision which allows her to meet her credit card debts and arrears of rates and the like, allows her to repay her personal loans and gives her a sum of money sufficient to allow her to get her affairs in order.
…
Not the whole joint debts, but to the extent that the plaintiff has an obligation for those debts, the plaintiff and her husband have their affairs organised in a particular way and at the moment, at least, it is not a situation which it is obvious they can get out of.
…
In my submission, an award of modest provision for the plaintiff would not unduly affect the entitlements of the defendant …"
Karen is 50 years of age. She was, from 2015 up until her resignation on 27 April 2020, employed as a Medical Administration Officer for the Division of Surgery and Perioperative Services at Queensland Children's Hospital (formerly known as the Lady Cilento Paediatrics Hospital) in South Brisbane. Her net annual income was, on average, $48,790. She has a Diploma of Biological Science from Swinburne University, completed in 2002, and a Bachelor of Applied Science (Medical Biotechnology) from the Royal Melbourne Institute of Technology, completed in 2004.
In an affidavit affirmed on 1 May 2020, Karen set out, as at that date, her sole assets and liabilities, as well as those she holds jointly with Robert (from whom she separated on 27 December 2019, but with whom she shares the home in which they live). Her financial resources may be summarised as follows:
1. She estimates that she has personal assets to the value of $23,028.
2. As at 26 April 2020, Karen has $184,847 in superannuation.
3. She has credit card liabilities which are estimated to be $9,474.
4. Her estimated monthly outgoings are $2,875.
5. She owns the following assets, jointly with Robert, being a home in Chermside West, a suburb in the City of Brisbane, with an estimated value of $623,000. It is encumbered by a mortgage debt of $506,745. They own a property in Olinda, a town in the Victorian Dandenong, with an estimated value of $815,000. It is encumbered by a mortgage debt of $636,000. The gross total of their joint assets is $1,438,000. Their estimated mortgage debt is $1,142,745. It follows, therefore, that the net difference is $295,255.
6. Karen estimated that she had annual expenses, jointly with Robert, in respect of their principal place of residence amounting to $56,386, half of which is $28,193. In respect of the Olinda property, she estimates her annual expenses, again jointly with Robert, to be $41,496. That property produces an estimated annual rental income, less agent's fees, of $29,810. (No doubt, they receive the benefit of some tax benefit from the negative gearing of this property.)
Karen conceded, in cross-examination, that if the properties were sold, and the net proceeds divided equally between her and Robert, that she would receive at least half that amount, possibly greater, because of her contribution to the purchase of the Olinda property, from the interim distribution received from the deceased's estate: Tcpt, 14 May 2020, p 141(22) - p 143(02).
Between the deceased's death, on 15 March 2018, and although two dates were stated in the evidence, either sometime in August 2018, or late February 2019, Karen took a period from work to grieve the loss of her mother and during which time she "tended to [her] executorial duties". She stated that after using all of her accrued leave entitlements, she was in receipt of a limited income during this period. Her net taxable income for the year ending 30 June 2018 was $36,475.
Presently, Karen is living off her savings. She estimates that she will require about $5,000 to relocate to the deceased's home in Lismore, and provision to cover her daily living expenses, including mortgage repayments, after which time she intends to find employment. The Lismore property requires significant repairs and renovations, which Karen estimated will cost between $80,000 and $100,000. She also stated that she requires dental crowns, which she estimated will cost $5,100. On what basis, Karen has calculated the amounts, is unclear, as no quotations were annexed to her affidavit. She was not cross-examined on these matters and, in any event, there is no reason not to accept her evidence in this regard. Although unquantified, Karen also states that she also needs an amount to cover the exigencies of life. I accept that to be the case. She will, after all, then be unsupported by any other person.
At par 26 of her affidavit, affirmed on 1 May 2020, Karen states:
"Robert has informed me that he is not prepared to provide evidence in these proceedings and he refuses to disclose his current financial circumstances …"
A letter to Karen's solicitors, dated 21 January 2020 and marked Ex D1 in these proceedings, explained in Robert's words, the reasons for his refusal:
"Due to a continued break down in Karen and my relationship and after a lot of thought I would like to withdraw my support for Karen and the estate of the [estate].
… the joint purchase of the house at … Olinda has continued to cause problems and controversy even though it is a joint title and joint mortgage property.
…
I have asked Karen to change the properties to tenants in common to which she refuses …
Karen insists the property is hers because she used money from her mother for the deposit, … the large mortgage was only possible because of my income and assets … I am [half] share on the title …
We have never had a normal financial relationship during our marriage as Karen says in her affidavit, we have kept our finances separate and only have joint accounts for specific houses.
I require all affidavits that have previously been written by myself and have been filed to be withdrawn from the courts, including any financial information.
I require all my financial information, health information and information in relation to my current position at Daltug be removed from Karen's affidavit currently filed with the court.
The … information … in relation to my current position at Daltug is my personal information and I do not give Karen permission to use this information for any financial gain in the defence of the claim against the estate of [the deceased] …
Karen has made it very clear on many occasions myself or any of my family will benefit from her mother's estate, she has also made it very clear she would not put any more money, other than approximately $6000.00 into the matrimonial home she lives in …
I am willing to complete an affidavit to the court to the effect of withdrawing my information and financial detail, this would include our current marital situation and the situation I see in the future.
I firmly believe I have no moral obligation to assist Karen with this matter any longer, this matter has been going on for 18 months and taken a huge toll on my health and wellbeing. It has also had a large impact on our relationship.
…"
Karen deposed in relation to Robert's assets, that he had acquired assets amounting to approximately $33,800 during their marriage. Prior to their marriage he had acquired a town house in Brisbane, presently tenanted for $485 per week, which she estimated to have a value of $439,000; a unit in Mackay, presently untenanted, which she estimated to have a value of $200,000; household furnishing of $6,500 and an undisclosed interest in a company that holds property in Otago, New Zealand. It follows that the total of the assets acquired by Robert, prior to his marriage to Karen, is $645,000. Karen estimates the combined mortgage liabilities to be $692,000 in respect of those properties.
Karen stated that "Robert accumulated his assets prior to our marriage in 2013. We have always kept our finances separate except for jointly owning our home and sharing most of the household expenses (Affidavit, Karen Francis Fraser, 1 May 2020 at par 29) and that "[she had not] sought full advice … about settlement" (Tcpt, 14 May 2020, p 142(50) - p 143(04)) she confirmed the following, when cross-examined, by counsel for Jenny (Tcpt, 14 May 2020, p 140(36-50)):
"Q. Have you made any assessment of what would happen in the event of a property settlement with Robert?
A. I've made enquiries, but nothing formal has been done.
Q. But have you considered or sought advice about the likely financial outcome to you?
A. It would only be the joint properties that we've worked on together.
Q. You accept that you would be entitled to seek a property settlement?
A. Well, yes, when you separate from your husband you are, yes.
Q. And you accept that if the Court were asked to determine that, the Court could take into account the other assets owned by Robert?
A. We have our own understanding that the assets that he had prior to our relationship are his assets.
Q. That's where the Court could take into account his other assets if there were a property settlement?
A. The Court could, but it's not our agreement."
Earlier, in the course of cross-examination, Karen was asked (Tcpt, 14 May 2020, p 146(45) - p 147(04)):
"Q. Is it correct that in a property settlement you intend to seek the whole of the Olinda property?
A. I haven't had advice on what to do with the settlement of our dissolved marriage though.
Q. Have you discussed that with Robert?
A. No.
Q. There was a--
A. We've argued. We have argued about it but not discussed it."
Whilst it is not necessary, to determine as part of these reasons, what Karen, may, ultimately, receive in any property adjustment proceedings between her and Robert, I take into account that she may receive some part of their matrimonial property.
I have, otherwise, not found it necessary to have regard to any information pertaining to Robert's health, or employment, save as to note that he is currently unemployed and as at the date of the hearing he resides under the same roof as Karen.
When determining whether adequate provision has been made for the proper maintenance, education or advancement in life of the applicant, what is "adequate" is assessed by reference to, inter alia, the size of the estate, the needs and claim of the applicant, the relationship of the applicant and the deceased, and the need and claim of other persons who have a legitimate claim upon the bounty of the deceased. I have dealt with all of these matters above and have considered them in reaching my conclusion that some additional provision should be made for Jenny.
Whilst I have borne in mind that Jenny's relationship with the deceased was not as close as the deceased's relationship with Karen, and that there may have been reasons for the deceased's disappointment in the irregularity of contact with her daughter, I also remember that Jenny and her family lived geographically distant from the deceased for a few years before the deceased's death, and also that Jenny had two minor children to look after.
As stated, the term estrangement does not describe the conduct but the nature of the relationship which results from the attitudes or conduct of one or both of the parties: Andrew v Andrew at [666] and [668]. In any event, whilst any estrangement is a relevant factor to consider, including the causes thereof, its existence is not determinative: Burke v Burke at [95] and [103]. In this case, I do not consider that the deceased and Jenny were estranged.
As I must, I also have regard to, and respect, the deliberate scheme of testamentary dispositions made by the deceased as a capable testatrix. As stated above, the deceased's decisions reflected in her Will should not merely have a prima facie effect, the real dispositive power being vested in the Court. However, not unnaturally, they are based on the sole perspective of the deceased.
Having read, and heard, the evidence, I am satisfied that the deceased's feelings of disappointment, should not be decisive in the conclusions that I reach. Some of what the deceased wrote is understandable from the deceased's perspective, but not entirely justifiable when one considers Jenny's personal circumstances to which I have referred. A wise and just parent will also recognise that disharmony between parent and child is almost inevitable and that in family relationships, hurts are inflicted, or suffered, sometimes consciously, and sometimes unconsciously. Regrettably, this is a part of family life.
Furthermore, the value of the estate, whilst modest, is sufficient to make modest provision for both of the persons to whom the deceased owed some form of testamentary obligation.
I have come to the view that Jenny has established that the deceased's Will does not make adequate provision for her proper maintenance, education, or advancement in life. 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. It is not to be forgotten that she is one of only two children of the deceased and as stated by Karen at the office of the deceased's solicitor, Jenny and the deceased had previously "shared a mother-daughter relationship".
Of course, one should not forget the competing claim of Karen. However, she has already received $276,066 and is entitled to the residue of the deceased's estate. Making some additional provision for Jenny will not unduly affect the financial resources and needs of Karen.
In my view, this is also a case where the community, knowing all the circumstances, would expect the deceased to have made some provision more than she did for Jenny. That conclusion does not alter when Jenny's financial resources and needs are taken into account.
I have also borne in mind the financial resources and needs of Jenny. In my view, whilst there is some merit in counsel's submission that she and Gary have made a lifestyle choice in regard to maintaining investment properties, which are subject to substantial mortgage debt, Jenny really does not have very much by way of her own property. In this regard, I have not forgotten what she might receive from the estate of her father, Barry, upon his death.
Taking into account all of the matters that I am required to consider, I am satisfied that Jenny has established that adequate provision for her maintenance and advancement in life has not been made by the Will of the deceased.
As Jenny has established the jurisdictional threshold, the next question is what provision ought to be made for her from the estate of the deceased. In this regard, the role of the Court is to make "adequate" provision in all the circumstances for her "proper" maintenance, education and advancement in life of an applicant: Meres v Meres [2017] NSWSC 285 at [114]; Gorton v Parks at 6. I also have considered the matters contained in s 60(2) of the Act which may be considered for the purpose of determining whether to make a family provision order.
This is a more difficult question and it involves "an instinctive synthesis that takes into account all the relevant factors and gives them due weight": Grey v Harrison [1997] 2 VR 359 at 367 (Callaway JA, with whom Tadgell and Charles JJA agreed). It is not a scientific, or arithmetic, exercise and it is often difficult to articulate the factors which contribute to that "instinctive synthesis". However, similar considerations as are set out above often arise.
Having regard to the size of the net distributable estate, the Court should not make an order in the amount sought by Jenny. It is simply not feasible for the Court to do so. To provide such a lump sum would exceed what, in my view, is "proper", in all the circumstances.
My evaluative judgment should be, and has been, "guided and assisted by considering what provision, in accordance with perceived prevailing community standards of what is right and appropriate, ought be made"; and is to be undertaken assuming full knowledge and appreciation of all the relevant circumstances of the case: Andrew v Andrew at 661 [16] (Allsop P).
I have not forgotten Karen's contributions to the deceased's estate and her legitimate claim upon the deceased's bounty. I have also not forgotten the need to give due regard to "what the testator regarded as superior claims or preferable dispositions" as identified in Pontifical Society for the Propagation of the Faith v Scales at 19 (Dixon CJ).
In my view, Jenny should receive, in lieu of the provision made for her in Clause 5 of the Will of the deceased, a lump sum of $135,000 out of the estate of the deceased. This amount will enable her to reduce, all of the immediate debts that she has, and, perhaps, provide a modest amount for her advancement in life. Depending upon her choice, it will not, necessarily, relieve, in part, the mortgage debts, but it does not seem to me that to do so is an obligation that the deceased had.
I am unable to determine the issue of costs. I shall allow the parties seven days to see if agreement can be reached on the question of costs, failing which written submissions on costs can be filed and served within fourteen days thereafter by the parties and the Court will then consider, and determine, that issue on the papers.
In the meantime, I shall make the following orders:
1. Orders, pursuant to s 59 of the Succession Act 2006 (NSW), that in lieu of the provision made for her in Clause 5 of the Will of the deceased the Plaintiff receive, by way of provision, a lump sum of $135,000, out of the estate of the deceased.
2. Orders that no interest is to be paid on the lump sum if it is paid within 28 days of the date of the making of these orders; and if not so paid, interest is to be paid on any unpaid part thereof, calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW), from the 29th day from the date of the making of these orders until the date of payment in full.
3. Orders that the burden of the provision be borne by Karen Francis Fraser (the Defendant), the sole residuary beneficiary named in Clause 9 of the Will of the deceased.
4. Orders that if the order for costs cannot be agreed within seven days, written submissions should be filed and served within fourteen days thereafter, and the issue of costs will be determined on the papers.
5. Orders that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rr 31.16A and 33.10) and Practice Note No SC Gen 18.