Baird v Harris

Supreme Court of NSW|2015-06-24|Before: Hallen J, Santow J, Mahoney JA

Other Facts

I am satisfied that the following facts have also been established.
When the proceedings were commenced, the Plaintiff's tutor was his mother. The home in which they lived was provided by Housing NSW and was situated in Shortland, a suburb of Newcastle, in New South Wales.
However, shortly after the commencement of the proceedings, the Plaintiff's mother suffered various mental problems, which resulted in her hospitalisation, and in instructions being difficult to obtain from her by the solicitors.
On 6 November 2014, following a notice of motion filed on behalf of the Plaintiff, the court ordered, pursuant to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") rule 7.18(1), and with the consent of the parties, that Brenda Catherine Seabrook, the tutor of the Plaintiff, be removed as his tutor, and that Barry Terzic, be appointed as the tutor of the Plaintiff in her place.
Mr Terzic, who is the Plaintiff's uncle, consented to being appointed and since that time, has sworn a number of affidavits that were read in the proceedings. Since his appointment, it is clear that he has acted in the best interests of the Plaintiff, in all respects. He is to be commended for the role he has played in the Plaintiff's life, and in these proceedings, especially since the death of the Plaintiff's mother.
On 27 May 2015, the Plaintiff's mother committed suicide. Sadly, it was the Plaintiff who found her in the home, in which they had lived together. Since that time, the Plaintiff has not returned to that home, but has lived with relatives in Sydney. (It is not likely that he will be able to return to that home as it comprises three bedrooms and Housing NSW is unlikely to regard it as suitable or appropriate for the Plaintiff. I shall return to this topic later in these reasons.)
It is not anticipated that the Plaintiff will receive any inheritance from his mother's estate, as she died with no assets of any value. In an affidavit that she swore on 11 June 2014, she disclosed that she had cash in bank ($1,334), a car ($2,000) and household furniture and personal effects ($1,000). She disclosed a credit card debt of $510. The affidavit, which was read, over objection by counsel for the Defendant, also stated that the cost of "a duplex" in the Shortland area was about $300,000.
The Defendant was born in May 1951 and is aged 64 years. She met the deceased in October 2006. She and the deceased were engaged to be married on 1 December 2007, but they did not, in fact, marry at any time. The deceased described her as "my friend" in his Will. She says that they "became a couple". They would spend most of the week together, but that she would go to her home for a day or two each week, until the deceased required constant care, which she provided.
At the date of the deceased's death, and from 2009, the Defendant was living in a Department of Housing home. However, she spent a significant amount of time with the deceased at the Mirrabooka property. At that time, she had no other accommodation needs. She had modest savings of her own. It appears that she moved into the Mirrabooka property, on a full time basis, only after the death of the deceased, and at a time when she did not know whether any claim on his estate would be made by any eligible person.
She says that the repairs and renovations to the Mirrabooka property included installing a new kitchen; repairing leaking pipes; replacing the floorboards and laying linoleum in the kitchen; installing a new vanity, new toilet and new shower screen in the bathroom; painting the whole of the house; repairing the wiring in the house and replacing light fittings; and replacing old curtains with new ones.
There is annexed to one of the Defendant's affidavits, a copy of an affidavit under the signature of the deceased, which is in the following terms: "1. I make this my affidavit to record my reasons behind the terms of the bequests that I have made in my will of today's date. 2. I am presently in a relationship with my friend Christine Harris. We have had a strong and deep relationship for about seven years. By the provision that I have made for her in my will, I wish to recognise my obligations that I have towards her. 3. In regard to my daughter Ashley, I have made lesser provision for her by virtue of the fact that she has chosen to estrange herself from me. I have made many attempts to establish a relationship but she shows little interest. This causes me hurt. 4. My understanding is that my daughter is buying a house with her partner. They are both in employment. 5. In the event that the terms of my will are ever challenged I would respectfully ask the Court to honour my wishes and not to disturb the terms of the will."
Interestingly, as will be appreciated, there is no reference to the Plaintiff in the affidavit sworn by the deceased.
Although the deceased's signature appears to have been witnessed by a solicitor, the solicitor has not provided any evidence about the circumstances surrounding the making of the affidavit by the deceased. However, there was no submission made by counsel for the Plaintiff that the contents of the affidavit did not reflect, accurately, the relationship between the deceased and the Defendant.
The only witness who was cross-examined was Ms D M Scott, the General Manager of the Delando Corporation, a supported employment service for people with disabilities.
In July 2014, Delando was contacted by someone at the Plaintiff's school, with a request for assistance. Thereafter, a representative of Delando assisted the Plaintiff in making an application for funding under the National Disability Insurance Scheme ("NDIS") as well as an application for a pension.
Between October 2014 and February 2015, the Plaintiff received initial NDIS funding, under which a Delando support worker attended the Plaintiff's home for 3 hours a day, 3 days a week. The support provided, focused on the individual needs and choices of the Plaintiff based on his individual needs assessments, assisted him with planning activities and helped with basic activities of daily living, social activities and co-ordination.
From February 2015, the support worker attended 2 days per week, for 3 hours per day, and continues to support the Plaintiff in learning life skills to live independently. In view of the death of the Plaintiff's mother, Ms Scott believed that it would now be necessary to go back for review of the Plaintiff's individual support package and that it was likely he would soon receive daily support for 2 hours per day. She was unable to say whether the support would be for 5 days, or 7 days, a week. She believed that he would be entitled to receive a disability pension (T8.45), and NDIS support (T17.48), for the remainder of his life.
Ms Scott, gave evidence that, in this way, it is hoped that the Plaintiff will become as independent as possible, will develop skills for day-to-day living and be able to participate in the community. As Ms Scott put it at T18.00-T18.10: "Q. Now, I take it that what he has from that is a support worker? A. He has a package of support in different areas of his life. Q. Right, what are they? A. So he has support to help him with basic domestic activities like cooking, cleaning, he has support in the area of being social, so getting him out and being social with other people, he has supported employment in the package and coordination of supports, which is someone that helps him organise all the things in his life that need to be organised, so the funding is for staff to support Jack in those areas."
In relation to the Plaintiff's accommodation, Ms Scott wrote: "… 20. Prior to Brenda's death I made inquiries with Housing NSW to have Jack added to the lease of the Shortland property he shared with Brenda. I was told that Jack could not be put on the lease and that he had to make a separate application for his own property which I was in the process of doing before Brenda died. I was told by Housing NSW at the time that the waiting list was at least 4 years. 21. Since Brenda died, I have been arranging for an application to be made on Jack's behalf to Housing NSW for Jack to be approved as the lessor of the Shortland property or another more suitable property. At the time of her death, Brenda was the sole lessor of the Shortland property. That property is a 3 bedroom townhouse at Shortland. The application requires evidence from Dr Laut as to Jack's disabilities so that his application can be assessed. Dr Laut will complete the form at the appointment on the 11th June 2015. In addition, I am required to provide a letter of support from Delando setting out jack's ongoing support needs. I do not know how long Housing NSW take to assess the application nor do I know the likely outcome of the application. 22. I understand that prior to Jack starting work in January 2015 Brenda's rent was approximately $260 a fortnight. I understand that after Jack started receiving the disability support pension the rent increased but I do not know by how much. The rent would have increased again after Jack started working. Prior to Brenda's death Jack had said to me words to the effect, 'I give Mum money for the rent and bills when she asks for it.' I know that Jack has not had an experience with budgeting money to pay bills and Jack has asked me for help in reading information and numbers on bills. I have alerted the National Disability Insurance Agency (NDIA) that Jack will need extra funding to learn budgeting. From my observations with Jack and his lack of understanding of dealing with money I will ask for the funding to be ongoing. I intend to ask for a review of Jack's funding when he returns from Sydney mid June 2015. 23. The NDIS is a new scheme and the scheme assesses each client's needs individually so I do not know at this stage whether Jack will receive extra funding."
In her oral evidence, Ms Scott confirmed that an application had, in fact been submitted, recently, to Housing NSW, on the Plaintiff's behalf. She thought that it might take up to 6 weeks to assess the application although she could not be certain. In answers to questions from the Bench, Ms Scott said that she believed that the Plaintiff would obtain, from Housing NSW, some form of rental accommodation in the form of a one bedroom, or two bedroom, flat, but could not say when such accommodation would become available. All she could say was that it may be offered "at some stage", perhaps within the next 4 years.
(Somewhat faintly, the Defendant suggested that the matter should await the determination of the Plaintiff's application for housing. However, this was not pressed with any conviction and when raised, it was opposed by the Plaintiff as creating additional costs, uncertainty and delay.)
The Defendant tendered a Fact Sheet dated July 2014 from the NSW Government Family & Community Services (Ex. 1) which was said to identify alternatives in relation to seeking the transfer of a public housing tenancy from one eligible member to another member of the same household. To achieve such a transfer, the Plaintiff would have to be assessed by Housing NSW to meet priority housing criteria. Subject to some exceptions, he would need to demonstrate that he was eligible for social housing and be an approved additional occupant of the property with a satisfactory history of occupation for at least two years. If recognised as a tenant, the Plaintiff could be offered a tenancy with a two-year, five-year, ten-year, or continuous lease. He may be required to relocate to a property that better matches his housing needs. One example given is "if the property you are in is too large for your needs".
(In my view, this document does not assist the Defendant's case. There was no explanatory evidence in relation to the printout, although some questions were asked of Ms Scott in relation thereto. In my view, the document is no more than a guide, published for the benefit of an applicant seeking the transfer of a public housing tenancy from one eligible member to another member of the same household. It does not set out the approach of Housing NSW in determining such an application.)
Ms Scott's evidence satisfies me that there is uncertainty concerning if, and when, accommodation might be provided to the Plaintiff by Housing NSW, although she seemed optimistic that some form of accommodation would be provided.

The Statutory Scheme - The Act

Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although on many occasions, I have collected the principles generally applicable, in view of the importance of this case to the parties, I shall repeat the principles. It is equally important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in the application.
The wording of the Act is similar to the wording of the former Act. However, it is necessary to remember the warning of Kirby P in Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100, at 76,304: "Purposive construction of the Act There is always a danger where a reformed Act borrows heavily upon ideas which previously existed in the common law or in an earlier statute, that lawyers will approach the construction of the Act affected by the previous law: Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 2 NSWLR 475, 478. That danger is but an illustration, in the specialised activity of law, of a universal phenomenon of psychology long established in relation to human perception generally. We tend to perceive what we expect. We expect that with which we are familiar. There is a particular danger in the case of the Family Provision Act in construing its terms by reference to the law which developed around the Testators' Family Maintenance and Guardianship of Infants Act 1916. That Act was passed in earlier times to govern the entitlements of a testator's family, as narrowly defined. The definition by s 3(1) of that Act confined applications to those made by 'the widow, husband or children of such persons'. There was no mention in it of former spouses. Doubtless this was because, for the early part of this century, divorce was relatively infrequent and then based upon concepts of matrimonial fault which would make interference in the testamentary disposition of the deceased unlikely. When enacted, the statute was a radical interference in the power of testamentary disposition. That was a significant power over private property, the disturbance of which was regarded as highly exceptional."
The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008 (NSW). A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers, upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, Will. It is only if the statutory conditions are satisfied that the court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate (or the disposition on intestacy), to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary. Thus, the Act subjects freedom of testamentary disposition to discretionary curial intervention in certain classes of case.
The key provision is s 59 of the Act. The court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made.
Relevantly, in this case, the Plaintiff relies upon the category of eligibility referred to in s 57(1)(c) of the Act. There is no dispute that he is a child of the deceased.
The language of the relevant sub-section is expressive of the person's status, as well as his, or her, relationship to the deceased. There is no age limit placed on an eligible person making an application.
It is only if eligibility is found, that the court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made, relevantly, by the Will of the deceased (the operation of the intestacy rules being irrelevant in this case in relation to the deceased's estate) (s 59(1)(c)). It is this mandatory legislative imperative that drives the ultimate result and, it is only if the court is satisfied of the inadequacy of provision that consideration is given to whether to make a family provision order (s 59(2)). Only then may "the Court … make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made".
Relevantly, other than by reference to the provision made by the Will in relation to the estate of the deceased, s 59(1)(c) leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for an 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 actually made by the Will, 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 in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant.
Importantly, in s 59(1)(c) of the Act, there no longer appears to be any sanction to consider the provision made by the deceased during his, or her, lifetime for the applicant (see s 9(2) of the former Act).
In Grey v Harrison [1997] 2 VR 359, at 366-367, Callaway JA observed: "There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."
Basten JA, in Foley v Ellis [2008] NSWCA 288, at [3], commented that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J has described it as "an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific": Szypica v O'Beirne [2013] NSWSC 297, at [40].
Under s 59(1)(c), the time at which the court gives its consideration to the question of inadequacy of provision is the time when the court is considering the application.
"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89, at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".
Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act.
In J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths), at 542, the learned authors comment upon the difference between the concepts of maintenance and advancement: "The essential difference between 'maintenance' and 'advancement' is that 'maintenance' denotes a periodical payment or a payment which could validly be made periodically, whereas 'advancement' denotes a definite unique outlay for a specific purpose. Recipients of maintenance must, practically speaking, be infants, but adults may be recipients of an advancement. An advancement can never be made of a sum of money which the person to whom it is made can immediately pocket, but it must be made with a view to the establishment of that person in a business or profession, or otherwise in some definite way for that person's benefit, the whole essence of an advancement being the immediate payment of a tolerably large sum for an immediate benefit to one beneficiary."
In Re Dennis (Deceased) [1981] 2 All ER 140, Browne-Wilkinson J, at 145-146, wrote: "The court has, up until now, declined to define the exact meaning of the word 'maintenance' and I am certainly not going to depart from that approach. But in my judgment the word 'maintenance' connotes only payments which, directly or indirectly, enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him. The provision that is to be made is to meet recurring expenses, being expenses of living of an income nature. This does not mean that the provision need be by way of income payments. The provision can be by way of lump sum, for example, to buy a house in which the applicant can be housed, thereby relieving him pro tanto of income expenditure. Nor am I suggesting that there may not be cases in which payment of existing debts may not be appropriate as a maintenance payment; for example, to pay the debts of an applicant in order to enable him to continue to carry on a profit-making business or profession may well be for his maintenance."
In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77, King CJ said: "The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an early period of life in the members of the family: Blore v Lang, per Dixon CJ at p. 128." [Footnotes omitted]
In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Murphy J wrote, at 505: "Provision for advancement may, for example, extend to retraining or the gaining of a qualification which could advance and perhaps enable an applicant to maintain himself or herself."
In Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, at 541, discussed the financial assistance which an applicant may need for his, or her, maintenance and advancement in life, in the following terms: "If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of the financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that… [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need."
In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J, at [114], noted: "In the context of the Act the expression 'advancement in life' is not confined to an advancement of an applicant in his or her younger years. It is [a] phrase of wide import (McCosker v McCosker (1957) 97 CLR 566 at 575). The phrase 'advancement in life' has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the 'maintenance and support' of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support."
In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "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 (1957) 97 CLR 566 at 575; Stiles v Joseph (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)."
In McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566, Dixon CJ and Williams J stated, at 575: "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."
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 Australian Journal of Legal History 5, at 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] WASCA 235; (2007) 35 WAR 127, per Buss JA, at [72] and [77], which seems to invite more subjective criteria.
These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 476: "The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."
Their Lordships went on to state (at 478): "The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the Court were concerned merely with adequacy. But the Court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration."
Dixon CJ and Williams J, in McCosker v McCosker, at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that: "It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."
In Goodman v Windeyer, Gibbs J wrote, at 502: "[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."
In Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, at [114], Callinan and Heydon JJ said: "[T]he use of the word 'proper'… implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here… The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what 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 pointed out in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 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…"
In Palagiano v Mankarios [2011] NSWSC 61, at [72], White J 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 there are no definite criteria by which the question can be answered.
His Honour added, in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253, 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 (1994) 181 CLR 201 at 210."
Until recently, it was unanimously thought that there are two stages of the determination. The first stage, provided for by s 59(1)(c), has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. The court does this by determining whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, for the applicant. If it is not so satisfied, then 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 or potential beneficiaries: see McCosker v McCosker, at 571-572; Singer v Berghouse, at 209-210; Vigolo v Bostin, at [16], [75], [112]; Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, at [70]; Verzar v Verzar [2014] NSWCA 45, at [39].
Whether an applicant has a "need" or "needs" is also a relevant factor at the first stage of the enquiry: see s 60(2)(d) of the Act. It is an elusive and an elastic concept to define, yet, it is an element in determining whether "adequate" provision has been made for the "proper" maintenance, education and advancement in life of the applicant in all of the circumstances. The concept involves economic considerations.
In Collins v McGain [2003] NSWCA 190, Tobias JA, with whom Beazley and Hodgson JJA agreed, said: "42. Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies. ... 47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is 'proper maintenance etc' of the eligible person. It is because of that context that, in the present case, the 'proper maintenance etc' of the appellant required consideration of a need to guard against the contingency to which I have referred."
In Devereaux-Warnes v Hall (No 3), at [81]-[84], Buss JA said, in respect of the first stage of the process: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227. 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10 - 11. The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575. Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803, per Ormiston J at 816 [38], 820 [47]."
"Need", of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]. It is different from "want" and does not simply mean "demand" or "desire". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808, 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] SASC 86; (2014) 119 SASR 523, David J, at [41], added: "'Need' is not so synonymous with 'want' such that the two are interchangeable."
As Callinan and Heydon JJ emphasised in Vigolo v Bostin, at [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. The whole of the context must be examined.
Yet, in referring to the concept of "need", it should also be noted that the statutory formula makes no reference to "need", but rather to "adequate provision for the proper maintenance, education or advancement in life". 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. Consideration of "needs" must be in the context of the statutory formulation.
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 Plaintiff is an eligible person, and that adequate provision for his proper maintenance, education or advancement in life 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.
The second stage of the process arises under s 59(2) and s 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.
I have dealt with the question that has been raised in other cases whether the two-stage approach identified in Singer v Berghouse continues to apply to the provisions of the Act, the most recent of which is Aubrey v Kain [2014] NSWSC 15. I remain of the view that the two-stage approach should continue to apply. I shall not repeat what I have said, which is not affected by the recent decisions of the Court of Appeal in Phillips v James [2014] NSWCA 4; (2014) 85 NSWLR 619, Verzar v Verzar [2014], or Salmon v Osmond [2015] NSWCA 42.
(Since I delivered my reasons in Aubrey v Kain, Robb J has also considered the topic in Gardiner v Gardiner [2014] NSWSC 435. I respectfully adopt his Honour's reasoning, set out at [117]-[120], and [124], as to the persuasiveness of the reasoning of Barrett JA in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656. I also refer to what Bergin CJ in Eq has written in In the Estate of the late Anthony Marras [2014] NSWSC 915, at [15].)
(In Poletti v Jones [2015] NSWCA 107, Basten JA, at [19], stated that what had been stated by him in Andrew v Andrew "was not to say that there might not be circumstances in which such an approach was the preferable way to proceed. My only point was that the legislation no longer dictated such an approach in circumstances where a rigid demarcation of issues along those lines would be artificial, a point made by Callinan and Heydon JJ in Vigolo v Bostin… a case under different legislation".)
Ultimately, as Allsop P said in Andrew v Andrew, at [6], it "may be an analytical question of little consequence" since the questions remain the same, namely, whether the court can make an order for provision (whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made) and, if so, whether it should (whether to make an order and, if so, the terms of that order). Accordingly, even if there remains some uncertainty as to whether the Act requires a two-stage approach, "it is settled that the determination under the legislation on either approach, involves an evaluative judgment": Salmon v Osmond, per Beazley P (with whom McColl and Gleeson JJA agreed), at [54].
Section 60 of the Act, at least in part, is new. It provides: "(1)The court may have regard to the matters set out in subsection (2) For the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the 'applicant') is an eligible person, and (b) whether to make a 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, at [37], as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380, at [121] and [123], as "a valuable prompt" to which the court may have regard, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order.
White J wrote in Slack v Rogan; Palffy v Rogan, at [121], that s 60 "lists a wide range of matters" that the court "may have regard to", but these do not provide any tangible assistance in answering the question in any particular case whether the provision made in a will was less than adequate for an eligible applicant's "proper" maintenance, education or advancement in life.
In West v Mann [2013] NSWSC 1852, Kunc J, at [12], wrote: "(10) Section 60(2) provides a helpful checklist but it is no more than that. The Court is not obliged to take those matters into account. The extent to which it does (if at all) will depend upon the facts of each particular case. (11) Section 60(2)(p) confirms the breadth of matters the Court can take into account. Once enlivened, the Discretion is expressly fettered only by the requirement in s 59(2) that if an order is made, it must be such order 'as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made'".
Beazley P, in Phillips v James, at [51], described s 60(2) as involving: "[A] statutory iteration of matters that had always been considered relevant in the determination of claims for provision by persons claiming an entitlement under a testator's will. However, as Basten JA observed in Andrew v Andrew, the factors identified in s 60(2) provide a more focused direction to the Court as to relevant matters to which regard may be had. His Honour was of the view that the statutory list invites consideration of a broader range of factors than was previously the case. Whether or not that is so, the important matter is that the court is required to have regard to the circumstances, including those specified in s 60(2), that it considers relevant in determining whether to make an order for family provision and the nature of any such order."
In Chapple v Wilcox [2014] NSWCA 392, Basten JA, at [7], 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 such 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 is, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.
The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). 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), those matters are not identical.
A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and 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).
Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently.
Section 65(1) of the Act requires the family provision order to specify: (a) the person or persons for whom provision is to be made, and (b) the amount and nature of the provision, and (c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and (d) any conditions, restrictions or limitations imposed by the Court.
The order for provision 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 the 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).
Any family provision order under the Act takes effect, unless the court otherwise orders, in the case if the deceased made a will, in a codicil to the will (s 72(1) of the Act).
Section 66 of the Act sets out the consequential and ancillary orders that may be made.
Section 99(1) of the Act provides that the court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the court thinks fit.
Practice Note SC Eq 7, which applies to claims for a family provision order, provides, in Clause 24, that "[o]rders may be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the value of the estate is less than $500,000". (Of course, this is only one basis upon which costs may be capped. See, for example, s 98 of the Civil Procedure Act. Also, see Baychek v Baychek [2010] NSWSC 987; Dion Giuseppi Sergi by next friend Aileen Solowiej v Sergi [2012] WASC 18, per E M Heenan J, at [50]-[52].

Notional Estate

The notional estate provisions of the Act are dealt with in Part 3.3 of the Act. However, in s 3 of the Act, "notional estate" of a deceased person is defined as meaning "property designated by a notional estate order as notional estate of the deceased person". "Notional estate order" means "an order made by the Court under Chapter 3 designating property specified in the order as notional estate of a deceased person".
It has been said, in respect of the notional estate provisions in the former Act that an applicant for provision "may now apply in the same proceedings for orders for relief and designating property as 'notional estate' thereby compelling the 'disponee' of a 'prescribed transaction' to provide money or property for the purpose of making financial provision for the applicant": Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422, at 441. The same principle applies in respect of a person to whom property has been distributed.
Section 63(3) of the Act provides that a family provision order may not be made in relation to property of the estate that has been distributed by the legal representative of the estate in compliance with the requirements of s 93, except as provided by subsection (5).
Section 63(5) provides that a family provision order may be made in relation to property that is not part of the estate of a deceased person, or that has been distributed, if it is designated as notional estate of the deceased person by an order under Part 3.3 of the Act.
Importantly, the power to make a notional estate order does not arise unless the Court 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).
Furthermore, the Court must not designate as notional estate, property that exceeds what is necessary, in the Court's opinion, to allow the provision that should be made, or, if the Court makes an order that costs be paid from the notional estate under s 99, to allow costs to be paid as ordered, or both (s 89(2)).
Section 79 of the Act, relevantly, deals with the designation of property where the estate of the deceased has been distributed. The section provides: "The Court may, on application by an applicant for a family provision order or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person if the Court is satisfied that on, or as a result of, a distribution of the deceased person's estate, property (whether or not the subject of the distribution) became held by a person (whether or not as trustee) or subject to a trust."
The effect of a notional estate order is that a person's rights are extinguished to the extent that they are affected by a notional estate order (s 84).
Because it was accepted that a notional estate order was necessary if the Plaintiff received additional provision out of the estate by way of family provision order, it is unnecessary to refer to the other sections of the Act which go to the restrictions and protections relating to notional estate order.
I shall leave it to the parties to frame the appropriate form of orders.

Other Applicable Legal Principles - Substantive Application

Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges and I have repeated them in many cases under the Act.
Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve "an overall fair" disposition of the deceased's estate. It is not part of the court's function to achieve some kind of equity between the various claimants. As Pembroke J has recently repeated in Sung v Malaxos [2015] NSWSC 186, at [5]: "Fairness and equality are not touchstones for relief under the Succession Act."
The court's role is not to reward an applicant. Nor is the purpose of the jurisdiction conferred by the Act to correct the hurt feelings, or sense of wrong, felt by an applicant. Rather, the court's role is of a specific type and goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance, education and advancement in life of an applicant.
The court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation. "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": Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90, at [63].
Of that freedom, in Grey v Harrison, at 366, Callaway JA said: "[I]t is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent."
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, I noted, at [108], 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 Pembroke J said in Wilcox v Wilcox [2012] NSWSC 1138, at [23]: "The court does not simply ride roughshod over the testator's intentions… The court's power to make an award is limited. The purpose of the discretionary power under Section 59(1) is to redress circumstances where 'adequate provision' has not been made for the 'proper maintenance, education or advancement in life' of the claimant. The adjectives 'adequate' and 'proper' are words of circumspection."
In Brand v Brand [2015] NSWSC 52, Pembroke J, at [21]-[23], referred to Goodsell v Wellington, repeated what he had said, to similar effect, in Madden-Smith v Madden (estate of the late Doris Linda Madden) [2012] NSWSC 146, at [30]-[34], and referred to the passage in Wilcox v Wilcox quoted above. See also Salmon v Osmond, per Beazley P, at [69]-[77]. Thus, mere judicial opinion should not be substituted for that of the deceased as the preferred way of distributing his, or her, estate.
Yet, 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); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.
As Allsop P said in Andrew v Andrew, at [16]: "If I may respectfully paraphrase Sheller JA [in Permanent Trustee Co Limited v Fraser (1995) 36 NSWLR 24 at 46F-47B], the Court in assessing the matter at s 59(1) and the order that should be made under s 59(1) and (2), should be guided and assisted by considering what provision, in accordance with perceived prevailing community standards of what is right and appropriate, ought to be made. This, Sheller JA said… involved speaking for the feeling and judgment of fair and reasonable members of the community. It is to be emphasised that s 59(1)(c) and s 59(2) refer to the time when the Court is considering [an application for a family provision order] and the facts then known to the Court. The evaluative assessment is to be undertaken assuming full knowledge and appreciation of all the circumstances of the case. This… makes the notion of compliance by the testator with a moral duty (on what he or she knew) apt to distract from the statutory task of the Court."
Barrett JA, at [95], wrote: "Because, in this case, Lynne, as plaintiff, failed at the first stage (by reason of a finding that the testatrix, in giving a legacy of $10,000, did not fail to make adequate provision for her), it is appropriate to say something more about the judicial function at that first stage. It has been recognised by this Court that 'community expectations' play a role in the decision whether provision made by a testator is adequate in the relevant sense. Reference may be made to Hertzberg v Hertzberg [2003] NSWCA 311 at [34], McCarthy v McCarthy [2010] NSWCA 103 at [20] and Evans v Levy [2011] NSWCA 125 at [51]. In the McCarthy case, Young JA said (with the concurrence of Tobias and Macfarlan JJA): So long as he complies with community expectations and what is sometimes called 'moral duty', the deceased is able to leave his property as he wishes."
In Chapple v Wilcox, Basten JA, at [12], and by Barrett JA, at [63]-[64], emphasised the central role played by "community standards" or "community expectations" in any decision whether to take the significant step of overriding the expressed wishes of the deceased.
How the community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew, at [36] (Basten JA). His Honour added, in Phillips v James, at [113]: "As discussed by Allsop P in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 at [16], one can say little more as to the standards and values to be applied than that the court should be guided by its perception of 'prevailing community standards of what is right and appropriate'. Views will undoubtedly vary within the community as to the weight to be given to a testator's wishes as expressed in the will: Andrew v Andrew at [35]."
Thus, "there are difficulties for the Courts in making their own unaided assessment of current community attitudes in a complex and changing social environment": Williams v Aucutt [2000] 2 NZLR 479, at [44]. As was said by White J in Slack v Rogan; Palffy v Rogan, at [125]: "I know of no way of determining what the community would expect, or what its standards are, or values would be. I do not know, but suspect, that the expectations of individual members of the community would vary widely. It may be that the Act itself, at least insofar as it goes beyond allowing provision to be made in favour of spouses and minors or disabled children, runs counter to community expectations about freedom of testamentary disposition. As Basten JA said in Andrew v Andrew, the only guiding light, consistent with the rule of law, for the identification of community standards are those reflected in current legislation. No legislation other than the Succession Act itself is relevant to the present case. Attempts to identify particular community standards, for example, that a testator need not make provision for an able-bodied son, or that a widow's claim is paramount, have been rejected. To say that the court itself is the spokesman for the fair and reasonable man or woman in the community is to acknowledge that in truth there is no ascertainable external community standard to guide the decision."
In all cases under the Act, what is adequate and proper provision is necessarily fact specific.
The Act is not a "Destitute Persons Act" and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice; Allardice v Allardice (1910) 29 NZLR 959, at 966. The use of the word "proper" requires consideration to be given to more than satisfying the basic needs of an applicant (cf Chandler v Coulson [2015] NSWSC 172, per Pembroke J, at [26]).
The standard of living of an applicant during the lifetime of the deceased is relevant, but the fact that he, or she, has lived frugally, or that he, or she, has become accustomed to a life of relative penury, does not mean that the deceased's obligation under the Act is satisfied so long as the applicant can continue in that state: Pogorelic v Banovich [2007] WASC 45, [62]; Butcher v Craig [2009] WASC 164.
Nor is it the purpose of the Act to punish, or redress, past bad, or unfeeling, parental behaviour, where that behaviour does not still impinge on the applicant's present financial situation. In other words, a claim under the Act does not encompass compensation, or reparations, to an applicant for the deceased as his, or her, parent, having failed in the legal, or moral, duty to be a good and responsible parent of the child: Re Bull [2006] VSC 113; Cameron v Cameron [2009] SASC 27, at [41].
All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singer v Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12, at [56]. Nor does it follow that if the court decides it is inappropriate to make a specific provision in respect of one identified head of claim that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams, at [89].
What was said in Edgar v Public Trustee for the Northern Territory [2011] NTSC 5, per Kelly J, at [46], should be remembered: "There is no onus on the... residuary beneficiary under the will to show that she is entitled to be treated as such - or to prove what may be necessary for her proper maintenance and support. Rather the onus is on the plaintiff to show that proper provision is not available for him under the terms of the will. In determining whether this is the case the Court must have regard to all relevant circumstances including the size of the estate and the nature of the competing claim by the [residuary beneficiary]. In performing this task the Court must have due regard to the will of the testator and should interfere only to the minimum extent necessary to make adequate provision for the proper maintenance, education and advancement in life of an applicant who has passed the first jurisdictional hurdle. As Dixon CJ said in the passage from Scales quoted above, due regard must be had to 'what the testator regarded as superior claims or preferable dispositions' as demonstrated by his will." (Footnotes omitted)
As stated in the above passage, the size of the estate is a significant consideration in determining an application for provision. It is important to remember what Salmond J said in In re Allen (Deceased); Allen v Manchester [1922] NZLR 218, at 221: "Applications under the Family Protection Act for further provision of maintenance are divisible into two classes. The first and by far the most numerous class consists of those cases in which, owing to the smallness of the estate and to the nature of the testamentary dispositions, the applicant is competing with other persons who have also a moral claim upon the testator. Any provision made by the Court in favour of the applicant must in this class of case be made at the expense of some other person or persons to whom the testator owed a moral duty of support. The estate is insufficient to meet in full the entirety of the moral claims upon it, in the sense that if the testator had possessed more he would have been bound to do more for the welfare of his dependants. In such a case all that the Court can do is to see that the available means of the testator are justly divided between the persons who have moral claims upon him in due proportion to the relative urgency of those claims."
Whilst fully contested applications in small estates should be discouraged, because the costs tend to become wholly disproportionate to the end result, there is nothing in the Act that excludes the possibility that orders for further provision be made from a small estate: Morris v Smoel [2014] VSC 32, at [68]. The court must still consider all the relevant circumstances before a decision is made: Re Coventry (Deceased) [1979] 3 All ER 815, at 820; Alcock v Cooper [2010] SASC 167, per Lunn M, at [39].
Yet, in small estates particularly, the court should be careful not to foster the proposition that obstinacy and unreasonableness will not result in an order for costs: Dobb v Hacket (1993) 10 WAR 532, at 540.
In relation to the Plaintiff's claim, being a claim by an adult child, the following principles are useful to remember: (a) 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. (b) 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, 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 his, or her, child up in a position where she or he 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: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801, at [57]; Kohari v Snow [2013] NSWSC 452, at [121]; Salmon v Osmond, at [109]. In Gardiner v Gardiner [2014], at [143], Robb J wrote in relation to this paragraph: "I would add in elaboration of… proposition (b) that, in my view, the moral obligation of a parent in respect of an adult child will be influenced by an expectation intentionally created by the parent as to particular or special treatment in the parent's will in favour of a particular child, especially where that expectation is created in encouragement or reward for special levels of care and attention on the part of the child devoted to the parent. An obligation to fulfil an expectation intentionally created, whether in whole or in part, may arise even in circumstances where there is an element of uncertainty in the precise identification of the expectation intended to be created, and where the circumstances fall short of those that would give rise to an enforceable agreement between the parent and the child." (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary 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 a parent 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]. (d) 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 an appropriate provision for the maintenance of the applicant: Re Buckland, Deceased [1966] VR 404, at 411; Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, at 148; Goodman v Windeyer, at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons: Re Buckland, Deceased, at 411; Kleinig v Neal (No 2), at 537; Mayfield v Lloyd-Williams, at [86]. (e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2), at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37, at 45 (Nicholson J). (f) 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]; Crossman v Riedel [2004] ACTSC 127, at [49]. 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]. 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; Butcher v Craig, at [17]. (g) 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. (h) Although some may hold the view that equality between children does not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not entirely consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the court's determination of the applicant's case.
In this case, there are some significant circumstances that call for additional consideration, and which fall outside the principles suggested above. The most important, of course, is the medical condition of the Plaintiff and the sequelae of that condition. Furthermore, he is currently without secure accommodation, and whilst he has a capital fund available, which provides some level of protection against future exigencies of life, and, whilst it is retained, a modest additional income, he is obliged to, and will continue to, live substantially on the beneficence of the State.
In Butler v Morris [2012] NSWSC 748, at [108]-[111], I collected some of the authorities concerning the relevance of the entitlement of an applicant for a family provision order to a pension to the determination of what, if any, provision ought to be made in favour of that person: "Pension Entitlement Because Carolyn is, and has been, receiving a disability support pension for many years, it is necessary to consider the relevance of that receipt in a claim for a family provision order. In Taylor v Farrugia, at [59], Brereton J said: 'The Court's attitude to the eligibility for means tested pension benefits of eligible persons and beneficiaries varies, depending on the circumstances of the case. Ordinarily, a testator makes a will and provides for those who have a claim on the testator without regard to the claimant's eligibility for a pension. However, in a small estate where there are competing claims, a testator, and this Court on an application under the Act, may take into account the eligibility of a claimant for a pension as a means of deciding how such limited benefits as are available from the estate should be shared between claimants, and how those benefits might be structured. But this qualification to the principle that the burden of support should be borne in the first instance by an estate rather than by social security arises mainly, if not exclusively in smaller estates [Parker v Public Trustee (1988) NSWSC, Young J, 31 May 1998; Whitmont v Lloyd (New South Wales Supreme Court, 31 July 1995, Bryson J, unreported); King v Foster (Court of Appeal, 7 December 1995, unreported) King v White [1992] 2 VR 417, 424; Shah v Perpetual Trustee Company [1981] 7 Fam LR 97 100; Gunawardena v Kanagaratnam Sri Kantha [2007] NSWSC 151; Chan v Tsui [2005] NSWSC 82].' An earlier authority, with which I respectfully agree, is Thom v The Public Trustee (NSWSC, 2 April 1992, unreported), in which Master McLaughlin (as his Honour then was) said: 'It seems to me that it would be totally unrealistic for the Court to approach the moral obligation of the deceased to make provision for the applicant by disregarding the fact that for a period of 20 years before the deceased's death, the applicant was in receipt of a pension from the State, and the fact that, to the extent of that pension, the deceased was relieved of the necessity to support the applicant from his own funds. That being so, I do not see how, upon the death of the deceased, the moral obligation upon the deceased to make provision for the applicant by will, could be approached without recognising the fact that the applicant would be entitled to continue to receive such a pension.' The availability of a disability support pension provided to an applicant ought not be regarded as a substitute for the obligation on the deceased to make adequate provision for him or her. Yet, it is not necessary to make an order that would operate primarily in relief of the taxpayer. In this case, it not being submitted to the contrary, the availability of the disability support pension, and associated social benefits, is a circumstance to which the Court should have regard particularly in circumstances where Carolyn continues to be unwell and the prognosis is that she will continue to require care and treatment. As was stated in Evans v Levy [2011] NSWCA 125 at [55]: '... there are, for most pensioners, side benefits of considerable value in merely having a part pension, such as the right which becomes more and more valuable as one gets older to have medical services provided at considerable concessional rates.'"
I have referred to these principles in Kohari v Snow, at [123]-[128]. They were referred to, with approval, by Robb J, in Pang v Fong [2014] NSWSC 1425, at [150]. As in that case (at [151]), "the present is not a case where [the Plaintiff's] entitlement to a pension and public housing is determinative. His present lifestyle is confined by his need to rely upon those public benefits, because he has no choice".
In Foley v Ellis, Sackville AJA, at [88], 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 Family Provision Act".
In Salmon v Osmond, at [103], Beazley P stressed the relevance of having regard to the deceased's obligations to all other claimants and concluded, in that case, that even "without regard being had to the costs ordered to be borne by [the beneficiary's] share of the estate, the legacy ordered in [the Plaintiff's] favour is disproportionate to any rightful claim she may have when regard is had to [the beneficiary's] rightful claim to the deceased's bounty".
The Defendant is not an applicant for provision. Even so, she does not have to prove an entitlement to the provision made in the deceased's Will or otherwise justify such provision. In determining the case, the court must have regard to all relevant circumstances including the size of the estate and the nature of the competing claim by her: Edgar v Public Trustee for the Northern Territory, at [46].
In this regard, the terms of the deceased's copy affidavit should not be forgotten. In that affidavit, the deceased expressed his reasons for making the provision that he did for her.
Concern as to the capacity of the Defendant to maintain herself, independently and autonomously, also bear upon the notion of what provision ought to be made for her. Her age and earning capacity are also relevant.

Qualifications on "Principles"

As I have stated in a number of cases (see, for example, Bowditch v NSW Trustee and Guardian [2012] NSWSC 275), I do not intend what I have described as "principles" to be elevated into rules of law, propositions of universal application, or formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion at the second stage should be constrained, by statements of principle found in dicta in other decisions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I identify them merely as providing useful guidance, which may be applied, with circumspection, in considering the statutory provisions, the terms of which must remain firmly in mind.
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 bases for a family provision order have been established. Every case is different and must be decided on its own facts. As Lindsay J said in Verzar v Verzar [2012], 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 in the last two paragraphs have been stressed in Chapple v Wilcox by Basten JA, at [18]-[20], and by Barrett JA, at [66]-[67].

Additional Facts

I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come. 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 [2012], at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered. (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship
There is no dispute that the Plaintiff is a son of the deceased. He lived with his mother all of his life, but, for a period of time, spent every alternate weekend with the deceased at the Mirrabooka property. Following the end of the deceased's relationship with Helen Grayson, the Plaintiff did not see much of the deceased "for some time". He says that he did not want to see the deceased, as when he did, the deceased would "put me down", commenting upon him not being very smart and his likely inability to obtain employment. (There is a dispute about this issue but it may be that it is one of perception. However, the Plaintiff's evidence is supported by the evidence in his mother's affidavit.)
The deceased, however, did telephone the Plaintiff to tell him that he had been diagnosed with cancer. Thereafter, the Plaintiff resumed his visits to the deceased at the Mirrabooka property (although there is a dispute about how regularly he visited). In the last few months before the deceased's death, they would talk by telephone two or three times per week.
It was during his visits that the Plaintiff met the Defendant. The Defendant acknowledges that the Plaintiff saw the deceased for the last time four days before the deceased's death.
I am satisfied that the Plaintiff had a relationship with the deceased throughout the Plaintiff's life. It seems to have been a reasonably close and loving one for most of his life, although there was a short period when they did not see a lot of each other. (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
There is no definition of the words "obligations" or "responsibilities" to which the sub-section refers in the Act. Importantly, the Act does not expressly refer to, or identify, any "moral duty". Yet, what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities to not only the applicant, but also to the beneficiaries.
This factor requires a balancing of potentially competing obligations as between the applicant and each of the beneficiaries.
Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to each of his children, as an adult, imposed upon him by statute or common law.
Yet, an obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child. In Flathaug v Weaver [2003] NZFLR 730, at [32], the origin of the obligation which underpins the Act's recognition of the duty owed by a parent to a child was put in this way: "The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives."
Although the relationship of parent and child is important and carries with it an obligation or responsibility reflected in the Act, it is nevertheless an obligation largely defined by the relationship which actually exists between parent and child during their joint lives: Vincent v Lewis [2006] NZFLR 812, at [81]. The boundaries of that obligation or responsibility are not amenable to rigid definition.
The fact that the applicant was financially independent of the deceased, for many years, before the deceased's death, is a relevant consideration in determining the extent of any obligation or responsibility owed. The size of the deceased's estate is also relevant to the extent of the obligation or responsibility.
(For reasons earlier mentioned, it is unnecessary to refer to the deceased's obligation or responsibility to Ashley.)
The deceased, it seems to me, also owed some obligation, or responsibility, to the Defendant. She did look after him when he became unwell and it is clear from the terms of his Will, and the affidavit that he made, that he regarded her as a person with a significant claim upon his bounty. (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
I have earlier dealt with these matters. The net value of the property that may be designated as notional estate is small if all of the costs are deducted. (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
The Plaintiff finished Year 12 of High School in December 2014. Since about April 2014, he has received assistance from Delando Corporation. It has assisted him to apply for the disability pension and NDIS funding (to which I have earlier referred). More recently, it has assisted him with his application to NSW Housing.
He currently receives a part pension from Centrelink ($379 per fortnight). He works at the University doing lawn maintenance, earning about $202 per fortnight. He has received an inheritance of $40,000 from his grandfather's estate. Although he used part of this money to pay for the car repairs, he currently has slightly more than $40,000 on a term deposit as well as $4,528 in a pension account. No doubt, some interest is accruing on this amount. As stated earlier, the Defendant holds $64,328 upon trust for the Plaintiff which should be paid to him. It is likely that some interest has accrued on that sum. There is also the motor cycle to which he is entitled (estimated to be worth $5,000). It follows that he will have a capital sum of about $110,000 available (plus the proceeds of sale of the motor cycle).
He has a driver's licence and he recently purchased a car for $2,000 on which he has spent $300. He hopes to undergo a safe driver training course so that he is able to drive independently. In addition, he has a need for some psychological care, a need that has existed for some time but which has not been attended to through a lack of funds.
The Plaintiff has liabilities in relation to legal costs and disbursements (or if the usual order is made for the difference between indemnity costs and ordinary costs).
It was submitted (by reference to an aide memoire provided by counsel for the Plaintiff) that the Plaintiff's total weekly outgoings, if he obtained accommodation through Housing NSW, would be about $453, whilst his income was $291, meaning that there was a shortfall of $162 per week. If he did not obtain accommodation through Housing NSW, his total weekly outgoings were estimated to be $617, resulting in a shortfall of $326 per week. (I should mention that I have taken these figures from a submission rather than from the evidence, which did not support all of the figures included.)
It was also submitted that he needed a capital amount ($20,000) for furniture and whitegoods, and an amount for a car ($15,000) together with a fund to supplement income ($125,000) as well as a contingency fund ($25,000). This totalled $185,000 but it was conceded that he had about $100,000 which could be used, thereby reducing the amount required to about $85,000. (Again, there was no specific evidence to justify these estimates and I have taken them from the Plaintiff's submissions).
In the alternative, it was submitted that if he purchased accommodation for $220,000 (about which there is some evidence), paid stamp duty and legal costs ($8,000) bought the furniture and whitegoods ($17,000) and had a contingency fund of $20,000, he would need $165,000 (after deducting the capital sum of about $100,000).
Finally, on this topic, I am satisfied that the Plaintiff does have a very limited earning capacity. However, he is likely to continue to receive Centrelink benefits for the remainder of his life.
The Defendant gave evidence that she has cash in a Bank account of $6,500 and that she receives a Widow's Pension of $570 per fortnight.
Counsel for the Defendant submitted that her needs are greater than those of the Plaintiff and that, under the circumstances, the provision provided for the Plaintiff in the deceased's Will was adequate and proper.
Ashley, in her only affidavit sworn on 24 October 2014, is married and has one child, aged about 18 months. They own a home at Blacktown, the estimated value of which is $580,000. As at October 2014, it was the subject of a secured debt of $375,000. Her husband is a self-employed carpenter. She says that "between myself and my husband, we earn approximately $70,000 gross". They have a car ($25,000) and a work truck ($32,000). She asserts that there is a car loan ($23,000) and a truck loan ($37,000). They had business credit card debts of $4,000. She estimates that their monthly expenditure is $6,500 (including the mortgage and car loan). She does not identify how the surplus of expenditure over income (about $8,000 per year) is met. (I have included her evidence for completeness. In view of the agreement of the parties not to have any part of the amount distributed to her bear the burden of provision that may be made for the Plaintiff, her need as a competing claimant is irrelevant.)
There is no other applicant for an order for provision. (e) if the applicant is cohabiting with another person-the financial circumstances of the other person
There is no evidence that the Plaintiff is cohabiting with any person whose financial position is relevant. Whilst he is currently living with relatives (the tutor and his family), this is only temporary. (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
As stated earlier, the Plaintiff suffers, and will continue to suffer from Autistic Spectrum Disorder and a mild intellectual disability. His local medical practitioner, who has known him since 2003, considers that he requires ongoing support for activities of daily living and supported employment.
These conditions leave the Plaintiff with significant disabilities in communication with both expressive and receptive language being affected.
I have earlier referred to the assistance provided by representatives of the Delando Corporation.
The Defendant says that her health is "reasonable". She has been diagnosed with depression since the deceased's death, for which she has been given medication. She suffers from dizzy spells, has arthritis in both feet and hands, and has hammertoes on both feet. (I have earlier referred to the age of the Defendant.) (g) the age of the applicant when the application is being considered
The Plaintiff was born in June 1996 and is currently aged almost 19 years. (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant
The Plaintiff does not give any evidence of such financial contributions. However, it is likely that by visiting the deceased and speaking with him on the telephone, he did make some contribution to the welfare of the deceased. (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
There is no suggestion that the deceased made any substantial, or generous, inter vivos provision for the Plaintiff. The Plaintiff acknowledges that shortly before his death, the deceased gave him $200.
I have earlier stated what he receives under the Will of the deceased. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person
There is some evidence about testamentary intentions other than as disclosed in the Will of the deceased. He made a Will in May 2006 in which he appointed the Public Trustee (now the NSW Trustee & Guardian) as the executor and trustee and left the whole of his estate, after the payment of estate liabilities to be divided equally between Ashley and the Plaintiff.
The deceased made another Will in June 2012, in which he appointed Ashley as executrix. He left a pecuniary legacy of $100,000 to Christine, provided that he was still in a relationship with her at the date of his death. He left the rest and residue in equal shares as tenants in common to Ashley and the Plaintiff.
The deceased made a further Will in June 2013, in which he appointed the Defendant as the executrix and trustee. He left her a legacy of $50,000, the caravan and the car. He left a legacy of $20,000 and such of his antique furniture as she chose, to Ashley. He left the rest and residue of the estate to be held in trust for the Plaintiff until he attained his majority.
I have earlier referred to the affidavit signed by the deceased in which he set out the reasons for making the provision that he did for the Defendant.
As was recently written in Salmon v Osmond, at [72], "a testator's explanation of why he made those decisions must be given appropriate weight. The weight that is given will depend, inter alia, upon whether it is apparent from the evidence that the testator's wishes and testamentary intentions are soundly based and not, for example, attributable to irascibility, mere dislike, or based on lack of information, or wrong information". Thus, whilst this sub-section permits the court to accept evidence of the reasons for the provision, or lack of provision, it does not compel the court to attribute any particular weight to that evidence or to accept the truth of what is asserted.
There was no suggestion made on behalf of the Plaintiff that what the deceased had said about his relationship with the Defendant and her contribution to his welfare was untrue. Accordingly, I accept what was said about the Defendant by the deceased. (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so
The deceased did not maintain the Plaintiff wholly, or partly, before death, and so it seems, for some years before his death. (l) whether any other person is liable to support the applicant
Apart from the Commonwealth government's responsibility to continue to provide the Plaintiff with a disability pension and NDIS relief, there is no other person with a liability to support the Plaintiff. As stated earlier, he is likely to have to rely, to a considerable degree upon the State for the remainder of his life. (m) the character and conduct of the applicant before and after the date of the death of the deceased person
An evaluation of "character and conduct" may be necessary, not for the sake of criticism, but to enable consideration of what is "adequate and proper" in all the circumstances. Importantly, the Act does not limit the consideration of "conduct" to conduct towards the deceased.
In Collicoat v McMillan [1999] 3 VR 803, at [40], Ormiston J wrote, in relation to the manner in which an applicant's behaviour towards the deceased is to be considered: "Ordinarily each of the persons who have a statutory right to make [an] application are entitled to have their position considered by a testator but their behaviour (right or wrong) towards the testator may only provide a basis for measuring appropriately the testator's obligation to make provision for each of those applicants. Their sins are irrelevant except in so far as a testator might properly take exception to their behaviour."
I am satisfied that there is no relevant conduct of the Plaintiff that impacts on the determination of what provision should be made for him out of the estate of the deceased. I have earlier referred to the nature of his relationship with the deceased and his contribution to the welfare of the deceased.
I do not regard the period that he did not see the deceased as of importance. The Plaintiff's perception of the comments made by the deceased may have been misinterpreted but even if they were, it provides a reasonable basis, particularly bearing in mind the age of the Plaintiff, for his conduct.
There is no conduct by the Plaintiff after the death of the deceased that is relevant. (n) the conduct of any other person before and after the date of the death of the deceased person
I am satisfied that there is no relevant conduct of the Defendant that impacts on the determination of what provision should be made for the Plaintiff out of the estate of the deceased. I remember, of course, that she is the principal chosen object of the deceased's bounty. I am also satisfied that she did provide a great deal of support and care to the deceased prior to his death. The deceased acknowledged that in a conversation with the Plaintiff and, of course, in the affidavit that he signed.
It is important to note that the deceased owned the Mirrabooka property for many years prior to the commencement of his relationship with the Defendant. Yet, it is clear that the Defendant contributed about $30,000 to the repairs and renovations of the Mirabooka property after the death of the deceased. Part of that was from the proceeds of sale of the car she inherited from the deceased (about $18,000) and the balance came from her own funds. Thus, she made a financial contribution, albeit after the death of the deceased, to the value of the estate. (I have taken her contribution into account in reaching the conclusion that I have in regard to the provision to be made for the Plaintiff.)
Yet, I am most troubled about the speed with, and the manner in, which the Defendant took steps to distribute the deceased's estate, including the transfer of the Mirrabooka property, her moving into that property and spending a reasonably significant amount of money, both of the estate and of her own, to renovate that property. I have identified the period following the death of the deceased in which she took these steps without any notice being given to anyone that she intended to distribute the estate.
It is clear, in my view, that the Defendant knew, at the time she made the distribution, that the Plaintiff was a minor and that he suffered from some disabilities.
There is no evidence that she sought advice on the steps she was taking or that she had been informed that no other eligible person would be making a claim for provision, or further provision out of the deceased's estate. Nor is there any evidence that she made any enquiry about any such claim or sought any assurance that no claim would be made.
In my view, she took a significant risk in giving up her Department of Housing accommodation in circumstances where she did not enquire, or otherwise know, that no claim for a family provision order would be made. It was a risk, it appears, that she was prepared to take.
However, in light of the way in which the case was conducted on the Defendant's behalf, in particular, the concession made regarding the sale of the Mirrabooka property and the designation of part of the proceeds of sale as notional estate, perhaps, these events are of less significance. (o) any relevant Aboriginal or Torres Strait Islander customary law
This factor is not applicable. (p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered
There is no other matter that I consider relevant.

Determination

Being an "eligible person" is a necessary precondition to the court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. There is no dispute the Plaintiff, as a child of the deceased, is an eligible person within the meaning of that term in s 57(1)(c) of the Act. There is also no dispute that he brought his application within the time prescribed by the Act.
Thus, I must first consider, whether, at the present time, adequate provision for the proper maintenance, education, or advancement in life, of the Plaintiff has not been made by the deceased's Will.
I have identified the provision in the deceased's Will for the Plaintiff. In broad terms, he receives about $65,000 in cash, and an unregistered motor cycle which should be able to be sold.
Judged by quantum, and looked at through the prism of his financial and material circumstances, adequate provision for the Plaintiff's proper maintenance or advancement in life was not made by the Will of the deceased. However, that is not all that is required. Whether inadequate provision was made requires an assessment of his financial position, the size and nature of the deceased's estate, the relationship between him and the deceased and other persons who have legitimate claims upon the deceased's bounty and the circumstances and needs of those other persons: see Tobin v Ezekiel, at [70]; McCosker v McCosker, at 571-572; Singer v Berghouse, at 210; Vigolo v Bostin, at [16], [75], [112]; and Verzar v Verzar [2014] at [39].
Taking into account all of the matters that I am required to consider at the first stage, including the size and nature of the estate, the relationship between the Plaintiff and the deceased, the relationship between the deceased and the Defendant, which was not long (about 7 years) and her contribution to the building up of the deceased's estate, I am satisfied that the Plaintiff has satisfied the jurisdictional threshold.
I must also remember that the task of the court is to make a determination "according to the feeling and judgment of the fair and reasonable man in the community, the spokesman of which is, and must be, the court itself": Kearns v Ellis (Supreme Court (NSW), Mahoney JA, 5 December 1984, unrep), at 8. Doing so, I remain of the view that there was a failure, on the part of the deceased, to make adequate and proper provision for the Plaintiff.
It is clear, in my view, that the Plaintiff has some "needs". As stated above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence. Nor is it limited to whether the applicant has, at the date of hearing, an immediate need for financial assistance with respect to his maintenance. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The term is also used in the sense of what was necessary for the applicant's "proper maintenance, education and advancement in life": Collins v McGain, per Tobias JA, with whom Beazley and Hodgson JJA agreed.
The court is required to consider all of the circumstances. In the case of the Plaintiff, he is, currently, incapable of adequately providing for himself, and it is likely that, because of his medical conditions, he will never be able to do so. Without some provision, it is highly unlikely that he will be able to improve his station in life. He has a need for additional capital. He can use that capital to assist in the provision of accommodation, whether rented or purchased (if he is able to obtain additional funds) or whilst it is unused to provide an additional, albeit modest income.
Of course, the accommodation does not need to be a home that he owns absolutely. As stated, the evidence appears to be that, in all probability, he will receive assistance from Housing NSW, if not immediately within about four years. Accordingly, it seems to me that his accommodation needs may be able to be met by renting accommodation until such time as rented accommodation is provided to him by Housing NSW.
I turn now to the second stage, namely the nature of the order that should be made in favour of the Plaintiff. The more difficult question then arises, namely what provision "ought to be made for the maintenance, education or advancement in life" of the Plaintiff, having regard to the facts known to the court. This involves "an instinctive synthesis that takes into account all the relevant factors and gives them due weight": Grey v Harrison, at 367. It is not a scientific, or arithmetic, exercise.
I am of the opinion that the Plaintiff should receive additional provision by way of a lump sum, which would enable him to provide for exigencies of life and provide a buffer against future contingencies. It is clear, however, that the size of the estate is a limiting factor on what lump sum may be provided.
The additional lump sum should be calculated as 40 per cent of the net proceeds of sale of the Mirrabooka property. (Using the estimated net distributable value of the estate ($226,271) referred to earlier this would yield a lump sum of about $90,500.)
Thus, the additional provision to be made for the Plaintiff and the part of the estate out of which it is to be provided is a lump sum equating to 40 per cent of the net proceeds of sale of the Mirrabooka property.
Naturally, even though not the subject of dispute, I have considered, again whether the provision by way of percentage of net proceeds of sale, is appropriate in this case. In Zagame v Zagame [2014] NSWSC 1302, I wrote, at [310]: "Since the hearing, McDougall J in Bouttell v Rapisarda [2014] NSWSC 1192, at [96], has raised the concern that 'to make provision by way of a share, the value of which can only be ascertained until after realisation of all the estate's assets, runs the very real risk of under-providing (or over-providing) for [the applicant's] needs'. Whilst this is undoubtedly true, in some cases, for example, where the estate, or property which may be designated as notional estate, has a value that cannot be precisely determined, or where liabilities, such as CGT, can only be determined when the precise value of the property is ascertained, it seems to me that to make a lump sum order will not be the most appropriate way of determining what is 'proper' in all the circumstances of the case."
I maintain the view expressed in that case. I remember also that the Act permits the family provision order to be made in one or more ways, including "in any other manner the Court thinks fit": s 65(2)(f).
By way of testing the adequacy and propriety of the quantum, assuming weekly rent of $250, for 4 years, without any discount, he would require a capital sum of $52,000 to pay the rent. Any part of this amount not used, could provide for his rent in the future, or capital, which could be added to what he has, in order to provide additional income. In addition, he needs a new car ($15,000), and some furniture and whitegoods ($20,000).
A capital sum of about $90,000 would enable him to attend to these needs and leave a very small surplus.
It will be necessary for an order designating an amount equal to 40 per cent of the net proceeds of sale after deduction of the costs and expenses of sale and, if any order for costs is made, an additional amount for the costs of these proceedings.
The Defendant, as the executrix, should have control of the sale, although, as a matter of comity, her solicitors should advise the solicitors acting for the tutor of the Plaintiff of what is being done in that regard. The Mirrabooka property should be put on the market for sale as soon as reasonably possible, but no later than 6 weeks from the date of making orders, or such other time as the parties are able to agree in writing. Provided the amount to which the Plaintiff is entitled, is paid within 7 days of completion of the sale of the property, no interest is payable on the amount to be paid. Otherwise, interest at the rate prescribed under s 84A(3) of the Probate and Administration Act is payable from that date on any amount unpaid.
I am also prepared to make an order granting leave to any party to approach the court to make additional orders for the purpose of giving effect to the family provision order to be made.
I direct the parties to deliver to my Associate, within 21 days, for consideration, agreed Short Minutes of Order giving effect to these reasons.
Finally, there should be an order included in the Short Minutes of Order that the Exhibits should be dealt with in accordance with UCPR rule 31.16A and rule 33.10 and Practice Note No SC Gen 18 (Para 26).
The matter will be listed before me on a mutually convenient date in case agreement on any aspects of the orders cannot be reached. At that time, the question of costs, if still in dispute, can be determined. If agreement on the form of orders is not reached, respective draft Short Minutes of Order, by each party, should be provided within the same time.
If agreement is reached, on the terms of the Short Minutes of Order, including costs, I shall deal with the matter in Chambers without the need for a further appearance and I shall vacate the adjourned date.

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: 24 June 2015

Family Provision Act 1982(NSW)

Succession Amendment (Family Provision) Act 2008(NSW)

Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison [1997] 2 VR 359 Hawkins v Prestage (1989) 1 WAR 37 Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 Hyland v Burbidge [2000] NSWSC 12 In re Allardice; Allardice v Allardice (1910) 29 NZLR 959 In re Allen (Deceased); Allen v Manchester [1922] NZLR 218 In the Estate of Puckridge, Deceased (1978) 20 SASR 72 In the Estate of the late Anthony Marras [2014] NSWSC 915 Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422 Kay v Archbold [2008] NSWSC 254 Kearns v Ellis (Supreme Court (NSW), Mahoney JA, 5 December 1984, unrep) Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 MacGregor v MacGregor [2003] WASC 169 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Madden-Smith v Madden (estate of the late Doris Linda Madden) [2012] NSWSC 146 Magill v Magill [2006] HCA 51; (2006) 231 ALR 277 Marks v Marks [2003] WASCA 297 Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47 Mayfield v Lloyd-Williams [2004] NSWSC 419 Morris v Smoel [2014] VSC 32 Palagiano v Mankarios [2011] NSWSC 61 Pang v Fong [2014] NSWSC 1425 Phillips v James [2014] NSWCA 4; (2014) 85 NSWLR 619 Pogorelicv Banovich [2007] WASC 45 Poletti v Jones [2015] NSWCA 107 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 Re Buckland, Deceased [1966] VR 404 Re Bull [2006] VSC 113 Re Coventry (Deceased) [1979] 3 All ER 815 Re Dennis (Deceased) [1981] 2 All ER 140 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 Salmon v Osmond [2015] NSWCA 42 Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253 Snow v Snow [2015] NSWSC 90 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Sung v Malaxos [2015] NSWSC 186 Szypica v O'Beirne [2013] NSWSC 297 Taylor v Farrugia [2009] NSWSC 801 Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 Verzar v Verzar [2012] NSWSC 1380 Verzar v Verzar [2014] NSWCA 45 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Vincent v Lewis [2006] NZFLR 812 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) West v Mann [2013] NSWSC 1852 Wilcox v Wilcox [2012] NSWSC 1138 Williams v Aucutt [2000] 2 NZLR 479 Zagame v Zagame [2014] NSWSC 1302 Texts Cited: Rosalind Atherton, "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5 Australian Journal of Legal History J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths) Category: Principal judgment Parties: Jack Alexander Baird by his tutor Barry Terzic (Plaintiff) Christine Ann Harris (Defendant) Representation: Counsel: Mr B Burke (Plaintiff) Mr A Hill (Defendant)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (9 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (93)

Cited By (3)