Battersby v McIvor

The Application 1HIS HONOUR: These reasons relate to proceedings, in which a claim for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act") is made by Jeanette Ruby Battersby, out of the estate of her mother, Clara Irene Riddle ("the deceased"). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the court, under Chapter 3, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person. 2There were separate, but related, proceedings commenced by two other children of the deceased, namely, Marie Smith and William Thomas Riddle, also seeking family provision orders out of the deceased's estate, but those proceedings were resolved shortly before the hearing. At the commencement of the hearing, I was requested to make family provision, and costs, orders, which gave effect to the agreement of the parties in those proceedings. 3I was informed that there had been an order previously made that all matters were to proceed concurrently, with the evidence in one being evidence in the other. However, as a result of the resolution of the other proceedings, the affidavit filed by each Plaintiff, in those proceedings, was only read to establish the Court's jurisdiction to make the orders the subject of their agreement with the Defendant. 4Without any undue familiarity, or disrespect intended, and for convenience, hereafter, I shall refer to each of the Plaintiffs and the Defendant, and any family members, after introduction, by her, or his, first name. 5Jeanette made her claim in a Summons filed on 17 January 2011. It was filed within the time prescribed by s 58(2) of the Act (within 12 months of the death of the deceased.) Marie and William made her and his claim in a Summons filed on 17 August 2011, which is also within the time prescribed by the Act. 6The Defendant named in each Summons is Emily Mildred McIvor, another child, and the executrix named in the Will, of the deceased. 7There is no notional estate the subject of any party's claim.

Background Facts 8The following facts are uncontroversial and provide a useful background. 9The deceased died on 20 August 2010. She was then aged 92 years, having been born in June 1918. 10Each of Jeanette, William, Marie and Emily is a child of the marriage of the deceased and Mark Gregory Riddle Snr. He died in July 2006. There was one other child born of the marriage, being Mark Gregory Riddle Jnr, but he also predeceased the deceased, having died in 2008. Mark Jnr left three children surviving him. 11Mark Jnr was born in August 1941. William was born in November 1942 and is currently aged 69 years. Emily was born in November 1944 and is currently aged 67 years. Marie was born in November 1946 and is currently aged 65 years. 12The deceased left a Will that she made on 25 January 2007. Emily obtained a grant of Probate of that Will, from this Court, on 26 November 2010, to give effect to her appointment as the sole executrix of the deceased's estate. 13The deceased's Will provided for a legacy of $20,000 to each of Mark, William, Marie and Jeanette, but if any of her children did not survive, but left issue, his, or her, issue would take the share of that deceased child. The residue of the deceased's estate was left to Emily, for her sole use and benefit absolutely, but if she did not survive the deceased by 30 days, the residue would pass to her surviving issue in equal shares. 14All of the parties agreed that the legacy passing to the three children of Mark Jnr should not bear any part of the burden of provision made for Marie and William, or, the additional provision, if any, for Jeanette, or any of the orders for costs that are, or will be made, in the proceedings. In other words, those three children are to share the legacy of $20,000 without any abatement or reduction. 15The Will also provided: "... 3.... If she [Emily] wishes to retain my house at ... Forestville for her own use and benefit she shall have power to mortgage the property to provide funds to pay the pecuniary bequests I have left to my other children provided that such bequests shall be paid to them within three months from the date of my death." 16In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased's estate, at the date of death, was disclosed as having an estimated, or known, gross value of $880,385. The property then owned solely by the deceased was real estate at Forestville ("the Forestville property") ($820,000) and cash in bank ($31,185). There was an alleged debt owed to the estate by Jeanette ($27,200) and an alleged debt by Marie ($2,000). (I have omitted, and shall continue to omit, any reference to cents in amounts referred to. This may result in what might appear to be minor mathematical miscalculations in the figures set out below.) 17No liabilities were disclosed in the Inventory of Property. 18As will be seen below, the estate currently consists of only the Forestville property, the value of which is now agreed, by Jeanette and Emily, to be $780,000. There will be costs and expenses associated with the sale of the Forestville property if, ultimately, it becomes necessary for Emily to sell it. 19Emily did not pay any of the legacies to those entitled within three months of the date of death, or at all. Accordingly, it is necessary, in calculating the current distributable value of the estate, to bear in mind the legacies that are yet to be paid.

Application by Jeanette's Solicitors 20On 7 September 2012, Jeanette's solicitors, Bale Boshev Lawyers, emailed to my Chambers, a letter dated 7 September 2012, which letter stated: "We advise that circumstances have arisen within the last 24 hours that require our firm to cease to act for the first plaintiff, Jeanette Ruby Battersby. The first plaintiff, Jeanette Ruby Battersby has instructed us that she intends to represent herself at the hearing, which is listed for the three (3) days commencing Monday (10 September 2012). Given the imminent hearing we would be grateful if you could advise how the Court would prefer us to bring the withdrawal before it, and, given our withdrawal, how we can otherwise assist the Court." 21I requested my Associate to respond that the Court was unable to provide such advice and that it would be a matter for the solicitors to take the course that they considered appropriate in all the circumstances. 22At the commencement of the hearing, Mr A Vincent of counsel appeared for Jeanette's solicitors. He stated that his instructions were limited to making an application for leave to file and serve a notice of ceasing to act, upon the basis that the solicitors considered that they had ceased to act for Jeanette. 23Counsel read an affidavit of Philip John Brogan sworn 10 September 2012, filed in Court, which stated: "1.I am the employed solicitor who has had the carriage and conduct of the matter for the solicitors on the record for the Plaintiff, Ms Jeanette Ruby Battersby. 2.Leave is respectfully sought by the solicitors on the record to file in Court and serve forthwith Notice of Ceasing to Act. 3.The basis for the application is that on Thursday 6 September 2012 our firm ceased to act for the plaintiff. 4.In my opinion I am not at liberty to divulge the circumstances that resulted in our firm ceasing to act as they attract client legal privilege. 5.I am not aware of any reason by reason of which it would be expedient for our firm to remain on the record." 24The basis of the application for leave was Uniform Civil Procedure Rules 2005 ("UCPR"), rule 7.29, which provides: "(1) A solicitor who ceases to act for a party in any proceedings may file notice of the change and serve the notice on the parties. (2) Except by leave of the court, a solicitor may not file or serve notice of the change unless he or she has filed and served on the client a notice of intention to file and serve the notice of change: (a) in the case of proceedings for which a date for trial has been fixed, at least 28 days before doing so, or (b) in any other case, at least 7 days before doing so. (3) Unless notice of the change is filed with the leave of the court, a solicitor filing such a notice must include in the notice a statement as to the date on which service of the notice of intention required by subrule (2) was effected. (4) A solicitor may serve a notice of change or notice of intention under this rule on the former client by posting it to the former client at the residential or business address of the former client last known to the solicitor." 25Mr Vincent accepted that leave was required because the time limits referred to in the rule had not been complied with. In fact, no notice of intention to file the notice of change had been served on Jeanette at all. 26Mr Vincent referred me to Plenty v Gladwin [1986] HCA 55; (1986) 67 ALR 26, and Super 1000 Pty Ltd v Pacific General Securities Ltd [2007] NSWSC 171 on the question whether leave should be granted. 27During a short adjournment, I obtained, and made available to Mr Vincent, a copy of the decision of Gibson DCJ in Cha v Oh (No 21) [2009] NSWDC 130, as well as the decision of McCallum J in Nuclear Utility Technology and Environmental Corporation Inc v Australian Broadcasting Corporation (NSWSC, McCallum J, 28 April 2008, unreported), each of which referred to the rule being considered. 28In light of some of the issues that were raised during submissions, and because I indicated my tentative view that the affidavit of Mr Brogan provided insufficient evidence to satisfy me that leave should be granted, counsel requested me to allow Mr Brogan an opportunity to speak with Jeanette to ascertain whether, she, in fact, wished his firm to continue to act for her. With Jeanette's consent, I acceded to the request. 29Upon my return, Mr Vincent submitted that I should ascertain Jeanette's views, which I did. The following exchange took place: "PLAINTIFF: I wish to dismiss Phillip Brogan and get legal representation for myself, some other legal representative to get evidence, HIS HONOUR: If I don't grant an adjournment? PLAINTIFF: I have to try and do it myself. HIS HONOUR: Today, PLAINTIFF: Yes. I don't want to. HIS HONOUR: I don't suppose there is much I can do about that then. You do understand that you'll be put at quite a disadvantage or you may be put at quite a disadvantage in taking this course. PLAINTIFF: Yes. HIS HONOUR: You don't want Mr Brogan to participate on your behalf in the proceedings any further? PLAINTIFF: No. HIS HONOUR: You don't wish him to participate? PLAINTIFF: No, I don't. HIS HONOUR: Mr Vincent, through you Mr Brogan, there is an approved form of notice of removal. It's form 78. Rule 7.27 provides that a party that terminates the authority of a solicitor to act must file a notice of termination. It has to be provided to the other active parties in the proceedings." 30UCPR rule 7.27 provides: "(1) A party that terminates the authority of a solicitor to act on the party's behalf must file notice of the termination. (2) A copy of the notice of termination, as filed, must be served on all other active parties and, if practicable, on the former solicitor. (3) Filing and service of the notice of termination on the other parties may be effected by the former solicitor. (4) This rule does not apply to a change of solicitor referred to in rule 7.26." 31Subsequently, a Notice of Removal of Solicitor dated 10 September 2012, prepared by Mr Vincent, and signed by Jeanette, was filed in Court. Jeanette requested me to accept the document. 32Although the Notice of Removal of Solicitor was not served on the solicitors acting for Marie and William, or Emily, senior counsel for Marie and William, and counsel for Emily, indicated that there was no opposition to the filing of that document. (A copy may have been given to the legal representative of other parties who were in Court.) 33In the circumstances, I permitted Mr Vincent and Mr Brogan to withdraw, and thereafter, Jeanette appeared in person, and without any legal representation.

Application for Adjournment by Jeanette 34Jeanette then made an application for an adjournment. 35Counsel for Emily, and senior counsel for Marie and William, opposed any adjournment, although in respect of the latter's objection, it was only if the adjournment would delay the orders being made in accordance with the agreement that had been reached. 36In the events that happened, since, as will be seen, orders were made, it was only necessary to consider Emily's objection. 37When I asked Jeanette what she wished to achieve during any adjournment period, she stated: "HIS HONOUR: What is the basis of that application other than you don't have legal representation. PLAINTIFF: Yes, I don't and I would like to have a chance to get legal representation. ... HIS HONOUR: Ms Battersby, you'll appreciate that Mr McGrath on behalf of Emily McIvor is opposing any adjournment. PLAINTIFF: Yes. He's opposing. I have to have some chance to get more evidence. HIS HONOUR: What evidence do you anticipate that you could get. Do you have any idea of the nature of the evidence that could be obtained? PLAINTIFF: There is no business records or anything like that. They've got a business and earning money where as I only getting a little bit. HIS HONOUR: Do you mean there is no financial information or not sufficient financial information. PLAINTIFF: Yes. HIS HONOUR: About Ms McIvor. PLAINTIFF: Yes, your Honour. HIS HONOUR: Is there anything else you anticipate you need time to obtain, any other evidence? PLAINTIFF: Any other evidence? HIS HONOUR: Do you need to speak to someone at the back of the Court. PLAINTIFF: Yes. HIS HONOUR: Why don't you do that. Tell me. PLAINTIFF: Can I have -- HIS HONOUR: -- you want the financial statements of the defendant and the business she conducts. What else? PLAINTIFF: I would like to get Mum's bank statements from 2007 to 2012. HIS HONOUR: What information do you hope to get out of those bank statements? PLAINTIFF: They're saying they're paying for everything and they were taking it out of my Mum's account. Then there is Dad's account where Les handled Dad's account and they say I took $5,000 out of that bank. I would like to prove I'm innocent on that. HIS HONOUR: What else? PLAINTIFF: My tax files numbers. HIS HONOUR: Tax file numbers? PLAINTIFF: They show that they were earning lots of money. HIS HONOUR: Do you mean income tax returns? PLAINTIFF: Yes, that's it. HIS HONOUR: Is that the defendant's? PLAINTIFF: Hmmm. HIS HONOUR: Anything else. PLAINTIFF: My father's bank statements. PLAINTIFF: They paid $50 a week rent for 64 years and had a comfortable life where as I had a hard life. HIS HONOUR: That may or may not be relevant. I want to know what other evidence you hope to achieve if an adjournment is granted. Is there anything else you can think of? PLAINTIFF: No. That's all your Honour." 38Counsel for Emily, in response, stated that some of the documents that Jeanette wished to obtain were either already in evidence, being an annexure to one, or other, of the affidavits that would be relied upon by Emily, or were the subject of a subpoena to produce documents that had been served and answered. 39The documents produced on subpoena were then brought to Court from the Registry and it appeared that some, or all, of them, might very well be documents upon which Jeanette hoped to rely. Emily did not oppose access being granted to Jeanette to enable inspection of those documents. 40Having confirmed that Jeanette had all of the affidavits to which counsel referred, and as Jeanette had chosen to terminate her solicitors' retainer, I stated that, at that stage, I refused the application for adjournment and would proceed to read the affidavits and deal with objections. I stated that I would then adjourn the proceedings, it being relatively late in the day, to allow Jeanette an opportunity to inspect all of the documents produced on subpoena. To the extent that she did not have sufficient time to do so, a further opportunity would be given to her the following morning, before the proceedings commenced. 41I did not adjourn the matter to a later date, principally, because I considered that the overriding purpose of s 56 of the Civil Procedure Act 2005, namely, that the Court is to facilitate the just, quick and cheap resolution of the real issues in dispute in the proceedings, would not be achieved by an adjournment. I also considered the size of the deceased's estate and the costs that would be incurred if the matters did not proceed. 42In all the circumstances, I concluded that the dictates of justice did not warrant the grant of an adjournment to another date. 43I also stated, however, that, if subsequently, Jeanette wished to make a further application to adjourn the proceedings after she was given the opportunity to inspect the documents produced, I would consider that application. 44In fact, Jeanette spent some time after the adjournment of the proceedings on the first day of the hearing, and on the morning of the second day, prior to the case commencing, inspecting the documents produced on subpoena. On the second day, she confirmed that she "had an opportunity to look at all of the documents produced in answer to the subpoenas". 45Jeanette made no further application for an adjournment. In fact, when asked, at the commencement of the second day of the hearing, whether she wished to do so, she said that she did not. That having been confirmed, the hearing continued.

Settlement of Marie's and William's Claims 46In summary, the terms of the settlement between Emily and Marie and William were: (a) In lieu of the provision made for her, Marie is to receive a legacy of $75,000 out of the estate. (b) In lieu of the provision made for him, William is to receive a legacy of $55,000 out of the estate. (c) Marie's and William's costs and disbursements, calculated on the ordinary basis, are to be paid out of the estate of the deceased in an amount as agreed or assessed. (d) The alleged debt due to the estate by Marie ($2,000) has been released. (e) Payment of both lump sums is to be made within 90 days. 47Marie's and William's costs and disbursements, if calculated on the ordinary basis, were estimated to be about $64,000. 48Marie, William and Emily also agreed that the burden of any provision made for Jeanette, her costs of the proceedings, as well as Emily's costs, would not be borne by the lump sum orders made for each of Marie and William. Those parties agreed that the burden of provision made for each of the Plaintiffs (including provision for Jeanette, if any), as well as all costs orders was to be borne only out of the residuary estate, which passes to Emily. 49Marie, William and Emily specifically agreed that: "...the defendant accepts that the provision made for the plaintiffs Marie Smith and William Thomas Riddle is not to bear any part of the burden for provision, if any, made for Ms Battersby, or her costs, or the defendant's costs, which provision and costs, if any, will be borne by the balance of the residuary estate." 50Before making the orders that had been prepared by the parties, and shown to her, I asked Jeanette whether she had any objection to the orders and notations being made. In particular, I asked whether she sought provision greater than what would be left in the estate, taking into account the provision made for Marie and William ($130,000), their costs (about $64,000), the release of Marie's debt ($2,000), and the legacy to the children of Mark Jnr ($20,000). 51I also reminded her that in written outline of submissions, counsel briefed by her former solicitors, had submitted that a lump sum of about $120,000 and Jeanette's costs, should be paid out of the estate. I explained that, whilst she was not bound by the submission, she ought to consider the nature and amount of the family provision order that she would seek at the conclusion of the hearing, and whether, if the orders in Marie's and William's case were made, there would be sufficient in the estate to satisfy her claim for provision. 52Jeanette indicated that there would be sufficient in the estate to satisfy her claim even if orders were made. In the circumstances, I made orders in accordance with Short Minutes of Order that counsel provided. It was unnecessary for Marie and William to play any further part in the proceedings. 53Other than to work out the net value of the distributable estate, it will be unnecessary to refer to the claims by Marie and William again in Jeanette's proceedings as neither Jeanette nor Emily read the affidavits that had been filed in their proceedings.

The Nature and Value of the Estate at the date of Hearing 54In an affidavit sworn on 17 August 2012, Emily states that the current value of "the net distributable estate is unclear". However, at the hearing, there was no dispute that the property of the estate, at the date of hearing, consisted of the Forestville property and the debt said by Emily to be owed by Jeanette. (The alleged debt, whatever its amount, is denied by Jeanette.) (The release of the debt owed by Marie is as a result of the settlement of her proceedings.) 55The parties then agreed that the value of the Forestville property, at the date of hearing, is $780,000. Should it be sold, Emily's solicitor estimated expenses of such sale to be $23,160 (being commission ($17,160) and advertising ($6,000)), and legal costs and disbursements (including GST) of $1,860. 56The Forestville property has not been distributed to Emily. 57The moneys in the estate at the date of death ($31,185) have been paid into Emily's solicitors' trust account "and has been used, or committed to use, for expenses". In an affidavit sworn 7 September 2012, filed on the morning of the hearing, Emily disclosed that the following expenses of the estate have been paid out of the estate: (a) Burridge & Legg for Probate application $ 4,874 (b) Staunton & Thompson for present matters $26,969 (c) Counsel's fees for present matters up to mediation $11,935

(d) Total legal costs paid to 7 September 2012 $43,505

58She also states that there is a balance in the Staunton & Thompson Trust Account of $313. 59In calculating the value of the net distributable estate of the deceased finally available for distribution, the costs of Jeanette's proceedings should also be considered, since an applicant, if successful, normally will be entitled to an order that her costs, calculated on the ordinary basis, be paid out of that estate, whilst Emily, as executrix, irrespective of the outcome of the proceedings, normally will be entitled to an order that her costs, calculated on the indemnity basis, be paid out of that estate. 60Prior to the hearing, in an affidavit sworn by her former solicitor before he knew that counsel would not appear at the hearing, Jeanette's costs and disbursements were estimated to be $80,485, if calculated on the ordinary basis, and $107,315, if calculated on the indemnity basis. The estimate, in each case, was inclusive of GST and is based on a three-day hearing. 61Prior to Jeanette's counsel withdrawing, he informed the Court that Jeanette's legal costs and disbursements, if calculated on the ordinary basis, were now estimated to be about $65,000. The estimate was inclusive of GST. 62Emily's costs and disbursements are estimated to be $70,300, if calculated on the indemnity basis. The estimate is inclusive of GST and is based on a three-day hearing. Of course, at least some of her costs and disbursements have already been paid. 63On the second day of the hearing, I was informed that the balance of Emily's costs and disbursements, if calculated on the indemnity basis are $20,500. In fact, because the hearing did extend into the third day, the actual estimated balance may be $26,800. (Counsel acknowledged that $43,505 had been paid out of the estate on account of Emily's costs.) 64I have earlier referred to the estimate of Marie's and William's costs and disbursements, which are estimated to be about $64,000. 65Thus, in calculating the net distributable estate, one must consider the lump sum ordered to be paid by way of family provision orders to Marie and William ($130,000), the legacy payable to the children of Mark Jnr pursuant to the deceased's Will ($20,000), Marie's and William's estimated costs calculated on the ordinary basis ($64,000), Jeanette's estimated costs calculated on the ordinary basis ($65,000), and the balance of Emily's estimated costs calculated on the indemnity basis ($26,800). I must also bear in mind the costs and expenses of sale of the Forestville property ($25,020). 66I have omitted reference to the legacy payable to Jeanette under the Will of the deceased since her claim is for greater provision. I have also omitted the amount of the alleged debt of Jeanette since it is the subject of dispute and it may be that any order for provision will take into account the amount proved to be a debt owed by her to the estate. (The amount that Emily accepts that she would seek to establish is $26,500.) I have also omitted the debt owed by Marie since it has been released as part of the settlement of Marie's claim. 67Using these actual and estimated amounts, the value of the net distributable estate is in the order of $449,180. If the Forestville property is not sold, the value of the net distributable estate will be $474,200 (since the costs of sale will not have to be deducted). 68Of course, depending upon the result of Jeanette's claim and any order made as to costs, the costs and disbursements, if payable out of the estate, will be able to be formally assessed, unless otherwise agreed by the parties. It follows that the amounts referred to are estimates only.

Eligible Persons 69The persons described as eligible persons, within the meaning of the Act, are Jeanette, Emily, William, Marie, Donna Lee McIvor and Samantha Clair McIvor (the children of Emily), Joan Bailey (the child of Jeanette); Lisa Duncan, Benjamin Duncan, Anastasia Duncan, Jess Connors (the children of Donna, the great-grandchildren of the deceased); Maria Viloria, Tracey Riddle, Mark Riddle (the three children of Mark Jnr). 70The basis of the children of Emily and Jeanette and the great-grandchildren of the deceased, being identified as persons who are, or who may be, eligible, is that each was a grandchild of the deceased, or a member of the household of which the deceased was a member, and that he or she was wholly, or partly, dependent upon the deceased at any particular time. 71There is evidence of service of a form of prescribed notice on the children and grandchildren of Emily. Unfortunately, the notice refers to the former Act, rather than the Act. 72In the circumstances of this case, it seems clear that all of the adult eligible, or potential eligible, persons, have been made aware of the two sets of proceedings, including on behalf of the great-grandchildren of the deceased. A number of them have sworn at least one affidavit which has been read in Jeanette's proceedings. None of them, other than the three children of Mark Jnr, is a beneficiary named in the deceased's Will (in the events that have happened). The interests of Mark Jnr's children, as beneficiaries, are not being affected. Finally, I remember the size of the deceased's estate and the competing claims of Jeanette, Marie, William and Emily. 73I am, therefore, satisfied that service of a notice that refers to the Act is unnecessary, and that, in those circumstances, the Court may disregard the interests of those persons. 74Only Jeanette, Marie and William have commenced proceedings. Emily has sworn several affidavits in which she has given evidence about her financial and material circumstances, and has advanced a case that she is a competing claimant, financially, and otherwise, upon the bounty of the deceased. Even though she has not made a claim, the Court is not entitled to disregard her interests, as she is a beneficiary of the deceased's estate.

Emily's Evidence regarding ability to borrow 75On the third day of the hearing, Emily sought leave to file in Court, and read, an affidavit sworn 12 September 2012, of her solicitor, Paul Sydney Simon Tocchini. The affidavit related to the possibility of Emily "raising moneys to pay any settlement amounts and costs by way of mortgage". 76Over the opposition of Jeanette, I allowed the affidavit to be filed and read. I did so because I did not consider that Jeanette would be prejudiced by the admission of the evidence, albeit that it had been served so late. 77Mr Tocchini stated in the affidavit that he had spoken to a mortgage broker who had assisted clients over some years; that he had provided some details of Emily's financial circumstances to that mortgage broker, and asked whether finance could be obtained. The mortgage broker stated that there would be no problem borrowing "on a low doc loan ... up to 60% of valuation". 78Mr Tocchini believed that the amount Emily would be able to borrow was up "to $468,000 on present values". He then stated: "... 11.I advised the defendant that if she were able to borrow funds to pay all the estate claims then, she could forestall the sale of the property. She could then attempt to negotiate the costs outcomes, and if sale became inevitable to repay the lenders. At least she would be in control of the process and sell without the compulsion of a court Order. I also advised that she may be able to carry out some necessary repairs and possibly even obtain a higher price. If she had to move she would be able to carry out some research to see where she wanted to go. ... 13.Based on ... verbal advice to me I am sure that it can be obtained." 79There is no reason not to accept this evidence.

Additional Background Facts 80The following facts are also not the subject of any dispute between the parties. 81Jeanette was twenty when she married Kenneth Banks, in about 1958. 82She married Aubrey Battersby in about 1980, after living with him for a few years. They had one child together, Sharon Anne Battersby. Aubrey died in 1994. 83Jeanette then married Desmond Leighton in 1996. They separated in October 2005. She says she was forced to flee the marriage as it was a very violent one and one in which she had been subjected to years of ongoing physical and verbal violence. 84The Plaintiff received a property settlement at, or about, the time of her divorce from Desmond, which included the transfer to her of their former matrimonial home at Wellington. However, she was required to pay him about $18,854 to obtain his interest in that property. (It will be necessary to return to some matters associated with the Wellington property later in these reasons.) 85Emily moved into the Forestville property with her husband, Leslie McIvor in about 1969. Emily still resides there with Leslie, their daughter, Samantha, their daughter, Donna McIvor and her partner, Craig Connors; Donna's children from a previous marriage, Anastasia Duncan aged 21; Benjamin Duncan aged 19; Lisa Duncan aged 17; together with Donna's children from her current partner, Jess Connors aged 2 years; and Mark Connors aged 4 months. 86Following the breakdown of her marriage, Jeanette, in late 2005, moved into the Forestville property. She lived there until about March 2007. 87On 30 June 2006, the deceased appointed Jeanette her Attorney under a Power of Attorney. The Power of Attorney was revoked in April or May 2007 and the deceased granted a new Power of Attorney to Leslie. 88The deceased entered a nursing home in about August 2008.

The Credit of the Witnesses 89There were many issues raised in the affidavits. The resolution of this unfortunate family dispute, between siblings, has not been assisted by some of those affidavits which explored, in parts, quite irrelevantly, the minutiae of the family's relationships. 90As I have also recently said in Malone v Runge [2012] NSWSC 1032, it is impossible, in a case such as the present, to reach clear findings on all of the issues, some of which could not be tested because they involve events that occurred many years ago. The Court can never know all the circumstances. Nor can this judgment hope to identify all of the detail of the affidavits filed, or to reconcile the many contradictory expressions of fact and opinion that are revealed by those affidavits. 91I have so far, and shall hereafter, record my findings on what I regard as the most important issues. What I have dealt with is all that is necessary and appropriate to record in this particular case. 92Yet, it is necessary to say something about the credit of Jeanette and the witness called in support of her case, Vratislav Hruska, because some of her, and his, evidence was the subject of dispute. Counsel for Emily submitted that I should not accept the evidence of either where it conflicted with the evidence given by Emily or any one of the witnesses called by her. 93Vratislav had been outside the Court during Jeanette's evidence and no suggestion was made to her that she had spoken to him, during any adjournment, about the evidence that she had given. 94The principal basis of the cross-examination of each, and of the submissions on their credit made on behalf of Emily, was the following evidence that Emily had given: "Jan [Jeanette] has stated in her affidavit that John is her landlord and friend however at my Brother Mark's funeral in 2008; she introduced him and said: 'This is my boyfriend, John.' (A person I now know to be John [Vratislav] Hruska). In a further phone conversation, my Sister Jan said to me that: 'John and Lyn are divorced, however Lyn is living separately to them in the same house.' In a further phone conversation Jan said that: 'Lyn is always interfering in our relationship' (John and Jeanette's) and "had to go". Finally Jan said: 'I am buying Lyn's half of the house to make it official'." 95Jeanette denied each of the matters stated in Emily's evidence when counsel for Emily put each of the conversations to her in cross-examination. 96It was necessary for me to carefully observe both Jeanette and Vratislav in the witness box. Jeanette was cross-examined for nearly one day, whilst Vratislav was cross-examined for over an hour. Having done so, I record that I found each to be a very good witness, whose evidence I accept on these matters. 97The broad areas of cross-examination related to the nature of their relationship with each other and their financial and material circumstances, as well as whether they had not disclosed property that they owned together. Each of Jeanette and Vratislav maintained that they were only long time friends. They had known each other for about 30 years. Each denied that they were, or ever had been, in a de facto relationship and that they had ever had any form of romantic relationship. 98Each gave evidence that, when Jeanette moved into Vratislav's home at Bonnells Bay (a suburb of the City of Lake Macquarie), at, or about, the time of the sale of the Wellington property, she lived upstairs, whilst he lived downstairs. She had her own separate bedroom, kitchen and bathroom. On occasions, Vratislav's former wife, Lynette, who was also a close friend of Jeanette, lived upstairs as well. 99Each denied that a sexual relationship had ever existed between them. (In this regard, I found Jeanette's reasons why she could not, and would not, have a sexual relationship with him compelling.) 100Each gave evidence that about four or five months ago, Jeanette had left his home at Bonnells Bay and was now living in Teagardens (near Port Stephens) with her son. Documents tendered confirmed Jeanette's postal address at Teagardens. 101Each admitted that they had travelled to the Czech Republic together in 2010, and that they had spent about three months there. Importantly, Jeanette gave evidence that Vratislav had a "girlfriend" who travelled with them on occasions whilst they were there. Vratislav confirmed, in answer to questions from the Bench, that his now "fiancé" had travelled with them on occasions. 102In other affidavits read in Emily's case, it was said that whilst overseas, Jeanette and Vratislav had purchased a property together. Vratislav admitted that he had purchased a property in the Czech Republic in 2010, which had cost about AUD$45,000, but that he had paid the whole of the purchase price from his own savings. The title to that property was in his sole name. He repeated, in his oral evidence, that Jeanette had made no contributions to this property. Jeanette, too, denied any interest in that property. Jeanette gave evidence that she had no desire to live in the Czech Republic, as she did not speak the language. 103There is one aspect of the evidence that was tendered that suggests some form of relationship between them that extended beyond friendship. Labels on bottled jam, which Jeanette sold at the markets, included the letters and name "V & J Hruska". 104Each immediately admitted that the initials referred to Vratislav and Jeanette respectively. Vratislav volunteered, during cross-examination, that he had suggested that they do so, since the jam that they were selling had been prepared in his home and because the proceeds of sale were disclosed in documents using an ABN number, which he also used for his own business. 105Interestingly, other than the labels, there was no other evidence that suggested that Jeanette had used Vratislav's last name. One might have thought that if she had done so because of a de facto relationship, there might have been at least one other document, or some other evidence, that revealed such usage. For example, there may have been a witness who stated that he or she knew Jeanette as "Jeanette Hruska". No such witness was called. 106Having observed each of Jeanette and Vratislav carefully during the cross-examination, I accept that they are not, and never have been, in a de facto relationship. I accept that they have been, and remain friends and that he has assisted her as such. 107The second aspect of evidence the subject of cross-examination related to whether Jeanette now owned any part of the Bonnells Bay property with Vratislav. In referring to this aspect, it is necessary to rehearse some other short facts about which I am satisfied. 108Until about 2004, Vratislav was married to Lynette. They owned the property at Bonnells Bay jointly. By undated Transfer, but one bearing a NSW Duty date stamp "08-02-2010", Vratislav and Lynette transferred their joint interest to Vratislav alone. The consideration shown on the Transfer was "Nil". 109In late 2009, Jeanette sold her property at Wellington to a third party for $285,000. Settlement of that sale occurred on 15 January 2010. 110In an undated handwritten letter, addressed to the solicitors acting for her on the sale, apparently sent, by facsimile transmission on 9 December 2009, bearing her full name and the Bonnells Bay address at the top, Jeanette stated: "... I would like the balance of the sale of the house at ... Wellington to go to Lynette Darby as I am buying her share of this house ..." 111Jeanette gave evidence that Lynette, over a period of time, had lent her money, which money she had used to renovate and repair the Wellington property. The amount lent was, in total, about $150,000. She denied that the reference to "this house" in the letter to her solicitor was a reference to the Bonnells Bay property. 112It was put to Jeanette, in cross-examination, that the amount received by Lynette was, in fact, the purchase price for her share of the Bonnells Bay property and that it had only been upon receipt of that amount that Lynette had agreed to sign the Transfer to which reference has been made. Jeanette denied this. 113Vratislav was cross-examined on the topic. He, too, denied that Jeanette had paid the amount to Lynette to purchase her interest in the Bonnells Bay property. He explained that even though, by about 2007, he had paid Lynette an amount ($250,000) sufficient to purchase her interest, there had been no need to remove Lynette's name from the title to that property. It was only after Jeanette had repaid the loan to Lynette, and when Lynette was going to purchase another property, that she then decided it would not be beneficial to have her name on title to two properties, one of which might be regarded as an investment. He said that it had been Lynette's decision to sign the Transfer at the time it was signed and registered. 114Lynette was not called as a witness by either side. Jeanette sought to tender a Statutory Declaration made by Lynette (which was marked) but Emily's counsel objected to the tender upon the basis that it was provided late and because Lynette was not available for cross-examination. In those circumstances, and because of the evidence of Jeanette and Vratislav on the topics referred to, I rejected the tender. 115During submissions, I raised with counsel for Emily what motive there would have been for Jeanette to have followed the course, in 2010, of purchasing Lynette's interest in the Bonnells Bay property without obtaining a legal interest in it. It was, initially, submitted that she had done so to improve her chances of success in a claim for a family provision order. 116I do not accept that suggested motive because the events surrounding the sale of the Wellington property by Jeanette, and the payment of the moneys to Lynette from the proceeds of sale, occurred over six months before the death of the deceased and about 12 months before the commencement of any proceedings under the Act. 117Then, Emily's counsel submitted that the course had been followed to enable Jeanette to obtain an income from Centrelink calculated at the rate for a single person, whereas, if she were shown as a co-owner of property with Vratislav, Centrelink might have considered she was in a de facto relationship and might have calculated any age pension upon that basis. 118It had not been put to Jeanette that she had purchased Lynette's interest and not required her name to be noted on the title to the Bonnells Bay property for that reason. Nor had it been put to Vratislav that he had assisted Jeanette in that fraudulent purpose. Nor was there any evidence from any representative of Centrelink that the course postulated might have occurred. 119In the circumstances, I do not accept that any such motive existed. I am satisfied that Jeanette does not, in fact, own any share of the Bonnells Bay property. 120I have, of course, borne in mind the evidence of Emily and of witnesses called on her behalf on topics on which each was not cross-examined. However, I bear in mind that Jeanette was self-represented in the proceedings. I also bear in mind that even taking the unchallenged evidence at its highest, I must still consider the evidence of each of Jeanette and Vratislav. 121In this regard, I refer to the following passages in HSH Hotels v Multiplex [2004] NSWCA 302, per Tobias JA (with whom Mason P and Hodgson JA agreed): "85 After referring (in [57]) to the fact that the Referee was acutely aware that Mr Nixon had not been cross-examined and that that fact was a "difficulty", the primary judge then cited from the judgment of Rolfe A-JA, with whom Sheller JA and Davies A-JA agreed, in M & EM Hull Pty Limited v Thompson [2001] NSWCA 359 including the following passage: '21. Prima facie if there is no cross-examination of an expert, (and indeed most witnesses), there is no basis for a Judge not to accept the unchallenged evidence. I say "prima facie" because there are circumstances in which evidence in a report may be rejected or subject to criticism or doubt. This may occur where, for example, the report is ex facie illogical or inherently inconsistent; or where it is based on an incorrect or incomplete history; or where the assumptions on which it is founded are not established. However, in the absence of some such matters, there is no rational reason to not accept unchallenged evidence.' 86 I would interpolate here a reference to the following passage from the judgment of Newton J in Bulstrade v Trimble [1970] V.R. 840 where, at 849, he said: 'I know of no case where it has been held that where evidence of a witness upon a particular matter is allowed to pass without cross-examination, but evidence of a substantial character is called by the opposite party in direct contradiction thereof, the judge or jury is required in law to accept the former evidence. And, in my view, this is plainly not the law.' 87 In my opinion there is no inconsistency between this statement of the position and that stated by Rolfe A-JA in Hull. The critical issue where there is no cross-examination of a particular witness, including an expert witness, is whether, as in the present case, there is a credible body of evidence of a substantial character in direct contradiction of the non-cross-examined evidence." 122Also see, Hamod v State of New South Wales [2011] NSWCA 375 at [336]-[339]; Van der Velde v Halloran [2011] WASCA 252 at [116]; and Taupau v HVAC Constructions (Queensland) Pty Limited [2012] NSWCA 293, at [130]. 123I have subjected the evidence of Jeanette and Vratislav to substantial scrutiny both at, and after, the hearing. I also carefully watched each whilst she and he was giving evidence. The evidence of each is in direct contradiction of the parts of the evidence of others upon which there was no cross-examination. Even so, I am prepared to accept Jeanette and Vratislav's evidence. 124I turn finally, and as a separate matter, to the allegation of moneys being taken out of the deceased's bank account whilst Jeanette was the Attorney of the deceased. Emily's counsel submitted that considering the banking records in evidence, the amounts that had been taken out of the account were, in total, $26,500. 125Jeanette gave evidence that her father and the deceased had agreed to make a gift to her of $20,000, with each contributing $10,000. There is no person who corroborates Jeanette's evidence on this topic. Thus, Jeanette asserted that there had been a gift of $20,000, whereas Emily asserted that the whole amount constituted a loan and that the deceased had not authorised Jeanette to withdraw any of the moneys from her accounts. 126It is necessary, then, to consider who bears the onus of proof. In Gray v Gray [2004] NSWCA 408, it was said by Young CJ in Eq: "14 The case raises the very awkward situation in which a Judge has to adjudicate as to whether a transaction was one of gift or is one of loan where the principal actor is dead or unavailable, there is inadequate recording of the transaction (or at least the Court is not presented with an accurate recording of the transaction), and virtually all that is before the Court is the fact of payment. 15 In Seldon v Davidson [1968] 2 All ER 755, the English Court of Appeal held that where it is proved that money has been paid to the defendant and the defendant alleges that the payment is a gift, the burden of proof is on the defendant, because in the absence of the presumption of advancement applying, or that the money had been paid in settlement of an existing debt, the admitted payments imported a prima facie obligation to repay. 16 However, in Joaquin v Hall [1976] VR 788, Jenkinson J, when a Justice of the Supreme Court of Victoria, held that there is no presumption of an obligation to repay from the fact of payment to a stranger and that the burden of proof in such circumstances lay upon the plaintiff to establish that the money was lent and not given. His Honour held that the High Court decision in Heydon v Perpetual Executors, Trustees & Agency Co (WA) Ltd (1930) 45 CLR 111 was to the contrary of Seldon v Davidson, thus that decision should not be followed. This view has subsequently been put forward in Australia on many subsequent occasions, the most recent of which appears to be Schmierer v Taouk (2004) 207 ALR 301, 313. In that case at [59] White J listed the authorities to which can be added Thiess v TCN Channel 9 Pty Ltd (No 5) [1994] 1 Qd R 156, 177, where the Queensland Full Court, which included McPherson SPJ as his Honour then was, spoke of the legal presumption of gift that is said to arise in a case of this type which falls to be rebutted by evidence from the plaintiff. 17 Accordingly, the onus is on those claiming the set-off of Robert's debts to prove that the amounts are really debts." 127Thus, the onus of proof is on Emily to establish that the amount withdrawn should be treated as a loan. 128In the present case, there is, of course, the fact of payment out of the deceased's accounts of various sums. There is also the fact that the deceased revoked the Power of Attorney in 2007 shortly after Jeanette left the Forestville property. However, there is little else other than the assertions of each party. 129Jeanette refers to a conversation with her parents in 2005. Importantly, she asked them if she could "borrow $20,000" in order to pay out her third husband "for me to take over the Wellington property". She says that her father said that each would give her $10,000 but "did not mention if, or when, it had to be paid back". 130Jeanette gives evidence about having told Emily about this conversation shortly after it occurred, but Emily denies having any knowledge of it. 131In circumstances where Jeanette acknowledges that she asked to borrow the money, and where she admits that neither of her parents said that it did not have to be repaid, I consider that the amount should be treated as a loan, of at least $10,000 to Jeanette, by the deceased. 132I shall not require it to be repaid to the estate, but shall treat the whole amount of $20,000 as provision made, during the deceased's lifetime, for Jeanette. (I have included the whole amount of $20,000, because that amount was withdrawn out of the deceased's account, into which about $15,000 had been deposited from the estate of her husband.) 133As to the balance of the amount claimed, I accept Jeanette's evidence that the deceased had expenses of her own that were paid out of the deceased's bank accounts. I do not find that Emily has established that the balance is a loan made by the deceased to Jeanette.

The Statutory Scheme - The Act 134Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out some of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions. 135The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008. A new Chapter 3 was added to the Act, which deals 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, to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary. 136The 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, one category is "a child of the deceased" (s 57(1)(c) of the Act). Clearly, that language is expressive of the person's status, as well as his, or her, relationship to the deceased. There is no age limit placed on a child making an application. 137The court, if satisfied of the applicant's eligibility, must, in this case, then determine whether adequate provision for the proper maintenance, education or advancement in life of that applicant has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is only if the court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). In this way, the court carries out a two-stage process. It may take into consideration the matters referred to in s 60(2) of the Act at both stages. (The operation of the intestacy rules is irrelevant to this case.) 138Other than by reference to the provision made in the will of the deceased, or, if relevant, by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) of the Act leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for each 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 in the deceased's Will, or on intestacy, or both, on the one hand, and to the requirement for maintenance, education and advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant. 139It was said in the Court of Appeal (per Basten JA) in Foley v Ellis [2008] NSWCA 288, at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment". 140Under s 59(1)(c) of the Act, 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. Under s 59(2), the Court has regard to the facts known to the court at the time the order is made. 141"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 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". 142Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement": "'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education." 143In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), at [18], stated: "'Proper maintenance' is not limited to the bare sustenance of a claimant [cf Gorton v Parkes (sic) [1989] 17 NSWLR 1], but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility." 144In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77 King CJ said: "The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang (1960) 104 CLR 124, per Dixon CJ at 128." 145Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16: "Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses 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 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. (at 541) In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274... In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said: 'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.' The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that: 'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'" 146In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J at [114] noted: "In the context of the Act the expression 'advancement in life' is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase 'advancement in life' has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the 'maintenance and support' of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support." 147In 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)." 148The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, 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], [77]. 149These 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." 150Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 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 if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent." 151In Goodman v Windeyer (1980) 144 CLR 490, Gibbs J said at 502: "[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards." 152In Vigolo v Bostin, at 228, Callinan and Heydon JJ said: "[T]he use of the word 'proper' ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future." 153Santow J pointed out in Gardiner v Gardiner (NSWSC, 28 May 1998, unreported), that "adequate" and "proper" are independent concepts. He said 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 ..." 154The first stage of the process 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 and advancement in life of a particular applicant. 155Whether the applicant has a 'need' or 'needs' is a relevant factor at the first stage of the enquiry. It is an elusive 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: Collins v McGain [2003] NSWCA 190 (Tobias JA, with whom Beazley and Hodgson JJA agreed). 156Tobias JA said: "42. Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focused. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies. ... 47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is 'proper maintenance etc' of the eligible person. It is 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." 157In 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]." 158In the event that the court is satisfied that the power to make an order is enlivened (ie in this case it is satisfied that the applicant is an eligible person, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), then, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made. 159The 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. 160Section 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." 161It can be seen that s 60(2) enumerates 15 specific matters which the Court may take into account, together with "any other matter the Court considers relevant", for the purposes of determining eligibility, whether to make a family provision order, and, if so, the nature of any such order. 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. 162Considering 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. For example, when considering eligibility under sub-s (1)(a), many of the matters in sub-s (2) will be largely, if not wholly, irrelevant. 163There is no definition in the Act of "financial resources" (which term is referred to in s 60(2)(d)). However, there is a definition of that term in s 3 of the Property (Relationships) Act 1984, which I consider helpful: "'financial resources' ... includes: (a) a prospective claim or entitlement in respect of a scheme, fund or arrangement under which superannuation, retirement or similar benefits are provided, (b) property which, pursuant to the provisions of a discretionary trust, may become vested in or used or applied in or towards the purposes of the parties ..., (c) property, the alienation or disposition of which is wholly or partly under the control of the parties to the relationship or either of them and which is lawfully capable of being used or applied by or on behalf of the parties to the relationship or either of them in or towards their or his or her own purposes, and (d) any other valuable benefit." 164Of course, sub-s (2)(d) refers also to "earning capacity", which means no more than the capacity to find employment to earn or derive income. 165Furthermore, consideration of some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and of other eligible persons as well as of the beneficiaries, whilst others do not. Importantly, also, many of the matters in sub-s (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1). 166Leaving 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. 167This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the first stage. Happily, I am not alone in reaching this conclusion which is supported by the following comments made in Singer v Berghouse, at 209-210: "... The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant." 168And by the comments of Callinan and Heydon JJ in Vigolo v Bostin, at 230-231: "We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors." 169Section 61 of the Act permits the court to disregard the interests of any other person by, or in respect of whom, an application for a family provision order may be made (other than a beneficiary of the deceased person's estate), but who has not made an application. However, the court may disregard any such interests only if: (a) notice of the application, and of the court's power to disregard the interests, is served on the person concerned, in the manner and form prescribed by the regulations or rules of court, or (b) the court determines that service of any such notice is unnecessary, unreasonable or impracticable in the circumstances of the case. 170Section 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. 171The order for provision out of the estate of a deceased person 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). 172The order may be made, relevantly, in this case, in relation to the estate of the deceased. As the deceased died leaving a Will, her estate includes all property that would, on a grant of probate of the Will, vest in the executor of the Will (s 63 of the Act). 173Any family provision order under the Act will take effect, unless the court otherwise orders, as if the provision was made in a codicil to the will of the deceased, or in the case of intestacy, as in a will of the deceased (s 72(1) of the Act). (Intestacy is irrelevant in these proceedings.) 174Section 66 of the Act sets out the consequential and ancillary orders that may be made. 175Section 99 of the Act provides that the Court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the Court thinks fit.

Other Applicable Legal Principles - Substantive Application 176Accepting 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. 177Bryson 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. The Court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. 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. 178In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the Court to be vigilant in guarding "against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant". Freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the court": Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 19. 179In Stott v Cook (1960) 33 ALJR 447, Taylor J, although dissenting in his determination of the case, observed, at 453-4, that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged." 180Yet, 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 (NSWSC, Young J, 17 May 1996, unreported); Vigolo v Bostin at 199 and 204; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. 181In all cases under the Act, what is adequate and proper provision is necessarily fact specific. 182The 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. 183Where the Court is satisfied that provision ought to be made, then it is no answer to a claim for provision under the Act that to make an order would be to defeat the intentions of the deceased identified in the Will. The Act requires, in such circumstances, the deceased's intention in the Will to be displaced: Kembrey v Cuskelly [2008] NSWSC 262, per White J, at [45]. 184All 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]. 185What 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 widow. 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." (Omitting citations) 186In relation to a claim by an adult child, the following principles are useful to remember: (a) The relationship between parent and child changes when the child leaves home. 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 children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801. (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) 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) [1981] 2 NSWLR 532 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; and Hawkins v Prestage (1989) 1 WAR 37, per Nicholson J at 45. (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 (28 August 2003) at [181], [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, is 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 [2009] WASC 164, 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 requires that "adequate provision" not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not 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 an applicant's case. 187In Blore v Lang (1960) 104 CLR 124, Fullagar and Menzies JJ said, at 135: "The ... legislation [is] for remedying, within such limits as a wide discretion would set, breaches of a testator's moral duty to make adequate provision for the proper maintenance of his family - not for the making of ... a fair distribution of ... [the] estate ... Equality is not something to be achieved by the application of the Act, although in some cases equality may set a limit to the order to be made - for instance, where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same." 188I make clear that I do not intend what I have described as "applicable legal principles" to be elevated into rules of law. Nor do I wish to suggest that the jurisdiction should be unduly confined or the discretion at the second stage to be constrained by statements of principle found in dicta in other decisions. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind.

Additional Facts 189Next, I set out additional facts that I am satisfied are either not in dispute, or that have been established to my satisfaction by the evidence. I do so by reference to the matters in s 60(2) of the Act to which I may have regard. (a) any family, or other, relationship between the applicant and the deceased person, including the nature and duration of the relationship 190Jeanette is a child of the deceased. The Plaintiff lived with her parents until when she was 20 years of age, when she married, Kenneth Banks. 191She says that throughout all of her adult life she continued to maintain a close relationship with both of her parents. She spent most Christmases with them. She says that she has always loved cooking and was usually summonsed to the kitchen to help prepare plum puddings and a roast for lunch. She said she would usually see her parents on both Mother's Day and Father's Day or, if she was unable to attend, she would make sure she spoke with them on the day. 192She admits that there was a period between 1998 and 2005 when she and Desmond lived in Wellington, during which time she did not see the deceased as often as she wished. This was not caused by any difficulties between mother and daughter but because of what she describes as "very controlling behaviour" by her husband. She also says that it was a five to six hour drive from Wellington to Forestville. However, even during this period, she spoke with the deceased by telephone. 193She says that between 2005 and early 2007, she returned to live with the deceased who accepted her and provided assistance to her when she was in the throes of her marriage difficulties. 194Emily does not dispute the duration of Jeanette's relationship with the deceased, but says that Jeanette exaggerated the amount of contact that she had with the deceased. As Emily was living in the Forestville home with the deceased, I tend to think her evidence is more accurate on this topic. (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 195There is no definition of the "obligations" or "responsibilities" to which the sub-section refers in the Act. One might conclude, however, that what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities. 196Leaving 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 any of her children, imposed upon her by statute or common law. However, a moral obligation or responsibility, to make adequate provision for the proper maintenance or advancement in life is recognised in the case of a child of the deceased. 197The fact that an applicant was financially independent for many years before the deceased's death is a relevant consideration in determining the extent of any obligation or responsibility owed. 198Emily lived with the deceased in her home until the deceased moved into a nursing home in about August 2008. (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 199I have dealt with these matters earlier in these reasons. The value of the estate that remains is not very large. (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 200Annexed to Jeanette's most recent affidavit is an Income Statement from Centrelink that stated her entitlements and payments to be as follows: Payment Type Amount Date Paid Date of Grant Age Pension $689 2 Feb 2012 15 Apr 1999 Pension supplement $ 59 2 Feb 2012 15 Apr 1999 Gov Housing Concession $ 60

201She says that she does not receive, and has not ever received, the government housing concession. 202She does not disclose her income earned working casually at the markets. However, in cross-examination, she admitted that she earns about $50 to $100 per week, from two markets, after paying rent and fuel. She last worked at the markets about three weeks ago. She says that this year, working at the markets has been sporadic. (Emily suggests that the amount she earns is much more, and as much as about $50,000 per year.) 203Jeanette admits that in the past, Vratislav assisted her in that he bought the bottles and the ingredients for the jams and that they share the proceeds of sale. 204It is impossible to reach a concluded view about how much Jeanette earns, since the business is a cash business and no records have been produced. It is clear that there is some income from this business. I accept Jeanette's evidence that it is not very large. 205Jeanette's living expenses are estimated to be about $622 per fortnight. That amount includes expenses for food, board, medications, petrol, car registration, car maintenance, insurance, personal items, electricity, repayment of credit card, and entertainment. 206She states her assets and liabilities to be as follows: Assets (a) 1997 Nissan Pulsar: $3,000 (b) Commonwealth Bank account: $ 2 (c) Personal effects: $ 100 Total: $3,102

Liabilities (a) Credit card: $ 800

207In relation to her "needs", she states that she would like to be in a position to purchase a unit in an over 55's retirement complex so that she can avoid the fear of becoming homeless. She attaches two copies of brochures for suitable listings and notes that she has been advised the strata fees for them would be $740 per quarter. 208She would also like to purchase a new car as her current car is approximately 15 years old and is becoming old and tired and will shortly need replacing. She would prefer to purchase a van as it would be easier for her to transport her stock, tables and other equipment to the markets. She says that she needs to continue selling products at the markets as it generates an income for her to supplement her government aged benefits. 209I find that Jeanette has some earning capacity, but because of her age and medical condition (as to which, see later), I do not think it is a significant earning capacity or one likely to continue indefinitely. 210Emily's daughters assisted with the setting up of an internet-based business called "Australian Native T-Shirts", which is conducted from the Forestville property. Various family members earn an income from this business. 211Emily draws a weekly wage of $300 and the profit from the business is treated as drawings to her. Her estimated taxable income in the 2011 tax year was about $34,284. The tax payable in the same financial year was estimated to be $1,845. 212Whilst she and her husband do not own any real estate, she has about $62,277 on deposit in the bank. She also has a car, which is worth about $3,000. 213She says that her daughters do most of the work in the business. 214Leslie receives an age pension of $47 per fortnight, an income of $215 per fortnight from the internet business and $170 per month by way of a New Zealand pension. He has a current Centrelink debt of about $16,000. He has about $350 in the bank. (e) if the applicant is cohabiting with another person - the financial circumstances of the other person 215Jeanette is currently single. She lives with her son who is financially independent of her. No details of his financial circumstances have been provided. (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 216Jeanette says that her health is not good. She suffers from a range of health complaints, including cervical spondylosis, non-insulin dependent diabetes, osteoarthritis, hyperlipidaemia (abnormally elevated levels of any or all lipids and/or lipoproteins in the blood often called high cholesterol), hypertension and circulatory problems affecting her lower legs. She often experiences severe swelling in her legs, which affects her ability to walk. She has had heart surgery in the past and asserts that she may require further surgical intervention. She is unsure of the precise nature and cost of any such surgery. She takes a range of medication, including Betaloc, Crestor, Aspirin, Diabex XR, Mobic, Panamax and Paroven Forte. 217Emily suffers from acute emphysema and was recently hospitalised. She has been referred to Royal North Shore Hospital for rehabilitation and to undertake an exercise program, which she is currently on a waiting list to undertake with the hope that her breathing difficulties will stabilise. She does not have private health cover. She has been prescribed oxygen eight hours a day. She uses this at night. She had the use of an oxygen machine for a period of one month at no cost. She will need to continue using the machine indefinitely. She is not aware of the future costs of using the oxygen machine. 218In addition, Emily suffers from hypertension, high blood sugar and breathlessness. She states that as a result of her medical condition she has some difficulty working, although, with the assistance of other family members, she is still able to conduct her online business. (g) the age of the applicant when the application is being considered 219Jeanette was born in April 1938 and is currently aged 74 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 220Jeanette asserts that she assisted the deceased in obtaining the War Widow's pension that was about $200 per week higher than her Centrelink pension. The pension, once granted, also entitled the deceased to medical benefits. As well, Jeanette was able to obtain a walker and a wheelchair for the deceased. 221During the period that she returned to live in the Forestville property, she assisted the deceased by doing all of the cooking and some of the cleaning. 222Counsel for Emily described Jeanette's contribution as a "negative contribution" because of the amounts taken from the deceased's bank account. I do not accept this description. 223It is not necessary to detail all of the assistance, financial and otherwise, provided by Emily and Leslie during the many years that they lived in the Forestville property with the deceased. I accept that they made a significant contribution, generally, to the conservation of the property and to the welfare of the deceased. However, I must also bear in mind that the amounts that they paid towards expenses (said to total about $25,500) were probably less than they would have had to pay if they had rented their own home. (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 224Jeanette receives $20,000 under the Will of the deceased. I have earlier referred to the amount of $20,000 that I find she received during the lifetime of the deceased. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person 225No will, other than the deceased's Will the subject of the grant of Probate, has been produced. Jeanette gives evidence of the deceased having made a holograph will shortly after the death of her husband in which she divided her estate equally between her five children. She gives evidence that the will form was purchased from the Forestville newsagency and that the staff at the Forestville Community Centre assisted the deceased to fill it out. 226Emily denies that the deceased made such a will. 227Since no document has been produced, I am unable to make a specific finding that such a will ever existed. (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 228The deceased did not maintain Jeanette, before her death, other than during her childhood. She did, of course, allow Jeanette to live in the Forestville property during the period after Jeanette separated from Desmond. (l) whether any other person is liable to support the applicant 229There is no person, other than, perhaps, the Commonwealth government, with a liability to support Jeanette. However, she says that, if able to, she and her son might buy a property together in which they both can live. (m) the character and conduct of the applicant before and after the date of the death of the deceased person 230An 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. 231I have dealt with the relationship of Jeanette and the deceased earlier in these reasons. (n) the conduct of any other person before and after the date of the death of the deceased person 232It is necessary to consider Emily's conduct also. I am satisfied that she was a loving and dutiful child to the deceased. There is no conduct after the death of the deceased, which is relevant. I also accept that whilst they were living in the Forestville property, Leslie assisted as well and the deceased appointed him as her Attorney in about May 2007. (o) any relevant Aboriginal or Torres Strait Islander customary law 233This is not relevant in the present case. (p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered 234I have earlier identified the persons who live in the Forestville property. Emily states that Craig Connors is not currently working and is receiving Workers Compensation benefits that he uses to cover the children's clothing, credit card payments, mobile phone bills, and medical expenses for Donna, the youngest two children and himself. Both Craig and Donna contribute $80 each week for household expenses. None of Donna's children contribute to the household expenses as neither Anastasia nor Benjamin have full time employment and the others are still young. 235Emily also says that Samantha contributes $50 per week and the Defendant, herself, contributes $40 per week for her and her husband to cover the household outgoings, being council and water rates, house insurance, the main home telephone line, electricity and urgent repairs. The money is given to Leslie in cash and he retains it until an account comes in when he usually pays the account with cash at the post office. 236The monthly food bill is approximately $2,000 per month. The food is contributed by Emily and Leslie, Samantha, and Donna and Craig on an ad hoc basis. 237I also note that Emily, Leslie, and other family members have had the benefit of accommodation in the Forestville property for many years. Since the deceased moved into the nursing home in 2008, the accommodation was without the deceased living there.

Determination 238Claims for a family provision order present particular difficulties where the actual estate is not very large and where there are several competing claims upon the bounty of the deceased. Any provision made by the Court in favour of an applicant must, in this class of case, be made at the expense of the beneficiary who has had to defend the claims and who is the chosen object of the deceased's bounty. 239Being 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. In this case, there is no dispute that the Plaintiff, as a child of the deceased, is an eligible person within the meaning of s 57(1)(c) of the Act. 240There is also no dispute that Jeanette's proceedings were commenced within the time prescribed by the Act. 241Then, the first question for determination is whether, at the time when the court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the Plaintiff has not been made by the Will of the deceased. 242Counsel for Emily did not accept that Jeanette has "need". As discussed above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence. Counsel submitted, even though provision of $20,000 was made for Jeanette in the Will of the deceased, that the only threshold has not been satisfied. 243In deciding whether the jurisdictional stage is satisfied, I must not only consider the provision made for Jeanette in the Will of the deceased. I must consider, also, such matters as the totality of her relationship with the deceased, the age and capacities of Emily, the other beneficiary, and the claim of each on the bounty of the deceased. 244All the matters I must consider, lead me to find that there was a failure, on the part of the deceased, to make adequate provision for the proper maintenance or advancement in life of Jeanette. She is single; she owns no property; she has no capital and she lives with her son. 245Having found that she is an eligible person and that the provision made for her in the Will of the deceased is inadequate, I turn to the second stage and next consider the nature and quantum of any provision that should be made. 246The Plaintiff submitted that her needs are for a sum that will enable her to purchase a car ($40,000) as well as to purchase an unencumbered home in a retirement village (about $180,000). 247Emily's counsel submitted that if I found that the jurisdictional threshold had been established, and that a family provision order should be made, it should be calculated upon the basis that she should receive an amount to purchase a car ($15,000), an amount to assist with the deposit for a home ($18,000) and a capital sum which should be no more than the legacy provided for in the Will of the deceased. He submits therefore, that no more than additional provision of about $33,000, or $53,000 in lieu of the provision made in the Will, should be ordered. 248In my view, having regard to all of the matters that I am required to consider, including amongst other things, the size and nature of the deceased's estate, the totality of the relationship between Jeanette and the deceased, as well as the relationship between the deceased and Emily, who has a strong legitimate claim upon her bounty, Jeanette should receive a lump sum, in lieu of the provision made for her in the Will of the deceased, of $75,000 which will provide her with some capital. She should not have to repay any part of $20,000 that I have found was a loan from the estate. I so order. 249The provision is to be made out of the residuary estate. 250This will leave Emily, after the payment of costs, with a lump sum of about $374,180 if the Forestville property is sold, or $399,200 if it is not. 251No interest is to be paid on the lump sum if it is paid within 45 days of the making of orders; otherwise, interest calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment. 252I order that the costs of the Plaintiff, calculated on the ordinary basis, and the costs of the Defendant, calculated on the indemnity basis, should be paid out of the estate of the deceased. 253I order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005.

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 September 2012