Beech v Squire

The facts

1. Richard was born in the Brecon Beacons, Wales on 10 November 1950.
2. He served for a period in the United Kingdom military service. He also had a career in information technology and was last employed as a software test manager. Richard was a motor vehicle enthusiast and owned two Subaru cars, one of which he had in storage in London.
3. Richard had three children with his first wife Colleen: Claire, Paul and Catherine.
4. In 1994, Richard and Colleen divorced. They remained friendly.
5. In about 1995 or 1996, Claire says that Richard told her that he wanted his ashes to be returned to the Brecon Beacons.
6. In 1998, Corinne married Stephen Tropiano. She and Stephen owned and operated restaurant businesses for about 15 years initially in Newcastle and later Kurrajong Heights. They had two children.
7. For a period from about 2000 to 2004, Richard lived in Seattle, USA. Claire assisted in managing Richard's property while he was overseas.
8. During the early 2000s, Corinne and Stephen divorced. They sold their two jointly held properties in Kurrajong Heights (including the restaurant business) and from the divorce settlement Corinne received approximately $140,000. Corinne lived alone and raised their two children but continued to be friendly with Stephen.
9. In 2004, Corrine purchased another property in Kurrajong Heights for about $232,000 subject to a mortgage of about $100,000 (the "Kurrajong Heights property").
10. In about August 2004, Richard and Corinne met through an internet dating website. Richard had been in other relationships since his divorce from Colleen. At that time, Corinne was residing at the Kurrajong Heights property.
11. In October 2005, Richard and Corinne were married. Richard also befriended Stephen.
12. In December 2005, Corinne and her two children moved into Richard's residence where Claire and Paul were also residing. At various points before and after they were married, Corinne assisted Richard with his personal debts and contributed to household expenses. Corinne generally handled the couple's joint finances.
13. On 21 March 2007, Richard made the Will, leaving the entire estate to Corinne.
14. In about 2007 or 2008, Richard purchased the Property. Corinne did not contribute to the purchase price. However, the couple were deriving rent from the Kurrajong Heights property.
15. Claire married Danial Beech on 19 April 2008. They have three children: Carter (born 2011), Eleanor (born 2012), and Emmett (born 2014).
16. From early 2014 until about December 2014, Paul was living with Richard and Corinne and Sebastian (Corinne's son with Stephen) in the Property. Corinne's daughter Gabrielle had previously moved out.
17. In about April 2014, Corinne gave Gabrielle $120,000 to buy an apartment. Corinne's evidence was that the only documentation noting this arrangement were documents Corinne was made to sign by the bank confirming the status of the money as a gift, but these documents were not in evidence. Corinne gave evidence that she does not expect that amount to be repaid.
18. In about September 2014, Corinne received about $210,000 from the sale of the Kurrajong Heights property.
19. During October 2014, Richard quit his employment.
20. In early 2015, Richard proposed moving to Bathurst to Corinne. She refused.
21. Shortly thereafter, Richard and Corinne separated (see paragraph [36] below). They took some steps to effect the separation including dividing their jointly held assets.
22. On 20 March 2015, Richard and Corinne sold the Property for $960,000 with settlement taking place on 7 May 2015, a few weeks after Richard died. The Amount, being Richard's share of the net proceeds of sale ($249,779) is held on trust pending the resolution of this dispute.
23. On or around 10 April 2015, Richard moved into Claire and Danial's home in Limekilns. Richard drove to Limekilns in his 2003 Subaru. This car has been the subject of Local Court proceedings. The parties agree, and the Court finds, that at all times, the 2003 Subaru was an asset of the estate. It has an agreed value of $5000. Pursuant to an undertaking in the Local Court proceedings, the 2003 Subaru has been restored to the estate. On 20 August 2017 it was towed from Limekilns to Sydney where it was serviced and re-registered at the estate's expense.
24. Richard's belonging were moved to Limekilns on 23 April 2015. Claire and Danial's family business paid for this expense.
25. On about 27 or 28 April, Richard came to Sydney to sign the transfer for the Property. He stayed with Corinne at Stephen's residence. Rod Storie, the defendant's solicitor, attended the residence to organise the signing of the transfer of the Property.
26. Richard died unexpectedly on 29 or 30 April 2015.
27. Richard's funeral was held at a crematorium in Bathurst. Claire paid for the funeral in the sum of $7,227. It is agreed that this is an estate liability for which Claire will be reimbursed in full.
28. On or around 21 December 2015 (pursuant to the alleged request by Richard to Claire in 1995 or 1996), Claire transported Richard's ashes to the Brecon Beacons. She did this at her own expense at a cost of $11,712. The parties remain in dispute in the Local Court proceedings referred to in paragraph [29] above as to whether the estate is liable to Claire for that expense. Given the estate is insolvent, it seems pointless for that dispute to continue, but that is a matter for the parties. One of the results of a short hearing before me in October 2017 is that the parties were content to leave the resolution of that dispute to the Local Court provided that I noted, as I do, the potential liability of the estate to Claire for the claim.
29. Since Richard's death, Corinne was living for a period with her daughter in Lane Cove paying monthly rent of about $1000. As at October 2017, she was residing in rented accommodation on Dangar Island and working as a receptionist.

Separation

1. An area of much contention between the parties was whether, shortly before his death, Richard and Corrine had separated with a view to dissolving their marriage. The plaintiffs submitted that Richard and Corrine had separated and that the Court should take their separation into consideration in determining the adequacy of provision under the Will. The defendant's position was that, even if they had separated, this did not alter Corinne's eligibility under the Act or her moral claim upon Richard and that Richard's testamentary intention as expressed in the Will should not be disrupted.
2. It was not disputed that for about two weeks before his death, Richard had been living with Claire and her family in Limekilns.
3. Both Claire and Paul gave evidence that Richard and Corinne had separated, that Richard believed the separation to be permanent with no chance of reconciliation, and that it was Richard's intention to alter his will to exclude Corinne and to leave his estate equally to his children.
4. For the reasons which follow I find that Richard and Corinne had permanently separated in the two or three weeks before Richard's death.

Claire's evidence

1. In her affidavit of 19 April 2016, Claire deposed that "After my father's separation from Corinne, he decided to come and live with us as he needed a home." The tax invoice from the labour hire company who Claire states moved Richard's belongings to Limekilns on 23 April 2015 was annexed to her affidavit.
2. There were several transcribed text messages in her affidavit evidence which had been extracted from Richard's mobile phone and which documented text message conversations between him and Corinne. While no screenshots were provided of the messages in context, it was not suggested that the Court could not rely on the transcriptions.
3. These included: "58. Before my Dad's passing, the following text messages occurred between my father and Corinne on 23 April 2015: Corinne: "I wish things could be different but I have to move and I am sorry I hurt you" Dad: "I just wanted to grow old together" Corinne: "Richard you are a fine man and you will find your soul mate" Dad: "I thought I had in you" Corinne: "I am sincerely sorry" … 77 On 28 April 2015, my father texted Corinne's mother Noelle McPhee and she responded as follows: Dad: "Hi Noelle, I just wanted to let you (know) how I feel. I am heartbroken and just don't understand what it is that she wants to move onto. If it was another man then I could understand. But she says it's not. I am completely lost as I love her so very much.""
4. Claire also gave evidence of conversations she had with Richard regarding Corinne: "59 On or about the date of his death, I had a conversation with my Dad as follows: Me: "Do you think there is any chance of sorting things out with Corinne?" Dad: "There's no chance of us getting back together, Corinne has taken off her wedding bands and engagement ring and was wearing them on the other hand. I am told this is what women do when they don't want to look married, but still want to wear the jewellery." 60. Corrine returned a gold and ruby ring that my paternal grandmother had given to her when she married my father with the purpose to pass the ring down through the family. … Dad and I had the following conversation: Me: "When Corinne gave the ring back to you, you should have asked her for her wedding bands and engagement rings back as the engagement ring alone had been valued at approximately $10,000?" Dad: "We decided that Corinne would keep the rings and I will keep the Subaru." "
5. Further transcribed text messages, read: "On 23 April 2015 Corinne: "What a shock. You still have the Xmas tree and four boxes of books in the garage. Your jacked (sic) is on the back of the chair. Your tool box in the cupboard your yellow pot where the keys are stored. The picture Clair gave you of the grandchildren." "I will leave the Subaru in the garage. I will catch the bus to work tomorrow and do you have house keys" Dad: "Thank you. I have house keys. I'll leave them on the kitchen counter." Corinne: "I was just making sure that you could pick up the car and the house keys are still our house until settlement. Thank you and are you ok" Dad: "No I'm very sad""
6. On 19 April 2015 Claire sent an email to Richard headed "to do" in which she provides a list of administrative items for Richard to attend to in what appears to be the separation process: "Subject: To do Open a bank account in your name. Call Rod Storey [Richard's solicitor] Cancel your joint health insurance and get some set up in your name. Check bank statements for what direct debits are coming out and cancel stuff where necessary. Change will Life insurance changed Next of kin stuff Hertz rentals at Richmond book in truck probably best to get the one with the tail gate, they have one that drives on a regular car licence and it was only a few hundred bucks. Can we try and make it Saturday if you want Dan and I to help? He is too busy weekdays. Paul said he will be moving his stuff this weekend too. That's all I can think of right now, I'll call you tomorrow xxxx Clair Beech Beech Plumbing"
7. The email indicates that Claire believed Richard and Corinne to be separated or in the process of separating.
8. Claire also recalled conversations she had with Richard where he said: "I can assist you financially with the business in return for letting me live with you. With the separation from Corinne I am no longer in a position to purchase my own home without a mortgage."

Paul's evidence

1. In his affidavit of 13 April 2016, Paul gave the following evidence: "10. On or about 27 April 2015, my father telephoned me and I noticed straight away that he was extremely upset and distraught, this was not like him at all. We had a conversation with words to the following effect: Dad: "There is definitely no chance of reconciliation with Corinne, I've seen photos of her out on a date with someone from her work on facebook, but she told me she was somewhere else at the time. " Me: "Are you sure, perhaps you are mistaken?" Dad: "Definitely not, we'll never reconcile, it's gone too far. I am meeting with a solicitor to make arrangements to divide the funds from the sale of the apartment into separate accounts and to make a new will." I'm happy to live with Claire and spend time with the grandchildren but I am thinking perhaps I might move out to Bathurst with the sale proceeds of the apartment, but it's not financially viable to retire to Bathurst, could I come and live with you and Rachael while I look for work in Sydney? Me: "That's fine Dad, whatever you need. Dad: "I could assist you with the cost of living by way of paying rent or I would really love to help you out with a deposit for a home." "
2. He later deposed: "41. Dad had on many occasions stated that he would always split his estate equally among his children, he would often say with words to the following effect: Dad: "When I die, I want you and your sisters to share my estate equally."

Corinne's evidence

1. In her affidavit of 8 June 2016, Corinne firmly denied any separation and deposed: "… At the time of Richard's death we were not separated. Richard had asked me to move to Bathurst with him, and he had taken some of our household contents there. I did not wish to move there and hoped that Richard would move back to Sydney to live with me. … If I moved to Bathurst, Sebastian would have had to move with me, which would have severely disrupted his personal life, his employment and his studies. At that time my father was also very ill. … I did not wish to move further away from him … On 27 and 28 April 2015 Richard and I stayed with my former husband Stephen Tropiano at his home, as we no longer had a bed in the Unit [the Baulkham Hills property]. On 28 April 2015 Richard drove me to and from my place of work. The next day he drove to Bathurst, and he died there either that night or the next day."
2. This explanation was not maintained under cross-examination and I do not accept her affidavit evidence on this point. The following exchange occurred during Corrine's cross-examination : "Q. You were no doubt told before you swore or affirmed your various affidavits about the importance of telling the truth in them? A. Mm-hmm. Q. And you were aware that in swearing those affidavits the contents that you were swearing under oath were true and correct, correct? A. Correct. Q. You knew that those affidavits were going to be used to assist your case as it is today before his Honour? A. Yeah. Q. Yes? Could you just speak up, please. It's sometimes hard to hear. A. Yes. Q. Now, following on from your answer of a moment ago, do I take it that it is your evidence still that there was no separation or no ending of the relationship between yourself and Richard before he died? A. It was a threat to get him to do what I wanted to do. I didn't want to go to Bathurst and then he said he'd come with me, so. Q. Would you just answer my question? HIS HONOUR Q. And then he said what, sorry? A. That he would - he would - he didn't like Bathurst because the streets were too wide, so he would go where I wanted to go but that took, you know, a bit of pushing. MARTIN Q. That is evidence which is not contained in any of your affidavits, is it? A. No. Q. That is a complete fabrication that you have just created in the witness box, is it not? A. That is - that's how I felt. Q. That is not something that Richard told you, was it? A. He did but that he would come with me but I didn't put it in the affidavit. I didn't think about it. Q. You didn't think about it? A. To put it in the affidavit. Q. Let's just be clear about this. Your position is, is it, that despite the fact you didn't give any such evidence in your affidavits that it was in fact you that wished to move to Bathurst and Richard was the reluctant one? A. No, no. … Q. But you maintain, just for clarity, that there was no ending of the relationship before he passed away? A. No. It was just me trying to get him to do what I wanted him to do. Q. So you were manipulating him, were you? A. I was getting him to - what would you say - just get back on his feet again, to stay with his grandchildren, he couldn't drink and smoke as much, he started to-- Q. You were trying to get him to do what you wished to do. Is that your evidence? A. I was trying to persuade him, yeah. Q. That does not appear anywhere in your affidavits, of the six or so affidavits that you've sworn to date, does it? A. I think I recall saying that I persuaded him. I can't remember what it was. I'll find it. Q. That entire reasoning process that you have just described to me is made up, isn't it? A. No, not - not how I felt."
3. In cross-examination, Corrine agreed that in the weeks before Richard died she had "engaged in a fairly deliberate and accurate splitting up of all of the jointly held assets". One of the transcribed text messages in Claire's affidavit of 19 April 2017 indicates and confirms the steps Corinne was taking: "On 26 April 2015 Corinne: "Hi Richard I need the Etag so I can post it back and get the deposit and unused money deposited into the Amex so when we settle we can half the bill. Also health insurance is covered until 1st June and you need to cancel tpg. The details for both are in the filing cabinet and I also need the tax folder and Gabrielle's and Sebastian's folders. Tpg was direct debited 7th April so you will have to get it turned off Monday the 4th so they can deposit to the account before we settle every thing. Also the car insurance for the Subaru with youi will be cancelled when I find out when the next payment is due, after settlement date. Your Vodafone for iPad will need to be cancelled by you and the last direct debit was 8 April."
4. She stated that "It was just a - a threat just to get my way" and that she "had no intention of - of getting a divorce or separation." She said: "A. I just wanted him - he wasn't eating too well and taking his medication and he wasn't trying and he'd already had two heart attacks so this was my push and - and he started looking after himself but I mean, he was taking five lots of pills and not even taking them and drinking and smoking and it wasn't good for him so this probably wasn't the right way but it worked - well, it didn't work because it was too late."
5. The systematic division of their jointly held assets and possessions again points to the conclusion that they had separated. It also demonstrates to me that the separation was viewed by both Corinne and Richard to be permanent.
6. I do not accept Corinne's evidence that her conduct was an attempt to compel Richard to look after himself and that she did not intend for the separation to be permanent. This evidence was not in any of her affidavits and it is inconsistent with, for example, the contemporaneous messages to which I have referred.
7. In concluding that Richard and Corinne had separated, I have not overlooked the evidence of Mr Rod Storie, the solicitor handling the sale of the Property. In his affidavit of 8 November 2016, he deposes that he was not informed by either Richard or Corinne that they had separated or intended to separate, that the proceeds of sale were to be handled in a particular way or that they were intending on starting family law proceedings to effect a separation. Mr Glissan argued that the failure to provide this information to Mr Storie indicated that Richard did not intend to alter the intentions under the Will or to sever the joint tenancy in the Property. I accept the evidence of Mr Storie as true and correct. However, while there is some force in Mr Glissan's submissions, I do not consider Richard and Corinne's silence to be conclusive evidence against the fact of separation. This is particularly so given that the separation had only taken placed in the preceding fortnight or so.
8. Finally, I take into account that Mr Glissan did not cross-examine either Claire or Paul on the topic of separation and conceded during the course of submissions that, subjectively, it appeared that Richard thought the separation with Corrine was final.

The Will and the estate

1. The Will provides: "2. If my wife, Corinne Anne Squire, survives me for the space of thirty (30) days then I appoint her my Executors and I give to her the whole of my Estate. 3. If my said wife shall not survive me for the period of thirty (30) days then the following provisions shall apply: a. I appoint my brother, Charles Squire currently residing in Wales, United Kingdom and my friend, Jennifer Anne Bergquist of 4a Wakal Street, Charlestown, New south Wales, to be my joint Executors and Trustees. b. In this Will the expression "my Executors" includes the Trustee(s) for the time being of this Will and any trusts arising under it. c. I give the whole of my Estate to my Executors to divide equally between such of my children and step-children who survive me, namely: i) Claire Louise Squire; ii) Paul Francis Squire; iii) Catherine Squire; Iv) Gabrielle Morgan Tropiano; and v) Sebastian Dominic Tropiano provided that if any of my children or step-children die before me or before attaining a vested interest leaving children then those children shall on attaining their majority taken equally the share their parent would otherwise have taken."
2. As at 13 October 2017, the estate has assets of about $45,268 (being 600 ordinary shares in NIB Holdings Ltd valued at about $3,636; cash in bank accounts of $35; UK Ministry of Defence entitlement of $36,597; and the Subaru valued at $5000) and liabilities of about $93,347 (being funeral expenses, estate administration costs, other costs related to the vehicle, the defendant's legal costs in these proceedings of $58,059, and the Local Court proceeding costs to date of $13,289).
3. Accordingly, the estate is insolvent by approximately $48,079.
4. The only possible notional estate is the Amount, being Richard's his one-half share of the net proceeds of sale of the Property. This has been put in a controlled monies account.
5. Richard had superannuation to about $169,060 of which Corinne was the nominated death beneficiary. Corinne also placed this money in the controlled monies account. However, during the course of proceedings the plaintiffs conceded that they would not be pursuing the superannuation in their claim.
6. As at 3 May 2017, the defendant's legal costs of $30,833.44 have been paid out of the estate. The defendants' costs up to the conclusion of submissions were then estimated to be $60,221 on the indemnity basis. The total legal costs as at 13 October 2017, incurred by the defendant in these proceedings are about $58,059 (part paid) - and includes the $8,999 to be paid by the plaintiffs for thrown away hearing on 14 November 2016. The costs incurred in the Local Court proceedings are about $13,289 as at 15 August 2017.
7. As at 5 May 2017, the plaintiffs had incurred costs of $38,837 on the ordinary basis. The plaintiffs' costs up to the conclusion of submissions are estimated to be $59,887 on the ordinary basis.
8. It was agreed that the estate will bear the burden of the funeral expenses ($7,227) and remunerate Claire in full.
9. As I have already observed, the estate's liability for the costs of repatriation of Richard's ashes to Wales remains in dispute.

Claire's circumstances

1. Claire is now 38 years old and is married to Danial. They have three children: Carter (born 2011), Eleanor (born 2012), and Emmett (born 2014), whom Claire cares for full-time. Claire and Danial live on a property at Limekilns near Bathurst. There is a mortgage over the property but the evidence (such as it is - see my comments in paragraph [107] below) suggests this secures a facility used for their businesses.
2. She is not currently in paid employment. Prior to marrying Danial and the birth of her children, Claire worked for a document processing company as a junior business development manager earning about $65,000 per annum. She has superannuation of $40,000.
3. At the time of swearing her first affidavit in 2016, Claire and Danial had liabilities of about $108,000 (being a mortgage with ANZ bank and credit card debt). Their total assets were listed as about $437,174 including a substantial loan to Beech Plumbing Pty Limited of about $286,874. They also own a vacant block of residential land in Bathurst valued at about $150,000. It appears Claire and Danial have an excess of assets over liabilities.
4. Claire and Danial own and run a commercial construction plumbing business through a corporate trustee, Beech Plumbing Pty Ltd ("Beech Plumbing"). The business is primarily run by Danial. It has five other employees and five vehicles. Claire assists occasionally. The business also operates a farm on Limekilns. Claire gave evidence that the annual business turnover was about $802,000 with expenses of about $758,000 ($17,000 of that is listed as farm expenses). Net profit before tax is therefore about $44,000.
5. Claire is a shareholder of Beech Plumbing and receives income from dividends/distribution. She also receives social security payment / parenting allowance - the value of these payments was not in evidence. For the 2014/15 financial year, Claire's income was assessed at about $20,000 for taxation purposes.
6. The evidence was that the family's monthly expenditure was $1,900. However, this did not include items such as fuel and services, which I can only infer were paid for by the businesses. Nowhere did Claire say that their expenditure exceeded their income or that they could not meet their ordinary living expenses.

Paul's circumstances

1. Paul was 35 years old at the time of hearing. He works as a customer sales representative for a printing company. He has a gross monthly income of about $5,400 (about $64,800 annually). He lives in a rented three-bedroom house in Quakers Hill with his fiancée and de facto partner of about two years, Rachael. He and Rachael have lived there for two and a half to three years and pay weekly rent of $520. They commute an hour to work every day.
2. Paul gives evidence that Rachael has a gross monthly income of about $4,500 (about $54,000 annually) and has debts to about $30,000 (in the form of credit cards and car loan). In his affidavit of 13 April 2016, his assets are listed as a superannuation account of about $43,687; a 1998 Mazda MX5 valued at about $6750; and a motorbike valued at about $2000.
3. He states their combined monthly funds after expenses is $1,000. They have cumulative savings of about $300. Between his affidavit of 13 April 2016 and 12 April 2017, Paul's own savings have only increased by $50.
4. Paul's liabilities include a five-year term loan of $25,000 drawn in about October 2016 to assist with his legal expenses (recalling that proceedings are on foot in both the Local and Supreme Courts). He makes monthly repayments of about $600 on the loan and at the date of the hearing had reduced the loan to about $22,600. Paul had credit card debt of $2000 at the time of hearing.
5. Paul would like a sum of $85,000 from the estate. He states that he would use $10,000 of that money to pay for a modest wedding in Bathurst with about 50 people. He would use the remainder to enter the property market in Sydney. Paul states that he has never been in a position to own his own home. He believed that he and Rachael would need between $45,000 and $70,000 to make a deposit on a home.
6. Paul gave evidence that Richard had indicated that he would assist Paul with financing a home deposit and a wedding.
7. Paul also gave evidence that Richard had been assisting with Paul's accommodation and the cost of living generally for several months before he died. Paul said that he moved out of Richard's household in December 2014.

Corinne's circumstances

1. At the time of hearing, Corrine was 57 years old. She has two children from her first marriage: Sebastian and Gabrielle.
2. Corrine has worked for the past four or five years and continues to work as a permanent receptionist at a large, vehicle servicing and parts business. Her net weekly income is about $714 as at 1 April 2017. She lists her assets as about $661,000 as at 1 April 2017 (this figure includes the Amount). Her liabilities are about $53,332.
3. She and her first husband were previously self-employed in the restaurant business for about 15 years. She worked in the Navy for about five years and has also worked on a casual basis in school canteens (from about 2006) and as a receptionist.
4. Corrine has been living with her daughter, Gabrielle, in Gabrielle's apartment in Lane Cove since about May 2015 paying monthly rent of about $1000.
5. In her updating affidavit of 17 October 2017, Corinne was living at Dangar Island paying $200 in rent per week and excluding utilities. She said that this would increase to $250 per week from 25 October 2017.
6. Corrine would like to purchase and live in a one-bedroom unit in the Baulkham Hills area which is convenient to her work and children (Sebastian now lives in Dundas and is employed as a panel beater in Castle Hill). She provided evidence of one-bedroom units ranging between $500,000 and $600,000.

The Act

1. Part 3.2 of the Act deals with family provision orders. Division 1 of that part identifies in s 57 who are "eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person." Section 58(2) requires an application for a family provision order to be "made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown."
2. Division 2 of Part 3.2 of the Act deals with determination of application for family provision orders. For the purposes of these proceedings, the relevant provisions are: "59 WHEN FAMILY PROVISION ORDER MAY BE MADE (1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and (b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of "eligible person" in section 57 - having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. (2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made. (3) The Court may make a family provision order in favour of an eligible person in whose favour a family provision order has previously been made in relation to the same estate only if: (a) the Court is satisfied that there has been a substantial detrimental change in the eligible person's circumstances since a family provision order was last made in favour of the person, or (b) at the time that a family provision order was last made in favour of the eligible person: (i) the evidence about the nature and extent of the deceased person's estate (including any property that was, or could have been, designated as notional estate of the deceased person) did not reveal the existence of certain property ("the undisclosed property" ), and (ii) the Court would have considered the deceased person's estate (including any property that was, or could have been, designated as notional estate of the deceased person) to be substantially greater in value if the evidence had revealed the existence of the undisclosed property, and (iii) the Court would not have made the previous family provision order if the evidence had revealed the existence of the undisclosed property. (4) The Court may make a family provision order in favour of an eligible person whose application for a family provision order in relation to the same estate was previously refused only if, at the time of refusal, there existed all the circumstances regarding undisclosed property described in subsection (3) (b). 60 MATTERS TO BE CONSIDERED BY COURT (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."
3. In West v Mann [2013] NSWSC 1852 at [9] to [11], I explain the reasons for the approach I adopt to applications under the Act. That is how I will proceed in this case.
4. By reference to the language of the Act the questions and issues which the Court must take into account are: 1. Is the person who has applied to the Court for a "family provision order" (as defined in s 3 of the Act) an eligible person under s 57 of the Act? In accordance with s 60(1)(a), the Court may (not must) have regard to the matters set out in s 60(2) in determining whether that person is an eligible person. It is not readily apparent how many of those matters could be relevant to the issue of eligible person, but nothing turns on that observation. 2. If the answer to question (1) is "yes", has the application been filed in the Court's Registry not later than 12 months after the deceased's death (ss 58(2) and (3))? 3. If the answer to question (2) is "no", has the eligible person who has brought the application shown sufficient cause for the Court to order otherwise to extend the date for the filing of the application in the Court's Registry (ss 58(2) and (3))? 4. If the answer to question (2) is "yes" or the Court has otherwise ordered under s 58(2), is the Court satisfied that the person in whose favour the order is to be made (the "applicant") is an eligible person (s 59(1)(a))? In reaching the requisite state of satisfaction the Court may (not must) have regard to the matters set out in s 60(2). As a theoretical matter this question admits of the possibility that "the person in whose favour the order is to be made" is not the person who has brought the application (in which case, the latter must also be an eligible person). 5. If the answer to question (4) is "yes", what provision has been made for the proper maintenance, education or advancement in life of the applicant by the deceased's will or by the operation of the intestacy laws (the "Provision")? 6. Is the Court satisfied, at the time when the Court is considering the application, that the Provision is not adequate for the proper maintenance, education or advancement in life of the applicant? 7. If the answer to question (6) is "yes" (i.e. the Court is satisfied the Provision is not adequate for the specified purpose) then the Court's discretion conferred by the chapeau to s 59(1) to make a family provision order in favour of the applicant (the "Discretion") is enlivened. 8. Once the Discretion is enlivened then, noting s 59(2), what provision, if any, does the Court think ought to be made for the proper maintenance, education or advancement in life of the applicant, having regard to the facts known to the Court at the time the order is made (the "Proposed Provision")? This is an evaluative judgment which arises from the word "ought" and requires examination of the applicant's needs. In making this judgment the Court may (not must) have regard to the matters set out in s 60(2) ("the nature of any such order": s 60(1)(b)). 9. Having answered question (8), should the Court exercise the Discretion to make an order for the "Proposed Provision"? In deciding whether to exercise the Discretion to make such an order, the Court may (not must) have regard to the matters set out in s 60(2) ("whether to make a family provision order": s 60(1)(b)). 10. Section 60(2) provides a helpful checklist but it is no more than that. The Court is not obliged to take those matters into account. The extent to which it does (if at all) will depend upon the facts of each particular case. 11. Section 60(2)(p) confirms the breadth of matters the Court can take into account. Once enlivened, the Discretion is expressly fettered only by the requirement in s 59(2) that if an order is made, it must be such order "as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made". The Discretion is otherwise unconfined, which means that in answering question (8) the Court is otherwise constrained only by the need to act judicially, that is to say "not arbitrarily, capriciously or so as to frustrate the legislative intent": Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [22] per Gaudron and Gummow JJ. The Court must act rationally and exercise the Discretion for the purpose for which it was conferred.

Uncontroversial matters

1. Claire and Paul are Richard's children and are eligible persons under s 57 of the Act. The summons was filed less than 12 months after Richard's death. It follows that the questions set out in sub-paragraphs (1), (2) and (4) of paragraph [89] above are all answered "yes".
2. The Provision referred to in the question posed in sub-paragraph [89(5)] above is nil for each of Claire and Paul.

Has adequate provision not been made for the plaintiffs? - The law

1. It is next necessary to consider what is sometimes referred to as the jurisdictional question. This is set out in sub-paragraph [89(6)] above, namely whether the Court is satisfied, at the time when the Court is considering the application, that the Provision for Claire and Paul is not adequate for their respective proper maintenance, education or advancement in life. If that question is answered "yes" for one or both of them, then the Court's discretion to make a family provision order in favour of that person is enlivened.
2. In Verzar v Verzar [2014] NSWCA 45, Meagher JA (with whom Macfarlan and Barrett JJA agreed) summarised the legal principles governing this stage of the inquiry: "39. The primary judge concluded that Stephen's will did not make adequate provision for the respondent's proper maintenance, education and advancement in life. Whether such provision has been made requires an assessment of the applicant's financial position, the size and nature of the deceased's estate, the relationships between the applicant and the deceased and other persons who have legitimate claims upon his or her bounty and the circumstances and needs of those other persons: see Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 75 at [70] and McCosker v McCosker [1957] HCA 82; 97 CLR 566 at 571-572; Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 210; and Vigolo v Bostin [2005] HCA 11; 221 CLR 191 at [16], [75], [112]. Such an assessment is necessary because of the inter-relation between "adequate provision" and "proper maintenance". Whilst the inquiry as to what is "adequate" directs particular attention to the needs of the applicant, what is "proper" requires regard to all the circumstances of the case, and in particular the size and nature of the estate and the needs of the other beneficiaries or potential beneficiaries. As was observed by Sackville AJA in Foley v Ellis [2008] NSWCA 288 at [88], a court cannot consider the propriety and adequacy or inadequacy of any testamentary provision for an applicant in isolation from the resources and needs of the other claimants on the deceased's bounty."
3. The dictum in Verzar that the inquiry as to whether "proper" provision has been made requires "regard to all the circumstances of the case" has been emphasised again in the relatively recent decision of the Court of Appeal in Sgro v Thompson [2017] NSWCA 326 ("Sgro"), which also drew attention to the importance of the testator's intentions as manifested in his or her will.
4. The leading judgment in Sgro is that of White JA, with whom McColl and Payne JJA agreed. However, it is convenient to begin with Payne JA's short concurring judgment, in which his Honour said: "[4] As White JA explains, whether a two-stage analysis is applicable to claims for family provision orders under Ch 3 of the Succession Act 2006 (NSW) has been the subject of significant debate in this Court, but the question should be of no real significance, provided that the nature of the first stage of the inquiry is not misunderstood. [5] The decision in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 makes clear the multi-faceted approach necessary to be adopted in considering the question posed by s 59 of the Succession Act. In Vigolo at [74] Gummow and Hayne JJ cited the plurality in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, for the proposition that: "[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". [6] What is "proper" requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances. I agree with White JA that while the Court's assessment of what is proper maintenance, education and advancement in life must be made at a time when the Court is considering the application, that does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate."
5. White JA said: "68. Carmela also submitted that the primary judge erred in applying a two-stage test in the application of s 59. In Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 the plurality (Mason CJ, Deane and McHugh JJ), in addressing the structure of predecessor legislation (s 7 and s 9(2) of the Family Provision Act 1982 (NSW) (the "Family Provision Act")) said that a two-stage inquiry was engaged, the first involving a jurisdictional question of whether the applicant had been left without adequate provision for his or her proper maintenance, education and advancement in life that, though it involved the making of value judgments, was a question of objective fact to be determined at the date of hearing (at 211), whereas the second stage did involve an exercise of discretion in the accepted sense (at 211). Whether the same two-stage analysis is applicable to claims for family provision orders under Ch 3 of the Succession Act has been the subject of significant debate (e.g. Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308; Poletti v Jones [2015] NSWCA 107; (2015) 324 ALR 641; Underwood v Gaudron [2015] NSWCA 269; Burke v Burke [2015] NSWCA 195). 69. The question should be of no real significance, provided that the nature of the first stage of the inquiry is not misunderstood. In relation to the task of an appellate court, the reason the question should be of no real significance is that, as the plurality said in Singer v Berghouse (at 212), and as has been repeatedly held subsequently, even at the first stage, the principles that govern appellate review of discretionary decisions apply. The plurality approved the following comments of Kirby P in Golosky v Golosky [1993] NSWCA 111; BC9302134 at 13: "Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision-makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be bought at the cost of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged." 70. If the two-stage approach is still to be adopted, the same considerations apply at both stages. The plurality said 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 applicant and the deceased, and 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." 71. The risk of error arises if a two-stage approach is adopted and it is assumed that the first stage requires an evaluation of whether the applicant has been left without adequate provision for his or her maintenance, education or advancement in life, thereby focusing primarily, or perhaps exclusively, on the applicant's financial needs. An applicant's financial needs and the financial needs of other persons with claims on a deceased's testamentary bounty are important, and often highly important considerations, but as Basten JA said in Chan v Chan [2016] NSWCA 222 at [22]: "… [I]t is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs." 72. The question is whether adequate provision was made for the proper maintenance, education or advancement in life of an applicant. I agree with Basten JA's reasoning in Andrew v Andrew that the structural changes between the Family Provision Act and Ch 3 of the Succession Act mean that a two-stage approach is generally no longer appropriate. In Poletti v Jones [2015] NSWCA 107 Basten JA (with whom Emmett and Leeming JJA agreed) accepted that there may be circumstances in which that approach is preferable (at [19]). However, as Allsop P said in Andrew v Andrew (at [6]) this may be an analytical question of little consequence. 73. The risk is that if a two-stage approach is adopted, the first stage may be seen as confined to assessing the adequacy of the provision made for the applicant to satisfy his or her financial needs. In Underwood v Gaudron Basten JA said (at [68]): "If it were correct to adopt a two stage approach, there was some force in the appellant's submission that she should have succeeded at the first stage. Thus it was not in doubt that the will made no provision for her maintenance or advancement in life, let alone 'adequate provision', within the meaning of s 59(1)(c). That she had material needs which might have been diminished by provision under the will was also uncontested. Accordingly, unless the reference to 'adequate' provision is to be treated as engaging with the various factors which might provide a reason not to make an order, the appellant satisfied s 59(1)(c). If the need to assess adequacy for that purpose did encompass all the factors relevant to determining whether an order ought be made pursuant to subs (2), the elements of the two possible stages would be common; if they were not common, no analysis has been provided as to which factors are relevant only to s 59(1)(c) and which are relevant only in making a determination pursuant to s 59(2)." 74. If a two-stage approach is adopted, it is erroneous to treat the first stage as confined to an assessment as to whether adequate provision has been made for the applicant's material needs. That is clear from Singer v Berghouse in the passage quoted at [70] above that at the first stage of the inquiry (under the Family Provision Act) the question was whether the provision was inadequate in all the circumstances for the applicant's "proper" maintenance, education and advancement in life, and that that required regard to be had to not only the applicant's financial position, but the size and nature of the estate, the totality of the relationship between the applicant and the deceased and the relationship between the deceased and others with claims upon his or her bounty. … 80. In McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 Kitto J (in dissent but in a passage referred to with apparent approval by Gleeson CJ in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [24]) referred to the necessity of restraint where he could not be satisfied that he understood "… the whole situation so well that I could deal with the estate more justly than the testator dealt with it …" (at 580). 81. In Pontifical Society for the Propagation of the Faith v Scales Dixon CJ said (at 20): "The difficulty is that the Court itself can never be certain that it knows all the circumstances. More often than not, one may be sure that the Court knows few of them. …" 82. In Stott v Cook Taylor J (in dissent) said (at 453-454): "In considering this question it should be remembered that the Testator's Family Maintenance and Guardianship of Infants Act does not invest the Court with a discretion merely to re-make testators' wills upon some abstract principle of fairness. After all a testator's property is his own and he is entitled to dispose of it as he pleases subject only to correction if he omits to make property provision for those whose maintenance, education or advancement is his especial responsibility. The word 'advancement', is, as was pointed out in McCosker v McCosker (1957) (97 C.L.R. 566) a word of wide import but it does not justify the redistribution of a testator's estate merely because it is of considerable value and because those to whom it has been given can well afford to have their interests diminished in order to confer a benefit upon a disappointed son or daughter. 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." 83. In his discussion of the general principles, the primary judge quoted what I said in Slack v Rogan; Palffy v Rogan at [127] that: "In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will." 84. Nowhere in his disposition of the case did the primary judge refer to this consideration. 85. Mr Tregenza did not submit that what I said in Slack v Rogan; Palffy v Rogan was wrong. I have considered whether it imposes an unwarranted gloss on the language of the statute analogous to the error identified by the majority of this Court in Andrew v Andrew which concluded that the trial judge had erred by holding that it was "essential for the maintenance of the integrity of the process" that the Court acknowledge the entitlement of a deceased to make no provision for his or her estranged adult child (Allsop P at [46] quoting Andrew v Andrew [2011] NSWSC 115 at [149]; Basten JA at [54]; Bates v Cooke at [67] per Sackville AJA). 86. I adhere to the view I expressed in Slack v Rogan; Palffy v Rogan. To recognise that the court is not in as good a position as a capable testator to assess what maintenance or advancement in life is proper for an applicant having regard to all of a family's circumstances, including the relationships between the applicant and the deceased, and the merits and claims of other family members, is not to put a gloss on the statute. Rather, it is to acknowledge the superior position of the testator. The most important word in s 59(1)(c) is "proper". Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court's assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate. 87. The observations of Dixon CJ in Pontifical Society for the Propagation of the Faith v Scales (at 19) also need to be borne in mind: "All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court. An observer of the course of development in the administration in Australia of such statutory provisions might be tempted to think that, unchecked, that is likely to become the practical result. Perhaps this Court and other Courts of Appeal have attached too much significance to the discretionary aspects of orders under appeal and have accordingly allowed orders to stand which no member of the Court of Appeal would himself have made, had he sat at first instance." 88. That observation has current significance. Applications are filed in the Supreme Court's Family Provision List at an average rate of about 80 per month. One commentator has criticised the apparent readiness of courts to vary the expressed will of the deceased by granting family provision claims (A Gray, "Family Provision Applications: A Critique" (2017) 91 ALJ 750)."
6. In addition to the passages from Verzar and Sgro quoted in the preceding paragraphs, I also respectfully adopt what Hallen J said in Camernik v Reholc [2012] NSWSC 1537 both as to the general approach to be adopted to applications for family provision and judicial observations concerning claims by adult children: "154 Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education or 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. 155. An important consideration is whether, in all the circumstances, the community expectation would be for greater benefaction to have been made for the proper or adequate provision of the person seeking provision. Gleeson CJ observed in Vigolo v Bostin, at 199, that the justification for interference with freedom of testation is to be found in the failure of a deceased to meet the obligations, which the community would expect in terms of maintenance, for those persons within the class of eligible persons. The process requires the court to "connect the general but value-laden language of the statute to the community standards". 156. As Allsop P said in Andrew v Andrew, at [16]: "If I may respectfully paraphrase Sheller JA [in Permanent Trustee Co Limited v Fraser (1995) 36 NSWLR 24 at 46F-47B], the Court in assessing the matter at s 59(1) and the order that should be made under s 59(1) and (2), should be guided and assisted by considering what provision, in accordance with prevailing community standards of what is right and appropriate, ought to be made. This, Sheller JA said ... involved speaking for the feeling and judgment of fair and reasonable members of the community. It is to be emphasised that s 59(1)(c) and s 59(2) refer to the time when the Court is considering [an application for a family provision order] and the facts then known to the Court. The evaluative assessment is to be undertaken assuming full knowledge and appreciation of all the circumstances of the case. This ... makes the notion of compliance by the testator with a moral duty (on what he or she knew) apt to distract from the statutory task of the Court." 157 In all cases under the Act, what is adequate and proper provision is necessarily fact specific. An inflexible approach cannot be taken in assessing the questions to be answered. 158 The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1909) 29 NZLR 959 at 966. 159. In 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 obligation, responsibility, 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 if he or she is able to do so. 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. (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] VicRp 58; [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 148; Goodman v Windeyer at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons to whom the applicant, however reasonably, wishes to support, where there is no obligation to support such persons: Re Buckland Deceased at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; 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."
7. Applying the principles just set out, the Court is not satisfied that the Provision is not adequate for either Claire's or Paul's proper maintenance, education or advancement in life. The question posed in sub-paragraph [89(6)] above is answered "No" in relation to each of them. The reasons for this conclusion are set out in the following paragraphs.

Has adequate provision not been made for the plaintiffs? - Matters taken into account in the multi-faceted evaluation

1. Having regard to the authorities I have referred to above, I approach this part of the Court's task as being to undertake a multi-faceted evaluative approach. The Court is required to look at all of the circumstances and not confine itself to the question of whether the provision is adequate by reference to Claire and Paul's respective financial needs
2. In undertaking this task, it is convenient that I first address the weight which I consider should be given to Richard's testamentary intentions as they appear from the Will. At the date of the Will there is no suggestion that his expectation was other than that he was and would remain married to Corinne. Against that background he left the whole of his estate to her. If she did not survive him, then he left his estate to his three children in equal shares. It might be said that scheme is consistent with the evidence of Claire and Paul, which I accept and have taken into account, that Richard spoke of his intention to benefit his children equally. However, in this case I do not give the scheme of the Will any particular weight because it says nothing about the present situation of recent separation.
3. The parties devoted much argument to the issue of the separation and to whether or not authorities such as Luciano v Rosenblum (1985) 2 NSWLR 65 apply ("Luciano"). These were referred to as cases which stood for the proposition that "paramountcy" should be given to a widow to ensure she had a home, income and something against vicissitudes. Ultimately, I understood Mr Martin's submission to be that once the Court had come to a view on the state of the relationship between Richard and Corinne, the Court should take that into account. I accept that submission.
4. Some of the argument on this point assumed a binary character. On the one hand, it was said Corinne was, at Richard's death, still his lawful wife and, as such, cases such as Luciano applied to negative any claim by the plaintiffs. The contrary position seemed to be that, Richard and Corinne having separated, the Court could substantially, if not completely, ignore Corinne's position in favour of the plaintiffs. Insofar as such ideas informed the argument, I reject them. Two points need to be made.
5. First, the Court is here concerned with the answer to the statutory question of satisfaction of the matters referred to in s 59(1)(c) of the Act. This is not an exercise in speculating on what kind of will Richard would have made immediately before his death in the circumstances then applying, what kind of settlement he might have reached with Corinne (voluntarily or in the Family Court of Australia) or postulating a notional intestacy.
6. Second, s 57(1)(d) of the Act expressly makes a former wife an "eligible person" to make a claim under the Act. The extent of a former wife's "moral claim" or the community's expectation of what provision should have been made for a former wife will necessarily be fact specific. However, some matters will always be relevant, such as (without purporting to be exhaustive) the length of the marriage; whether or not she received a divorce (or similar) settlement and what it was; how long it has been since the marriage ended; and, the former wife's financial and personal circumstances at the time of the hearing.
7. I shall deal with Corinne's circumstances further below. For present purposes it is sufficient for me to observe that the Court has found that Richard and Corinne were newly separated at the time of Richard's death and that there had not been any opportunity for the question of any financial settlement between them to be discussed, let alone resolved.
8. Turning to the estate, I consider it a very important factor that the estate is small. As I have noted, it was common ground that the estate is insolvent unless a notional estate order were to be made. It was also agreed that the value of the only asset available for designation as notional estate (being Richard's half of the proceeds of sale of the Property) was $249,779 (the Amount) and that, assuming each plaintiff was successful there would be an order for their costs of about $60,000. The defendants' costs on an indemnity basis are approximately $60,000 (including nearly $9,000 to be paid by the plaintiffs to Corinne pursuant to an order made by Hallen J for the costs thrown away by reason of the adjournment of an earlier hearing date). This means that only approximately $129,000 would be available by way of extra provision, being not even enough to fund the $85,000 sought by each plaintiff.
9. Claire's sought provision of $85,000. The matters I have taken into account in relation to her are (incorporating by reference the more detailed evidence set out in paragraphs [67] - [72] above) : 1. The evidence of her and her family's financial position is so unclear that I am unable to form a view as to her financial circumstances with sufficient confidence to act upon. There are two main reasons for this. First, her family appears to run its financial affairs through her husband's plumbing company or Beech Plumbing as the corporate trustee which operated that business and included that entity owning the land on which Claire's family lives and operates a farm. Second, and without criticism or disrespect, it became apparent during her cross-examination that Claire had no real idea about how the family's financial affairs were organised. Based on Claire's answers, I am satisfied that information was known to Claire's husband, but he did not give evidence and Claire admitted her own evidence on the topic of finances was based on what her husband had told her. 2. I have not overlooked the evidence of Claire's and Danials' apparently low levels of annual income. However, that seems to me to be almost meaningless for the purposes of these proceedings in the absence of understanding what role the plumbing or farm businesses play in meeting her ordinary expenses. There was no statement of the kind the Court often sees in cases such as this to the effect that the expenses of the applicant for provision exceed his or her income. 3. The difficulty referred to in the preceding sub-paragraph is compounded by such evidence as there is about the plumbing business. It has a turnover of $800,000 per annum and has five employees (not including Claire's husband or Claire) and, it was said, those employees "earn" more than Claire or her husband. In the absence of further evidence, I can only observe that, on its face, that outcome seems counter-intuitive, unless Claire and Danial receive the benefit of the plumbing business in ways other than income. 4. Claire is an adult who is in good health. She has worked and there is no suggestion that she will not be employable when her children are older. As an adult she was in no relevant way dependent on Richard and has not suffered financial, medical or other misfortune. The observations in the preceding sentence also apply to her husband. They live on the farm property owned by their corporate trustee. That property is mortgaged, but the indebtedness appears to operate more as a revolving line of credit. 5. There is nothing which reflects positively or negatively on what appears to have been an unremarkable and appropriate relationship between her and Richard. 6. Claire and her husband own another vacant block with a value of about $150,000. 7. $25,000 of the provision claimed was originally said to be for the farm business generally. Under cross-examination this became to fund the construction of a shed. However, the farm business was unprofitable and Claire was unable to offer any reason why building the shed might change that. Nor was there evidence that, without the additional provision, the business could not afford to build the shed if that is what Claire and her husband wanted to do. I cannot see how this could be categorised as a need of Claire (even viewed broadly) that would warrant an order for provision. In final submissions, Mr Martin appeared to recognise the difficulty with this aspect of Claire's claim and submitted the amount should represent a buffer or provision for vicissitudes. 8. $60,000 of the provision claimed was said to be for the education and medical expenses in relation to Claire's children. Again, the lack of clear financial evidence makes it very difficult to determine the extent to which such costs were beyond Claire (and her husband) to meet. There was no doubt that this part of the claim was directed to benefit Richard's grand-children. There was argument (including supplementary written submissions) as to whether such a claim could be included in consideration of whether proper provision had been made for Claire. I have considered that claim, because the question must be answered "yes" on the authority of the High Court's decision in Cooper v Dungan (1976) 9 ALR 93; (1976) 50 ALJR 539 that an applicant's obligation to support and educate her children was relevant to determining whether proper provision had been made for her maintenance (see also Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2 at 147 per Gibbs J and Goodman v Windeyer (1980) 144 CLR 490;[1980] HCA 31).
10. Paul also sought provision of $85,000. The matters I have taken into account in relation to him are (incorporating by reference the more detailed evidence set out in paragraphs [73] - [79] above): 1. He is relatively young, healthy and in remunerative employment of $4,500 gross per month. 2. I do note some degree of dependency insofar as when Paul was unemployed for a period he lived with Richard and was assisted by Richard financially. However, I would not consider that to be dependency of the extent or kind referred to by Hallen J in Camernik v Reholc at [159(c)] (quoted at paragraph [97] above). Richard has not suffered relevant financial, medical or other misfortune. 3. There is nothing which reflects positively or negatively on what appears to have been an unremarkable and appropriate relationship between her and Richard. 4. He is in a relationship and wishes to marry his partner who is employed. 5. He and his partner are currently in rental accommodation. 6. Paul asks for about $45,000 to $70,000 for a deposit on a home for him and his partner. However, in cross-examination he accepted he had made no inquiries beyond the anecdotal about where he could buy a house for a price they could afford or whether, and if so, how much finance he could obtain and whether that would be sufficient. I accept Mr Glissan's submission that little, if any, weight should be given to such a claim when the applicant has not demonstrated that they could in fact do what they say they wanted to do. In other words, it is difficult to say adequate provision has not been made when that to which the additional provision was directed would have been unachievable. In reaching this conclusion I have taken into account Mr Martin's submission that the Court should infer Paul and his partner would get and be able to service a home loan because they would be redirecting what they currently pay in rent. I reject that submission as inviting impermissible speculation. There is no evidence as to how much Paul and his partner would be able to borrow that they would be able to service and whether, together with any provision, that would enable them to purchase a home of the kind and in a location acceptable to them. 7. Paul seeks the balance of his provision to assist him with the expenses of marrying his partner.
11. The other person whose situation must be considered is Corinne's and what is, in the circumstances of this case, in effect, her claim to the Amount. Before doing so, I record that I thought she was an unsatisfactory witness who appeared to prefer the expedient interests of her cause over truthfulness. I have reached this conclusion by reference to my observations of her in the witness box, coupled with her vacillation over whether sums she had advanced to her children were loans or gifts and what I found to be her incredible evidence that she was not really separated from Richard and that it was all a ruse on her part to encourage him to improve his behaviour (see paragraphs [50] to [57] above). As I have already noted, none of this evidence appeared in her affidavits; it all emerged in the witness box. However, as it happens, none of the matters which I ultimately find to be relevant turn on disputed questions of fact where her credit would be decisive.
12. The matters I have taken into account are (incorporating by reference the more detailed evidence set out in paragraphs [80] - [85] above): 1. At the time of Richard's unexpected death, Corinne and Richard had only been separated for a period of weeks and had not yet resolved all of their matrimonial affairs or even discussed a final resolution, although they had taken some practical steps. Critically for present purposes, Corinne had certainly not received anything in the nature of a financial settlement. 2. They had been married for about nine and a half years. There is nothing to suggest that for much of that period it was anything other than a happy marriage, especially for Richard who, in his own words, thought Corinne was "the one". While Corinne had not contributed to the purchase price of the Baulkham Hills Property, there was undisputed evidence that she had paid a number of Richard's debts totalling about $35,474 and contributed to their living expenses. I also infer that she at least would have made some contribution to the mortgage on the Property once Richard had retired, although the evidence does not permit that to be quantified. 3. Corinne is 58 years old. While she is obviously able to work, she has far fewer years of future employment than Claire or Paul. 4. Corinne does not have any property or significant assets. 5. A one bedroom unit in an area to which she has some sense of connection would cost approximately $500,000 to $600,000.

Has adequate provision not been made for the plaintiffs? - The evaluation

1. As I have said above, the real question for determination in this case is the strength of the relative claims to the Amount. Insofar as Corinne's position is concerned, given the small size of the estate (in reality the Amount) means that even if the Court dismisses Claire's and Paul's claims so that Corinne keeps the Amount, by reference to the evidence set out in paragraphs [80] to [85] above, she will still not be left with sufficient to purchase a home and have something left over for vicissitudes (assuming the Court were of the view that was the appropriate outcome). Her situation will only be more acute if one or both of the plaintiffs' claims is upheld.
2. Weighing all of the matters set out in paragraphs [67] to [85] above against each other, I am satisfied that Claire's interest in the Amount by survivorship should not be disturbed by designating it as notional estate for the purposes of further provision being made for Claire and Paul. Putting it another way, in the circumstances of such a small estate, Corinne's claim outweighs those of Claire and Paul. In reaching this conclusion, I am not applying Luciano or any similar authorities. Rather, in my view this is the correct conclusion having regard to the facts of this particular case.
3. My conclusion is best understood by comparing Corinne's respective positions between whether the notional estate order is or is not made.
4. If the order is not made, Corinne will have a sum of money close to the purchase price of a unit which the Court accepts it is reasonable for her to aspire to own. She will have her own income to meet her daily needs, but nothing for vicissitudes. However, she will at least own her own home, perhaps subject to a small mortgage which I infer she could pay off during what is left of her working life.
5. If the order is made for either or both of the plaintiffs, Corinne will not have enough to purchase a unit without taking out a mortgage of around $200,000. Assuming she could get such a mortgage, it is clearly going to be a real burden to pay off (assuming again she could) such a mortgage during her working life. She will certainly have nothing for vicissitudes.
6. In my view, the question is which position for Corinne to be left in is the one which better accords with Richard's moral duty or the community's expectations when compared with the plaintiffs' circumstances and their respective claims as I have set them out above? In my view it is the former position.
7. It follows that, in my opinion, the nil provision for Claire and Paul in the Will does not mean that adequate provision for their proper maintenance, education or advancement in life has not been made. That is because any provision for them would have defeated what is Corinne's superior claim to Richard's testamentary bounty, including were the estate to be enlarged by the making of the proposed notional estate order. The question posed in paragraph [89(6)] above is therefore answered "No". The Court's jurisdiction to make orders for additional provision for Claire and Paul (and therefore to make a notional estate order - see s 78 of the Act) is not enlivened. The answer to the questions and issues posed in paragraphs [89(7)] to [89(11)] above is "does not arise".

Conclusion and orders

1. Even if the view I have taken of the jurisdictional question is in error, the same process of reasoning would have led me to the conclusion that, in the exercise of the Court's discretion, no order for additional provision should be made for either Claire or Paul. I would have answered the question posed in paragraph [89(8)] above "nil" in relation to each of the plaintiffs.
2. The Summons will be dismissed. I will hear the parties as to costs. 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: 04 May 2018