106 The relevant principles were concisely described by McLelland J (as the later Chief Judge then was) in Re Fulop (deceased) (1987) 8 NSWLR 679:
In making these determinations, the following principles apply: first, the Court should not interfere with the dispositions in the will … except to the extent necessary to make adequate provision for the plaintiff's proper maintenance, education and advancement in life, secondly, the expression "proper" in this context connotes a standard appropriate to all the circumstances of the case, and thirdly, the Court may take into consideration any matter (whether existing or occurring before or after the death of the deceased) which it considers relevant in the circumstances, including (a) the nature and quality of the relationship between the plaintiff and the deceased (b) the character and conduct of the plaintiff (c) the nature and extent of the plaintiff's present and reasonably anticipated future needs (d) the size and nature of the estate of the deceased (e) the nature and relative strength of the claims to testamentary recognition by the deceased of those taking benefits under the will of the deceased … and (f) any contribution, financial or otherwise, direct or indirect, by the plaintiff to the property or welfare of the deceased.
107 In Stewart v McDougall (NSWSC, Young J, 19 November 1987, unreported) BC8702350 his Honour explained that the court's role was limited to making adequate provision for an eligible person's proper maintenance and advancement:
It is important to state what the Family Provision Act permits a court to do and what it does not permit a court to do. The Act recognises that Australians have freedom to leave their property by their will as they wish, with one exception. The exception is that a person must fulfil any moral duty to make proper and adequate provision for those whom the community would expect such provision to be made before they can leave money as they wish.
Thus in these cases one does not ask is the will fair, one does not ask why did the testatrix not divide her property equally, one does not as a judge say how would I have made a will had I been the testatrix? What must be asked is whether the testatrix by her will failed in her moral duty to those who had a claim on her? Even if the court comes to the view that that question should be answered in the affirmative, the court still does not remake the will, but only alters it to the extent that proper and adequate provision is made to the eligible person in respect of whom the testatrix failed in her moral duty.
108 It is common ground that Max's estate is worth $834,603. Under the Will, the Australian Cancer Research Council is entitled to the whole of it. Max made provision for his children Alan and Diana during his lifetime and they assert no claim against the estate.
109 Monica retains Cecil Street (worth $1,320,000), a portfolio of listed shares and units (now worth $144,132), cash at bank - being the remaining proceeds of the loan raised on Cecil Street ($365,120), the accommodation bond at Terrey Hills Nursing Home (less 41 months retention at $265.50 per month, $239,114), and a half interest as tenant in common in unit XX at Lindfield Manor (worth $72,000) - a total of $2,140,366. Her liabilities are the mortgage loan ($785,000), outstanding interest payable to Terrey Hills Nursing Home for the period until the accommodation bond was lodged ($72,312) and miscellaneous creditors ($1,000) - a total of $858,312. Jointly with Margaret Frost, she is liable to Lindfield Manor for $46,016 unpaid levies and interest; her half share is $23,008. Before providing for legal costs, her net asset position is therefore approximately $1,259,000. Her costs of these proceedings paid to date amount to $442,773, and her unpaid costs, including estimated costs of the trial, are a further $247,157.
110 Monica is in receipt of a war widow's pension of $1,209 per month, a pension from her husband's former employer of $1,385 per month, and interest from her investments of $503 per month, a total of about $3,097 per month. Her expenses were never satisfactorily proved as a whole, but it can be said that she has pharmaceutical expenses of about $66.00 per month, personal grooming expenses of about $43.00 per month, and fees for accommodation and care at Terrey Hills Nursing Home of $5,777 per month; in addition she is jointly responsible with Margaret Frost for levies for Lindfield Manor of $962.80 and interest payable on the debt to Lindfield Manor of $379.42 per month. Presumably there would also be outgoings associated with Cecil Street.
111 Although her monthly expenditure of $6,558 therefore exceeds her income of $3,097, she has ample assets - exceeding $1.2 million, including Cecil Street and her half interest in the Lindfield Manor unit which are no longer required for her accommodation - so that, were it not for Max's promise, whether it could have been said that Monica had been left with inadequate provision for her proper maintenance might have been debatable. But in my view, his promise, relied upon as it was by Monica in leaving Cecil Street, imported an obligation to make provision for her aged care accommodation for the rest of her life. In Vukic v Luca Grbin [2006] NSWSC 41, I referred to the significance of promises made and expectations raised by testators in this field:
[38] Promises made and expectations raised by testators have always been regarded as relevant to the ascertainment of what is proper provision for a claimant [ Re Anderson (deceased) (1975) 11 SASR 276 at 284; Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 at 148]. This is particularly so where a claimant has relied to his or her detriment on any such promise or expectation. The requirements of conscionable behaviour which inform the doctrine of equitable estoppel are philosophically closely analogous to the concept of 'moral duty' which has traditionally informed the exercise of jurisdiction under the Family Provision Act and its predecessors and, some of the observations in Singer v Berghouse (No 2) notwithstanding, continues to do so [ Vigolo v Bostin ; Palmer v Dolman [2005] NSWCA 361, [74]]. Thus, although a claim under the Family Provision Act is to be distinguished from one for a constructive trust or equitable estoppel and some different considerations apply (including in particular the interests of beneficiaries under the Will, and other eligible persons) [ Vigolo v Bostin , [76]-[78]], nonetheless the conclusions expressed above as to the requirements in the circumstances of conscionable behaviour are highly relevant also to what is proper provision for the Plaintiff [cf Lewis v Lewis [2001] NSWSC 321 at [76]].