Bowditch v NSW Trustee and Guardian

Total: $14,003

36At the hearing, the parties agreed that if the Yagoona property is sold other than to Wendy, the costs and expenses of sale (which include estate agent's commission ($9,130), advertising costs of sale ($1,500), legal costs and expenses of sale ($3,000)) will be $13,630. 37The parties also agreed that the estimated value of the net distributable estate (excluding costs) would then be about $414,515. Based on this amount, Wendy would be entitled to receive about $207,257. 38In calculating the value of the estate, finally available for distribution, the costs of the present proceedings should also be considered, since the Plaintiffs, if successful, normally, will be entitled to an order that their costs, calculated on the ordinary basis, be paid out of the estate of the deceased, whilst the Defendant, irrespective of the outcome of the proceedings, normally, will be entitled to an order that its costs, calculated on the indemnity basis, be paid out of the estate. 39The Plaintiffs, initially, appeared in person during the proceedings. However, as stated, Mr McCartney appeared for the first and second Plaintiffs and Ms Cunningham appeared for the tutor at the final hearing. They estimated the Plaintiffs' costs and disbursements of the proceedings, calculated on the indemnity basis to be $6,600, and on the ordinary basis to be $5,500. 40The Defendant's costs and disbursements of the present proceedings, including counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of the events that had occurred), were estimated to be $42,027. 41Wendy and Amiiy, in their submissions, make some criticism of the Defendant's costs. However, the costs may be explained, at least in part, by the events to which I have earlier referred. Of course, depending upon the result of the proceedings, the legal costs of the proceedings may be assessed, formally, if agreement on quantum is not reached. 42The parties accept that for the purposes of the hearing, I should determine the Plaintiffs' application upon the basis that the actual net distributable estate, after the payment of such costs, if any, ordered to be paid out of the estate, will be about $366,988. Assuming these calculations prove accurate, Wendy would receive $183,494. 43The persons described by Wendy as eligible persons, within the meaning of the Act, are the Plaintiffs and Gregory only. The Defendant denies that Amiiy and Luke are eligible persons but accepts that the Plaintiff and Gregory, as children of the deceased are eligible persons. 44There is evidence that the Defendant has served a prescribed Notice of Claim on Gregory, care of the NSW Trustee & Guardian. (Section 124 of the NSW Trustee and Guardian Act 2009, provides that a document may be served on the NSW Trustee by leaving it at, or by sending it by post to, the head office of the NSW Trustee.) 45Only the Plaintiffs have commenced proceedings under the Act.

The Statutory Scheme - The Act 46I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out much 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 be able to follow the reasoning, understand the principles, and for each to be satisfied that I have considered the evidence and the submissions in their application. 47The 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 dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, will. It is only if the statutory conditions are satisfied, that the court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate, to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary. 48The key provision is s 59 of the Act. The court must be satisfied, first, that each applicant is an eligible person within the meaning of s 57(1). 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 phrase is expressive of the person's status, as well as his, or her, relationship to the deceased. 49The Act does not confine the power to make a family provision order for the benefit of a child under the age of 18. There is no age limit placed on a child making an application or an order being made in her, or his, favour. 50Another category of eligible person is "a person who was, at any particular time, wholly or partly dependent on the deceased person, and who is a grandchild of the deceased person" (s 57(1)(e) of the Act). Similarly, there is no age limit prescribed by the Act in the case of a claim by a grandchild. 51In relation to s 57(1)(e), the test is twofold. Relevantly, the first is a relationship of dependence, whether wholly or partial, upon the deceased and the second is being "a grandchild of the deceased". 52The Act contains no definition of the words "dependent on". In general, the word "dependent" connotes a person who relies upon support of another, financial and/or emotional. Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support. 53In Amaca Pty Ltd v Novek [2009] NSWCA 50, Campbell JA, with whom other members of the Court of Appeal agreed, said (in the context of a claim under section 15B of the Civil Liability Act 2002): "44 In my view, the law remains accurately stated by the joint judgment of Sugerman P, Jacobs and Mason JJA in Middleton v Kiama District Hospital [1970] 3 NSWR 136. Their Honours said, at 138: 'Dependency is, moreover, a complex question of fact, which may involve the consideration of many elements, including both past events and future probabilities. It is not necessarily correlative with a legal duty to maintain. A person may in fact be dependent upon another who is under no legal duty to maintain him; and may be so dependent even though there is also in existence one who has legal duty to maintain, eg a husband his wife. On the other hand there may be no dependency in fact upon a person who is under a legal duty to maintain. The existence of the legal duty is, however, one of the many elements to be taken into account in deciding upon a question of dependency in fact. Dependency and actual support are not necessarily correlative. There may be dependency although for the time being there is no actual support. And it seems to us to be possible to figure cases in which there may have been a provision of support, or of some measure of support, at least for a short time or for some special purpose, which did not amount to dependency. The definition of "dependants" does not merely refer to one who was in fact supported by the deceased worker at the time of his death; a "dependant" is a member of the workers' family who was "wholly or partly dependent for support upon the worker at the time of his death". Dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased. As to all the above matters see Hodges v Scotts' Provision (Wholesale) Pty Ltd [1963] WCR 161 and cases there cited.'" 54In Skinner v Frappell [2008] NSWCA 296, Young CJ in Eq, (with whom Campbell JA agreed) sitting in the Court of Appeal at [85] wrote: "The matter as to what is required for dependency was fully dealt with by this Court in Petrohilos v Hunter (1991) 25 NSWLR 343. Although dependency is not limited to financial dependency, it does involve one person being beholden to another person for some material, or physical, help or succour, emotional dependency is not enough." 55In Petrohilos v Hunter (1991) 25 NSWLR 343, at 346-347, it had been said by Hope AJA: "I would respectfully disagree with the Master in both respects. The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language. This accords with what Samuels JA said in Ball v Newey at 491, that "'Dependent' in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed". If the correct view were that the context of the statute requires a limitation of the word to "financial or material" matters as McClelland J said in Re Fulop (dec'd) or to "other forms of dependence analogous to but distinct from financial dependence" as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period." 56In Re Estate of Hakim; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223, Palmer J said: "42 Dependence for the purpose of s 6(1)(d), so far as the cases have discussed, is seen as the giving of financial or other material assistance by the deceased over a significant period of time in order to meet a need of the eligible person, with the result that the recipient has come ordinarily to rely upon that assistance." 57In McKenzie v Baddeley [1991] NSWCA 197, Priestley JA (with whom Hope AJA agreed) held that the word "partly" in the phrase "partly dependent", whilst a word of "some elasticity", does not mean "substantially", but means "more than minimally", or perhaps, "significantly". Meagher JA commented that "[C]ommon sense requires that certain trivial activities should be disregarded". 58A similar view was taken by the Court of Appeal, more recently, in Alexander v Jansson [2010] NSWCA 176 at [13]. 59The question of dependency, whether whole or partial, is a question of fact. 60In the case of an applicant who falls within s 57(1)(d), (e) or (f), the Court must next consider and be satisfied, having regard to all the circumstances of the case (whether past or present) that there are factors which warrant the making of the application (s 59(1)(b)). (This consideration is relevant, in the present case, to the applications of Amiiy and Luke.) 61The Act does not specify the "factors which warrant the making of the application". In considering the meaning of what he described as "this poorly conceived and clumsily expressed subsection" in the former Act (which did not form part of the Draft Bill produced by the Law Reform Commission), M McLelland J said, in Re Fulop Dec'd (1987) 8 NSWLR 679 at 681 (approved in substance by the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241) that the factors are factors which, when added to facts which render the applicant an eligible person, give him, or her, the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased. 62Kirby P in Tsivinsky v Tsivinsky [1991] NSWCA 269, in dealing with the section of the former Act, which was in similar terms, said: "Insofar as s 9(1) gives any guidance concerning the factors 'which warrant the making of the application', it is Delphic. The language used is extremely broad in its generality ('all the circumstances', 'whether past or present', 'factors... warrant making the application', 'satisfies'). The only real clue as to what is meant is to be derived from the apparent policy of confining this additional, preliminary procedure to the particular categories of 'eligible person' contained in the definition paras (c) and (d) in s 6(1) of the Act." 63In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard AJA and Fitzgerald AJA, there was the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test than that which the Court of Appeal approved in Churton v Christian. 64In Penfold v Perpetual Trustee [2002] NSWSC 648, Windeyer J did not follow Brown v Faggoter. Bryson AJ also commented in Porthouse v Bridge [2007] NSWSC 686: "In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors ("there are factors") is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination." 65In Diver v Neal [2009] NSWCA 54 (also (2009) 2ASTLR 89), Basten JA, with whom Allsop P and Ipp JA agreed, said of s 9(1) of the former Act: "8 As noted above, compliance with this requirement was not the first issue addressed by the primary judge, although s 9(1) envisages that it is to be determined before the Court decides whether to "proceed with the determination of the application". In practice, the factors relevant to the issue raised as a preliminary matter are, to a significant extent, co-extensive with those which must be addressed in determining whether the testator made adequate provision for the applicant: see Churton v Christian (1988) 13 NSWLR 241 at 242-243 (Hope JA) and 248-249 (Priestley JA). Nevertheless, the express distinction between two classes of eligible person must be recognised. It appears to have been drawn on the basis that persons falling within the first category (comprised of those identified in pars (a) and (b)) are "regarded as natural objects of testamentary recognition", whereas those falling within the second category (identified in pars (c) and (d)) are potentially appropriate objects of testamentary recognition, depending upon their circumstances: see Churton at 252 (Priestley JA) applying the analysis of McLelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681." 66More recently, in Evans v Levy [2011] NSWCA 125, Young JA, with whom Campbell JA and Sackville AJA agreed, said: "[62] It would seem that what the drafter of the legislation of 1982 did was to endeavour to avoid some of the complications that had been found to exist with cases under the 1916 Act as to just who was an eligible person by broadening the category to a very extensive degree. However, to provide some sort of filter, s 9(1) was enacted so that, without the estate having to get into a great expense, the question of whether the application could possibly succeed would be determined early. Unfortunately, experience has shown that that was a vain hope. [63] However, the intended result of the wide nature of para (d) of the definition of "eligible person" and s 9(1) is to seek to restrict people whose claims should proceed to a hearing to those who are in very similar categories to those who are within paras (a) and (b) of the definition. [64] On s 9, the decision of M McLelland J in Re Fulop (dec'd) (1987) 8 NSWLR 679 has stood the test of time." 67It can be seen that the trend of authorities does not favour the view suggested in Brown v Faggoter. With great respect, I also regard the views expressed in the authorities referred to by Windeyer J, Bryson AJ, Basten JA, Campbell JA, and Young JA, as correct, and propose, in the circumstances, to follow their decisions. I have done so in other cases: see, for example, Glynne v NSW Trustee and Guardian; Lindsay v NSW Trustee and Guardian [2011] NSWSC 535; Tramantana v Harborne; Clarke v Harborne; Midson v Harborne [2011] NSWSC 1129. 68Other than by reference to the provision made in 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) leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for the applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the court to the provision 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. 69It 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". 70Importantly, there no longer appears to be any sanction to consider, in s 59(1)(c) of the Act, the provision made by the deceased during his, or her, lifetime for the applicant (see, s 9(2) of the former Act). 71"Provision" is not defined by the Act, but it was noted in Diver v Neal 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". 72Neither are the words 'maintenance' and 'advancement in life' defined. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at [115], 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." 73In 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." 74In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J 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." 75The 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 at [72] and at [77] per Buss JA. 76Each of the 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." 77Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571, 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." 78In 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." 79In Vigolo v Bostin at [114], Callinan and Heydon JJ said: "[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what 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." 80The first stage of the process provided for by s 59(1)(c) has been described as "the jurisdictional question": Singer v Berghouse (No 2) [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. 81Whether the applicant has a 'need' is a relevant factor at the first stage of the enquiry. 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 [42] (Tobias JA, with whom Beazley and Hodgson JJA agreed). 82Tobias JA said: "42. 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 the cause of that context that, in the present case, the "proper maintenance etc" of the appellant required consideration to guard against the contingency to which I have referred." 83In Devereaux-Warnes v Hall [No 3] at [81]-[85], 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]." 84In the event that the court is satisfied that the power to make an order is enlivened (i.e. it is satisfied that the Plaintiff is an eligible person, and, where necessary, that factors warranting have been satisfied, 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. 85The second stage of the process arises under s 59(2) and s 60(1)(b). 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. 86Section 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." 87It 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. There is no mandatory command to take into account any of the matters enumerated. None of the matters differentiate in their application between classes of eligible person. Similarly, there is no distinction based on gender. 88Considering 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 ss (2) will be largely, if not wholly, irrelevant. 89There is no definition in the Act of "financial resources" (which term is referred to in sub-s 60(2)(d). However, there is a definition of that term in 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." 90Of 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. 91Furthermore, 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 named in the deceased's will, whilst others do not. Importantly, also, many of the matters in ss (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1). 92Leaving 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. 93This 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. I am comforted in reaching this conclusion 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." 94And 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 the potential beneficiaries must be taken into account and weighed with all of the other relevant factors." 95Section 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. 96Section 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. 97The 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 which 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). 98The 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). 99Any 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). 100Section 66 of the Act sets out the consequential and ancillary orders that may be made. 101The court, also, may, at the time of distribution of an estate that is insufficient to give effect to a family provision order, make such orders concerning the abatement, or adjustment, of distributions from the estate, as between the person in whose favour the family provision order is made and the other beneficiaries of the estate as it considers to be just and equitable among the persons affected (s 72(2) of the Act). 102Section 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 or notional estate, or both, in such manner as the Court thinks fit. 103Pursuant to paragraph 24 of Practice Note SC Eq 7, orders may be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the value of the estate is less than $500,000.

Applicable Legal Principles 104Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were given in the context of the previous legislation, they are equally apt in a claim such as this one. 105Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate, to endeavour to achieve a '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 the correction of 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. 106In 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 deceased'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. 107In Stott v Cook (1960) 33 ALJR 447, Taylor J, although dissenting in his determination of the case, observed, at 453-454, 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." 108Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life, 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 [11] and [25]; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. 109The Court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair. 110In all cases under the Act, what is adequate and proper provision is necessarily fact specific. 111In relation to a claim by an adult child, the following principles, in my view, 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. (d)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) [1981] 2 NSWLR 532; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45. (e)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 [1979] HCA 2; (1979) 143 CLR 134 at 149. (f)Although some may hold the view that equality between children does not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not 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. 112In 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 instances, where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same." 113In relation to a claim by a grandchild, the following general principles are, in my view, relevant and should be remembered: (a)As a general rule, a grandparent does not have a responsibility to make provision for a grandchild; that obligation rests on the parent of the grandchild. Nor is a grandchild, normally, regarded as a natural object of the deceased's testamentary recognition. (b)Where a grandchild has lost his, or her, parents at an early age, or when he, or she, has been taken in by the grandparent in circumstances where the grandparent becomes in loco parentis, these factors would, prima facie, give rise to a claim by a grandchild to be provided for out of the estate of the deceased grandparent. The fact that the grandchild resided with one, or more, of his, or her, grandparents is a significant factor. Even then, it should be demonstrated that the deceased had come to assume, for some significant time in the grandchild's life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild's support and welfare, or else that the deceased has undertaken a continuing and substantial responsibility to support the applicant grandchild financially or emotionally. (c)The mere fact of a family relationship between grandparent and grandchild does not, of itself, establish any obligation to provide for the grandchild upon the death of the grandparent. A moral obligation may be created in a particular case by reason, for example, of the care and affection provided by a grandchild to his, or her, grandparent. (d)Generosity by the grandparent to the grandchild, including contribution to the education of the child, does not convert the grandparental relationship into one of obligation to provide for the grandchild upon the death of the grandparent. It has been said that a pattern of significant generosity by a grandparent, including contributions to education, does not convert the grandparental relationship into one of obligation to the recipients, as distinct from one of voluntary support, generosity and indulgence. (e)The fact that the deceased occasionally, or even frequently, made gifts to, or for, the benefit of the grandchild does not, in itself, make the grandchild wholly, or partially, dependent on the deceased for the purposes of the Act. (f)It is relevant to consider what inheritance, or financial support, a grandchild might fairly expect from his, or her, parents. 114The authorities that provide the basis for the above summary, in relation to grandchildren, include Tsivinsky v Tsivinsky; Sayer v Sayer [1999] NSWCA 340; MacEwan Shaw v Shaw [2003] VSC 318; O'Dea v O'Dea [2005] NSWSC 46; Simons v Permanent Trustee Co Ltd: Estate D Hakim [2005] NSWSC 223. 115In a small estate, as this one is, it is important to remember what Salmond J in In re Allen (Dec'd); Allen v Manchester [1922] NZLR 218, at 221: "Applications under the Family Protection Act for further provision of maintenance are divisible into two classes. The first and by far the most numerous class consists of those cases in which, owing to the smallness of the estate and to the nature of the testamentary dispositions, the applicant is competing with other persons who have also a moral claim upon the testator. Any provision made by the Court in favour of the applicant must in this class of case be made at the expense of some other person or persons to whom the testator owed a moral duty of support. The estate is insufficient to meet in full the entirety of the moral claims upon it, in the sense that if the testator possessed more he would have been bound to do more for the welfare of his dependants. In such a case all that the Court can do is to see that the available means of the testator are justly divided between the persons who have moral claims upon him in due proportion to the relative urgency of those claims." 116But even though the estate is quite small, all the relevant circumstances have to be considered before the court's decision is made. As has been said, "the smallness of the estate neither excludes jurisdiction nor full consideration": Re Clayton (dec'd) [1966] 1 WLR 969, at 971-2, per Ungoed-Thomas J. 117I make it clear that I do not intend what I have described as "applicable legal principles" or other "general principles", to be elevated into rules of law or the discretion, at the second stage, to be constrained by statements of principle found in dicta in decisions on similar facts. I identify them merely as providing useful assistance in considering the statutory provisions the terms of which must remain firmly in mind.

Credibility of Witnesses 118I am satisfied that, generally, there were not many facts seriously in dispute. 119I was impressed with the oral evidence given by Wendy. She answered, straightforwardly, the questions asked of her, and did not prevaricate in providing answers. She acknowledged that, on occasions, she received income (about $100) from weekend work, in cash, which she did not, always, deposit into her bank account. However, she said that she had not performed any weekend work this year. She stated, clearly, her sources of income from her employment, from Luke's father (by way of child support), a youth allowance and board received from Amiiy. She stated that her wage had increased from $381 to $400 per week (although this was not disclosed in her most recent affidavit). 120She acknowledged that with the assistance of Mr Franks, who she described as a close friend, she had applied to borrow $203,000, and that it was from this amount that the open offer made, if it had been accepted, would be paid. 121She denied that Mr Franks was providing her, directly, or indirectly, with any financial assistance by providing cash to assist her to meet her expenses and said that they were not in any romantic relationship. He did not live with her. They had not discussed whether he would live in the Yagoona property with her if she were able to purchase it. They had not discussed whether, if he was a joint borrower, whether his name would be on title to the Yagoona property. 122In the Defendant's submissions, Wendy was criticised for not providing a tax return, or group certificate, or any documents revealing the current amount of her superannuation. (She had acknowledged that the bank account statements that were provided did not reveal all sources of her income or her expenditure.) Importantly, it was submitted, it did not disclose income received, or expenses paid, in cash. Finally, it was submitted that she had not complied with Practice Note SC Eq 7. 123Whilst more care could have been taken in the preparation of her affidavits, I did not form a view that Wendy had not disclosed her financial and material circumstances. In particular, other than in respect of the cash income that she could earn, but had not earned this year, on a weekend, I cannot conclude that she had failed to disclose all of the income that she was currently receiving. 124Mr Franks gave evidence and was cross-examined also. He acknowledged, immediately, that he had joined Wendy in making the loan application; that he would be a joint borrower and would be liable for one half of the repayments; that he had offered other security (a property that he owned) but the proposed lender said it was unnecessary as there was sufficient equity in the Yagoona property); that he was prepared to pay one half of the loan repayments; and that he did not consider it necessary to be a joint registered proprietor of the Yagoona property and that he did not expect to be identified as a registered proprietor on the certificate of title. 125He said that he was prepared to assist Wendy because she was a close friend. He did not expect to be repaid for any contributions that he made to the repayment of the amount secured by mortgage. He regarded any amounts that he paid towards the mortgage debt to be a gift to Wendy as he did not expect her to repay any amounts that he paid. 126He had made enquiries and believed that Wendy had been in employment for about 12 years; that it was stable; and that her income was sufficient to repay at least one half of the mortgage repayments. He had even spoken to her employer. 127Mr Franks corroborated Wendy's evidence that their relationship was one of close friends only and that he did not anticipate any romantic relationship between them in the future. 128Whilst some might find the evidence of Mr Franks regarding his preparedness to assist Wendy hard to believe, having observed him in the witness box, and considering his other evidence, I have formed the view that I should accept his evidence. In the circumstances, particularly where the open offer had not been accepted, there was no reason for him to give the evidence that he did about these matters. 129In any event, the Defendant, in submissions, stated that the court was not asked to draw an inference that Mr Franks and Wendy are in any closer relationship than each asserted, or that I should disbelieve the evidence given by Mr Franks. What was put, however, was that the court should accept that Wendy had a friend "who is prepared to pay approximately $100,000 for her benefit" and that should she "ever be in need (which she is not currently) she would have this backup" (Para 7 of the Defendant's Submissions). 130Neither Amiiy nor Luke, each of whom had sworn affidavits, was cross-examined. However, the Defendant submitted that Amiiy had not provided any evidence of her financial position, even though it appeared that she was working and paying board to Wendy and that Luke's "needs", which are not able to be met by his parents, had not been identified. There is merit in this submission. 131The only witness called by the Defendant who was cross-examined was Gregory. Bearing in mind his medical condition and mental state, to which I shall refer, I thought he was doing his best to give honest evidence. For example, he admitted that he did not have written instructions from the deceased to withdraw money from her account, but that he had done so, with her verbal authority. He admitted that he had not repaid what he had borrowed, although he did not admit that he owed $11,000. (I am inclined to believe that he does owe the estate $11,000, but, ultimately, this will need to be determined by the Defendant and Gregory's financial manager.) 132There are aspects, however, to which I shall refer, where I do not accept his evidence, preferring, on such matters, the evidence of Wendy and of Mr Franks. 133It was submitted on behalf of Wendy that I should find that Gregory received $16,800 from the deceased's bank account whilst she was in hospital. Bearing in mind that the Defendant has been administering this estate for some years, and the executor's affidavit states that the debt owed by Gregory to the estate is $11,000, I am prepared to accept that amount as the debt due by Gregory to the estate. No doubt, the Defendant has satisfied itself that Gregory used the balance for, or on behalf of, the deceased. Gregory gave evidence that he paid some expenses for the deceased from her account. I consider that he probably did and I accept that evidence. 134There is no doubt that Gregory had received rent from Mr Franks from late 2007 that he did not account for to the deceased. This is hardly creditable conduct.

Relevant Facts 135I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60 of the Act. (a)any family, or other, relationship between the applicant and the deceased person, including the nature and duration of the relationship 136Wendy is the daughter of the deceased. She left home at the age of 24. 137She says that she moved to Karratha in Western Australia in 1985 and then lived in Townsville, Queensland, during which times, she kept in contact with the deceased. Subsequently, at the request of the deceased, she and her then partner, returned to NSW. 138She says that before, and after, she left home, their relationship was happy, loving or harmonious. She states, and I accept, that after she left home, she visited the deceased often and that the deceased "was an enormous support to me with raising my children". 139Even after the deceased was admitted to the nursing home, Wendy provided some support to her. She admits, however, that because of her work commitments, Amiiy and Luke visited the deceased more often than she did. 140I am satisfied that Wendy was, generally, a loving daughter to the deceased even though Gregory disputes that the relationship of the deceased and Wendy was happy or harmonious. According to his evidence, they did not get on. However, he gives no evidence to support that view of their relationship. Furthermore, Mr Franks gives evidence, which was not challenged, that Gregory had said to him that Wendy "got on good with Mum [and] I felt left out". 141Amiiy says that she lived with the deceased over many months on a number of occasions whilst growing up. The deceased "organised to get me to school each day and [to] do my homework". They had a close relationship that continued into Amiiy's adulthood. The deceased would help her financially, from time to time, if she needed help. She visited the deceased after she was admitted to the nursing home. 142There is nothing to suggest that their relationship was not happy, loving or harmonious. I am satisfied that Amiiy was a loving grandchild to the deceased. 143Luke says that he lived with the deceased, from time to time, on a number of occasions whilst growing up when Wendy was not well. The deceased, on these occasions, provided him with food and accommodation and arranged to take him to school. He visited her regularly at other times. 144There is nothing to suggest that their relationship was not happy, loving or harmonious. I am satisfied that Luke was a loving grandchild to the deceased. 145Gregory says that he always had a very close relationship with the deceased. There is no reason to disbelieve this evidence. I note that he lived with the deceased for most of his life. (Wendy denies his evidence about their relationship, but, there is no objective evidence to substantiate her view of their relationship.) 146The deceased does not appear to have acknowledged any disharmony with either of Wendy or Gregory. In this regard, each receives an equal share of her estate. (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 147Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal, or financial, obligation to Wendy imposed upon her by statute or common law. 148However, an obligation, or responsibility, to make adequate provision for the proper maintenance and advancement in life is recognised in the case of a child of the deceased. However, that obligation or responsibility applies to both of her children. 149To the extent that there is any obligation, or responsibility, arising as a result of their relationship as grandparent and grandchild, the deceased did not have any legal, or financial, obligation to either Amiiy, or Luke, imposed upon her by statute or common law. Each stayed with the deceased for periods of time and in this regard, it appears that on each of these occasions the deceased was assisting Wendy. For example, when Wendy's partner was dying, Amiiy stayed with the deceased "for many months to help me cope and to protect [Amiiy] from seeing her step-dad's difficult last days". 150The deceased did assume some obligation, and responsibility, towards each of Amiiy and Luke during the periods that each stayed with her. However, there is no suggestion, during these periods, that Wendy was abrogating her responsibility to them as their mother or that the deceased had taken over the direct responsibility for her and his support or welfare, or that she had undertaken a continuing and substantial responsibility to support each financially. 151The deceased did assume some obligation, and responsibility, towards Gregory, even though he was an adult and in employment. He lived with the deceased for most of his life. Any obligation, or responsibility, otherwise, was that naturally arising from their parental relationship. (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 152I have dealt with this earlier in this judgment. On any view, the deceased's estate is a small one. There is no notional estate. (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 153Wendy works part time as a chrome plater in a factory and is assisted by social security payments. She works 27 hours a week at the factory, earning a net income of $400 per week. She receives child support from Luke's father of $165 per week and about $110 per week, by way of youth allowance from Centrelink. She uses the youth allowance to pay for Luke's expenses. She receives $150 per week, as board, from Amiiy. (Otherwise, if Amiiy borrows money from Wendy, she generally repays it additionally to the amount for board.) 154Altogether, her weekly income is about $825 per week, although, if she works on the weekend, it can increase to $925. Her rent is $365 per week. 155Wendy has a 20 year old car ($500) and less than $1,000 in savings. Of course, she also has an entitlement to an equal share of the deceased's estate after the payment of estate liabilities to which I have referred. 156She has a credit card debt of about $7,000. 157I have earlier dealt with what she seeks out of the estate, which I have taken as the basis upon which she says inadequate provision has been made for her. 158I note that in submissions made on her behalf, it is said that she "seeks fair treatment under her mother's will" and that such treatment "may be ... proper accounting for funds and benefits already appropriated by Gregory". I have earlier referred to the scheme of the Act and its purposes. These proceedings are also inappropriate to perform a "proper accounting" although, of course, the benefits received by Gregory during the lifetime of the deceased will be a relevant consideration. 159In March 2011 (being the date of her only affidavit that deals with her financial and material circumstances), Amiiy was employed as an au pair working on a temporary visa in the USA. She was to finish that employment and return to Australia in July 2011. 160As at the date of swearing that affidavit, Amiiy was earning $195 per week. When she returned to Australia she was hoping to return to childcare work, which she had been doing part time before she went to the USA. She had approximately $350 in savings. She did not own a car, or any furniture, as she had been living with Wendy prior to travelling to the USA. 161There is no evidence of her current financial position. 162No submissions were made as to the nature of the provision that ought to be made for her. 163Luke is a student in Year 11. He lives with Wendy. He has difficulties with academic study and wants to learn a trade. He hopes to obtain an apprenticeship next year. He states that he believes the deceased "intended to assist me when I left school with further education". 164It was submitted that a legacy of $10,000 ought to be provided to Luke by way of advancement, or in the alternative, that provision be made for Wendy to enable her to purchase the Yagoona property. 165The Defendant is the Financial Manager of Gregory's estate pursuant to Financial Management Order of the Guardianship Tribunal made on 3 December 2008. On 1 June 2010, the Guardianship Tribunal ordered that the hearing of the Review of the Financial Management Order be adjourned for six months and, on 1 March 2011, it confirmed the Financial Management Order. 166Gregory had a career as an administrative assistant in the Commonwealth public service. He continues to receive an income from the Commonwealth Super Board of $787 per fortnight. He also receives a part pension from Centrelink of $490 per fortnight. Each week, the Defendant pays all Gregory's bills and provides him with $275 as an allowance (which Gregory says is insufficient). His account currently has a credit balance of $13,417. 167Gregory lives in a rented flat at Bondi. He has a six-month lease, which is renewable month by month. He pays $300 per week in rent and he receives a rent subsidy. He does not have a partner or any children. He is no longer employed. 168With the money from the deceased's estate, he states that he would like to purchase a home unit near the city, possibly in a complex where he can obtain some assistance with his daily needs. He has not given any evidence of his current accommodation being unsuitable for his current needs. 169It is suggested that he may be able to purchase a studio apartment for $250,000, although he does not appear to have any specific studio apartment in mind, and there is no evidence that he would be able to purchase one for that price. (In any event, I note that he would need to borrow some part of the purchase price whatever the result of the case. There is no evidence that he would be able to do so.) (e)if the applicant is cohabiting with another person - the financial circumstances of the other person 170Wendy lives with her children. She is Luke's sole guardian. When Amiiy lives at home, she assists Wendy with paying the rent. There is no other person whose financial circumstances are relevant. 171I have earlier referred to the financial assistance that Mr Franks is prepared to give to Wendy. However, they are not cohabiting, at the present time, and he does not otherwise assist her financially. (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 172Wendy says that she suffers physical illness that relates to her digestive system and that she has chronic pancreatic problems. Her symptoms occur "on and off". She has had time off work and has, in the past, needed hospitalisation. Her recent hospitalisation was for "gastritis". She has suffered stress as a result of the present proceedings. 173Neither Amiiy, nor Luke, gives any evidence of any physical, intellectual, or mental disability. There is some evidence that Luke has some "literacy and numeracy issues". 174There is some evidence of Gregory's medical condition. He suffers from a stress and anxiety disorder, displaying a very poor ability to cope with stressful situations. He has previously been diagnosed with "tardive dyskinesia and a mild drug induced extrapyramidal syndrome". It has also been described as "a neurological condition, specifically Tardive Dystonia, as well as General Anxiety, Major Depression and Post Traumatic Stress Disorder". 175Gregory takes a number of medications, which include - Micardis (80 mg daily) for the treatment of hypertension; Clonazepam (2 mg) for treatment of anxiety disorders; Escitalopram (20 mg) for the treatment of depression (and anxiety); and Panadol-Osteo twice a day for pain. 176He is incapable of managing his financial affairs. 177It is submitted that he has no prospect of returning to the work force or of otherwise accumulating sufficient capital to enable him to purchase accommodation. I accept that this is so. (g)the age of the applicant when the application is being considered 178Wendy is currently 53 years of age having been born in October 1958. Amiiy is almost 25 years of age having been born in May 1987. Luke is currently 16 years of age having been born in September 1995. (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 179None of Wendy, Amiiy or Luke specifically identifies any financial, or other, contributions to the acquisition, conservation and improvement of the estate of the deceased whilst the deceased lived at home. In fact, Wendy acknowledges in her affidavit that her parents purchased the Yagoona property shortly after they were married. 180Wendy says that from the time Gregory moved out of the Yagoona property, she has tried to maintain it. She cleaned out the house, removing, she says, 30 bags of rubbish. She collects the mail and keeps the home looking secure and lived in. In this regard, Mr Franks has given evidence, which is unnecessary to repeat, but which was not the subject of challenge, as to the state of the Yagoona property whilst he lived there, with his mother, in late 2007. 181Luke says that after the deceased went into the nursing home and after Gregory moved out of the Yagoona property, he helped Wendy maintain it. He says, by way of example, that on one weekend, they and some friends spent the whole weekend pruning the garden and tidying it, as it was very overgrown and the yard had a lot of rubbish in it. This work continued after the deceased died, he helping, sometimes, to mow the lawn and maintain the garden. 182It has not been submitted that either Wendy or Luke received adequate consideration (not including any pension or other benefit) for what she and he did. Whilst Gregory admits that Wendy did clean up the yard, he says, "It was not a big job". I do not accept his evidence on this topic. (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 183The deceased made no specific provision (other than as set out above in relation to the grandchildren), during her lifetime for any of Wendy, Amiiy or Luke. I have referred to the provision made for Wendy from the deceased's estate. (j)any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person 184There is some evidence of the testamentary intentions of the deceased other than her Will, administration in respect of which was granted. 185Wendy says, although Gregory denies it, that she was told by the deceased: "I want your children to always have a home here if ever they need it" and "If Greg doesn't have kids I'll leave them something in my will" 186Amiiy says the deceased said: "You should enjoy being young, but when you are ready to study I will help you with the costs" "Amiiy if you ever need anything I am always her (sic) for you." "I want you to always have a home to live in and I am going to provide something for you in my will" 187Luke says the deceased told him: "You're my only grandson, I want you to always have a home, I'll help your Mum with that" 188Mr Franks gives evidence of a conversation with the deceased in which she said to him that she wanted Wendy and her children to live in the house if Gregory left. 189I accept the evidence of each of the Plaintiffs and of Mr Franks on this topic. (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 190I have referred to the assistance provided by the deceased to Wendy, Amiiy and Luke, and also to Gregory. However, this assistance, in the case of each of them, does not appear to have been immediately before the deceased's death. 191I have also referred to Gregory having lived in the Yagoona property for most of his life. (It has been submitted that the value of his occupation following the deceased going into a nursing home should be calculated at $350 per week. There was no evidence that the Yagoona property could have been rented for $350 per week.) (l)whether any other person is liable to support the applicant 192Apart from the Commonwealth government's responsibility to continue to provide Wendy with a youth allowance, there is no other person with a liability to support her. (It is likely that this obligation may not last much longer.) Wendy and Luke's father of course, each has an obligation, to maintain Luke, at least until he is 18 years old. (m)the character and conduct of the applicant before and after the date of the death of the deceased person 193The Act does not limit the consideration of "conduct" to conduct towards the deceased. 194There was not very much evidence on this topic other than in respect of matters dealt with already. There is nothing to suggest any conduct of the type towards the deceased that might disentitle any of Wendy, Amiiy or Luke to relief under the Act. (n)the conduct of any other person before, and after, the date of the death of the deceased person 195There is some evidence of Gregory's conduct towards the deceased following her admission to the nursing home, which conduct relates to the use of funds in her bank account for his personal purposes. I have dealt with this evidence earlier. 196In addition, for a period of time in about 2007 and 2008, Mr Franks and his mother lived with Gregory at the Yagoona property and whilst there, paid rent to Gregory of $100 per week, which rent was not accounted for to the deceased. 197Mr Franks gives evidence that Gregory told him that he did not visit the deceased at the nursing home because he "got too agitated around these old people". 198I remember that Gregory has remained a chosen object, with Wendy, of the testamentary bounty of the deceased. (o)any relevant Aboriginal or Torres Strait Islander customary law 199This 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 200The only other matter that may have some relevance is that Gregory does not have any desire to return to the Yagoona property to live. He has stated that "he has no friends there, there has been nothing there for me since I was a child". In other words, he has no emotional attachment to the Yagoona property.

Eligibility 201There is no dispute that Wendy is an eligible person within the meaning of that term in s 57(1)(c) of the Act. It is, thus, unnecessary to consider, in her case, whether there are any factors warranting the making of her application. 202There is a dispute about the eligibility of Amiiy and Luke. This dispute is limited to whether each was wholly, or partly, dependent upon the deceased, since there cannot be any dispute that each is a grandchild of the deceased. 203In this case, I am satisfied that each was partly dependent upon the deceased on the occasions that she, and he, stayed at the deceased's home. At these times, it appears that the deceased provided each with many of her, and his, needs, both financial and emotional. At these times, also, the dependence of each upon the deceased was direct and immediate, albeit limited and for relatively short periods. 204Accordingly, I am satisfied that each Plaintiff is an eligible person.

Factors warranting the making of the Application 205No submissions were made on behalf of Amiiy and Luke regarding this aspect of her and his case. The Defendant submitted that there were no factors warranting the making of their application. I agree and I am not satisfied that there are any factors warranting the making of the application of each. Whilst there was a personal relationship and emotional bond between each and the deceased, it seems to me that it was no more than is appropriate to a grandparent and grandchild. 206I am not satisfied that the deceased had come to assume, for some significant time in the life of either Amiiy or Luke, a position more akin to that of a parent than a grandparent, with direct responsibility for her, and his, support and welfare. Nor am I satisfied that the deceased had undertaken a continuing and substantial responsibility to support either financially or emotionally. 207There is simply no evidence to suggest that a bond existed between either and the deceased that would give rise to each being regarded as a natural object of testamentary bounty. Interestingly, the deceased's Will does not specifically refer to either Amiiy, or Luke, despite the fact that they were her only grandchildren. Rather the relevant clause of the deceased's Will is in the following terms: "If any child of mine does not survive me, but leaves children of their own who do, I give to those children the share which would have gone to their parent. (This includes children born or adopted after I made this Will.)" 208Had either of her grandchildren been regarded by the deceased as natural objects of her bounty, in circumstances where Gregory, then, had no children, one might have thought that the deceased would refer specifically to each of Amiiy and Luke in her Will and make each a substitute beneficiary. 209Accordingly, the court cannot make a family provision order and the Summons, so far as it relates to each of them, must be dismissed. 210However, in case I am in error, in reaching the conclusion to which I have come, I shall turn to the other matters necessary to deal with, had factors warranting the making of each application been established. It will be appreciated that I address these issues, in the case of Amiiy and Luke, on the necessarily hypothetical, and in light of my conclusion, the artificial, basis, that each has established factors warranting the making of the application. 211As Wendy's proceedings have been commenced within the time prescribed by the Act, the first question for determination is whether, at the time when the court is considering the application, adequate provision for her proper maintenance, education or advancement in life, 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. 212I have set out the provision made for Wendy in the deceased's Will. I have also set out the size of the estate. In determining the answer at the first stage of the two-stage process, I must consider, amongst other things, Wendy's financial position, the size and nature of the deceased's estate, the totality of the relationship of Wendy and the deceased, the age, means capacities, and the relationship with the deceased, of the other beneficiary, Gregory, the claim of each on the bounty of the deceased, and the provision actually made for Wendy. 213Importantly, in this case, neither Wendy nor Gregory has accommodation that she, or he, owns absolutely. Each lives in rented accommodation and the rent paid by each is a similar amount. 214One major difference between the financial circumstances of Wendy and Gregory is that Wendy has one dependent child, although she receives some government assistance and child support for him. This will, no doubt, cease when he reaches 18 years of age, as will his financial dependence upon her. (He proposes to obtain employment then.) 215On the other hand, Gregory has medical conditions, which, so it seems, prevent him from working and from making his own financial and other decisions. 216Wendy's medical conditions do not appear to be as serious. In the affidavits, there was some evidence that Wendy experiences health problems which affect her capacity to work all the time and which give rise to a concern that she might not be able to continue to do so during her foreseeable working life. I remember, of course, her age, in this regard. I also remember Mr Franks' evidence regarding his enquiries as to the stability of her employment. 217I have identified the provision made for Wendy under the Will of the deceased. That provision would provide her with a capital sum for exigencies of life, and should not reduce her other benefits. It will also provide her with some supplement to her income. Investing, say $185,000 at 5 per cent per annum will provide her with about $9,250 gross. The net amount will assist in paying her current accommodation expenses. It has not been suggested that Wendy's current housing is in any way inadequate. 218Bearing in mind, also, that the estate is a small one and the deceased, herself, recognised the claim of Gregory on her bounty, the solution provided by the deceased in the Will to treat her children equally does not lead me to the view that she failed to make adequate provision for the proper maintenance and advancement of one of her children. To the contrary, I am satisfied, in all the circumstances, that she did make adequate and proper provision for Wendy. The Summons, so far as it relates to Wendy, must also be dismissed. 219However, even if I were wrong, I would not, as a matter of discretion, make an order in favour of Wendy. I am of the view that the terms of the deceased's Will reflect a consideration by the deceased of the comparable obligations owed to each of the two persons with claims upon her bounty. The claims of each of them, perhaps because of different circumstances, are not such as to warrant distinguishing between them. The deceased's testamentary freedom should not be interfered with to make greater provision for Wendy out of the share of the estate to which Gregory is entitled. 220It is also to be noted that the deceased was aware of the provision made, until she was moved to a nursing home, in 2005, for Gregory. She must have also been aware then, that he remained living in the Yagoona property. She wished for the Plaintiffs to live in that property only if Gregory did not live there. She would not, necessarily, have been aware that he had used her money for his personal expenses. However, what he took (at least as has been established at the hearing) is a debt due to the estate. The rental he received from Mr Franks was for a limited period of time. 221Remembering that the court is required to exercise its discretion so as to not "transgress unnecessarily upon the (deceased's) freedom of testation, but rather carefully and conservatively according to current community perceptions of the provision which would be made by a wise and just (deceased)": McKenzie v Topp [2004] VSC 90, per Nettle J. at [63], Wendy's claim must be dismissed. 222I have tested my conclusions in another way. Had no provision been made for Wendy in the deceased's Will, bearing in mind all of the circumstances of the case, including the size of the estate, would she have been likely to receive provision out of the estate greater than about $180,000? In my view, the answer to this question is in the negative. 223In relation to Amiiy and Luke, the proceedings were commenced within time. Each received nothing under the deceased's Will. Accepting, on the hypothetical and artificial basis to which I have earlier referred, that this results in inadequate provision being made for her or him, I would not, as a matter of discretion, for the same reasons set out above, make an order in favour of each. I would not reduce the provision made for Gregory, or for Wendy, to make provision for either Amiiy or Luke. It seems the competing claim of each of the deceased's children is far greater than that of Amiiy's or Luke's. 224It has not been suggested that Amiiy is not able bodied or that she is unable to work. Luke is still at school, but, once again, nothing is said about his state of health that would suggest that when he is ready to do so, he would not be able to enter the work force as he has planned to next year. 225In all the circumstances, the Summons should be dismissed. The Plaintiffs should pay their own costs of the proceedings. 226The question of the Defendant's costs is a difficult one, since if I order the Plaintiffs to pay its costs Wendy's share of the estate will be reduced by about $40,000. However, if the estate pays the costs, she will bear the burden of one half of them (which has been taken into account in calculating the quantum of provision to which she will be entitled). 227There is one aspect that may be relevant to the question of costs. It was clear, on a number of occasions the matter was before the Court prior to the hearing, and at the hearing, that Wendy was desirous of purchasing Gregory's share of the Yagoona property. An open offer was made, although for reasons set out in the Defendant's submissions, it was argued that the amount stated in the offer was inadequate. 228There is no evidence at all about any counter-offer made on behalf of the Defendant, even though, as stated, a representative of Gregory's financial manager was present in Court. Furthermore, until the Yagoona property is sold, whether Wendy's open offer was a reasonable one, cannot be determined. It may be, depending upon the sale price of the Yagoona property, that Gregory's position would not be any better than if the offer was accepted. 229In the circumstances, unless the parties are able to resolve the issue of costs by agreement, I shall stand over any argument on the burden of the Defendant's costs until after the sale of the Yagoona property. 230I should indicate that if the sale of the Yagoona property is by public auction, Wendy should be entitled to bid at the auction. She should not have to pay the whole of the purchase price, but only an amount equal to one half of the purchase price plus, say, $40,000 (in the event that I determine that the Plaintiffs should bear all of the Defendant's costs of the proceedings). In this way, her share of the deceased's estate can be notionally distributed. 231The orders that I make are that: (a)The Plaintiffs' Summons is dismissed. (b)There will be no order as to the Plaintiffs' costs of the proceedings, to the intent that they are to pay their own costs. (c)Any argument as to who is to bear the burden of the Defendant's costs of the proceedings is adjourned to a date to be fixed, which date is to be no earlier than 14 days following the Defendant entering into a contract for the sale of the Yagoona property and prior to any contract being completed. (d)The Court Book, the exhibits and subpoenaed material may be returned forthwith; with any exhibits returned to be retained intact by the party, or person who produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

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: 26 March 2012