Bowers v Bowers

The deceased's Will

1. By her Will dated 21 June 2017, the deceased: 1. appointed Sara and Peter as executors and trustees: Clause 2; 2. left her estate in six equal shares, one share to Rosemary, one share to be divided between Samuel and Harriet, one share to Stephen, one share to Sara, and one share to John: Clauses 3(a) to 3(e); 3. in relation to the remaining sixth equal share, Clause 3(f) of the Will provided for it to be left to John and Sara, to be held on trust, by them as follows: 1. John and Sara were directed to pay James the sum of $20,000 and to invest the remainder of the share bequeathed, and to apply, as they saw fit, so much of the income earned on such investment and so much of the capital of such share for, or for the benefit of, James (the Trust); 2. upon the death of James, any balance of the Trust fund then remaining, was to be given to such of Emma, Jeremy, and Tamara, who were then alive, and if more than one, in equal shares; 1. the executors were given power "[t]o apply for the maintenance, education, advancement or benefit of any beneficiary … the whole or any part of the income and up to one-half of the capital of that part of my estate to which that beneficiary is entitled …": Clause 5(a); and 2. no provision was made for David as "I have provided him with significant financial assistance during my lifetime": Clause 6.
2. There was no dispute that by Clause 3(f) of her Will, the deceased had created a testamentary discretionary trust in which the principal discretionary object was James.

Eligible Persons

1. The only eligible persons are the seven children of the deceased. Of the deceased's children (other than James), only Sara, as the Defendant/executrix, and Peter, gave evidence.
2. There was no dispute that each of Emma, Jeremy, and Tamara is not an eligible person: Tcpt, 20 November 2019, p 6(05-07).
3. Only James has made a claim for a family provision order. However, Emma, Tamara and Jeremy, is each a witness, called in Sara's case, who has raised her, and his, financial circumstances, respectively, as a competing financial beneficiary. I shall return to the financial circumstances of each later in these reasons.

The nature and value of the deceased's estate

1. In accordance with a direction made by the Court on 28 October 2019, the parties, provided an Agreed Schedule, but on the second day of the hearing, provided an amended Agreed Schedule that contained: 1. the assets and liabilities of the estate at the date of death; 2. the assets and liabilities of the estate at the date of hearing; 3. the estimated costs of each party calculated on the ordinary and on the indemnity basis inclusive of GST; and 4. any costs of any party that have been paid, and in relation to the Defendant, whether those costs have been paid out of the estate of the deceased.
2. I have taken what follows from the amended Agreed Schedule, a copy of which was marked as Ex AS1, the following information (omitting a reference to cents, which may explain any apparent arithmetical error). This evidence is not the subject of dispute.
3. As at the date of death, and according to the Inventory of Property attached to the Probate document, the deceased's estate consisted of: Xxx High Street, North Willoughby $2,300,000 (Note: the property subsequently sold for $1,950,000.00) Shares - Telstra (1,000 shares) $3,740 Shares - NIB Holdings (2,100 shares) $13,545 Monies held in NAB Account XXX4857 $39,968 Monies held in CUA Account XXX2386 $10,373 Monies held in CUA Account XXX1688 $20,006 Monies held in IOOF $19,955 Total value of Estate $2,407,589

1. Pursuant to Sara's affidavit sworn 21 October 2019, the deceased's estate, at that time, consisted of: Shares - Telstra (1,000 shares) E$3,560 Shares - NIB Holdings (2,100 shares) E$14,490 Monies held in Trust Account of Cameron Legal $92,361 Monies held in CMA Account of Cameron Legal $1,801,442 Commonwealth Bank account $1,280 Total distributable estate, omitting costs E$1,913,135

1. In order to finalise the estate, the shares with Telstra and NIB Holdings will need to be sold. The parties agreed that the estimated costs involved, and the potential CGT on the sale would be relatively modest, and that the estimated costs and expenses, and CGT, if any, was not included in the Agreed Schedule.
2. The gross value of the deceased's estate, at the date of hearing, was $1,913,135. Each one-sixth share, at this time, with no deduction for the costs of the proceedings, would have equated to $318,855.

Costs and Disbursements of the Proceedings

1. Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Chapter 3, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.
2. Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased; while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased's estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.
3. On the second day of the hearing, the Court granted leave to file an affidavit of Mr A Ng, the solicitor with the conduct of the case on behalf of James. He disclosed that the estimated costs and disbursements for James, calculated on the indemnity basis, were $137,500; and that the estimated costs and disbursements, calculated on the ordinary basis, were $96,250 (inclusive of GST). At the time of the making of Mr Ng's affidavit, James had not paid any of these costs and disbursements.
4. Mr Ng's also stated that the costs and disbursements are not payable on a conditional basis and that there is no uplift factor in respect of those costs and disbursements. The affidavit further disclosed, however, that there is a conditional fees agreement with counsel, and that her fees are to be paid on a conditional basis. There is no uplift fee in respect of those fees.
5. Also, on the second day of the hearing, the Court granted leave to Sara to file an affidavit of Ms K J Fulcher, the solicitor with the conduct of the case on behalf of Sara. She disclosed that the estimated costs and disbursements for Sara, calculated on the indemnity basis, were $134,485; and, as set out in the Agreed Schedule at par D, Sara's estimated costs and disbursements, calculated on the ordinary basis, were $94,139 (inclusive of GST).
6. Ms Fulcher also disclosed that Sara has paid, out of the estate of the deceased, amounts totalling $44,585. It follows that the balance of Sara's costs and disbursements, calculated on the indemnity basis, is $89,900.
7. In the course of the discussion during the opening of the case, counsel for the parties agreed that in the event that James was successful in obtaining an order for provision, the usual order for costs should be made. In the event that James was unsuccessful, counsel for James stated that she would wish to make submissions that his costs should come out of the deceased's estate: Tcpt, 20 November 2019, p 11(15-40).
8. Later, counsel for Sara stated that Sara would not seek costs from James in the event that the Summons was dismissed: Tcpt, 21 November 2019, p 134(11-13). Because of the result of the proceedings, this is no longer a relevant matter.
9. Shortly before the conclusion of the hearing, the Court was informed that in the event that James were successful, a gross sum costs order for $96,250 could be made for his costs and disbursements calculated on the ordinary basis, and that a gross sum costs order for $90,000 could be made, being the balance of Sara's costs and disbursements, calculated on the indemnity basis. (The parties and their legal representatives are to be commended for reaching agreement on the quantum of costs, as it was clearly in their interests, and in the interests of the beneficiaries, to do so. The duration of the administration of the estate will now be shortened as costs will not have to be formally assessed.)
10. The total of the costs and disbursements that will be ordered to be paid out of the deceased's estate, taking into account the amount already paid on account of Sara's costs, will be $186,250.
11. It follows that the value of the available net distributable estate out of which an order for provision could be made was $1,726,885. It also follows that, each one-sixth share of the deceased's estate, will now equate to about $287,814.

The deceased's testamentary intentions

1. Whilst the Act refers to "testamentary intentions of the deceased" (see, for example, s 8 and s 60(2)(j)), there is no definition of that term in the Act.
2. James stated, more than once, during his evidence, that the deceased did not discuss her testamentary intentions with him. He did, however, rely upon various documents said to support the submission that her intention was for him to receive the whole of her estate. As late as in his counsel's written closing submissions, it was submitted that: "5. The deceased's love for Mr Bowers is shown by her testamentary intention in 2016 whereby she had intended to leave her whole estate to Mr Bowers …"
3. The documents which I have read, and to which I shall refer, and the evidence of various conversations that I accept were had with the deceased, do not support this submission. In my view, the documents relied upon are merely part of the instructions to a solicitor for the preparation of her Will and, as will be read, only part of her deliberations for the ultimate distribution of her estate on her death.
4. There was no evidence of any formal, duly executed, Will, other than the last Will of the deceased.
5. There is some evidence that, in August 2016, prior to making her final Will, the deceased had attended upon solicitors, with Peter, and had given instructions for the preparation of a Will. There is a diary note, dated 19 August 2016, of instructions, which refers to the fact that the deceased had 7 children; that James had a "mental disability" and that he "lives in London". There is a reference to a "trust" of the whole estate, with James as the "principal beneficiary". The "income [was] not to effect [sic] Centrelink entitlements". On James' death, the estate was to be divided between the deceased's remaining children, other than David, and with one share passing to Emma, Tamara and Jeremy. Later, in the diary note, there is a reference to "1/6 to each child" with "James' share to be held by John and Sara on protective trust", with the residue to Emma, Tamara and Jeremy.
6. I am satisfied that the deceased, at the time the diary note was created, had not finally determined how her property was to pass, or be disposed of, after her death, and that she was, then, still contemplating, and seeking advice on, the different ways of distributing her estate. This conclusion is confirmed when one considers the evidence of what followed the initial instructions from the deceased.
7. By letter dated 13 October 2016, Mr Cameron of Cameron Legal, sent to the deceased a draft Will, an Enduring Power of Attorney and an Appointment of Enduring Guardian. The draft Will provided, in the event that James survived the deceased, for the executors to settle the residue of the estate on a testamentary trust, "The James Richard Bowers Testamentary Trust", with the "Income Beneficiary" being James, the "Default Beneficiaries" being Rosemary, Samuel, Harriet, Stephen, Sara, John, Emma, Tamara and Jeremy and the "Vesting Day" being the date of death of James.
8. Clause 8.2 of this draft Will provided: "8.2 IN THE EVENT that the income of the Trust fund paid to JAMES will result in the reduction or loss of a benefit of any type to which he would otherwise be entitled I DIRECT that my Trustee may pay, distribute or allocate any part of the income of the trust fund to the default beneficiaries in such shares or amounts as my Trustee in their absolute discretion see fit." (emphasis in original)
9. Clause 11.4 of this draft Will provided that the Trustee had the power to: "Apply for the maintenance, education (including travel to broaden the mind), advancement or benefit of a beneficiary the whole or any part of the capital and income of that part of the trusts created in clauses 6 and 7 to which that beneficiary is entitled or may in future be entitled and make a payment or payments to a minor beneficiary's parent or guardian or a person with whom the minor beneficiary resides and accept the receipt of that payee as an absolute discharge …"
10. Further instructions must have been received from the deceased because there are, then, other draft Wills, subsequently prepared, and sent to the deceased for her consideration. For example, under cover of a letter dated 6 December 2016, from Cameron Legal, a draft Will was sent to the deceased.
11. On 13 March 2017, there is a reference to Peter having "phoned to book an appointment for his mother Beth Bowers for 18 April 1:00 pm to finalise her Will".
12. A further draft Will was then sent under cover of a letter dated 3 May 2017, from Mr Cameron to the deceased. There is another draft Will, with handwriting on it, which appears to be the draft of Clause 3(f) of the final Will of the deceased.
13. The deceased gave further written instructions for changes to her Will by email dated 7 May 2017, addressed to Mr Cameron. These instructions included that James was to receive $20,000 "when the will is executed" out of the one-sixth share that was to be held in trust for him and "David … [was] to accept the money I gave to him during the 1990's as his share of my estate". (There is no suggestion that anyone other than the deceased sent this email.)
14. The draft of her final Will was sent to the deceased under cover of a letter dated 2 June 2017. The deceased signed the Will on 21 June 2017.
15. Having read the documents annexed to James' affidavit, I am satisfied that the deceased did not have any fixed, and final, testamentary intention until she signed the Will, Probate of which has been granted. This is not to say that she did not contemplate different provision to be made for James. However, none of the considerations included leaving her whole estate to him absolutely.
16. Peter gave oral evidence that he had suggested a form of trust to the deceased in relation to the one-sixth share to be held for James: Tcpt, 21 November 2019, p 118(09-11). I accept that he did so, but it was the deceased who executed the Will in which his suggestion was taken up.
17. Peter also gave the following evidence: "19. I did not go into the appointment with Mum initially. However, I was well versed in Mum's medical issues, and knew she suffered from a severe hearing loss … I recall Robert Cameron asking me to join in the conference so that I could assist Mum with her hearing. 20. I am aware during this appointment Mum discussed selling the house, depositing the entire proceeds into a family trust with a portion of the investment returns distributed to help support James, additional to any pension entitlements he was receiving with Robert Cameron. At that appointment Mum asked Mr Cameron to draft a Will to that effect. However, after reviewing the draft Mr Cameron prepared and upon further careful consideration Mum decided that it did not reflect her wishes for her estate and would not be an effective way to draft her Will. I recall having the following conversation with Mum afterwards with words to the effect: Mum: "I don't think it's fair that my other children have to wait for their money if I place all the money in trust. I know what it was like when my own mother died and I couldn't get my inheritance for a number of years because your uncle was living in your grandmother's house. I think I will instruct my solicitor that my estate should be distributed without delay so as to avoid the possibility of the types of issues and problems that arose with my own mother's estate. Also, I don't want a delay in the distribution of my estate to be a cause of disharmony between my children." 21. Mum then asked Mr Cameron to redraft the will in the current form."
18. (There appears to be an error in the transcript of proceedings which refers to an objection taken by counsel for James to the second sentence of par 19 of Peter's affidavit. Following that objection, counsel for Sara declined to press the sentence and as a consequence I did not read it: Tcpt, 20 November 2019, p 16(06-13). In fact, the notation made on the affidavit in the Court file depicts that objection was taken to the third, not the second, sentence of par 19, and it is that sentence which is omitted from the quote above and which I have not read.)
19. In cross-examination, Peter gave the following evidence: "Q. It was also your idea, wasn't it, that the beneficiaries should not wait until James' death before they receive their legacy, that was your idea as well? A. No, it was not. Q. I put it to you that it was your idea and when you went on that day to Mr Cameron's office that you discussed with him about making sure that the beneficiaries received their legacy before James' death? A. I did not."
20. Bearing in mind that James gave evidence that the deceased did not ever discuss her testamentary intentions with him, and as James was not present at the conference referred to, it is difficult to understand how the questions could have been asked in the form that they were. Be that as it may, having read the evidence advanced on this topic, and having seen Peter give his evidence, I have no hesitation in accepting that he did not make any suggestion that "the beneficiaries should receive their legacy before James' death". Rather, I consider that the genesis of the deceased's decision was her own experience with Mary's estate, to which reference has been made.
21. Peter also gave evidence, about which he was not cross-examined, that the deceased knew that James had been suffering from a mental illness; that James' work history was irregular; and at times, he had worked for several months and at other times, he was unemployed but seeking employment.
22. James acknowledged in a handwritten note addressed to Centrelink (Ex 12), that the deceased "left my 1/6th share on trust with my brother and sister owing to my mental illness". He acknowledged, in his oral evidence, that this may have been the reason for creating the trust in the Will, although he maintained his denial that she had discussed her concerns with him: Tcpt, 20 November 2019, p 69(45) - p 70(18).
23. His oral evidence on this topic was: "Q. Do you remember that you provided a document to Centrelink in which you gave an explanation as to why your mother had created the trust in the Will? A. I don't recall that. Q. (Document shown). Do you recognise that is a handwritten note that you prepared for Centrelink? A. Yes. Q. You see there that you talk about your mother creating the trust because of your mental illness? A. Yes. Q. By that I suggest what you meant was that your mother was aware that you had a problem managing money? A. I think I've told you before that my mother has never-never did raise with me my spending habits. Q. You provide a copy of the Will to Centrelink? A. I can't recall. Q. Look at the first two lines "Attached is my mother's Will. She died recently"? A. Yes. Q. You agree that you provided a copy of the Will? A. Yes, looks like it. Q. You then go on to say "She left my one sixth share on trust with my brother and sister owing to my mental illness"? A. Yes. Q. When you sent that to Centrelink you realised that she had a reason for creating the trust in the Will? A. That may have been her reason, yes. Q. You knew it was her reason; didn't you? A. No, I didn't. My mother never discussed that with me. Q. You knew that the reason she created the trust was that she realised that if she left you money outside the trust it would be squandered? A. No, I didn't know that. I don't know it."
24. Peter also gave evidence, which I accept, that: "25. I recall at the time of the property settlement Mum repeatedly asked James to purchase a property for himself to live in, or as an investment, in Sydney, however, I am aware that he ignored her advice, as Mum had the following conversation with me … with words to the effect: Mum said: "I told James that he should buy himself a unit with the money he received from his property settlement. But James tells me he is going to move to the UK to live and he is ignoring my advice.""
25. Although it was denied by James, I find it likely that the deceased did tell James that he should buy a unit with the proceeds from the property settlement: Tcpt, 20 November 2019, p 44(38-47).
26. Debra gave evidence that, following her separation from James, their three children remained living with her: Tcpt, 21 November 2019, p 105(03-05). She also gave evidence that her income was sufficient to enable her to support the children: Tcpt, 21 November 2019, p 106(03-05). She also gave written evidence, about which she was not cross-examined, of having had a number of conversations with the deceased. She wrote: "17. I recall speaking to the deceased about the plaintiff. The deceased was aware of the plaintiff's pattern of behaviour when it came to spending money on himself, his failure to contribute to child rearing, or to provide financial support to his children from 2006 until the death of the deceased. The deceased would say to me, with words to the effect: The deceased: "I am disappointed in him (meaning the plaintiff)." And: "He should not be given large sums of money." And: "He is wasting money on himself and not providing support to his children.""
27. Whilst James did not deny that he had not provided financial support to his children, Debra denied the proposition, advanced on behalf of James, that he had not paid child support because he could not afford to do so. She gave evidence that "after the financial settlement occurred and the money went into our respective bank accounts, James went on an extended overseas holiday for more than six months": Tcpt, 21 November 2019, p 114(35-41).
28. There is also in evidence a copy of a letter, dated 8 February 2007, from Adrian Twigg & Co, James' then lawyers, to Debra (Ex 3), in which it was stated that James had: "recently contacted the Child Support Agency and was advised that the child support payable by him for all three children, calculated based on his current income, is $629 per month. Our client wishes to pay this amount to you each month by direct deposit into an account nominated by you."
29. There is no suggestion, made in this letter, that James was financially incapable of doing so at this time.
30. In relation to these matters, I accept the evidence of Peter and Debra where it conflicts with the evidence of James.
31. Counsel for James maintained throughout her submissions that the deceased intended to provide for James but that she had mistakenly believed that he had a "mental disability" and that the deceased "did not properly appreciate all the circumstances surrounding [his] mental health needs". If this submission was intended to mean that the deceased did not have any medical evidence which suggested a causal connection between the medical conditions from which James suffered and his then spending habits, that submission should be accepted. More recent medical evidence, which was read in the proceedings, does not support such a current connection either.
32. However, bearing in mind all of the evidence, I am satisfied that the deceased did know that James had not used any part of the proceeds of his property settlement with Debra to purchase accommodation for himself, or to pay child support for any of his three children. I also accept that the deceased had suggested to James that he purchase such accommodation and that, generally, she was aware of his pattern of behaviour when it came to spending money on himself.
33. The deceased was entitled to, and did, take into account her obligation to make provision for each of her other children and if appropriate, her grandchildren. She carefully considered, over a prolonged period of time, that obligation, and she determined to make provision for each, other than David, for whom she believed provision had been made during her lifetime. (As stated, David has made no claim for provision.) Peter also did not receive anything under the Will, but his "share" appears to have been gifted to his children. These seem to be the reasons why the deceased made her final Will in the way that she did.

James' medical condition

1. There was no dispute that James has been suffering from some forms of mental illness for many years. The deceased appears to have recognised this.
2. A summary of the medical records in evidence (Ex A) reveals: 1. Commencing in about 1992, James was suffering from depression. The condition presented in earnest in 1994: Ex A/1. 2. He had a severe depressive episode in 2004. He had 15 sessions of outpatient treatment with Professor Tennant, a psychiatrist. He was prescribed anti-depressant, and antipsychotic, medication: Affidavit, James Richard Bowers, 15 October 2018, annex B. 3. In 2011, his mental state was stable and he was "in remission from his recurrent depressive disorder". He was then taking a number of medications: Ex A/5; Ex A/9. 4. In January 2012, he had been unemployed for about 8 months. However, he was "in remission from his mood disorder [which has been] kept under control by the combination of Lithium and Escitalopram and has been fit and capable for work …": Ex A/13-14. 5. In July 2015, he was reported as "feeling depressed and anxious due to a range of current problems, including being bullied at work by colleagues, having a health problem with glucoma [sic], financial worries due to not having a good job and a relationship problem with his wife": Ex A/27. 6. In December 2015, he reported that his main problem was depression, which condition he related to being out of work: Ex A/37. 7. In June 2016, James made a claim for permanent disability under his superannuation policy. After commencing litigation, which was settled, he received, after tax was withheld and a few minor expenses paid, about $319,000. After the payment of his costs and disbursements of those proceedings, he received $270,584, and it was this amount that was deposited into his nominated bank account in the United Kingdom by Overseas Telegraphic Transfer on 13 November 2017: Ex 4. 8. In a Group Risk Claims Preliminary Medical Attendant's Statement dated 6 December 2016, the primary diagnosis given was "Bipolar affective disorder - predominant depressive symptoms + recurrent depressive disorder" and secondary diagnosis was "Glaucoma": Ex A/51. 9. In February 2017, he was referred to the West London Mental Health Service with "Low mood, nightmares, can't sleep struggles to get out of bed because he lacks the energy and motivation, poor concentration and lack of enjoyment": Ex A/59. 10. In June 2017, James was diagnosed with "a recurrent depressive disorder, current episode moderate … he is on a combination of anti-depressants and mood stabilisers. He has had considerable psychological and psychiatric treatment over the years without any lasting benefit": Ex A/46. 11. In November 2018, he was described as having an "affective disorder". "His symptoms are worse in the morning with a classical diurnal variation and he has a poor attention span with poor concentration. He is also sleeping badly and has lost his confidence. He is feeling desperate at present … Mr Bowers is suffering from a severe depressive episode with suicidal ideas at present … I have increased his dosage of antidepressants … He has bilateral glaucoma as well and he would benefit from weekly supportive counselling and psychotherapy on a regular basis … In view of the recurrent nature of this disorder, the prognosis is poor for complete recovery …": Ex A/134-135. 12. He has never had any episode of hypomania (a mild form of mania, being a mood state marked by elation and hyperactivity) and has had no previous admissions to any psychiatric unit: Affidavit, James Richard Bowers, 15 October 2018 at annex B.
3. There is a report about James' medical conditions dated 10 September 2018, from Dr Julian Short, a consultant psychiatrist. James has consulted Dr Short twice, once in January 2005, and then on 7 August 2018. Dr Short reported that "[O]ver the course of time, Mr Bowers' diagnosis has changed and it has emerged that he suffers a severe Schizophrenic illness" (emphasis removed from original). The report goes on: "While I do not believe there is any problem with self-care or independent living, Mr Bowers suffers severe limitations in his social activities, owing to the damage to his personality secondary to his illness. The changes he has suffered have and will continue to have a profound effect upon his interpersonal relationships and are such that he could not possibly work in the practice of law for which he is qualified. While Mr Bowers' intellect remains unimpaired, the requirements of collaborative work and interpersonal sensitivity would be quite beyond his capacity. His ability to appreciate the needs and respond to the subtleties of every day interactions of colleagues or clients will remain grossly impaired. In any interpersonal situation, there would be such a glaringly obvious abnormality in his behaviour and conversation that he would be immediately labelled as different and peculiar. Such as the degree of his disability that I do not believe he would be able to function in any workplace. It would be more than reasonable to question my ability to make such statements on the basis of but two meetings, especially as our consultations have been many years apart. Normally I would not be willing to write definitively about an individual with so little contact, however the severity of Mr Bowers' illness is very evident and my more than forty years experience as a psychiatrist leave me with little hope that my assessment of his disability will be proven wrong. In summary, despite Mr Bowers' high level of intellectual competence, he would be quite unable to attend work or to participate in education or retraining. The prognosis for his illness and his future function in life remains bleak in the extreme." In a subsequent report dated 4 December 2018 from Dr Short, he opines: "I have struggled with a diagnosis for Mr Bowers, initially seeing him as having an affective illness. Unfortunately the clinical picture was complicated by development of a delusional belief system and this, combined with a quite extraordinary lack of affect, had led me to diagnose a schizophrenic illness. On reviewing him today, this was obviously not correct and although his affect is limited and somewhat odd, it is clear he has a chronic depressive state, which fortunately has been helped by the addition of a small dose of lithium carbonate to a combination of antidepressants."
4. It seems likely that the picture of James' ability to maintain employment is not as bleak as Dr Short suggested. It does not appear that, since the report was prepared, and at a time closer to the hearing, Dr Short was informed that James had been in employment since 10 July 2019 or that he was in employment at the date of the hearing: Tcpt, 20 November 2019, p 71(45) - p 72(05). (No subsequent report by Dr Short was in evidence.)
5. It was not suggested that stable employment is not maintained because he is a malingerer. To the contrary, I formed the impression that James is highly motivated to seek, and try to maintain, employment as a solicitor.
6. Whilst it was suggested that his inability to maintain a job is because of an inability to take direction, there was no evidence about this. Neither was there any evidence from any employer that he had been terminated because of his mental state: Tcpt, 21 November 2019, p 111 - p 112. Regrettably, there was no evidence, at all, from any employer, as to the reasons for the termination of his employment.
7. Bearing in mind that he is compliant with his medication regime, it is not clear why the medications that are prescribed, and that he takes, do not alleviate the symptoms of his condition.
8. Because an individual has a physical and mental ability to undertake certain tasks, it does not necessarily follow that he, or she, has a significant earning capacity. Earning capacity is measured "by reference to the individual, when viewed with all his, or her, characteristics, in the labour market": Nominal Defendant v Livaja [2011] NSWCA 121 at [65] (Basten JA for the Court), followed in Mead v Kerney [2012] NSWCA 215 at [18] (Macfarlan JA, McColl JA and Sackville AJA agreeing); Dal v Chol [2018] NSWCA 219 at [9] (White JA); and in Fuller v Avichem Pty Ltd t/as Adkins Building & Hardware [2019] NSWCA 305 at [45] (Macfarlan JA, White JA agreeing), [91]-[92] (Payne JA). Yet, common experience demonstrates that there are many people in the workplace, and in society generally, who might well be described as suffering from depressive illnesses, who manage to hold down, successfully, positions of employment.
9. The medical evidence, overall, does not lead to the conclusion that James does not have any earning capacity: s 60(2)(d) of the Act. It does seem clear, however, that his illness has a profound effect on his interpersonal relationships, and that this may be a factor, but not the only factor, that affects his capacity to maintain stable employment.
10. Having read all of the evidence, I am satisfied that whilst James is able to, and currently does, work as a solicitor, it may be that his employment will not always be permanent, stable, or continuous. There may be periods of unemployment, the precise medical reasons for which, ultimately, probably do not matter.

James' ability to manage money

1. The parties spent far more time, and energy, on whether James could handle money. This issue arose as a result of what was said to be the deceased's concern that he was dissipating the proceeds from his property settlement and that he should not be provided with a capital sum. I have dealt with some of the evidence earlier.
2. If James had any problem handling money during his marriage to Debra, she did not give evidence that it caused them much, if any, financial hardship.
3. There is evidence, however, that, by about August 2011, James had spent virtually all of what he had received, in 2007, from his property settlement with Debra, as well as the income that he had earned during that period.
4. In an email dated 13 August 2011, James told Peter that he was "doing it tough … and was wondering if you could see your way clear to lend me some money". Peter responded that he would not send money to James in London, but would send a "one-way, non-refundable, airline ticket to get you back to Sydney". The offer was rejected: Ex 7.
5. James stated, more than once, that he did not believe that he required someone to look after his finances. He added: "My mental health issues do not impact on my ability to manage my finances, but rather relate to my impaired ability to form interpersonal relationships which is the reason why I find it difficult to sustain permanent employment."
6. This view is slightly different to what he is recorded as having told the Gateway Worker in Ex 2. In September 2012, James is recorded as having said that he "puts his spending habit down to his mental state". Despite acknowledging that he had said this, he denied that "that is a problem that still continues to exist": Tcpt, 20 November 2019, p 69(17-26).
7. Counsel for Sara cross-examined James on expenditure after 2006. He suggested that James had received, by way of the property settlement, and the amount received in 2017, by way of the litigation about $1.0 million, and that amount had all been spent. Whilst James accepted that about $1.0 million had been received, and spent, he did not consider "that to be an excessive amount": Tcpt, 20 November 2019, p 69(08-15).
8. The earlier comment that the parties spent far too much time, and effort, on this issue, is demonstrated by the fact that there was tendered on James' behalf, and marked as Ex B, a folder comprising over 830 pages of bank statements (together with an aide memoire) (to none of which was specific reference actually made), whilst Sara tendered, as Exhibits 8, 9, 10 and 11, a summary of transactions on his Metro Bank (Metro) Card, his HSBC credit card, for his hotel expenses whilst he was in Sydney in 2018, and of his taxi expenses (upon which James was cross-examined).
9. Exhibit 8 revealed that in the period between July and December 2018, he had spent via his Metro credit card account £29,615.
10. Exhibit 9 was a summary of expenditure on his HSBC account which revealed expenditure of £47,178 in the years 2009 to 2013.
11. Exhibit 10 was a summary of James' accommodation expenses at two hotels in Sydney. At the first, a hotel in Potts Point, the summary disclosed that James spent a total of about £6,007 between June and October 2018. In cross-examination, James denied that this was expensive: Tcpt, 20 November 2019, p 68(18-20). The second hotel was a holiday apartment complex in Manly Beach. The summary disclosed that James spent a total of about £3,699 in August 2018.
12. Exhibit 11 was a summary of taxi charges incurred by James during the period July 2018 to October 2018. The summary disclosed that James spent £888.10 on taxis in that period.

The relevant law when an applicant may dissipate the provision made

1. In Green v Perpetual Trustee Co Ltd (Supreme Court (NSW), 10 July 1985, unrep), Hodgson J (as his Honour then was) wrote, at 12, that the Court could not "have regard to any likelihood of dissipation of any provision for the plaintiffs except in relation to the actual order" which was made, and that "such consideration could suggest that there should be terms attached to the order to prevent dissipation".
2. In Howarth v Reed (Supreme Court (NSW), Powell J, 15 April 1991, unrep) Powell J (as his Honour then was) referred to the possibility of a provision not being applied by the person for the purposes intended by the Court. His Honour wrote, at 43: "While, as will be apparent from what I have earlier written, I am deeply concerned at what I regard as the totally unrealistic approach to the management of their affairs adopted by Mr and Mrs Howarth, which approach, if persisted in, will almost inevitably lead to the benefit of any Order which might be made in Mrs Howarth's favour being dissipated in short order, it seems to me that, while that is a matter which may bear on the form of Order to be made, it is not a matter which ought, without more, to be regarded as disqualifying Mrs Howarth from receiving the benefit of any Order to which she might otherwise be entitled. Nor is this a novel view, for a similar approach is reflected in the following passage in the judgment of Young J in Bondy v Vavros ..." (citations omitted)
3. As was written by Young CJ in Eq, in Carroll v Cowburn [2003] NSWSC 248 at [17], "merely because there is a fear that a successful plaintiff might squander his or her benefaction is no reason not to provide for the plaintiff …", although the plaintiff's financial habits may bear on the form of the order made.
4. Campbell JA (Giles JA and Handley AJA agreeing) wrote in Hampson v Hampson (2010) 5 ASTLR 116 at 136-137 [96]-[101]; [2010] NSWCA 359 at [97]-[102]: "Ray v Moncrieff [1917] NZLR 234 concerned an applicant who was the only son of a deceased, who had been left the income of a sum of money, with the capital of that sum on his mother's death. The applicant was an able-bodied labourer, and 'a chronic drunkard'. Chapman J rejected the argument that the applicant should be treated as a man suffering from a chronic disorder, such as being maimed or insane. His Honour said, at 235: '[I]t would be a novel use of the powers of this Act to relieve the son of his burdens when the only result would be to set free his resources to be spent in drinking. The Court in these cases is asked to make good some failure on the part of the testator to perform his duty. It seems to me he has most thoroughly endeavoured to do his duty towards the applicant.' Similarly, in Bondy v Vavros (Supreme Court of NSW, Young J, 29 August 1988, unreported at 10) Young J (as his Honour then was) contemplated that: '... if one can see that a plaintiff is a spendthrift and the testator has arranged his will in such a way as to limit the funds flowing to the plaintiff, then one may very well come to the conclusion that the plaintiff has failed to establish that there has been any breach of moral duty.' In such a situation, if a plaintiff had been left periodical income, then even if another plaintiff who was similarly situated but not at serious risk of frittering away capital could have obtained a capital sum in lieu of the income stream, it might be concluded that for that particular plaintiff the income stream was adequate and proper provision. I should here mention that the passage I have quoted from Bondy v Vavros was preceded by the following statement: 'If a person is entitled to an order, what they do with the money that they receive is their business and it is none of my affair if I very much fear that the money may be wasted on wine, women and song in a short period of time.' That statement has sometimes been treated as though the court should disregard the likely use that an applicant will make of an award (eg Michael Bienke v Brian Bienke; Estate of the Late Harold Bienke [2002] NSWSC 804 at [24]), or disregard it at the jurisdictional stage though possibly taking it into account in the form of the order (Howarth v Reed, Supreme Court of New South Wales, Powell J, 15 April 1991 unreported at 42). In my view that involves a misreading of the statement in its context. The statement is part of the same paragraph that I have quoted at [98] above, and precedes the passage I have quoted at [98]. The sentence I have quoted at [98] commences with the words 'On the other hand, when one is considering what a wise and just testator would have done, ...'. The sense of the whole of the paragraph is, if a person is entitled to an order (ie, to receive what is adequate for proper maintenance, education and advancement in life, or what the wise and just testator would have given him) it is no further concern of the court that there is a prospect that the applicant might waste the money. However, to the extent to which the wise and just testator would take it into account, the prospect of the applicant wasting the money is a legitimate matter to take into account in deciding whether the applicant has been left without adequate provision for proper maintenance, education and advancement in life. There is ample precedent, and justification in principle, for a tendency of an applicant to spend excessive amounts of money unwisely (whether through an addiction to alcohol, drugs or gambling, or simply through habitual spendthrift characteristics) to enter into consideration for the purposes of the second stage of the process identified in Singer v Berghouse (No 2), namely, once jurisdiction is established, formulation of an order under the Family Provision Act. Some examples from the caselaw [sic] are collected and discussed in the appendix to this judgment."
5. Hampson v Hampson was a case involving the applicant's use of marijuana, and was not one involving the assertion that the provision made would be otherwise wasted.
6. In Leary v NSW Trustee and Guardian [2017] NSWSC 1113, Ward CJ in Eq, at [89]-[103], dealt with the authorities in some detail. I shall not repeat what her Honour wrote in that case.
7. The words of Lord Hoffmann (Lord Mackay agreeing) in Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 at 368; [1999] UKHL 35, albeit in a completely different context, should be remembered: "… there is a difference between protecting people against harm caused to them by third parties and protecting them against harm which they inflict upon themselves. It reflects the individualist philosophy of the common law. People of full age and sound understanding must look after themselves and take responsibility for their actions. This philosophy expresses itself in the fact that duties to safeguard from harm deliberately caused by others are unusual and a duty to protect a person of full understanding from causing harm to himself is very rare indeed."
8. Lord Hope (Lord Mackay agreeing), at 379-380, said much the same thing: "It is unusual for a person to be under a duty to take reasonable care to prevent another person doing something to his loss, injury or damage deliberately. On the whole people are entitled to act as they please, even if this will inevitably lead to their own death or injury."

The financial resources (including earning capacity) and financial needs, both present and future, of James

1. James' assets comprise as at 7 November 2019, cash savings ($7,013). He does not have any debts. Since July 2019, he has been renting a small house in Parramatta ($435 per week). He does not cohabit with another person.
2. James commenced employment on 10 July 2019 as an employed solicitor and his monthly salary is $5,724. His estimated monthly expenses are approximately $4,640. He does not have any dependants.
3. I have earlier referred to what are said to be his "needs". In the "aide memoire" handed up during her submissions, counsel for James set out his revised "needs" as follows: "a. Psychiatric care involving monthly visits to see his psychiatrist - cost of $365 per visit, which amounts to $9,490. Lifetime cost = $118,260. b. Cost of medication is $227 per month. Lifetime cost = $73,548. c. Dental treatment cost is $1,500 per year. Lifetime cost = $19,000. d. Accommodation cost for one-bedroom apartment $710,000 plus stamp duty costs of $27,460 on $710,000 = $737,460. e. Contingency fund as he has no superannuation = $300,000."
4. The total of these "needs" amounts to $1,248,268. That equates to about 72 per cent of the value of the net distributable estate of the deceased.
5. There is other evidence, relied upon by Sara, which discloses that accommodation in Parramatta, the suburb in which James currently works, is significantly less expensive than the cost of accommodation in the Lane Cove area where James said that he wants to live: Ex 14.
6. James gave evidence that he has not made any enquiry from any bank as to whether he would be able to borrow money to assist in the purchase of accommodation. He said, at Tcpt, 20 November 2019, p 85(27-39), that he had not done so: "because my employment history is so chequered. I think it's also been because I've been so sick for the last 12 months. It's also been because I've been busy trying to do a good job at work so I could keep my job and don't do much else so … I don't get too tired."
7. James then added: "[T]here's no reason I wouldn't go to a bank and ask for a loan. No. I would definitely go."
8. Whilst counsel for James submitted that he is aged 56 years old, and that he has a life expectancy of approximately 27 years, there was no evidence that any discount had been used in calculating the "lifetime costs" set out above.
9. In addition, there was insufficient evidence to satisfy me that James would require psychiatric care, involving monthly visits to a psychiatrist, for the remainder of his life. Certainly, there was no evidence that he has had such regular psychiatric care to date. Indeed, as was pointed out by his counsel, he "has no history of being non-compliant … with his medication or having had any admissions into a psychiatric hospital": Plaintiff's Closing Oral Submissions, 21 November 2019 at par 18.
10. It was asserted that there is no other person liable to support James. On occasions in the past, he has obtained the assistance by way of a pension, or other social security benefits, during periods of unemployment.

The competing claims of Emma, Tamara and Jeremy

1. Each of James' children has put on evidence of her, and his, financial circumstances. None of them was cross-examined.
2. Emma is now almost 28 years old. She resides in Barton, in the ACT, with two flatmates. She is employed as a Legal Policy Officer at the Department of Prime Minister and Cabinet. She receives a gross annual salary of $102,971 per annum. Her employer also makes compulsory superannuation contributions comprising 15.4% of her fortnightly contribution salary. She receives about $90 per annum in interest. Her total gross income is about $103,061.
3. Emma will commence a 12 month judicial associateship. During this period her salary will reduce to $72,948 gross per annum. She will receive compulsory superannuation contributions.
4. Emma has about $33,036 in the bank and a car ($2,000). She also has superannuation ($33,623) which is not immediately accessible. She has a HECS liability of $16,157.
5. Emma's expenditure is in the order of $80,000 per year.
6. Emma wishes to undertake a Master of Laws degree in the USA. The estimated cost is over USD$90,000.
7. Emma suffered a sporting injury to her knee in August 2019. The estimated costs of recovering from the injury are $6,800.
8. Tamara is now aged 21. She resides with Debra and Jeremy in Debra's home in Paddington, a suburb of Sydney.
9. Tamara is employed casually at the Round House Bar at University of NSW. Her annual income is approximately $6,500 after tax. Her annual expenditure is $10,810. Her mother pays for most of these expenses.
10. Her personal assets consist of money in the bank ($7,200). She has superannuation ($450), which is not accessible.
11. She, too, has a HECS liability of $19,500. She wishes to pursue a career in psychology.
12. Jeremy is now 23 years old. He resides with Debra and Tamara in the Paddington home.
13. He is a fulltime student in his Honours year in psychology at the University of NSW. He had previously received a student allowance but this has now ceased. His total assets are the money in his bank account ($257) and superannuation ($1,270) which is not currently accessible.
14. Jeremy has a HECS liability of $23,190. He wishes to continue his studies, including pursuing a career in medicine. His annual expenditure is $10,043. His mother pays for most of these expenses.
15. Counsel for Sara stated that the three children of James should receive an equal share of the estate divided between them after any provision made for James. Perhaps demonstrating the conduct of James towards his own children, James made the submission that they should not receive any provision now. Somewhat ironically bearing in mind his claim, it was put that they should not do so "because the deceased's intention was that they should not get it": Tcpt, 21 November 2019, p 156(50) - p 157(20).
16. Of course, the Court may "make such additional orders as it considers necessary to adjust the interests of any person affected by a family provision order and to be just and equitable to all persons affected by the order": s 66(2) of the Act.
17. When this was raised with counsel for James, her response was, at Tcpt, 21 November 2019, p 157(31-38): "HIS HONOUR: Why can't I make an order under subsection 2 of section 66 that the court can make such additional orders that it considers necessary to adjust the interests of any person affected by a family provision order and to be just and equitable to all persons affected by the order? BRIDGETT: Your Honour, I didn't make the submission that your Honour can't make that order. I made the submission about what the plaintiff's position is regarding his children receiving money now."
18. Since it will not impact upon the order that I shall make for James, I propose to make an order in favour of each of his three children since by making an order in his favour, in lieu of the provision made for him in the Will of the deceased, Emma, Jeremy and James are affected by the family provision order because there is no real possibility that they will receive any part of the share referred to in Clause 3(f) of the deceased's Will. It is just and equitable to do so in all the circumstances of the case.
19. James also made the submission, without any logical, or indeed any, basis, being provided, that "the grandchildren … Samuel and Harriet should bear the burden before the other beneficiaries bear the burden": Tcpt, 21 November 2019, p 162(05-09). I do not accept this submission. Furthermore, it was not submitted by Sara, on behalf of the other beneficiaries that Samuel and Harriet should do so.

The Statutory Scheme

1. I shall next discuss the statutory scheme and what I have described as general principles. I have discussed these matters in many cases.
2. Section 59(1) of the Act confers jurisdiction on the Court to make a family provision order in relation to the estate of a deceased person if, relevantly in this case, the Court is satisfied as to matters, namely that: 1. The applicant, the person in whose favour the order may be made, is an eligible person; and 2. … 3. At the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased.
3. Only if satisfied of each of those matters, can the Court then make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.
4. Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision made for the applicant in the Will of the deceased, on the one hand, and to the requirement for maintenance or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of the applicant.
5. The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment: Singer v Berghouse (1994) 181 CLR 201 at 210-211 (Mason CJ, Deane and McHugh JJ); [1994] HCA 40; White v Barron (1980) 144 CLR 431 at 434-435 (Barwick CJ), 443 (Mason J); [1980] HCA 14.
6. "Provision" is not defined by the Act, but it was noted in Diver v Neal (2009) 2 ASTLR 89 at 97 [34]; [2009] NSWCA 54 at [34] (Basten JA, Allsop P and Ipp JA agreeing), 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".
7. The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton in "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5 Australian Journal of Legal History 5 at 10, as reached upon "a purely economic and objective basis", whereas "proper" prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127 at 145 [72], [77]; [2007] WASCA 235 at [72], [77] (Buss JA, Pullin JA agreeing), which seems to invite more subjective criteria.
8. In Pontifical Society for the Propagation of the Faith v Scales, Dixon CJ at 19, pointed out that the words "adequate" and "proper" are always relative and that what the testator regarded as "superior claims or preferable dispositions" is a relevant consideration: "The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning."
9. In Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31, Gibbs J (as his Honour then was) (Stephen and Mason JJ agreeing) wrote, at 502: "… the 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 ..."
10. In Vigolo v Bostin (2005) 221 CLR 191 at 228 [114]; [2005] HCA 11 at [114], Callinan and Heydon JJ wrote: "… the use of the word 'proper' … implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here … The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."
11. White J (as his Honour then was), in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253 at 283-284 [123]; [2013] NSWSC 522, wrote, at [123]: "The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case including 'the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty': Singer v Berghouse (1994) 181 CLR 201 at 210."
12. In Ilott v The Blue Cross [2018] AC 545 at 564-565 [14]-[15]; [2017] UKSC 17, a claim by an estranged adult daughter under the Inheritance (Provision for Family and Dependants) Act 1975 (UK) c 63, Lord Hughes JSC (Lord Neuberger PSC, Baroness Hale DPSC, Lord Kerr, Lord Clarke, Lord Wilson and Lord Sumption JJSC agreeing), in defining "maintenance", wrote, at [14]-[15]: "The concept of maintenance is no doubt broad, but the distinction made by the differing paragraphs of section 1(2) shows that it cannot extend to any or everything which it would be desirable for the claimant to have. It must import provision to meet the everyday expenses of living … The summary of Browne-Wilkinson J in In re Dennis, deceased [1981] 2 All ER 140, 145-146 is helpful and has often been cited with approval: "… in my judgment the word 'maintenance' connotes only payments which, directly or indirectly, enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him. The provision that is to be made is to meet recurring expenses, being expenses of living of an income nature. This does not mean that the provision need be by way of income payments. The provision can be by way of a lump sum, for example, to buy a house in which the applicant can be housed, thereby relieving him pro tanto of income expenditure. Nor am I suggesting that there may not be cases in which payment of existing debts may not be appropriate as a maintenance payment; for example, to pay the debts of an applicant in order to enable him to continue to carry on a profit-making business or profession may well be for his maintenance." … The level at which maintenance may be provided for is clearly flexible and falls to be assessed on the facts of each case. It is not limited to subsistence level. Nor, although maintenance is by definition the provision of income rather than capital, need it necessarily be provided for by way of periodical payments, for example under a trust … As Browne-Wilkinson J envisaged (obiter) in In re Dennis (above) there is no reason why the provision of housing should not be maintenance in some cases; families have for generations provided for the maintenance of relatives, and indeed for others such as former employees, by housing them …"
13. Whether the disposition of the deceased's estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the applicant will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant's "needs" that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573 at 575 (Kirby P, Hope JA agreeing). This statement is not intended to suggest that an applicant's "needs", when compared with the provision made for him or her, out of the estate, should be the dominant consideration. The existence, or absence, of "needs" which an applicant cannot meet from his, or her, own resources will always be highly relevant, and quite often decisive, as 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 her or his proper maintenance, education and advancement in life: Singer v Berghouse at 227 (Gaudron J, albeit her Honour was in dissent in the result); Bkassini v Sarkis [2017] NSWSC 1487 at [296]-[297] (Robb J).
14. In Devereaux-Warnes v Hall (No 3), at [81]-[84], Buss JA (as his Honour then was) wrote: "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 (at 227) per Gaudron J. '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 at 10-11 per Bryson J. 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 (at 575) per Kirby P. 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 (at 227) per Gaudron J. Compare Gorton (at 6-11) per Bryson J; Collicoat v McMillan [1999] 3 VR 803 at [38], [47] per Ormiston J."
15. However, as will be read, s 60 of the Act invites the Court to have regard to various matters, including, but not limited to, financial need: s 60(2)(d). If the Court does so, as will also be read, one of the purposes for which that is done is for determining "the nature of any [family provision] order": s 60(1)(b) of the Act.
16. No doubt, this has prompted White J to write, in Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 at [147], that "the need a claimant must demonstrate is a need for 'proper' maintenance, education and advancement in life", but that does not mean that "adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others". Respectfully, I agree.
17. Of course, "need" is a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45] (Dodds-Streeton J). It is different from "want" and does not simply mean "demand" or "desire". The latent difference between the words was stated by Lord Neuberger (the former President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808 at 1825 [54]; [2008] UKHL 52 at [54]: "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'."
18. In Boettcher v Driscoll (2014) 119 SASR 523 at 530 [41]; [2014] SASC 86 at [41], David J added: "'Need' is not so synonymous with 'want' such that the two are interchangeable."
19. However, no narrow view of what is encompassed by the concept of "need" is to be adopted. In Gorton v Parks (1989) 17 NSWLR 1, Bryson J (as his Honour then was) commented, at 8, that "[i]t does not seem possible to give a complete or exhaustive statement of the concept".
20. As Callinan and Heydon JJ emphasised in Vigolo v Bostin at [122], the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined.
21. If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made.
22. The measure of adequate provision is determined by reference to what the applicant needs for their proper maintenance and not by reference to a need to achieve "equality".
23. As was written in Blore v Lang (1960) 104 CLR 124 at 134-135 (Fullagar and Menzies JJ, albeit in dissent); [1960] HCA 73: "… Bad conduct or character may disentitle a member of the family to needed assistance, but good conduct and honest worth are not to be rewarded by a generous but second-hand legacy at the hands of the court. Nor, in a case where a testator has chosen to dispose of his estate according to his inclination, ought the generous treatment of a child who has no need of the testator's bounty be used to determine the provision to be made for a child whose need has been disregarded or overlooked. The measure to be applied is not what has been given to the one, but what the other needs for his or her proper maintenance, giving due regard to all the circumstances of the case. … Equality is not something to be achieved by the application of the Act, although in some cases equality may set a limit to the order to be made - for instance, where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same. This is not such a case, and the provisions made by the will, as to some children at any rate, could not properly be regarded as provision for maintenance. The testator, independently of need, has chosen to confine his bounty to five of his children. There is, therefore, no justification for using the gifts so made as the measure of the provision to be made for one to whom nothing has been given, but who should receive something for her proper maintenance."
24. Section 60 of the Act 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.
25. It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656 at 665 [37]; [2012] NSWCA 308 at [37], as a "multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the court considers relevant", for the purpose of determining whether the applicant is an "eligible person", whether a family provision order should be made, and if so, the nature of any such order.
26. In Chapple v Wilcox (2014) 87 NSWLR 646 at 649 [7]; [2014] NSWCA 392 at [7], Basten JA wrote: "Section 60 of the Succession Act spells out the matters which the court may have regard to in determining whether the claimant 'is an eligible person' and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the 'nature of any such order', which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b)."
27. The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The Act does not provide guidance as to the relative weighting of each factor. The weight of each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed are, necessarily, of decisive significance, and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender. The sub-section makes clear, since other matters may be taken into account, that the jurisdiction is not exclusively needs-based.
28. Furthermore, the section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.
29. A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).
30. Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently.
31. The Court should, and does, give considerable weight to the deceased's wishes in recognition of the better position in which he, or she, was placed. Of course, this is subject to the qualification that the Court's determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the Court is considering the application, rather than at the time of the deceased's death or will: Slack v Rogan; Palffy v Rogan at [127].
32. Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales at 19, commented upon the consideration that was to be given to the deceased's wishes: "The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning. The Court is given not only a discretion as to the nature and amount of the provision it directs, but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court."
33. In Stott v Cook (1960) 33 ALJR 447 at 453-454, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work 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."
34. In Vigolo v Bostin at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained: "It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification."
35. In Goodsell v Wellington [2011] NSWSC 1232, at [108], I also noted that: "Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated."
36. In Squire v Squire [2019] NSWCA 90, Meagher JA (Macfarlan JA and Simpson AJA agreeing) wrote, at [10], that the discretionary power to make a family provision order: "… is to be used sparingly and with regard to the deceased's freedom of testamentary disposition, as 'it was never meant that the Court should re-write the will of a testator': Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19; [1962] HCA 19 (Dixon CJ); Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [10] (Gleeson CJ)."
37. But, as was stated by Brereton JA (Simpson AJA agreeing) in Steinmetz v Shannon (2019) 368 ALR 161 at 180 [97]; [2019] NSWCA 114 at [97]: "The statutory family provision jurisdiction is not to be exercised on the footing that it must be approached with great caution because of its intrusion on testamentary freedom. Rather, the statute is to be given full operation according to its terms, notwithstanding that it encroaches on testamentary freedom. Testamentary freedom is constrained by the operation of the statutory jurisdiction, insofar as testators are obliged to make provision for those eligible persons for whom according to community standards they are expected to provide."
38. In Olsen v Olsen [2019] NSWCA 278, White JA (Meagher JA and Emmett AJA agreeing), at [75]-[76], concluded: "Under the heading "The Testator's Judgment" the primary judge referred to what I said in Friend v Brien [2014] NSWSC 613 at [62], Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127] and Sgro v Thompson at [80]-[88]. I said that where it can be seen that a testator has duly considered the claims on his estate, respect should be given to the judgment of a capable testator who will have been in a better position than is a court to determine such claims so that considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the testator was placed. In this case, as the primary judge recognised, the testator knew nothing about the appellant's circumstances. The principle I sought to express in those cases, and to which I adhere, was not applicable to the present case. It was not a general plea for primacy of freedom of testamentary disposition. There may be some tension between the views of Meagher JA (with whom Macfarlan JA and Simpson AJA agreed) in Squire v Squire [2019] NSWCA 90 at [10] and the views of Brereton JA (with whom Simpson AJA also agreed at [151]) in Steinmetz v Shannon [2019] NSWCA 114; (2019) 368 ALR 161 at [96]-[97] …"
39. The different expressions of the freedom of testation are, in my view, different ways of expressing the same judgment required to be made by the Court. Ultimately, there should be no predisposition against, or for, the making of an order for provision.

Some Additional Principles

1. Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges, and I, have repeated them in many cases under the Act.
2. The Court's discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63] (Nettle J).
3. Bryson J noted in Gorton v Parks, at 6, that it is not appropriate to endeavour to achieve "an overall fair" division of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants.
4. As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186 at [5]: "Fairness and equality are not touchstones for relief under the Succession Act."
5. Of course, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) at 30-31; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 at [269]-[274] (Ward J).
6. In all cases under the Act, what is adequate and proper provision is necessarily fact specific: Sgro v Thompson [2017] NSWCA 326 at [67] (White JA, McColl and Payne JA agreeing).
7. The size of the estate is a consideration in determining an application for provision. However, its size does not justify the Court re-writing the deceased's Will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190 at 202-203 [41]; [2007] SASC 327 at [41] (Debelle J, Nyland and Anderson JJ agreeing); Borebor v Keane (2013) 11 ASTLR 96 at 110 [67]; [2013] VSC 35 at [67] (Hargrave J).
8. The role of the Court is not "to address wounded feelings or salve the pain of disappointed expectations" that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep) at 7.
9. In Foley v Ellis [2008] NSWCA 288 at [88], Sackville AJA (Beazley and Basten JJA agreeing), noted that Singer v Berghouse: "… strongly suggests that the Court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act."
10. In relation to the claim by James, being a claim for provision by an adult child, I have set out the following principles in many other cases, which are also useful to remember: 1. The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. 2. 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, and 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 their 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": Taylor v Farrugia [2009] NSWSC 801 at [57] (Brereton J); McGrath v Eves [2005] NSWSC 1006 at [67]-[71] (Gzell J); Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond (2015) 14 ASTLR 442 at 463 [109]; [2015] NSWCA 42 at [109] (Beazley P, McColl and Gleeson JJA agreeing). 3. Generally, also, "the community does not expect a parent to look after his or her children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime 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 parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute": Taylor v Farrugia at [58]. 4. There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker (1957) 97 CLR 566 at 576 (Dixon CJ and Williams J); Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 545 (Holland J); Bondelmonte v Blanckensee [1989] WAR 305 at 309-310 (Malcolm CJ, Nicholson J agreeing); Hawkins v Prestage (1989) 1 WAR 37 at 44-45 (Nicholson J); Taylor v Farrugia at [58]. 5. An adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]-[182] (Templeman J); Crossman v Riedel [2004] ACTSC 127 at [49] (Gray J). Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43] (Wheeler J, albeit in dissent in the result). In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287 at [74]-[90] (Martin CJ); Butcher v Craig [2009] WASC 164 at [17] (Sanderson M). 6. An 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) 143 CLR 134 at 149 (Gibbs J, Mason and Aickin JJ agreeing).
11. These "guidelines" were said to provide a "useful touchstone" and give assistance because they constitute a reflection of community values which assists with decision-making: Chapple v Wilcox at [19] (Basten JA), [67] (Barrett JA), quoted, with approval, by Brereton JA in Steinmetz v Shannon at [106]-[108].

Applicant an Object of a Discretionary Trust

1. As stated earlier, under the terms of the deceased's Will, James is an object of a discretionary trust. As such, he has no enforceable rights to either the capital (other than $20,000), or income, of the trust, and is reliant, for any future benefit, upon the exercise of discretion of the trustees in his favour. A discretionary object has no legal, or equitable, interest in the property of a discretionary trust until the trustee exercises its discretion in that beneficiary's favour. Until that point, a discretionary object's interest is merely an expectation or hope.
2. In Belfield v Belfield (2012) 83 NSWLR 189 at 206-207 [71]; [2012] NSWSCA 416, Campbell JA (Sackville AJA agreeing) wrote, at [71]: "... when the FPA was enacted in 1982, it was common and well known that there were significant advantages for a person with some capital (who I will call the instigator) to arrange the setting up of a family trust, with a structure like that of the present trust deed. Common features of such trusts were that the trust was established by a settlor who was not the instigator or someone the instigator wished to benefit, the eligible beneficiaries were relatives by blood or marriage of the instigator, and there could be a discretionary allocation of income each year amongst eligible beneficiaries and ultimately a discretionary allocation of capital amongst eligible beneficiaries. Other common features were that there was power to alter the eligible beneficiaries, certainty achieved by provisions stating where income, and capital respectively would be distributed in default of a specific allocation of income or capital, and distribution of capital delayed for as long as permissible under the rule against perpetuities but with a discretionary power to advance the distribution date: see, for example, I J Hardingham and R Baxt, Discretionary Trusts (1975) Sydney, Butterworths. Those discretions were usually conferred on the trustee of the trust. Such trusts enabled an instigator who was concerned to provide for a family, usually a parent or grandparent, to arrange for assets that they had accumulated to be made available to different members of the family as the need for money presented itself. Such trusts also had the effect of lessening the impact of death duties, while death duties remained in force in Australia, and of lessening the impact of income tax on the members of a family unit considered collectively, by enabling income to be appointed to those members of a family who had a lower marginal rate of taxation."
3. In Gregory v Hudson (No 2) (Supreme Court (NSW), Young J, 18 September 1997, unrep), it was written, at 10-12: "Mr Broun QC puts that the authorities clearly show that a provision in a will that trustees might pay additional moneys out of the estate for the benefit of the applicant is not a proper provision. He cites Re Brown [1972] VR 36. In that case, after citing some decisions from New Zealand and Canada, together with the note of Re WTN C McLelland, CJ in Eq (1959) noted 33 ALJ 240, Norris, AJ said at 39, 'It is true to say that in most of the cases the fact that a discretion to increase a benefit existed was not regarded as rendering adequate a provision which otherwise was inadequate. I think, nevertheless, it is consistent with the authorities to say that such a discretion is not to be excluded from consideration in determining whether or not adequate provision has been made, and that it may in an appropriate case render adequate a provision otherwise inadequate.' He then cites Re Allen [1922] NZLR 218. Dickey on Family Provision after Death (LBC Sydney 1992) says at p 121, 'There is some authority for the proposition that where a person is in need of provision but the quantum of provision made for him or her from a deceased's estate is wholly dependent upon the discretion of trustees, this provision is not adequate. In all probability, however, this is not an inflexible rule. In all probability the question of whether provision of this kind is adequate depends upon the particular facts and circumstances of the case.' ... I consider, with respect, that Professor Dickey's comment is close to the mark. Ordinarily, a benefit provided under a discretionary trust is a fairly illusory benefit because it can be terminated without reason and there is little likelihood of the discretionary beneficiary being able to force the trustee to pay her a benefit. Hartigan's case shows that even if there is a memorandum of wishes, there is no obligation on the trustee to take that into account. Furthermore, even though the trustees say that they intend to follow the wishes, they are not bound to do so, and indeed, circumstances may change in such a way that they feel it is not proper to continue to follow the memoranda of wishes and carry out the spirit of what the deceased intended. ... It seems to me that where a wealthy man, with an estate of at least 11 million dollars, leaves the bulk of the benefits to his widow under a discretionary trust over which she has no control, he has not made proper provision for his widow. The community would expect that the widow of such a man would at least have a home in her own name and some capital to which she could resort whenever she felt like it."
4. I referred to the authorities in Barbuto, Bradley v Barbuto; Barbuto, James v Barbuto [2019] NSWSC 1023, where I added, at [335]-[338]: "The point raised by these decisions was more recently, and succinctly put, in Lemon v Mead (2017) 53 WAR 76; [2017] WASCA 215, in which Buss P wrote, at [188]: "In my opinion, a provision under a testator's will may not make adequate provision from his or her estate for the proper maintenance, etc, of a person mentioned in s 7 of the Act if, in all the circumstances, the form of the provision is not adequate or proper. That is, the evaluation by the court of the adequacy or propriety of a provision in a will is not confined to whether, in all the circumstances, the actual or potential quantum of the provision is adequate and proper." Mead v Lemon (as Executor of the estate of the late Michael John Maynard Wright) and Leonie Angela Maynard Baldock and Alexandra Odette Burt and VOC Group Ltd [2018] HCATrans 152, was the subject of a special leave application, which was refused upon the basis that there were insufficient prospects that the appeal would succeed. More recently, in Bkassini v Sarkis [2017] NSWSC 1487, Robb J, before quoting what I had written in Hedman v Frazer, wrote, at [304] that a discretionary object's "fate in the present case is an exemplar of the proposition that discretionary testamentary trusts will usually provide an inappropriate mechanism for ensuring that a beneficiary under a will receives adequate provision". An earlier example of such a view is Shepherd v Shepherd [2010] NSWSC 167, at [53]-[55], in which McDougall J concluded that a will had made inadequate provision for an adult beneficiary, a son of the deceased, who had no vested entitlement to income and who was entirely dependent upon the trustees (his brother and sister) exercising their discretion in his favour from time to time."
5. In Taylor v Farrugia, Brereton J wrote, at [62]: "Provision for eligible persons may be inadequate or improper in form as well as, or as distinct from, in quantum. Thus, provision which is dependent upon the exercise of a discretion by the trustee of a discretionary trust will often, though not invariably, be inadequate or improper: Re WTN (NSWSC Unreported, 3/7/59, McLelland CJ in Eq); referred to in [1959] 33 ALJ 240 Gregory v Hudson (No 2) (New South Wales Supreme Court, Young J, 18 September 1997, unreported)."

Qualifications on "Principles"

1. As long ago as 1980, in White v Barron, at 440, Stephen J wrote: "[T]his jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application."
2. As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [117]), I do not intend what I have described as "principles" or "general principles" to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.
3. It is necessary for the Court, in each case, after having had regard to the matters that the Act permits it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Consideration of other cases must be conducted with circumspection because of the inescapable detail of the factual circumstances of each case. Every case is different and must be decided on its own facts and it is in the detail that the answer to the proper application of the Act is to be discovered: Golosky v Golosky [1993] NSWCA 111 at 16 (Kirby P, Cripps JA agreeing).
4. The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox, by Basten JA, at [18]-[20], and by Barrett JA, at [66]-[67]; in Burke v Burke (No 2) (2015) 13 ASTLR 313 at 329 [84]-[85]; [2015] NSWCA 195 at [84]-[85] (Ward JA, Meagher and Emmett JJA agreeing); in Yee v Yee [2017] NSWCA 305 at [172] (McColl JA, Gleeson and Simpson JJA agreeing); and very recently, by White JA, in Steinmetz v Shannon, at [37]. The qualifications must be remembered.

Determination

1. As stated, there is no dispute that James is an eligible person. He commenced the proceedings within time. Then, the first question for determination is whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life of each has not been made by the Will of the deceased. In this regard, advancement in life may be seen as provision that will improve, and enhance, the material situation of James.
2. What is written below should be read as a continuation of what has been written above. In addition, I have regarded the factual matters referred to earlier, so far as they are relevant, to the circumstances set out below.
3. Bearing in mind the terms of the deceased's Will, there is a prospect that James might receive nothing by way of income, or capital, out of the deceased's estate. Whether he does will depend entirely upon the exercise of discretion, in his favour, by Sara and John. To date, he has not received any distribution from the Trust, but I do not regard this as indicative of what might occur in the future.
4. However, this does not, automatically, mean that he will have satisfied what has been said to be the jurisdictional threshold. A person may fail to satisfy the description of being "left without adequate provision" even though no, or little, provision is made for them in the deceased's Will. Yet, for some time, James has been unable to work consistently, and, now is in very modest circumstances, with little to fall back on as he ages or in periods of unemployment, although while he is employed, his income exceeds his expenditure.
5. The Court is required to make, and I have made, an assessment of the financial position of James, the size and nature of the deceased's estate, the relationship between him and the deceased and the competing moral, but not financial, claims, of the other beneficiaries who have not disclosed their financial resources or needs, and the circumstances and needs of James: see, for example, McCosker v McCosker at 571-572 (Dixon CJ and Williams J); Singer v Berghouse at 209-210 (Mason CJ, Deane and McHugh JJ); Vigolo v Bostin at [16] (Gleeson CJ), [75] (Gummow and Hayne JJ), and [112] (Callinan and Heydon JJ); and Tobin v Ezekiel at [70] (Meagher JA). I have also considered the nature of the disposition to James under the deceased's Will, arising from the discretionary nature of the testamentary trust, the medical conditions from which James suffers, and the possibility of an intermittent working life that may bedevil him.
6. As earlier stated, a court cannot describe, in terms of universal application, what adequate provision for the proper maintenance or advancement in life will entail for a parent in respect of an adult child. In many cases, as has earlier been said, adequate provision for proper maintenance will not require the parent to support a capable adult child for the rest of his, or her, life. But as stated, every case will depend on its own facts.
7. Having considered the matters I am required to consider, James has satisfied me that he has been left without adequate provision for his proper maintenance or advancement in life. I am also satisfied that an order for provision for him should be made. He is not in a strong financial position, he does have a need for a fund to protect against the ordinary exigencies of life, and he does require secure accommodation. As counsel submitted, "due to his resilience and intelligence, [he] continues to find employment", but the employment does not always last. It was clear, however, that at the present time, his income exceeds his expenditure by about $1,100 per month, at least some of which could be used, if necessary, to satisfy some of his other expenditure: Tcpt, 21 November 2019, p 129(06-40).
8. However, I do not think that the provision should be an amount in excess of $1.2 million, as submitted by counsel for James, or $300,000, as was submitted by counsel for Sara.
9. The more difficult question is what provision "ought to be made for … his, maintenance … or advancement in life", having regard to the facts known to the Court at the date of hearing. This involves "an instinctive synthesis that takes into account all the relevant factors and gives them due weight": Grey v Harrison [1997] 2 VR 359 at 367 (Callaway JA, Tadgell and Charles JJA agreeing). It is not a scientific, or arithmetic, or an exact exercise and it is often difficult to articulate the factors which contribute to that "instinctive synthesis". Indeed, it is often not susceptible of complete exposition and minds may differ as to the provision which ought to be made. However, similar considerations as are set out above often arise.
10. I do not accept that the deceased had an obligation to provide an unencumbered home with a value of $710,000 for James. He was financially independent of the deceased for many years before her death. The fact that he does not, now, own his own home, was not brought about by the deceased. She did not have an obligation, or responsibility, to provide an unencumbered home for him out of her estate simply because he was her son and because he does not have a home of his own.
11. Having considered all of the matters I am required to consider, and remembering that what is "proper" requires an evaluative judgment that has regard to all relevant circumstances, not merely financial circumstances, I am satisfied that a capital sum should be provided. I am of the view that James should receive, in lieu of the provision made for him in the Will of the deceased, a lump sum of $750,000.
12. Whilst it may be that the nature, and level, of expenditure, particularly at times when he was unemployed, and in the period following the separation from Debra, and the years that immediately followed, was greater than it might have been, and the fact that he has made no contribution to child support for his three children, at any time, after separation, particularly when he had a capital fund ($680,000 or $690,000) to make such a contribution, I am unable to conclude that he is a person who requires a third party to manage the provision that is made for him. I have not been persuaded that there should be the interposition of a trustee to manage, or control, the provision that the Court finds ought to be made for him.
13. Furthermore, whilst the possibility of an applicant spending the provision for purposes, other than the purposes for which it has been made, is a legitimate matter to take into account in deciding whether he, or she, has been left without adequate provision for his, or her, proper maintenance, education and advancement in life, the Court can impose conditions, restrictions or limitations upon the amount and nature of the provision that is made for him out of the estate of the deceased: s 65 of the Act.
14. This is a case, in my view, where the Court should impose a condition in respect of part of the lump sum, namely $550,000. No less than that amount should be used by him to purchase accommodation, and to pay any stamp duty and legal costs payable on the contract for, or in respect of, the property that is purchased. Of course, he may spend more than that amount for accommodation if he wishes to, but this will be a matter entirely for him.
15. In coming to the view that the condition should be imposed, I have considered the concern the deceased expressed regarding the fact that James did not use any part of the capital sum he received from the sale of the Lindfield property to purchase accommodation for himself. I have also taken into account the deceased's other concern, that he should not dissipate the provision made for him out of her estate. Finally, I have considered that James, himself, has advanced the need to purchase accommodation, with the consequence that the condition proposed should not be an onerous one.
16. In addition, purchasing accommodation that he will own, in my view, will give James stability and security of accommodation in the event that other aspects of his life, such as maintaining employment as a solicitor, do not provide him with those things. His available income, whilst in employment, will be increased, at least partly, by him not having to pay rent (although there will, of course, be some expenses in owning real estate).
17. Moreover, it is common experience in the current economic and financial climate that income returns from investment in bank accounts and term deposits held with financial institutions are low, and would not appear to be as beneficial as the capital accumulation on real property. I have taken this matter, too, into account when considering the imposition of the condition.
18. The use of $550,000 for the purchase of accommodation will still leave James with a capital fund, which he can then use as he sees fit. The remaining lump sum will be the basis upon which he can provide for himself. It is a substantial enough amount to make a real difference to his life. However, if he spends the lump sum quickly, and without consideration of his future needs, including medical expenses, then so be it.
19. Naturally, in coming to the conclusion as to quantum, I have considered the lack of any competing financial claim on the part of the other beneficiaries named in the Will (other than James' three children). However, whilst it would be much more pleasant to be open-handed and generous with the deceased's estate, I must confine myself to the jurisdiction under the Act. The beneficiaries are, after all, the chosen objects of the deceased's bounty.
20. The amount of about $976,000 will be left to be shared between the four children of the deceased, namely Rosemary, Stephen, Sara, and John; there will be one additional share to be divided equally between Samuel and Harriett, and, as agreed to by Sara, and pursuant to s 66(2) of the Act, one additional share should be divided, equally, between Emily, Jeremy and Tamara. This will result in each equal one-sixth share equating to about $160,000. That amount is significantly less than the provision that James will receive pursuant to these orders.
21. Directs the parties to provide to the Court, within 7 days, in hard and soft copy, Short Minutes of Order that reflect these reasons.

Amendments 05 March 2020 - Paragraphs [160] and [161] amended 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: 05 March 2020