Brown v Hill

The purported wills 8There are four purported wills. 9Each is on the same pro forma will "form". Each is completed in Margaret's handwriting. Each includes, as part of the pro forma, the following: "I revoke all Wills and other documents of testamentary intent previously made by me; this is my last Will and Testament "

The 11 December 1995 document 10This document purports to appoint Bill as executor and makes the following provision: - "I give to my daughters Kelly [sic] Lorraine Brown, and Christine Caroline [sic] Brown my property at [xxx] Kallaroo Road San Remo but because of their drug problems I want my life's work I don't want my house sold for twenty years! Whoever lives in the home will pay all rates and insurance. I'm sure any court will understand that I'm thinking of security for my offspings [sic]! I want them to know how much I love them all including my grandchildren! To my companion William G Hill I would like for my children to let him live his life out in my home should he not find another woman also to give him my motor vehicle RIC 352 and leave furniture for him everything and clothes and jewellery should be shared with my offsprings [sic]. For Kelly [sic], thank you for your support and how you came to me almost every week I've known a special love from you and I am very proud of you you [sic] have all my personal affects [sic] and give Chris what you will if you want. I've loved you so much with a special love forever take over for me. Hayley has my sewing machine, Jake has my stereo and records. Hope has my music and keyboard. I hope Kelly [sic] will manage in the home? And look after Bill and Chris if they need her." 11The document is signed by Margaret. 12Bill's signature appears as a witness on the document, together with another unidentified signature. 13In evidence, Bill said that when he appended his signature on that document, there was no handwriting on it: that is, he signed it "in blank". He said he did not see the document, with the handwritten material, until after Margaret's death.

The 11 February 2004 document 14This document is signed by Margaret and Bill (as witness) and purports to appoint Bill as executor. The document bears two dates: 6 and 11 February 2004. I shall adopt the latter date. 15The text of the will was in manuscript and in the following terms: - "I give Both my daughters Christine Carolyne Brown, Kelly [sic] Lorraine Brown half each of my home at [xxx] Kallaroo Rd San Remo. But only if in ten years from now do they give up their methadone and show evedence [sic] that this is true. My car RIC 352 is for William Hill. Also he can remain in the house for the term on his life. If both women show they are good in trying to be healthy they then should have the house after ten years. The family home is just that! And all the family are allowed to stay so long as the home is cleaned and repaired. All of the contents for both daughters. Again things must be respected - not hocked or sold. Whoever lives here should look after it. I love you all I wish you have loved me as much. Kelly [sic] Lorraine Brown my younger daughter should be in charge of all my house and contents as she is only on methadone. Chris is on both so I try to keep everything together for all concerned. Mark is a danger as much as I like him he could still sell or spend my assets on dope. I hope any Court could see what's happening here God Bless."

The 16 June 2007 document 16This document contains Margaret's signature. There is no purported appointment of an executor. There is no witness signature. 17The text of the will, in manuscript, is as follows: - "I give everything I own to my daughter Kelly [sic] Lourraine [sic] Brown but my sewing equipment to Hailey Heartshorn and music equipment to Jake Heartshorn As for William Hill he has given all his money and mine for all the time I have known him plus assisted me many times".

The 5 November 2009 document 18Margaret has signed the document ("the 2009 Document"). She has not purported to appoint an executor. There is no witness signature. 19The manuscript text reads: - "I give William Graham Hill all my worldly goods providing he does not give his immediate family anything. He is to live his life out in my home and divide what he wishes among my children and grandchildren. Nothing of mine is for Graham Heartshorn or Mark Cameron nothing!" 20It appears that Messrs Heartshorn and Cameron are the fathers of children born to Kelley and Christine. Mr Cameron is also mentioned in the 6 February 2004 document. 21On 18 July 2001, the Registrar made a declaration that the Court was satisfied that Margaret intended the 2009 Document to form her will, and granted Letters of Administration to Bill with that will annexed. 22Mr Armfield, who appears for Bill, accepts that this grant was made in error in that the question of whether or not the 2009 Document is a will is a matter to be determined by the Court in these proceedings. 23Mr Armfield accepts that, were I to find that the 2009 Document should not be regarded as Margaret's will, the 18 July 2011 grant of Letters of Administration should be set aside.

The 5 November 2009 document should be admitted to Probate as Margaret's last will and testament 24Section 8 of the Act is in the following terms: - "(1) This section applies to a document, or part of a document, that: (a) purports to state the testamentary intentions of a deceased person, and (b) has not been executed in accordance with this Part. (2) The document, or part of the document, forms: (a) the deceased person's will - if the Court is satisfied that the person intended it to form his or her will, or (b) an alteration to the deceased person's will - if the Court is satisfied that the person intended it to form an alteration to his or her will, or (c) a full or partial revocation of the deceased person's will - if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will. (3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to: (a) any evidence relating to the manner in which the document or part was executed, and (b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person. (4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2). (5) This section applies to a document whether it came into existence within or outside the State." 25As each of the four documents under consideration purports to revoke all earlier "Wills and other documents of testamentary intent" it is logical to first consider whether the 2009 Document satisfies the requirements of s 8. If it does, it stands as Margaret's last will and revokes the earlier purported wills. 26In order to satisfy s 8, it is necessary that three matters be demonstrated. First, there must be a document. Second, that the document must purport to embody the testamentary intention of the deceased. Third, there must be evidence to satisfy the Court that the deceased intended that the document, without more, would operate as part of his or her will: per Powell JA in Hatsatouris v Hatsatouis [2001] NSWCA 408 at [56]. 27In this case, there is no difficulty with the first and second requirements. 28First, there is plainly a document: the 2009 Document. 29Second, it is plain on the face of that document that it purports to embody Margaret's testamentary intentions. The 2009 Document is expressed to be Margaret's "last Will and testament" and is expressed to revoke "all Wills and other documents of testamentary intent made by me". The document purports to dispose of Margaret's "worldly goods". In my opinion it was plainly intended by Margaret to be operative on her death, and not before. 30In cases such as this, the most difficult question is often as to whether the third requirement has been satisfied. As Windeyer AJ pointed out in National Australia Trustees Ltd v Fazey [2011] NSWSC 559: - "Great care must be taken in determining this question. Many people write out proposals for their wills on pieces of paper headed 'will' but often these are no more than present thoughts not testamentary intentions and certainly not intended to be wills." (at [18]) 31In this case however, there is direct, unchallenged evidence that Margaret intended that the 2009 Document be her will. 32Bill gave evidence that on 9 November 2009 (a little over a month before Margaret died) Margaret said to him: - "Look through the safe to find my will." 33The 2009 Document bears the date 5 November 2009 rather than 9 November 2009. However, it is clear that Bill was referring to this document. There is no suggestion to the contrary. The difference between the two dates is not significant. 34The safe to which Margaret referred was in the cupboard in the main bedroom of the Property and, according to Bill, "contained all of our important paperwork". 35Bill and Margaret were unable to locate Margaret's latest will. Margaret then said: - "I'm going to make a new will." 36Margaret then wrote out the 2009 Document and, I would infer, signed it. 37Margaret gave the document to Bill and said: - "Put it in the safe." 38Bill did this. He said the document remained there until Margaret's death. 39In these circumstances, I am satisfied that the 2009 Document satisfies the requirements of s 8 of the Act. It revoked all earlier testamentary dispositions of Margaret. It should be admitted to Probate. It follows that, in my opinion, the order made by the Registrar on 18 July 2011, referred to above, should not be disturbed.

The proper construction of the 2009 Document 40There was debate before me as to the proper construction of the 2009 Document. 41By the document, Margaret gives to Bill "all my worldly goods". 42The document goes on to provide that Bill must not give "anything" to his immediate family and that he "is" to live his life in "my home" and to divide "what he wishes" to "my children". 43It was common ground before me that there is some uncertainty as to what Margaret intended by these words. 44The document purports to deal with what Margaret described as "all her worldly goods". It also made reference to "my home". 45Very often, a reference in a document to "goods" means personal goods rather than real estate. 46Mr Papanicolaou, solicitor, who appeared for Christine, submitted that I should give the expression "goods" its "usual" meaning and construe that word as referring only to Margaret's personal possessions and not to the Property. 47Mr Papanicolaou pointed out that, in the 2009 Document, Margaret had made separate references to "my worldly goods" on the one hand and "my home" on the other and that that choice of language suggested that although Margaret was intending to express a wish that Bill could live all his life "in my home", she was not intending, by the use of the expression "all my worldly goods" to leave the Property to Bill. 48A difficulty with this construction is it would have the result of there being a partial intestacy as, on that construction of the 2009 Document, Margaret has not disposed of the Property (but, at most, has given Bill something in nature of a life estate in the Property). 49The 2009 Document appears to me to be one by which Margaret was intending to dispose or deal with the whole of her estate. It would be a curiosity if Margaret had not purported to do so as, in each of the three earlier documents (those of 11 December 1995, 11 February 2004 and 16 June 2007) Margaret had, plainly, purported to deal with all of her estate, including (indeed principally) the Property. 50David Haines QC in Construction of Wills in Australia, (2007) states at 3.3:- "The Golden Rule of construction of wills stipulates that a court should adopt a interpretation which will not lead to an intestacy or partial intestacy...The expression 'Golden Rule' in respect of this principal was coined by Lord Esher MR in Re Harrison; Turner v Hellard. The rationale behind the rule is simple. Where a person executes a will in solemn form, it must be assumed that he or she did not intend to die intestate. Courts have taken a firm view in this regard. A court 'never inclines towards intestacy, it is a dernier ressort in the construction of wills'. The proposition has the status of a presumption but may be rebutted by the context. It is rebuttable because 'the guiding principle [is] always to construe the will in accordance with wishes of the testator'." (citations omitted) 51Here of course, it cannot be said that the 2009 Document was a "will in solemn form". Further, it may be overstating matters to say that there a "rule" to this effect. Nonetheless, it appears to me that, in all circumstances, it is not likely that Margaret intended there to be a partial intestacy. Accordingly, if the words in the 2009 Document permit this result, I should construe it to avoid that result. 52Because of the informal nature of the 2009 Document, and of the language contained in it, the matter is not free from doubt. However it does seem clear that when Margaret provided that Bill was to "not give his immediate family anything" she was including in the "anything" that Bill's family was to not receive "my home". That suggests, to my mind, that Margaret intended to include her "home" as part of her "worldly goods". 53For that reason, in my opinion the better view is that Margaret intended that all her "worldly goods" mean everything she owned and that she intended by the 2009 Document to leave all of her estate to Bill. 54The expression "all my worldly goods" is a familiar one. It derives from the Book of Common Prayer 1662 in which, as part of the "Solemnization of Marriage" it is stated: - "With this ring I thee wed, with my body I thee worship, and with all my worldly goods I thee endow." 55I mention the Book of Common Prayer not because there is any suggestion that Margaret had that in mind when she made the 2009 Document but, rather, to illustrate that the expression "all my worldly goods" is capable of meaning something to the effect "everything I own". 56In my opinion, on the proper construction of the 2009 Document, this is what Margaret meant. 57As to Margaret's statement in the 2009 Document that Bill "is to live his life out in my home" and to divide "what he wishes" amongst Margaret's children and grandchildren, I accept Mr Armfield's submission that I should construe these words as a precatory wish on the part of Margaret, and one that does not impose any binding obligation on Bill. 58Thus, my conclusion is that, on the proper construction of the 2009 Document, Margaret has left her entire estate to Bill.

The position if there is a partial intestacy 59In my opinion the same result follows were I to accept Mr Papanicolaou's submission that "all my worldly goods" deals only with personal property. 60If that is the correct construction of the 2009 Document, the document does not deal with the Property, and there is an intestacy in relation to the Property. 61As Margaret died on 21 December 2009, Division A of the Probate and Administration Act 1898 ("the P&A Act") governs her intestacy. 62For the reasons set out below, my opinion is that the evidence establishes that, at the date of Margaret's death, Bill had been Margaret's de facto spouse for not less than two years. Indeed, in my opinion, the evidence establishes that Bill had been Margaret's de facto spouse since in or around 1988. 63In these circumstances, it is my opinion, assuming that there was an intestacy in Margaret's estate in respect of the Property, that Margaret's intestate estate passes to Bill in any event. 64This is because of the combined operation of subsections 61B(3) and (3B), 61D and 61F of the P&A Act. 65Those sections and subsections are in the following terms: - "61B ... (3) If the intestate leaves a spouse and also leaves issue, then if the value of the estate (excluding any household chattels) does not exceeds the prescribed amount, the whole estate shall be held in trust for the spouse, but if the value of the estate (excluding any household chattels) exceeds the prescribed amount, then: (a) the household chattels (if any); (b) the prescribed amount; and (c) one-half of the estate (excluding any household chattels and the prescribed amount)... (3B) Notwithstanding subsection (3), if the intestate leaves a de facto spouse and also leaves issue but no spouse, the whole or, as the case may be, such part of the estate of the intestate as would, if the intestate had left a spouse, be required to be held in trust for the spouse of the intestate shall be held in trust for: (a) where the de facto spouse was the de facto spouse of the intestate for a continuous period of not less than 2 years prior to the death of the intestate - the de facto spouse; or (b) in any other case: (i) except as provided by subparagraph (ii) - the issue as if the intestate left no spouse; or (ii) where the intestate leaves no issue being children of the intestate or where such of the issue as are children of the estate are issue also of the de facto spouse - the de facto spouse... 61D (1) Subject to the Fourth Schedule, where: (a) an intestate dies leaving a spouse and issue; (b) the value of the estate of the intestate (excluding any household chattels) exceeds the prescribed amount; (c) the intestate, at the time of the intestate's death, held an interest in a dwelling-house which is situated in New South Wales; and (d) that dwelling house was, at that time, occupied by the intestate and the intestate's spouse or by the intestate's spouse as their, or as the spouse's only or principal residence, the spouse may require the administrator to hold that interest in trust for the spouse, and on being so required, the administrator shall hold that interest accordingly. (2) A reference in subsection (1) to the spouse of an intestate is, where the intestate dies leaving a spouse and a de facto spouse, a reference to the spouse of de facto spouse for whom part of the estate is required to be held in trust under section 61B(3), (3A) or (3B)... 61F (1) Where a person dies having made a will which effectively disposes of only part of the person's estate, sections 61A, 61B, 61C, 61D and 61E, so far as applicable and subject to the modifications specified in subsection (2), shall apply to an in relation to the part of the person's estate that is not disposed of by the will as if the last-mentioned part had comprised the whole of the person's estate. 66The route to the final result depends on whether or not the value of Margaret's estate exceeds the "prescribed amount" ($200,000). 67Mr Armfield submits that the "value" of the estate referred to in subsection 61B(3) is the net value of the estate. It is an open question, in this case, whether, taking into account the costs of these proceedings, the value of Margaret's estate will exceed $200,000. 68However, for all practical purposes, the result is the same either way. 69If the value of Margaret's estate does not exceed the prescribed amount, then the combined effect of subsections 61B(3) and (3B), when read with s 61F (which extends their effect to partial intestacy), is that Bill receives the whole of Margaret's intestate estate. 70On the other hand, if the value of Margaret's estate exceeds the prescribed amount, then by reason of the combined effect of subsection 61B(3) and (3B), Bill receives a total of: - (a)the household chattels (if any); (b)the prescribed amount; and (c)one-half of the balance of the estate. 71However, in that event Bill is entitled to require the administrator of Margaret's estate to hold her interest in the Property on trust for Bill. 72This is because, for the purposes of s 61D: - (a)Margaret has left a spouse (Bill) and issue (Christine) (subsection 1(a)); (b)Margaret's estate exceeds the value of the prescribed amount (subsection 1(b)); (c)Margaret held an interest in a "dwelling-house which is situated in New South Wales" (the Property) (subsection 1(c)); and (d)that dwelling-house (the Property) was, at the time of Margaret's death, occupied by Margaret and Bill as their principal residence (subsection (d)). 73Bill's entitlement under s 61D is subject to the Fourth Schedule of the P&A Act. Relevantly, clause 3 of the Fourth Schedule provides that Bill's right under s 61D is not exercisable after 12 months from the date upon which Letters of Administration were first taken in respect of Margaret's estate. Bill thus has until 18 July 2012 to exercise any s 61D right that he has. 74Thus assuming that the value of Margaret's estate exceeds the prescribed amount, and assuming (as I do for present purposes) that Bill will exercise his rights under s 61D of the P&A Act prior to 18 July 2012, he would be entitled to the whole of Margaret's intestate estate.

The result so far 75The 2009 Document satisfies the requirements of s 8 of the Act and should be admitted to probate. 76The declaration made by the Registrar on 18 July 2011 that Margaret intended that the 2009 Document form her will and the granting by the Registrar, on that date, of Letters of Administration with the will annexed, to Bill, should stand. 77On the proper construction of the 2009 Document, Margaret has left her entire estate to Bill. 78If that construction of the 2009 Document is wrong, and there has been a partial intestacy of Margaret's estate in respect of the Property, Bill either takes, or is entitled to take the whole of Margaret's estate on intestacy in any event. 79Earlier, I indicated that I had concluded that Bill and Margaret had lived in a de facto relationship since 1988. 80I will next set out my reasons for coming to that conclusion. 81I will then deal with the remaining, and most difficult question of whether, in all these circumstances, provision should be made for Christine out of Margaret's estate under s 59 and s 60 of the Act.

The de facto relationship between Margaret and Bill 82Bill claimed that he had been living with Margaret as her de facto spouse since 1988. 83To a very large extent, my finding as to that assertion must depend on my impression of Bill as a witness. 84I found Bill to be a credible witness. 85He gave his evidence openly and, in my opinion, honestly. 86Bill's evidence was tested vigorously in cross-examination by Mr Papanicolaou (although Christine herself gave no evidence to challenge Bill's contention). 87Bill readily accepted the truth of matters that did not reflect favourably on some aspects of his past life. 88The impression I gained from Bill's evidence was that he was doing his best to give open and honest answers to the questions he was asked. 89For the purposes of the P&A Act the expression "de facto relationship" has the same meaning as in the Property (Relationships) Act 1984 (see s 32G of the P&A Act). 90Section 4 of the Property (Relationships) Act 1984 provides: - "(1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons: (a) who live together as a couple, and (b) who are not married to one another or related by family. (2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case: (a) the duration of the relationship, (b) the nature and extent of common residence, (c) whether or not a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship. (3) No finding in respect of any of the matters mentioned in subsection (2) (a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case. (4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship." 91Bill gave the following evidence concerning his relationship with Margaret:- "In 1988 I commenced to live with the Deceased in her home at Old Guildford. Thereafter until the time of her death we lived together as man and wife. At the time I commenced to live with the Deceased in 1988 I was employed by Southern Game Meats as a salesperson. I also worked part-time doing odd-jobs. The Deceased did not work. I provided the Deceased with my entire wage each week, and she attended to running the household, buying groceries and paying bills with this money. During the period we lived together, the deceased was in receipt of a Disability pension, as she suffered injuries in a car accidence and was no longer able to work. She used her pension to purchase cigarettes and medication for herself. In approximately 1993, I left Southern Game Meats and the Deceased and I moved to the Central Coast. I was unemployed for approximately six (6) months. I then went back to work for Southern Game Meats for a further six (6) months. In 1997, I left that company and became a Customer Service Representative at Cityrail, where I am currently still employed. During the entire period I lived with the Deceased I handed her my weekly wage which she used to run the household." 92The only evidence inconsistent with that evidence was the evidence that Bill had completed his income tax return upon the basis that he was a "single man". 93He gave this evidence quite openly, on the basis of my indication that I would issue a certificate pursuant to s 128 of the Evidence Act 1995. 94He said that the reason he did this was because Margaret said to him: - "Don't put me down. I get a pension." 95I accept Bill's evidence that this was the reason that he described himself as a "single man" in his income tax returns. It follows that Bill has misled the income tax authorities, evidently with a view to enabling Margaret to preserve her pension entitlements. Such conduct is, of course, to be deprecated. However, for reasons which I set out below, I cannot conclude that it follows from this evidence that I should reject Bill's evidence as to his de facto relationship with Margaret. 96The most compelling evidence supporting Bill's contention that he lived in a de facto relationship with Margaret came from Margaret and Bill's neighbours, Mrs Kirsti McAndrew and her husband, Mr Bradley McAndrew. 97Mrs McAndrew, whose evidence I accept unreservedly, gave evidence that she observed that both Bill and Margaret wore wedding rings and addressed each other in affectionate and loving terms (Margaret called Bill "Billy boy", and Bill called Margaret "love"). 98Although Mrs McAndrew agreed that she had not (as one might understand), during Margaret's life, closely examined the circumstances of the three bedrooms at the Property, she said that after Margaret's death she helped Bill clean out the house. She saw that Margaret's clothing was stored in a main bedroom cupboard, along with Bill's clothing. 99That evidence suggests, strongly, that Margaret and Bill shared that bedroom as would a married couple. 100Mrs McAndrew also recalled that Margaret referred to Bill as her "partner". 101Mr McAndrew, whose evidence I also unreservedly accept, gave similar evidence. 102Other factors pointing to the conclusion that Bill and Margaret lived in a de facto relationship are that: - (a)they lived together in the same house for 21 years; (b)they celebrated Christmas together; (c)there are photographs of Bill and Margaret in what appears to be domestic circumstances; (d)Bill received Christmas and Father's Day cards from Margaret's children and grandchildren which included the salutation "to my daddy Billy". Although Bill was challenged as to whether these cards were addressed to him (as opposed to other persons also known as "Bill") Bill maintained, credibly in my opinion, that the cards were given to and addressed to him; (e)so far as the evidence reveals, Bill was the only person to live with and care for Margaret. He worked, contributed all his income to the household, cleaned the house, did grocery shopping and cooked meals. After Margaret became unwell, Bill took her to the doctor and to other medical appointments; and (f)there are, in evidence, photographs of Bill and Margaret in which Bill is clearly shown as wearing a wedding ring. 103In cross-examination, the following was put to Bill: - "Q. I suggest to you firstly that you lived in as a boarder with the deceased at the Guildford home? A. No, I didn't. I moved in as a - in a relationship. Q. I also suggest to you that when she sold the Guildford property and bought the San Remo property, you moved up to San Remo with her again as a boarder. A. No, didn't, I lived with her in a relationship". 104I accept that evidence. 105Bill is mentioned in each of Margaret's purported testamentary dispositions and, in that of 11 December 1995, is described as "my companion". 106Finally, Bill made a will on 7 October 2001, in which he left all his "worldly goods" to Margaret. The fact that he did so is consistent with his contention that he and Margaret lived as a de facto couple. 107In all these circumstances, I am comfortably satisfied that Bill and Margaret lived in a de facto relationship from 1988 until Margaret's death in 2009.

Claim pursuant to s 59 of the Succession Act 2006 108Christine makes a claim for family provision. 109As Margaret died on 21 December 2009, the applicable legislation for dealing with Christine's family provision claim is the Act, rather than the now repealed Family Provision Act 1982. 110However, it is common ground that the principles developed in the case law under the Family Provision Act will, for the most part, be applicable to claims under the Act: see Hulme v Graham [2010] NSWSC 1281 per Hallen AsJ. 111There is no dispute that Christine, as a daughter of the deceased, is an "eligible person" within the meaning of s 57(1)(c) of the Act. 112The key provision of the Act is s 59. The test to be applied under this section is a two-stage test: Singer v Berghouse (No 2) (1994) 181 CLR 201. 113The first stage is a question of fact, namely whether Margaret has made adequate provision for Christine's proper maintenance, education and advancement in life. 114The aim of the first stage is to assess whether the Court can make an order for provision. As Hallen AsJ said in Lajcarova v Todorov [2011] NSWSC 522: - "Unless the court comes to the conclusion that inadequate provision has been made, it is not empowered to make an award. This is commonly referred to as 'the jurisdictional question'. At this stage, the court will consider whether it can make an order for provision for the maintenance, education and advancement in life of a particular applicant". (at [79]; emphasis in original). 115The second stage, should it arise, involves an exercise of discretion. The Court must assess whether provision ought to be made in Christine's favour. 116The object of the second stage is to assess whether the Court should make an order for provision. As Hallen AsJ said in Lajcarova v Todorov:- "At the second stage, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour." (at [84]; emphasis in original). 117Although Hallen AsJ was then considering a claim under the Family Provision Act, there was no suggestion before me that I should adopt a different approach. 118It is clear that the determination of the second stage involves similar considerations to that of the first stage: Singer v Berghouse (No 2) at 209-210. 119Section 60(2) of the Act sets out the matters to which the Court may have regard when determining whether to make a family provision order, namely: - "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 a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship." 120These matters are capable of relevance to both the first and second stages referred to above, as Hallen AsJ pointed out in Andrew v Andrew [2011] NSWSC 115. 121His Honour said: - "[53] It can be seen that s 60(2) enumerates 15 specific matters which the court may take into account, together with 'any other matter the court considers relevant', for the purposes of determining eligibility, whether to make a family provision order, and, if so, the nature of any such order. There is no mandatory command to take into account any of the matters enumerated. None of the matters differentiate in their application between classes of eligible person. Similarly, there is no distinction based on gender. [54] 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. For example, when considering eligibility under subs (1)(a), many of the matters in ss (2) will be largely, if not wholly, irrelevant. [55] Furthermore, consideration of some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and of other eligible persons as well as of the beneficiaries named in the deceased's will, whilst others do not. Importantly, also, many of the matters in ss (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1). [56] 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. [57] This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the first stage. I am comforted in reaching this conclusion by the following comments made in Singer v Berghouse (at 209-210). '... The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant.' [58] And by the comments of Callinan and Heydon JJ in Vigolo v Bostin (at 230-231): 'We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all the potential beneficiaries must be taken into account and weighed with all of the other relevant factors.'"

General principles 122In addition to the above matters, there are some general principles that are relevant in this case. 123First, freedom of testamentary disposition remains a prominent feature of the Australian legal system: Lajcarova v Todorov at [91]. 124Furthermore, the Court must be vigilant in guarding "against a natural tendency to reform the deceased's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant": Cooper v Dungan (1976) 50 ALJR 539 at 542.

Claims made by an adult child 125The question of provision for adult children was considered by Brereton J in Taylor v Farrugia [2009] NSWSC 801. His Honour said: - "[57] It is impossible in this area to describe in terms of universal application the moral obligation or community expectation of a parent in respect of an adult child. I think, however, 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 [McGrath v Eves [2005] NSWSC 1006]. [58] Generally speaking, the community does not expect a parent to look after his or her children for the rest of their lives and into retirement, especially when there is someone else, such 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. It is no longer the case, if it ever was, that an adult child has to establish a special need before obtaining provision from the estate of a deceased parent". 126Being an adult child is in itself not a disqualifying factor. It all depends on the facts.

The size of the estate and the competing claims 127The only asset now left in the estate is the Property. 128The Property is valued at between $250,000 and $270,000. It is unencumbered. 129When Margaret died, she and Bill had approximately $21,000 in cash kept at the Property. Bill claimed, and I accept, that this cash included money from his wages which, he said, he gave Margaret for household use. Bill said he used $13,000 of this to pay Margaret's funeral expenses. Bill said he used the balance to pay household expenses such as electricity and telephone. I would infer from this that Bill kept the balance of the cash, that is $8,000, and used it to remit expenses as they arose. 130There was also in the estate a motor vehicle in Margaret's name. Bill said, and I accept, that he contributed to the cost of the motor vehicle. Bill has retained the car and arranged for the Roads and Traffic Authority to transfer its registration into his name. 131There was also in the evidence that Margaret owned some jewellery. Bill said that, after Margaret died, the Property had been broken into and the jewellery stolen. Bill did not report the theft to the police, or claim on household insurance that he said existed in relation to the Property. 132In cross-examination it was suggested to Bill that there had been no break-in and that he had retained the jewellery. Bill denied this. I accept Bill's evidence. He said that he was "too upset" at the time to process the "paperwork" involved in the making of an insurance claim and that he had not called the police because, initially, he thought that all that had been stolen was a small amount of money on the dressing table and other minor items. 133As I have said, I found Bill to be a credible witness and I am not prepared to disbelieve the evidence he gave about the break-in. 134The only remaining asset in Margaret's estate is the Property. 135I shall consider Christine's position in more detail below. For present purposes, it is important to note that Mr Armfield, who appeared for Bill, agreed that he could not point to any disentitling factor so far as Christine was concerned. Mr Armfield accepted that Christine had a legitimate competing claim. Mr Armfield said: - "Candidly it's a difficult case because of the competing claims which, objectively viewed, have merit." 136I quite agree. The circumstances before me are aptly described by the observations of Bryson JA made in Bladwell v Davies [2004] NSWCA 170 at [11] (albeit, obviously, in relation to the facts of that case): - "As recurringly happens, it is not possible to meet all the claims on the testator's bounty which have been shown to exist. The determination whether there is power to make an order, and also what order should be made, requires the Court to have regard to the assets available for distribution; and the assets available are not sufficient to satisfy all proved needs and claims on the testator's bounty. There can be no truly satisfactory outcome for this litigation. No one with a claim on the testator's bounty could receive adequate provision in relation to that person's needs except at the expense of making less than adequate provision available for some other person..." 137So it is in this case. If Bill's occupation of the Property is to be preserved, Christine must be denied any provision. On the other hand, if any provision is to be made for Christine, it is in inevitable that the Property be sold and Bill be dispossessed. 138In earlier years, there was some suggestion in the authorities that primacy should be afforded to the claim of a widow or widower over that of adult children. 139Thus in Cropley v Cropley [2002] NSWSC 349; (2002) 11 BPR 20,171, Barrett J said at [56]: - "When it comes to claims by adult children, it can be said at once that, if there is a competing claim by the widow and all claims cannot be fully accommodated, the widow's claim should be afforded precedence in the sense that a demonstrated requirement for the allocation of resources in aid of the widow must be satisfied before any similarly demonstrated requirement for the allocation of resources in aid of an adult child. That a widow's claim to maintenance out of the estate of her deceased husband is a claim which is 'paramount' and 'of a high order' is borne out by the judgments of Sheller JA in Sayer v Sayer [1999] NSWCA 340 (Davies AJA concurring) and Blackmore v Allen [2000] NSWCA 162 (Priestley JA and Foster AJA concurring)." (emphasis in original). 140In my view, there is no sound basis to lay down any general rule or presumption as to how the competing claims of a widow or widower and an adult child should be resolved. What is necessary is the application of the statutory requirements, as explained in Singer v Berghouse. 141The current, and in my respectful opinion, preferable view has been expressed by Bryson JA in Bladwell v Davies: - "In my respectful view there is an inconsistency between an approach, in the context of competing claims, to the claims of widows as paramount, and the application to the facts and circumstance of each case of s.7 and the approach established by Singer v Berghouse. Preconceptions and predispositions are likely to be the source of inadequate consideration of the process required by the Family Provision Act 1982. In the application of the test in s 7, and of the exposition thereof in Singer v. Berghouse by Mason CJ, Deane and McHugh JJ at 409-411 it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v. Berghouse, in full and with reference to the instant facts. Defeat of the opponents' claims does not necessarily follow from a demonstration, which the claimant can make, that all her needs with respect to income, home renovation, and provision for contingencies cannot be met if any provision is made for the opponents; indeed she could well demonstrate that even if the provisions of the will took effect without any modification, the provision for her is not adequate. That is not a demonstration that no claim by an eligible person can succeed; the claims and circumstances of the opponents also have to be weighed, and they too have their needs and merits." (at [18] and [19]).

Adequacy of provision for Christine 142As Hallen AsJ said in Laidlaw v Kellie; Laidlaw (bht NSW Trustee & Guardian) v Rusiti [2011] NSWSC 740: - "The question would appear to be answered by an evaluation that takes the court to the provision actually made in the deceased's Will [...] on the one hand, and to the requirement for maintenance, education and advancement in life of the applicant on the other". (at [43]) 143Accordingly, it is necessary to consider what provision Christine received under the will. 144Margaret made no provision for Christine under her will. 145So far as concerns Christine (and Kelley), Margaret did no more express the precatory wish that Bill divide "what he wishes" from her estate "among my children and grandchildren". 146Christine's position is precarious, both financially and otherwise. 147Christine owns no property. She is not working. She is in receipt of a disability support pension from Centrelink together with a payment for rental assistance. 148Christine is now 49 years of age. 149In cross-examination, Mr Armfield suggested to Christine that she was currently in a de facto relationship with Mr Mark Cameron (who is mentioned in the 6 February 2004 document and 2009 Document). Christine denied the suggestion. There is no objective evidence supporting the proposition. I accept Christine's evidence. 150Christine was addicted to heroin for 13 years until she broke the habit and participated in the methadone program. She had a six-month relapse in 2001 after one of her children died. Since 2001 she has been on the methadone program. She suffers from painful knees due to osteoarthrosis, obesity and chronic back pain due to lumbar spondylosis. She also suffers migraines, anxiety and depression. She was recently tested positive for hepatitis C. She has two surviving children, who are now adults. 151Margaret was in a motor vehicle accident in 1984. Christine said, and there was no suggestion to the contrary in the evidence, that for three years thereafter, Christine paid the mortgage payments due in respect of Margaret's then property at Old Guildford. 152From time to time, Margaret supported Christine financially. For example, between 1995 and 2000 Margaret gave Christine cash, in the sum between $50 and $100, every fortnight for food. In 2009, Margaret gave Christine $3,500 to assist with the purchase of a motor vehicle. This suggests that Margaret felt an obligation to provide to Christine, at least to this extent. 153When all these circumstances are taken into account, it appears to me to be clear that, as Margaret made no provision for Christine, the provision made by Margaret for Christine is not adequate. 154Should provision be made for Christine in these circumstances? This question necessitates consideration of Bill's position. 155Bill has worked all his life, but has recently become permanently unfit for work. He suffers from Parkinson's disease. He will shortly commence to receive a disability support pension. 156Bill has an interest in First State Super valued at $64,575.58 as at 30 June 2011. It seems likely that he will also be entitled to a "total and permanent disablement" benefit in the order of $12,486 from First State Super. 157I accept that great weight must be given to the fact that Bill has been in occupation of the Property since 1988. 158In those circumstances, in order to accommodate both Bill and Christine's position, I have given consideration to whether I should make an order having the effect of giving Bill a movable life estate in the Property (cf Crisp v Burns Philp Trustee Co Limited, Holland J 18 December 1979) (a "Crisp Order") or what Mr Armfield described as a "Reverse Crisp Order", being an order giving Bill a fee simple of the Property with a charge in Christine's favour to secure any order for provision made in her favour. 159Although I have the power to make orders such as these, I have decided not to do so for two reasons. 160First, neither Mr Armfield nor Mr Papanicolaou expressed any enthusiasm for the making of such an order. 161Second, and in any event, it seems to me that it would be very difficult to fashion an order, effective now, which could satisfactorily cater for all the uncertainties which lie ahead for both Bill and Christine. 162Neither is in good health and, so far as Bill is concerned it may well be that, in the future, he would not be able to be accommodated in the Property, or any substitute for it and, that any life estate that I could create by reason of the Crisp Order would not adequately cater for his future needs.

Balancing the competing needs of Bill and Christine 163I cannot balance the competing needs of Bill and Christine without imposing hardship on one or other of them. 164As I have said, if Bill's occupation of the Property is not to be disturbed, Christine must be denied provision. On the other hand, if Christine is to receive provision, the Property must be sold and Bill must be dispossessed. 165Doing the best I can to balance these competing, and to a large extent, irreconcilable claims, I consider that the just result is to make provision for Christine in an amount equal to 1/3 of the value of the Property or if (as seems likely) Bill cannot buy Christine out, 1/3 of the net proceeds of sale of the Property. 166In coming to this conclusion, I have taken into account what I consider to be Bill's superior claim to Margaret's testamentary bounty, in light of his lengthy relationship with her and his nomination by her as the beneficiary of her will. 167I have also had regard to the fact that Bill made no financial, or other, contribution to the purchase of the Property. 168I also take into account Christine's parlous financial position, the obvious need there is for provision for Christine and the fact that no suggestion is made of any disentitling factor so far as Christine is concerned.

Costs 169Mr Armfield submits, and I accept, that the normal order for costs in a case such as this is that the executor gets his or her costs out of the estate on an indemnity basis. 170Mr Armfield submits that as Bill is, in effect, in the same position as an executor in respect of the 2009 Document, on the face of it he should get his costs of propounding that document as Margaret's will (and, in effect, defending the order made by the Registrar on 18 July 2011 granting him Letters of Administration with that will annexed) from the estate on an indemnity basis. 171Mr Armfield submits that I should go further in this case and order that Christine pay his costs in respect of the s 8 issue. 172The basis of that submission is that Mr Papanicolaou, for Christine, sought to propound the first of Margaret's purported testamentary dispositions (the document of 11 December 1995) in circumstances where, on any view of it, the later three documents (of 11 February 2004, 16 June 2007 and 5 November 2009) all purported to revoke earlier testamentary dispositions. Further, there was evidence, which Mr Papanicolaou did not challenge, that Margaret intended the 2009 Document to be her will; see par [30] to par [36] above. 173I accept that there is substance in this submission. Nonetheless, I consider that the appropriate order to make is that Bill have his costs of the s 8 issue from the estate on an indemnity basis. I do not propose to order that Christine pay Bill's costs of the s 8 issue. 174So far as concerns Christine's claim for provision, the usual order is that a successful applicant for provision has his or her costs from the estate on a party/party basis, and I will make that order.

The result 175The document executed by Margaret on 5 November 2009 should be admitted to probate as Margaret's last will and testament. 176The order made by the Registrar on 18 July 2011 granting Bill Letters of Administration with the 2009 Document annexed should not be disturbed. 177Pursuant to s 59 of the Act provision should be made for Christine from Margaret's estate of an amount equal to 1/3 of the value of the Property and, if the Property must be sold, an amount equal to 1/3 of the net proceeds of sale of the Property. 178Bill should have his costs of the s 8 issue out of Margaret's estate on an indemnity basis. Christine should have her costs of the provision issue from the estate on a party/party basis. 179I invite the parties to bring in short minutes to give effect to these reasons.

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: 10 May 2012