Byrd v Margiotta

Relationship details

1. The deceased had a number of marriages.
2. His first marriage was to Hilda, the plaintiff's mother. The deceased and Hilda divorced and she passed away in about 1975.
3. The deceased's second marriage was to Claire Packham (Claire). That subsisted for approximately ten years. That marriage also ended in divorce, and it appeared that Claire remarried after the divorce and there is evidence that a Claire Trypolski, namely, a person who fits the description of her remarried surname "Trypolski", died in December 2012.
4. The deceased's third marriage was to Amalia Zsuzsanna, who is referred to as "Susie" in the evidence. According to the plaintiff, the deceased lived with Susie for about 30 years. Susie passed away in late-2018 or early-2019 (the precise timing is unclear). Thus, she pre‑deceased him.
5. Up until early August 2020, the deceased lived in a property at Baulkham Hills. He then moved into an aged care facility at Castle Hill.
6. Just prior to then, on 4 July 2020, the deceased appointed Peter as his attorney pursuant to a power of attorney and as his guardian pursuant to an appointment of an enduring guardian.
7. The plaintiff married Kelvin Hogan (Kelvin) in October 1973. The marriage was short lived, with Kelvin sadly dying in January 1980, aged 45.
8. In 1978, Peter married Faith Angus (now known as Faith Walker) (Faith). They separated in 1995 and had a property settlement in 1999. Peter and Faith have two children: a son Stephen, born in 1985, now aged approximately 38; and a daughter, Beth, born in 1990, now aged approximately 33.
9. The evidence refers to a number of people who are or may be additionally eligible. These include Claire's three children (Jane, Jenny and Stephen - seemingly from an earlier relationship that she had prior to meeting the deceased). It appears, nonetheless, that they lived with the deceased and Claire during the subsistence of his relationship and marriage with her. Whilst there was some initial difficulty in locating them, they each have now been served with a notice of claim, for which they have acknowledged receipt.

Estate details

1. The deceased left an estate which, according to the inventory of property, totalled $2,823,531. The defendant located an additional asset, being proceeds of a life policy in the sum of $2,888. The defendant estimated the value of the gross distributable estate, excluding the cost of the proceedings, as being $2.8 million.
2. Apart from $240 comprising shares in Hungarian House Co-operative Ltd, the entirety of the estate is comprised of funds which had been liquidated, including principally, funds in two St George Bank accounts, including interest, and a refundable accommodation deposit and overpaid Care fees from Anglicare.
3. In addition, the deceased held a joint St George Bank account with Peter which, as of the date of the deceased's death, had funds in the order of approximately $35,730.
4. The Will provisions are detailed. Despite the relative closeness in date between the date of the Will and the date of the deceased's death, the deceased specifically references a number of assets which he no longer held as at the date of his death.
5. Curiously, one of the bank accounts which the deceased specifically referenced under the Will was closed by the deceased approximately 11 days after he had made the Will.
6. The effect of the Will is such that the plaintiff, under the terms of the Will, was only given a sum of $10,000 in cash. On the other hand, Peter receives 70% of the residue of the deceased's estate, Beth 15%, and 15% is given to Faith to hold on trust for Stephen. The reason for the sum being held on trust for Stephen is not, as far as I can see, entirely clear from the evidence.

Plaintiff's position and claim

1. The plaintiff has meagre assets including a 2006 Ford Focus motor vehicle. When the plaintiff swore her first affidavit, she had allocated a figure of $2,000 for the value of that vehicle. She had $8 in a St George Bank account and furniture and household effects totalling $1,000. In the plaintiff's November affidavit, the plaintiff indicated that her meagre resources had been further depleted. She valued the car as being worth $1,600 and stated that she had cash on hand of $50 and 85 cents in the St George Bank account.
2. The Ford Focus was purchased by the deceased for the plaintiff apparently seven years ago.
3. The plaintiff's initial affidavit indicated that she received an aged pension of $647.60 per fortnight, less deductions for electricity and rental. Her expenses totalled $614 per fortnight. The plaintiff's November affidavit confirms that position, indicating that she spends the balance of her pension "surviving".
4. The plaintiff, in her evidence, indicated that she currently owes about $33,000 in legal fees and has seemingly been given an estimate of future costs in the vicinity of a further $40,000, inclusive of GST and counsel's fees.
5. On the hearing of the application, Mr Hammond tendered a tax invoice dated 23 November 2023 (the same date as the notice of motion), being an invoice from the plaintiff's solicitors to her for the sum of $33,000. The invoice became Exhibit P1. The plaintiff also tendered a form of costs agreement, which became Exhibit P2.
6. The tax invoice does not, on its face, indicate any specific time for payment of the invoice. Mr Hammond suggested it might perhaps be read as being payable as at the date it bears. It is not clear to me that that is the case.
7. Subject to what I will say about the costs agreement, it may be that one could infer that the invoice is payable within a reasonable period of time. However, there may be other constructions available. The costs agreement contains a provision regarding billing arrangements that is as follows: 4. Billing arrangements We will send you a bill of costs containing information of our professional fees and charges, disbursements and expenses, including GST, either after completion of the work, or at other times as agreed with you, when the work is in progress. 5. Interest on unpaid costs If our costs are not paid within 30 days of receipt by you of our bill of costs, we may charge you interest on the unpaid amount at the rate prescribed at the Cash Rate Target plus 2%.
8. It is not apparent to me that there is any express evidence of any agreement having been reached as between the plaintiff and her instructing solicitors for the rendering of a costs invoice, within the meaning of clause 4. Otherwise, counsel were not seemingly able to identify any provision of the costs agreement that required payment within a certain specified time.
9. The plaintiff is not in ideal health, stating that she suffers from epilepsy, depression, diabetes, possible autism (for which she is prescribed medication), and osteoarthritis.
10. The plaintiff worked with the Department of Community Services for approximately 30 years from 1983. While she was working at Goulburn, the plaintiff suffered an injury and commenced a workers compensation claim for which she seemingly received payment, and eventually retired from the department in 2015.
11. During her working life, the plaintiff indicates that she purchased three homes at separate times. However, at no stage did her ownership of those homes provide her, so she says, with sufficient equity to enable her to purchase property without financial assistance. She states that the last time she purchased a property, it was eventually sold in 2005 and she obtained a minimal amount.
12. In 2017, the plaintiff moved to Cowra and has had a Housing NSW dwelling since that time. The plaintiff describes the house as comprising two bedrooms, a kitchen, a lounge room, a bathroom and a laundry. The plaintiff indicates that when she moved into that home, the deceased gave her $1,000 to set up the house.
13. The plaintiff refers to a conversation in or about 2012 with the deceased in which he indicated that he owned a property in Newtown with Peter and that she would receive one-third of it.
14. The plaintiff, in her initial affidavit sworn 22 June 2023, indicated that she needs to replace her car, which is 17 years old and unreliable. She has limited savings. She stated that she would like to have a fund for contingencies and to purchase a residence in the "Central West" area of New South Wales, for which she expected a purchase price would be in the order of $400,000.
15. The plaintiff, in her supplementary affidavit sworn on 11 August 2023, identified various issues with the Housing NSW property, including leaks in the roof, mould in the house and old and worn carpet. She further indicated that the stove and hot water system needed to be replaced.
16. An inspection from a Housing Inspector during 2023 apparently identified that the bathroom and laundry are "full of asbestos."
17. The plaintiff says that the house has a large yard which is difficult for her to maintain. She has a 20-year lease with a variable rental determined by her income.
18. In that August affidavit, the plaintiff indicates that she needs to be closer to medical professionals and hospital care. She travels to Orange to see an eye specialist and to Bathurst to attend a diabetes specialist. She indicated that she needed a modern home, free from mould and asbestos, and one which is easier to maintain with a smaller yard.
19. In that affidavit, she indicated that she had relatives in the Mittagong area and thought that it would be better for her, in the longer term, to live closer to family. Alternatively, she considers that she may need to be closer to medical facilities and indicated that Bathurst may also be a suitable area for her current and future needs. From an online enquiry, she identified that two-to-three-bedroom houses in Mittagong can be purchased for a price range of $800,000 to $1 million. Her enquiries also revealed that similar homes in Bathurst have a price range of $400,000 to $600,000.
20. In her November affidavit, the plaintiff identified what she claims to be suitable second-hand motor vehicles for her needs, said to cost about $35,000. She indicated that she had been referred to a specialist for cataract surgery, being Dr Crayford. She was due to have a consultation with Dr Crayford on 4 December 2023. She indicated at that stage she understood that she was likely to make a booking for surgery. She stated that she believed that private cataract surgery would cost in the vicinity of $20,000, and that there is no wait time to have the surgery done privately with Dr Crayford. However, to have the surgery done in the public system, she indicated that there may be a wait of about 12 months. She stated that she needed to have the cataract surgery done as soon as possible to improve her quality of life.
21. In her November affidavit, the plaintiff indicates that she is concerned about the ongoing impact of her current accommodation on her health and made an assessment of her current and long-term future needs.

Beneficiaries' circumstances

1. Each of Beth, Stephen and/or Faith have not made any disclosure of their financial position in the proceedings through the defendant's solicitor. The effect of that is addressed in a number of cases. In Papantoniou v Foundouradakis [2023] NSWSC 1374 (Papantoniou v Foundouradakis), I stated as follows (at [124]-[126]): 124. Beneficiaries (who are not making a claim) are entitled to elect not to make disclosure about their financial resources and material needs. A beneficiary may remain silent about such matters, and simply look to the Court to not disregard the deceased's freedom of testamentary disposition and the deceased's preferable disposition to him or her as the sole beneficiary, regardless of his or her financial position or needs: Jodell v Woods [2017] NSWSC 143 at [29]-[30] per Hallen J citing Sammut v Kleemann [2012] NSWSC 1030 (Sammut v Kleemann) at [137]-[140] per Hallen J. 125. Where beneficiaries do not make a disclosure of their financial circumstances, it has been said that the Court proceeds effectively on the basis that such a beneficiary is not contending that their financial circumstances are such as to reduce or limit what might be assessed as proper provision for the applicant: Field v Inglis (Supreme Court (NSW), Young J (as his Honour then was), 8 February 1994, BC9402261, unrep) at 2. 126. However, the effect of s 61(1) of the Succession Act is that the Court cannot disregard the interests of beneficiaries of the estate as such: Page v Page [2017] NSWCA 141; (2017) 16 ASTLR 331 at [68] per Sackville AJA; Underwood v Gaudron [2015] NSWCA 269; (2015) 324 ALR 641 at [35]-[37] per Basten JA (as his Honour then was) (Macfarlan JA and Ward JA - as the President then was - agreeing).

Claim for interim provision

1. A letter from the plaintiff's solicitors to the defendant's solicitors dated 10 November 2023 outlined the plaintiff's "present, real needs" sought to be met prior to the final hearing. In substance, Mr Hammond has referenced that document to frame the plaintiff's claim for interim provision. The amount claimed in that document totalled $107,000. That included an amount sought in relation to accommodation and her living costs which, on the hearing of this application, has not been pressed.
2. The claim otherwise related to amounts of $20,000 for the eye surgery, $35,000 for an appropriate car and for payment of her current costs of $30,000 (according to the letter). Those figures total $85,000.
3. Initially, on the hearing today, Mr Hammond nonetheless pressed a claim for interim provision in the sum, as I understood, of between $110,000 to $130,000. He indicated that the additional amount, apart from matters that I have mentioned, was sought by way of a fund for contingencies.
4. Subsequently, following a discussion as between myself and counsel, Mr Hammond reframed that claim so as to seek a fund for emergencies in a more moderate amount than would (or might likely) be awarded on the final basis for contingencies.
5. In substance, Mr Hammond submits that the claims that have been outlined are immediate needs which ought to be met by an order for interim family provision.

Defendant's response

1. The defendant filed an affidavit from Peter on the notice of motion seemingly challenging the accommodation aspect of the plaintiff's claim. He notes that at a time prior to her August 2023 affidavit, at no point did the plaintiff complain to him about mould in the house in which she lives, nor given any indication of an intention to move out of the Cowra area. Further, he asserts that he is not aware of any relatives living in the Mittagong area and made reference to a lady living at Thirroul.
2. There has been correspondence between the defendant's solicitors and the plaintiff's solicitors regarding payment to the plaintiff of the legacy sum of $10,000. An affidavit of Danielle Bourke (Ms Bourke), a paralegal in the employ of the defendant's solicitors, sworn on 6 December 2023, noted that, at that stage, a reply had not been received in relation to a request for trust account details in order to make the payment of the $10,000 sum.
3. Accordingly, as at 6 December 2023, the defendant's solicitors arranged for a cheque to be sent to the plaintiff's solicitors for the sum of $10,000. Mr Hammond, on the hearing, informed the Court that his instructions are that the cheque has not yet been received.
4. Ms Bourke had made enquiries regarding the cost of cataract surgery and gave some evidence in respect of this. The enquiries that she has made I am not sure necessarily address the plaintiff's position. Nonetheless, she asserts that the cost would be substantially less than $20,000.
5. Ms Bourke also indicates that she made enquiries regarding the cost of cleaning work that might be done to the plaintiff's house in Cowra to, seemingly, address the mould issue (I say "seemingly" because the request for the quotation referenced cleaning a house in Cowra with two bedrooms, a kitchen, a lounge room, a bathroom and a laundry but without apparent specific reference to mould). In any event, she was informed that it would cost $440 calculated on the basis of eight hours work at $55 per hour.
6. In relation to the car claim, the defendant states that the plaintiff's claim for a car is, when one examines it, based on what is effectively a new car. Ms Bourke conducted searches and located details regarding car models for the years 2020 or newer and established that Suzuki and Mazda motor vehicles were advertised for sale at prices between approximately $24,000 and $26,000.
7. Mr Stewart tendered on the hearing of the application a letter from the defendant's solicitor to the plaintiff's solicitors dated 6 December 2023 being an open offer in relation to resolving the application for interim provision. The letter, which became Exhibit D1, provided as follows: … We are instructed to make the following offer to your client in relation to resolving her application for interim provision:- 1. Payment for her house to be cleaned up to a maximum of $1,500.00 payable direct to the cleaners engaged to perform the work upon the provision by them of an invoice. 2. Payment for a second-hand Suzuki Vitara or Mazda CX3 motor vehicle of up to $27,000.00 with payment to be made direct to the Vendor of that vehicle. 3. Payment of up to $10,000.00 for cataract surgery upon provision of a report from Dr. Crayford as to diagnosis, prognosis and costs with payment to be made direct to the treating medical professionals and the hospital; 4. No payment with respect to the Plaintiff's costs of the proceedings because they do not fall within s.62 of the Act; and 5. The costs of the Plaintiff's Motion to be costs in the cause. This offer is an open offer which shall expire at 5.00pm tomorrow. If the matter is not resolved we require the Plaintiff to attend the Interim Provision Hearing for the purpose of cross-examination. …

Statutory provisions and legal principles

1. The Succession Act 2006 (NSW) (Succession Act) contains a specific mechanism for the making of interim provision orders, namely, s 62. Section 62 is as follows: 62 Interim family provision orders and orders restraining distribution of the estate (cf FPA 9 (5) and (6)) (1) The Court may make an interim family provision order before it has fully considered an application for a family provision order if it is of the opinion that no less provision than that proposed in the interim order would be made in favour of the eligible person concerned in the final order. (2) After making an interim family provision order, the Court must proceed to finally determine the application for a family provision order by confirming, revoking or varying the interim order. (3) The Court may make an order restraining the final or partial distribution of an estate (other than a distribution under section 94 (1) of this Act or section 92A of the Probate and Administration Act 1898) pending its determination of an application for a family provision order.
2. The legal principles regarding claims for interim provision have been addressed in what one might think is a surprisingly small amount of cases published on New South Wales Caselaw.
3. I suspect the reason for that lies in the legislative history of interim provision and how the provisions have been construed.
4. Court of Appeal authority in relation to the construction of the Succession Act generally emphasises that statutory provisions should be applied according to their terms (see also, in relation in statutory provisions generally, Ritossa v Ritossa [2023] NSWCA 14 at [40]-[41] per Bell CJ) and that guidelines expressed in the determination of claims by eligible applicants cannot be elevated to inflexible rules and are subject always to the consideration of the particular circumstances of each case: e.g. Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [37] per White JA.
5. Under the Family Provision Act 1982 (NSW) (Family Provision Act), the legislation included provision for an interim family provision order in s 9(5).
6. Prior to the enactment of the Family Provision Act, there was seemingly some doubt as to whether an interim order could be made under what was then known as a Testator's Family Maintenance application for a family provision order: see the commentary of Young J (as his Honour then was) in Young v Salkeld (1985) 4 NSWLR 375 (Young v Salkeld) at 377.
7. Young v Salkeld was likely the first case dealing with the new interim order provisions of the Family Provision Act.
8. Section 9(5) provided as follows: (5) Subject to the foregoing provisions of this section, the Court may make an interim order for provision under section 7 in favour of an eligible person before it has fully considered the application for that provision where it is of the opinion that no less provision than that proposed to be made by the interim order would be made in favour of the eligible person after full consideration of the application.
9. The decision, which was seminal at the time it was reported, was one in which Young J, in his usual thoroughness, addressed in detail the proper approach to be taken to the making of an interim order.
10. Importantly, his Honour formed the view, based on the nature of the assessment the section called the Court to make, that the duty of the Court is to examine the evidentiary material placed before it, and to assess on that material the probable outcome of the proceedings: at 380-381.
11. His Honour posed the sensible practical question as to whether the Court was limited to only making an order such as would give the eligible person sufficient moneys to live on pending the hearing of the application or whether, if the Court considered it proper, it could go further.
12. Whilst Young J indicated that he could not see any warrant for restricting the Court's power to make any interim order that it considered it proper to make, his Honour made a number of observations regarding practically how family provision interim applications might be considered (at 381-382): If there was, for instance, an estate of 5 million dollars, no claimants except the widow who had been married to the deceased for fifty years and in a fit of pique a week before his death, the testator had left all his money to the Home for Homeless Dingoes, but it would take some time for the full details of the worth of the estate to be put before the Court, and the widow indicated that she would like to have an overseas trip, I have little doubt at all that it would be a proper order for this Court to make to give her a legacy of say $20,000 to go overseas in style, notwithstanding that it could hardly be said that such a trip was a necessity. However, in the normal case, although the Court has jurisdiction to make a wider order, it would seem to me that the proper order would be to give the eligible person only such a sum as would deal with real needs pending the hearing and then usually only on terms that the moneys could be recovered if the applicant were unsuccessful. Again, this flavour is given by the provisions of s 9(6) which require the Court on its final hearing to "confirm, revoke or alter" the interim order. I do not say that the Court could not make an order for a penniless eligible person that she receive either a legacy or a weekly sum for living expenses knowing that all these moneys would be dissipated by the time of the hearing. Indeed, I would consider that would be a perfectly proper order. However, generally speaking, if there is the means of protecting the estate by securing the order in some way, then the interim order might be framed accordingly. For instance, if an eligible applicant has property but needs cash, then the appropriate order may be to give a legacy but at the estate's expense to charge that legacy on the applicant's property, so that if on the final hearing it is held that there is no jurisdiction or the Court was wrong in its opinion as to the quantum of the order, the interim order can be revoked and the moneys recovered.
13. From my experience, anecdotally over the last almost four decades, plaintiffs have been somewhat reluctant to apply for interim provision orders because of the practical and forensic difficulties faced in persuading a judge that the items claimed by way of interim provision would, in the amount of any order, be assessed as being "no less" than the amount of any order that may be obtained on a final hearing.
14. I note that there have been a number of cases which have dealt with the provision under s 62.
15. In Roberts v Moses [2015] NSWSC 1504, Kunc J dealt with an application for an interim family provision order which sought a lump sum of $30,000 for legal costs and a weekly payment of $8,000 until the hearing.
16. On the facts of that particular case, his Honour concluded that the Court should not make an order for interim provision under s 62.
17. A critical part of Kunc J's reasoning was that his Honour did not think that in the circumstances of the case the Court could order anything more than the lump sum as it did not know when the matter could be finally determined and ordering a weekly payment as requested made it difficult, if not impossible, for the Court to form the opinion required by s 62: at [51].
18. In that case, his Honour considered an alternative way of providing for the plaintiff under the provisions of s 92A Probate and Administration Act 1898 (NSW) (PAA). That is a provision which allows personal representatives in certain circumstances to make maintenance distributions. However, whilst the circumstances of the plaintiff in that case enabled the provisions of s 92A to be enlivened, it is not clear that the plaintiff in the present case would easily be able to seek an order under s 92A PAA.
19. In Bryan v Beveridge [2021] NSWSC 1406, Slattery J, in a very large estate, (worth $8 to $12 million with property to the value of about $50 million, some of which was held by the second defendant, a corporate trustee of a discretionary trust controlled by the first defendant widow, potentially available for designation as notional estate) made an order for interim provision for a child of the deceased to be paid by instalments.
20. In Moore v McLean [2022] NSWSC 978 (Moore v McLean), Hallen J dealt with a claim for interim provision. His Honour set out in summary the applicable legal principles (with his Honour's usual thoroughness) at [77]-[84]: 77. Section 62 of the Act relevantly provides: (1) The Court may make an interim family provision order before it has fully considered an application for a family provision order if it is of the opinion that no less provision than that proposed in the interim order would be made in favour of the eligible person concerned in the final order. (2) After making an interim family provision order, the Court must proceed to finally determine the application for a family provision order by confirming, revoking or varying the interim order. 78. The principles relating to an application for an interim family provision order were not the subject of debate. One aspect, significantly, was not raised at all. The authorities to which reference has been made do not, and the parties at the hearing did not, address the possible meanings of "opinion" in s 62. 79. By way of example, does "opinion" mean: (a) the formation of a final view on the matter; (b) the formation of a provisional view on the matter; (c) a firm view, on the evidence, at the time the opinion is formed; (d) a reasonable suspicion that a state of affairs would exist; or (e) something else? See: Musumeci v Attorney General of NSW (2003) 57 NSWLR 193; [2003] NSWCA 77 at [96] (Young CJ in Eq). 80. There is no definition of "opinion" in the Act. In its ordinary meaning, an "opinion" is "… a belief, or judgment, which seems likely to be true, but which is not based on proof …": see, Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers, referred to in Re BLBS and Minister for Foreign Affairs and Trade (2012) 129 ALD 380; [2012] AATA 464 at [105] (Deputy President S A Forgie). 81. The Oxford English Dictionary lists a number of meanings for "opinion" which include "a view held about a particular issue"; "a judgment formed, or a conclusion reached". 82. In the Act, the power to make an order for interim provision is expressed to depend on an "opinion", which has been set as one of the pre-conditions for the exercise of the Court's power to make an order. In my view, to operate, the Court must reach a subjective view, an opinion, informed by the untested evidence referred to on the application, which opinion is reasonable, and factually sustainable, and not taking into account irrelevant considerations, to support the conclusion that no less provision than that proposed in the interim order would be made in favour of the eligible person concerned in the final order. The use of the word "opinion" in this section, perhaps, connotes a less strict level of assessment by the Court and a more broad-brush approach. Whether that is so or not, of necessity, the exercise on the application, is likely to be somewhat imprecise. It will usually be impossible for the court to be able to make findings of fact on issues in dispute sufficient, for example, to deal with conduct or allegations such as those made in the present case. 83. I next extract some general principles, relying upon Young v Salkeld (1985) 4 NSWLR 375 (dealing with s 9(5) and s 9(6) of the Family Provision Act 1982 (NSW)), and the cases under s 62 of the Act, including Roberts v Moses [2015] NSWSC 1504; Steiner v Strang; Bryan v Beveridge [2021] NSWSC 1406 and Le v Angius [2022] NSWSC 240, and otherwise on my reading of the section. 84. The general principles, in my view, are: (a) The onus of proof is upon the applicant to establish that an interim order should be made. (b) For an interim order to be made, the applicant must establish that he, or she, is an eligible person, not a person who "may be" an eligible person. That is a finding of fact to be made on all the evidence in the context of the application as a whole. (Although not relevant in the present case, if eligibility were in issue, making an order for interim provision might place a Defendant, who disputes eligibility, at a considerable disadvantage at a final hearing as a finding of eligibility on the application would be based upon untested evidence.) (c) It is not enough for the applicant to show that his, or her, case, at a final hearing, is arguable. The Court must consider the evidence that has been read, even though, on the application, it cannot make findings of fact in order to form the opinion. (d) Where, as here, the applicant relies only upon s 62 of the Act, the juridical bases for an order are not diverse and the source of jurisdiction to make such an order is not uncertain. The necessary precondition to the making of an interim order is the formation of the opinion, reached on the balance of probabilities, after the untested evidence is fully considered, that no less provision than that proposed in the interim order would be made in favour of the Plaintiff at the final hearing. In other words, it is not enough that the Court is of the opinion, on the balance of probabilities, that the applicant will obtain a family provision order at the final hearing. The Court must also be of the opinion that the final family provision order will be no less than the interim family provision order. (e) In relation to a final family provision order, s 59 of the Act requires the Court to make such order for provision out of the estate of the deceased as the Court thinks ought to be made for his, or her, maintenance, education, or advancement in life, having regard to the facts known to the Court at the time the order is made. Thus, in determining the application for an interim order, the Court must assess the evidence, and form the opinion, that the Plaintiff will receive no less provision than that proposed in the interim order, notionally at the time the final order is likely to be made (which to all intents and purposes is at the final hearing). In forming its opinion, the Court must assess what the Plaintiff's, and what the estate's, circumstances, are likely to be, at that time. However, the Act does not attempt, and the Court has not attempted, to proscribe the relevant matters to be taken into account in forming the opinion. (f) Whilst there is power given to the Court to make an interim order, whether to grant that relief is discretionary. The Court must consider whether it is appropriate to exercise the discretion to make an order even if the preconditions in the section are satisfied. (g) The use of the word "may" before "make an interim order" demonstrates that the Court's power is permissive, rather than compulsive. The power may be used, or not, at the Court's discretion: s 9(1) Interpretation Act 1987 (NSW). That this is so, is not contradicted by any contrary intention appearing in the Act: s 5(2) of the Interpretation Act. (h) The statutory intention in relation to the making of a family provision order under s 59 is not that a power to do so must be exercised, even if an applicant can establish that adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased. Similarly, the existence of the state of affairs identified in s 62 enlivens the discretion but does not dictate the outcome of its exercise, other than by reference to "no less provision than that proposed in the interim order would be made in favour of the eligible person concerned in the final order". (i) The discretion given to the Court is fairly wide, but it is not unlimited: Guerreiro v Guerreiro (Supreme Court (NSW), Young J, 7 February 1990 unrep). The discretion should be exercised judicially, that is to say, fairly and reasonably, having regard to the subject matter, scope and purpose of the Act, and in the interests of justice. (j) Yet, the Court is not required to determine the precise order for provision that the Plaintiff may receive at the final hearing. That determination would, in any event, be impossible because the evidence is untested and may be incomplete. The Court need only form the opinion that the Plaintiff will receive no less provision, by way of final order, than that proposed in the interim order. Only then will it be necessary to decide whether to exercise its discretion. (k) A relevant consideration in exercising the Court's discretion is whether any lump sum paid by way of interim provision order would be able to be repaid by the Plaintiff in the event that the interim order is revoked. The basis for such a consideration is s 62(2) of the Act which includes a reference to the Court "revoking" the interim order. The answer to that question may depend upon whether the Plaintiff receives any provision in the deceased's Will or under the operation of the rules of intestacy. If he, or she does, and if the interim provision that is sought is less than the provision made, that the estate is not at risk is a factor that may warrant the exercise of discretion. (l) There may be cases where the Court will make an interim order for an impecunious applicant, even though he, or she, could not repay it if the substantive case failed: Young v Salkeld at 381, Guerreiro v Guerreiro at 1. (m) An order under s 62, whilst an order for interim provision, is an order for provision for the purposes of the Act and it takes (interim) effect as a deemed codicil to the will: s 72 of the Act.
21. Ultimately, for reasons particular to that case, his Honour concluded that if the plaintiff was successful in a claim for certain declaratory relief for the imposition of a constructive trust and an alternative claim, he would be unable to form the opinion that no less provision than that proposed in the interim order would be made in the plaintiff's favour: at [86]-[87]. Despite the quantum of interim provision sought being small, his Honour, being unable to form the requisite opinion, dismissed the claim for interim provision.
22. Often, there are many family provision cases in which an applicant has meagre financial resources and seeks some form of interim provision to meet the exigencies of the applicant's position whether it be to fund matters relating to the applicant's accommodation, health or some immediate emergency need.
23. The Court gives encouragement to parties to explore whether a sensible interim arrangement is able to be met on appropriate terms out of the estate. In some circumstances, the applicant is able to source funding either from friends, relatives or a governmental agency or, occasionally, seek release of funds from superannuation. However, there are not a minimal number of cases in which there is resistance to an applicant's request for interim provision (whether justified or not) from the executors or administrators of an estate.
24. The Court expects in family provision claims that the resources of an estate and of the Court will not be used in a manner that is out of proportion to the size of the estate or any provision that may be made: Practice Note SC EQ 07 - Succession & Probate Lists (Practice Note) at [5]. The nature and purpose of family provision litigation, the overriding purpose of the Civil Procedure Act 2005 (NSW) (CPA) (s 56(1)), the dictates of justice (s 58 CPA) and practitioners' and parties' obligations to the Court (s 56(3), (4) CPA), are all directed to facilitating the just, quick and cheap resolution of the real issues in dispute in family provision proceedings. The case management procedures to be applied in the List are streamlined and directed to that very end: Practice Note at [4].
25. Hallen J, in Moore v McLean, observed that: (a) it is not enough for the applicant to show that his, or her, case, at a final hearing, is arguable, but that the Court must consider the evidence that has been read, even though, on the application, it cannot make findings of fact in order to form the opinion (Moore v McLean at [84(c)]); and (b) it is not enough that the Court is of the opinion, on the balance of probabilities, that the applicant will obtain a family provision order at the final hearing, rather, the Court must also be of the opinion that the final family provision order will be no less than the interim family provision order: Moore v McLean at [84(d)].
26. The threshold for enlivening the jurisdiction to obtain interim relief in law is purposively informed and context specific. Comparison of different interim relief thresholds thus needs to be undertaken with care. For example, there are clear differences between seeking injunctive relief (whether prohibitive or mandatory) and a positive interim order for provision.
27. In estate law, the claim of any beneficiary or applicant for provision on an estate is somewhat tenuous prior to the administration of the estate. The whole of the property of the testator is held by the executor or administrator (for convenience I will refer to both as "administrator"), for the purpose of carrying out the functions and duties of administration.
28. A beneficiary is not recognised in equity as having a beneficial interest in any particular asset in the hands of the administrator during the course of the administration. Rather, the beneficiary has a right to due administration of the assets in accordance with the duties of the administrator: e.g. Barns v Barns (2003) 214 CLR 169; [2003] HCA 9 at [50] per Gummow and Hayne JJ citing Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694 at 707 per Lord Radcliffe for the Board; Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; [1990] HCA 45 at 312-313 per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ.
29. Similarly, the right of an eligible person to seek determination by the Court of his or her application for a family provision order, which is based on statutory provisions, does not give rise to any interest in property (if at all) until such time as an positive order is made under the Succession Act conferring such an interest: e.g. Quek v Beggs (1990) 5 BPR 11,761 at 11,781 per McLelland J (as his Honour then was); Porte v Couso (Supreme Court (NSW), McLelland J, 16 March 1992, BC9202004, unrep) at 2; Cetojevic v Cetojevic [2006] NSWSC 431 at [55] per Campbell J (as his Honour then was) (all cases observing that a family provision applicant has no caveatable interest in property forming part of the estate).
30. Assessing the likely outcome of family provision claims even just prior to the start of a final hearing is difficult. It is well-known in the succession law field that predictability of the outcomes of family provision claims is not quantifiable by the parties' legal advisers prior to judgment with anything like the degree of certainty that applies in other areas of civil law: Re Sherborne Estate (No 2): Vanvalen v Neaves; Gilroy v Neaves (2005) 65 NSWLR 268; [2005] NSWSC 1003 at [56]-[58] per Palmer J.
31. a fortiori, the task of a judge hearing a claim for interim provision well in advance of the final hearing and sometimes even before a final hearing is allocated, in attempting to form an opinion about the likely outcome of a family provision application at final hearing, is at least as difficult, if not more so.
32. Bearing in mind the particular purposes of estate law litigation and unique aspects and difficulties which attend the evaluative task of assessing family provision claims, the framing of the test for granting an interim family provision order by reference to firm assessment of final outcomes seems both a challenging and cumbersome threshold.
33. This matter has been heard in a context in which the plaintiff has sought relief for pressing needs and, accordingly, I have attempted to deal with the matter expeditiously prior to the end of the Court term and the advent of Christmas.
34. The Court has been assisted by submissions by capable counsel. Nonetheless, the pressing circumstances of the claim being dealt with at the end of a busy List are such that there is not a large amount of time to debate matters that would otherwise be explored.
35. Thus, in those circumstances, whether the line of authority that I have referred to and the principles set out involve a correct assessment of the proper construction of the statutory provisions on interim provision is something on which I will reserve my opinion. That is not because I necessarily doubt the comments and analyses that have been made in those cases but, rather, the expeditious hearing has not allowed time for review of that caselaw to occur.
36. However, if, as I suspect, it be the case that in practice legitimate claims for interim provision are stymied to some degree because the operation of the legislative threshold (properly construed) for enlivening an order for interim provision is challenging or at least cumbersome, and at times insurmountable, then it may be that there ought to be consideration given to a review of the approach taken to addressing such claims and potential statutory reform.
37. Potential statutory reform might include varying the threshold test required for interim provision or extending the terms of the operation of s 92A PAA. In any event, reform, if any, should be consistent with facilitating the just, quick and cheap resolution of genuine requests for interim provision by needy family provision applicants.

Determination

1. Whilst Mr Stewart has observed that the plaintiff was due to see Dr Crayford on 4 December and nothing further regarding that has been proffered on the hearing, I am prepared to proceed on the basis that, as the plaintiff says, she expects that the cataract surgery, if done as soon as possible, will improve and advance her quality of life.
2. There is some contention, on the evidence, as to an appropriate amount for the cost of that surgery. Mr Stewart contended that the more appropriate figure, if allowed, would be in the order of $10,000 and the plaintiff has claimed a sum of $20,000.
3. In relation to the provision sought for the car, as noted, the plaintiff provided evidence indicating a suitable amount would be $35,000. The defendant's evidence is more moderate, suggesting an amount in the order of $24,000 to $26,000 is appropriate.
4. Part of the plaintiff's evidence in relation to her car is that it is unreliable and that there are costs existing for repair of the windscreen. Further, she indicated that the car would not pass an inspection for registration without that being replaced. She indicates that she cannot drive the car at speeds greater than 80 kilometres per hour because it feels unsafe for her to do so. Some provision for a safe car as a more pressing need presents as being reasonable.
5. In relation to the claim for costs, Mr Stewart, in his careful submissions, submitted that it is not obvious that provision for costs may be appropriately awarded as interim provision.
6. It seems to me that, conceptually, if it was established that there is a debt for legal costs currently due and payable, and evidence that the solicitor is pressing for payment, provision could be made in respect of that.
7. As matters presently stand, there is no specific indication as to expressly when the invoice that has been rendered (and in evidence as Exhibit P1) is payable. Further, it is not entirely clear to me that the invoice has been rendered in a context in which there was agreement for it to be rendered within the terms of cl 4 of the standard costs disclosure aspart of the standard costs agreement.
8. As ultimately refined, Mr Hammond, as I have indicated, drew back from the claim for a fund for contingencies and framed it as being provision of a fund for emergencies in a more moderate amount that might be thought to be awarded eventually on any final hearing.
9. In Papantoniou v Foundouradakis, I set out, in some detail, principles regarding the making of a family provision order and a component for contingencies: at [234]-[262].
10. Now is not the occasion to further address aspects of claims for contingencies or the extent to which a fund for emergencies may be properly claimable on an application for an interim family provision order.
11. Nonetheless, it seems to me that, at least conceptually, the legislation should not be read to exclude such a claim.
12. There is, as far as I can tell, nothing about the plaintiff's conduct in relation to the deceased that has been put forward by the defendant that would be said to be a matter to preclude an order for provision ultimately being made on a final hearing.
13. Mr Hammond, in referencing the comments of Hallen J in Moore v McLean, submitted that the Court need not enter into a kind of accounting exercise in relation to the plaintiff's anticipated itemised expenditure and should take a more broad-brush approach.
14. Overall, I am persuaded, within the terms of s 62(1), that I am able to form the opinion that no less provision than a sum of $70,000 as an interim order would be made in favour of the plaintiff in a final order for provision. To be clear, that is an amount which is separate from the sum of $10,000 that has been paid to the plaintiff, as is her entitlement as a legacy.

Conclusion

1. In the circumstances, I order that, separately from the sum of $10,000 that has been paid to the plaintiff, the plaintiff receive an amount of interim family provision order in the sum of $70,000.

Costs

1. Following discussion with counsel regarding an appropriate costs order, Mr Stewart submitted that costs should be costs in the cause. Mr Hammond did not seek to oppose that, and, in the circumstances, I consider it is proper to make that order.
2. The orders of the Court are as follows: 1. Order that, separately from the $10,000 already paid to the plaintiff, the plaintiff is to receive a sum of $70,000 by way of interim family provision order. 2. Direct that the interim sum of $70,000 be paid on or before 4pm on 15 December 2023. 3. Order that costs of the application be costs in the cause.

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: 12 December 2023