Chapman v Ingold; Estate of the Late Eleanor Merle Ingold

Supreme Court of NSW|2015-08-17|Before: Hallen J, Mahoney JA

Introduction

HIS HONOUR: This is a claim made by Shirley Ann Chapman and by Valerie June Mawdsley, now, only for a family provision order under Part 3.2 of the Succession Act 2006 (NSW) ("the Act") out of the estate of their mother, Eleanor Merle Ingold ("the deceased"). A family provision order is an order made by the court in relation to the estate, or notional estate, of a deceased person, to provide from that estate, or notional estate, for the maintenance, education, or advancement in life of an eligible person. (In this case, there is no estate which is sought to be designated as notional estate.)

Formal Matters

The following facts are uncontroversial and provide a useful background.
The deceased died on 14 June 2014. She was then aged 87 years, having been born in March 1927.
The deceased was married to George Albert Ingold. He predeceased the deceased, having died in August 2011. There were four children of their marriage, namely Valerie, who was born in November 1956, Shirley, who was born in November 1946, Fay Lorraine Ward, who died in August 2013, and Joy (whose date of birth is not revealed by the evidence that was read in the proceedings).
Robert is a child of Fay. He was born in July 1967.
The deceased left a duly executed Will that she made on 16 January 2010, which, relevantly, provided: "2. I appoint my grandson, who I have always treated as my son, Robert George Ingold, as executor and trustee of my will and failing him I appoint my daughter-in-law, Fiona Mary Spry-Ingold, as executor and trustee of my will… 3. I give devise and bequeath the whole of my estate of whatsoever nature and wheresoever situate to Robert George Ingold absolutely provided always that if he shall die in my lifetime leaving a child or children living at my death then such child or children attaining the age of 21 years shall take by substitution and if more than one as tenants in common equally the share in my estate which he would otherwise have taken and further provided that in the event of no child or children attaining a vested interest under the preceding trusts then I declare that my Trustee shall hold my estate for my 4 daughters who survive me if any predecease me their share to their children who survive me."
At the commencement of the hearing, the parties agreed that the gross distributable estate, at the date of the hearing, was estimated to be $205,090. The estate was said to consist of an undivided one‑half share of real estate at Lake Illawarra ("the Lake Illawarra Property") ($185,000), cash in bank ($9,235), jewellery and personal effects ($580), cash on hand and rent received ($10,075), and furniture ($200). The only disclosed liability was one half of outstanding council rates ($429): T2.23-T2.33.
The registered proprietor of the other half of the Lake Illawarra Property is Robert.
The funeral expenses ($6,237), a probate filing fee ($685) and some costs associated with ascertaining the property of the deceased ($706) have already been paid from the estate.
However, in calculating the value of the estate of the deceased that is available, finally, for distribution, the costs of the present proceedings should also be considered, albeit with circumspection, since the Plaintiffs, if successful, normally, would be entitled to an order that their costs and disbursements, calculated on the ordinary basis, be paid out of the estate, whilst the executor, irrespective of the outcome of the proceedings, normally, will be entitled to an order that his costs, calculated on the indemnity basis, be paid out of the estate of the deceased. (In stating this, I do not forget that "the Court is required to adopt practices and procedures which seek to resolve the issues between the parties in such a way that the cost is proportionate to the importance and complexity of the subject matter in dispute" or that "[t]he Court also has power to specify a gross sum instead of assessed costs when making a costs order": Neale v Neale [2015] NSWCA 206, per Basten JA (with whom Macfarlan and Gleeson JJA agreed), at [38].)
Ms K M Austin, the Plaintiff's solicitor, estimated the Plaintiffs' costs and disbursements, and solicitor's and counsel's fees, calculated on the ordinary basis, to be $24,000, inclusive of GST, and upon the basis of a 1 day hearing (T3.13-T3.32).
Mr P F Mansfield, the Defendant's solicitor, estimated the Defendant's costs and disbursements, and solicitor's and counsel's fees, inclusive of GST, calculated on the indemnity basis and on the basis of a 1 day hearing, to be $29,000.
It can be seen that if the estimates of costs ultimately proved accurate, and if all of those costs were ordered to be paid out of the estate, the net estate available to meet the provision to be made for the Plaintiffs, is about $152,090. The size of the estate, even if not deducting the costs of the proceedings, is very small.
Counsel for the Defendant, initially, submitted that, if an order is made in favour of one Plaintiff, or both Plaintiffs, the Lake Illawarra Property would not have to be sold as Robert would borrow money to satisfy any order of the Court (T3.44-T3.49). He then conceded that it would "depend on the size of the decision" and the Lake Illawarra Property would need to be sold if the provision made to one or both Plaintiffs was "substantial" (T4.06-T4.19). The parties agreed that if the property were to be sold, an order should be made based upon a percentage of one half of the net proceeds of sale.
The Plaintiffs identified Robert as the only other person who is, or who may be, an eligible person. As he is a party to the proceedings, a prescribed form of notice did not need to be served upon him. However, as he is the sole beneficiary named in the deceased's Will, the court is not entitled to disregard his interests: s 61 of the Act.

Background Facts

The following narrative represents the Court's findings in relation to certain background facts which have been established.
On 16 January 2010, the deceased and her husband, George, executed mirror wills, devising the whole of her, and his, estate, respectively, to Robert absolutely. On the same day, the deceased and George severed their joint tenancy of the Lake Illawarra Property by transferring it to themselves as tenants in common in equal shares. The Transfer, a copy of which is in evidence, appears to have been signed by the deceased and by George.
On 25 November 2011, following George's death on 22 August 2011, Robert, as the sole beneficiary of George's estate, made a transmission application to be registered as the registered proprietor of George's one half interest in the Lake Illawarra Property. At the date of the deceased's death, he was so registered.
On 22 November 2012, Robert and the deceased, as "Borrowers" and "Mortgagors", entered into a Home Loan Contract, with IMB Ltd, as creditor, for the amount of $109,631. The debt was secured by mortgage registered over the whole of the Lake Illawarra Property on 29 November 2012. However, Robert stated that the mortgage was only applied to his half share in the property (T63.21-T63.23). The Mortgage, a copy of which is in evidence, appears to have been signed by the deceased and by Robert.
The purposes of the loan were identified as "for home improvements", "motor vehicle expenses" and "debt consolidation". The document also provides: "The balance of the advance is to be disbursed as follows: Personal loan debt consolidation - $16,631.31 to MEMBER'S ACCOUNT Home Improvements - $25,000.00 to MEMBER'S ACCOUNT Motor Vehicle Expenses - $68,000.00 to MAUREEN RHODES"
Robert accepts that he is solely responsible for repayment of the remaining debt secured by the mortgage and that no part of this liability is payable out of the deceased's estate. He accepts also, that the money borrowed was not for the benefit of the deceased but was to benefit him: T63.20-T63.21. (For this reason, I have not deducted any part of the amount secured by mortgage from the value of the deceased's estate.)

The Witnesses

Each of Shirley and Valerie gave evidence in the proceedings and was cross-examined. Their evidence relating to the number of times that each visited the deceased in hospital and in the nursing home, was unclear, and at times, contradictory.
Shirley admitted in cross-examination that whilst she had stated in her affidavit that she would "regularly" visit her parents at the family home, and then after January 2010, at the nursing home, she had, in fact, only visited the deceased in the nursing home twice after the death of George, whilst the deceased was a resident there. Each occasion was in early 2013 (T21.23-T22.09).
In answer to some questions from the Bench, Shirley stated that she had not visited the deceased in the nursing home between 2009 and 2010 (before the death of George) (T31.30-T31.35). She then said that she visited the deceased three times at the nursing home following George's death and once in the hospital: T31.50-T32.10.
Shirley accepted that she did not see the deceased between January (or perhaps March) 2013 and late May 2014 when she visited the deceased in hospital: T23.48-T24.05. She had last seen the deceased 4 days before she died (T30.46-T30.47).
There was to be another occasion when the four children of the deceased were to visit to discuss the deceased's Will, and to discuss a change to the Power of Attorney, but this visit was cancelled as it was reported the deceased was upset.
A document titled "Progress Notes", dated 8 January 2013 "11:55 hrs", created by a staff member from the Mayflower Retirement Village, states: "Resident stated she was very unhappy and appeared visibly upset when staff attended to her. She informed staff that her daughters wanted to move her from here to another facility (Worrigal Care). Resident was adamant that she did not want to leave the Mayflower as she liked her fellow residents and staff. Staff offered assurance that they and management would advocate for her and ensure that her wishes are respected. Resident's daughter cancelled visit."
The document further provides, by reference to the time "17:26 hrs": "Mrs Ingold visibly upset and nauseous asked to see me due to being upset by daughters (all four) proposed to visit this am. Mrs Ingold asked me to tell Joy and Faye not to come and that she did not want to see them as they were trying to intimidate her into changing her solicitor and changing the POA from Robert (Grandson) to them. I contacted Joy and asked that they not come today as I was concerned for Mrs Ingold's wellbeing. Joy and someone in the background became verbally abusive and told me in no uncertain terms that they were wiping their hands of their mother that they wanted no further contact with her, and if Robert ever left her in the lurch they did not want to know about it. Early pm Mrs Ingold's youngest daughter Valerie and her husband Richard came to see if they could visit. Mrs Ingold stated she would like to see Valerie and her husband but only if I could stay with her during the visit. I explained to Valerie and her husband that I only had Mrs Ingold's interest at heart and was not going to discuss family issues with them and they would only upset Mrs Ingold further if they discussed other family members. Valerie asked her mother was she happy here and Mrs Ingold replied 'very happy'. Valerie asked her mother if she wanted Shirley her eldest daughter to visit to which Mrs Ingold replied yes. I explained that as Robert was POA and listed Mrs Ingold's next of kin he was our first point of contact. I exchanged details and I assured Valerie that if Mrs Ingold asked to contact her that I would."
Valerie also gave evidence that after George's death, she had visited the deceased, on average, at least once a month and then, in the period closer to the deceased's death, at least once a week. In the two weeks before her death, she saw the deceased daily and spent the whole day with her on the day before she died (T43.27-T43.32).
Valerie admitted in cross-examination that in late December 2013, she had obtained a title search of the Lake Illawarra Property and had found that Robert was named on the title (T41.42-T41.44). She denied that she had "confronted" the deceased about that, but simply that the topic "came up in conversation" (T41.46-T41.47). I found this evidence difficult to accept bearing in mind other evidence in the proceedings.
Robert was cross-examined also. He was taken to an assertion in Joy's affidavit (otherwise not read) that the deceased had told Joy that she was afraid of Robert. He denied that he was present during such a conversation; denied that the conversation had been reported to him; or that he had ever given the deceased any reason to be afraid of him (T57.33-T58.19).
In cross-examination, it was put to Robert that he had arranged for Mr Mansfield, the solicitor who had prepared George's, and the deceased's, Wills, to do so. Robert responded that the solicitor had been contacted as a result of the discussion between George and Arthur Ingold (George's brother). Mr Mansfield had been a family friend of the Ingolds, in Ulladulla, for many years, and Robert had only been made aware of him by George.
Robert accepted that he had spoken to Mr Mansfield in 2009, but said that he had only done so at the request of George, in order to arrange for Mr Mansfield to speak to George and the deceased about the preparation of an Enduring Power of Attorney and Appointment of Enduring Guardian (T60.16-T60.41).
Robert was asked whether he had "influenced" the deceased and George in relation to changing their Wills. He denied that he had done so, stating that the last Will of the deceased had been prepared in his absence, and that he "was simply a conduit to bring about the advice and information that they required to get it done": T63.01-T63.02. I accept his evidence as it is clear that the deceased did not need to be influenced to make provision for Robert.
Sue Bardon had known the deceased for 56 years. Her family had lived next door to the deceased for the entire time that Sue had resided there. From when she moved out of home at age 22, she visited her parents several times per week and would chat to the deceased whenever she saw her. Since 1982, she had lived in the same suburb as the deceased. She had also worked at the Mayflower Retirement Village from 1990 to October 2010. She visited the deceased and her husband when they were admitted to Kiama Hospital in 2009.
Sue accepted that the deceased did not speak badly of her children to her but the deceased did raise concerns that they did not visit her often enough. Before 2005, Sue said that she would see Valerie about twice a year at the Lake Illawarra Property. From 2005 she noticed, and was told by the deceased, that Valerie did not visit regularly. She had never seen Valerie at the nursing home whilst she was working there (for about 11 months after the deceased was admitted).
Sue had worked the night shift at the nursing home, which may explain why she never saw Valerie visit. However, in the last few months before the deceased died, the deceased told Sue that the visits by Valerie had increased.
Before 2005, Sue would often see Shirley at the Lake Illawarra Property. From 2005, Sue noticed, and the deceased told her, that Shirley and her children did not visit regularly and that the deceased was disappointed by them not visiting.
Sue gave evidence that the deceased would appear upset after a visit from one, or other, of her daughters. She based this evidence on what the deceased had told her. In this regard, the deceased did not identify Valerie as a daughter who had caused her to be upset, but had identified Shirley as such a daughter: T48.27-T48.50.
Kim Boersma was the deceased's niece and she had known the deceased for the duration of her life (54 years). She described herself as being "very close" to the deceased. She assisted the deceased in 2005 after her husband was recovering from an operation. During this time, Kim visited every day and only saw their daughters at the hospital on one occasion. Kim had less contact with the deceased from 2009, following the deceased's move to the Mayflower Retirement Village. She visited the deceased at Shellharbour Hospital on several occasions after 2009.
During these visits, they spoke about the deceased's relationship with her daughters. The deceased said to Kim that she never saw Valerie, or her other daughters, and that she was scared of Shirley and the others. On one particular occasion, Kim took the deceased to see her doctor and overheard the deceased telling the doctor "my girls are evil a [sic] wicked, they have been terrible for years". The deceased cried throughout the meeting. There is no specific evidence about what caused the deceased to express this view.
Before 2005, Kim did not see Valerie or Shirley at the Lake Illawarra Property and she cannot recall the deceased saying that Valerie visited much. From the time the deceased moved to Mayflower Retirement Village, Kim was not aware of Shirley visiting much at all.
Mr Mansfield, solicitor for the deceased and George, and for Robert in these proceedings, annexed to his affidavit of 13 July 2015 several file notes transcribed between September 2010 and about November 2012. He was cross-examined.
The diary notes that were produced supported Robert's evidence that Mr Mansfield had significant contact with George and with the deceased. He attended on them at various times and had taken instructions directly from them. In fact, one file note confirms that Mr Mansfield had expressly told Robert that he "would rather see them alone for instructions".
The file notes also reveal some conversations with Robert, but these appear to be conversations conveying instructions, rather than Robert giving instructions, to Mr Mansfield directly. (The circumstances surrounding the granting of the mortgage falls into a different category, but since Robert accepts that he is to be solely responsible for the repayment of the loan secured by the mortgage, it is unnecessary to address the file note further.)
There was also an affidavit of Dr V Turnbull read. He was not cross-examined. I shall refer to his evidence later in these reasons when setting out matters regarding Robert.

The Statutory Scheme - The Act

Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although on many occasions, I have collected the principles generally applicable, in view of the importance of this case to the parties, and despite the admonition of Basten JA in Underwood v Gaudron [2015] NSWCA 269, at [11], that "the recitation of statements of principle from other cases, at a level of abstraction from the circumstances of the particular case" is not warranted, I shall repeat the principles that I consider relevant to this case.
In dealing with family provision matters, at trial, it is important that the parties are provided with an outline of the principles that are being considered relating to the issues raised by their legal representatives; that they are able to follow the reasoning of the trial judge, and be satisfied that the court has considered the evidence and the submissions made by counsel.
The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008 (NSW). A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers, upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, Will. It is only if the statutory conditions are satisfied that the court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate (or the disposition on intestacy), to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary. Thus, the Act subjects freedom of testamentary disposition to discretionary curial intervention in certain classes of case.
The key provision is s 59 of the Act. The court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, it is a multi-category based eligibility system. Relevantly, in this case, the Plaintiffs rely upon the category of eligibility referred to in s 57(1)(c) of the Act. There is no dispute that Shirley and Valerie is each a child of the deceased.
The language of the relevant sub-section is expressive of the person's status, as well as her relationship to the deceased. There is no age limit placed on an eligible person making an application.
It is only if eligibility is found, that the court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made, relevantly, by the Will of the deceased (the operation of the intestacy rules being irrelevant in this case in relation to the deceased's estate) (s 59(1)(c)). It is this mandatory legislative imperative that drives the ultimate result and, it is only if the court is satisfied of the inadequacy of provision that consideration is given to whether to make a family provision order (s 59(2)). Only then may "the Court… make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made".
Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for each applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the court to the provision actually made by the Will, on the one hand, and to the requirement for maintenance, education or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of each applicant.
Under s 59(1)(c), the time at which the court gives its consideration to the question of inadequacy of provision is the time when the court is considering the application by the eligible person or persons.
"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89, at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".
Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act.
In J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths), at 542, the learned authors comment upon the difference between the concepts of maintenance and advancement: "The essential difference between 'maintenance' and 'advancement' is that 'maintenance' denotes a periodical payment or a payment which could validly be made periodically, whereas 'advancement' denotes a definite unique outlay for a specific purpose. Recipients of maintenance must, practically speaking, be infants, but adults may be recipients of an advancement. An advancement can never be made of a sum of money which the person to whom it is made can immediately pocket, but it must be made with a view to the establishment of that person in a business or profession, or otherwise in some definite way for that person's benefit, the whole essence of an advancement being the immediate payment of a tolerably large sum for an immediate benefit to one beneficiary."
In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77, King CJ said: "The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an early period of life in the members of the family: Blore v Lang, per Dixon CJ at p. 128." [Footnotes omitted]
In Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, at 541, discussed the financial assistance which an applicant may need for his, or her, maintenance and advancement in life, in the following terms: "If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of the financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that… [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need."
In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)."
The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton in "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5 Australian Journal of Legal History 5, at 10, as reached upon "a purely economic and objective basis", whereas "proper" prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127, per Buss JA, at [72] and [77], which seems to invite more subjective criteria.
These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 476: "The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."
Their Lordships went on to state (at 478): "The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the Court were concerned merely with adequacy. But the Court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration."
Dixon CJ and Williams J, in McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566, at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that: "It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."
In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Gibbs J wrote, at 502: "[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."
In Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, at [114], Callinan and Heydon JJ said: "[T]he use of the word 'proper'… implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here… The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."
Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), that "adequate" and "proper" are independent concepts. He wrote, at 12: "'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied…"
Having established eligibility, as stated earlier, the first question to be determined under s 59(1)(c), is whether 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. This has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, at 208-209. If the court is not so satisfied, then it is precluded from making a family provision order.
In answering this question, the court has regard to, among other things, each applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between that applicant and the deceased, and the circumstances and needs of the other beneficiaries or potential beneficiaries: see McCosker v McCosker, at 571-572; Singer v Berghouse, at 209-210; Vigolo v Bostin, at [16], [75], [112]; Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, at [70]; Verzar v Verzar [2014] NSWCA 45, at [39].
Whether an applicant has a "need" or "needs" is also a relevant factor at the first stage of the enquiry: see s 60(2)(d) of the Act. It is an elusive and an elastic concept to define, yet, it is an element in determining whether "adequate" provision has been made for the "proper" maintenance, education and advancement in life of the applicant in all of the circumstances. The concept involves economic considerations.
In Collins v McGain [2003] NSWCA 190, Tobias JA, with whom Beazley and Hodgson JJA agreed, said: "42. Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies. ... 47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is 'proper maintenance etc' of the eligible person. It is because of that context that, in the present case, the 'proper maintenance etc' of the appellant required consideration of a need to guard against the contingency to which I have referred."
In Devereaux-Warnes v Hall (No 3), at [81]-[84], Buss JA said, in respect of the first stage of the process: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227. 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10 - 11. The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575. Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803, per Ormiston J at 816 [38], 820 [47]."
"Need", of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]. It is different from "want" and does not simply mean "demand" or "desire". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808, at [54]: "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'."
In Boettcher v Driscoll [2014] SASC 86; (2014) 119 SASR 523, David J, at [41], added: "'Need' is not so synonymous with 'want' such that the two are interchangeable."
As Callinan and Heydon JJ emphasised in Vigolo v Bostin, at [122], the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined.
"Need" may be assessed by considering each applicant's financial position, lifestyle, and general expectations in life and health: Stewart v Stewart [2015] QSC 238, at [11].
In the event that the court is satisfied that the power to make an order is enlivened (i.e. in this case, it is satisfied that each applicant, is an eligible person, and that adequate provision for her proper maintenance, education or advancement in life has not been made), then, pursuant to s 59(2), the Court may make such order for provision out of the estate of the deceased person as it thinks ought to be made for the maintenance, education or advancement in life of the applicant, having regard to the facts known to the Court at the time the order is made.
Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at this stage involves an exercise of discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.
Section 60 of the Act, at least in part, is new. It provides: "(1) The court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the 'applicant') is an eligible person, and (b) whether to make a family provision order and the nature of any such order."
Section 60(2) provides: "(2) The following matters may be considered by the court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person-the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew [2012] NSWSCA 308, at [37], as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380, at [121] and [123], as "a valuable prompt" to which the court may have regard, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order.
In Chapple v Wilcox [2014] NSWCA 392, Basten JA, at [7], wrote: "Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the 'nature of any such order', which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b)."
The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of such of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.
The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.
A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).
Section 65(1) of the Act requires the family provision order to specify: (a) the person or persons for whom provision is to be made, and (b) the amount and nature of the provision, and (c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and (d) any conditions, restrictions or limitations imposed by the Court.
The order for provision may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the Court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).
As the deceased made a will, any family provision order under the Act takes effect, unless the court otherwise orders, in a codicil to the will (s 72(1) of the Act).
Section 66 of the Act sets out the consequential and ancillary orders that may be made.
Section 99(1) of the Act provides that the court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the court thinks fit.
Practice Note SC Eq 7, which applies to claims for a family provision order, provides, in Clause 24, that "[o]rders may be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the value of the estate is less than $500,000". (Of course, this is only one basis upon which costs may be capped. See, for example, s 98 of the Civil Procedure Act 2005 (NSW). Also, see Baychek v Baychek [2010] NSWSC 987; Dion Giuseppi Sergi by next friend Aileen Solowiej v Sergi [2012] WASC 18, per E M Heenan J, at [50]-[52].

Other Applicable Legal Principles - Substantive Application

Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges and I have repeated them in many cases under the Act.
Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve "an overall fair" disposition of the deceased's estate. It is not part of the court's function to achieve some kind of equity between the various claimants. As Pembroke J has recently repeated in Sung v Malaxos [2015] NSWSC 186, at [5]: "Fairness and equality are not touchstones for relief under the Succession Act."
The purpose of the jurisdiction conferred by the Act is not to correct the hurt feelings, or sense of wrong, felt by each applicant. Rather, the court's role is of a specific type and goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance, education and advancement in life of an applicant.
The court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation. "Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court": Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90, at [63].
Of testamentary freedom, Callaway JA wrote in Grey v Harrison [1997] 2 VR 359, at 366: "[I]t is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent."
In Goodsell v Wellington [2011] NSWSC 1232, I noted, at [108], that: "Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated."
Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales, at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.
In Chapple v Wilcox, Basten JA, at [12], and Barrett JA, at [63]-[64], emphasised the central role played by "community standards" or "community expectations" in any decision whether to take the significant step of overriding the expressed wishes of the deceased.
How the community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew, at [36] (Basten JA). His Honour added, in Phillips v James [2014] NSWCA 4, at [113]: "As discussed by Allsop P in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 at [16], one can say little more as to the standards and values to be applied than that the court should be guided by its perception of 'prevailing community standards of what is right and appropriate'. Views will undoubtedly vary within the community as to the weight to be given to a testator's wishes as expressed in the will: Andrew v Andrew at [35]."
Thus, "there are difficulties for the Courts in making their own unaided assessment of current community attitudes in a complex and changing social environment": Williams v Aucutt [2000] 2 NZLR 479, at [44]. As was said by White J in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522, at [125]: "I know of no way of determining what the community would expect, or what its standards are, or values would be. I do not know, but suspect, that the expectations of individual members of the community would vary widely. It may be that the Act itself, at least insofar as it goes beyond allowing provision to be made in favour of spouses and minors or disabled children, runs counter to community expectations about freedom of testamentary disposition. As Basten JA said in Andrew v Andrew, the only guiding light, consistent with the rule of law, for the identification of community standards are those reflected in current legislation. No legislation other than the Succession Act itself is relevant to the present case. Attempts to identify particular community standards, for example, that a testator need not make provision for an able-bodied son, or that a widow's claim is paramount, have been rejected. To say that the court itself is the spokesman for the fair and reasonable man or woman in the community is to acknowledge that in truth there is no ascertainable external community standard to guide the decision."
In all cases under the Act, what is adequate and proper provision is necessarily fact specific.
All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singer v Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12, at [56]. Nor does it follow that if the court decides it is inappropriate to make a specific provision in respect of one identified head of claim that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams [2004] NSWSC 419, at [89].
The size of the estate is a significant consideration in determining an application for provision. It is important to remember what Salmond J said in In re Allen (Deceased); Allen v Manchester [1922] NZLR 218, at 221: "Applications under the Family Protection Act for further provision of maintenance are divisible into two classes. The first and by far the most numerous class consists of those cases in which, owing to the smallness of the estate and to the nature of the testamentary dispositions, the applicant is competing with other persons who have also a moral claim upon the testator. Any provision made by the Court in favour of the applicant must in this class of case be made at the expense of some other person or persons to whom the testator owed a moral duty of support. The estate is insufficient to meet in full the entirety of the moral claims upon it, in the sense that if the testator had possessed more he would have been bound to do more for the welfare of his dependants. In such a case all that the Court can do is to see that the available means of the testator are justly divided between the persons who have moral claims upon him in due proportion to the relative urgency of those claims."
In Re Buckland, (dec'd) [1966] VicRp 58; [1966] VR 404, at 412-413 the Court recognised that, in a case of a small estate, the notion of what provision was adequate would need to be adjusted accordingly: "In many of the cases coming before the Courts the decision as to what maintenance it was proper for a testator to have allowed has been influenced by the circumstances that there was competition between dependants, all with moral claims for maintenance and support out of his estate, but the estate was not large enough to meet them all. Thus, what was considered to amount to adequate provision for the proper maintenance of a claimant has been held to be less than it would otherwise have been."
Whilst fully contested applications in small estates should be discouraged, because the costs tend to become wholly disproportionate to the end result, there is nothing in the Act that excludes the possibility that orders for further provision be made from a small estate: Morris v Smoel [2014] VSC 32, at [68]. The court must still consider all the relevant circumstances before a decision is made: Re Coventry (Deceased) [1979] 3 All ER 815, at 820; Alcock v Cooper [2010] SASC 167, per Lunn M, at [39].
Yet, in small estates particularly, the court should be careful not to foster the proposition that obstinacy and unreasonableness will not result in an order for costs: Dobb v Hacket (1993) 10 WAR 532, at 540.
In relation to each Plaintiff's claim, being a claim by an adult child, the following principles are useful to remember: (a) The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute: Taylor v Farrugia [2009] NSWSC 801, at [58]; Smith v Johnson [2015] NSWCA 297, at [92]. (d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland, Deceased, at 411; Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, at 148; Goodman v Windeyer, at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons: Re Buckland, Deceased, at 411; Kleinig v Neal (No 2), at 537; Mayfield v Lloyd-Williams, at [86]. (e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2), at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37, at 45 (Nicholson J). (f) An adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169, at [179]-[182]; Crossman v Riedel [2004] ACTSC 127, at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297, at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164, at [17]. (g) An applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd, at 149.
A very similar statement of the principles which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275, at [111], was cited with approval in Chapple v Wilcox, at [21] (per Basten JA); at [65]-[67] (per Barrett JA) and was referred to, with no apparent disapproval, in Smith v Johnson, at [62].
In Foley v Ellis [2008] NSWSC 288, Sackville AJA, at [88], noted that Singer v Berghouse "strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act".
In Salmon v Osmond [2015] NSWCA 42, at [103], Beazley P stressed the relevance of having regard to the deceased's obligations to all other claimants and concluded, in that case, that even "without regard being had to the costs ordered to be borne by [the beneficiary's] share of the estate, the legacy ordered in [the Plaintiff's] favour is disproportionate to any rightful claim she may have when regard is had to [the beneficiary's] rightful claim to the deceased's bounty".

Qualifications on "Principles"

As I have stated in a number of cases (see, for example, Bowditch v NSW Trustee and Guardian), I do not intend what I have described as "principles" to be elevated into rules of law, propositions of universal application, or formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion at the second stage should be constrained, by statements of principle found in dicta in other decisions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I identify them merely as providing useful guidance, which may be applied, with circumspection, in considering the statutory provisions, the terms of which must remain firmly in mind.
It is necessary for the court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the bases for a family provision order have been established. Every case is different and must be decided on its own facts. As Lindsay J said in Verzar v Verzar [2012], at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."
The importance of the qualifications to which I have referred in the last two paragraphs has been stressed in Chapple v Wilcox by Basten JA, at [18]-[20], and by Barrett JA, at [66]-[67].

Facts identified by reference to s 60(2) of the Act

Next, I set out further facts that I am also satisfied are either not in dispute, or that have been established to my satisfaction by the evidence. I do so by reference to the matters in s 60(2) of the Act to which I may have regard. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar [2012], at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered. (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship
Shirley and Valerie is each a child of the deceased. Accordingly, the relationship of each with the deceased was for the whole of her lifetime.
Shirley lived at the family home until 1966, when, at 19 years of age, she married her husband. She says that she "would regularly visit [her] mother and [her] father at the family home after [her] marriage carrying out many simple chores for them, particularly in their later years of life including shopping, accompanying them on visits to the doctors and generally helping with the cleaning of the family home."
Robert gives evidence, which I accept, that Shirley did visit regularly from when she moved out of the family home, attending functions and general visits, as well as assisting the deceased. She also assisted the deceased, sometimes, with shopping between 2006 and 2009.
Robert said that he was not aware of Shirley visiting the deceased between 2009 and 2011. He recalls Shirley visiting the deceased in May 2014 at the Shellharbour Hospital. I have dealt with Shirley's evidence regarding the frequency of visits to the deceased from 2010 onwards.
I tend to the view that Shirley's relationship with the deceased changed after the death of George. Even accepting her evidence of the number of visits that she had to the deceased, I had the firm impression from her oral evidence, that the relationship that she had with the deceased, thereafter, was not a particularly close one.
Valerie left the family home in 1972 at 16 years of age, when she married her husband. She gave evidence that: "[She] would regularly make contact with the deceased after [her] marriage but had more frequent contact in the 2 years prior to the deceased's death. [She] would visit the deceased at Mayflower Nursing Home in Gerringong about twice a month. [She] would purchase her underwear, slippers and other clothing."
Robert said that from the time when Valerie moved out of the family home in 1972 up until 2010, from conversations he had with the deceased, he believed that Valerie visited the deceased about 2 or 3 times per year. From 2010 to 2013, Robert was not aware of Valerie visiting the deceased at all.
I have dealt with Valerie's evidence about her visits to the deceased more regularly, in the period leading up to the deceased's death in 2014. Valerie says that she visited the deceased "most days".
Valerie assisted Robert in the funeral arrangements and attended the funeral of the deceased.
Whilst I am of the view that Valerie tended to slightly exaggerate the closeness of her relationship with the deceased, perhaps, her relationship with the deceased seems to have been closer than the relationship of Shirley and the deceased. It was certainly not as close as the relationship of Robert and the deceased. (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
There is no definition of the "obligations" or "responsibilities" to which the sub-section refers in the Act. One might conclude, however, that what is to be considered is the nature and extent of any social, domestic, legal or moral obligations or responsibilities. The sub-section requires the consideration of obligations or responsibilities as between different applicants, and as between applicants and any beneficiaries, of the deceased's estate.
Although the relationship of parent and child is important and carries with it an obligation or responsibility reflected in the Act, it is nevertheless an obligation largely defined by the relationship which actually exists between parent and child during their joint lives: Vincent v Lewis [2006] NZFLR 812, at [81]. The boundaries of that obligation or responsibility are not amenable to rigid definition.
I am satisfied that, in the circumstances of the present case, the deceased did have an obligation, or responsibility, arising under the Act, as the sole surviving parent of Shirley and Valerie. However, the deceased did not have any legal, or financial, obligation to each imposed upon her by statute or common law.
In relation to Robert, I am of the view that the deceased had some obligation to him even though he is a grandchild. Robert was brought up by the deceased and George, and their relationship was more like that of parent and child than of grandparent and grandchild. She, herself, described him as a person "who I have always treated as my son".
Yet, the deceased did not have any legal, or financial, obligation to Robert imposed upon her by statute or common law. (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
I have dealt with this earlier in this judgment. In calculating the value of the net estate, the liabilities or charges to which the estate is subject, including the costs of the proceedings, have been accounted for. On any view, it is a tiny estate. (This is so, even without deducting the costs of the proceedings.) (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
This sub-section, if considered, calls for a comparison of the financial resources (including earning capacity) and financial needs, both present and future, of applicants and the beneficiaries of the deceased's estate.
Basten JA in Neale v Neale, at [22], described the sub-section as involving "an essentially evaluative exercise. The past and present can be established by evidence, although the level of detail must bear a reasonable relationship to the amount at stake. Prognostication is not, in this context, a science. It will inevitably involve some assessment of what an individual has done in the past as a basis for speculation as to the future."
As at 10 July 2015, Shirley's assets were a motor vehicle ($8,000), a property, in Dapto, jointly held with her husband ($430,000) and furnishings and fittings of said property ($20,000), savings ($16,000) and a motor vehicle jointly owned ($15,000). Shirley's husband also has superannuation ($347,000).
Shirley does not give any evidence of liabilities.
Shirley's and her husband's monthly expenditure is $2,169. Although Shirley had an income of $1,124 in September 2014, she currently has no income. Her husband's monthly income is $3,803 received by way of an allocated pension and aged pension. She accepted that the current surplus of their income over their expenditure is $1,634 per month: T28.21-T28.30.
In an affidavit dated 31 July 2015, Shirley lists her future needs, namely: (a) assistance to her 2 sons by reducing their respective mortgages of $205,000 and $390,000; (b) her wish to sell her current home and purchase a villa in Shellharbour, which would cost in excess of $600,000; (c) if unable to move home, upgrading of the bathroom, toilet and laundry in their current home, estimated to cost about $18,000.
As at 10 July 2015, Valerie's assets were cash in bank accounts ($6,500), a motor vehicle ($23,000), superannuation ($119,000), a property at Longbeach held jointly with her husband ($560,000), furnishings and fittings ($12,000), a motor vehicle and caravan owned jointly with her husband (with a total value of $88,000) and cash in a jointly held bank account ($40,000). The Longbeach property was said to have decreased in value by $60,000 since its purchase in 2009. However, there was no written valuation confirming this, Valerie saying in her oral evidence that she had obtained a verbal valuation from a real estate agent (T42.15-T43.11).
Valerie's husband also has superannuation ($66,000).
Valerie's only liability is disclosed as being "GE Money" ($1,300).
Valerie's and her husband's monthly expenditure is $3,828. Valerie's monthly income is said to be $400, received by way of an allocated pension. The source of this allocated pension was disclosed in her oral evidence as being paid from her superannuation: T38.40-T38.44. Her husband's monthly income is $4,800. It follows that they, too, have a surplus of monthly income over expenditure of about $1,370.
In an affidavit dated 3 August 2015, Valerie lists her future financial needs as potentially including: (a) her husband's cancer treatment which could be several thousand dollars; (b) new "seniors" accommodation; (c) maintenance of her current property, including upgrading the flooring and window coverings, and painting. She is currently in the process of upgrading the flooring in half of the home. This will cost $10,300 in total, half of which she has paid as a deposit: T37.30-T37.42. She anticipates that the flooring of the remainder of the house will be about the same price. She also envisages that the cost of upgrading the window coverings to the remaining part of the house would be about $5,500.
Valerie also refers to her husband's superannuation as not being "enough to keep us in reasonable circumstances for any considerable time". She would also like to accompany her daughter on holiday but has "declined to so do as it would involve eating into money that… [they] will need in the future".
The court may also consider the financial resources, including earning capacity, and the financial needs, both present and future, of the beneficiary of the deceased's estate.
Robert's assets, as at the hearing date, were cash in bank accounts ($3,200), 2 motor vehicles ($43,000), superannuation ($270,000) and a half share in the Lake Illawarra Property ($180,000). His liabilities include a car loan ($48,000), the debt secured by the mortgage ($97,000) and what is described as "Credit Corp" debt ($4,500).
His monthly expenditure is $5,050 and his monthly income is $4,681. He has had considerable difficulty maintaining employment due to his Bipolar Disorder which is referred to below. He currently works 27 hours per week on a permanent part time arrangement. Whether his working hours increase or stay the same will depend upon the medical advice he receives.
Robert currently lives in rented accommodation. He shares this accommodation and the persons with whom he shares pay half of the rent. His share of the rent is $200 per week.
One of the persons with whom Robert lives is a person he described in his oral evidence as his "partner". He did not mention her in his affidavits, or disclose her financial and material circumstances until this was raised in cross-examination.
He explained the omission saying that "we moved in together only three weeks ago… and that's the first time we have lived together and co-habited": T65.10-T65.42. However, he accepted that they have had a relationship for about 4 or 5 months.
When further questions were asked, Robert disclosed that she worked as an executive officer in a local Council and earned $1,170 per week, gross; she was "currently waiting to settle a house for a divorce, but at this stage the house remains for sale. And other than that, she does not have any liquid assets other than a motor vehicle until her divorce settles… She would have some super, but I can't give you an exact amount": T66.06-T66.30.
Valerie refers to three properties purchased by Robert between 1992 and 2001. Robert has since sold the properties, claiming that the combined profit made for the sales was $16,500. In relation to the last property bought in 2001, Robert borrowed $8,000 from the deceased and George and repaid the amount in instalments from September 2001 to July 2002.
Valerie also alleged that Robert borrowed $20,000 for the property he purchased in 1992, a claim that is denied by Robert, a denial which I accept. (e) if the applicant is cohabiting with another person - the financial circumstances of the other person
Each of the Plaintiffs presently live with her husband. I have set out his financial circumstances above. (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
Valerie underwent an arthroscopic procedure to her left knee cartilage in August 2014.
In July 2015, an optometrist explained to her that she "would require cataract surgery… sometime in the future." She believes that further medical procedures may be required in the future. Her husband suffered from Guillain-Barre Syndrome, a paralysing auto-immune disease. He was then diagnosed with aggressive prostate cancer in 2009 and he underwent surgery. Further treatment was carried out in 2012.
Shirley suffers from arthritis, which may require treatment in the future.
Robert was diagnosed with Bipolar Disorder in 2004 and has been hospitalised on 3 occasions as a result. Since his hospitalisation in August 2014, he has been unable to work as he used to. I have set out his current employment earlier.
Dr V Turnbull, a Psychiatrist, first saw Robert in May 2013 for assessment and management of his Bipolar Disorder, when he had had a severe episode of major depression. Dr Turnbull next saw Robert in November 2014. On that day, "he presented with depressed affect with melancholic features, had marked impairments in his sleep and appetite as well as concentration, with a constant sense of inner tension. Suicidal thoughts had also been severe". Robert's rating on a MADRS Rating Scale for Depression was "extremely high".
Dr Turnbull's affidavit states: "Since that time I have struggled to treat his depressive episode, with gradual improvements that has allowed a tentative return-to-work, he had been unable to work for some months… There is little doubt then that Mr Ingold has a serious and severe psychiatric disorder, Bipolar 1 Disorder, with recurring episodes of major depression, occasional episodes of hypomania. In the past his Bipolar Disorder has had marked implications for his ability to work and he has lost at least one job because of the severity of the Bipolar Disorder. The Bipolar Disorder itself is not 'curable', medications can be shown to decrease the frequency of Bipolar relapses without abolishing them. Bipolar Disorders do carry a considerable cost. In the first instance, incapacity for work can result in loss of income… The medication regimens for Bipolar are often complex and costly, some medications not PBS funded… Monthly cost of the… medications… would be in the order of $200per month. Hospitalisation can be required from time to time, and, as he has no further sick leave, is costly for him. If we were able to gain better control of the Bipolar symptoms, then psychological treatments will be needed for him, weekly sessions would be needed for approximately 2 years. Although he would be eligible for Medicare funding for 6 session [sic] per year some 40 sessions per year would not be funded, these at a cost of $150 - $200 per session. There is regular review of his medications at 1 to 2 monthly intervals, this at [the] cost of some $1,200 per annum. The major potential cost for him however could be total and permanent incapacity, there is a high risk of this occurring with Bipolar Disorders which have been present for a prolonged period." (g) the age of the applicant when the application is being considered
Valerie is now 58 years old, having been born in November 1956. Shirley is now 68 years old, having been born in November 1946. (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
Valerie commenced working as a checkout operator for Flemings Supermarket in November 1971, at the deceased's request, to support the family. She gave evidence that her weekly income of about $19 per week was taken by the deceased to be used for household expenses. She only retained an allowance of $3 per week. She continued to work at Flemings Supermarket up until moving out of the family home in November 1972.
Shirley writes that she "made numerous contributions to the conservation and improvement of the estate of the deceased, including providing assistance with maintenance of the family home, being painting and general maintenance, as well as assisting with cleaning of the family home".
Robert says that the deceased had a cleaner who attended weekly in mid-2000 and that he was never told by the deceased that Shirley assisted in cleaning. Shirley also says that she accompanied the deceased "on fortnightly shopping trips and when she required to attend her doctor". In about 2008 or 2009, Shirley and her husband took the deceased to various hospitals and doctors in relation to her bowel condition. For about 3 or 4 years, Shirley looked after their bank books, organising the withdrawals and paying bills as requested.
I am of the view that Shirley exaggerated the assistance provided to the deceased. For example, in 2009, she attended Kiama Hospital to discuss the future needs of her parents and stated she "didn't have sufficient time" to look after her parents permanently: T19.34-T19.42; T20.25-T20.42.
I have earlier set out the contribution made by Valerie to the welfare of the deceased. (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
The deceased did not make any provision for each of the Plaintiffs during the deceased's lifetime, except, presumably, whilst the Plaintiffs were children living at the family home. This may not be surprising in view of the fact that each left home and married many years ago. Neither was financially dependent upon the deceased for many years.
As previously stated, Valerie and Shirley received no provision under the last Will of the deceased. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,
There was tendered in evidence a copy of a Will made by the deceased in April 1997. In that Will, the deceased left the whole of her estate to George provided he survived her by not less than 30 days, and in the event that he did not, then after payment of debts, funeral and testamentary expenses, "to divide and distribute the balance then remaining equally amongst such of my children and Robert… as survive me…"
Valerie refers to "various conversations with the deceased regarding her Will and the property at xxx Lake Illawarra South." She specifically refers to an occasion in about January 2013 after her husband obtained a title search of the Property: "I said: 'Mum, why is Robert… on the title deeds of the Lake Illawarra South Property.' The deceased said: 'I don't know' I said: 'Mum, why did you take out a mortgage.' The deceased said: 'We have owned the house… for years, why would I want a mortgage.'"
Valerie refers to a similar conversation in about the same time: "I said: 'How did Robert become a part owner of the property.' Deceased said: 'I do not know, your father must have changed his will.' I said: 'Have you changed your will?' Deceased said: 'No.' I said: 'Why did you sign a mortgage?' Deceased said: 'We have owned the house… for years, why would I want a mortgage.'"
It is hard to accept that the deceased did not remember what had been done in respect of the Lake Illawarra property and in relation to the borrowing. However, this is not to say that there is a basis to disbelieve Valerie's evidence on this topic. It may be that the deceased did not wish to explain her reasons for doing what she had done.
Robert was aware of the 1997 Will and was informed that he would be an executor of that Will. He did not know the contents of this Will until 2009 when he was asked to obtain the original wills from the deceased's and her husband's solicitor. (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
Neither Plaintiff was being maintained by the deceased before the deceased's death. Indeed, it seems to be that each had not been maintained by the deceased for many years prior to the deceased's death. (l) whether any other person is liable to support the applicant
There are no other persons liable to support each Plaintiff, except, perhaps, her husband. (m) the character and conduct of the applicant before and after the date of the death of the deceased person
An evaluation of "character and conduct" may be necessary, not for the sake of criticism, but to enable consideration of what is "adequate and proper" in all the circumstances. The Act does not limit the consideration of "conduct" to conduct towards the deceased. Nor is it limited to character or conduct of the applicant such as to disentitle him, or her, to the benefit of any provision. In referring to character and conduct of an applicant, the Act also contemplates good conduct as it would constitute an injustice if such a factor were not taken into account.
Whilst it is clear that there is no love lost between the parties themselves, I do not think that there is any conduct of either Plaintiff that is relevant to which reference has not been made. (n) the conduct of any other person before and after the date of the death of the deceased person
Robert is a grandchild of the deceased. He resided at the family home from birth to 1990, during which time he was "cared for and dependent on the deceased" and her husband, whom he regarded as his own parents. Shirley gave evidence that Robert was initially cared for by Fay until she left the family home in about 1970 when Robert was about 3 or 4 years old.
From 1990 to 2005, Robert was largely independent. He again resided at the Property for 6 months when he became ill and was "totally dependent" on the deceased and George.
In his affidavit dated 28 November 2014, Robert writes that he "was maintained by the deceased over the past two years in accommodation only… due to… being unable to work due to illness for twelve of the last 24 months. The deceased allowed me to reside at my house rent free during this period."
He assisted in general household duties during his school years. From 1983 to 1990, he was employed and paid board of 25 per cent of his weekly earnings. He continued to assist with household duties in this period and after moving out (except from 2000 to 2003 when he worked in Griffith), especially with tasks that the deceased and her husband could not complete due to their age. From 2005, he also took the deceased to numerous medical appointments, to visit her friends and to visit her husband when he was in hospital.
Shirley gave contrary evidence that the deceased had few friends, and would prefer to stay at home due to anxiety attacks. On this aspect, I prefer the evidence of Robert.
Robert renovated the bathroom at the Lake Illawarra Property. He organised various services for the deceased including meals on wheels, community nursing contacts and subsidised transport.
Shirley deposes to a conversation she had with Joy who told her that she had organised meals on wheels for her parents. Shirley "personally made arrangement for home care… to carry out domestic chores such as cleaning and washing… in around 2008." Robert agrees that they may have been involved in organising these services, but they did not administer them.
From 2009 until the deceased's death, Robert says he was "solely responsible for all the needs of the deceased, including financial management and medical appointments".
In January 2010, Robert was asked to be the Enduring Guardian, Power of Attorney and Executor of the Will for each of the deceased and her husband.
Robert assisted both the deceased and her husband in their move to the Mayflower Retirement Village, including completing the necessary documentation and seeking financial advice on their behalf. He continued to visit them weekly at the nursing home to assist with groceries, providing cash for activities and transporting both to medical appointments. After George's death, Robert continued to provide the same support to the deceased. In the week leading up to the deceased's death, Robert says he visited her daily, although Valerie contends that she only saw Robert twice in the last 10 days leading up to the deceased's death.
Valerie refers to a conversation she had with an aged care worker who sometimes attended on the deceased, who said that she did not know who Robert was. Robert contends that this is because the aged care worker had only been working at the nursing home for a short period of time and only worked on weekdays; Robert would visit the deceased mainly on Sundays and sometimes on Wednesdays. Robert also says that his name appears several times on the register at the nursing home, which must be signed when a resident is taken from the site. There were no documents produced to confirm this.
The longest period between Robert's visits to the Mayflower Retirement Village was 3 weeks, when he was ill.
Robert arranged the funeral, with "minimal assistance" from Valerie and no assistance from Shirley, and attended the service of the deceased.
In about June 2014 Valerie recalls Robert saying to her, in reference to the deceased, "I do not love her… and only visit because I promised Dad." Unsurprisingly, Robert denies that he said this. I accept the evidence of this denial.
I have no doubt that Robert was a close, loving and supportive grandson of the deceased and despite the fact that he was a grandchild, he played more of a role as a loving and dutiful child of the deceased, as she appears to have recognised.
I have earlier referred to the cross-examination of Mr Mansfield and of Robert on the steps that were said to have been taken by Robert to have Mr Mansfield prepare the deceased's Will. The Plaintiffs' submission was that such conduct did "not rise as high as undue influence… It may rise as high as behaviour by a person within the meaning of s 60 in connection with the testator": T71.05-T71.23.
I do not accept this submission. As I noted during the submissions, it seemed clear on all of the evidence that the deceased wished Robert to inherit her entire estate; she told Mr Mansfield that; she made a Will reflecting that intention, a Will that was similar to the Will made by George, who, also, wished Robert to inherit the whole of his estate.
As counsel for the Plaintiffs conceded, correctly in my view, "the evidence overall is that the Will evidences what, at the date of her death, [the deceased] wished to do": T71.44-T71.47. Clearly, by making him the sole beneficiary of her estate, the deceased regarded him as the person to whom she owed the greatest obligation. (o) any relevant Aboriginal or Torres Strait Islander customary law
This is not relevant in the present case. (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered
This sub-section provides a wide discretion to look beyond the specific matters set out in the immediately preceding sub-paragraphs.
I have not forgotten that Robert inherited a one half interest in the Lake Illawarra property from George.

DETERMINATION

Being an "eligible person" is a necessary precondition to the court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. There is no dispute that each Plaintiff, as a child of the deceased, is an eligible person within the meaning of that term in s 57(1)(c) of the Act.
There is also no dispute that each commenced the proceedings within the time prescribed by the Act.
I have written that neither Plaintiff receives any provision out of the estate. However, that fact, alone, does not automatically lead to the result that inadequate provision for her proper maintenance, education and advancement in life, has been made. In this regard, as stated previously, the adequacy of the provision made for each applicant depends upon all the relevant circumstances, including the age, capacities, means and competing claims of all potential beneficiaries and "proper", in this context, means proper in all the circumstances, in the light of all competing claims upon the bounty of the deceased and their relative urgency, and the deceased's ability to meet such claims having regard to the size of her estate.
Based upon the matters I am required to consider, I am not satisfied, at the time when the Court is considering the application of each Plaintiff, that adequate provision for her proper maintenance, education or advancement in life was not made by the Will of the deceased. Importantly, in the case of each Plaintiff, she is secure in accommodation, which is unencumbered; taken with the income of her spouse, they have an income that exceeds their monthly expenditure; and Valerie has some superannuation. In the case of Shirley, she and her husband have been married for 50 years, whilst Valerie and her husband have been married for about 43 years. There is no suggestion that either marriage is in any way unstable.
In the case of Shirley, the total value of her, and her husband's, assets and superannuation is $836,000. In the case of Valerie, the value of her, and her husband's, assets and superannuation, is about $913,200, taking into account liabilities. In my view, neither has demonstrated any need for provision out of such a small estate.
When one compares the value of Robert's assets, and taking into account his liability for the repayment of the mortgage debt, it is clear that each of the Plaintiffs is in a superior financial position.
(I have not forgotten the financial circumstances of Robert's "partner". However, they have been in a relationship for about 4 or 5 months and have only been living together for a short time. It is difficult to treat her financial and material circumstances in the same way as one treats the financial circumstances of each Plaintiff's spouse.)
I have also not forgotten Shirley's evidence that she wishes to benefit her children. Whilst, undoubtedly, that is most commendable, in an estate of this size, it is not a matter which should be regarded as a "need". Importantly, on this topic, there is no evidence about the financial resources of either of her children, other than that each has a mortgage.
In this case, any provision the Court makes in favour of either Plaintiff has to be made at the expense of Robert to whom the deceased believed sole provision ought to be made, and whose claim for provision from the deceased's estate appears far more compelling than the claim of each Plaintiff. It is hardly surprising that the deceased felt that way, bearing in mind the closeness of their relationship.
I must also remember that the task of the court is to make a determination "according to the feeling and judgment of the fair and reasonable man in the community, the spokesman of which is, and must be, the court itself": Kearns v Ellis (Supreme Court (NSW), Mahoney JA, 5 December 1984, unrep), at 8. Doing so, I remain of the view that there was not a failure, on the part of the deceased, to make adequate and proper provision for the Plaintiff.
It follows that the Summons must be dismissed.
Even if contrary to my conclusion that I am not satisfied that inadequate provision for each Plaintiff's proper maintenance or advancement in life was made by the Will of the deceased, as a matter of discretion, I would not make an order for provision out of the estate of the deceased person for the maintenance, education or advancement in life of either Plaintiff, having regard to the facts known to the Court at this time. This involves "an instinctive synthesis that takes into account all the relevant factors and gives them due weight": Grey v Harrison.
I have identified the matters in s 60(2), the factual matters, to which regard may be had in reaching this conclusion. Considering all of these, I am not satisfied that any order for provision out of the estate of the deceased ought to be made for the maintenance, education or advancement in life of either Plaintiff.
It follows, therefore, that the Plaintiffs' proceedings must be dismissed.
Robert's primary submission (in the written submissions) is that the proceedings should be dismissed and that each party is to bear their, or his, own costs of the proceedings. No doubt, the order proposed by him would be accepted by the Plaintiffs in the circumstances. However, during submissions, I was requested not to deal with the question of costs, so I shall not do so.
However, unless either party wishes to propose a different costs order, and although I do not wish to encourage the proposition that an order of the type proposed by Robert would be made as a matter of course in a case where a claim by an applicant, or applicants, is dismissed, I appreciate that there is a familial relationship between the parties. If Robert is prepared to bear the burden of his own costs, and if there is no other relevant matter, I would be prepared to make that order.
The Court: (i) Orders, pursuant to Uniform Civil Procedure Rules 2005 (NSW), rule 7.10(2)(b), that the Defendant, Robert George Ingold, be appointed to represent the deceased's estate and notional estate for the purposes of these proceedings. (ii) Orders that any order entered or made in the proceedings binds the deceased person's estate to the same extent as the estate would have been bound had a personal representative of the deceased person to whom administration had been granted been a party to the proceedings. (iii) Orders that the Plaintiffs' Summons be dismissed. (iv) Subject to any further submissions, makes no order as to the costs of the Plaintiffs, to the intent that they will bear their own costs of the proceedings. (v) Subject to any further submissions, makes no order as to the Defendant's costs, to the intent that he will bear his own costs of the proceedings. (vi) Directs that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10), and Practice Note No SC Gen 18 (Para 26) following the determination of the costs of the proceedings.

Amendments 30 October 2015 - "by Barrett JA" replaced with "Barrett JA" in Paragraph 106 "have been stressed" replaced with "has been stressed" in Paragraph 121 "sub-paragraph" replaced with "sub-section" in Paragraph 139 "Valerie contends that he" replaced with "Valerie contends that she" in Paragraph 193 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: 30 October 2015

Family Provision Act 1982(NSW)

Succession Amendment (Family Provision) Act 2008(NSW)

Foley v Ellis [2008] NSWSC 288 Gardiner v Gardiner (NSWSC, 28 May 1998, unreported) Gardiner v Gardiner [2014] NSWSC 435 Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 Goodsell v Wellington [2011] NSWSC 1232 Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison [1997] 2 VR 359 Hawkins v Prestage (1989) 1 WAR 37 Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 Hyland v Burbidge [2000] NSWSC 12 Kearns v Ellis (Supreme Court (NSW), Mahoney JA, 5 December 1984, unrep) Kleinig v Neal (No 2) [1981] 2 NSWLR 532 MacGregor v MacGregor [2003] WASC 169 Marks v Marks [2003] WASCA 297 Mayfield v Lloyd-Williams [2004] NSWSC 419 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 McKenzie v Topp [2004] VSC 90 Morris v Smoel [2014] VSC 32 Neale v Neale [2015] NSWCA 206; [2013] NSWSC 983 Phillips v James [2014] NSWCA 4 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 Re Coventry (Deceased) [1979] 3 All ER 815 Salmon v Osmond [2015] NSWCA 42 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522 Smith v Johnson [2015] NSWCA 297 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stewart v Stewart [2015] QSC 238 Sung v Malaxos [2015] NSWSC 186 Taylor v Farrugia [2009] NSWSC 801 Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 Underwood v Gaudron [2015] NSWCA 269 Verzar v Verzar [2012] NSWSC 1380 Verzar v Verzar [2014] NSWCA 45 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Vincent v Lewis [2006] NZFLR 812 Walker v Walker (NSWSC, 17 May 1996, unreported) Wheat v Wisbey [2013] NSWSC 537 Williams v Aucutt [2000] 2 NZLR 479 Worsley v Solomon [2008] NSWSC 444 Texts Cited: J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths)

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