Charlwood v Charlwood

Supreme Court of NSW|2017-07-20|Before: Hallen J

Mayfield v Lloyd-Williams [2004] NSWSC 419 McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 McGrath v Eves [2005] NSWSC 1006 Meres v Meres [2017] NSWSC 285 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 R v Registrar of Melbourne County Court [1927] VLR 406; (1927) 33 ALR 270 R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 Rappard v Williams [2013] NSWSC 1279 Re Buckland, Deceased [1966] VR 404 Salmon v Osmond [2015] NSWCA 42 Saravinovska v Saravinovski (No 5) [2015] NSWSC 128 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Slack v Rogan & Anor; Palffy v Rogan & Anor (2013) 85 NSWLR 253; [2013] NSWSC 522 Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Taylor v Farrugia [2009] NSWSC 801 Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) White v Barron (1980) 144 CLR 431; [1980] HCA 14 Wilcox v Wilcox [2012] NSWSC 1138 Category: Principal judgment Parties: Mr Mark William Charlwood (first Plaintiff) Ms Thi Thanh Hong Luu (second Plaintiff) Mr Graeme Thanh Charlwood by his tutor Thi Thanh Hong Luu (third Plaintiff) Mr George Albert Thanh Charlwood by his tutor Thi Thanh Hong Luu (fourth Plaintiff) Mr Graeme Desmond Charlwood (Defendant) Representation: Counsel: Mr J Trebeck (Plaintiffs/Cross-Defendants) Mr L Ellison SC (Defendant/Cross Claimant)

Solicitors: Herbert Weller (Plaintiffs) Glass Goodwin Solicitors (Defendant) File Number(s): 2016/152754 Publication restriction: Nil

The Claims

HIS HONOUR: William Albert Charlwood ("the deceased"), died on 19 May 2015. On 5 August 2015, this Court granted Probate of the deceased's Will, made on 6 November 1997, to his son, Graeme Desmond Charlwood, the executor appointed therein, and the Defendant named in these proceedings.
In the Will, after the Clause revoking all prior wills and testamentary dispositions, the deceased gave the whole of his estate to his two sons, Mark William Charlwood and the Defendant, in equal shares as tenants in common. Accordingly, under the terms of the deceased's Will, they share, equally, the deceased's estate.
Mark Charlwood was not satisfied with the provision made for him in the deceased's Will, and with his wife, Thi Thanh Hong Luu ("Hong"), and their two children, Graeme Thanh Charlwood, and George Albert Thanh Charlwood, commenced proceedings, by Summons, filed on 18 May 2016, in which each made a claim for additional provision, or provision, respectively, by way of a family provision order, out of the deceased's estate and notional estate pursuant to the Succession Act 2006 (NSW) ("the Act").
The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009. 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, for the maintenance, education, or advancement in life, of an eligible person. The relief sought included an order that the costs of the proceedings be paid out of the estate.
Without any undue familiarity, or disrespect intended, and for convenience, I shall refer to family members, after introduction, by her, or his, first name. I shall refer to Mark and Graeme by the role played in these proceedings.
At the commencement of the hearing, counsel for the Plaintiffs, Mr J A Trebeck, informed the Court that only the claim, by Mark, for a family provision order, would be proceeding and that each of the other Plaintiffs "will not be pressing the claim", respectively, for a family provision order: T1.36 - T1.40.
The Defendant, naturally, did not oppose the dismissal, or the discontinuance, of that part of the relief claimed by three of the four Plaintiffs. However, as the other Plaintiffs are named as Cross-Defendants in the claim for possession brought by the Defendant, to which I shall refer, the proceedings by each could not be dismissed, or discontinued, immediately. It will be necessary to make an order dismissing the part of the proceedings brought by Hong, Graeme and George for a family provision order.
It follows that only Mark remains as a Plaintiff and I shall, hereafter, refer to him as "the Plaintiff".
A family provision order may be made in relation to the estate of a deceased person but may also be made in relation to property that is not part of the deceased person's estate, if it is designated as "notional estate" of the deceased person by an order under Part 3.3 of the Act: s 63. In the Summons, there was a reference to cash of $100,000, said to have been withdrawn from the deceased's estate shortly after the death of the deceased, as property that may be designated as notional estate.
At the commencement of the hearing, however, the parties agreed that there was no property sought to be designated as notional estate of the deceased. In the circumstances, hereafter, I shall simply refer to the estate of the deceased. They also agreed that there is no scope for the operation of the intestacy rules so that it is only necessary to refer to the Will of the deceased.
There is no dispute that the proceedings were commenced within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased).
To obtain an order for additional provision, the Plaintiff must first satisfy the Court that he is an "eligible person", in accordance with s 59(1)(a) of the Act. The Act defines "eligible persons" by reference to six categories. The relevant category relied upon by the Plaintiff is identified in s 57(1)(c) of the Act, namely that he is a child of the deceased. There is no dispute that he is an eligible person.
If eligibility is established, the Plaintiff must also satisfy the Court that, at the time when the Court is considering the application, adequate provision for his proper maintenance, education or advancement in life has not been made by the Will of the deceased: s 59(1)(c). If he is able to do so, the Court may make such order for provision out of the estate of the deceased as ought to be made for his maintenance, education or advancement in life, having regard to the facts known to the Court at the time the order is made.
The parties agreed that principal issue in the case is whether adequate provision for the Plaintiff's proper maintenance, education or advancement in life was not made by the Will of the deceased, and if so, what additional provision, if any, ought to be made. (The Defendant submitted that the Plaintiff would not be able to establish the inadequacy of provision bearing in mind the terms of the deceased's Will.)

The Cross-Claim

In late November 2015, the Defendant's then solicitors, Gerard Malouf and Partners, wrote a letter dated 26 November 2015, to the Plaintiff's then solicitors, requesting that the Plaintiff, and his family, vacate possession of the property owned by the deceased at Austral ("the Austral property") by 23 December 2015. (Austral is a suburb of Sydney, about 42 kilometres south-west of the Sydney CBD, in the local government area of the City of Liverpool.)
The Plaintiff and his family did not abide the request made on behalf of the Defendant and have remained in occupation of the Austral property since then, despite appearing to have no legal basis upon which to do so.
The Defendant's solicitors wrote, on 17 March 2016, to the Plaintiff's solicitors, again, requesting that the Plaintiff and his family to vacate possession by 31 March 2016. In this letter, they threatened to commence proceedings to obtain vacant possession of the Austral property.
Once again, the Plaintiff and his family did not vacate the property. On 18 May 2016, as earlier stated, they commenced these proceedings. On 25 August 2016, the Defendant filed a Cross-Claim seeking an order for possession of the Austral property, and making a claim for arrears of rent, mesne profits until delivery of possession, and costs. All of the then Plaintiffs were identified as Cross-Defendants.
The Plaintiffs/Cross-Defendants filed a Defence on 23 September 2016 in which they raised a number of defences, the substance of which was that they had remained in occupation of the Austral property with the consent of the deceased and that they were not required to pay any rent, or occupation fee, at any time.
It is not necessary to refer in more detail to the nature of the defences as it is agreed that the Austral property must be sold: T96.23 - T96.25. At the hearing, the Defendant agreed that the Cross-Defendants would not be required to pay any rent, or occupation fee, calculated from the date of death of the deceased, for their continued occupation of the Austral property. He also agreed that the Plaintiff could receive the contents of the Austral property. He also agreed that, if the Plaintiff required a rental bond to be paid after the Cross-Defendants vacated the Austral property, the amount of the cash in bank could be made available to him, as an advance on the provision made for him in the Will of the deceased, for that purpose: T135.10 - T135.19.
During final submissions, even though the issue of the Cross-Claim had been raised at the commencement of the hearing, counsel for the Cross-Defendants stated that, whilst he had tried, "more than once", he was unable to obtain "coherent" instructions regarding how the Cross-Claim should be dealt with: T125.22 - T125.25.
However, counsel accepted that, as the Austral property must be sold, whatever the result of the Plaintiff's case, he could not speak against the following: 1. An order that all of the Cross-Defendants should vacate the Austral property within two months of the delivery of reasons for judgment, or such other time as the parties were able to agree in writing, failing which a writ of possession could be executed upon: T125.25 - T125.28; 2. An order that the Defendant should place the Austral property on the market for sale, no later than 4 weeks, and no more than 6 weeks, from the date of the Cross-Defendants vacating possession, or such other time as the parties were able to agree in writing: T156.24 - T156.48; 3. A notation of the agreement that the Cross-Defendants are not required to pay any rent, or occupation fee, for the period of time that they have been, and whilst they remain, in occupation in accordance with (a) above: T7.38 - T7.44; (This may necessitate an order that the part of the Cross-Claim dealing with that claim for relief being dismissed.) 4. Liberty being granted to the parties to apply for further orders in relation to obtaining vacant possession of the Austral property.
Since a family provision order in favour of the Plaintiff is to be made, orders relating to the Cross-Claim may also be made under s 66(1) of the Act. The legal representatives of the parties are to frame the precise form of orders, which will include any agreement referred to above and also any agreement reached as to the most convenient and timely way to enable the administration of the estate to be completed.

A Preliminary Matter

Although it is no longer as significant as it might have been, it is next convenient to identify a procedural matter that could have been important had the claims for a family provision order by Hong, Graeme and George proceeded.
Each of Graeme and George is a person under a legal incapacity (a minor). For unknown reasons, Hong was named in the Summons as the tutor for each of them even though she was then a Plaintiff also.
The Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), rule 7.15(2)(c), provides that "any person (other than a corporation) is eligible to be the tutor of a person under legal incapacity, in respect of any proceedings, unless the person … is a person who has an interest in the proceedings adverse to the interests of the person under legal incapacity".
UCPR rule 7.16 provides that "a tutor may not commence or carry on proceedings on behalf of a person under legal incapacity unless there have been filed (a) the tutor's consent to act as tutor and (b) a certificate, signed by the tutor's solicitor in the proceedings, to the effect that the tutor does not have any interest in the proceedings adverse to that of the person under legal incapacity".
UCPR rule 7.18(1)(b) permits the Court to remove the party's tutor and appoint another tutor. Rule 7.18(3) provides that "if the Court removes a party's tutor, it may also stay the proceedings pending the appointment of a new tutor".
On 18 May 2016, the consent to act as tutor was filed. It was in the form approved by the Uniform Rules Committee for use in civil proceedings in this Court. Within that consent, after the signature of the tutor, was a certificate, signed by a solicitor, Quyen Tu, that Hong "does not have an interest in the proceedings adverse to the interests" of Graeme and George.
In Rappard v Williams [2013] NSWSC 1279, I noted, at [68], that the Court's approval of a nominated tutor is not required, other than where it is sought to substitute one tutor for another (UCPR, r 7.15(5)). However, the Court retains overall supervision over a party's conduct of proceedings through a tutor: Coffey v Coffey (No. 2) [2015] NSWSC 338 at [4] (Slattery J).
I also noted, at [69], that a person not being under a personal incapacity to sue, not being an accounting party, not having an interest adverse to the person under a legal incapacity and not relevantly connected with any other party to the proceedings may be a tutor: R v Registrar of Melbourne County Court [1927] VLR 406; (1927) 33 ALR 270. I reiterated that a tutor represents the person under a legal incapacity and does not pursue a personal interest in the proceedings.
Whilst it is true that, where possible, the Court prefers to appoint a family member as tutor in preference to a stranger, that preference only applies if the interest of that family member is not adverse to that of the person under the legal incapacity: Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200; Saravinovska v Saravinovski (No 5) [2015] NSWSC 128 at [34] (Kunc J).
In my view, as a competing claimant upon the bounty of the deceased, whilst the claims by all the Plaintiffs were proceeding, Hong, potentially, did have an adverse interest to each of Graeme and George as minor grandchildren of the deceased and she should not have been named as the tutor for each of them.
Now, it is not necessary to remove Hong as the tutor for each of them, since the only issue remaining that involves the three of them, relates to the Cross-Claim, in relation to which there appears to be an identity of Hong's interest and their interests.
It should not be necessary for the Court to remind legal representatives that they have a duty to consider the identity of the tutor for a party who is a person under a legal incapacity and to ensure, if a family member is appointed, that the interest of that family member is not adverse to that of the person under the legal incapacity.

Formal Matters

The following outline of the factual background records my findings of fact based on unchallenged evidence, or where I am satisfied that the background fact is established on the balance of probabilities.
The deceased died on 19 May 2015, aged 90 years.
The deceased was married to Dorothy May Charlwood, but she predeceased him, having died on 26 September 1997. There were two children of their marriage, namely, the Defendant, who was born in October 1951, and who is 65 years old, and Mark, who was born in April 1958, and who is 59 years old.
The deceased and Dorothy purchased the Austral property sometime between 1985 and 1987. The land size of the property is about 923 m2, and on it is built a 4 bedroom detached brick veneer dwelling, with one bathroom, a sunroom, a lounge, internal laundry, kitchen and dining room. There is an attached double lock-up garage. Ancillary improvements consist of a concrete track driveway, basic turf and landscaping, metal fencing, side gates, a clothes line, and a garden shed. The condition of the residence is described as "poor", "with numerous maintenance issues noted … and can be relatively easily remedied but they do detract from the subject's appeal".
The Plaintiff was married, for the first time, probably in the 1980's, but he was unable to remember when that marriage had taken place. In his affidavit, he wrote that the marriage had been dissolved in about the mid 1980's. There were no children of the marriage: T19.04 - T19.14.
Following the breakdown of his marriage, the Plaintiff returned to live with his parents. He lived with them for a period of time, but then moved out again.
The Plaintiff and Hong were married in March 2005. She was born in Vietnam, in June 1980 and is now 37 years old. She and Mark had been introduced to each other in about 2002, although they did not meet face to face until he travelled to Vietnam, in 2003. Until then, they had only corresponded by letters. They had a traditional Vietnamese wedding first, in Vietnam, following which Hong came to Australia.
There are two children of their marriage, being Graeme, who was born in January 2006, who is 11 years of age, and George, who was born in September 2008, and who is nearly 9 years of age.
The deceased died leaving an estate in New South Wales. In the Inventory of Property attached to, and placed inside, the Probate document, the estimated, or known, value of the property owned solely by the deceased, in New South Wales at the date of death, was disclosed to be $796,315. The estate was said to consist of the Austral property ($721,000), shares in IAG ($5,697), household furniture and effects ($3,400), a car ($2,375), and money in a bank account ($69,618).
In an affidavit affirmed by the Defendant on 11 July 2016, read in the proceedings, he set out various amounts being debts, funeral and testamentary expenses, said to have been paid out of the estate. These expenses total $7,915. (I have omitted and shall continue to omit the cents. This will explain any apparent mathematical errors.)
At the commencement of the hearing, the parties agreed that, the value of the Austral property, as at the date of the hearing, was $970,000. There was also cash in bank ($21,621) and the IAG shares ($6,661). (The parties agreed that the household furniture and effects were of negligible value and that the car had a value of $1,000.) It follows that the gross value of the deceased's estate, at the date of the hearing, was about $1,000,000: T4.24 - T4.35.
The Plaintiff, initially, did not agree that it would be necessary to sell the Austral property. This initial view changed relatively soon after the hearing commenced. If it is sold, the costs and expenses of sale were estimated to be $25,340: T5.35 - T5.43.
It follows that before taking into account the parties' costs and disbursements of the proceedings, the gross value of the estate, if the Austral property is sold, is estimated to be about $974,660.
Usually, in calculating the value of the deceased's estate and notional estate finally available for distribution, the costs of the proceedings for a family provision order should be considered with circumspection. As Basten JA stated in Chan v Chan [2016] NSWCA 222 at [54]: "In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs."
However, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199; Harkness v Harkness (No 2) [2012] NSWSC 35.
The applicant, if successful, usually would be entitled to an order that their costs, calculated on the ordinary basis, would be paid out of the estate or notional estate of the deceased, whilst the defendant, as administrator of the estate, irrespective of the outcome of the proceedings, normally would be entitled to an order that their costs, calculated on the indemnity basis, should be paid out of the estate or notional estate.
Mr H Weller, the solicitor for the Plaintiffs, estimated the costs and disbursements of the Plaintiffs in respect of these proceedings, up to the conclusion of a two day hearing, calculated on the ordinary basis, is $107,691, inclusive of GST. (The estimate included the costs and disbursements ($49,291, calculated on the indemnity basis) of solicitors who had previously acted for the Plaintiffs.)
Mr J Glass, the solicitor for the Defendant, estimated the Defendant's costs, calculated on the indemnity basis, to be $119,867, of which $70,890 had been paid out of the estate. (The estimate included the costs of solicitors who had previously acted for the Defendant. It also included an additional amount of $3,000 that had been omitted from the affidavit of costs.) The amount left to be paid is estimated to be $48,977.
It follows, if an order for the payment of costs out of the estate is made, in respect of both parties, the net available estate will be about $816,274: T7.46 - T8.07.
Every effort was given to the parties to resolve the proceedings, including at a judicial settlement conference, before the significant costs of preparation for the hearing, and of the actual hearing, were incurred. At the time of the judicial settlement conference, held on 11 August 2016, the total costs incurred were estimated, until that date, to be $80,000.
Thereafter, the parties have continued with this ruinously expensive litigation. That almost another $148,000 has been incurred in legal costs, since then, making a total of $227,558, in an estate with a value of about $1 million is tragic, particularly when it is remembered that all of the parties are family members. The case appears to be another illustration of each of the parties allowing emotion and passion in the rightness of his cause to overtake logic.
Although, initially, it was submitted by Mr L J Ellison SC, for the Defendant, that how the burden of the costs of the proceedings would be borne could not be determined as part of these reasons, as there were documents that may be relevant on the issue, depending upon the result of the proceedings, he conceded, during submissions, that the usual costs orders should be made if the Plaintiff was successful: T158.36 - T158.46.
It was not submitted that any separate costs order should be made dealing with the Cross-Claim, or with the costs thrown away by dismissal of the proceedings by Hong, Graeme and George.
The parties also accepted that in the event the Plaintiff is successful, the Court should make any order that resulted in an amount for him, from the share of the estate passing to the Defendant, calculated as a percentage of the net proceeds of sale of the Austral property (T116.19 - T116.22). In this way, both parties would benefit if the Austral property were sold for a price greater than had been estimated, and each would be detrimentally affected if it sold for less than the estimate. There would also then be certainty of price, costs, and expenses, upon which calculations could be made.
McDougall J in Bouttell v Rapisarda [2014] NSWSC 1192 at [96], has raised the concern that "to make provision by way of a share, the value of which can only be ascertained until after realisation of all the estate's assets, runs the very real risk of under-providing (or over-providing) for [the applicant's] needs". Whilst this is undoubtedly true, it seems to me that, in some cases, to make a lump sum order will not be the most appropriate way of determining what is "proper" in all the circumstances of the case, particularly in a case where the principal asset is real estate, the value of which is estimated and which, ultimately, may prove inaccurate. It cannot be forgotten that the actual value of the estate is a relevant consideration in determining the adequacy and propriety of the provision.
Furthermore, the Act, in s 65(2), specifies the ways in which provision may be made, and includes, "in any other manner the Court thinks fit", thereby leaving unconstrained the Court's power as to the nature of the order for provision that may be made.
There was also discussion, during submissions, whether any additional provision should be by way of a loan made from the estate rather than by way of an order for a lump sum absolutely. Although the Plaintiff submitted that he should receive a lump sum absolutely, for reasons to which I shall come, I have concluded that an order making provision of a lump sum, calculated as a percentage of net proceeds of sale of the Austral property, but by way of a loan to the Plaintiff, to be used only to assist him in the purchase of alternative accommodation in his sole name. In addition, the lump sum is to be secured, by registered Mortgage, over any property purchased.
I shall leave it to the parties to formulate the terms of the orders that give effect to the provision to be made and to the terms of any Mortgage evidencing the loan and the terms of repayment.
The parties also agreed that they, and Hong, are the only other eligible persons within the meaning of that term in s 57(1) of the Act. Hong, herself, brought proceedings which are to be dismissed. Thus, I may disregard her interests as an eligible person.
As will be read, the Court is not entitled to disregard the deceased's freedom of testamentary disposition and his disposition to the Defendant as a beneficiary. The Act specifically provides that his interests, as a beneficiary, cannot be disregarded, even though he has not made a claim for a family provision order: s 61.
(There was a dispute about whether Graeme and George, the children of the Plaintiff were eligible. It is unnecessary for me to decide this issue. In any event, like Hong, proceedings have been brought on their behalf, which, also, will be dismissed.)
To the extent necessary, since there will be no order for costs against Hong, in her personal capacity, or as the tutor for Graeme and George, I am satisfied that the settlement of the proceedings, by dismissal, commenced on behalf of each of Graeme and George, for a family provision order out of the estate of the deceased, should be approved pursuant to s 76 of the Civil Procedure Act 2005 (NSW). That order will also be made.

The Witnesses

The Plaintiff, Hong and the Defendant were cross-examined. Although there were not very many facts in issue, it is necessary to mention my findings upon the evidence given by each of them.
It is clear that the Plaintiff suffers from a number of medical issues that have resulted in an impaired ability to answer some of the questions put to him in cross-examination. To the extent that he did do so, I am satisfied that he answered the questions to the best of his ability, and that he did so endeavouring to tell the truth.
For example, the Plaintiff did not prevaricate when shown a copy of a Statutory Declaration sworn by him in 2007, in which he had stated that he and Hong had lived in the Austral property since 13 February 2005, rather than in 2006, as he had asserted in his affidavit: T22.20 - T22.30. He also accepted that by at least 1 July 2013, his business, which involved selling jewellery at a stall at Flemington markets, had ceased to operate: T23.42 - T23.44.
The Plaintiff could not remember whether he had made a loan application for $350,000, following the death of the deceased, but, when shown a copy of the application, accepted that he had done so, but that he and Hong had not taken up the loan that was subsequently offered.
The Plaintiff maintained, more than once, that he left all financial matters to Hong. For example, when asked, if the loan had been obtained, whether the plan was to rent out the Austral property or to live there, he said "I would leave that up to Hong", but then he added: "…now you are saying that, Dennis Morgan around the road did say we could have moved in with him, so it is possible. I am not sure, it is possible": T28.12 - T28.16.
The Plaintiff also said that "I don't handle the money because I can't handle it, I spend too much and if it is in my pocket I spend it, so my wife looks after all the money": T31.21 - T31.22. He also said that he did not handle the bank account, although it was in his name, and as he put it, at T33.09 - T33.21, and again, at T34.04 - T34.11: "…you can question me all day on the St George accounts, I haven't got a clue what goes in, what goes out, my wife handles it. So I don't even look at statements, she has the card on her, I don't have the card. I haven't got a clue about the accounts. Q. So, whatever goes in you don't know about? A. Yep. Q. Whatever comes out you don't know about? A. I don't worry about it, I don't know. Q. You don't know about dates or amounts or purposes? A. That's right. … Q. Does your wife handle all the expenses and the running of the household? A. Yes. Q. Therefore it's [of] no use me asking you about petrol, telephone, health insurance, school or anything? A. That's correct. Q. If I was to ask you, you know nothing? A. That's correct."
The Plaintiff also gave evidence about his concern for the future. He said, in cross-examination, at T36.04 - T36.33: "Q. … Have you made any investigations about living out of Sydney if the Austral house has to be sold? A. We are looking into it, yes. Q. You've got no objection to living outside of Sydney if appropriate housing can be found. Correct? A. No. I have a big worry about it. My mind is not good at the moment. It's going to get worse. My sugar goes up and down. If I have a hypo in the street, people take me home, people know who I am. I have wandered off before. That area, I don't - I've seen people with dementia, how they go, and I want to stay because I know the area and I know the place. Q. But have you made any investigations about living in any of the large country towns in New South Wales? A. We've looked at houses on telephone. Q. For instance, there are coastal towns, coastal cities that you could easily live in, in New South Wales, with access to all the right schools and the right medical services. Correct? A. I don't know. I've got services here. One fella comes and sees me every week. Used to go out on outings. I know him. I'm comfortable with him. I don't know. Q. But would it be fair to say that whilst you're comfortable where you are, you haven't really investigated anywhere else to see what the services are in other places? A. Yeah. Q. You're agreeing with me? A. Yeah."
Regrettably, I found Hong to be an unimpressive witness. In particular, I found that some of her evidence about the Plaintiff's, and her, financial and material circumstances, as disclosed by documents in Ex. 2, lacked credibility. Overall, I came to the view that she was far less forthcoming than she ought to have been, and, at times, I consider that she was not being frank with the Court. I also thought that she has been the driving force, on behalf of the Plaintiff, in the proceedings.
At the start of the cross-examination, she confirmed that she had read each of her affidavits and had confirmed the contents to be true and correct before she signed each of them: T39.37 - T39.47.
She disputed that she and the Plaintiff had moved into the Austral property in 2005, despite the fact that a copy of their Marriage Certificate (Ex.1) had disclosed the place of residence, on the day of their marriage, as the Austral property: T41.22 - T41.26.
In addition, she admitted that she had provided information, and documents, to the Bank, to enable a loan to be offered to the Plaintiff and her; that she had signed application forms, or other forms, verifying the information that had been provided; and that she had read all of the forms before she signed them. She must have known that at least some of the information provided to the Bank, to put it neutrally, was inaccurate.
For example, in the application form to the Bank, it was stated that the Plaintiff and she had superannuation of $45,000, when clearly that was not the case, as she admitted: T44.37 - T44.38. When this part of the application form was shown to her, she stated that "I never give the proof of the superannuation. They asked me the paperwork they want to put down". She denied that she had given that information and seemed to assert that, perhaps, that part of the application form had been completed after she and the Plaintiff had signed the original, stating that "There are a lot of handwriting in here and [S]ome … I don't see I don't see I didn't declare them that in there".
No statement to that effect had found its way into any of her affidavits. Nor had there been any suggestion in answers given earlier in the cross-examination, that some of the information on the application form provided to the Bank had been incorrect or that it had not been written on the document when she signed it.
Hong also stated that despite the statement in the application form referring to "Personal effects" of $45,000, she did not know what the reference to "Personal effects" meant: T46.03 - T46.12.
Hong admitted that in 2015, she had been doing all the banking for the family, including ATM transactions: T47.44 - T48.08. She was not able to explain, in a coherent way, quite a few of the transactions shown on the Plaintiff's, and on her, bank statements with the St George Bank, including a number of deposits and withdrawals, which transactions were summarised and tendered as part of Ex. 2/2A and 2B and Ex. 3A and 3B.
She was also unable to explain how, despite documents relating to payments made during the Plaintiff's and also her, employment with "Ian's Austral Hardware", which disclosed the gross amount apparently paid for the year up to 19 June 2015, of $16,830 and $12,577 respectively (Ex. 2/9-12), her tax return for the year ending 30 June 2015, revealed her income from the hardware store to be $2,220, whilst the Plaintiff's tax return for the same year revealed his income to be $990.
Remarkably, Hong stated that the income statements from Ian's Austral Hardware had not been provided to the Bank by her, and that she had not received the statements from Mr Ian Willmington, the owner of the Austral Hardware Store, in the first place. She said at T70.00 - T70.16 and T70.36 - T70.37: "…There is a letter from Mr Willmington at page 20, there is a letter from Mr Willmington and at page 11 and 12 are two pay slips and that is what you gave the mortgage broker, correct? A. This what I give to mortgage, yes. Q. Just to make it clear, you said you gave the mortgage broker a letter from Mr Willmington and two pay slips? A. Yes. Q. And I have shown you in the book a letter from Mr Willmington and two pay slips? A. I admit these two letters, but I don't admitted the pay slip. Q. They could have only got them from you, correct? A. Not this one. … Q. You can't explain that, can you? A. Because this pay slip not the one I provide to the mortgage broker."
However, when, Mr Willmington, who was one of the Plaintiff's witnesses, was asked about each of the documents, all of which were shown to him, and which he agreed were pay slips prepared by his wife for the business, he stated at T85.34 - T85.47: "Q. All right. Do you remember Mr and Mrs Charlwood Mark and Hong asking you for some documents to assist with a loan application in about May or June 2015, a couple of years ago? A. Vaguely. Q. Do you remember giving them anything? A. I think if they asked me I would have given them to them. Q. Do you remember if you had any dealings directly with the ANZ Bank or the ANZ broker or anyone like that? A. No. Q. You sure of that? A. Positive."
(In relation to the last answer, I am satisfied, having heard the evidence, that Mr Willmington was "positive" that he had not had "any dealings directly with the ANZ Bank, or the ANZ broker, or anyone like that", rather than being "positive" that he did not remember whether he had done so.)
Accordingly, I am satisfied, on the balance of probabilities, that each of these pay slips was given to the Plaintiff, or to Hong, and that it was Hong who gave them, together with the letters which she admitted she had provided, to the Bank, in support of the application for the loan. In this respect, I do not accept Hong's evidence.
Hong was shown a part of the bank statements that revealed the purchase of pearls on 1 September 2015, for $3,553: T55.20 - T55.40. She accepted that the pearls had been purchased, but denied that they had been used for the jewellery business conducted by the Plaintiff, stating that the pearls had been purchased to be made into jewellery for her. She then stated that the pearls were "in the drawer": T56.01 - T56.14.
Despite the matter not concluding within the day on which Hong was cross-examined, the pearls were not produced for inspection by the Defendant or the Court on the following day.
In some cases, the omission to include property with a value of $3,553, might not be very significant. However, in a case in which it was asserted that the Plaintiff's, and Hong's, only assets were a car and very modest savings, with a total estimated value of about $15,000, the omission is more significant.
Even so, as senior counsel for the Defendant conceded in his written submissions: "There is no doubt that Mark is in significant need. He has no assets apart from his 2013 motor vehicle and very modest savings. He receives a Disability Pension. That situation may be unlikely to change."
I am satisfied, having seen and heard Hong, that her evidence, overall, was not reliable, and that I should not accept it, except where it is not seriously in dispute, or unless it is supported by documents the veracity of which is accepted.

Claim for a Family Provision Order

I shall next discuss the statutory scheme and what I have described as general principles. I have discussed these matters in many cases. For the benefit of the parties, I shall refer to part of what I have referred to. Where necessary, I shall add other relevant principles.

Eligibility

The key provision of the Act is s 59. The Court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1): s 59(1)(a).
There is no dispute that, as a child of the deceased, the Plaintiff is an eligible person within the meaning of that term in s 57(1)(c) of the Act. The language of the relevant sub-section is expressive of the person's status, as well as his, or her, relationship to the deceased. There is no age limit placed on an eligible person making an application.

Whether adequate provision for the proper maintenance, education or advancement in life of the Plaintiff has not been made provision in Will

Since eligibility is established, the Court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased: s 59(1)(c). 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": s 59(2).
"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34] (Basten JA, with Allsopp P and Ipp JA agreeing), that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".
Whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, education or advancement in life of an applicant will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant, or applicants, on the one hand, and the applicant's "needs" that cannot be met from his, or her, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573 at 575 (Kirby P).
Although the existence, or absence, of "needs" which the applicant 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, education and advancement in life: Singer v Berghouse (1994) 181 CLR 201 at 227 (Gaudron J); [1994] HCA 40.
"Need", of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45]. It is different from "want" and does not simply mean "demand" or "desire". The latent difference between these 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] 1 WLR 1808; [2008] UKHL 52 at [54]: "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'."
In Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86 at [41], David J added: "'Need' is not so synonymous with 'want' such that the two are interchangeable."
As Callinan and Heydon JJ emphasised in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [122], the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined.
The Act does not stipulate automatic provision. The Court has a discretion even if satisfied that adequate provision for the proper maintenance, education or advancement in life of the Plaintiff has not been made in the Will of the deceased.
Section 60 of the Act provides: "(1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the 'applicant') is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the Court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person-the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
Thus, it can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [37], as a "multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the Court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order.
In Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392, Basten JA wrote, at [7]: "Section 60 of the Succession Act spells out the matters which the court may have regard to in determining whether the claimant 'is an eligible person' and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the 'nature of any such order', which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b)."
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 each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance, and none differentiate, in their application, between classes of eligible persons. Similarly, there is no distinction based on gender or age.
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).
Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the time of the deceased's death, or subsequently.
Section 65(1) of the Act requires the family provision order to specify: 1. the person or persons for whom provision is to be made, and 2. the amount and nature of the provision, and 3. 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 4. any conditions, restrictions or limitations imposed by the Court.
The Court may order provision to be made in a variety of ways, including a lump sum, a periodic sum, or, as previously stated, "in any other manner the Court thinks fit" (s 65(2) of the Act). Any conditions, restrictions or limitations imposed by the Court must also be specified.
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).
Unless the Court orders otherwise, any family provision order under the Act takes effect as if it were a codicil to the will (s 72(1)(a) 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.
There are some general principles that should be identified, for the benefit of the parties.
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: Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9, at 19 (Dixon CJ); [1962] HCA 19; McKenzie v Topp [2004] VSC 90 at [63] (Nettle J).
In Stott v Cook (1960) 33 ALJR 447 at 453-4, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged."
Of the freedom of testamentary disposition, in Grey v Harrison [1997] 2 VR 359, Callaway JA said, 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 Vigolo v Bostin at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained: "It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification."
In Goodsell v Wellington [2011] NSWSC 1232 at [108], I also noted that: "Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated."
As Pembroke J wrote, in Wilcox v Wilcox [2012] NSWSC 1138 at [23]: "The court does not simply ride roughshod over the testator's intentions… The court's power to make an award is limited. The purpose of the discretionary power under Section 59(1) is to redress circumstances where 'adequate provision' has not been made for the 'proper maintenance, education or advancement in life' of the claimant. The adjectives 'adequate' and 'proper' are words of circumspection."
White J (as his Honour then was) referred to these principles in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127]: "In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed: Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will."
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 (Dixon CJ); Walker v Walker (Supreme Court (NSW), 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.
In Henry v Hancock [2016] NSWSC 71 at [69], Brereton J wrote: "Formerly, the yardstick which was applied was that of the wise and just testator. Nowadays, it is fashionable to couch it in terms of "community standards", although I am not at all sure that this is any different from the moral obligation of a wise and just testator and, as has not infrequently been pointed out, there is no ascertainable external community standard to guide the decision, which involves a broad evaluative judgment unconstrained by preconceptions and predispositions, and affording due respect to the judgment of a capable testator who appears to have duly considered the claims on his or her testamentary bounty - subject to the qualification that the court's determination is made having regard to the circumstances at the time of the hearing, rather than at the time of the testator's will or death."
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] (Windeyer J). 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] (White J).
In considering the Plaintiff's claim, being a claim for provision by an adult child, the following principles are also useful to remember: 1. The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. 2. It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, "ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, child up in a position where she or he can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation": Taylor v Farrugia [2009] NSWSC 801 at [57] (Brereton J); McGrath v Eves [2005] NSWSC 1006 at [71] (Gzell J); Kohari v Snow [2013] NSWSC 452 at [121] (Hallen J); Salmon v Osmond [2015] NSWCA 42 at [109] (Beazley P, with whom McColl and Gleeson JJA agreed). 3. Generally, also, "the community does not expect a parent to look after his or her children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute": Taylor v Farrugia at [58] (Brereton J). 4. 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 [1966] VR 404 at 411 (Adam J); Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 148 (Gibbs J); [1979] HCA 2; Goodman v Windeyer (1980) 144 CLR 490 at 498 (Gibbs J), 505 (Murphy J); [1980] HCA 31. 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 (Adam J); Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537 (Glass JA); Mayfield v Lloyd-Williams at [86] (White J). 5. There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82; Kleinig v Neal (No 2) at 545 (Holland J); Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37 at 45 (Nicholson J); Taylor v Farrugia at [58] (Brereton J). 6. The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]-[182] (Templeman J); Crossman v Riedel [2004] ACTSC 127 at [49] (Gray J). Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43] (Wheeler J). 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] (Sanderson M). 7. The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd at 149 (Gibbs J).
I set out a very similar statement of the principles in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [111], in relation to a claim by a child. Those principles were referred to, with no apparent disapproval (although in that appeal there was no challenge to the correctness of those principles), relatively recently, in Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297 at [62] (Sackville AJA, with whom Macfarlan and Ward JJA agreed).
In Foley v Ellis [2008] NSWCA 288 at [88], Sackville AJA 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". The only other claimant on the bounty of the deceased in the present case is the Defendant.
Even though not an applicant for provision, the Defendant does not have to prove an entitlement to the provision made for him in the deceased's Will, or otherwise justify such provision.

Qualifications on "Principles"

As long ago as 1980, in White v Barron (1980) 144 CLR 431 at 440; [1980] HCA 14, Stephen J wrote: "[T]his jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application."
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" or "general principles" to be elevated into rules of law, propositions of universal application, or rigid formulae. They may give some assistance and provide some guidance.
Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, fetter the Court's discretionary power.
It is necessary for the Court, in each case, after having 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 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 have been stressed in Chapple v Wilcox at [18]-[20] and at [66]-[67] (Basten, Barrett and Gleeson JJA); and in Burke v Burke [2015] NSWCA 195 at [84] - [85] (Ward JA, with whom Meagher and Emmett JJA agreed). They must be remembered.

Additional Facts

I next set out some more facts by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come in relation to areas of dispute between the parties. 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 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

The Plaintiff is a child of the deceased. He grew up living with the deceased and other family members. He left school at the age of 15 years and began working as a trainee auctioneer. On a date not disclosed, but upon the dissolution of his first marriage, he moved to the Austral property and lived with his parents. He seems to have moved out for a few months in about 2000, but then returned to live with the deceased at the Austral property.
I have earlier referred to the statutory declaration made by the Plaintiff in which he had stated when he and Hong commenced living with the deceased. In any event, it is clear that following the deceased's hospitalisation, in March 2006, they were living in the Austral home. They have lived there since then, firstly with Graeme, and then also with George.
I accept that Hong bore the greatest part of looking after the deceased. She says, and I accept, that she cooked for the family, including the deceased, even though she worked part time. When the deceased's health deteriorated, the Plaintiff and Hong took even greater responsibility in looking after him. The Plaintiff would have to give the deceased enemas and would change his colostomy bag. Later, he would have to wash the deceased.
Hong also did his washing and cleaned the house. Both the Plaintiff and Hong drove the deceased to medical appointments, to the hospital and to run general errands. Hong would organise his daily medication.
For his part, the deceased is said to have "looked after most of the household expenses. He paid most of the household expenses in cash", although "some of the bills came out of his bank account on a direct debit".
I am satisfied that the deceased and the Plaintiff had a close family relationship throughout the Plaintiff's life until the deceased's death.

(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 words "obligations" or "responsibilities" to which the sub-section refers to in the Act. Each word is to be understood in its ordinary, grammatical meaning as the condition of being morally or legally bound.
The responsibility of a testator was expressed by Lord Romer in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478 - 479: "Their Lordships agree that in every case the Court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father. This no doubt is what the learned judge meant by a just, but not a loving, husband or father."
Yet, the Act does not expressly refer to, or identify, any "moral duty". However, what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities to not only the applicant, but also to the beneficiary or beneficiaries. There is a balancing of potentially competing obligations.
Leaving aside any obligation, or responsibility, arising as a result of the relationship as parent and child, the deceased did not have any legal obligation to either of his children, once they became adults, imposed upon him by statute or common law.
Yet, an obligation or responsibility to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child. In Flathaug v Weaver [2003] NZFLR 730 at [32] (Rodney Hansen J); (2003) 22 FRNZ 1035; the origin of the obligation which underpins the recognition of the duty owed by a parent to a child in the equivalent Act in New Zealand was put in this way: "The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives."
It should also be remembered that "[a]lthough the relationship of parent and child is important and carries with it a[n]… obligation 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] (Randerson J). The boundaries of that obligation or responsibility are not amenable to rigid definition. Yet, there is no "presumptive testamentary entitlement of an offspring": Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269 at [73] (Basten, Macfarlan and Ward JJA).
The size of the deceased's estate is also relevant in determining the extent of the obligation or responsibility.

(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

The Act does not mandate separate approaches depending upon the nature and extent of the deceased's estate. Without deducting the costs of the proceedings, the estate is of a reasonable value (about $1 million). It will be reduced, by the incidence of costs. However, as stated earlier, the size of the estate is but one factor that may be taken into account in determining whether to make a family provision order and the nature of any such order.

(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

The Plaintiff left school at the age of 15 years. In 1999, he was involved in a very serious car accident and it appears, from that time, he has not been in regular, or full-time, employment.
The Plaintiff did not set out his financial and material circumstances other than in an affidavit sworn on 22 June 2016. Hong, however, included information about the family's financial and material circumstances to which I shall refer.
As stated, Hong was not a very impressive witness. However, there cannot be any real dispute that the Plaintiff has very little by way of available assets. The major asset is a car (about $14,000); the pearls to which reference has been made ($3,553); and some cash in bank (about $500). They have virtually no superannuation.
Other than the costs of the proceedings, the Plaintiff does not suggest that he, or Hong, have any liabilities.
The Plaintiff has little, if any, remaining earning capacity and suffers from various medical conditions to which I shall refer.
Senior counsel for the Defendant stated at the commencement of the submissions that "I'm not going to say that in respect of the Plaintiff that he has any particular earning capacity or that he will go off social security at any particular time in the future. I think he said he can do a little thing, but he will stay on social security". Nor did the Defendant challenge the evidence going to the medical conditions of either the Plaintiff or of Hong.
The Plaintiff and Hong, between them, receive $2,068, per fortnight, by way of pensions ($1,149 and $919 respectively). The combined income is sufficient to meet their expenses (either as set out, or as reduced as a result of the cross-examination of Hong, such as by reference to payment for a motor vehicle registration and licences (Ex. 3)).
Of course, the Plaintiff and Hong have to raise two children. In about 2010, Graeme was diagnosed with high functioning autism. He excels at maths but he can barely put sentences together in writing, cannot express his feelings, and he struggles with basic tasks, such as getting dressed, or unlocking the door to get in the house.
In a report dated 10 May 2013, obtained "for a psychometric assessment by Aging Disability and Home Care (ADHC)…in order to assist with determining [Graeme's] eligibility to access support through their service", Graeme was shown to have "overall thinking and reasoning abilities …in the High Average to Superior range" but had "significant weakness in verbal comprehension tasks that required him to answer verbal questions about social situations and common sense concepts".
In a subsequent report, dated 20 October 2015, Graeme was found to be "currently achieving at a level that is below what would be expected given his overall cognitive ability…". It was noted that he "may benefit from further Occupational Therapy and/or an assessment to assist with handwriting and motor control planning, and/or possible sensory factors that may be contributing to his difficulties" and "from a speech and language assessment and/or intervention from a speech therapist to target his writing difficulties and phonemic awareness". It was noted that he would benefit from "taking part in extracurricular activities that he enjoys, such as Karate, and similar, in order to foster wellbeing".
Following the determination of these proceedings, and the sale of the Austral property, the Plaintiff will have a need for accommodation in which to house himself and his family. (It should be noted that it was accepted that neither he, nor Hong, had ever been the owner of his, or her, own home.) He has no capital fund for exigencies of life.
The Plaintiff writes: "I am worried about my health when I have a hypoglycaemic attack. On a good day I am fine but on a bad day I get stressed and have attacks and can lose consciousness. I also start to sweat when the attack is coming on and I can become disorientated. I have a lot of issues regulating my insulin with meals. Sometimes I forget I have taken my insulin and take it again which means that we have to call an ambulance. In the neighbourhood I am better oriented and I know the neighbours. I trust them to help me if I have an attack and they see that I am acting strangely. They know to call an ambulance and Hong. The neighbours who I trust to help me include Luu and Dawn Burley, and Leslie and Erica Clarke. The ambulances officers are also familiar with me and know my address. If I had to live somewhere else I worry about getting lost or not having anyone to help me when I have an attack."
There was no evidence about any property that the Plaintiff had actually inspected which might be suitable accommodation for him and his family. There was, however, some evidence that he and Hong had looked at property advertisements on his telephone.
There can be no doubt that an assessment of needs, particularly where it is directed to the nature and cost of accommodation required by an applicant, must have a sound evidentiary foundation.
Counsel for the Plaintiff relied upon the Valuation Report dated 29 May 2017 which stated that the estimate of value per m2 based on the evidence relating to the Austral property would be between about $822 and about $1,046. He also relied upon the section of the Report described as "Sales Evidence", but limited that evidence to 3 bedroom homes, with an estimate of about 600m2 to 650m2 (about two-thirds of the estimated area of the Austral property). Despite the estimates, counsel for the Plaintiff submitted that the cost of alternative accommodation would be between about $600,000 and $650,000.
(There was an attempt by the Defendant to tender evidence of the purchase price of a home in Coffs Harbour, but the tender was not pressed, it being accepted, by both parties, that the cost of purchasing alternative accommodation could be more, or less, than the amount the Plaintiff will receive by way of provision under the deceased's Will depending upon, amongst other things, where that accommodation was situated: T78.30 - T79.17; T80.45 - T81.16.)
The Defendant gave evidence about his, and his wife's, financial and material resources. They own two properties, one described as their "Principal Place of Residence" which is a four bedroom property close to the beach ($750,000), which is subject to a mortgage ($77,461), and the other an "Investment Property", being a hobby farm of 5 acres, at Catterick, near Perth ($450,000 disclosed but currently said to be less), which is also subject to a mortgage ($526,000). They also have household goods and furniture ($12,000), a car ($11,000) and the amount of $495,000 in what is described as an "Offset bank account".
The Defendant has a scooter and ute ($4,200) and an amount of $275 in a family trust. At the hearing, he provided an updated figure for the family trust of $1,578: T98.30. He does not disclose any personal liabilities.
The Defendant currently receives a Commonwealth superannuation pension of $2,644 per fortnight net, which equates to an annual income of $68,758: Ex. A; T101.39 - T101.45. It may increase every six months.
The Defendant gave evidence that he and his wife are "partially separated", with him now living, for most of the time, in the investment property. They have discussed obtaining a divorce order, which is "more likely than not", following which there is likely to be a separation of the matrimonial assets equally between them: T114 - T115. (They hope to attend counselling however to try to repair their marriage.)
He stated that his health continues to be poor; that he suffers from depression, high blood pressure and ongoing back pain.
He stated that he would require a new residence if he and his wife do divorce and hopes to use the proceeds of his share of the Austral property to obtain such alternative accommodation. He also considers that he will need a new car ($35,000) and wishes to take a trip to Europe ($30,000). He says that he will rely upon the entitlement from the deceased's estate to fund his living expenses and his retirement. He does not, despite his age, have the benefit of Government assistance, such as a health care card.
I have earlier referred to the terms of the deceased's Will and the Defendant's entitlement.
The Defendant's wife has applied for an invalidity pension through her superannuation fund, of $20,000 per year, until she turns 60 in about two years. Thereafter, she should receive about $9,487 per year by way of superannuation pension. Due to the nature of her disability, she will be able to access her superannuation earlier than she otherwise might be entitled to.
Their expenditure of approximately $10,300 per month (including mortgage repayments) substantially exceeds what is said to be their income. (How the surplus of expenditure over income was met was not explained.)

(e) if the applicant is cohabiting with another person - the financial circumstances of the other person

Hong does not have any property of her own of any significant value. I have referred to her income. She does have a greater earning capacity than the Plaintiff, but it is to be remembered that she is the primary caretaker of not only Graeme and George, but also of the Plaintiff.

(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

The medical evidence relating to the Plaintiff, which was not the subject of any real dispute, reveals: "His medical history includes long-standing Type 1 Diabetes Mellitus on insulin, hypertension, hypothyroidism, osteoporosis with previous multiple fractures, osteoarthritis, bilateral knee replacement, obstructive sleep apnoea, chronic pain, previous intra-abdominal surgery, and a motor vehicle accident in 1999 resulting in multiple fractures, carpal tunnel syndrome, ruptured liver and spleen and collapsed lung. He has a history of head injury at age 19 when he fell off a horse and lost consciousness for four hours with a reported post-traumatic amnesia of three days. In addition, he sustained a previous head injury at age 13 when the car he was travelling in hit a guide post on the side of the road and left him unconscious for some time. Current medications include amiodipine/valsartan 10/160mg.daily, lantus 100 units daily, Humalog 100 units daily, pregabalin 75mgms daily, tramadol SR 200 mgms.bd, thyroxine 200mcg daily, and sertraline 50mg daily. Mr Charlwood was referred for neuropsychological assessment to determine his cognitive functioning and assist in diagnosis. Investigations including MRI of brain and Ceretec cerebral perfusion study were performed. MRI performed on 17 November 2015 revealed prominence of the ventricular system and cerebellar sulci with global atrophic changes. There were also scattered age related deep white matter ischaemic changes. Ceretec cerebral perfusion study on 4 May 2016 was reported to be consistent with vascular disease, multiple head injuries, and depression. In addition, early Alzheimer's disease was not excluded. … Mr Charlwood was estimated to be of average premorbid intellectual ability. On assessment, he was oriented in place and generally oriented in time (he knew the year but not the date). Immediate memory was inefficient and unreliable as was his ability to manipulate material in working memory indicating fragility of attentional processes. Routine mental operations were performed well on the simpler tasks (e.g., reciting the days of the week backwards) but deteriorated on more complex tasks requiring mental tracking. Speed of information processing was visibly slowed when the task at hand became more complex. … Mr Charlwood's neuropsychological profile reveals reduced performances in learning and memory, particularly for complex verbal and visuospatial information. In addition, his attention and working memory is inefficient and unreliable, and he becomes overwhelmed when the task at hand (or events in his daily life) become slightly complex. For example, he is slow when trying to work through problems of any complexity, he often misplaces things, 'forgets to remember' things and gets easily muddled when trying to keep track of two or more ideas simultaneously. These problems are confirmed by his wife who reports that he repeatedly asks the same question even though he has been given the answer on each occasion (for example, "where are we going today"), and when told that he needs to take his lunch with him (due to poorly controlled diabetes), he will forget that he is going out and will put the food on a plate rather than in a container. Behaviourally, Mr Charlwood exhibits poor frustration tolerance and difficulties inhibiting his immediate impulses in reaction to perceived outside pressure. This was observed by members of the medical staff in the hospital setting, and is indicative of frontal systems disturbance. The profile is consistent with vascular cognitive impairment coupled with the residual effects of multiple traumatic brain injuries. Other differential diagnoses which implicate Alzheimer's disease (as noted on SPECT cerebral perfusion study) cannot be completely ruled out and will require a repeat study in 12 months to confirm the progression of these perfusion defects. On a more practical level, the test results indicate that Mr Charlwood is unable to perform successfully in a work situation. His deficits in learning and memory will cause him serious difficulties in many situations and his reduced attentional capacity may cause him to make careless or unexpected errors. In addition, his reduced frustration tolerance and poor impulse control may have deleterious consequences."
The Plaintiff, not unnaturally, has been suffering ongoing stress as a result of these legal proceedings. He has been diagnosed as suffering from depression. There is the suggestion that he may receive National Disability Insurance Scheme (NDIS) assistance although what he may be likely to receive is not clear. (An application for NDIS assistance earlier in 2017 was declined and a review has been sought.)
Although not specifically relevant under this heading, it is to be noted that in 2016, Hong was treated for "her high level of anxiety and depression following a very complex family situation". Some of her anxiety relates "to the ownership of the house she is living in with her husband and children".

(g) the age of the applicant when the application is being considered

The Plaintiff is 59 years old (Hong is 37 years old).

(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

The Plaintiff, and Hong, each made a significant contribution to the welfare of the deceased. I have set out the contribution of each earlier. In addition, in the last 3 years, the Plaintiff made one gift to the deceased in an amount of more than $1,000, being the cost of a hospital bed that Hong and he purchased in about 2015 for $1,800.
The Defendant's wife, Wendy, gave evidence by affidavit, on which she was not cross-examined, about events in 2012 and then again, at about the time of the deceased's 90th birthday. I do not consider that these events, which do not paint the Plaintiff in the best light, impact in any significant way upon the contribution made by the Plaintiff and Hong, overall, to the deceased.
(There is evidence that the Plaintiff has been at risk of impulsive actions and emotional dysregulation when stressed due to reduced frustration tolerance from his cognitive disorder.)

(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

I am satisfied that the deceased made significant provision for the Plaintiff and Hong from at least 2005 or 2006, from which time they, and subsequently, with their children, have lived rent free in the Austral property. I have noted, also, that the family has continued to do so since the death of the deceased. This has provided the Plaintiff with a significant additional benefit.
I have also referred to the fact that the deceased made a significant financial contribution to the household expenses, which included the expenses of the Plaintiff and his family. It appears that the Plaintiff did not contribute very much in this regard.
It must also not be forgotten that the Plaintiff receives one half of the deceased's estate.

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

The statutory language permits the Court to take into account the deceased's expression of testamentary intentions, even though not incorporated in a properly executed Will.
As in many cases under the Act, there is evidence given by each side as to what the deceased said about his testamentary intentions. Of course, the best evidence of those intentions is his last Will.
Whilst there is evidence that the deceased told the Plaintiff and Hong that he wanted to ensure that the Plaintiff had the Austral property, the Defendant and his wife each gave evidence that the deceased told each of them that he did not want to change his Will. Neither was cross-examined on the topic.
Ms Jayne Foster, who was a witness called by the Plaintiff, and who was cross-examined, maintained that not long before his death, the deceased had said to her "Hong and Mark will be set up for life after I pass away. They will have the house".
Another witness, Ms Thi Ly Tran, called by the Plaintiff, and who was cross-examined, maintained that the deceased had told her that the Plaintiff and Hong looked after him very well; did everything for him and took care of everything in the house; and that "I want Mark, Hong and the children to have the house".
Mr Willmington, who was also cross-examined, refers to a conversation in which the deceased expressed his gratitude for all that the Plaintiff and Hong had done for him and that "I can never repay them. I want to leave them my house as a gift. Graeme is pretty well off and says he does not need it".
Finally, Mr Ronald White, another witness called by the Plaintiff, but who was not cross-examined, stated that he had been told by the deceased that "I am so happy with Mark and Hong and the boys being here. The house is theirs". And on another occasion that the deceased did not want them to leave.
There is no reason to disbelieve the evidence of these witnesses, none of whom is a party to the proceedings.

(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

The Plaintiff asserts that the deceased "assumed responsibility for providing a home for my family (for which we did not pay rent, because we could not afford to) and also paying many of the household expenses…". I am satisfied that the Plaintiff was being maintained, at least partly, by the deceased before the deceased's death.

(l) whether any other person is liable to support the applicant

Apart from the Commonwealth government's responsibility to continue to provide him with a Disability Pension, Hong has an obligation, in law, to support him "to the extent that [she] is reasonably able to do so, if, and only if, [he] is unable to support [himself] adequately: s 72(1) Family Law Act 1975 (Cth).
I have earlier referred to NDIS support that the Plaintiff may be entitled to receive. Hong is receiving a carer's pension.

(m) the character and conduct of the applicant before and after the date of the death of the deceased person

I am satisfied that there is nothing in the character and conduct of the Plaintiff that is otherwise relevant.

(n) the conduct of any other person before and after the date of the death of the deceased person

I have referred to Hong's conduct before, and after, the date of the death of the deceased. I should also mention that each of Graeme and George, was a loving grandchild of the deceased. In this way, they, too, contributed to the deceased's welfare.
In relation to the Defendant, I am satisfied that there is nothing in his conduct that is otherwise relevant. Overall, whilst his relationship with the deceased may not have been as close as was the Plaintiff's with the deceased, I am satisfied that he had a reasonably close relationship with the deceased. The fact that the deceased did not alter his Will suggests that to be the case.

(o) any relevant Aboriginal or Torres Strait Islander customary law

This factor is not applicable.

(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

There is no other matter that I consider relevant.

The Submissions

The Plaintiff's written Outline of Submissions included the following: "The … Plaintiff ought to be awarded further provision by way of the estate property. Alternatively, the … Plaintiff ought to be awarded some further provision."
However, at the hearing, counsel for the Plaintiff submitted that, even if Hong's evidence was found to be unreliable, the Court should still consider "the big picture, the income, the asset in the estate, whatever that might be, and the Court should not assume that there is any asset, apart from the pearls, that is in existence which might be available for the Plaintiff's use": T126.25 - T126.32.
Counsel for the Plaintiff seemed to accept that the evidence did not reveal that deposits into the Plaintiff's account were explained by withdrawals from Hong's bank account. However, he submitted "that the sins of the witness should not be visited upon … the Plaintiff".
I do not accept this submission since the Plaintiff made it clear that it was Hong who knew all about the financial circumstances and that he had left it to her to disclose those to the Court. Yet, I am prepared to accept that the Court must look at the whole picture to determine whether, even with the criticisms made of Hong's evidence, the Court is satisfied that the current financial and material circumstances of the Plaintiff have been revealed.
At the hearing, counsel for the Plaintiff submitted that an amount of between about $550,000 and $600,000 would be required to enable the purchase of alternative accommodation based upon the estimate of costs per square metre: T148.03 - T148.19. This would require an amount of $150,000 to $200,000 in addition to the estimate of the Plaintiff's entitlement under the Will.
Counsel submitted that this was a case in which "The circumstances of the Plaintiff himself are most unusual. The extraordinary level of his physical and mental disabilities require that his needs should be satisfied by a very high level of security of tenure": T130.36 - T130.39.
Counsel accepted that there was no evidence of the ability (or inability of the Plaintiff) to raise a reverse mortgage and "that reverse mortgages are a common feature of the landscape".
It was also submitted that the Plaintiff needed a capital sum for exigencies of life.
The Defendant's written submissions included: "In all the circumstances, the equal division of his relatively modest estate by the deceased was the appropriate course. The provision made for the first plaintiff, both during the lifetime and after the death of the deceased, was proper and adequate. In those circumstances, the summons of the first plaintiff (along with all other plaintiffs) should be dismissed."
Senior counsel did not make a different submission at the hearing. He maintained that even if the costs of the proceedings were deducted from the estate, the amount of about $400,000 would be sufficient to enable the Plaintiff to purchase alternative accommodation, although, not necessarily in Austral, and that "there are adequate places all over New South Wales that the plaintiff(s) could buy": T139.32 - T139.37.
Senior counsel also submitted at T140.41 - T141.1: "The second reason why the summons should be dismissed is the Court will not be satisfied that there has been a full and frank disclosure of the financial circumstances. Now my friend, in one sense, refers to the onus by saying that [the Defendant] couldn't point to any other assets. That is not the expectation the Court has of the plaintiff and the evidence he brings. It is relevant, the question of credibility of the plaintiff's wife, because the plaintiff puts to the Court, "There is an economic unit and these are the financial circumstances of this economic unit, and I rely on my wife to prove those circumstances." The fact is whether it be the bank account, the tax returns or the expenditure, your Honour would not be satisfied that the plaintiff has been full and frank in the presentation of his evidence."
Naturally, senior counsel pointed to the matters to which reference has been made above in regard to Hong's evidence including her overestimating of the family's expenses on which she was challenged (e.g., the costs of registration of licence fee, the registration of the car, the library and computer fees, and some dental and optometrist expenses) which came to a reduction of about $100 per week, thereby reducing the weekly expenses to about $935.
Senior counsel then referred to Smith v Johnson in which the New South Wales Court of Appeal allowed an appeal on the basis that the evidence had not established a need for a two bedroom apartment and, hence, there was a material error of fact that had vitiated the determination made by the primary judge for the award of provision for the appellant in lieu of that provided under his mother's will, and that the will, in fact, had made adequate provision for his proper maintenance and advancement in life.
I do not find the case to be of the significance suggested. Firstly, the size of the estate in that case, at the date of death, was about $2,337,000. In addition, the trial Judge accepted that the appellant's conduct was responsible for reducing the net value of the estate. Had there been no other litigation, the estate would have been enlarged by about $1,000,000 and the appellant would have received one third of that amount in addition to other distributions under the Will. There was also evidence that that the estate had been depleted by about $183,000, in irrecoverable costs, incurred in pursuing a case against the appellant and in defending a statutory will case brought by him. Furthermore, the appellant had brought on himself his financial difficulties. Also, the appellant was single and had no dependents.
In one particular respect, the reasons for judgement are useful, because Sackville AJA (with whom Macfarlan and Ward JJA agreed) stated, at [67], that: "Just as physical disabilities can and should be taken into account in assessing the needs of a claimant seeking a family provision order, it can hardly be an error to take into account psychiatric disabilities. The evidence amply supported his Honour's findings as to the underlying causes of [the appellant's] behaviour in obsessively pursuing futile litigation."
Senior counsel submitted at T143.31 - T143.36: "Now, in this case there is over $400,000 that everyone accepts is sufficient to buy a house with multiple bedrooms ... That is adequate for this family in circumstances where the family will continue to receive Social Security, their current expenses do not exceed their income and they will have an unencumbered home, which is what they don't have now."
Next senior counsel referred to the benefits received by the Plaintiff and his family during the lifetime of the deceased. For about a decade, they had lived, rent free, in the Austral property, making virtually no financial contribution to the outgoings of that household. But then he added that "And, yes, they took the deceased to various medical providers but … it is not as if they were short of time or they lost income or anything because of that".
That submission does not reveal the true extent of the very significant contributions to the welfare of the deceased made by the Plaintiff, Hong and their children, to which the deceased had mentioned to others.
Finally, senior counsel for the Defendant referred to the competing financial circumstances of the Defendant and how a result that made lump sum provision for the Plaintiff would affect those circumstances.

Determination

Being an "eligible person" is a necessary pre-condition to the Court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. As stated, the 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 no dispute that the proceedings were commenced within the time prescribed by the Act.
The next question, then, is whether making the provision for the Plaintiff that the deceased did bespeaks inadequacy. As previously stated, a precondition to a family provision order being made, the Court must be satisfied that the deceased has not made "adequate provision for the proper maintenance ... or advancement in life of the person in whose favour the order is to be made".
A consideration of the deceased's Will, alone, would not suggest inadequate provision was made for the Plaintiff. The deceased divided his estate equally between his only two children. But, one cannot consider the terms of the deceased's Will on its own. One must consider many other facts. As Basten JA wrote in Chan v Chan at [22], the Court must remember: "A significant set of factors in many cases is that identified as "the financial resources (including earning capacity) and financial needs, both present and future, of the applicant…". However, it is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. The background to any consideration of the appellant's needs required determination of the size of the estate and the claims of others on the beneficence of the testator."
Furthermore, this is not a case of an applicant adult child who has lived quite independently of his, or her, parent, the deceased, for many years, and who is in straitened circumstances. It is a case in which there was a history over many years, and also at different times, of the Plaintiff's dependence on the deceased for financial support, which the deceased provided to him, and to his family, by way of rent free accommodation and board, for many years before his death. Despite not changing his Will, the deceased seemed to realise the significance of that accommodation to the Plaintiff and his family.
Also apposite to the present case, is what Basten JA noted in Chan v Chan, at [21], that "[a] common issue in claims which are unresolved and come to trial is the closeness of the relationship between the testator and a particular family member who seeks provision. That factor was not in dispute in the present case." Similarly, it is not in dispute in this case.
It is clear that when the Austral property is sold, and when the Plaintiff, and his family vacate, his principal need will be for accommodation. Indeed, that was the only significant need advanced (albeit it was submitted that he had a need for a capital sum for exigencies of life).
(The alternative of making just that provision was not advanced, presumably because it was accepted that, without the need for the purchase of alternative accommodation, the need for additional provision was not established and that $408,000 would have been adequate and proper. Had that submission on its own been made, I would have rejected it.)
The terms of the deceased's last Will do not suggest that he considered that it was his moral obligation to provide accommodation for the Plaintiff, by way of the whole of the Austral property being devised to him absolutely. Yet, it is to be remembered that the Will was made about 18 years before the deceased's death, and before the time when the Plaintiff and Hong moved into the home on a permanent and full time basis, and before each had made the contribution to the deceased to which reference has been made.
Closer to the date of his death, in conversation with a number of different people, the deceased, at times, referred to the need for accommodation in which the Plaintiff and his family could live, and seemed to have accepted that the Plaintiff had such a need.
Furthermore, the Plaintiff continues to have financial needs that are compounded by his health difficulties. In addition, he has some responsibility for Hong and their two children, one of whom has a developmental disability. Currently, the family income is sufficient to meet the family expenditure. All of these matters have persuaded me that this Court should intervene by making some additional provision in the event that the Plaintiff wishes to purchase accommodation.
I should mention that this case is also different from my decision in Meres v Meres [2017] NSWSC 285, in which I dismissed the claim by a Plaintiff son who had received half of the deceased's estate under the Will. In that case I wrote at [146] - [147]: "Neither party referred to Phillips v James, in which Basten JA, at [113]-[114], in considering the concept of prevailing community standards in the context of a dispute between siblings, wrote: …there is probably a reasonable level of acceptance for the view that, other things being equal, siblings should be treated broadly equally. Unfortunately, other things rarely are equal. One sibling may have shown devotion and care to the testator over a long period; another may have had minimal contact of any kind during his or her adult life. One sibling may have acted responsibly in relation to his or her own family, another as a wastrel. The latter example highlights a particular difficulty: the responsible sibling (who may have been favoured by the testator) may be better off than the other and less in need than the other who has made nothing of whatever opportunities were available. One approach in the latter case is to say that the wastrel should not expect more, despite being in greater need, than a proportionate share of the estate. In relation to the former case, involving the inattentive or distant sibling, a less than equal share may be thought appropriate."
However, in that case, the deceased had made her last Will just over 6 months before her death and there was nothing to suggest that at the time, the financial and material circumstances of the plaintiff were different from his financial and material circumstances at the date of hearing.
But there were two even more significant differences between that case and this one. The plaintiff did not have responsibility for anyone else. As well, he had inherited an amount of $358,000 from his father's estate to add to the provision made for him by his mother in her Will.
Consistent with prevailing community standards, having considered, amongst other things, the Plaintiff's financial and material resources, his lack of earning capacity, his close relationship with the deceased, and the medical and psychological conditions from which he suffers, taken with the fact that the Defendant, whilst asserting a competing financial claim upon the bounty of the deceased, is in a superior financial position to the Plaintiff, and without any minor dependents, I am satisfied, for the purposes of s 59(1)(c) of the Act, that, at the time when the Court is considering the application, adequate provision for the proper maintenance or advancement in life of the Plaintiff has not been made by the Will of the deceased.
I have, of course considered, whether adequate and proper provision would be met if the Plaintiff and his family lived in alternative accommodation that was rented. Whilst it may be possible that they could do so, I am of the view, because of the Plaintiff's circumstances to which I have referred, that adequate and proper provision requires him to be provided with the stability, and security, that owning his own home would provide.
I then turn to the order for provision, if any, in favour of the Plaintiff that ought to be made. Whilst I accept that the Plaintiff's relationship with the deceased was far closer than that between the deceased and the Defendant, that fact does not create an entitlement to receive a greater portion of the estate by way of a reward for that conduct. Nor do I accept that the Plaintiff should receive the Austral property in its entirety. To provide him with the whole of that property would be to make more than adequate and proper provision and would not enable consideration of the competing claim of the Defendant, who is also a chosen object of the deceased's testamentary bounty.
The difficulty for the Court, then, is that there is no evidence of any searches made by the Plaintiff for alternative accommodation, although there is some evidence of what the costs of such accommodation in, or around, the Austral area may be.
Importantly, in this regard, I also accept the Plaintiff's evidence of wishing to continue to live in the Austral area for the reasons that he gave. As has been referred to, the litigation, which has resulted in the acknowledgement that the Austral property must be sold, has been difficult for all parties, and, in particular, to the Plaintiff, who has medical, psychological and neurological conditions.
It must not be forgotten that the assessment of what constitutes "adequate provision" for the "proper maintenance" of the person seeking provision is to be assessed having regard to the pre-existing conditions of the applicant and not by an entirely objective assessment in monetary terms of assumed needs: Chan v Chan at [33] (Basten JA). Paraphrasing, it is also informed both by the scope of the Plaintiff's dependency upon the deceased (essentially, accommodation in the Austral property), the statements made by the deceased (that he and his family would be able to remain living there), and his expressed desire to remain living in the Austral area, even if not living in the Austral property: Chan v Chan, at [83] - [85] (Payne JA).
Also, as Callinan and Heydon JJ stated in Vigolo v Bostin at [114]: "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."
(So it is not thought that it was not considered, I have remembered that the Plaintiff gave evidence that in the loan application to ANZ there had been reference to renting the Austral property if it was able to be purchased, and living with one of two friends. However, it seems unlikely that in the circumstances, that is what the Plaintiff would now do in relation to any property that was purchased.)
It seems to me that the way in which adequate and proper provision ought to be made for the Plaintiff is by way of a loan from the Defendant's share of the estate, secured by a Mortgage that is registered on any property that the Plaintiff does purchase, which property should be purchased in his sole name.
The amount the subject of the loan should be no more than $150,000 and it should only be borrowed out of the estate (or effectively out of the Defendant's share of the estate), if the Plaintiff does purchase a property for a purchase price of more than the amount he ultimately receives from his share of the proceeds of sale of the Austral property.
By way of example, only, if the purchase price of any property to be purchased is $550,000, and if the Plaintiff's entitlement under the Will is $400,000, then the amount borrowed should be limited to $150,000.
Of course, if the Plaintiff determines that he does not wish to borrow any amount, but move away from the Austral area, and purchase accommodation for the amount that he ultimately receives pursuant to the terms of the deceased's Will, or otherwise does not wish to have a mortgage of any kind registered in the name of the Defendant secured on any property that he might own, he will not be obliged to borrow any amount.
If he chooses to obtain a reverse mortgage, a matter suggested, but about the availability of which there was no evidence, he can do so without the need to look to the Defendant's share of the estate to provide a loan.
The period within which the Plaintiff should inform the Defendant of the details of any property that he wishes to purchase, should be no more than 6 months from the completion of the sale of the Austral property. That amount of time, when added to the time required to obtain vacant possession and sell the Austral property, should be sufficient to enable the Plaintiff to know precisely what amount he will receive as his share of the deceased's estate, will enable him to look for the type of alternative accommodation that he wishes to purchase, and determine its cost.
If the Plaintiff does not do so, within that period, then the Defendant should be at liberty to distribute the whole of the estate in accordance with the terms of the Will. The estate should not have to be tied up for a period longer than that.
The debt secured by the Mortgage should be on terms that it will be repayable on the sale of any property purchased by the Plaintiff, or if the Plaintiff vacates the property purchased, or within 3 months after the death of the Plaintiff, whichever is the earliest.
The interest rate should be agreed by the parties, but if agreement is unable to be reached, should be at the rate prescribed on unpaid legacies by s 84A(3) of the Probate and Administration Act 1898 (NSW), and determined at annual rests and capitalised every 12 months.
In the event that the Plaintiff determines that he does not wish to purchase alternative accommodation, or he does not wish to borrow any amount to do so, in my view, there will be no additional provision made for the Plaintiff out of the estate of the deceased. The amount of about $408,000 (on present estimates) should be sufficient to pay rent for a number of years, as well as providing a capital sum for the exigencies of life, if that is what the Plaintiff chooses to do.
Even if the Plaintiff does borrow $150,000, on present estimates, after the payment of costs, will still leave about $250,000 for the Defendant which he will have access to following completion of the sale of the Austral property.
The matters to which reference has been made, so far as the Cross-Claim is concerned, should be included in the form of orders proposed by the parties' legal representatives, as should the dismissal of the proceedings, so far as they relate to Hong, Graeme and George. As stated, I am prepared to make an order approving the compromise of Graeme's and George's claim so long as there is no order for costs made against Hong as their tutor.
Finally, the costs of the Plaintiff, calculated on the ordinary basis, and the costs of the Defendant, calculated on the indemnity basis, of the whole of the proceedings, should be paid out of the estate of the deceased.
I shall stand the proceedings over for 14 days so that the parties are able to consider the form of the proposed orders, as well as the form of Mortgage that might be required. Bearing in mind these reasons and for any argument as to the nature and form of the orders proposed, I shall stand the matter over to a date mutually suitable to the parties and the Court prior to 30 August 2017. If agreement is reached on the form of the orders and the terms of any Mortgage, Short Minutes of Order may be forwarded to the Court, for consideration, in Chambers, so that the orders proposed may be made and entered and the adjourned date will then be vacated.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 August 2017

Family Provision Act 1982(NSW)

At a glance

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Judgment (31 paragraphs)

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Legislation Cited (6)

Cases Cited (63)

Cited By (2)