Chisak v Presot

Court of Appeal (NSW)|2022-03-25|Before: Macfarlan JA, Gleeson JA, White JA, Young J, Hallen J

Solicitors: Fox & Staniland Lawyers (Appellant) Berala Law Group (Respondents) File Number(s): 2021/181818 Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Common Law Citation: [2021] NSWSC 597 Date of Decision: 27 May 2021 Before: Hallen J File Number(s): 2018/27413

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

MACFARLAN JA: I agree with White JA.
GLEESON JA: I agree with White JA.
WHITE JA: The appellant, Ivy Chisak, challenged the validity of a will signed on 26 April 2017 by the late Lily Savransky who died on 8 September 2017 aged 87. The appellant sought a grant of probate in solemn form of an earlier will made on 3 June 2009. She sought revocation of a grant of probate in common form of the 2017 will made on 15 November 2017.
The deceased was the appellant's grandmother. By her will of 2009 the deceased appointed the respondents, Emanuela Presot and Adelina Presot, as her executors and trustees of her will. She gave each of her executors a legacy of $7,500 and gave a legacy of $5,000 each to two other friends, Irene Onis and Anna Savateev. She left the residue of her estate to the appellant upon attaining the age of 25. At the time of the 2009 will the appellant was aged 14. The 2009 will provided that, if the appellant predeceased her leaving no issue, then the residue of the estate should be left as to 50% to Emanuela Presot. She provided for two additional legacies of $10,000 to Irene Onis and Anna Savateev and gave the remainder to Westmead Children's Hospital.
The will of 26 April 2017 revoked the 2009 will. It also provided for the appointment of Emanuela Presot and Adelina Presot as executors. The deceased left the whole of her estate to Emanuela Presot, Adelina Presot, Linda Presot, Anna Savateev and the appellant in equal shares as tenants in common. Both wills directed the sale of the deceased's property in Beatrice Street, Lidcombe, which was the only substantial asset of the estate.
The appellant claimed that the 2017 will was invalid on the ground that the deceased lacked testamentary capacity and did not know and approve of the contents of the will.
As the primary judge, Hallen J observed, on no view would the appellant be entitled to a grant of probate of the 2009 will as she was not the executrix named in the will. Nonetheless the substantial issue was whether the grant of probate of the 2017 will should be revoked and probate in solemn form of the 2009 will be granted to the respondents.
If the appellant failed in her challenge to the 2017 will, she sought an order for provision out of the deceased's estate pursuant to s 59 of the Succession Act 2006 (NSW). She claimed that she was an eligible applicant for provision on the ground that she was the deceased's grandchild who was "… at any particular time, … partly dependent upon the deceased" (Succession Act s 57(1)(e)).
Hallen J held that the deceased did have testamentary capacity and did know and approve of the contents of her 2017 will. His Honour held that the appellant was not an eligible applicant because she was not at any particular time partly dependent upon the deceased. His Honour held that if the last conclusion were wrong, there were factors warranting the making of the application for a family provision order (Succession Act s 59(2)). His Honour held that the 20% share of the estate to which the appellant is entitled under the 2017 will did make adequate provision for her proper maintenance, education or advancement in life.
Accordingly, the appellant's claim was dismissed. His Honour ordered that probate in solemn form of the 2017 will be granted to the respondents (Chisak v Presot [2021] NSWSC 597).
The appellant appeals from those orders. For the reasons which follow, I would dismiss the appeal.
In these reasons I will refer to the appellant as Ivy, for ease of reading. I intend no disrespect.

The parties and background circumstances

The deceased was born in January 1930 in China and grew up in the Ukraine (J [94]). She had been divorced from her husband and he died in 2008. They had one child, Lana Cross. Lana Cross married Alex Chisak in 1990. Ivy is their child. She was born in December 1994.
Lana Cross died in September 1996 when Ivy was still an infant. The primary judge found that Ivy thereafter, at all times, continued to live with her father in various locations in Brisbane and regional New South Wales, although there were two or three occasions between 2000 and 2003 when she visited the deceased and stayed with her for short periods of time (J [97]). Ivy did not see the deceased at any time after 2003. That is, she did not see the deceased at any time after she was eight. Her evidence was that when she was growing up in Brisbane she would regularly speak to the deceased over the telephone, but only by being able to use her great aunt's telephone. This was because, from 2003, her father would not allow her to see the deceased. After she and her father moved to Jindabyne in 2007 she was no longer able to make the regular telephone calls to the deceased that her great aunt had previously arranged. Thereafter she had no further contact with the deceased.
Ivy gave evidence that her father refused to allow her to have contact with the deceased. The primary judge found that after Ivy became an adult it was impossible to believe that there were no occasions when she could have contacted the deceased by telephone or otherwise (J [135]).
Each of the other beneficiaries of the 2017 will had a close relationship with the deceased. Adelina Presot had been friends with the deceased since she and her husband purchased their home in the same street in which the deceased lived in 1965. They were good friends and she provided much assistance to the deceased in various ways over many years.
Emanuela and Linda Presot are Adelina's daughters. They knew the deceased all their lives.
Anna Savateev knew the deceased for approximately 40 years. Their children, when growing up, went to school together and from that time they became friends. Anna Savateev gave evidence of the deceased's telling her that she was very disappointed about Ivy and was upset that Ivy did not visit her or make any contact with her. She gave evidence that the deceased was particularly disappointed in Ivy because the deceased often sent Ivy a gift on her birthday, or for Christmas, but still there was no contact (J [191]-[192]). She said that the deceased said that she had lost her granddaughter, who never called her or saw her.
The deceased suffered a stroke on 16 March 2017. She was discharged from hospital on 4 April 2017 (J [100]). She returned to her home where she lived alone, but received assistance from Meals on Wheels, her friends and a community service (J [101]).
The deceased's 2009 will had been prepared for her by a solicitor, Mr Jihad Shahrouk, who was employed by a firm known as Berala Law Group. On 26 April 2017 the deceased attended the offices of Berala Law Group without appointment and saw Mr Shahrouk. She had known him when he was a child in her street. She asked if he had time to take instructions for a new will, power of attorney and enduring guardianship.
Mr Shahrouk took those instructions. He deposed that the deceased said to him words to the effect: "I have been in hospital and I am very upset with my granddaughter as she does not contact me or visit me. I want to change my will. I send her gifts but she does not contact me, I don't know where she is. I would also like you to prepare a power of attorney and enduring guardianship to my friends. … I would like to give a share to my close friends as they have helped me. They have always been around to assist me in what I need. They take me to my appointments, help around the house and help with the shopping … I do not want to leave Ivy totally out of the will as she is my granddaughter"
Mr Shahrouk gave oral evidence that the deceased told him he wanted to give the beneficiaries an equal share (J [229]). This was consistent with his file note. He described the deceased as being "as sharp as a tack" (J [248]).
Mr Shahrouk arranged for the deceased to attend his office later that day to sign the new will, the enduring power of attorney and instrument appointing enduring guardians. Emanuela and Adelina Presot were appointed her attorneys and enduring guardians. They accompanied the deceased to Mr Shahrouk's offices later that day. They remained in reception whilst Mr Shahrouk attended on the deceased.
The primary judge found: "[255] I have carefully considered the evidence of Mr Shahrouk. It must be remembered that the events occurred about 4 years prior to the hearing. Importantly, I formed the view that in giving his evidence, he was being extremely careful to give evidence of what he actually remembered at the time he made his affidavit and when he was cross-examined. Whilst his notes could have been more detailed, I am satisfied that he considered the deceased's capacity and was satisfied, by the nature of her instructions and the simplicity of those instructions, that she was able to give instructions for, and execute, the 2017 Will. [256] I also accept that he was entitled to conclude that the deceased wanted to divide her estate equally between the beneficiaries that she named. She did not suggest otherwise and did not disclose a greater obligation to one rather than another. [257] It is also clear that the deceased appeared to Mr Shahrouk to read the 2017 Will before she signed it. His evidence on this topic was not the subject of any challenge."
Two days later the deceased suffered a cardiac arrest. She was taken to hospital and later discharged to another hospital and later again a nursing home for end of life care (J [104]-[107]). She died on 8 September 2017.

Testamentary capacity

The issue is whether, by reason of the stroke the deceased suffered on 16 March 2017, she lacked capacity to make her will on 26 April 2017.
As a result of the stroke the deceased suffered from aphasia, that is, a condition arising from damage to the part of the brain responsible for language. She was seen by a speech pathologist whose records were tendered and were said to demonstrate the absence of testamentary capacity and to impugn the evidence of Mr Shahrouk. The speech pathologist was not called. Mr Shahrouk's evidence was accepted by the primary judge.
Ivy also relied on the evidence of a psychiatrist, Associate Professor Wijeratne, who initially concluded from his review of the medical records that the deceased suffered from dementia. That opinion was rejected by Associate Professor Rosenfeld, called by the respondents. Dr Wijeratne later modified his opinion, in that although he did not expressly withdraw his earlier diagnosis, he said that the deceased suffered a depressive disorder that deprived her of testamentary capacity. The primary judge preferred the contrary opinions of Dr Rosenfeld.
The deceased's native language was Russian. After admission to hospital following her stroke she was administrated examinations designed to assess cognitive impairment known as RUDAS and MoCA tests. She performed poorly on those tests, including one administered by a Russian speaker.
The primary judge said: "[273] Associate Professor Rosenfeld highlighted the limiting and misleading nature of both tests if used in an inappropriate way. In cross-examination he stated that the tests were not to be used 'in acute illness' and 'to administer a MoCA and a MMSE in those circumstances when she [the deceased] was acutely ill, just come into hospital, is just inappropriate and, and to say that they're useful tools, I would actually be much stronger in saying that they were misleading tools, that they misled people, and if people now look back on those tools, used in that way as some sort of indicator of a chronic situation for this lady. It's just misleading and incorrect'."
The primary judge accepted Dr Rosenfeld's opinions. He was entitled to do so.
The primary judge quoted reports of the speech pathologist from 16 March 2017 to 28 April 2017 (of a visit on 27 April 2017) (J [262]).
Ivy submitted that the primary judge failed to consider that on 27 April 2017 the deceased "continued to present with aphasia and with aspects of cognition also impacting communication".
The speech pathologist's record of the visit on 27 April 2017 was as follows: "Pt alert, orientated, consented, Pt reporting managing well since home generally. Also noted adequate speech for needs although when questioned more pt reporting not at baseline c [sic] communication. … • Pt able to name 23/30 objects/activities when visually presented (76%). • Noted ↑ time to find word at times • Noted occasionally pt able to describe I however predominently [sic] relied on SP to prompt some when unable to name. • Noted semantically related responses at times; pt aware incorrect but unable to correct … Pt appeared to understand concept c SP explanation (verbal) and visual cue card. SP provided picture cues as able. Pt able to describe location, appearance SP Cont: - Function and category for common objects & clinician prompting. Pt had ↑ difficulty describing appearance accurately particularly in regards to material. … Pt able to retain and repeat 2 word phrases - 6/10 3 word phrases - 7/10 4 word phrases - 2/5 Pt producing word substitutions and adding extra words particularly for longer phrases. Noted hesitations and repetition of which pt aware but not always able to self- correct accurately. Benefited from repetition of target. … Note: towards end of hour long session Pt reporting fatigue throughout session also note vague C ↓ content. Pt using semantically related but incorrect words substitutions at times. Pt also disclosing less desire for Rx now at home, noted too busy to have visit too often. Also noted difficulty c English reading and no family or friends to practice tasks… … Impression: Pt cont to present c an aphasia c aspects of cognition also impacting communication … pt functional for needs at home, feels communication c medical staff and friends adequate. Also has been speaking via phone (mainly in Russian). …"
This report does not indicate that the deceased lacked testamentary capacity. It indicates difficulty with language, but not cognition. It does not indicate that the deceased would not have known the effect of making a new will, nor that she would not have appreciated her estate (which substantially consisted of the house in which she lived), nor that she would not have been capable of weighing the claims on her testamentary bounty, being her friends for whom she had previously made provision in her 2009 will and her granddaughter.
The report raises a question as to whether the deceased could have talked to Mr Shahrouk in the way to which he deposed. But Mr Shahrouk was a disinterested witness whose credit the primary judge accepted and whose evidence in its most important respect (that the beneficiaries share equally) was supported by a contemporaneous file note.
Ivy submitted that the primary judge did not give reasons for preferring the evidence of Dr Rosenfeld to that of Dr Wijeratne. I do not agree. His Honour said: "[301] Having carefully considered the evidence of both of the eminent experts, I prefer the evidence of Associate Professor Rosenfeld. I consider that the evidence, overall, demonstrates that the deceased's language ability had improved by the time she gave instructions for the 2017 Will. In addition, as already stated, the instructions that the deceased gave were relatively simple and straightforward and the explanation that she gave to the solicitor for changing her Will, namely that she was disappointed with Ivy for not remaining in contact, over so many years, whereas the other named beneficiaries had been there to support her for many years, was both rational, and understandable, from the perspective of the deceased. (The facts stated were also proved to be true). [302] I do not accept the conclusion reached by Associate Professor Wijeratne that the deceased did not have the capacity to understand the reasons for the lack of contact. There was no evidence that any reason, in particular that Ivy's father had prohibited her from doing so, was ever communicated to the deceased by Ivy or by anyone else. The deceased herself said that she did not understand the reasons for the lack of contact. In this regard, it is to be remembered that Ivy had attained the age of 18 years, some years prior to the death of the deceased. [303] Furthermore, there was no challenge, at all, to the conduct of the other beneficiaries named in the 2017 Will and the evidence that each had given about the support she had provided to the deceased or the nature of the relationship that each had with the deceased. [304] Nor do I accept the opinion that the anxiety from which the deceased suffered in regard to having another stroke, affected the deceased's capacity. To the contrary, I am of the opinion that the anxiety from which she suffered was likely to have focused her mind on resolving the issue of how her estate should devolve on her death. As stated, she alone had decided to change her Will. [305] I do not see any basis for doubt that the deceased knew that those with claims on her bounty were her only grandchild and the close friends who had provided assistance and support to her for many years and who had treated the deceased as a family member. [306] The deceased was also told that in the 2009 Will she had left her estate, in its entirety, to Ivy. The solicitor made a copy of that Will and went through it with her at the time she first attended his office to provide instructions. There can be no doubt that she was aware of the contents of the 2009 Will. [307] At the time she gave instructions for the 2017 Will, and at the time she executed that Will, even though there may have been some degree of language impairment, I am satisfied that the deceased knew the nature of the act of making a will and its effects; she had a realistic perception of her property (because there was principally the home in which she lived and which would require sale, a matter upon which she gave specific instructions); there was no suggestion of psychopathology affecting her contact with reality; she had an intact intention of how, and to whom, she wished to dispose her assets on her death; and she understood the nature of the changes she was making. Judged at the time, the 2017 Will was not irrational on its face. In this regard, the apparent rationality of the 2017 Will, from the deceased's perspective, is a relevant evidentiary factor, but not the only relevant evidentiary factor, in my assessment of the deceased's capacity."
To these reasons I would add that, given the nature of the deceased's alleged incapacity, Dr Wijeratne's expertise as a psychiatrist was less relevant than Dr Rosenfeld's extensive expertise as a geriatrician specialising in the assessment, diagnosis and management of cognitive dysfunction and dementia, including with patients who had suffered a stroke. Moreover, Dr Wijeratne's expertise to opine on the deceased's testamentary capacity was seriously called into question by his initial diagnosis that the deceased suffered from dementia: a diagnosis to which he did not subsequently adhere. Further, Dr Wijeratne did not explain why what he characterised as the deceased's depressed mood, would have affected her ability to weigh the competing claims on her testamentary bounty. The primary judge did not find that the deceased suffered from depression, rather than anxiety about a possible future stroke. There is no reason to doubt that finding.
For these reasons I reject Ivy's appeal on the ground that the deceased lacked testamentary capacity. No separate submissions were advanced on the issue of whether the deceased knew and approved the contents of her will. Given the primary judge's acceptance of Mr Shahrouk's evidence, which should not be disturbed, that ground of appeal also fails.
Accordingly, the primary judge did not err in granting probate in solemn form to the will of 26 April 2017.

Family provision claim: Eligibility

Section 57(1)(e) of the Succession Act provides that an eligible applicant for a family provision order includes: "(e) a person - (i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,"
Ivy deposed that in about 2000 when she was five years old she stayed with her grandmother in the deceased's Lidcombe home for about a month. She deposed that she stayed with the deceased on three or four occasions between 2000 and 2003 for about three weeks up to about a month. As noted above, the primary judge accepted that on two or three occasions between 2000 and 2003 Ivy stayed with her grandmother for short periods of time (at [14] above). His Honour found that these periods of stay when Ivy was a young child did not make her an eligible applicant. His Honour said: "[315] The Act contains no definition of the words "dependent on". In general, the word "dependent" connotes a person who relies upon the support of another, financial and/or emotional. Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support."
After citing authorities addressed below, his Honour continued: "[326] The Defendants submitted that regardless of the "elasticity" in the definition of "partly dependent" for eligible persons, infrequent and short stays with the deceased does not make her dependent on her grandmother in the ordinary sense of the word. They also submitted that if the Court finds there was some dependency on the deceased, she was not at the level of "partly dependent", merely minimally dependent, if at all. [327] The indirectness of any assistance provided by the deceased to Ivy, such as is evident here, must be viewed in the context of Ivy having remained in the care of her father, her ordinary primary care-giver, and upon whom, she was dependent for her maintenance and education. Indeed, as Ivy herself stated, she did not want to jeopardize her relationship with her father, by contacting the deceased against his wishes. [328] As a matter of fact, on any version given by her, Ivy cannot be said to have been wholly or partly dependent upon the deceased. Furthermore, that the deceased occasionally, or even frequently, made gifts to, or for, the benefit of Ivy, does not, in itself, make Ivy wholly, or partially, dependent on the deceased. Furthermore, that the deceased went to Brisbane in order to assist Ivy's father whilst he was unwell, it is hardly the case that he abrogated his parental responsibility to the deceased. [329] To qualify a grandchild as a dependant, the gifts or benefits provided by the will-maker, must be of such regularity and significance that one can say that the will-maker had clearly assumed a continuing responsibility for the grandchild's maintenance education, or advancement in life: see Leahey & Trescowthick [1999] VSC 409; MacEwan Shaw v Shaw (2003) 11 VR 95; [2003] VSC 318; Pearson v Jones (supra) and Simons v Permanent Trustee Co Ltd [2005] NSWSC 223. Also see, Sherborne Estate: Vanvalen v Neaves [2005] NSWSC 593. [330] On the basis of the evidence, I am not satisfied that Ivy is an eligible person within the meaning of s 57(1)(e) of the Act. In my view, Ivy's needs to be fed, cared for, and accommodated, were all provided by her father, and not by the deceased."
With respect, the primary judge's observations at J [329] conflate the question of whether a grandchild is an eligible applicant because he or she was, at any particular time, wholly or partly dependent on the deceased, with the questions as to whether there are factors which warrant a grandchild making the application for a family provision order (s 59(1)(b)), and whether the grandparent owed a moral obligation to make provision for the grandchild for his or her proper maintenance, education or advancement in life (s 59(1)(c)). On the question of whether the grandchild is an eligible applicant under s 57(1)(e)(i) the question is not whether the grandparent assumed a continuing responsibility for the grandchild's maintenance, education or advancement in life, but whether, for a particular time, the grandchild was wholly or partly dependent on his or her grandparent. The Victorian cases cited (Leahey v Trescowthick [1999] VSC 409, and MacEwan Shaw v Shaw (2003) 11 VR 95; [2003] VSC 318) concern the interpretation of s 91(1) of the Administration and Probate Act 1958 (Vic), as it then stood, which did not specify any particular class or classes of applicants, but authorised the making of provision out of the deceased's estate for the proper maintenance and support of a person for whom the deceased had responsibility to make provision.
In Simons v Permanent Trustee Co Ltd: Estate D. Hakim [2005] NSWSC 223, Palmer J, referring to s 6(1)(d) of the Family Provision Act 1982 (NSW) (which was in materially the same terms as s 57(1)(e) of the Succession Act) said: "[42] Dependence for the purposes of s.6(1)(d), so far as the cases have discussed, is seen as the giving of financial or other material assistance by the deceased over a significant period of time in order to meet a need of the eligible person, with the result that the recipient has come ordinarily to rely upon that assistance. In very many cases where a grandchild is held to be dependent on a testator grandparent, the giving of financial or other material assistance by the testator for the child's maintenance and welfare is accompanied by the giving of natural love and affection, so that the child is dependent on the testator for both financial and emotional support. In some cases, the giving of financial support by the testator grandparent may be unaccompanied by love and affection but the child is still dependent upon the giving by the testator and is therefore an eligible person. [43] However, the fact that the grandchild has a need, even an abnormally high need, for emotional support from a grandparent testator is not, on its own, sufficient to make a child dependent on the testator for the purposes of s.6(1)(d). The dependency which s.6(1)(d), and the Act generally, addresses is financial dependency. The Act is concerned only with the provision out of the estate of the deceased for the financial needs of those who had a claim on the testator's testamentary recognition. It is not the policy of the Act to console with legacies those who, while in no financial need, feel that the testator did not love them enough or feel that they should have a monetary solace for the loss of a loving relationship."
However, it is not correct that dependency is limited to dependency on the provision of financial or other material assistance (Petrohilos v Hunter (1991) 25 NSWLR 343 at 346-347). As Hope AJA, with the concurrence of Clarke and Sheller JJ, said in that case, a young child is properly and commonly said to be dependent on his or her mother as well as his or her father, regardless of where the money comes from.
The phrase "partly dependent" means at least "more than minimally" and perhaps "significantly", although not "substantially" (McKenzie v Baddeley [1991] NSWCA 197 at [4]). In Alexander v Jansson [2010] NSWCA 176 Brereton J (as his Honour then was), with whose reasons Basten JA and Handley AJA agreed, accepted that "partly dependent" involved more than "minimal" dependence (at [13]).
In Simons v Permanent Trustee Co Ltd, Palmer J did not regard the fact that the deceased took his grandson on holidays as establishing that, for the period of the holidays, the grandson was dependent upon his grandfather (at [33] and [44]). In Sherborne Estate: Vanvalen & Anor v Neaves & Anor [2005] NSWSC 593, Palmer J did not accept that a granddaughter was "for a particular time" dependent on her grandmother when she stayed, with her mother, with the deceased on the deceased's farm when she was 7 and spent school holidays at the deceased's farm when she was aged between 12 and 16. In relation to the latter period, Palmer J said (at [47]) that if the deceased provided the granddaughter with free board and lodging during her school holidays, her actions were more properly to be seen as offering hospitality, rather than undertaking responsibility towards her maintenance and support akin to that of parental responsibility.
With respect, that approach conflates the question of dependency with the questions as to whether there are factors that would warrant the making of the application for a family provision order and whether the deceased had an obligation to make provision for the grandchild.
In Page v Page [2017] NSWCA 141, Basten JA said that the statutory content of s 57(1)(e) required a more limited reading of dependency than its ordinary meaning, and required the phrase "a person who was, at any particular time, wholly or partly dependent on the deceased" to be understood as referring to a dependency that gave rise to a statutory obligation to make provision from the deceased's estate for that person's maintenance, education or advancement in life (at [8]).
That approach was consistent with the earlier decisions of Palmer J referred to above. However, neither Leeming JA nor Sackville AJA adopted this approach.
The issue was later addressed by this court in Spata v Turino (2018) 95 NSWLR 706; [2018] NSWCA 17. Payne JA, with whom Macfarlan JA agreed, held (at [71]-[72]) that a restrictive meaning of "dependent" in s 57(1)(e) should not be adopted, given that it is a remedial and beneficial provision. A narrow meaning was not warranted, given the provision provides for dependence to be assessed "at any particular time" and the applicant need show only that he or she was partly dependent on the deceased.
Payne JA rejected the approach of earlier decisions of Young J (as his Honour then was) in Clinch v Swift (Supreme Court, Young J, 13 October 1986, unreported) and Shaw v Lambert (Supreme Court, Young J, 9 October 1987, unreported) that where dependence is assessed based on the provision of accommodation, the accommodation must be provided directly to the applicant, because of the relationship between the applicant and the deceased, and not indirectly as where the accommodation is provided to a child and the child's spouse or child (at [73]-[78]).
Sackville AJA, with whose reasons Macfarlan JA also agreed, said (at [139]): "[139] In short, as Payne JA points out, a finding of dependency is merely the first step in determining whether the circumstances give rise to a statutory obligation in the deceased person to make provisions out of his or her estate for the proper maintenance, education or advancement in life of the claimant. To construe s 57(1)(e)(i) as limited only to dependency of a kind that gives rise to a statutory obligation to make provision for the claimant tends to conflate the two quite distinct preconditions for the making of a family provision order. A claimant who establishes that he or she is an eligible person by reason of dependency on the deceased (and membership of the same household) may or may not be a person to whom the deceased owed an obligation to make provision by way of testamentary disposition. The concept of dependency in s 57(1)(e)(i) of the Succession Act is not to be limited by incorporating criteria that are only to be considered once the claimant establishes that he or she is entitled to apply for a family provision order."
Ivy deposed that she stayed with the deceased for about one month when she was 5 years of age (in 2000) and stayed with her for periods of about three weeks up to about a month at a time on three or four occasions between 2000 and 2003. She deposed that the deceased took care of her when she lived with her during those periods. The primary judge accepted that there were at least two or three such visits. During those visits, it can be inferred that the deceased assumed parental responsibility for Ivy who was then a young girl. It can be inferred that, for those particular periods of time, she was dependent on her grandmother.
It could be said that a baby left in the care of grandparents for a few hours or overnight, who needs to be fed and changed, is dependent for that particular period of time on his or her grandparents. But such periods of dependence would be minimal. I do not think that dependence for a few weeks or a month on two, three or four occasions could be regarded as minimal. The question under s 57(1)(e) is whether "at any particular time" Ivy was partly dependent on the deceased. No doubt Ivy remained dependent on her father but that does not mean that she was not partly dependent for the particular periods of time in which she stayed with the deceased on her.
I respectfully doubt that it is legitimate to read into s 59(1)(e) a requirement that partial dependency be "significant" rather than "more than minimal". Section 57(1)(e) is merely a gateway for the court to consider whether there are factors that warrant the making of an application for provision by a grandchild out of his or her grandparent's estate (s 59(1)(b)), and if so, whether provision ought to be ordered (s 59(1)(c)). The degree of dependence for a particular period of time will no doubt be relevant to those issues. With due deference to the reasons of Palmer J in Simons v Permanent Trustee and Re: Sherborne Estate and Basten JA in Page v Page, I do not think it appropriate to conflate questions relevant to those issues, such as whether the degree of dependence was such that the grandparent assumed parental responsibility for the grandchild, with the factual question of whether the grandchild did depend on the deceased for particular periods of time. I do not accept the primary judge's reasons on this issue at J [329] quoted above.
I conclude that Ivy passed the threshold of establishing that she was an eligible applicant.
The primary judge held that if Ivy were an eligible applicant, there were factors which warranted the making of the application (s 59(1)(b)). That issue turns on whether she would be generally regarded as a natural object of the deceased's testamentary recognition. This requirement was satisfied. The deceased did recognise Ivy as an object of her testamentary bounty. She provided her with one fifth of her estate (at J [343]).
Although the primary judge concluded that Ivy was not an eligible applicant, he nonetheless went on to consider whether, if she were an eligible applicant, the provision made for her in the deceased's will was inadequate for her proper maintenance, education or advancement in life (Succession Act s 59(2)). His Honour concluded that Ivy's 20% share under the deceased's will was not less than adequate for her proper maintenance, education or advancement in life. After addressing the relationship between the deceased and Ivy, the size of the deceased's estate, Ivy's evidence as to her financial position, her accommodation, health, including mental health issues, and social isolation, his Honour concluded: "[385] Having considered all of the matters to which reference has been made, I am of the view that the deceased in the 2017 Will, did make adequate provision for the proper maintenance, education or advancement in life of Ivy. The provision may not have been overly generous, but it was commensurate with what the deceased considered to be referable to her relationship with Ivy and also her relationship with her close friends who she identified as beneficiaries. The deceased gave consideration to the obligations that she had to Ivy. [386] The Act was never intended to enable the freedom of testamentary disposition to be so encroached upon that a will-maker's decisions expressed in her Will should have only a prima facie effect, the real dispositive power being vested in the Court. [387] Furthermore, had the proceedings not been commenced, Ivy's 20 per cent share of the estate would have yielded about $175,000. That is a substantial legacy for a grandchild in the circumstances of this case. A lump sum of that size would have provided her with a reasonable deposit for a home, or a capital sum for the exigencies of life, or perhaps, both. [388] It is clear, on the evidence, that apart from the blood relationship, the totality of Ivy's relationship with the deceased was a substantially, and significantly, less close relationship than the deceased's relationship with any of the other beneficiaries. Their relationship with her was akin to a family relationship, which the deceased herself recognised by giving each an equal share of her estate. (This is not to suggest that the deceased did not love Ivy. That she did was not the subject of dispute). [389] In reaching this conclusion, I have taken into account the alleged animosity between Ivy's father and the deceased. However, as stated, I am of the view that his failure to give evidence allows me to infer that his evidence would not have assisted Ivy. Nevertheless, I have not regarded the lack of contact and who caused, or contributed, to it, as determinative of Ivy's claim. I have simply taken the fact of the lack of contact into account. [390] In my view, Ivy's claim for a family provision order should also be dismissed."
This was an evaluative decision to which the principles in House v The King (1936) 55 CLR 499 at 504-505, which are applicable to the appellate review of discretionary decisions, apply (Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 at 212).
The primary judge did not proceed on the basis of any wrong principle, nor have regard to irrelevant considerations. Nor did he fail to take account of any material consideration. Nor did he misstate the facts. No such error that might attract appellate intervention was identified in the grounds of appeal, nor in the appellant's submissions. In her written submissions, Ivy submitted that a provision of one fifth of the estate was not adequate provision for her having regard to: "a. the family relation between the appellant and the deceased in contradistinction to that of the other beneficiaries; b. the appellant's age, mental condition and circumstances; c. her need for accommodation or housing, to provide some financial security for the appellant; d. a sum for contingencies, having regard to the appellant's precarious position in life."
It was submitted that adequate provision would be in the order of 50-60% of the estate by reason of Ivy's mental illnesses, poor financial position and significant need for accommodation.
These were all matters considered and weighed by the primary judge. In Singer v Berghouse the majority (Mason CJ, Deane and McHugh JJ) quoted with approval comments of Kirby P in Golosky v Golosky [1993] NSWCA 111, which are applicable to the present case. Kirby P said: "Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision-makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be bought at the cost of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged."
For these reasons I would dismiss the appeal with costs.

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Family Provision Act 1982(NSW)

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