Ciric v Ciric

Supreme Court of NSW|2015-03-19|Before: Hallen J, Santow J

Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 Goodsell v Wellington [2011] NSWSC 1232 Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison [1997] 2 VR 359 Hamilton v Moir [2013] NSWSC 1200 Hawkins v Prestage (1989) 1 WAR 37 Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 Hyland v Burbidge [2000] NSWSC 12 In re Allardice; Allardice v Allardice (1910) 29 NZLR 959 In re Allen (Deceased); Allen v Manchester [1922] NZLR 218 In the Estate of Puckridge, Deceased (1978) 20 SASR 72 In the Estate of the late Anthony Marras [2014] NSWSC 915 Kay v Archbold [2008] NSWSC 254 Kearns v Ellis (Supreme Court (NSW), Mahoney JA, 5 December 1984, unrep) Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 MacGregor v MacGregor [2003] WASC 169 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Madden-Smith v Madden (estate of the late Doris Linda Madden) [2012] NSWSC 146 Marks v Marks [2003] WASCA 297 Mayfield v Lloyd-Williams [2004] NSWSC 419 Morris v Smoel [2014] VSC 32 Palagiano v Mankarios [2011] NSWSC 61 Phillips v James [2014] NSWCA 4; (2014) 85 NSWLR 619 Pogorelicv Banovich [2007] WASC 45 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 Re Buckland, Deceased [1966] VR 404 Re Bull [2006] VSC 113 Re Coventry (Deceased) [1979] 3 All ER 815 Re Dennis (Deceased) [1981] 2 All ER 140 RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 Salmon v Osmond [2015] NSWCA 42 Sammut v Kleemann [2012] NSWSC 1030 Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253 Slack-Smith v Slack-Smith [2010] NSWSC 625 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Sung v Malaxos [2015] NSWSC 186 Szypica v O'Beirne [2013] NSWSC 297 Taylor v Farrugia [2009] NSWSC 801 Thornley v Heffernan (Supreme Court (NSW), McClelland J, 12 September 1995, unrep) Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 Turner v Perpetual Trustees Australia Ltd [2001] ACTSC 56 Vasiljev v Public Trustee [1974] 2 NSWLR 497 Verzar v Verzar [2012] NSWSC 1380 Verzar v Verzar [2014] NSWCA 45 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) West v Mann [2013] NSWSC 1852 Wilcox v Wilcox [2012] NSWSC 1138 Williams v Aucutt [2000] 2 NZLR 479 Zagame v Zagame [2014] NSWSC 1302 Texts Cited: Rosalind Atherton in "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5 Australian Journal of Legal History 5 J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths) Category: Principal judgment Parties: Neville Ciric (Plaintiff) John Ciric (Defendant) Representation: Counsel: Mr D J Williams (Plaintiff) Mr G M McGrath (Defendant)

Solicitors: Sharah & Associates Solicitors & Conveyancers (Plaintiff) Stojanovic Solicitors (Defendant) File Number(s): 2014/281792

Judgment

HIS HONOUR: Ilija Ciric ("the deceased") who was born in May 1930, died on 15 October 2013, aged 83 years. He was survived by a number of former spouses (to whom I shall later refer) and a number of children, two of whom are Neville Ciric ("the Plaintiff") and John Ciric ("the Defendant"), the parties in these proceedings.
The Plaintiff, by Summons filed on 25 September 2014, seeks a family provision order, pursuant to the Succession Act 2006 (NSW) ("the Act") and costs. A family provision order is an order made by the court in relation to the estate, or notional estate, of a deceased person, to provide from that estate, or notional estate, for the maintenance, education, or advancement in life of an eligible person.
There is no dispute that the Plaintiff's application was filed within the time prescribed by the Act (within 12 months of the date of the death of the deceased).
The deceased left a duly executed Will that he made on 6 August 2012. On 4 February 2014, this court granted Probate in common form of that Will to the Defendant, the sole executor and beneficiary named in that Will.
According to the Inventory of Property, a copy of which was attached to the Probate document, the property owned solely by the deceased at the date of his death was disclosed as having an estimated, or known, gross value of $401,750. The estate was said to consist of real estate at Mt Pritchard, Sydney ($400,000), and cash in bank ($1,750). The Defendant disclosed no liabilities in the Inventory of Property. (I have omitted, and shall continue to omit, any reference to cents in the amounts to which I shall refer, which will explain any minor mathematical errors.)
The Mt Pritchard property had been purchased by the deceased in about May 2013 for $365,000.
In an affidavit sworn on 29 October 2014, which was read in the proceedings, the Defendant disclosed an additional asset (a car ($1,500)) and some more cash in bank, and he estimated the gross value of the deceased's estate, at the date of death, to be $402,815. He also stated that the car owned by the deceased "was given to a close friend of the deceased" (named Milenko Miljojevic), who had lived with the deceased and who had helped care for him for about 18 months prior to the deceased's death.
The Defendant, in the affidavit, also disclosed a liability of the deceased of $60,850 (described as "CBA Equity Unlock Loan") and stated that the legal costs and disbursements of obtaining Probate were $4,029.
The Defendant also disclosed that the Mt Pritchard property had been transmitted into his name, as executor of the Will of the deceased, by Transmission Application dated 4 February 2014 (a copy of which formed part of the evidence). The copy Transmission Application identifies the Defendant as the sole executor of the deceased's estate rather than as the devisee of that real estate. It was accepted by the Defendant that, at the date of hearing, the real property still forms part of the actual estate of the deceased: T3.16-T3.22. No issue has been raised about the car that has been distributed. Accordingly, the notional estate provisions of the Act are not relevant. Each party's legal representative accepted that this was so: T3.24-T3.30.
(There was the suggestion that the Plaintiff may seek to amend the Summons to seek an order that any amount distributed to the Defendant, as beneficiary, should be designated as notional estate of the deceased. This became unnecessary and no such application to amend was made.)
At the commencement of the hearing, the parties agreed that the current value of the Mt Prichard property should be taken to be $472,500. Whilst the Defendant, as the sole beneficiary, wishes to retain that property, the parties agreed that he would not be able to do so bearing in mind the amounts that are, or will be, payable out of the estate: T46.14-T46.22. In the event of its sale, the parties agreed that the costs and expenses of sale of the Mt Pritchard property should be estimated at $10,750.
The Defendant says that he has borrowed a sum of $200,209 from AFSH Nominees Pty Ltd, of which $106,252 was drawn down on 2 April 2014 and $1,800 was drawn down on 28 April 2014. As at 28 February 2015, the amount owing on that loan is said to be $112,183. He used part of this amount ($60,850) to repay the debt secured on the Mt Pritchard property at the date of death.
In that affidavit, the Defendant also stated that the funeral expenses paid by the estate were $18,484. He repeated that the cost of the tombstone was about $10,000. He also gave evidence that he had used part of the funds borrowed to pay both these funeral expenses ($28,484). In his affidavit dated 29 October 2014, he again stated that the costs associated with obtaining Probate, referred to earlier, were $4,029, but clarified that of that amount, $1,315 had been paid from the estate and the balance ($2,714) "was paid personally by me". In his oral evidence, however, he accepted that the amount of $4,029 had been paid out of the funds borrowed.
Not all of the balance of the funds borrowed ($18,820) has been used by the Defendant for his own purposes. What was used by him is not fully disclosed. The parties seemed to accept that only the amounts to which I have referred should be regarded as debts repayable out of the estate. The result is that $93,363 of the amount borrowed, should be treated as an amount to be repaid, out of the estate of the deceased. Presumably, the balance will be repaid by the Defendant.
There were associated proceedings (numbered 2014/301678) in this court, involving the deceased's estate, brought by Suzana Snezana Ciric Rouge, a daughter of the deceased, in which she, too, sought a family provision order. Those proceedings were settled, on 9 December 2014, and the following orders were entered in the court's computerised record system: "A. Notes the associated proceedings 2014/281792. B. Grants leave to the Defendant to read, in these proceedings, the formal affidavits of the Defendant filed in the associated proceedings. C. Notes that the parties in the associated proceedings consent to the orders being made in these proceedings. D. Orders in accordance with Paragraphs 1, 3, 4 and 5 of Consent Order dated 9 December 2014 signed by the legal representative of each of the parties, namely: 1. In lieu of the (absence of) provision for the plaintiff in the will of the late Ilija Ciric, provision be made for the plaintiff in the sum of $64,000. 3. The [D]efendant is to receive his costs out of the estate on the indemnity basis.4. The provision is to be paid by the last day of May 2015. 5. No interest is payable on the provision up to and including the last day of May 2015. Thereafter interest is to be payable at the rate payable on unpaid legacies or any unpaid balance. E. Makes no order as to the costs of the Plaintiff, to the intent that she will bear her own costs of the proceedings. F. Notes the agreement of the parties of the matters in Paragraph 6 of the Consent Order, namely: 6. By consent, the court notes that: (a) The Plaintiff is an eligible person. (b) The Plaintiff has served a notice identifying all other eligible persons on the administrator at the time of serving the Summons. (c) The administrator has filed the Administrator's affidavit and the affidavit of service of the notice of the [P]laintiff's claim on any person who is or may be an eligible person as well as upon persons beneficially entitled to the distributable estate, any person holding property of the estate as trustee or oherwise (sic). (d) The administrator has filed an Appearance. G. Notes that the Court, having determined that service of a notice of the Plaintiff's application and of the Court's power to disregard her interests, is unnecessary, has disregarded the interests of Milica Ciric, who is an eligible person (a former spouse of the deceased and the mother of the Plaintiff in the associated proceedings) who has not made an application in relation to the estate or notional estate of the deceased. H. Notes that the Court, having determined that service of a notice of the Plaintiff's application and of the Court's power to disregard her interests, is impracticable, has disregarded the interests of two other former spouses of the deceased each of whom has not made an application in relation to the estate or notional estate of the deceased."
The amount payable to Ms Ciric Rouge, pursuant to those orders, has not yet been paid. However, it is accepted that it will need to be paid out of the deceased's estate. The Defendant stated that his costs and disbursements, calculated on the indemnity basis, of those proceedings, were $33,000. It follows, that there must be deducted, from the gross value of the deceased's estate, in respect of the associated proceedings, the amount of $97,000.
Bearing in mind that the current gross value of the deceased's estate is said to be $472,500, to calculate the amount likely to be available for distribution (leaving aside the costs of these proceedings), there should be deducted the costs and expenses of sale of the Mt Pritchard property ($10,750), the amount referred to in the orders made in the associated proceedings and the Defendant's costs of those proceedings (in total, $97,000), and the amount that has been borrowed and used to repay the debts, funeral and testamentary expenses and administration costs ($93,363). It follows, subject to one matter to which I shall return, that the current evidence is that the current gross value of the estate that is available for distribution, excluding the costs of these proceedings, is $271,387.
In his most recent affidavit, which was served about one week prior to the hearing, the Defendant disclosed that the Mt Pritchard property had been leased to a third party at a weekly rental of $410. It appears that an amount of about $1,565 per month is paid by the managing agent to the Defendant.
The Defendant did not disclose, in any affidavit, the period during which the Mt Pritchard property had been rented, or how much rent he has received from the Mt Pritchard property. When this was raised with him by the court following his cross-examination (T56.35-T57.29), he stated that the Mt Pritchard property had been rented from about February, or March, 2014, and that he had deposited the rent, as received from the managing agent, into an estate account. He also said that he had used the monies in that account to pay outgoings and other expenses, none of which were precisely disclosed, on the Mt Pritchard property. (He mentioned "tree stumping, plumbing, electrical things that have sort of gone on over time".) Finally, he stated that there was currently "about $4,000 or $5,000" in that account.
In Fiorentini v O'Neill [1998] NSWCA 79, the Court of Appeal (Mason P, Handley JA and Fitzgerald AJA) repeated that an executor Defendant "should have given the Court more assistance than she did in identifying as fully and early as possible the actual and notional estate, its condition and value at date of trial, and the exact burden of the costs order likely to fall on the estate. See Supreme Court Rules 1970 (NSW), Pt77 r59, Vasiljev v Public Trustee [1974] 2 NSWLR 497, at 503 and Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639, at 654". Also see Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, per Dixon CJ, at 130-131 and, per Kitto J, at 136-137; and currently, Practice Note SC Eq 7, Paragraph 9.1.)
I shall return to the effect of the Defendant's failure to disclose the relevant information about the value of the estate later in these reasons. However, for the purposes of the hearing, I conclude that the value of the gross estate available for distribution (omitting the costs of the proceedings) is about $276,000.
In calculating the estimated value of the deceased's estate finally available for distribution, the costs of the present proceedings should also be considered, since the Plaintiff, if successful, normally, will be entitled to an order that his costs and disbursements, calculated on the ordinary basis, be paid, whilst the Defendant, as the person representing the estate in the proceedings, irrespective of the outcome of the proceedings, normally, will be entitled to an order that his costs, calculated on the indemnity basis, be paid out of the estate of the deceased. However, the size of the estate and the conduct of a party may justify a departure, especially where the Court is of the view that the litigation has been prolonged unnecessarily: Fiorentini v O'Neill. (Of course, if the Plaintiff is unsuccessful, there is likely to be an argument about costs.)
The Plaintiff's solicitor, Ms J M Sharah, in an affidavit sworn on 5 March 2015, estimated the Plaintiff's costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis, to be $45,108 (inclusive of GST and upon the basis of a one day hearing). Calculated on the ordinary basis, she estimated that the costs and disbursements would be "less about 15% on solicitor's costs and barrister's fees … [but] the disbursements would remain the same". On my calculations, and as accepted by the parties for the purposes of the hearing, the Plaintiff's estimated costs and disbursements, calculated on the ordinary basis, are estimated to be $38,838. (The Plaintiff's solicitor states that no uplift factor is included in the estimate.) There was no evidence that the Plaintiff had paid anything towards these estimated costs and disbursements.
The Defendant, in his affidavit sworn 9 March 2015, presumably on the basis of what he has been told by his solicitor, estimated the costs and disbursements, including counsel's fees, calculated on the indemnity basis, of the Defendant, for these proceedings to be $38,225 (inclusive of GST and upon the basis of a one day hearing). There was no evidence that he had paid anything towards these estimated costs and disbursements.
I was requested not to deal with the question of costs as there might need to be submissions on costs: T6.11-T6.16. I shall allow the parties an opportunity to consider these reasons and adjourn the matter to enable the question of costs to be argued.
If the usual costs orders are made, and if the parties are unable to reach agreement on the quantum of costs to be paid, it will be for an assessor to determine the appropriate quantum of costs for both parties. Hopefully, in view of the size of this estate, this will not be necessary and the parties will be able to reach agreement, if necessary, without the need for additional costs to be incurred.
(It is most unfortunate that over $100,000 has been incurred in this very small estate in the costs of these, and the associated, proceedings. As has been said, "the court should set its face against litigation in which an estate is unnecessarily consumed in costs": Fiorentini v O'Neill.)
At the commencement of the hearing, the parties agreed that the estimated value of the net distributable estate, if the usual costs orders are made and costs are deducted, if the estimates prove accurate, and if the other expenses are paid, will be $194,324. However, that amount did not include the amount of between $4,000 and $5,000, held in the bank account to which the Defendant referred.) I shall, for the purpose of my considerations, estimate the value of the net distributable estate to be in the order of $200,000 (since additional rent may have been received).
I raised with the parties the possibility that the Mt Pritchard property could sell for more, or for less, than the agreed estimated gross value, with the result that the Plaintiff, or the Defendant, might be detrimentally affected by its actual sale price if a lump sum order were made. I contemplated that it might be prudent, in the event that the Plaintiff were successful, to provide him, absolutely, with an amount calculated as a percentage of the net proceeds of sale of that property. In this way, both of the parties would benefit if that 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 be certainty of price, costs and expenses, upon which calculations could be made.
After obtaining instructions, the Plaintiff, through his counsel, stated that any lump sum to be paid to the Plaintiff as a family provision order should be calculated by reference to a percentage of the actual net proceeds of sale of the Mt Pritchard property and the cash in bank. The net proceeds of sale may be calculated by reference to the gross sale price, less the expenses identified above (although the precise amount of the expenses will have to be established).
After obtaining initial instructions, counsel for the Defendant stated that the Defendant, in the event that a family provision order were made for the Plaintiff, would prefer the court to simply make a lump sum order, because the Defendant hoped to retain the Mt Pritchard property. However, after the calculations set out above were made in discussion between Bench and bar, the Defendant, by his counsel, seemed to acknowledge that it will not be financially possible to retain the Mt Pritchard property, and, in those circumstances, a lump sum, calculated by reference to a percentage of the net proceeds of sale and the moneys in bank, may be appropriate.
I propose to follow this course, as I have done in other cases (to which I shall refer later). However, I shall use the estimates set out above to provide a guide to whether an order should be made and the nature and quantum of the family provision order.
The Plaintiff gave evidence that the deceased had been married three times. He was married twice in Serbia. The Plaintiff believes that there was one child of the deceased's first marriage, Dubrovska, who is aged 67 years. He says that there were two children of the deceased's second marriage, namely Vlado, a son, who is aged 58 years and Menka, a daughter, who is aged 57 years. These three children reside in Serbia.
The Plaintiff says nothing about either of the former spouses of the deceased in Serbia. I gather it is not known whether they are still alive or, if they are, where they live.
In the Defendant's affidavit sworn on 4 December 2014, he states that he is aware that the deceased was previously married twice, in Serbia, but that he has no knowledge of Dubrovska and no contact details for her. He also states that he is not aware whether she is married, and if so, her current surname. He says he does not even know if she is still alive.
The Defendant also states that he has no contact details for Vlado and Menka, although, at one time he did have Vlado's telephone number. He says that he notified Vlado of the deceased's death. He does not suggest that there has been any subsequent contact.
It is clear that each of the persons in Serbia, if alive, is an eligible person upon whom notice of the Plaintiff's application, and of the Court's power to disregard her, or his, interests, should be served, in the manner and form prescribed by the regulations or rules of court: s 61(2)(a) of the Act.
The Court is asked to proceed without regard to the interests of any surviving former spouses, or children, of the deceased, who live in Serbia, as persons by, or in respect of whom, an application for a family provision order may be made.
Although service of the prescribed form of notice on each of the former spouses in Serbia, or on the deceased's children who live there, has not occurred, in view of the size of the deceased's estate, the competing claims of the parties in these, and the associated, proceedings, that there is no evidence of any contact between any of those persons and the deceased over many years, that there is no evidence that each is alive, and, if so, where she, or he, lives, I am satisfied that service of such notice is impracticable and unnecessary.
("Impracticable" is not defined in the Act. Something is said to be "impracticable" when it is incapable, as a practical matter, to do it, or when it is extremely inconvenient, or difficult, to do it, because, for example, of the associated costs. The word is not synonymous with the word "impossible". It directs attention to considerations of a practical, rather than a theoretical, nature arising out of the particular circumstances: Thornley v Heffernan (Supreme Court (NSW), McClelland J, 12 September 1995, unrep); Hamilton v Moir [2013] NSWSC 1200, at [35].)
The Plaintiff's mother is Milica Ciric. Her marriage to the deceased was dissolved in 1996. There was a property settlement. Although she is an eligible person, she has not commenced proceedings. The Plaintiff asserts that she now suffers from dementia. Her role in the proceedings is indirect for reasons to which I shall come.
There were six children of the deceased's marriage to Milica. One daughter (Dragica) died in 2008. There is some evidence that the Defendant's solicitor sent, by ordinary post, a Notice of Claim to each of the three other children of the deceased, namely, Suzana, Dragan (also known as Douglas Ally) and Svetlana (also known as Anna and Lana).
Only the Plaintiff, and Suzana, commenced proceedings under the Act, and, as stated, Suzana's proceedings have been resolved with orders having been made and entered. Although there is no evidence of service of the prescribed form of notice on Milica, I am satisfied, in view of the fact that there was a property settlement between her and the deceased, and in view of the size of the deceased's estate, that service on her of such a notice is unnecessary in the circumstances of the case.
In the circumstances, I propose to disregard the interests of each of the eligible persons, other than the Defendant, who has not commenced proceedings. He is the sole beneficiary named in the Will of the deceased and even though he has not commenced proceedings for a family provision order, I shall not disregard his interest.

The Statutory Scheme - The Act

Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although on many occasions, I have collected the principles generally applicable, in view of the importance of this case to the parties, I shall repeat the principles. It is equally important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in the application.
The wording of the Act is similar to the wording of the Family Provision Act 1982 (NSW) ("the former Act"). However, it is necessary to remember the warning of Kirby P in Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100, at 76,304: "Purposive construction of the Act There is always a danger where a reformed Act borrows heavily upon ideas which previously existed in the common law or in an earlier statute, that lawyers will approach the construction of the Act affected by the previous law: Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 2 NSWLR 475, 478. That danger is but an illustration, in the specialised activity of law, of a universal phenomenon of psychology long established in relation to human perception generally. We tend to perceive what we expect. We expect that with which we are familiar. There is a particular danger in the case of the Family Provision Act in construing its terms by reference to the law which developed around the Testators' Family Maintenance and Guardianship of Infants Act 1916. That Act was passed in earlier times to govern the entitlements of a testator's family, as narrowly defined. The definition by s 3(1) of that Act confined applications to those made by 'the widow, husband or children of such persons'. There was no mention in it of former spouses. Doubtless this was because, for the early part of this century, divorce was relatively infrequent and then based upon concepts of matrimonial fault which would make interference in the testamentary disposition of the deceased unlikely. When enacted, the statute was a radical interference in the power of testamentary disposition. That was a significant power over private property, the disturbance of which was regarded as highly exceptional."
The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008 (NSW). A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers, upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, Will. It is only if the statutory conditions are satisfied that the court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate (or the disposition on intestacy), to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary. Thus, the Act subjects freedom of testamentary disposition to discretionary curial intervention in certain classes of case.
The key provision is s 59 of the Act. The court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made.
Relevantly, in this case, the Plaintiff relies upon the category of eligibility referred to in s 57(1)(c) of the Act. There is no dispute that he is a child of the deceased.
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.
It is only if eligibility is found, that the court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made, relevantly, by the Will of the deceased (the operation of the intestacy rules being irrelevant in this case in relation to the deceased's estate) (s 59(1)(c)). It is this mandatory legislative imperative that drives the ultimate result and, it is only if the court is satisfied of the inadequacy of provision that consideration is given to whether to make a family provision order (s 59(2)). Only then may "the Court … make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made".
Other than by reference to the provision made by the Will in relation to the estate of the deceased, s 59(1)(c) of the Act leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for an applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the court to the provision actually made by the Will, on the one hand, and to the requirement for maintenance, education or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant.
Importantly, in s 59(1)(c) of the Act, there no longer appears to be any sanction to consider the provision made by the deceased during his, or her, lifetime for the applicant (see s 9(2) of the former Act).
In Grey v Harrison [1997] 2 VR 359, at 366-367, Callaway JA observed: "There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."
Basten JA, in Foley v Ellis [2008] NSWCA 288, at [3], commented that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J has described it as "an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific": Szypica v O'Beirne [2013] NSWSC 297, at [40].
Under s 59(1)(c) of the Act, the time at which the court gives its consideration to the question of inadequacy of provision is the time when the court is considering the application.
"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89, at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".
Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act.
In J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths), at 542, the learned authors comment upon the difference between the concepts of maintenance and advancement: "The essential difference between 'maintenance' and 'advancement' is that 'maintenance' denotes a periodical payment or a payment which could validly be made periodically, whereas 'advancement' denotes a definite unique outlay for a specific purpose. Recipients of maintenance must, practically speaking, be infants, but adults may be recipients of an advancement. An advancement can never be made of a sum of money which the person to whom it is made can immediately pocket, but it must be made with a view to the establishment of that person in a business or profession, or otherwise in some definite way for that person's benefit, the whole essence of an advancement being the immediate payment of a tolerably large sum for an immediate benefit to one beneficiary."
In Re Dennis (Deceased) [1981] 2 All ER 140, Browne-Wilkinson J, at 145-146, wrote: "The court has, up until now, declined to define the exact meaning of the word 'maintenance' and I am certainly not going to depart from that approach. But in my judgment the word 'maintenance' connotes only payments which, directly or indirectly, enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him. The provision that is to be made is to meet recurring expenses, being expenses of living of an income nature. This does not mean that the provision need be by way of income payments. The provision can be by way of lump sum, for example, to buy a house in which the applicant can be housed, thereby relieving him pro tanto of income expenditure. Nor am I suggesting that there may not be cases in which payment of existing debts may not be appropriate as a maintenance payment; for example, to pay the debts of an applicant in order to enable him to continue to carry on a profit-making business or profession may well be for his maintenance."
In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77, King CJ said: "The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an early period of life in the members of the family: Blore v Lang, per Dixon CJ at p. 128." [Footnotes omitted]
In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Murphy J wrote, at 505: "Provision for advancement may, for example, extend to retraining or the gaining of a qualification which could advance and perhaps enable an applicant to maintain himself or herself."
In Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, at 541, discussed the financial assistance which an applicant may need for his, or her, maintenance and advancement in life, in the following terms: "If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of the financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that … [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need."
In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J, at [114], noted: "In the context of the Act the expression 'advancement in life' is not confined to an advancement of an applicant in his or her younger years. It is [a] phrase of wide import (McCosker v McCosker (1957) 97 CLR 566 at 575). The phrase 'advancement in life' has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the 'maintenance and support' of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support."
In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)."
In McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566, Dixon CJ and Williams J stated, at 575: "The presence of the words 'advancement in life' in the ... Act in addition to the words 'maintenance and education' is not unimportant ... 'Advancement' is a word of wide import."
The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton in "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5 Australian Journal of Legal History 5, at 10, as reached upon "a purely economic and objective basis", whereas "proper" prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127, per Buss JA, at [72] and [77], which seems to invite more subjective criteria.
These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 476: "The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."
Their Lordships went on to state (at 478): "The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the Court were concerned merely with adequacy. But the Court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration."
Dixon CJ and Williams J, in McCosker v McCosker, at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that: "It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."
In Goodman v Windeyer, Gibbs J wrote, at 502: "[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."
In Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, at [114], Callinan and Heydon JJ said: "[T]he use of the word 'proper' … implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here … The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."
Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), that "adequate" and "proper" are independent concepts. He wrote, at 12: "'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied …"
In Palagiano v Mankarios [2011] NSWSC 61, at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life involve value judgments on which minds can legitimately differ, and there are no definite criteria by which the question can be answered.
His Honour added, in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253, at [123]: "The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case including 'the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty': Singer v Berghouse (1994) 181 CLR 201 at 210."
Until recently, it was unanimously thought that there are two stages of the determination. The first stage, provided for by s 59(1)(c), has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. The court does this by determining whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, for the applicant. If it is not so satisfied, then the court is precluded from making a family provision order. At this stage, the court has regard to, among other things, the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased and the circumstances and needs of the other beneficiaries or potential beneficiaries: see McCosker v McCosker, at 571-572; Singer v Berghouse, at 209-210; Vigolo v Bostin, at [16], [75], [112]; Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, at [70]; Verzar v Verzar [2014], at [39].
Whether an applicant has a "need" or "needs" is also a relevant factor at the first stage of the enquiry: see s 60(2)(d) of the Act. It is an elusive and an elastic concept to define, yet, it is an element in determining whether "adequate" provision has been made for the "proper" maintenance, education and advancement in life of the applicant in all of the circumstances. The concept involves economic considerations.
In Collins v McGain [2003] NSWCA 190, Tobias JA, with whom Beazley and Hodgson JJA agreed, said: "42. Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies. ... 47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is 'proper maintenance etc' of the eligible person. It is because of that context that, in the present case, the 'proper maintenance etc' of the appellant required consideration of a need to guard against the contingency to which I have referred."
In Devereaux-Warnes v Hall (No 3), at [81]-[84], Buss JA said, in respect of the first stage of the process: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227. 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10 - 11. The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575. Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803, per Ormiston J at 816 [38], 820 [47]."
"Need", of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]. It is different from "want" and does not simply mean "demand" or "desire". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808, at [54]: "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'."
In Boettcher v Driscoll [2014] SASC 86; (2014) 119 SASR 523, David J, at [41], added: "'Need' is not so synonymous with 'want' such that the two are interchangeable."
As Callinan and Heydon JJ emphasised in Vigolo v Bostin, at [122], the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined.
Yet, in referring to the concept of "need", it should also be noted that the statutory formula makes no reference to "need", but rather to "adequate provision for the proper maintenance, education or advancement in life". No doubt, this has prompted White J to write, in Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473, at [147], that "the need a claimant must demonstrate is a need for 'proper' maintenance, education and advancement in life", but that does not mean that "adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others". Respectfully, I agree. Consideration of "needs" must be in the context of the statutory formulation.
In the event that the court is satisfied that the power to make an order is enlivened (i.e. in this case, it is satisfied that the Plaintiff is an eligible person, and that adequate provision for his proper maintenance, education or advancement in life has not been made), then, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made.
The second stage of the process arises under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.
I have dealt with the question that has been raised in other cases whether the two-stage approach identified in Singer v Berghouse continues to apply to the provisions of the Act, the most recent of which is Aubrey v Kain [2014] NSWSC 15. I remain of the view that the two-stage approach should continue to apply. I shall not repeat what I have said, which is not affected by the recent decisions of the Court of Appeal in Phillips v James [2014] NSWCA 4; (2014) 85 NSWLR 619, Verzar v Verzar [2014], or Salmon v Osmond [2015] NSWCA 42.
(Since I delivered my reasons in Aubrey v Kain, Robb J has also considered the topic in Gardiner v Gardiner [2014] NSWSC 435. I respectfully adopt his Honour's reasoning, set out at [117]-[120], and [124], as to the persuasiveness of the reasoning of Barrett JA in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656. I also refer to what Bergin CJ in Eq has written in In the Estate of the late Anthony Marras [2014] NSWSC 915, at [15].)
Ultimately, as Allsop P said in Andrew v Andrew, at [6], it "may be an analytical question of little consequence" since the questions remain the same, namely, whether the court can make an order for provision (whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made) and, if so, whether it should (whether to make an order and, if so, the terms of that order). Accordingly, even if there remains some uncertainty as to whether the Act requires a two-stage approach, "it is settled that the determination under the legislation on either approach, involves an evaluative judgment": Salmon v Osmond, per Beazley P (with whom McColl and Gleeson JJA agreed), at [54].
Section 60 of the Act, at least in part, is new. It provides: "(1) The court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the 'applicant') is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person-the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew, at [37], as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380, at [121] and [123], as "a valuable prompt" to which the court may have regard, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order.
White J wrote in Slack v Rogan; Palffy v Rogan, at [121], that s 60 "lists a wide range of matters" that the court "may have regard to", but these do not provide any tangible assistance in answering the question in any particular case whether the provision made in a will was less than adequate for an eligible applicant's "proper" maintenance, education or advancement in life.
In West v Mann [2013] NSWSC 1852, Kunc J, at [12], wrote: "(10) Section 60(2) provides a helpful checklist but it is no more than that. The Court is not obliged to take those matters into account. The extent to which it does (if at all) will depend upon the facts of each particular case. (11) Section 60(2)(p) confirms the breadth of matters the Court can take into account. Once enlivened, the Discretion is expressly fettered only by the requirement in s 59(2) that if an order is made, it must be such order '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'".
Beazley P, in Phillips v James, at [51], described s 60(2) as involving: "[A] statutory iteration of matters that had always been considered relevant in the determination of claims for provision by persons claiming an entitlement under a testator's will. However, as Basten JA observed in Andrew v Andrew, the factors identified in s 60(2) provide a more focused direction to the Court as to relevant matters to which regard may be had. His Honour was of the view that the statutory list invites consideration of a broader range of factors than was previously the case. Whether or not that is so, the important matter is that the court is required to have regard to the circumstances, including those specified in s 60(2), that it considers relevant in determining whether to make an order for family provision and the nature of any such order."
In Chapple v Wilcox [2014] NSWCA 392, Basten JA, at [7], wrote: "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 such of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.
The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.
A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).
Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently.
Section 65(1) of the Act requires the family provision order to specify: (a) the person or persons for whom provision is to be made, and (b) the amount and nature of the provision, and (c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and (d) any conditions, restrictions or limitations imposed by the Court.
The order for provision may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the Court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).
Any family provision order under the Act takes effect, unless the court otherwise orders, in the case if the deceased made a will, in a codicil to the will (s 72(1) of the Act).
Section 66 of the Act sets out the consequential and ancillary orders that may be made.
Section 99(1) of the Act provides that the court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the court thinks fit.
Practice Note SC Eq 7, which applies to claims for a family provision order, provides, in Clause 24, that "[o]rders may be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the value of the estate is less than $500,000". (Of course, this is only one basis upon which costs may be capped. See, for example, s 98 of the Civil Procedure Act 2005 (NSW). Also, see Baychek v Baychek [2010] NSWSC 987; Dion Giuseppi Sergi by next friend Aileen Solowiej v Sergi [2012] WASC 18, per E M Heenan J, at [50]-[52].

Other Applicable Legal Principles - Substantive Application

Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges and I have repeated them in many cases under the Act.
Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve "an overall fair" disposition of the deceased's estate. It is not part of the court's function to achieve some kind of equity between the various claimants. As Pembroke J has recently repeated in Sung v Malaxos [2015] NSWSC 186, at [5]: "Fairness and equality are not touchstones for relief under the Succession Act."
The court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act to correct the hurt feelings, or sense of wrong, felt by an applicant. Rather, the court's role is of a specific type and goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance, education and advancement in life of an applicant.
The court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation. "Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court": Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90, at [63].
Of that freedom, in Grey v Harrison, at 366, Callaway JA said: "[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, I noted, at [108], that: "Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated."
As Pembroke J said 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."
In Brand v Brand [2015] NSWSC 52, Pembroke J, at [21]-[23], referred to Goodsell v Wellington and also repeated what he had said, to similar effect, in Madden-Smith v Madden (estate of the late Doris Linda Madden) [2012] NSWSC 146, at [30]-[34] and to the passage in Wilcox v Wilcox quoted above. See also Salmon v Osmond, per Beazley P, at [69]-[77]. Thus, mere judicial opinion should not be substituted for that of the deceased as the preferred way of distributing his, or her, estate.
Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales, at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.
As Allsop P said in Andrew v Andrew, at [16]: "If I may respectfully paraphrase Sheller JA [in Permanent Trustee Co Limited v Fraser (1995) 36 NSWLR 24 at 46F-47B], the Court in assessing the matter at s 59(1) and the order that should be made under s 59(1) and (2), should be guided and assisted by considering what provision, in accordance with perceived prevailing community standards of what is right and appropriate, ought to be made. This, Sheller JA said ... involved speaking for the feeling and judgment of fair and reasonable members of the community. It is to be emphasised that s 59(1)(c) and s 59(2) refer to the time when the Court is considering [an application for a family provision order] and the facts then known to the Court. The evaluative assessment is to be undertaken assuming full knowledge and appreciation of all the circumstances of the case. This ... makes the notion of compliance by the testator with a moral duty (on what he or she knew) apt to distract from the statutory task of the Court."
Barrett JA, at [95], wrote: "Because, in this case, Lynne, as plaintiff, failed at the first stage (by reason of a finding that the testatrix, in giving a legacy of $10,000, did not fail to make adequate provision for her), it is appropriate to say something more about the judicial function at that first stage. It has been recognised by this Court that 'community expectations' play a role in the decision whether provision made by a testator is adequate in the relevant sense. Reference may be made to Hertzberg v Hertzberg [2003] NSWCA 311 at [34], McCarthy v McCarthy [2010] NSWCA 103 at [20] and Evans v Levy [2011] NSWCA 125 at [51]. In the McCarthy case, Young JA said (with the concurrence of Tobias and Macfarlan JJA): So long as he complies with community expectations and what is sometimes called 'moral duty', the deceased is able to leave his property as he wishes."
In Chapple v Wilcox, Basten JA, at [12], and by Barrett JA, at [63]-[64], emphasised the central role played by "community standards" or "community expectations" in any decision whether to take the significant step of overriding the expressed wishes of the deceased.
How the community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew, at [36] (Basten JA). His Honour added, in Phillips v James, at [113]: "As discussed by Allsop P in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 at [16], one can say little more as to the standards and values to be applied than that the court should be guided by its perception of 'prevailing community standards of what is right and appropriate'. Views will undoubtedly vary within the community as to the weight to be given to a testator's wishes as expressed in the will: Andrew v Andrew at [35]."
Thus, "there are difficulties for the Courts in making their own unaided assessment of current community attitudes in a complex and changing social environment": Williams v Aucutt [2000] 2 NZLR 479, at [44]. As was said by White J in Slack v Rogan; Palffy v Rogan, at [125]: "I know of no way of determining what the community would expect, or what its standards are, or values would be. I do not know, but suspect, that the expectations of individual members of the community would vary widely. It may be that the Act itself, at least insofar as it goes beyond allowing provision to be made in favour of spouses and minors or disabled children, runs counter to community expectations about freedom of testamentary disposition. As Basten JA said in Andrew v Andrew, the only guiding light, consistent with the rule of law, for the identification of community standards are those reflected in current legislation. No legislation other than the Succession Act itself is relevant to the present case. Attempts to identify particular community standards, for example, that a testator need not make provision for an able-bodied son, or that a widow's claim is paramount, have been rejected. To say that the court itself is the spokesman for the fair and reasonable man or woman in the community is to acknowledge that in truth there is no ascertainable external community standard to guide the decision."
In all cases under the Act, what is adequate and proper provision is necessarily fact specific.
The Act is not a "Destitute Persons Act" and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice; Allardice v Allardice (1910) 29 NZLR 959, at 966. The use of the word "proper" requires consideration to be given to more than satisfying the basic needs of an applicant (cf Chandler v Coulson [2015] NSWSC 172, per Pembroke J, at [26]).
The standard of living of an applicant during the lifetime of the deceased is relevant, but the fact that he, or she, has lived frugally, or that he, or she, has become accustomed to a life of relative penury, does not mean that the deceased's obligation under the Act is satisfied so long as the applicant can continue in that state: Pogorelic v Banovich [2007] WASC 45, [62]; Butcher v Craig [2009] WASC 164.
Nor is it the purpose of the Act to punish, or redress, past bad, or unfeeling, parental behaviour, where that behaviour does not still impinge on the applicant's present financial situation. In other words, a claim under the Act does not encompass compensation, or reparations, to an applicant for the deceased as his, or her, parent, having failed in the legal, or moral, duty to be a good and responsible parent of the child: Re Bull [2006] VSC 113; Cameron v Cameron [2009] SASC 27, at [41].
All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singer v Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12, at [56]. Nor does it follow that if the court decides it is inappropriate to make a specific provision in respect of one identified head of claim that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams, at [89].
What was said in Edgar v Public Trustee for the Northern Territory [2011] NTSC 5, per Kelly J, at [46], should be remembered: "There is no onus on the ... residuary beneficiary under the will to show that she is entitled to be treated as such - or to prove what may be necessary for her proper maintenance and support. Rather the onus is on the plaintiff to show that proper provision is not available for him under the terms of the will. In determining whether this is the case the Court must have regard to all relevant circumstances including the size of the estate and the nature of the competing claim by the widow. In performing this task the Court must have due regard to the will of the testator and should interfere only to the minimum extent necessary to make adequate provision for the proper maintenance, education and advancement in life of an applicant who has passed the first jurisdictional hurdle. As Dixon CJ said in the passage from Scales quoted above, due regard must be had to 'what the testator regarded as superior claims or preferable dispositions' as demonstrated by his will." (Footnotes omitted)
As stated in the above passage, the size of the estate is a significant consideration in determining an application for provision. It is important to remember what Salmond J said in In re Allen (Deceased); Allen v Manchester [1922] NZLR 218, at 221: "Applications under the Family Protection Act for further provision of maintenance are divisible into two classes. The first and by far the most numerous class consists of those cases in which, owing to the smallness of the estate and to the nature of the testamentary dispositions, the applicant is competing with other persons who have also a moral claim upon the testator. Any provision made by the Court in favour of the applicant must in this class of case be made at the expense of some other person or persons to whom the testator owed a moral duty of support. The estate is insufficient to meet in full the entirety of the moral claims upon it, in the sense that if the testator had possessed more he would have been bound to do more for the welfare of his dependants. In such a case all that the Court can do is to see that the available means of the testator are justly divided between the persons who have moral claims upon him in due proportion to the relative urgency of those claims."
Whilst fully contested applications in small estates should be discouraged, because the costs tend to become wholly disproportionate to the end result, there is nothing in the Act that excludes the possibility that orders for further provision be made from a small estate: Morris v Smoel [2014] VSC 32, at [68]. The court must still consider all the relevant circumstances before a decision is made: Re Coventry (Deceased) [1979] 3 All ER 815, at 820; Alcock v Cooper [2010] SASC 167, per Lunn M, at [39].
Yet, in small estates particularly, the court should be careful not to foster the proposition that obstinacy and unreasonableness will not result in an order for costs: Dobb v Hacket (1993) 10 WAR 532, at 540.
In relation to the Plaintiff's claim, being a claim by an adult child, the following principles are useful to remember: (a) The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. 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: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801; Kohari v Snow [2013] NSWSC 452; Salmon v Osmond, at [109]. (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute: Taylor v Farrugia, at [58]. (d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland, Deceased [1966] VR 404, at 411; Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, at 148; Goodman v Windeyer, at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons: Re Buckland, Deceased, at 411; Kleinig v Neal (No 2), at 537; Mayfield v Lloyd-Williams, at [86]. (e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2), at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37, at 45 (Nicholson J). (f) 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]; Crossman v Riedel [2004] ACTSC 127, at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297, at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig, at [17]. (g) 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. (h) Although some may hold the view that equality between children does not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not entirely consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the court's determination of the applicant's case. In Barna v Barna [2008] NSWSC 1402, Brereton J noted, at [27]: "The obligation to make provision for persons for whom the community would expect a testator to make provision does not import an obligation to deal with children equally. A testator is entitled to deal differently with his or her children, and the quality of the relationship that the testator has with each of the claimants on the estate is a relevant consideration."
Yet, in Phillips v James, Basten JA, in the context of a dispute between siblings, made the following statement at [113]-[114]: "[T]here 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."
In Foley v Ellis, Sackville AJA, at [88], noted that Singer v Berghouse "strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act".
In Salmon v Osmond, at [103], Beazley P stressed the relevance of having regard to the deceased's obligations to all other claimants and concluded, in that case, that even "without regard being had to the costs ordered to be borne by [the beneficiary's] share of the estate, the legacy ordered in [the Plaintiff's] favour is disproportionate to any rightful claim she may have when regard is had to [the beneficiary's] rightful claim to the deceased's bounty".

Qualifications on "Principles"

As I have stated in a number of cases (see, for example, Bowditch v NSW Trustee and Guardian [2012] NSWSC 275), I do not intend what I have described as "principles" to be elevated into rules of law, propositions of universal application, or formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion at the second stage should be constrained, by statements of principle found in dicta in other decisions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I identify them merely as providing useful guidance, which may be applied, with circumspection, in considering the statutory provisions, the terms of which must remain firmly in mind.
It is necessary for the court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the bases for a family provision order have been established. Every case is different and must be decided on its own facts. As Lindsay J said in Verzar v Verzar [2012], at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."
The importance of the qualifications to which I have referred in the last two paragraphs have been stressed in Chapple v Wilcox by Basten JA, at [18]-[20], and by Barrett JA, at [66]-[67].

Credit of the Parties

Only the Plaintiff and the Defendant gave evidence. Because of the significant difference between them as to a number of facts, it is necessary to express my view on the credibility of each of them.
In relation to the Plaintiff, there was one aspect of his evidence that, initially, I found difficult to accept, but having carefully considered his written and his oral evidence, as well as the other evidence in this case, I am unable to conclude, on the balance of probabilities, that I should not accept his evidence on the topic of his financial resources.
The evidence that he does not work very much and that his weekly income is extremely small, initially, seemed somewhat implausible, particularly bearing in mind some of his expenditure (for comprehensive car insurance), and although he was cross-examined to suggest that he earned income that he had not disclosed from the ownership, and operation, of a number of businesses, there was no actual evidence to enable me to conclude that he had either income, or assets, which he had concealed from the court.
In this regard, I accept that before the Court can make a family provision order in an applicant's favour, it needs to be satisfied that he, or she, has been left without adequate provision, and that before the court can be so satisfied, it needs to be persuaded that it has been presented, at least in broad outline, with the whole picture concerning the applicant's financial position: Collings v Vakas [2006] NSWSC 393, per Campbell J, at [66]-[67].
For example, the Plaintiff did not produce, in answer to a notice to produce, any income tax returns for the financial years ending 2012, 2013 and 2014. When asked why he had not done so he said: "I have not worked. I have not earned enough money to … put my tax return in": T22.45-T23.04. There was no further cross-examination on this topic.
Furthermore, although he did produce bank statements in answer to a notice to produce, no documents were tendered by the Defendant to contradict the Plaintiff's sworn affidavit evidence that he had a negligible amount in his bank account.
The cross-examination of the Plaintiff on his involvement in particular businesses or organisations, one of which he said conducts "pageants" to raise money for charity, whilst time-consuming, did not actually result in me being able to conclude that what the Plaintiff said about his involvement was false. He said that his involvement with the business or organisation was in order to gain experience in "event organisation", and that the franchisee of the business was a friend. He denied owning the franchise: T29.03-T29.07.
In re-examination, the Plaintiff said that he had not earned any money from any business or organisation, the name of which had been registered by him: T36.41-T37.02. He also said that none of the registered business names had any value as no business was being conducted: T38.06-T38.09.
In this regard, it is clear that the Defendant had access to the internet, from which source information had been retrieved, enabling his counsel to cross-examine the Plaintiff. It was suggested to the Plaintiff that the business or organisation in which he was involved was "the adult entertainment industry" (see, for example, Ex. D2). It was also suggested that the Plaintiff "made a considerable amount of money out of the adult [entertainment] business over the last few years", each of which matters the Plaintiff denied: T35.27-35.29.
The same source also provided the identity of other persons involved in at least one of the organisations, with the Plaintiff (part of Ex. D1), who might have been able to be contacted with a view to establishing what was said to be the Plaintiff's true involvement in these organisations. There is no evidence of any such contact by the Defendant and none of those persons was called.
There was also cross-examination on a business card, said by the Plaintiff to have been printed on his computer in about 2007, and the acknowledged use, by the Plaintiff on that business card, and elsewhere, of a pseudonym (part of Ex. D1). Once again, whilst time consuming, the cross-examination did not really lead anywhere, and the Plaintiff's answers do not enable me to conclude that the explanation given by the Plaintiff for the reason for the production of the business card, or for the adoption of a pseudonym, was each false.
In addition, whilst much was made of the Plaintiff's evidence that he owned a number of motor vehicles, and the reasons why two of them were comprehensively insured (when one considers the type, and age, of each of those vehicles as disclosed by the Plaintiff in his affidavit evidence), the challenge made is not of any real value other than, perhaps, to cause some scepticism.
He was also challenged on his evidence about a trip that he had made (for four or five months) in late 2012 and early 2013. He explained that part of the trip had been paid for by an ex-girlfriend, that he had obtained "a pretty good deal" with air fares, and that he had travelled to Serbia at the request of the deceased: T25.06-T26.06.
Nor was there any other demonstration that the Plaintiff was living beyond his disclosed means. He shares a home with his brother, Douglas, in which they live with their mother. He acknowledged that he paid no rent to his mother. The Plaintiff does not have any property of any real value that suggests that he has, or has had, a source of income, or capital, which belies his sworn evidence.
I should deal with two aspects of the Plaintiff's evidence, the first relates to a prior Will of the deceased, which evidence I have carefully considered since it impacts on the second aspect, namely the Defendant's case that there was misconduct by the Plaintiff in the treatment of the deceased for most of the Plaintiff's adult life.
The Plaintiff gives evidence of the deceased having told him of a Will, prepared by the Defendant's current solicitor, in 1999 or in 2000, in which Will the Plaintiff was named as the executor and sole beneficiary. A copy of that Will is not in evidence.
Despite this evidence, the Defendant's current solicitor, who has acted for the Defendant in the proceedings, and who was present in court throughout the hearing, did not give any evidence on this topic. There was no explanation proffered for his failure to do so. (I should mention that he had sworn an affidavit on 29 October 2014 in which he deposed to service of the prescribed notice on a number of eligible persons.)
It was not accepted by counsel for the Defendant that the Defendant's solicitor was a witness who would be expected to be called by the Defendant. He submitted that the Plaintiff could have called the solicitor and asked him questions on the topic.
With respect, I disagree. The Plaintiff gave evidence, upon which he was not challenged, either in the affidavits in reply, or in cross-examination. The evidence was not inherently improbable.
On the other hand, if the evidence of the Plaintiff was seriously in dispute, one would have expected the Defendant to dispute it, and the best person to provide the evidence to raise the dispute, by evidence in reply, would have been the Defendant's solicitor.
(The fact that the Plaintiff's counsel did not wish to cross-examine Mr Stojanovic, who had sworn a formal affidavit of service of the prescribed notice is unsurprising, bearing in mind that there was nothing in his affidavit on this topic.)
In those circumstances, I am comfortably satisfied that the Defendant's solicitor is a witness who would be expected to be called by the Defendant.
As has recently been repeated by the Court of Appeal in RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56, per McColl JA (with whom Sackville AJA agreed), at [75]-[76]: "The rule in Jones v Dunkel is that the 'unexplained failure by a party … to call witnesses … may in appropriate circumstances lead to an inference that the uncalled evidence … would not have assisted that party's case': Cross on Evidence ('Cross'), LexisNexis (at [1215]). Any 'explanation' such as unavailability or absence of recollection for the failure to call the witness must be established by evidence: West v Government Insurance Office (NSW) [1981] HCA 38; (1981) 148 CLR 62 (at 70) per Murphy J; Rowell v Larter (1986) 6 NSWLR 21 (at 24 - 25) per Young J (as his Honour then was). The 'rule cannot be applied to the non-calling of a [non-party] witness unless it would be natural for the party to call the witness, or the party might reasonably be expected to call a witness': Cross (at [1215]); O'Donnell v Reichard (at 729) per Newton and Norris JJ. The circumstances for drawing a Jones v Dunkel inference are found where the uncalled witness is 'a person presumably able to put the true complexion on the facts relied on [by a party] as the ground' for any inference favourable to the plaintiff: Jones v Dunkel (at 308) per Kitto J; Australian Securities and Investments Commission (ASIC) v Hellicar [2012] HCA 17; (2012) 247 CLR 345 … (at [168]) per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ."
It follows that I am able to draw an inference not that the evidence not called would have been adverse to the Defendant, but that it would not have assisted the Defendant.
On the second aspect of the Plaintiff's evidence, the Defendant relied upon a written statement signed by the deceased on 12 January 2012. (There was no dispute that the person referred to as "Neven" in that document is the Plaintiff.) He wrote that he had been informed by his solicitor that the deceased had delivered the document to the solicitor. The statement, which was translated from the Serbian language into the English language by a NAATI Accredited Interpreter in the Serbian language, provided: "I was hospitalised twice, and I had three operations. My son, Neven Ciric, told me that second operation lasted for five hours and that during that operation I stopped breathing 2 times, and that doctors managed to resuscitate me. Before and after operation I had various scans and I was and I am still taking various medications. When I was in a most difficult situation, my son, Neven Ciric, tried to trick me into writing a will by which he would inherit my house. In this situation, I do not recognise what I wrote and am asking for this will to be annulled immediately. As soon as I wrote down my will, he tried to put me in the retirement village. As you can see, this is a brazen and rotten scheme."
(The translation is slightly different to the translation annexed to the Defendant's first affidavit. However, nothing turns on the differences.)
Section 100(2) of the Act provides that in any proceedings under Chapter 3, evidence of a statement made by a deceased person is, subject to this section, admissible as evidence of any fact stated in it of which direct oral evidence by the deceased person would, if the person were able to give that evidence, be admissible.
Section 100(5) and s 100(6) provide: "(5) Where a statement made by a deceased person during the person's lifetime was contained in a document, the statement may be proved by the production of the document or, whether or not the document is still in existence, by leave of the Court, by the production of a copy of the document, or of the material part of the document, authenticated in such manner as the Court may approve. (6) Where, under this section, a person proposes to tender, or tenders, evidence of a statement contained in a document, the Court may require that any other document relating to the statement be produced and, in default, may reject the evidence or, if it has been received, exclude it."
Also, Gibbs J said in Hughes v National Trustees Executors & Agency Company of Australasia Ltd, at [18]: "Nevertheless in Australia for many years the courts have admitted evidence of statements made by a testatrix explaining why she made her will as she did. In taking this course the courts have no doubt been influenced by a desire to be informed of the reasons which actuated the testatrix to make the dispositions she had made, and by the consideration that in cases of this kind a claim is made against the estate of a person who is deceased and can no longer give evidence in support of what she has done. It is doubtful whether, in most cases, such evidence is relevant, but usage justifies its reception. The question is for what purpose it may be used, once admitted. The balance of authority clearly favours the view that it is admissible only to provide some evidence of the reason why the testatrix has disposed of her estate in a particular way, and that it is not admissible to prove that what the testatrix said or believed was true: Re Jones (1921) 21 SR (NSW) 693, at p 695; In re Smith (1928) SASR 30, at p 34; In the Will of Joliffe (1929) St R Qd 189, at p 193; Re G. Hall, deceased (1930) 30 SR (NSW) 165, at p 166; In re Green, deceased; Zukerman v Public Trustee (1951) NZLR 135, at pp 140-141 (a case decided before the amending legislation was enacted in New Zealand). This view was accepted as correct by Taylor J. in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR, at p 24; Taylor J. dissented in the result in that case but there is nothing to suggest that his opinion on this point differed from that of the majority of the Court."
The Plaintiff denied that he had attempted to cause the deceased to change his Will. Since I am satisfied about the existence of an earlier Will, made in 1999 or 2000 by the deceased, in which the Plaintiff was the sole executor and beneficiary, and no other Will, other than the last Will of the deceased, Probate of which was granted, has been located, there would have been no need for the Plaintiff to do so prior to the last Will being made. One asks, rhetorically, what the Plaintiff could have achieved by tricking the deceased into making another Will prior to the last Will having been made?
It follows that I am unable to conclude that the whole of the statement of the deceased about the Plaintiff is accurate.
In relation to the assertion in the statement about the Plaintiff trying to put the deceased into a retirement village, there is simply no evidence that he did so. The Plaintiff's evidence on this topic, which seems inherently plausible, is that he never told the deceased that he wanted to put him in a retirement village. Rather, he told the deceased that he should be cared for at home, but if he was not, he would need to go into a nursing home.
The Plaintiff gave evidence, which the Defendant confirmed, of having organised a carer to look after the deceased when he was released from Liverpool Hospital and that the carer stayed with the deceased for 4 weeks. He also said that it was he who contributed to the payment of the carer. This was not disputed and seems somewhat inconsistent with the Plaintiff wanting to place the deceased in a retirement village. Accordingly, I do not accept that the deceased's statement about the Plaintiff on this topic was accurate.
The Plaintiff also gave evidence of regularly visiting the deceased after his release from hospital, except for the 5 month period in which he was overseas (although he continued to make contact by telephone).
I turn then to the Defendant. I have earlier referred to the Defendant's failure to disclose the bank account into which the rent of the Mt Pritchard property had been paid and which rent would have formed part of the estate of the deceased. It is clear that he did not inform his legal representatives of the existence of the bank account at any time (since the matter was not raised in the Defendant's last affidavit, or in the discussion between Bench and bar about the nature and value of the deceased's estate at the date of hearing).
In addition, it was not until the day before the hearing that the Defendant served any appraisal relating to the Mt Pritchard property. Until then, it seems that he was asserting that its value was about $400,000. It is clearly worth more than that (as evidenced by the agreed estimate of value for the purposes of the hearing). When cross-examined about this, the Defendant laid the problem at the feet of his solicitor, saying that he had "left it up to my solicitor to follow up and do": T49.13-T49.25. However, later, he accepted that he had not given instructions to his solicitor until after he had received an appraisal from the Plaintiff: T49.29-T49.38.
I am satisfied that the size of the estate is greater than that asserted by the Defendant until shortly before the hearing.
When the Defendant was asked what part of the amount borrowed had been used for his own purposes, he did not know saying that "I do not have the exact figures with me": T48.20-T48.24. He accepted, however, that he had repaid credit card debts using the amount drawn down. One would have expected this evidence to be readily available and to have been disclosed fully and accurately.
The Defendant, as will be read, maintained throughout the proceedings that the Plaintiff had engaged in what might be described as "conduct disentitling" towards the deceased. However, when pressed on the topic in cross-examination, the only basis for maintaining the position was what had been told to him by the deceased. For example, he acknowledged that he did not know whether the content of the written statement made by the deceased was true: T54.41-T54.47. He did not advance any personal observations of such conduct.
I should mention, also, that the Defendant had included in his affidavit a reference to other statements made, in which the deceased told the Defendant that the Plaintiff had visited and had assisted with shaving and feeding: T50.13-T50.24. He also accepted that when the deceased had a car accident, it was the Plaintiff who did all the panel beating and re-painting of the car as it was uninsured: T53.24-T53.29.
Whilst I did not find the Defendant to be an intentionally untruthful witness, I am satisfied that he does not exhibit any goodwill towards the Plaintiff. (The Defendant, in his affidavit, acknowledged that he and the Plaintiff did not get on.) I thought that some of his evidence might have been coloured because of that. I have borne this in mind when assessing and evaluating his evidence.

The Submissions

Counsel for the Plaintiff submitted that the Plaintiff "has demonstrated that he was left without adequate provision and that he does have a moral claim on the estate of the deceased… [He] seeks an amount for provision within the amount available taking into account the competing claims of other persons being the $64,000 owing to his sister on a settlement disclosed by John in his updated affidavit."
Counsel pointed to the fact that the competing claim of the Defendant was not significant since the Defendant "has not disclosed his nor his wife's financial resources other than the fact that he is employed as a technician and his normal income is $80,000 but says he can earn more if he works overtime".
Counsel for the Plaintiff submitted that the Court "is entitled to assume that [the Defendant] has adequate resources upon which to live and has no special claim on the deceased's bounty where he has not made full disclosure and said virtually nothing about his and his wife's financial situation".
I shall refer to the Plaintiff's evidence about his "needs" later in these reasons, which needs, it was submitted, should be met out of the deceased's estate (despite the fact that the amount identified would result in the Defendant, as the chosen object of the deceased, receiving very little (about $30,000) out of the deceased's estate after the payment of the debts, funeral, and testamentary expenses, and the costs of these proceedings).
Counsel for the Defendant, after identifying the factual issues, submitted that "[a]ny award would involve leaving very little for the defendant, a result that would thwart the deceased's wishes. The deceased clearly had the view that the applicant for provision was seeking to take unscrupulous advantage of the deceased. The relationship between the deceased and the applicant is a relevant factor which the Court should take into account. In summary, given the very limited estate it is submitted that the Court should make no award or at most an award of a very small amount."
The Defendant submitted that the Plaintiff's Summons should be dismissed. At the hearing, he submitted that if it was not, that the Plaintiff should receive a modest legacy ($15,000 to $20,000).

Additional Facts

I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar [2012], at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered. (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship
There is no dispute that the Plaintiff is a son of the deceased. He was born in Serbia. The deceased and his family arrived in Australia, for the first time in 1969, but returned to Serbia in 1972. They lived in Serbia, between 1972 and 1980. During his time in Serbia, the deceased did not live with the family all of the time. The family returned to Australia in about 1980.
The Plaintiff described the deceased as "difficult and demanding". He stated that in 1983, the deceased "kicked me out". He lived with others, including his older sister, who lived in Queensland and did not see the deceased for about three years. He returned to Sydney, in 1986, he says, at the request of the deceased. He also says that, thereafter, he had a close relationship with both of his parents.
He obtained employment and continued to work until 2008, when he says he ceased full-time work "due to the demands of helping my father and assisting my brother Douglas with caring for my mother".
The Plaintiff says that in 2011, the deceased accused him of misappropriating money. He denies having done so. He was not asked any questions about this topic in cross-examination.
Although the Defendant did not allege any estrangement between the Plaintiff and the deceased, he maintained that the relationship was neither close nor loving. It was put to the Plaintiff that he had a poor relationship with the deceased and that the deceased had always been suspicious of the Plaintiff, matters which the Plaintiff denied (although he volunteered that they had "some up[s] and down[s]").
I do not accept the Defendant's evidence in this regard as I am satisfied, from the whole of the evidence, that there was a reasonably close familial relationship between the Plaintiff and the deceased, which extended for the whole of the Plaintiff's life, apart for the period between about 1983 and about 1986, and perhaps, for mistaken reasons, during 2011 and 2012. (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 in the Act. Importantly, the Act does not expressly refer to, or identify, any "moral duty". Yet, one might conclude that what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities.
This factor requires a balancing of potentially competing obligations as between the applicant and each of the beneficiaries.
Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to each of his children, as an adult, 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], the origin of the obligation which underpins the Act's recognition of the duty owed by a parent to a child 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."
The fact that the applicant was financially independent of the deceased, for many years, before the deceased's death, is a relevant consideration in determining the extent of any obligation or responsibility owed. The size of the deceased's estate is also relevant to 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
I have earlier dealt with these matters. The net estate is very small. (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 had been an accredited RTA assessor and driver trainer and had conducted a business as such from various places. However, he said that he was no longer accredited: T28.22-T28.24. There was no suggestion that he did not have an earning capacity.
The Plaintiff, at the date of hearing, was not employed on a full time basis. He said that his current income is about $150 to $200 per week. He gave evidence that the source of income is sporadic work as a removalist and handyman. He denied any other sources of income. He agreed that he had a photography business but said that he did not earn any income from it: T27.50-T28.10. He also agreed that he had registered a number of business names, but denied that any business was in operation. (He had estimated that his income for the financial years ending 30 June 2013 and 30 June 2014 was between $3,000 and $4,000. This equates to between about $58 and $77 per week.) Whilst I am a little sceptical about some of this evidence, I am unable to conclude that he has a greater income than that which he disclosed.
His describes that the only "assets of any value" that he owns are motor vehicles, including the following: (a) a 2004 Daewoo bought for $5,000 in about 2010 with a current estimated value of $1,000; (b) a Mazda van (value undisclosed); (c) a 1998 Lexus (value undisclosed); (d) a Vulcan motorbike (value undisclosed); and (e) a 1993/1994 Nissan Skyline, with a current estimated value of $1,000. (This motor vehicle was not disclosed in the Plaintiff's affidavit as, according to the Plaintiff, "the car was broken down, so it wasn't worth anything": T24.07 - T24.09).
In the Plaintiff's first affidavit, he sought provision by way of a legacy of $300,000 which would provide him with: (a) a home; (b) furniture for the home; and (c) a contingency fund for medical conditions.
In the Plaintiff's updating affidavit, he notes that he "would be happy to go half in the net estate with my brother John". Yet, the provision he sought in this affidavit, was $170,000, which amount would provide: (a) $100,000, as a deposit to purchase a home and assist in re-starting his driving school business; (b) $20,000, to purchase a second-hand motor vehicle; and (c) $50,000, as a contingency fund for medical treatment, other emergencies, the occasional holiday, and to replace old furniture.
During oral submissions, counsel for the Plaintiff accepted that to achieve this level of provision, the court would be required to disregard, almost completely, the Defendant's claim upon the bounty of the deceased. Furthermore, there was no evidence of any attempts to locate such accommodation, its nature and cost, or reasons why such accommodation was required. In addition, there was no evidence of what would be required to recommence, or the costs of re-commencing, his driving school business.
It is clear from what has been said above about the size of the estate, that the claimed needs of the Plaintiff could only be satisfied out of the estate if the competing claim of the Defendant is virtually ignored. This prompted the Plaintiff, during oral submissions, to reduce, without specificity, the quantum of his claim.
The Defendant gave evidence only of his income, which he estimated to be $80,000 gross per year. He said that he could earn more if he worked overtime. He said nothing about his, or his wife's, assets and liabilities or his, her, or their, expenditure.
In Sammut v Kleemann [2012] NSWSC 1030, I described the position of a beneficiary who did not disclose his, or her, financial resources. I wrote, at [134]-[140]: "There is no statutory mandate requiring a beneficiary, or beneficiaries, to provide such details of his, or her, financial circumstances to the court. A beneficiary is entitled to elect to remain silent in relation to all matters, and in particular, as to his, or her, financial resources (including earning capacity) and financial needs, both present and future. In addition, as here, a beneficiary may expressly decline to submit that he, or she, has a competing financial need and provide no evidence of financial resources or needs. Where, as in this case, the beneficiaries have declined to provide such evidence to the court, the important question is what inference, if any, should be drawn from the beneficiaries' silence? In the present case, the beneficiaries are parties to the proceedings. Thus, the court may assume that they do not wish their financial resources (including earning capacity) and financial needs, both present and future, to be taken into account: Matthews v Wear [2011] NSWSC 1145, at [45], per Macready AsJ. The question, then, is what flows from a beneficiary's silence? The answer is, in those circumstances, that the court is entitled to infer that the beneficiary has adequate resources upon which to live and that he, or she, does not wish to advance a competing financial claim upon the bounty of the deceased: Anderson v Teboneras [1990] VicRp 47 ; [1990] VR 527 at 535, per Ormiston J; Frey v Frey (as personal representatives of the estate of HE Frey, dec'd) [2009] QSC 43, at [148], per A Lyons J; Edgar v Public Trustee for the Northern Territory, at [54], per Kelly J; Neil v Jacovou [2011] NSWSC 87 at [248] per Slattery J; Haklany v Gittany [2011] NSWSC 1549 at [49]-[51] per Slattery J; Hyatt v Covalea [2011] VSC 334, at [128], per Zammitt AsJ; Davis v Davis [2012] NSWSC 201, at [80], per Slattery J; Paola v State Trustees Ltd [2012] VSC 158, at [46], per Zammitt AsJ; and Collins v Mutton [2012] NSWSC 548. However, the claims of a beneficiary, as the chosen object of the deceased's testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, and also as a person whose interest in the estate may bear the burden of the order made in favour of the applicant, are to be borne in mind. (It is to be remembered that the court must specify, amongst other things, 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: s 65(1)(c) of the Act.) Where there is no evidence from the beneficiary, it is those claims (i.e. as the chosen object of the deceased's testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, or as a person whose interest in the estate may bear the burden of the order made in favour of the applicant), rather than any financial claim upon the bounty of the deceased, that should be considered. Put another way, and using the oft-quoted words of Salmond J in Re Allen (dec'd); Allen v Manchester [1922] NZLR 218, at 220, the court is not able to have regard to 'the means' of the beneficiary, but the court may still consider 'the deserts of the several claimants' and the 'relative urgency of the various moral claims upon [the deceased's] bounty'. The court will, thereby, give due regard to 'what the testator regarded as superior claims or preferable dispositions' as demonstrated by his, or her, will: Pontifical Society for the Propagation of the Faith v Scales at 19, per Dixon CJ. In this way, too, the court gives weight to the principle of freedom of testation referred to earlier."
To the above authorities on this topic should be added Tobin v Ezekiel, per Meagher JA, at [94].
It follows that I should draw the inference that the Defendant does not assert any competing financial claim on the bounty of the deceased. However, he does assert his claim as a chosen object of the deceased's bounty. (e) if the applicant is cohabiting with another person-the financial circumstances of the other person
There is no evidence that the Plaintiff is cohabiting with any person other than his brother, Douglas and their mother Milica, who they look after with the assistance of a paid carer. They live in the home of their mother. The Plaintiff does not pay any rent or occupation fee.
The Plaintiff does not provide any evidence about the financial circumstances of Douglas.
One of the matters relied upon by the Plaintiff is the fact that his financial resources are now reduced because of the responsibility that he has taken on to assist his brother in the care of their mother, the third wife of the deceased. (The Plaintiff is also the financial manager of Milica's estate.)
In Re Buckland (deceased), Adam J considered what use could be made of evidence that the applicant for provision had voluntarily assumed the burden of financially supporting her mother. At 411-412, his Honour wrote: "Among the circumstances which Mr Hulme, who appeared for the plaintiff, submitted that I should take into consideration in determining what provision was proper for the testator to make for the maintenance and support of his client, was the circumstances that she was the sole support of her mother - the first wife of the testator - and in fact was supporting her with some liberality out of her resources. The testator made no provision by his will for the plaintiff's mother, and it appears that apart from the generosity of the plaintiff she is now without means of support. The reasons for the testator making no provision at all for her have not emerged in the evidence. Under the testator's family maintenance legislation in Victoria, there is provision for a former wife claiming maintenance out of the estate, but subject to certain conditions which presumably are not fulfilled in this case. In any case, the plaintiff's mother has not made any such application. Although one cannot but feel sympathy with the plaintiff in accepting the burden of making financial provision for her mother, I consider that the fact that she is doing so cannot properly enter into my consideration of what was adequate provision for the proper maintenance and support of the plaintiff herself. No authority has been cited to me suggesting this is so, and it would seem that to allow this circumstance to affect the matter would involve the making of provision out of the estate, albeit indirectly, for the maintenance of the testator's former wife under guise of providing maintenance for his child. It is the obligation of the testator towards his child for the maintenance which is in issue in these proceedings, and nothing else. This conclusion does not, of course, mean that the circumstance of a daughter of the testator being burdened with providing for and maintaining her own infant children would be an irrelevant consideration. But the obligation of a parent to provide for his or her own infant children is one thing; the burden voluntarily assumed of an adult child providing for her mother is quite another. In any case, it appears from the evidence that it was only after the testator's death that the plaintiff undertook the obligation of providing for her mother, and as the position as at the date of the testator's death is what is material is determining whether he had fulfilled his statutory obligation to make adequate provision by his will for proper maintenance of his child, it seems clear that the extent of that obligation cannot in this case be affected by this particular circumstance."
Holland J made similar observations of a comparable situation in Kleinig v Neal (No 2), at 537, when he wrote: "It was submitted for the defendants that the mother's potential dependency upon the plaintiff was not relevant to a consideration of his claim on his father's estate. The defendants objected to the admissibility of evidence that was tendered on this matter. As it seemed to me that actual and potential burdens on the financial resources of an applicant existing at the date of death, including those for which there was only a moral and not a legal responsibility, could be material circumstances in considering an applicant's claim, I admitted the evidence that was tendered. As the mother herself can have no claim to provision for her maintenance out of the deceased's estate, any financial dependence of the mother upon an applicant son could not, I think, be used to increase the amount that would otherwise be ordered to be paid to the son if his claim was successful; but I see no reason why the court should not have the benefit of knowing all of the family circumstances in which a claimant finds himself in assessing whether the claimant has a need for provision for his own maintenance, education and advancement in life."
I appreciate, in this case, that the Plaintiff does not frame his case upon the basis that he must provide, financially, for his mother. What he submits is that his financial resources have been reduced because of the care and attention that he provides to his mother and also the care and attention he had provided to the deceased.
In my view, that is relevant to explain the financial resources (including earning capacity) that the Plaintiff has, but the circumstance does not result in the Plaintiff receiving more by way of provision out of the estate of the deceased. There is no suggestion that, at the date of his death, the deceased owed any obligation to Milica. (I shall return to the contribution made by the Plaintiff to the deceased later.)
Finally, on this topic, I am satisfied that the Plaintiff does have an earning capacity, and if he chose to, he could probably earn more income than he presently does. Also, there is no suggestion that, upon the death of Milica, or if she moves to a nursing home, he will not be able to return to full-time work.
There was no evidence given about whether Milica had made a Will, and if so, its contents. (I should mention that the Defendant admitted that he had not seen Milica since 1996 although there is a dispute about whether he has sought to visit her.) (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 Plaintiff states that he is in "poor health", suffering from a thyroid problem with high cholesterol and low blood pressure. He occasionally takes medication for stress. He does not assert any disabilities.
The Defendant does not assert any physical, intellectual or mental disability. (g) the age of the applicant when the application is being considered
The Plaintiff was born in 1967 and is currently aged 47 years. (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 gives evidence of the contributions made by him to the deceased. Since his return to Sydney in 1986, the Plaintiff would visit his parents and would sometimes pay the deceased's bills, and at one stage gave the deceased $1,000 per week in order to pay bills. The Plaintiff states that the deceased would regularly ask for money, he would approach the Plaintiff with his problems and also ask the Plaintiff to interpret correspondence received.
The Plaintiff maintained the deceased's home through caring for the gardens and lawns and he repaired motor vehicles for him. He also took the deceased to monthly appointments with Professor Bruce Hall.
The Plaintiff states that "[i]n the last few years before his death [he] was the only one helping [the deceased]". He says that he gave up his full time occupation as a driving assessor to be of assistance to the deceased (and also to assist Milica).
When the deceased was hospitalised in 2011, the Plaintiff says he visited the deceased on a daily basis. (The Defendant says that he did not see the Plaintiff when he visited the deceased, but acknowledges that this was because they did not get on, a fact known to the deceased who wished to avoid them arguing.)
The Plaintiff performed the deceased's "home duties and [took] over his responsibilities of his security job". He also "hand fed him, shaved him and was in contact with his doctors". As referred to earlier, the Plaintiff states that he arranged a carer for the deceased when he was discharged from hospital. The Plaintiff "set up his bedroom with a bed, hospital table, recliner chair, and a walking frame" which were personally paid for by the Plaintiff and amounted to at least $2,500. The Plaintiff was not cross-examined about these matters.
The Plaintiff tendered an electricity bill for the Mt Pritchard property (Ex. D3), addressed to him for the period 12 December 2013 and 16 February 2014 which refers to a previous bill for $127.18, which he says he paid. (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
There is no suggestion that the deceased made any provision for the Plaintiff during the deceased's lifetime. I have also stated that the Plaintiff is not a beneficiary named in the Will. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person
There is evidence about testamentary intentions other than as disclosed in the Will of the deceased. I have earlier referred to the Plaintiff's evidence of an earlier Will, which evidence I accept.
While the Court will consider any explanations given by the deceased in the will, or elsewhere, for excluding a particular person as a beneficiary, such explanations do not relieve the Court from engaging in the enquiry required by the Act: Slack-Smith v Slack-Smith [2010] NSWSC 625, at [27]. What an explanation may do is cast light on the relationship between the deceased and that person, at least from the deceased's perspective.
As was recently written in Salmon v Osmond, at [72], "a testator's explanation of why he made those decisions must be given appropriate weight. The weight that is given will depend, inter alia, upon whether it is apparent from the evidence that the testator's wishes and testamentary intentions are soundly based and not, for example, attributable to irascibility, mere dislike, or based on lack of information, or wrong information". Thus, whilst this sub-section permits the court to accept evidence of the reasons for the provision, or lack of provision, it does not compel the court to attribute any particular weight to that evidence or to accept the truth of what is asserted.
For the reasons expressed, I do not give very much weight to the contents of the handwritten document signed by the deceased. I am not satisfied that its contents are soundly based. (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 deceased did not maintain the Plaintiff wholly, or partly, before death, and so it seems, for many years before his death. (l) whether any other person is liable to support the applicant
There is no other person with a liability to support the Plaintiff. (m) the character and conduct of the applicant before and after the date of the death of the deceased person
An evaluation of "character and conduct" may be necessary, not for the sake of criticism, but to enable consideration of what is "adequate and proper" in all the circumstances. Importantly, the Act does not limit the consideration of "conduct" to conduct towards the deceased.
In Collicoat v McMillan [1999] 3 VR 803, at [40], Ormiston J wrote, in relation to the manner in which an applicant's behaviour towards the deceased is to be considered: "Ordinarily each of the persons who have a statutory right to make [an] application are entitled to have their position considered by a testator but their behaviour (right or wrong) towards the testator may only provide a basis for measuring appropriately the testator's obligation to make provision for each of those applicants. Their sins are irrelevant except in so far as a testator might properly take exception to their behaviour."
I am satisfied that there is no relevant conduct of the Plaintiff that impacts on the determination of what provision should be made for him out of the estate of the deceased. I have earlier referred to the nature of his relationship with the deceased and his contribution to the welfare of the deceased. (n) the conduct of any other person before and after the date of the death of the deceased person
I am satisfied that there is no relevant conduct of the Defendant that impacts on the determination of what provision should be made for the Plaintiff out of the estate of the deceased. I remember, of course, that he is the chosen object of the deceased's bounty.
There is a dispute about the nature of the Defendant's relationship with the deceased. However, I do not have to decide whose evidence is correct, on this topic, as the deceased regarded the Defendant as the person with the greatest claim on his bounty by naming him as the sole beneficiary.
The Defendant gave evidence of performing similar duties for the deceased (as the Plaintiff had alleged he had done).
Although there was some criticism made of the Defendant taking the deceased to the Defendant's solicitor for the purpose of changing his Will, there has been no challenge to the validity of the last Will. Also, rightly or wrongly, that is what the deceased wanted, as is clear from the handwritten note to which I have referred. (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.

Determination

Being an "eligible person" is a necessary precondition to the court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. There is no dispute 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 also no dispute that he brought his application within the time prescribed by the Act.
Thus, I must first consider, whether, at the present time, adequate provision for the proper maintenance, education, or advancement in life, of the Plaintiff has not been made by the deceased's Will.
There is no provision in the deceased's Will for the Plaintiff. However, this does not, automatically, mean that he will have satisfied the jurisdictional threshold. However, the fact that he does not receive any provision out of the estate or notional estate of the deceased, may enable the court the more readily to find that inadequate provision has been made: Turner v Perpetual Trustees Australia Ltd [2001] ACTSC 56, per Gray J, at [8].
However, the court is still required to consider all of the circumstances. Judged by quantum and looked at through the prism of his financial and material circumstances, adequate provision for the Plaintiff's proper maintenance or advancement in life was not made by the Will of the deceased. Whether inadequate provision was made requires an assessment of his financial position, the size and nature of the deceased's estate, the relationship between him and the deceased and other persons who have legitimate claims upon the deceased's bounty and the circumstances and needs of those other persons: see Tobin v Ezekiel, at [70]; McCosker v McCosker, at 571-572; Singer v Berghouse, at 210; Vigolo v Bostin, at [16], [75], [112]; and Verzar v Verzar [2014] at [39].
Taking into account all of the matters that I am required to consider at the first stage, including, that the Defendant has not given any evidence (other than his income) about his financial resources, the size and nature of the estate, the relationship between the Plaintiff and the deceased, and the relationship between the deceased and the Defendant, he being the only person who I find has a legitimate (and, in this sense, competing) claim upon his bounty, I am satisfied that the Plaintiff has satisfied the jurisdictional threshold. I must also remember that the task of the court is to make a determination "according to the feeling and judgment of the fair and reasonable man in the community, the spokesman of which is, and must be, the court itself": Kearns v Ellis (Supreme Court (NSW), Mahoney JA, 5 December 1984, unrep), at 8. Doing so, I remain of the view that there was a failure, on the part of the deceased, to make adequate and proper provision for the Plaintiff.
It is clear, in my view, that the Plaintiff has some "needs". As stated above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence. Nor is it limited to whether the applicant has, at the date of hearing, an immediate need for financial assistance with respect to his maintenance. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The term is also used in the sense of what was necessary for the applicant's "proper maintenance, education and advancement in life": Akkerman v Ewins [2003] NSWCA 190, per Tobias JA, with whom Beazley and Hodgson JJA agreed. The Plaintiff's current financial circumstances are such that he has no financial buffer against future financial contingencies.
I turn now to the second stage, namely the nature of the order that should be made in favour of the Plaintiff. The more difficult question then arises, namely what provision "ought to be made for the maintenance, education or advancement in life" of the Plaintiff, having regard to the facts known to the court. This involves "an instinctive synthesis that takes into account all the relevant factors and gives them due weight": Grey v Harrison. It is not a scientific, or arithmetic, exercise.
I am of the opinion that the Plaintiff should receive provision by way of a lump sum, which would enable him to provide for exigencies of life and provide a buffer against future contingencies. He can use that lump sum to provide income. It is clear, however, that the size of the estate is a limiting factor on what lump sum may be provided.
In my opinion, that lump sum should be calculated as 37.5 per cent of the net proceeds of sale of the Mt Pritchard property. (Using the estimated net distributable value of the estate ($200,000) referred to earlier this would yield a lump sum of about $75,000.) Thus, the provision to be provided for the Plaintiff and the part of the estate out of which it is to be provided is a lump sum equating to 37.5 per cent of the net proceeds of sale of the Mt Pritchard property.
I have considered, again whether the provision by way of percentage is appropriate in this case. In Zagame v Zagame [2014] NSWSC 1302, I wrote, at [310]: "Since the hearing, 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, in some cases, for example, where the estate, or property which may be designated as notional estate, has a value that cannot be precisely determined, or where liabilities, such as CGT, can only be determined when the precise value of the property is ascertained, it seems to me that 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."
I maintain the view expressed in that case. I remember also that the Act permits the family provision order to be made in one or more ways, including "in any other manner the Court thinks fit": s 65(2)(f).
The Defendant, as the executor, should have control of the sale, although, as a matter of comity, his solicitors should advise the solicitors acting for the Plaintiff of what is being done in that regard. The Mt Pritchard property should be put on the market for sale as soon as reasonably possible, but no later than 6 weeks from the date of making orders, or such other time as the parties are able to agree in writing. Provided the amount to which the Plaintiff is entitled, is paid within 7 days of completion of the sale of the property, no interest is payable on the amount to be paid. Otherwise, interest at the rate prescribed under s 84A(3) of the Probate and Administration Act 1898 (NSW) is payable from that date.
I am also prepared to make an order granting leave to any party to approach the court to make additional orders for the purpose of giving effect to the family provision order to be made.
I direct the parties to deliver to my Associate, within 14 days, for my consideration, agreed Short Minutes of Order giving effect to these reasons. The Short Minutes of Order should reflect the parties' agreement on the categories of expenses referred to, to be paid out of the gross proceeds of sale of the Mt Pritchard property and make allowance for the contingent liabilities (if they have not yet been clarified) to be paid out of the gross proceeds of sale.
Finally, there should be an order included in the Short Minutes of Order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10) and Practice Note No SC Gen 18 (Para 26).
The matter will be listed before me on a mutually convenient date in case agreement on any aspects of the orders cannot be reached. At that time, the question of costs, if still in dispute, can be determined. If agreement on the form of orders is not reached, respective draft Short Minutes of Order, by each party, should be provided within the same time.
If agreement is reached, on the terms of the Short Minutes of Order, including costs, I shall deal with the matter in Chambers without the need for a further appearance and I shall vacate the adjourned date.

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Family Provision Act 1982(NSW)

Succession Amendment (Family Provision) Act 2008(NSW)

See Supreme Court Rules 1970(NSW)

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