Cooper v Atkin

22] NZLR 218 Kay v Archbold [2008] NSWSC 254 Koellner v Spicer [2019] NSWSC 1571 Lodin v Lodin [2018] HCASL 84 Lodin v Lodin (2017) 16 ASTLR 576; [2017] NSWCA 327 McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 McKenzie v Topp [2004] VSC 90 Morris v Smoel [2014] VSC 32 Page v Page (2017) 16 ASTLR 331; [2017] NSWCA 141 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 Purnell v Tindale [2020] NSWSC 746 R (M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 Re Coventry (deceased) [1979] 3 All ER 815 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 Sgro v Thompson [2017] NSWCA 326 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Sung v Malaxos [2015] NSWSC 186 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) White v Barron (1980) 144 CLR 431; [1980] HCA 14 Wilcox v Wilcox [2012] NSWSC 1138 Yee v Yee [2017] NSWCA 305 Texts Cited: "The Concept of Moral Duty in the Law of Family Provision - A Gloss or Critical Understanding?" (1999) 5(1) Australian Journal of Legal History 5 Category: Principal judgment Parties: Kristi Cooper (Plaintiff) Lynda Atkin (first Defendant) Andrew Helgesen (second Defendant) Vanessa Nyassi (third Defendant) Representation: Counsel: L Clarke (Plaintiff) J A Trebeck (Defendant)

Solicitors: CKB Associates Lawyers (Plaintiff) Priest Legal (Defendants) File Number(s): 2018/374346

Introduction

1. HIS HONOUR: These ruinous, and recriminatory, proceedings concern the estate of Terence Helgesen (the deceased) who died on 18 November 2018 and the claim, by Kristi Cooper, the step-child of the deceased, for a family provision order under Ch 3 of the Succession Act 2006 (NSW) (the Act). A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009.
2. (A claim also made in the Summons, which was, in substance, an application for a mandatory injunction requiring the Defendant to recover property of the estate was not pressed at the hearing.)
3. Without intending to convey undue familiarity or disrespect, and for clarity and convenience, I shall refer, hereafter, to the parties and family members, after introduction, by the name used by the family members.
4. The only Defendant named in the Summons filed on 15 November 2018 was Lynda Atkin, the deceased's sister, who is the sole executrix named in his last Will dated 29 January 2016. However, in an amended Summons, filed on 24 April 2019, Andrew Helgesen and Vanessa Nyassi, were added as Defendants. They are the only children of the deceased. Each received $30,000, distributed after the death of the deceased, and prior to the commencement of these proceedings, out of the deceased's estate.
5. A family provision order may be made in relation to property that is not part of the deceased's estate, but is designated as "notional estate" of the deceased by an order under Pt 3.3 of the Act: s 63(5). "Notional estate" of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. Section 79 of the Act provides that the Court may, on application by an applicant for a family provision order or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person if the Court is satisfied that on, or as a result of, a distribution of the deceased person's estate, property (whether or not the subject of the distribution) became held by a person (whether or not as trustee) or subject to a trust. A person's rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.

Background Facts

1. It is next convenient to set out some background facts that I consider were not in dispute. To the extent that any of them are identified as being in dispute, the facts stated should be regarded as the findings of the Court.
2. The deceased was born in July 1938, in Lincolnshire, a county in eastern England, and he died in November 2017, in Port Macquarie, New South Wales, aged 79 years. His sister, Lynda, was born in September 1948.
3. The deceased married Shirley Plater in 1960 and there were two children of their marriage, being Andrew, who was born in May 1966, and Vanessa, who was born in December 1972. The marriage of the deceased and Shirley ended with a divorce order made in about 1985.
4. The deceased lived in the United Kingdom but in 1984 visited Australia where he met Kristi's mother, Diane Holmes. Kristi described their meeting and initial relationship as a "whirlwind romance". Shortly after, the deceased returned to England to finalise his affairs.
5. The deceased and Diane married in February 1986 and remained married until Diane's death in August 2015, almost 30 years later. There were no children of their marriage.
6. In 1988, the deceased and Diane moved from North Narrabeen to live in Port Macquarie, a coastal town located on the mid-North Coast of New South Wales. They lived there for the remainder of their lives together. In September 1993, they purchased, as joint tenants, land at Clearwater Crescent, Port Macquarie for $70,000, upon which they built a home. They sold this property in 2010 for $392,500, less vendor allowances. After the payment of real estate agent's commission, rates, legal costs of the sale, and a debt ($99,737) to St George Bank, they purchased a leasehold unit in an RSL retirement facility for $207,900. The balance of the proceeds of sale that they received was about $59,000.
7. Diane ceased working outside the home shortly after her marriage to the deceased. The deceased continued working, as he had done whilst living in England, as a FIFO (fly-in fly-out) worker in the Persian Gulf, until he retired in 2002.
8. In early 1996, Diane's mother, Eileen Florence Mary Holmes, moved to Port Macquarie. She had been living in a home in Dulwich Hill, which she sold in January 1996 for $205,000. Kristi admits that she received $70,000 from the proceeds of sale, as did Diane.

The nature and value of the estate

1. I have taken what follows from a Joint Schedule of Assets, Liabilities and Costs, provided by the parties pursuant to a direction of the Court, which was tendered, amended, and marked as Exhibit JS1, as well as from the discussion about the nature and value of the estate at the commencement of the hearing.
2. As at the date of death, the deceased's estate was said to consist of property with a total value of $205,428. (I have omitted, and shall continue, to omit any reference to cents. This may explain any apparent arithmetical miscalculations.) The liabilities at the date of death were said to total $7,869.
3. As at 4 March 2020, the estate consisted almost entirely of cash. An amount was held in a controlled monies account ($90,937) and an amount in the trust account of Lynda's solicitors ($6,593), making a total amount of $97,531. The remaining liabilities, other than the costs of the proceedings, were said to total ($5,489). Thus, the net value of the actual estate, at the date of hearing, was said to be $92,042.
4. The amounts retained, naturally, did not include the amount of $60,000, which was distributed, equally, to Andrew and Vanessa in May 2018. Nor did it include the amount of Lynda's costs and disbursements said to have been paid out of the estate ($37,301): Tcpt, p 6(28-30). Had all of those amounts not been distributed or paid, the value of the estate, without taking into account the costs of the proceedings, would have been $189,343. If one left out of the calculations, the amounts distributed to Andrew and Vanessa, the gross estate would be about $129,343: Tcpt, p 7(23) - p 8(22).
5. The estate was of very small value at the date of the deceased's death. It had been of greater value before his death but it appears that almost $100,000 was repaid to the St George Bank to satisfy a debt. Lynda did not know precisely how that debt had been incurred but she believed that the deceased and Diane may have had a reverse mortgage: Tcpt, p 60(37-39).
6. Lynda confirmed that she would not seek any commission, or percentage, for her pains and trouble as is just and reasonable, out of the estate of the deceased pursuant to s 86 of the Probate and Administration Act 1898 (NSW).

The Costs of the Proceedings

1. Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.
2. Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of the proceedings should be carefully considered.
3. In Foley v Ellis [2008] NSWCA 288, Basten JA wrote, at [10]: "... To exclude from consideration the diminution in the estate and hence [the applicant's] expectation of provision, flowing from legal expenses incurred in the proceedings, is arguably inconsistent with the statutory mandate to consider the applicant's position at the time the Court 'is determining whether or not to make such an order'."
4. Parties, however, should not assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Forsyth v Sinclair (No 2) (2010) 28 VR 635 at 642 [27]; [2010] VSCA 195 at [27] (Neave and Redlich JJA, Habersberger AJA); Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); I have made this statement, many times, in the context of a claim for a family provision order, particularly in relation to estates with a small value: Harkness v Harkness (No 2) [2012] NSWSC 35 at [18].
5. Paragraph 24 of Practice Note SC Eq 7, states that "orders 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".
6. In the present case, the Court made every effort to have the parties resolve the proceedings before significant costs were incurred. As early as 8 March 2019, the Court conducted a judicial settlement conference. (Then, the estimate of Kristi's costs, calculated on the ordinary basis, was $16,000 and the estimate of Lynda's costs, calculated on the indemnity basis, was $22,000.) Even then, the proportion of costs was relatively high.
7. The legal representatives agreed that the case should be concluded within one day rather than two days, and that is what occurred. Neither Andrew, Vanessa, nor Sasha was required for cross-examination as they would have had to travel from the United Kingdom: Tcpt, p 23(49) - p 24(8). In that regard, this assisted in reducing costs.

The relationship between Kristi and the deceased

1. It is clear from the evidence that Kristi and the deceased did not have a close relationship. Kristi acknowledged as much in her first affidavit when she wrote that she "did not have a strong relationship with [the deceased]". She said that she was frightened of him. Her counsel described the relationship as "tense at times". I tend to think that this is an understatement.
2. Kristi submitted that whilst she attended university between 1989 - 1994 and 2000 - 2005, and at other times, she was dependent on Diane and the deceased for physical, financial and emotional support. Whilst it is likely that she was dependent on Diane for support, I tend to the view, based upon all of the evidence, that any dependency on the deceased was partial, financial only, and limited to the extent that he and Diane would pool their resources. I shall return to this topic later in these reasons.
3. Kristi accepted that there had been no visits to Port Macquarie between about 2001 and 2011, although she said that Diane would come to visit her in Sydney: Tcpt, p 32(03-15). (For part of this period, Kristi lived overseas, when she was studying at Cambridge, and then Oxford, University.)
4. There were several occasions, whilst Kristi was in Port Macquarie, when the police were called to a domestic disturbance, and on at least one of these occasions, the deceased was arrested and charged with having assaulted Kristi. On two occasions, first in December 1999, the police were called but "no formal action" was taken. Some two weeks later, in January 2000, the deceased was charged with assault and "actual resist/hinder/assault officer": Affidavit, Kristi Cooper, 13 November 2018 at p 29-30 par 62, Annexure "E".
5. For a period of about three or four months in 2011, Kristi lived in the small home unit in the aged care facility with the deceased and Diane. However, during this period, again, there was conflict between him and Kristi. On 29 March 2011, Kristi called the police, telling them that the deceased had an undiagnosed mental health condition. She said that she had no fears, and wanted police to "have a word with him". Police recorded a "long seated animosity" between the deceased and Kristi "festering recently due to their close proximity (i.e. their unit is quite small)": Affidavit, Kristi Cooper, 13 November 2018 at p 34 par 62, Annexure "E".

Relationship of the deceased with the beneficiaries named in the Will

1. Andrew, in an affidavit affirmed on 13 May 2019, recalls: "a happy childhood. My father provided a good standard of living for our family, being my mother…and my sister, Vanessa. I have always been close to my father. I never fell out with him my whole life. His advice was second to none."
2. Vanessa, in her affidavit affirmed on 13 May 2019, gave evidence that she "was very close with my father even though my parents divorced in 1985". It is not necessary to otherwise repeat her affidavit evidence about the seven different occasions she travelled to Australia and stayed with the deceased and Diane. The closeness of their relationship is demonstrated by the fact that after Diane died, Vanessa, upon her return to the United Kingdom, would speak to the deceased "every Monday".
3. I am satisfied that the deceased had a close and loving relationship with each of Andrew and Vanessa. I have previously identified the contact that each had with the deceased. No evidence to the contrary was advanced.

Conduct of Kristi after the death of the deceased

1. It is also necessary to refer to Kristi's conduct after the death of the deceased. There are a series of emails that demonstrate the strength of her conviction to maintain a claim against the estate of the deceased. Some of the emails do her no credit.
2. It is convenient to set out the content of those emails below that form part of Exhibit KC1.
3. In an email to Lynda's solicitor, on 1 March 2018 with the subject line "Estate of Terence Helgesen d. November 2017", Kristi wrote: "Dear Ms Cooper, I am the deceased's step-daughter. At your earliest convenience, would you please forward in the above matter to me a copy of the deceased's; 1) Death Certificate 2) Will 3) a 2018 valuation of the Estate. I also seek an inventory of the household goods of 30/9 Boundary Street, Port Macquarie. I would appreciate a response from your clients as to what your clients have done with my mother's and grandparents' belongings and effects, and where they are after your clients emptied the house. I place you on notice that your clients have converted my goods, being artworks, souvenirs and other possessions of mine that were with my mother for safekeeping. It is a great pity that your clients could not choose to be kind in their disposal of my family's things and papers and effects, but you and your clients can inform me to the best of their knowledge where things have gone and we can attempt to rectify the damage done which I view as an act of cruelty on the part of your clients. Please confirm receipt of this email. If you would prefer a formal letter please advise. I presume you are still acting for the deceased's sister et al. If this is not the case please advise me accordingly as soon as possible. Regards, Kristi Cooper."
4. Lynda's solicitor, in a reply to Kristi's email, wrote, inter alia: "As you are not a beneficiary to the Estate, you do not have any prima facie right to receive the documentation that you seek and the Executor is under no obligation to provide this documentation to you. With respect to the personal items that your believe belong to you, please identify them precisely so that we may properly enquire as to whether or not they were still within Mr Helgesen's possession or control at the date of his death. We will be in contact with you once we hear from the executor."
5. A further response was made to Kristi's email, on 6 April 2018: "…[The Executor] has authorised us to send you a copy of the Will of the late Terence Helgesen together with his Death Certificate. There is no Inventory of Property as such as there has been no requirement to apply for a Grant of Probate as the estate is small. In relation to the items belonging to your family which you have previously inquired about, we advise that neither the executor nor ourselves have these items. We wish you well."

Situation in life of Kristi

1. Kristi commenced studying at the University of Sydney for a Bachelor of Arts in 1989, which degree she completed in 1994. She commenced studying for a Bachelor of Laws in 2000, which degree she completed in 2005. Whilst studying at the University of Sydney, she supported herself by waitressing and doing market research for a company.
2. In 2007, she completed a Master of Philosophy in Criminological Research at Jesus College, Cambridge University and in October 2008, she transferred to Oxford University and studied for her doctorate, until she returned for Diane's funeral in August 2015.
3. Recently, Kristi has been advised by Oxford University that her Doctoral status has been withdrawn as she did not confirm her enrolment status or apply to defer her studies. She is considering an appeal of that decision.
4. Kristi does not appear to have assets of any value, except for a savings account ($8,000) and superannuation fund ($5,569). Her liabilities exceed her assets, and her expenses exceed her income. She is in receipt of Newstart allowance as well other supplementary financial assistance, including a mobility allowance (in total $800 per fortnight). She sets out her expenditure which is said to total $772 per week. She has debts of $101,755. (She adds that she has a contingent liability of $30,604 to her former solicitors.)
5. In her affidavit affirmed 29 January 2020, Kristi states that she is a single person "currently residing in a Legacy aged care village at Port Macquarie". She is unemployed. Her last period of employment was for six-months between June 2018 and February 2019, as a Senior Electorate Officer, for the Queensland Government. She has applied for numerous positions since that time, the most recent of which was as an Associate Lecturer at the Australian National University, for which she was, ultimately, unsuccessful: Tcpt, p 39(20) - 41(44).
6. In the same affidavit, Kristi attributes her difficulties in obtaining employment to: "(a) [her] ongoing health issues, including the scheduling of two major surgical procedures with the attendant lengthy periods of rehabilitation; and (b) the subsequent effects particularly mobility and inability to walk any distance or to stand for lengthy periods; and (c) the limited opportunities for employment in a regional town such as Port Macquarie which is largely a manual labour…and Retail Services economy; and (d) [her lack of] a Driver's Licence…"

Kristi's medical condition

1. Dr Marion Lynn, Kristi's General Practitioner, in a letter to the Faculty of Law at Oxford University dated 1 October 2018 requesting consideration in reinstating Kristi's candidature, notes that Kristi had undergone a bilateral knee replacement, of her left knee in May 2016, and again in May 2017, of her right knee. Following both operations, Kristi needed "post-operative care and rehabilitation…[and]…strong morphine type medication for chronic pain."
2. In December 2017, Kristi suffered a pulmonary embolism, again necessitating treatment. That diagnosis was confirmed by a Ventilation Perfusion Scan in February 2018, and with further testing in June of that year.
3. Following a review at the Gladstone Hospital Haematology Clinic, in October 2018, a letter to Kristi's then General Practitioner, Dr Carol Webster records that although the "precipitants are a little unclear, [her condition] may possibly have been attributed to the surgery some months earlier." That surgery, being the total knee replacement surgery of both knees.
4. A report to Dr Webster from Dr Jock Simpson, Consultant Haematologist, notes, in terms of medical history, that Kristi has suffered from pneumonia, osteoarthritis, depression, pyelonephritis and hypertension.
5. As at June 2019: "…Other symptoms of concern for her include dizziness, nausea, and profound lethargy. She dates the lethargy to her time in Qld, worse on her return. Kristi's breathlessness has improved. She reports a symptom of sensation of forgetting to (sic) breath. Kristi is an ex-smoker, quitting 4 years ago, after a 10pack year history. She is a non-drinker…She is in social housing at present, and is frustrated that her health is limiting her ability to support herself."
6. A Patient Health Summary records that, as at 28 January 2020, Kristi takes a number of medications daily to treat her medical conditions.

The situation in life of Andrew

1. Andrew is self-employed as an internet sales person. He is married with five children, aged between about 19 years and 4 years. One of his children is autistic and suffers from Attention Deficit Hyperactivity Disorder.
2. Andrew in his first affidavit affirmed 13 May 2019, stated that he earned about £15,000 per annum and received about £2,400 per month by way of government assistance for his family. His wife does not work outside the home.
3. Andrew and his wife own a home (£125,000) subject to a mortgage (£110,000). He has a car (£12,000), subject to a loan. He has credit card debts (£2,300), and "an additional loan" (£3,000).
4. He acknowledged receipt of $30,000 by way of interim distribution from the estate, which amount he said he used "to pay off some debts and to buy a car".
5. In an affidavit affirmed on 24 January 2020, he stated that "my personal circumstances are substantially the same". He added that all of his children "live at home and are in full time education". His wife works with him.

The situation in life of Vanessa

1. In her first affidavit affirmed on 13 May 2019, Vanessa disclosed that she then worked as a kitchen shift leader at a delicatessen in Lincoln, in the United Kingdom. She owns no real estate and lives in rented accommodation with her two sons. Her daughter, Sasha, was then at University, living in Edinburgh, Scotland. Vanessa has a 2003 model car worth £500. She has no savings. She has a credit card debt of £3,205.
2. Vanessa's income from working was £2,130 per month and she receives £843 per month "child tax and working tax credit". Her expenses total £2,146.
3. Vanessa acknowledged the receipt of $30,000 by way of interim distribution from the deceased's estate which amount she "used to pay for a flight for my sons and I (sic) to Australia so that we could collect my father's ashes and scatter them on Lighthouse Beach…". She used the balance to pay off her credit card debt.
4. In her affidavit of 24 January 2020, Vanessa stated that her "financial circumstances are largely the same … except I no longer have the 2003 [car]. I have purchased a new vehicle on finance" (repayable over 5 years at £167 per month).

The situation in life of Sasha

1. In her affidavit affirmed on 13 May 2019, Sasha stated that she is a full time University student. She receives a student loan but otherwise has no income. Her expenses for rent, utilities and general living amount to £223 per month. She estimates that when she completes her studies, in 2022, the amount of her student loan will be £71,800 excluding interest.
2. In her affidavit affirmed on 23 January 2020, Sasha confirmed her calculation of the student loan and added that she also had a "maintenance loan" of £8,944 per year for four years. She said that she used the amount received as the maintenance loan to pay her rent (£600 per month), bills (£90 per month) and food and other necessities (£150 per month). She confirmed that she has no assets.

The Statutory Scheme

1. Next, I shall discuss the statutory scheme that is relevant to the facts of the case. Although I have set out much of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions on their application.
2. The key provision is s 59 of the Act. The Court must be satisfied, first, that an 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. There are six categories of persons by, or on whose behalf, an application may be made.
3. Relevantly, in this case, Kristi relies upon the category of eligibility referred to in s 57(1)(e) of the Act, namely that she is a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased was a member.
4. There was no dispute about Kristi's eligibility. However, it was only during her university vacations that Kristi visited, and stayed with, Diane and the deceased in Port Macquarie. The only other relevant period of her being a member of the household, was for a period of about three months in 2011. It is, however, to be remembered that the Act does not state any requisite period of time during which an applicant must be a member of the household of which the deceased was a member.
5. Very little was written about Kristi's dependency on the deceased. It is not suggested, however, that she was wholly dependent upon the deceased. At the most, it was partial financial dependency, as I have set out above.
6. However, as stated by Payne JA, in Spata v Tumino (2018) 95 NSWLR 706 at 720 [72]; [2018] NSWCA 17 at 720, [72], "[a] finding of being 'wholly or partly dependent' does not itself give rise to a statutory obligation to make provision from the deceased person's estate for the proper maintenance, education or advancement in life of the dependent; it is merely the first step".
7. Where an applicant falls within the definition of eligible person within s 57(1)(e) of the Act, the Court must next consider and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application: s 59(1)(b). In requiring a person who falls within, relevantly, s 57(1)(e) to satisfy the Court that there are such factors, the Act distinguishes between two classes of eligible person.

Some Additional Principles

1. Accepting that no two cases will be exactly alike, because each case necessarily turns on its own unique combination of facts, 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 decided under the Act.
2. The Court's discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63] (Nettle J).
3. Bryson J noted in Gorton v Parks, at 6, that it is not appropriate to endeavour to achieve "an overall fair" division of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants.
4. As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186 at [5]: "Fairness and equality are not touchstones for relief under the Succession Act."
5. In Stott v Cook (1960) 33 ALJR 447, at 453-454, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work a Will according to its own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged."
6. Of course, 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) at 30-31; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 at [269]-[274] (Ward J).

Qualifications on "Principles"

1. As long ago as 1980, in White v Barron (1980) 144 CLR 431 at 440 [8]; [1980] HCA 14, at [8], Stephen J wrote: "[T]his jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application."
2. As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [117]), I do not intend what I have described as "principles" or "general principles" to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the Court's discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any constraints on the Court's discretionary power, which is left largely unfettered. I do not intend that what is provided as a guide to be turned into a tyrant.
3. It is necessary for the Court, in each case, after having had regard to the matters that the Act permits 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 basis for a family provision order has been established. Consideration of other cases must be conducted with circumspection because of the inescapable detail of the factual circumstances of each case. Every case is different and must be decided on its own facts and it is in the detail that the answer to the proper application of the Act is to be discovered: Golosky v Golosky [1993] NSWCA 111 at 10 (Kirby P).
4. The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox, by Basten JA, at [18]-[20], and by Barrett JA, at [66]-[67]; in Burke v Burke (No 2) (2015) 13 ASTLR 313 at 329; [2015] NSWCA 195 at [84]-[85] (Ward JA, Meagher and Emmett JJA agreeing); in Yee v Yee at [172] (McColl JA, Gleeson and Simpson JJA agreeing); and recently, by White JA, in Steinmetz v Shannon, at [37]. The qualifications must be remembered.

Determination

1. As stated, there is no dispute that Kristi is an eligible person. She commenced the proceedings within time. I have found that there are factors which warrant the making of her application. I turn then to whether an order for provision out of the deceased's estate as the Court considers ought be made for her, which requires the Court to be satisfied that, at the time when the Court is considering the application, adequate provision for Kristi's proper maintenance, education or advancement in life has not been made by the deceased's Will.
2. As is obvious, there was no provision made for Kristi in the deceased's Will. However, this does not, automatically, mean that she will have satisfied what has been said to be the jurisdictional threshold. A person may fail to satisfy the description of being "left without adequate provision" even though no, or little, provision is made for her or him in the deceased's Will.
3. As stated above, claims for a family provision order present particular difficulties where the estate is so small and where there are several competing claims upon the bounty of the deceased. Any provision made by the Court in favour of an applicant must, in this class of case, be made at the expense of the beneficiary who has had to defend the claims and who is the chosen object of the deceased's bounty.
4. Furthermore, even a finding that Kristi was partially dependent on the deceased does not itself give rise to a statutory obligation to make provision for her. The question whether there are factors which warrant the making of the application is different to the question of whether she was, at any particular time, wholly or partly dependent upon the deceased, and also different from the further question which arises under s 59(1)(c) of the Act whether adequate provision for her proper maintenance or advancement in life has not been made by the deceased's will: Page v Page [2017] NSWCA 141 at [38].
5. On the topic of the relationship between an applicant and the deceased, Campbell JA (with whom Giles JA and Handley AJA agreed) noted, in Hampson v Hampson (2010) 5 ASTLR 116, at [80]; [2010] NSWCA 359, at [80]: "The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge."

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