Cowap v Cowap

Nick

1. Nick is now 64 years of age. There was no dispute that he suffers from the following health disabilities as a result of his two heart attacks: 1. hypoxic brain injury, resulting in ongoing cognitive deficit; 2. two stents in his heart and has undergone five heart bypass surgeries; 3. a pacemaker and a defibrillator to regulate his heart's functioning; 4. nerve damage resulting in bladder dysfunction; 5. critical illness myopathy and neuropathy as a result of his extended stay in the Intensive Care Unit on the life support machine; 6. bilateral foot drop resulting in a lack of balance and stability - necessitating the use of crutches or a wheelchair; 7. osteoporosis; 8. unilateral hearing loss; 9. ulcerative proctitis and focal colitis; 10. Crohn's disease (an auto-immune disease); 11. damaged spine; and 12. mental health issues.
2. He lives in accommodation rented by Tatjana and owns no real property. Isabella also lives with Nick and Tatjana. Nick gave evidence (which was not challenged) that his only bank account currently has $53 in it. He owes an amount of $95,000 to his brother Simon and Simon's wife, but there is no suggestion that the amount is presently being demanded for payment. Nick receives a disability pension of $754.70 per fortnight. He is also entitled to NDIS funding which covers a number of medical and related expenses and provides him with a small cash payment in respect of transport. He covers his living expenses with the benefit of Tatjana's income (as to which see paragraphs [22] to [23] below).
3. He is potentially the beneficiary (after some minor payments to grandchildren) of one-sixth of Barbara's estate under her current will.
4. Before leaving Nick's circumstances it is necessary that I say something about his evidence given in the proceedings as to his need for provision. In his affidavit affirmed on 25 July 2019 he said: "86. I do not wish for my elderly mother to be forced to move out of her house. I know it was my father's dying wish and I respect that. If I thought I had any other choice but to bring these proceedings, I would have taken it. 87. I am aware that my Dad left a significant share portfolio. If I was able to be paid an amount out of the share portfolio, it would assist me in: a. finding more suitable long-term accommodation; b. assist me in buying some sort of property which can be modified to suit my ongoing needs; and c. paying for professional carers on either a full-time or part-time basis."
5. He also gave this evidence in answer to some questions I asked him (T47:47 - T49:5): "Q. What do you want the Court to do for you? A. I, I guess what I'm seeking is, is some sort of long-term solution. I, I will be evicted, most probably, from these premises that I'm in now in the next six month. I, I - it's very hard, I, I kind of need something which is suitable for my very specific needs. And I would've thought that that would've been a good option. My mother is not young anymore, and if she had somebody else who was living on the property, I would've thought that would be beneficial for her. She would be able to stay on the property much longer. Q. Do you want the Court to award you a sum of money out of your father's estate? A. Yes, if, if my mother is not willing to - my mother is not willing to allow me to build on the property, then yes, I would allow the Court to - I would ask the Court to award me a sum of money. Q. Where do you think that money is going to come from? A. I'm not a legal person, but I understand that my mother has a substantial amount of shares, and a $1,200 a week pension that she receives. Q. How much money do you say the Court should award you? A. That's a hard question for me to answer. I mean I, I would need to speak to, to my lawyer and I would answer that question, I really don't know. Q. But you must've thought about how much money you feel the Court should award you? A. We did make an offer, offer to the-- Q. Don't tell me about what offers you've made, I just want to know how much you say the Court should award you, if it's to award you a sum of money out of your late father's estate? A. $250,000. Q. How do you get to $250,000? A. Based, based on the value of the pension and on the shares. Q. But what's $250,000 going to do for you? A. It would allow me to purchase land, and I am able to take out a loan with my disability pension, and I'd be able to put up a kit home, a purpose built home. It can be erected in a matter of weeks. Q. Have you enquired of a financier to ascertain whether in fact you can get a loan? A. I, I have and the answer was yes. But I don't have - I haven't - I do not have a formal loan approval. Q. What have you done, have you just spoken to someone on the telephone? A. I've made a number of enquiries via telephone and via email. Q. Do you have any email response that might be categorised as even some form of conditional approval? A. No conditional approval. I, I merely enquired into the prerequisites that they would ask for if I was to take out, or, or we were to take out a loan to build something suitable, I'm-- Q. In fact, you have no idea whether any of these financiers would actually lend you any money? A. The answer to that question is, I haven't put on a formal loan application, so the answer is, you're correct. The answer is no. But the answer that I was given was yes, that it is possible and it can be done."
6. I accept Ms Treherne's submission that the evidence to which I have just referred is not to be understood as a limitation on the amount which she submitted Nick should receive by way of provision. In fairness to Nick, when asked the question as to what he wanted, he replied that he did not really know and that he would need to talk to his lawyers. That answer, as Ms Treherne submitted, is consistent with the unchallenged evidence as to his cognitive disabilities, including short-term memory issues.
7. I took Nick's position ultimately to be that he really did not want to have to be suing his mother at all and did not wish to bring about a situation that his mother might have to leave the Property but, nevertheless, he felt that he had no alternative. I have approached the matter on the basis that Ms Treherne submitted consistently that the amount of provision which was appropriate to be made for Nick in all the circumstances was $600,000.
8. In support of her submission there was evidence, which was not contradicted or challenged, as to the costs of the items which he submitted should make up his provision (see paragraph [8] above). In all the circumstances, an amount of $60,000 for contingencies also seems to me to be appropriate.

Tatjana

1. Tatjana receives a carer's pension of $739.70 per fortnight in respect of Nick. Ms Pringle made criticism in final submissions of the adequacy of Tatjana's disclosure of her financial circumstances. It is true that some material only came during the course of the hearing. Nevertheless, the evidence does enable her circumstances to be determined, along with those of Nick.
2. In addition to her carer's pension, the evidence discloses that she undertakes cleaning work which (averaged over the last three months) brings in approximately $265 per week and that she makes jewellery which (averaged over the last three months) yields approximately $100 per week. In relation to the jewellery there was also evidence that the cost of goods to manufacture the jewellery was $243.45 over a three month period, and that she also incurred costs of $70 per month in relation to fees for internet and related costs in running her jewellery business.
3. Tatjana owns no real property. In addition to the income to which I have just referred, she also has a bank account containing her own savings which has a current balance of $49,349.82. That account primarily comprises compensation she received of approximately $30,000 for a slip and fall accident in a supermarket, $6,000 she received for compensation in an injury at work, a gift of approximately €3,000 from her mother, and two tax refunds.
4. Insofar as the conduct of her and Nick's financial affairs is concerned, she operates a separate bank account, statements for which were in evidence, which contains Nick's pension and other payments and the carer's pension which she receives ("Nick's account"). She gave evidence, and this is borne out by entries in the statements for Nick's account and her own savings account, that from time to time she supplements Nick's account as required to meet their living expenses by transferring funds from her savings account. As at 9 August 2019 the evidence is that the balance in Nick's account was $180.00, and an examination of that account over a period of time supports the conclusion, which I draw, that Nick and Tatjana are just able to cover their living expenses and nothing more.
5. To their credit, counsel contacted the case on the basis that, with one minor exception, none of the dispositive facts in this case were seriously in dispute. The one minor exception was whether or not Tatjana was more than just a carer now for Nick and that she was, as Ms Pringle submitted, still Nick's de facto partner. There was no dispute that Tatjana cared for and, to the small extent to which I have just referred, provided additional financial support to Nick and that they were cohabiting within the meaning of s 60(2)(e) of the Act.
6. For the disposition of these proceedings it does not matter whether Tatjana is in fact still Nick's de facto partner. But, should it be necessary for some purpose to have made a finding on that question, I accept the evidence of Nick, Tatjana and Isabella that the relationship between Tatjana and Nick is now that of carer and recipient of care, and does not have the incidents of being a couple. As Tatjana said in her evidence - and I accept - simply caring for someone and cooking meals and the like does not make them a couple.
7. I accept that not long before Nick's heart attacks their relationship as de facto partners, which had commenced in 1997, had come to an end, but that they were continuing to cohabit because of their mutual love for Isabella and their desire to continue to be involved in her life as her parents. The event of Nick's heart attacks took over or superseded what might otherwise have been consequences that would have flowed from the end of their de facto relationship.
8. It reflects very well on Tatjana that she has stayed on as Nick's carer. It was apparent from her evidence that she has done so for reasons which reflect her desire to continue to be there for their daughter and to support Nick in Isabella's interest, and because, perhaps above all else, she could see no acceptable alternative for Nick if she did not stay to care for him.
9. There was evidence that at the time of Nick's proposed discharge from hospital, thought was given to possibilities for Nick's future which included the possibility of nursing home care if no one else would look after him. It is no criticism of his half siblings and his mother that they had indicated that whilst they were prepared to provide some degree of financial support (in fact they had contributed about $10,000 to his ongoing needs during his illness) there were limits to what they would do. On 18 January 2017, Simon sent this email to Tatjana, copied to other family members: "Hi Tatjana, Thought I'd reply by email rather than text. Just wanted to clarify where things are up to with Nick's discharged. It sounds as though you haven't been able to find a suitable rental property for the three of you yet, so I guess Nick will have to go into a residential care facility at least initially. I'm not sure another meeting with the hospital would serve any purpose - clearly they feel Nick is ready for discharge soon, and the options are the same as they were at the last meeting - he moves into rental accommodation with you & Isabella or will need a nursing home type facility. I know Nick has improved, but I don't think their opinion is that he could manage alone yet. If, as seems likely, Nick will be moving to a nursing home in the short term the family will do what we can to help him move and give him some weekends away. Likewise if you find something suitable for the three of you we will do what we can to assist with the move. If you let the family know where things are up to then we can get together, probably by email & phone rather than in person, and see what is the most practical way we can help at this stage. As you know this does not include purchasing property, Nick being cared for by Barbara or indefinite financial support."
10. For the purposes of this application, the Court concludes that Tatjana is Nick's carer and that she is remaining in that position because alternatives such as a nursing home for Nick are deeply unpalatable to her.
11. In reaching this conclusion, I have not overlooked the evidence relied upon by Ms Pringle which consisted of various notes and letters written by medical professionals during the time of Nick's extensive hospitalisation after his heart attacks. There are a number of references in that correspondence to Tatjana as Nick's wife or partner or de facto, but none of those documents are actually Nick's or Tatjana's documents. I accept Nick and Tatjana's evidence that they never described Tatjana as Nick's wife but that, for simplicity's sake, they would from time to time acquiesce in Tatjana being described as Nick's de facto or partner. Tatjana readily acknowledged that on hospital documents she was listed as Nick's next of kin.
12. Those entries are not in and of themselves conclusive of any particular status in the nature of partner or spouse. I accept that in the exigent circumstances in which they found themselves dealing with medical and related professionals, those people would often apply a description that was administratively simple rather than try to understand the ins and outs of the particular relationship. Human relationships are not always susceptible to precise descriptions.
13. In any event, the Court must look at the question as at the date of the hearing. While I have taken into account the material to which Ms Pringle referred, I am well satisfied that Nick's, Tatjana's and Isabella's evidence demonstrates on the balance of probabilities that while Nick and Tatjana were once de facto partners, they are no longer such.

Isabella

1. Isabella is a 20 year old university student. She makes pocket money coaching basketball but is in no position to make financial contributions to assist her father. It was not seriously contested that she is anything other than a dependent in the household in which she lives with Nick and Tatjana, who still support her as their daughter.

Barbara

1. Barbara is 90 years old. There was no specific evidence directed towards her health. There was evidence that she has been assessed by ACAT as eligible to receive some relatively minor domestic assistance. Listening to her give her evidence I quickly formed the impression that she is a formidable and resolute woman. She is determined, understandably, to stay on the Property. I will say something more about the Property in a moment, but I record with some admiration (given the Property is in the Canberra district) that she had only recently installed air-conditioning to heat and cool the house on the Property, because before then she had not really felt the cold.
2. Barbara's assets (excluding the question of notional estate) currently comprise: 1. the Property valued at $1.35 million; 2. a share portfolio (approximately half of which was in her own name prior to the deceased's death, the balance being held with him as joint tenants) valued at approximately $409,000; 3. cash at bank of $50,000.
3. Her affidavit evidence recorded fortnightly income of $2,364.04 and fortnightly expenditure $1,502.22, leaving a fortnightly surplus of $861.82. Barbara said that she and the deceased had always lived frugally and that she continued to do so.
4. Barbara has three sources of regular income. First, she has an Australian pension of currently $520 per fortnight (compared to $478 as deposed in her affidavit evidence). Second, she enjoys a widow's pension from the United Kingdom Government consequent upon the deceased's colonial service in Africa. That pension is paid in pounds and hence fluctuates with the exchange rate. The latest evidence is that it yields $900 per fortnight (compared to $740 per fortnight in her affidavit). She also receives fortnightly income from the share portfolio of approximately $543. Given the higher figures than those to which she has deposed, and allowing for currency fluctuations, the Court concludes Barbara's fortnightly surplus is approximately $1,000 per fortnight.
5. The Property is approximately 56 hectares and is about half an hour's drive north of Canberra. It comprises a four bedroom 1960s weatherboard country house. It is not sewered and uses a septic tank, and water is provided from a tank. There is what Barbara described as an "unreliable" landline which provides telephone and internet. The house is in a "blackspot" for mobile telephone reception. The uncontradicted evidence was that if Barbara required an ambulance, it would take at least 20 minutes to come if it were able to be called. The Property is between 30 and 60 minutes by road (and depending, of course, on traffic) from different parts of Canberra, where two of Barbara's adult daughters live.
6. A matter to which the Court has given anxious consideration is both the clear intention of the deceased that Barbara should enjoy the rest of her years living in the Property (on which they had lived since 1987 and on which they had jointly built what was described as a beautiful garden and other amenities) and also Barbara's own strongly expressed desire to remain on the Property. She gave the following evidence in the witness box when shown, by way of example, houses in the Canberra suburb of Bonner of a type into which it was suggested she could move (T148:8-14): "Q. Would you like me to repeat the question? A. I, I, see Bonner is in an area called Gungahlin, which is a frightful place to live. I wouldn't think of living there. Also the whole point about living on the farm is the space and the garden we have created between us. And that is why I love it in the countryside. And I'm a great, I'm a birdwatcher and I like my wildlife. Places like this are in suburbs amongst many, many thousands of other houses of similar type, and I should find that quite unsuitable, in fact objectionable, to move."
7. I have given close attention and as much weight as I consider to be appropriate in all the circumstances to Barbara's evidence that she does not want to leave the Property.

Costs

1. The evidence is that Nick's party/party legal costs up to and including the hearing are $58,173 payable to two firms of solicitors on a no-win no-fee basis. There is no uplift for success. Barbara's costs on the indemnity basis are $88,750.

Proceedings brought out of time

1. Section 58 of the Act provides: "58 WHEN AN APPLICATION MAY BE MADE (1) An application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted. (2) An application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown or the parties to the proceedings consent to the application being made out of time. (3) An application is taken to be made on the day it is filed in the Court's registry."
2. These proceedings were commenced by Nick just over a year out of time. However, as Ms Pringle entirely properly conceded, there had been no prejudice to her client by the delay and there was no suggestion in the evidence that either Nick or Tatjana knew that there was a time limitation involved in bringing proceedings under the Act. While Barbara opposed the granting of an extension of time for the commencement of the proceedings, Ms Pringle acknowledged that Nick's medical and other circumstances during the period that time was running and thereafter could be considered by the Court as sufficient cause to order otherwise for the purposes of s 58. That acknowledgment was entirely prescient.
3. During the period that the one year limitation period expired Nick was still in hospital, being discharged in March 2017. Thereafter he was recovering but still suffering (on the unchallenged evidence) from cognitive and other deficits that made it difficult for him to make decisions or give instructions. The evidence also demonstrates that for some months after his discharge, Nick was in discussion with his family about whether some arrangements could be reached in relation to his care and accommodation.
4. I accept the evidence that Tatjana made contact with two firms of solicitors. One firm would not accept instructions from her because she did not hold a power of attorney for Nick. The other firm told her that the size of the estate was below the value for which that firm was prepared to act on a no-win no-fee basis. There was certainly no evidence that either of those firms were told any details about the estate or that either of them alerted Tatjana that time was running.
5. In my respectful opinion, this is a clear case where sufficient cause has been shown for why the proceedings have been commenced out of time and the Court will otherwise order to regularise the position.

Has adequate provision been made?

1. The legal principles in relation to this question are well settled. I respectfully adopt what was said by Hallen J in Jodell v Woods [2017] NSWSC 143: "102. In all cases under the Act, what is adequate and proper provision is necessarily fact specific. 103. All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singer v Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12 at [56]. Nor does it follow that, if the Court decides it is inappropriate to make a specific provision in respect of one identified head of claim, that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams [2004] NSWSC 419 at [89]. 104. In relation to the Plaintiff's claim, being a claim for provision by an adult child, the following principles are also 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": Taylor v Farrugia, at [57]; McGrath v Eves [2005] NSWSC 1006; Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond [2015] NSWCA 42 at [109]. (c) Generally, also, "the community does not expect a parent to look after his or her children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute": Taylor v Farrugia at [58]. (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] VicRp 58; [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co of Australasia Ltd, at 148; Goodman v Windeyer [1980] HCA 31; 144 CLR 490 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) [1981] 2 NSWLR 532 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 [1957] HCA 82, (1957) 97 CLR 566; Kleinig v Neal (No 2) at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37 at 45 (Nicholson J); Taylor v Farrugia, at 58. (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 are relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17]. (g) 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. 105,. A very similar statement of these principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275, at [111], was cited with approval in Chapple v Wilcox at [21] (Basten JA); and at [65]-[67] (Barrett JA); and was referred to, with no apparent disapproval (although in that appeal there was no challenge the correctness of those principles), in Smith v Johnson [2015] NSWCA 297, at [62]. 106. In Foley v Ellis [2008] NSWCA 288 at [88], Sackville AJA noted that Singer v Berghouse "strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty". The only other claimant on the bounty of the deceased in the present case is the Defendant."
2. I also respectfully adopt what was said by Ward CJ in Eq in Grant v Roberts, Smith v Smith, Roberts v Smith, Curtis v Smith [2019] NSWSC 843: "166. Second, as to the position of claims by adult children of the deceased, each application for provision must be dealt with by the Court on its merits on the evidence before the Court. 167. It has been asserted, in a number of cases in the past (both in applications for provision under the previous legislation and under the currently applicable provisions of the Succession Act), that it cannot generally be said that a parent has an obligation to provide an adult child with a home (see Fiorentini v O'Neill [1998] NSWCA 79 (at 7); see also Delaney v Jones [2008] NSWSC 229). It has, however, also been recognised that there are circumstances in which there may be a moral obligation on the part of a parent, in particular circumstances, to make provision for an adult child (see Taylor v Farrugia [2009] NSWSC 801 at [57]). 168. As the Court of Appeal in Steinmetz v Shannon [2019] NSWCA 114 (Steinmetz v Shannon) has recently made clear, guidelines (of the kind that have been expressed in various cases relating to claims by widows, or adult children, or grandchildren) cannot be elevated to inflexible rules and are always subject to the consideration of the particular circumstances of each case, including the size of the estate, any competing claims, the applicant's conduct and the applicant's relationship with the deceased (see White JA at [37]; Brereton JA at [106]). 169. There is, and should be, no predisposition for or against the making of orders for provision for adult children (just as there is, and should be, no predisposition for or against the making of orders for the deceased's spouse). To approach the matter with such a predisposition would, if nothing else, be inconsistent with the observations of the Court of Appeal (in Steinmetz v Shannon and elsewhere) and inconsistent with the recognition in numerous cases that, in the circumstances of the particular case there at hand, there had been inadequate provision for an adult child (and the making of orders for provision out of the estate for an adult child in the particular circumstances of that case) (see, for example, Stern v Sekers; Sekers v Sekers [2010] NSWSC 59). 170. Each case must be determined on its merits, whether the applicant for provision be an adult child, surviving spouse, or other dependant; I do not read the observations of the Court of Appeal in Sgro v Thompson as suggesting otherwise (and, as I say, the Court of Appeal in Steinmetz v Shannon makes this clear). As Lindsay J said in Verzar v Verzar [2012] NSWSC 1380 (at [131]), in a passage that has been endorsed by Hallen J in Sreckovic v Sreckovic [2018] NSWSC 1597 (Sreckovic) (at [154]): 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]."
3. In undertaking the evaluative exercise to determine whether adequate provision was made for Nick by the Will, the starting point is that no provision was made for Nick. Recalling that this question must be answered as at the date of hearing, I accept Ms Treherne's submission that this is a clear case where adequate provision has not been made. So much is apparent, as a starting point, from Nick's health and financial circumstances as I have recorded them in paragraphs [14] and [15] above.
4. Nevertheless, I have not overlooked that the assessment at this stage of the enquiry is not simply confined to a financial one. The deceased's estate (taking into account notional estate, as the parties agree one must for the purposes of this case) was of a size that some degree of provision could have been made for Nick, which would still have left adequate provision for Barbara. Barbara herself acknowledged that if the deceased had lived to have seen the disabilities which have been visited on Nick, he would have wanted to have done something for Nick while also still looking after Barbara.
5. So much was also demonstrated by the fact that during the deceased's life he and Barbara did provide financial assistance from time to time to Nick. The deceased was a meticulous record keeper, including preparing a document entitled "Nick and money matters". This recorded loans to Nick as at May 2013 (excluding interest) of $13,793.75 together with the notation "I am not expecting you to pay anything. Just to let you know the position. Dad.". However, given Nick's current circumstances including that his health issues all arose after the deceased's death, this is not a case where the provision of financial assistance to Nick by the deceased during the latter's lifetime counts against the conclusion that adequate provision has not been made for Nick in the Will.

What provision is adequate?

1. I will briefly make some observations by reference to the considerations in s 60(2) of the Act: "60 MATTERS TO BE CONSIDERED BY COURT … (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."
2. [Paragraph (a)]. There was no dispute that Nick and his father enjoyed a close, happy relationship. The evidence permits the Court to conclude that the entire family including all the siblings enjoyed good relationships with both the deceased and Barbara.
3. [Paragraph (b)]. As I have already observed, this is a case where a parent, where able, would be taken to have some obligation to support an adult child who has fallen into difficulties, particularly with not of that child's making. No other eligible person has put their affairs in issue. Barbara is the only other person whose situation the Court has to take into account.
4. [Paragraph (c)]. Taking into account the possible notional estate, I am satisfied for reasons which I will set out further below that the estate is of a sufficient size to make adequate provision for Nick while also leaving proper provision for Barbara.
5. [Paragraph (d).] I have set out Nick's (and to the extent relevant Tatjana's) financial circumstances in paragraphs [14], [15] and [22] to [25] above. It is not disputed that he will never work again. It is clear enough that he needs secure accommodation which is suitable to his needs as a disabled person. He is able to drive and the evidence discloses that it was a matter of some pride to Nick when he was told he would be allowed to drive again. The provision of a suitable car as a matter of independence and personal dignity seems to me to be appropriate. He will need funds to buy such a car. There was no dispute about the likely cost of a suitable kit home and a property in an area in the country where Nick wanted to live.
6. [Paragraph (e)]. I have taken into account Tatjana's financial circumstances as they are set out above. Her finances are totally devoted to maintaining herself, Nick and Isabella.
7. [Paragraph (f)]. I have set out Nick's various disabilities in paragraph [14] above. They are the principal reason why this application has been brought and demonstrate a serious and permanent need.
8. [Paragraph (g)]. Nick is 64.
9. [Paragraph (h)]. It was common ground that Nick had made no contribution to the acquisition of the assets which are the subject of these proceedings. There was an acknowledgement that Nick, like all family members when they visited the Property, would do some work on the Property.
10. To that extent it might be said that he has made a contribution, when he was able, to the conservation and improvement of the Property. However, I accept that, in and of itself, is unlikely to have been significant in the long term. It was, as Barbara said, no more and no less than what dutiful children would do on visiting her at the Property. However, because of Nick's current financial and medical circumstances, this is not a case where the fact that he has not contributed to the acquisition of the assets the subject of the proceedings should count against him.
11. [Paragraph (i)]. I have taken account of the evidence that there was financial assistance provided from time to time to Nick by the deceased (see paragraph [53] above).
12. [Paragraph (j)]. The testamentary intentions of the deceased were not in controversy. It is clear that, if she survived him, the deceased wanted Barbara to receive all of their joint assets and to continue to occupy the Property.
13. [Paragraph (k)]. There is no other person liable to support Nick. Tatjana is there to be his carer. However, I accept Ms Treherne's submission that, in the long term, there is no guarantee she will continue to undertake that role.
14. [Paragraph (l)]. There is no adverse issue concerning Nick's conduct or that of any other person.
15. Subject to the issues surrounding the designation of notional estate, that brings me to an explanation of the appropriate amount of provision. That requires the Court to consider the value and composition of the estate available and the competing claims upon it. In this case that means balancing Barbara's and Nick's respective moral claims to the testamentary bounty of the deceased.
16. Based on the unchallenged amounts set out in paragraph [8] above, I accept that the amount of $600,000 to provide Nick with the resources to acquire a home and transport and to have a fund for contingencies is the appropriate provision which the Court ought to make for his maintenance and, such as it might be, advancement in life. When weighing their competing claims, I am fortified in that outcome because the evidence supports the fact that Barbara, if such an amount is provided to Nick, will still have adequate funds (even if the Property must be sold) both to continue to receive income not significantly different to that which she currently receives and to acquire a suitable home.
17. Insofar as the question of income is concerned, the order which the Court proposes to make will not deprive her of either of the pensions to which I have referred in paragraph [39] above. I propose to designate half of those shares which were jointly held by Barbara and the deceased as notional estate. The value of those shares is approximately $100,000. Looked at as a matter of proportion, they provide approximately a quarter of the fortnightly income of $543 which Barbara receives from the share portfolio ($135). Designating them as notional estate for the benefit of Nick will therefore reduce Barbara's surplus fortnightly income (see paragraph [39] above) to $865. In other words, the diminution in her income by the designation of those shares is still less than her surplus of income over expenditure.
18. In relation to accommodation, I propose to designate so much of the half interest that was held as a joint tenant by the deceased in the Property as will make up the further provision of $600,000 (so approximately $500,000). If this necessitates the sale of the Property then, on the evidence before me, Barbara will still be left with approximately $700,000 (being $1.35 million less the $500,000, less her and Nick's legal fees of $146,923 (see paragraph [43] above).
19. There was evidence that a three bedroom house in the suburb of Bonner in Canberra could be bought for $490,000. I accept Barbara's evidence that particular house was of a kind and in an area that she would not wish to live (see paragraph [41] above), but I infer from the evidence about the house in Bonner that an amount of $700,000 will be sufficient to purchase a house for Barbara in the Canberra area suitable for her needs.
20. I take into account Barbara's entirely understandable wish to have somewhere that is perhaps not enclosed completely by suburbia and which has a garden. I accept that it will be different, both in size and quality, from the Property which she loves. Nevertheless, the evidence permits me to conclude that such a new property would be available to her if she has $700,000 to spend, especially if on the outskirts of Canberra (and hence unlikely to be more expensive than a similar property in the suburbs), which might provide more of a country feel.
21. In reaching this conclusion, I accept Ms Treherne's submission that it is inevitable that at some point Barbara will have to leave the Property. It is unnecessary to speculate, and that is all it would be, what the reasons for that might be and when that might occur, but such a departure is inevitable. In my respectful opinion, and giving full weight to Barbara's desire to remain in the Property, in circumstances where she will eventually have to leave whereas the Property can be made immediately available to assist Nick, it is the latter purpose that should be preferred. When that is combined with the considerations I have set out in paragraph [70] above to the effect that Barbara's income would be minimally altered if the Property must be sold, in my respectful view all of that supports the conclusion that the appropriate exercise of the Court's discretion is to make provision in the figure of $600,000 proposed on behalf of Nick.

Issues concerning notional estate

1. There was no dispute that Barbara's succession to the jointly held assets constituted a relevant property transaction for the purposes of the Act. The argument focused on whether the other prerequisites and protections in relation to the making of notional estate orders had been satisfied.
2. In relation to s 78(1) of the Act, the order which I propose to make is to be made for the purposes of a family provision order under Part 3.2 of the Act.
3. For the purposes of s 80 of the Act, there was no dispute that the estate had been affected by a relevant property transaction.
4. For the purposes of s 83 of the Act, I am satisfied that the relevant property transaction (being Barbara's acquisition by survivorship of the assets jointly held with the deceased) relevantly disadvantaged Nick because they would otherwise have been available for the purposes of a family provision order.
5. Section 87 of the Act provides: "87 GENERAL MATTERS THAT MUST BE CONSIDERED BY COURT The Court must not make a notional estate order unless it has considered the following: (a) the importance of not interfering with reasonable expectations in relation to property, (b) the substantial justice and merits involved in making or refusing to make the order, (c) any other matter it considers relevant in the circumstances."
6. As I have already said, I have given anxious consideration to the importance of not interfering with Barbara's reasonable expectations in relation to the Property. I have set out my reasons why this is a case where, even if great weight is given to her expectations and desires, they do not outweigh Nick's need for assistance. The reasoning I have set out in paragraphs [54] to [74] above addresses the substantial justice and merits involved in this case. I am satisfied that the order can be made in a way which will adequately provide for both Nick and Barbara. Refusing the order will mean that Nick is left without resources of his own to assure his future.
7. For the purposes of s 88 of the Act, there was no dispute that this was an estate that would otherwise be insufficient for the making of a family provision order should the Court decide to make one.
8. For the purposes of s 89 of the Act, I have taken into account the value and nature of the property that is available. There was no dispute between the parties that it could only comprise the shares, the Property and the cash at bank which I have listed in paragraph [37] above. I propose to designate only so much of the shares and the Property as will allow the provision of $600,000 to be made. That will be a matter for the form of orders to be brought in to give effect to these reasons.
9. Finally, it is necessary to consider s 90 of the Act: This provides: "90 RESTRICTIONS ON OUT OF TIME OR ADDITIONAL APPLICATIONS (1) This section applies to proceedings where: (a) an application for a family provision order is made later than 12 months after the date of the death of the deceased person, or (b) an application for a family provision order is made in relation to an estate that has been previously the subject of a family provision order. (2) The Court must not make a notional estate order in the proceedings unless: (a) it is satisfied that: (i) the property to be designated as notional estate is property that was the subject of a relevant property transaction or of a distribution from the estate of a deceased person or from the estate of a deceased transferee, and (ii) the person who holds the property holds it as a result of the relevant property transaction or distribution as trustee only, and (iii) the property is not vested in interest in any beneficiary under the trust, or (b) it is satisfied that there are other special circumstances that justify the making of the notional estate order."
10. The parties accepted that the central issue in this aspect of the proceedings was whether Nick had demonstrated special circumstances for the purposes of s 90(2)(b). In Underwood v Gaudron [2014] NSWSC 1055 Hallen J summarised the principles in relation to special circumstances (and this statement was not the subject of the subsequent appeal in that case): "203. The following summary regarding s 90(2)(b) may be gleaned from the authorities which dealt with s 28(5) of the former Act: (a) The phrase is not defined in the Act and the sub-section gives no direct indication of the nature of "special circumstances". It is incapable of precise, or exhaustive, definition. The words are of indeterminate reference and it is neither possible, nor desirable, to attempt to codify the circumstances to be regarded as special. (b) The phrase prescribes a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. (c) The qualifying adjective, "special", looks to circumstances that are unusual, uncommon or exceptional; the Oxford Dictionary defines "special" as meaning "of such a kind as to exceed or excel in some way that which is usual or common; exceptional in character, quality or degree". The Macquarie Dictionary states the meaning as: "of a distinct or particular character or purpose"; "being a particular one"; "particular, individual or certain"; "different from what is ordinary or usual"; "extraordinary, exceptional". This does not mean that the circumstances must be unique, but they must have a particular quality of unusualness that permits them to be described as "special". (d) A circumstance may be "special" by reason of degree, as well as of kind; circumstances need not be unique to be special, but they will be unusual; it is legitimate to have regard to a combination of factors in reaching the conclusion that they are special. (e) More should be demonstrated to prove "special circumstances" than to justify an extension of time; the latter requires "sufficient cause" to be shown; however, to establish such special circumstances, does not require the court to exclude circumstances considered under s 58(2). (f) In a case where an extension of time is sought, the sub-section superimposes a further requirement, or extra hurdle, over and above the matters that a court will consider under s 87. (g) Whether circumstances answer the description in the phrase must depend upon the context in which they occur; it is the context that allows one to say that the circumstances in one case are markedly different from those in the usual run of cases. Their existence is also, in a sense, evaluative in character. (h) Section 28(5) of the former Act gave some indication of the types of circumstances that may count as special circumstances, namely circumstances involving such things as property not finally vesting in interest and lack of capacity in the plaintiff; those matters may amount to special circumstances under s 90."
11. Ms Pringle submitted that most applications which had successfully demonstrated special circumstances had turned on factors which included the claimant's contributions to the acquisition of the estate assets. However, in the exercise of the Court's discretion, the strength of Nick's case for provision means this is not a case where the fact that Nick has not contributed to those assets should disentitle him from satisfying the requirement of special circumstances. Nor does it matter that he has, from time to time, already received financial assistance both from the deceased during the deceased's lifetime and from other family members.
12. Ms Pringle submitted that the circumstances of this case were not, within the meaning of the authorities, "sufficiently special" to displace what clearly were (as the Court accepts) the deceased's testamentary intentions and Barbara's deeply held wish not to leave the Property.
13. Accepting, as the Court does, that the test of special circumstances is a higher hurdle than that for an extension of time, I accept Ms Treherne's submission that Nick's circumstances in this case constitute special circumstances for the purposes of the Act. As Ms Pringle realistically recognised, this was a case where the hurdle in relation to an extension of time was likely to be relatively easily overcome.
14. When Nick's health and financial circumstances are taken into account, which in and of themselves gave him a strong case for provision from the estate, and the fact that the events which have given rise to his current circumstances took place after the deceased's death, the Court is satisfied that all of these together constitute special circumstances which justify the making of an order designating notional estate. If an analogy with previous cases of special circumstances is required, it is with a plaintiff suffering incapacity.

Conclusion

1. I will give the parties an opportunity to bring in short minutes of order to give effect to these reasons and, if able to be agreed, as to costs.

Amendments 28 August 2019 - Amendment to spelling of solicitors for the plaintiff. 28 August 2019 - Amendment to spelling of Djukanovic DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 August 2019