Curnow v Curnow

Supreme Court of NSW|2014-03-24|Before: Hallen J, Santow J, Cohen J

Grant of Administration 60As has been noted above, there has been no grant of administration in respect of the deceased's estate. A preliminary question, namely whether it is necessary for there to be a grant of administration in this estate, before the Plaintiffs' application can be dealt with, was debated during oral submissions, so I shall deal with it. 61(I should mention that senior counsel for Deborah stated in his written submissions: "The Defendant does not oppose the making of such [an] order if the court is otherwise satisfied." No other submissions, in writing, were made, by either senior counsel regarding the making of an order for administration.) 62Section 59 of the Act simply states that the court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person upon being satisfied of certain things to which I shall turn later in these reasons. For present purposes, it need only be said that there is no requirement, in s 59, that a grant of administration is a pre-condition of the power to make an order. 63In s 3 of the Act, "deceased person" is defined as "including any person in respect of whose estate administration has been granted". The use of the word "including", suggests that the phrase is not limited to only such a person. In this regard, the Act differs from the former Act, which, in s 7, specifically referred to "a deceased person in respect of whom administration has been granted". This wording in the former Act meant that the court had no power to make an order under that section unless and until there had been a grant of administration. 64"Estate" is not defined in the Act, although under s 6 of the former Act, it was defined "in relation to a person dying leaving a will, includes property which would, on a grant of probate of the will, vest in the executor of the will or, on a grant of administration with the will annexed, vest in the administrator appointed under that grant". There is no reason to think that the definition would not be equally applicable to the Act. 65"Notional estate" of a deceased person is defined in s 3 of the Act to mean property designated by a notional estate order as notional estate of the deceased person. "Notional estate order" means an order made by the court under Chapter 3 designating property specified in the order as notional estate of a deceased person. A person's rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act. 66Section 55 of the Act sets out the circumstances in which "administration is granted in respect of the estate of a deceased person". In s 3 of the Act, "administration" is defined by reference to s 55 of the Act. That section provides, in sub-s (1), that "administration" is granted in respect of the estate of a deceased person in certain specified events including where "probate of the will of the deceased person is granted in New South Wales or granted outside New South Wales but sealed in accordance with s 107(1) of the Probate and Administration Act 1898" or where "letters of administration of the estate of the deceased person are granted in New South Wales ... whether for general, special or limited purposes". 67In Hitchcock v Pratt [2010] NSWSC 1508, Brereton J wrote, at [43]: "... I would not have dismissed the proceedings on the ground that there was no relevant grant in New South Wales. A grant was not previously a precondition to the institution of proceedings, although one had to be obtained before an order was made [Leue v Reynolds (1986) 4 NSWLR 590]. Under the current legislation, not even that is necessary. And even if it were, a grant under s 91 could be made prior to any family provision order." 68Respectfully, I agree that a grant of administration is not required at the time an application for a family provision order is made. Section 58(1) of the Act specifically provides that an application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted (my emphasis). (However, there is a note to s 58(1) that administration may be granted for the purposes of an application for a family provision order under s 91.) 69Also important to note, is that there is no requirement in s 59 of the Act that there be a grant of probate as a condition on the power to make an order. 70Section 91 of the Act, in fact, provides: "Grant of probate or administration to enable application to be dealt with (1) This section applies if an application is made by a person for a family provision order, or notional estate order, in respect of the estate of a deceased person, or deceased transferee, respectively, in relation to which administration has not been granted. (2) The Court may, if it is satisfied that it is proper to do so, grant administration in respect of the estate of the deceased person or deceased transferee to the applicant for the purposes only of permitting the application concerned to be dealt with, whether or not the deceased person or deceased transferee left property in New South Wales. (3) The granting of administration under the Probate and Administration Act 1898 does not: (a) prevent the Court from granting administration under this section, or (b) unless the Court otherwise orders, affect any previous grant of administration under this section. (4) The provisions of the Probate and Administration Act 1898 apply to a grant of administration under this section, and to the legal representative of the estate, in the same way as they apply to a grant of administration under that Act and the legal representative of any estate for which such a grant has been made." 71Thus, under s 91, the court may, if it is satisfied that it is proper to do so, grant administration in respect of the estate of the deceased person for the purposes only of permitting the application concerned to be dealt with (my emphasis). The application referred to is for a family provision order and for a notional estate order. 72Section 91 does not provide for the making of a grant for the purposes of an application for a family provision order or for a notional estate order before such an application is made: Estate of Terry [2012] NSWSC 927, per White J, at [12]. Importantly, the section is different from s 41A of the Probate and Administration Act 1898, which provided for a grant to be made "in order to permit an application to be made under the Family Provision Act 1982". It is to be remembered, also, that s 7 of the former Act specifically required there to be a grant of an administration before the court could make an order under that section: Cabban v Cabban [2010] NSWSC 1433. 73Thus, it seems to me, the Act differentiates between "when an application is made" (the date of the filing of the Summons) and "when the application ... is dealt with" (the date of making a family provision order or notional estate order, whether by agreement of the parties, or following a contested hearing). 74The common prerequisite for s 91 to apply, at either date, is that there is an estate of a deceased person, or deceased transferee, respectively, in relation to which administration has not been granted. However, the use of the word "permitting" in s 91, in my view, is important. The word usually means "authorising", "allowing" or "not preventing". What follows in the sub-section avoids the need for there to be real and personal estate which the deceased died seised or possessed of, or entitled to, in New South Wales, a pre-requisite to the court having jurisdiction to grant administration: s 40 Probate and Administration Act. 75The court is not given any guidance about how to exercise the power in s 91. Not unnaturally, the section does not provide any criteria by reference to which the court should be satisfied. No requirements are prescribed by the Act to assist the court to determine if it is proper to grant administration in respect of the estate of the deceased or deceased transferee, to the applicant, solely for the purpose of permitting the application concerned to be dealt with. 76Nor is it useful to purport to lay down an exhaustive list of the criteria by reference to which an application ought to be determined. Whether the court is satisfied that it would be proper will be fact specific and determined on its own merits. 77There are several matters, in my view, that might be relevant at the time the application under s 91 is being considered, including whether: (a) a family provision order or notional estate order in favour of the applicant is to be made; (b) administration is required to facilitate dealing with the real and personal estate which the deceased died seised or possessed of or entitled to in New South Wales, or the property the subject of the notional estate order to give effect to the family provision order which is to be made; and (c) there is consent of any other party in the proceedings to the making of an order under s 91(2). 78Section 91 would be an unnecessary inclusion in the Act if a grant were not required for the purposes of the application that has been made being dealt with. Yet, the discretion given to the court ("may, if it is satisfied that it is proper to do so") should be noted. The discretion suggests that there may be cases when it would not be proper to do so. 79I have considered whether the court could be satisfied that it would be "proper to do so" if there were only property of the deceased that could be the subject of a notional estate order. There may be such occasions since s 91 applies to both an application for a family provision order or for a notional estate order. 80There is one other matter that I consider relevant to the determination of whether a grant of administration is necessary. Section 72 of the Act, relevantly, provides: "A family provision order takes effect, unless the Court otherwise orders, as if the provision was made: (a) in a codicil to the will of the deceased person, if the deceased person made a will, or (b) in a will of the deceased person, if the deceased person died intestate." 81Thus, the applicant in favour of whom a family provision order is made, receives that benefit as the result of the creation of rights pursuant to the making of the order. That result is reached because the order takes effect as if it had been made in a codicil to the will of the deceased, or in a will if the deceased died intestate: also see, Union-Fidelity Trustee Co of Australia Ltd v Montgomery (1976) 1 NSWLR 134, at p 141; McLeod v Johns (1981) 1 NSWLR 347, at p 349. 82In addition, as was pointed out in Official Receiver in Bankruptcy v Schultz [1990] HCA 45; (1990) 170 CLR 306, at 315-316, (referring to s 41 of the Succession Act 1981 (Qld), which deals with the claim for maintenance and support): "The wide powers conferred by s 41 and the manner in which sub-s. (10) is expressed strongly suggest that the effect of an order under the section is not to change the benefits to be expected from the right to due administration arising pursuant to the will, but to superimpose upon the duty of due administration a judicial order made pursuant to statute. In other words, a new and independent obligation is created which has an impact upon the way in which the executor administers the estate pursuant to his or her existing duty, by compelling him or her to comply with the terms of the court's order. Each beneficiary's right to due administration is made subject to the terms of the order in the sense that the order governs the executor's actions to the exclusion of any inconsistent direction contained in or derived from the will." 83Clearly, an applicant who obtains a family provision order has the right to seek orders giving effect to the family provision order against the executor or administrator of the deceased's estate to whom probate or administration has been granted because of the effect of s 72. As a person then beneficially entitled to part of the deceased's estate, he or she does not have a proprietary interest in the property which is the subject of the family provision order but possesses a right to have the estate duly administered: Commissioner of Stamp Duties (Queensland) v Livingston [1964] UKPCHCA 2; (1964) 112 CLR 12; (1965) AC 694. 84However, as provided for in s 72, the court has power to make an order that a family provision order not have the effect set out in (a) and (b) of that section. Thus, in a case where an order under s 91 is not sought or made, but where the holder of property that may be designated as notional estate is a party to the proceedings, the court may need to make an "otherwise order" under s 72, thereby permitting the Plaintiff to proceed against the holder of property designated as notional estate in the event that the family provision order were not satisfied. (The matter could otherwise be dealt with by the making of an order of the type set out in [21] above.) 85Practically speaking, an issue regarding whether an order under s 91 should be made does not arise very often. The cases where there is only notional estate are reasonably rare. Then, an order is made, for the purposes of the proceedings, that the holder of the property sought to be designated as notional estate is to be joined as a party to the proceedings and that any order, and any judgment or order subsequently entered, or made, in the proceedings, binds the deceased person's estate to the same extent as the estate would have been bound had a personal representative of the deceased person been a party to the proceedings. 86Usually, as in this case, it is the holder of the property sought to be designated as notional estate, who is a Defendant in the proceedings. 87In summary, then, in a case where there is an application for a family provision order in respect of the estate of a deceased person, or deceased transferee, or a notional estate order, in relation to which administration has not been granted: (a) Where there is real and personal estate of which the deceased person dies seised, or possessed of, or entitled to, in New South Wales, at the date of death, a grant of administration is required before an application for a family provision order can be dealt with and it would be proper to make an order under s 91. (b) In any other case, where there is no such real or personal estate, if: (i) the holder of the property the subject of the application for a notional estate order is a party to the proceedings; (ii) a family provision order and a costs order is made in favour of the applicant; (iii) a notional estate order is, or may be, made in respect of the property the subject of the application for a notional estate order for the purposes of a family provision order, or for the purposes of an order that the whole, or part, of the costs of proceedings in relation to the estate or notional estate of a deceased person be paid out of the notional estate of the deceased person; (iv) an order is made that the holder of the property the subject of the notional estate order, or that person agrees, to satisfy the family provision and costs orders; and (v) the court makes an order that the family provision order not take effect as set out in s 72(a) or (b), then, it may not be "proper" to make a s 91 grant. 88In stating my view, there is much to be said for the view expressed by Young J (as his Honour then was) in Re Estate Harriett Cassel [2000] NSWSC 294, at [8] - [10], although in that case, he was speaking of the former Act: "The grant under s41A is not a grant entitling the grantor to administer the estate in any way at all. It is a grant purely to get over the barrier that would otherwise prevent an application being made under the Family Provision Act. Accordingly, what usually occurs in this sort of case is that a grant is made to the plaintiff who is about to bring proceedings under the Family Provision Act. The Court, when hearing those proceedings, then needs to appoint a person to represent the estate under Pt 8 r16, or some other rule under Pt 8. All this seems rather pointless. A grant is made purely to remove the barrier to the Family Provision Act claim. It does not provide for the administration of the estate, provide authority for anyone to enquire as to the deceased's assets or the identity or wishes of the beneficiaries. It is left to the plaintiff to make a series of applications, (1) to the Probate Court for a grant; and (2) to the Equity Court for directions as to who should be a representative defendant. These costly applications confer no real benefit on anyone. It may well be that s41A should be amended or the Family Provision Act amended so as to permit applications to be made without a grant, provided that the Court is able to appoint a person to represent the estate." 89In the present case, since Deborah has been made a party to the proceedings and because she has agreed to satisfy any family provision order and costs order made in favour of any of the Plaintiffs, before a notional estate order is made, it is not necessary, to grant administration under s 91. 90If there is any difficulty in giving effect to, or implementing, the family provision order in favour of each Plaintiff that I propose to make, I would then be prepared to make an order in favour of each Plaintiff under s 91.

Eligibility 91The 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, there 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. 92Relevantly, in this case, Alana 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. 93It can be seen, from the sub-section, that there are two limbs. The first is a relationship of dependence, whether wholly or partial, upon the deceased; the second is being "a member of the household of which the deceased person was a member". The language in the sub-section is reflective of the person's status, as well as her, or his, relationship to the deceased. There is no age limit placed on such a person making an application. 94It is unnecessary to discuss the section in any further detail, as there is no dispute, and I am otherwise satisfied from Alana's evidence, that she is an eligible person within the meaning of the Act. It appears from that evidence that the deceased treated her as his child, even to the extent of contacting her to make arrangements to see Jake and Kristy "as he would not contact my mother". 95Relevantly, in this case, Jake and Kristy rely upon the category of eligibility referred to in s 57(1)(c) of the Act. There is no dispute that each is "a child of the deceased" and an eligible person within the meaning of that term in the Act. 96Accordingly, each applicant is an eligible person within the meaning of the Act and has the status to bring her and his claim. 97The language of each of the relevant sub-sections is expressive of the person's status, as well as her or his relationship to the deceased. There is no age limit placed on an eligible person making an application.

Factors Warranting the Making of the Application 98In this case, Alana, as a person who is an eligible person by reason only of paragraph (e) of the definition of "eligible person" in s 57(1), must satisfy the court that, having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application (s 59(1)(b)). 99The Act does not specify the "factors which warrant the making of the application". As Pembroke J noted, in Wilcox v Wilcox [2012] NSWSC 1138, at [16], "[n]o legislative assistance is given as to the intended scope or meaning of this enigmatic requirement". 100However, in considering the meaning of what he described as "this poorly conceived and clumsily expressed subsection" in the former Act (which did not form part of the Draft Bill produced by the Law Reform Commission), M McLelland J said, in Re Fulop, Deceased (1987) 8 NSWLR 679, at 68 (approved in substance by the Court of Appeal in Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241), that the factors are factors which, when added to facts which render the applicant an eligible person, give him, or her, the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased. 101I have dealt with the meaning of the phrase in other cases, the most recent of which is Doshen v Pedisich [2013] NSWSC 1507. I note that Slattery J, in Ng v Morgan, at [174], agreed with the view that I had expressed in that, and other, cases. 102Again, there is no need to discuss the section further as there is no dispute, and I am otherwise satisfied, that there are factors warranting the making of Alana's application. These include the nature and duration of their relationship and how the deceased regarded Alana.

Inadequacy of Provision 103It is only if eligibility and, as is necessary in the case so far as it relates to Alana, factors warranting the making of the application are 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 by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (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". 104Allsop P in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, commented, at 658 [6]: "... the expression of the task in s 59 is subtly different from the previous legislation. A prohibition against making an order unless satisfied of circumstances of an evaluative character, is different in emphasis from a permission to make an order if satisfied of circumstances of an evaluative character... The exercise of power to make the order is conditioned on the Court being satisfied of certain things in s 59(1). The order that may be made is described in s 59(2). The two elements are described in s 60(1)(b) as 'whether to make [an] ... order and the nature of any ... order.' Section 60(2) provides a detailed body of considerations for the task in s 59." 105Basten JA, at 662-3 [26], put the differences this way: "As appears from the language of the relevant provisions set out at [66]-[67] below, the Succession Act differs from the Family Provision Act in three significant respects. First, although both conferred similar powers on the court, the conditions of their exercise differ. The Family Provision Act required that the court 'shall not make an order ... unless it is satisfied that' the provision made by the testator is 'inadequate': s 9(2). The Succession Act provides that the court 'may ... make a family provision order ... if the court is satisfied that' the testator has not made 'adequate provision' for the applicant: s 59(1). The changes in language may have been intended to remove double negatives, but there is a resultant change in emphasis. The apparent effect is to widen the discretion vested in the court. That which could satisfy a court that the provision made is 'not adequate', for the purposes of the Succession Act, might not have been sufficient to remove the prohibition under the Family Provision Act, which operated in the absence of affirmative satisfaction that the provision was 'inadequate'. There may well be no bright line boundary between adequacy and inadequacy." 106Barrett JA, at 677-8 [82] - [86], said: "The court's task under the new legislation is in substance the same as that under the old. Three differences relevant to the kind of case under discussion may, however, be noted (I leave to one side as irrelevant to such cases the extension of the s 60(2) criteria to the question of 'eligible person' status); and two postulated differences may be rejected. First, the Succession Act provisions direct attention, upon the initial inquiry into adequacy, to provision made by the deceased's will and the intestacy laws. The former legislation referred merely to provision 'out of the estate' but it was clear that the operation of the intestacy laws was to be taken into account in deciding what provision was available 'out of the estate': see, for example, Smilek v Public Trustee [2008] NSWCA 190. Second, the Succession Act confines attention, upon that initial inquiry, to provision made by the will and the intestacy laws. There is no reference to provision made during the deceased's lifetime. In this respect, there is a departure from the Family Provision Act approach under which provision made in favour of the eligible person "either during the person's lifetime or out of the person's estate" was to be examined upon the initial inquiry into adequacy. Attention may, however, still be given to provision made in favour of the applicant during the deceased's lifetime. That is now one of the factors to which regard may be had under s 60(1)(b) when the court is deciding whether to make a family provision order and the nature of the order: see s 60(2)(i). Under the Succession Act, therefore, provision made by the deceased while living thus has a continuing relevance with altered emphasis. Such provision is no longer something to be taken into account in deciding whether adequate provision has been made; but it may be taken into account in deciding whether an order should be made and the nature of the order. The third difference to be noted is the Succession Act's more comprehensive catalogue of matters that may be taken into account in formulating an order for provision. Section 9(3) of the Family Provision Act empowered the court to 'take into consideration' matters there stated in 'determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person'. Section 60(1)(b) of the Succession Act allows the court to 'have regard to' the matters set out in s 60(2) 'for the purpose of determining ... whether to make a family provision order and the nature of any such order'. The Succession Act lists a greater number of such matters than did the Family Provision Act." 107Relevantly to this case, other than by reference to the provision made by the operation of the intestacy rules 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 the 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 on intestacy, on the one hand, and to the requirement for maintenance, education and 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. 108In 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." 109It was said in the Court of Appeal (by Basten JA) in Foley v Ellis [2008] NSWCA 288, at [3], 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] (citing Manuel v Lane [2013] NSWCA 61, at [9], per Emmett JA, speaking in relation to s 20 of the Property (Relationships) Act 1984 (NSW)). 110Under 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. 111"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". 112Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act. 113The term "maintenance" usually refers to a provision for the supply of the necessaries of life. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement": "'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education." 114In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), at [18], stated: "'Proper maintenance' is not limited to the bare sustenance of a claimant [cf Gorton v Parkes [sic] [1989] 17 NSWLR 1], but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility." 115In 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." 116In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Murphy J noted, 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." 117In 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 earlier period of life in the members of the family: Blore v Lang [(1960) 104 CLR 124] per Dixon CJ at p. 128." 118Master Macready (as his Honour then was) in Stiles v Joseph (Supreme Court (NSW), Macready M, 16 December 1996, unrep) said, at 14-16: "Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses 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 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. (at 541) In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274... In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said: 'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.' The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that: 'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'" 119In 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 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." 120In 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)." 121In 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." 122The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, 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 145 [72], [77]. 123These 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." 124Dixon 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." 125In Goodman v Windeyer, Gibbs J said, 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." 126In Vigolo v Bostin, at 228, 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 the 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." 127Santow J pointed out, in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), that "adequate" and "proper" are independent concepts. His Honour said, 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 ..." 128In Palaganio 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 that there are no definite criteria by which the question can be answered. 129His Honour further observed, in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522, 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)." 130Until 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 and/or by operation of the intestacy rules, 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]. 131Whether an applicant has a 'need' or 'needs' is also a relevant factor at the first stage of the enquiry. It is an elusive 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: Collins v McGain [2003] NSWCA 190 (Tobias JA, with whom Beazley and Hodgson JJA agreed). 132In Collins v McGain, Tobias JA 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." 133In 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 (at 227) per Gaudron J. '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 (at 10-11) per Bryson J. 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 (at 575) per Kirby P. 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 (at 227) per Gaudron J. Compare Gorton (at 6-11) per Bryson J; Collicoat v McMillan [1999] 3 VR 803 at [38], [47] per Ormiston J." 134"Need", of course, is a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]. 135As Callinan and Heydon JJ emphasised, in Vigolo v Bostin, at 231 [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. 136In the event that the court is satisfied that the power to make an order is enlivened (in this case, it is satisfied that the applicants are eligible persons, that, in the case of Alana, there are factors warranting the making of an order, and that adequate provision for the proper maintenance, education or advancement in life of the applicants 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. 137The 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. 138I have dealt with the question that has been raised in the cases whether the two-stage approach identified in Singer v Berghouse continues to apply to the provisions of the Act in other cases, 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 said in that case, which is not affected by the recent decision of the Court of Appeal in Phillips v James [2014] NSWCA 4. 139(Since I delivered my reasons in Aubrey v Kain, Robb J has also considered the topic in Janette Susan Gardiner v Raymond James Gardiner as Administrator of the Estate of the Late Dulcie Eva Gardiner [2014] NSWSC 435. I respectfully adopt his Honour's reasoning, set out at [117] - [120], as to the persuasiveness of the reasoning of Barrett JA in Andrew v Andrew.) 140Section 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." 141It 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 [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. 142Beazley 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 focussed 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." 143White J, in Slack v Rogan; Palffy v Rogan, at [121], wrote 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, or on intestacy, was less than adequate for an eligible applicant's 'proper' maintenance, education or advancement in life". 144In West v Mann [2013] NSWSC 1852, Kunc J, at [12], wrote: "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. 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'." 145The 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. 146The Act 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. For example, when considering eligibility under s 60(1)(a), many of the matters in s 60(2) will be largely, if not wholly, irrelevant. 147There is no definition in the Act of "financial resources" (which term is referred to in s 60(2)(d)). However, there is a definition of that term in s 3 of the Property (Relationships) Act 1984, which I consider helpful: "'financial resources' ... includes: (a) a prospective claim or entitlement in respect of a scheme, fund or arrangement under which superannuation, retirement or similar benefits are provided, (b) property which, pursuant to the provisions of a discretionary trust, may become vested in or used or applied in or towards the purposes of the parties ..., (c) property, the alienation or disposition of which is wholly or partly under the control of the parties to the relationship or either of them and which is lawfully capable of being used or applied by or on behalf of the parties to the relationship or either of them in or towards their or his or her own purposes, and (d) any other valuable benefit." 148In Neale v Neale [2013] NSWSC 983, in relation to the meaning of that term, I referred to White and Tulloch v White (1995) 19 Fam LR 696 and the statement made in that case that the "term [connotes] some degree of entitlement to, control over, or relative certainty of receipt of property". 149I am satisfied that the entitlement of Deborah, as a beneficiary of the deceased estate, to a share of her mother's estate, is a financial resource available to her within the meaning of that term in the Act. I am less confident about her entitlement, if any, to damages/compensation for the disabilities from which she suffers. I shall simply bear in mind her possible entitlement. 150Section 60(2)(d) refers to "earning capacity", which means no more than the capacity to find employment to earn or derive income. 151A 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-s (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1). 152Leaving 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. 153This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the first stage. Happily, I am not alone in reaching this conclusion which is supported by the following comments made in Singer v Berghouse, at 209 - 210: "... The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant." 154It is also supported by the comments of Callinan and Heydon JJ in Vigolo v Bostin, at 230 - 231: "We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made 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. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors." 155As was also pointed out by Barrett JA, in Andrew v Andrew, at [88] - [89]: "... leaving aside its relevance to the 'eligible person' inquiry, the s 60(2) catalogue is directed to the question of what, if any, order for provision should be made and is not, in terms, applied to the initial question of the adequacy of the provision made by the will or the intestacy laws. It can be said at once that the s 60(1)(b) directive corresponds with that in the former s 9(3) to the extent that it relates to the decision regarding provision to be made. There is no express legislative intention, under either piece of legislation, that the enumerated factors are to be taken into account in deciding the initial question of adequacy of provision. There is accordingly no reason to think that those factors are to be afforded any special relevance in approaching the adequacy question. But they will, at that point, be given, independently of s 60(1)(b), such weight as they deserve in their own right as indicators of the 'adequacy' question. As the primary judge recognised at [57], this is consistent with what was said by the High Court in Singer v Berghouse in relation to the former Act." 156As Beazley P confirmed in Phillips v James, at [49] and [53], "there may not be a strict or bright line division between each stage of the process". 157Section 63 identifies the property that may be used for a family provision order. An order for provision may be made out of the estate of the deceased. An order may be made in relation to property that is not part of the estate of a deceased, or that has been distributed, if it is designated as notional estate of the deceased person by an order under Part 3.3 of the Act. 158Section 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. 159The 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). 160Section 66 of the Act sets out the consequential and ancillary orders that may be made. 161Section 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. 162Practice Note SC Eq 7, which applies to claims for a family provision order, currently 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.) 163For reasons mentioned earlier, it is unnecessary to discuss the notional estate provisions of the Act.

Other Applicable Legal Principles - Substantive Application 164Accepting 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. 165Bryson 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. 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. 166The court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90, at [63]. 167Of course, in this case, the pre-ordained scheme for distribution of the deceased's estate is not according to the wishes of the deceased as expressed in his Will, but according to the regime established by statute. It was said in Uniform Succession Laws: Intestacy [2007] NSWLRC 116: "1.23 The rules of distribution on intestacy are, at the most general level, the community's view of what should be done with the estate of a person who has died intestate. The parliaments of the various Australian jurisdictions, as representatives of their communities, have established and amended the rules from time to time. One of the purposes of this Report is to determine the extent to which any proposed scheme of distribution meets the collective requirements of the Australian community [Footnotes omitted]". 168In Re Estate of Bridges (1975) 12 SASR 1, Bray CJ noted: "In the case of an intestacy, as much as in the case of a will, it seems to me that Parliament has indicated its intention that the scheme of things set up by a testator in his will, or by the law of the State in the event of intestacy, shall be interfered with so far as is necessary to make adequate provision for the proper maintenance, education and advancement of the claimants specified in the Act, but no further. It is true that when the persons entitled on intestacy are the surviving spouse and legitimate children of the deceased as opposed to collateral relations the speculation that the deceased may have intended to die intestate may have more cogency, but nevertheless I repeat that I think the correct approach is as I have said. I think that Parliament no more intended to grant an unlimited liberty to recast dispositions resulting from the law of intestacy on moral grounds than it did to give a similar liberty to recast dispositions made by will." 169In Kossert v Margaret Gerda Ruggi As Executor of the Will of Peter Korps (No 2) [2012] WASC 191, at [38], Kenneth Martin J, after referring to the passage in Re Estate of Bridges, noted: "So, in going about the task of resolving this Inheritance Act application... I must respect the effect of the intestacy laws of the day in terms of the result they would deliver...". 170The court is given not only a discretion as to the nature and amount of the provision it directs but, even more importantly, a discretion as to making a provision at all. 171In 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. 172As 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 s 59(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." 173How those 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; 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]." 174Thus, "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]. 175In all cases under the Act, what is adequate and proper provision is necessarily fact-specific. 176The 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. 177Yet, the purpose of the jurisdiction conferred by the Act is not the correction of the hurt feelings of, or the sense of wrong felt by, the applicant. The court is obliged simply to respond to the application of the eligible person and to consider whether, as claimed, the provision made by the will, or on intestacy, is inadequate for that person's proper maintenance and advancement in life (see Golosky v Golosky [1993] NSWCA 111 and Heyward v Fisher (Court of Appeal (NSW), 26 April 1985, unrep)). 178Nor 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]. 179All 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]. 180The size of the estate is a significant consideration in determining an application for provision. In a small estate, as this one is, 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 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." 181Whilst 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 Act, itself, does not differentiate, in its terms, depending upon the size of the estate, and the court must still consider all the relevant circumstances before a decision is made: Re Coventry, Deceased [1979] 3 All ER 815, at 820. 182In relation to the claim of a stepchild, Cohen J discussed what he believed to be relevant considerations, in Graziani v Graziani (Supreme Court (NSW), Cohen J, 20 February 1987, unrep). 183In McKenzie v Topp, at [56], Nettle J wrote: "... The argument was that where a man who has children from an earlier marriage leaves to his second wife the entirety of his estate, and thereby deprives the children of his first marriage of the provision which they might otherwise have expected, it falls to the second wife as a matter of moral responsibility to make adequate testamentary provision for those children. More specifically, it was said, because it is often the case that a husband cannot know with certainty the extent of the support that his widow will require, and in those circumstances it may be that anything less than the entire estate would be inadequate provision for the widow's proper maintenance and support, the children of the first marriage must forego the provision which they might otherwise have received in order that their stepmother receive adequate provision. But if then later when the stepmother dies there is sufficient in her estate to make good some or all of the provision of which the stepchildren were earlier deprived, it is her responsibility to make it good." 184His Honour considered that the proposition described was a novel one, which "should be accepted, up to a point", and then went on, at [58] - [61], to write: "... just as community attitudes are the touchstone of adequate provision, so too are they the criterion of responsibility to provide. Other things being equal, right thinking members of society are likely to accept that the needs of the widow of a second marriage should rank in priority ahead of the claims of the children of a first marriage; although of course it is always a question of fact. But equally, upon the death of the widow, and as it were in the event of a surplus, most would surely say that the children of the first marriage should rank for their fair share. For once the widow is gone, and therefore no longer in need of provision, her needs no longer warrant that the children rank behind her or thus her chosen successors. Of course that is to speak in terms of broad generality and upon the assumption not only of an estate of sufficient value to provide for the children of the first marriage but also of a need for their provision. Furthermore, although the question for present purposes is confined to the first or jurisdictional aspect of the inquiry - of whether children of the first marriage may be regarded as persons for whom the widow of the second marriage has a responsibility to provide - the size of the estate and the circumstances of the children may be critical to the answer. But the need to look forward to the second stage of the inquiry in order to complete the first is endemic to most of the considerations listed in s 91(4). It is the consequence of defining the class of eligible plaintiffs in terms of persons for whom a testator or testatrix has a responsibility to provide. The first stage of the inquiry is now informed as much by the answer to be given to the second stage as the second stage will be informed by the answer that is given to the first. But there are still two stages. That said, the point of principle for present purposes is one of modest proportions. If children of a first marriage have stood aside in order that their father might make adequate provision for the widow of a second marriage, and upon her death there are assets in her estate, the amount left by their father to the widow may be relevant to the question of whether she is responsible to provide for them." 185Keane JA (with whom the other members of the Queensland Court of Appeal agreed) in Freeman v Jaques [2006] 1 Qd R 318, at [29], referring to the evaluative balancing of relevant considerations, said: "The more exiguous and distant the familial relationship between the deceased and a claimant, the greater must be the need of the claimant for maintenance or support if it is to give rise to the obligation, postulated of a wise and just stepmother, to make adequate provision for the proper maintenance or support of the claimant. Similarly, the greater the extent to which a step-parent's estate reflects her own contributions and efforts, the greater must be the need in the claimant for maintenance or support if a stepmother is to be regarded as subject to a moral claim to make adequate provision for proper maintenance and support." 186In relation to the claim by Jake and Kristy, being a claim by an adult child, the following principles are useful to remember: (a) 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 children up in a position where they 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. (b) 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]. (c) 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) [1981] 2 NSWLR 532, at 537; Mayfield v Lloyd-Williams, at [86]. (d) 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; and Hawkins v Prestage (1989) 1 WAR 37, at 45 (Nicholson J). (e) 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 [2009] WASC 164, at [17]. (f) 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. 187In 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". 188Generally, the duty of the deceased to his widow, to the extent to which his assets permit him to do so, is to ensure that she is secure in the matrimonial home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies: see, for example, Luciano v Rosenblum (1985) 2 NSWLR 65, at 69. The Court of Appeal, in O'Loughlin v O'Loughlin [2003] NSWCA 99, approved that "broad general rule". 189Of course, Deborah is not an applicant for provision, so principles that apply where the widow is one are not entirely apposite. Even so, she does not have to prove an entitlement to the provision made on intestacy or otherwise justify such provision. In determining 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: Edgar v Public Trustee for the Northern Territory [2011] NTSC 05, at [46]. 190In Magill v Magill [2006] HCA 51; (2006) 231 ALR 277, at [132], Gleeson CJ, at [24], said: "The structure of marriage and the family is intended to sustain responsibility and obligation." 191This accords, too, with what Hodgson JA said in Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47, at [63]: "In my opinion, a formal and binding commitment to mutual support through good times and bad, other factors being equal, adds strength to a legitimate claim." 192Concern as to the capacity of Deborah to maintain herself, independently and autonomously, also bear upon the notion of what provision ought to be made for her. Her age and earning capacity are also relevant. 193I make clear that I do not intend what I have described as "principles" to be elevated into rules of law. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion at the second stage to be constrained, by statements of principle found in dicta in other decisions. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind. 194In addition, in each case, a close consideration of the facts is necessary in order to determine whether the bases for a family provision order have been established. Every case is different and must be decided on its own facts. As Lindsay J said in Verzar v Verzar, at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."

Further Additional Facts 195I 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, 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 196The following comment has been made by Campbell JA in regard to the court's consideration of the totality of the relationship between the applicant and the deceased in Hampson v Hampson [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." 197There is no definition of "family" in the Act. Its popular meaning is not fixed and, undoubtedly, over time, has changed. It is not a technical term or term of art with a specific meaning. It is a word in ordinary usage, with a flexible meaning. Generally, it is a word that may be used in a number of different senses, some wider, some narrower. 198In this sub-section, I consider that the word is used in the narrower sense, because of the use of the word "other" before the word "relationship". The language of the sub-section plainly indicates a distinction. It follows that in this sub-section, "family ... relationship" depicts a legal relationship (of blood, by legal ceremony of marriage, by legal adoption) or a de facto relationship. It may also include persons where the link is "step-", or where the link is "in-law" or by marriage. 199In relation to the terms of the sub-section, there is something to be said for the view expressed by Russell LJ, in Ross v Collins [1964] 1 All ER 861; [1964] 1 WLR 425, at 432, with whose speech Lord Diplock in Carega Properties SA (formerly Joram Developments Ltd) v Sharratt [1979] 2 All ER 1084; [1979] 1 WLR 928, at 931, agreed: "Granted that 'family' is not limited to cases of a strict legal familial nexus ... It still requires, it seems to me, at least a broadly recognisable de facto familial nexus. This may be capable of being found and recognised as such by the ordinary man-where the link would be strictly familial had there been a marriage or where the link is through adoption of a minor, de jure or de facto, or where the link is 'step-', or where the link is 'in-law' or by marriage. But two strangers cannot, it seems to me, ever establish artificially for the purposes of this section a familial nexus by acting as brothers or as sisters, even if they call each other such and consider their relationship to be tantamount to that. Nor, in my view, can an adult man and woman who establish a platonic relationship establish a familial nexus by acting as a devoted brother and sister or father and daughter would act, even if they address each other as such, and even if they refer to each other as such and regard their association as tantamount to such. Nor, in my view, would they indeed be recognised as familial links by the ordinary man." 200Also, in my view, the word "family" does not have the same meaning as the term "member of the household". 201As stated, Alana is the stepdaughter of the deceased. At the age of two, Michelle and the deceased married and, thereafter until 1998 (between the ages of 2 and 12 years of age, Alana lived with the deceased and her mother in the family home. Alana did not retain any relationship of significance with her biological father. She changed her name to Curnow and, for all intents and purposes, the deceased was her father. 202For a period of two years from 1999 until about 2002, following the separation and divorce of the deceased and Michelle, Alana had no contact with the deceased. Apart from this period, Alana maintained a fairly close relationship with the deceased up until his death. She kept in contact with him face to face, when possible, and contacted him by telephone and social media every few weeks. I am satisfied that she had a reasonably close relationship with the deceased. 203Jake is the son of the deceased. He lived in the home of the deceased and Michelle from his birth in 1990 until 1998 when his parents separated. He then went with Michelle to live in Queensland and he had no contact with the deceased until 2002. Thereafter, he maintained a fairly close relationship with the deceased up until his death seeing him regularly during holidays and otherwise keeping in contact by telephone and by way of social media. 204Kristy is the daughter of the deceased. She lived with the deceased and Michelle from her date of birth in 1992 until 1998 when her parents separated. She had no contact with the deceased from 1999 until 2002 but thereafter maintained a reasonably close relationship with him up until his death seeing him regularly during holidays and otherwise keeping in contact by telephone and by way of social media. 205Although there was some dispute about the regularity of contact, I am satisfied that each had a reasonably close relationship with the deceased and that the distance between them was geographical rather than emotional. (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 206There 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. 207This factor requires a balancing of potentially competing obligations as between an applicant and a beneficiary. 208Merely being the stepdaughter of the deceased does not, necessarily, give rise to any obligation or responsibility, to make adequate provision for the applicant's proper maintenance or advancement in life. Leaving aside that relationship, the deceased did not have any legal obligation to Alana. It is to be remembered that the "step" relationship is one of affinity, not blood. 209Leaving 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 Jake or Kristy, as an adult, imposed upon him by statute or common law. 210Yet, 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 737, 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." 211The fact that an 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. This factor may require a balancing of potentially competing obligations as between different applicants, or as here, as between each of the applicants and Deborah, as the beneficiary entitled on intestacy. 212The deceased did not have any legal obligation to Deborah, as his wife, imposed upon him by statute, common law or otherwise. However, it is clear that, upon his death, he did have such an obligation, the nature of which I have discussed earlier. (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 213I have dealt with these matters earlier in these reasons. The net value of the deceased's estate and notional estate is 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 214A consideration of this matter calls for a comparison of the financial resources of each applicant, and of Deborah as a competing claimant. 215Alana resides with her de facto partner, Thomas, her two children from a previous relationship (Liana, aged 11 and Hayley, aged 6) and her and Thomas' child, Theon, aged 1. 216Alana is currently employed as a shift manager at a hotel. She earns $1,996 per fortnight. Alana gave evidence that, in future, she hopes to pursue a career as a police officer. Thomas is employed as a security guard. His gross fortnightly income, as at February 2014, was disclosed to be $1,100. In her oral evidence, Alana confirmed that Thomas' income is within this range but said that it "fluctuates". In any event, it is clear that each has a continuing earning capacity. 217Their joint fortnightly expenditure was disclosed, in an affidavit sworn 18 March 2013, to total $3,001 comprising: Rent $900 Groceries and household items $600 Education, school uniforms, school excursions and camps $ 82 Telephone charges $140 Electricity charges $140 Loan repayments $657 Car Insurance and Registration $ 77 Vehicle fuel and repairs $160 Clothing $ 50 Entertainment and gifts $175 Medical and dental expenses $ 20

218Thus, their joint income exceeds their expenditure by $95 per fortnight. 219Alana and Thomas have both accumulated superannuation. Alana has $8,000 and Thomas has $14,000. Additionally, they jointly own the following assets: Nissan Patrol $25,000 Furniture and personal effects $25,000 Jewellery $ 5,000

220Alana's liabilities were said to include: Personal loan $25,000 Credit card loan $ 3,000 Certagy Ezi-Pay retail payment plan $ 400

221Thomas also has an individual liability, in the form of a personal loan, of $17,290. 222Alana also gave evidence that she has sold four items of property, over the last 5 years, valued at over $1,000. The property sold (including a horse, a horse float, and two motor vehicles) had a combined value of $64,990. 223It is unnecessary to consider the financial resources of any of the children with whom Alana lives. 224Jake resides with his de facto partner, Cassie. 225Jake works as a paramedic, earning $2,300 gross per fortnight ($1,400 net). Cassie has a fortnightly income of $1,000. I am satisfied that Jake and Cassie each have a continuing earning capacity. 226Their fortnightly expenditure was said to be $1,640, leaving a surplus of income over expenditure of about $760 per fortnight. The expenditure disclosed was as follows: Rent $605 Groceries and household items $200 Medications $ 60 Education $100 Electricity $ 60 Car Registration $ 40 Vehicle fuel and repairs $230 Clothing $100 Entertainment $200 Internet expenses $ 45

227The assets owned by Jake, outlined in an affidavit affirmed 21 March 2014, totalled $21,559 and comprised: 1999 Holden Commodore Wagon $3,000 Money in bank $8,000 Superannuation $8,559 Furniture and personal items $2,000

228His only liability was said to be approximately $16,000 in the form of a HECS (Higher Education Contribution Scheme) loan. 229Cassie's assets total $7,300, including a car ($7,000) and money in bank ($300). She also has a HECS debt of $16,000. 230Kristy is employed casually at a hotel. She gave evidence that she works about 25 hours per week and that her average gross fortnightly income is $1,200. 231She also receives Centrelink benefits, including Youth Allowance and Rent Assistance. These benefits, together, total about $416 per fortnight. Kristy was at one stage, but is no longer, eligible for a Centrelink Study Allowance. She does, however, hope to return to university study in the future. 232Notwithstanding her eligibility for various benefits, I accept that Kristy has a continuing earning capacity. 233Kristy's fortnightly expenditure comprises: Rent $233 Groceries and household items $150 Medications $ 10 Education $ 60 Water rates $ 20 Telephone charges $ 40 Electricity charges $ 50 Loan repayments $338 Car Insurance and Registration $ 77 Vehicle fuel and repairs $190 Clothing $100 Entertainment and gifts $130 Medical and dental expenses $ 20

234With expenses totalling $1,418 per fortnight, Kristy is left with a surplus of income over expenditure of $198 per fortnight. 235Kristy outlined her assets as follows: Money in bank $ 400 2007 Toyota RAV4 $15,000 Furniture and personal effects $ 2,500 Jewellery $ 200

236Her liabilities were said to include a personal loan ($19,500), a Centrelink debt ($5,000) and a HECS debt ($40,000). 237While Kristy shares rented accommodation with two friends and splits rental and utility expenses with them, the financial situation of each of her friends is not, otherwise, relevant to her financial circumstances. 238Deborah owns the following assets: Merrylands Property $900,000 Yacht $ 90,000 Furniture and household effects $ 25,000 Money in bank $ 1,335 Money in Trust Account (sale proceeds from Wentworthville Property) $ 12,837 Superannuation $ 48,755

239(Of course, the bulk of these assets have passed to her by survivorship.) 240As indicated earlier, Deborah is also a beneficiary of the estate of her late mother, Vera. As outlined above, after the orders made by Slattery J are taken into account, Deborah's entitlement is $479,328, less capital gains tax. 241I have earlier referred to Deborah having received, in December 2011, a lump sum death benefit payment of $110,227 from the Transport Accident Commission of Victoria. Deborah's evidence is that she has "used most of that money to live on and to pay ... medical expenses since the collision". 242Deborah may be entitled to compensation in her own right for the injuries she sustained as a result of the accident. I have dealt with some of the evidence about these matters earlier. 243I should note that Deborah gave no evidence of the value of her claim. According to Mr Ellison's further submissions, "it is not known when Deborah's permanent impairment will be able to be assessed" and, therefore, the possibility that she will receive further compensation is indeterminable at this stage. 244It was also contended that the Plaintiffs could have had Deborah cross-examined and then put on evidence of the value of her claim, a contention that I do not accept. 245In all the circumstances, I do not propose to give the possibility of compensation much weight in the assessment of Deborah's financial resources. 246Deborah was also the nominated beneficiary of the deceased's superannuation fund at the date of his death. In September 2012, she received $191,375 as the nominated beneficiary. Deborah says that the superannuation money has been wholly expended. She gave evidence that "[b]etween August and October 2012 [she] made 10 deposits totalling $140,000 into" the account of a man she knew as "Brian". She also says that she provided some money to her daughter, Kailah, who lives overseas. That amount was said to be "in excess of $15,000". 247During cross-examination, Deborah was taken to copies of her bank records, which were tendered as Ex. P3 and Ex. P4, respectively, in the proceedings. The records detail several significant withdrawals during 2012, including withdrawals of $10,000 on 19 September, of $9,000 on 20 September, of in excess of $109,000 on 10 October, of $30,032 on 17 October, of $11,000 on 18 October, of $12,032 on 22 October, and of $44,108 on 25 October. Some of the transfers appear to be between Deborah's different accounts. 248It was put, by senior counsel for the Plaintiff's that Deborah had, in fact, transferred $160,000 internationally to "Brian" in addition to those amounts transferred directly to Kailah, or to others for Kailah's benefit, whilst she was aware of the proceedings commenced by Alana, Jake and Kristy. 249Deborah gave evidence that she could not recall the details of the transactions but accepted that $160,000 could have been transferred. She said, in respect of that proposition: "I could have. I actually cannot tell you that for sure". This does not provide a strong basis for concluding, as was submitted, that I should simply treat the amount as having been spent and therefore, completely irrelevant to my consideration of the claims by each of the Plaintiffs. 250(I should say that I am not critical of Deborah's evidence in this regard because her medical condition may explain her inability to remember what had occurred. More significant, is the fact that there is no evidence given to demonstrate what steps were taken by her, or others on her behalf, to explain the transactions to which I have referred.) 251Deborah says that she has "used the balance of [the deceased's] superannuation payment to live on" and says that her "expenses have been quite high because of [her] injuries and rehabilitation". (However, in this regard, I note her entitlement to have her medical expenses paid.) 252Deborah also received an insurance payment of $7,762 in respect of a further motor vehicle accident in 2013 involving a Holden Barina that she owned. There is no evidence about whether that money has been expended. 253Deborah is currently not employed. In submissions, it was put, by senior counsel for Deborah, that her "poor physical and mental health" render Deborah "unemployable". I accept, notwithstanding the evidence that, before the accident, Deborah was, at one time, a Chief Executive Officer and, at a later time, involved in the management of an importing and exporting wholesale business, with a substantial earning capacity, that Deborah now has virtually no capacity to earn an income. (I deal with her medical issues later.) 254Deborah's current income is, therefore, limited to the periodical payment of $1,908 per fortnight made by the Transport Accident Commission pursuant to the Transport Accident Act, to her, as the deceased's surviving partner. As stated, the submissions indicate that that the periodical payments will cease on 13 October 2016. (e) if the applicant is cohabiting with another person - the financial circumstances of the other person 255This sub-section permits account to be taken of the financial circumstances relating to cohabitation. 256I have dealt, earlier, with the financial and material circumstances of the person with whom Alana and Jake each cohabit. 257As outlined above, the persons with whom Kristy cohabits are merely flatmates and there is no relationship that makes his and her financial circumstances relevant. (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 258Each of Alana, Jake and Kristy enjoys good health. There is no physical, intellectual or mental disability that is in existence when the application is being considered or that may reasonably be anticipated. 259It is necessary to deal with Deborah's condition in some detail. 260Deborah sustained significant injuries as a result of the accident in which the deceased was killed. Her evidence on this topic was as follows: "36. I was severely injured in the collision. I have no independent memory of the collision or the events immediately before impact. 37. I suffered a closed head injury, including occipital subdural haematoma, and multiple fractures including a fractured pelvis and left femur. 38. I spent a long time in hospital. I have required extensive rehabilitation to regain any mobility. For a long time subsequent to the accident I relied on a wheelchair or double crutches to mobilise because the function in my left leg was very limited. The subdural haematoma has left me with some long- and short-term memory loss. I also have difficulty concentrating on complex tasks. I require the assistance of a carer to undertake basic day-to-day chores such as cooking and cleaning. I now use only one crutch to mobilise as I am unable to walk without the support." 261In a report dated 7 November 2012, Dr A J Walker provided the following details of Deborah's injury sustained as a result of the accident: "Ambulance officers arrived 1 - 2 hours post-impact, the report states initial Glasgow Coma Scale score was 9-10/15, indicating reduced level of consciousness. ...repeat scan (14/10/11) showed small right subdural haematoma, small amount of subarachnoid blood and right posteromedial temporal lobe haematoma. Other injuries were femur and patella fractures, requiring surgery; and left popliteal dissection. Post traumatic amnesia (PTA) on the Westmead PTA scale was estimated to be 27 days, consistent with a very severe traumatic brain injury..." 262The report continued: "Neuropsychological assessment [conducted in November 2012]... results indicate that [Deborah] is recovering well in some areas, but shows significant difficulties as follows: - New learning and memory is reduced, whereby [Deborah's] ability to take in and retain new information is well below expected levels... - Higher level cognitive skills such as problem solving, planning, organisation, self monitoring and judgement are reduced... - Concentration to verbal and visual information is mildly reduced... - Information processing speed is mildly reduced... - Some verbal skills are mildly reduced..." 263In an addendum to the report, dated 15 January 2013, Dr Walker provided the following evidence: "Neuropsychological test performances demonstrate that [Deborah] has significant cognitive impairments, particularly in planning and organisation, judgement, problem solving, self-monitoring and new learning and memory, such that she has a cognitive disability as a result of the brain injury incurred... While modest improvements may continue, she will have long term cognitive disability." 264Associate Professor R Stark, a neurologist, prepared a report on Deborah's condition in August 2013. That report detailed some of Deborah's "ongoing symptoms" including headaches, reduced cognitive skills, unsteadiness on her feet, an "impaired sensation on the dorsum of the left forearm", "impaired power in the left arm", "neck pain in the high cervical region", "lower back pain", "orthopaedic problems with the left leg", numbness and poor sleep patterns. 265 The report also contained the following assessment: "On tests of power [Deborah] was a little tentative with all muscle groups in the left arm but I was not convinced of any neurogenic weakness there. In the left leg power was limited because of the orthopaedic injuries to her femur and knee. Reflexes were all symmetrical and within normal limits and plantar reflexes were normal. There was an area of reduced sensation over the dorsum of the left forearm, probably in the distribution of the posterior cutaneous nerve of the forearm, a branch of the radial nerve. There was also an area of reduced sensation on the dorsum of the left foot, extending on to the dorsolateral aspect of the shin, consistent with involvement of branches of superficial peroneal nerve. The skin grafts and other surgical scars around the left thigh and knee were noted. She walked with crutches avoiding taking much weight on the left foot and had a wheelchair with her." 266In addition to the physical injuries sustained, Associate Professor Stark noted that Deborah "says that her personality has changed a bit; she can have a 'short fuse' and is not as quick to think as she was before." 267In August 2013, Mr E J Anstee also compiled a report in the context of providing Deborah with plastic and reconstructive surgery. Mr Anstee described Deborah's injuries as follows: "- A fracture of the left femur which was openly reduced and internally fixed. Multiple operations were eventually performed with a bone graft [from the hip to the left femur] eventually applied. - A fracture of the left patella openly reduced and internally fixed. - An injury to the right arm with nerve damage managed conservatively. - A closed head injury managed by pressure release. [Deborah] said she had a total of 16 operations. She has gone on to make a reasonable though far from complete recovery from her multiple injuries." 268Mr Anstee said that Deborah's "current complaints" included leg and back pain, "extensive scarring", neck pain, headaches, restricted mobility, poor memory, reduced concentration, spinal damage, occasional dizziness and "difficulty finding appropriate words". He added that Deborah "regarded herself as a high performer in her previous job and does not see herself in that light now". He said that her personal relationships had suffered a "[m]assive adverse affect from scarring". 269Finally, in December 2013, orthopaedic surgeon Mr P L Moran prepared another report regarding Deborah's condition. His conclusion was that the "collision and its injuries have led to a devastating loss of physical competency ... [and that] the prognosis for further significant recovery is poor." 270(I note, in passing, that Slattery J, at [190], accepted that Deborah was very badly injured in the motorcycle accident in October 2011; that she would not return to the workforce; that she had significant cognitive and memory problems as a result of the accident, and had required rehabilitation.) (g) the age of the applicant when the application is being considered 271Alana was born in February 1986 and is 28 years of age. Jake was born in October 1990 and is 23 years of age. Kristy was born in August 1992 and is 21 years of age. (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 272There is no evidence that any of Alana, Jake or Kristy made any direct contributions to the acquisition, conservation and improvement of the estate of the deceased. There may have been some contribution towards the deceased's welfare. 273By contrast, there is some evidence that Deborah contributed financially to the building up of the deceased's estate. This evidence is detailed later in these reasons. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person 274There is evidence of two witnesses, neither of whom was cross-examined, namely Martin Betcher and Gloria Holland, each of whom wrote that he, and she, was told by the deceased that he had made provision for his previous wife and children and that they were not entitled to anything else, or that he had paid a high maintenance to his former wife to provide for, and support, his children and he believed that they had already received their share of any inheritance from him. (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 275Alana, Jake and Kristy were not being maintained, either wholly or partly, by the deceased at the time of his death. However, it is clear that, at other times, the deceased did maintain each. (l) whether any other person is liable to support the applicant 276There is no person with a liability to support Alana, Jake or Kristy. (m) the character and conduct of the applicant before and after the date of the death of the deceased person 277An 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. 278In the circumstances of this case, there is no aspect of "character and conduct" in relation to any of the applicants that I consider relevant. (n) the conduct of any other person before and after the date of the death of the deceased person 279There is no suggestion that the relationship of the deceased and Deborah was not a close one, or that she was not a loving spouse of the deceased. I am satisfied that their relationship, (a marriage of nine years, and about 13 years in total), was a close, strong and loving one. The fact that there was no caring for children is unimportant, in this case, in view of the age of each of the deceased and Deborah when they met and the duration of the relationship. 280There was also some evidence raised regarding the contribution Deborah made to the estate of the deceased during his lifetime. Deborah says that she earned more than the deceased and that the deceased was "dependent upon [her] for most of the costs of living and the payment of [the] mortgage [on the Merrylands property]". In her oral evidence, Deborah maintained "the bulk of the money that my husband and I started with was from me. I had properties. My husband had nothing ... [e]xcept for his work". 281Deborah also gave evidence that she had borrowed money secured over her Wentworthville property, to enable the purchase of the yacht in both names and that she had provided other moneys that were required. 282(I do not consider that she made a substantial direct contribution to the building up of the deceased's superannuation, since Deborah's relationship with the deceased did not commence until about 1998, and they were married in 2003, at each of which times, the deceased had been a teacher for many years. However, after the marriage, I accept that she may have made an indirect contribution to the superannuation if the deceased made any direct financial contribution to it from his wages.) (o) any relevant Aboriginal or Torres Strait Islander customary law 283This is not relevant. (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 284This sub-section permits, but does not require, a wide-ranging inquiry into events and incidents, great and small, at the time of the deceased's death or since. 285In this case, there is no other matter that I consider relevant.

The Submissions 286Mr Wilson SC submitted that each of the Plaintiffs "enjoyed a good relationship with the deceased"; that "each has demonstrated a financial need"; that her and his assets, respectively, were of modest value, and that "each has made out a case for a $50,000 legacy which could be used to help them with their immediate debts and provide a small buffer for the future". 287Mr Ellison SC submitted that, since Deborah has expended a significant amount on what he described as "legitimate expenses" and all that is left is her interest in the real property, no provision should be made for any of the Plaintiffs. (I do not know whether the transfer of significant amounts overseas falls into the category of legitimate expenses.) He submitted her reason why she had nothing left of the moneys she received was relevant, but more important was the competing financial position of each of the Plaintiffs. He submitted that each claim should be dismissed.

Determination 288Being 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. In this case, there is no dispute that each of the Plaintiffs is an eligible person within the meaning of that term in the Act. 289There is also no dispute that each applicant commenced her, or his, proceedings within the time prescribed by the Act, and, in relation to Alana, that she has established factors warranting the making of her application. 290Having established eligibility, where necessary, factors warranting the making of her application, and that the proceedings were commenced within time, relevantly, the first question for determination is whether, at the time the court is considering the application, adequate provision for the proper maintenance or advancement in life, of each applicant, has not been made on intestacy. Whether such provision has been made for each requires an assessment of her, or his, individual financial position, the size and nature of the deceased's estate, the relationship between each applicant and the deceased, other persons who have legitimate claims upon the bounty of the deceased, and the circumstances and needs of those other persons: see Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 75, at [70]; McCosker v McCosker, at 571-572; Singer v Berghouse, at 210; and Vigolo v Bostin, at [16], [75], [112]. 291There is no doubt that each of Alana, Jake and Kristy is not entitled to any provision on intestacy. That is, however, not determinative of the application. Of course, the fact that each is not entitled to 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. 292It is clear, in my view, that each of Alana, Jake and Kristy has some immediate "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 her, or 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 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. 293The fact that each is currently able to survive on the income she or he receives is of significance when one considers the competing claims of Deborah. 294Having considered the matters I am required to consider, I am satisfied that adequate provision for the proper maintenance, education or advancement in life of each of Alana, Jake and Kristy has not been made by the operation of the intestacy rules in relation to the estate of the deceased. 295In coming to this conclusion, I also have taken into account Deborah's legitimate claims upon the bounty of the deceased and the obligation and responsibility that the deceased had to provide for her. However, whilst older, and not in good health, she is in a stronger financial position than each of them and it will only be improved when she receives her share of her mother's estate. 296The more difficult question then arises, namely what provision "ought to be made for the maintenance, education or advancement in life" of each of Alana, Jake and Kristy, 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. 297I respectfully agree with the submission made on behalf of the applicants, that each should receive "a small capital sum which will enable them to pay off immediate debts". The size of the notional estate will not enable a significant buffer for the future to be provided. 298Nor do I consider that each should receive the same lump sum. Alana has children to support but also has the financial assistance of a de facto partner. Whilst their income is only slightly in excess of their expenditure, I note that $175 per fortnight is estimated for "entertainment and gifts". Alana's liabilities total $28,400. 299In my view, Alana should receive a lump sum of $33,500, which will enable her to pay all of the liabilities and provide a modest lump sum for exigencies of life. 300Jake is probably in the best financial position of the three Plaintiffs. He and his de facto partner, Cassie, have an income that exceeds their expenditure by a substantial fortnightly amount. I note, also, that their expenditure includes $200 per fortnight on "entertainment". Jake's only liability is an HECS debt of $16,000. 301In my view, Jake should receive a lump sum of $20,000, which will enable him to pay off his debt and provide a modest capital sum for exigencies of life. 302Kristy is probably the worst off of the three Plaintiffs, because she does not have the financial assistance of a de facto partner and currently receives the least amount comparatively, by way of income. Her debts are the most significant, totalling $65,500. 303In my view, Kristy should receive a lump sum of $50,000, which will enable her to repay her HECS debt and Centrelink debt. Alternatively, she may pay part of each of her debts, and retain a portion of the lump sum for exigencies of life. 304In summary, then, the total amount that Deborah will have to meet, out of property that may be designated as notional estate, other than in respect of costs, for the Plaintiffs will be $103,500. 305No interest should be paid on any of the lump sums if each is paid within 2 months of the date of the delivery of reasons for judgment; otherwise, interest at the rate prescribed by s 84A(3) of the Probate and Administration Act, calculated from 56 days from the date of these reasons being delivered until the date of payment, should be paid. 306Subject to any submissions on costs, the Plaintiffs should receive their costs, calculated on the ordinary basis. It is probably unnecessary to make an order for Deborah's costs, although, if the parties wish such an order to be made, I am prepared to make it. 307In order to give the parties an opportunity to consider these reasons, and to enable Deborah to decide the manner in which she will satisfy the orders for provision and costs, I direct the parties, within 14 days, to provide to my Associate, proposed Short Minutes of Order, reflecting these reasons. If I receive agreed Short Minutes of Order, I shall make the orders in Chambers. I shall stand the matter over to a convenient date to the parties and to the Court in case agreement cannot be reached. In that event, competing versions of orders should be provided to my Associate within that period. 308The Short Minutes of Order reflecting these reasons and any agreement reached between the parties as to the designation of property as notional estate should deal with costs also if possible. In this way, the precise amount will be able to be designated as notional estate, or otherwise, to be calculated precisely.

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: 07 July 2014

Family Provision Act 1982(NSW)

Legal Profession Act 2004(NSW)

Succession Amendment (Family Provision) Act 2008(NSW)

Foley v Ellis [2008] NSWCA 288 Freeman v Jaques [2006] 1 Qd R 318 Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep) Gardiner v Gardiner [2014] NSWSC 435 Golosky v Golosky [1993] NSWCA 111 Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Graziani v Graziani (Supreme Court (NSW), Cohen J, 20 February 1987, unrep) Grey v Harrison [1997] 2 VR 359 Hampson v Hampson [2010] NSWCA 359 Hawkins v Prestage (1989) 1 WAR 37 Heyward v Fisher (Court of Appeal (NSW), 26 April 1985, unrep) Hitchcock v Pratt [2010] NSWSC 1508 Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 Hyland v Burbidge [2000] NSWSC 12 Kay v Archbold [2008] NSWSC 254 Kossert v Margaret Gerda Ruggi As Executor of the Will of Peter Korps (No 2) [2012] WASC 191 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Luciano v Rosenblum (1985) 2 NSWLR 65 MacGregor v MacGregor [2003] WASC 169 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 McKenzie v Baddeley [1991] NSWCA 197 McKenzie v Topp [2004] VSC 290 McLeod v Johns (1981) 1 NSWLR 347 Magill v Magill [2006] HCA 51; (2006) 231 ALR 277 Manuel v Lane [2013] NSWCA 61 Marks v Marks [2003] WASCA 297 Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47 Mayfield v Lloyd-Williams [2004] NSWSC 419 Morris v Smoel [2014] VSC 32 Neale v Neale [2013] NSWSC 983 Ng v Neville Mark Morgan; Selena Natanie Ng v Morgan; Commonwealth Bank of Australia v Neville Mark Morgan in his capacity as Administrator of the estate of the late Dell Smith [2014] NSWSC 536 Justyn Marcus Ng v Neville Mark Morgan & Anor; Selena Natanie Ng v Morgan; Commonwealth Bank of Australia v Neville Mark Morgan in his capacity as Administrator of the estate of the late Dell Smith (No 2) [2014] NSWSC 677 O'Loughlin v O'Loughlin [2003] NSWCA 99 Official Receiver in Bankruptcy v Schultz [1990] HCA 45; (1990) 170 CLR 306 Palaganio v Mankarios [2011] NSWSC 61 Phillips v James [2014] NSWCA 4 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Re Buckland, Deceased [1966] VR 404 Re Bull [2006] VSC 113 Re Coventry, Deceased [1979] 3 All ER 815 Re Estate of Bridges (1975) 12 SASR 1 Re Estate Harriett Cassel [2000] NSWSC 294 Re Fulop, Deceased (1987) 8 NSWLR 679 Ross v Collins [1964] 1 All ER 861; [1964] 1 WLR 425 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (Supreme Court (NSW), Macready M, 16 December 1996, unrep) Szypica v O'Beirne [2013] NSWSC 297 Taylor v Farrugia [2009] NSWSC 801 Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 Turner v Perpetual Trustees Australia Ltd [2001] ACTSC 56 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Union-Fidelity Trustee Co of Australia Ltd v Montgomery (1976) 1 NSWLR 134 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) West v Mann [2013] NSWSC 1852 White and Tulloch v White (1995) 19 Fam LR 696 Wilcox v Wilcox [2012] NSWSC 1138 Williams v Aucutt [2000] 2 NZLR 479 Texts Cited: J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths) Uniform Succession Laws: Intestacy [2007] NSWLRC 116 Category: Principal judgment Parties: Alana Marie Curnow (first Plaintiff) Jake Howard Curnow (second Plaintiff) Kristy Anne Jean Curnow (third Plaintiff) Deborah Shireen Curnow (Defendant) Representation: Counsel: Mr R Wilson SC Mr L Ellison SC Solicitors: Turnbull Hill Lawyers (Plaintiffs) Barwick Boitano Lawyers (Defendant) File Number(s): 2012/312464

Other Agreed Facts 36I have mentioned that the deceased died in a motorcycle accident in October 2011. The deceased and Deborah had travelled to Philip Island, in Victoria, for a holiday. Whilst riding his motorcycle, on which Deborah was the pillion passenger seated behind him, apparently, a collision occurred when a large four-wheel drive vehicle struck the motorcycle. (I say "apparently" because Deborah has no independent memory of the collision.) The deceased died as a result of injuries sustained in the collision and Deborah was severely injured. (I shall refer to the injuries sustained, and the disabilities from which she suffers, later in these reasons.) 37On 15 December 2011, Deborah received $110,227 by way of lump sum payment from the Transport Accident Commission of Victoria. This amount was paid pursuant to the Transport Accident Act 1986 (Vic), which establishes a compensation scheme for those who are injured, or dependants of those who die, as a result of a transport accident. 38Deborah and Mr Boitano provided some evidence that the lump sum was not compensation for the injuries that Deborah had sustained but, rather, was the death benefit payable, under s 57 of the Transport Accident Act, to the surviving partner of a person who dies as a result of a transport accident. As the surviving spouse, Deborah also is entitled to receive periodical payments of $1,908 per fortnight. These payments will cease in October 2016. 39Deborah has not, as yet, made her own application for compensation under the Transport Accident Act for permanent impairment to her, that she may receive once her condition stabilises. The evidence of Mr Boitano is that it is not known, yet, whether she will be able to make a claim because the extent of her injuries and disabilities are not completely known and because her condition has not yet stabilised. There was other evidence that the current statutory caps are pain and suffering ($497,340) and pecuniary (economic) loss ($1,119,060). 40In addition, Deborah gave evidence that, on 10 February 2014, she received from the Transport Accident Commission of Victoria, "an interim payment of $14,750, as a result of the accident", which amount "will be ultimately deducted from any lump sum I receive". 41Deborah says that she has used most of the money she has received to date from the Transport Accident Commission of Victoria to live on and to pay her medical expenses since the collision. She also stated "most of my medical expenses are paid for by TAC". In fact, her entitlement to medical expense coverage will continue whether or not she has a successful claim for compensation. 42At the date of the deceased's death, Deborah owned a property situated at Wentworthville in Sydney. In late May 2013, contracts for the sale of that property were entered into. The sale price was $360,000. After the payment of the debt secured by registered mortgage on that property ($239,188), the net proceeds of sale ($107,263) were paid into the trust account of Deborah's solicitors. Mr Boitano gave oral evidence that, of this sum, $12,800 remains held in his firm's trust account. 43Deborah's mother, Vera Edna Dell Morgan ("Vera"), died on 16 February 2011. She left a Will dated 4 September 1968. This court granted Letters of Administration with the Will annexed to Neville Mark Morgan (referred to as Mark in the present proceedings) and Deborah on 15 September 2011. (The Public Trustee of Queensland, referred to in the Will as the Public Curator of Queensland, the executor, renounced probate.) 44Deborah is an equal joint residuary beneficiary, with Mark, who is her brother, of the whole of Vera's estate. However, two of Deborah's children, Justyn and Selena, commenced separate proceedings for a family provision order out of the estate or notional estate of their grandmother, Vera. Slattery J heard each of those proceedings, together, in late August and early September 2013, and his judgment, in each case, was reserved. 45The reasons for judgment of Slattery J in that matter has now been published, and bears the medium neutral citation Justyn Marcus Ng v Neville Mark Morgan; Selena Natanie Ng v Morgan; Commonwealth Bank of Australia v Neville Mark Morgan in his capacity as Administrator of the estate of the late Dell Smith [2014] NSWSC 536. 46His Honour found: "Over time and with hard work [Vera] had astutely built up real estate investments in Sydney, using her professional skills as a nurse. She left an estate with a net value of over $2.5 million." 47Leaving aside the orders to be made in relation to costs, his Honour concluded, at [203]: "In my view the appropriate provision out of the deceased's estate is for them each to be given a half interest in 89 Bowden Street, free of any mortgage liability. That will be the order for provision of the Court. In Selena's case that will come with the condition of repayment of the estate discussed earlier in these reasons." 48Earlier, at [129], his Honour had noted that, when the court granted Letters of Administration on 15 September 2011, the estimated value of 89 Bowden Street was $850,000. 49Slattery J dealt with the issue of costs, in that matter, in a subsequent judgment, the medium neutral citation of which is Ng v Morgan; Ng v Morgan; Commonwealth Bank of Australia v Neville Mark Morgan in his capacity as Administrator of the estate of the late Dell Smith (No 2) [2014] NSWSC 677. His Honour concluded: "Selena must pay 15 per cent of the estate's costs of all the family provision proceedings but not the possession proceedings. The estate should deliver 89 Bowden Street to Selena and Justyn free of all encumbrances not just the Commonwealth Bank's mortgage. The estate should pay 80 per cent of Justyn and Selena's costs of all possession issues in the proceedings. The estate should reimburse Justyn but without interest, for all share sale proceeds that he contributed to the estate, so that it could meet the Bank's mortgage liability. And the estate's costs in relation to the forgery issue are fixed under Succession Act, ss 66 and 99 in the sum of $38,000." 50Relevantly, his Honour then made the following orders: "2. The Plaintiffs receive provision out of the estate of the deceased by way of a devise of the realty at 89 Bowden Street, Ryde ('the realty') being the whole of the land contained in Folio Identifier 18/111/4346 such property to be received by the Plaintiffs as tenants in common in equal shares free of any mortgage or other encumbrance (including land tax). 3. The Plaintiffs have the right to reside in the realty from the death of the deceased. 4. The benefit passing to Selena Ng under order 2 herein is charged with the payment to the Executors of - (a) $38,000. (b) Interest on $38,000 from 9 November 2011 until the date of payment pursuant to the rates fixed under Civil Procedure Act, s.100. 5. The costs of Justyn Ng on the ordinary basis are to be paid out of the estate of the deceased. 6. 85% of the costs of Selena Ng on the ordinary basis are to be paid out of the estate of the deceased. 7. Selena Ng to pay 15% of the costs of the Defendants of both family provision proceedings herein on the indemnity basis. 8. The Defendants' costs on the indemnity basis are to be paid out of the estate of the deceased. 9. In respect of proceedings 2013/135797 (the possession proceedings): (a) The Defendants (in the proceedings herein) pay 80% of the costs of the Plaintiffs (in the proceedings herein) on the ordinary basis, and (b) The Defendants (in the proceedings herein) are to account to Justyn Ng for all share sale proceeds he paid to the estate for the purposes of the reduction of the Commonwealth Bank mortgage, such moneys accounted for to be free of interest." 51It follows, from the above, that Deborah's financial resources are not known with certainty. Obviously, they will include the provision made for her in Vera's Will, although the quantum of that provision cannot be calculated with precision. 52It was for this reason that following the conclusion of the hearing, I stood the matter over, part heard, and made the following notation by consent of the parties: "Notes the parties are to provide a statement of agreed facts as to the entitlement of the Defendant to property out of her mother's estate and the Defendant's entitlement, or potential entitlement, to damages and/or compensation sustained as a result of the accident in which the deceased died and in which she was injured." 53On 16 June 2014, senior counsel for Deborah, Mr Ellison, (who had also appeared for her in the hearing before Slattery J), provided additional submissions in respect of Deborah's entitlements to damages and compensation as a result of the accident and in respect of the value of her share of Vera's estate. (I have incorporated some of what he included in relation to the potential entitlements to damages/compensation above.) 54Relevantly, Mr Ellison's submissions, which I marked as Ex. D2, contained the following summary of information in relation to Vera's estate: "Excluding [the property at] 89 Bowden [Street] which passes to the successful Plaintiffs in specie, ... the above figures [in relation to Vera's estate] total - (a) Assets $ 2,154,886 (b) Liabilities $ 1,196,229 (c) Net estate $ 958,657 Deborah will receive half the above net amount, calculated as $479,328.00 less 50% Capital Gains Tax." 55On 17 June 2014, senior counsel for the Plaintiffs, Mr Wilson, sent an email to my Associate to the effect that, even though the Plaintiffs were not involved in the proceedings before Slattery J, they accepted that Mr Ellison's submissions accurately reflected the effect of Slattery J's judgment. He also stated that in the circumstances, each of the Plaintiffs maintained her, or his, claim to a legacy of $50,000 out of the notional estate together with their costs on the ordinary basis. I marked the email as Ex. P5. 56I will refer, again, to Mr Ellison's submissions later in these reasons.

(1995) 19 Fam LR 696

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (18 paragraphs)

Parties

Legislation Cited (10)

Cases Cited (89)

Cited By (7)