Dimic v Djekovic

The Claim 1HIS HONOUR: These reasons relate to proceedings in which the Plaintiff, Zagorka Dimic (also known as Zaga Dimic), seeks a family provision order pursuant to the Succession Act 2006 (NSW) ("the Act"), upon the basis that she is a person who was living in a de facto relationship with John Brajkovic ("the deceased"), at the time of his death. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the court in relation to the estate, or notional estate, of a deceased person, to provide from that estate and/or notional estate, for the maintenance, education, or advancement in life, of an eligible person. (The Plaintiff does not seek to designate any property as notional estate of the deceased.) 2The Plaintiff commenced the proceedings by Summons filed on 24 June 2013, that is, within the time prescribed by the Act (within 12 months of the deceased's death). 3The Defendant is Milan Djekovic, the executor named in the Will of the deceased, to whom Probate was granted. He is a solicitor who had acted for the deceased (and the deceased's late wife) since about 1987. He had also been the deceased's Attorney, having been appointed under an enduring General Power of Attorney dated 20 July 2012. He is not a beneficiary named in the Will of the deceased. 4The hearing proceeded with the reading of the evidence filed. There were only a few objections to parts of the affidavits that needed to be ruled upon. The cross-examination of each of the parties and one witness then occurred. Neither of the solicitors, whose affidavit of costs was read, was cross-examined on that affidavit. Finally, counsel for each of the parties made oral submissions speaking to his written outline of submissions, which have been retained in the court file. The estimated duration of the hearing was one day plus, and the proceedings were concluded within one day. 5(There was one witness, Slavko Maronic, to whom I shall refer later, whose affidavit was relied upon by the Defendant, who was unable to attend for cross-examination because he lives overseas. Although a notice of motion was filed seeking an order that he be permitted to be cross-examined by audio-link, the notice of motion was dismissed, by consent of the parties, prior to the hearing, as he was no longer required to attend for cross-examination. Costs of the notice of motion were costs in the cause.)

Formal Matters 6The following facts are uncontroversial. 7The deceased died on 4 August 2012. He was then aged 86 years, having been born in September 1925. 8The deceased married Ivka Maronic in about 1948, but she predeceased the deceased, having died in 1988. They remained married at the date of her death. There were no children of their marriage. 9The deceased had one child, Josip Tisic (to whom I shall refer as "the son"), from a relationship that he had with a woman in Croatia. The son was born in Croatia, in about 1948, and has lived there throughout his life. 10The son has one son, also called Josip (to whom I shall refer as "the grandson") who was born in January 1970, and a daughter, Natasa, who was born in 1977. 11The grandson came to Australia in October 1991. He resided with the deceased and the Plaintiff for a period of time. 12The grandson has four children, Jennifer, who was born in August 2000, and who is now aged 14 years; Adrian, who was born in May 2001, and who is now aged 13 years; Emalee, who was born in July 2002, and who is now aged 12 years; and Nikola, who was born in January 2007, and who is now aged 7 years. He is married to Daniela, who is the mother of Adrian, Emalee and Nikola. 13There was no evidence about Natasa or whether she has any children. 14The deceased's brother-in-law is Slavko Maronic. He is presently aged 77 years. His sister was Ivka. He lives in Zagreb, Croatia, with his wife, Durdica, his daughter, Zeljka and his two grandchildren, Ivan and Irena. 15The deceased left a Will that he made on 3 December 2008, Probate in common form of which was granted, by this court, to the Defendant on 12 July 2013. By that Will, the deceased provided: "3. I GIVE DEVISE AND BEQUEATH as follows: (a) to ZAGA DIMIC an amount equivalent to half the value of my property at xx xxxx xxxx, Rose Bay ('the property') as at the date of my death and the right to occupy the property rent free for a period of up to six (6) months after my death together with all contents of the property and my personal effects and also any motor vehicle I own in Sydney as at the date of my death; (b) to my brother-in-law, SLAVKO MARONIC an amount equivalent to the gross value of Units numbered x, x and x being two (2) two (2) bedroom and one (1) one bedroom apartments on the second floor of the building I own at xx xxxx xxxx, Bondi valued as if such units were held under strata title and separately saleable PROVIDED THAT if SLAVKO MARONIC predeceases me then equally amongst such of his children as survive me." 16The deceased left the rest and residue of his estate: "4. ... UPON TRUST to sell call in and convert into money such part thereof as does not consist of ready money and to pay thereout and out of any ready moneys forming part of my estate all my just debts funeral and testamentary expenses and all death estate probate succession and all other like duties payable in consequence of my death and to hold the balance of the proceeds of such sale calling in and conversion and any ready moneys as aforesaid or the investments for the time being representing the same UPON TRUST for such of my great grandchildren being the children of my grandson, JOSIP TISIC Junior as survive me and attain the age of twenty-five (25) years as tenants in common in equal shares." 17The Inventory of Property disclosed to the court under s 81A of the Probate and Administration Act 1898 (NSW), a copy of which Inventory was attached to the Probate document, stated that the property owned solely by the deceased in New South Wales, at the date of his death, had an estimated (or known) gross value of $8,742,987 (incorrectly stated to be $8,740,188). The deceased's actual estate was said to consist of real estate in Rose Bay, Sydney ("the Rose Bay property") ($3.2 million), real estate at Bondi, Sydney ("the Bondi property") ($5.2 million), furniture watches and jewellery ($5,000), monies in current accounts ($13,000), monies in bank or financial institutions on deposit ($154,122) shares ($2,350), debts due to the deceased ($7,613), motor vehicles ($7,000) and other personal property ($153,902). (I have omitted, and shall continue to omit, any reference to cents, which explains what may appear to be mathematical errors.) 18No jointly held, or other, property, in which the deceased held an interest in New South Wales at the date of his death, was disclosed in the Inventory of Property. 19There was also identified, in the Inventory of Property, other property held outside New South Wales, in Croatia, being shares in "Hotel Rovinj" (AUD$8.46 million), vacant land (AUD$10,000), a car (AUD$2,800) and moneys held by a lawyer (AUD$35,380). 20In an affidavit sworn 26 September 2014, the Defendant provided some evidence of the nature and current value of the property forming the deceased's estate in New South Wales, being the Rose Bay property ($3.0 million to $3.3 million); the Bondi property ($5.2 million, although if money ($300,000) were expended on it, the value could be increased to $6.5 million); net rentals from the Bondi property ($373,839); shares ($3,813); and moneys held by the Defendant's solicitors ($52,052). 21There is evidence that the Rose Bay property is a "substantial ... home [sitting] on a commanding parcel of approx. 620 sq.m. and [that it] enjoys delightful harbour views from the rear of the property". It has "multiple living areas, [an] indoor pool and garaging for up to four cars". It has four bedrooms. 22There is evidence that the Bondi property comprises 9 flats (six 2 bedroom and three 1 bedroom) and a retail office area. The Defendant has been told that the property does not comply with current fire safety regulations or current building code requirements. It is not currently strata subdivided. 23The furniture, watches and jewellery, the motor vehicle, and other personal property of the deceased have been transmitted to the Plaintiff. 24Although no liabilities were disclosed in the Inventory of Property, there were funeral and wake expenses ($17,882), expenses relating to the Rose Bay property ($15,288), various other expenses relating to the Bondi property ($169,196), taxation liabilities ($233,497) and accountancy fees ($8,030) paid out of the estate. (There remains $15,274 yet to be paid in relation to work done on the Bondi property.) 25The Plaintiff has remained in occupation of the Rose Bay property since the death of the deceased. She has not paid any rent or occupation fee whilst continuing to live there. 26The Defendant has made some interim distributions to the residuary beneficiaries, being $30,600 to Jennifer and $69,338 to Adrian, Emalee, and Nikola. 27The current value of the property of the deceased in Croatia is unknown for a number of reasons, including that there is litigation, being a claim by the son seeking what is described as the "statutory reserved portion" of the Croatian estate, which proceedings are likely to be successful. The Defendant, who is represented by Croatian lawyers in the litigation, has been advised that the "statutory reserved portion" is equivalent to "one half of the entitlement which would have applied in the event that the deceased had left no will". 28At the commencement of the hearing, the parties agreed that the gross value of the deceased's estate in New South Wales, at the date of the hearing, was $8,666,240. That value is calculated by reference to the estimated current gross value of the Rose Bay property ($3.4 million) and the Bondi property ($5.2 million) and cash held in the Defendant's trust account ($66,240). 29The current liabilities known to the Defendant that are yet to be paid, total $101,415, and include income tax for the financial year ending 30 June 2014 (estimated to be $49,009), a BAS Tax instalment ($12,816), the balance of renovation costs of the Bondi property ($15,274), the balance of the renovation costs expended by the Plaintiff ($7,374) and unpaid costs and disbursements of administration payable to the Defendant's solicitors ($16,942). (I should mention that the Defendant does not intend to seek any commission from the deceased's estate.) 30During the course of the hearing, the agreed value of the Rose Bay property was reduced to $3.3 million. The parties also agreed that, in the event that the Rose Bay property were sold for $3.3 million, the costs and expenses of sale would be about $80,000. For reasons to which I shall come, because of these costs and expenses, I have estimated that the net proceeds of sale of the Rose Bay property, currently, will be about $3.2 million. In the event that the Bondi property is sold for $5.2 million, the parties agreed that the costs and expenses of sale would be about $135,000; and, in the event that the Bondi property is sold for $6.5 million, those costs and expenses would be about $164,000. 31In calculating the value of the actual estate, finally available for distribution, the costs of the present proceedings should also be considered, since the Plaintiff, if successful, normally, will be entitled to an order that her costs and disbursements, calculated on the ordinary basis, be paid, whilst the Defendant, as the person representing the estate in the proceedings, irrespective of the outcome of the proceedings, normally, will be entitled to an order that his costs, calculated on the indemnity basis, be paid out of the estate, of the deceased. 32The Plaintiff's solicitor, Mr C E Moore, in an affidavit sworn on 25 September 2014, estimated the Plaintiff's costs and disbursements of the proceedings, including senior counsel's fees, calculated on the indemnity basis, to be about $98,670 (inclusive of GST and upon the basis of a one day hearing). The estimate of the Plaintiff's costs and disbursements, calculated on the ordinary basis, was $87,945. 33Neither the Plaintiff, in any of her affidavits, nor her solicitor, in his affidavit of costs, disclosed that the Plaintiff had paid any amount on account of costs and disbursements. It was not until the conclusion of the submissions in reply, that senior counsel for the Plaintiff disclosed that the Plaintiff had, in fact, paid "about $50,000" on account of those costs and disbursements. 34This piece of information should have been disclosed by the Plaintiff or in the affidavit of the Plaintiff's solicitor. Subsequently, without objection, following the conclusion of the hearing, counsel for the Defendant informed the court, in a document that has been marked as Ex. C, that the agreed amount that the Plaintiff has paid is $58,828. 35If an order for costs of the Plaintiff is made, some, or all, of the costs and disbursements paid will be reimbursed, with the result that her financial and material circumstances are likely to be improved. In this case, the payment will increase the capital amount that the Plaintiff has available to her to meet exigencies of life. 36The Defendant's solicitor, Mr S M Hearne, in an affidavit sworn on 14 October 2014, estimated the costs and disbursements of the Defendant of the proceedings, including counsel's fees, calculated on the indemnity basis, to be $119,870 (inclusive of GST and upon the basis of a one day hearing). He stated that $55,727 has been paid out of the estate, leaving $64,143 left to be paid. 37Naturally, if the parties are unable to reach agreement on the quantum of costs to be paid out of the estate, it will be for an assessor to determine the appropriate quantum of costs. 38It follows that, if the liabilities ($101,415) are paid, orders for costs are made, and if the costs estimates prove accurate (in total, the balance being $152,088), the net value of the deceased's estate in Australia, available for distribution, will be about $8.4 million. It is, on any view, a large estate. 39The Defendant was cross-examined on the value of the Croatian property but said that he was unable to provide an estimate of its value. Whatever its value, the residuary beneficiaries will probably receive 50 per cent, the other 50 per cent going to the son. The Defendant said, in cross-examination: "Q. Have you attempted to put a value on what might pass to those great grandchildren? A. From Croatia? Q. Yes? A. Yes, I have. I have struck a great deal of difficulty in dealing with that. I have travelled to Croatia, I've had advice and that's ongoing at the moment, and uncertain. Q. Obviously it can't be a negative, it will be a positive but you don't know when? A. That's correct, and-- Q. And you don't know how much? A. That's right. For a number of reasons, but that's correct. Q. ... have you got any idea what might be the ultimate entitlement passing to those great grandchildren? A. No, I do not. I should volunteer that while there is no risk that it could be negative, it could well be neutral or zero." 40Senior counsel for the Plaintiff submitted, in writing, that "where the Australian estate is large enough to provide for the Plaintiff and the other beneficiaries under the deceased's Will, and the Croatian estate is of doubtful utility, the Plaintiff accepts that for all practical purposes, the Croatian estate is irrelevant to this litigation". 41Strictly speaking, that is not entirely correct, since the existence of property of the deceased overseas "may nonetheless inform the extent to which those having claims on the deceased's testamentary bounty have received, and will receive, provision, and thus what order should be made in respect of assets within the jurisdiction [cf Taylor v Farrugia [2009] NSWSC 801, [26]]. They also provide an asset to which [the executor] can resort to meet the estate's costs, and thus can be relevant to what order is made in respect of costs [cf Taylor v Farrugia, [26], [74]]": Chen v Lu [2014] NSWSC 1053, per Brereton J, at [75]. 42Unfortunately, for reasons beyond the control of the parties, the value of the Croatian property is not known with any degree of certainty. 43The parties agreed that the only eligible person who has commenced proceedings under the Act is the Plaintiff. Of course, the son, as a child of the deceased, is also an eligible person, but he has not commenced proceedings in New South Wales despite having been served with a notice of the application and of the Court's power to disregard his interests. He has, however, commenced proceedings in Croatia, to obtain part of the estate of the deceased held there (to which proceedings I have earlier referred). 44There is evidence that the grandson is, or may be, an eligible person also, but he has expressly stated that he does not wish to make any claim for further provision because he accepts "that there will be substantial benefits flowing to my children if the terms of the deceased's Will are upheld". He has sworn a number of affidavits that have been read in the proceedings and he was cross-examined. 45There is no evidence that any of the other beneficiaries named in the Will of the deceased are eligible persons but, as they are beneficiaries, the court will not disregard the interests of each of them. Later in these reasons, I shall refer to the claim of any competing claimant. (It is fair to say that the only competing claimant is the deceased's brother-in-law, Slavko. The great-grandchildren of the deceased are named beneficiaries but it was not submitted that any had a claim on the bounty of the deceased.) 46The Act provides that since each of the other eligible persons has not commenced proceedings, I may disregard his, and her, interests as a person in respect of whom an application for a family provision order may be made. The Court is not permitted to disregard their interests, or the interests of the other beneficiaries, as beneficiaries.

Further Background Facts 47The following facts, which, in my view, are not the subject of any dispute, or which have been established, should be noted. 48The Plaintiff was born in Pristina, Serbia. She came to Australia with her first husband, Borivoje, in June 1968. She was subsequently divorced (having obtained the dissolution of her marriage in Serbia) from him. She obtained Australian citizenship in August 1982. 49Before her marriage, the Plaintiff had a relationship with Radivoye Markovic, with whom she had twin children, born in July 1960. Both of her children currently live in Serbia. 50Following the dissolution of her marriage, and commencing in 1970, the Plaintiff lived with Larry De Blasio, until his death in March 1980. 51The Plaintiff met the deceased in mid-1988. I shall return to details of their relationship later in these reasons. 52The Defendant described the deceased as "a complicated character with an irascible temperament. He was given to outbursts of anger. Conversely he could be very generous and warm and a very loving person." 53The Defendant also says that he had heard the deceased say that the Plaintiff was not his wife and that "My wife died in 1988. I have no wife." 54The Defendant annexed, to one of his affidavits, searches of alternative accommodation, comprising two, and three, bedroom units in Rose Bay (within 500 metres of the Rose Bay property), the price of which ranged from $1.54 million to $1.97 million. The Defendant stated that the properties were: "...quality strata apartments or townhouses with the following features: (a) two or most likely three bedrooms; (b) level lift access from a single or most likely double garage level; (c) large contemporary living areas; (d) high quality kitchen and two bathrooms; (e) ample indoor and outdoor entertaining spaces; (f) impressive views or outlook; and (g) contemporary development most likely not more than 10-15 years old." 55As it will be necessary, bearing in mind the submissions ultimately made, I shall use the amount of $2.0 million as a guide to the cost of alternative, suitable accommodation in which the Plaintiff might live.

Testamentary Intentions of the Deceased 56The Defendant has given evidence about conversations that he had with the deceased regarding instructions for a Will. In relation to the provision for the Plaintiff, the deceased said to the Defendant, on several occasions: "I have already done a lot for Zaga. It cost me hundreds of thousands of dollars to build another storey on her house at Dolls Point so that it is now a duplex. She is renting both of these out and has got plenty of money of her own. When we split up she will go back and live in one of the units and have a good income from the other one". 57There is no dispute that the deceased did, in fact, contribute to the costs of renovating the Plaintiff's property at Dolls Point (as to which, see later). 58In another conversation, the deceased said to the Defendant: "You worry too much. Zaga knows what I have done for her and she would not be so greedy as to make a claim. I have looked after her well and she knows that apart from Braco everything is to go to the [great] grandchildren. Thanks to me she is already doing very well with two units and plenty of money. She does not need anything more. I am sure she would respect my wishes." ("Braco" is a Croatian term said to mean "little brother", which term the deceased used to refer to Slavko.) 59The Plaintiff gives evidence that, shortly before the deceased's death, he said to her: "I am sorry Zaga, I should have just left you half of everything, everything along with my great-grandchildren. Get me a telephone book so I can call Djekovic." 60In relation to the provision made for Slavko, there appears to have been a written agreement between the deceased and his wife, made in November 1987. It is this agreement, the details of which it is not necessary to repeat in these reasons, that founds his competing claim upon the bounty of the deceased at least so far as it relates to the interest in the Bondi property provided to him by the deceased's Will.

Credit of the Parties 61The Plaintiff gave evidence that she wished to remain living in the Rose Bay property. In her affidavits, she gave evidence that she wished to do so for a number of reasons. These included her close ties with the local community, having friends in the area, close neighbours who are of a similar age, and that her doctor, massage therapist, hairdresser and beauty salon are in the area. 62In cross-examination, the Plaintiff gave the following evidence (at T21): "Q. There is no reason why the Rose Bay property could not be sold and you could live in alternative accommodation, is there? A. Yes, there is reason. I want to die in that house like my husband did and he fight it very strong to remain there because when they were building block of units they offer him to sell the house, house was always not for sale. Q. You don't particularly like the property? A. I love the property. I like the house, especially inside how we decorate it. Q. You have complained to Mr Djekovic that it's not a nice house? A. That conversation never took with Milan Djekovic. I would like to know he tell me time, when was that conversation? Q. The only connection between you and the Rose Bay property is that you want to die in it? A. Not only that, in memory of my husband and especially those last six years when he was starting having dementia and difficulty with his life and everything. The energy of him is still there in the house now. Q. That's the only particular reason? A. Not only that and my friends and my volunteer work, my doctors, everything, my life is there, not Rose Bay, but the Bondi Junction where I take him to doctors and therapies and the lot." 63She added (at T22): "Q. You are aware that you own half the property? A. Yes. Q. And that it would be possible for you to it would be open for the house to be sold at Rose Bay? A. Yeah, I'm aware of it but I don't agree with it. Q. And if the house at Rose Bay was sold there would be a sum of money left over; correct? There's no mortgage on the property? A. No, no mortgage since he's passed away. Q. It would be possible to buy another property in which you could live and you could own in that area? A. It is possible, but that doesn't mean I agree. Q. Have you turned your mind to suitable accommodation in Rose Bay in which you could live? A. No, it never crossed my mind. I want to stay in the house where is all my memories of my husband. Q. You understand that that is Mr Djekovic's proposal? A. That is his proposal, not mine." 64In answer to some questions from the Bench, she gave the following evidence (at T27 - T28): "Q. Mr Skinner asked you some questions about Rose Bay? A. Yes. Q. And continuing to live in Rose Bay. And I gather that your evidence is you want to keep living there? A. Yes, sir. Q. For as long as you can? A. Yes, sir. Q. The principal reason you seem to have given, and correct me if this is wrong, is ... the memory of your husband? A. Yes. Q. And you'd like to live there so you can remember your husband? A. Yes. Q. You've also said that you have things to do in the eastern suburbs in the area of Dover Heights, Bondi Junction, and Rose Bay is reasonably close to all of that? A. Yes. Q. Is that right? A. Yes. Q. Now those things do not require ownership of the whole of the Rose Bay property, do they? A. Those things I'm doing that is a part of me that I am doing because I'm not a person to stay home and cry. But when I'm in the house I always have a feeling like he is coming home from Croatia. Q. I am sorry, I think you misunderstood my question? A. Okay. Q. As I understand it, what is being put on your behalf is that you want to own the Rose Bay property, all of it, is that right? A. Yeah, that's right. Q. The matters that you've mentioned about keeping the memory of your husband and those sorts of things that I just mentioned to you, are not dependent on owning that property, are they? You want to live there? A. I want to live there. Q. That seems to be your principal position, is that right? A. Yes." 65The Defendant had, however, given evidence in an affidavit that, on the day of the funeral, the Plaintiff, when showing him around the ground floor living areas of the Rose Bay property said words to the following effect: "I have never liked this house. It is far too big for us and I always wanted John to sell it. He was so stupid when he missed the opportunity to sell it to the developers who bought the next door properties and when they were keen to buy this from him too. If he had listened to me he would have made a lot of money but instead he stubbornly refused and now they have built these terrible flats and completely spoiled the harbour views. The property is now only worth half as much as he could have got for it." 66It was put to the Defendant that this conversation did not occur. He stated that the conversation had occurred and that he remembered it. 67This raised a question whether I should accept the Plaintiff's evidence on the topic of her desire to remain living in the Rose Bay property (as opposed to living in the Rose Bay area). I am of the view that the conversation stated by the Defendant is one that did occur and that I should accept the evidence of the Defendant and reject the denial of the Plaintiff. 68I reach this conclusion because I am of the view that the Defendant would have no motive to make up such a conversation. After all, he is the executor of the estate only, not a beneficiary, and it would make no particular difference to him whether the Rose Bay property was retained or sold. The second reason is that, to accept the assertion that the conversation did not occur, would require me to be satisfied that the Defendant had made up the conversation. Considering that he is an officer of the court, as well as the executor of the deceased's estate and the Defendant in the proceedings, would require me to be satisfied of a very serious allegation. I cannot be so satisfied. Finally, bearing in mind the size and the amenities of the Rose Bay property, as described and proved independently by objective facts, it would not be surprising that the Plaintiff considered that it was too big for two people. Accordingly, the conversation is inherently believable. 69However, the rejection of the Plaintiff's denial does not require me to conclude that she was not telling the truth on this topic. It may be, bearing in mind that the conversation occurred on the day of the deceased's funeral, that the Plaintiff simply did not remember the conversation. It may be, alternatively, that her view of the Rose Bay property has changed since then. 70Ultimately, what is more important, in my view, is that the Plaintiff seeks the remaining one half interest in the Rose Bay property absolutely. None of the reasons she advanced would necessarily justify, or require, making provision by way of absolute ownership of that property. 71Senior counsel for the Plaintiff seemed to suggest that I should infer that there was some bad feeling between the Plaintiff and the Defendant which would lead to the view that it would not be proper to keep the parties in a financial, or other, relationship. 72Whilst the relationship of an applicant and the executor might very well be relevant to the nature of provision that should be made, particularly in circumstances where the relationship might lead to conflict, I am not satisfied, in the present case, that there has been any relevant conflict between the Plaintiff and the Defendant. 73Supporting this conclusion is the fact that the Will provided that the Plaintiff was entitled to remain in the Rose Bay property for six months after the death of the deceased. There is no evidence that, at any time thereafter, the Defendant took any steps to interfere with her continued occupation thereof. The only occasion he has attended the Rose Bay property was on the day of the funeral. In addition, since the deceased's death, in excess of $15,000 has been spent, out of the estate, to pay outgoings on the Rose Bay property. 74As importantly, the Plaintiff herself, when asked why she wished to receive the whole of the Rose Bay property, did not suggest that her relationship with the Defendant was a relevant factor. Nor was any suggestion to that effect made to him in the cross-examination of the Defendant by senior counsel for the Plaintiff. 75Otherwise, there were really no matters of real dispute between the witnesses that require me to form a view of her, or his, credit.

The Statutory Scheme - The Act 76Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out most of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is equally important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in the application. 77The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008 (NSW). A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, Will. It is only if the statutory conditions are satisfied, that the court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate, to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary. 78The key provision is s 59 of the Act. The court must be satisfied, first, that an applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made. 79Relevantly, in this case, the Plaintiff relies upon the category of eligibility referred to in s 57(1)(b) of the Act. There is no dispute that she is a person with whom the deceased was living in a de facto relationship at the time of his death. Accordingly, she has the status to bring proceedings under the Act. 80Relevantly to this case, it is only if eligibility is found, that the court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made 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". 81Allsop P in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, commented, at [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." 82Basten JA, at [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." 83Barrett JA, at [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 provisions confine 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." 84Other than by reference to the provision made in the Will of the deceased, or, if relevant, by the operation of the intestacy rules in relation to the estate of the deceased, or both, 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 in the deceased's Will, or on intestacy, or both, 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. (In this case, the intestacy rules are irrelevant.) 85In 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." 86It 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]. 87Under 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. 88"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". 89Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act. 90The 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." 91In 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." 92In 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." 93In 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 128." 94Master 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.'" 95In 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." 96In 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)." 97In 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." 98The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton, 'The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?' (1999) 5 Australian Journal of Legal History 5, at 10, as "an objective, economic test", whereas "proper" prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127, per Buss JA, at [72], [77], which seems to invite more subjective criteria. 99These 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." 100Dixon 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 if life must be considered in the light of 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." 101In Pontifical Society for the Propagation of The Faith v Scales (1962) 107 CLR 9, Dixon CJ at 19 commented: "The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning." 102In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, 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." 103In 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 a kind which was made here... The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use 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." 104Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), that "adequate" and "proper" are independent concepts. He 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..." 105In 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 there are no definite criteria by which the question can be answered. 106His Honour added 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)." 107Until 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, at [70]. 108Whether 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). 109In 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." 110In Devereaux-Warnes v Hall (No 3), at [81] - [84], Buss JA said, in respect of the first stage of the process: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227. 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11. The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575. Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]." 111"Need", of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]. It is different from "want". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808, at [54]: "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'." 112In Boettcher v Driscoll [2014] SASC 86, David J, at [41], added: "'Need' is not so synonymous with 'want' such that the two are interchangeable." 113Yet, in referring to the concept of "need", it should also be noted that the statutory formula makes no reference to "need", but rather to "adequate provision for the proper maintenance, education or advancement in life". No doubt, this has prompted White J to write, in Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473, at [147], that "the need a claimant must demonstrate is a need for 'proper' maintenance, education and advancement in life", but that does not mean that "adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others". I respectfully agree. 114As Callinan and Heydon JJ emphasised in Vigolo v Bostin, 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 on 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. 115In the event that the court is satisfied that the power to make an order is enlivened (i.e. in this case it is satisfied that the applicant is an eligible person, and that adequate provision for the proper maintenance, education or advancement in life of the person 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. 116The 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. 117However, Basten JA, in Andrew v Andrew, said of the two stage process referred to: "29. The combination of changes requires that the court address the nature of the exercise being undertaken. Three potential consequences may be identified. First, there is a simplification of the structure of the process. There is no longer a two-stage process required. A degree of artificiality has thus been removed. The court should now ask what, taking all relevant factors into account, would have been adequate provision for the applicant. There is no first stage of determining whether the actual provision was 'inadequate', followed by a discretionary exercise of determining what would be adequate and what should in fact be done. ... 41. As noted above, the language of the Succession Act is not consistent with the two-stage inquiry which was a common feature of earlier legislation: cf Singer v Berghouse at 208-209. In Keep v Bourke [2012] NSWCA 64 the Court appears to have assumed that the two-stage process continued to operate under the Succession Act: at [24]-[29]. However, the issue not having been directly addressed, there is no constraint on this Court now adopting a different approach. Nor does earlier High Court authority construing an earlier statutory scheme govern the approach to be adopted to materially different legislative provisions." 118In Andrew v Andrew, Allsop P, at [6], said: "Whether the process engaged in by the Court in s 59 can still be described as 'two-staged' in the sense discussed in Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 208-211 may be an analytical question of little consequence. The task involves an evaluative assessment and a choice as to consequence therefrom, appeal from which is governed by the principles concerning discretionary judgments: Singer v Berghouse at 211 and DAO v R [2011] NSWCCA 63; 278 ALR 765 at [93]." 119Barrett JA disagreed with Basten JA, in Andrew v Andrew, saying: "65. This is the second occasion on which this Court has been called upon to deal with a claim under s 59 of the Succession Act. In the earlier case, Keep v Bourke [2012] NSWCA 64, the Court proceeded on the basis that approaches taken under s 7 of the now superseded Family Provision Act 1982 remained relevant and applicable. That matter was explored in greater detail in the course of argument in the present case. For reasons I am about to state, I am of the opinion that the earlier approaches should continue to be followed in cases such as the present case and Keep v Bourke, that is, cases in which the applicant is a child of the deceased and no previous order for provision out of the estate has been made in favour of that applicant. ... 79. First, it is necessary, having regard to s 59(1)(c), for the court to be satisfied that, at the time when it is considering the application, 'adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person'. Whereas the former s 9(2) provided that an order was not to be made unless the court was 'satisfied' in the specified way, the present legislation permits the court to make an order if 'satisfied' in the specified way and, by necessary implication, precludes the making of an order if the court is not so 'satisfied'. 80. Second (and if the court is 'satisfied' in the specified way), the 'family provision order' that the court is empowered to make is, under s 59(2), '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'; and the court may, pursuant to s 60(1)(b), have regard to the matters specified in s 60(2) in deciding whether to make an order and the nature of the order. 81. Under s 59 and s 60, therefore, the task of the court, in a case of the kind under discussion, is: (a) to determine the extent of the provision made for the maintenance, education and advancement in life of the applicant by the deceased's will or the intestacy laws; (b) to form an opinion of the adequacy of that provision; (c) if the opinion is one of inadequacy, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased person 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; and (d) in making that evaluative judgment, to take into account, as discretionary factors, the matters in s 60(2). ... 94. As stated in Keep v Bourke (above), the structure and effect of the Succession Act provisions warrant continuing adherence to the two-stage approach indicated by the decisions of the High Court in Singer v Berghouse and Vigolo v Bostin." 120I have dealt with the question that has been raised in other cases whether the two-stage approach identified in Singer v Berghouse continues to apply to the provisions of the Act 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, or its decision of Verzar v Verzar [2014] NSWSCA 45. 121(Also, since I delivered my reasons in Aubrey v Kain, Robb J has 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. I also refer to what has been written by Bergin CJ in Eq in In the Estate of the late Anthony Marras [2014] NSWSC 915, at [15].) 122Ultimately, as Allsop P said in Andrew v Andrew, at [6], "it may be an analytical question of little consequence" since the questions remain the same, namely, whether the court can make an order for provision (whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made), and if so, whether it should (whether to make an order and, if so, the terms of that order). 123Section 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." 124It 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. 125Beazley 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." 126White 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 applicant's 'proper' maintenance, education or advancement in life". 127In 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'". 128The 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. 129It 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. 130Section 60(2)(d) refers also to "earning capacity", which means no more than the capacity to find employment to earn or derive income. 131A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1). 132Leaving 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. 133This 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." 134And 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." 135As 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." 136Section 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. 137The 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). 138Any family provision order under the Act takes effect, unless the court otherwise orders, as if the provision was made in a codicil to the Will of the deceased, or in the case of intestacy, as in a Will of the deceased (s 72(1) of the Act). (As stated, intestacy is irrelevant in these proceedings.) 139Thus, the practical effect of an order is to alter the provisions of a deceased person's Will. 140Section 66 of the Act sets out the consequential and ancillary orders that may be made. 141Section 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. 142Section 100(2) of the Act provides that in any proceedings under Chapter 3, evidence of a statement made by a deceased person is, subject to the section, admissible as evidence of any fact stated in it of which direct oral evidence by the deceased person would, if the person were able to give that evidence, be admissible.

Other Applicable Legal Principles - Substantive Application 143Accepting 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. 144Bryson 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. 145In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the court to be vigilant in guarding "against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant". Freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the court": Pontifical Society for the Propagation of the Faith v Scales, at 19. 146The 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, at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90, at [63]. 147In Stott v Cook (1960) 33 ALJR 447, Taylor J, although dissenting in his determination of the case, observed, at 453-4, that the court did not have a mandate to rework a Will according to its own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged." 148White J referred to these principles in Slack v Rogan; Palffy v Rogan, at [127]: "In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and (2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will." 149Gleeson CJ, in Vigolo v Bostin, at 199, observed that the justification for interference with freedom of testation is to be found in the failure of a deceased to meet the obligations, which the community would expect in terms of maintenance, for those persons within the class of eligible persons. The process requires the court to "connect the general but value-laden language of the statute to the community standards". 150Of testamentary freedom, in Grey v Harrison, at 386, Callaway JA said: "... It is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take properties from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the widest terms found in s 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent." 151In Goodsell v Wellington [2011] NSWSC 1232, I noted, at [108], that: "Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated." 152As Pembroke J said in Wilcox v Wilcox [2012] NSWSC 1138, at [23]: "The court does not simply ride roughshod over the testator's intentions. The court's power to make an award is limited. The purpose of the discretionary power under Section 59(1) is to redress circumstances where 'adequate provision' has not been made for the 'proper maintenance, education or advancement in life' of the claimant. The adjectives 'adequate' and 'proper' are words of circumspection." 153In 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. 154As Allsop P said in Andrew v Andrew, at [16]: "If I may respectfully paraphrase Sheller JA [in Permanent Trustee Co Limited v Fraser (1995) 36 NSWLR 24 at 46F-47B], the Court in assessing the matter at s 59(1) and the order that should be made under s 59(1) and (2), should be guided and assisted by considering what provision, in accordance with 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." 155How those community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew, at [36]. 156In all cases under the Act, what is adequate and proper provision is necessarily fact specific. 157The Act is not a "Destitute Persons Act" and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice; Allardice v Allardice (1910) 29 NZLR 959, at 966. The use of the word 'proper' requires consideration to be given to more than satisfying the basic needs of an applicant. The standard of living of an applicant during the lifetime of the deceased is relevant, but the fact that an applicant has lived frugally, or that he or she, has become accustomed to a life of relative penury, does not mean that the deceased's obligation under the Act is satisfied so long as the applicant can continue in that state: Pogorelic v Banovich [2007] WASC 45, [62]; Butcher v Craig [2009] WASC 164, at [21]. 158Where the court is satisfied that provision ought to be made, then it is no answer to a claim for provision under the Act that to make an order would be to defeat the intentions of the deceased identified in the Will. The Act requires, in such circumstances, the deceased's intention in the Will to be displaced: Kembrey v Cuskelly [2008] NSWSC 262, per White J, at [45]. 159All 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]. 160The size of the estate is a significant consideration in determining an application for provision. 161In relation to a claim for a family provision order by a person living in a de facto relationship with the deceased at the date of his, or her, death, the following principles are also relevant. 162In Luciano v Rosenblum (1985) 2 NSWLR 65, at 69-70, Powell J (as his Honour then was), wrote: "It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of the testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her 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." 163The "broad general rule" may be held applicable to a person who occupies the position of a de facto wife: Re Marcuola-Bel Estate; Marcuola-Bel v Thi Ly Tran [2005] NSWSC 1182, per Palmer J, at [31]. However, the principle is not one of immutable application: Marshall v Carruthers [2002] NSWCA 47; Clifford v Mayr [2010] NSWCA 6, at [142]-[144]. 164In Bladwell v Davis [2004] NSWCA 170, Bryson JA, who had reviewed the authorities stated, at [19]: "In the application of the test in s 7, and of the exposition thereof in Singer v Berghouse by Mason CJ, Deane and McHugh JJ at 409-411 it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse, in full and with reference to the instant facts. Defeat of the opponents' claims does not necessarily follow from a demonstration, which the claimant can make, that all her needs with respect to income, home renovation, and provision for contingencies cannot be met if any provision is made for the opponents; indeed she could well demonstrate that even if the provisions of the will took effect without any modification, the provision for her is not adequate. That is not a demonstration that no claim by an eligible person can succeed; the claims and circumstances of the opponents also have to be weighed, and they too have their needs and merits." 165Ipp JA added, at [2]: "I would add, however, that where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others." 166Whilst the distinction between married relationships and de facto relationships has narrowed considerably over time, there also remains binding authority which gives greater weight to the claims of parties who have entered "a formal and binding commitment to mutual support": Marshall v Carruthers; Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308; Sellers v Scrivenger [2010] VSC 320, at [68]; West v France [2010] NSWSC 845, at [66]; Vidler v Ivimey [2013] NSWSC 1605, at [125]. 167Ward J (as her Honour then was) referred to many of the authorities in Cross v Wasson [2009] NSWSC 378; (2009) 2 ASTLR 201, at [97]. At [98], her Honour added: "Of course, the position of surviving spouse no longer attracts any primacy or paramountcy in the face of other competing claims. In Bladwell v Davis [2004] NSWCA 170 Bryson JA (at [18]) noted an inconsistency between according paramountcy to the claims of surviving spouses (in the context of competing claims) and the application to the facts and circumstances of each case of s 7 of the Family Provision Act and the approach established by Singer v Berghouse. His Honour said: 'Preconceptions and predispositions are likely to be the source of inadequate consideration of the process required by the Family Provision Act 1982'. His Honour considered it would be an error generally to accord to widows (or, by analogy here, widowers) primacy over all other applicants regardless of the circumstances and 'regardless of performance of the stages of consideration described in Singer v Berghouse in full and with reference to the instant facts' (para 19)". 168Concern as to the capacity of the applicant to maintain herself, independently and autonomously, also bear upon the notion of what provision ought to be made for her. Where, after competing factors have been taken into account, it is possible to do so, a spouse or de facto spouse of a long relationship ought to be put in a position where she is the mistress of her own life, and in which, for the remainder of her life, she is not beholden to beneficiaries: Langtry v Campbell (Supreme Court (NSW), Powell J, 7 March 1991, unrep). 169Yet, generally speaking, the Act is not intended to facilitate improvements in the lot of the dependants of an elderly applicant for further provision. In White v Barron [1980] HCA 14; (1980) 144 CLR 431, Mason J wrote, at 444-445: "Circumstances are infinite in their variety and orders must be moulded to the circumstances of the particular case in order to ensure that the provision which is made is adequate for the proper maintenance of the widow, where that is possible. A capital provision should only be awarded to a widow when it appears that this is the fairest means of securing her proper maintenance. However, the provision of a large capital sum for a widow who is not young, may, in the event of her early death, result in a substantial benefit to her relatives, contrary to the wishes of the testator, when a benefit of another kind would have afforded an adequate safeguard to her personally, without leaving her in a position in which she could benefit her relatives from the proceeds of the legacy." 170Thus, not infrequently, as in the present case, the jurisdiction of the court to interfere with the deceased's testamentary intentions comes to be exercised upon the application of a person of advanced age who was living in a de facto relationship with the deceased at the time of his death, and in circumstances where tensions arise between other family members as to the real and probable beneficiaries in the event that an order is made and if the applicant's remaining number of years prove to be relatively short. Whilst such tensions sometimes provide at least part of the backdrop and reasons for the respective stances taken in the litigation, the task of the court is, no more and no less, than to exercise its jurisdiction in accordance with the Act (Hertzberg v Hertzberg [2003] NSWCA 311, per Einstein AJA, at [44]). 171This tension often presents a fundamental division on the question whether adequate provision requires an interest less than an absolute interest, namely a life interest, or "Crisp order", in the property of the deceased. 172What is described in the cases as a "Crisp order" is an order of the kind made by Holland J in Crisp v Burns Philp Trustee Company Ltd (Supreme Court (NSW), Holland J, 18 December 1979, unrep), except in part, in L G Handler and R Neal, Mason and Handler's Succession Law and Practice in New South Wales (1985, LexisNexis Butterworths) at p 13580, at [9433]). Such an order gives an applicant an interest for life in real property, or in an interest in real property, with the right to it (should the need arise) for the purposes of securing, for the applicant's benefit, more appropriate accommodation. That type of order is intended to provide flexibility, by way of a life estate, the terms of which could be changed to cover the situation of the applicant moving from her own home to retirement village to nursing home to hospital. The flexibility provided by such an order underlies the notion that a "Crisp order" confers a "portable life interest": Court v Hunt (Supreme Court (NSW), Young J, 14 September 1987, unrep), cited with approval by Ipp JA in Milillo v Konnecke [2009] NSWCA 109, at [47]-[48]. 173This is a very large estate. Some other statements of general principle are also relevant. In Re Buckland Deceased [1966] VR 404, Adam J, at 415, said: "I consider the proper conclusion to be drawn from the authorities is that the court's jurisdiction, whatever the size of the estate, is limited by the claimant's need for maintenance and support; but that the maintenance and support to which he or she may for this purpose be treated as needing is that appropriate to his or her station or condition in life... The greater the estate the more may contingencies, even remote contingencies which may arise in the future, be provided for in the assessment of such maintenance." 174An appeal from the judgment of Adam J was dismissed by the High Court in May 1966. The High Court found no significant error of fact or of law in the reasons for judgment of the trial judge and could not conclude that the amount of the provision ordered, in the circumstances of the case, stemmed from some misconception of fact or from some error or misapplication of principle: Buckland v Trustees Executors and Agency Co Limited (1966) 40 ALJR 164. 175In Anasson v Phillips (Supreme Court (NSW), Young J, 4 March 1988, unrep), Young J (as his Honour then was) said at 20-21: "With a very large estate... there is great temptation on a Court to be overgenerous with other people's money. This is especially so when the Court can see that Plaintiffs have been very hardly done by at the hands of a domineering testatrix. However, the case should not be approached in this way, as the application has to be determined in accordance with the legal principles. These principles include the fact that in Australia there is freedom of a person to leave her property in whatever way she wishes, to love whom she wishes, to hate whom she wishes, and it is only when there has been a failure to comply with a moral duty to those who in the community's eyes she should have made proper provision for, that anyone can legally complain about another person's will. Even then, the Court has no power to rewrite the will, but can only adjust things, in substitution for the testatrix, in such a way as to fulfil her moral duty. If the estate is a large one, the Court has a slightly different approach. The basic principles are the same, that is, the will can only be affected to the extent that it is necessary to discharge the moral duty by making adequate provision for the plaintiffs, but where there is a large estate, competition between claimant and claimant, and claimant and beneficiary under the will is much reduced or eliminated. Further, there may be a more liberal assessment of the moral duty owed, to be reflected in what is proper provision for the plaintiffs. In particular, the lifestyle that has been enjoyed by the plaintiffs, because they have been associated with a wealthy testatrix, is a relevant factor." 176In Vigolo v Bostin, at 221, [51], it was noted that "in the case of large estates, provision can be made for the well-to-do". 177In McCann v Ward & Burgess [2012] VSC 63, Hargrave J, at [32], said: "...where the size of the estate permits and there will be no serious prejudice to the rights of other beneficiaries, the court may order further provision beyond the immediate and likely future needs of the applicant, providing a 'nest egg' to guard against unforseen events". 178Yet, it must also be remembered, as McLaughlin AsJ (as his Honour then was) stated in Lumb v McMillan [2007] NSWSC 386, at [26]: "The ample size of the estate does not justify the Court in being profligate in disposing of the assets of the Deceased and in awarding to each Plaintiff an amount which is more than that to which that Plaintiff would be entitled. The Court should do no more than remedy the failure on the part of the Deceased to make adequate provision for the proper maintenance of each Plaintiff." 179In 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". 180I 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 should 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. 181In addition, in each case, a close consideration of the facts is necessary in order to determine whether the bases for a family provision order have been established. Every case is different and must be decided on its own facts. As Lindsay J said in Verzar v Verzar [2012], at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]." 182Naturally, making comparisons of the quantum of orders in different cases provides little, if any, assistance in the determination of this case.

Further Additional Facts 183I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar [2012], at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered. (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship 184There 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. 185In 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". 186In 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." 187As stated, the Plaintiff was living with the deceased in a de facto relationship at the time of his death. They had met in June/July 1988. They moved in together in October 1988 and apart from, it would appear, a relatively short period in 2002, and when the deceased travelled overseas, they remained living together until the deceased's death about 24 years later. 188There is some suggestion that the relationship was not especially close and loving from the deceased's point of view. However, 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 the Plaintiff when they met. Similarly, I do not consider it important that the Plaintiff did not get on with the grandson. In any event, the duration of the relationship must be remembered. 189The Defendant, in submissions, provided the following summary of the periods of time the deceased travelled overseas during his relationship with the Plaintiff: Dates Departure/Arrival Number of days abroad 25 June 1995 Departure 38 days 2 August 1995 Arrival 31 July 2001 Departure 37 days 6 September 2001 Arrival 31 October 2001 Departure 443 days 17 January 2003 Arrival 7 October 2003 Departure 425 days 5 December 2004 Arrival 10 April 2005 Departure 234 days 30 November 2005 Arrival 2 June 2006 Departure 162 days 11 November 2006 Arrival 9 June 2008 Departure 72 days 20 August 2008 Arrival Total Days Abroad 1,412 days

Year Days in year From 1 August 2001 153 days 2002 365 days 2003 365 days 2004 366 days 2005 365 days 2006 365 days 2007 365 days To 20 August 2008 234 days Total: 2,579 days Less: Total days abroad 1,412 days Total days in Australia 1,167 days

190There was no dispute about the contents of these tables, which demonstrate significant periods spent apart between 2001 and 2006. Yet, the deceased returned, on each occasion that he travelled overseas, to Australia, and to the Plaintiff. 191Furthermore, during the period after 2007, the contribution of the Plaintiff to the welfare of the deceased, during periods of illness and hospitalisation, was significant. 192In all, the relationship of the Plaintiff and the deceased spanned 24 years. There appears to have been an intimate personal relationship and a sharing of life as a couple during this period. It may be said that her conduct, overall, demonstrated her commitment as a spouse, even though there was not the formality of marriage. (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 193There is no definition of the "obligations" or "responsibilities" to which the sub-section refers in the Act. One might conclude, however, that what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities owed to the applicant by the deceased. 194This matter may require a balancing of potentially competing obligations as between different applicants or, as here, as between an applicant and the other beneficiaries named in the Will of the deceased. 195As the Plaintiff was living in a de facto relationship with the deceased at the time of his death, an obligation or responsibility to make adequate provision for her proper maintenance or advancement in life is recognised: see, for example, Forsyth v Sinclair [2010] VSCA 147, per Neave JA, at [89]. The obligation or responsibility naturally arises from the de facto relationship. 196As Harper J, in Schmidt v Watkins [2002] VSC 273, at [22], concluded (quoting Statute Law Amendment Relationships Act 2001 (Vic) s 1(2)): "Generally speaking ... a 'domestic [relationship] where there is mutual commitment to an intimate personal relationship and shared life as a couple, irrespective of the gender of each partner' would be sufficient to bring either one of those partners within the class of persons to whom the other had responsibility." 197I have earlier referred to the nature and extent of obligations or responsibilities owed by the deceased person to an applicant in the position of the Plaintiff. 198In relation to the son, 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 (whether natural or adopted). In Flathaug v Weaver [2003] NZFLR 730, at 737, the origin of the obligation that 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." 199A similar obligation appears to exist in Croatia, where the son is making a claim for the statutory reserved portion of the deceased's Croatian estate. 200In O'Loughlin v O'Loughlin [2003] NSWCA 99, Davies AJA delivered the leading judgment and observed, at [20]: "Courts give more attention to the needs of a widow than they do to the needs of the children, if the children are adult and well able to support themselves. This point was made clear by the remarks of Lord Romer in Bosch v Perpetual Trustee Company Limited which I have cited above. There are many dicta to the same effect. In Worladge v Doddridge (1957) 97 CLR 1, Williams and Fullagar JJ said at 11: It is clear that the claim of a widow, where the estate is of considerable value, and there are no competing claims of children, should not be disposed of in any niggardly manner. She is entitled to such a provision for her maintenance and support as the court or judge thinks proper and 'proper' is a word which, as the Privy Council pointed out in Bosch's Case lets in all the considerations there adverted to." 201As a general rule, a grandparent does not have an obligation or responsibility to make provision for a grandchild; that obligation rests on the parent of the grandchild. Nor is a grandchild, normally, regarded as a natural object of the deceased's testamentary recognition. 202The same may be said for a great-grandparent's obligation to a great-grandchild. Certainly, no obligation was imposed upon the deceased by statute or common law to make provision for any of his lineal descendants. There is no suggestion that he assumed any particular obligation, and responsibility, towards any of them. 203In any event, because of the value of the Australian estate, competing claims are less likely to play a role in the determination of the Plaintiff's claim. (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 204I have earlier identified the nature and extent of the deceased's estate and the liabilities or charges to which the estate is subject. It is an estate with a large value. (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 205The Plaintiff owns premises at Dolls Point, with an estimated value of $1,050,000 together with shares ($55,322) and cash on deposit ($156,000). The deceased's car was sold for $700. The Plaintiff has a relatively new car that she purchased for about $18,000. In addition, she has an entitlement to be reimbursed some, or all, of the costs and disbursements that she has paid to her solicitors in relation to the conduct of these proceedings. 206(In addition, although the Plaintiff claimed, as against the estate, a loan amount of $50,000, together with interest of approximately $50,000, which the deceased did not repay, the parties agreed that the loan is statute- barred, but that I may take the amount advanced as a contribution by the Plaintiff.) 207The Plaintiff's monthly rental income was said to be $3,480. However, at the hearing, it became evident that the amount was the gross amount of rent. After payment of expenses met by the managing agent out of the rent, it is reduced to $2,585 per month. In addition, although it was not disclosed, the Plaintiff appeared to accept that she receives interest of $312 per month on the capital sum she has on interest bearing deposit, and about $166 per month from dividends. Thus, her total monthly income appears to be $3,063. 208The Plaintiff asserts that her monthly expenditure is approximately $2,947, made up of fixed expenses ($1,162) and variable expenses (about $1,785). This suggests a surplus of income over expenditure of about $116 per month. (However, the expenditure does not include income tax, if any, that she pays.) 209The Plaintiff's principal written submission was that she should receive the remaining one half interest in the Rose Bay property absolutely (which would have the effect of her owning the whole of that property absolutely) together with an additional capital sum ($300,000) for exigencies of life. She said that she would use some of that capital to travel to visit her family in Serbia, keeping the balance to provide an income and also to supplement the cash in bank that she has. I shall return to her alternative submission later in these reasons. (e) if the applicant is cohabiting with another person-the financial circumstances of the other person 210The Plaintiff is not cohabiting with any 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 211The Plaintiff appears to be in reasonable health although she does have osteoporosis. (g) the age of the applicant when the application is being considered 212The Plaintiff was born in December 1940 and is almost 74 years of age. (There is no dispute that the Plaintiff's life expectancy is in the order of 16 years.) (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant 213The contribution made by an applicant to the estate of the deceased has long been regarded as a significant factor. In Goodman v Windeyer, Gibbs J wrote, at 497 - 498: "One of the circumstances that must be considered in deciding upon the deserts of a claimant to a testator's estate, and in determining whether proper maintenance has been provided, is the manner in which that claimant has conducted himself or herself in relation to the testator. If the claimant has contributed to building up the testator's estate, or has helped him in other ways, that may give the claimant a special claim on the testator's bounty. This was recognized by Dixon CJ in Coates v National Trustees Executors & Agency Co. Ltd when he said that the natural claims of a son upon his mother's testamentary bounty were 'much strengthened by his cooperation and support in the conduct of her business and of her affairs'. Perhaps the most recent example in this Court of a case in which a son's claims have been strengthened for this reason is Hughes v National Trustees Executors & Agency Co. (Australasia) Ltd. There is, however, no reason in principle why a son should stand in a special position in this regard, and the authorities here consistently treated the fact that a claimant has rendered services to the testator as relevant in cases of this kind - whether the claimant be a daughter (Blore v Lang), a widow (E v E, discussed in In re Worms; Worms v Campbell) or a widower (In re McElroy). The claimant's conduct does not cease to be relevant if it has not been of financial benefit to the testator - if, for example, the labour has been in vain. If the claimant has made sacrifices on the testator's behalf, that is a circumstance to be considered even if no monetary saving or benefit for the testator resulted. Indeed, the very fact that a claimant has been a dutiful and devoted spouse or child is one of the relevant circumstances of the case to be considered together with all the other circumstances in deciding whether proper maintenance has been provided." 214The Plaintiff says that, at the request of the deceased, she resigned her employment in May 1989. She also says that, had he not asked her to resign, she would have worked until retirement if that had been possible. During their relationship, from 1989, she worked in the deceased's business, going to work with him six days a week. She says that she would carry out secretarial duties, would organise staff and look after supplies. At home, she did cleaning, cooking and gardening. She did minor maintenance. She looked after the deceased's dog. She entertained guests. Relevantly, the deceased did not pay the Plaintiff for work done at home or at the business. 215During the relationship, the Plaintiff says that she loaned the deceased various amounts of money - $11,275.00 (May 1992), $16,000 (October 1993), $15,000 (June 1999) and $50,000 (February 2003). With the exception of the final loan of $50,000.00, the loans were repaid in full. As stated, since the loan for $50,000 is statute-barred, it should be considered as a contribution made by the Plaintiff to the deceased. 216There is no evidence that she made any direct financial contribution, financial, or otherwise, to the acquisition, conservation and improvement of either the Rose Bay property or the Bondi property. The Bondi property was purchased by the deceased during his marriage to Ivka. Whilst the Rose Bay property was purchased in 2000, there is no suggestion of any financial contribution to the purchase price or renovation costs. 217I am satisfied that the Plaintiff made a significant contribution to the welfare of the deceased. She said, and I accept, that she played a significant role in caring for, and assisting, the deceased, later in his life, when he became ill. This is corroborated by the Defendant, who, in the deceased's eulogy, described the Plaintiff being "ever present" in the hospital when the deceased was hospitalised and stated that she "cared for him so fastidiously to his very last breath ... John would surely have not lived to the age he did without Zaga's great care for his diet and general health". (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 218There appears to have been some direct provision made for the Plaintiff by the deceased, during his lifetime, and out of his estate. Of course, she has lived in the Rose Bay property, rent and occupation fee free, throughout their relationship and since the deceased's death. During his lifetime, of course, this flowed from their relationship. Since his death, it appears to have been what the deceased wanted, at least for a short period after his death, as stated in the Will. 219Because she was able to live in the Rose Bay property, the Plaintiff has been able to rent the Dolls Point property. She accepted that she had never lived there, and that it had been rented, with all of the rent being received by her. 220The Plaintiff accepts that the deceased arranged for a second storey to be added to her property at Dolls Point. She estimates the value of the benefit given to her at $45,000. How that amount was calculated was not discussed. 221The Plaintiff is entitled, under the deceased's Will, to an amount equivalent to one half of the proceeds of sale of the Rose Bay property as at the date of death. The property, at that time, appears to have had a value of $3.2 million. Accordingly, the amount to which the Plaintiff is entitled under the deceased's Will is $1.6 million. In addition, she has received the contents of the Rose Bay property, his personal effects and his car. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person 222I have referred to the deceased's instructions given to the Defendant in regard to his testamentary intentions. Such statements of intention are a relevant consideration both in respect of the Plaintiff and in respect of the beneficiaries. (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 223The Plaintiff gives evidence that the deceased paid all of the expenses connected with the Rose Bay property and that he paid "for food and the like". He also paid for the Plaintiff's clothing when it was needed. I am satisfied that the Plaintiff was being maintained by the deceased during their relationship. (l) whether any other person is liable to support the applicant 224Apart from the Commonwealth government's responsibility to provide the Plaintiff with a pension, there is no other person with a liability to support her. Currently, it is not suggested that she receives any pension. (m) the character and conduct of the applicant before and after the date of the death of the deceased person 225An 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. 226I am satisfied that there is nothing in the Plaintiff's conduct not already referred to, before, or after, the death of the deceased, which is relevant. There is certainly no evidence of any adverse conduct that should be taken into account. (n) the conduct of any other person before and after the date of the death of the deceased person 227In relation to the deceased, I am satisfied that there is nothing in the conduct of any of the beneficiaries that is relevant. There is no suggestion of any particularly close relationship between the deceased and his great-grandchildren. However, it cannot be forgotten that they are the chosen objects of the deceased's testamentary bounty. (o) any relevant Aboriginal or Torres Strait Islander customary law 228This 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 229There is no other matter that I consider relevant.

Determination 230Being 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 the Plaintiff was living in a de facto relationship with the deceased at the time of his death. Accordingly, she is an eligible person under s 57(1)(b) of the Act. 231There is also no dispute that the Plaintiff commenced the proceedings within the time prescribed by the Act. 232Having established eligibility and that the proceedings were commenced within time, relevantly, the first question for determination is whether, at the time when the court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the Plaintiff, has not been made by the Will of the deceased. 233As stated, senior counsel for the Plaintiff submitted that the court should be satisfied that adequate provision for the proper maintenance, education or advancement in life of the Plaintiff, has not been made by the Will of the deceased. This was really not disputed by the Defendant. 234Taking into account all the matters, including such matters as the length, nature and quality of the relationship between the deceased and the Plaintiff; her character and conduct; circumstances relating to what once was called the "station in life" of the deceased and the Plaintiff, and the expectations to which that has given rise; or in other words, reciprocal claims and duties based on how the parties lived and might reasonably have expected to live in the future; her present and reasonably-anticipated future needs; her own capacity and resources for meeting those needs; the size and nature of the estate; the nature and relative strengths of the competing claims for testamentary recognition; and any contributions of the Plaintiff to the property, or to the welfare, of the deceased, I am satisfied, for the purposes of s 59(1)(c) of the Act, that the deceased did not make adequate provision for the proper maintenance or advancement in life of the Plaintiff. 235It is also clear that the Plaintiff has some "needs". As stated above, "need", in the context of the Act, is not determined by reference only to minimum standards of subsistence. Nor is it limited to whether the applicant has, at the date of hearing, an immediate need for financial assistance with respect to her maintenance. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. 236Age and state of health are factors to which, under the Act, the court may have regard. At the date of hearing, the Plaintiff is not an "able-bodied adult", in the sense that the expression is usually used in connection with family provision litigation. She is not someone who is, or will be, well able to earn enough, by her own exertions, to provide for her needs: Belfield v Belfield [2012] NSWSC 416, per Campbell JA, at [82]. She has no reasonable prospect of improving her income and, in the future, she may face the prospect of increasing costs of living associated with ageing and ill health. Whilst her health, currently, appears to be reasonably good, common sense dictates that, as she advances in years, her health and, possibly, her mobility, are likely to decline. 237Furthermore, the court cannot decide the question of the adequacy, or inadequacy, of the provision made in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive, or live comfortably. The word "proper" in the collocation of words in the section of the Act is of considerable importance. 238I also take into account that the Plaintiff has the Dolls Point property, which provides her with a reasonable monthly income which is sufficient to meet her current expenses. It could provide an additional capital sum if that were required, but then her income would be reduced. 239I turn then to s 59(2), namely the question what provision "ought to be made for the maintenance, education or advancement in life" of the applicant having regard to the facts known to the court. The order should be no more than is necessary to make adequate provision for her proper maintenance and advancement in life. Furthermore, I must take into account the right of the deceased to dispose of his property as he did in his Will, as well as the position of the chosen objects of the testamentary bounty of the deceased, namely the beneficiaries named in the Will. 240As stated earlier, the principal submission made by senior Counsel for the Plaintiff was that she should receive the whole of the balance of the interest in the Rose Bay property absolutely, as well as a capital sum of $300,000. This was really the only submission initially made on her behalf. 241Following this submission being made, I raised the alternative that adequate provision might be made by the court making a Crisp order in the balance of the deceased's interest in the Rose Bay property together with a capital sum. I asked the legal representatives to consider whether this would enable the Plaintiff to continue to live in the Rose Bay property for as long as she wished whilst, at the same time, preserving the intention of the deceased that the interest in that property should pass to his great-grandchildren. 242Counsel then sought instructions on the question whether the Plaintiff, in the event that she did not receive the interest in the Rose Bay property absolutely, should receive a Crisp order or whether each party considered that a capital sum, determined as a percentage of the net proceeds of sale of the Rose Bay property, should be provided to her by way of a family provision order. 243After obtaining instructions, senior counsel repeated that the Plaintiff's principal submission was as set out above, but that, if the court did not accept that submission, then, the Plaintiff would prefer that the right to reside granted in the Will be extended for an additional two years from the date of hearing; that, then, the Rose Bay property should be sold; and, from the proceeds of sale, she should receive an amount calculated as 80 per cent of the net proceeds of sale. She would also seek an additional sum of $250,000. (Ultimately, senior Counsel submitted that the amount that the Plaintiff should receive should be calculated at 90 per cent of the net proceeds of sale of the Rose Bay property rather than by way of two amounts.) 244Senior counsel submitted that, during the period of her continued occupation, the residuary estate should bear the burden of the outgoings on the Rose Bay property, other than the costs of electricity, gas and telephone. 245Counsel for the Defendant acknowledged that that the Plaintiff has established social roots in the Rose Bay area and conceded that it was appropriate that she remain living in the area. However, he did not accept that she had a proper basis for asserting a need to receive the Rose Bay property absolutely or that she had a "need" for such a large home. 246He submitted that a capital sum of $2.0 million, to enable her to purchase alternative accommodation in the Rose Bay area, would provide adequate and proper provision in all the circumstances. He conceded that an additional $100,000, by way of capital sum, would be proper and adequate for exigencies of life. Otherwise, he submitted, that her assets and income were sufficient to enable her to live in comfort. 247Having obtained instructions on the question of a Crisp order, counsel for the Defendant, in the alternative, did not advance any contrary submission in regard to the additional period sought during which the Plaintiff should be permitted to remain in occupation of the Rose Bay property. Fairly, if I may say, he accepted that, in all the circumstances, the residuary beneficiaries would not be detrimentally affected by permitting the Plaintiff to continue to reside in the Rose Bay property for the period sought. He then submitted that, in addition, the Plaintiff should receive an amount equal to 66 per cent of the net proceeds of sale of the Rose Bay property when it was sold. He submitted that such an amount would enable her to purchase, and hold in her own name absolutely, alternative accommodation. Otherwise, such a sum would provide income that she could use for her own purposes. 248I do not accept the Plaintiff's principal submission that she should receive the balance of the deceased's interest in the Rose Bay property absolutely together with an additional capital sum. The Rose Bay property is simply too big for one person and it will continue to require significant maintenance. The Plaintiff does not "need" such a large home absolutely. In this regard, I refer to the difference between "need" and "want" earlier referred to. 249I had considered the provision of a Crisp order in the deceased's interest in the Rose Bay property, which type of order would enable her to decide when, or if, she vacates it and moves to alternative accommodation. However, having heard the alternative submission of each counsel, I am prepared to accept that, whether justified or not, the parties do not wish to be tied together for the remainder of the Plaintiff's life and that they both consider that an amount, calculated by way of a percentage of the net proceeds of sale of the Rose Bay property, would be in the interests of the Plaintiff and also of the residuary beneficiaries. 250I accept, also, that the Plaintiff should be given the opportunity to consider, and decide upon, the nature of the alternative accommodation that would best suit her. In my view, to allow her an additional period of up to two years accommodation in the Rose Bay property from the date of orders being made, will enable her to consider her future and where she wishes to then live. By that time, she will be almost 76 years of age. (Of course, if she chooses to leave before then, she may do so. In the event of her death, the Rose Bay property may be sold.) 251During her continued occupation of the Rose Bay property, the residuary estate should bear the burden of the outgoings other than the costs of electricity, gas and telephone. 252Then, that leaves the amount of the capital sum that ought to be provided by way of family provision order. I accept that, if the Plaintiff purchases alternative accommodation, she will require (on present estimates) about $2.0 million. There will also be stamp duty payable on the contract ($95,510) and associated costs and expenses of moving, the total of which I shall estimate to be a little more than $100,000. Thus, the costs and expenses of obtaining the alternative accommodation, on current estimates, will be in the order of $2.1 million. 253In addition, I accept that the Plaintiff needs an additional capital sum for exigencies of life and to provide a modest additional income to supplement her current income. In this regard, the size of the estate of the deceased should not be forgotten. 254In my view, the Plaintiff should receive, in lieu of the amount referred to in Clause 3(a) of the Will of the deceased, an amount equivalent to 80 per cent of the net value of the Rose Bay property as at the date of sale, as well as the right to occupy the property rent free for a period of up to two years after the date of these orders. By way of guide, and assuming a sale price of $3.3 million and costs and expenses of sale of about $100,000, the percentage equates to about $2.56 million. 255Using the same estimates, the residuary beneficiaries will receive about $640,000. When added to the value of their entitlement to a share of the Bondi property, each will, in due course, receive a substantial inheritance. 256There was no dispute that the usual costs order for each party should be made. In my view, the costs should be borne out of the residue of the estate rather than out of the proceeds of sale of the Rose Bay property. 257I invite the parties, within 14 days, to bring in Short Minutes of Order consistent with, and reflecting, these reasons. I order that the proceedings be stood over to a convenient date to make orders. 258The Short Minutes of Order should also deal with the return of the exhibits and the Court Book.

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: 30 October 2014