(a) both sub-ss 9(1) and (2) require an applicant, affirmatively, to establish factors sufficient to engage the Court's power;
(b) in each case a multi-faceted evaluative judgment is required which is dependent, at least in part, on the application of community standards and expectations;
(c) in each case the criteria to be applied are largely unconstrained, imprecise and may readily give rise to differing views, which may reasonably be open and appropriate.
17 The Appellant recognised these burdens, but nevertheless contended that the primary judge approached his task in forming the necessary opinion or state of satisfaction on an erroneous basis.
(3) Was the application warranted?
18 Each issue to be determined by his Honour involved identification of the relationship between the Appellant and the deceased over the course of their lives. Having determined that the Appellant fell within the definition of "eligible person", the second issue, in logical order, was whether there were factors which warranted the making of the application, for the purposes of s 9(1). Central to that issue was an assessment of the family relationship between the Appellant and the deceased. As a stepdaughter, she was potentially an appropriate object of testamentary recognition; the circumstances of the relationship were the primary consideration in determining whether that potentiality had crystallised, so as to warrant the making of the application.
19 A significant part of the evidence in this respect, and it would appear a primary focus at the trial, concerned the household circumstances of the Appellant as a child. That was because there was a dispute as to whether the Appellant was an eligible person within par (d), the Respondents arguing that she had, even while living in the same household as the deceased, been dependent upon her mother and not the deceased. Although the Appellant was successful in that respect, the focus on that particular issue may, it was suggested, have distracted the primary judge from consideration of the degree of ongoing contact between the Appellant and the deceased over a further period of some 20 years whilst her mother was still alive and still married to the deceased. By the same token, eligibility no longer being an issue, the early years of the relationship must not be forgotten.
20 The Appellant, who was born in September 1951, lived with her mother until she left home to get married in March 1971. Her mother and the deceased were married in March 1969, but appear to have been living together, with the Appellant and her brother, since at least 1964.
21 His Honour accepted that the Appellant was at least partly dependent upon the deceased over a period of some seven years from 1963/64 until 1971 and implicitly accepted that the relationship was "in the nature of a daughter to a father" at that time: at [75] and [88]. However, it is clear that the relationship did not end with the Appellant's marriage in 1971. The Appellant went overseas (apparently in 1975) and was seen off at the airport by the deceased, although he did not usually go out in public because he had lost his legs in an accident. The Appellant also gave evidence, which was not disputed, that he sent her money when she was in Italy and had run out of funds.
22 In 1979 the deceased visited the Appellant in hospital at the time of the birth of her first child.
23 In 1982 the Appellant's mother was ill and spent some time in hospital. The Appellant stayed with the deceased whilst her mother was in hospital.
24 The Appellant's mother died in March 1995.
25 The Appellant had two children by her current marriage, the first, a son born in 1987, and the second a daughter, who is apparently younger, but is now in the workforce. The Appellant gave evidence that, whilst the children were at school in Nowra, she did canteen duty approximately once or twice each month during the school term and would visit the deceased's home on that day. That appears to have been in a period after her mother's death, but her own affidavit is somewhat vague as to dates and, in cross-examination, little attention was given to the period from 1975 until 1995. The focus of the cross-examination was to establish, successfully, the basis for a significant diminution in contact thereafter, to which reference will be made below.
26 The primary judge made a finding that the Appellant and the deceased had "relatively little contact" after her mother's death in March 1995: at [89]. At [90] his Honour stated:
"The Plaintiff [Appellant] may have been treated by the Deceased as a daughter from about 1963 until about 1971, for a period of about eight years. Once the Plaintiff married the nature of their relationship changed. I am not satisfied that the fact that the Plaintiff had been a member of the same household as the Deceased and had been partly dependent upon the Deceased during a period of about seven years which had ceased almost 34 years before the death of the Deceased, constitutes a factor which warrants the making of the present application."
27 The reasoning in this paragraph was challenged by the Appellant, with some justification. It is trite to say that the relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support as the close bonds of childhood are relaxed. Nor does acrimony or estrangement necessarily destroy those bonds: see Foley v Ellis. The degree of contact which was maintained between the Appellant and the deceased between 1975 and 1995 was not explored in the evidence in any detail. However, there was no finding that it was other than a normal relationship between adult daughter (or stepdaughter) and father. Indeed, the continuation of the family relationship (though perhaps on somewhat strained terms) is confirmed by the events which followed the death of the Appellant's mother. Under her will, she left certain furniture to her daughters (including the Appellant) and a half-interest in her former home at Macquarie Fields to the first of the Appellant's sons, being the mother's grandson. Her residuary estate was left to her son and two daughters equally. Her husband, the deceased, received only the remaining contents of her home, subject to payment of the funeral account.
28 The deceased disputed the will, as a result of which a deed of settlement was concluded in 1997. The details of the settlement were largely inconsequential so far as the Appellant was concerned, and involved the deceased obtaining an interest in the only valuable item in her mother's estate, namely the property at Macquarie Fields. However, in her affidavit in the present proceedings, the Appellant stated (par 21):
"At the time that the deceased made the claim for a greater share of mother's estate we had a number of conversations. I recall that I said to the deceased, 'Why are you doing this? Mum left the house to two grandsons.' The deceased said, 'It's not right that she gave only a share to Dylan and left out your other children. It's in your best interests to let me go ahead with this claim because your kids will end up with my share when I go. Besides, your mother and I always said that you would get this house.' Dylan is my eldest son."
29 The Appellant also gave evidence of a conversation subsequently at the deceased's home in which he said that he had changed his will and left her the house and "looked after" her two youngest children. She stated that she and her sister had agreed to leave with the deceased their mother's furniture for so long as he needed it.
30 This evidence does not appear to have been challenged in cross-examination, but neither was it referred to by the primary judge. It demonstrated a continuing familial relationship, even though the interactions arose in the context of disputation. At the very least, his Honour ought to have taken account of the fact that the father/daughter relationship continued from approximately 1963/64 until 1997, a period of some 33 years.
31 The relationship did not, however, end in 1997. On occasion, the very terms of an estrangement can constitute evidence of an ongoing relationship. In the present case, the deceased made a new will in 2004 (being the will which disposed of his estate on his death) in which, apart from close friends who had supported and assisted him through his illness, the only beneficiaries were members of his family, namely two nephews, a niece and the Appellant. As the primary judge noted, the deceased made provision in his will for the Appellant by way of a legacy in the sum of $20,000. His Honour took that into account in assessing the adequacy of provision: however, it also provided acknowledgement of an ongoing relationship by which the Appellant had a claim on the deceased's bounty.
32 Further, a central element in the estrangement was the fact that the Appellant did not know that the deceased was suffering from cancer for the last 18 months of his life. That ignorance was undoubtedly in part a product of her indifference. It was also, however, in part a result of the decision of the deceased that she not be informed. With respect to the first element (the Appellant's indifference and failure to contact the deceased), his Honour noted that the reasons she gave were no more than "merely excuses": at [89]. Such a categorisation bespeaks a failure to do that which was expected, the expectation constituting an indicium of an ongoing relationship. In relation to the latter element, the decision of the deceased not to inform the Appellant of his illness bespeaks an intention to flout expectations which themselves must be based upon an ongoing relationship.
33 This was not, as might be inferred from his Honour's reasoning, an ephemeral relationship abandoned long ago by mutual indifference or persuasion. It was a long-standing relationship, the terms of which evolved, no doubt with some weakening of the bonds, as circumstances took them apart. The question whether the estrangement of the last five years should result in no order for provision was a matter to be assessed by the Court under sub-ss 9(2) and (3). For the purposes of s 9(1), that which potentially qualified the Appellant as an applicant under par (d) of the definition of "eligible person" had long since progressed to a stage where the Appellant was in a position analogous to a child of the deceased and a natural subject of testamentary recognition, thus warranting the making of the application.
(4) Adequacy of provision
34 The next question required to be addressed was the adequacy of the provision made by the deceased in favour of the Appellant, both during his lifetime and out of his estate. The object of the provision must be the proper maintenance, education and advancement in life of the Appellant. The term "provision" 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. In the present case, the Appellant was 56 years of age at the time of the trial and had not been in receipt of financial or other support from the deceased since she left her childhood home. The question therefore focused upon whether the provision made by the deceased in his will, being the bequest of $20,000, constituted adequate provision for the Appellant at that stage in her life. This in turn properly led to a consideration of the Appellant's financial circumstances.
35 His Honour concluded that he was not satisfied that the provision was inadequate: at [85]. In reaching that conclusion his Honour appears to have given consideration to two separate factors, namely whether additional provision would assist her as opposed to benefiting her creditors (a point identified at [78]) and whether her conduct was such as to make it appropriate to interfere with the deceased's exercise of his testamentary powers: at [82].
36 Ultimately the question of adequacy must be assessed in the circumstances of the case, having regard to the size of the estate, the needs of the claimant and the interests and needs of others who were the object of testamentary recognition.
37 At the date of judgment below, his Honour estimated that the estate was worth approximately $624,000: at [5]. No degree of precision is helpful in that respect, as there will be amounts by way of interest to be added and costs to be deducted. On the hearing of the appeal, three further affidavits were filed with respect to the estimates of legal expenses and the current position of the estate. The assets of the estate having been realised (and debts presumably paid) each of the $20,000 bequests has also been paid, other than the one due to the Appellant. Further, $98,000 has been distributed to each of the three residuary beneficiaries. The balance held by the executors is approximately $314,000. Estimates of legal costs were ambiguous, in that there was no clear indication as to whether all the costs incurred up to the judgment in the Equity Division had been paid out of the estate, to the extent that the orders below so required. In any event, the orders proposed in this Court will involve the payment of some further costs out of the estate.
38 In assessing the Appellant's needs, the primary judge noted that her financial circumstances were not as clearly revealed in the evidence as might have been wished: at [16]-[20].
39 The Appellant lives in Ulladulla and works, with her daughter, in a take-away food business known as "Blue Waters Takeaway". She and her husband also own a business known as "Sweets on the Park" which is run by her son. Her husband, Mr Brian Diver, conducts a drainage business in Sydney and lives during the week in rented accommodation at Oxley Park. Some at least of the properties which the Appellant said were owned by her husband and herself were owned through a family trust, but nothing appears to have turned on that. Apart from the residential home and the takeaway and sweets shop businesses, the Appellant and her husband owned units at North Street, Ulladulla and a factory unit in Minchinbury. The latter properties provided a rental income of $3,518 per month: at [26]. There is substantial indebtedness secured against the three properties and the two businesses: at [23].
40 Her husband did not give evidence about his business affairs, but the Appellant, who kept the books for the drainage business, did. His Honour made no finding as to whether she was a partner in the business, but noted that she had guaranteed at least part of the indebtedness of the business: at [47]. Her husband had been bankrupted during a business downturn in 1994, at about which time she had also been bankrupted: at [29].
41 Although her initial affidavit suggested that she and her husband jointly enjoyed a net equity in their properties and businesses of approximately $470,000 (at [24]), as the evidence was elaborated upon during the course of the hearing, the situation appeared to be less promising. His Honour's assessment of the Appellant's financial affairs was summarised as follows:
"[42] The Plaintiff estimated that her total living expenses were in an amount of $225 a week and that those of her husband were in a total amount of $480 a week. She estimated that the monthly commitments and expenditure of the Trust, of the various businesses, as well as the foregoing expenses of her husband and herself, were in a total amount of $18,327. She further estimated that they had a shortfall of expenditure ($18,327) over income ($17,948) of almost $380 a month.
[43] The Plaintiff referred to present outstanding liabilities in respect to land tax ($17,067); indebtedness to the Australian Taxation Office (in an estimated amount of $50,000); penalty to the Australian Taxation Office ($27,000); GST liabilities (in an estimated amount of $25,290); and an amount presently owing to the Adelaide Bank of $16,452. Those liabilities totalled $135,809."
42 In describing the use which would be made of any additional distribution from the estate, his Honour noted that the residence at Ulladulla and the rental property at Oxley Park "are expensively furnished, the value of their contents being in a total of $200,000": at [44]. This figure was disclosed as the value of furnishings insured, but for both properties and not for each property. In this respect his Honour was in error, as was conceded by the Respondents on the appeal, but the error appears to have been innocuous.
43 With respect to the balance of assets over liabilities, there was evidence that the home in Ulladulla had been on the market at $379,000, being $21,000 below the estimated value. The factory unit at Minchinbury had also been on the market and an offer of $232,000 rejected. The offer was $68,000 below the estimated value. Whether the estimated values of the businesses were accurate is not known. However, taking into account the total liabilities referred to above and the shortfall of expenditure, which had seen the Appellant's credit card debt blow out from $45,000 in August 2006 to $81,000 at the time of trial, approximately a year later, these figures suggest that while there may be some equity in the family assets, of which the Appellant presumably holds a 50% interest, the amount is likely to be significantly less than $470,000 revealed by her affidavit.
44 It would appear that the primary judge came to a pessimistic view about the Appellant's financial circumstances. As will be seen below, he was of the view that even if the Appellant had otherwise established her claim for provision, no order should be made because "any additional provision which might be made for the Plaintiff would have the practical effect, not of providing for the Plaintiff's advancement in life, but of benefiting the creditors of the Plaintiff and her husband": at [92]; see also [76] and [78].
45 It thus appears that his Honour accepted that the Appellant had pressing financial needs, that being a material consideration in assessing the adequacy of provision under the deceased's will.
46 In the course of addressing that question, the primary judge referred to the Appellant's "asserted financial difficulties": at [82]. He also referred to the submission, which was neither expressly accepted or rejected, that the financial position of the Appellant and her husband "is on a knife's edge": at [76]. Despite the ambivalence of this language, it should not be inferred that his Honour did not consider that the Appellant had financial difficulties, nor that he disregarded them.
47 It appears that his Honour gave greater weight to the fact that she obtained a significant bequest under the will and that she had apparently abandoned interest in the deceased in his later years, when he was most in need of support: at [83]-[84]. These were undoubtedly significant factors, which could not be disregarded. One aspect of those concerns was a statement signed by the deceased on the day of his will (19 January 2004) which was witnessed by the attesting witnesses in the will and was in the following terms:
" To: Kate [sic] Diver
In case you are thinking of contesting my will, my reasonings are:-
s You wanted your mother's ashes buried in my backyard so you and your kids could visit on birthdays. Your kids have never been near them.
s You said you would come up once a month to do my shopping and draw money for me.
s You say you never come past this way but you know better. Friends see you at the races often and my house is only 5 minutes from the highway."
48 The findings made by his Honour with respect to the latter years of the deceased's life, which were not challenged by the Appellant, were, chronologically, in the following terms (at [89]):
"Despite the Plaintiff's assertion that she maintained regular and frequent contact with the Deceased after the death of the Plaintiff's mother in 1995, I am satisfied that there was relatively little contact between them from that time. It is quite apparent that, if the Plaintiff had so wished, she could have maintained far greater contact than she did with the Deceased in his declining years. I am satisfied that from 2000 onwards the Plaintiff's contact with the Deceased was minimal."
49 As his Honour also noted, the Appellant "ultimately agreed that she had had no contact with the deceased after 2003, that is, for the last year and a half of his life. … The Plaintiff conceded that she did not choose to have any contact with the Deceased in the last eighteen months of his life, or to make any enquiry about him of friends and neighbours during that period, or, indeed, for five months after his death". These were factors which, as the Appellant accepted, properly weighed heavily against a conclusion that the provision made by the deceased was inadequate.
50 In order to establish error, complaint was made of the following passage in his Honour's reasoning at [81]:
"It should be appreciated that the Plaintiff must establish her own claim upon its own merits. She cannot enhance her claim by, for example, establishing, if such be the case, a lack of contact between the Deceased and the beneficiaries. As the chief chosen objects of the testamentary beneficence of the Deceased, they do not need to prove anything."
51 As the Appellant noted, a similar view had been expressed by the primary judge in Foley v Ellis [2007] NSWSC 1277 at [89]-[90]. When that matter came on appeal, Foley v Ellis [2008] NSWCA 288, Sackville AJA (Beazley JA agreeing) stated at [90]:
"That observation is not consistent with the statutory requirement that the competing claims of all potential beneficiaries must be taken into account in determining whether the [applicant] has been left without adequate provision for her proper maintenance and advancement in life."
52 I was not inclined to accept that the inference to be drawn from the impugned remarks was that the trial judge had treated "the respective claims of the applicant and her siblings as irrelevant to an assessment of the adequacy of the provision made for her by her mother": at [9]. Similarly, in the present case, which was determined before the judgment of this Court in Foley v Ellis, I am not inclined to infer any error or misunderstanding of the principles, otherwise correctly identified by his Honour, from this language. Further, the primary judge set out in some detail the evidence concerning the other beneficiaries, in a passage commencing with the following proposition at [49]:
"The claim of the Plaintiff must be viewed in the light of competing claims upon the testamentary bounty of the Deceased"
53 After setting out their financial circumstances and whether and to what extent their health was impaired, his Honour concluded with the following comment at [61]:
"Each of the foregoing residuary beneficiaries gave evidence concerning the extent of his or her contact with the Deceased, especially in the later years of his life. Each of those beneficiaries disputed the evidence of the Plaintiff concerning the nature and extent of her contact with the Deceased, especially in his later years."
54 At no stage did his Honour suggest that such evidence was immaterial or irrelevant. Rather, he was seeking to emphasise that an applicant for provision from an estate bears the burden of persuading the Court of the propriety of interfering with the testamentary intentions of the deceased, in his or her favour. To emphasise the primacy of the relationship between the claimant and the deceased, so long as it is not to the exclusion of other relevant considerations, does not demonstrate error. Furthermore, each judgment must be read in its own context and a passage in largely identical terms in separate judgments may not carry the same flavour or connotation in each.
55 It was further contended that his Honour gave excessive weight to the value of the bequest included in the will. The bequest of $20,000 must be seen in the context of an estate which realised over $650,000. So viewed, his Honour's assertions that the bequest of $20,000 "must not be overlooked" - at [77]; was not "in any way a nominal or derisory benefit" - at [83]; and was a "not inconsiderable legacy" - at [96]; failed to reflect the long-standing relationship of stepdaughter and father, even taking into account the circumstances since 2000. It is true that the bequest was neither "nominal" in amount, nor was it to be ignored. On the other hand, it constituted some 3% of the estate. Whether the testator realised that is not known.
56 Further, whilst the testator had his reasons for largely excluding the Appellant from his will, and the terms of any earlier will are not known, the reasons given express a degree of bitterness, no doubt understandable, but reveal a view of the circumstances which must be weighed in the light of all the facts, as known to the Court. For example, other evidence did not demonstrate (nor did the Appellant accept) that she made frequent visits to the races, passing the turn-off to Woollamia where the deceased lived. There was also some evidence that the bitterness may have been caused by a belief that the Appellant had sought to value the deceased's house while he was still alive, again being an allegation which the Appellant denied and which was not shown to be correct.
57 By way of an amendment made at the commencement of the hearing of the appeal (without objection) the Appellant separately took issue with the adequacy of the reasons given by the primary judge for his conclusions. In the present context, the complaint was that in finding no inadequacy of provision, there was "no weighing up of the size of the estate, the claims of the non-eligible persons, or the beneficiaries, the claim of the plaintiff and a reasoning process as to why, in all the circumstances, this person should receive nothing, because twenty thousand is enough": Tcpt, NSWCA, 04/03/09, p 6. However, a preferable reading of his Honour's reasons is that he stated, with clarity, the factors which he did take into account in reaching the conclusion under challenge. All the relevant factors had been noted and assessed, so far the evidence permitted, but the real reason why his Honour was not satisfied as to the inadequacy of the provision was that which he identified, namely the effective abandonment of the deceased by the Appellant in the declining years of his life. The real question is whether that provided a sufficient reason for failing to be satisfied or whether, on the other hand, he had failed to give appropriate weight to other factors which, in the circumstances, deserved greater weight.
58 The circumstances in which the Court should properly intervene in exercise of its statutory jurisdiction are incapable of precise definition. Even the linguistic analysis tends to be contentious, as revealed by the judgments in Vigolo v Bostin. In McCosker v McCosker, in a passage quoted by Gleeson CJ in Vigolo, Kitto J stated at 580:
"This is the kind of case in which it would be much more pleasant to be open-handed with the testator's estate than to confine oneself to the jurisdiction under the Act. But even if I felt sure that I understood the whole situation so well that I could deal with the estate more justly than the testator dealt with it, I should still not feel justified in asserting that when he decided to give the respondent no more than he had already given him, and to leave his estate to members of the family who had been closer to him and to whom he had his own reasons for being generous, he failed to recognise a moral duty which lay upon him."
59 Again, in a passage quoted by Gleeson CJ in Vigolo, Fullagar J stated in In re Sinnott, deceased [1948] VLR 279 at 281:
"In the case of an adult son, who has received an education and is well able to earn his living, the father's moral obligation can probably in most cases be regarded as discharged, and a wise and just testator may well feel himself at liberty (to use the words of Sir John Salmond) 'to do what he likes with his own'."
60 Those dicta would justify a cautious approach to intervention on the part of the primary judge in the present case.
61 There will be cases in which intervention in the distribution of the estate will be justified on the basis that the testator was not fully aware of all the relevant circumstances when he or she made his or her will: see, eg, In re Allen (deceased); Allen v Manchester [1922] NZLR 218 at 220-221 (Salmond J). On the other hand, too much weight should not be given to the testator's expressed intention. The Court is not limited to considering the circumstances as they existed when the will was made, or when the testator died. Rather, s 9(2) requires the adequacy of provision to be determined as at the date of the hearing of the application. Furthermore, whatever the semantic phraseology, the authorities are unanimous that the Court is required to apply an objective standard in assessing the adequacy of the provision made.
62 Applying these principles, the Appellant's case may be identified in the following terms. The primary judge,