DIVER v NEAL

(3) The Respondents pay the Appellant's costs of the appeal.

(4) The Respondents be entitled to retain from the estate the costs payable under order (3) and their own costs of the proceedings on appeal, assessed on an indemnity basis, to the extent that those costs are not recoverable from the Suitors' Fund.

(5) Grant the Respondents a certificate under the Suitors' Fund Act 1951 (NSW).

[ CATCHWORDS: APPEAL - exercise of discretionary power - basis of appellate intervention - whether trial judge gave sufficient reasons for failing to be satisfied that testator's provision inadequate or failed to give appropriate weight to factors - Family Provision Act 1982 (NSW), s 9(2) - COSTS - payment out of estate - costs consequences for different categories of eligible person - whether costs necessarily follow event - where order for provision in favour of eligible person - costs of executors defending estate - Family Provision Act 1982 (NSW), s 33 - SUCCESSION - family provision and maintenance - "eligible person" - whether application warranted - whether testator made adequate provision for applicant's maintenance and advancement - whether further provision should be made - size of estate - community standards - stepdaughter/stepfather relationship - early and later years of relationship - whether additional provision to benefit applicant or creditors and children - applicant's financial circumstances - whether appropriate to interfere with testator's exercise of testamentary powers - consequences for residuary beneficiaries - Family Provision Act 1982 (NSW), ss 6, 7, 9 - STATUTORY INTERPRETATION - assumption that Family Provision Act 1982 (NSW) applies as in force at date of trial - Act repealed at time of appeal - whether assumption applies in relation to costs provisions - Interpretation Act 1987 (NSW), s 30(1)(b) - Succession Act 2006 (NSW) Ch 3 - Succession Amendment (Family Provision) Act 2008 (NSW) - STATUTORY INTERPRETATION - competing costs provisions - s 33 of Family Provision Act 1982 (NSW) substitute for s 98 of Civil Procedure Act 2005 (NSW) and Part 42 of Uniform Civil Procedure Rules 2005 (NSW) - WORDS AND PHRASES - "advancement" - "eligible person" - "inadequate" - "maintenance" - "provision"

Civil Procedure Act 2005 (NSW), s 98 Family Provision Act 1982 (NSW), ss 6, 7, 9, 33 LEGISLATION CITED: Interpretation Act 1987 (NSW), s 30 Succession Act 2006 (NSW), s 99; Ch 3 Uniform Civil Procedure Rules 2005 (NSW), Pt 42

Caska v Caska [1999] NSWSC 289 Churton v Christian (1988) 13 NSWLR 241 Civic Workers Plus Pty Ltd v Hill [2000] VSCA 61; 1 VR 640 Foley v Ellis [2007] NSWSC 1277 Foley v Ellis [2008] NSWCA 288 Galvin v Forests Commission of Victoria [1939] VLR 284 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; 143 CLR 134 In re Allen (deceased); Allen v Manchester [1922] NZLR 218 CASES CITED: In re Sinnott, deceased [1948] VLR 279 Jackman v Dandenong Sewerage Authority (No 2) (1967) 20 LGRA 413 McCosker v McCosker [1957] HCA 82; 97 CLR 566 Re Fulop Deceased (1987) 8 NSWLR 679 Singer v Berghouse [1993] HCA 35; 67 ALJR 708 Singer v Berghouse [1994] HCA 40; 181 CLR 201 Skinner v Frappell [2008] NSWCA 296 Varnel v Heyes [2008] NSWSC 978 Vigolo v Bostin [2005] HCA 11; 221 CLR 191

TEXTS CITED: Pearce DC and Geddes RS, Statutory Interpretation In Australia (6th ed, 2006) at [10.20]-[10.23]

Kaye Aileen Diver (Appellant) PARTIES: John Neal (First Respondent) Jan Sim (Second Respondent)

COUNSEL: R Brender/G A Elliott (Appellant) M Gorrick (Respondents)

SOLICITORS: Kennedy & Cook Lawyers (Appellant) Morton & Harris RMB Lawyers (Respondents)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT JUDICIAL OFFICER: McLaughlin AsJ

LOWER COURT MEDIUM NEUTRAL CITATION: Diver v Neal [2008] NSWSC 304

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40197/08 SC 3785/06

ALLSOP P IPP JA BASTEN JA

18 March 2009 Kaye Aileen DIVER v John NEAL & Anor Headnote

The Appellant was the stepdaughter of the deceased, who died on 22 May 2005. By a will, dated 19 January 2004, the deceased left four legacies of $20,000: one to the Appellant and three to three couples. The residue of the estate was to be divided equally between two nephews and a niece. The Appellant sought a redistribution of the estate by making a claim under the Family Provision Act 1982 (NSW) ("the Act"). Her application was dismissed by McLaughlin AsJ. The Appellant appealed to the Court of Appeal.

(i) whether there were factors which warranted the making of the application, within the requirements of s 9(1) of the Act; (ii) whether the deceased's provision for the Appellant was adequate, within the requirements of s 9(2); and (iii) whether the Court should make some further provision, and, if so, in what amount.

The Court held, allowing the appeal (Basten JA, Allsop P and Ipp JA agreeing):

For the purposes of s 9(1), the relationship between the Appellant and the deceased had long 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: [33].

Consideration of the adequacy of provision made by a deceased person requires reference to community standards, the parties' family relationship, the extent of the estate and the circumstances and claims of the testamentary beneficiaries: [13], [36]. McCosker v McCosker [1957] HCA 82; 97 CLR 566, applied.

The trial judge gave undue weight to the testator's expressed intentions, without properly weighing the Appellant's financial needs against her indifference and lack of support in his later years; failed to giver proper weight to the absence of close familial connection between the deceased and residuary beneficiaries, and these beneficiaries' lack of pressing financial needs; and failed to assess the $20,000 provision in the context of an estate which realised over $650,000 net of expenses: [57], [62]. McCosker v McCosker [1957] HCA 82; 97 CLR 566; Vigolo v Bostin [2005] HCA 11; 221 CLR 191; In re Sinnott, deceased [1948] VLR 279, considered. In re Allen (deceased); Allen v Manchester [1922] NZLR 218, referred to.

The primary judge dismissed the financial circumstances of the Appellant on the basis that if further provision were made, it would not assist her personally, but only the creditors. In that way, the trial judge gave little or no weight to a critical element in the assessment of adequate provision; therefore, the lack of satisfaction as to inadequacy should be set aside. The deceased's provision for the Appellant was inadequate: [63].

The Appellant's wish to provide deposits which would allow her two children to obtain housing may be seen to be a life goal, should her own financial circumstances permit. That goal did not mean further provision would not benefit the Appellant: [67].

A financial benefit in circumstances where an applicant's business interests require an injection of capital may be of great assistance in permitting advancement in life. The fact that the benefit goes to paying off creditors does not diminish the benefit to the applicant: [1], [69]. Caska v Caska [1999] NSWSC 289, obiter not followed. Varnel v Heyes [2008] NSWSC 978, referred to.

The effect upon the interests of the residuary beneficiaries is not, of itself, a reason not to make provision: [70].

It is entirely proper to allow for a significant diminution in the Appellant's share by reason of the failure to maintain the relationship after 2000: [72].

Additional provision made out of the estate in favour of the Appellant of a further $60,000 to be borne equally by each residual beneficiary: [73].

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40197/08 SC 3785/06

ALLSOP P IPP JA BASTEN JA

18 March 2009 Kaye Aileen DIVER v John NEAL & Anor Judgment 1 ALLSOP P: I agree with the orders proposed by Basten JA and with his Honour's reasons. I would only wish to add the following by way of emphasis. Care needs to be taken in the use of Caska v Caska [1999] NSWSC 289. As Basten JA says, the dicta in Caska should not be treated as establishing any general principle. One could envisage a particular predicament of an eligible person whereby it would be relevant to consider that any order in his or her favour would diminish the estate to meet the claims of others to no appreciable (financial or social) benefit to him or her in his or her debt-ridden condition. That is not to say, however, that relief from indebtedness may not be of significant benefit to an eligible person. A small bequest to someone with considerable debts may make the difference (as Mr Micawber said) between happiness and misery. 2 IPP JA: I agree with Basten JA. 3 BASTEN JA: The Appellant in this matter was the stepdaughter of the late Keith Trevethan ("the deceased"), who died on 22 May 2005. By a will dated 19 January 2004, the deceased left four legacies of $20,000, one to the Appellant, one to each of two couples who had been his neighbours at Woollamia, on the south coast, where he had lived for almost 30 years prior to his demise, and a fourth, together with his dog, to another couple. The residue of the estate was to be divided between two nephews and a niece, in equal shares. 4 The Appellant sought a redistribution of the estate by making a claim under the Family Provision Act 1982 (NSW) ("the Act"). (The parties assumed that the application of the Act in this case has not been affected by its repeal, effective from 1 March 2009, by the Succession Amendment (Family Provision) Act 2008 (NSW), which resulted in the current provisions being found in Ch 3 Family Provision in the Succession Act 2006 (NSW): that assumption obtains support from the Interpretation Act 1987 (NSW), s 30(1)(b).) Her application was dismissed by McLaughlin AsJ on three bases: see Diver v Neal [2008] NSWSC 304. First, his Honour was not satisfied that the provision made by the deceased for the Appellant was inadequate, within the requirements of s 9(2) of the Act. Secondly, his Honour was not satisfied that there were "factors which warrant the making of the application" within the requirements of s 9(1). Thirdly, his Honour concluded that any provision made out of the estate of the deceased would not satisfy the requirements of s 9. (1) Issues (a) eligible person 5 To make an application under the Act, the applicant must fall into one of four categories identified by reference to his or her relationship with the deceased person: s 6(1), eligible person. The first two categories cover, broadly, the spouse and children of the deceased: pars (a) and (b). The third category involves former wives and husbands (par (c)) and the fourth, relevant to the Appellant, reads as follows: "(d) a person: (i) who was, at any particular time, wholly or partly dependent upon the deceased person, and (ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of a household of which the deceased person was a member." 6 The Appellant was a stepdaughter of the deceased, and, as his Honour found, satisfied the criteria of par (d) from the ages of 12-20 years, being from 1963-1971, at which point the Appellant married for the first time and left her childhood home. (The deceased had married the Appellant's mother on 21 March 1969, they having lived as a couple for some years prior to their marriage.) (b) was application warranted? 7 There is no challenge to the finding that the Appellant was an eligible person. Its relevance for present purposes is that, the definition of eligible person in par (d) being the basis upon which the claim was brought, the Appellant needed to satisfy the provisions of s 9(1) of the Act, which reads as follows: " 9 Provisions affecting Court's powers under secs 7 and 8 (1) Where an application is made for an order under section 7 by an eligible person who is such a person by reason only of paragraph (c) or (d) of the definition of eligible person in section 6(1), the Court shall first determine whether, in its opinion, having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application and shall refuse to proceed with the determination of the application and to make the order unless it is satisfied that there are those factors." 8 As noted above, compliance with this requirement was not the first issue addressed by the primary judge, although s 9(1) envisages that it is to be determined before the Court decides whether to "proceed with the determination of the application". In practice, the factors relevant to the issue raised as a preliminary matter are, to a significant extent, co-extensive with those which must be addressed in determining whether the testator made adequate provision for the applicant: see Churton v Christian (1988) 13 NSWLR 241 at 242-243 (Hope JA) and 248-249 (Priestley JA). Nevertheless, the express distinction between two classes of eligible person must be recognised. It appears to have been drawn on the basis that persons falling within the first category (comprised of those identified in pars (a) and (b)) are "regarded as natural objects of testamentary recognition", whereas those falling within the second category (identified in pars (c) and (d)) are potentially appropriate objects of testamentary recognition, depending upon their circumstances: see Churton at 252 (Priestley JA) applying the analysis of McLelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681. (c) inadequate provision 9 A precondition to the exercise of the Court's power to make provision for the applicant out of the estate of the deceased is the Court's satisfaction as to the criterion identified in s 9(2), sometimes referred to as the "jurisdictional question": see Vigolo v Bostin [2005] HCA 11; 221 CLR 191. The criterion, relevantly for present purposes, is identified as follows in s 9(2)(a): "(a) the provision (if any) made in favour of the eligible person by the deceased person either during the person's lifetime or out of the person's estate, … is, at the time the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person." 10 The primary judge was not satisfied that the provision made by the deceased was inadequate for the proper maintenance and advancement in life of the Appellant. It is upon satisfaction of this criterion that the outcome of the present appeal ultimately turns. Because the criterion involves a state of satisfaction based upon a multi-faceted evaluative judgment, it will be necessary to identify the proper basis for appellate intervention: see Foley v Ellis [2008] NSWCA 288 at [3]. (d) determination of appropriate provision 11 The application having failed at each of the two preliminary hurdles, the primary judge did not need to consider what provision should properly be made from the estate of the deceased. However, his Honour concluded that any provision which would be made, would fail to satisfy the requirements of s 9 because it would:

(a) not be for the benefit of the Appellant, but for the benefit of creditors of her and her husband; (b) permit provision to be made for her children, not being a benefit to her, and (c) not be justified, given the consequences for each of the residuary beneficiaries under the will. 12 The exercise of the discretionary power, once engaged, is not narrowly confined, but requires the application of criteria specified in s 9(3) in the following terms: "(3) 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, the Court may take into consideration: (a) any contribution made by the eligible person, whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to: (i) the acquisition, conservation or improvement of property of the deceased person, or (ii) the welfare of the deceased person, including a contribution as a homemaker, (b) the character and conduct of the eligible person before and after the death of the deceased person, (c) circumstances existing before and after the death of the deceased person, and (d) any other matter which it considers relevant in the circumstances." 13 As will be discussed below, it is now well-established that consideration of the adequacy of the provision made by a deceased person to a person having a claim on his or her estate will require reference to community standards, the family circumstances of the parties, the extent of the estate and the circumstances and claims of the testamentary beneficiaries: see McCosker v McCosker [1957] HCA 82; 97 CLR 566 at 571-572 (Dixon CJ and Williams J); Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 209-210 (Mason CJ, Deane and McHugh JJ); Vigolo v Bostin at [74]-[75] (Gummow and Hayne JJ) and [114]-[115] (Callinan and Heydon JJ). In many cases, the criteria relevant to the exercise of the power will be largely identical with those relevant to the assessment of the state of satisfaction which conditions the engagement of the power. Nevertheless, there may be additional circumstances relevant to the extent of the provision which is available from the estate, such as the effect of such a payment in terms of the purpose of the statute and the consequences for other beneficiaries which will not be engaged, or not in the same terms, in considering whether the applicant's provision was otherwise adequate. 14 One issue raised in the present case was whether the primary judge excluded some considerations in determining adequacy of provision as being relevant only to the propriety of making an order once the power was engaged. However, to the extent that a particular consideration tended against the making of an order, it was unlikely to matter much at what stage that factor was considered. 15 Before turning to the issues in dispute, it is necessary to address the basis upon which appellate intervention might be warranted in the present case. (2) Basis of appellate intervention 16 As the Appellant accepted, the circumstances in which this Court can intervene with respect to the exercise of jurisdiction of a discretionary nature are necessarily constrained. There is no need for present purposes to repeat what was said in Foley v Ellis at [3]-[8] and Skinner v Frappell [2008] NSWCA 296 at [4]-[16]. Relevantly, the obstacles faced by the Appellant are as follows:

(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,

(a) gave undue weight to the expressed intentions of the testator, without properly weighing the Appellant's financial needs (of which the testator probably had no knowledge) against her indifference and lack of support in his later years;

(b) failed to give proper weight to the fact that the chosen residuary beneficiaries did not have a close familial connection with the deceased, nor pressing financial needs;

(c) failed to assess the provision of $20,000 in the context of an estate which realised over $650,000 net of expenses, other than some legal costs; and

(d) treated any further provision which might be provided as a benefit to creditors and not to her. 63 The error of principle thus identified may be seen as a cumulative consequence of various assessments as to the weight to be given to particular factors. In determining whether the Appellant has established a case for appellate intervention, the critical element is that the primary judge appears to have dismissed the financial circumstances of the Appellant on the basis that if further provision were made, it would not assist her personally, but only the creditors. In that way, a critical element in the assessment of adequate provision was given little or no weight. The lack of satisfaction as to the inadequacy of provision should therefore be set aside. (5) Should an order be made? 64 The reasons for thinking that his Honour erroneously assessed the inadequacy of the provision made by the testator for the Appellant provide the basis for concluding that, on a reassessment, the Court should be satisfied that the provision made out of the deceased's estate was inadequate. The next question is whether some further provision should be made by order of the Court, and if so in what amount. 65 As noted above, his Honour suggested reasons why, in the event that the Court's power had been engaged, it would not have been appropriate to make an order for provision from the estate. Those findings were also the subject of challenge and must be addressed further. However, it is far from clear that these matters were given appropriate consideration, his Honour having determined on three separate grounds (identified at [11] above) that no order would be made and the finding with respect to the benefit to the children, in particular, being dealt with at the end of a long chase: at [94]. 66 One basis upon which, contingently, his Honour indicated he would have declined to make an order, was that the benefits would be obtained either by the Appellant's creditors or, at least in part, would be set aside for her children. 67 Some care has to be taken to distinguish between assessing a person's "needs", his or her goals in life and the manner in which they propose to use financial resources, if available. The Appellant's wish to make provision by way of providing deposits which would allow her two children to obtain housing may be seen to be a life goal, should her own financial circumstances permit. That goal can have been of little weight given his Honour's concurrent finding that any provision from the estate would in fact benefit the creditors of the Appellant and her husband, rather than being available for her own benefit, let alone some future benefit for her children. In any event, it provided no reason to decline to make an order for provision. 68 Of more concern is the conclusion reached by his Honour that provision to pay down liabilities, with the purpose of saving income-producing businesses or properties from sale or foreclosure, would not advance the interests of the Appellant. His Honour's reasoning in that respect relied upon Caska v Caska [1999] NSWSC 289 (Bryson J), referred to by his Honour at [78], the conclusions being set out at [92]-[93]. In Caska, Bryson J assessed the financial circumstances of the applicant in pessimistic terms, concluding that "[p]ayment of a large sum, even several hundred thousand dollars, to him out of the Testator's estate is not actually likely to operate as provision for his advancement in life": at [15]; see also [14] and [23]. However, in circumstances where his Honour also found that the applicant had not been left without adequate provision for his proper maintenance and his advancement in life, it appears that this conclusion was a factor influencing the exercise of a discretionary power which had not in fact been engaged. Further, as noted by the Appellant, if any provision is likely to be vulnerable to the claims of creditors, s 15 of the Act may permit the establishment of a trust so that the applicant may obtain benefits from the relevant provision which will then be inaccessible to creditors: see Varnel v Heyes [2008] NSWSC 978 (Macready AsJ). Because no application was made for the payment of provision into a trust, it is not necessary to reach any final conclusion as to the availability or appropriateness of such a course. 69 The dicta in Caska should not be treated as establishing any general principle. A financial benefit in circumstances where an applicant's business interests require an injection of capital may be of great assistance in permitting advancement in life. The fact that the benefit goes to paying off creditors, thereby saving the loss of an asset or reducing ongoing liabilities, does not diminish the benefit to the applicant. Different considerations may apply where it has been shown that the applicant is insolvent at the date of the trial, but that is not this case and the relevance of such a finding should be left to a case in which the point arises. 70 The third factor which his Honour suggested militated against making an order, was the effect upon the interests of the residuary beneficiaries. (It appears not to have been in issue that the three bequests of $20,000 each were not to be affected.) However, that consideration, taken in the abstract, will be present in any case where provision is made: it is not, of itself, a reason not to make provision. The relationship of the testator to the chosen beneficiaries, together with their needs and circumstances, will undoubtedly be relevant considerations, both in determining whether to make provision and, if so, in what amount and in derogation of which interests. As the findings set out above demonstrate that the relevant power is engaged, these are matters to be considered by this Court in exercise of the power under s 7, in accordance with the considerations identified in s 9(3). 71 It appears that, if the whole of the estate were to be distributed between the residuary beneficiaries, they would receive, after allowance for the cost of the proceedings, an amount in the order of a further $70,000-$80,000 each, giving a total benefit of approximately $170,000, depending on the precise amount of costs payable out of the estate on account of the proceedings. The existing bequest is thus in the order of 12% of the interest of each of the residual beneficiaries. 72 Had the estrangement not occurred in the last years of the deceased's life, one might have expected a just and wise testator to have made equal provision for the Appellant, as for his nephews and nieces. That might have resulted in each obtaining a share worth $130,000 (again making some allowance for legal costs). It is entirely proper to allow for a significant diminution in the Appellant's share by reason of the failure to maintain the relationship after 2000, a factor for which the Appellant must bear much (though not all) of the responsibility. 73 Taking into account the various factors discussed above, it is appropriate to make further provision out of the estate in favour of the Appellant by payment of an amount of a further $60,000, resulting in a total entitlement of $80,000. The additional provision shall be borne equally by each of the residual beneficiaries, by a $20,000 diminution in each of those entitlements: see Act, s 13. (6) Costs 74 Because the Appellant was unsuccessful in the Court below, she was ordered to pay the costs of the defendants who were also given an entitlement to retain from the estate the difference between the costs recovered and their costs assessed on an indemnity basis. These orders require variation. 75 The case on appeal was conducted on the basis that the Act applied, as in force at the date of trial. Whether that assumption properly applied in relation to the costs provisions is doubtful: see Civic Workers Plus Pty Ltd v Hill [2000] VSCA 61; 1 VR 640 at [32] (Phillips JA, Ormiston and Buchanan JJA agreeing); Galvin v Forests Commission of Victoria [1939] VLR 284 at 297-298; Jackman v Dandenong Sewerage Authority (No 2) (1967) 20 LGRA 413 at 415 and, generally, Pearce DC and Geddes RS, Statutory Interpretation In Australia (6th ed, 2006) at [10.20]-[10.23]. On the approach adopted by the parties, appropriate orders as to costs must be made in accordance with s 33 of the Act. The purport and effect of that provision is by no means clear, but as it has not in terms been re-enacted, following its recent repeal, no more need be said about it than necessary for the resolution of the present matter. 76 The primary power was conferred by s 33(1) which read as follows: " 33 Costs, charges and expenses (1) Except as provided in subsections (2) and (3), the Court may order that the costs, charges and expenses of or incidental to proceedings under this Act in relation to the estate … of a deceased person be paid out of the estate … in such manner as the Court thinks fit." 77 Subsections (2) and (3) distinguish between categories of eligible person, the former applying to those who are eligible by reason of paragraphs (c) and (d) of the definition, the latter applying with respect to those described in paragraph (a) or (b) of the definition. With respect to the latter, sub-s (3) requires that the Court "shall not order" the payment of costs out of the estate "by reason only of the fact that" the eligible person falls within paragraph (a) or (b) of the definition or that an order has been made in his or her favour. In other words, at least for that category of applicant, costs will not necessarily follow the event: see Singer v Berghouse [1993] HCA 35; 67 ALJR 708 at 709 (Gaudron J, on a security for costs application). The form of sub-s 33(2), which is applicable in the present case, is somewhat different. It is a prohibition against an order for payment of costs out of the estate in respect of an application made by a person falling within paragraph (c) or (d) of the definition of eligible person. No costs order may be made unless there has been an order for provision in favour of the eligible person, or there are special circumstances making such an order just and equitable. In its terms, like sub-s (3), this provision would appear to apply to any costs incurred in the proceedings, including those incurred by the respondents to the application. Nevertheless, reference is made to the circumstances of the eligible person, rather than those of the respondent and it may be assumed that a respondent will usually be entitled to an application for payment out of the estate, in the absence of some form of misconduct, on an indemnity basis. Nevertheless, there may be circumstances in which it is appropriate that the burden of such costs be borne by the interests of those who defended the proceedings (unsuccessfully), rather than those that did not. 78 So far as the costs of the Appellant are concerned in the present case, the prohibition is lifted by her success in obtaining an order for provision so that the power to award costs in favour of the Appellant out of the estate is engaged. Nevertheless, read a whole, the power so conferred is intended to be in substitution for the general power now to be found in s 98 of the Civil Procedure Act 2005 (NSW) and Part 42 of the Uniform Civil Procedure Rules 2005 (NSW) and is thus not constrained by the rule that costs will ordinarily follow the event. 79 The Appellant, as plaintiff, quantified her claim before the primary judge as being for an amount of $200,000. She has now succeeded, but has obtained an amount well below that figure. However, having had a significant degree of success, it is appropriate that she have an order for payment of her costs out of the estate, both in this Court and in the Court below, assessed on the ordinary basis. 80 Despite the generality of the wording of s 33, there is no clear intention to vary the general position with respect to executors defending an estate who will, absent some form of misconduct in the course of the litigation, be entitled to recover from the estate their costs assessed on an indemnity basis. The application in the present case was brought against the Respondents as the executors: there is no suggestion that there was any difference in the position of the beneficiaries of the estate which would warrant some variation on the usual position which would allow the costs to be borne rateably by the whole estate. The Respondents should have a certificate under the Suitors' Fund Act 1951 (NSW), so that their right of recovery from the estate should be limited to such amount as is not recoverable pursuant to the certificate: see Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; 143 CLR 134 at 161. 81 If the assumption concerning the operation of s 33 is incorrect, the power to award costs will be found in s 99 of the Succession Act. That provides a general power, not confined by the considerations identified in s 33. Application of that provision would support the orders proposed above.

Conclusion 82 I would propose the following orders:

(1) Allow the appeal and set aside the orders made in the Equity Division on 7 April 2008.

(2) In lieu thereof, order that: (a) provision be made from the estate of the late Keith Trevethan in favour of the applicant, Kaye Aileen Diver, in an amount of $60,000, in addition to the bequest under the will of the deceased; (b) the amount be borne equally in diminution of the entitlements of the residuary beneficiaries; (c) the defendants pay the plaintiff's costs of the proceedings in the Equity Division, and (d) the defendants be entitled to retain from the estate the costs payable under par (c) and their costs of the proceedings assessed on an indemnity basis.

(3) The Respondents pay the Appellant's costs of the appeal.

(4) The Respondents be entitled to retain from the estate the costs payable under order (3) and their own costs of the proceedings on appeal, assessed on an indemnity basis, to the extent that those costs are not recoverable from the Suitors' Fund.

(5) Grant the Respondents a certificate under the Suitors' Fund Act 1951 (NSW). **********

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