Drummond v Drummond

Supreme Court of NSW|2019-07-15|Before: Hallen J, Santow J, Kirby P

Background Facts

It is convenient, next, to provide a statement of some of the background, and the other, facts, since these provide the context in which the issues in this case arise. To the extent that any of these facts are in dispute, the facts stated under this heading should be regarded as the findings of the Court.
The deceased was born in June 1929. She married Kenneth Drummond Snr in about 1950, and remained married to him, until his death in December 1969. There were four children of their marriage, being Steven, who was born in March 1951, and who is presently 68 years of age; Susanne, who was born in April 1953, and who is presently 66 years of age; Kenneth, who was born in July 1956, and who is presently 63 years of age; and Janette, who was born in July 1959, and who is presently 60 years of age.

Eligible Persons

There was no dispute that the only eligible persons are the four children of the deceased. Only Kenneth's claim for a family provision order is being pursued. However, it is clear that all of the eligible persons are well aware of the proceedings, and only Janette has given evidence of the basis of her claim on the bounty of the deceased. She has also raised her financial circumstances as a competing beneficiary. Each of Kenneth and Janette was cross-examined, although relatively briefly.
The Act specifically provides that Janette's interests, as a beneficiary, cannot be disregarded, even though she has not made a claim: s 61. She is entitled to rely upon the terms of the Will and her competing claim as a chosen object of the deceased's testamentary bounty.

The Costs of the Proceedings

Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.
Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased; while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased's estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.
As Basten JA put it in Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222, at [54]: "In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs."
However, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195; Harkness v Harkness (No 2) [2012] NSWSC 35. I have made this statement, many times, in the context of a claim for a family provision order, particularly, in relation to estates with a relatively small value.
Ms D Ruggero, the solicitor with the day to day carriage of the matter, estimated Kenneth's costs and disbursements, calculated on the ordinary basis, up to and including a 2 day hearing, to be approximately $52,655, inclusive of GST as at 12 June 2019. She estimated his costs and disbursements, calculated on the indemnity basis, to be $61,883, inclusive of GST.
At the hearing, these estimates were not altered. No costs or disbursements have been paid to the Plaintiff's legal representatives.
Ms S Lewis, the solicitor with the day to day carriage of the matter, in an affidavit of 6 June 2019, estimated Janette's costs and disbursements, calculated on the indemnity basis, up to and including a two day hearing, to be approximately $53,719, of which approximately $9,719 had been paid out of the deceased's estate. At the hearing, without objection, a further affidavit sworn on 15 July 2019, was filed in Court, which revealed that the estimate of Janette's costs, were then $69,719. However, taking into account the amount that had already been paid out of the deceased's estate, a balance of $60,000 is yet to be paid.
It follows that if the estimates prove accurate, and if orders are made for the payment of the costs of the parties out of the estate, the total amount of $112,655 will need to be paid.
Then, taking the value of the estate at the date of hearing ($525,685), and deducting the total costs of the proceedings left to be paid ($112,655), the value of the estate out of which any order for provision that may be made for Kenneth was agreed to be $412,990: Tcpt, 15 July 2019, p 6(33-39). On any view, it is a relatively modest estate.
(Counsel for Janette, in written submissions, had calculated the estate taking into account only Janette's costs of the proceedings. In light of what has been stated above, and even though a submission was made that Kenneth's proceedings should be dismissed, I cannot accept that, to ignore the potential for an applicant's costs to be paid out of the estate, is an appropriate way to proceed in determining the value of the estate out of which an order for provision may be made.)
Following the parties being informed of the provision to be made for the Plaintiff out of the deceased's estate, counsel for Janette said that the document to which he had referred (which related to costs), would not be relevant.
The Court then raised the question whether Kenneth's costs should be capped. After some discussion, the legal representatives agreed that Kenneth's costs should be capped, and should be calculated as a specified gross sum, instead of assessed costs, of $47,650, which amount should be paid out of the estate: Tcpt, 15 July 2019, p 100(1-19). I was also satisfied that a lump sum costs order could be made as the court has sufficient confidence to arrive at an appropriate sum on the materials available: Colquhoun v District Court (NSW) (No. 2) [2015] NSWCA 54 at [6]. The course taken by the parties was sensible as it avoids further delay in the administration of the estate and additional costs, and time, being incurred in having the quantum of costs formally assessed.
As will be read, the costs incurred by the parties exceed the amount of the provision to be ordered for Kenneth. As Meagher JA, with whom Macfarlan JA and Simpson AJA agreed, in Squire v Squire [2019] NSWCA 90, at [40]: "That is a wholly unsatisfactory outcome, having regard to the legislated objective that the parties and their advisors, as well as the court, strive to maintain proportionality between the importance and complexity of the subject matter of the dispute and the legal costs incurred in determining or resolving it. For the parties to the present proceedings, that outcome means that a significant part of the subject matter of their dispute will ultimately find its way to the lawyers. Looking at the position from the perspective of the parties, it is unfortunate and perhaps short-sighted that they have been unable to reach a resolution which would have likely meant that a significant part of those legal costs remained available to them."

The deceased's Statutory Declaration

The deceased swore a statutory declaration at the time she made her Will. It is in the following terms: "… 4. In my Last Will and Testament I gave certain specific gifts to certain family but my daughter Janette Evelyn Drummond is the main beneficiary of my estate. My bestowing this gift to my said daughter Janette Evelyn Drummond is my absolute testamentary intention and my reasoning for which I intend to contain herein; 5. My said daughter is my only child that does not own her own home and she currently resides in a housing estate. 6. My said daughter Janette is my only child that visits me and provides me with love and support. 7. I was very recently in hospital and … Janette was my only child to visit me and provides me with love and support. 8. I believe my daughter Susanne Marita Stirling to be very well off financially and I do not wish for my estate to provide for her any further than the sum of two thousand dollars ($2,000.00). 9. I believe my son Steven Geoffrey Drummond well off financially although I have not spoken to him for more than twenty years and I do not wish for my estate to provide for him any further than the sum of two thousand dollars ($2,000.00). 10. I believe my son Kenneth Gordon Drummond to be financially able to support himself and I do not wish for my estate to provide for him any further than the sum of two thousand dollars ($2,000.00). 11. If my said daughter Janette does not survive me I wish for the residue of my estate to be left to my grandson Hayden James Drummond as I have a more loving and supportive relationship with him then [sic] my other three children, namely Susanne, Steven and Kenneth."
In McDonald v O'Connor [2019] NSWSC 261, at [169]-[181], I dealt with the manner in which the Court should consider statements of the deceased: "Section 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. A statement in the section 'includes any representation of fact whether or not in writing': s 100(1). Sub-section (5), (6), and (8) of s 100, provide: '(5) Where a statement made by a deceased person during the person's lifetime was contained in a document, the statement may be proved by the production of the document or, whether or not the document is still in existence, by leave of the Court, by the production of a copy of the document, or of the material part of the document, authenticated in such manner as the Court may approve. (6) Where, under this section, a person proposes to tender, or tenders, evidence of a statement contained in a document, the Court may require that any other document relating to the statement be produced and, in default, may reject the evidence or, if it has been received, exclude it. … (8) In estimating the weight, if any, to be attached to evidence of a statement tendered for admission or admitted under this section, regard must be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, including: (a) the recency, or otherwise, at the time when the deceased person made the statement, of any relevant matter dealt with in the statement, and (b) the presence or absence of any incentive for the deceased person to conceal or misrepresent any relevant matter in the statement.' Many years before the inclusion of the section, Gibbs J had written in Hughes v National Trustees Executors & Agency Company of Australasia Ltd (1979) 143 CLR 134, at 150; [1979] HCA 2: '… in Australia for many years the courts have admitted evidence of statements made by a testatrix explaining why she made her will as she did. In taking this course the courts have no doubt been influenced by a desire to be informed of the reasons which actuated the testatrix to make the dispositions she had made, and by the consideration that in cases of this kind a claim is made against the estate of a person who is deceased and can no longer give evidence in support of what she has done. It is doubtful whether, in most cases, such evidence is relevant, but usage justifies its reception. The question is for what purpose it may be used, once admitted. The balance of authority clearly favours the view that it is admissible only to provide some evidence of the reason why the testatrix has disposed of her estate in a particular way, and that it is not admissible to prove that what the testatrix said or believed was true: Re Jones (1921) 21 SR (NSW) 693, at p 695; In re Smith (1928) SASR 30, at p 34; In the Will of Joliffe (1929) St R Qd 189, at p 193; Re G. Hall, deceased (1930) 30 SR (NSW) 165, at p 166; In re Green, deceased; Zukerman v Public Trustee (1951) NZLR 135, at pp 140-141 (a case decided before the amending legislation was enacted in New Zealand). This view was accepted as correct by Taylor J. in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR, at p 24; Taylor J. dissented in the result in that case but there is nothing to suggest that his opinion on this point differed from that of the majority of the Court.' In her signed written statement, the deceased appears to have weighed the testamentary claims upon her, in an apparently sensible way and by considering the principal persons who may have had a claim on her bounty being her only child and her two grandchildren. It appears to be a case where she did 'expose to the world the delicate, and perhaps indefinable, relations that exist within [her] family circle' or where she 'felt quite justified from [her] own standpoint in limiting [her] family benefit, and for reasons which sufficiently appealed to [her], but which no one else could mentally measure or appreciate': Nock v Austin (1918) 25 CLR 519; [1918] HCA 73, per Isaacs J, at 527. Whilst the Court will consider any explanations given by the deceased in the Will, or elsewhere, for excluding a particular person as a beneficiary, such explanations do not relieve the Court from engaging in the enquiry required by the Act: Slack-Smith v Slack-Smith [2010] NSWSC 625, per Ball J, at [27]. What an explanation by the deceased may do is cast light on the relationship between her, or him, and that person, at least from the deceased's perspective. Where the truth of the statements made by the deceased is admitted, or where the facts asserted in the statements are corroborated by other evidence, due weight should be given to the statements. However, there are often difficulties faced by a trial judge grappling with evidence about disputed allegations that are contained in such statements. I have borne in mind that the Court must exercise caution in determining whether to accept the statements of the deceased, and, if accepted, the Court must carefully consider the weight to be attached to them. In Benham v Benham [2004] NSWSC 416, Master McLaughlin made the point, at [81], that: '[T]he Court should not, however, overlook the fact that testators are human. A statement by a testator (which, by definition, cannot be tested under cross-examination), although admissible in evidence, need not be accepted by the Court unquestioningly or uncritically.' As I have written, in other cases, in relation to statements by the deceased, the Court should bear in mind, also, what was said by the Court of Appeal of New Zealand in In re Green, deceased; Zukerman v Public Trustee [1951] NZLR 135 at 141 (which passage was approved by the majority of the High Court in Hughes v National Trustees Executors and Agency Company of Australasia Ltd, at 152): 'If reasons are given by the testator reflecting on the character or conduct of that child, the court must, in considering the sufficiency or otherwise of the reasons, endeavour to decide upon the truth or otherwise of the allegations. But the testator should not be allowed from the grave to condemn the child and to impose upon that child the positive duty of disproving the allegations as an essential preliminary to prosecuting a claim. In our opinion, the reasons given by a testator for excluding a child (or a widow) go no further than to concentrate attention on the question whether there is or has been character or conduct operating to negative the moral obligation that would otherwise have lain upon the testator.' Thus, a statement made by the deceased does not, necessarily, mean that it must be accepted, unquestionably, as true. Such a statement may be just as inaccurate, or as unreliable, as a statement of a living witness, whether as the result of mistake, or failure of memory, or deliberate untruth: Worsley v Solomon [2008] NSWSC 444, per McLaughlin AsJ, at [35]. Ultimately, allegations by the deceased as a reason for the exclusion of a child from any provision out of her, or his, estate should not be accepted as precluding the making of a family provision order merely because the applicant fails to establish that the allegations are false. In denying many of the assertions made in the statement, I also bear in mind that Margaret's responses are those of a person who is deeply interested in the result of the case. As this is a claim against a deceased person's estate, the Court must be convinced of the truth of the allegations before acting upon them. In Steinmetz v Shannon [2018] NSWSC 1090, Pembroke J repeated what he had written in Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146, at [32]-[33], that: 'There are sound practical reasons for not encroaching too readily on the testator's freedom of testamentary disposition and especially not in accordance with abstract concepts such as fairness or the misguided notion that there should be equality … In Pontifical Society for the Propagation of the Faith v Scales (supra) at 20 Dixon CJ articulated the unique difficulty which these cases present with the following memorable apophthegm: The difficulty is that the Court itself can never be certain that it knows all the circumstances. More often than not, one may be sure that the Court knows few of them. Experience of forensic contests should confirm the truth of the common saying that one story is good until another is told, but a testator is dead and cannot tell his. To similar effect were some observations of Taylor J in Stott v Cook (1960) 33 ALJR 447 at 453-4, who explained that the reason why a court does not have a mandate to rework a will according to its own notions of fairness, is because such an approach would serve justice no better than: …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.' In Sgro v Thompson [2017] NSWCA 326, at [83], White JA (McColl JA agreeing) adhered to the view that he had expressed in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522, at [127], namely, that: '…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 s 59(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.' His Honour added, at [86]: 'To recognise that the court is not in as good a position as a capable testator to assess what maintenance or advancement in life is proper for an applicant having regard to all of a family's circumstances, including the relationships between the applicant and the deceased, and the merits and claims of other family members, is not to put a gloss on the statute. Rather, it is to acknowledge the superior position of the testator. The most important word in s 59(1)(c) is "proper". Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court's assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate.'"
Ultimately, the weight to be given to the deceased's statement must depend upon all of the evidence, including whether there is evidence, which is accepted, that speaks against its truth. It is part of the circumstances of the case and falls to be assessed, together with all other relevant factors. Yet, the deceased's statement may always be regarded as the explanation provided, by the deceased, for making the provision that she did.
In the present case, the deceased's expressed reason for making the provision that she did for Kenneth was her belief that he was "financially able to support himself"; that Janette did not own her own home; and that Janette was the only child who had visited her and provided her with love and support.
On the basis of the evidence that I have read, I am satisfied that the deceased's statement, at the date of the hearing, was only partially accurate. This does not mean that it should be disregarded.

Kenneth's relationship with the deceased

There is some dispute about the deceased's relationship with Kenneth. There is quite a lot of independent contemporaneous documentation, such as police and hospital records, that shed light on the conflicting evidence.
Kenneth gave evidence that from about 2009, the deceased telephoned him regularly, and requested him to move into her home with her. I accept his evidence that she did make such requests, as there is other evidence which suggests that she was estranged from each of her other children and did not, then, have very much to do with them.
At that time, Kenneth was recuperating from an illness, and in July 2010, he moved into the deceased's home. There is no doubt that he did so not for solely altruistic reasons, although he did give evidence that he wished to assist the deceased. I am satisfied that in doing so, he received a significant benefit, namely that he was able to rent out the real estate that he owned at Nana Glen, located 25 kilometres inland, north-west of Coffs Harbour, in New South Wales, and use the rental income to make the repayments of the mortgage debt secured on this property.
Kenneth says that from that time, he was the deceased's carer and that he would complete various household tasks such as cooking, cleaning, grocery shopping and performing errands for her. He says that he would also take her to medical appointments, collect her medications, and assist her in taking them. I am satisfied that during this period of time, he was the only one of the deceased's children, who provided support to her. He was certainly the only one of her children to move into her home to live with her.
Kenneth also asserts that until he moved out in early 2015, he carried out various household repairs and improvements on the deceased's home, including attending to the lawn, doing the gardening and the cleaning of the external areas.
In cross-examination, some criticism was made of his evidence, the submission by counsel for the Defendant being that it was inconsistent with the medical conditions from which he said he then suffered. However, I accept Kenneth's evidence that he would perform the work at the deceased's home, at his pace, and over a period of time, stopping when he felt the need to, and continuing when he was able, sometimes days later: Tcpt, 15 July 2019, p 31(34) - p 32(8).
I also accept the evidence of Dean Stuart McCulloch, the ex-husband of Janette, who from about 2015, helped "with the general up keep [sic] of the [deceased's] house both inside and out", and who carried out a lot of work to make it safe for the deceased: Affidavit, Dean Stuart McCulloch, 19 September 2018 at par 7. Of course, by this time, Kenneth had moved out of the deceased's home.
In his affidavit made 1 August 2018, Kenneth says that he represented the deceased in certain Land and Environment Court proceedings involving the Wyong Hospital, loaned the deceased $2,000 so that she could purchase a mobility scooter, and "contribute(d) toward the electricity bills and would buy my mother's groceries". He says that although he offered, the deceased refused to take any rent from him. He was not challenged on any of these matters.
Kenneth also gave evidence that prior to him moving into her home, the deceased, often, would telephone him, whilst she was intoxicated, and abuse him. He stated that after he moved in with the deceased, he observed that she would start drinking alcohol in the late afternoon, and then would become abusive by the evening. He says that "I would then generally try to ignore her; however, this would make my mother more irate. I would then generally lock myself in my bedroom to avoid further abuse and confrontation": Affidavit, 1 August 2018 at par 30.
Kenneth also gave the following evidence, in his affidavit made 1 August 2018: "38. To the best of my knowledge, my mother executed a new Will in 2013 and also executed a new power of attorney, appointing me as her attorney… My mother made several wills over the years… 39. In around late 2014, my mother started calling Janette out of the blue. I observed that my mother would call Janette when she was drunk. My mother's attitude toward me changed and my mother became increasingly abusive toward me... 40. I recall that on one occasion, in late 2014, my mother was on the phone to Janette and I heard my mother say to Janette, words to the effect: 'I fucking hate him. He is a bastard - he's been abusive toward me and I want him out!'. … 47. Between January 2015 and January 2018, I would call my mother approximately every six (6) weeks; however, my mother would often not want to speak to me or the conversation would be very short. 48. Between February 2018 and April 2018, I tried to contact my mother several times; however the phone was disconnected. I recall on 20 April 2018, I contacted my sister Susanne and said to her, words to the effect: 'have you spoken to mum recently? I haven't been able to get a hold of her' to which Susanne responded, words to the effect: 'I haven't either'. 49. On 4 May 2018, I contacted the local police to request they complete a welfare check on my mother, as I was getting concerned for my mother's wellbeing. The police contacted me and advised me, words to the effect: 'We went to your mother's residence to complete the welfare check and your sister Janette was there and advised us that your mother had died on 16 February 2018'. 50. I was shocked and disappointed that Janette had not informed me that my mother had died, nor had she advised my siblings or I of our mother's funeral arrangements."
Kenneth asserts that Janette was "estranged from my mother" between about 2009 and 2014. Janette says that she was not estranged from the deceased but did not go to the deceased's home when Kenneth was there. There is, however, some evidence, to which reference will be made, that supports a period of estrangement between Janette and the deceased. However, it is clear that from about 2015, Janette played a significant role in the life of the deceased.
Janette paints a somewhat different picture of the deceased. Despite other evidence, she maintained, in cross-examination, that the deceased did not ever drink alcohol to excess and that she never, ever, saw the deceased intoxicated. Based upon other evidence, I do not accept her evidence on this topic, at least so far as it relates to the deceased not ever drinking alcohol to excess.
Mr McCulloch also gave evidence that he had never seen the deceased drunk or aggressive. I do not necessarily disbelieve his evidence, but that evidence only speaks of his observations of the deceased. It is difficult to know how regularly, if at all, he observed the deceased in the afternoon or evening.
For the same reason, I accept the evidence of Katherine Anne Miller, a sub-contractor, residential and commercial home care cleaning, for companies such as Kincare and Anglicare, within limits, as she knew the deceased from about September or October 2015, but only observed her, during the day, "often on a Thursday", after the deceased had been shopping. Ms Miller also gave evidence that the deceased told her that she did not regard Kenneth as her son. However, when this conversation took place is not identified in Ms Miller's affidavit sworn 19 September 2018. (Ms Miller was not cross-examined.)
Janette says that the deceased said that she was afraid of Kenneth and that "he abuses me constantly". She says that in mid-2014, the deceased changed the locks on her house, leaving Kenneth with only a key to the garage. She says that she called the Police to carry out a welfare check on the deceased. Janette says that she did not observe Kenneth to have visited the deceased in the last 3 or 4 years of her life. He denied this statement, saying that he did visit, as the deceased permitted him access to the garage on her property. However, it is clear, that by this time, his relationship with the deceased was not as close as it might have been.

The contemporaneous documents

In Evans v Braddock [2015] NSWSC 249, at [72]-[77], I wrote: "I also remember what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56, at [48]: 'When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2).' The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The 'Ocean Frost') [1985] 1 Lloyd's Rep 1, per Robert Goff LJ, at 57. Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547, per Black J, at [7]. A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200, per Jagot J, at [1247]. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at [157]. … The circumstances of this case, make what was written by Tamberlin J in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben's of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep), at 122 - 123 (in a passage cited with approval by the High Court when it upheld his Honour's decision: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599, at [15]) appropriate to remember: '[Given the lapse of time] between the events and conversations raised in evidence and the hearing of the evidence before me, the only safe course is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence. In circumstances where the events took place so long ago, it must be an exceptional witness whose undocumented testimony can be unreservedly relied on. The witnesses in this case unfortunately did not come within that exceptional class. The discussions referred to in evidence were capable of bearing quite opposed meanings depending on subtle differences of nuance and emphasis, and a proper appreciation of the significance of those matters must necessarily be considerably diminished over such a long period of time.'"
In this case, in expressing the views about the relationship of the parties, I have placed more emphasis on the contents of the contemporaneous documents, than upon the evidence, particularly of Janette, whose evidence, in some respects, I found hard to accept.
In relation to Kenneth, the following excerpts from the contemporaneous documents, to which I shall now refer, are relevant. There is a reference in police records (Ex. A/179) to an incident involving the deceased and Kenneth on 3 June 2011, when: "both parties were well affected by alcohol. They were actively engaging in a verbal argument with each aggressing the other … Both parties were claiming that the other was to blame for initiating the verbal argument … Whilst police were present both parties were responsible for the continuation of a verbal argument and were antagonising the other."
Kenneth admitted his intoxication in this incident and otherwise said that when he was drinking alcohol, he did so in his bedroom.
There is a reference also to a report made by the deceased to the Police on 12 December 2013 (Ex. A/178) which is in the following terms: "FEARS HELD BY THE VICTIM The VIC stated that she has no fears for her safety and does not expect to be assaulted by the PN. ……………………………………………………………………………………........NARRATIVE: About 3pm on Wednesday the 11th of December 2013 the VIC attended……… Station after being requested to do so by her Solicitor. The VIC advised that she had just seen her Solicitor and made arrangements for her daughter to replace her son as Power of Attorney. The Solicitor requested that the VIC made Police aware of this due to the two prior incidents involving the VIC and the PN. The VIC stated that her Solicitor was concerned that the PN might become enraged when he is informed of the change however the VIC did not share her Solicitor's concerns. The VIC was only reporting the above because she was asked to be her Solicitor. The VIC stated that she has no fears for her safety and does not expect and [sic] problems with the PN."
(The passage quoted, in part, supports Kenneth's evidence of having been her Attorney.)
Kenneth also admits that he moved out of the deceased's home following the police being called, when the deceased made an allegation that he was abusing her. The police report relating to this incident is one dated 26 July 2014 (Ex. A/178), and includes: "Police observed no injury to [the deceased]. [The deceased] indicated that the incident involved a verbal argument between herself and [the Plaintiff].. Also present at the premises was the Person Named [the Plaintiff]. Police separated the parties and spoke to [the Plaintiff] who confirmed [the deceased's] version. [The deceased] indicated to police that she held no fears for her safety and declined the offer for an AVO.. The parties in this incident are mother and son. The mother has alcohol based dementia and rambled incoherently to police about a plethora of things. She mentioned her son the person named came back to live with her and wanted to move overseas. However he is unable due to being on a pension. It is unknown the true reason the police were called other than due to the effects of alcohol on the victims [sic] health. Police were able to speak to the person named who was not effected [sic] by alcohol who stated he would be moving out of his mothers [sic] residence 27/7/2014. Another call was received soon after by the victim about another fictitious allegation against the person named…"
There are also a number of contemporaneous medical records that shed light on the relationship between the deceased and her children, among other things. For instance, there are a number of contemporaneous medical records from the file of Dr James Blackburn, who, it appears, was the deceased's treating doctor.
In a letter dated 1 December 2006, from Dr J Sturm, a consultant Neurologist to Dr Blackburn, there is a statement that he had met the deceased, one year previously "when she was complaining of giddy episodes". There is also a reference to a conversation with "the deceased's daughter who stated that her mum's memory had been deteriorating over a few years but more noticeable over the past 12 months": Ex. A/173.
In a letter dated 13 December 2006, from Dr Sturm to Dr Blackburn, there is a reference to the deceased's daughter describing some "cognitive impairment"; that "cognitive testing showed some evidence of cognitive impairment …": Ex. A/174. There is no reference in either of these documents to alcohol.
In Dr Blackburn's Progress Notes of 12 August 2008, there is a reference to the deceased being taken to Wyong Hospital and her denying that she was intoxicated "but that was in the report from A&E". There is also a reference, on the same date, to the deceased refusing to call an ambulance "as a result of having had the ambulance for the previous occasion when they said she was intoxicated": Ex. A/163.
In a Mental Health Assessment, dated 21 October 2008 (Ex. A/165), the following appears: "Patient currently living on her own. Patient has occasional contact with her daughter (Sutherland), Suzanne [sic]. Has Minimal [sic] contact with other children. Son, Stephen, is in Canberra, but she believes he has gone 'do dally, over the hill'. States that her children and grandchildren are all 'Highly intelligent, genius level' But that they 'Will all end up going over the hill'. Son Kenny is in brisbane, has contact with him, he is suffering from a muscular degenerative disease that patient states he will die of. Also has a daughter Jeannette [sic], patient states she has 'Ripped her off' for money, and is still paying off her bills. States Jeanette [sic] tried to have her committed to a Mental home, so that she could get her house."
In a letter dated 22 September 2009, from Karen Slee, a registered Psychologist, to Dr Blackburn, there is a reference to the deceased "ha[ving] completed twelve sessions. She has made progress however [she] continues to feel anxious regarding her two estranged daughters": Ex. A/172.
In a "GP Mental Health Care Plan - Review" dated 11 March 2010, there is a reference to the deceased "getting more able to accept the attitude of her daughters to her": Ex. A/167.
In an Ambulance Electronic Medical Record dated 10 April 2014, it is noted the deceased had a "past [medical] history" appearing to have suffered an acute myocardial infarction. That record also indicates "Pt live alone. Used to live with son 2/52 ago but due to social issues has been living home alone unassisted since…" Ex. A/136.
In an Assessment Summary dated 19 November 2015, it was revealed that the deceased had been referred, by Janette, for a general assessment. There is a reference to "Susan" (presumably Susanne) having a Power of Attorney and that she was "currently overseas". At this time, the deceased was said to be living alone at her home: Ex. A/170. (There was no other evidence indicating the length of time Susanne had been named as the deceased's Power of Attorney, or alternatively, if the information contained in the record was incorrect.)
There is evidence that on 10 August 2017, an ambulance was despatched to the deceased's home and found her "heavily intoxicated". She was reported to be "agitated, upset, anxious, depressed, Intoxicated": Ex. A/132. In another medical record, there is a reference to "[r]eports of problematic alcohol use at least back to 2008" although the deceased appears to have denied this: Ex. A/143. A hospital record from 11 August 2017 indicates "daughter (lives in Sydney) has cameras in mother house. Saw her sneaking alcoholic drinks all day" and "Discussion with daughter - mother is a heavy drinker": Ex. A/146.
In another medical record dated 10 October 2017, it was reported, in relation to "Current/Recent Substance Use", an "unknown amount of etoh daily. Daughter filmed this recently with camera in client's home. client minimalises this. chronic etoh issues": Ex. A/144-145. (As I understand it, EtOH stands for ethyl alcohol, or ethanol. This substance is found in alcoholic drinks such as beer, wine and liquor. The term EtOH is commonly used when referring to alcohol.)
In another medical record, which appears to be dated 12 October 2017, Janette is recorded as having stated that the deceased's behaviour had changed in the last six months. Then, she was "much happier and contented … Her character has changed. Now sullen. More aggressive with people. Isolating. Not wanting to engage with others. Suspicious". The record also stated "Janette does not wish mother to be told that she has given a different picture as she often blames daughter for everything that is happening". Later, the same record states "daughter only visits fortnightly to 3 weekly. granddaughter [sic] rarely. [t]hough [the deceased] stated she was there every day": Ex. A/142.
There is also evidence that Janette on 17 December 2017, reported, by telephone, to the ambulance service, that the deceased exhibited "poor behaviour when intoxicated": Ex. A/134. The deceased was found on the floor and helped up by the ambulance. There was no diagnosis of dementia, but Janette was recorded as reporting that the deceased suffered "declining cognitive functioning". The deceased was taken to Wyong Hospital by the ambulance. The ED assessment from Wyong Hospital, in relation to the same incident, also noted "Regular intoxication happening weekly- becomes aggressive. Previous admission to ED for the same. Daughter report once sober patient regrets actions": Ex. A/137. In the same document, it is recorded that "… Daughter has brought in guardianship documentation": Ex. A/138.
It is clear, from the contemporaneous medical records, that the person with whom medical practitioners, and others, had contact in relation to the deceased, after 2015, was Janette. Where it is suggested that a conversation occurred with the deceased's daughter, I am satisfied that what is recorded as having been communicated by Janette was communicated, rather than accepting her denials, in cross-examination, of having made such statements.

Kenneth's situation in life

Kenneth is now a single man with no dependants. (He was divorced on a date not disclosed in the evidence.)
He held a plumbing license until about 2013. He is presently unemployed, having not been in full-time employment since about 2007. He appears to have developed a radiculopathy (commonly referred to as pinched nerve) with associated cervical degenerative disease in or about 2006.
He has been in receipt of a disability support pension (as at 14 June 2019, $463 per week) since that time.
In 2007, Kenneth was diagnosed with Guillian-Barre Syndrome, "a potentially fatal condition that causes rapid onset of muscle weakness and paralysis due to an autoimmune condition in which the individual's nerves are attacked by their own immune defence system". He suffers coronary artery disease which required surgery for the insertion of a stent in January 2018. He also suffers from Type II diabetes which does not appear to be properly managed; he suffers hypertension, which is managed with anti-hypertensive medication and right shoulder supraspinatus tear with impingement and bursitis. He appears to have sensory loss due to peripheral neuropathy in both feet (greatest on the right). There are limited prospects that he will return to work as he has permanent disability and impairment which have diminished his functional and work capacities: Ex. A/19.
His regular medications include: Astrix (anti-thromoembolic agent), taken daily, Atorvastatin and Exforge (cholesterol and blood pressure), Lyrica (anti-neuropathic agent) taken daily, Panadol Osteo (pain relief), Targin (pain relief), Pristiq (antidepressant), Spiriva (to assist with breathing), Janumet and Lantus insulin injections (for diabetes) daily: Ex. A/3.
The medical report prepared by Dr Barold records (Ex. A/9): "His condition is such that he now has permanent disability and impairment which have diminished his functional and work capacities. He is certainly unfit to return to his pre-injury work duties as a plumber or even as a plumbing trainer/teacher as he should avoid activities which involve prolonged static posturing or forward flexing, bending, stooping, kneeling and squatting. … Although he may be capable of working part-time in a more sedentary occupation with him averaging three to four hour work shifts on three alternative days in a normal working week, he is unlikely to find such employment in an open and competitive labour market and it is therefore unlikely that he will ever be able to follow his previous or any other occupation again. At present he does not require any major modifications or assistance for his house apart from the need for him to live in a single storey house to avoid stairs as well as his home being provided with appropriate handrails with the bathroom. He should also continue to make use of a walking aid. …"
I am satisfied that Kenneth has a limited earning capacity.
Kenneth owns his home at Nana Glen. The parties agreed that its value was $500,000: Tcpt, 15 July 2019, p 77(40-50). He has a car ($3,000) and personal effects ($3,000). He also has a caravan, the value of which he did not disclose. He stated that he did not have any superannuation.
He has liabilities, including a debt secured by mortgage on the Nana Glen property ($140,702) a personal line of credit ($66,717), credit card debts ($8,424) and outstanding rates ($4,218). Accordingly, his liabilities total $220,061.
Kenneth had in place a "Hardship Arrangement" with his bank pursuant to which he was required only to meet interest payments in respect of the mortgage debt. That arrangement expired in February 2019. He is currently living in the caravan and renting his home. He stated that the caravan in which he resides does not have hot water or toilet facilities. He receives rental income of $430 per week, which he uses to make the mortgage repayments. He also gave evidence that his tenants have indicated they will not renew the lease after its expiry in July 2019.
If he needs to sell the Nana Glen property, following payment of costs and outstanding debts, the remaining amount available to him will be approximately $280,000.
Kenneth's financial position is such that he does not have any amount, available as a buffer, for exigencies of life and he lacks any reserves to meet demands, particularly of ill health, as he grows older. It was submitted that, if the personal loan were cleared, and a modest buffer for future exigencies of life was provided, he could retain the Nana Glen home and live off his disability support pension.

Janette's situation in life

Janette was married to Dean Stuart McCulloch for 14 years. They separated in May 2008 and were divorced some time thereafter. They have maintained a friendship since that time and since 21 December 2018, he has been residing with Janette in her home to assist Janette because of the medical conditions from which she suffers. He pays her rent of $315 per week: Tcpt, 15 July 2019, p 69(15-23).
Although he swore an affidavit on 19 September 2018, which affidavit was read in the proceedings, he did not disclose any information about his financial circumstances. However, in cross-examination, he admitted that he was employed and that he contributes to the household by paying his own expenses. He does not pay for utilities because on occasions, he buys groceries. (Janette says that he "generously" provides her with "some support, including some financial assistance, but this is limited": Affidavit, Janette Evelyn Drummond, 5 June 2019 at par 13).
Janette has no property of any significant value. In particular, she has no savings and she owns no real estate. She does not have the potential to generate income or otherwise augment the amount she receives by way of disability support pension. Her only property will be what she receives from the estate of the deceased.
Janette is also in poor health and suffers from crippling back pain. Such pain cannot be managed with surgery (in part due to her multi-layered spinal degeneration), such that she needs to take heavy medication for her pain relief to manage day-to-day.
Janette also receives a disability support pension. There is evidence (Ex. A/11) that the household's assessable income, as at 31 December 2018, was $1,474 (per fortnight).
Janette gave evidence that she wished to purchase a home on the Central Coast and move there. I am unable to accept her evidence in this regard. She has lived in the same Department of Family and Community Services (as of July 2019, the Department of Communities and Justice) housing, three bedroom accommodation, since 1999, with Hayden, and more recently, with Mr McCulloch. Although there is some suggestion that it was not suitable for her medical needs, there were renovations done to make it more suitable for her requirements.
Furthermore, when asked about "some examples of properties on the Central Coast, which would provide a secure home for my future needs", she admitted that she did not carry out the searches of the property advertisements that were annexed to her affidavit, but that her solicitor had done so; that she could not confirm whether the searches related to 2 or 3 bedroom homes; that she had not inspected any properties on the Central Coast to ascertain whether any would meet her needs; that she had not made any enquiries about the costs of a two bedroom home on the Central Coast; and finally, if it became necessary, whether she could borrow any amount to supplement what she might receive from the deceased's estate after these proceedings were concluded.
Counsel for Janette made much of the possibility that her current accommodation was not secure because the Department of Family and Community Services (now the Department of Communities and Justice) would take into account any amount that Janette received from the deceased's estate. He pointed to the Policy document of the Department which referred to a client "not [owning] any assets or property which could reasonably be expected to resolve their housing need": Ex. 2. However, there was no evidence, referred to by counsel for the Defendant that Janette would be asked to leave her accommodation in the event that she received the balance of the deceased's estate after any order for provision and costs.

The Statutory Regime

To justify an order for provision under the Act, the Court must be affirmatively satisfied that the deceased has not made "adequate provision for the proper maintenance … or advancement in life of the person in whose favour the order is to be made": s 59(1)(c). If that is established, the Court is empowered to order such provision out of the estate as the court "thinks ought to be made" for the identified purposes: s 59(2).
Importantly, the question of the inadequacy of provision is to be assessed at the time when the Court is considering the application. The basis upon which the evaluative judgment is to be undertaken is unrestricted. There is no automatic entitlement to provision stipulated by the Act and the deceased's Will applies unless a specific application is made and acceded to by the Court.
The principles to be applied on this topic are well known and I have dealt with them in many cases. For the benefit of the parties, I shall repeat the relevant principles.
Other than by reference to the provision made by the Will of the deceased, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant's proper maintenance, education and advancement in life. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of any applicant.
The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment: White v Barron (1980) 144 CLR 431, at 434-5, 443; [1980] HCA 14; Singer v Berghouse (No 2) (1994) 181 CLR 201, at 210-211; [1994] HCA 40.
Basten JA, in Foley v Ellis [2008] NSWCA 288, at [3], commented that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J (as his Honour then was) wrote that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J has described it as "an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific": Szypica v O'Beirne [2013] NSWSC 297, at [40], citing Manuel v Lane [2013] NSWCA 61, per Emmett JA, at [9].
As stated, under 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. This does not mean, however, that considerable weight should not be given to the assessment of a capable testator, who has given due consideration to the claims on his estate: Sgro v Thompson [2017] NSWCA 326, per Payne JA (agreeing with White JA), at [6].
Whether the disposition of the deceased's estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the applicant, will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant's "needs" that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573, at 575. This statement is not intended to suggest that an applicant's "needs", when compared with the provision made for her, or him, out of the deceased's estate, should be the only, or even, the dominant consideration. An applicant's financial needs and the financial needs of other persons with claims on the deceased's testamentary bounty are important, and often highly important, considerations, but as Basten JA said in Chan v Chan, at [22]: "… [I]t is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. The background to any consideration of the appellant's needs required determination of the size of the estate and the claims of others on the beneficence of the testator."
Furthermore, "needs" are not, necessarily, the measure of the order to be made. The court must also, importantly, consider the competing needs of other beneficiaries.
In Grey v Harrison [1997] 2 VR 359, Callaway JA, at 366-367, 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."
"Provision" is not defined in the Act, but it was noted in Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54, 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".
Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act.
In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11, 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."
In Alexander v Jansson (2010) 6 ASTLR 432; [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), wrote, at [18]: "'Proper maintenance' is not limited to the bare sustenance of a claimant…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."
In McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82, Dixon CJ and Williams J wrote, 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."
In 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 … at 575; Stiles v Joseph (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams…)."
The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton in "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5 Aust J Leg Hist 5, 10, as reached upon "a purely economic and objective basis", whereas "proper" prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235, at [72] and [77] (Buss JA), which seems to invite more subjective criteria.
These 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."
Their Lordships went on to state, at 478: "The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the court were concerned merely with adequacy. But the court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration."
Dixon CJ and Williams J, in McCosker v McCosker, at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that: "It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."
In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, Dixon CJ, at 19, pointed out that the words "adequate" and "proper" are always relative and that what the testator regarded as "superior claims or preferable dispositions" is a relevant consideration: "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."
In Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31, Gibbs J wrote, at 502, citing Pontifical Society for the Propagation of the Faith v Scales at 19: "…the 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."
In Vigolo v Bostin, Callinan and Heydon JJ wrote at 114: "…the 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 used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."
Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), that "adequate" and "proper" are independent concepts. He wrote, 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." (citations omitted.)
In Palagiano 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 "[t]here are no definite criteria by which the question can be answered."
His Honour added, in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [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)."
In Devereaux-Warnes v Hall (No 3), at [81]-[84], Buss JA wrote: "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]."
As will be read, s 60 of the Act invites the Court to have regard to various matters, including, but not limited to, financial need: s 60(2)(d). If the Court does so, as also will be read, one of the purposes for which that is done is for determining "the nature of any [family provision] order": s 60(1)(b) of the Act.
Of course, "need" is a relative concept: de Angelis v de Angelis [2003] VSC 432, at [45]. It is different from "want" and does not simply mean "demand" or "desire". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (the former 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] 1 WLR 1808; [2008] UKHL 52, 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'."
In Boettcher v Driscoll (2014) 119 SASR 523, at 530; [2014] SASC 86, at [41], David J added: "'Need' is not so synonymous with 'want' such that the two are interchangeable."
Sackville AJA pointed out in Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297, at [84], that "the assessment of an applicant's needs is not a mechanical process. In Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, at [12], Allsop P observed that "[a]ccepted and acceptable community values permeate or underpin many, if not most, of the individual factors in s 60(2)". That observation applies to the concept of "financial needs" embodied in s 60(2)(d) of the Succession Act. The needs of a person depend on a range of factors that will vary from case to case. Some of those factors, such as the person's age and earning capacity, are specifically mentioned in s 60(2). Other factors, such as the person's financial or non-financial responsibilities to family members, or the standard of living which the deceased encouraged the person to enjoy, are not expressly identified in s 60(2) of the Succession Act".
As Callinan and Heydon JJ emphasised in Vigolo v Bostin, at [122], the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined. In this regard, the assessment of what constitutes "adequate provision" for the "proper maintenance" of the person seeking provision is to be assessed not simply by an entirely objective assessment, in monetary terms, of alleged needs.
If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made.
The questions posed arise 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 involves an exercise of discretion in the accepted sense. The fact that the Court has discretion means that it may refuse to make an order, even though the question regarding inadequacy of provision has been answered in the applicant's favour.
Section 60 of the Act 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."
It can be seen that s 60(2) enumerates 16 specific matters, described by Basten JA in Andrew v Andrew, at [37], as "the 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 purpose of determining whether the applicant is an "eligible person", whether a family provision order should be made, and if so, the nature of any such order. There is no mandatory command to take into account any of the matters enumerated. In the context of the section, "may" does not mean "must".
In Chapple v Wilcox (2014) 87 NSWLR 646, at 649; [2014] NSWCA 392, at [7], Basten JA wrote: "Section 60 of the Succession Act spells out the matters which the court may have regard to in determining whether the claimant 'is an eligible person' and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the 'nature of any such order', which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b)."
The 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 each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. None of the matters listed are, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.
The section also 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.
A 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).
Leaving 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.
In In re the Will of FB Gilbert (dec'd) (1946) 46 SR (NSW) 318, at [321], Jordan CJ described "disentitling conduct", in the context of s 3(2) of the Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW), as "character or conduct relevant to the purposes which the 1916 Act is intended to serve, for example, misconduct towards the testator, or character or conduct which shows that any need which an applicant may have for maintenance is due to his or her own default".
There is no equivalent provision that refers to character or conduct such as to "disentitle" the applicant to the benefit of a family provision order. Character and conduct may be considered under s 60(2)(m) of the Act, which is in broader terms, without employing the word "disentitling". As I have written in other cases, the Act requires the Court to consider the totality of a relationship: Fulton v Fulton [2014] NSWSC 619, at [395]-[398]; Hinderry v Hinderry [2016] NSWSC 780, at [120]-[124]; Page v Page [2016] NSWSC 1218, at [112].
Section 65(1) of the Act requires the family provision order to specify: 1. the person or persons for whom provision is to be made, and 2. the amount and nature of the provision, and 3. 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 4. any conditions, restrictions or limitations imposed by the Court.
The Court's order 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.
Section 66 of the Act sets out the consequential and ancillary orders that may be made.
Unless the Court orders otherwise, any family provision order under the Act takes effect as if it were a codicil to the Will: s 72(1)(a) of the Act.
Whilst fully contested applications in small estates should be discouraged, because the costs tend to become wholly disproportionate to the end result, there is nothing in the Act that excludes the possibility that orders for further provision be made from a small estate: Morris v Smoel [2014] VSC 32, at [68]. The Court must still consider all the relevant circumstances before a decision is made: Re Coventry (Deceased) [1979] 3 All ER 815, at 820-821; Alcock v Cooper [2010] SASC 167, per Lunn M, at [39].
Yet, in small estates particularly, the court should be careful not to foster the proposition that obstinacy and unreasonableness will not result in an order for costs: Dobb v Hacket (1993) 10 WAR 532, at 540. Bearing in mind the conclusion reached regarding notional estate, this is an estate with a small value.

Some Additional Principles

Accepting 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. Other judges, and I, have repeated them in many cases under the Act.
The Court's discretion in making an order 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, per Dixon CJ, at 19; McKenzie v Topp [2004] VSC 90, per Nettle J, at [63].
Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve "an overall fair" division of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants.
As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186, at [5]: "Fairness and equality are not touchstones for relief under the Succession Act."
In Stott v Cook (1960) 33 ALJR 447, at 453-454, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work 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."
Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales, at 19, commented upon the consideration that was to be given to the deceased's wishes: "The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning. The Court is given not only a discretion as to the nature and amount of the provision it directs, but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court."
In Vigolo v Bostin, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained: "It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification."
In Goodsell v Wellington [2011] NSWSC 1232, at [108], I also noted 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."
Of course, in 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.
In all cases under the Act, what is adequate and proper provision is necessarily fact specific: Sgro v Thompson, per White JA, at [67].
The size of the estate is a consideration in determining an application for provision. However, its size does not justify the Court in re-writing the deceased's Will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327, at [41]; Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35, at [67].
In relation to the claim by Kenneth, being a claim for provision by an adult child, I have set out the following principles in many other cases, which are also useful to remember: 1. The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. 2. It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, "ordinarily, the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, child up in a position where she or he can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation": Taylor v Farrugia [2009] NSWSC 801, at [57]; McGrath v Eves [2005] NSWSC 1006; Kohari v Snow [2013] NSWSC 452, at [121]; Salmon v Osmond [2015] NSWCA 42, at [109]. 3. Generally, also, "the community does not expect a parent to look after his or her children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute": Taylor v Farrugia, at [58]. 4. There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) [1981] 2 NSWLR 532, at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37, at 45; Taylor v Farrugia, at [58]. 5. The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169, at [179]-[182]; Crossman v Riedel [2004] ACTSC 127, at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297, at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164, at [17]. 6. The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd at 149.
A very similar statement of these principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275, at [111], was cited with approval in Chapple v Wilcox at [21]; and at [65]-[67]; and was referred to, with no apparent disapproval (although in that appeal there was no challenge to the correctness of those principles), in Smith v Johnson, at [62].
The role of the Court is not "to address wounded feelings or salve the pain of disappointed expectations" that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep).
In Foley v Ellis, at [88], Sackville AJA noted that Singer v Berghouse "strongly suggests that the Court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. 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".
Janette is not an applicant for provision. She does not have to prove an entitlement to the provision made in the deceased's Will for her, or otherwise justify such provision. Nor does she have to explain the decision by the deceased to make the provision that she did for Janette in her Will.

Qualifications on "Principles"

As long ago as 1980, in White v Barron, at 440, Stephen J wrote: "[T]his jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application."
As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian), I do not intend what I have described as "principles" or "general principles" to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.
It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. Cases involve different classes of eligible person, different factual circumstances, and different competing claims by others upon the estate of the deceased.
As Lindsay J wrote in Verzar v Verzar, at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."
The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox, by Basten JA, at [18]-[20], and by Barrett JA, at [66]-[67]; in Burke v Burke [2015] NSWCA 195, at [84]-[85]; and Yee v Yee, at [172]. They must be remembered.

Additional Facts

I next set out some facts, by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come in relation to areas of dispute between the parties. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59": Verzar v Verzar, at [124], but in order to complete the recitation of facts that will assist me to determine the questions that must be answered.

(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship

Kenneth is the child of the deceased. He gave evidence that, when he lived with the deceased between 2010 and 2015, he assisted in caring for the deceased, and completing household tasks. This has been outlined earlier in these reasons.
The evidence indicates that Kenneth did not see the deceased very much from around 2015, although he asserted, in his affidavit made 1 August 2018, that he would try to call her every six weeks or so between 2015 and 2018. He gave evidence that the deceased would either not want to speak to him, or their telephone conversations would be very short.

(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

This is not expressly referred to in the Plaintiff's affidavit evidence. I have earlier referred to the nature of a parent's obligation to an adult child.

(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

The nature and extent of the deceased's estate has been described earlier in these reasons. It is a small estate.

(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

I accept that Kenneth has limited earning capacity.
I also accept that Janette has limited earning capacity.

(e) if the applicant is cohabiting with another person the financial circumstances of the other person

This section is not applicable, as Kenneth lives alone.

(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

Kenneth, and Janette's, medical conditions, respectively, have been outlined earlier in these reasons. I do not repeat them here.

(g) the age of the applicant when the application is being considered

As stated, Kenneth is presently 63 years of age.

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant

As has been discussed earlier in these reasons, I accept that the Plaintiff made some contribution to the welfare of the deceased, and contributed to the upkeep of the deceased's home, which forms part of her estate. I also accept that for a period of time, he made some contribution to her welfare, although that did not continue after 2015.

(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

Any provision the deceased made for Kenneth, by way of lump sum for example, was not expressly disclosed in the evidence. I accept that Kenneth received a financial benefit from living at the deceased's home, rent free, between 2010 and 2015. He was able to rent the Nana Glen property and use the rental income to pay the mortgage instalments.

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

The deceased's testamentary intentions, expressly stated in her statutory declaration, excerpted earlier in these reasons, indicates her intentions in relation to her estate.

(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

Kenneth lived with the deceased for the period 2010 to early 2015, however there is no other evidence to indicate he was being maintained by the deceased in adulthood, before or after he lived with her.

(l) whether any other person is liable to support the applicant

There is no other person liable to support the Plaintiff.

(m) the character and conduct of the applicant before and after the date of the death of the deceased person

I accept that Kenneth cared for the deceased and attended to the deceased's needs, at least partially, in the period 2010 to 2015. I also accept that he and the deceased had a turbulent relationship during this period, and otherwise. This may have been exacerbated by alcohol consumption.

(n) the conduct of any other person before and after the date of the death of the deceased person

I have dealt with the conduct of Janette in relation to the deceased. I accept that, from at least 2015 until the deceased's death, she was a primary source of support for the deceased.

(o) any relevant Aboriginal or Torres Strait Islander customary law

This factor is not applicable.

(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

I have dealt with the relevant matters earlier in these reasons.

Determination

Having established eligibility, and that the proceedings were commenced within time, relevantly, the Court must determine whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life, of Kenneth, has not been made by the Will of the deceased.
What is written below should be read as a continuation of what has been written above. In addition, I have regarded the factual matters, so far as they are relevant, to the circumstances set out below.
There was provision in the deceased's Will made for Kenneth but it was for $2,000 only. However, the amount of the provision does not, automatically, mean that he will have satisfied what has been said to be the jurisdictional threshold. A person may fail to satisfy the description of being "left without adequate provision" even though no, or little, provision is made for her in the deceased's Will.
Yet, judged by quantum, and looked at through the prism of his financial and material circumstances, adequate provision for Kenneth's proper maintenance or advancement in life could be seen as not having been made by the Will of the deceased. As stated above, the test established by s 59 of the Act has regard not only to what is "adequate" by reference to the applicant's needs, but also to what is "proper" in all the circumstances of the case.
The Court is required to make an assessment of Kenneth's financial position, the size and nature of the deceased's estate, the relationship between him and the deceased, the competing claims, particularly of Janette, as the other person who has a legitimate claim upon the bounty of the deceased, and the circumstances and needs, particularly, of each of them: see, for example, McCosker v McCosker, at 571-572; Singer v Berghouse, at 210; Vigolo v Bostin, at [16], [75], [112]; and Tobin v Ezekiel, at [70].
A wise and just parent will recognise that disharmony between parent and child is almost inevitable and that in family relationships, hurts are inflicted, or suffered, sometimes consciously, and sometimes unconsciously. Regrettably, this is part of family life. To some extent, in the present case, the relationship may have been damaged as a result of the effects of alcohol.
Yet, the deceased's statement of the reasons for making the provision that she did for Kenneth must also be remembered and given weight to the extent that it is accurate.
Taking all of the matters into account, I came to the conclusion that adequate provision for Kenneth's proper maintenance and advancement in life was not made by the Will of the deceased. His current circumstances and the significant debts that he has, taken with his medical conditions, means that some very modest provision out of the estate of the deceased should be made out of the deceased's estate for him in lieu of the provision made for him in the Will of the deceased.
The value of the estate, whilst small, is sufficient to make provision for both of the persons to whom the deceased owed some form of testamentary duty.
The more difficult question then arises, namely what provision "ought to be made for Kenneth's maintenance, education or advancement in life", having regard to the facts known to the Court. This involves "an instinctive synthesis that takes into account all the relevant factors and gives them due weight": Grey v Harrison, at 367. It is not a scientific, or arithmetic, exercise and it is often difficult to articulate the factors which contribute to that "instinctive synthesis". However, similar considerations as are set out above often arise.
Having considered the matters I am required to consider, and remembering that what is "proper" requires an evaluative judgment that has regard to all relevant circumstances, not merely financial circumstances, I was satisfied that in lieu of the provision made for him in the Will of the deceased, he should receive a capital sum of $52,350. This will enable him to pay off his credit card debts ($8,424), and his outstanding rates ($4,218) and will leave about $40,000, which will enable him to significantly reduce his line of credit, or his mortgage debt, whichever he considers he should best reduce.
In coming to the conclusion on the quantum of the provision to be made for Kenneth, the deceased's entitlement to testamentary freedom, and the fact that she made a detailed, and sworn, statement setting out the reasons she had for making no provision for making limited provision is, of course, important and was given significant weight in reaching my conclusions.
I have earlier referred to the amount of costs that were capped at $47,650. The total of the amount of provision, taken with the amount for his costs, means that the total amount of $100,000 will be deducted from the total value of the estate ($525,685), leaving $425,685, from which Janette must pay the balance of her costs ($60,000). That will mean that she should receive, after the payment of her costs, about $365,685.
The orders that were made (as amended as I had omitted to refer to the provision for Kenneth being in lieu of the provision made for him) were as follows: 1. Orders that in lieu of the provision made for him in the Will of Hannah Marie Fitzgerald ("the deceased"), the Plaintiff receive, by way of provision, a lump sum of $52,350 out of the estate of the deceased. 2. Orders that the Plaintiff receive costs capped at $47,650 out of the estate of the deceased. 3. Orders that the Defendant's costs, calculated on the indemnity basis, of the proceedings, be paid, or retained, as the case may be, out of the estate of the deceased. 4. Notes that the two pecuniary legacies, each of $2,000, to the two other adult children of the deceased, will be paid out of the estate. 5. Orders that upon delivering reasons for judgment the exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW), rule 31.16A, and Practice Note SC Gen 18, Paragraph 26.

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: 06 August 2019

Family Provision Act 1982(NSW)

Testator's Family Maintenance and Guardianship of Infants Act 1916(NSW)

yer (1980) 144 CLR 490; [1980] HCA 31 Goodsell v Wellington [2011] NSWSC 1232 Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison [1997] 2 VR 359 Harkness v Harkness (No 2) [2012] NSWSC 35 Hawkins v Prestage (1989) 1 WAR 37 Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep) Hinderry v Hinderry [2016] NSWSC 780 Hughes v National Trustees Executors & Agency Company of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2 Hunter v Hunter (1987) 8 NSWLR 573 In re the Will of FB Gilbert (dec'd) (1946) 46 SR (NSW) 318 Kay v Archbold [2008] NSWSC 254 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 MacGregor v MacGregor [2003] WASC 169 Manuel v Lane [2013] NSWCA 61 Marks v Marks [2003] WASCA 297 McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 McDonald v O'Connor [2019] NSWSC 261 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Morris v Smoel [2014] VSC 32 Page v Page [2016] NSWSC 1218 Palagiano v Mankarios [2011] NSWSC 61 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 Re Coventry (Deceased) [1979] 3 All ER 815 Salmon v Osmond [2015] NSWCA 42 Sgro v Thompson [2017] NSWCA 326 Singer v Berghouse (No 2) (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297 Squire v Squire [2019] NSWCA 90 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Sung v Malaxos [2015] NSWSC 186 Szypica v O'Beirne [2013] NSWSC 297 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) White v Barron (1980) 144 CLR 431 Texts Cited: 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 Category: Principal judgment Parties: Kenneth Gordon Drummond (Plaintiff) Janette Evelyn Drummond (Defendant) Representation: Counsel: Mr D F Elliott (Plaintiff) Mr N Bilinsky (Defendant)

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Legislation Cited (5)

Cases Cited (90)