Drury v Smith

The Claim 1HIS HONOUR: These are proceedings commenced by Elaine Gibson Drury, who applies for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act") upon the principal basis that she was a person living in a de facto relationship with Norman Colin Gunning ("the deceased") at the time of his death. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the court, under Chapter 3, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person. 2The Plaintiff commenced the proceedings by Summons filed on 9 November 2011, that is, within the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased). She filed an amended Summons on 20 June 2012, in which she sought an additional order that distributed property be designated as notional estate. For reasons to which I shall refer, it is unnecessary to consider whether to designate the distributed property as notional estate. 3The Defendant named in the Summons is Carol Ann Smith, one of the four children of the deceased and the executrix appointed in the Will of the deceased, to whom Probate was granted. 4Without any undue familiarity, or disrespect intended, and for convenience, I shall refer, hereafter, to the Plaintiff and the Defendant, and any other family members, after introduction, by her, or his, given name, in these reasons rather than to the role each plays in the proceedings.

Formal Matters 5The following facts are uncontroversial. 6The deceased died on 29 January 2011. He was then aged 76 years having been born in March 1934. 7The deceased was described by a number of the witnesses as "a private", or as "a very private", man. He was also described, by his daughter, Robyn Maree Gunning, as "old fashioned". 8The deceased was married to Kathleen Dawn Gunning, but she predeceased the deceased, having died in March 1985. There were four children of their marriage, three who survived the deceased, namely, Carol, who was born in July 1959, Debra Dawn Ramsay, who was born in October 1956, and Robyn, who was born in February 1958. The fourth child, Jane Gunning, did not survive childbirth. 9The deceased left a Will that he made on 23 September 1985, Probate of which was granted, to Carol, on 4 May 2011, by this Court. By that Will, the deceased left the whole of his real and personal estate to his three surviving children equally. No provision was made in the deceased's Will for Elaine. 10In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the property owned solely by deceased at the date of death, was disclosed as having an estimated, or known, gross value of $2,004,754. No liabilities were disclosed. The estate was said to consist of real property at Hyams Beach, New South Wales ($1,300,000) ("the Hyams Beach property"), real property at Mt Druitt ($500,000) ("the Mt Druitt property"), a one-third share of real property at St Marys ($166,000), money on deposit ($34,554), two cars ($2,200) and furniture and personal belongings ($2,000). (I have omitted any reference to cents and shall continue to do so. This may result in what might appear to be minor mathematical miscalculations.) 11The Hyams Beach property had been purchased by the deceased and Kathleen in about 1965. 12The Mt Druitt property was sold in about August 2011, for a sale price of $346,000. Carol disclosed that funeral costs ($4,627), legal costs of sale of the Hyams Beach property ($732), legal costs of probate ($7,446), filing fees ($1,741), administration costs ($1,152), legal costs of sale of the Mt Druitt property ($1,349), agent's commission ($10,415), rates for the Mt Druitt property ($282), and rates and utilities for the Hyams Beach property ($1,784), were paid out of the estate. 13The interest of the deceased in the St Marys property represents an inheritance provided for in 2007 from the estate of the deceased's mother. The deceased's sister, Diann Ellis, lives in that property pursuant to a right of residence "for as long as she wishes" contained in a Deed of Family Arrangement entered into on 1 July 2008. The deceased was a party to that Deed and signed it. Diann does not pay any rent to the estate for her occupation, but she does pay all of the rates, outgoings and maintenance costs on the St Marys property. 14The Deed also provides that the St Marys property cannot be sold without the written consent of Diann. Furthermore, if she requests that the property be sold and another property be purchased, then the other parties to the Deed are to join in the purchase, which substituted property would then be held as tenants in common in equal shares. 15Diann is presently aged 64, and the parties agree, she has a current life expectancy of about 24 years. 16The parties agreed that the deceased's estate currently consists of the property at Hyams Beach ($800,000) and the deceased's interest in the St Marys property ($100,000). There has been some difficulty, however, selling the Hyams Beach property, which has remained for sale since April 2011. It is currently advertised for sale at $1.1 million. 17The parties also agreed, in the event that the Hyams Beach property is sold, that there will be agents' commission ($25,575), legal costs ($1,705) and capital gains tax ($18,472) payable. (There is, in fact, an issue, regarding whether CGT is payable on the sale of the Hyams Beach property.) 18They also agreed that a part of the deceased's estate at the date of his death was distributed subsequently. On 29 June 2011 a distribution of $6,000 to each of Carol, Debra and Robyn was made. A further distribution of $104,000 to each of Carol, Debra and Robyn was made on 10 October 2011 following the sale of the Mt Druitt property. 19When the matter resumed on 5 September 2012, Carol gave evidence that she and her sisters were prepared to return the moneys that had been distributed to each of them to the estate and, therefore, if a family provision order in favour of Elaine was made up to $330,000, there would not be any delay in complying with the order and no need to await the sale of the Hyams Beach property. Carol accepted that the total amount distributed to her and her siblings forms part of the deceased's estate. 20In addition, one of the cars owned by the deceased was given to Elaine following his death, although it is suggested that she agreed to sell her own car and give the proceeds of sale to the estate. Elaine says that the cost of repairs to the deceased's car ($750) was almost equal to the proceeds of sale of the car she sold ($800). (I do not think that anything turns on this issue as the value of the estate would not be increased in any material way and therefore this may be ignored for the purposes of the calculation of the value of the estate at the date of hearing.) 21At the hearing, the parties were able to agree that the current net value of the real property in the estate ($900,000), taken with the distributed property ($330,000), less the liabilities on sale of the Hyams Beach property ($45,752) will be $1,184,248 (less the costs of the proceedings ordered to be paid). (If CGT is not payable, the value will be $1,202,720.) 22In calculating the value of the estate, finally available for distribution, the costs of the present proceedings should also be considered, since the Plaintiff, if successful, normally, will be entitled to an order that her costs be paid out of the estate of the deceased, whilst the Defendant, as executrix, irrespective of the outcome of the proceedings, normally, will be entitled to an order that her costs be paid out of the estate. 23Elaine's costs and disbursements of the proceedings, including counsel's fees, calculated on the ordinary basis, were estimated to be about $52,200 (inclusive of GST and upon the basis of a two day hearing). 24Carol's costs and disbursements of the present proceedings, including counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a two day hearing), were estimated to be about $78,752, of which $17,134 has already been paid out of the estate, leaving a balance of about $61,617. 25Since the matter was not completed within the time allotted, Elaine's costs, calculated on the ordinary basis, have increased by $11,000. Carol's costs, calculated on the indemnity basis, have increased by $11,725. (Without objection, I was informed of these additional costs from the bar table by counsel for each of the parties.) 26The parties accepted that for the purposes of the hearing, I should determine the Plaintiff's application upon the basis that the estimated value of the net distributable estate, after the payment of such costs as ordered to be paid out of the estate (using the costs estimates set out), will be about $1,047,706. (If CGT is not payable, the amount will be $1,066,178). 27(In fact, the estimated value of the estate might be slightly less since the parties agree that the value of the deceased's interest in the St Marys property, bearing in mind Diann's interest, is about $31,000. If one accepts this value, then the net estate, after the payment of costs and expenses, will be in the order of $1,000,000. It will be slightly more, if CGT is not payable.) 28The persons who are, or who may be, eligible persons, within the meaning of the Act, are the children of the deceased and Michael Smith, who is Carol's husband. He has been served with a notice of claim. (Carol disputes that Elaine is an eligible person within the meaning of the Act.) 29Only Elaine has commenced proceedings under the Act. Clearly, the Defendant, as a party, is aware of the proceedings, as are her siblings, and her husband, each of whom has sworn, or affirmed, at least one affidavit that has been read in the proceedings. The Act (as will be seen) provides that since each has not commenced proceedings, I may disregard her, and his, interests as a person in respect of whom an application for a family provision order may be made. However, I am not permitted to disregard the interests of the children of the deceased as beneficiaries.

Additional Undisputed Facts 30The following facts, which, in my view, are not the subject of any dispute, or which have been established, should be noted: (a) The Plaintiff married George Drury on a date not disclosed in the evidence, but which date I was informed, from the bar table, without objection, was August 1959. There were three children of the marriage, each of whom is now an adult. (b) Elaine remains married to Mr Drury and has taken no steps to divorce him, or to seek a property settlement finalising their financial inter-relationship. She says that her marriage had irretrievably broken down well before 2000, but that she was, initially, afraid to leave him, but that she did so in 2002. They have been separated since that time. Mr Drury continues to live in a jointly owned property at Old Erowal Bay without any payment being made by him to Elaine. (c) Between 2002 and about April 2010, Elaine lived in a granny flat at Doonside, although she and the deceased spent time together, either there, or at his home, in Mt Druitt. (d) In about April 2010, Elaine moved into the deceased's home at Mt Druitt. She did so at a time when the Doonside property in which she lived was to be sold. She maintains that this was not the sole motive to move in with the deceased. (I accept also that the deceased, after about 2000, had requested her to move in with him many times before she actually took that step.) (e) The deceased had named Elaine as his "partner" in the records of various hospitals at which he had been a patient in the period shortly before his death. On at least one of the records, his signature appears. For example, in a Blacktown Hospital Record of October 2010, Elaine is referred to as the deceased's "next of kin" and her relationship is described as "Partner". In a NSW Health Nursing Service Report Sheet dated 1 December 2010, there is a reference to the deceased as "76 year old gent living with partner". In the same document, next to the date 10 December 2010, there is a reference to "Partner going to GP today to ask about meds". In a document headed "Short Term Equipment Service Agreement- Client Copy", there is a reference to Elaine as the "Contact Person" and her relationship with "the client" (the deceased) is described as "partner". In an Electronic Medical Record dated 16 December 2010, under the heading "History of Present Illness", the following appears: "76 year old man lives at home with partner, sent in Ed by partner for not eating drinking well...". In a NSW Health Nursing Service Record, which was created in late December 2010, Elaine is referred to as "N.O.K./Person for Notification". The deceased is also described as not living alone. There are other notations of a similar type, to which it is not necessary to refer. It is clear that the person referred to could only have been Elaine. Carol does not suggest that there was any other person who, at that time, could have occupied the role described. (f) In the Death Certificate of the deceased, in which Carol is noted as the "Informant", Elaine is referred to as the "de facto wife" of the deceased. Carol did not dispute that she was the informant. (g) In a Death Notice published in the Daily Telegraph newspaper, relating to the deceased, Elaine is referred to as "the loved partner" of the deceased and the reference to her appears immediately after the reference to the deceased's wife, Dawn (who had predeceased him), and before a reference to the deceased's children and other family members. Carol acknowledged that she had caused the Death Notice to be inserted and accepted that if the information contained in it was wrong, she would "probably" not have had it published. (h) By letter, dated 8 July 2011, from her solicitors, to Carol's solicitors, Elaine gave notice of her intention to make a claim under the Act. (i) There is evidence of the publication of a notice of intended distribution by the solicitors acting for Carol that appeared in the Sydney Morning Herald on 7 May 2011. (j) The deceased gave Elaine a number of gifts of jewellery, including a pearl brooch in 1988; an opal necklace in 1993; a pearl necklace and bracelet in 1994; a jade necklace in 1994; diamond earrings in 2007; and a second set of earrings in 2009. A schedule itemising that jewellery forms part of the evidence. (k) In April 2010, the deceased's daughters gave the deceased's gold watch to Elaine, and at Easter 2010, the deceased's (former) mother-in-law, Kathleen Nicolson, who is referred to in the evidence as "Kit", gave Elaine, a pink stone ring. (l) Elaine sought an affidavit from John Buttle, a neighbour at Hyams Beach. The evidence reveals that, initially, he was prepared to provide one, although he indicated that he had already prepared, and sent, one to Carol. Later, he said he was not prepared to sign an affidavit for Elaine. Carol did not read any affidavit from Mr Buttle in the proceedings. (m)There was no evidence of either the deceased, or Elaine, being in any other relationship, at any time after 2002.

The Witnesses 31As in many cases in which the relationship of the applicant and the deceased is in issue, it is necessary to assess the witnesses who give evidence about observations of that relationship. 32In this case, there were many witnesses. In referring to the evidence, I shall later endeavour to align the evidence given with the factors that I consider under the Act. However, before so doing, I should set out my views on the credibility of each of the witnesses who were cross-examined. 33I found Elaine to be a very impressive witness whose evidence I accept as reliable. She gave her evidence without prevarication and, when required, admitted matters that were against her interest. In particular, Elaine admitted that between about 1986 and 2002, whilst her relationship with the deceased was a close, loving, and meaningful one, it was also a clandestine one. However, once she separated from her husband, the relationship was no longer clandestine. Importantly, a number of other witnesses corroborated much of her evidence, including, in some respects, witnesses called by Carol. 34In addition to that other evidence, there was tendered various photographs and cards which depicted the nature of her relationship with the deceased. Of course, most of these relate to, or depict, events after 2002, although some are before that date (e.g. Valentine Day cards said to have been sent by the deceased in about 1990). Some of the photographs depict the deceased's family with Elaine. 35There are also a number of cards addressed to the deceased and Elaine from Debra and her family, a Christmas card from Carol, cards from other members of the deceased's family, and some of his friends, and one from Kit. 36There are also a number of sympathy cards addressed to Elaine, or to "the Gunning Family and Elaine", following the death of the deceased. 37I accept the following evidence that Elaine gave: "Before I moved in with him in July 2010, the deceased had said to me on a number of occasions from 2000 on words to the effect: "I want you to live with me at Mt Druitt. I want to take care of you." Soon after I moved in with him he said: "Would you move down to Hyams Beach with me." I said: " I would love to do that". We then began cleaning up his house in Mt Druitt to sell. " 38There was one matter that is of some relevance on Elaine's credit. Whilst she was living at the granny flat at Doonside, she did not inform Centrelink that she was in a de facto relationship with the deceased. She said, however, that as soon as she moved into the Mt Druitt property, she did so. (Statements to a government authority, apparently inconsistent with a party's case, may complicate the resolution of the issue of the nature of the relationship, but they are not determinative. They are taken into account as part of all the circumstances: Bar-Mordecai v Hillston [2004] NSWCA 65, at [118]; Hayes v Marquis [2008] NSWCA 10, at [99]; Thompson v The Public Trustee of New South Wales [2010] NSWSC 1137, at [28].) 39The one aspect that I do not accept Elaine's evidence on, as will be seen, is the duration of the de facto relationship. Whilst I am satisfied that a loving relationship may have commenced in 1986 or 1987, I do not accept that it was, from then, a de facto relationship. However, this is not a criticism of the veracity of her evidence, but a statement of my ultimate finding on a question of mixed fact and law. 40I found Elaine's daughter, Linda Simone Sutcliffe to be an equally impressive witness. She, too, made concessions, in her case about the relatively limited contact that she had with the deceased. She admitted that when Elaine had lived with her in about 1988, the deceased did not come to her home. She knew, however, from this time, that Elaine had formed a close relationship with the deceased although Elaine was "discreet" about that relationship. 41After 2002, Linda agreed that the relationship between Elaine and the deceased was no longer a private one. She described the deceased's attendance at Elaine's Citizenship Ceremony in 2006, at a family wedding in 2007, and at her niece's 21st birthday in April 2008. She also said that she would see Elaine at the deceased's home at Mt Druitt after Elaine moved there. 42There are two aspects on which her evidence supports Elaine's, but which is in direct conflict with Carol's evidence. Both Elaine and Linda say that when police officers came to the Mt Druitt property immediately after the death of the deceased, Carol described Elaine as the deceased's "partner". Carol denies this and gives a version that suggests that, at that time, she disputed that such a relationship existed. 43The second aspect relates to the same occasion when Carol says that Elaine "pushed" a folder of documents belonging to the deceased, which documents included the deceased's Will, into Carol's face, and said to her that she (Elaine) was not a beneficiary, about which she was extremely upset. Both Elaine and Linda state that there was no hint of unpleasantness, or discourtesy, and that Elaine simply produced the folder of documents to Carol. (Elaine says that she had known about the deceased's Will, because he had told her about it.) Elaine also gave Carol the deceased's bank statements, cheque butts and a wallet containing, on Elaine's evidence, about $500. 44I accept the evidence of Elaine and Linda where it conflicts with Carol on both these topics for reasons I shall later describe. 45Marie Jane Farthing, another daughter of Elaine, also gave evidence and was cross-examined. She became aware of the close relationship between Elaine and the deceased in about 2002. When she would telephone Elaine at the granny flat, she often spoke to the deceased on the telephone. Marie, too, said that she would see Elaine at the deceased's home at Mt Druitt after Elaine moved there. On two occasions, once in 2007 and again in 2008, the deceased and Elaine visited Marie and her family at their home in Rye Park. In 2008, they stayed in the same bedroom. 46It was not suggested that I should not accept her evidence and I do so. 47Jennifer Naomi Boomer, Elaine's sister, gave evidence that she first met the deceased shortly after her return from the United States of America, where she had been living for about 8 years, although she had heard Elaine refer to him as " my friend, Norman" at some time after 1994. 48She gives evidence that the deceased, in 2007, told her that he wished Elaine had left her husband years ago. After the wedding at which this conversation occurred, she invited Elaine and the deceased to Forster, where they stayed together for four days. They stayed in a two-bedroom cabin, in only one of which bedrooms there was a double bed. The deceased and Elaine stayed in that bedroom. 49It was not suggested that I should not accept her evidence and I do so. 50Raymond Deigan, a close friend of the deceased from about 1997 until his death, also gave evidence for the Plaintiff. He owned the butcher shop at which the deceased was, and then the deceased and Elaine were, customers. His observations are also important because they come from an uninvolved and disinterested third party. 51Raymond corroborated Elaine's evidence that she and the deceased would often do the shopping together on a Friday afternoon and he had never seen Carol shopping with the deceased. 52He gave evidence of the following conversation with the deceased, about which he was not cross-examined: "... 4.I recall that some time after 2005 whilst chatting with me at the butchery Norman said to me words to the effect: "I want Elaine to move in with me as I wish to sell Mt Druitt and retire to Hyams Beach. If we leave it too long we will be too old and it will be too late to enjoy our retirement there." I recall he told me once after that that he had someone showing interest in buying Mt Druitt. I seem to recall that he said it was Lebanese people" 53On two or three occasions, when he visited the deceased at the Mt Druitt property, he would see Elaine. On other occasions, he would not. 54He says that Elaine and the deceased appeared to him "just like any other married couple". This may be an opinion, based in part on an assumption, but it is a relevant one. It is clear that the assumption made by an uninvolved third party was that the relationship between Elaine and the deceased was more significant than that which would have existed between friends or companions. 55It was not suggested that I should not accept his evidence and I do so. 56Stella Cox, a friend of the deceased and Elaine, also gave evidence. By 1989, she observed that they were having a relationship. The deceased had told her, by this time that he "was keen on Elaine". From the early 1990s, she would receive a Christmas card signed by both of them and she would send one to them. 57(Although counsel for Carol says that there is no evidence from Ms Cox of reciprocal expressions by Elaine in respect of the deceased, I do not think that I should infer that Elaine did not share his feelings. There is more than enough evidence that she did.) 58Stella says that she believed that the deceased and Elaine were in a de facto relationship for at least 20 years. (I admitted this evidence although it was objected to, not to prove the truth of the assertion, but because it related to the reputation and public aspects of the relationship.) 59I turn now to Carol, who I must say, was an unimpressive witness. I found her to be generally argumentative. She would often respond to questions with questions rather than answering the question being asked of her. Despite all that she had seen and heard, during the proceedings, and otherwise, she maintained that Elaine was nothing more than a close friend of the deceased who occupied a room in his house. 60Her animosity towards Elaine was palpable and I am more than satisfied that where her evidence conflicts with Elaine, or any witness called on Elaine's behalf, I should not accept Carol's evidence. 61To demonstrate that this is not too harsh a criticism, I point to the following matters by way of example: (a) I have earlier referred to Carol's evidence, which is disputed by Elaine and by Linda, relating to Elaine pushing a folder of documents belonging to the deceased into Carol's face. When Carol was cross-examined about this event, her evidence produced a different picture: "She wasn't happy about it, she put it in me and said them words to me and she wasn't happy and 'I am not in the will'." (b) Carol was asked a number of questions regarding whether her sister, Robyn, had made an offer to purchase the Hyams Beach property for $900,000. She said "I don't believe so" and that "There was an offer, I believe it wasn't from my sister." She also said that in the "early days she did (make an offer), I don't know what she offered but it was not agreed to". When Robyn was asked whether she had made an offer to purchase the Hyams Beach property, she said that she had made such an offer to both Carol and Debra. (c) In her affidavit, Carol had admitted that in 2008 or 2009, "we had celebrated with Dad at [the Hyams Beach property]. Elaine stayed at the holiday house [Hyams Beach]." When asked whether Elaine had stayed at the Hyams Beach property in 2008/2009, she denied that Elaine had done so. When Carol was taken to her own evidence, at first she questioned whether counsel for the Plaintiff was looking at her affidavit, then she repeated that "Elaine was not there at Christmas time when I was there, no". When she was again shown a copy of her own affidavit, she said that the relevant part of her affidavit was wrong. (d) She could not remember ever staying with the deceased at the Hyams Beach property at the same time as Elaine was there. She then remembered one occasion in October 2009. She said that she did not know, on this occasion, whether the deceased and Elaine shared a bedroom, because "I went to bed before my father and Elaine and they were up in the morning when I arose. I didn't see them come in". (e) She accepted that Mr Deigan had given evidence that he had not seen the deceased and Carol shopping together on a Friday at the Mt Druitt Mall but said that his evidence "was not correct". (f) Carol gave evidence that Elaine was as upset as she (Carol) was following the death of the deceased and they went together to the funeral home. When asked whether the fact that Elaine was as upset as she was, demonstrated a relationship between Elaine and her father, her answer was "No they were good friends, yes, and she had been caring for dad". She did admit that Elaine had been caring for the deceased "When my father was sick and things like that". (g) She admitted only that she would "probably not" have authorised the death notice in the Sydney Daily Telegraph if the information contained in it had been wrong. (h) Carol said that she had corrected Elaine's statement that she was the deceased's de facto wife on the two occasions that Elaine had made that statement shortly after the death of the deceased, once at home, when Elaine had made the statement to the police officer who attended, and again at the funeral parlour a few days later. Yet, the documents to which I have referred, created at, or about, the time of the death of the deceased, were consistent with the relationship of Elaine and the deceased being as that described by Elaine. (i) She distributed money out of the estate to herself and to her siblings when she knew that Elaine was going to make a claim under the Act. (j) Her explanation for having sent a card to "Dad and Elaine" at Christmas 2010 was "because Elaine was in the home that Christmas and I sent a Christmas card, gave to Dad, at the home" was unconvincing. (k) She said that she frequently visited the Mt Druitt property but had never noticed a photograph in the kitchen which showed the deceased, Elaine, and other family members, including Carol, taken at his 70th birthday party in 2004. She also could not recall that the photograph had been placed on the buffet in the kitchen from about 2004. (l) She admitted that she and Robyn had offered Elaine one quarter of the proceeds of sale of the Mt Druitt property, but only did so because she wanted "to help her out". Again, I found her responses on this topic unconvincing. (m) I shall refer later to Diann's evidence about a photograph of Elaine and the deceased, used at the deceased's funeral service, which evidence is also inconsistent with Carol's depiction of the relationship of the deceased and Elaine. 62I found Robyn to be a more frank witness than Carol but not an entirely satisfactory one. There is one aspect, to which I shall refer, about her evidence, which I do not accept. 63Initially, Robyn gave the following evidence: "Q. You see, what I am suggesting to you is that going away for weekends and weeks even, as Elaine says, they were living, they were de facto partners. RALSTON: I object to that, your Honour. WITNESS: Can you ask the question again please HIS HONOUR: Just a moment. There has been an objection so I have to deal with the objection, Ms Gunning. RALSTON: It is really a matter of law, your Honour. HIS HONOUR: Well, one of the elements that I have to take into consideration under section 23C of the Interpretations Act is public reputation, so perhaps I could ask this question and then rule. Q. Ms Gunning, I don't mean in any way to be patronising in asking you this question, but you do know what a de facto relationship is? A. Mm mm. Q. And I think Mr Williams is asking you whether going away on weekends, as you knew that your father did with the plaintiff, demonstrated in your mind that perhaps they were in a de facto relationship? A. No. Not until she moved in. I would call that his de facto relationship when she moved in. Q. I see. You thought that in, I think it was April 2010 or thereabouts? A. Yep. Q. When she moved in? A. Yep." 64Later, she tried to dilute her earlier evidence, by the following evidence: "Q. The next thing I was going to say, and I put to you, that that relationship developed into a full de facto relationship in about 2002? A. No. Q. And I put to you that certainly when she moved in that you accept that that was a de facto relationship? A. No." 65It seemed to me that, when she answered the last question, the potential importance and effect of her earlier evidence had dawned upon her and she sought to change it. I do not accept her last denial. 66Robyn also stated that she could not remember whether she had told Elaine that she had described Elaine as her "stepmother" to a friend. She did not deny that she had done so. She accepted that Elaine had been the "loving partner" of the deceased. She acknowledged that there had been occasions, of which she was aware, when the deceased and Elaine had shared a bed, including when they stayed at the Hyams Beach property. She had not been surprised when the deceased had brought Elaine with him to family functions. 67Robyn also accepted that, from not long after Elaine moved into the Mt Druitt property, the deceased had become quite ill and that it was Elaine who had cared for him from then until his death. 68Arthur Percy Gunning, the brother of the deceased, was a witness called by Carol. He swore an affidavit and was cross-examined by telephone link. I was very impressed with the forthrightness of his oral evidence, including, particularly, the answers that were given in cross-examination. 69He admitted when there was something he did not know or that he could not recall and generally sounded as if he was endeavouring to assist the Court despite his relationship with his nieces. He was far more open, and frank, than I found any of the other witnesses called in Carol's case, including his sister, Diann. 70Arthur said that he did not meet Elaine until 2004 or 2005. Elaine said that they met in about 1986, which he accepted was "possible". I do not think that anything turns on this, or any similar factual dispute as to when Elaine met members of the deceased's family, since the meetings may have had more significance to Elaine (who knew of her relationship with the deceased) than to members of the deceased's family (who did not). 71He accepted that whilst he, the deceased and Diann were travelling around Australia in about 1994, the deceased may have bought Elaine a gift of a pearl necklace and bracelet. He frankly said that he "could not deny" that the deceased had done so. 72Arthur accepted that Elaine had stayed with the deceased at Hyams Beach and stayed for no more than two weeks at a time, although at other times, the deceased would come there on his own. He agreed that Elaine had been with the deceased at Hyams Beach in early 2010. He said that either they would come down together, or on occasion that the deceased would pick Elaine up from the train station. When they were there together, Elaine and the deceased would have dinner with him on occasions, and more often with Kit as well. Kit would cook for them and Elaine and the deceased would reciprocate. Most mornings whilst they were there, Arthur would have morning tea with the deceased and Elaine. 73Although, in his affidavit Arthur described the Plaintiff as "a friend" of the deceased, in his oral evidence he accepted that he had expressed surprise that Elaine had left the Mt Druitt property and he told her that he believed the deceased would have wanted her to live there. He could not recall whether he had suggested to Elaine that she obtain legal advice, but he did not deny that he may have done so. 74Finally, he accepted that if Carol's solicitors had informed Elaine, in a letter, that there was no de facto relationship between the deceased and Elaine at the time of the deceased's death, Arthur would have disagreed. 75The deceased's sister, Diann, also gave evidence and was cross-examined. Where her evidence conflicts with that of Elaine, I prefer Elaine's evidence. I formed the view that she was endeavouring to assist her nieces and to minimise the relationship between Elaine and the deceased. Overall, I do not feel able to rely upon her evidence where it is in conflict with that of Elaine. 76However, she did admit, frankly, that Elaine had attended with the deceased, funerals of family members and other family occasions. 77She also admitted that, following his death, she had given Elaine a photograph, taken at her 60th birthday, depicting Elaine and the deceased. The deceased had kept the framed photograph in his kitchen at Mt Druitt. In relation to this photograph, Diann gave this evidence in answer to questions from the bench: "Q. You told me a little while ago that you gave a photo of Norman and Elaine at your sixtieth to Elaine? A. Mm. Q. Why did you do that? A. Well, the celebrant was at my house to organise the funeral and they were looking for a photo of Norm, a nice photo to put on the front of his funeral service and I mentioned to Elaine, I said, she had a couple and I said well, I have got a nice one of him at my sixtieth, which was three years earlier. Q. Was that a photo of him and Elaine together? A. Yes. Q. And that was the photograph that went on, what did you say? A. The funeral service." 78It is highly unlikely, if Elaine was no more than a friend and companion of the deceased, that a photograph of her and the deceased would be used in the deceased's funeral service. 79Diann admitted also, albeit with some hesitation, that Elaine "must have loved the deceased" because she was caring for, and looking after, the deceased when he was ill. She also accepted that the description of Elaine in the death notice as the "loved partner" of the deceased, was an accurate one. 80Reginald Noel Murray lived near the Mt Druitt property and gave evidence of having known the deceased for 20 years and of seeing the deceased regularly. His first recollection of having met Elaine, or of the deceased having mentioned her, was in late 2009. He was not cross-examined. There is no reason not to accept this evidence. 81Kit met Elaine in early 2007 at the anniversary party of her nephew. Prior to that time, she recollects the deceased having mentioned Elaine's name. It was she who informed the deceased and Elaine that they would have to share a room with a double bed at that function. She met Elaine again at her own 90th birthday party in January 2008. She says that the deceased never told her that his relationship with Elaine was anything more than friendship that had commenced when they had worked together. He also told her that Elaine was moving into the spare bedroom at Mt Druitt. Kit was not cross-examined. There is no reason not to accept the evidence about what she was told. 82David Donald Burn is the de facto husband of Robyn. He recollects first meeting Elaine in 2003 at a birthday party held for the deceased at the deceased's home. He says that the deceased introduced Elaine as "a local and a friend of Dawn and mine". He recollects that Elaine attended a number of family functions (seven or eight) such as birthdays and special occasions at the deceased's home prior to 2010. He met her at the Hyams Beach property, for the first time, in 2008. 83Mr Burn regarded Elaine and the deceased as companions "who retained their own lives", who "had their own families but shared some common interests and enjoyed each other's company". He was not cross-examined. There is no reason not to accept his evidence. 84Michael Smith, Carol's husband, says that he had never met nor had any specific knowledge of Elaine until about 2004 and 2005. He says that she may have been present at "one or two family functions". He says, prior to Elaine moving into the Mt Druitt property, that he had never observed any female clothing or anything to indicate that any other person, other than the deceased, lived at that property. He was not cross-examined. There is no reason not to accept his evidence although he clearly underestimated the number of family functions that she attended. 85I should refer to Carol's and Robyn's evidence that the deceased discussed with each of them the fact that Elaine was planning to move in to live in the Mt Druitt property because the property at Doonside in which she lived was to be sold. Each also says that she was told that Elaine would occupy "the spare room" in the Mt Druitt property. 86Elaine could not challenge this evidence. 87Bearing in mind that the deceased was a private and old-fashioned man, he may very well have told each of Carol, Robyn, and others, that Elaine was moving into the spare room. Elaine conceded that, at least until 2002, the sexual and other relationship she asserted between her and the deceased was concealed from their families. Thereafter, the relationship was more open, but Elaine does not suggest that it was flaunted. 88Taking into account all of the other matters to which I have referred, I am satisfied that what the deceased said to Carol, Robyn and others, was only partly true and that the observations of those who considered that the deceased and Elaine were simply companions did not have the opportunity to observe their complete relationship or, if they did, they chose to ignore or deny it. 89Further, whilst it is important to remember that outward appearances may reveal features of the relationship of the deceased and the applicant with each other, it must be recognised that outward appearances may also be deceptive. 90Finally, I should refer to what is described in the evidence as "the Death Information Form". I simply note that the contents of the Death Information Form are consistent with the contents of other documents to which I have referred, made at, or around, the date of death of the deceased, in the creation of which Carol was involved, in which documents Elaine was described as the deceased's "partner" or "loved partner". 91It is unnecessary, due to the matters that I have outlined above, to express any conclusion about the circumstances surrounding the creation of this document and who provided the relevant information on that form. Bearing in mind that, at the time it was made, both Elaine and Carol was each extremely upset, the dispute between them on the inclusion of words on this document is no more than a distraction.

The Statutory Scheme - The Act 92Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out some of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in their application. 93The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008. A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, will. It is only if the statutory conditions are satisfied, that the court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate, to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary. 94The key provision is s 59 of the Act. The court must be satisfied, first, that an applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made. 95Relevantly, in this case, Elaine relies upon each of the categories of eligibility referred to in s 57(1)(b), (e) and (f) of the Act.

De Facto Relationship 96The first ground of eligibility upon which Elaine relies is s 57(1)(b) of the Act, namely that she is a person with whom the deceased was living in a de facto relationship at the time of the deceased's death. In establishing eligibility on this ground, the phrase "at the time of ... death" is important. Thus, the court must determine whether the applicant was such a person at that time. There is no other temporal limit in the subsection. 97Nor is there any definition of "de facto relationship" in the Act. However, that term is defined in s 21C(2) of the Interpretation Act 1987. A person is in a "de facto relationship" with another person if: (a) they have a relationship as a couple living together, and (b) they are not married to one another or related by family. Importantly, the definition does not require an exclusive relationship and it can be established even where one is, or both, of the parties are, married to another. 98Also, the legislation has been recast, so that it no longer uses any reference to "husband and wife", which terminology could lead to an inappropriate search for analogies to the legal relationship of marriage. 99In s 21C(3) of the Interpretation Act, in determining whether two persons have a relationship as a couple for the purposes of sub-section (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case: "(a) the duration of the relationship, (b) the nature and extent of their common residence, (c) whether a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship. No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple." 100It can be seen that the circumstances referred to may be grouped into "private" ((c), (d), (e) and (f)) and "public" ((a), (b), (g), (h) and (i)) headings. Yet, the legislation does not provide a precise test for the existence of the de facto relationship. None of the matters listed is of decisive significance. They all suggest a continuing course of conduct and behaviour, not an event at a fixed point of time. No matter how close the involvement in each other's emotional lives, a conclusion that people are living together as a couple involves consideration of the circumstances in which they are living, including the places at which they are living. The test is not primarily locational, but it has a locational element: Dion v Rieser [2010] NSWSC 50, per Bryson AJ at [14]. 101In Ingamells v Western Australia Trustees Ltd (Full Court of the Supreme Court of WA, 5 March 1993, unreported), the Full Court (Malcolm CJ, Rowland and Ipp JJ) quoted, with approval, the following passage from the judgment of Fitzgerald J in Lynam v Director General of Social Security (1983) 52 ALR 128 at 131: "Each element of a relationship draws its colour and significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meet the statutory test." 102Although each of these cases was decided many years ago (as evidenced by the reference to "the opposite sex" in the passage quoted), the general principle stated applies equally now as it did then. 103More modern cases make it equally clear that the term "de facto relationship" constitutes a single composite expression of a comprehensive notion or concept. It must be approached by considering the expression as a whole and not in several parts: Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677 at 685; (1987) DFC 95-052, at 75,589; Light v Anderson (1992) DFC 95-120; Bar-Mordecai v Hillston, at [86], [125]; Hayes v Marquis at [73] - [74]. 104The concept of "living together" does not import any concept of proportion of time. In particular, it does not require that a couple live together in a common residence on a full-time basis. On the basis that one, or both members of the couple may also be legally married, or in another de facto relationship at the same time as they are in the subject relationship, it must follow that it is feasible that the subject relationship might involve the parties living together for only part of the relationship: Moby v Schulter [2010] FamCA 748, per Mushin J, at [140] - [141]. 105In s 21C(3)(a) of the Interpretation Act, "the relationship" referred to cannot mean "the de facto relationship". As has been said by Campbell J (as his Honour then was) in Sullman v Sullman [2002] NSWSC 169, at [194], although he was speaking of s 4(2)(a) of the Property (Relationships) Act 1984: "The structure of section 4(2) is that one is required to take into account such of the matters listed in paragraphs (a) to (i) inclusive as might be relevant in the case, for the purpose of determining whether a de facto relationship exists. If "the duration of the relationship" is a factor to be taken into account in determining whether a de facto relationship exists, that means one must be able to tell what is "the duration of the relationship" before one has decided whether or not there is a de facto relationship. Thus "the relationship" in section 4(2)(a) must have a different meaning to "the de facto relationship". It seems to me that it involves a looser notion, under which the Court should take into account the duration of what is asserted to be the relationship, though also taking into account how the other factors listed in paragraphs (b) to (i) of section 4(2) might have changed during the course of that asserted duration of relationship." 106Once the physical, or factual aspects, of the relationship have been examined, whether a mental ingredient also existed should be considered. That ingredient involves some commitment, by each of the parties, to their relationship. It need not necessarily be a commitment intended to last forever, or indefinitely. Nor need it be a commitment to a long-term relationship. But it should, at least, be a mutual commitment for the foreseeable future. 107Furthermore, in assessing the degree of mutual commitment to a shared life, it is not essential that there be entire harmony, entire fidelity, entire satisfaction with the relationship, or entire commitment; the degree of commitment may be high even though there are qualifications. Dissatisfactions, infidelities, expressed complaints, and grievances, and less than entire commitment are often found in personal relationships, including marriages, and are not inconsistent with a relationship of two parties having a relationship as a couple living together, but not married to one another. 108The significance of qualifications of these kinds appears from passages in Basten JA's leading judgment in Robson v Quijarro [2009] NSWCA 365 at [14]-[16], and from passages which his Honour cited from Bar-Mordecai v Hillston at [120]-[124]: Dion v Rieser at [162]. 109Thus, the determination of the existence of a de facto relationship is essentially impressionistic. If sufficient pieces of evidence exist which, when viewed cumulatively, and through the application of common sense and proper reasoning, satisfy the finder of fact that the relationship is a de facto relationship then the statutory test is met: Scragg v Scott [2006] NZFLR 1076 at [64]. 110In addition, although said in another context, I agree with Bender FM in Dakin v Sansbury [2010] FMCAfam 628 that: "13. ... the nature of the relationship cannot be determined by looking at external societal views of what constitutes a de facto relationship, nor is it determined by what the parties themselves thought their relationship to be." 111The concept of a de facto relationship was discussed by Gzell J in Ye v Fung [2006] NSWSC 243, at paragraphs [64] - [65] of the judgment: "[64] A de facto relationship requires more than adult persons living together. They must live together as a couple. When one thinks of persons as a couple, one thinks of two people in a romantic relationship. That is the first meaning given in the Macquarie Dictionary (4th ed) with reference to people as a couple. The Oxford English Dictionary in defining the word in the sense of the union of two, or a pair, gives as its first meaning with reference to two people: 'A man and woman united by love or marriage; a wedded or engaged pair'. [65] In my view the word in the Property (Relationships) Act 1984, s 4(1)(a), in the context of the extension of relief under the Act to persons in a domestic relationship, connotes two adult unmarried persons living together, united by love, or living together in a romantic relationship. The effect of such a construction is that de facto relationships are confined to heterosexual and homosexual romantic relationships." 112Cummins J in Dow v Hoskins [2003] VSC 206 said that "the determination of whether the Plaintiff was living with the deceased ... should not be construed on narrow, formal, pedantic or merely geographical criteria, but should be considered taking into account the human reality of the personal, emotional and cultural complex". 113It can be seen from these and other authorities that the concept of a de facto relationship is complex and diverse. Such a relationship can, and should, be distinguished from the relationship of two people, who live apart, but who have a sexual relationship, and who sleep over at one another's house; and also from the relationship of two people, who share a house, but who do not have a romantic commitment to each other and who have other sexual partners. The fact that one provides the other, on occasions, with financial, or other, assistance, such as accommodation, to alleviate hardship does not mean that they are in a de facto relationship. In this way, a de facto relationship is different from friendship, or courtship, which has not matured into the commitment where there is a merging of lives so that there is a mutual commitment to a shared life. It is also different from simple companionship. 114Often, as in this case, the relationship of the applicant and the deceased may be seen as having gone through different phases. The facts applicable to those phases may be seen as having a bearing on the essential question whether the parties were in a de facto relationship at the date of death. The dominating factor will be whether the parties can be seen as living together as a couple at that time. One may, therefore, consider the facts of the parties' relationship in the different phases and then consider all of the facts.

Wholly or partly dependent member of the household 115In the alternative, the Plaintiff relies upon s 57(1)(e) of the Act, namely that she is a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased was a member. 116It can be seen, from the sub-section, that there are two limbs. Relevantly, the first is a relationship of dependence, whether wholly or partial, upon the deceased; the second is being "a member of the household of which the deceased person was a member". 117There is no dispute, in this case, that the Plaintiff was a member of the household of which the deceased was a member for a period of time. The precise period is in issue, but the Act does not state any requisite time during which an applicant must be a member of the household. 118The Act contains no definition of the words "dependent on". In general, the word "dependent" connotes a person who relies upon support of another, financial and/or emotional. Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support. 119In Amaca Pty Ltd v Novek [2009] NSWCA 50, Campbell JA, with whom the other members of the Court of Appeal agreed, said (in the context of a claim under section 15B of the Civil Liability Act 2002): "44 In my view, the law remains accurately stated by the joint judgment of Sugerman P, Jacobs and Mason JJA in Middleton v Kiama District Hospital [1970] 3 NSWR 136. Their Honours said, at 138: 'Dependency is, moreover, a complex question of fact, which may involve the consideration of many elements, including both past events and future probabilities. It is not necessarily correlative with a legal duty to maintain. A person may in fact be dependent upon another who is under no legal duty to maintain him; and may be so dependent even though there is also in existence one who has legal duty to maintain, eg a husband his wife. On the other hand there may be no dependency in fact upon a person who is under a legal duty to maintain. The existence of the legal duty is, however, one of the many elements to be taken into account in deciding upon a question of dependency in fact. Dependency and actual support are not necessarily correlative. There may be dependency although for the time being there is no actual support. And it seems to us to be possible to figure cases in which there may have been a provision of support, or of some measure of support, at least for a short time or for some special purpose, which did not amount to dependency. The definition of "dependants" does not merely refer to one who was in fact supported by the deceased worker at the time of his death; a "dependant" is a member of the workers' family who was "wholly or partly dependent for support upon the worker at the time of his death". Dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased. As to all the above matters see Hodges v Scotts' Provision (Wholesale) Pty Ltd [1963] WCR 161 and cases there cited.'" 120In Skinner v Frappell [2008] NSWCA 296, Young CJ in Eq, (with whom Campbell JA agreed) sitting in the Court of Appeal at [85] wrote: "The matter as to what is required for dependency was fully dealt with by this Court in Petrohilos v Hunter (1991) 25 NSWLR 343. Although dependency is not limited to financial dependency, it does involve one person being beholden to another person for some material, or physical, help or succour, emotional dependency is not enough." 121In Petrohilos v Hunter (1991) 25 NSWLR 343, at 346-347, it had been said by Hope AJA (Clarke and Sheller JJA agreeing): "I would respectfully disagree with the Master in both respects. The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language. This accords with what Samuels JA said in Ball v Newey at 491, that "'Dependent' in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed". If the correct view were that the context of the statute requires a limitation of the word to "financial or material" matters as McClelland J said in Re Fulop (dec'd) or to "other forms of dependence analogous to but distinct from financial dependence" as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period." 122In Ball v Newey (1988) 13 NSWLR 489, Samuels JA, at 492, had also said: "Counsel then suggested, as I understood him, that these circumstances produced no dependency because each of them was separately financially capable of acquiring somewhere to live, so that their decision to live together and finance their purchase jointly was, in some sense, an indulgence which the law should not countenance. I see no substance in this argument. I assume that dependency involves the total or partial satisfaction of need. But the need is not restricted to the requirements of basic necessity or sustenance: cf, in a different context certainly, the meaning of "needs" in the Liquor Act 1912 as "reasonable demands or expectations": Toohey v Taylor (1983) 1 NSWLR 743 at 749. Whether dependency, total or partial, exists is a question of fact: Aafjes v Kearney (1976) 50 ALJR 454; 8 ALR 455. It is not to be determined upon theoretical considerations. It is "the actual fact of dependence or reliance on the earnings of another for support that is the test": per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 at 189. "The standard of support is set by the parties themselves" (at 190). Hence it is irrelevant that the appellant could have provided separate living accommodation out of his own income. That was not what he and the deceased chose to do. If it is relevant, it cannot be said that what they did choose to do was unreasonable and in order to support the mode of life they wished to pursue, each was, it is open to find, partially dependent upon the other." 123In McKenzie v Baddeley [1991] NSWCA 197, Priestley JA (with whom Hope AJA agreed) held that the word "partly" in the phrase "partly dependent", whilst a word of "some elasticity", does not mean "substantially", but means "more than minimally", or perhaps, "significantly". Meagher JA commented that "Common sense requires that certain trivial activities should be disregarded". 124A similar view was taken by the Court of Appeal, more recently, in Alexander v Jansson [2010] NSWCA 176 at [13]. 125The question of dependency, whether whole or partial, is one of fact.

Living in a close personal relationship 126The final basis of eligibility relied upon is that Elaine is a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death. She relies upon s 57(1)(f) of the Act 127"Close personal relationship" is defined in s 3(3) of the Act to mean "a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care". Therefore, the definition calls for two different links, the first being that the adult persons are "living together" and the second being that "one or each of whom provides the other with domestic support and personal care". 128Importantly, also, the close personal relationship must exist "at the time of the deceased person's death" for the applicant to be an eligible person: s 57 (1)(f). 129Section 3(4) of the Act provides that for the purposes of subs (3), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care (a) for fee and reward, or (b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation). 130An "adult person" is a person of, or above, the age of 18 years: s 3(1) of the Property (Relationships) Act. Persons are related by family if, for example, they have a parent in common: s 5A of the Property (Relationships) Act. 131The second link is cumulative. The expressions are not defined. However, the adult persons must be living together at the same time as one, or each, provides to, and/or receives, domestic support and personal care from, the other. Neither one nor the other, provided alone, suffices. Both domestic support and personal care must be provided. 132The word "domestic" carries connotations of matters relating to a household. The Macquarie Dictionary definition includes "of or relating to the home, the household, or household affairs". 133Some of the primary meanings of "personal" include of, or pertaining to, concerning or affecting the individual person or self; one's own; of or pertaining to one's person or body or figure; bodily. In broad terms it requires one person caring, in a personal way, for the needs of another, such as assistance with mobility, personal hygiene, physical comfort and emotional support: Hayes v Marquis at [168]. However, the notion of "personal care" should not be confined to matters relating to physicality: Hayes v Marquis at [87]. The Second Reading Speech of the Property (Relationships) Legislation Amendment Bill (Legislative Assembly, (Hansard) 26 May 1999, p 534 - 535) contemplated that personal care services may encompass ensuring the physical and emotional comfort of one or both parties for the other. 134The relevant authorities that have discussed "close personal relationship" include Dridi v Fillmore [2001] NSWSC 319; Richardson v Kidd [2002] NSWSC 306; Przewoznik v Scott [2005] NSWSC 74; Ye v Fung; Hayes v Marquis; Hughes v Charlton [2008] NSWSC 467; Marsh-Johnson v Hillcoat [2008] NSWSC 1337; Thompson v The Public Trustee of New South Wales; Barlevy v Nadolski [2011] NSWSC 129; Popescu v Borun [2011] NSWSC 1532; Geoghegan v Szelid [2011] NSWSC 1440. 135In Sharpless v McKibbin [2007] NSWSC 1498; (2008) DFC 95-414, Brereton J stated at [71]: "The inclusion within the Act of 'close personal relationships' has the effect of extending the scope of the Act beyond marriage-like relationships. It does not follow that the approach applicable to a marriage-like relationship should also be applied in the context of a 'close personal relationship' not amounting to a de facto relationship. 'Close personal relationships' within the definition cover a wide range of relationships, and typically do not involve 'a practical union of lives and property'."

Factors warranting the making of the Application 136Where an applicant falls within the definition of eligible person within s 57(1) (e) or (f) of the Act, the Court must next consider and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application (s 59(1)(b)). 137The Act does not specify the "factors which warrant the making of the application". In considering the meaning of what he described as "this poorly conceived and clumsily expressed subsection" in the former Act (which did not form part of the Draft Bill produced by the Law Reform Commission), M McLelland J said, in Re Fulop Deceased (1987) 8 NSWLR 679 at 681 (approved in substance by the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241) that the factors are factors which, when added to facts which render the applicant an eligible person, give him, or her, the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased. 138Kirby P in Tsivinsky v Tsivinsky [1991] NSWCA 269, in dealing with the section of the former Act, which was in similar terms, said: "Insofar as s 9(1) gives any guidance concerning the factors 'which warrant the making of the application', it is Delphic. The language used is extremely broad in its generality ('all the circumstances', 'whether past or present', 'factors ... warrant making the application', 'satisfies'). The only real clue as to what is meant is to be derived from the apparent policy of confining this additional, preliminary procedure to the particular categories of 'eligible person' contained in the definition paras (c) and (d) in s 6(1) of the Act." 139In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard and Fitzgerald AJJA, there was the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test than that which the Court of Appeal approved in Churton v Christian. 140In Penfold v Perpetual Trustee [2002] NSWSC 648, Windeyer J did not follow Brown v Faggoter. Bryson AJ also commented in Porthouse v Bridge [2007] NSWSC 686: "In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors ("there are factors") is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination." 141In Diver v Neal [2009] NSWCA 54 (also (2009) 2 ASTLR 89), Basten JA, with whom Allsop P and Ipp JA agreed, said of s 9(1) of the former Act: "8 As noted above, compliance with this requirement was not the first issue addressed by the primary judge, although s 9(1) envisages that it is to be determined before the Court decides whether to "proceed with the determination of the application". In practice, the factors relevant to the issue raised as a preliminary matter are, to a significant extent, co-extensive with those which must be addressed in determining whether the testator made adequate provision for the applicant: see Churton v Christian (1988) 13 NSWLR 241 at 242-243 (Hope JA) and 248-249 (Priestley JA). Nevertheless, the express distinction between two classes of eligible person must be recognised. It appears to have been drawn on the basis that persons falling within the first category (comprised of those identified in pars (a) and (b)) are "regarded as natural objects of testamentary recognition", whereas those falling within the second category (identified in pars (c) and (d)) are potentially appropriate objects of testamentary recognition, depending upon their circumstances: see Churton at 252 (Priestley JA) applying the analysis of McLelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681." 142More recently, in Evans v Levy [2011] NSWCA 125, Young JA, with whom Campbell JA and Sackville AJA agreed, said: "[62] It would seem that what the drafter of the legislation of 1982 did was to endeavour to avoid some of the complications that had been found to exist with cases under the 1916 Act as to just who was an eligible person by broadening the category to a very extensive degree. However, to provide some sort of filter, s 9(1) was enacted so that, without the estate having to get into a great expense, the question of whether the application could possibly succeed would be determined early. Unfortunately, experience has shown that that was a vain hope. [63] However, the intended result of the wide nature of para (d) of the definition of "eligible person" and s 9(1) is to seek to restrict people whose claims should proceed to a hearing to those who are in very similar categories to those who are within paras (a) and (b) of the definition. [64] On s 9, the decision of M McLelland J in Re Fulop (dec'd) (1987) 8 NSWLR 679 has stood the test of time." 143It can be seen that the trend of authorities does not favour the view suggested in Brown v Faggoter. With great respect, I also regard the views expressed in the authorities referred to by Windeyer J, Bryson AJ, Basten JA and Young JA as correct and propose, in the circumstances, to follow their decisions. 144In Porthouse v Bridge, Bryson AJ commented: "7 This provision gives no clear indication of the nature of the factors which should be regarded as warranting the making of the application. Decision whether there are factors which warrant the making of the application is committed to the Court in extremely general language; the Court is to have regard to all the circumstances of the case (whether past or present). The effect is that a very broad power is given to the judge who hears the case to recognize and assess the significance of the circumstances of the case and what regard should be paid to them, what the factors are and what they warrant. There may be very cogent factors which demonstrate that the making of the application is warranted, but it is unlikely that this will often be the case, and the section commits to the Court a power of determination which is difficult to distinguish from a discretion of the broadest kind. 9 ... The recognition of factors and their weight is left to the determination and opinion of the Judge. In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors ("there are factors") is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination."

Inadequacy of Provision 145Then, if eligibility and, if necessary, factors warranting the making of the application are found, the court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is only if the court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). It may take into consideration, the matters referred to in s 60(2) of the Act at both stages. In this way, the court carries out a two-stage process. 146Other than by reference to the provision made in the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for the applicant's proper maintenance, education or advancement in life. The question would appear to be answered by an evaluation that takes the court to the provision actually made in the deceased's Will, or on intestacy, or both, on the one hand, and to the requirement for maintenance, education or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education or advancement in life of the applicant. 147It was said in the Court of Appeal (per Basten JA) in Foley v Ellis [2008] NSWCA 288 at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment". 148Under s 59(1)(c) of the Act, the time at which the court gives its consideration to the question is the time when the court is considering the application. Under s 59(2), the Court has regard to the facts known to the court at the time the order is made. 149"Provision" is not defined by the Act, but it was noted in Diver v Neal 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". 150Neither is the word 'maintenance', nor the phrase 'advancement in life', defined in the Act. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words 'maintenance', 'support' and 'advancement': "'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education." 151In Alexander v Jansson, Brereton J (with whom Basten JA and Handley AJA agreed), at [18] stated: "'Proper maintenance' is not limited to the bare sustenance of a claimant [cf Gorton v Parkes (sic) [1989] 17 NSWLR 1], but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility." 152In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77 King CJ said: "The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang (1960) 104 CLR 124, per Dixon CJ at 128." 153Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16: "Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541) In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274... In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said: 'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.' The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that: 'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'" 154In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J at [114] noted: "In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support." 155In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)." 156The word 'adequate' connotes something different from the word 'proper'. 'Adequate' is concerned with the quantum, whereas 'proper' prescribes the standard, of the maintenance, education or advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 at [72] and at [77], per Buss JA. 157Each of the words was 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." 158Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that: "It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent." 159In Goodman v Windeyer (1980) 144 CLR 490, Gibbs J said at 502: "[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards." 160In Vigolo v Bostin, at 228, Callinan and Heydon JJ said: "[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future." 161Santow J pointed out in Gardiner v Gardiner (NSWSC, 28 May 1998, unreported), that "adequate" and "proper" are independent concepts. He said at 12: "'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. "Proper" depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied ..." 162In Palaganio v Mankarios [2011] NSWSC 61, at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life involve value judgments on which minds can legitimately differ, and there are no definite criteria by which the question can be answered. 163The first stage of the process provided for by s 59(1)(c) has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. 164Whether the applicant has a 'need' or 'needs' is a relevant factor at the first stage of the enquiry. It is an element in determining whether 'adequate' provision has been made for the 'proper' maintenance, education or advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 (Tobias JA, with whom Beazley and Hodgson JJA agreed). 165Tobias JA said, at [42] and [47]: "Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focused. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies. ... 47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is "proper maintenance etc" of the eligible person. It is because of that context that, in the present case, the "proper maintenance etc" of the appellant required consideration of a need to guard against the contingency to which I have referred." 166In Devereaux-Warnes v Hall (No 3) at [81] - [84], Buss JA said, in respect of the first stage of the process: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227. 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11. The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575. Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]." 167In the event that the court is satisfied that the power to make an order is enlivened (ie it is satisfied that the applicant is an eligible person, and, where necessary, that factors warranting have been satisfied, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), then, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made. 168The second stage of the process arises under s 59(2) and s 60(1)(b). Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the Court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour. 169Section 60 of the Act, at least in part, is new. It provides: "(1) The court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the "applicant") is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person-the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered." 170It can be seen that s 60(2) enumerates 15 specific matters which the court may take into account, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order, and, if so, the nature of any such order. 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 such of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender. 171Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. For example, when considering eligibility under sub-s (1)(a), many of the matters in sub-s (2) will be largely, if not wholly, irrelevant. 172There is no definition in the Act of "financial resources" (which term is referred to in s 60(2)(d)). However, there is a definition of that term in s 3 of the Property (Relationships) Act, which I consider helpful: "'financial resources' ... includes: (a) a prospective claim or entitlement in respect of a scheme, fund or arrangement under which superannuation, retirement or similar benefits are provided, (b) property which, pursuant to the provisions of a discretionary trust, may become vested in or used or applied in or towards the purposes of the parties ..., (c) property, the alienation or disposition of which is wholly or partly under the control of the parties to the relationship or either of them and which is lawfully capable of being used or applied by or on behalf of the parties to the relationship or either of them in or towards their or his or her own purposes, and (d) any other valuable benefit." 173Of course, sub-s (2)(d) refers also to "earning capacity", which means no more than the capacity to find employment to earn or derive income. 174Furthermore, consideration of 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 of other eligible persons as well as of the beneficiaries, whilst others do not. Importantly, also, many of the matters in sub-s (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1). 175Leaving 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. 176This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the first stage. I am comforted in reaching this conclusion by the following comments made in Singer v Berghouse (at 209-210): "... The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant." 177And by the comments of Callinan and Heydon JJ in Vigolo v Bostin (at 230-231): "We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors." 178Section 61 of the Act permits the court to disregard the interests of any other person by, or in respect of whom, an application for a family provision order may be made (other than a beneficiary of the deceased person's estate), but who has not made an application. However, the court may disregard any such interests only if: (a) notice of the application, and of the court's power to disregard the interests, is served on the person concerned, in the manner and form prescribed by the regulations or rules of court, or (b) the court determines that service of any such notice is unnecessary, unreasonable or impracticable in the circumstances of the case. 179Section 65(1) of the Act requires the family provision order to specify: (a) the person or persons for whom provision is to be made, and (b) the amount and nature of the provision, and (c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and (d) any conditions, restrictions or limitations imposed by the court. 180The order for provision out of the estate of a deceased person 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). 181The order may be made, relevantly, in this case, in relation to the estate of the deceased. As the deceased died leaving a Will, his estate includes all property that would, on a grant of probate of the Will, vest in the executor of the Will (s 63 of the Act). 182Any family provision order under the Act will take effect in this case, unless the court otherwise orders, as if the provision was made in a codicil to the will of the deceased (s 72(1) of the Act). 183Section 66 of the Act sets out the consequential and ancillary orders that may be made. 184The court, also, may, at the time of distribution of an estate that is insufficient to give effect to a family provision order, make such orders concerning the abatement, or adjustment, of distributions from the estate, as between the person in whose favour the family provision order is made and the other beneficiaries of the estate as it considers to be just and equitable among the persons affected (s 72(2) of the Act). This issue does not arise in this case given the undertaking of Carol and her siblings. 185Section 99 of the Act provides that the Court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit.

Other Applicable Legal Principles - Substantive Application 186Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were given in the context of the previous legislation, they are equally apt in a claim such as this one. 187Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate, to endeavour to achieve a 'fair' disposition of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants. The Court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act the correction of the hurt feelings, or sense of wrong, felt by an applicant. Rather, the Court's role is of a specific type and goes no further than the making of 'adequate' provision in all the circumstances for the 'proper' maintenance, education or advancement in life of an applicant. 188In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the Court to be vigilant in guarding "against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant". Freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the court": Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 19. 189In Stott v Cook (1960) 33 ALJR 447, Taylor J, although dissenting in his determination of the case, observed, at 453-4, that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged." 190Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education or 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 (NSWSC, Young J, 17 May 1996, unreported); Vigolo v Bostin at 199 and 204; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. 191In all cases under the Act, what is adequate and proper provision is necessarily fact specific. 192The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1909) 29 NZLR 959 at 966. 193Where the Court is satisfied that provision ought to be made, then it is no answer to a claim for provision under the Act that to make an order would be to defeat the intentions of the deceased identified in the Will. The Act requires, in such circumstances, for the deceased's intention in the Will to be displaced: Kembrey v Cuskelly [2008] NSWSC 262 at [45]. 194In Luciano v Rosenblum (1985) 2 NSWLR 65 at 69-70 Powell J (as his Honour then was) said: "It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of the testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies." 195That "broad general rule" was approved, by the Court of Appeal, in O'Loughlin v O'Loughlin [2003] NSWCA 99. It has also been held that the principle is applicable to the position of a person who occupies the position of a de facto wife: Re Marcuola-Bel Estate; Marcuola-Bel v Thi Ly Tran [2005] NSWSC 1182 at [31]. However, the principle is not one of immutable application: Marshall v Carruthers [2002] NSWCA 47; Clifford v Mayr [2010] NSWCA 6 at [142]-[144]. 196Whilst the distinction between married relationships and de facto relationships has narrowed considerably over time, there also remains binding authority which gives greater weight to the claims of parties who have entered "a formal and binding commitment to mutual support": Marshall v Carruthers; Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308; Sellers v Scrivenger [2010] VSC 320 at [68]. 197The important consideration is whether, in all the circumstances, the community expectation of the deceased would be for greater benefaction to have been made for the proper or adequate provision of the person seeking provision. Gleeson CJ observed in Vigolo, at [199] that the justification for interference with freedom of testation is to be found in the failure of a deceased to meet the obligations, which the community would expect in terms of maintenance, for those persons within the class of eligible persons. 198Because the parties, initially, referred to it in submissions, I will mention what is described in the cases as a "Crisp Order". It is an order of the kind made by Holland J in Crisp v Burns Philp Trustee Company Ltd (NSWSC, 18 December 1979, unreported), excerpted in Mason and Handler's "Succession Law and Practice New South Wales" at p. 13580 at [9433]). Such an order gives an applicant an interest for life in real property, or in an interest in real property, with the right to it (should the need arise) for the purposes of securing, for the applicant's benefit, more appropriate accommodation. That type of order is intended to provide flexibility, by way of a life estate, the terms of which could be changed to cover the situation of the applicant moving from her own home to retirement village to nursing home to hospital. The flexibility provided by such an order underlies the notion that a Crisp order confers a "portable life interest": Milillo v Konnecke [2009] NSWCA 109; (2009) 2 ASTLR 235, per Ipp JA at [47] - [48]. 199(The parties agreed during final submissions that a Crisp order was not the type of order that either party sought. For this reason, and because I agree, it is unnecessary to discuss this aspect further.) 200I make it clear that I do not intend what I have described as "applicable legal principles" to be elevated into rules of law or the discretion, at the second stage, to be constrained by statements of principle found in dicta in decisions on similar facts. I identify them merely as providing useful assistance in considering the statutory provisions the terms of which must remain firmly in mind.

Further Additional Facts 201I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come. (a) any family, or other, relationship between the applicant and the deceased person, including the nature and duration of the relationship 202There was no relationship of blood, or marriage, between Elaine and the deceased. The sub-section does not speak in terms of the "other relationship" necessarily being one which gives rise to eligibility under the Act. 203Approaching the matter in the way described by Campbell J in Sullman v Sullman, Elaine and the deceased met, initially, in 1973, when they were working together. At that time, and subsequently, until 2002, the Plaintiff was living with her husband, initially, at St Marys, then at Tomerong, then in Nowra and eventually, from 1991, in Old Erowal Bay. 204In 1986, Elaine and the deceased commenced a sexual relationship, which continued until the deceased's death. From 1988, Elaine worked at St Marys. She would stay at her daughter's home, or a flat, or at the deceased's home. It appears that during this time, the relationship was a clandestine one. However, the relationship, from about 1986, continued to develop between them. She says that it was a loving relationship. 205Elaine does not suggest that she lived with the deceased at any time in the 1980s or 1990s, but that they would see each other regularly. A sexual relationship continued during this time. 206In 2002, Elaine formally separated from her husband and moved to a flat at Doonside. From this time on, she and the deceased "openly shared our lives together as a couple; we slept together; cooked meals together; shopped together; shared expenses; gave each other small gifts; we gardened together. I cleaned his two houses." They spent most of their time together and would go down to the Hyams Beach property, two or three times a year, where they would sometimes stay for a few weeks. 207Although each would spend Christmas with his, or her, own family, Elaine would go down to Hyams Beach, particularly after 2004, after the New Year. 208(There was some criticism of Elaine's evidence referred to in paragraph [206]. Her evidence was said to be silent "as to whether a routine existed as to when she would visit the Deceased at Mount Druitt or when he would visit her at her flat from time to time". There was said to be no evidence of "activities which they shared, or of division of household tasks and maintenance, cooking cleaning and the like". I do not accept that the criticism was warranted as Elaine's evidence referred to at [206] was not the subject of any cross-examination. It provides what she did and what they did together. I have no reason not to accept the evidence as it is not unrealistic or fanciful.) 209As stated previously, Elaine moved into the Mt Druitt property in about April 2010 and lived there until the deceased's death. I am satisfied that even after she found the courage to leave her husband, she remained fearful of him, and that this fear, at least in part, explains her decision to not move into the deceased's home. 210There was no family relationship between Elaine and the deceased but there was clearly an "other relationship", the duration of which was about 24 years. During this period, the relationship changed from a clandestine one to an open one and one, finally, at the date of the deceased's death, when they lived together. 211In my view, the de facto relationship between Elaine and the deceased commenced only after she left her husband in about 2002. In reaching this conclusion, I accept that a de facto relationship may co-exist with the marriage of one or both parties. Whilst there was likely to have been a sexual relationship, as part of a wider relationship that included some short periods of cohabitation and aspects of mutual support before that time (from 1986 to 2002), I do not consider that it was a de facto relationship during that period. In that period, the Plaintiff was living with her husband. 212Even so, I am satisfied that it was a long standing, close and intimate relationship in which they relied on each other for company and emotional support. From about 2002, after Elaine was no longer shackled by living with her husband, the de facto relationship with the deceased commenced and it continued until the time of the deceased's death. The degree of mutual commitment to a shared life became more open. The fact that there was no caring for children is unimportant in this case in view of the age of each of the deceased and Elaine. 213The fact that they maintained separate dwellings and residences between 2002 and 2010, were not financially dependent on each other during that period, and that some of the deceased's family members did not observe the depth of their relationship, demonstrates only that they may not have been what might be described as 'a conventional de facto couple'. 214The words of Kearney J in Simonis v Perpetual Trustee Co Ltd quoting the NSW Law Reform Commission report concerning de facto relationships (1983) are apt: "The attributes and circumstances of such relationships differ greatly, ranging from what is little more than a casual liaison, to a continuing affectionate companionship, to a long-term merging of lives and resources. Moreover, the nature and quality of a particular relationship may change and develop over time, making it sometimes very difficult to pinpoint a time when the relationship should assume a new legal significance." (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 215There is no definition of the "obligations" or "responsibilities" to which the sub-section refers in the Act. One might conclude, however, that what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities owed to the applicant by the deceased. 216If, as I have found, Elaine was living in a de facto relationship with the deceased at the time of his death, an obligation or responsibility, to make adequate provision for her proper maintenance or advancement in life is recognised: see, for example, Forsyth v Sinclair [2010] VSCA 147, per Neave JA at [89]. 217The deceased appears to have acknowledged such an obligation to Elaine, as whilst he was in hospital, he said to Robyn "Take care of Elaine". 218An obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life is recognised in the case of a child. 219In this case, it appears that each of the deceased's children was financially independent of the deceased for many years before his death. This, in my view, is a relevant consideration in determining the extent of any obligation or responsibility owed to the beneficiaries. (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 220I have dealt with the nature of the estate and of the property that is accepted as having formed part of the estate even though, in part, it was distributed. It is a reasonably large 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 221Elaine gives evidence of her current financial and material circumstances as follows: Assets

(a) Half share in Erowal Bay property: $105,000 (b) Encompass Credit Union: $ 17,000 (c) 1991 Holden Apollo: $ 900 (d) Furniture: $ 800 (e) Jewellery: $ 400 (f) Encompass Credit Union Savings $ 415

(a) Half share of St George Seniors Access Home Loan: $ 31,500

222She receives an age pension of about $729 per fortnight. She spends the whole of her pension on her living expenses. 223Elaine sets out her needs as follows: (a) She would like to purchase a home, costing between $300,000 and $370,000, plus about $15,000 for stamp duty and legal expenses on the purchase. An estimate of about $350,000, inclusive of stamp duty and legal costs, may be used taking the average of the two extremes ($335,000). (b) She has a 1991 Holden Apollo valued at approximately $900 and seeks about $20,000 to enable her to purchase a second-hand car. In her oral evidence, she tendered an automatic car advertisement depicting that sort of cost. (c) She says that she needs furniture (costing between $10,000 and $15,000). Her oral evidence revealed that the furniture she required, excluding an air-conditioner, which she accepted she did not really need, was about $12,100. (d) A contingency fund for exigencies of life, including to enable her to have a holiday and pay for any unexpected medical expenses. Her counsel submitted that this sum should be about $50,000. 224In submissions, the amount of about $400,000 was put forward as adequate and proper to satisfy Elaine's needs. 225Carol in her affidavit sworn 21 February 2012 discloses that she and her husband own a home at Lethbridge Park, which is valued at between $280,000 and $300,000. They also have investments in St George Bank of some $23,000, plus the balance of a term deposit, which is part of the amount that was distributed to her from the deceased's estate. She has a 2004 car insured for $17,000 and loans totalling $27,500. Her taxable income for the financial year ending 30 June 2010 was $93,594. She has $81,070 in superannuation and her husband's superannuation entitlements are $11,070. He does not work outside the home. 226Robyn, in her affidavit sworn 21 February 2012, sets out her financial position with her partner, David, with whom she has been in a relationship since 1994. He owns their home at North Ryde, which is valued at $800,000. He also owns an investment property in Parramatta valued at $360,000. She has a 30% share in an investment unit at Main Street, Coorparoo Queensland which is valued at $260,000 based on her share of rent of $260 per week. She has superannuation of $57,000 and a 2005 Honda Odyssey valued at $16,000. They also own a Holden Commodore station wagon valued at $3,500 and shares valued at $36,400. She is employed by the Department of Education and earns $340, after tax, per week. David is employed as a mechanical technical officer on a salary of $85,000 plus 15% superannuation before tax. They both share mortgage liabilities to ING of some $463,000. 227Robyn applied the distribution from the deceased's estate of approximately $110,000 in reduction of the ING line of credit. David draws on his transition to retirement pensions to assist in meeting the cost of the investment loans and has an employer superannuation fund with MLC of approximately $67,620. They have three adolescent children attending high school. 228Debra, in her affidavit sworn 16 April 2012, discloses that she and her husband jointly own a property at St Georges Basin worth approximately $300,000. They have bank accounts with savings of approximately $110,900 plus a joint bank account with $8,205. They have a 2010 Hyundai worth $18,000. Her superannuation credit is currently $32,640. They have no significant liabilities other than normal household expenses. 229It appears, in the case of Carol and Debra, the amount of cash in bank may, in part, comprise the distribution made out of the estate, by Carol, to which reference has earlier been made. Robyn appears to have spent her share to repay loans. Therefore, I must consider the position of each in the light of the concession made by Carol, regarding the return to the estate of the amount distributed. (e) if the applicant is cohabiting with another person - the financial circumstances of the other person 230Elaine currently lives with her daughter, Linda Sutcliffe and her family in her family home at Doonside. Linda says that the current living arrangements are temporary until Elaine finds alternative accommodation. There is no suggestion that her daughter is dependant upon her. (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 231Elaine says that she is in reasonably good health, although she has been seeing a counsellor weekly for stress and grief counselling since August 2011. 232There is no evidence of Carol's current health. 233Robyn says her health is good, however, emotionally she is still suffering from her father's death, the stress of the current proceedings and the declining health of her maternal grandmother who is currently 94 years of age. 234Debra does not enjoy good health following an accident in March 2009 at her place of work at Shoalhaven District Hospital and is currently on workers compensation. She was unable to be cross-examined on her evidence because she was in hospital when the matter came back for hearing. (g) the age of the applicant when the application is being considered 235Elaine is currently aged 74 years, having been born in November 1937. (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 236Elaine does not suggest that she made any financial contribution to the acquisition of the estate of the deceased. She did, however, make some financial contribution, following the deceased's death, to the outgoings on the Mt Druitt property and on the Hyams Beach property. However, these contributions were made whilst she was living in one, or other of the Mt Druitt property or the Hyams Beach property. The total of the amounts paid by her was not significant. 237Elaine did make a significant contribution to the deceased's welfare. I have earlier referred to their relationship before and after 2002. 238I have also earlier referred to the evidence of Carol and Robyn relating to her care of the deceased in the months before his death. In the submissions of Carol's counsel, the following statement is made: "It is further not disputed that the Plaintiff provided the Deceased with significant care in the last few months of his life." 239I am satisfied that Elaine made a significant contribution to the deceased's welfare. (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 240The deceased does not appear to have made any provision for Elaine during his lifetime, although he provided her with accommodation in the last eight months or so of his life. 241As previously stated, she receives nothing out of the estate of the deceased, unless a family provision order is made. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person 242While this sub-section permits the court to accept evidence of the reasons for the provision, or lack of provision, it does not compel the court to attribute any particular weight to that evidence, or to accept the deceased's statement as establishing the truth of what is asserted. 243I have earlier referred to what the deceased said to Robyn about taking care of Elaine. 244There is no evidence of any testamentary intentions other than the Will made in 1985 of which Probate was granted. (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 245There is no evidence that Elaine was being maintained, either wholly or partly, by the deceased immediately before his death, although he did not charge her any rent, or occupation fee, during the times that she lived with him. (l) whether any other person is liable to support the applicant 246Apart from the Commonwealth government's responsibility to continue to provide Elaine with a pension, there is no other person with a liability to support her. 247Whilst there might be some suggestion that because they remain married, her husband has such an obligation, it is unlikely that any such obligation would be enforced by her bearing in mind they have been separated for about a decade. 248She stated that she and her husband are unlikely to make a claim one against the other in relation to an adjustment of their property interests. She says that she remains fearful and reluctant to commence proceedings against him. (m) the character and conduct of the applicant before and after the date of the death of the deceased person 249I am satisfied that there is nothing in Elaine's conduct not already referred to, before, or after, the death of the deceased that is relevant. (n) the conduct of any other person before and after the date of the death of the deceased person 250In relation to the deceased, I am satisfied that there is nothing in the conduct of his three children that is relevant. Each had a close relationship with the deceased. 251I note that each of the deceased's children was prepared to allow Elaine to care for the deceased in the last months of his life and that she did so. 252Carol's conduct in respect of Elaine is noteworthy in a number of respects. I have referred to the distribution of the proceeds of sale, which as is obvious, is the only cash that would have been available to meet any family provision order made in favour of Elaine. As executrix of the estate, she should have been aware of her obligations. 253Another aspect that is troubling is the way in which Carol, as executrix, appears to have treated Elaine following the death of the deceased in requiring her to move from the Mt Druitt property. (o) any relevant Aboriginal or Torres Strait Islander customary law 254This is not relevant in the present case. (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 255There are no other matters that I consider relevant.

Determination 256Being an "eligible person" is a necessary precondition to the court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. In this case, I am comfortably satisfied that Elaine was living in a de facto relationship with the deceased at the date of his death. 257Importantly, the fact that the deceased and Elaine, between 2002 and 2010 maintained separate residences is not in my view inconsistent with she and the deceased being in a de facto relationship during that period. When one looks at the nature of their relationship, rather than how it manifested itself in quantities of time, they appear to me to have merged their two individual lives into life as a couple. Accordingly, Elaine is an eligible person under s 57(1)(b) of the Act. 258It is unnecessary to decide whether she falls into any other category of eligibility, but should it have been necessary to do so, I state that I am also satisfied, that she was a member of the household of which the deceased was a member. Although there was some dispute about this, where parties are living in the same household and not anywhere else, and if Elaine's evidence about sharing their activities is accepted, it is difficult not to be satisfied that she was a member of the household of which the deceased was a member. 259There was no real dispute that Elaine was partly dependent upon the deceased, at least during the period that she lived with him after April 2010. (Elaine did not suggest that she was wholly dependent upon the deceased.) Elaine, principally, relied upon the deceased providing her with accommodation during the period between at least April 2010 and the date of death, for which she was not required to pay any rent or occupation fee. Her contribution was to a "kitty" of $300 per fortnight, to pay for living expenses. During his lifetime, the deceased paid all of the outgoings on the Mt Druitt property by cheque. 260Should it have been necessary to do so, I also state I am satisfied that, at the date of his death, Elaine and the deceased were living together in a close personal relationship. There can be no dispute that Elaine and the deceased were adults and that they were "living together" at the time of the deceased's death. Accordingly, that link in the definition is established. There was no dispute that, in the months before his death, Elaine provided him with both domestic support and personal care. 261There was also no dispute that factors warranting the making of the application had been established. Elaine has established that that she and the deceased had a long standing intimate, caring and loving relationship; that they had deep affection for each other; that, for at least 8 or 9 months before the deceased died, they shared their lives on a daily basis; prior to that time, they had shared some other significant moments of their lives; Elaine gave the deceased care and support when he was ill; they had made a commitment to living together in the future. Each of these matters, whilst generally relevant, satisfy me that there are factors warranting the making of the application. 262Having established eligibility and, so far as is relevant, factors warranting the making of the application, there is also no dispute that the proceedings were commenced within the time prescribed by the Act. 263Then, the first question for determination is whether, at the time when the court is considering the application, adequate provision for the proper maintenance, education or advancement in life of Elaine, has not been made by the Will of the deceased. 264The deceased made no provision out of his estate for Elaine. Counsel for Carol accepted that, in all the circumstances of the case, the jurisdictional threshold had been satisfied. He accepted that Elaine has "need". As stated above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence. The concession was properly made. Thus, I am satisfied that there was a failure, on the part of the deceased, to make adequate provision for the proper maintenance or advancement in life of Elaine. 265Then, I turn to the second stage and next consider the nature and quantum of any provision that should be made. I am of the view that in calculating the provision that Elaine should receive, I must also bear in mind the position of the deceased's three children as the chosen objects of the testamentary bounty of the deceased. 266I do not accept the submission, made on behalf of Elaine, that in this case, the general statement of principle appearing in Luciano v Rosenblum at 69, applies. Elaine and the deceased were not married; they had not raised children together and she had not made any financial contribution to the building up of the deceased's estate. Furthermore, their de facto relationship was not what I would regard as a long one, although their relationship otherwise was. The de facto relationship was also one that, on my findings, commenced late in the life of each of them. I am also mindful of Elaine's age. 267In my view, having regard to all of the matters that I am required to consider, including amongst other things, the size and nature of the deceased's estate, the totality of the relationship between Elaine and the deceased, as well as the relationship between the deceased and his own children, each of whom also has a legitimate claim upon the deceased's bounty, I am satisfied that some provision should be made for Elaine out of the estate of the deceased. However, I do not accept that she should receive an amount that equates to about 40 per cent of the net value of the estate, or about $400,000. 268In my view, the Plaintiff should receive a lump sum, out of the estate of the deceased of $300,000. Whilst this amount might not enable her to purchase unencumbered accommodation in her sole name, it will provide a sum sufficient to enable her to pay rent of $325 per week for the remainder of her life (estimated by Carol's counsel to be about $217,000 without any discount). It will also provide her with sufficient to purchase a car (about $20,000), purchase furniture (about $12,000) and will leave about $50,000 for exigencies of life. 269In this regard, I am unable to forget that after she left her husband, Elaine lived in rented premises for about 8 years. Even when she moved into the Mt Druitt property, that was the deceased's home, in which she had no beneficial interest. 270Alternatively, Elaine will be able to purchase accommodation, either of lesser value, or subject to mortgage. In this regard, she may be able to obtain a reverse mortgage. Otherwise, she may have to come to an arrangement with her husband about selling their joint property and distributing the proceeds of sale. 271In the circumstances, I order: (i) Having found that the Plaintiff, Elaine Gibson Drury, is an eligible person, and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, order that she receive a lump sum of $300,000 out of the estate of the deceased. (ii) Order that the burden of the provision made for the Plaintiff, should be borne out of the residuary estate and that the three children of the deceased should bear the burden of that provision equally. (iii) Order that no interest is to be paid on the lump sum, if it is paid within 28 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment of the lump sum. (iv) Order that the costs of all parties shall be determined after further submissions, unless agreement is reached between them. (v) Order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the costs of the proceedings.

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: 18 September 2012