Elizabeth Ann Bremner v Jennifer Lee Graham [2016] NSWSC 633 | Case summary

Supreme Court of NSW|2016-04-19|Before: Hallen J, Santow J

Solicitors: Ashley Windus (Plaintiff) Stephen Churches (Defendant) File Number(s): 2015/95698

Judgment

HIS HONOUR: The Plaintiff, Elizabeth Ann Bremner, who is the mother of the deceased, John David Bremner, commenced proceedings by Summons filed on 31 March 2015. Although in that Summons, she sought a revocation of the grant of Probate of the deceased's Will and consequential relief, as well as a family provision order, under Part 3.2 of the Succession Act 2006 (NSW) ("the Act"), she filed and served an amended Summons, on 8 May 2015, in which she limited her claim to one for a family provision order and costs only.
The Act applies in respect of the estate and notional estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the Court, under Chapter 3 of the Act, 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.
The deceased made his last Will on 10 March 2014. Probate of that Will was granted to the Defendant, Jennifer Lee Graham, on 9 September 2014. She is the executrix and sole beneficiary named in that Will. There is a dispute about the precise nature of the relationship of the deceased and the Defendant at the date of the deceased's death, but little turns on the determination of this issue because, as written, she is the sole beneficiary named in his Will.
The Plaintiff asserts that she is an eligible person, within the meaning of that term in 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 person was a member. Since she asserts that she is a person who is an eligible person by reason only of paragraph (e) of the definition of "eligible person" in s 57, she must also establish that, having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application: s 59(1)(b) of the Act.
The Defendant denies that the Plaintiff is an eligible person and also that there are factors which warrant the making of the application. She submits, as well, that even if each of these matters is established, the Court would not be satisfied, at the time when the Court is considering the application, that adequate provision for the Plaintiff's proper maintenance or advancement in life has not been made by the Will of the deceased. (There is no scope for the operation of the intestacy rules in relation to the estate of the deceased.)
The Defendant does not deny, however, since the deceased died on 27 April 2014, that the application was made within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased).

An Outline of the Facts

I am satisfied that the following facts have been established, and that they provide a useful background. To the extent that any facts are the subject of dispute, they should be regarded as the findings of the Court.
The Plaintiff was born in June 1943.
The Plaintiff married Ian Davidson Bremner on 2 October 1965. He died in February 1996. There were four children of their marriage, namely the deceased, who was born in August 1967; Heather Ann Bremner, born in September 1972, and who died in September 1999; Buck Buchanan Bremner, born in October 1976; and Jenny Buchanan Bremner, born in February 1984.
The deceased was not married at the date of his death and he had no children. As stated, there is some dispute as to the relationship of the Defendant and the deceased. I shall return to this topic later in these reasons.
The deceased's estate, at the date of death, was disclosed as having an estimated, or known, value of $296,215. It was said to consist of real estate at Windale ($253,000), monies on deposit ($6,352), shares in NIB Holdings ($1,260), a car ($8,000) and wages and leave entitlements ($27,603). (I have omitted, and shall continue to omit, any reference to cents.)
At the date of the hearing, the actual estate was said to have a value of $271,092. The Defendant accepted that there was property that may be designated as notional estate, with a value of $295,905, made up of proceeds of a superannuation policy ($93,657), the proceeds of a death benefit ($175,492) and interest received ($26,756). It follows, from the above, that the current total value of the estate and notional estate, before the deduction of any costs of the proceedings, is $566,997.
In calculating the value of the estate and notional estate of the deceased, that is, or may be, available, finally, for distribution, the costs of the present proceedings should also be considered, albeit with circumspection, since an applicant, if successful, normally, would be entitled to an order that her costs and disbursements, calculated on the ordinary basis, be paid out of that estate, whilst the executor, irrespective of the outcome of the proceedings, normally will be entitled to an order that her costs, calculated on the indemnity basis, be paid out of the estate of the deceased.
Mr A Windus, the Plaintiff's solicitor, estimated the Plaintiff's costs and disbursements, calculated on the ordinary basis, to be $29,700, inclusive of GST, and upon the basis of a 1 day hearing.
Mr S Churches, the Defendant's solicitor, estimated the Defendant's costs and disbursements, inclusive of GST, calculated on the indemnity basis and on the basis of a 1 day hearing, to be $57,000. (It is unnecessary to comment on the reasonableness or proportionality of this estimate since the Defendant is the sole beneficiary named in the Will of the deceased. However, it should not be forgotten that in all cases, parties should work to resolving the issues between them in such a way that the costs are reasonable and proportionate to the importance and complexity of the subject matter in dispute.)
It follows that at the hearing, the value of the actual estate, after the deduction of costs, is $184,392. (Since the Plaintiff does not seek provision greater than the value of the actual estate, it is unnecessary to determine whether the property that may have been designated as notional estate should be designated as such. It is accepted that the Defendant has received, or will receive, $295,905, being the current value of the cash that may have been designated as notional estate.)

Some additional Facts

On 23 April 2015, the Plaintiff became bankrupt after the presentation of a Debtor's Petition. The document headed "Notification of Bankruptcy" (Ex. A) reveals that there was only one creditor of the Plaintiff and that the debt due to that creditor, upon which the bankruptcy was founded, was $6,849. It also discloses that the Official Trustee in Bankruptcy was appointed as the trustee of the Plaintiff's bankrupt estate.
The Court was informed from the bar table, without objection, that to enable her discharge from bankruptcy, the Plaintiff would be required to repay the debt ($6,849) as well as the costs and expenses of the Official Trustee in Bankruptcy, which were estimated to be $5,370. There may be some interest that has accrued on the debt, although the amount of interest was not calculated.
Also in evidence is some correspondence, dated 25 April 2015, addressed to the Plaintiff, following her bankruptcy, which contains the following statement: "Assets acquired during bankruptcy: if you acquire an asset during bankruptcy that is not exempt, such as an interest in a deceased estate or a lottery win, that asset belongs to the trustee and you must inform the trustee immediately".

The Effect of the Bankruptcy

In McMahon v Smith; Turner v Smith; and Smith v Smith [2011] NSWSC 487; (2011) 9 ASTLR 428, I wrote, at [128] - [129]: "One final matter of principle should be dealt with and that relates to the bankruptcy of Kristy. The right to apply for relief under the Act is personal, and does not vest in a person's trustee in bankruptcy: Coffey v Bennett; McLeod v Johns [1981] 1 NSWLR 347; Menzies v Marriott [2009] VSC 345 at [46]. That means that the applicant, not his, or her, trustee in bankruptcy, is the appropriate party to bring the proceedings. However if, whilst the applicant remains an undischarged bankrupt, he, or she, receives money, or other property, following an order for provision having been made, such property will be available to the trustee for distribution to creditors. That is a relevant factor to be taken into account: Thomas v Jackson [2002] NSWSC 660; Strano v Jovcevski [2008] NSWSC 380; Diver v Neal [2009] NSWCA 54."

The Evidence of Dependency

The Plaintiff's evidence in support of her eligibility was set out in her first affidavit. I shall set out that evidence verbatim: "27 I am the mother of the deceased. I was a member of the same household as the deceased and was dependent upon the deceased as described later in this Affidavit. I am informed and believe that I am an eligible person in relation to my son's estate pursuant to Section 57(1)(e) Succession Act 2006. … 45 From the time my husband Ian had his nervous breakdown, which coincided with the birth of Heather, I came to rely increasingly on John to help me around the home. He helped me with the care of his sister Heather, he did the washing up, he did the clothes washing (in an old copper at that time) and other chores around the house. John also babysat Heather if I had to go out for shopping or for any other purpose. … 48 Once John and Heather were both at school, Doreen looked after the children after school until I got home. John used to do a lot of work around the house despite his young age. One afternoon Doreen said to me regarding John: "Your son shouldn't have to do these things around the house. Your husband should be home more often." 49 I agreed with her but at this time I was working full time, leaving home at 6 am and returning home at 6 pm. I had no choice but to rely on John. … 57 Several months later [after a period of not working] I eventually went back to work at A. Dodd & Co at their Maitland branch 2 or 3 days per week. Once I went back to work, John resumed all the housework he had been doing previously including cooking, washing up and caring for his brother and sister. … 64 A few weeks to a month after the liaison with Ian, John insisted that I go to see a doctor. He said:- "Mum, you are upset. You need to go to Dr Lister." He then rang and made an appointment for me and came with me to see the doctor. Dr Lister did some tests and advised me that I was pregnant. I was shocked and upset about this news. 65 By the age of 16 or 17, John was cooking family meals, washing up, dusting and vacuuming. He mowed the lawn and helped me look after the children. I relied on him in this way because I had two other young children and another one on the way. 66 I was, and still am, illiterate. John also assisted me with all of my business dealings and paperwork. This included dealing with Centrelink, the Department of Housing and paying the bills. He would read me whatever mail I received and write out responses or fill in the forms for me. 67 John left High School at the age of 14 years and 10 months. Despite the fact that he was generally a very good student, he didn't like school and preferred to stay home and assist me. He lived with me until he was 17 or 18 years old. … 81 Throughout the period that he was with Annette, John took me to doctor's appointments and eye tests. He also assisted me in taking the other children to the doctors or to other appointments from time to time. I had no transport and I have never had a drivers licence. Once each fortnight he took me shopping."
The Defendant's evidence about statements made to her by the deceased (as she did not know the deceased at the times of the events spoken of by the Plaintiff) is as follows: "14 …John did say to me on a couple of occasions "When I lived with mum I helped with the cooking and cleaning up the yard. The other kids did as well. I looked after my brother and sister for a few hours on some afternoons when I got home from school and before mum got home from work. … 17 As to paragraph 66 John said to me "I had to help mum out with some forms every now and then." 18 As to paragraph 67 John said to me "I began living with my father at Corlette in Port Stephens when I was 17 or 18." I believe he attended High School for a period of time in Port Stephens when he was residing with his father."
From this evidence, it appears to be a dispute about the degree of assistance provided by the deceased to the Plaintiff, rather than the fact of assistance.

The Statutory Framework

I shall next discuss the statutory scheme and the principles that are relevant to the facts of the present case. Although I have set out much of what is written hereunder in other cases, in view of the importance of this case to the parties, I consider it necessary to 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 the application.

Eligibility

The key provision is s 59 of the Act. The Court must be satisfied, first, that the applicant is an eligible person. 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. Relevantly, one category identified in s 57 is "a person who was, at any particular time, wholly or partly dependent on the deceased person, and … who was a member of the household of which the deceased person was a member" (s 57(1)(e) of the Act).
In the present case, the Plaintiff relies upon the fact that she was a member of the household of which the deceased was a member. That language is expressive of her status, as well as her relationship to the deceased. There is no age limit placed on an applicant making an application. The Act does not specify a particular length of time during which the applicant must have been a member of the household of which the deceased was a member.
There is, and there can be, no dispute that the Plaintiff and the deceased were members of the same household, at least until he left home at the age of about 17 years.
However, to establish eligibility within this category, there is also a condition of whole, or partial, dependency. The Plaintiff cannot succeed except by virtue of a combination of status (membership of a household of which the deceased was a member) and actual dependency (whole or partial). Yet, household membership and dependency need not have occurred concurrently.
The 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.
In Amaca Pty Ltd v Novek [2009] NSWCA 50 at [45], Campbell JA, with whom other members of the Court of Appeal agreed, said (in the context of a claim under s 15B of the Civil Liability Act 2002 (NSW)): "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 [and] 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.'"
In Skinner v Frappell [2008] NSWCA 296 at [85], Young CJ in Eq, (with whom Campbell JA agreed) sitting in the Court of Appeal, 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."
In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346-347, it had been said by Hope AJA: "... 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 (1988) 13 NSWLR 489 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 McLelland J said in Re Fulop Deceased 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."
In Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, at [109], Meagher JA wrote that dependency "in this context means actual reliance on someone else for the total or partial satisfaction of some need. It is not limited to purely financial or material matters", and at [110], that it "may exist, irrespective of whether the dependent person is financially or physically able to support himself or herself".
In McKenzie v Baddeley [1991] NSWCA 197 at [4], Priestley JA (with whom Hope AJA agreed) had held that the word "partly" in the phrase "partly dependent", whilst a word of "some elasticity", does not mean "substantially" dependent, but means "more than minimally", or perhaps, "significantly". Meagher JA, at [6] commented that "[c]ommon sense requires that certain trivial activities should be disregarded".
A similar view was taken by the Court of Appeal in Alexander v Jansson [2010] NSWCA 176 at [13]. At trial (Alexander v Jansson [2009] NSWSC 1000 at [27] - [30]), McLaughlin AsJ had written: "The tasks which the Deceased performed for his mother, were many and varied, and are set out in paras 1 and 12 in Mrs Jansson's affidavit of 5 June 2008 and in paras 6-10 in her affidavit of 25 June 2008. Those instances of dependency included supervision, maintenance and physical activities involved in the partnership conducted by Mrs Jansson and the Deceased in the business of Hereford breeding and livestock grazing; sale of cattle; Mrs Jansson and her son maintained a joint account with the Rural Bank (later State Bank) at Tamworth, conducted in their joint names, into which moneys from the sale of cattle were deposited, and from which household and property expenses were paid. Mrs Jansson said that she relied on the income from the sale of cattle by the Deceased in order to make ends meet on the property. Mrs Jansson said that the Deceased carried out most of the physical activities relating to the cattle, the sheep, the maintenance and use of machinery, the sale of livestock, farming work (for example, driving a tractor, sowing crops, spreading superphosphate). She said that without the Deceased performing that work, she would not have been able to carry on the business. She said that the Deceased also performed for her such domestic work as: chopping and stacking firewood, mowing the lawn, maintaining the house by cleaning out gutters, frequently cooking, purchasing groceries and performing other shopping for Mrs Jansson; as well as driving her to appointments in town, since she did not hold a driver's licence. In short, Mrs Jansson from her late middle age into her old age was very reliant and dependent upon the Deceased in the practical aspects of her everyday life, as well as being physically and practically dependant upon him in the conduct of their partnership business. I am satisfied that Mrs Jansson was dependent upon the Deceased in respect to the foregoing matters of personal assistance, and, further, that she was dependent upon him in relation to the earning of partnership income, and the upkeep of the rural property. I am satisfied that Mrs Jansson was at least partly dependent upon the Deceased from the period after her husband's death in 1970 and especially during the period from 1980 until 2002 (a period when Mrs Jansson was aged from 65-87)."
On appeal, Brereton J, with whom Basten JA and Handley AJA agreed, wrote, at [13]: "For my part, I would be inclined to accept that one co-owner of property is not necessarily to be regarded as dependent on the other co-owner for accommodation, since each has a right to occupy the property; nor that one partner in a partnership is to be regarded as dependent upon another just because it is the other who does the work or labour; nor that an aged parent is necessarily to be regarded as dependent upon a child who provides occasional domestic assistance: I accept that "partly dependent" involves more than "minimal" dependence [McKenzie v Baddeley [1991] NSWCA 197..."
The question of dependency, whether whole or partial, is a complex question of fact: Aafjes v Kearney [1976] HCA 5; (1976) 180 CLR 199. 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] HCA 8; (1973) 128 CLR 177 at 189.

Factors warranting the making of the Application

In the case of an applicant who falls within s 57(1)(d), (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)).
The Act does not specify the "factors which warrant the making of the application". As Pembroke J noted, in Wilcox v Wilcox [2012] NSWSC 1138, at [16], "[n]o legislative assistance is given as to the intended scope or meaning of this enigmatic requirement".
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), 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.
I have dealt with the meaning of the phrase in other cases, one of which is Doshen v Pedisich [2013] NSWSC 1507. (I note that Slattery J, in Justyn Marcus Ng v Neville Mark Morgan; Selena Natanie Ng v Morgan; Commonwealth Bank of Australia v Neville Mark Morgan in his capacity as Administrator of the estate of the late Dell Smith [2014] NSWSC 536 at [174], agreed with the views that I had expressed in that and other cases about the meaning of that phrase.) I shall not repeat what I wrote in that case.
In Sassoon v Rose [2013] NSWCA 220 at [15], an application for leave to appeal, Meagher JA (with whom Gleeson JA agreed) noted: "In addressing the question whether there were factors warranting the making of her application, Macready AsJ correctly identified the relevant principles as those stated by McClelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681, approved by this Court in Churton v Christian (1988) 13 NSWLR 241 at 252 and applied in cases such as Diver v Neal [2009] NSWCA 54 at [8]. Those 'factors' are ones which, when added to the facts which render the applicant an 'eligible person' (in Ms Sassoon's case the fact that she is the former wife of the deceased), give her the status of a person who would generally be regarded, according to community standards and expectations, as a natural object of testamentary recognition."
In Chapple v Wilcox [2014] NSWCA 392; (2014) NSWLR 646, at [4]-[6], Basten JA wrote: "The primary category of eligible people are spouses, including those in a de facto relationship with the deceased at the time of death and a child of the deceased. Other eligible persons (a category including the claimant) are required to satisfy the court that 'having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application': s 59(1)(b). The claimant must also satisfy the court that at the time when the court is considering the application, adequate provision for his proper maintenance, education or advancement in life has not been made by the will of the deceased: s 59(1)(c). Subsection (1)(c) assumes that some provision should have been made for the claimant by the will of the deceased; subs (1)(b) treats the primary category of eligible persons as naturally satisfying that assumption, whereas the secondary category (into which the present claimant falls) need to justify the assumption: see, in relation to relevantly identical provisions in s 9 of the Family Provision Act 1982 (NSW), Re Fulop Deceased; Fulop v Public Trustee (1987) 8 NSWLR 679 at 681 (McLelland J). That approach obtains support from the provisions of Ch 4 of the Succession Act dealing with intestacy. Those primarily entitled to a distribution from the estate of an intestate are a surviving spouse (ss 110-113) and the deceased's children (s 127). A grandchild has an entitlement, but only a presumptive share of a child of the intestate who predeceased his or her parent: s 127(4)."
Finally, I refer to Yee v Yee [2016] NSWSC 360 at [199] - [200], in which Slattery J wrote, after referring to the authorities: "It seems to me looking at the development of this line of authority and especially what the Court of Appeal said in Evans v Levy, that the aspect of prospects of success, mentioned in Brown v Faggoter as a possible factor warranting, cannot be a decisive factor on its own. The authorities do not suggest that the applicant's prospects of success cannot be taken into account as a factor warranting. This seems to be self-evident from the reasoning of McLelland J in Re Fulop and from Churton v Christian, which both show that there must often be a substantial degree of overlap in practice between (1) the factors warranting, and (2) those matters which must be addressed in determining whether the testator has made adequate provision for the applicant. In Diver v Neal [2009] NSWCA 54, Basten JA (with whom Allsop P and Ipp JA agreed) said that where factors warranting were to be proved, "each issue to be determined involved identification of the relationship over the course of their lives".

Inadequacy of Provision

It is only if eligibility and, as is necessary in this case, factors warranting the making of the application are found, that the Court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased (s 59(1)(c)). It is this mandatory legislative imperative that drives the ultimate result and, it is only if the Court is satisfied of the inadequacy of provision that consideration is given to whether to make a family provision order (s 59(2)). Only then may "the Court… make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made".
Relevantly, other than by reference to the provision made by the Will in relation to the estate of the deceased, s 59(1)(c) leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision actually made by the Will, 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 and advancement in life of the applicant.
Importantly, in s 59(1)(c) of the Act, there no longer appears to be any sanction to consider the provision made by the deceased during his, or her, lifetime for the applicant (see s 9(2) of the former Act).
In Grey v Harrison [1997] 2 VR 359 at 366-367, Callaway JA observed: "There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."
Basten JA, in Foley v Ellis [2008] NSWCA 288 at [3], commented that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254 at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J has described it as "an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific": Szypica v O'Beirne [2013] NSWSC 297 at [40], citing Manuel v Lane [2013] NSWCA 61 at [9].
Under s 59(1)(c), the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the Court is considering the application.
"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89, at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".
Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act.
In Jacobs' Law of Trusts in Australia by J D Heydon and M J Leeming, (7th ed 2006, LexisNexis Butterworths) at 542, the learned authors comment upon the difference between the concepts of maintenance and advancement: "The essential difference between 'maintenance' and 'advancement' is that 'maintenance' denotes a periodical payment or a payment which could validly be made periodically, whereas 'advancement' denotes a definite unique outlay for a specific purpose. Recipients of maintenance must, practically speaking, be infants, but adults may be recipients of an advancement. An advancement can never be made of a sum of money which the person to whom it is made can immediately pocket, but it must be made with a view to the establishment of that person in a business or profession, or otherwise in some definite way for that person's benefit, the whole essence of an advancement being the immediate payment of a tolerably large sum for an immediate benefit to one beneficiary."
In Re Dennis (Deceased) [1981] 2 All ER 140 at 145-146, Browne-Wilkinson J wrote: "The court has, up until now, declined to define the exact meaning of the word 'maintenance' and I am certainly not going to depart from that approach. But in my judgment the word 'maintenance' connotes only payments which, directly or indirectly, enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him. The provision that is to be made is to meet recurring expenses, being expenses of living of an income nature. This does not mean that the provision need be by way of income payments. The provision can be by way of lump sum, for example, to buy a house in which the applicant can be housed, thereby relieving him pro tanto of income expenditure. Nor am I suggesting that there may not be cases in which payment of existing debts may not be appropriate as a maintenance payment; for example, to pay the debts of an applicant in order to enable him to continue to carry on a profit-making business or profession may well be for his maintenance."
In 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 early period of life in the members of the family: Blore v Lang, per Dixon CJ at p. 128." [Footnotes omitted]
In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 at 505, Murphy J wrote: "Provision for advancement may, for example, extend to retraining or the gaining of a qualification which could advance and perhaps enable an applicant to maintain himself or herself."
In Mayfield v Lloyd-Williams [2004] NSWSC 419 at [114], White J 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 a 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."
In Bartlett v Coomber [2008] NSWCA 100 at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)."
In McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 575, Dixon CJ and Williams J stated: "The presence of the words 'advancement in life' in the... Act in addition to the words 'maintenance and education' is not unimportant... 'Advancement' is a word of wide import."
The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton in "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5 Australian Journal of Legal History 5, at 10, as reached upon "a purely economic and objective basis", whereas "proper" prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 at [72] and [77] (Buss JA), which seems to invite more subjective criteria.
These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 476: "The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."
Their Lordships went on to state, at 478: "The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the Court were concerned merely with adequacy. But the Court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration."
Dixon CJ and Williams J, in McCosker v McCosker at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that: "It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."
In Goodman v Windeyer, Gibbs J wrote, 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."
In Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at [114], 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 used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."
Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), that "adequate" and "proper" are independent concepts. He wrote, at [12]: "'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied…"
In Palagiano v Mankarios [2011] NSWSC 61 at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life involve value judgments on which minds can legitimately differ", and "[t]here are no definite criteria by which the question can be answered."
His Honour added, in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253, at [123]: "The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case including 'the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty': Singer v Berghouse (1994) 181 CLR 201 at 210."
Whether an applicant has a "need" or "needs" is also a relevant factor at the first stage of the enquiry: see s 60(2)(d) of the Act. It is an elusive and an elastic concept to define, but it is an element in determining whether "adequate" provision has been made for the "proper" maintenance, education and advancement in life of the applicant in all of the circumstances. The concept involves economic considerations.
In Collins v McGain [2003] NSWCA 190 at [42] and [47], Tobias JA, with whom Beazley and Hodgson JJA agreed, said: "42. Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies. ... 47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is 'proper maintenance etc' of the eligible person. It is because of that context that, in the present case, the 'proper maintenance etc' of the appellant required consideration of a need to guard against the contingency to which I have referred."
In Devereaux-Warnes v Hall (No 3) at [81], Buss JA wrote: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227.
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 v Hunter (1987) 8 NSWLR 573 at 575 (Kirby P).
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 v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 227 (Gaudron J). Compare Gorton at 6-11 (Bryson J); Collicoat v McMillan [1999] 3 VR 803 at 816 [38], 820 [47] (Ormiston J).
"Need", of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45] (Dodds-Streeton J). It is different from "want" and does not simply mean "demand" or "desire". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 at [54]: "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'."
In Boettcher v Driscoll [2014] SASC 86; (2014) 119 SASR 523 at [41], David J at added: "'Need' is not so synonymous with 'want' such that the two are interchangeable."
As Callinan and Heydon JJ emphasised in Vigolo v Bostin, at [122], the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined.
Yet, in referring to the concept of "need", it should also be noted that the statutory formula makes no reference to "need", but rather to "adequate provision for the proper maintenance, education or advancement in life". No doubt, this has prompted White J to write, in Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 at [147], that "the need a claimant must demonstrate is a need for 'proper' maintenance, education and advancement in life", but that does not mean that "adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others". Respectfully, I agree. Consideration of "needs" must be in the context of the statutory formulation.
In the event that the Court is satisfied that the power to make an order is enlivened (having been satisfied that the Plaintiff is an eligible person, that there are factors warranting the making of the application, and that adequate provision for his proper maintenance, education or advancement in life 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.
This part of the determination arises under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the Court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.
Section 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."
It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 at [37], as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order.
White J wrote in Slack v Rogan; Palffy v Rogan at [121], that s 60 "lists a wide range of matters" that the Court "may have regard to", but these do not provide any tangible assistance in answering the question in any particular case whether the provision made in a will was less than adequate for an eligible applicant's "proper" maintenance, education or advancement in life.
In West v Mann [2013] NSWSC 1852 at [12], Kunc J wrote: "(10) Section 60(2) provides a helpful checklist but it is no more than that. The Court is not obliged to take those matters into account. The extent to which it does (if at all) will depend upon the facts of each particular case. (11) Section 60(2)(p) confirms the breadth of matters the Court can take into account. Once enlivened, the Discretion is expressly fettered only by the requirement in s 59(2) that if an order is made, it must be such order 'as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made'".
As was also pointed out by Barrett JA, in Andrew v Andrew, at [88]-[89]: "... leaving aside its relevance to the 'eligible person' inquiry, the s 60(2) catalogue is directed to the question of what, if any, order for provision should be made and is not, in terms, applied to the initial question of the adequacy of the provision made by the will or the intestacy laws. It can be said at once that the s 60(1)(b) directive corresponds with that in the former s 9(3) to the extent that it relates to the decision regarding provision to be made. There is no express legislative intention, under either piece of legislation, that the enumerated factors are to be taken into account in deciding the initial question of adequacy of provision. There is accordingly no reason to think that those factors are to be afforded any special relevance in approaching the adequacy question. But they will, at that point, be given, independently of s 60(1)(b), such weight as they deserve in their own right as indicators of the 'adequacy' question. As the primary judge recognised at [57], this is consistent with what was said by the High Court in Singer v Berghouse in relation to the former Act."
Beazley P, in Phillips v James [2014] NSWCA 4 at [51], described s 60(2) as involving: "[A] statutory iteration of matters that had always been considered relevant in the determination of claims for provision by persons claiming an entitlement under a testator's will. However, as Basten JA observed in Andrew v Andrew, the factors identified in s 60(2) provide a more focused direction to the Court as to relevant matters to which regard may be had. His Honour was of the view that the statutory list invites consideration of a broader range of factors than was previously the case. Whether or not that is so, the important matter is that the court is required to have regard to the circumstances, including those specified in s 60(2), that it considers relevant in determining whether to make an order for family provision and the nature of any such order."
In Chapple v Wilcox, Basten JA, at [7], wrote: "Section 60 of the Succession Act spells out the matters which the Court may have regard to in determining whether the claimant 'is an eligible person' and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the 'nature of any such order', which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b)."
The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of 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.
The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.
A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).
Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently.
Section 65(1) of the Act requires the family provision order to specify: 1. the person or persons for whom provision is to be made, and 2. the amount and nature of the provision, and 3. the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and 4. any conditions, restrictions or limitations imposed by the Court.
The order for provision may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the Court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).
Unless the Court orders otherwise, any family provision order under the Act takes effect as if it were a codicil to the will (s 72(1) of the Act).
Section 66 of the Act sets out the consequential and ancillary orders that may be made.
Section 99(1) of the Act provides that the Court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the Court thinks fit.

Other Applicable Legal Principles - Substantive Application

Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst some of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act.
Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1 at 6, that it is not appropriate to endeavour to achieve "an overall fair" disposition of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants. The Court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act to correct the hurt feelings, or sense of wrong, felt by an applicant. Rather, the Court's role is of a specific type and goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance, education and advancement in life of an applicant.
The Court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63].
In Stott v Cook (1960) 33 ALJR 447 at 453-4, Taylor J, although dissenting in his determination of the case, observed 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."
Of the freedom, in Grey v Harrison, Callaway JA said, at 366: "... [I]t is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent."
In Vigolo v Bostin, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained: "It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification".
In Goodsell v Wellington [2011] NSWSC 1232 at [108], I also noted that: "Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated."
As Pembroke J said, in Wilcox v Wilcox, at [23]: "The court does not simply ride roughshod over the testator's intentions… The court's power to make an award is limited. The purpose of the discretionary power under Section 59(1) is to redress circumstances where 'adequate provision' has not been made for the 'proper maintenance, education or advancement in life' of the claimant. The adjectives 'adequate' and 'proper' are words of circumspection."
White J referred to these principles in Slack v Rogan; Palffy v Rogan, at [127]: "In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and (2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will."
Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.
As Allsop P said in Andrew v Andrew, at [16]: "If I may respectfully paraphrase Sheller JA [in Permanent Trustee Co Limited v Fraser (1995) 36 NSWLR 24 at 46F-47B], the Court in assessing the matter at s 59(1) and the order that should be made under s 59(1) and (2), should be guided and assisted by considering what provision, in accordance with prevailing community standards of what is right and appropriate, ought to be made. This, Sheller JA said ... involved speaking for the feeling and judgment of fair and reasonable members of the community. It is to be emphasised that s 59(1)(c) and s 59(2) refer to the time when the Court is considering [an application for a family provision order] and the facts then known to the Court. The evaluative assessment is to be undertaken assuming full knowledge and appreciation of all the circumstances of the case. This ... makes the notion of compliance by the testator with a moral duty (on what he or she knew) apt to distract from the statutory task of the Court."
How those community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew, at [36] (Basten JA). His Honour added, in Phillips v James, at [113]: "As discussed by Allsop P in Andrew v Andrew [2012] NSWCA 308; 81 NSWLR 656 at [16], one can say little more as to the standards and values to be applied than that the court should be guided by its perception of 'prevailing community standards of what is right and appropriate'. Views will undoubtedly vary within the community as to the weight to be given to a testator's wishes as expressed in the will: Andrew v Andrew at [35]."
Thus, "there are difficulties for the courts in making their own unaided assessment of current community attitudes in a complex and changing social environment": Williams v Aucutt [2000] 2 NZLR 479 at [44]. As Emmett JA wrote in Burke v Burke [2015] NSWCA 195 at [124]: "While community expectations and the feelings and judgment of the fair and reasonable man in the community are to be adopted as criteria, it is never self-evident what the community would expect or what its standards are or values would be. The expectations of individual members of the community may well vary widely… Indeed, it may be that individual members of the community would take the view that, apart perhaps from spouses, minors or disabled children, there should be no restraint on testamentary freedom. The Succession Act itself, in s 60(2), lays down criteria in very broad terms, leaving a very wide discretion for the Court."
In Chapple v Wilcox, at [13]-[14], Basten JA, after referring to what Allsop P had said in Andrew v Andrew, added: "One way of considering the present matter is to inquire what social, domestic or moral obligation the deceased had to provide for the claimant whilst still alive… There may be circumstances in which widely held community standards might expect a grandfather to make some provision for his grandchildren, for example where they had maintained a strong relationship and where there was reason to doubt the willingness or the ability of the parents to make adequate provision for their children. However, such considerations will always be influenced by the fact that the grandchildren are themselves mature adults. In the present case, relevant community values will be affected by the nature of the estate. Quite particular values might operate with respect to farming properties which are subject to fluctuations in relation to debt and revenue depending on natural events and particularly drought. They may also be affected by the financial viability of an estate and its capacity to support those owning or managing it, if broken up and part disposed of."
Barrett JA, at [64], wrote: "What Allsop P called 'the feeling and judgment of fair and reasonable members of the community' falls to be ascertained according to the circumstances of the particular case. Matters to be taken into account in making the relevant assessment are the applicant's financial position, the size and nature of the deceased's estate, the relationships between the applicant and the deceased and other persons who have legitimate claims upon his or her bounty and the circumstances and needs of those other persons: see Verzar v Verzar [2014] NSWCA 45 at [39]; Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 757 at [70]; McCosker v McCosker [1957] HCA 82; 97 CLR 566 at 571-572; Singer v Berghouse (above) at 210; Vigolo v Bostin (above) at [16], [75], [112]."
In Henry v Hancock [2016] NSWSC 71 at [69], Brereton J wrote, summarising these authorities: "Formerly, the yardstick which was applied was that of the wise and just testator. Nowadays, it is fashionable to couch it in terms of "community standards", although I am not at all sure that this is any different from the moral obligation of a wise and just testator and, as has not infrequently been pointed out, there is no ascertainable external community standard to guide the decision, which involves a broad evaluative judgment unconstrained by preconceptions and predispositions, and affording due respect to the judgment of a capable testator who appears to have duly considered the claims on his or her testamentary bounty - subject to the qualification that the court's determination is made having regard to the circumstances at the time of the hearing, rather than at the time of the testator's will or death."
In all cases under the Act, what is adequate and proper provision is necessarily fact specific.
Where 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, that the deceased's intention in the Will be displaced: Kembrey v Cuskelly [2008] NSWSC 262 at [45] (White J).
All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singer v Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12 at [56]. Nor does it follow that, if the Court decides it is inappropriate to make a specific provision in respect of one identified head of claim, that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams at [89].
In Chu v Ngar [2015] NSWSC 1505 at [308] - [310], although not a case involving a bankrupt, I considered the effect of the applicant for a family provision order having creditors: "Finally, there are authorities, decided under the former Act, that the court does not order provision if it is merely to go to the applicant's creditors: Caska v Caska [1999] NSWSC 289; Strano v Jovcevski [2008] NSWSC 380; Diver v Neal [2008] NSWSC 304). However, on appeal, in Diver v Neal [2009] NSWCA 54, Basten JA (with whom Ipp JA agreed) wrote, at [69], that: The dicta in Caska should not be treated as establishing any general principle. A financial benefit in circumstances where an applicant's business interests require an injection of capital may be of great assistance in permitting advancement in life. The fact that the benefit goes to paying off creditors, thereby saving the loss of an asset or reducing ongoing liabilities, does not diminish the benefit to the applicant. Allsop P, concurred, saying, at [1], that: One could envisage a particular predicament of an eligible person whereby it would be relevant to consider that any order in his or her favour would diminish the estate to meet the claims of others to no appreciable (financial or social) benefit to him or her in his or her debt-ridden condition. That is not to say, however, that relief from indebtedness may not be of significant benefit to an eligible person. A small bequest to someone with considerable debts may make the difference (as Mr Micawber said) between happiness and misery. Therefore, the fact that some, or all, of the provision made for the Plaintiff may go to discharge her debts, does not, necessarily, tend against an order for provision. Yet, the repayment of some of her debts, in this case, is unlikely to provide a significant benefit to the Plaintiff."
It follows that the fact that some, or all, of the provision that may be made in an application will go to discharge the Plaintiff's debts does not, necessarily, tend against an order for provision.
What was said in Edgar v Public Trustee for the Northern Territory [2011] NTSC 5 at [46], by Kelly J should also be remembered: "There is no onus on the... residuary beneficiary under the will to show that she is entitled to be treated as such - or to prove what may be necessary for her proper maintenance and support. Rather the onus is on the plaintiff to show that proper provision is not available for him under the terms of the will. In determining whether this is the case the Court must have regard to all relevant circumstances including the size of the estate and the nature of the competing claim by the [residuary beneficiary]. In performing this task the Court must have due regard to the will of the testator and should interfere only to the minimum extent necessary to make adequate provision for the proper maintenance, education and advancement in life of an applicant who has passed the first jurisdictional hurdle. As Dixon CJ said in the passage from Scales quoted above, due regard must be had to 'what the testator regarded as superior claims or preferable dispositions' as demonstrated by his will." (Footnotes omitted)
In Foley v Ellis, Sackville AJA, at [88] noted that Singer v Berghouse "strongly suggests that the Court cannot consider the adequacy (or inadequacy) and propriety of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act".

Is the Plaintiff an Eligible Person?

As stated, there is no dispute that the Plaintiff was a member of the household of which the deceased was a member. The real issue is whether she was wholly, or partly, dependent upon the deceased.
On balance, I am of the view that the Plaintiff is an eligible person having been partly dependent upon the deceased. In this regard, whilst I do not think he provided the assistance to which the Plaintiff referred from the age of about 5 years (as she seems to have asserted in her affidavit), he was the oldest child of the Plaintiff, and although the Plaintiff had a husband, she seemed to have been unable to depend upon him for very much assistance in maintaining or otherwise looking after the family, particularly in the late 1970s and the early 1980s. Indeed, he was absent from the family home, at times, during that period. (He was admitted to Morisset Hospital which, I understand, was a specialist psychiatric hospital.)
It was the Plaintiff who was working to earn a living to support herself and her young children. There was, then, an increase in the Plaintiff's dependence on the deceased for assistance. As the oldest child, she required him to assist her in looking after the other children and to perform some of the household duties, generally, whilst she was at work, and before he left for, and when he returned from, school. She also relied upon him after he finally left school at about 15 years of age.
Apart from the period of time that the person identified as "Doreen Beacon" (T11.10-T11.11) helped her following the birth of Heather, in 1972, it appears that it was the deceased upon whom the Plaintiff actually relied for the partial satisfaction of the need to assist in looking after the other children and to perform some household duties until she returned home from work.
Although there is a difference of degree concerning the assistance actually provided by the deceased to the Plaintiff, the fact that he told the Defendant that he did provide some assistance to the Plaintiff, corroborates her evidence that she turned to him for that assistance and that he provided it.
That each of the other children helped, when she or he respectively, was of sufficient age to do so, does not result in a lack of dependency by the Plaintiff upon the deceased. Nor does the fact that some of the things that the deceased did are "normal filial duties within the family circle that are performed by children" mean that the Plaintiff did not rely upon him.
In this regard, the facts that the Plaintiff was the principal provider for herself and her children and that she had to work until late in the evening, whilst she had young children at home are relevant to the question of dependency.
In addition, the Plaintiff is illiterate and was dependant on the deceased to help, at various times, in relation to her business dealings and paperwork including dealing with Centrelink, the Department of Housing, and in paying bills.
Furthermore, the deceased supported the Plaintiff emotionally. By way of example, in 1984 it was the deceased who observed that the Plaintiff was emotionally upset and he persuaded her to see her doctor. In fact, he made the appointment for that to occur.
It follows that I am satisfied that the Plaintiff is an eligible person within the meaning of that term in s 57(1)(e) of the Act.

Are there factors warranting the making of the Plaintiff's application?

Having determined that the Plaintiff is an eligible person, I turn next to whether there are factors warranting the making of her application. In this regard, the Court must consider whether "factors" exist which, when added to the facts which render the applicant an "eligible person" give her the status of a person who would generally be regarded, according to community standards and expectations, as a natural object of testamentary recognition.
As will be read shortly, the deceased mentioned his family as objects of testamentary recognition, although in the context of not wishing to make any provision for any of them.
When one considers this question according to community standards, I am of the view that the Plaintiff, as the mother of the deceased, has established such factors. The blood relationship is one significant factor.
Approaching the matter this way obtains some support from the provisions of Ch 4 of the Act dealing with intestacy. On an intestacy, the parents of an intestate are entitled to the whole of the intestate estate if the intestate leaves no spouse, and no issue, and if there is only one surviving parent, the entitlement vests in that parent: s 128 of the Act. The Act, itself, seems to suggest that a parent, in certain circumstances, is regarded as a natural object of testamentary recognition.
I have considered the nature of the relationship between the Plaintiff and the deceased after 1996. In this regard, it is fair to say that it was not as close as it might have been. Yet, there was no hostility between them and they did have some contact, although it could not be regarded as regular or lengthy. In the last 5 years, for example, the Plaintiff admitted that she saw the deceased 8 or 9 times: T15.09 - T15.11. She did not see the deceased at all for about 18 months prior to his death, although she did speak with him on the telephone on one occasion when his uncle died: T14.31 - T14.32.
(I do not regard them as having been estranged, although it is clear that the relationship was not a close one.)
In this regard, I have read the evidence of Tracy Dianne Partridge, who wrote that the deceased told her that he did not see his family anymore (although she noted that "he said this with a saddened/resigned smile"); the evidence of Marilyn Selway, who gave evidence that the deceased told her that he "hated' his family, being disappointed with their actions when his father passed away and that he did not intend to leave anything to any of them; Steven Francis Graham, an adult child of the Defendant, who stated that the deceased was reluctant to talk about his family, saying that he had not seen them in years, and hoped that he did not see them; and Christopher Graham, another adult child of the Defendant, who stated that the deceased told him that he did not talk to his family. None of these witnesses was cross examined.
Having considered all of the evidence, I am satisfied, for the purpose of section 59(1)(b) of the Act, that there are factors which warrant the making of the Plaintiff's application.

Inadequacy of Provision

The Court, if satisfied of the applicant's eligibility, and also that there are factors warranting the making of the application, must then determine whether adequate provision for the proper maintenance, education, or advancement in life, of that 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)).
The parties are a long way apart in financial, and other, terms. The Plaintiff is aged 72 years. At the time of the deceased's death, she was living on a pension and had no assets. In fact, she lives with her daughter in government housing. She receives a pension, all of which is consumed by modest essential expenditure. She has no savings. She has approximately $8 in her bank account.
The Defendant is aged 56 years, having been born in December 1959. Whilst she is currently employed, she is concerned that her employment may come to an end next year. She earns about $1,500 per week gross, which she says equates to $1,000 per week, after tax. At the time of the deceased's death, she lived in her own home. The home is a three bedroom home with a value said to be about $305,000. It is encumbered by a mortgage, which secures a debt of $181,113 (as at August 2015). She had a motor vehicle valued at about $43,000, but it is encumbered by an amount similar to its value. She has superannuation of about $134,000 and an "account balance" of about $267,000. (This amount is part of the amount that she has received as a result of the death of the deceased.)
It is clear that she could pay off the amount secured by the mortgage registered on title, with the result that her monthly expenditure would be reduced by about $1,358 per month. Her surplus of income over expenditure, then, would be about $2,000 per month. She would still have an additional sum of about $85,000 plus what is left from the balance of funds yet to be paid from the estate (less any provision made for the Plaintiff and costs).
(The Defendant acknowledged an error in her expenditure. Her Greenslip payment for her car was not $150 per month, but rather $50 per month: T23.09 - T23.18.)
The deceased, of course, made no provision out of his estate, or notional estate, for the Plaintiff.
The Plaintiff clearly has a "need". She does not have, and will not be able to acquire, the financial ability to deal with the exigencies and vicissitudes of life. She has income by way of a pension, but has no capital fund for the exigencies of life. She has no earning capacity. As stated above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence.
This is not a case where her debts, on bankruptcy, are so significant, with the result that to make provision would be of no practical benefit to her. In all probability, if she were able to pay off the debt, interest and the costs and expenses of the Official Trustee in Bankruptcy, she would be able to seek to be discharged from bankruptcy.
However, I do not accept the submission that the Plaintiff has a need for accommodation, it being submitted that "she needs provision in the sum of $130,000 for the building of a "granny flat" on her son's property". As stated, she lives with her daughter, in government housing. There is simply no evidence of her accommodation being insecure. In any event, the size of the estate and the nature of the relationship of the deceased and the Plaintiff would not warrant such provision.
As stated, the Plaintiff is the deceased's mother. I have set out her relationship with the deceased in the context of the family previously.
The Defendant gave evidence that she was the de facto spouse of the deceased at the date of his death. I do not have to decide whether she was, because even if she was not, their relationship, after the events involving the deceased in another relationship, was renewed and, thereafter, remained an extremely close one at the date of the deceased's death. The Defendant admits that throughout her relationship with the deceased, they kept their finances separate "but would help each other financially when necessary and both of us would share expenses when out socially together or on holidays together".
When he became unwell, it was the Defendant who assisted in cleaning his house and doing his washing and ironing. He appointed her his Attorney and sole enduring guardian (T24.07), which appointments reflect the closeness of their relationship. Also, it must not be forgotten that the Defendant is the sole executrix and beneficiary of the whole of the deceased's estate. I am satisfied that they had a special, and enduring, relationship over a reasonably long period of time.
Counsel for the Defendant did not include in his written submissions, any submissions relating to the question whether there was an inadequacy of provision. In his oral submissions, he simply said that the Court would not be satisfied of inadequacy. I do not agree. In my view, despite the lack of closeness between them, considering the Plaintiff's circumstances at the date of the hearing, according to prevailing community standards the deceased ought to have made some provision for the Plaintiff.
It follows that I am satisfied, for the purposes of s 59(1)(c) of the Act, that adequate provision for the proper maintenance, education or advancement in life has not been made for her, by the deceased.
Turning then to s 59(2), namely the question what provision "ought to be made for the maintenance, education or advancement in life" of the Plaintiff. I have regard to the facts known to the Court at the date of hearing, including amongst other things, the size and nature of the deceased's estate and notional estate, the relationship between the Plaintiff and the deceased, as well as the relationship between the deceased and the Defendant, who has a significant legitimate claim upon the deceased's bounty, and notwithstanding that the relationship of the Plaintiff and the deceased had deteriorated after 1996.
Even though I have concluded that the Plaintiff and the deceased were not estranged, the poor state of their relationship, illustrated by the absence of regular and close contact for many years, does operate to restrain amplitude in the provision to be made: Wheatley v Wheatley [2006] NSWCA 262 at [37] (Bryson JA); Keep v Bourke [2012] NSWCA 64 at [50] (Barrett JA).
The determination of what provision should be made cannot be done by exact calculation or computation and must, at least in part, depend upon an estimate of the needs of the applicant.
In my view, the Plaintiff should receive a lump sum of $38,000. This will enable her to pay off the debt and any interest thereon, as well as the costs of the Official Trustee in Bankruptcy (say, in total, about $13,000). She will then have about $25,000 by way of a capital sum left for exigencies of life and to provide a modest additional income to supplement the pension she receives.
I make the following orders: 1. Having found that the Plaintiff, Elizabeth Ann Bremner, is an eligible person; that there are factors which warrant the making of her application; 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 is to receive a lump sum of $38,000 out of the estate of the deceased. 2. Order that no interest is to be paid on the lump sum if that lump sum is paid within 28 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment. 3. Orders that the costs of the Plaintiff, calculated on the ordinary basis and the costs of the Defendant, calculated on the indemnity basis, be paid out of the estate of the deceased. 4. Order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005.

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: 17 May 2016

Family Provision Act 1982(NSW)

Elizabeth Ann Bremner v Jennifer Lee Graham

At a glance

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Judgment (16 paragraphs)

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Legislation Cited (5)

Cases Cited (77)