Fallow v Mullins

Supreme Court of NSW|2012-04-26

Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Taylor v Farrugia [2009] NSWSC 801 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported) Williamson v Williamson [2011] NSWSC 228 Category: Principal judgment Parties: Helen Janet Fallow (Plaintiff) Mark Mullins (first Defendant) Julie Kay (second Defendant) Representation: Counsel: Mr L Ellison SC (Plaintiff) Mr K Morrissey (Defendants) Solicitors: Mark Mulock & Associates (Plaintiff) File Number(s): 2011/269608

Formal Matters 4The following facts are uncontroversial. 5The deceased died on 19 November 2010. He was then aged 90 years, having been born in September 1920. 6He married Alison Maude Gatward in 1942 or 1943, and they were divorced in about 1966. There were two children of the marriage, namely the Plaintiff, and Geoffrey Donald Montague, born in November 1947, and who died in August 2004. 7The deceased left a Will that he made on 29 November 2003, Probate of which was granted, on 31 January 2011, to the Defendants. 8The deceased's Will, relevantly, provided for a legacy of $6,000 to Mr Mullins, the first Defendant, "in appreciation of the many unpaid hours he spent on my behalf, during the upheaval created by Lisa Delahunt" (the deceased's stepdaughter); a bequest of certain specific items to a named friend of the deceased; and the rest and residue of the estate to be divided between the deceased's brother, Neville Gilbert Montague and "my Very Dear Friend and constant Companion", Josephine Marion Newton. 9Relevantly, the Will also provided: "... 8. I HAVE PURPOSELY omitted from any benefit, the issues of my first marriage. As to my daughter Helen, I have had no face to face contact since 1964. It has been her decision to ostracise me and the rare contacts via 'phone, and once in writing, has been to assure me that she wants no contact with me or anything from me. It has been a hurtful situation, but one to which I have become accustomed over the years. As to my son, Geoffrey, and I use the word "son" advisedly, as there is more than a reasonable doubt that he carries my genes, each time over the years he has honoured me with his company, it has been to cause upset and trauma. I did my best over the years to help him over his troubles, but he has been nothing but that, "trouble". It has been some years now since his last appearance, and, for this, I am thankful. It could be reasonably assumed that his sole purpose over the years, has been to inflict as much discomfort on me and mine, as he could. It was at his most recent confrontation that he taunted me with the information that he was probably not my son. I neither miss him nor his disturbances, and the comparison of dnas could be interesting, What assets I may have accumulated over the years has been done without input from either of the aforesaid progeny. I bequeath them nothing." 10Needless to say, no provision was made for the Plaintiff in the Will of the deceased. 11Because it is relevant to the nature and value of the deceased's estate, it is necessary also to refer to Clause 9 of the deceased's Will: "LIKEWISE, other than what is set out in the deed of arrangement with Lisa Delahunt, I make no other provision for her. She came to me as a fourteen year old when I married her mother, and I indulged her in every possible way. Her method of repayment has been to place a caveat on my home only days after her Mother's passing. I have been party to the agreement re the Acacia St; property, only because of my advancing age and poor health. It is unfortunate that she evinces none of the qualities of her late Mother; I do not wish her well." 12In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased's estate, at the date of death, was disclosed as having an estimated, or known, gross value of $799,813. The estate was said to consist of real property at Oatley ($700,000), cash on hand ($8,800), funds in bank ($86,013) a motor vehicle ($3,000) and a boat ($2,000). (I have omitted any reference to cents and shall continue to do so.) 13There were some liabilities of the estate, namely an amount owed to the deceased's stepdaughter, Lisa Delahunt (estimated to be one half of the proceeds of sale of the Oatley property) pursuant to the deed of arrangement to which the deceased referred in the Will, and some outstanding debts (totalling $1,135). 14In an affidavit sworn on 17 April 2012, by Mr Mullins, the value of the gross distributable estate was estimated to be $501,394. All of the assets of the estate have been realised and other than the costs of these proceedings and a claim for commission that the Defendants intend to make, all debts, funeral and testamentary expenses have been paid. The estate now consists only of money held on a term deposit. 15In calculating the value of the estate finally available for distribution, the costs of the present proceedings should also be considered, since the Plaintiff, if successful, normally, will be entitled to an order that her costs be paid out of the estate of the deceased, whilst the Defendants, irrespective of the outcome of the proceedings, normally, will be entitled to an order that their costs be paid out of the estate. 16The Plaintiff's costs of the proceedings, calculated on the ordinary basis, have been estimated to be $69,000 (inclusive of GST and upon the basis of a one day hearing). Those costs and disbursements, include senior counsel's fees ($22,000 inclusive of GST and upon the basis of a one day hearing). 17Whilst they accept that there should be an order for the Plaintiff's costs in the event that she is successful, the Defendants do not accept that the estimate of costs and disbursements set out above, calculated on the ordinary basis, should be borne by the estate. 18In relation to the Plaintiff's costs, the first Defendant says: "The estate is under the value of $500,000 and in my opinion the proceedings do not raise any complex issues. Therefore, having regard to the concerns expressed from the Bench as to the level of costs in family provision claims in small estates, I ask the Court to exercise its power to put a cap on the costs of the parties. In determining such a cap, I ask the Court in particular to consider whether it is reasonable, in this small and uncomplicated estate, that the Estate bear the costs of Senior Counsel." 19The Defendants have estimated that the appropriate amount to be ordered for such costs and disbursements should be no more than $44,000 (inclusive of GST). This estimate was provided to me by counsel from the bar table so that I could estimate the values of the range of the net distributable estate. 20During the submissions, after raising this issue with senior counsel for the Plaintiff, I was informed from the bar table, that the Plaintiff's costs and disbursements are to be limited to the amount that she recovers as the ordinary costs of the proceedings. This is a most commendable course in an estate of this size. 21No doubt, if the parties are unable to agree, the Plaintiff's costs will be assessed. It will be for the Plaintiff to satisfy the costs assessor of the necessity to brief senior counsel, on behalf of the Plaintiff, in these proceedings and that all of the fees charged by senior counsel should be borne by the estate. It is unnecessary for me to say anything further about that matter. 22The Defendants' disbursements of the present proceedings, being counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a one day hearing), have been estimated to be about $16,000. The first Defendant, who has acted in the matter, does not intend to charge costs. 23A claim for commission by the Defendants is likely to be made, which commission is estimated to be about $25,000. Although I gave the Defendants and the beneficiaries an opportunity to agree on the commission (both before and after the hearing), I was informed, after the hearing, that no agreement was reached. In the circumstances, I shall treat the estimated amount of commission as a potential liability of the estate. 24The parties accept, for the purposes of the hearing, that I should determine the matter upon the basis that the actual net distributable estate, after the payment of costs, will be between $391,394 and $416,394. 25The only persons described as an eligible person, within the meaning of the Act, are the Plaintiff and Lisa Delahunt. The Defendants gave notice of the Plaintiff's claim to Ms Delahunt. She did not commence any proceedings. 26Each of the beneficiaries named in the deceased's Will has sworn at least one affidavit in these proceedings. All were present during the hearing. In essence, they oppose the Plaintiff's claim, asserting a competing moral and financial claim upon the bounty of the deceased. 27Only the Plaintiff was cross-examined at the hearing. 28The hearing was of about three hours duration most of which time was spent dealing with submissions.

The Statutory Scheme - The Act 29I shall discuss the statutory scheme that is relevant to the facts of the present case, only reasonably briefly, since there are a number of important matters that were accepted by the Defendant. 30The key provision is s 59 of the Act. The court must consider, first, whether the applicant is an eligible person within the meaning of s 57 (s 59(1)(a)). There are six categories of persons by, or on whose behalf, an application may be made, one of which is "a child of the deceased person". Clearly, that phrase is expressive of the person's status, as well as his, or her, relationship to the deceased. 31The Act does not confine the power to make a family provision order for the benefit of a child under the age of 18. There is no age limit placed on a child making an application or an order being made in her, or his, favour. 32Then, if eligibility is established, the court must determine whether adequate provision for the proper maintenance, education and advancement in life of the applicant has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is only if it is satisfied of the inadequacy of provision, that the court considers whether to make a family provision order (s 59(2)). It may take into consideration, then, the matters referred to in s 60(2) of the Act. In this way, the court carries out a two-stage process. 33Other than by reference to the provision made in the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for the applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the court to the provision actually made in the deceased's Will, or on intestacy, or both, on the one hand, and to the requirement for maintenance, education and 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. 34"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34], per Basten JA, with whom Allsop P and Ipp JA agreed, 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". 35Neither are the words 'maintenance' and 'advancement in life' defined. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at [115], said, of the words 'maintenance', 'support' and 'advancement': "'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education." 36The word 'adequate' connotes something different from the word 'proper'. 'Adequate' is concerned with the quantum, 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, per Buss JA at [72] and at [77]. 37Each of the 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." 38Dixon CJ and Williams J, in McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that: "It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent." 39In Vigolo v Bostin 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 use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future." 40The first stage of the process provided for by s 59(1)(c) has been described as "the jurisdictional question": Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education and advancement in life of a particular applicant. 41Whether the applicant has a 'need' is a relevant factor at the first stage of the enquiry. It is an element in determining whether 'adequate' provision has been made for the 'proper' maintenance education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 at [42] (Tobias JA, with whom Beazley and Hodgson JJA agreed). 42In Devereaux-Warnes v Hall [No 3] at [81]-[85], Buss JA said, in respect of the first stage of the process: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227. 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11. The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575. Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]." 43In the event that the court is satisfied that the power to make an order is enlivened (i.e. it is satisfied that the Plaintiff is an eligible person and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), then, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made. 44The second stage of the process arises under s 59(2) and s 60(1)(b). Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour. 45Section 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." 46It can be seen that s 60(2) enumerates 15 specific matters which the court may take into account, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order, and, if so, the nature of any such order. The section does not prioritise the catalogue of matters that may be taken into account. 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 differentiate in their application between classes of eligible person. Similarly, there is no distinction based on gender. 47Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. For example, when considering eligibility under sub-s (1)(a), many of the matters in sub-sec (2) will be largely, if not wholly, irrelevant. 48Furthermore, consideration of some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and of other eligible persons as well as of the beneficiaries named in the deceased's will, whilst others do not. Importantly, also, many of the matters in sub-sec (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1). 49Leaving 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. 50This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the first stage. In Singer v Berghouse (at 209-210) it was said, per Mason CJ, Deane J and McHugh J: "... The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant." 51And in Vigolo v Bostin at [230-231], Callinan and Heydon JJ said: "We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all the potential beneficiaries must be taken into account and weighed with all of the other relevant factors." 52Section 65(1) of the Act requires the family provision order to specify: (a)the person or persons for whom provision is to be made, and (b)the amount and nature of the provision, and (c)the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and (d)any conditions, restrictions or limitations imposed by the court. 53The order for provision out of the estate of a deceased person may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner which the court thinks fit" (s 65(2)(f) 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). 54Any family provision order under the Act will take effect, unless the court otherwise orders, as if the provision was made in a codicil to the will of the deceased, or in the case of intestacy, as in a will of the deceased (s 72(1) of the Act). 55Section 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 or notional estate, or both, in such manner as the Court thinks fit. 56Pursuant to paragraph 24 of Practice Note SC Eq 7, orders may be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the value of the estate is less than $500,000.

Applicable Legal Principles 57Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were given in the context of the previous legislation, they are equally apt in a claim such as this one. 58Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, in relation to the former Act, that it is not appropriate, to endeavour to achieve a 'fair' disposition of the deceased's estate. It is not part of the court's role 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. 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. 59In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the court to be vigilant in guarding "against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant". 60The 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; (1961) 107 CLR 9, per Dixon CJ at 19); McKenzie v Topp [2004] VSC 90, per Nettle J at [63]). Freedom of testamentary disposition remains a prominent feature of the Australian legal system. 61Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (NSWSC, 17 May 1996, unreported); Vigolo v Bostin, per Gleeson CJ at [11]; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. 62What was said in Edgar v Public Trustee for the Northern Territory [2011] NTSC 5, per Kelly J at [46] should 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 widow. 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. (Omitting citations) 63In relation to a claim under the Act by an adult child of the deceased, the following matters, by way of general principle, should also be noted: (a)The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the close bonds of childhood are relaxed. (b)It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation [McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801]. (c)Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia. (d)There is no the need for an adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) [1981] 2 NSWLR 532; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37, per Nicholson J at 45. (e)In all cases under the Act, what is adequate and proper provision is necessarily fact specific. (f)The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1909) 29 NZLR 959, per Chapman J at 966. (g)The lack of reserves to meet demands, particularly of ill health, which become more likely with the advancing years is a relevant consideration: MacGregor v MacGregor [2003] WASC 169, per Templeman J at [178] and [179]; Crossman and v Riedel [2004] ACTSC 127, per Gray J at [49]. Likewise, financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297, per Wheeler J at [43]. (h)In a small estate, as this one is, it is important to remember what Salmond J said in In re Allen (Dec'd); Allen v Manchester [1922] NZLR 218, at 221: "Applications under the Family Protection Act for further provision of maintenance are divisible into two classes. The first and by far the most numerous class consists of those cases in which, owing to the smallness of the estate and to the nature of the testamentary dispositions, the applicant is competing with other persons who have also a moral claim upon the testator. Any provision made by the Court in favour of the applicant must in this class of case be made at the expense of some other person or persons to whom the testator owed a moral duty of support. The estate is insufficient to meet in full the entirety of the moral claims upon it, in the sense that if the testator possessed more he would have been bound to do more for the welfare of his dependants. In such a case all that the Court can do is to see that the available means of the testator are justly divided between the persons who have moral claims upon him in due proportion to the relative urgency of those claims." (i)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, for the deceased's intention in the Will to be displaced: Kembrey v Cuskelly [2008] NSWSC 262, per White J at [45]. 64In this case, there was an allegation that the deceased sexually abused the Plaintiff for about 10 years during her childhood and adolescence. There was no cross-examination of the Plaintiff on the allegation and the only evidence in response was in Mr Montague's affidavit, of a conversation with him in which the deceased denied the allegation. I shall return to this aspect later in these reasons. 65Meantime, I repeat what I said in Williamson v Williamson [2011] NSWSC 228: "123 However, even if the deceased did abdicate his parental responsibilities for the Plaintiff during her childhood, and subsequently, and did act towards her in a way that justified her choosing not to have any contact with him, I should stress one other additional, and important, principle. 124 A claim under the Act does not encompass reparations, or compensation, to an applicant for the deceased as his, or her, parent having failed in his, or her, legal, or moral, duty to be a good and responsible parent of the child: Re Bull; Bentley v Brennan [2006] VSC 113 at [30]. As I said in Savic and Ors v Kim [2010] NSWSC 1401 at [82]: "It is not the purpose of the Act to punish, or redress, past bad, or unfeeling parental behaviour, where that behaviour does not still impinge on the applicant's present financial situation." 125 Also, it is not the function of the court to provide a legacy, by way of damages, for abuse. Immoral conduct of the deceased, whilst it may provide a necessary explanation for the conduct of an applicant towards him, or her, and may even provide an explanation for the applicant's mental state (if established), giving rise to additional needs, such conduct does not provide the yardstick by which provision for the Plaintiff should be measured: Cameron v Cameron [2009] SASC 27. 126 Equally, the Act is not legislation which permits provision to reward past services: Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, at 137. 127 This does not mean that the deceased's conduct will be irrelevant to his, or her, duty to make provision for an applicant. Where that conduct has the effect of depriving an applicant for provision of opportunities in life, or otherwise, and there is some causal connection between it and the applicant's need for provision, the court may take that into account in determining whether proper provision has been made: Litchfield v Smith & Tingate [2010] VSC 466 at [57]." 66Nor is the purpose of the Act to redress the applicant's hurt feelings, or sense of grievance, felt because, in the events that happened, no provision for her was made by the deceased. 67In this case, it is acknowledged that the Plaintiff was estranged from the deceased. The word 'estrangement' does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties. Whether the moral claim of the Plaintiff on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case (Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell v Lathwell [2008] WASCA 256, per Pullin JA, with whom Buss JA and Le Miere AJA agreed, at [33]). 68The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 at [88]-[94]; Foley v Ellis [2008] NSWCA 288. 69I make clear that I do not intend what I have described as "Applicable legal principles" or "general principles" to be elevated into rules of law. Nor do I wish to suggest that the jurisdiction should be unduly confined or the discretion at the second stage to be constrained by statements of principle found in dicta in decisions on similar facts. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind.

Relevant Facts 70I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60 of the Act. (a) any family, or other, relationship between the applicant and the deceased person, including the nature and duration of the relationship 71The Plaintiff is the daughter of the deceased. She lived at home with her parents and brother until she was about 20 years of age. However, she says that since the separation of her parents in about 1965, she did not see, or communicate with, the deceased and that she deliberately chose not to do so. There was one exception, in 1999, when she wrote the deceased a letter (a copy of which she did not retain and which otherwise has not been produced). (It is not necessary to repeat her recollection of the contents of the letter.) 72The Plaintiff accepts that she and the deceased were estranged at the date of his death. 73As stated, there is an allegation made by the Plaintiff that the deceased sexually abused her. That allegation is not a recent one and was made prior to any litigation being contemplated. It was referred to in the records of St John of God Hospital and in other contemporaneous medical records relating to the Plaintiff that pre-date the death of the deceased. 74Accepting the Plaintiff's evidence, which was not the subject of any cross-examination, it is fair to say that, due to the deceased's conduct, the Plaintiff's life, whilst she lived at home, was not a happy one. Because of the concession made by the Defendant that there is a satisfactory explanation for the estrangement of the Plaintiff and the deceased, and because I am satisfied, otherwise, that she has provided reasons to explain her choice to have nothing to do with him, it is not necessary to repeat the conduct to which reference has been made. 75It follows that I do not accept the deceased's explanation for making no provision for the Plaintiff set out in the deceased's Will (and in the other testamentary instrument to which I shall refer) as a valid or a reasonable one. 76I have read Mr Montague's evidence about his conversation with the Plaintiff in which he repeated what the deceased had said, namely, that his "door was always open" and that "she should come to visit him". Even if I accept that the Plaintiff responded that she could not visit the deceased because "Mum would not like it", I am satisfied that such an explanation was only part of the reason for not communicating with the deceased for those many years following her leaving home. 77The Defendant accepted that despite the Plaintiff's relationship with the deceased being as it was at the time of the deceased's death, there was no conduct on her part that would reduce her entitlement to provision out of the deceased's estate. 78That concession does not mean, however, that the fact that there was no relationship between them is one which should not be taken into account by the court in determining the provision that ought to be made for her. 79In Keep v Bourke [2012] NSWCA 64, Macfarlan JA, although in dissent as to the order to be made, said: "3 Even if the respondent bore no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the Court's discretion under s 59(2) of the Succession Act 2006 to make a family provision order where the jurisdictional requirements of s 59(1) are met. The facts remain that the respondent had no relationship at all with her parents from 1971 to her father's death in 1986 and her mother's death in 2009, and there did not therefore exist between them the love, companionship and support present in normal parent/child relationships." (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 80Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal, or financial, obligation to the Plaintiff imposed upon him by statute or common law. 81However, an obligation, or responsibility, to make adequate provision for the Plaintiff's proper maintenance and advancement in life is recognised in the case of a child. 82The deceased did not assume any obligation, or responsibility, towards any of the beneficiaries named in the Will (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 83I have dealt with this earlier in this judgment. On any view, on the basis of the agreement of the parties, the deceased's estate is a small one. There is no notional estate. (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate 84In June 2011, the Plaintiff received a legacy out of her mother's estate of $379,188. This legacy, or part of it, forms part of her present financial resources which are: Assets House: $350,000 Car: $ 30,000 Superannuation (2 accounts): $308,000 Challenger Annuity: $148,000 St George bank account: $ 58,000 $894,000 Monthly Income Centrelink: $ 392 MLC Navigator Investment: $ 625 Challenger Annuity: $ 1,449 (exhausting August 2012)

85Although the Plaintiff describes what is in the Navigator account as "superannuation", she has already received that amount and it forms part of her available resources. 86The Plaintiff's home is a single level dwelling with an in-ground swimming pool at the rear. 87The Plaintiff estimated her monthly expenses at about $2,000. Some are medical, dental and optical expenses ($230), entertainment ($200) and "ancillary expenses" ($175). (The Plaintiff gave no evidence of what was covered by that expenditure.) 88The Plaintiff accepted that on the estimate of income and expenses, there is a surplus of $466 per month that was sufficient to pay the private health insurance expenses should she wish to take out such insurance. Even deducting that expense, there would remain a surplus of about $300 per month of income over expenditure. 89The Plaintiff has not been employed since 1 March 2011. She considers that she has retired and does not have any intention to seek work. I accept that this is so. 90The Plaintiff says that she requires a capital sum for exigencies of life to pay for repairs and renovations to her home (the cost of which she estimates to be about $41,000); medical expenses, being the costs of surgery to her eye and to her left foot (not known); and otherwise to supplement her income now and when the annuity is exhausted. She also said that an additional amount would permit her to go on an overseas and an interstate holiday (to see her daughter). 91I do not accept that she has not had sufficient money to go on holidays, particularly an interstate holiday. When I asked some questions about her evidence on the topic, she said that she had not travelled to see her daughter, principally because her daughter had been working. In any event, even considering her financial position before she received the inheritance, and whilst she was working, she could have afforded a holiday if she had chosen to go on one. 92It was submitted that the Plaintiff should receive a lump sum of $275,000, which was calculated as 75 per cent of the net distributable estate. This submission was said to rely, at least by way of a suggested guide, on calculations of life expectancy and discount tables. 93The Defendants do not dispute that the Plaintiff should receive some provision out of the estate, but submit that she should receive a lump sum of $130,000, which equates to an equal share, with the residuary beneficiaries, in the residuary estate. 94The beneficiary, Neville Montague, is 88 years of age, married and is the deceased's younger brother. He had a good relationship with the deceased throughout their lives. They would see each other regularly. 95The assistance that Mr Montague and his family provided to the deceased was significant. Ms Kay, the second named Defendant, and her husband, looked after the deceased's mail, mowed his lawns and paid his bills. In the last weeks of his life, Mr Montague and his wife looked after the deceased (following the deceased's discharge from hospital), which assistance included taking him to the toilet, pushing him on a walking frame, washing and shaving him, and changing incontinence pads. During this period, the deceased required constant care, which care was provided by them. 96Mr Montague is in poor health and relies upon a community nurse to attend upon him. He and his wife own no real estate. Their joint assets total approximately $195,438, being $130,529 in bank, a term deposit ($50,654), and units in a unit trust ($14,255). Their present income is $1,597 per month, being a Department of Veterans Affairs pension, as well as about $590 by way of income from their investments (making a total income of $2,187). His present accommodation is not secure as he occupies the house at Loftus as a result of being married to the life tenant. If his wife predeceases him, he has no legal right to remain living in that property. His wife is obliged to pay rates and keep the property in good repair. 97Mr Montague requires some funds to make present needed repairs on the property, of approximately $13,000 and a contingency fund for the future. If he goes into a nursing home, the accommodation bond will be approximately $350,000. 98The beneficiary, Josephine Marion Newton had a very close, platonic, relationship with the deceased for over 20 years. They were friends, however, for about 50 years. She provided him with a considerable amount of support particularly in the last 6 months of his life. She agrees with the description of her in the Will of the deceased. She depended upon the deceased for companionship, and partly for emotional support. 99Mrs Newton owns her home at Cronulla, in which she lives alone ($850,000), and has savings of approximately $22,000. She receives a pension of $1579 per month and interest on her term deposit of $72 per month. She says that she barely makes ends meet at present. She says, also, that she will need funds to install air conditioning and a chair lift (approximately $18,000 in total) and a contingency for the future. She also says her house has not been painted, nor carpeted for over 20 years. She has received a quote for painting the house, inside and out, of $17,160, and a quote for replacement of the carpet of $5,690. She also has a quote of $14,820 for the demolition and replacement of a retaining wall. (e) if the applicant is cohabiting with another person - the financial circumstances of the other person 100The Plaintiff lives alone. (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated 101The Plaintiff has, in the past, suffered from anxiety and depression. She first sought psychiatric treatment in 1972 and then again in the early and mid 1990's. In December 1996, she was admitted to St John of God Hospital where she remained a patient for about 5 weeks. She was diagnosed with chronic and complex post traumatic stress disorder. There was a reference to "10 years incest during childhood and adolescence" referred to in the "Final Diagnosis" of the Hospital. 102Following her discharge, she underwent counselling for over 12 months. 103She still suffers, periodically, from bouts of depression and anxiety. She has learned coping mechanisms, although she is concerned that she may need further counselling in the future. 104In addition, in 2001, she suffered a prolapsed disc of her lumbar spine, which resulted in a 10 per cent permanent disability. She also has an 8 per cent disability of her left leg arising from that injury. She has pain and a weakness in her lower back that restricts some of her activities of daily living. 105She suffers high blood pressure, high cholesterol, and acid reflux disease for which she takes medication daily. (g) the age of the applicant when the application is being considered 106The Plaintiff is presently 67 years of age having been born in April 1945. (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 107The Plaintiff did not make any financial, or other, contributions to the acquisition, conservation and improvement of the estate of the deceased or to the welfare of the deceased. (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 108The deceased made no provision, during his lifetime, for the Plaintiff. She receives nothing from the deceased's estate unless an order in her favour under the Act is made. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person 109There is some evidence of the testamentary intentions of the deceased other than his Will, probate of which was granted. He made a will on 14 October 1993 in which he left the bulk of his estate to his son, Geoffrey. In relation to the Plaintiff, he stated in that will: "5. I make no provision whatsoever for my natural daughter, Helen (I am unaware of her current married name) since it has been her decision to exclude me from her life for almost thirty years. Apparently unaware of the strength of my affection, she has denied me her company and the company of my grandchildren and great grandchildren. My door has ever been open. Since she has shown no desire to heal the breach she cannot reasonably expect to benefit from my estate. I carry the regret to my grave." (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 110The deceased did not maintain the Plaintiff, either wholly or partly, before his death. (l) whether any other person is liable to support the applicant 111Apart from the Commonwealth government's responsibility to continue to provide the Plaintiff with a pension, there is no other person with a liability to support the Plaintiff. (m) the character and conduct of the applicant before and after the date of the death of the deceased person 112The Act does not limit the consideration of "conduct" to conduct towards the deceased. In any event, I have dealt with this aspect earlier in these reasons. (n) the conduct of any other person before and after the date of the death of the deceased person 113I have referred to the conduct of the three pecuniary legatees. Each is a chosen object of the deceased's bounty. Each was a close friend of the deceased and was referred to as such in the deceased's Will. Each made a significant contribution to the welfare of the deceased. (o) any relevant Aboriginal or Torres Strait Islander customary law 114This is not relevant in the present case. (p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered 115I note that the Plaintiff, from her inheritance, provided $5,000 to each of her children, who also received a similar amount under the will of their grandmother.

Determination 116As stated, there is no dispute that the Plaintiff is an eligible person within the meaning of that term in s 57(1)(c) of the Act. As her proceedings have been commenced within the time prescribed by the Act, the first question for determination is whether, at the time when the court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made, 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. 117The Defendants accept that adequate provision was not made for the Plaintiff. This concession is properly made. 118It is then necessary to consider whether to make a family provision order and the nature of any such order. Again, the Defendants accept that a lump sum order should be made. 119I respectfully agree that a family provision order should be made in favour of the Plaintiff. However, I do not accept the submission made by senior counsel for the Plaintiff, that in determining the quantum of provision, I should regard the residuary beneficiaries as "with no particular moral claim on the deceased's estate". 120Whilst it is true that none of the beneficiaries is an eligible person, each is a chosen object of testamentary bounty and it is his, and her, claim, as a beneficiary chosen by the deceased that founds the claim as a competing claimant. Freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the court": Pontifical Society for the Propagation of the Faith v Scales, per Dixon CJ, at 19. 121Nor do I accept the Plaintiff's submission that the financial need of each residuary beneficiary is minimal. In the case of Mr Montague, he and his wife have a capital sum of less than $200,000 whilst Mrs Newton has a home and very little by way of capital. In each case, he, and she, has property with a lesser total value than the total value of the Plaintiff's property. The major difference between each and the Plaintiff, is his, and her, respective age. 122In my view, the Plaintiff should receive a lump sum to pay for the repairs that are required to be done on her home (about $41,000), and to provide her with a lump sum to be added to the amounts that she currently has available. I am of the view that the amount of $120,000 should be allowed by way of this additional capital sum. 123The lump sum of $161,000 should be paid within 21 days, failing which interest on any amount not so paid, should be paid at the rate prescribed on unpaid legacies, calculated from that date until the date of payment. The burden of the provision should be out of the residuary estate. 124The residuary beneficiaries will still be able to share slightly more than $230,000 or $255,000 (depending upon the amount allowed for the Plaintiff's costs of the proceedings). 125The Plaintiff's costs, calculated on the ordinary basis, are to be paid out of the estate. The Defendant's costs, calculated on the indemnity basis, are to be paid out of the estate. 126The residuary beneficiaries have agreed that the Defendant's costs and disbursements ($16,000) should be paid out of the estate. I am prepared to make that order. 127Thus, the orders I make are: (i)Having found that the Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, order that she is to receive a lump sum of $161,000 out of the estate of the deceased. (ii)No interest is to be paid on the lump sum if it is paid within 21 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. (iii)The Plaintiff's costs and disbursements, calculated on the ordinary basis, are to be paid out of the estate of the deceased. (iv)The Defendant's costs and disbursements, calculated on the indemnity basis, and assessed at $16,000, are to be paid out of the estate of the deceased. (v)Note that the Plaintiff's solicitors will not seek, from the Plaintiff, any amount for costs and disbursements additional to the amount recovered from the estate pursuant to the order in (iii) above. (vi)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: 03 May 2012

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