Fede v Dell'Arte

CATCHWORDS : SUCCESSION - Family Provison - Eligible person - Claim of grandchild - Grandchild living in home of deceased for 11 years - Whether grandchild dependant on deceased - Held dependant - Whether there are factors warranting an application - Held such factors exist - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for her proper maintenance and advancement - competing claim of beneficiary - nature of provision to be made for Plaintiff

Family Provision Act 1982 Succession Act 2006 LEGISLATION CITED : Succession Amendment (Family Provision) Act 2008 Civil Liability Act 2002 Government Gazette No 38, page 1036

Alexander v Jansson [2010] NSWCA 176 Amaca Pty Ltd v Novek [2009] NSWCA 50 Brown v Fagotter (Court of Appeal, 13 November 1988, unreported) Churton v Christian [1988] NSW CA 23 Diver v Neal [2009] NSWCA 54 Foley v Ellis [2008] NSWCA 288 Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Kalmar v Kalmar [2006] NSWSC 437 McKenzie v Baddeley (Court of Appeal, 3 December 1991, unreported) CASES CITED : Penfold v Perpetual Trustee [2002] NSWSC 648 Petrohilos v Hunter (1991) 25 NSWLR 343 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19 (1962) 107 CLR 9 Porthouse v Bridge [2007] NSWSC 686 Re Fulop Deceased (1987) 8 NSWLR 679 Simons v Permanent Trustee [2005] NSWSC 223 Singer v Berghouse (No2) [1994] HCA 40; ((1994) 1818 CLR 201) Skinner v Frappell [2008] NSWCA 296 Tsivinsky v Tsivinsky (Court of Appeal, 5 December 1991, unreported) Vanvalen v Neaves [2005] NSWSC 593 Viglio v Bostin [2005] HCA 11 Williams v Legg (16 March 1993 CA)

Gaetana Fede (Plaintiff) PARTIES : Maria Dell'Arte (Defendant)

C M Simpson SC and J Reimer (Plaintiff) COUNSEL : R Colquhoun (Defendant)

LAC Lawyers (Plaintiff) SOLICITORS : DC Legal Pty Ltd (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2009/289282 FEDE v DELL'ARTE JUDGMENT Nature of the Proceedings 1 HIS HONOUR: These are proceedings under the Family Provision Act 1982 ("the Act") even though that Act has been repealed, effective from 1 March 2009. Under clause 11(2) of Schedule 1 of the Succession Act 2006, the provisions of the Act: "continue to apply in relation to the estate of a person who dies before the commencement of this clause, in so far as they are not affected by the operation of this Part". That clause commenced on 1 March 2009: s 2(1) of the Succession Amendment (Family Provision) Act 2008 and Government Gazette No. 38 of 20 February 2009, page 1036. 2 Salvatore Russo ("the deceased") died on 6 July 2008. He was the grandfather of Gaetana Fede, the Plaintiff. 3 The deceased left a Will that he made, and published, on 27 March 2008. Probate of the Will was granted on 29 October 2008, by the Supreme Court of New South Wales, to one of his daughters, Maria Dell'Arte ("the Defendant"), the executrix appointed under the Will. 4 By the deceased's Will, the whole of his estate was left, upon trust, to pay a legacy of $50,000 to the Plaintiff, with the residue of the estate being left to the Defendant. The Plaintiff's mother was a daughter of the deceased. She died in April 2001. 5 Clause 7 of the deceased's Will provided: The reason that I have not provided for my granddaughter beyond what I have provided for herein is because my granddaughter has not cared for me nor has she shown any interest in me during her lifetime, particularly since I have become ill. 6 On the morning of the hearing, the legacy of $50,000 provided for in the Will was paid to the Plaintiff. Senior Counsel for the Plaintiff states that any claim for interest on that legacy is limited to the period from about May 2010 and that it amounts to no more than about $1,500. No amount of interest on the unpaid legacy has otherwise been paid. 7 In 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 a value of $2,617,088. The significant asset of the estate was real estate, situated at Clovelly ("the Clovelly property"), comprising four flats, not separately titled, which was disclosed as having an estimated, or known, value of $2.6 million. The balance of the estate consisted of cash in the bank and a car. 8 During the course of the cross-examination of the Defendant, it became clear that, in addition to the property disclosed in the inventory of property, the deceased, at the date of his death, held money on term deposit. As at April 2007, that amount was $244,217. The Defendant gave evidence that, in March 2008, the deceased gave her a birthday present of $40,000, from the amount held on the term deposit. She accepted that, at least, about $204,000 plus interest, would still have been left in the term deposit at the date of the deceased's death. 9 The Defendant had not disclosed, until the cross-examination, that the amount held on term deposit was an asset of the estate at the date of the deceased's death. She indicated that she had not disclosed the term deposit, because she "probably forgot". No bank records were produced relating to the term deposit other than one statement (Ex. B) showing the amount held as at April 2007. No acceptable explanation for the failure to produce these documents was given by the Defendant, despite a number of opportunities being given to her to do so. 10 The Defendant was also cross-examined about the rental income that was received from the three of the flats in the Clovelly property in the period between 2005 and the date of the deceased's death. No bank statements for that period, showing rental amounts received, were produced. The Defendant admitted that she had them, at one time, but could not explain what she had done with them. No acceptable explanation for the failure to produce these documents was given despite a number of opportunities being given to her to do so. 11 I do not accept the submission, made on behalf of the Defendant, that the failure to produce documents was due to an unsophisticated understanding of what was required to be produced, or of their significance. 12 Accordingly, I am satisfied that the Defendant did not disclose the complete nature and value of the deceased's estate. However, in light of the agreement reached shortly prior to the end of the hearing, it is not necessary to state any other conclusions about the Defendant on this aspect. 13 Almost at the end of the hearing, the parties agreed that the estate consisted of, at least, the Clovelly property, which had an agreed value of $2,650,000, an amount of, at least, $154,000 (being $204,000 less the amount of the legacy paid to the Plaintiff) and about $2,700, being the balance of the moneys in bank after payment of the probate and administration expenses ($9,696). For the purposes of this case, I shall take the gross value of the actual estate to be no less than $2,800,000. 14 In calculating the value of the estate available for distribution, the costs of the present proceedings must also be taken into consideration, since the Plaintiff, if successful, normally, will be entitled to an order that her costs be paid out of the estate of the deceased, whilst the Defendant, irrespective of the outcome of the proceedings, normally, will be entitled to an order that her costs be paid out of the estate. 15 The Plaintiff's costs and disbursements, including counsels' fees, calculated on the indemnity basis, have been estimated to be in the order of $150,250 (inclusive of GST and upon the basis of a two day hearing). This amount includes the costs thrown away by an adjournment of proceedings in May 2010 ($31,740). The costs and disbursements of the Plaintiff, taking into account the costs thrown away, including counsels' fees, calculated on the ordinary basis, are estimated to be $100,000. 16 The Defendant's costs and disbursements, including counsel's fees, calculated on the indemnity basis, are estimated to be $130,000. 17 In the circumstances, I shall take the net value of the actual estate, after payment of the costs of the proceedings, to be no less than $2,570,000. 18 It is likely that the Clovelly property will have to be sold. It will certainly have to be sold to meet any provision made for the Plaintiff and, subject to any special order for costs, the costs of the proceedings. (An order that the Defendant should bear the burden of costs thrown away by the adjournment of the hearing in May 2010 has already been made.) However, the Defendant seeks an opportunity to raise the amount necessary to satisfy the orders of the Court, which opportunity the Plaintiff accepts she should be allowed. 19 The Defendant gave evidence that there had been discussions within her family that, if it became necessary, about $300,000 could be borrowed. 20 The persons described as persons who are, or who may be, eligible persons, within the meaning of the Act, are the parties only. 21 The Plaintiff commenced these proceedings by summons filed on 17 June 2009, that is, within the time period prescribed by s 16 of the Act (18 months from the date of death). She seeks a family provision order out of the actual estate of the deceased. 22 In an application under the Act, the Court must determine, first, whether the plaintiff is an eligible person; secondly, in the case, relevantly, of a s 6(1)(d) Plaintiff, whether there are factors which warrant the making of the application within s 9(1) of the Act; thirdly, whether the plaintiff has been left with adequate provision for his, or her, proper maintenance, education and advancement in life; and, finally, if not, what, if any, provision (or further provision) ought to be made out of the estate for those purposes? Background Facts 23 Before turning to these questions, I set out some history of the Plaintiff and of the deceased. I am satisfied that the following facts are either not in dispute, or that they have been established by the evidence: (a) The Plaintiff was born in September 1981 and is presently aged 29 years; (b) The deceased was born in January 1926 and was aged 82 years at the date of his death; (c) The Plaintiff is the only child of Alfia Fede, who died in April 2001; Alfia Fede and the Defendant were the only children of the deceased; (d) Following the separation of her parents, in 1988, the Plaintiff and her mother moved into the Clovelly property and lived there with the deceased and his wife, Maria, in one of the flats; the Plaintiff had her own bedroom, as did her mother; the third bedroom was occupied by the deceased and his wife, the other flats were rented; (e) The Plaintiff attended school until the age of 17 years and, on leaving school, she commenced working in a solicitor's office; during her school years, the deceased would regularly drive her to, and collect her from, school; (f) The majority of the family income from 1988, was from the deceased; (g) From about 1992, the Plaintiff would see her father once every fortnight; (h) In 1994, the deceased's wife (the Plaintiff's grandmother) passed away; the death of the Plaintiff's grandmother, meant that, effectively, the Plaintiff was required to assist the deceased in doing household chores. She would do some of the cooking and the laundry, she would hang out the washing, vacuum, dust, and perform other general housework; (i) The Plaintiff's mother suffered from schizophrenia before and after she and the Plaintiff moved into the Clovelly property; as a result of that condition, she was in receipt of a pension; on occasions, she would spend the whole of the pension she received on expensive suits, shoes, jewellery and make-up, which meant that there was no money for other things; it was then that the deceased paid for what was required by buying groceries, and paying the bills; of course, he also provided accommodation; (j) The Plaintiff recollects being told by her mother that the Plaintiff's father "contributed very little towards your upbringing …as he was mostly unemployed"; (j1) The Plaintiff's mother's died, at the age of 41; the Plaintiff inherited about $35,000 from her estate, which she used to pay for her mother's funeral, for a 21st birthday party for herself and members of her family; and for some holidays; (k) The Plaintiff would interpret letters for the deceased; (l) The Plaintiff would attend the local shops, once a week, with the deceased; he enjoyed taking her to the markets at Flemington also; (m) The deceased was very protective of the Plaintiff; (n) From about 1999, the Plaintiff lived for most of the time with her father and not with the deceased and her mother in the Clovelly property; she left high school without obtaining her Higher School Certificate; (o) From this time, until his death, the Plaintiff saw less of the deceased than previously; (p) In the period between 1999 and 2001, she would see the deceased at least once a month, although she would speak to him, by telephone, every second week. Following the death of the Plaintiff's mother, the Plaintiff would see him, at first, more regularly, but then once every one or two months; however, she spoke to him, by telephone more regularly; between 2006 and 2008, the Plaintiff saw the deceased less regularly than before, for periods between 1 and 4 hours at a time; (q) The Plaintiff accepted that she "could have made more contact" with the deceased, but she stated she "tried my best"; she said that, initially, she believed that she was "cramping [the deceased's] style", as he did not like to leave her alone if she stayed the night. Once she found employment in Leichhardt, it became harder for her to stay over at the Clovelly property, since to get to work would have required her to take two buses to work (as she did not have a car); (r) About 2 - 3 years after the death of the Plaintiff's mother, she was shown a copy of the deceased's Will (not the Will the subject of Probate). Neither the original, nor a copy of that Will was produced. However, the Plaintiff gave evidence that "it stated that I would receive half his estate and half would pass to [the Defendant]". The deceased also told her that "these four flats will be divided between you and your aunt, but your aunt will receive the two flats of her choice"; (s) From about the age of 16, the Plaintiff suffered anxiety attacks and was subsequently diagnosed as suffering from a panic disorder. Between 2002 and 2006, the anxiety attacks resulted in her being unable to go outside. During this time, she suffered depression, which also affected her lifestyle. 24 The Plaintiff called evidence from Ivana Vidovich, a school friend of the Plaintiff. They met in 1993 and remained close friends until the Plaintiff left school. Apart from when at school, they would socialise two or three times per month. Subsequently, they saw each other occasionally, although they did not socialise. 25 Ms Vidovich, whose evidence I accept, describes the deceased as someone who would often sit on the balcony and talk to the Plaintiff and her. She observed the deceased driving the Plaintiff to school. She would sometimes see the Plaintiff attending to home duties, such as cooking, cleaning, and shopping. On occasions, the Plaintiff would say to her that she could not attend the movies, or otherwise could not go out, "because mum is not well today and I have to do the cleaning as there is no one else to help my grandfather to keep the house in order". 26 Ms Vidovich describes observing the deceased guiding the Plaintiff on such things as her social life, dyeing her hair, and even deciding what subjects she should choose at school so that she could eventually become a solicitor. 27 The Plaintiff has been in a relationship with Michael Phillip Peters since 2001. I accept that they did not live together on a full time basis until early 2006, following their engagement in December 2005, although, prior to that time, they would spend the weekend together. It is the Plaintiff's desire to start a family with Mr Peters. 28 The Plaintiff discloses the following facts about her and Mr Peters' financial and material circumstances. She and Mr Peters live in rented accommodation in Balmain; they share household and living expenses. Mr Peters' ability to work is limited and the Plaintiff is the primary breadwinner in the relationship. The Plaintiff earns an annual net income of $46,801, which equates to $900 per week. Mr Peters' income, from worker's compensation benefits, is estimated to be $200 per week. The Plaintiff has superannuation of about $32,315, whilst Mr Peters has superannuation of about $15,500. Their weekly expenses equal their total weekly income. However, the Plaintiff acknowledges that she spends about $40 to $50 per week on cigarettes; whilst Mr Peters gives evidence that he spends about $100 per week on cigarettes. 29 A significant issue in the case appears to be the ability of Mr Peters to obtain employment. It is not in dispute that he has not worked for about 14 months, although the evidence reveals that he has made many unsuccessful applications for employment (Ex. 3). It seems that he continues to have some medical problems, which results in him having neck and back pain. He described his pain as having worsened since 2006. He continues to receive worker's compensation benefits. 30 On balance, I think it is highly unlikely that he will return to full time work, although with persistence, he might, on occasions, obtain part time, or temporary employment. I accept that Mr Peters wishes to re-enter the workforce and is endeavouring to do so. 31 The Plaintiff has given evidence that she may be able to borrow between $320,000 and $330,000 to purchase a property. She states that because Mr Peters is presently not employed, it is possible, in the event she receives a family provision order, that she will use the amount received to assist in purchasing accommodation in her name alone. She is also likely to be the sole borrower. 32 Not surprisingly, the evidence advanced by the parties, reveals that the purchase price of a home unit of the type the Plaintiff wishes to purchase, ranges in value depending upon its geographical location. The prices range between about $300,000 and $960,000 (taking the lowest and highest estimates provided by the parties). 33 In this case, I am satisfied that the purchase price of a home unit, in a locality in which the Plaintiff could live, is likely to cost no less than about $500,000. 34 There is no evidence about associated costs of purchase such as stamp duty, legal costs, and associated mortgage expenses. It will be appreciated, however, that the Plaintiff has now received the legacy of $50,000 provided for her in the Will, which should be more than sufficient to cover these associated expenses. 35 The Plaintiff and Mr Peters have joint debts of about $62,700. Mr Peters also has a personal tax liability of $321. 36 I turn next to matters relating to the Defendant, who is the sole residuary beneficiary named in the deceased's Will. In Foley v Ellis [2008] NSWCA 288, Sackville AJA at [88] noted that Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201: strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act . 37 I am satisfied that the following facts are either not in dispute, or have been established by the evidence, in relation to the Defendant: (a) She was born in March 1953 and is presently aged 57 years; (b) She was married to her present husband, Santo Dell'Arte, in 1970. They lived in the Clovelly property with her parents between 1970 and 1972; (c) In 1982, her husband, who was a professional fisherman, broke his back. He has been unable to work since then. She and he were both on the pension until the deceased's estate was recently finalised; (d) She and her husband have three children, Tony, born in February 1971; Salvatore, born in May 1977; and Giuseppe, born in January 1981. Each is unmarried and each remains living with his parents; (e) The Defendant and her husband provide accommodation, in their home, to their sons, each of whom pays one-third of the household utility bills, thereby relieving the Defendant and her husband from that expense; (f) From 1995 until about December 2006, the Defendant would attend the Clovelly property to check up on both the deceased and her sister about twice a week. She would stay for most of the day when she visited. (g) In 2005, after the deceased left hospital, the Defendant stayed with him at the Clovelly property until he moved into her home; (h) From 19 December 2006, the deceased lived with the Defendant and her family until he died; (i) After the deceased moved into the Defendant's home, the deceased slept in the same bed as the Defendant's son, Tony. He assisted the deceased during the night with replacing the mask that the deceased wore; (j) The Defendant, otherwise, managed and medicated the deceased during this period; (k) The deceased paid for an oxygen machine ($3,000). The first month's rental was paid by the government and $99 was charged each month to the deceased after that. 38 Since the Defendant has not made a claim under the Act, and because she is a party, I may disregard her interests: s 20 of the Act. I do not do so. She is a chosen object of the deceased's testamentary recognition and it is for her that the deceased wished to provide by his Will. In addition, it was the Defendant, and her family, who looked after the deceased in the last years of his life. There appears to be little doubt that she could not have done more for the deceased than she did, particularly after he began to suffer ill health. I am satisfied that she was a loving, and dutiful, daughter and that it was to her that the deceased owed the primary moral obligation. 39 The Defendant discloses the following facts about her and her husband's financial and material circumstances. They own a property at Haberfield with a value of about $1.4 to $1.5 million; there is $155,000, comprising cash in bank ($15,000) and a term deposit ($140,000); they own a car ($2,000) and have furniture and fittings ($20,000). There is a dispute about whether they own a boat ($50,000). They have a liability, secured by mortgage over their property, of $100,000. (This borrowing, which is not fully drawn down, was obtained to pay for extensions to the family home.) 40 There were some questions raised about the financial and material circumstances of the Defendant. She did not disclose that she had received a gift of $40,000, from the deceased, in about March 2008. She did not disclose the deceased's term deposit to which reference has been made. I am not confident that the $155,000 is the balance of the term deposit, or whether it is, as submitted by Senior Counsel for the Plaintiff, made up of the $40,000 gift and the borrowing of $100,000. 41 When asked about a deposit into her own bank account, which appeared to be interest from a term deposit, she was unable to explain from what term deposit the interest had come. 42 On balance, however, I think the amounts totalling $155,000 are likely to be the remainder of the deceased's term deposit, after payment of the gift to the Defendant and the legacy to the Plaintiff. Accordingly, I have ignored the two amounts, totalling $155,000, in the Defendant's financial and material circumstances. 43 The Defendant's evidence about income from rentals during the period between 2005 and 2008 was even more confused. It is clear that 3 of the flats in the Clovelly property were rented and that the rental from each was about $500 per week. A copy income tax return of the deceased, in the financial year ending 30 June 2006, reveal gross rent of $51,597 and net rent of $30,233. A copy income tax return of the deceased, in the financial year ending 30 June 2007, reveal gross rent of $76,616 and net rent of $54,606. I find that it is highly unlikely that the deceased would have spent that net income, bearing in mind his health in these two years. 44 I consider that the Defendant has not been as frank with the court as she should have been in regard to her financial and material circumstances. If I accept that the income to which I have referred, was spent, by her, on the deceased, I cannot accept the Defendant's assertions that she paid for food, and other expenses, on his behalf. 45 Whilst I am satisfied that the Defendant has a competing moral claim on the bounty of the deceased, I do not accept that she is a competing financial claimant with the Plaintiff. In any event, she and her husband are in a significantly better financial position than the Plaintiff and Mr Peters. The Legal Principles 46 The Plaintiff must first establish eligibility under the Act. She claims eligibility to make the application under the following provisions of s 6(1) of the Act: (d) a person: (i) who was, at any particular time, wholly or partly dependent upon the deceased person, and (ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of a household of which the deceased person was a member. 47 During the submissions of Senior Counsel for the Plaintiff, Mr Colquhoun on behalf of the Defendant, stated that the Defendant conceded that the Plaintiff was an eligible person within s 6(1)(d) of the Act. Accordingly, it is only necessary to refer to the legal principles on this aspect briefly. 48 If a person is a grandchild of the deceased, that is enough to satisfy the first part of the sub-section. It is not necessary to establish that she or he is also a member of the household of which the deceased was a member. Then, it becomes necessary for the plaintiff to show a total, or a partial, dependency upon the deceased at any particular time. The necessity to demonstrate total, or partial, dependency upon the deceased at the time of death is unnecessary and is contradicted by the express provisions of the definition. It is enough, in the case of a grandchild, that at any particular time, i.e. before the death of the deceased, she, or he, was "wholly or partly dependent" upon the deceased. 49 In Amaca Pty Ltd v Novek [2009] NSWCA 50, Campbell JA, with whom other members of the Court of Appeal agreed, said (in the context of a claim under section 15B of the Civil Liability Act 2002): 45 In my view, the law remains accurately stated by the joint judgment of Sugerman P, Jacobs and Mason JJA in Middleton v Kiama District Hospital [1970] 3 NSWR 136. Their Honours said, at 138: "Dependency is, moreover, a complex question of fact, which may involve the consideration of many elements, including both past events and future probabilities. It is not necessarily correlative with a legal duty to maintain. A person may in fact be dependent upon another who is under no legal duty to maintain him; and may be so dependent even though there is also in existence one who has legal duty to maintain, eg a husband his wife. On the other hand there may be no dependency in fact upon a person who is under a legal duty to maintain. The existence of the legal duty is, however, one of the many elements to be taken into account in deciding upon a question of dependency in fact. Dependency and actual support are not necessarily correlative. There may be dependency although for the time being there is no actual support. And it seems to us to be possible to figure cases in which there may have been a provision of support, or of some measure of support, at least for a short time or for some special purpose, which did not amount to dependency. The definition of "dependants" does not merely refer to one who was in fact supported by the deceased worker at the time of his death; a "dependant" is a member of the workers' family who was "wholly or partly dependent for support upon the worker at the time of his death". Dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased. As to all the above matters see Hodges v Scotts' Provision (Wholesale) Pty Ltd [1963] WCR 161 and cases there cited." 50 In Skinner v Frappell [2008] NSWCA 296, it was said by Young CJ in Eq, (with whom Campbell JA agreed) sitting in the Court of Appeal: 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. 51 In Petrohilos v Hunter (1991) NSWLR343, at 346, it was said: I would respectfully disagree with the Master in both respects. The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language. This accords with what Samuels JA said in Ball v Newey at 491, that "'Dependent' in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed". If the correct view were that the context of the statute requires a limitation of the word to "financial or material" matters as McClelland J said in Re Fulop (dec'd) or to "other forms of dependence analogous to but distinct from financial dependence" as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period.

52 In Williams v Legg (16 March 1993 CA), in a passage not set out in the report at 29 NSWLR 687, the Court of Appeal (Handley, Sheller and Cripps JJA) said: There has been a tendency in some cases to equate "dependent" with "financially dependent". In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 Hope JA, with whom the other members of the Court agreed, pointed out that while one of the commonest forms of dependence may be 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 the other things" the word, as used in the statute, is not limited to financial dependence. Reference was made to what was said by Samuels JA in Ball v Newey (1988) 13 NSWLR 489 at 491. "Dependent" in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed. 53 In the present case, I am satisfied that the role of the deceased in the life of the Plaintiff was a very significant one, and one which existed for over a decade. They lived together in the same household between 1988 and 1999, a very important period in the life of the Plaintiff. It was a period when the Plaintiff was not an adult, and where, probably because of her own mother's circumstances, she was unable to rely only upon her. 54 Also, the Plaintiff did not have a close relationship with her own father for, at least, a part of this period. Unsurprisingly, it was the deceased who she regarded as the principal male person in her life and who provided nurture and support to her. He also provided her with advice and direction, although, undoubtedly, the Plaintiff's mother also provided some advice to her. 55 In this regard, I accept the Plaintiff's evidence, given in cross-examination, that had she married after 1999, but during the lifetime of the deceased, the decision as to who would walk her down the aisle would have been an extremely difficult one to make. She stated that the deceased "was like a father to me also". 56 I accept that the deceased became, in effect, a substitute father to the Plaintiff, principally in the period between 1988 and 1999, and that he had a relationship with her, particularly during this period, that fell outside what one would call the normal relationship of grandparent and grandchild. Furthermore, I am satisfied that the deceased, himself, assumed the responsibility of giving the Plaintiff more emotional support than any normal and loving grandfather would give. 57 In all the circumstances, I am satisfied that the Plaintiff was dependent, at least partly, upon the deceased. Based upon the authorities, a person "dependent upon" a deceased person should not be regarded as being limited only to a person who was actually in receipt of financial assistance from the deceased. The words are wide enough to cover any person who would naturally rely on, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support. I am also satisfied that the relationship was not one with only short, and interrupted, periods of dependency and that it was more than minimal: McKenzie v Baddeley (Court of Appeal, 3 December 1991, unreported) per Meagher JA. 58 Accordingly, the concession made by the Defendant was appropriate in all the circumstances, and the Plaintiff has the standing to bring the present proceedings. 59 Since I have found the Plaintiff to be an eligible person within s 6(1)(d) of the definition of eligible person in the Act, it is necessary, pursuant to s 9 (1) of the Act, for her to establish that there are factors which warrant the making of the application. 60 Again, during submissions for the Plaintiff, the Defendant's counsel acknowledged that there were factors warranting the making of the Plaintiff's application. In dealing with this aspect, I can also be brief. 61 Factors warranting the making of the application were described by McLelland J (as his Honour then was) in Re Fulop Deceased (1987) 8 NSWLR 679 at 681 as being: … 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 a deceased. 62 In Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at page 252, after setting out and approving the statement, added: To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition. 63 These principles have been applied, at first instance, for many years. However, in Brown v Faggoter, a decision of the Court of Appeal constituted by Sheller JA, Sheppard AJA and Fitzgerald AJA (13 November 1998, unreported), in which Fitzgerald AJA, delivered the principal judgment, there seems to be the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test than that which the Court of Appeal approved in Churton v Christian. 64 In Penfold v Perpetual Trustee [2002] NSWSC 648, Windeyer J did not follow Brown v Faggoter. Bryson AJ also commented in Porthouse v Bridge [2007] NSWSC 686: In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors ("there are factors") is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination. 65 More recently, in Diver v Neal [2009] NSWCA 54, Basten JA, with whom Allsop P and Ipp JA agreed, said of s 9(1): 8 As noted above, compliance with this requirement was not the first issue addressed by the primary judge, although s 9(1) envisages that it is to be determined before the Court decides whether to "proceed with the determination of the application". In practice, the factors relevant to the issue raised as a preliminary matter are, to a significant extent, co-extensive with those which must be addressed in determining whether the testator made adequate provision for the applicant: see Churton v Christian (1988) 13 NSWLR 241 at 242-243 (Hope JA) and 248-249 (Priestley JA). Nevertheless, the express distinction between two classes of eligible person must be recognised. It appears to have been drawn on the basis that persons falling within the first category (comprised of those identified in pars (a) and (b)) are "regarded as natural objects of testamentary recognition", whereas those falling within the second category (identified in pars (c) and (d)) are potentially appropriate objects of testamentary recognition, depending upon their circumstances: see Churton at 252 (Priestley JA) applying the analysis of McLelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681. 66 Even though, respectfully, I regard the views expressed in the authorities referred to by Windeyer J, Bryson J and Basten JA, as correct, I am satisfied, in this case, whichever test is applied, that the Plaintiff has established factors warranting the making of the application and that the concession made on behalf of the Defendant was an appropriate one. That the deceased regarded the Plaintiff as an object of testamentary bounty is self evident from the terms of the deceased's Will and the terms of his prior Will in which she shared the estate with the Defendant. That the deceased also thought it necessary to explain in the Will the reasons why he was making the limited provision for her is equally important. For reasons to which I shall come, I am also satisfied that the Plaintiff had reasonable prospects of success in making her claim. 67 The next question for determination, then, is whether the provision made in the Plaintiff's favour by the deceased, either during his lifetime, or out of his estate, is, at the time the court is determining whether or not to make an order, inadequate for the proper maintenance, education and advancement in life of that Plaintiff. The power of the Court to make an order under the Act is enlivened by the formation of an opinion that the disposition of the deceased's estate effected by her Will is not such as to make adequate provision from his estate for the proper maintenance, education or advancement in life of the Plaintiff. 68 No criteria are prescribed in the statute as to the circumstances that do, or do not, constitute "inadequate provision for the proper maintenance, education and advancement in life". 69 The question is answered by an evaluation that necessarily takes the court to the provision actually made in the deceased's Will on the one hand, and to the needs for maintenance and advancement in life of the eligible person on the other. It has conventionally been said that this involves a consideration of the relationship between the deceased, the eligible person and other relevant persons having similar claims for adequate provision to be made for them: see Goodman v Windeyer (1980) 144 CLR 490 at 496). 70 "Provision" is not defined by the Act, but it was noted in Diver v Neal at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime". 71 Recently, it has also been noted that 'proper maintenance' is not limited to the bare sustenance of a claimant (cf Gorton v Parks (1989) 17 NSWLR 1), but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility": Alexander v Jansson [2010] NSWCA 176 at [18]. 72 An 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 11 of the Act. The court, if it makes an order for provision, "may specify the beneficial entitlements in that estate which shall bear the burden of the provision and, in relation to each entitlement, the part of the burden it is to bear": s 13 of the Act. The court is empowered, at its discretion, to order that such provision as the court thinks fit is made out of the estate of the deceased for that purpose. An order takes effect as a codicil to the Will: s 14 of the Act. 73 As Bryson J noted in Gorton v Parks at 6, 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 goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance etc of an eligible applicant. 74 In applications under the Act, the High Court in Singer v Berghouse has set out the two-stage approach that a court should take. At 209, it was said: The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Ltd. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or 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 applicant and the deceased, and 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. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors. 75 In Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 ("Vigolo"), Gleeson CJ and Gummow and Hayne JJ at [5], [74] and [82]-[83] approved the two-stage test set out in Singer v Berghouse. 76 In Vigolo, at [114], Callinan and Heydon JJ said: [T]he use of the word "proper"… implies something beyond mere dollars and cents. It's 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.

… Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question of whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however, will never be conclusive. The age, capacities, means, and competing claims of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors. 78 In addition to the above principles, s 9(3) of the Act should not be forgotten because the matters referred to therein are relevant not only in determining whether an order ought to be made, but also in determining the nature of the order which should be made. Section 9(3) provides: In determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person, the Court may take into consideration: (a) Any contribution made by the eligible person whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to: (i) the acquisition, conservation or improvement of property of the deceased person; or (ii) the welfare of the deceased person, including a contribution as a homemaker; (b) The character and conduct of the eligible person before and after the death of the deceased person; (c) Circumstances existing before and after the death of the deceased person; and Any other matter which it considers necessary in the circumstances. 79 Counsel for the Defendant reminded me that it has been said many times that the Court should be careful not to interfere with freedom of testation except in circumstances where the legislation requires this to be done: see, for example, Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19 (1962) 107 CLR 9 per Dixon CJ at 19. In this case, this principle is particularly relevant since the deceased expressed the reasons why he had made limited provision for the Plaintiff. 80 Thus, it is relevant to take into account the fact that the deceased expressed a sense of abandonment by the Plaintiff. However, even if justified, I do not regard the Plaintiff's conduct should result in no additional provision being made for her. The Plaintiff explained the reasons why she played a more limited role in the life of the deceased after 2001. I accept the reasons given, namely, that she was, by then, working full time; that she had no car; that she felt that if she attempted to stay overnight, she was "cramping [the deceased's] lifestyle" and as importantly, that the Defendant did not seek her assistance. 81 However, whatever the reasons for it are, the fact is that in the last seven or eight years of the deceased's life, the Plaintiff had much less contact with the deceased than she had previously had. As she, herself, acknowledged in the witness box, she "could probably have made more contact" but she had tried her best (T27.49-27.50). 82 I was also reminded that the important consideration is whether, in all the circumstances, the community expectation of the deceased would be for greater benefaction to have been made for the proper, or adequate, provision for the person seeking provision. Gleeson CJ observed in Vigolo, at [11] that the justification for interference with freedom of testation is to be found in the failure of a deceased to meet the obligations, which the community would expect in terms of maintenance, for those persons within the class of eligible persons. Submissions 83 I have had the benefit of receiving a written outline of submissions from counsel for the respective parties. Those documents will be retained in the Court file. 84 It is necessary to consider how the Plaintiff submits that she has been left without proper provision for her maintenance, education and advancement in life. It is clear that apart from some superannuation, which will not be available to her for many years, she has virtually no other assets or resources. Whilst in employment, she is, and is likely to remain the main breadwinner. Employment may be difficult if she and Mr Peters have children (which she wishes to have). 85 The written submissions made on her behalf is for a "sum which addresses her current financial position and immediate needs, together with a capital sum to afford her a start in her married life". 86 Mr C M Simpson SC who, with Mr J Reimer, appeared for the Plaintiff, submitted that further provision should be made for the Plaintiff. He submitted that she should receive provision in the amount of about $600,000, calculated on the following basis: (a) $415,000, being the balance of the purchase price of accommodation ($740,000) after the Plaintiff borrowed the maximum amount able to be borrowed by her ($325,000); (b) An amount to enable her to purchase a car and have a contingency fund available (in total $125,000); (c) An amount to pay off her debts ($63,000). 87 Mr R Colquhoun, on behalf of the Defendant, orally submitted that no additional provision for the Plaintiff ought to be made and that adequate provision for her had been provided by the deceased under the terms of his Will. He conceded, if his principal submission was not accepted, that an additional amount of no more than $50,000 should be provided to her by way of additional provision but that such an amount, taken with the legacy under the Will, was "more than sufficient". Conclusion 88 I do not accept the Defendant's principal submission that no provision for the Plaintiff "ought" to be made. That submission ignores the nature, and duration, of the relationship of the Plaintiff and the deceased. 89 Similarly, I do not accept the submission of the Plaintiff, as to the nature, or quantum, of the provision that ought be made for her, as that submission ignores the fact that her relationship with the deceased altered, significantly, in the last eight, or nine, years of the deceased's life. It also diminishes to an unnecessary extent, the significant moral obligation owed by the deceased to the Defendant. 90 I am satisfied, in the circumstances of this case, that having received $50,000, under the Will, out of the deceased's reasonably large estate, the Plaintiff has been left without adequate provision for her proper maintenance and advancement in life. Having found, as a matter of fact, that there was inadequate provision for the Plaintiff under the deceased's Will, the second stage of the test in Singer v Berghouse requires the making of a holistic and multi-faceted judgment, evaluating the proper provision that ought to be made for her: Kalmar v Kalmar [2006] NSWSC 437 at [67] per White J; Foley v Ellis at [3] per Basten JA. 91 I consider that the deceased ought to have provided the Plaintiff with a larger capital sum, which sum could be used by her, if she considers it appropriate to do so, as a deposit, or part of a deposit, on a home. I also consider that the capital sum should have been sufficient to enable her to pay off her debts if she wishes to use the amount or part of it for that purpose. In all the circumstances, I am of the view that an additional lump sum, of $265,000 would be appropriate. That amount is to include any unpaid interest on the legacy that was paid on the morning of the first day of the hearing. 92 I direct the parties to bring in short minutes that reflect these reasons. I shall hear the parties on the question of costs if either party wishes to argue it. Otherwise, the parties should include in short minutes the usual orders for costs.

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