Gardiner v Gardiner

Ms Gardiner's claim 9The initial claim made by Ms Gardiner, as set out in her first affidavit sworn on 29 May 2012, was for an order that the Hyacinth Street property be vested in her absolutely as sole owner, and that she be paid a further sum of $300,000 to invest to provide her an income: pars 131 and 132. It is obvious that that relief cannot be granted to her because it would require the transfer to her of more assets than are owned by the deceased's estate, and would not allow for the payment out of the assets of the estate of any of the costs of the proceedings, including the costs of the executor, Mr Gardiner. When this problem was pointed out to her in cross examination, Ms Gardiner responded that she made the claim because she had originally been informed by Mr Gardiner that the estate's solicitor, Mr Kinchington, had estimated that the estate was worth $1.1 million (T 37.5). If that estimate had been made, and was accurate, Ms Gardiner's claim would still have been to virtually the entirety of the estate of the deceased. There is no independent evidence that any interested party, other than Ms Gardiner, had ever thought that the value of the estate was more than that which is estimated in the deceased's husband's inventory of property. 10Ms Gardiner had moderated her claim by the time of final submissions. As stated in par 4 of her outline of argument, her submission was that her "financial needs are sufficient to consume the entire estate, however having regard to the position of her sister Ms Bowman such an order is unlikely to be made." She submitted that "the area of debate" is the amount of the provision that should be made in favour of Ms Gardiner, having regard to the positions of the other beneficiaries. Ultimately, in par 63, Ms Gardiner proposed two alternative forms of relief; namely, first that Ms Gardiner should receive sufficient provision to permit her to purchase accommodation, being $480,000, and have a buffer of $100,000; or in the alternative, secondly she should receive the entire estate less $100,000 payable to Ms Bowman.

Value of estate 11The evidence does not establish the present market value of the Hyacinth Street property with certainty. On 6 December 2012, in a formal valuation, Ms Genevieve Wunsch of GW Valuers, ascribed a current market value of $625,000 to the property (Exhibit 1). The valuer stated that "pivotal factors" in the assessment included the triangular shape of the block, "the narrow frontage and the dated nature of the dwelling". It appears from an attached diagram that the property's frontage on Hyacinth Street is about 8 m (stated on the plan as 25' 3''). There was also in evidence a market appraisal of the Hyacinth Street property by Laing & Simmons Hornsby, as at 29 July 2013, at between $650,000 and $680,000 (Exhibit 2). Ms Gardiner responded to this evidence tendered by the executor by tendering a market appraisal by Ray White Hornsby, as at 23 October 2012, at "above $750,000" (Exhibit B). The market appraisals were received into evidence in accordance with par 21(a) of Practice Note SC Eq 7. Neither the valuer nor the two real estate agents were cross-examined. There was some inconclusive evidence that the Hyacinth Street property may be run down in various respects, and require some work to be done before its optimal market value could be realised. 12The position that Ms Gardiner adopted in submissions was that the range of value of the property should be taken as being between $650,000 and $750,000, and that a neutral approach of adopting the midpoint of $700,000 was appropriate. Mr Gardiner's submissions suggested that the value of the property was "in the order of $650,000-$680,000". The Court is not in a position on the state of the evidence to determine the current market value of the property. Any attempt to do so would probably be pointless in any event, as sufficient time has passed from the dates of the valuation in particular, and also the market appraisals, to give rise to a real possibility that the real estate market in the Asquith area has changed. I propose to adopt a working value of $675,000 for the purpose of assessing the effect of the submissions that have been made by the parties, and any orders that may be made by the Court. However, I will bear in mind that in reality the value of the Hyacinth Street property will only be determined when the property is actually sold. The margin of error in adopting the working value that I have suggested is not huge, but may be significant given the relatively moderate value of the estate, and the fact that three beneficiaries have a claim on the estate. 13I will work on the basis that the value of the estate is $840,000 in total, after rounding up the value of the further assets to $165,000.

Legal costs 14The evidence is not entirely clear as to the amount of the legal costs that the parties will incur to the conclusion of the proceedings. I will consider the significance of the legal costs in more detail below. There is evidence that Ms Gardiner incurred costs of $118,324.90 up to 17 October 2013, and that she would be charged a further $11,000 to the completion of the hearing. I will adopt an estimated total of $130,000. Mr Gardiner's costs were estimated to be $58,000 on the basis that the hearing would conclude in two days. There was no evidence as to the additional costs that Mr Gardiner may incur as a result of the fact that the hearing went into a third day, and because of the delay between the final day and the initial hearing, it was appropriate for counsel to provide the Court with written submissions. If I, arbitrarily, assume that Mr Gardiner will incur the same additional costs as were estimated for Ms Gardiner (which is likely to be an underestimate), then Mr Gardiner's costs would be $69,000. The total costs on these assumptions would be $199,000, say $200,000. 15If Ms Gardiner were to succeed on her claim, then it would usually follow that an order would be made that the costs of both parties should be paid out of the assets of the estate. Whether an order to that effect should be made in the present case is a question to which I will later return. If Ms Gardiner succeeds and the usual costs order is made then the value of the estate available for distribution between the three beneficiaries will be $640,000. Payment of the parties' legal costs out of the estate would, in this event, lead to a repayment to Ms Gardiner of the legal costs that she has already paid.

Ms Gardiner's asset position, and effect of legal costs 16If Ms Gardiner had not instituted the present proceedings, she would not have incurred any legal costs. In that event the value of her current assets, other than her share in the deceased's estate, would have been approximately $60,000 plus the approximately $91,000 ($118,324.90 incurred, less $27,512.10 unpaid, equals $90,812.80) in legal costs that Ms Gardiner has already paid. The total is $151,000. Her third share in the value of the estate, on my working total of $840,000, would have been $280,000. Ms Gardiner's total current assets would in that event have been $431,000. 17Ms Gardiner's position, as stated in her final written submissions, was that the value of her assets, putting aside her third share in the estate of the deceased, is $60,116, less a liability of approximately $28,000 for unpaid legal fees. Of the $60,116, $51,616 is in the form of cash, or cash equivalents, and $8500 is the estimated present value of Ms Gardiner's car. The net position is about $32,000. In her written submissions Ms Gardiner included $225,000 to $231,000 as the estimate of the value of her share in the deceased's estate, if the effect of the will is not altered by any order made by the Court. Ms Gardiner therefore assessed her total present assets as falling within the range $257,000 to $263,000. 18The effect of the manner in which Ms Gardiner has dealt with the legal costs of the proceedings in reaching this estimate should be noticed. Ms Gardiner calculated the value of her one-third share of the estate at $225,000 to $231,000, after deducting from her assessment of the total value of the estate the amount of the legal costs of the proceedings (which she assessed as being $176,000). Ms Gardiner also deducted the unpaid portion of her own legal costs, being $28,000, from her current assets. There is, with respect, some confusion in this arithmetical approach to determining Ms Gardiner's current asset position. It was not arithmetically sound for Ms Gardiner to deduct the whole of her estimate of the legal costs of the proceedings in calculating the value of the one-third share of the estate, but then also to deduct the unpaid portion of the legal costs in calculating the value of her present assets. 19I have, above, adopted a working value of the deceased's estate, on the assumption that the whole of the legal costs of the parties are to be paid out of the assets of the estate, of $640,000. As finally put in written submissions, Ms Gardiner asks the Court to make in her favour alternative orders with a value of $580,000 ($480,000 to purchase accommodation with a buffer of $100,000) or $540,000 (being the value of the estate after the payment of legal costs less $100,000 as a buffer payable to Ms Bowman). The first of these orders, if made, would only leave $60,000 as a buffer for Ms Bowman. 20If the first order sought were to be made, then Ms Gardiner would be $149,000 better off than if she had not commenced her proceedings. In the case of the second order, she would be $109,000 better off. Those results assume that all of the legal costs of the parties are ordered to be paid out of the assets of the estate, and that the Court does not order Ms Gardiner to bear any portion of her costs.

Structure of Ms Gardiner's claim, and her personal situation 21In her final submissions Ms Gardiner approached her burden of satisfying the Court that adequate provision has not been made for her by the deceased's will in terms of s 59 (1)(c) of the Act, and the nature of the family provision order that ought to be made under s 59(2), by first addressing the grounds upon which the provision that was made was inadequate; then by considering the provision that ought to be made in the absence of having regard to the competing needs of the other beneficiaries; and then finally by considering those competing needs and addressing the extent to which those needs might reasonably reduce the provision that would otherwise be made in her favour. 22On the first of these issues Ms Gardiner's case was, in summary; she does not own her own accommodation, but is required to rent; she has no realistic prospect of gainful employment; she will never be able to buy a home for herself with her present financial resources; and she is suffering the effect of a traumatic instance of workplace bullying and harassment, which has left her with a debilitating psychiatric illness, being adjustment disorder with anxiety and depression of moderate and at times severe intensity, with secondary panic attacks, as well as a number of significant physical ailments. 23I find, on the evidence before the Court, that Ms Gardiner has established each of these matters. Ms Gardiner relied upon reports and other communications from her doctors, particularly Dr Morse, and other health professionals. That evidence was admitted without objection. None of the health professionals who provided the evidence was required for cross-examination. Ms Gardiner adopted the same approach in relation to the medical evidence that was furnished on behalf of Mr Gardiner and Ms Bowman. 24Ms Gardiner said in her affidavit evidence that she attended Asquith Girls High and completed high school to year 10 in 1970. In 1971 she did one year of a diploma in art at Hornsby Technical College. In 1973, when she was 18, she was hit by a car and suffered spinal and hip injuries. Ms Gardiner resumed her art course and completed her diploma in 1981. In the period up to October 2000 Ms Gardiner engaged in a number of forms of employment. That included working in an antique shop and a florist, managing a small antique and second hand shop, being partner in a landscape design and construction business, being a sales assistant, designing advertisements and advertising layouts for a business directory, being an employed graphic designer and illustrator, and then engaging in freelance work as an illustrator and graphic designer. 25In October 2000 Ms Gardiner started work as a casual shop assistant at Oxford Art Supplies and Books Pty Ltd at Chatswood. She ceased that employment on 8 July 2005, and has been unemployed since that date. 26During the period of this employment Ms Gardiner suffered bullying, sexual harassment and stalking which were the substantial cause of most of the psychiatric difficulties from which Ms Gardiner has subsequently suffered. As a consequence of these matters, Ms Gardiner was subsequently awarded, or received by way of compromise, a number of compensation payments that will be considered below. They also led Ms Gardiner to seek the medical assistance that has led to the evidence in these proceedings on that subject. 27It is not necessary in these reasons for judgment to attempt to set out in complete detail all of the medical evidence, or all of the matters contained in the reports that have been provided. 28Dr Peter Morse, consultant psychiatrist, saw Ms Gardiner on 23 January 2007 and provided a 16-page report. Dr Morse recorded a diagnosis of adjustment disorder with anxiety and depression of moderate and at times severe intensity (p 12). He said that: "The experience, the memory and shock of the various incidents at work especially the sexual harassment has caused ongoing emotional, physical and cognitive state that is best described as Post Traumatic Stress Disorder" (p 13), and on the same page: "Therefore I see the stress of the employment together with the physical illness extending over a period of at least four years as the cause of the psychobiological change that is anxiety and depression". Further, Dr Morse said at p 14: "She is unable to work now because of a combination of her anxiety, depression, difficulty relating to people and fear of further infections. I believe the prospects of future work look poor given her age and her past experiences and ongoing fears and anxieties. There is some evidence of cognitive impairments secondary to depression and her physical state. It is highly unlikely she will ever work again. She used to engage in a small number of activities, which have ceased, and she leads an isolated, restricted life." In his report Dr Morse recorded in some detail the physical and psychological difficulties that Ms Gardiner related to him during the consultation. 29On 14 November 2007, in an update report provided apparently to Ms Gardiner's general practitioner, Dr David Hall, consultant psychiatrist, advised that he had originally diagnosed Ms Gardiner as having developed posttraumatic stress disorder as a result of the work-related events with secondary panic and agoraphobia. Dr Hall outlined the management of Ms Gardiner's symptoms that he had undertaken and concluded that the post traumatic stress disorder symptoms had "largely resolved", but she still suffered anxiety because of drawn out court and insurance processes and financial stress. 30On 17 March 2008 Dr Robert Gertler, consultant psychiatrist, provided a Medical Assessment Certificate for the Workers Compensation Commission. Dr Gertler concluded (p 5) that Ms Gardiner was "suffering from a chronic post-traumatic stress disorder and major depression" and (p 7) Dr Gertler certified that the impairment was permanent. 31Dr Morse provided a further report dated 6 December 2012. Dr Morse noted that at the time of his original consultation with Ms Gardiner he diagnosed her as suffering from adjustment disorder with anxiety and depression of moderate intensity. He repeated (p 10) his diagnosis that Ms Gardiner was, in December 2012, suffering from adjustment disorder with depression and anxiety of moderate to severe intensity. He concluded: "In my opinion Ms Gardiner will continue to experience emotional distress and because of her emotional state, difficulties in relating to people and past experience she will continue to lead an isolated, very restricted life. It is hoped that she will become less anxious and depressed with psychological therapy but this won't be marked... She will never be employed again. She will always have restricted social and recreational activities." 32Dr Morse recorded (p 2) the substance of a conversation with Ms Gardiner that referred to the effort that Ms Gardiner had put in to looking after her parents before their respective deaths, and her expectation that her mother would reward her for her care, and that Ms Gardiner was "devastated" when she found out that the will split her mother's estate three ways. The record of the conversation made by Dr Morse was: "She said that her mother realised the sacrifices she was making and although she was aware of the will that both parents made some years ago leaving the estate to Ms Gardiner and her two siblings. Ms Gardiner said her mother was anxious that she be rewarded for her care and had arranged to see a solicitor and left papers with him. Ms Gardiner said the solicitor delaying things and wouldn't keep appointments and was not available and the new (sic) was never made which she said her mother was upset about because she really wanted her to have the house and she would have somewhere settled to live in." 33There is also medical evidence of various physical ailments of which Ms Gardiner has suffered, and will continue to suffer. It will be sufficient to record the following part of the report by Dr John Wan, general practitioner, dated 16 June 2013, who said that he had seen Ms Gardiner on a total of 13 occasions since 10 December 2013: "In my professional opinion, [Ms Gardiner] suffers from several chronic conditions as listed below: - Bone fragility, recurrent fractures and osteopenia - Musculoskeletal issues as a result of her previous fractures and injuries - including chronic neck, lower back and hip pain - Recurrent palpitations and tachycardia - Mild chronic airways limitation disease - Post traumatic stress disorder, anxiety and depression." 34Mr Gardner did not mount any real challenge to these conclusions. As a practical matter I am fortified in accepting this evidence, as well as the other medical evidence, which I have considered but have not found it necessary to relate, by the fact that at least the earlier evidence was accepted by the persons who were responsible for awarding or agreeing to pay Ms Gardiner compensation as a result of her work experiences that have been outlined above. 35Ms Gardiner provided evidence of the substantial level of care and support that she claims to have provided to both of her parents before their deaths: affidavit sworn 29 May 2012 pars 22 to 32, 38 to 45, 48 to 51, 56 to 81, 85 to 102, and 107 to 112. It is not necessary to relate the detail of that evidence. It is sufficient to note that Ms Gardiner said that the deceased suffered her first heart attack in January 2002 at the age of 75. Her father's health began to deteriorate in January 2003. Ms Gardiner provided some level of assistance to both of her parents from those times. Initially it appears to have been on an occasional, though regular, and on a needs basis. Both the deceased and Ms Gardiner's father asked her to look after them from mid-2005 onwards. The deceased's health deteriorated in May 2008. The father was diagnosed with Alzheimer's in 2008. Ms Gardiner said in par 70: "I had become a full-time carer for both of my parents, while continuing to rent in Willoughby". I infer from the context in Ms Gardiner's affidavit that this was some time after March 2009. The subsequent paragraphs of the affidavit show that this claim was not literally correct. Ms Gardiner provided increasing levels of care and support to her parents while living in Willoughby. Ms Gardiner moved into a small apartment in Hornsby in December 2009. That permitted Ms Gardiner to provide a higher level of support to her parents. The father died on 27 October 2010. Ms Gardiner stayed at the Hyacinth Street property for some periods, generally when Mr Gardiner was not present. The deceased died on 30 May 2011. 36I infer from this evidence that, to the extent that Ms Gardiner may have provided a relatively intense level of assistance to her parents, which probably started at the end of 2009. It lasted about a year in the case of the father, and about a year and a half in the case of the deceased. 37Ms Gardiner's evidence concerning the level of care that she provided to her parents was not challenged in any detail by Mr Gardiner, although Ms Gardiner did admit in cross-examination that her own medical condition placed a limit on what she could do in support of her parents (T 19.35). 38The thrust of Ms Gardiner's evidence on the issue of providing care to her parents went not only to the level of care that she said that she provided, but Ms Gardiner put a positive case that her siblings did not provide any care or assistance to their parents. Ms Gardiner stated in her 29 May 2012 affidavit (pars 76 and 96) that Mr Gardner refused or neglected to help her parents, notwithstanding that at all times he lived at the Hyacinth Street property, and that "he did not provide assistance to the deceased." She said, for example, in relation to Ms Bowman, that when Ms Gardiner asked for help looking after their parents, Ms Bowman replied: "I'm sick of hearing the suffering tone of your voice. I'm too busy to talk right now": par 75. 39Mr Gardiner and Ms Bowman both gave evidence that challenged the truth of Ms Gardiner's claim that they both provided very little assistance to their parents. I find that Ms Gardiner's claim was in fact too extreme and that both of her siblings did provide care and assistance to their parents, albeit at a lower level of frequency and intensity than did Ms Gardiner. 40The most telling evidence on this subject is found in a letter dated 26 August 2010 that Mr Kinchington wrote to the deceased, following a conference between Mr Kinchington and the deceased that took place on that day. At that time Mr Kinchington was the deceased's solicitor, and was acting on the grant of probate of the deceased's late husband's will. He is now Mr Gardiner's solicitor. The letter contained advice on a number of subjects, and plainly related the substance of some instructions that the deceased gave to her solicitor. The letter included the following statements: "You indicated that you wish to make further provision for your daughter Jeanette (sic) as she is carrying the greater burden of the care in the home as the other two siblings cannot provide that assistance", and "Your other daughter Jeanette is attending your home almost on a daily basis to care for you both." (The letter was written when the deceased's late husband was still alive). 41The deceased's brother, Mr Colin Leek, swore an affidavit in which he said that he was well aware, prior to a meeting that he had with the deceased on about 26 March 2011, that Ms Gardiner had been looking after both of her parents in their day-to-day care. 42It is not necessary to analyse the evidence concerning the different levels of care and support provided by each of the three children in any detail, as in her final submissions Ms Gardiner did not make the issue of differential parental care the cornerstone of her case. She submitted that: "it is not possible to resolve the factual contest between the accounts given on [the issue of assistance] in these proceedings. It may be unnecessary to do so, as [Ms Gardiner] clearly held a firm perception to that effect...and clearly had a basis for doing so, being the high level of assistance she was providing her parents": outline of argument par 19. 43It is clear from the evidence that Ms Gardiner had an expectation that the deceased would change her will and make a special bequest to Ms Gardiner to recognise the level of care that Ms Gardiner had provided to her parents and her special needs, and financial position that was significantly inferior to that of her siblings. As mentioned above, Dr Morse recorded in his 6 December 2012 report that Ms Gardiner was devastated when she discovered that the will distributed the property of the deceased's estate equally between the three beneficiaries.

Deceased's consideration of Ms Gardiner's entitlement 44The letter that Mr Kinchington wrote that is referred to above recorded that the deceased had apparently informed her solicitor that she wished to make further provision for Ms Gardiner. The solicitor also observed that Ms Gardiner could not continue to provide care in the long term without some financial assistance, and that Ms Gardiner: "needs to earn a wage or obtain financial support to continue in her care role." Mr Kinchington advised: "You have some monies in interest-bearing deposits which you may wish to pay [Ms Gardiner] for the care she provides you. Alternately, you could sell the home and place a percentage of that home in her name as a tenant in common. That would provide her with accommodation into the future and allow her to own whatever percentage of the home you think is appropriate e.g. one third or half... You would not have to change your Will. In that way, for example, [Ms Gardiner] could retain half the new home and one third of the estate giving her about 66% of the property. The remaining one third could be divided and given to the other two children. They both have substantial assets including a home in relation to the older sister and Ray has substantial investments and superannuation as well..." Mr Kinchington attached a form to his letter designed to assist the deceased and her husband to provide instructions as to the contents of new wills, and asked them to fill out the form and return it. 45An undated Client's Instruction Sheet, which is completed in handwriting, contained the following instructions: "I would like to make [Ms Gardiner] half owner of the house via title deed + to leave the rest divided into three equal shares, as per our discussion of various options." The document appears to have been signed by the deceased. Ms Gardiner gave evidence that the document was in her mother's handwriting (T 26.22), and that Ms Gardiner did not see her mother fill out the page that contained the instruction (T 27.19). 46Mr Kinchington swore an affidavit in which he said that he believed that he received the Client's Instruction Sheet on 13 December 2010. He said that the deceased advised him on a number of occasions that she was still thinking about what to do, when he asked her about whether she wanted to execute a new will. 47In her 24 August 2012 affidavit in reply, Ms Gardiner stated in par 44 "that our mother made expression wishes to my siblings and myself that she intended to change her Will to address my financial loss and needs." She said in par 69 that she was present at the conference between the deceased and Mr Kinchington that led him to write the 26 August 2010 letter of advice that is referred to above. Among other things, Ms Gardiner said that one of the issues discussed was "the proposed changes to her Will in which she intended to make provision for me." She said Mr Kinchington "indicated that he thought it was fair that I receive two thirds of the estate but it was complicated as our father was still alive." Ms Gardiner claimed that after her father died the deceased made a number of attempts to contact Mr Kinchington to get his advice, but these attempts were unsuccessful. After the deceased sent the Client's Instruction Sheet to the solicitor, an appointment was made for a conference at his office, but when the deceased and Ms Gardiner arrived the office was locked. Ms Gardiner said that Mr Kinchington apologised and made an appointment to attend upon the deceased at her home. 48Mr Kinchington said that on about 25 May 2011, when he attended the deceased's home to deal with probate of her late husband's will, he asked the deceased whether she had made a decision about changing her will, and the deceased replied: "I have decided to leave my will the way it is." 49Ms Gardiner said of this meeting in par 69 of her affidavit in reply: "Our mother specifically told him that she wanted to discuss the new Will. When Mr Kinchington arrived he was only concerned to have the documentation signed for our father's probate and said he did not have time to deal with the Will as he was going to his mother's for dinner. It should be noted that Mr Kinchington's mother and our mother were best friends. Mr Kinchington left our house saying words to the following effect: 'You two should get together and decide what is to happen with the Will and then make an appointment to come in and see me.'" 50It was not put to Mr Kinchington in cross-examination that the deceased did not give him the instruction that she had decided not to change her will. The view that Mr Kinchington's evidence should not be challenged may have been taken because Ms Gardiner was not in earshot at the time that the deceased is alleged to have given that instruction. Nor was Ms Gardiner cross-examined about her evidence, that the solicitor said during the meeting, that he did not have time to deal with the new will, and at the end of the meeting he suggested that Ms Gardiner and the deceased should decide what was to happen and make a further conference with Mr Kinchington. That evidence, if true, clashes with the proposition that Mr Kinchington was given an instruction by the deceased during the meeting that she had decided not to change her will. 51Ms Gardiner also gave evidence that on the day of the deceased's death she spoke to Mr Kinchington to advise him of the fact, and he said: "I'm sorry, I thought we had more time for your mother's Will. You should try and have a meeting with your brother and sister to resolve it as soon as possible." When Ms Gardiner asked for advice as to the basis on which she should negotiate with her siblings, the solicitor replied: "On two thirds." It is highly unlikely that Mr Kinchington would have made these statements if he recalled that some three weeks earlier he had received clear instructions from the deceased that she did not wish to amend her existing will. 52In Mr Leek's affidavit he said that he had a discussion with his sister on about 26 March 2011 in which she told him that she needed to change her will for the benefit of Ms Gardiner, and that she had not been coerced into making that decision. Mr Leek did not discuss the detail of his sister's intentions with her, as he did not regard that as being any of his business. Mr Leek annexed to his affidavit a hand written and a typewritten note of his discussions with the deceased on 26 March 2011. Those notes appear to confirm that the deceased intended that, after probate of her late husband's will was issued, she would sell the Hyacinth Street property and buy a smaller property in which she and Ms Gardiner could live 53The notes also confirm the evidence given by Ms Gardiner in her affidavit in reply that the deceased asked Mr Gardiner to move out so that Ms Gardiner could move in to the Hyacinth Street property in the meantime in order to care for the deceased. Mr Gardiner refused to do so. Ms Gardiner would not move in while Mr Gardiner was still living there. This led to an impasse. The notes also confirm Ms Gardiner's evidence that the deceased expressed the view that Mr Gardiner had enough assets to buy a house or home unit for himself. 54Finally, Mr Leek said that the deceased had told him that she had made several attempts to see her solicitor to change her will, but he was never available. 55I will return below to a consideration of the deceased's deliberations as to whether a special provision should be made in her will in favour of Ms Gardiner.

Compensation payments received by Ms Gardiner 56Ms Gardiner's evidence was that, apart from her share in the deceased's estate, her current assets consist of the balance of the monies that she received as compensation for the events that led to her present predicament, of $42,616, her car with an estimated value of $8500, cash in a bank account of approximately $1000, and superannuation of approximately $8000. 57The evidence that Ms Gardiner provided concerning the amount of the compensation that she received, and the expenditures that led to her retaining the $42,616 was not well documented. The evidence did not provide a full or clear accounting. In some respects the evidence consisted only of assertions made by Ms Gardiner. Following a comment that I made during the course of the proceedings as to the desirability of financial evidence being corroborated, Ms Gardiner was given leave to file a supplementary affidavit that provided additional, albeit incomplete, documentary evidence as to the compensation that she had received and how a substantial part of that money had been expended. 58It seems that on 26 May 2008 Ms Gardiner was awarded $51,000 workers compensation. On 12 May 2010 Ms Gardiner received from her solicitor $194,927.50, being the net proceeds of a $250,000 compromise of a common law claim that she made based upon events occurring during her employment, after the deduction of legal costs. It appears that a further cheque for $33,577.67 in respect of weekly benefits for a two-year period was also forwarded to Ms Gardiner in May 2010. The evidence is not entirely clear concerning this last-mentioned sum. Ms Gardiner was also apparently paid $10,000 to withdraw a claim for discrimination that she had made against her former employer. Counsel for Mr Gardiner made a conscientious effort in cross-examination to try to identify the amounts and times of receipt of the compensation payments, and also how Ms Gardiner expended her money. That exercise was not entirely successful because of the incomplete state of the documentation that was provided. Mr Gardiner was concerned to be able to establish whether or not Ms Gardiner had any current assets in addition to those that were disclosed in her affidavit evidence. The total net compensation received by Ms Gardiner was $289,505.17 59Ultimately, the evidence appeared to establish that Ms Gardiner has spent about $90,800 on legal fees, $18,500 on her car, $41,500 on rent, and that she has $42,616 remaining. The total is $193,400. The balance of $96,105.17 has not specifically been accounted for. Ms Gardiner initially gave evidence that she had spent about half of the compensation that she had received on living expenses, but qualified that evidence in cross-examination by describing it as being "misworded"(T 30.48), as she had to concede that her biggest expenditure had been the amount that she paid to her solicitor in respect of the legal costs of the present proceedings. 60I am satisfied on the evidence that Ms Gardiner only has the current assets that she has disclosed. The evidence does not establish with any clarity how all of her compensation receipts were expended, but I am satisfied that, except for the expenditures that have been identified, the money was spent on general living expenses.

Ms Gardiner's current expenses 61In par 10 of her affidavit sworn on 19 July 2013 Ms Gardiner set out a table of her "current annual/monthly expenses". There is an error in the allowance for electricity, which estimates an annual expense of $2000, which is included as a monthly expense of $766.70. The latter figure should be $166.67. The total annual expenses are given at $49,430.90. The monthly amount, after making the correction referred to above, is $4119.24. That is equivalent to a fortnightly expenditure of $1901.18, say $1900. 62In par 29 of her final written submissions Ms Gardiner based her submissions concerning her current expenses on the list of expenses in Annexure E to her 29 May 2012 affidavit, which were $38,949 per annum in total. I have acted upon the basis of the later list of expenses in her 19 July 2013 affidavit. 63It is not necessary to set out or analyse the individual components of Ms Gardiner's current expenses, as on the one hand Ms Gardiner did not provide any evidence to justify the amounts, and on the other, the amounts were not challenged by Mr Gardiner.

Ms Gardiner's pension entitlement 64In relation to her future needs, Ms Gardiner provided evidence in her 19 July 2013 affidavit that, because of the compensation that she had earlier received, she was not entitled to apply for any pension until February 2014. She subsequently agreed in cross-examination that she could apply for a pension on 1 January 2014. She said that she would initially be placed on a Newstart Allowance with a rent allowance that would be in the amount of $306.80 per week. She said that she would then be able to apply for a disability support pension that would take a minimum of six weeks to process. Initially Ms Gardiner did not give any evidence about the likely amount of the disability support pension. 65Following an observation that I made during the course of the hearing as to the necessity for detailed evidence to be provided concerning the amount of Ms Gardiner's ongoing pension entitlement; Ms Gardiner provided some evidence on that subject in her supplementary affidavit sworn 14 August 2013. She said that the fortnightly payment made under a disability support pension would be $733.70. The Centrelink document annexed to Ms Gardiner's affidavit shows that a disability support pension will only be payable until Ms Gardiner is eligible for the age pension. There was no evidence before the Court as to what the amount of any age pension payable to Ms Gardiner would be. Ms Gardiner gave evidence that, if she were to own her own home, the value of the home would not be included in any asset test that might lead to a reduction in the amount of her disability support pension. She said that she could earn income up to $156 per fortnight, or $4056 per year, without any reduction in her pension entitlement. Thereafter the pension would be reduced by $.50 per dollar earned above $156 per fortnight. The pension entitlement would fall to zero if Ms Gardiner earnt $1772.80 per fortnight. 66As noted above, Ms Gardiner's current expenses are $1900 per fortnight. The fortnightly disability support pension of $733.70 will plainly be inadequate to support that level of expense. Even if Ms Gardiner had an investment that yielded $156 per fortnight, that would only give $889.70 per fortnight, before additional income would start to reduce her pension. Ms Gardiner's current fortnightly expenses are $1341.18, say $1340, after deduction of her rent payments. It is clear that, even if Ms Gardiner had her own home, and so was not required to pay rent, a disability support pension would be inadequate to support her current level of expenses. 67Ms Gardiner's evidence did not address this problem. She provided evidence of her current expenses without any explanation, and has not explained how she could maintain that level of expenses even if she was given in these proceedings either of the two alternative forms of relief that she now seeks.

Ms Gardiner's accommodation and other needs 68Ms Gardiner also gave evidence of a need for continuing physiotherapy and hydrotherapy to address her medical problems. She provided evidence that a gym membership would be $64 per month, physiotherapy treatment would be $80 per session, and the cost of the installation of a pool for hydrotherapy would be $25,000, before extras. Ms Gardiner's final submissions described her request to be provided with a pool out of the estate as being "on the outer limit of her needs" (par 30). 69The evidence provided by Ms Gardiner for the cost of her acquiring ownership of her own home is found in par 16 of her 19 July 2013 affidavit. She said: "... I have made a number of enquiries with local Real Estate Agents and on the internet as to the costs of a suitable two (2) bedroom residence in the area. From those enquiries I understand that the range is from $480,000-$650,000." Ms Gardner annexed to her affidavit a letter dated 29 April 2013 from Laing & Simmons that advised: "Typically you will find houses range from $550,000 and up, and townhouses from $480,000-$600,000 depending on the size, location and how new they are." The estate agents were discussing "recent sales in the Hornsby area". 70Ms Gardner's position was that she could not satisfactorily live in an apartment or home unit because an aspect of her psychological condition meant that she felt isolated and found it difficult to associate with other persons, so that she would not find it suitable to live in an apartment building, which would require that she associate with other owners and the owners corporation. She did not provide any substantial reason why it was necessary for her to acquire accommodation in the Hornsby or Asquith areas. Before the deterioration in her parents' health caused her to move to rental accommodation in Hornsby, Ms Gardiner had rented in Chatswood and Willoughby. She said in cross-examination, in answer to a question as to why she would like to live in Asquith: "It's preferable. I cannot move back to the Chatswood area where I did live. It's too expensive and I am now in the Asquith/Hornsby area so, yes, I would rather stay than be dislocated somewhere else again" (T 33.41). As Ms Gardiner's case is that she is isolated from the company of other persons, she did not suggest that she had a need to live in the Asquith area because of community or friendship connections. 71Ms Gardiner did not provide any evidence as to alternative potential accommodation, whether by means of the cost of an apartment in the Hornsby/Asquith area or any other place, or the cost of a town house or house in any other area, or the cost of one bedroom accommodation anywhere. The first form of the relief that Ms Gardiner now seeks is that she be allowed a sum of $480,000 to purchase a home. That amount is right at the low end of the cost estimate for town houses of the type that Ms Gardiner wishes to purchase, in accordance with the opinion expressed by Laing & Simmons.

Mr Gardiner's circumstances 72Mr Gardiner was born on 4 October 1953. He has always resided in the Hyacinth Street property. He has continued to do so after the death of the deceased. Mr Gardiner gave evidence that he always paid board to his parents, and subsequently to his mother after his father died. The amount of the board that he paid was satisfactory to his parents. It increased with rises in Mr Gardiner's salary. He paid the deceased $350 every fortnight, and gave evidence of other types of payment that he made from time to time (7 December 2012 affidavit par 22). 73I have referred above to the evidence given by Ms Gardiner and Mr Leek that the deceased asked Mr Gardiner to move out of the Hyacinth Street property so that Ms Gardiner could move in to care for the deceased, but that Mr Gardiner ignored that request. 74Mr Gardiner said that he used to do a lot of work around the house including cutting wood for the fire, mowing the grass, cleaning the chimney, cleaning leaves from the gutters, washing down dirty exterior house walls, doing other household maintenance, and destroying wasps nests. He repainted the decking several times and had been doing work to prepare to repaint the house. He would do shopping on request. As he was living in the house with his parents, he would cook breakfast for them and often talk to them during breakfast. Among other things, he would help his mother with housework and a little with cooking. 75On 12 February 2004 Mr Gardiner married a Cuban woman, who still lives in Cuba. Mr Gardiner's wife has come to Australia for visits on a number of occasions, and Mr Gardiner has spent time in Cuba staying with her. Mr Gardiner has bought a house in Cuba for his wife to live in. Buying and furnishing the house cost about $60,000. Mr Gardiner supports his wife by sending her about $5000 per year. Mr Gardiner hopes that his wife will be able to move to Australia. He expects that it will cost at least $5000 to get the visa and related paperwork and airfare for his wife to move to Australia. Mr Gardiner will have to support his wife if she comes to Australia until she can find a job. She will not be able to access social security payments for two years after she arrives. Mr Gardiner's wife would like to be a teacher, but will have to go to university to upgrade her qualifications. Mr Gardiner hopes that when he retires he will be able to live with his wife for part of the time in Australia and the balance of the time in Cuba. 76Mr Gardiner attended Asquith Boys High's School and completed year 12 in 1973. He then completed a fitter and machinist trade course at North Sydney Technical College part-time while working. Later he started a degree in Engineering at the Institute of Technology, Sydney, but he did not complete it. 77Mr Gardiner has since 1983 worked as a train driver. He works a 19-day month so he has 4 days off one fortnight and 5 days off the next fortnight. Normally he works several days overtime, and it is a condition of his employment that he works one-day overtime a fortnight if required. Mr Gardiner's income for the year ending 30 June 2012 was $111,189. During that year he worked 32 days overtime. Mr Gardiner gave evidence that Railcorp has been taking steps to employ a number of new train drivers for the purpose of reducing the amount of overtime that will be required of the existing train drivers. For the month before he swore his affidavit he was only given one day's overtime. If his employer stops giving him overtime, that will be likely to reduce his annual income by about $25,000. 78Mr Gardiner gave evidence that he is generally in good health, but has to take blood pressure pills, and has been given medical advice that he has a high risk of developing diabetes, so he has to go for regular glucose tolerance tests. At work he has a class 1 medical certificate, which is the same as an airline pilot. If he were to develop uncontrolled diabetes or high blood pressure, he would lose his medical certificate, which would prevent him from driving trains. On about 13 March 2012 Mr Gardner was diagnosed with prostate cancer. The cancer is apparently very small and not aggressive. Mr Gardner has been advised medically that at this stage he should have a biopsy twice a year. 79Mr Gardiner gave evidence that he hopes to retire soon. He is finding that as he gets older the very long and odd shifts that he does at work are very difficult. The hours that he works have caused him to be worried about his health. He will have 30 years service with the railways in mid-2014 and would like to retire soon after then. 80Before he retires Mr Gardiner wants to have a house in Australia paid off. He cannot afford a house in the Hornsby area, partly because of the costs he has incurred in getting married and supporting his wife. Mr Gardiner thinks that he will have to move to the Gosford or Woy Woy areas to be able to afford a house. He says that, because of his age, the bank will only give him a home loan over a 10-year period. That may cause him problems in travelling to and from work and will add one and a half to two hours a day travelling time. 81In his 20 July 2013 affidavit Mr Gardiner gave updated evidence concerning his financial circumstances. Mr Gardner listed his assets as follows: "Commonwealth Bank Streamline account $15,560 Commonwealth Bank Term Deposit $81,669 Commonwealth Bank NetBank Saver $10,231 Credit Union $5600 MLC superannuation $69,835 Colonial Superannuation $37,274 Tower Superannuation $31,884 State Superannuation Retire $502,654 Commonwealth Bank Shares $1062." 82The total amount of these investments is $755,769. Mr Gardiner gave his monthly living expenses as being a total of about $3100 per month. That includes sending his wife $390 each month. It also includes payments to four superannuation funds that total $1339 per month. If Mr Gardiner's superannuation payments are excluded, his expenses are $812 per fortnight. That compares with Ms Gardiner's fortnightly expenses, excluding rent, of about $1340. 83In Ms Gardiner's submissions, she sets out calculations that proceed upon the assumption that Mr Gardiner's financial position will be improved on the basis that he could work until the age of 70, and also that there is a prospect that his wife, now aged 35, will join him to live in Australia and work here (pars 33 to 44). Ms Gardiner starts from the proposition that the total value of Mr Gardiner's present investments, plus the house in Cuba, is $815,769. If Mr Gardner works for a further 10 years, even assuming no overtime and no increase in salary, he will earn $665,610. When added to his existing assets that gives $1,481,171. If his existing superannuation were not touched until age 70, it would increase to $604,715, or an additional $102,061. That would give a total of $1,583,232. By means of calculations set out in par 38, Ms Gardiner suggests that Mr Gardiner's superannuation would increase by reason of additional contributions by $377,884 (on the basis of conservative assumptions). That would give a total of $1,961,116. 84The evidence shows that Mr Gardiner hopes to use his equal third share of the deceased's estate as part payment for the costs of a home. On Ms Gardiner's figures the equal share would be between $225,000 and $231,000. Ms Gardiner submitted (par 40) that if that amount is deducted from Mr Gardiner's current financial assets, and it is assumed that he pays off the loan that he will need for the balance of the purchase price out of his income, and that the remainder of his financial assets earn 5% flat per annum over a 10 year period, at the end of that time, Mr Gardiner will own his home and have assets of between $793,149 and $787,149. This calculation appears not to take into account the additional superannuation that Ms Gardiner submits Mr Gardiner could accumulate over the period, which is dealt with elsewhere in her submissions. 85Ms Gardiner submitted that there are favourable contingencies that could be taken into account that may improve Mr Gardiner's financial position, based upon the realistic possibility that his wife will move to Australia and earn an independent income, or Mr Gardiner could move to Cuba to live with his wife. As it is not possible to place a value on these contingencies, Ms Gardiner accepted that "no allowance should be made for or against the projected position of [Mr Gardiner's] wealth" (par 42). 86Ms Gardiner also submitted that the Court should treat Mr Gardiner as having received a benefit of about $70,200 as a result of being able to live in the Hyacinth Street property rent-free since the death of the deceased. The calculation is set out in par 43 of her final written submissions. 87The conclusion that is reached by Ms Gardiner is that the gift to Mr Gardiner under the deceased's will should be used to meet her needs (par 44), and he should receive nothing at all.

Ms Bowman's circumstances 88Ms Bowman was born on 21 January 1959. Ms Bowman is divorced and has two children of her marriage, who are 25 and 21 years old. She also has two step-children from her marriage who are in their 30's. Following her divorce Ms Bowman received the family home at 21 Cutler Avenue, North Ryde, by way of a property settlement reached in May 2007. She sold that property in early 2011 and purchased her present home at 72 Somerville Road, Hornsby Heights. The North Ryde property was sold on 7 April 2011 for $850,000, with the balance of the purchase price received by Ms Bowman being $782,976. The cost of the Hornsby Heights property was $550,000. Ms Bowman used the difference to pay off various debts, including loans from family members, which left her with about $85,000. Ms Bowman has a motor vehicle purchased in August 2011 for $20,990. 89Ms Bowman has recently entered into a de facto relationship with Mr Gary Campbell. Mr Campbell lives with Ms Bowman in the Somerville Road property. As at the date of Ms Bowman's 20 July 2013 affidavit, Mr Campbell was working up to 5 days a week as a casual bus driver. His gross weekly earnings have varied between $798 and $1910.52. When Mr Campbell was not working, Ms Bowman was receiving a disability support pension that paid her $569.50 per fortnight. The effect of Mr Campbell working has been to reduce her pension, so that it has ranged between nil and $200 per fortnight, depending upon the amount earned by Mr Campbell. 90In earlier times Ms Bowman was able to earn up to $800 per month by taking in home-stay students and looking after them. She no longer enjoys that income, as she finds it too difficult to look after the students properly because of her health problems. 91The evidence establishes that Ms Bowman has serious health problems. The detail of her medical history is set out in Exhibit DB 1 to Ms Bowman's 10 July 2012 affidavit, and in the affidavit of Dr Patricia Burke sworn on 18 July 2013. The following does not relate the whole of Ms Bowman's medical history, and is focused more on her history since 2000 and her current medical condition. In 2000 Ms Bowman was diagnosed with gastro-oesophageal reflux disease ("GORD"). She began attending the pain clinic at Royal North Shore Hospital. She was also diagnosed with a labral tear of the cartilage in her left hip and severe osteoarthritis. Ms Bowman has walked with a cane since that time. Ms Bowman was diagnosed with chronic vertiginous migraine in 2001, and with left cervical outlet syndrome in 2002. In 2003 Ms Bowman had fundoplication surgery to tighten her stomach valve, and developed pneumonia. In 2004 she was diagnosed with thoracic outlet syndrome. In 2007 she had a total left hip replacement, but suffered complications because of her femur fracturing during surgery. She developed two deep vein thromboses. In 2008 Ms Bowman developed left breast cancer (stage 2B). She had lumpectomy surgery immediately, but contracted an infection. She commenced a 12-week course of radiotherapy. She still has regular 6 monthly checkups and takes an anti-cancer drug that has many side effects. 92Ms Bowman described her current ailments as being chronic pain and fibro myalgia, severe osteoarthritis, gout, GORD, and a hiatus hernia. She suffers from metaplasia and other conditions of the stomach lining. That causes her to have an increased risk of stomach cancer so that she needs to undergo biannual gastroscopies. Ms Bowman has regular steroid injections, mainly in the spine to control pain, and also takes pain medications and oral steroids. Ms Bowman attends a clinic for acupuncture and remedial massage once a week. Ms Bowman has been diagnosed with degenerative spine disease. She has regular blood tests to check on her high cholesterol, breast cancer markers and high calcium levels in case of recurrence of parathyroid tumours. Ms Bowman said in her 20 July 2013 affidavit that she has been told by her doctor that she will probably require a further hip replacement for her right hip because of osteoarthritis. Ms Bowman also has osteoarthritis in both knees and her lower back. Her hip joints are becoming more of a problem because there is some separation, and she is getting 'pins and needles' in both legs. 93As is noted above, Ms Gardiner's submission is that Ms Bowman's share in the state of the deceased should be reduced to $100,000 to give her a buffer against contingencies, and the balance should be applied in favour of Ms Gardiner.

Reasons for high legal costs 94The present case calls for some comment on the legal costs incurred by Ms Gardiner. Ordinarily, the legal costs of the parties must be considered to be an unfortunate necessity, even though they will usually reduce the value of the estate that is available for distribution between the parties who have claims on the estate. Ms Gardiner's solicitor, Mr Michael Paul Carroll, filed an affidavit sworn 17 October 2013, in which he provided an explanation of a number of unusual aspects of the costs incurred by Ms Gardiner. He said that in his estimation the costs in these proceedings prior to the hearing were higher than usual by an amount of approximately $30,000. The main reason for that was the high level of involvement of Ms Gardiner in the preparation of her affidavit and the considerable quantum of detailed written instructions that she provided to Mr Carroll. The initial draft affidavit was approximately three times the length of the affidavit that was relied upon. The reduction of that material and discussion as to its relevance took a considerable period of time. Mr Carroll said that in his view Ms Gardiner's psychological difficulties contributed to this process. Ms Gardiner's anxiety and concern manifested itself in a high level of involvement in the matter. Mr Carroll attempted to dissuade Ms Gardiner from adopting the approach that she did, but those attempts were not successful. 95Mr Carroll gave other reasons for why the costs of these proceedings have been greater than the usual case. He said that Ms Gardiner's initial concern was that the deceased's will had not been updated as requested by the deceased. She wanted certain things to be done in respect of the deceased's estate that were in accordance with the deceased's alleged intention, but not in compliance with the terms of the existing will. Dealing with these matters took considerable time, including attempts to dissuade Ms Gardiner from the course she was taking. Mr Carroll listed in par 6 of his affidavit 11 issues that complicated the process of dealing with Ms Gardiner's application as a straightforward family provision claim. These issues included, issues in relation to the father's estate, a dispute concerning the personal property of the estate, loans to Ms Bowman, the stay of Mr Gardiner's wife in the Hyacinth Street property, and allegations relating to a failure to update the deceased's will in accordance with her request. The other issues mentioned, such as Ms Gardiner's long medical history, her work history, her caring duties, her lost opportunities, prior court cases and her current medical problems, are probably subjects that would be relevant to a conventional family provision claim. 96The Court therefore in this case has to take into consideration positive evidence that Ms Gardiner's legal costs have been significantly increased for two reasons. First, Ms Gardiner appears to have insisted upon having a high level of involvement in the detail of the preparation of her case, even though that was contrary to the advice of her solicitor. That conduct on her part appears to have increased her legal costs by about $30,000. Secondly, her legal costs appear to cover the exploration of issues by her solicitor that have not led anywhere, but have involved costs being incurred that do not properly concern the application for relief that Ms Gardiner has made in these proceedings. As I understand Mr Carroll's evidence, these extraneous issues lead to costs being incurred in addition to the $30,000 mentioned above, although the correctness of that conclusion is not clear. Mr Gardiner did not cross-examine Mr Carroll to investigate the extent to which Ms Gardiner incurred costs that were not directly related to, or proportional to, her family provision claim. 97The Court is faced with the need to deal with the situation that not only do the costs incurred in these proceedings form an unfortunately large proportion of the value of the assets of the estate, but Ms Gardiner's costs have been acknowledged, and properly so, by her solicitor as being unusually high. 98In her final written submissions Ms Gardiner submitted that her costs should be borne by the estate. Her position appears to be that the fact that her legal costs are unusually high should not be held against her as that outcome was itself a product of the moderate to severe anxiety and depression from which she suffers.

The Statutory Scheme 99The present application is governed by the relevant provisions in Chapter 3 of the Act . The Act applies in relation to the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the Former Act"), which was repealed, effective from 1 March 2009. 100It is necessary to consider the legal principles that govern applications for family provision orders. In this area of the law it is important for the parties to the proceedings to have an opportunity, if they so wish, to understand from a review of the reasons for judgment why the Court has reached the conclusion that it did. An important reason is that Chapter 3 of the Act does not give to the Court a general discretion to re-work the effect of the testator's will. In particular the Court is not given a power simply to divide up the testator's property in accordance with what the Court considers to be fair. The testator's entitlement to decide how his or her property should be distributed is preserved, subject to a limited power that the Court is given to intervene and change the effect of the will in specific circumstances. Those circumstances are set out in Chapter 3 of the Act. 101In a series of cases Hallen J has collected together most of the authorities that assist in the interpretation of the relevant provisions of Chapter 3, and has set out fully but succinctly how the Court is to proceed. A recent such decision is Aubrey v Kain [2014] NSWSC 15. It is not in the circumstances necessary to refer fully to his Honour's earlier decisions on this subject. I respectfully adopt the exposition of this subject given by Hallen JI will not set out fully the relevant parts of the judgment, but will now acknowledge my debt to his Honour's learning. Without further specific attribution, I propose to borrow from Hallen J's reasons, in some cases by paraphrasing parts of the judgment, and by borrowing extracts from authorities to which his Honour refers, where that is particularly relevant to the issues in the present case. I note that Hallen has repeated some of these principles in his Honour's decision of Dudic v Jakovljevic [2014] NSWSC 169. 102The primary provisions of the Act are s 59(1)(c) and (2). The first relevantly provides: "(1) The Court may...make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that... (c) 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 person..." 103"Family provision order" is defined in s 3 of the Act to mean" "an order made by the Court under chapter 3 in relation to the estate or notional estate of a deceased person to provide from that estate for the maintenance, education or advancement of an eligible person." 104Section 59(2) provides: "(2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made." 105On the face of these provisions the Court is empowered by subs (2) to make a family provision order that the Court believes ought to be made, but that power can only be exercised if the Court is first satisfied that the will of the deceased does not itself make adequate provision for the proper maintenance, education or advancement in the life of the relevant person. 106It is necessary to consider the decision of the New South Wales Court of Appeal in Andrew v Andrew [2012] NSWCA 308, (2012) 81 NSWLR 656 concerning how Chapter 3 is to operate. The Court of Appeal has recently considered some aspects of this decision in Phillips v James [2014] NSWCA 4. Furthermore, a number of decisions of the Court at first instance have considered the effect of the Court of Appeal judgment in Andrew. 107Basten JA suggested in Andrew that the Act and the Former Act operate differently. Under the Former Act it was well settled by authority that the Court was required to engage in a two-stage process. First, the Court was required by s 9(2) to satisfy itself that the provision (if any) made in favour of the eligible person was, at the time the Court determined whether or not to make such an order, inadequate for the proper maintenance, education or advancement in life of the eligible person. If the Court was so satisfied, it was then empowered by s 7 to make an order for the provision that "ought" to have been made: see Singer v Berghouse (1994) 181 CLR 201 and Vigolo v Bostin [2005] HCA 11; (2005) 201 CLR 191. These decisions are considered by Basten JA in Andrew at [34] and [41], and by Barrett JA in the same case at [69]-[71] and [94]. 108Basten JA said at [27]: "The intention of a two-stage process is no longer apparent in the structure of either s 59 or s 60 of the Succession Act". The justification given by his Honour at [27] is that, under the Former Act, the statute identified a non-inclusive list of considerations that governed what provision ought to be made, "a step only to be taken once the prohibition had been lifted". On the other hand: "The Succession Act, by contrast, states that the listed factors [in s 60(2)] may be taken into account in determining 'whether to make a family provision order and the nature of any such order.'' 109Basten JA then said at [29], concerning three potential consequences that his Honour said flowed from the changes between the Act and the Former Act that he had identified: "... First, there is a simplification of the structure of the process. There is no longer a two-stage process required. A degree of artificiality has thus been removed. The court should now ask what, taking all relevant factors into account, would have been adequate provision for the applicant. There is no first stage of determining whether the actual provision was "inadequate", followed by a discretionary exercise of determining what would be adequate and what should in fact be done." 110If this is a statement of the proper approach to the application of s 59 and s 60 of the Succession Act, then it should make a difference to the way a trial judge must deal with an application, and may sometimes lead to a different result. Basten JA's proposition would require the Court to start determining what is the provision that would be adequate for the applicant. If the provision actually made is less than that which the Court finds is necessary for adequacy, then the Court would simply make a family provision order that puts into effect that which has been found to be necessary to achieve adequacy. It would naturally follow that the condition in s 59(1)(c) would be satisfied as the provision made in the will would be inadequate. 111 However, Basten JA stated at [42]: "The outcome of the present appeal will not, however, be affected by considering whether the primary judge applied a two-stage enquiry or simply followed the language of the Succession Act..." 112Although Allsop P agreed with Basten JA's observations in relation to the first change between the Act and the Former Act that Basten JA identified, which has been considered above, the President only said in relation to the issue of whether a two-stage process applies under the Act, at [6]: "... Whether the process engaged in by the court in s 59 can still be described as "two staged" in the sense discussed in Singer v Berghouse [citation omitted] may be an analytical question of little consequence. The task involves an evaluative assessment and a choice as to consequence therefrom, appeal from which is governed by the principles concerning discretionary judgments: Singer v Berhouse at 211 and DAO v The Queen [citation omitted] at [93]. The terms of the new Act are to be applied. The exercise of power to make the order is conditioned on the court being satisfied of certain things in s 59(1). The order that may be made is described in s 59(2). The two elements are described in s 60(1)(b) as "whether to make [an]...order and the nature of any...order". Section 60(2) provides a detailed body of consideration for the task in s 59." 113Allsop P did not express any positive agreement with Basten JA's proposition that the two-stage process does not apply under the Act. His Honour's reference to the exercise of power under the new Act being "conditioned on the court being satisfied of certain things in s 59(1)", suggests that Allsop P accepted that a finding by the Court that it is satisfied that adequate provision has not been made is a condition to the exercise of the power to make a family provision order. What can that be, if not an agreement that there is a two-stage process, even if his Honour considered that the issue may give rise to an "analytical question of little consequence". 114Barrett JA held at [94] that "...the structure and effect of the Succession Act provisions warrant continuing adherence to the two-stage approach indicated by the decisions of the High Court in Singer v Berghouse and Vigolo v Bostin." His Honour's reasons for this conclusion are set out at [69]-[81]. 115At [76] Barrett JA set out the task, in step form, required of the Court under s 9 of the Former Act, and at [81] his Honour described the same task as required by s 59 and s 60 of the Act. This exercise involved an interpretation of the relevant sections, and an identification of the steps required. Unsurprisingly, in each case, his Honour found that one step involved the Court forming "an opinion as to the adequacy... of the provision" that was made in favour of the eligible person. Another step was, subject to a finding of inadequacy of the actual provision, the making of "an evaluative judgment as to what provision, if any, ought to be made..." 116In the case of both the Act and the Former Act the relevant condition to the exercise of the power to make a family provision order depends, or depended, upon whether the existing provision was inadequate. If that finding could be made, then the Court is, or was, empowered to make a family provision order that "ought" to be made. 117There are, with respect, a number of reasons why the judgment of Barrett JA on this issue is persuasive. First, it conforms most closely with the wording of the statute, and does not introduce a judicial gloss on the application of the provisions. Secondly, it may be questionable whether the subtle differences in wording between the relevant provisions of the Former Act and the Act justify a departure from settled principle established by the High Court. Thirdly, it may often be more straightforward in a practical sense for trial judges to apply the conventionally accepted approach. 118As Callaway JA observed in Grey v Harrison [1997] 2 VR 359, at 366-367: "There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering for a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight." 119The "range of appropriate provisions" to which Callaway JA refers is not necessarily a range from within which individual minds might select a single provision as being appropriate. There is scope for legitimate difference, as to what the appropriate provision is within the range. There may be many cases in which many, differently structured, provisions may be equally adequate, and may appear so to a single mind. A fund to be invested to provide rent for a home may in some circumstances be the effective equivalent of the purchase of a home, and so on. 120The statutory intention appears to be that the testamentary power of the deceased who makes a will is beyond interference if the provision made in the will for the applicant is adequate. If it is not, the power of the Court to interfere is enlivened. The Court can then make the provision that "ought" to be made. That will not always involve, and indeed may rarely involve, the identification of a single set of arrangements that appear to the particular court to be "adequate" and "proper". The Court may have to choose between a number of possible provisions, each of which compete for selection as the provision that ought to be made for the benefit of the eligible person in the circumstances. There may be many more than one adequate provision, and there may be proper discretionary reasons for choosing one amongst a number of adequate provisions. 121In Singer v Berghouse at 209-210 Mason CJ, Deane and McHugh JJ said: "The first question is, was the provision (if any) made for that applicant inadequate for [his or her] proper maintenance, education and advancement in life"?... 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.... 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..." 122Callinan and Heydon JJ observed in Vigolo v Bostin at 230: "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". 123The High Court in these cases, albeit in respect of the Former Act, clearly recognised that the process is two-staged, but also appreciated that in reality many considerations relevant to the determination of each stage will also apply to the other, and that the outcome of the determination of whether the requirements of the first-stage are satisfied may involve the Court in reaching conclusions that, in the particular case, determine the outcome of the second stage. 124In Phillips v James, Beazley P, with whom Meagher JA relevantly agreed at [130], set out at [47] and [48] extracts from the judgments in Singer v Berghouse and Vigolo v Bostin that are substantially the same as those given above. Her Honour then said: "[49] That there may not be a strict or bright line division between each stage of the process was recognised in Singer v Berghouse in the emphasised portion of the passage set out above. [50] A question has been raised in this court whether the two-stage approach identified in Singer v Berghouse applies to the provisions of the Succession Act 2006. It would be fair to say that there has continued to be general acceptance of the two-stage approach, particularly at first instance, but also in this court: see Keep v Bourke. However, in Andrew v Andrew Basten JA observed, at, inter alia, [41], that the language of the Succession Act was not consistent with the two-stage enquiry that was a feature of prior legislation. His Honour had earlier, at [26] - [28], identified the differences in the statutory provisions that led him to his view in relation to the appropriateness of the two-stage enquiry. His Honour noted the difference in the language of s 59 as compared to the language under the previous legislation. His Honour also referred to the listing of factors in s 60(2) that the court may take into account in determining whether to make an order for family provision and, if so, the nature of the order that should be made. ... [52] In Andrew v Andrew, his Honour observed, at [42], that in the case before the court, the outcome would not have been different regardless of whether the determination had been based upon a two-stage process. Allsop P (as his Honour then was), at [6], accepted that the language of the Succession Act, s 59 was "subtly different from the previous legislation", but also observed that whether the court's task under s 59 could still be described as involving a two-stage process "may be an analytical question of little consequence". Barrett JA considered, at [94], that the two-stage approach ought to be adhered to. [53] As I have indicated, the High Court itself has recognised that under the prior legislation that two-stage process is not necessarily a strictly divisible task." 125The Court of Appeal did not resolve the issue of whether the process under Chapter 3 involves one or two steps: see Dudic at [78]. 126I am indebted to Hallen J for his comprehensive analysis in Aubrey v Kain at [82] - [96] of the way in which a number of courts at first instance have dealt with this problem. It is not necessary, for me to provide my own analysis of those decisions. For the reasons I have set out above, I agree with the conclusion reached by Hallen J in Aubrey v Kain, and repeated in Dudic at [78], that the two-stage process should continue to apply. That is so as a matter of strict principle, but, for the reasons given by Beazley P, it may often happen in the context of a particular case that it does not matter whether one or two stages are applied; practical considerations may require an investigation of the second stage before the first is addressed; and that process may cause the distinction between the two stages to collapse.

Principles governing application of statutory scheme 127I will now turn specifically to the principles that apply in relation to the application of s 59(1)(c) of the Act. I have already noted above that Ms Gardiner is an eligible person who is entitled to make this application, as she is a child of the deceased. 128There was no suggestion that Ms Bowman's children are "eligible persons" within the meaning of s 57(1)(e) of the Act. Accordingly, s 61 of the Act does not require any consideration of whether the interests of those persons could only be disregarded if they were served with notice of Ms Gardiner's claim for a family provision order. 129Section 59(1)(c) does not include any explanation or definition that governs how the Court is to decide whether the provision made in the will is adequate for the proper maintenance, education or advancement in life of the applicant for a family provision order. No criteria are prescribed in the Act for that purpose: Aubrey v Kain at [48]. 130As Hallen J noted at [50], in cases identified by his Honour, judges of this Court have used the following expressions to describe the mental process involved in deciding whether a provision made by a testator is relevantly adequate and proper; being that the state of satisfaction "depends upon a multi-faceted evaluative judgment" (Basten JA); it involves "an intuitive assessment" (White J); and it is "an evaluative determination of a discretionary nature, not susceptible of complete exposition"; and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific" (Stevenson J). 131The time at which the Court must give consideration to the question whether the will has made an adequate and proper provision is the time when the Court is considering the application. The will itself must speak from the date of the death of the testator. Plainly, thereafter the testator cannot know anything about any change in circumstances of the applicant, and can only make provision based upon the testator's knowledge of those circumstances before his or her death. The provision itself is fixed by the will. The provision may be adequate and proper at the date of death, but not at the time that the Court considers how to deal with the application. In some cases an issue may arise as to how the Court should deal with any reduction in the applicant's circumstances between the date of death of the testator and the date of the hearing. That issue does not arise in the present case. Although Ms Gardiner was cross-examined concerning her expenditure of the compensation monies she had received, the point of that cross examination appeared to be to verify whether Ms Gardiner only retained $42,616 from that compensation. Mr Gardiner did not submit that the level of Ms Gardiner's expenditure before the hearing on matters such as living expenses was unwarranted, or that she had unreasonably diminished her assets. 132However, it will be necessary to consider how the Court should treat Ms Gardiner's payment of legal costs of $90,812.80 before the hearing. Her present assets have been reduced by that amount. In principle the fact that an applicant has already paid legal costs should be ignored, as, depending upon the outcome of the proceedings, the Court may order that the legal costs be paid out of the estate, and customarily does so. The payment of legal costs should be treated as a contingent expenditure. The outcome of an application for a family provision order should not depend upon whether the applicant has already paid some legal costs. 133Hallen J has reviewed the authorities that deal with the meaning of the terms "provision", "maintenance" and "advancement in life" at [52]-[70] of Aubrey v Kain. His Honour's analysis is the source of most of the discussion that follows, which is confined to the principles that are of particular relevance to an understanding of the reasons for the decision of the Court in this case. The present case is relatively simple, and the provision that the deceased has made is obvious. The term "maintenance" usually refers to a provision for the supply of the necessaries of life: Hallen J at [54]. However, in Vigolo v Bostin, Callinan and Heydon said at 228-229: "'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". In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), said at [18]: "'Proper maintenance' is not limited to the bare sustenance of a claimant...but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility." 134In JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths), at 542, the following comment is made concerning the difference between the concepts of maintenance and advancement: "The essential difference between 'maintenance' and 'advancement' is that 'maintenance' denotes a periodical payment or a payment which could validly be made periodically, whereas 'advancement' denotes a definite unique outlay for a specific purpose. Recipients of maintenance must, practically speaking, be infants, but adults may be recipients of an advancement. An advancement can never be made of a sum of money which the person to whom it is made can immediately pocket, but it must be made with a view to the establishment of that person in a business or profession, or otherwise in some definite way for that person's benefit, the whole essence of an advancement being the immediate payment of a tolerably large sum for an immediate benefit to one beneficiary." 135In the context of s 59(1)(c) and s 60 of the Act, the observation concerning maintenance being relevant to infants and advancements being relevant to adults may not be apt. Otherwise, the passage provides useful guidance to the conceptual difference between the two terms. 136Having regard to the authorities discussed by Hallen J, it is appropriate in the present case to consider maintenance to refer to Ms Gardiner's day-to-day living requirements, and advancement to refer to her claimed need for ownership of a permanent home. 137Section 59(1)(c) requires that the Court determine whether the will has not made adequate provision for the proper maintenance, education or advancement in life of Ms Gardiner. The question is not simply whether the provision is adequate. The meaning of the terms "adequate" and "proper" are crucial. As Hallen J stated at [63]: "The 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 W.A. are 127, per Buss JA, at 145 [72], [77]." Hallen J sets out extracts from authorities that consider the difference in meaning of the two words at [63]-[70]. 138It will be sufficient to set out the following extract from the judgment of Dixon CJ and Williams J in McCosker v McCosker (1957) 97 CLR 566, at 571-572 in relation to how the Court should apply the concept of "proper": "It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent." 139The Court must assess the provision made by the testator from the perspective of whether it is "wise and just". Testamentary power lies principally in the testator. The size of the estate available is an important consideration, because the testator is limited in his or her determination of what is wise and just by the extent of the property available for distribution, and accordingly a provision may be "proper" in the circumstances of a particular estate, when that would not be so if the testator had available more assets for distribution. Importantly for the purposes of the present case, the testator is also entitled, and required, to consider all of the competing claims upon his or her bounty and their relative urgency. That means, in simple terms, that the issue of whether the provision that was made for Ms Gardiner is adequate and proper will be governed in part by a consideration of the position of Mr Gardiner and Ms Bowman. 140If the requirement in s 59(1)(c) is satisfied, then the Court is empowered by s 59(2) of the Act in terms that it "may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made." It is clear that the effect of the inclusion of the word "may" is that the Court has a true discretion as to whether any order should be made, and if so what order ought to be made: Singer v Berghouse at 212 per Mason CJ, Deane and McHugh JJ. 141Section 60 of the Act sets out a list of factors that the Court "may" consider in determining whether to make a family provision order and the nature of any such order. I will return to the terms of s 60 below. The matters that are listed in s 60 are a helpful list of factors that may be taken into account, but the section makes plain that the Court can have regard to any other matter that it considers relevant, and the factors are not necessarily determinative in any case. 142As Ms Gardiner is an adult child, it will be useful to set out the principles that Hallen J has collected in Butler v Morris [2012] NSWSC 748 at [106]: "In relation to a claim by an adult child, the following principles are useful to remember: (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 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 his or her 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 as a spouse, who has a primary 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) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant. (Re Buckland Deceased [1966] VR 404 at 41; Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 148; Goodman v Windeyer at 498, 505). But the Act does not permit orders to be made to provide for the support of third persons to whom the applicant, however reasonably, wishes to support, where there is no obligation to support such persons. (Re Buckland Deceasedat 411; Kleinig v Neal (No 2)[1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams, at [86]). (e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45. (f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003) at [181] and [182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17]. (g) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd at 149. (h) Although some may hold the view that equality between children requires that "adequate provision" not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the Court's determination of an applicant's case." 143I would add in elaboration of Hallen J's proposition (b) that, in my view, the moral obligation of a parent in respect of an adult child will be influenced by an expectation intentionally created by the parent as to particular or special treatment in the parent's will in favour of a particular child, especially where that expectation is created in encouragement or reward for special levels of care and attention on the part of the child devoted to the parent. An obligation to fulfil an expectation intentionally created, whether in whole or in part, may arise even in circumstances where there is an element of uncertainty in the precise identification of the expectation intended to be created, and where the circumstances fall short of those that would give rise to an enforceable agreement between the parent and the child. 144In Butler v Morris Hallen AsJ (as his Honour then was) collected the following authorities, concerning the relevance of the entitlement of an applicant for a family provision order to a disability support pension to the determination of what, if any, provision ought to be made in favour of that person: "[109] In Taylor v Farrugia at [59], Brereton J said: The Court's attitude to the eligibility for means tested pension benefits of eligible persons and beneficiaries varies, depending on the circumstances of the case. Ordinarily, a testator makes a will and provides for those who have a claim on the testator without regard to the claimant's eligibility for a pension. However, in a small estate where there are competing claims, a testator, and this Court on an application under the Act, may take into account the eligibility of a claimant for a pension as a means of deciding how such limited benefits as are available from the estate should be shared between claimants, and how those benefits might be structured. But this qualification to the principle that the burden of support should be borne in the first instance by an estate rather than by social security arises mainly, if not exclusively in smaller estates [Parker v Public Trustee (1988) NSWSC, Young J, 31 May 1998; Whitmont v Lloyd (New South Wales Supreme Court, 31 July 1995, Bryson J, unreported); King v Foster (Court of Appeal, 7 December 1995, unreported); King v White [1992] 2 VR 417 at 424; Shah v Perpetual Trustee Company [1981] 7 Fam LR 97 100; Gunawardena v Kanagaratnam Sri Kantha [2007] NSWSC 151; Chan v Tsui [2005] NSWSC 82. [110] An earlier authority, with which I respectfully agree, is Thom v The Public Trustee (NSWSC, 2 April 1992, unreported), in which Master McLaughlin (as his Honour then was) said: It seems to me that it would be totally unrealistic for the Court to approach the moral obligation of the deceased to make provision for the applicant by disregarding the fact that for a period of 20 years before the deceased's death, the applicant was in receipt of a pension from the State, and the fact that, to the extent of that pension, the deceased was relieved of the necessity to support the applicant from his own funds. That being so, I do not see how, upon the death of the deceased, the moral obligation upon the deceased to make provision for the applicant by will, could be approached without recognising the fact that the applicant would be entitled to continue to receive such a pension. [111] The availability of a disability support pension provided to an applicant ought not be regarded as a substitute for the obligation on the deceased to make adequate provision for him or her. Yet, it is not necessary to make an order that would operate primarily in relief of the taxpayer." 145The Court has not been given power to endeavour to achieve "an overall fair" disposition of the deceased's estate: Gorton v Parks (1989) 17 NSWLR 1 at 6, per Bryson J. It is instructive to refer to the following observations by White J in Slack v Rogan; Palffry v Rogan [2013] NSWSC 522 at [127]: "In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and the courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or even years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed..."

Consideration 146It is necessary that I determine first, whether at this time, adequate provision for the proper maintenance or advancement in life of Ms Gardiner has not been made by the will of the deceased. 147That enquiry involves a consideration not only of the needs of Ms Gardiner, and the circumstances concerning the relationship between Ms Gardiner and the deceased, and the value of that estate, which have been identified in the authorities referred to above, but also the proper claims on the bounty of the deceased of the other two beneficiaries. 148It will be convenient in this case as a first step to defer consideration of the significance of the circumstances of Mr Gardiner and Ms Bowman, and assess the adequacy of the provision made for Ms Gardiner in the will as between Ms Gardiner and the deceased. That exercise essentially involves a determination of whether the provision for Ms Gardiner would be inadequate on the assumption that the other beneficiaries had no interest in or call upon the estate. 149There are a number of features in this case that limit the ability of the Court to determine in a straightforward way whether Ms Gardiner has satisfied the requirements of the first stage of the process. These difficulties have been discussed above, and may be summarised as follows: First, Ms Gardiner gave evidence of her recurrent expenditure needs. That evidence was not challenged. For reasons that will be considered below, it is difficult to see how Ms Gardiner could fund that level of recurrent expenditure on any realistic outcome of the present proceedings. 150Secondly, Ms Gardiner only provided tenuous evidence to the Court about the cost of purchasing suitable accommodation for her needs. She gave a range of $480,000-$650,000 for a two-bedroom townhouse in the Hornsby/Asquith area. Her claim was ultimately put right at the bottom of this range. That was necessary because the value of the estate after the payment of the legal costs will be about $640,000. Not only is it not clear that Ms Gardiner will in fact be able to acquire the desired property, but there is no evidence of the cost of any alternative property, either in the nature of an apartment, or a one-bedroom property, or a property in some less expensive location than Hornsby/Asquith. As even $480,000 is a very substantial proportion of the available estate, being some 75% of its value, it is inevitable that the Court will need to consider permutations that involve the possible purchase of a less valuable dwelling. That exercise is hamstrung by the absence of evidence, and obliges the Court to proceed in a speculative manner. 151Neither party provided to the Court any detailed calculations concerning whether or not Ms Gardiner's needs could adequately have been serviced if Ms Gardiner had accepted the gift made to her in the deceased's will, or how those needs could be met if various alternative possible provisions were made for her out of the estate. In relation to the former of those matters, it is logically necessary to make some calculations, which will inevitably be imprecise, in order to assess the adequacy of the provision made in the will. I have made certain calculations, which are set out below. They may be fallible, as they were not put, and have not been considered, by the parties. The significance of any error will be made less significant by the consideration that the calculations are only approximate and indicative, and in some respects speculative. 152If Ms Gardiner had accepted the gift made to her in the will, she would have had assets valued at $431,000, consisting of her current $60,000 in assets, the $91,000 that she has spent on legal costs, and the $280,000 value of her one third interest in the estate. 153In the total absence of any useful evidence being provided by the parties, the Court can take judicial notice of the circumstance that it is possible within the State of New South Wales to acquire civilised accommodation for a price less than $480,000, albeit that the acquisition may be of a home unit, may have one-bedroom, and may be outside the Sydney metropolitan area. The Court can infer that Ms Gardiner would have been able to buy a home using part of the $431,000, if not all of it, even though the purchase would not have accorded with her preferences. Ms Gardiner would have had a choice whether to rent accommodation, and for that purpose to invest her capital to earn interest to assist in payment of the rent, or whether to apply part of her capital to purchase accommodation, and to invest the balance to augment her disability support pension. The rules governing the circumstances in which her entitlement to receive the maximum disability support pension would be reduced by reason of owning assets, or receiving additional income, would be relevant to a consideration of the choice that would have been most rational for Ms Gardiner to make. Because the value of a pensioner's own home is ignored, for the purpose of determining whether the pension should be reduced, it is likely that the rules will favour a choice to purchase accommodation. 154Both alternatives must be considered. I will turn first to the possibility that Ms Gardiner could have invested the whole of her assets and rented accommodation. In par 10 of her 14 August 2013 affidavit Ms Gardiner gave evidence of her expected level of return from investing a sum of money, and the effect of the interest earned on the investment on her entitlement to receive the full disability support pension. Her evidence was that she could receive bank interest at 3.65% on the basis of a 12 months term investment. The evidence was not challenged. For want of better evidence I will accept that percentage return. $431,000 invested for 12 months at 3.65% would yield $15,731.50, say $15,700. That is about $600 per fortnight. 155Ms Gardiner gave evidence that the full disability support pension would be $733.70 per fortnight, say $734. That entitlement would be reduced by 50 cents for every dollar over $156 of other income received per fortnight. $600 less $156 equals $444. Half of that sum is $222. $734 less $222 equals $515. That is the amount of the reduced pension to which Ms Gardiner would be entitled. To that sum must be added the $600 interest per fortnight that she would receive, which gives $1115 per fortnight. I note that this analysis ignores the potential impact of income tax. There was no evidence on this subject. 156In her 19 July 2013 affidavit Ms Gardiner gave evidence that her annual recurrent expenditure on living expenses has been $49,430.90. That evidence was not challenged. Her fortnightly expenditure is therefore about $1900. Ms Gardiner's evidence, in the same affidavit, of the level of her rent payments, assuming that the forecast increase of $10 per week happens, would be $14,560 per annum, or $560 per fortnight. There was no suggestion that the level of her present accommodation is excessive, or in any way luxurious; rather the evidence was to the contrary. 157If rent payments of $560 per fortnight are deducted from the $1115 that has been calculated as being available from the investment of all of Ms Gardiner's capital, the amount available for other living expenses would be $555. If rent payments are deducted from her needs of $1900 per fortnight, the balance is $1340. There would be a shortfall of $1340 less $555, which equals $785. Ms Gardiner's income after payment of rent would be slightly more than 40% of her requirements. Ms Gardiner would be required either to reduce her recurrent living expenses by some 60%, or to eat into her capital. 158The alternative assumption is that Ms Gardiner applies part of her capital to buy a home. I will make an arbitrary assumption that she might spend $300,000 to buy a home. As I have mentioned, if such a home can be bought, it will not conform with Ms Gardiner's preferences. Obviously, Ms Gardiner might choose to pay more, or even less if an acceptable home could be purchased for less. 159In this case the balance of Ms Gardiner's capital would be $131,000. If that amount was invested at 3.65% per annum the return would be $4781.50, which equals about $184 per fortnight. That amount is $28 more than the sum of $156 per fortnight at which the pension begins to reduce. Half of $28 is $14. Ms Gardiner's fortnightly income would be a pension of $720 plus interest received of $184, giving $904. 160As Ms Gardiner would not have to pay rent, her fortnightly expenditure requirements would, on the evidence, be $1341. There would be a shortfall of $437 per fortnight. 161Comparing the two alternatives, if Ms Gardiner invested all of her capital, and rented accommodation, her shortfall would be $785. It would be $437 if she were able to purchase her own accommodation for $300,000. Plainly, in each case there would be a substantial shortfall. 162In this context it is relevant to note that if Ms Gardiner's recurrent living expenses after provision for accommodation are $1341 per fortnight, the amount needed to be invested at 3.65% per annum to yield that amount is, on my calculations, about $1,350,000. There does not appear to be any way, in any possible eventuality, that Ms Gardiner would be able to fund her present level of expenditure on living expenses. 163I will next consider whether, on the evidence, the Court should find that the deceased gave proper consideration to her testamentary obligations to Ms Gardiner, and whether from that perspective, the provision that she made was adequate in the required sense. 164In the present case there is clear evidence that the deceased gave consideration to how she wished to distribute her estate by her will. She consulted Mr Kinchington, her solicitor, in person about the matter, and received from him his letter of advice dated 26 August 2010. That letter recorded that, at the time the deceased spoke to her solicitor, she wished to make further provision for Ms Gardiner as Ms Gardiner was carrying the greater burden of the care in the home, and could not continue to provide care in the long term without some financial assistance. The letter referred to Ms Gardiner being precluded for four years from obtaining a pension due to her workers compensation claim payout. 165The deceased delivered to Mr Kinchinton the Client's Instruction Sheet, which contained an instruction to make Ms Gardiner "half owner of the house via title deed and to leave the rest divided into three equal shares". 166Mr Leek gave evidence that on 26 March 2011 the deceased stated to him that she intended to change her will to make a special provision for Ms Gardiner. 167Mr Kinchington gave evidence that, some three or so weeks before her death, on 25 May 2011, following a request for instructions by him, the deceased advised him that she had decided to leave her will the way it was, which meant that her estate would be distributed in equal shares to her three children. That evidence was not directly challenged. However, as I have noted above, Ms Gardiner gave evidence of statements made by Mr Kinchington at the end of the meeting at the Hyacinth Street property that are quite inconsistent with the solicitor having received immediately beforehand an instruction that the deceased had decided not to change her will. I have also noted the improbability of Mr Kinchington making the statements that he did to Ms Gardiner when informed of the deceased's death, if he recalled that he had received recent instructions that the deceased did not wish to change her will. Ms Gardiner's evidence was also not challenged. In the circumstances it would not be proper for the Court to reject entirely Mr Kinchington's evidence concerning his understanding of the instruction given to him by the deceased. However, I am also not prepared to make a finding on the basis of all of this evidence that the deceased made a carefully considered and final decision that she did not have the wish or the obligation to make any special provision for Ms Gardiner in her will. 168Mr Gardiner gave evidence in his 7 December 2012 affidavit, at par 43, that he was told by a good friend of the deceased not long before her death that the deceased had decided not to change her will; that the deceased had told Ms Gardiner of that decision; and that Ms Gardner was angry with the deceased. Little weight should be placed by the Court on hearsay evidence of that nature. 169The instruction that the deceased gave to her solicitor by means of the Client's Instruction Sheet establishes the special gift that the deceased contemplated, at one stage, she might make in favour of Ms Gardiner in her will. If the Hyacinth Street property is taken as having a value of $675,000, then half that sum is $337,500. The other half share of the property plus the other assets, valued at $165,000, would give $502,500. If that amount had been distributed equally between the three children, each would have received $167,500. The gift to Ms Gardiner would have been worth $505,000 in total. The other two children would have received $167,500 each. Ms Gardiner's share of the estate would have been 60%. 170Even when the deceased was inclined towards making a special testamentary provision in favour of Ms Gardiner, she was still of the view that each of her other two children were deserving of substantial bequests. 171On the evidence I conclude that the deceased recognised that Ms Gardiner may have a proper claim to a testamentary disposition that was relatively greater than that of her siblings. It appears that the deceased vacillated as to whether or not she should recognise that claim in her will, or bequeath her estate equally to her three children. The evidence does not justify a conclusion that the instruction that the deceased gave to Mr Kitchington on 25 May 2011 was her absolutely determined last and final word on the subject. Had the deceased not died shortly afterwards, so far as the evidence shows, she may have changed her mind. 172Although the evidence is not as direct as it could have been, I have concluded that it establishes on the balance of probabilities that the deceased, by words and conduct, caused Ms Gardiner to believe that the deceased would, in her will, make some special provision for Ms Gardiner's future needs that was greater than the provision that would be made for the other two beneficiaries. The evidence does not allow a finding that the deceased informed Ms Gardiner that the deceased would make a specific bequest in her favour in the deceased's will. There is no evidence that the deceased informed Ms Gardiner that she would receive either the provision that Ms Gardiner originally claimed in these proceedings, or even the alternative claims that were made in submissions. There is no basis for the Court to infer that the deceased suggested to Ms Gardiner at any time that the bequest to be made in her favour would be any more advantageous than that which the deceased set out in her written instruction to Mr Kinchington. That was to the effect that Ms Gardiner would receive half of the value of the Hyacinth Street property, and one third of the balance of the estate, which I have calculated represents 60% of the estate. 173I find, on the balance of probabilities, that the deceased caused Ms Gardiner to believe that special provision would be made for her in the deceased's will, and that Ms Gardiner continued to provide an especially high level of support for the deceased on the basis of that expectation. 174I will now turn to a consideration of the position of Mr Gardiner and Ms Bowman from the perspective of how their claims on the bounty of the deceased might affect the determination of stage one of the process. In doing this I acknowledge that I am necessarily blurring my consideration of the two stages in the manner recognised by the High Court in Singer v Berghouse and Vigolo v Bostin that I have set out above. 175For all practical purposes the three children of the deceased are of equivalent age. 176I have set out above the evidence given respectively by the children as to their past and present financial circumstances, and their aspirations. Neither party seriously challenged the evidence given by the other, and neither made a submission that I should not accept the other's evidence. All three children were cross-examined, and I am prepared generally to accept the evidence that they gave. 177As it was not challenged, and as it was in any case persuasive, I accept the evidence concerning Ms Gardiner's psychological condition, and the other circumstances related to her general health. 178However, a general acceptance of the medical evidence does not preclude the need to consider carefully the significance of that evidence. I refer in particular to the evidence that is said to support Ms Gardner's claim that because of her anxiety, and separation from and fear of other persons, she cannot reasonably be expected to live in any accommodation that will regularly bring her into contact with other residents at the same address, or to deal with other persons in the context of a strata title property and the workings of an owners corporation. 179I accept that these more marginal aspects of Ms Gardiner's psychological condition are real, in the sense that they are not fabricated. Were the assets of the estate not limited, Ms Gardiner's concerns may well have justified the desirability of her being able to live in a home on a property to which she had sole title. However, having had the benefit of listening to the cross examination of Ms Gardiner, in the context of this case, I would characterise those concerns more in terms of desire than need. I do not accept that the evidence justifies a provision to Ms Gardiner of a home to which she has sole title, if the effect is to deprive the other beneficiaries of any distribution from the estate, or to substantially have that effect. 180Each of the three beneficiaries has a serious, or potentially serious, medical or psychological condition. The medical condition of Ms Gardiner is serious, at least to the extent that it will prevent her from entering into employment. In my view, in relative terms, the medical circumstances of Ms Bowman are very serious. It would be extremely unsympathetic for the Court to take any view other than that she has a substantial entitlement to the bounty of the deceased in respect of protection against the vicissitudes of life, from many of which she is already suffering. Mr Gardiner accepts that his general health is good, but given his age and the diagnosis of prostate cancer, it would be wrong for the Court not to make some allowance in his favour for the possibility of failing health. 181Ms Gardiner does not own her own home, and will be committed to rental accommodation unless she receives a distribution from the estate of the deceased that is sufficient to enable her to buy a home. She worked from about 1972 to 2000, some 28 years, before she commenced employment at Oxford Art Supplies and Books Pty Ltd. She was unable to make provision for the acquisition of her own home over this period. It was only in the period of employment after 2000 that the cause of her present medical and psychological predicament arose. Ms Gardiner's present anxiety about not owning her own home is understandable, but it must be doubtful that she would have been able to buy a house of her own in her remaining employable years, even if she had not experienced the maltreatment from her employer that was the cause of her present medical condition. 182Ms Bowman does own her own home, but she also is not capable of employment, and cannot be expected to continue to generate income by taking in home-stay students. For the indefinite future Ms Bowman's income will be limited to the disability support pension, the amount of which is liable to be reduced in proportion to the income that Ms Bowman's partner, Mr Campbell, is able to earn. 183Mr Gardiner also does not own his own home. The arrangement that he made to board with his parents during their lifetimes may have been financially advantageous to him in some way, although the evidence does not enable the Court to make any particular finding on that subject. The Court has to proceed upon the basis that the arrangement was regarded by Mr Gardiner and his parents as mutually advantageous. However, the evidence establishes on the balance of probabilities that the deceased asked Mr Gardiner to leave the Hyacinth Street property some time before her death, to enable Ms Gardiner to move in, to care for her, but Mr Gardiner ignored that request. Now that it is clear that the Hyacinth Street property must be sold, Mr Gardiner will have to find alternative accommodation, and he is as much entitled to be able to own his own home, as is Ms Gardiner. 184Mr Gardiner realises that his financial position will not realistically permit him to buy a home in the Hornsby/Asquith area, even though that would be convenient to him, at least during the balance of his working life. He aspires to buy a home on the Central Coast. For that purpose he hopes to use his share of the estate to pay part of the purchase price of a home, and to borrow the balance from a bank, to be repaid over 10 years. 185I reject Ms Gardiner's argument that her application should be dealt with on the basis that Mr Gardiner can, and will, continue in employment until he is 70 years old. I find that it is likely that Mr Gardiner will continue in his present employment, notwithstanding his expressed desire to retire. That is likely to follow from his need to buy a home of his own, for himself and his wife, which is likely to involve the repayment of a bank loan over some period, irrespective of the distribution he receives from the estate. However, it would be quite wrong for the Court to expect Mr Gardiner to work past the present retirement age for entitlement to a pension of 65 ½ years (as Mr Gardiner was born between 21 July 1952 and 31 December 1953), or to assess the value of his assets on the basis that it is assumed that he will work to the age of 70. There are some questions about the arithmetical logic behind Ms Gardiner's calculation that by the age of 70 Mr Gardiner will have assets worth almost $2 million. In fairness, the calculations were put in an indicative way only, although there was some suggestion that the calculation was conservative. It is not necessary for the Court to enter into the detail of the suggested calculations. 186At present Mr Gardiner's assets are worth about $760,000. It may be expected that if Mr Gardiner continues in his employment until about the age of 65, the amount of his superannuation and other financial assets will increase over the period in a way that is proportional to the increases that he has enjoyed to date. However, Mr Gardiner will have to pay for a house. Except for the distribution that he may receive under the deceased's will, the need to buy a house will diminish the value of his other assets. He will need to support himself for the rest of his life using the balance of his superannuation. No evidence was put before the Court concerning the relationship between the return that Mr Gardiner might hope to receive from his superannuation, and the possibility that he might at some time receive the age pension. Mr Gardiner may also have to support his wife. The issue of whether she can or does come to live in Australia, and, if she does whether she can upgrade her teaching qualifications, and gain employment as a teacher, is a matter that at the present time must be considered to be speculative. Ms Gardiner accepted this final proposition. 187In her final submissions Ms Gardiner accepted that Ms Bowman should receive $100,000, but argued that Mr Gardiner should not receive a skerrick from his mother's estate. 188I do not accept Ms Gardiner's argument that the evidence justifies a conclusion that the estate ought to be distributed between Ms Gardiner, Mr Gardiner and Ms Bowman in the proportions $540,000: $0: $100,000. The proper application of s 59(1)(c) and s 59(2) of the Act will require that Mr Gardiner receives something, and that Mr Gardiner and Ms Bowman receive between them more than $100,000. 189The present question is whether the Court should find that each of Mr Gardiner and Ms Bowman has a sufficiently strong entitlement to receive the whole of the $280,000 third share of the estate given to them by the will of the deceased, so that that entitlement prevents Ms Gardiner from satisfying the first stage requirements of s 59(1)(c) of the Act. Must the Court conclude that, notwithstanding the objective inadequacy of the provision made for Ms Gardiner, the provision was nonetheless adequate in all of the circumstances? 190I have concluded that Ms Gardiner has satisfied the requirements of s 59(1)(c). My reasons are, first, that the evidence establishes that the assets that would have been available to Ms Gardiner had she not instituted a claim for a family provision order would not have been adequate for her proper maintenance and advancement in life. I have set out the reasons for reaching this conclusion above when considering the outcome of her investing all of her capital, or using part of it to purchase a home. The provision would have been inadequate, even though it appears that, in any event, Ms Gardiner will have to moderate the level of her recurrent expenditure on living expenses. 191Secondly, even though the evidence is obscure as to the nature of the expectation that the deceased caused Ms Gardiner to have, I am satisfied that Ms Gardiner was entitled to have the expectation fulfilled in a way that gave her some level of preferential distribution over that given to the other beneficiaries. 192Finally, while I have concluded that Ms Gardiner has not successfully established that the entitlement of the other beneficiaries should be limited to a distribution of $100,000 between them, I have not concluded that those beneficiaries' entitlement is sufficient to restrict the proper provision to Ms Gardiner to the $280,000 that she received under the will. 193I must therefore move on to the second stage of the process to consider what is the provision that ought to be made for the maintenance, education or advancement in life of Ms Gardiner, having regard to the facts now known to the Court: s 59(2) of the Act. Those facts have been set out above. This ultimately involves the making of a discretionary judgment of an evaluative nature, as suggested by the authorities referred to above. It also involves an intuitive assessment. It is not susceptible of complete exposition. 194In the light of the substantial discussion I have already undertaken of many of the factors listed in s 60(2) of the Act above, I do not propose to consider each of the factors separately and in detail. I have proceeded on the basis that the factors set out in pars (a) - (d) and (f) - (j) are the most relevant. It would be repetitive for me now to deal with these factors again. 195As I have foreshadowed above, the legal costs that will be expended by the parties to this action will have a material effect on the orders that can now be made in relation to the distribution that ought to be made of the property of the estate of the deceased. There is no other way for the Court practically to proceed except to work out first how much of the legal costs should be paid out of the estate, and then consider how the balance ought to be distributed between those persons who have claims on the estate, in order to apply s 59(2) of the Act. 196It is clear that Mr Gardiner's costs should be paid in full out of the estate. For the purposes of these reasons I have made an assumption that Mr Gardiner's costs will equal $69,000, but he will, of course, be entitled to have all of his costs paid out of the estate, even if that means that the amount that is available to be distributed to the beneficiaries becomes less than the amount that I have assumed in these reasons for judgment. 197I have considered separately above the evidence concerning the amount of the legal costs that the parties will probably incur, and also the reasons why Ms Gardiner has incurred costs at the level that she has. The evidence satisfies me that Ms Gardiner has incurred excessive costs, both because she has ignored her solicitor's advice as to the level of her involvement in the preparation of her evidence that was warranted, and because her costs cover issues that are not sufficiently related to the making of her application for a family provision order. The only evidence of the amount by which the costs incurred are excessive is the estimate of $30,000 given by Mr Carroll in his affidavit. For reasons given above, I suspect that that estimate is insufficient. However, the estimate was not challenged, and there is no evidence which would provide a proper basis for me to make a finding that the amount of excessive costs exceeded $30,000. 198I have concluded in the circumstances that it will be appropriate for Ms Gardiner to bear $30,000 of the costs of the proceedings out of her own share of the assets of the deceased's estate. Even if the excessive costs were in part the result of Ms Gardiner's psychological condition, I do not think that is an adequate reason to visit any part of the excess in costs on the other beneficiaries. 199The result is that I will proceed upon the basis that the total of the legal costs that will be payable out of the estate of the deceased will be $170,000, rather than $200,000. Ms Gardiner has already paid the $30,000 to her solicitor, Mr Carroll. 200It follows that I should proceed on the basis that the value of the estate is $670,000, rather than $640,000. One third of $670,000 is $223,300. The costs incurred have the effect of reducing each beneficiary's third share under the will by $56,700. 201I have treated the value of the Hyacinth Street property as being $675,000. That property will have to be sold, and the net proceeds of sale may be more or less than that sum. It was in any event only a hypothetical allowance for the value of the property, rather than the result of the determination of the value of the property. It will be appropriate for the Court to determine the proportions of the estate that should be distributed to the three beneficiaries as a percentage of the assumed value of the estate, rather than to make orders that specific sums be given to any particular beneficiary. I am satisfied that the evidence does not justify orders that provide a specific sum to one beneficiary in a way that throws onto the other beneficiaries the risk that on sale the Hyacinth Street property will not reach the assumed price. 202Ms Gardiner has satisfied me that a provision ought to be made in her favour that is greater than that which was made in the deceased's will. She has not, however, satisfied me that the residual provisions that should be made in favour of Mr Gardiner and Ms Bowman should fairly and properly be reduced to the level suggested by Ms Gardiner. 203Under the will the estate is divided equally between the three beneficiaries. In the manner that I have discussed above, I have concluded that the deceased's true testamentary intentions are clouded. However, it is clear that, even when the deceased's intentions were expressed most favourably to Ms Gardiner, the provision that was contemplated to be made in her favour was some 60% or so of the value of the estate. I have not taken this fact to be determinative, but I have concluded that it should be given substantial weight. It would be an extreme and unjustifiable step for the Court to ignore the deceased's wishes entirely and make no provision for a particular beneficiary out of the estate. It is to be borne in mind, however, that the evidence suggests that the period in which Ms Gardiner provided a relatively intense level of support and care to the deceased was about 1½ years. 204The essential problem at the heart of this matter is that, if the provision that ought to be made in favour of each of the beneficiaries was considered separately, and in isolation, and on an equivalent basis, the aggregate value of the three provisions would be substantially more than the net actual value of the estate. Put colloquially, the cake is too small. The problem is exacerbated by the level of the legal fees. This problem introduces an unavoidable element of arbitrariness into a process of determination that is necessarily discretionary, evaluative and intuitive. 205 Ultimately, the issue of what order ought to be made in favour of Ms Gardiner distils in a practical sense into the question of whether, and if so by how much, the third shares of Mr Gardiner and Ms Bowman of $223,300, that are left after the costs of Ms Gardiner's application are taken into account, should be reduced in order to increase Ms Gardiner's share. That proposition does not mean that I am departing from a consideration of all of the factors that are relevant contained in s 60 of the Act. The question is how far can the provisions made in favour of Mr Gardiner and Ms Bowman properly be reduced in order to increase the provision made in favour of Ms Gardiner so that that provision is as great as on balance can be achieved. 206A problem arises at this stage of the consideration. The evidence makes it clear that Ms Gardiner's expectation that she can buy her own home for a price of $480,000, and still fund her recurrent living expenses cannot realistically be achieved. Indeed, as observed above, there does not appear to be any realistic basis upon which Ms Gardiner could fund her living expenses. There was no evidence about how Ms Gardiner could get by with the expenditure of less money on living expenses, or how she could find appropriate accommodation at a lesser cost than is her preference. The consequence is that the Court is deprived of the ability to enter into arithmetical considerations to attempt to determine the amount that ought to be distributed to Ms Gardiner that is the least amount that is adequate and proper in all of the circumstances, and which least reduces the diminution in the provision to the other beneficiaries that naturally follows an increase in the distribution to Ms Gardiner. 207The approach that Ms Gardiner has taken in putting evidence before the Court in support of her application has largely been to limit that evidence to that which tends to support the making by the Court of the family provision order that Ms Gardiner desires. It is quite reasonable for applicants for family provision orders to provide evidence that is expected to persuade the Court in favour of a desired outcome. It is, however, undesirable for applicants to fail to provide the Court with reasonably specific evidence, capable of being understood in financial terms, as to a range of possible family provision orders that the Court may be prepared to make, if it is not persuaded to make the order that is desired. Applicants should recognise that the Court may assess the provision that should properly be made for other beneficiaries differently than does the applicant. 208Ms Gardiner has made it difficult for the Court to make a rational judgment as to the extent to which the other beneficiaries' shares in the estate could reasonably be reduced in order to make a proper and adequate provision for Ms Gardiner, that can be justified by an objective assessment of the accommodation and living arrangements that Ms Gardiner will be able to achieve from the provision in her favour as a result of a particular family provision order. 209I have come to the conclusion, however, that the approach that Ms Gardiner has taken does not deprive her of an entitlement to the benefit of a family provision order under s 59(2) of the Act. Rather, the approach makes it more difficult for the Court to determine the order that can properly be made in her favour 210As mentioned, Ms Gardiner has accepted that Ms Bowman should receive at least $100,000. In my judgment that is an insufficient amount in all of the circumstances. Ms Bowman's health is more parlous than that of Ms Gardiner, for the reasons given above. While she owns her own home, she is on the same pension as Ms Gardiner will be. Ms Bowman may well face substantial vicissitudes. Her future may not be settled. In the range between $100,000 and $223,300, (remembering that it is Ms Gardiner's claim that has reduced Ms Bowman's expectation from $280,000), Ms Bowman should in my judgment receive $175,000. 211Although Mr Gardiner's health appears to be better than his sisters, he does not own his own home. He may have a moderately substantial superannuation fund, but it is obvious that he has worked long and hard in arduous employment for some 30 years to achieve that result. It would not be warranted for the Court to make an order in favour of Ms Gardiner that left Mr Gardiner with less than $125,000. I have concluded that it is proper to recognise that Mr Gardiner has effectively already received a benefit from the estate in the form of about $50,000 as a result of his enjoying rent-free accommodation in the Hyacinth Street property for almost three years. In adopting this figure I have discounted the $70,200 put forward by Ms Gardiner, as I am not satisfied that the weekly rent of about $475 that is implied by that figure is justified. The allowance that I have made is somewhat arbitrary. On that basis Mr Gardiner would also receive a notional distribution of $175,000, albeit only $125,000 in cash. 212If a total of $300,000 is distributed to Mr Gardiner and Ms Bowman, the amount left out of the assumed $670,000 is $370,000. That is about 55.25% of the sum of $670,000. Of her assumed legal fees of $130,000, she has paid $91,000 to her solicitor. An order that she bear $30,000 of the costs will have the effect that $61,000 will be reimbursed to her out of the estate, and the unpaid balance paid by the estate. On these assumptions, the financial position of Ms Gardiner would be her existing $60,000, $61,000 reimbursement for legal costs already paid, plus the $370,000 distribution as a result of the proposed family provision order referred to above, which is $491,000. 213That amount is $60,000 more than the $431,000 Ms Gardiner would have had if she had not brought these proceedings. That is an unfortunate outcome for all concerned. It has occurred largely because of the effect of the expenditure of the assets of the estate on costs, which I regard as being unnecessarily high, even allowing for the order that Ms Gardiner pay $30,000 of the costs herself. It has also occurred because in my view Ms Gardiner underestimated the reasonable entitlement of her siblings to share in the estate. 214If the value of the deceased's estate after payment of the costs of the proceedings that will be borne by the estate is assumed to be $675,000, of which $370,000 is to be distributed to Ms Gardiner, $125,000 to Mr Gardiner, and $175,000 to Ms Bowman, the percentage entitlements of the three beneficiaries will be, after rounding, 55%, 19 % and 26 % respectively.

Relief 215I make the following substantive orders: (1)Grant administration of the estate of the late Dulcie Eva Gardiner under s 91(2) of the Succession Act 2006 (NSW) to the defendant, Raymond James Gardiner, for the purpose only of permitting the application in these proceedings to be dealt with. (2)Order that the will of the late Dulcie Eva Gardiner made on 5 November 1989 be varied so that the assets of her estate available to be distributed to the beneficiaries, including after payment of the costs referred to in order (3), be distributed in the proportions - (a)Janette Susan Gardiner - 55 % (b)Raymond James Gardiner - 19 % (c)Dianne Joan Bowman - 26 %. (3)Order that the costs of the parties to the proceedings be paid out of the estate of the late Dulcie Eva Gardiner on the trustee basis, with the effect that any party who has paid legal costs from the party's own funds shall be reimbursed, save that the plaintiff shall bear personally $30,000 of the legal costs that she has incurred in these proceedings. 216I also make the following additional order in relation to the return of the exhibits: (4)Order pursuant to UCPR r 31.16A and r 33.10, and Practice Note No S C Gen 18 par 26: (a)that the exhibits be returned forthwith to the parties who tendered the exhibits to be held by them in compliance with Practice Note No S C Gen 18 par 28; (b)that the parties return any exhibits that were produced to the Court by any person in answer to a subpoena or notice to produce to the person who produced the document forthwith upon the expiry of any time for which the party to whom the exhibit is returned is required to retain the exhibit; (c)that all material produced directly to the Court by any party in answer to any notice to produce that has not become an exhibit be returned forthwith to the party who produced the material; and (d)that the Registry should forthwith return, or otherwise deal with in accordance with Practice Note No S C Gen 18 par 27, all material produced to the Registry in answer to any subpoena or notice to produce.

Amendments 22 March 2019 - change to case name 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: 22 March 2019