Gersbach v Blake

Supreme Court of NSW|2011-03-31

1] NSWSC 321 McCosker v McCosker (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Mansfield & Ors v Mansfield & Anor [2003] WASC 214 Mayfield v Lloyd-Williams [2004] NSWSC 419 De Winter v Johnstone (Court of Appeal, 23 August 1995, unreported) Samsley v Barnes [1990] NSWCA 161 Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Taylor v Farrugia [2009] NSWSC 801 Vigolo v Bostin [2005] HCA 11 Walker v Walker, NSWSC, 17 May 1996, unreported Zirkler v McKinnon [2002] NSWSC 285 Category: Principal judgment Parties: Michaela Gersbach (Plaintiff) Rodney Blake (Defendant) Representation: Counsel: Mr R Crossland (Plaintiff) Mr R Blake (Defendant in person) Solicitors: Low Doherty Stratford (Plaintiff) Defendant self-represented File Number(s): 2010/261787

The Application 1HIS HONOUR: Michaela Lee Gersbach ("the Plaintiff), who is a daughter of Lynette Margaret Blake ("the deceased"), applies for a family provision order under Chapter 3 of the NSW Succession Act 2006 ("the Act"). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the court, under Chapter 3, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person. 2The Plaintiff commenced the proceedings by Summons filed on 6 August 2010, that is, outside the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased). Accordingly, to proceed, it will be necessary for an order to be made extending the time for the making of the Plaintiff's application "on sufficient cause being shown". 3The Defendant named in the Summons is Rodney Peter Blake, to whom Probate of the deceased's Will, was granted, he being the executor appointed under the Will. He is the husband of the deceased and the stepfather of the Plaintiff. He appeared, without legal representation, at the hearing. 4On the morning of the hearing, Mr Crossland, counsel for the Plaintiff, foreshadowed filing an amended Summons in which the deceased's interest in certain real, and other, property was sought to be designated as notional estate. He did not have available, at that time, a proposed draft of the amended Summons. 5At 12:00 noon, a proposed handwritten draft was provided to the Court. I was informed that it had been shown to the Defendant. The relief claimed in the proposed amended Summons, so far as is relevant, is: "1. That 50 percent of the value of the property at Gordon St, Eastwood (being $425,000) be designated notional estate of Lynne Margaret Blake. 2. That a portion of the value of the property at Florence St, St Peters in the amount of $254,752.99 be designated the notional estate of Lynne Margaret Blake, that amount having been calculated thus: a. The amount of $167,976.49, being the value of half the shares in Alandar Pty Limited as at 6 May 2009; b. The amount of $86,776.50, being the proceeds of the sale of the property at Dunbar St, Stockton. 3. An order that provision made for the Plaintiff's maintenance and advancement in life pursuant to s 59 Succession Act 2006 (NSW) out of the notional estate of Lynette Margaret Blake, late of Gordon Street, Eastwood in the state of New South Wales, deceased. 4. That there be a charge over the property (in the amount) at Florence St, St Peters in favour of the plaintiff in the amount of the provision. That the property be sold and distributed so as to make the provision set out in the orders." 6At the conclusion of the hearing, I granted leave to the Plaintiff to file the amended Summons. There was, by that time, no objection taken by the Defendant to the amended Summons being filed, or relied upon, by the Plaintiff. In any event, since it seemed to raise no substantially new issue (the share of the deceased in the Eastwood property had been included in the Inventory of Property), I permitted the amended Summons to be relied upon. 7It follows that, in the present case, provision is being sought out of the notional estate of the deceased. Relevantly, this is a case where that application arises because the relevant part of the estate was distributed within the requisite period. Subsidiary connected issues, to which I shall refer later in these reasons, arise because the Plaintiff did not commence the proceedings within the time prescribed by the Act.

Background Facts 8The deceased died on 20 March 2009. She was then aged almost 55 years. 9The deceased left a Will that she made on 4 February 2009, Probate of which was granted, on 9 July 2009, by the Supreme Court of New South Wales, to the Defendant. 10The deceased's Will, in the events that happened, provided for the whole of her estate to pass to the Defendant absolutely. If he did not survive the deceased, the estate was to be divided, equally, between the children of the deceased, namely, the Plaintiff, Nathan John Gersbach, Peter Kenneth Blake and Christopher James Blake. The first two children are children of the deceased's first marriage, whilst the last two are the children of the deceased and the Defendant. 11In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased's estate, at the date of death, was disclosed as having an estimated, or known, gross value of $849,655. No liabilities were disclosed. The estate was said to consist of real property at Stockton ($410,000), real property at Eastwood, ($425,000), in which the deceased was said to have an interest as tenant in common in equal shares (with the Defendant), a car ($10,000), costume jewellery ($500), one share in each of two private companies, Alandar Pty Limited and Capalar Pty Ltd (at $100 each), a number (1136) of Telstra shares which were held jointly with the Defendant ($1,545), and money on deposit ($2,410). 12It is fair to say that the evidence of the nature and value of the deceased's estate, or notional estate, at the date of hearing, by reference to the affidavits, was far from clear. However, I set out what, during the course of the hearing, the parties appeared to accept as accurately identifying the nature and value of the deceased's estate or notional estate. 13The Eastwood property was, for many years, the matrimonial home of the Defendant and the deceased. The Defendant continues to live there. The property was purchased in 1984. It has an agreed current value of $850,000. It is a four bedroom, two bathroom, home, without a garage or carport. 14By Transmission Application, dated 29 October 2009, the Defendant "being entitled as executor of the will of the deceased" applied to be registered as proprietor of the estate or interest of the deceased in the Eastwood property. Whilst it is clear that the Defendant is now the sole registered proprietor of the Eastwood property, I do not know whether he retains the deceased's interest in that property in the capacity of executor, or whether he holds it as a beneficiary. 15The Transmission Application included a section for the executor, administrator, or trustee, to consent to the application. The Defendant completed that part of the document. 16There was no evidence of a declaration, made subsequently, such as that contemplated by s 11 of the Trustee Act 1925 (NSW). As has been said in Ford v Simes [2009] NSWCA 351 at [38] - [39]: "On the one hand there is the proposition that when the executorial duties have been completed, the executor/beneficiary is required to make a declaration in registrable form that the real property is no longer held as executor or executrix but as beneficiary. Section 11(1) of the Trustee Act 1925 (NSW ) provides: 11 Ceasing to be executor (1) If any property is vested in any person as executor of a will under which the person is the trustee of the property or is beneficially entitled thereto, such person may, at any time after all the executorial duties with respect to the property have been duly performed, declare by registered instrument in writing that he or she has ceased to hold the property as executor and that he or she holds the same as trustee or as beneficiary, as the case may be. [39] On the other hand there is the proposition that when the executor is the sole beneficiary such a declaration or separate transaction is not necessary. The respondent submitted that the equitable estate in the properties merged with the co-extensive legal estate held by the respondent/executrix on 20 June 2004 when her executorial duties were completed. It was submitted that such a merger is not contingent upon the registration of a declaration made under s 11(1) of the Trustee Act . In support of this proposition the appellant relied upon a passage in The Law of Real Property in New South Wales 4th Edition AC Millard, BA Helmore, where the learned authors stated the proposition that "where an executor is also beneficially entitled under the will to any property it was doubtful whether he should, after fulfilling executorial duties, execute an acknowledgement or conveyance in favour of himself". 17Whichever view expressed is correct, the parties, in the present case, appear to have proceeded upon the basis that the Defendant holds the interest of the deceased in the Eastwood property legally and beneficially and that the deceased's interest had been distributed to him. 18In whatever capacity the Defendant holds the deceased's interest in the Eastwood property, the maximum amount available (whether actual estate or if designated as notional estate) is $425,000. (I shall return to the issue of the designation of property as notional estate later in these reasons.) 19There were, at the date of the hearing, 1154 Telstra shares, with a current value of $2.84 per share ($3,277). There was no dispute that the shares had been distributed to the Defendant, beneficially, in about November 2009. The deceased and the Defendant jointly owned the shares. If the deceased's interest in the Telstra shares were to be designated as notional estate, the maximum amount that might be available is $1,638. 20The deceased owned a car that was transferred to the Defendant following her death. It has a current agreed value $7,500. If the deceased's interest in the car were to be designated as notional estate, the maximum amount that might be available is $7,500. 21In an affidavit sworn by the Defendant on 15 September 2010, he states that distribution of the estate was completed on 5 November 2009, with the transfer to him of the Stockton property, which was owned solely by the deceased. The sale of that property to a third party was completed on 23 November 2009. 22Although initially, it appeared from the Defendant's affidavit that the whole of the net proceeds of sale of the property (about $400,000) was used to discharge the debts secured by mortgage on the property, in fact, those debts amounted to $318,486. The surplus was about $81,000 (after deducting some of the costs of sale). That amount was paid into the account of the Defendant (although conducted, even then, in the name of the deceased and the Defendant), in late November 2009. 23If the deceased's interest in the surplus proceeds of sale was to be designated as notional estate, the maximum amount that might be available is $81,514. However, it seems like most of this money has been expended by the Defendant in reducing his, and the companies', debts. 24It is accepted that the deceased's one share (out of two shares) in Capalar Pty Ltd had, and currently has, no value. Accordingly, it can be ignored in the description of the nature and value of the deceased's estate at the date of hearing. 25The value of the deceased's one share (out of two shares) in Alandar Pty Limited was the subject of dispute. At the date of death, the evidence reveals that the value of the company's assets, after paying its liabilities, was almost $226,000. This was based, inter alia, upon residential real estate, at St Peters, owned by the company, which then had a value of $480,000. Thus, each of the two shares in that company would, at that time, have had a value of about $113,000. 26Although the Defendant's evidence was to the effect that the transfer of the deceased's one share in Alandar Pty Limited occurred in November 2009, a copy of an ASIC search tendered by the Plaintiff, revealed that, in fact, the application to change details of the members' shares was received on 5 May 2010 and became effective on 6 May 2010. 27Although there was no specific evidence of the value of the St Peters property in May 2010, the parties were able to agree that its then value should be estimated to be $570,000. There was also no evidence of the other assets and liabilities of the company at that date. Using the same values of the other assets and the liabilities earlier disclosed, the value of the company's assets, after paying its liabilities, at that time, would have been $316,000. 28It follows that, if the one share of the deceased that was transferred to the Defendant were to be designated as notional estate, the maximum amount that might be available is $158,000. 29The St Peter's property was, in December 2009, transferred to the Defendant for less than its then value ($530,000). The Defendant simply took over the debts secured on the St Peters property. (The property is a single storey non-renovated terrace building of brick construction having timber floors and a metal roof. It has a garage/carport. 30The parties agreed that the value of the St Peters property, at December 2010 was, and, currently is, $600,000. There was also no evidence of the other assets and liabilities of the company at that date. Using the same values of the other assets and liabilities, the value of the company's assets after paying its liabilities, at the time of the transfer, would have been $346,000. It follows that, if the one share transferred to the Defendant were to be designated as notional estate, the amount that might be available is $173,000. 31It follows from the above, that subject to the determination of the question whether any of the deceased's estate which has been distributed to the Defendant should be made the subject of a notional estate order, the maximum amount that might be available is $688,652, made up as follows: (a) Interest in Eastwood property: $425,000 (b) Shares in Telstra: $1,638 (c) The car: $7,500 (d) Surplus proceeds of Stockton property: $81,514 (e) Value of one share in Alandar P/L: $173,000

32In calculating the value of the estate or notional estate, finally available for distribution, the costs of the present proceedings should also be considered, since the Plaintiff, if successful, normally, will be entitled to an order that her costs be paid out of the estate, or notional estate, of the deceased, whilst the Defendant, irrespective of the outcome of the proceedings, normally, will be entitled to an order that his costs be paid out of the estate. 33The Plaintiff's costs and disbursements of the proceedings, calculated on the indemnity basis, have been estimated to be in the order of $40,238 (inclusive of GST and upon the basis of a one day hearing). The costs and disbursements of the Plaintiff, including counsel's fees, calculated on the ordinary basis, are said to be $37,238. 34The Defendant's costs and disbursements of the present proceedings, calculated on the indemnity basis (inclusive of GST and upon the basis of a one day hearing), that he said had been paid were $43,942. (It is not clear whether his costs were paid out of his own assets or out of property that was distributed to him.) 35It follows that I should determine the Plaintiff's application upon the basis that the actual and/or notional distributable estate, after the payment of such costs as may be ordered to be paid out of the estate, will be about $607,000 (assuming that the Defendant is to be reimbursed for costs already paid). 36The persons described as eligible persons, within the meaning of the Act, are the Plaintiff, each of her siblings (Nathan) of the whole blood, her siblings of the half blood (Peter and Christopher), and the Defendant. 37The Defendant states that notice of the proceedings has been given to Nathan, Peter and Christopher. Only the Plaintiff has commenced proceedings under the Act.

The Statutory Scheme - The Act 38I shall discuss the statutory scheme that is relevant to the facts of the present case. 39The wording of the Act is similar to the wording of the former Act. However, it is necessary to remember the warning of Kirby P in Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100, at 76,304: "Purposive construction of the Act There is always a danger where a reformed Act borrows heavily upon ideas which previously existed in the common law or in an earlier statute, that lawyers will approach the construction of the Act affected by the previous law. Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 2 NSWLR 475, 478. That danger is but an illustration, in the specialised activity of law, of a universal phenomenon of psychology long established in relation to human perception generally. We tend to perceive what we expect. We expect that with which we are familiar. There is a particular danger in the case of the Family Provision Act in construing its terms by reference to the law which developed around the Testators' Family Maintenance and Guardianship of Infants Act 1916 . That Act was passed in earlier times to govern the entitlements of a testator's family, as narrowly defined. The definition by s 3(1) of that Act confined applications to those made by "the widow, husband or children of such persons". There was no mention in it of former spouses. Doubtless this was because, for the early part of this century, divorce was relatively infrequent and then based upon concepts of matrimonial fault which would make interference in the testamentary disposition of the deceased unlikely. When enacted, the statute was a radical interference in the power of testamentary disposition. That was a significant power over private property, the disturbance of which was regarded as highly exceptional." 40Whilst the relevant amendments made by the Act are not as significant to those made by the former Act, it remains necessary to bear his Honour's warning in mind in construing the statutory framework. In doing so, a construction that promotes the purpose, or object, of the Act is to be preferred to a construction that would not promote that purpose or object. In my view, the principles applied by the courts to the former Act continue to apply, except to the extent that the Act otherwise requires. 41The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008. A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, will. It is only if the statutory conditions are satisfied, that the court is empowered, under the Act, to alter the deceased's disposition to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary. 42The Act, relevantly provides in s 58(2), the period within which the applicant must be made: "An application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown." 43The statutory time limit is a substantive provision laid down by the Act, itself, and is not merely a procedural time limit. There are no restrictions, or requirements, of any kind, laid down by the Act, other than showing "sufficient cause". There is no definition of what would constitute "sufficient cause" under the Act. The decision of the court to extend time is a discretionary decision and the discretion given is unfettered. It is an evaluative judgment that is exercised: Peter Robert Durham v Bruce Albert Durham & Ors [2011] NSWCA 62, per Tobias JA (with whom Young JA agreed) at [42] and per Campbell JA at [72]. 44Importantly, unlike the former Act, there is no power given to the parties to the proceedings to consent to the application being made after the expiration of the prescribed period (see: s 16(3)(a) of the former Act). 45The key provision is s 59 of the Act. The court must consider, first, whether the applicant is an eligible person within the meaning of s 57 (s 59(1)(a)). There are six categories of persons by, or on whose behalf, an application may be made. In the case of an applicant who falls within s 57(1)(d), (e) or (f), the court must next consider whether the court is satisfied that there are factors which warrant the making of the application (s 59(1)(b)). Then, if those considerations are satisfied, the court must determine whether adequate provision for the proper maintenance, education and advancement in life of the applicant has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is only if it is satisfied of the inadequacy of provision, that the court considers whether to make a family provision order (s 59(2)). It may take into consideration, then, the matters referred to in s 60(2) of the Act. In this way, the court carries out a two-stage process. 46Other than by reference to the provision made in the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for the applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the court to the provision actually made in the deceased's Will, or on intestacy, or both, on the one hand, and to the requirement for maintenance, education and advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant. 47It was said in the court of Appeal (per Basten JA) in Foley v Ellis [2008] NSWCA 288 at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". 48There no longer appears to be any sanction to consider, in s 59(1)(c) of the Act, the provision made by the deceased during his, or her, lifetime for the applicant (see, s 9(2) of the former Act). 49Under both s 59(1)(c) and s 59(2) of the Act, the time at which the court gives its consideration to the question is the time when the court is considering the application. 50"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime". 51Neither are the words 'maintenance' and 'advancement in life' defined. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at [115], said, of the words 'maintenance', 'support' and 'advancement': "'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education." 52In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77 King CJ said: "The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang (1960) 104 CLR 124, per Dixon CJ at 128." 53In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J noted: "In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. ( McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support." 54The word 'adequate' connotes something different from the word 'proper'. 'Adequate' is concerned with the quantum, whereas 'proper' prescribes the standard, of the maintenance education and advancement in life: Devereaux -Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 at [72] and at [77] per Buss JA. 55Each of the words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 476: "The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances." 56Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571, after citing Bosch v Perpetual Trustee Co Ltd , went on to say, of the word 'proper', that: "It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent." 57In Goodman v Windeyer (1980) 144 CLR 490, Gibbs J said at 502: "[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards." 58In Vigolo v Bostin at [114], Callinan and Heydon JJ said: "[T]he use of the word "proper"...implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future." 59The first stage of the process provided for by s 59(1)(c) has been described as "the jurisdictional question": Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education and advancement in life of a particular applicant. 60Whether the applicant has a 'need' is a relevant factor at the first stage. It is an element in determining whether 'adequate' provision has been made for the 'proper' maintenance education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 [42] (Tobias JA, with whom Beazley and Hodgson JJA agreed). 61Tobias JA said: "42. There can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focused. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies. ... 47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is "proper maintenance etc" of the eligible person. It is the cause of that context that, in the present case, the "proper maintenance etc" of the appellant required consideration to guard against the contingency to which I have referred." 62In Devereaux-Warnes v Hall [No 3] at [81]-[85], Buss JA said, in respect of the first stage of the process: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227. 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11. The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575. Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]." 63In the event that the court is satisfied that the power to make an order is enlivened (i.e. it is satisfied that the Plaintiff is an eligible person, and, where necessary, that factors warranting have been satisfied, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), then, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made. 64The second stage of the process arises under s 59(2) and s 60(1)(b). Mason CJ, Deane and McHugh JJ, in Singer v Berghouse , at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour. 65Section 60 of the Act, at least in part, is new. It provides: "(1) The court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the "applicant") is an eligible person , and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the court : (a) any family or other relationship between the applicant and the deceased person , including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant , to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person 's estate, (c) the nature and extent of the deceased person 's estate (including any property that is, or could be, designated as notional estate of the deceased person ) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant , of any other person in respect of whom an application has been made for a family p r ovision order or of any beneficiary of the dec e ased person 's estate, (e) if the applicant is cohabiting with another person-the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant , any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person 's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person 's family, whether made before or after the deceased person 's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant , (i) any provision made for the applicant by the deceased person , either during the deceased person 's lifetime or made from the deceased person 's estate, (j) any evidence of the testamentary intentions of the deceased person , including evidence of statements made by the deceased person , (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person 's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant , (m) the character and conduct of the applicant before and after the date of the death of the deceased person , (n) the conduct of any other person before and after the date of the death of the deceased person , (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the court considers relevant, including matters in existence at the time of the deceased person 's death or at the time the application is being considered." 66It can be seen that s 60(2) enumerates 15 specific matters which the court may take into account, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order , and, if so, the nature of any such order. There is no mandatory command to take into account any of the matters enumerated. None of the matters differentiate in their application between classes of eligible person. Similarly, there is no distinction based on gender. 67Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. For example, when considering eligibility under sub-s (1)(a), many of the matters in sub-s (2) will be largely, if not wholly, irrelevant. 68Furthermore, consideration of some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and of other eligible persons as well as of the beneficiaries named in the deceased's will, whilst others do not. Importantly, also, many of the matters in subs (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1). 69Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently. 70This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the first stage. I am comforted in reaching this conclusion by the following comments made in Singer v Berghouse (at 209-210): "... The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant." 71And by the comments of Callinan and Heydon JJ in Vigolo v Bostin (at 230-231): "We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all the potential beneficiaries must be taken into account and weighed with all of the other relevant factors." 72Section 61 of the Act permits the court to disregard the interests of any other person by, or in respect of whom, an application for a family provision order may be made (other than a beneficiary of the deceased person's estate), but who has not made an application. However, the court may disregard any such interests only if: (a) notice of the application, and of the court's power to disregard the interests, is served on the person concerned, in the manner and form prescribed by the regulations or rules of court, or (b) the court determines that service of any such notice is unnecessary, unreasonable or impracticable in the circumstances of the case. 73Section 65(1) of the Act requires the family provision order to specify: (a) the person or persons for whom provision is to be made, and (b) the amount and nature of the provision, and (c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and (d) any conditions, restrictions or limitations imposed by the court. 74The order for provision out of the estate or notional estate of a deceased person may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner which the court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act). 75Section 63 (5) also enables a family provision order to be made in relation to property designated as notional estate of a deceased person. Section 99 enables the Court to order that costs be paid out of the notional estate of a deceased person. 76As the deceased died leaving a Will, her estate includes all property that would, on a grant of probate of the Will, vest in the executor of the Will (s 63 of the Act). 77Any family provision order under the Act will take effect, unless the court otherwise orders, as if the provision was made in a codicil to the will of the deceased, or in the case of intestacy, as in a will of the deceased (s 72(1) of the Act). 78Section 66 of the Act sets out the consequential and ancillary orders that may be made. 79The court, also, may, at the time of distribution of an estate that is insufficient to give effect to a family provision order, make such orders concerning the abatement, or adjustment, of distributions from the estate, as between the person in whose favour the family provision order is made and the other beneficiaries of the estate as it considers to be just and equitable among the persons affected (s 72(2) of the Act). 80The notional estate provisions of the Act are dealt with in Part 3.3 of the Act. However, in s 3 of the Act, "notional estate" of a deceased person is defined as meaning "property designated by a notional estate order as notional estate of the deceased person" and "notional estate order" means "an order made by the Court under Chapter 3 designating property specified in the order as notional estate of a deceased person." 81Importantly, the power to make a notional estate order does not arise unless the court is satisfied that (a) the deceased person left no estate, or (b) the deceased person's estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, or (c) provision should not be made wholly out of the deceased person's estate because there are other persons entitled to apply for family provision orders or because there are special circumstances (s 88). 82Furthermore, the Court must not designate as notional estate, property that exceeds that necessary, in the Court's opinion, to allow the provision that should be made, or, if the Court makes an order that costs be paid from the notional estate under s 99, to allow costs to be paid as ordered, or both (s 89(2)). 83Section 78 provides: "78 Notional estate order may be made only if family provision order or certain costs orders to be made (1) The Court may make an order designating property as notional estate only: (a) for the purposes of a family provision order to be made under Part 3.2, or (b) for the purposes of an order that the whole or part of the costs of proceedings in relation to the estate or notional estate of a deceased person be paid from the notional estate of the deceased person. (2) The Court must not make an order under subsection (1) (b) for the purposes of an order that the whole or part of an applicant's costs be paid from the notional estate of the deceased person unless the Court makes or has made a family provision order in favour of the applicant." 84Section 79, relevantly to the present case, deals with the designation of property where the estate of the deceased has been distributed. The section provides: "79 Notional estate order may be made where property of estate distributed The Court may, on application by an applicant for a family provision order or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person if the Court is satisfied that on, or as a result of, a distribution of the deceased person's estate, property (whether or not the subject of the distribution) became held by a person (whether or not as trustee) or subject to a trust." 85The effect of notional estate order is that a person's rights are extinguished to the extent that they are affected by a notional estate order (s 84). 86Section 85 provides: "85 More than one notional estate order may be made The Court may make one or more notional estate orders in connection with the same proceedings for a family provision order, or any subsequent proceedings relating to the estate of the same deceased person." 87The court's power to make a notional estate order is circumscribed by other sections. Section 87 provides: "87 General matters that must be considered by Court The Court must not make a notional estate order unless it has considered the following: (a) the importance of not interfering with reasonable expectations in relation to property, (b) the substantial justice and merits involved in making or refusing to make the order, (c) any other matter it considers relevant in the circumstances." 88In John v John; John v John [2010] NSWSC 937 at , it was said: "[118] What amounts to "reasonable expectations in relation to property" was considered in Petschelt v Petschelt [2002] NSWSC 706, at [68], by McLaughlin M (as the Associate Justice then was), who said: That phrase does not, however, indicate the person by whom those reasonable expectations are held. Clearly the Court must consider the reasonable expectations of the First Defendant in relation to property. By the same token, however, the Court should also consider the reasonable expectations of the Deceased herself in relation to property, and also, possibly, the reasonable expectations of the Plaintiff. [119] In D'Albora v D'Albora [1999] NSWSC 468, at [53], Macready M (as the Associate Justice then was) gave examples of the circumstances which might give rise to reasonable expectations for the purposes of this section: Under s 27(1)(a) the Court has to consider the importance of not interfering with the reasonable expectations in relation to the property. Such reasonable expectations may well occur in a number of circumstances. For example, a beneficiary who receives a property may have spent money on the property or worked on the property ... Another common area where one often sees in this matter is where there is a promise in relation to the property and the acting by an intended beneficiary on the fact of that promise. [120] Similarly, in Wentworth v Wentworth [1992] NSWCA 268, Priestley JA, with whom Samuels AP and Handley JA agreed, referring to the "more general precautionary provisions" in ss 26 and 27 of the Family Provision Act, said: S 27(1) for example, says the court shall not make an order designating property as notional estate unless it has considered, amongst other things, the importance of not interfering with reasonable expectations in relation to property. If someone is in possession of property, otherwise than by gift, after having given up something of equivalent value in order to obtain that property, it would be entirely reasonable for that person to expect to remain in possession of it." 89In determining what property should be designated as notional estate of a deceased person, the Court must have regard to the value and nature of any property the subject of a distribution from the estate of the deceased, any changes in the value of property of the same nature as the property referred to, in the time since the distribution was made, and any other matter it considers relevant in the circumstances: s 89. 90Importantly, in this case, reference must be made to s 90, which provides: "90 Restrictions on out of time or additional applications (1) This section applies to proceedings where: (a) an application for a family provision order is made later than 12 months after the date of the death of the deceased person, or (b) an application for a family provision order is made in relation to an estate that has been previously the subject of a family provision order. (2) The Court must not make a notional estate order in the proceedings unless: (a) it is satisfied that: (i) the property to be designated as notional estate is property that was the subject of a relevant property transaction or of a distribution from the estate of a deceased person or from the estate of a deceased transferee, and (ii) the person who holds the property holds it as a result of the relevant property transaction or distribution as trustee only, and (iii) the property is not vested in interest in any beneficiary under the trust, or (b) it is satisfied that there are other special circumstances that justify the making of the notional estate order." 91The meaning of "special circumstances" in s 28(5) of the former Act, which was in its terms similar to s 90(2)(b) of the Act, has been considered in a number of cases (see, for example, Lewis v Lewis [2001] NSWSC 321; Zirkler v McKinnon [2002] NSWSC 285; Blyth v Spencer; Spencer v Neville [2005] NSWSC 653; Cetojevic v Cetojevic [2006] NSWSC 431; Campbell v Chabert-McKay [2010] NSWSC 859; John v John; John v John [2010] NSWSC 937; Alexander v Jansson [2010] NSWCA 176. 92The following summary regarding the sub-section may be gleaned from the authorities which dealt with s 28 of the former Act: (a) The sub-section in the Act gives no direct indication of the nature of special circumstances; the term is incapable of precise, or exhaustive, definition; s 28(5) gave some indication of the types of circumstances that may count as special circumstances, namely circumstances involving such things as property not finally vesting in interest, and lack of capacity in the plaintiff; those matters may amount to special circumstances under s 90. (b) The term prescribes a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. (c) The qualifying adjective, "special", looks to circumstances that are unusual, uncommon or exceptional; the Oxford Dictionary defines "special" as meaning "of such a kind as to exceed or excel in some way that which is usual or common; exceptional in character, quality or degree"; the Macquarie Dictionary states the meaning: "of a distinct or particular character or purpose"; "being a particular one"; "particular, individual or certain"; "different from what is ordinary or visual"; "extraordinary, exceptional". (d) A circumstance may be "special" by reason of degree, as well as of kind; circumstances need not be unique to be special, but they will be unusual; it is legitimate to have regard to a combination of factors in reaching the conclusion that they are special. (e) More should be demonstrated to prove "special circumstances" than to justify an extension of time; the latter requires "sufficient cause" to be shown; however, to establish such special circumstances does not require the court to exclude circumstances considered under s 58(2). (f) In a case where an extension is sought, the sub-section superimposes a further requirement, or extra hurdle, over and above the matters that a Court will consider under s 87. (g) Whether circumstances answer the description must depend upon the context in which they occur; it is the context that allows one to say that the circumstances in one case are markedly different from the usual run of cases. Their existence is also, in a sense evaluative in character.

Applicable Legal Principles - Substantive Application 93In addition to the above matters, there are some general principles that are relevant to the facts of this case. Whilst most of these principles were stated in the context of the previous legislation, they are equally apt in a claim such as this one. 94Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, in relation to the former Act, that it is not appropriate, to endeavour to achieve a 'fair' disposition of the deceased's estate. It is not part of the court's role to achieve some kind of equity between the various claimants. The court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Rather, the court's role is of a specific type and goes no further than the making of 'adequate' provision in all the circumstances for the 'proper' maintenance, education and advancement in life of an applicant. 95In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the court to be vigilant in guarding "against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant". 96The court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation ( Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9, per Dixon CJ at 19); McKenzie v Topp [2004] VSC 90 at [63]. Freedom of testamentary disposition remains a prominent feature of the Australian legal system. 97Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: The Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker , NSWSC, 17 May 1996, unreported; Vigolo v Bostin at [11]; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. 98In relation to a claim under the Act by an adult child of the deceased, the following matters should also be noted: (a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation [ McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801]. (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia . (d) There is no the need for an adult child to show some special need or some special claim: McCosker v McCosker (1957) 97 CLR 566; Kleinig v Neal (No 2) [1981] 2 NSWLR 532; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45. (e) Whilst it may not be appropriate to accord to a spouse, generally, primacy over all other applicants regardless of circumstances, where competing factors are more, or less, otherwise equal, the fact that one party is an elderly spouse of the deceased, and is permanently less likely to be able to increase his, or her income, and may never be likely to be better off financially, while the applicant is materially younger and has the capacity to earn more, or otherwise improve his, or her, financial position in the future, this will, ordinarily, result in the needs of the spouse being given primacy. That is because, in such circumstances, the spouse will have less hope of improving himself, or herself, economically, whereas that would not be the position of the applicant. In such circumstances, the competing claim of the spouse would be greater than that of the adult child applicant.

Applicable Legal Principles - Extension of Time 99The decision of the court to extend time is a discretionary decision. The principles governing that exercise of discretion under the Act are clear. Apart from the reason(s) for the lateness of the claim, the factors to which the court must look, include whether beneficiaries under the Will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by either side; and, finally what is the strength of the claim made by the party seeking an extension of time: see, for example, John v John at [37]-[51] per Ward J; Campbell v Chabert-McKay [2010] NSWSC 859 at [45]-[47] per White J; Durham v Durham [2010] NSWSC 389 at [15] per Ball J; Taylor v Farrugia [2009] NSWSC 801 at [14] per Brereton J; Burton v Moss [2010] NSWSC 163 at [31] ff, per Macready As J, in which the relevant earlier cases are referred to. 100Ultimately, what the applicant must establish is a sufficient explanation or excuse to justify the granting of an extension of time. The onus lies on her, or him, to establish sufficient cause and, thus, to provide the reason(s) for not commencing within time, to demonstrate a lack of prejudice due to the delay in instituting proceedings, and any unconscionable conduct by the defendant or other beneficiaries. It will be for the court to determine the strength of the applicant's claim. 101In Cetojevic v Cetojevic [2006] NSWSC 431, Campbell J (as his Honour then was) explained that the prejudice to which the section looks is any prejudice occasioned by the delay in lodging the claim. 102In De Winter v Johnstone (Court of Appeal, 23 August 1995, unreported), Sheller JA held that the concept of "unconscionable conduct" referred to above was "directed towards a deliberate holding off [in bringing proceedings] designed to lull the beneficiaries into a false sense of security". Cole JA, whilst not expressing a concluded view, said that it must be doubted whether a change of mind (because of some change in the financial and material circumstances of the Plaintiff which has occurred after the expiry of the limitation period) constitutes unconscionable conduct. 103As to the strength of the claim, in De Winter v Johnstone , Powell JA considered that as an application for extension of time was invariably dealt with at the time of the application for substantive relief, no extension of time ought to be granted unless it was established that the applicant seeking an extension of time would, in the event of the extension being granted, be entitled to an order for substantive relief. By contrast, Sheller JA considered that it was only necessary for the applicant to show that the application was not bound to fail. 104Perhaps, relevant to the present case, is what was said in Mansfield & Ors v Mansfield & Anor [2003] WASC 214 at [65]: "65 The authorities also show, as in Young v Kestel , that in some circumstances a failure to make an application under the Act in the prescribed time may be explained and justified by a lack of information in the hands of an applicant. A lack of information may support the view that the applicant was not in a position to make a responsible decision about whether or not to institute proceedings under the Act."

Credibility of Witnesses 105I am satisfied that, generally, there were not many facts seriously in dispute between the parties. The essential fact that was in dispute related to the conduct of the Defendant following the death of the deceased and his failure to fully disclose to the Plaintiff the nature and value of the deceased's estate. The submission of the Plaintiff was that "there was a pattern of deliberately understating the value of the estate". 106Having observed the Defendant, I have formed the view that he did not intend to mislead the Plaintiff as to the nature and value of the deceased's estate and what was said to be a pattern of deliberately understating its value, had more to do with a lack of care by the Defendant and those representing him. 107I am fortified in this conclusion since the Plaintiff did not suggest, in her evidence, that she had been misled, or that she did not commence the proceedings because of what she had been told by the Defendant about the value of the estate. In particular, she did not say, in respect of the two conversations that she had with the Defendant, following the death of the deceased, that she believed that the estate was very small, or that she did not commence proceedings because of anything said, or, perhaps, more importantly, not said by him. 108It is clear that she was not satisfied with what she had been told by the Defendant, because she spoke with her father about challenging the deceased's Will some months after her conversations with the Defendant. 109This view of the Defendant does not mean that I was impressed with the way in which his evidence as to the nature and value of the deceased's estate was given. A significant amount of time at the hearing was spent trying to work out the current nature and value of the deceased's estate and/or the property that might be designated as notional estate. 110Until February 2011, a firm of solicitors had represented the Defendant and he had obtained advice from counsel. Apparently, a number of the documents relied upon, including one that detailed what were said to be the assets and liabilities of the estate at the date of death, were clearly in error. 111I have commented on the responsibility of the Defendant, and his, or her, legal advisers, in a case in which a family provision order is sought to completely and accurately disclose the nature and the value of the deceased's estate: Faulkner v McLeod [2011] NSWSC 92 at [79]. 112I was also unimpressed with the Defendant's failure to provide a copy of the deceased's Will to the Plaintiff until close to the time that she commenced proceedings. Had he done this promptly, as he should have, particularly when the topic of the deceased's Will was raised by her, shortly after the death of the deceased, it may be that many of the concerns of the Plaintiff that have been raised would have been quelled. 113In stating this criticism, I should not be seen as suggesting that the failure to provide a copy of the deceased's Will led to the Plaintiff not commencing the proceedings within time. 114I must say that the Plaintiff did not assist the court either. What was said in written submissions was that the Plaintiff disputed the Defendant's conclusions about the estate and that the Court would find that the estate was, in fact, $361,000, which would permit "a modest award" being made for the Plaintiff. 115To demonstrate the last point even more vividly, the issues of extension of time, the designation of property as notional estate, and the effect of s 90(2)(b) of the Act, were not referred to at all in the written submissions filed on behalf of the Plaintiff. 116Otherwise, neither party suggested that the evidence of the other was untruthful.

Relevant Facts - Extension of Time 117I set out the facts that I am satisfied are either not in dispute, or that, in my view, have been established by the evidence on the application for an extension of time. 118In around April 2009, one month or so after the death of the deceased, the Plaintiff and the Defendant had a conversation in which the deceased's Will was discussed. However, there was no conversation as to the precise terms of the Will, or as to the nature and value of the deceased's estate. 119In October 2009, the Plaintiff's father informed her that she had 18 months to make a claim. This was clearly wrong advice and referred to the prescribed period for making a claim under the former Act. (The Plaintiff's father is not a lawyer. He is a meter reader for a contracting company. He communicated to the Plaintiff what he had, apparently, heard on the radio. That erroneous advice had been given was not known to the Defendant.) 120Between May 2009 and April 2010, the Plaintiff had surgery and underwent fertility treatment. She describes this period as "a stressful time for both my husband and I (sic)". She had a miscarriage in November 2009 and during this period, did not want to increase the level of stress. 121In February 2010, the Plaintiff became aware that the Stockton property had been sold. She also found that Christopher Blake had started working in the business owned by the deceased. 122In March/April 2010, the Plaintiff telephoned a solicitor, Geoffrey Bartels of Bartels Business Lawyers, but was unable to speak with him until late May 2010. She requested a copy of the deceased's Will as he was acting for the Defendant. The solicitor responded by letter dated 6 July 2010, stating that the Will was with the Defendant and that the Will could be viewed by arrangement with him. 123On 27 June 2010, the Defendant sent an email to the Plaintiff confirming that he had been contacted by his solicitor, following a conversation with the Plaintiff, and that "I have a copy at home if you would like to read it or I can try scanning it and send it through...". He also asked if there was anything, in particular, that she wanted to know. 124On 12 July 2010, the Plaintiff sought legal advice. 125On 15 July 2010, the Plaintiff's solicitors wrote to Mr Bartels advising of their instructions to commence proceedings and requesting a copy of the deceased's Will and also sought other information. 126Mr Bartels responded by letter dated 15 July 2010, provided a copy of the Will and Probate document (as well as the Inventory of Property) and stated that the Plaintiff's claim was out of time. There was other commentary upon the prospects of success of any claim. 127As stated earlier, the Summons was filed on 6 August 2010, that is to say, about 4.5 months outside the prescribed period. 128I am satisfied that the Plaintiff did not commence the proceedings within time because of events that were going on personal to her and not because of the Defendant. I accept the Plaintiff's evidence that she was physically, psychologically, and emotionally, not capable of giving serious consideration to whether she should commence proceedings. 129In addition, she may have been lulled into a false sense of security as to the time within which she could commence those proceedings by the conversation with her father. I do not suggest that such a conversation, on its own, would provide sufficient cause for extending time, but taken with her physical, psychological and emotional state, it is a matter that goes to explaining the reasons for not commencing the proceedings within time. 130I am not, however, satisfied that there was any unconscionable conduct by the Defendant that is relevant on this issue. I might have come to a different view if the Plaintiff had stated, under oath, that she had not commenced proceedings because of what she had been told, or more importantly, not told, by him. 131Neither party made any submissions about any prejudice that might be suffered if the time for making the Plaintiff's application were extended. It is difficult to see what prejudice would be suffered considering the relatively short period of time that had passed since the expiration of the prescribed period. 132This leaves the final matter, namely the strength of the Plaintiff's case, to which I shall now turn.

Relevant Facts - Substantive Claim 133I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60 of the Act.

(a) any family, or other, relationship between the applicant and the deceased person, including the nature and duration of the relationship 134The Plaintiff is the daughter of the deceased. There is nothing to suggest that their relationship, throughout the deceased's life, was not happy, loving or harmonious. She states, and I accept, that she had a good relationship with the deceased, but was "not close" to the Defendant.

(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate 135Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal, or financial, obligation to the Plaintiff imposed upon her by statute or common law. 136However, an obligation, or responsibility, to make adequate provision for the Plaintiff's proper maintenance and advancement in life is usually recognised in the case of a child. 137The deceased did not assume any particular obligation, and responsibility, towards the Defendant. Any obligation, or responsibility, otherwise, was that naturally arising from the spousal relationship between them.

(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered 138I have dealt with this earlier in this judgment. So far as I am aware, other than in respect of costs, there are no liabilities or charges to which the estate is subject currently in existence. 139On any view, the deceased's estate and/or notional estate is not a large one.

(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate 140The Plaintiff is a qualified primary school teacher. Since finishing university, she has worked consistently as such, apart for one year when she travelled overseas. On occasions, she has acted as a relieving assistant principal. However, she has not acted in that capacity since 2008. 141On 4 January 2011, the Plaintiff had a child. Recently, the child has been diagnosed with microcephaly, which is a condition, present at birth, in which the baby's head is much smaller than normal for an infant of that age and gender. The present condition of the Plaintiff's child is not known as a brain ultrasound was done only a few days prior to the hearing. 142The Plaintiff is on maternity leave until 26 May 2011. 143Her financial and material circumstances and those of her husband are: Assets (a) Home (owned jointly with husband) $365,000 (b) 2000 Holden Commodore (owned jointly) $7,500 (c) 1999 Ford Festiva (owned jointly) $3,500 (d) Superannuation (approximately) $35,000 (e) Household furnishing No commercial value (f) Cash at hand (joint savings) $5,000

Husband's Assets (a) Home (owned jointly with husband) $365,000 (b) 2000 Holden Commodore (owned jointly) $7,500 (c) 1999 Ford Festiva (owned jointly) $3,500 (d) Superannuation (approximately) $25,000 (e) Shares $2,000

Liabilities (a) Mortgage (ANZ Bank - Joint) $324,000 (b) Credit Card (Husband's) $5,000 (c) Debt to John Gersbach $10,000

144The Plaintiff's present income is $635 per week (maternity leave payments) and $485 per week (paid parental leave entitlement from Federal Government which will be paid until 16 June 2011). 145The Plaintiff does not intend to return to work, either full time, or part time, until February 2012. 146In the financial year ending 30 June 2010, the gross income of the Plaintiff's husband was estimated to be $45,000. He presently earns $650 per week nett. There are prospects of advancement in the company in which he is presently employed and he is keen to progress. He is 36 years of age. He makes no contribution from his income to superannuation, but his employer makes the required contribution. 147The car detailing business purchased by the Plaintiff and her husband from the deceased and the Defendant was not financially viable. The Plaintiff's husband, otherwise, because of injuries to his shoulder and arm was unable to continue with the business. It is presently of no commercial value. 148The Plaintiff has estimated the family's monthly expenditure at about $6,750. That includes entertainment expenditure estimated to be $1,000. 149The Plaintiff describes her "needs" as follows: (a) She would like her child, or children, to attend a private school, the estimated cost of which is $12,000 per year; (b) She needs to purchase various things for the baby, at a total cost of $3,200; (c) She and her husband would like to purchase a larger home, the cost of which is estimated to be $860,000. The changeover cost, other than associated expenses, would be $130,000. (d) If the Plaintiff and her family do not move to a new home, their present home requires some general repairs and maintenance at a cost of $51,000; (e) There are a number of household items that the Plaintiff needs, at a total cost of $6,000; (f) She requires a lump sum for her retirement, as well as a lump sum to discharge liabilities; (g) In the next few years, it will be necessary to replace their cars at a cost of about $37,000, plus increased insurance costs of $1,200 per year. 150At the hearing, during submissions, it was submitted that the Plaintiff should receive a modest lump sum to provide her with a way of paying for some of these expenses and to otherwise provide a sum for exigencies. It is clear that the value of the estate and notional estate is not sufficient to meet all the so-called "needs" of the Plaintiff. 151The Defendant has assets, including the home at Eastwood ($850,000). He states that there is substantial cracking occurring in the walls both internally and externally. He estimates the costs of repairing the damage to be between $40,000 and $50,000 (including external repainting). He states that internal painting and the replacement of the toilets in both bathrooms is required at a total cost of $10,000. He needs to replace the stove ($4,000) and his car ($65,000). He says that the swimming pool has a leak, the rectification cost of which is $3,000. He says that the costs of interring the deceased's ashes will be between $3,000 and $8,000. 152The Defendant states that he would wish to retire in 5 to 7 years and at that time estimates that he will need about $1.5 million to be financially independent. How this amount is calculated is not disclosed. 153The Defendant has $121,000 in superannuation. 154The Defendant now owns the St Peters property ($600,000), which is subject to a mortgage securing a debt of $227,000. 155The Defendant remains the sole shareholder and director of each of Alandar Pty Limited and Capalar Pty Limited. 156The Defendant now runs the cosmetics wholesaling business conducted by Capalar Pty Limited under a business name. He states that the business is very modest and is run on a part-time basis, two days a week. He explains events that have affected the business, including his own inexperience, the global financial crisis, loss of customers, and the winding up of one of its customers owing the business $37,000. 157He does not provide a value of the business, because he says that, without him, the business would not be worth anything. He also says that "unless sold, its value cannot be estimated". 158I do not accept this statement, entirely. I note that the gross profit of Capalar Pty Limited in the financial year 2009, from the business, was nearly $200,000. Furthermore, the business does provide the Defendant, and his son, Christopher, with an income, and because it has stock in trade. I am unable, however, to estimate the value of the business. 159He would like to set up his business so that he can sell products on-line, but estimates that the set-up costs would be in the order of $15,000. However, he believes that this would enable him to improve the gross margin of the business. Presumably, that expenditure would also increase its value.

(e) if the applicant is cohabiting with another person - the financial circumstances of the other person 160As stated, the Plaintiff is co-habiting with her husband and daughter. I have set out the financial and material circumstances of the Plaintiff's husband above.

(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated 161The Plaintiff is in good health. She does not allege any physical, intellectual, or mental, disability that is in existence now, or that may reasonably be anticipated. 162The Defendant is in good health. He does not allege any physical, intellectual, or mental, disability that is in existence now, or that may reasonably be anticipated.

(g) the age of the applicant when the application is being considered 163The Plaintiff is aged 35 years.

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant 164The Plaintiff does not specifically identify any financial, or other, contributions to the acquisition, conservation and improvement of the estate of the deceased. Nor does she refer specifically to any contribution to the deceased's welfare, although, as a loving daughter, no doubt, there was some contribution in this regard.

(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate 165The Plaintiff receives nothing out of the estate of the deceased. 166The deceased did make some provision for the Plaintiff during her lifetime, which provision included: (a) When the Plaintiff was at university, she lived in rented accommodation. The deceased gave her money, on occasions, to assist to pay the rent. She estimates that the total amount that the deceased gave her during the period was between $4,000 and $5,000. (b) In about 2004, the deceased gave the Plaintiff an old Chesterfield lounge and a lamp, that she was no longer using. (c) In or around 2004, the Plaintiff's husband purchased a car detailing franchise from the deceased and the Defendant, for the reduced purchase price of about $10,000. This business was not commercially viable. The Plaintiff's husband has not been working in the business for about 12 months and he has been unable to sell it. (d) The Plaintiff and her husband lived in a house that the deceased and the Defendant owned at Eastwood, for about 9 months, in 2006. They paid rent of $250 a week, during this period. (e) In 2006, the Plaintiff and her husband went overseas for 6 weeks. When they returned, they lived, rent free, with the deceased and the Defendant for a further 6 weeks. (f) In October 2007, the deceased bought the Plaintiff's wedding dress. The cost was $600. She also helped with the cost of the flowers for my wedding. The deceased otherwise contributed $2,000 towards the costs of the wedding. (g) In or around 2007, the deceased gave the Plaintiff a side-table, that she was no longer using. (h) In November 2008, the deceased lent the Plaintiff $5,000, which amount was repaid two months later, in order to assist with the purchase of the home that was purchased by the Plaintiff and her husband. Subsequently, another $4,000 was lent, of which $3,000 was subsequently repaid. (i) Occasionally, the deceased would give the Plaintiff money, when they went shopping or to the markets. At times, the deceased would pay for things. These were small amounts (around $50).

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person 112 There is no evidence of the testamentary intentions of the deceased other than her Will, Probate of which was granted.

(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so 167There is no evidence that the deceased maintained the Plaintiff, either wholly or partly, before his death.

(l) whether any other person is liable to support the applicant 168Apart from the Commonwealth government's responsibility to continue to provide the Plaintiff with a pension until June 2011, there is no other person with a liability to support the Plaintiff.

(m) the character and conduct of the applicant before and after the date of the death of the deceased person 169The Act does not limit the consideration of "conduct" to conduct towards the deceased. 170There is nothing to suggest any conduct of the type towards the deceased that might disentitle the Plaintiff to relief under the Act. The Defendant did not suggest any such conduct.

(n) the conduct of any other person before, and after, the date of the death of the deceased person 171It was not suggested that the relationship between the deceased and the Defendant had, in any way, broken down. He was married to the deceased for 24 years. That, on any view, is a long marriage. They had two children, both of whom live with the Defendant. The Defendant is the chosen object of the deceased's testamentary beneficence.

(o) any relevant Aboriginal or Torres Strait Islander customary law 172This is not relevant in the present case.

(p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered 173The only other matters that I consider relevant relate to the questions relevant to the designation of property as notional estate.

Determination 174There is no dispute that the Plaintiff is an eligible person within the meaning of that term in s 57(1)(c) of the Act. It is, thus, unnecessary to consider whether there are any factors warranting the making of her application. 175I must first consider, at the time when the court is considering the application, whether adequate provision for the proper maintenance, education, or advancement in life, of the person in whose favour the order is to be made, has not been made, by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both. 176There was no provision in the deceased's Will made for the Plaintiff. (The operation of the intestacy rules is irrelevant.) This does not, automatically, mean that the Plaintiff will have established the jurisdictional threshold. 177However, I have come to the view that she has done so in this case. Whilst she and her husband own their home, it is subject to a mortgage. She has some superannuation (as does her husband), a car, and a small amount of cash. Importantly, she now has a baby who has been diagnosed with a medical condition that appears serious. This may have a significant impact on the family's future, particularly financially. 178Accordingly, I am satisfied that the Plaintiff has satisfied the jurisdictional threshold. 179It is then necessary to consider whether to make a family provision order and the nature of any such order. This is a more difficult question because of the very strong competing claim of the Defendant and the recognition of the deceased's freedom of testation. I cannot forget that the Defendant is the spouse of the deceased, and that their marriage was a long one. 180Furthermore, the value of the property that might be designated as notional estate is small. If one remembers that the value of the deceased's interest in the Eastwood property is $425,000, that the Telstra shares and the car is of very little value, and that most of the balance of the proceeds of sale of the Stockton property appears to have been expended, the only property available from which an order could be satisfied is the share in the company, Alandar Pty Limited. At its highest, the amount available from which an order could be made is $173,000. 181It seems to me that, at the age of 60 years, the Defendant is entitled to remain secure in the accommodation that he owned jointly with the deceased at the date of death. I also consider that the Defendant would have had a reasonable expectation not only to inherit the Eastwood property from the deceased, but also to be able to remain securely living in it without interference. The substantial justice and merits require me to not make any designating order that would affect his ownership of that property. I do not consider that any part of the deceased's interest in that property should be designated as notional estate unless there is no other way in which to satisfy the order for provision that I intend to order for the Plaintiff (see, for example, Doyle v Smith (unreported, NSWSC, 21 September 1994). 182So far as the shares are concerned, the Defendant did not give evidence that he expected the Plaintiff not to make any claim on the estate. Certainly on two occasions, she raised the deceased's Will with him and her entitlement thereunder. 183It might have been reasonable for him to assume, after the prescribed period for making a claim had expired, that no claim would be made. However, in this regard, he did not give evidence that he held such an assumption. In fact, there is no evidence that the Defendant specifically turned his mind to that question, although he appears to have consistently been of the view (at least as expressed at the hearing) that one would expect, between husband and wife, that the survivor would receive the whole of the other's estate. 184The Defendant's needs, and his wishes in relation to the shares which might be designated as notional estate, will be taken into account as relevant circumstances in determining what provision is adequate for the Plaintiff's proper maintenance and advancement in life. Such expectations as the Defendant may have had do not mean that none of the property should be designated as notional estate. 185The Defendant does not appear to have altered his position in any way as a result of such an assumption created by the Plaintiff that she would not make a claim. To the contrary, the distribution of the substantial part of the actual estate appears to have occurred well within the period prescribed by the Act for making a claim. 186The Plaintiff seeks a modest lump sum. The Defendant submits that she should not receive any lump sum, as this will impact, significantly, on his financial position. I have considered this submission very carefully. To make provision for the Plaintiff, of say, $45,000, would result in the Defendant having to borrow part, or all, of that amount. He would be able to do so, one would think, upon the security of the St Peters property. After all, it is said to have a value of $600,000 with a secured debt of $227,000. 187Since I have found that the deceased did not make adequate provision for the Plaintiff's proper maintenance and advancement in life and that some provision should be made for her, and as the estate has been distributed, s 88(b) is satisfied as the estate is insufficient to allow the making of any provision. 188I am also satisfied that there are special circumstances that justify the making of a notional estate order under s 90(2)(b) of the Act. In my view, these circumstances are: (i) The Defendant should have been more open with the Plaintiff about the terms of the deceased's Will than he was. Even accepting that he did not mislead her, he was not as open as he might have been bearing in mind that the deceased was her mother and that no provision had been made for her in the Will. (ii) Whilst it is true that the deceased's estate might be regarded as "modest", it was not as modest as the Defendant asserted in his initial evidence. Even though this assertion might not have been made with a view of misleading the Plaintiff, it did paint a picture of the value of the estate, which, untested, would have been inaccurate. (iii) On the Defendant's evidence, the deceased's estate appears to have been distributed within 12 months of the date of the deceased's death, leaving aside the transfer of the deceased's one share in Alandar Pty Limited, in May 2010. It follows that the estate was distributed in apparent disregard of any claim that might be made by the Plaintiff. (iv) The Defendant, after the commencement of the proceedings, transferred out of the company, Alandar Pty Limited, its principal asset. As he acknowledged, he received the St Peters property at an undervalue. This was done with knowledge of the Plaintiff's claim. (v) The Plaintiff's mental and psychological condition, to which I have earlier adverted, during the prescribed period. 189In the circumstances, I consider that the time for making the Plaintiff's application should be extended up to and including 6 August 2010, the date of the filing of the Summons filed herein and that a notional estate order should be made. I am satisfied that there is a reasonable explanation given by her for not commencing the proceedings within time, there is no unconscionable conduct and no relevant prejudice if I extend the time. 190The Plaintiff should receive a lump sum of $45,000. The lump sum should be paid within 42 days, failing which, interest on any amount not so paid, should be paid, such interest to be calculated at the rate prescribed on unpaid legacies by the Probate & Administration Act , 1898, from that date until the date of payment. 191I shall allow the Defendant an opportunity to decide the manner in which he can satisfy the payment of the lump sum and, therefore, which property should be the subject of a notional estate order. If the parties are unable to reach agreement on the way in which the lump sum is to be paid, I shall, hear further submissions on designating the share in Alandar Pty Limited, or any other property, including the property at St Peters, as notional estate, and any consequential orders. 192I would like to hear further submissions on costs. My tentative view is that whilst the Plaintiff has succeeded in achieving a small legacy, bearing in mind the way in which her case was conducted, including the fact that the issue of notional estate does not appear to have been properly considered by her legal representatives, I do not think that she should receive all of her costs as estimated. My tentative view is that she should receive about three quarters of her estimated costs only. 193I stand the proceedings over to a mutually convenient date for any argument as to costs. 194I would hope that the parties reach agreement, if they are able, on the method by which the lump sum is to be paid and on costs. However, if they are unable to, I shall decide these issues also. 195I stand the proceedings over to a mutually convenient date.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 May 2011

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