Goldsmith v Goldsmith

Supreme Court of NSW|2012-11-14|Before: Hallen J

Ford v Simes [2009] NSWCA 351 Gardiner v Gardiner (NSWSC, 28 May 1998, unreported) Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Green, In re, deceased; Zuckerman v Public Trustee [1951] NZLR 135 Hampson v Hampson [2010] NSWCA 359 Hawkins v Prestage (1989) 1 WAR 37 Hughes v National Trustees Executors and Agency Co. of Australasia Ltd (1979) 143 CLR 134 Hunter v Hunter (1987) 8 NSWLR 573 Kay v Archbold [2008] NSWSC 254 Keep v Bourke [2012] NSWCA 64 Kembrey v Cuskelly [2008] NSWSC 262 Kirby v Sims [2011] NZHC 935 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Lathwell v Lathwell [2008] WASCA 256 McCosker v McCosker (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 MacGregor v MacGregor [2003] WASC 169 Marks v Marks [2003] WASCA 297 Mayfield v Lloyd-Williams [2004] NSWSC 419 Palaganio v Mankarios [2011] NSWSC 61 Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Sammut v Kleemann [2012] NSWSC 1030 Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack-Smith v Slack-Smith [2010] NSWSC 625 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (NSWSC, 16 December 1996, unreported) Stott v Cook (1960) 33 ALJR 447 Taylor v Farrugia [2009] NSWSC 801 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, Young J, 17 May 1996, unreported) Wheatley v Wheatley [2006] NSWCA 262 Williams v Aucutt [2000] 2 NZLR 479 Worsley v Solomon [2008] NSWSC 444 Category: Principal judgment Parties: Ian Goldsmith (Plaintiff) Wayne Rodney Goldsmith (Defendant) Representation: Counsel: Ms E Picker (Plaintiff) Mr A Gruzman (Defendant) Solicitors: Peter Dawson & Associates (Plaintiff) Woodward Wickes Wicken (Defendant) File Number(s): 2011/350781

The Claim 1HIS HONOUR: These are proceedings commenced by Ian Lance Goldsmith, who applies for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act") as a child of Elizabeth Jean Goldsmith ("the deceased"). 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 The Act replaces the Family Provision Act 1982 ("the former Act"), which was repealed, effective from 1 March 2009.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 2 November 2011, that is, within the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased). 3The Defendant named in the Summons is Wayne Rodney Goldsmith, another child of the deceased, the executor appointed in the Will of the deceased to whom Probate was granted, and the brother of the Plaintiff. 4Without any undue familiarity, or disrespect intended, and for convenience, I shall refer, hereafter, only to the Plaintiff and the Defendant by his role in these proceedings, and to other family members, or witnesses, after introduction, by her, or his, given name.

Formal Matters 5The following facts are uncontroversial. 6The deceased died on 1 January 2011. She was then aged 80 years, having been born in October 1930. 7The deceased married Kenneth William Goldsmith on a date not disclosed in the evidence. There were three children of their marriage, one being the Plaintiff, another being Stephen Kenneth Goldsmith, who was born in October 1958, and the Defendant, who was born in March 1963. Kenneth predeceased the deceased, having died in about November 1988. 8The deceased left a Will that she made on 8 November 2005, Probate of which was granted, by this Court, on 14 March 2011. By that Will, the deceased: (a) left a legacy of $4,000 to each of five named grandchildren, namely, Alexandra Joanne Goldsmith, Danielle Kristen Goldsmith, Rodney Kenneth Goldsmith, Michael Andrew Goldsmith, and Justin Benjamin Goldsmith, for her, or his, use absolutely; (b) left a legacy of $10,000 to the Plaintiff, with the wish "that this money be used as a deposit on a home"; (c) left the residue of the estate to the Defendant and to Stephen in equal shares as tenants in common. 9In the Will, the deceased declared that the Defendant shall have the option of purchasing a property at Sussex Inlet. However, in September 2008, the deceased transferred that property to him, for no consideration. 10The Will specifically provided that the deceased had "not made further provision for [the Plaintiff] because I have provided him with financial assistance during the course of his life". 11In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the property owned solely by the deceased at the date of death, was disclosed as having an estimated, or known, gross value of $865,462. No liabilities were disclosed. The estate was said to consist of real estate at Cronulla ($800,000), money on deposit ($58,277), and shares in companies ($7,185). (I have omitted any reference to cents and shall continue to do so. This may appear to result in minor mathematical miscalculations in the figures set out below.) 12In fact, the amounts that were obtained from the deceased's bank accounts totalled $54,997. 13How the cash on deposit ($54,997), together with other amounts received since the death of the deceased ($224 and the rent of $7,733) were spent, was not disclosed until the second day of the hearing, but it appears that the legacies to the grandchildren, totalling $20,000, nursing home costs ($1,507), probate filing fees ($1,308), the legal costs of obtaining probate and administration expenses ($5,826), and funeral expenses ($5,707), had been paid. As well, the Defendant reimbursed himself for "upkeep of the house" ($2,908) and paid outstanding council rates ($1,800) and water rates ($1,000). In addition, the Defendant also paid part of his legal costs and disbursements of the proceedings ($17,622). (What happened to the balance ($225) is not explained.) 14The parties agreed that, at the date of hearing, the deceased's estate consisted of the real property at Cronulla ($800,000), the shares ($8,760), and cash ($5,051). The cash included an amount of rent ($7,733) that the Defendant had received from renting the Cronulla property from about June 2012 (less some expenses that had been paid by the Defendant in respect of the Cronulla property). 15However, the legacy of $10,000 to the Plaintiff was not paid and no explanation for not doing so was given by the Defendant, other than he did not know that it should have been paid since proceedings were commenced. He provided no reason for not having paid it in the months before the Plaintiff commenced the proceedings, although counsel tendered a letter, sent shortly after the deceased's death, by the Plaintiff's solicitors to the Defendant's solicitors, stating that the Plaintiff was considering making a claim for a family provision order. 16Although in the Plaintiff's submissions, there was a reference to notional estate, the Plaintiff accepted, at the hearing, that there was no property that could, in fact, be designated as notional estate. It was accepted by both parties, however, that the transfer of the deceased's interest in real estate at Sussex Inlet, to the Defendant, by the deceased, during her lifetime, could be taken into account under s 60(2) of the Act. 17In calculating the value of the estate, finally available for distribution, the costs of the present proceedings should also be considered, since the Plaintiff, if successful, normally, will be entitled to an order that his costs be paid out of the estate of the deceased, whilst the Defendant, as executor, irrespective of the outcome of the proceedings, normally, will be entitled to an order that his costs be paid out of the estate. 18Initially, the Plaintiff's costs and disbursements of the proceedings, including counsel's fees, calculated on the ordinary basis, were estimated to be about $53,000 (inclusive of GST and upon the basis of a two day hearing). However, as the hearing took three days, the Plaintiff's solicitor provided an amended estimate of $64,052. 19Similarly, the Defendant's costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis, initially, were estimated to be about $59,000 (inclusive of GST and upon the basis of a two day hearing). However, the Defendant's solicitor also provided an amended estimate of $68,800. 20As stated above, part of the Defendant's costs have been paid ($17,622). The balance to be paid, if the estimate of the costs and disbursements proves accurate, is $51,178. 21The parties also agreed that if an order for provision is made for the Plaintiff, as well as a costs order for each of the parties, it will be necessary for the Defendant to sell the Cronulla property. The costs and associated expenses of sale, which were estimated to be about $22,000 (inclusive of GST), should also be taken into account in calculating the net distributable estate. 22The parties, thus, accepted, for the purposes of the hearing, that I should determine the Plaintiff's application upon the basis that the estimated value of the net distributable estate, after the payment of costs and expenses of the sale of the Cronulla property ($22,000) and the legal costs and disbursements (or the balance thereof as the case may be ($115,230), if the usual order is made, and the estimates prove accurate, will be $676,581. 23Of course, depending upon the result of the Plaintiff's claim and any order made as to costs, the costs and disbursements, if payable out of the estate, will be able to be formally assessed, unless otherwise agreed by the parties. It follows that the amounts referred to are estimates only. 24Because of the likelihood that the Cronulla property will have to be sold, the parties agreed that in the event that the Plaintiff succeeds, rather than providing a lump sum order, the Court should make an order calculated as a percentage of the proceeds of sale of the Cronulla property, after the deduction of the costs and disbursements of sale and the payment of legal costs and disbursements of the proceedings ordered to be paid. That seems to be an appropriate course to follow in all the circumstances of the case. 25The persons who are, or who may be, eligible persons, within the meaning of the Act, are the parties, and Stephen. Stephen has sworn an affidavit that has been read in the proceedings, as has the Defendant. 26There is no evidence that any of the grandchildren is an eligible person, although each, of course, is a beneficiary named in the deceased's Will. (The parties accepted that the grandchildren were not eligible persons.) 27The Act (as will be seen) provides that since each of the other eligible persons has not commenced proceedings, the Court may disregard his interests as a person in respect of whom an application for a family provision order may be made. However, the Court is not permitted to disregard the interests of each of the Defendant, Stephen, or the grandchildren, as a beneficiary named in the Will of the deceased.

The Statutory Scheme - The Act 28Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out some of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles to which I have referred. It is important that the parties are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions. 29The 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." 30Whilst 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. 31The 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 of his, or her, estate, to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary. 32The key provision is s 59 of the Act. The court must be satisfied, first, that an applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made. Each is a category limited to a family member or to a person with a particular status or relationship to the deceased. 33Relevantly, in this case, the Plaintiff relies upon the category of eligibility referred to in s 57(1)(c) of the Act, namely that he is a child of the deceased.

Inadequacy of Provision 34Then, if eligibility is found, the court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased, 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 the court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). In this way, it has been said that the court carries out a two-stage process. 35Allsop P in Andrew v Andrew [2012] NSWCA 308, has recently commented, at [6]: "... the expression of the task in s 59 is subtly different from the previous legislation. A prohibition against making an order unless satisfied of circumstances of an evaluative character, is different in emphasis from a permission to make an order if satisfied of circumstances of an evaluative character... The exercise of power to make the order is conditioned on the Court being satisfied of certain things in s 59(1). The order that may be made is described in s 59(2). The two elements are described in s 60(1)(b) as "whether to make [an] ... order and the nature of any ... order." Section 60(2) provides a detailed body of considerations for the task in s 59." 36Basten JA in Andrew v Andrew, at [26], put the differences this way: "As appears from the language of the relevant provisions set out at [66]-[67] below, the Succession Act differs from the Family Provision Act in three significant respects. First, although both conferred similar powers on the Court, the conditions of their exercise differ. The Family Provision Act required that the Court "shall not make an order ... unless it is satisfied that" the provision made by the testator is "inadequate": s 9(2). The Succession Act provides that the Court "may ... make a family provision order ... if the Court is satisfied that" the testator has not made "adequate provision" for the applicant: s 59(1). The changes in language may have been intended to remove double negatives, but there is a resultant change in emphasis. The apparent effect is to widen the discretion vested in the court. That which could satisfy a court that the provision made is "not adequate", for the purposes of the Succession Act, might not have been sufficient to remove the prohibition under the Family Provision Act, which operated in the absence of affirmative satisfaction that the provision was "inadequate". There may well be no bright line boundary between adequacy and inadequacy." 37Barrett JA said: "82 The court's task under the new legislation is in substance the same as that under the old. Three differences relevant to the kind of case under discussion may, however, be noted (I leave to one side as irrelevant to such cases the extension of the s 60(2) criteria to the question of "eligible person" status); and two postulated differences may be rejected. 83 First, the Succession Act provisions direct attention, upon the initial inquiry into adequacy, to provision made by the deceased's will and the intestacy laws. The former legislation referred merely to provision "out of the estate" but it was clear that the operation of the intestacy laws was to be taken into account in deciding what provision was available "out of the estate": see, for example, Smilek v Public Trustee [2008] NSWCA 190. 84 Second, the Succession Act provisions confine attention, upon that initial inquiry, to provision made by the will and the intestacy laws. There is no reference to provision made during the deceased's lifetime. In this respect, there is a departure from the Family Provision Act approach under which provision made in favour of the eligible person "either during the person's lifetime or out of the person's estate" was to be examined upon the initial inquiry into adequacy. 85 Attention may, however, still be given to provision made in favour of the applicant during the deceased's lifetime. That is now one of the factors to which regard may be had under s 60(1)(b) when the court is deciding whether to make a family provision order and the nature of the order: see s 60(2)(i). Under the Succession Act, therefore, provision made by the deceased while living thus has a continuing relevance with altered emphasis. Such provision is no longer something to be taken into account in deciding whether adequate provision has been made; but it may be taken into account in deciding whether an order should be made and the nature of the order. 86 The third difference to be noted is the Succession Act's more comprehensive catalogue of matters that may be taken into account in formulating an order for provision. Section 9(3) of the Family Provision Act empowered the court to "take into consideration" matters there stated in "determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person". Section 60(1)(b) of the Succession Act allows the court to "have regard to" the matters set out in s 60(2) "for the purpose of determining ... whether to make a family provision order and the nature of any such order". The Succession Act lists a greater number of such matters than did the Family Provision Act." 38Other 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, made is inadequate for the applicant's proper maintenance, education or 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 or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education or advancement in life of the applicant. 39It 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". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment". 40Under s 59(1)(c) 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. Under s 59(2), the court has regard to the facts known to the court at the time the order is made. 41"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". 42Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, 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." 43In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), at [18] stated: "'Proper maintenance' is not limited to the bare sustenance of a claimant [cf Gorton v Parkes (sic) [1989] 17 NSWLR 1], but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility." 44In 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." 45Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16: "Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541) In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274... In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said: 'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.' The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that: 'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'" 46In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J at [114] 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." 47In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)." 48The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, whereas "proper" prescribes the standard, of the maintenance, education or advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 at [72] and at [77], per Buss JA. 49Each of the words was 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." 50Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that: "It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in 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." 51In 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." 52In Vigolo v Bostin, at 228, Callinan and Heydon JJ said: "[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future." 53Santow J pointed out in Gardiner v Gardiner (NSWSC, 28 May 1998, unreported), that "adequate" and "proper" are independent concepts. He said, at 12: "'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied ..." 54In Palaganio v Mankarios [2011] NSWSC 61, at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life involve value judgments on which minds can legitimately differ, and there are no definite criteria by which the question can be answered. 55Until recently, it was unanimously thought that there are two stages of the determination. The first stage, provided for by s 59(1)(c), has been described as "the jurisdictional question": Singer v Berghouse [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 or advancement in life of a particular applicant. The Court does this by determining whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased and/or by operation of the intestacy rules, for the applicant. If it is not so satisfied, then the Court is precluded from making a family provision order. 56It is an element in determining whether "adequate" provision has been made for the "proper" maintenance, education or advancement in life of the applicant in all of the circumstances to be considered: Collins v McGain [2003] NSWCA 190 (Tobias JA, with whom Beazley and Hodgson JJA agreed). Whether the applicant has a "need" or "needs" is a relevant factor at the first stage of the enquiry. 57In Collins v McGain Tobias JA said: "42. Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies. ... 47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is "proper maintenance etc" of the eligible person. It is because of that context that, in the present case, the "proper maintenance etc" of the appellant required consideration of a need to guard against the contingency to which I have referred." 58In Devereaux-Warnes v Hall (No 3) at [81] - [84], 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]." 59"Need", of course, is a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]. 60As Callinan and Heydon JJ emphasised in Vigolo v Bostin, the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum" or "by looking simply to the question whether the applicant has enough on which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined. 61In the event that the court is satisfied that the power to make an order is enlivened (i.e. it is satisfied that the applicant 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 by the will of the deceased and/or by operation of the intestacy rules,), 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: s 59(2) and s 60(1)(b). 62Mason 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. 63Basten JA, in Andrew v Andrew, said of the two stage process referred to: "29 The combination of changes requires that the court address the nature of the exercise being undertaken. Three potential consequences may be identified. First, there is a simplification of the structure of the process. There is no longer a two-stage process required. A degree of artificiality has thus been removed. The court should now ask what, taking all relevant factors into account, would have been adequate provision for the applicant. There is no first stage of determining whether the actual provision was "inadequate", followed by a discretionary exercise of determining what would be adequate and what should in fact be done. ... 41 As noted above, the language of the Succession Act is not consistent with the two-stage inquiry which was a common feature of earlier legislation: cf Singer v Berghouse at 208-209. In Keep v Bourke [2012] NSWCA 64 the Court appears to have assumed that the two-stage process continued to operate under the Succession Act: at [24]-[29]. However, the issue not having been directly addressed, there is no constraint on this Court now adopting a different approach. Nor does earlier High Court authority construing an earlier statutory scheme govern the approach to be adopted to materially different legislative provisions." 64In Andrew v Andrew, Allsop P, at [6], said: "Whether the process engaged in by the Court in s 59 can still be described as "two-staged" in the sense discussed in Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 208-211 may be an analytical question of little consequence. The task involves an evaluative assessment and a choice as to consequence therefrom, appeal from which is governed by the principles concerning discretionary judgments: Singer v Berghouse at 211 and DAO v The Queen [2011] NSWCCA 63; 278 ALR 765 at [93]." 65Barrett JA disagreed with Basten JA, in Andrew v Andrew, saying: "65 This is the second occasion on which this Court has been called upon to deal with a claim under s 59 of the Succession Act. In the earlier case, Keep v Bourke [2012] NSWCA 64, the Court proceeded on the basis that approaches taken under s 7 of the now superseded Family Provision Act 1982 remained relevant and applicable. That matter was explored in greater detail in the course of argument in the present case. For reasons I am about to state, I am of the opinion that the earlier approaches should continue to be followed in cases such as the present case and Keep v Bourke, that is, cases in which the applicant is a child of the deceased and no previous order for provision out of the estate has been made in favour of that applicant. ... 79 First, it is necessary, having regard to s 59(1)(c), for the court to be satisfied that, at the time when it is considering the application, "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person". Whereas the former s 9(2) provided that an order was not to be made unless the court was "satisfied" in the specified way, the present legislation permits the court to make an order if "satisfied" in the specified way and, by necessary implication, precludes the making of an order if the court is not so "satisfied". 80 Second (and if the court is "satisfied" in the specified way), the "family provision order" that the court is empowered to make is, under s 59(2), "such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made"; and the court may, pursuant to s 60(1)(b), have regard to the matters specified in s 60(2) in deciding whether to make an order and the nature of the order. 81 Under s 59 and s 60, therefore, the task of the court, in a case of the kind under discussion, is: (a) to determine the extent of the provision made for the maintenance, education and advancement in life of the applicant by the deceased's will or the intestacy laws; (b) to form an opinion of the adequacy of that provision; (c) if the opinion is one of inadequacy, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased person for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the court at the time the order is made; and (d) in making that evaluative judgment, to take into account, as discretionary factors, the matters in s 60(2). ... 94 As stated in Keep v Bourke (above), the structure and effect of the Succession Act provisions warrant continuing adherence to the two-stage approach indicated by the decisions of the High Court in Singer v Berghouse and Vigolo v Bostin." 66I note also that in Verzar v Verzar [2012] NSWSC 1380, Lindsay J said: "92 I refrain from characterisation of these elements of the case as "stages" because that is terminology associated with the Family Provision Act 1982 (NSW) and Singer v Berghouse (1994) 181 CLR 201 at 208-211. Since Andrew v Andrew [2012] NSWCA 308 (14 June 2012) per Allsop P at [5]-[6] and Basten JA at [27], [29] and [41] a single judge of the Court is bound, in my assessment, to regard the two-stage decision-making process identified in Singer v Berghouse, and confirmed by Vigolo v Bostin (2005) 221 CLR 191, as superseded by enactment of ss 59-60 of the Succession Act. 93 Although the provisions of ss 59(1)(c) and 59(2) might formerly have been treated, respectively, as re-embodiments of the first and second of the two-stages of decision-making identified in Singer v Berghouse, the test to be applied in Family Provision cases must be taken by me to have been modified." 67It seems to me, with great respect to those who disagree, that the amendments introduced by the Act do not require, or justify, a different approach. That approach, adopted in the myriad of cases determined under the Act, including Keep v Bourke [2012] NSWCA 64 (in which Macfarlan JA (except as to amount of provision) and Tobias AJA agreed with Barrett JA), requires a trial Judge to continue to follow the two stage approach in determining cases under the Act, until any uncertainty is resolved. As Allsop P said, "it may be an analytical question of little consequence" since what has to be decided by the Court is whether to make a family provision order and the nature of any order. 68Section 60 of the Act, at least in part, is new. It provides: "(1) The court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the "applicant") is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the Court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person - the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered." 69It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew at [37] as "a multifactorial list", and by Lindsay J in Verzar v Verzar, at [123], as "a valuable prompt" to which the court may have regard, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order. The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of such of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender. 70Considering 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 s 60(1)(a), many of the matters in s 60(2) will be largely, if not wholly, irrelevant. 71However, the section suggests that the question of eligibility overlaps with the substantive determination, namely whether to make a family provision order and, if so, the nature of any such order. 72There is no definition in the Act of "financial resources" (which term is only referred to in s 60(2)(d)). However, there is a definition of that term in s 3 of the Property (Relationships) Act 1984, which I consider helpful: "'financial resources' ... includes: (a) a prospective claim or entitlement in respect of a scheme, fund or arrangement under which superannuation, retirement or similar benefits are provided, (b) property which, pursuant to the provisions of a discretionary trust, may become vested in or used or applied in or towards the purposes of the parties ..., (c) property, the alienation or disposition of which is wholly or partly under the control of the parties to the relationship or either of them and which is lawfully capable of being used or applied by or on behalf of the parties to the relationship or either of them in or towards their or his or her own purposes, and (d) any other valuable benefit." 73Of course, s 60(2)(d) refers also to "earning capacity", which means no more than the capacity to find employment to earn or derive income. 74Furthermore, 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, whilst others do not. Importantly, also, many of the matters in sub-s (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1). 75Leaving aside the question of eligibility, the Court may have regard to the matters referred to in s 60(2) on "the discretionary question", namely whether to make an order and the nature of any such order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently. 76This 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." 77And 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 of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors." 78As was also pointed out by Barrett JA, in Andrew v Andrew, at [88] - [89]: "... leaving aside its relevance to the "eligible person" inquiry, the s 60(2) catalogue is directed to the question of what, if any, order for provision should be made and is not, in terms, applied to the initial question of the adequacy of the provision made by the will or the intestacy laws. 89 It can be said at once that the s 60(1)(b) directive corresponds with that in the former s 9(3) to the extent that it relates to the decision regarding provision to be made. There is no express legislative intention, under either piece of legislation, that the enumerated factors are to be taken into account in deciding the initial question of adequacy of provision. There is accordingly no reason to think that those factors are to be afforded any special relevance in approaching the adequacy question. But they will, at that point, be given, independently of s 60(1)(b), such weight as they deserve in their own right as indicators of the "adequacy" question. As the primary judge recognised at [57], this is consistent with what was said by the High Court in Singer v Berghouse in relation to the former Act." 79Section 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. 80Section 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. 81The order for provision out of the estate of a deceased person may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner 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). 82The order may be made, relevantly, in this case, in relation to the estate of the deceased. As 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). 83Section 66 of the Act sets out the consequential and ancillary orders that may be made. 84Any family provision order under the Act will take effect in this case, unless the court otherwise orders, as if the provision was made in a codicil to the will of the deceased (s 72(1) of the Act). 85Section 99 of the Act provides that the Court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit.

Other Applicable Legal Principles - Substantive Application 86Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were given in the context of the previous legislation, they remain apt in a claim such as this one. 87Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, 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 function to achieve some kind of equity between the various claimants. The Court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act the correction of the hurt feelings, or sense of wrong, felt by an applicant. Rather, the Court's role is of a specific type and goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance, education or advancement in life of an applicant. 88In 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". Freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the court": Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 19. 89In Stott v Cook (1960) 33 ALJR 447, Taylor J, although dissenting in his determination of the case, observed, at 453-4, that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged." 90Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education or advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (NSWSC, Young J, 17 May 1996, unreported); Vigolo v Bostin at 199 and 204; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. 91In all cases under the Act, what is adequate and proper provision is necessarily fact specific. An inflexible approach cannot be taken in assessing the questions to be answered. 92The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1909) 29 NZLR 959 at 966. 93Where the Court is satisfied that provision ought to be made, then it is no answer to a claim for provision under the Act that to make an order would be to defeat the intentions of the deceased identified in the Will. The Act requires, in such circumstances, for the deceased's intention in the Will to be displaced: Kembrey v Cuskelly [2008] NSWSC 262 at [45]. 94An important consideration is whether, in all the circumstances, the community expectation would be for greater benefaction to have been made for the proper or adequate provision of the person seeking provision. Gleeson CJ observed in Vigolo v Bostin, at 199, that the justification for interference with freedom of testation is to be found in the failure of a deceased to meet the obligations, which the community would expect in terms of maintenance, for those persons within the class of eligible persons. 95As Allsop P said in Andrew v Andrew, at [16]: "If I may respectfully paraphrase Sheller JA [in Permanent Trustee Co Limited v Fraser (1995) 36 NSWLR 24 at 46F-47B], the Court in assessing the matter at s 59(1) and the order that should be made under s 59(1) and (2), should be guided and assisted by considering what provision, in accordance with prevailing community standards of what is right and appropriate, ought to be made. This, Sheller JA said ... involved speaking for the feeling and judgment of fair and reasonable members of the community. It is to be emphasised that s 59(1)(c) and s 59(2) refer to the time when the Court is considering [an application for a family provision order] and the facts then known to the Court. The evaluative assessment is to be undertaken assuming full knowledge and appreciation of all the circumstances of the case. This ... makes the notion of compliance by the testator with a moral duty (on what he or she knew) apt to distract from the statutory task of the Court." 96In relation to a claim by an adult child, the following principles are useful to remember: (a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe in terms of universal application, the obligation, responsibility, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801. (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death if he or she is able to do so. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia. (d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland Deceased [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co. of Australasia Ltd (1979) 143 CLR 134 at 148; Goodman v Windeyer at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons to whom the applicant, however reasonably, wishes to support, where there is no obligation to support such persons: Re Buckland Deceased at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams, at [86]. (e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) [1981] NSWLR 532 at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45. (f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003) at [181], [182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17]. (g) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd at 149. (h) Although some may hold the view that equality between children requires that "adequate provision" not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the Court's determination of an applicant's case. 97In Blore v Lang (1960) 104 CLR 124, Fullagar and Menzies JJ said, at 135: "The ... legislation [is] for remedying, within such limits as a wide discretion would set, breaches of a testator's moral duty to make adequate provision for the proper maintenance of his family - not for the making of ... a fair distribution of ... [the] estate ... Equality is not something to be achieved by the application of the Act, although in some cases equality may set a limit to the order to be made - for instances, where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same."

Estrangement 98On the topic of the relationship between an applicant and the deceased, Campbell JA (with whom Giles JA and Handley AJA agreed) noted, in Hampson v Hampson [2010] NSWCA 359: "[80] The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge." 99Because, in this case, there are matters raised that bear on the quality of the relationship, being that the Plaintiff and the deceased were said to be estranged for about 8 years before her death, it is necessary to set out some other general principles which should be remembered: (a) The word 'estrangement' does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties. Whether the claim of the Plaintiff on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case: Lathwell v Lathwell [2008] WASCA 256 at [33]. As Basten JA recently stated in Andrew v Andrew at [40]: "It [estrangement] is a term sometimes applied to the "natural" process of separation of child from parent, which often peaks in adolescence, but may well continue into adult life, sometimes without resolution of the underlying tension. At least when kept within reasonable bounds, the negative consequences of such a process should arguably be ignored or at least not given disproportionate significance when assessing the expectation that a parent will provide for a child whose condition in life is financially disadvantageous, when compared with other claimants on the testator's conscience." (b) The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 at [88]-[94]; Foley v Ellis. (c) There is no rule that irrespective of a Plaintiff's need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to "ample" provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases. (d) The Court should accept that the deceased, in certain circumstances, is entitled to make no provision for an applicant, particularly in the case of a child "who treats their parents callously, by withholding without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility": Ford v Simes [2009] NSWCA 351 at [71] per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed. (e) As was recognised by the Court of Appeal in Hunter v Hunter (1987) 8 NSWLR 573 at 574 - 575 per Kirby P (with whom Hope and Priestley JJA agreed): "If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator's will." (f) Even if the applicant bears no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the Court's discretion under s 59(2) of the Act to make a family provision order where the jurisdictional requirements of s 59(1) are met. That the applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them continued companionship and support, is a relevant consideration: Keep v Bourke, per Macfarlan JA, at [3]. (g) The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, will operate to restrain amplitude in the provision to be made: Keep v Bourke, per Barrett JA, at [50]; Wheatley v Wheatley [2006] NSWCA 262, at [37]. As Basten JA said in Andrew v Andrew, at [57], referring to a period of estrangement: "Although the mother's reaction was entirely understandable and might have been shared by many parents, I am not persuaded that it justified the reduction of the daughter's share in the estate from that which might otherwise have been expected to a largely nominal sum." (h) Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. In addition, s 60(2)(m) permits the Court to consider the character and conduct of the applicant. Care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time: Foley v Ellis, per Sackville AJA, at [102]. 100I make it clear that I do not intend what I have described as "applicable legal principles" or "statements in other cases" to be elevated into rules of law. Nor should the discretion, at the second stage, be constrained by statements of principle found in dicta in decisions on similar facts. I identify them merely as providing useful assistance in considering the statutory provisions the terms of which must remain firmly in mind. 101As Lindsay J said in Verzar v Verzar, at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."

The Witnesses 102As in many cases in which the relationship of the applicant and the deceased is in issue, it is necessary to assess the witnesses who gave evidence about observations of that relationship. There is also the additional difficulty of assessing evidence concerning handwritten statements made by the deceased. 103There were many issues raised in the affidavits. The resolution of this unfortunate family dispute, between brothers, has not been assisted by these affidavits which explored, in parts, quite irrelevantly, the minutiae of what each alleges was his own conduct and that of other family members towards each other and to the deceased (Kirby v Sims [2011] NZHC 935). 104I am reminded, in this case, of what Campbell J (as his Honour then was) said in Cairns v Cairns [2006] NSWSC 364: "13 In the present case, the ambit for dispute about matters which are fundamental to the plaintiff's claim does not strike me as great. The fundamental facts about the family relationships and the financial and domestic circumstances of the family members are not in dispute. There are some matters which are traversed in affidavits, but they do not seem to be at the core of the case. They provide another example of the practice, encountered far too often in both Family Provision Act 1982 cases and claims under the Property (Relationships) Act 1984, of affidavits setting out the deponents' versions of small details of the domestic virtues or shortcomings of each other. Where the truth lies concerning such matters very often does not help the Court at all in deciding whether to make an order, and if so what order. Very often, one finds that such detail is not referred to at all by counsel in written submissions or oral address. Putting that sort of detail into affidavits has no effect but to increase costs unnecessarily. For example, in the present case, I doubt that I will be assisted in reaching a conclusion by finding whether the plaintiff did, or did not, refuse to clean the bathroom and toilet." 105Numerous objections were taken to the affidavit evidence (requiring over half a day to be spent dealing with the objections). 106It is impossible to reach clear findings on all of the issues, some of which could not tested because they involve events that occurred many years ago. The Court can never know all the circumstances. Nor can this judgment hope to identify all of the detail of the affidavits filed, or to reconcile the many contradictory expressions of fact and opinion that are revealed by those affidavits. I have so far, and shall hereafter, record my findings on what I regard as the most important issues. What I have dealt with is all that is necessary and appropriate in this particular case. 107As has also been stated, more than once, "it is a comparatively rare case where denigrating the character and motives of a family member will assist the cause of another in the eyes of a Judge" trying a claim for a family provision order: Williams v Aucutt [2000] 2 NZLR 479, per Blanchard J, at [71]; cited in Auckland City Mission v Brown [2002] 2 NZLR 650, at [15]. That statement should have been brought more clearly to the attention of the parties and the witnesses in this case. 108The principal witnesses who were cross-examined were the Plaintiff, the Defendant, and Stephen. In referring to the evidence of these and others, I shall later endeavour to align the evidence given with the factors that I consider under the Act. However, before so doing, I should set out my views on the credibility of each of the witnesses who were cross-examined. 109The Plaintiff was cross-examined extensively. The principal areas of cross-examination related to his treatment of the deceased and what the deceased had written about that treatment, as well as his conduct towards her generally, particularly during the period between about 1991 and 2000. 110The basis of the cross-examination was, so it seemed, notes handwritten by the deceased, only some of which are dated, but which seem to be for the period around 1997 and 1998. 111The deceased stated that the Plaintiff would often ask her for money and when it was refused, he either stole it or threatened her with violence. She states that she gave him cheques and cash in relation to his home at Oyster Bay. 112On several occasions, she wrote that the Plaintiff had punched her in the face; that he had smashed down her bedroom door; that on another occasion, he had hit her with a rolled up newspaper. She accused him of verbally abusing her and calling her stupid, horrible or suffering from a mental disorder such as Alzheimer's disease or schizophrenia. She also wrote that the plaintiff verbally abused her in front of others. 113She expressed concerns relating to other people who were being invited to stay at her home, without any contribution being made by them to expenses. She did not, generally, refer to any of these guests by name, although she does refer to the sister of Rebecca, occasionally. 114The deceased was particularly opposed to Rebecca, and accused her of stealing, abusing her, interfering with her possessions and generally not performing any kind of housework or of providing any assistance around the house. 115The deceased also wrote that the Plaintiff threatened her with violence if she criticised Rebecca. The deceased wrote that she believed the Plaintiff and his girlfriend were trying to get her put into care so they could have the sole occupation of the house and that the Plaintiff had taken items from the house and either sold them or thrown them away without her permission. 116In relation to the Defendant, the deceased wrote that the plaintiff assaulted him, which had resulted in the deceased taking the Defendant to the police and applying for an AVO against the Plaintiff. 117The deceased also wrote that the Defendant had put locks on her doors and had provided her with a mobile phone. The Defendant had also extended his mortgage in order to provide a deposit for the Oyster Bay property for the Plaintiff. 118She also wrote that she was upset she had not helped her other two sons more and that the plaintiff and Rebecca were substantially better off because they paid no expenses and were receiving money from her. 119The Plaintiff denied the conduct about which the deceased made complaint. By way of example, he said in cross-examination: "A. ... I was never cruel to my mother. I knew of the trouble she had with the tablets. I was never cruel, rude, aggressive, threatening and I certainly never laid a finger on her. ... Q. And your mother said that she wouldn't put up any longer with the noise, the abuse and people arriving to stay indefinitely without any contribution to much larger bills? A. Never happened, sir. Q. Never happened? A. Never happened, sir, completely deny it. Q. Your mother said that she had abuse from you all day Sunday, "Stupid, horrible, nutty as a fruit cake"? A. Completely deny it, sir, never spoke foul to my mother. Q. Your threatened your mother, you'll smash in "will smash face in if I say anything to correct the girls. They want whole house free with free rein"? A. Completely deny it, sir, we were mostly out the back there was one back room or out in the garage to let my mother have her peace and privacy. Q. Your mother complained of violence, doors smashed, hit on face, didn't she? A. Ah, that's correct, sir, the Doors Plus in that area according to these notes must have done a roaring business. Q. You hit her in the face, didn't you? A. Completely deny it, sir. Q. You abused her in front of other people? A. Completely deny it. ... Q. And I have put to you and I have asked you questions about those most of those items. Would you read them to yourself? Do you agree or disagree with any of the complaints that your mother made in that document? A. I have read most of these and completely disagree, again the doors smashed and that sort of stuff, never there was no smashing of anything in the house, sir. Yes, the pages and the pages that were written about me, you can shorten it up disagree with everything. I never laid a finger on my mother. Out of the times that brothers and/or police had come, no one could ever find any evidence. I have never been charged with anything. Have I? ... We had a on/off relationship at times when it was getting to the end she was starting to act a little bit funny and that's why I contacted South Care, strange things were from happening like when she would think I was my father and started bashing into me. The only one that had any violence perpetrated against them was when my poor mother thought I was my father and started laying into me and then said, "Ken, Ken, Ken, you used to lock me out of the bedroom all the time". 120That the deceased firmly held the views expressed by her cannot be doubted. She expressed some of the views about the Plaintiff to the police and to her doctor. However, I bear in mind what was said by the Court of Appeal of New Zealand in In re Green, deceased; Zuckerman v Public Trustee [1951] NZLR 135 at 141 (which passage was approved by the majority of the High Court in Hughes v National Trustees, Executors and Agency Company of Australasia Ltd, at 152): " ... the testator should not be allowed from the grave to condemn the child and to impose upon that child the positive duty of disproving the allegations as an essential preliminary to prosecuting the claim." 121I remember, as well, that the fact a statement is made by the deceased does not mean, necessarily, that the statement must unquestionably be accepted as true. Such a statement may be just as inaccurate, or as unreliable, as a statement of a living witness, whether as the result of mistake, or failure of memory, or deliberate untruth: Worsley v Solomon [2008] NSWSC 444, per McLaughlin AsJ, at [35]. 122I formed the view that, generally, the Plaintiff was attempting to give his evidence truthfully. However, I reject the suggestion that the comments that she made in the notes were, in fact, referable to the Defendant, rather than the Plaintiff. To reach such a conclusion, I would have to find that the deceased was unable to differentiate between the two, or that she was suffering from a delusion. There is simply no evidence to support that the deceased was suffering from any such conditions. 123Similarly, I doubt that his relationship with the deceased was quite as he portrayed it, or that he did not have any disagreements with her. For example, I am satisfied that the event about which Stephen gave evidence, about the Plaintiff's rudeness to the deceased, observed by Stephen at a time when the Plaintiff did not know that he was there, did occur. The manner in which the Plaintiff spoke to the deceased on this occasion, does him no credit. 124I also think it likely that having Rebecca in the house, and that she did not seem, to the deceased, to be contributing financially, caused friction between them. I am satisfied that the deceased made it very clear that she did not wish Rebecca to stay. Yet, stay Rebecca did, and this, undoubtedly was a source of tension. 125Yet, I cannot conclude, based upon the notes written by the deceased, and what she said to others, when I also consider the Plaintiff's denial, under oath, that his conduct was as bad as was suggested in the notes. In this regard, I cannot be satisfied, on the balance of probabilities, that the allegations of violence said by the deceased to have been perpetrated by the Plaintiff upon her, occurred. 126Important, in my view, in expressing this view, I note the following matters: (a) The deceased when providing a reason for making the provision that she did for the Plaintiff in the Will, did not refer to the Plaintiff's conduct about which she complained so regularly and colourfully. I infer that she was asked by the draftsman of her Will, to explain the reason(s) for making the limited provision that she did for the Plaintiff. One would have thought that she would have referred to his conduct if it had been as bad as she had painted it to be in some of her handwritten notes. (b) No explanation was offered for her not stating that the Plaintiff's conduct towards her was a reason for not making more provision for him than she did. (c) A number of disinterested witnesses, called by the Plaintiff, gave evidence that he and she had not observed any conduct of the type, or in fact, any violent conduct, of the Plaintiff towards the deceased. Whilst it is correct to say that the Plaintiff would have been unlikely to behave badly towards the deceased in front of others, each describes the Plaintiff in terms starkly different to the picture painted by the Defendant and Stephen. (I refer to his and her evidence later.) (d) In 2008, the deceased replied to the Plaintiff's correspondence enclosing photographs. Not only did she respond, but the circumstances of her identifying, and then locating, the marriage celebrant who appeared in one of the photographs that the Plaintiff had sent, contacting him to obtain the Plaintiff's address, so that she could write a letter to the Plaintiff, speaks in favour of the deceased not bearing any ill-will towards the Plaintiff at least by that time. Furthermore, the terms of the letter that the deceased wrote to the Plaintiff demonstrates that she did not harbour any grudge towards him. That letter ends with the deceased wishing the Plaintiff "every happiness". 127No other witness was called by the Defendant, except Stephen, to corroborate any of the events about which the deceased constantly complained. 128I do not accept the Defendant's submission that the misconduct engaged in by the Plaintiff towards the deceased entitles the court to say that the Plaintiff has forfeited or abandoned his moral claim on the bounty of the deceased. 129Despite the conclusion about the Plaintiff's overall conduct towards the deceased, I must remember that he did not see her for about the last 10 years of her life. Whilst, with the guidance of his wife, he attempted to resurrect his relationship with the deceased, I must also consider that this was not achieved and that she spent those years without the benefit of one of her children. 130Steven Graham Rackley, a very good friend of the Plaintiff, who also knew the deceased, swore an affidavit and was cross-examined. He gave the following evidence in his affidavit: "... 7. Ian spent an enormous amount of time caring for his mother whom I called "Betty". I know this because I observed him assisting Betty on many occasions when I visited. ... 10. In or about 1992/1993 I assisted Ian in cleaning up his mother's home and yard which was overrun by tonnes of rubbish. We removed and dumped at the tip general household rubbish, fridges, toasters, rusted trailers, washing machines, piles of newspapers, rodent nests and many other items of household rubbish. 11. It was obvious to me that Betty was having difficulty in caring for herself. She was unable to clean the home and I observed her on a number of occasions whilst preparing meals, that she left pots on the stove to boil dry and nearly set fire to the kitchen. I remember this occurring on a number of occasions. Ian and I would clear the smoke from the house, was[h] the black from the walls and remove all the grease. ... 16. Ian worked with me on occasion in the music industry ... I experienced Ian being constantly forced to turn down these opportunities ... due to his self-imposed responsibility in caring for his mother in her deteriorating condition. ... 19. I attempted to help Ian in caring for his mother, however this became very difficult as she would become very confused if I was there and Ian was not. Sometimes she thought I was Ian or another one of her sons. In the end I stopped going. ... 23. The entire time I have known Ian I ... observed that he placed his mother's needs before his own working or social life. ... 24. I observed in the 21 years that Ian was always caring to his mother Betty. I observed that he had given away everything to take care of her and even lost himself wonderful employment opportunities in order to place Betty's needs first. 25. I never saw Ian raise a hand or his voice to his mother or treat her badly in any way." 131Kathleen McDonald, the sister of the deceased, swore an affidavit and was cross-examined. She confirmed that when the Plaintiff moved back to the deceased's home following the sale of his property at Oyster Bay to Stephen, he "worked hard to return what I had seen to be [a] neglected home back to a clean, habitable and repaired state". 132Kathleen also described her observations of the Plaintiff providing "endless support throughout his father's passing". 133However, she admitted that in the period between about 1995 and 2000, she did not see the deceased very often, "probably once, twice a year", but that she was in constant contact with the Plaintiff. She accepted that during this period, the deceased wanted Rebecca out of the house, because the deceased resented Rebecca, but that the deceased had not said anything to her about wanting Ian out of the house. 134Kathleen denied that the deceased complained to her that Ian had mistreated her, but if she had, Kathleen stated "I wouldn't have believed it in any case". In re-examination, she confirmed that after Kenneth died, the deceased never complained to her about the Plaintiff's conduct. 135Both Steven and Kathleen impressed me as honest witnesses and people who were trying to tell the truth as best as they could recall it. I accept the evidence of each. 136Jennifer Davies, the former wife of the Defendant gave evidence by telephone. I do not regard her as a completely disinterested witness because it was clear from her evidence that she harboured significant animosity towards the Defendant. However, it was not put to her that the animosity led her to give false evidence. 137In any event, it appears that her observations were limited to the period, principally, before 1989, although she maintained less regular contact with the deceased until 1995, that being the last year in which she saw the deceased. She never met Rebecca and was unable to say anything about the deceased's relationship with the Plaintiff after she came onto the scene. 138Jennifer describes the deceased, in 1995, as "sort of losing it a little bit I would say dementia wise", that "she wasn't herself" and that "you could tell that she wasn't herself mentally". 139Her observation of the relationship with the Plaintiff was that "she loved Ian. He did so much for her ... he would mow the lawns and clean the house ...". I am satisfied however, that this description is more apt in the period before 1989. 140I accept Jennifer's evidence where it conflicts with the evidence of the Defendant in relation to the financial contribution made by the deceased to the finances of the Defendant's family. I accept that the deceased made a weekly payment to Jennifer to supplement the amount that the Defendant provided to her. I also accept that it was necessary for the deceased to pay for the flights that the Defendant's children were required to take to return to Sydney. 141Finally, I accept Jennifer's evidence that in the period between about 1982 to 1989, she observed fights within the family, and whilst I think it unlikely that the Defendant was the instigator of "every" fight, it may be that he was the instigator of some of them. It is clear that there was little love between the siblings. 142The final witness of the Plaintiff was one Leza Eckford. She was not prepared to attend for cross-examination and had informed the Plaintiff's solicitor that "she didn't want to be further involved". Despite this, having read the affidavit of Leza, I thought that much of what she said was canvassed by other witnesses and that I would give less weight to her evidence than otherwise I might, particularly if that evidence, alone, contradicted the evidence of the Defendant. 143Having observed the parties and Stephen, I am satisfied that I am able to express conclusions on the major conflicts in the evidence without giving a great deal of weight to Leza's evidence. 144I found the Defendant and Stephen each to be a witness who was very hostile to the Plaintiff. This is not to say that his evidence, for that reason, should not be believed, but it is necessary to consider that evidence with the obvious hostility towards each other in mind. 145I am satisfied that the deceased was fully aware of the lack of relationship between her children and observed their inter-relationship. It is clear that, at times, their hostility towards each other extended to violence. 146I have earlier mentioned that I accept Stephen's evidence about hearing the Plaintiff speak to the deceased in a way that does not do the Plaintiff any credit.

Further Additional Facts 147I 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(2) of the Act. Where necessary, I shall express the conclusions to which I have come. I do so, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar, at [124]), but in order to complete the recitation of facts that enable me to determine the questions that must be answered under the Act. (a) any family, or other, relationship between the applicant and the deceased person, including the nature and duration of the relationship 148The Plaintiff lived with his parents and then the deceased for most of his life until about 2000. He seems to have been a loving and caring son, particularly in the period when his father was ill, and after he died. Then, he moved back to live with the deceased, and he lived with her for a little less than a decade. During this period, I find that their relationship was not always smooth and that there were periods during which there was conflict between them. 149It seems that the Plaintiff was required by the deceased to make a choice between the deceased and Rebecca. It was this choice that principally led to them leaving the deceased's home. 150In 2009, the deceased wrote to the Plaintiff. The letter included the following passages: "Thank you for sharing your lovely photos and family with us. Please try to keep in touch if only a card at Christmas, to your nephews, specially Michael; married now and said he had not many relatives, ... I wish you every happiness. I remember you used to drive nephews party guests as children, home in the truck in back, singing." 151The Plaintiff concedes that his relationship with the deceased had deteriorated before he left. (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 152There is no definition of the "obligations" or "responsibilities" to which the sub-section refers in the Act. One might conclude, however, that what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities owed to the applicant by the deceased. 153An obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life is recognised in the case of a child. In Flathaug v Weaver [2003] NZFLR 730 at 737, the origin of the obligation which underpins the Act's recognition of the duty owed by a parent to a child was put in this way: "The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives." (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 154I have dealt with the nature and extent of the estate. It is not a large estate. (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate 155The Plaintiff gives evidence of his current financial and material circumstances as follows: Assets (a) Motor vehicle $ 6,000 (b) Sydney Credit Union account $ 50 (c) Boat $16,000 $22,050

Liabilities (a) MasterCard $ 7,500 (b) Personal loan $28,000 $35,500

Financial resources (a) Superannuation $49,000

156In the financial year ending 30 June 2010, the Plaintiff's estimated taxable income was $45,801, the tax on which was assessed at $6,872. 157The Plaintiff gives evidence that his total monthly expenditure is $2,541. 158The Plaintiff sets out his needs. He states that he has very limited superannuation and he will need a capital sum for his retirement, which he says is imminent. He has a chronic degenerative disease in his shoulder, and will require a total shoulder reconstruction. He has always been employed doing manual labour. 159In substance, he submits that he requires a capital sum for the exigencies of life and for the future. 160The Defendant sets out his financial resources. He asserts that he has a bank account, a motor vehicle and two parcels of real estate, including the Sussex Inlet property, with a total value of $882,500. The Defendant says that he has a personal loan of $25,000. 161Stephen does not say anything about his financial resources. However, he admitted that he purchased the Oyster Bay property from the Plaintiff by paying out the amount that the Plaintiff owed to his mortgagee (about $68,000) and that he sold it a few years later for $275,000. Of course, he did a great deal of work on the property before its sale. 162In Sammut v Kleemann [2012] NSWSC 1030, I wrote: "[134] There is no statutory mandate requiring a beneficiary, or beneficiaries, to provide such details of his, or her, financial circumstances to the court. A beneficiary is entitled to elect to remain silent in relation to all matters, and in particular, as to his, or her, financial resources (including earning capacity) and financial needs, both present and future. In addition, as here, a beneficiary may expressly decline to submit that he, or she, has a competing financial need and provide no evidence of financial resources or needs. [135] Where, as in this case, the beneficiaries have declined to provide such evidence to the court, the important question is what inference, if any, should be drawn from the beneficiaries' silence? [136] In the present case, the beneficiaries are parties to the proceedings. Thus, the court may assume that they do not wish their financial resources (including earning capacity) and financial needs, both present and future, to be taken into account: Matthews v Wear [2011] NSWSC 1145, at [45], per Macready AsJ. [137] The question, then, is what flows from a beneficiary's silence? The answer is, in those circumstances, that the court is entitled to infer that the beneficiary has adequate resources upon which to live and that he, or she, does not wish to advance a competing financial claim upon the bounty of the deceased: Anderson v Teboneras [1990] VicRp 47; [1990] VR 527 at 535, per Ormiston J; Frey v Frey (as personal representatives of the estate of HE Frey, dec'd) [2009] QSC 43, at [148], per A Lyons J; Edgar v Public Trustee for the Northern Territory, at [54], per Kelly J; Neil v Jacovou [2011] NSWSC 87 at [248] per Slattery J; Haklany v Gittany [2011] NSWSC 1549 at [49]-[51] per Slattery J; Hyatt v Covalea [2011] VSC 334, at [128], per Zammitt AsJ; Davis v Davis [2012] NSWSC 201, at [80], per Slattery J; Paola v State Trustees Ltd [2012] VSC 158, at [46], per Zammitt AsJ; and Collins v Mutton [2012] NSWSC 548. [138] However, the claims of a beneficiary, as the chosen object of the deceased's testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, and also as a person whose interest in the estate may bear the burden of the order made in favour of the applicant, are to be borne in mind. (It is to be remembered that the court must specify, amongst other things, 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: s 65(1)(c) of the Act.) [139] Where there is no evidence from the beneficiary, it is those claims (ie as the chosen object of the deceased's testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, or as a person whose interest in the estate may bear the burden of the order made in favour of the applicant), rather than any financial claim upon the bounty of the deceased, that should be considered. Put another way, and using the oft-quoted words of Salmond J in Re Allen (dec'd); Allen v Manchester [1922] NZLR 218, at 220, the court is not able to have regard to "the means" of the beneficiary, but the court may still consider "the deserts of the several claimants" and the "relative urgency" of the various moral claims upon [the deceased's] bounty"." 163I adhere to those views in respect of Stephen. 164Counsel for the Defendant acknowledged that the Defendant does not assert that he is a competing financial claimant upon the bounty of the deceased. (e) if the applicant is cohabiting with another person - the financial circumstances of the other person 165The Plaintiff lives with his wife. He sets out her financial circumstances as including a home, a motor vehicle, and a bank account, the total value of which is $210,000. She has superannuation of $124,532. She has a mortgage debt of $150,000. 166The Plaintiff's wife has advanced the Plaintiff $28,000 which she obtained from a mortgage redraw facility. She contributes to his surplus of expenditure over income. (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 167The Plaintiff says that as he has a chronic degenerative disease in his shoulder. He also says that he suffered post-traumatic stress disorder and currently suffers from depression and 'flashbacks' as a result of his father's accident and for the years after whilst assisting the deceased to make her claims for compensation. 168He states that there is a "possibility of developing glaucoma in the future as it is hereditary". However there is no other evidence about this. 169There is no evidence of the Defendant's current health. 170Stephen states that he has been undergoing counselling since the 1990's. There is no medical evidence upon which he relies. (g) the age of the applicant when the application is being considered 171The Plaintiff is currently aged 51 years, having been born in September 1951. (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 172The Plaintiff does not suggest that he made any financial contribution to the acquisition of the major asset of the estate of the deceased. However, he does say that he spent a significant amount of time assisting the deceased to obtain compensation following her husband's (his father's) death. 173He also says that when his father was injured in 1988 and until his death he looked after both of his parents and assisted the deceased in looking after his nephews, Justin and Michael, who are Stephen's sons. 174In 1991 and for the next nine years, the Plaintiff moved back into the deceased's home and he assisted her. 175In the last 18 months to two years before he finally left, the Plaintiff lived in the garage whilst the deceased rented his room. 176I am satisfied that, for the most part, the Plaintiff did make some contribution towards the welfare of the deceased. Whilst I have also concluded that there was some hostility and conflict between them, I am satisfied that by being there, whilst the Defendant and Stephen were not, that he did make a contribution to her welfare. 177However, I remember that during this period, the Plaintiff was living, with Rebecca, rent and occupation fee free in the shed of the deceased's home. This provides adequate consideration for what he did for her. Yet, I note that he did spend $2,000 to improve the "shed" (double garage) in which he lived. This expenditure was, essentially, for his benefit and comfort and there is no evidence that the expenditure added to the value of the deceased's house. (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 178The deceased made some provision for the Plaintiff during her lifetime, by providing financial and other assistance. Exhibit 3 identifies the cheques that the deceased wrote for the Plaintiff during the period 22 June 1989 to 10 April 1997. These total $93,451. Only some of the cheques are disputed. 179The Defendant submits that the deceased paid at least amounts totalling $36,006 (excluding disputed sums and renovation costs of the Oyster Bay property) for the benefit of the Plaintiff, for his rates, telephone and business expenses including truck repairs, mower repairs and registration, insurance and BP garage accounts. She also made some payments towards his mortgage debt. 180Even accepting the payment only of the amounts totalling $36,006, some provision was made for the Plaintiff by the deceased during her lifetime. 181As previously stated, the Plaintiff receives a legacy of $10,000 out of the estate of the deceased, unless a family provision order is made. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person 182While this sub-section permits the Court to accept evidence of the reasons for the provision, or lack of provision, it does not compel the Court to attribute any particular weight to that evidence, or to accept the deceased's statement as establishing the truth of what is asserted. 183I have earlier referred to the statement in the deceased's Will. 184Whilst the Court will consider any explanations given by the deceased in the Will, or elsewhere, for excluding a particular person as a beneficiary, such explanations do not relieve the Court from engaging in the enquiry required by the Act: Slack-Smith v Slack-Smith [2010] NSWSC 625, at [27]. What an explanation may do is cast light on the relationship between the deceased and that person, at least from the deceased's perspective. (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 185There is no evidence that the Plaintiff was being maintained, either wholly or partly, by the deceased for many years before her death. 186I have earlier referred to the payments made for, or on, his behalf. (l) whether any other person is liable to support the applicant 187There is no other person with a liability to support the Plaintiff, other than, perhaps, his wife. (m) the character and conduct of the applicant before and after the date of the death of the deceased person 188I have dealt with this issue already. (n) the conduct of any other person before and after the date of the death of the deceased person 189I am satisfied that there is nothing in the conduct of either the Defendant and Stephen that is relevant. Each is a chosen object of the deceased's testamentary bounty as a beneficiary named in her Will. 190It is not necessary to detail the conduct of the children of the deceased towards each other. (o) any relevant Aboriginal or Torres Strait Islander customary law 191This 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 192There are two matters that I have referred to earlier that bear consideration under this heading. The first is that the Defendant received the Sussex Inlet property from the deceased for no consideration. 193The second is that the Plaintiff sold the Oyster Bay property to Stephen, it seems at the behest of the deceased, for less than market value. Any contribution by the Plaintiff towards the value of that property passed to Stephen rather than to the Plaintiff.

Determination 194Being an "eligible person" is a necessary precondition to the court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. In this case, there is no dispute that the Plaintiff, as a child of the deceased, is an eligible person within the meaning of s 57(1)(c) of the Act. 195There is also no dispute that the proceedings were commenced within the time prescribed by the Act. 196Thus, I must first consider, whether, at the present time, adequate provision for the proper maintenance, education, or advancement in life, of the Plaintiff has not been made by her Will. 197Having considered the matters I am required to consider, I am so satisfied. Taking into account what I have found regarding his conduct, the Plaintiff really has very little by way of assets and is coming towards the end of his working life. He may be able to continue to work for some years, but the work that he is capable of doing will not get any easier, particularly as he gets older and if anything happens to his shoulder. 198It is also clear that the Plaintiff has "needs". As stated above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence. He has virtually no capital sum to provide for the exigencies of life. Age is a factor to which, under the Act, the court may have regard. He is 51. Furthermore, I cannot forget that the Defendant does not put himself forward as a competing financial claimant on the bounty of the deceased and that Stephen has given no evidence of his financial resources. 199Whilst not entirely apt (in relation to his deserts), as Gibbs J observed in Hughes v National Trustees Executors and Agency Co. of Australasia Ltd, at 148: "The appellant is in very poor financial circumstances. His deserts may be small, but his needs are considerable. There were no competing claims on the bounty of the testatrix ... ". 200Thus, I am satisfied that the Will of the deceased (the rules of intestacy are irrelevant) does not make adequate provision for the proper maintenance or advancement in life of the Plaintiff. 201Then, I next consider the nature and amount of any provision, if any, that should be made. I reject the Plaintiff's submission that he should receive an equal share as his brothers to the residuary estate of the deceased. As I have made clear above, equality of treatment is not a necessary element of a deceased's testamentary duty. 202I take into account that during the lifetime of the deceased, she provided financial and other benefits to the Plaintiff. In addition, the deceased did not feature in the Plaintiff's life, virtually at all, for about the last 10 years of her life. However, he had played a significant role in her life, before then, albeit for the 9 years or so, there may have been some conflict and disharmony between them. 203I am of the view that neither of these facts disentitles the Plaintiff to provision. However, they "restrain the amplitude", of the provision that should be made: Wheatley v Wheatley, per Bryson JA, at [37]. 204In my view, the Plaintiff should receive a lump sum calculated as 27.5 per cent of the net proceeds of sale of the Cronulla property, such percentage to be calculated after the payment of costs of the proceedings. The amount yielded will provide a sum that may be used as a buffer against the vicissitudes of life. 205In the circumstances, I order that: (i) Having found that the Plaintiff, Ian Lance Goldsmith, is an eligible person, that the proceedings were commenced within time, and that the provision made for him in the Will of the deceased is inadequate for his proper maintenance or advancement in life, he should receive, in lieu of that provision, a lump sum calculated as 27.5 per cent of the net proceeds of sale of the Cronulla property, such amount to be calculated after the payment of such costs of the proceedings as are ordered to be paid out of the estate of the deceased. (ii) The provision made for the Plaintiff should be borne by the residuary estate. (iii) No interest is to be paid on the lump sum, if it is paid within 14 days of the completion of the sale of the Cronulla property; otherwise, interest calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment of the lump sum. (iv) Unless either party wishes to argue the question of costs, the Plaintiff's costs, calculated on the ordinary basis, and the Defendant's costs calculated on the indemnity basis, shall be paid out of the estate of the deceased. (v) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005. (vi) Reserve consideration in respect of making consequential and ancillary orders for the purpose of giving effect to the family provision order.

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: 13 December 2012

Family Provision Act 1982(NSW)

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Cases Cited (63)