Grover v NSW Trustee & Guardian - [2015] NSWSC 1048 - NSWSC 2015 case summary — Zoe

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Grover v NSW Trustee & Guardian

[2015] NSWSC 1048

Supreme Court of NSW|2015-07-21|Before: Hallen J

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Court

Supreme Court of NSW

Decision date

2015-07-21

Before

Hallen J

Source

Original judgment source is linked above.

Judgment (20 paragraphs)

[1]

SW Trustee and Guardian [2012] NSWSC 275 Burke v Burke [2015] NSWCA 195 Butcher v Craig [2009] WASC 164 Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748 Challenger Life Company Ltd v Estate of the late Robert John Real [2014] FCA 1325 Chapple v Wilcox [2014] NSWCA 392; (2014) NSWLR 646 Churton v Christian (1988) 13 NSWLR 241 Collins v McGain [2003] NSWCA 190 de Angelis v de Angelis [2003] VSC 432 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89 Doshen v Pedisich [2013] NSWSC 1507 Dunn v McCarthy [2010] NSWSC 675 Edgar v Public Trustee for the Northern Territory [2011] NTSC 5 Foley v Ellis [2008] NSWCA 288 Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep) Gardiner v Gardiner [2014] NSWSC 435 Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 Goodsell v Wellington [2011] NSWSC 1232 Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison [1997] 2 VR 359 Griffiths v Craigie [2014] NSWSC 1339 Hampson v Hampson [2010] NSWCA 359 Harrison v Harrison [2011] VSC 459 Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 Hyland v Burbidge [2000] NSWSC 12 In re Allardice; Allardice v Allardice (1910) 29 NZLR 959 In the Estate of Puckridge, Deceased (1978) 20 SASR 72 In the Estate of the late Anthony Marras [2014] NSWSC 915 Justyn Marcus Ng v Neville Mark Morgan; Selena Natanie Ng v Morgan; Commonwealth Bank of Australia v Neville Mark Morgan in his capacity as Administrator of the estate of the late Dell Smith [2014] NSWSC 536 Kauri Timber Co (Tas) Pty Ltd v Reeman [1973] HCA 8; (1973) 128 CLR 177 Kay v Archbold [2008] NSWSC 254 Kembrey v Cuskelly [2008] NSWSC 262 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 McKenzie v Baddeley [1991] NSWCA 197 McKenzie v Topp [2004] VSC 90 Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146 Mayfield v Lloyd-Williams [2004] NSWSC 419 Middleton v Kiama District Hospital [1970] 3 NSWR 136 Moore v Randall [2012] NSWSC 184 Morrison v Carruthers [2010] NSWSC 430 Neale v Neale [2015] NSWCA 206 Nowak v Beska [2013] NSWSC 166 Palagiano v Mankarios [2011] NSWSC 61 Petrohilos v Hunter (1991) 25 NSWLR 343 Phillips v James [2014] NSWCA 4 Pogorelic v Banovich [2007] WASC 45 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 Re Buckland Deceased [1966] VR 404 Re Dennis (Deceased) [1981] 2 All ER 140 Re Fulop, Deceased (1987) 8 NSWLR 679 Re Hilton [1997] 2 NZLR 734 Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 Salmon v Osmond [2015] NSWCA 42 Sassoon v Rose [2013] NSWCA 220 Simonetto v Dick [2014] NTCA 4 Simons v Permanent Trustee Co Ltd: Estate D. Hakim [2005] NSWSC 223 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Skinner v Frappell [2008] NSWCA 296 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522 Slack-Smith v Slack-Smith [2010] NSWSC 625 Sophron v The Nominal Defendant [1957] HCA 27; (1957) 96 CLR 469 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Szypica v O'Beirne [2013] NSWSC 297 Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 Verzar v Verzar [2012] NSWSC 1380 Verzar v Verzar [2014] NSWCA 45 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) West v Mann [2013] NSWSC 1852 Wilcox v Wilcox [2012] NSWSC 1138 Williams v Aucutt [2000] 2 NZLR 479 Worsley v Solomon [2008] NSWSC 444 Zannetides v Spence [2013] NSWSC 2032 Texts Cited: J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths) The Macquarie Dictionary Rosalind Atherton, "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5 Australian Journal of Legal History Category: Principal judgment Parties: Shaun Stafford Grover (Plaintiff) NSW Trustee & Guardian (Defendant) Representation: Counsel: Mr R Wilson SC (Plaintiff) Mr D Stewart (Defendant)

[3]

Introduction

HIS HONOUR: This is a claim made for a family provision order under Part 3.2 of the Succession Act 2006 (NSW) ("the Act") out of the estate of Robert John Real ("the deceased"). (There is no estate which is sought to be designated as notional estate.) The claim is made by Shaun Stafford Grover, the only grandchild of the deceased. The Defendant is the NSW Trustee & Guardian, the executor named in the deceased's last Will, to which Probate has been granted.
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 (NSW) ("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 of the Act, 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.
The proceedings were commenced by Summons filed on 15 July 2013, some 6 days later than the time prescribed by the Act for the bringing of proceedings (not later than 12 months after the date of the death of the deceased). At the commencement of the hearing, the Plaintiff, without objection, sought, and was granted, leave to file an amended Summons in which he sought an additional order that the time for the making of his application be extended until the date of the filing of the Summons. The case proceeded upon the basis of the relief sought in that document.
On the topic of the extension of time, counsel for the Defendant, in written submissions, wrote: "As the delay is short; the Estate was put on notice of the potential claim for provision 'within time'; and no real prejudice other than the delay in finalising the Estate has been caused, but, in circumstances where an issue over an annuity of the deceased was only determined on 5 December 2014, the Defendant does not oppose an extension."
At the hearing, counsel for the Defendant confirmed that the Defendant neither consented to, nor opposed, the making of an order extending the time for the making of the Plaintiff's application. (Unlike the former Act, which included a provision for time to be extended by consent (s 16(3)), the Act does not include a similar provision. Accordingly, the court may only make an order extending the time for the making of the application, "on sufficient cause being shown": s 58(2) of the Act.)
Without any undue familiarity or disrespect intended, and for convenience, I shall hereafter refer to the Plaintiff and any other natural persons who are identified, after introduction, either by his, or her, given name, or by the role each plays in the proceedings.
I wish to make clear that it is impossible to reach clear findings on all of the issues, some of which could not be tested because they involve events that occurred many years ago, and others that involve conversations said to have occurred with the deceased at which the other party was not present. 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 shall record my findings on what I regard as the most important issues.
I remember, as well, that the fact a statement is said to have been 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].

[4]

Background Facts

The following facts are uncontroversial and provide a useful background.
The deceased died on 9 July 2012. He was then aged 86 years, having been born in February 1928.
The deceased married Shirley Beatrice Real in June 1950. She predeceased the deceased, having died in June 1992. There was only one child of their marriage, namely Paul Stafford Real, who was born in January 1961. He, too, predeceased the deceased, having died in July 2011.
Shaun is the only child of Paul and Pamela May Grover. He was born in July 1980.
Shaun has the following children from his relationship with Angela Phillips, namely Hailey Grover, who was born in June 2003; Jackson Grover, who was born in June 2004; Jessica Grover, who was born in March 2006; Robert Grover, who was born in August 2009; and Hamish Grover, who was born in August 2012. Raina Phillips, who was born in November 2001, is a child of Angela Phillips. She, too, lives with Shaun, Angela, and their children.
The deceased made several wills during his lifetime. Relevantly, he made his last Will on 21 February 2012. Probate in common form of that Will was granted, by this court, to the Defendant, on 21 September 2012.
The deceased's Will, relevantly, provided: "3 I give the following gifts to my friend DONNA MAREA COSTIGAN if she survives me. 3.1 The gifts are: - all my real estate - any motor vehicles I own when I die and all accessories for them - my dog 'Lucky' 3.2 If this real estate is charged at the time of my death with the payment of money, for example, by mortgage, I confirm that this real estate so charged will be primarily liable for the payment of the charge. 3.3 If the gift in clause 3 does not take effect, I give this gift to my friend CLINT STUART COSTIGAN if he survives me. RESIDUE 4 I direct the rest of my estate be used first to pay my estate liabilities. 5 After payment of my estate liabilities, I give the rest of my property to my Trustee on trust to divide into enough parts to pay those of the following gifts which will take effect. All parts are of equal value. (No parts are to be set aside for any gifts which do not take effect). 5.1 I give 1 part to my friend DONNA MAREA COSTIGAN if she survives me. 5.2 I give 1 part to be shared among those of the following people who survive me and those of my grandson SHAUN GROVER's children who survive me. (This includes children born or adopted after I made this Will): - my great granddaughter JESSICA GROVER - my great granddaughter HAYLEY GROVER - my great grandson JACKSON GROVER - my great grandson ROBERT GROVER - my step great granddaughter REYNA [sic] PHILLIPS"
(Shaun and Angela have had two children who were born after the death of the deceased. The Defendant has indicated that they, too, may be persons who share in the estate of the deceased under Clause 5.2 of the Will. I was not asked to construe the deceased's Will in this regard. During his submissions, counsel indicated that the Defendant will give further consideration to the question of their entitlement, if any, to share in the residuary estate, and, if necessary, will allow a representative of those two children to make submissions on the question, which may result in a will construction suit being brought.)
In the Will Information Form, dated 18 January 2012, a copy of which was Ex. 1, the original of which was completed by an officer of the Defendant who took instructions for the deceased's last Will, Shaun was identified as a "Potential Claimant" who may make a claim under the Act. In that document, next to the heading "Reason for Exclusion", the following appears: "May claim long term dependency - Testator states that Shaun only used to spend school holidays with him & resided with him briefly for a few months (approx 6 months) some years ago."
Importantly, the deceased did not deny that Shaun had been dependent upon him during the periods that he identified. Nor did he provide any explanation of the type said by Donna to have been provided by the deceased to her, to the officer of the Defendant.
In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased's estate, at the date of death, was disclosed as having an estimated, or known, gross value of $1,514,674. No liabilities were disclosed. The estate was said, then, to consist of real estate at Albion Park, New South Wales, ($400,000), money in bank accounts or in institutions on deposit ($199,672), the deceased's interest in Paul's estate ($60,000), a motor vehicle ($16,590) and other personal property ($4,483).
There was also included in the Inventory, as part of the deceased's estate, the proceeds of life policies held with Challenger Life ($833,928). However, as will be detailed later, only part of the proceeds of those life policies formed part of the deceased's estate. (I have omitted, and shall omit, any reference to cents in the amounts stated which will explain any apparent mathematical miscalculations.)
At the commencement of the hearing, the parties agreed that the gross distributable estate, at the date of the hearing was estimated to be $1,384,816. The estate was said to consist of the Albion Park property ($635,000), cash ($198,861), the proceeds of the estate of Paul ($58,511), motor vehicles (which were distributed to Donna) ($25,590), other personalty ($4,483), the proceeds of the Challenger annuity paid after the determination of proceedings in the Federal Court ($459,333) and a taxation credit ($3,036).
Out of that amount, the estimated fees and commission of the Defendant ($30,883), the balance of legal costs of Federal Court proceedings to which I have referred ($1,980), the estimated costs and expenses of the preparation of estate tax returns, and a provision of a tax liability of the estate ($2,000) and for CGT ($50,000), should be deducted.
The parties also agreed, at the hearing, that the gross amount available to satisfy any provision to be made for Shaun would be $1,299,953. (There is a question whether the estimated CGT, in fact, will need to be paid out of the estate. If it is not paid out of the estate that will increase the amount of the estate by $50,000 (so that it is $1,349,953)).
However, in calculating the value of the estate of the deceased, that is available, finally, for distribution, the costs of the present proceedings should also be considered, albeit with circumspection, since an applicant, if successful, normally, would be entitled to an order that his costs and disbursements, calculated on the ordinary basis, be paid out of that estate, whilst the executor, irrespective of the outcome of the proceedings, normally, will be entitled to an order that its costs, calculated on the indemnity basis, be paid out of the estate of the deceased. (In stating this, I do not forget that "the Court is required to adopt practices and procedures which seek to resolve the issues between the parties in such a way that the cost is proportionate to the importance and complexity of the subject matter in dispute" or that "[t]he Court also has power to specify a gross sum instead of assessed costs when making a costs order": Neale v Neale [2015] NSWCA 206, per Basten JA (with whom Macfarlan and Gleeson JJA agreed), at [38].
Mr G R Brazel, the Plaintiff's solicitor, estimated Shaun's costs and disbursements, calculated on the ordinary basis, to be $75,000, inclusive of GST and upon the basis of a 2 day hearing.
Ms J C Brouwer, the Defendant's solicitor, estimated the Defendant's costs, out of pocket expenses, and counsel's fees, inclusive of GST, calculated on the indemnity basis and on the basis of a 2 day hearing, to be $61,059. However, there have been paid out of the estate, some counsel's fees ($16,480) and the costs of an unsuccessful mediation ($5,571). Accordingly, the balance of the amount that would be payable out of the estate, if the usual costs order in favour of the Defendant is made, will be $39,008.
Donna, too, seeks her costs (estimated to be $22,742) incurred in these proceedings whilst she was a party. If an order is made that her costs are to be paid out of the residue of the estate, practically speaking, she will be paying one half of those costs, as she, as to one part, and some of the great- grandchildren of the deceased, as to the other part, share the residue equally. During final submissions, whilst senior counsel for the Plaintiff said that those costs should not be paid out of the estate, the only reason advanced was that two sets of costs should not be paid out of the estate.
I note that on 21 February 2014, the parties signed Short Minutes of Order, Paragraph 1 of which was an order that the Plaintiff be granted leave to file an amended Summons joining Donna and Challenger Life Limited as additional Defendants. Although the Plaintiff does not appear to have filed the amended Summons, on a number of directions hearings subsequently, Ms Costigan was represented. On 5 December 2014, an order was made that she be removed as a Defendant in the proceedings.
In the circumstances, it seems to me that her costs of appearing, calculated on the ordinary basis, for the period between 21 February 2014 and 5 December 2014, should be paid out of the estate of the deceased.
Subject to what was described by senior counsel for the Plaintiff as the "remote possibility" that the terms of an Offer of Compromise might be relevant to the issue of costs, the parties agreed that, in the event that Shaun is successful, the usual costs orders should be made. If the parties are unable to reach agreement on the quantum of costs to be paid, it will be for an assessor to determine the appropriate quantum of costs. Hopefully, this will be unnecessary.
It can be seen, and the parties agreed, that if the estimates of costs ultimately prove accurate, and all of those costs are ordered to be paid out of the estate, the net estate available to meet the provision to be made for Shaun, is about $1,163,203. (If the CGT is not payable, then the value of the net estate available to meet the provision to be made for Shaun will be $1,213,203.)
Senior counsel for the Plaintiff, accepted that the devise of the Albion Park property made to Donna should not bear any part of the burden of the provision, if any, or costs, made for the Plaintiff. He submitted, however, that her share of the residue should bear, entirely, the burden of the provision, if any, to be made, and only if the Plaintiff received a lump sum that exceeded her share of residue, should his children's share of residue bear the burden of the provision made for him.
Counsel for the Defendant submitted that if a family provision order were to be made, it should be a lump sum order that should be borne by the residuary estate, with the effect that both parts of the residuary estate would bear equally the burden of the provision.
I should mention that the Albion Park property had an agreed value, at the date of hearing of $635,000. The land comprises 2,077 sq. metres. The home on the property is described as, and photographs depict, "a somewhat large, but dated single level, brick veneer, tile and clip-lock roof detached residential dwelling which appears to have undergone several rear additions over the years. The home provides a spacious four bedroom, two bathroom floorplan, with incorporated single garage, plus large covered in-ground pool with storage area and workshop": Ex. 2. Apparently, the land has "development potential".
The Plaintiff identified no other eligible persons in the Notice of Eligible Persons served upon the Defendant. The Defendant agreed that there are no persons who are eligible persons. (As stated, it disputed that the Plaintiff is an eligible person.)
There is evidence that notice of the Plaintiff's claim has been given to the tutor of the Plaintiff's children, Pamela, who had appeared in the Federal Court proceedings to which reference will be made. The tutor did not seek to play any part in the proceedings.

[6]

Prior Testamentary Intentions of the Deceased

The deceased made a number of wills during his lifetime. The evidence reveals that the first in time was a Will made on 7 May 1979. In that Will, the deceased left the whole of his estate to Shirley, but if she did not survive him, to Paul, but if he did not survive the deceased, then to "the child or children of my said son who shall survive me and attain or have attained the age of eighteen (18) years".
The Will, second in time, was made by the deceased on 19 October 1994. By that Will, the deceased left the whole of his estate to Paul, but if the gift did not take effect, "I give all my property to my grandson SHAUN GROVER if he survives me by 1 calendar month".
A copy of each of these two Wills was annexed to Shaun's first affidavit read in the proceedings.
The third Will in time was made by the deceased on 11 October 2011 (a copy of which was Ex. 4). That Will, relevantly, appointed the deceased's then solicitor, Nigel Ian Duncan, and Donna, or the survivor of them, as the executors, and went on to provide: "5. I GIVE DEVISE AND BEQUEATH the whole of my property both real and personal of whatsoever nature and wheresoever situate UNTO my said Trustees UPON TRUST to sell call in and convert into money the same or such part or parts thereof as does not already consist of money and from the clear monies arising from such sale calling in and conversion together with any ready moneys forming part of my estate to pay my just debts funeral and testamentary expenses and State and Federal death duty and taxes if any payable in respect of my Estate and to divide the residue then remaining equally between the children of my grandson SHAUN STAFFORD GROVER as shall survive me whether such children of my said grandson are his biological children or step-children."
I have read Donna's evidence concerning a conversation that she said that she had with the deceased and why he was excluding Shaun from provision in his Will. Whilst I cannot say that the evidence is inaccurate, it is to be noted that the deceased's statements that he was excluding Shaun because he "is a bit of a no hoper"; because he had not seen Shaun for years; because he had just found out that Shaun was, or had been, in jail; or because if provision were made for Shaun, "he would use it to buy drugs, and those poor little kiddies would get nothing", does not find its way into any Will or other document.
I note, also, that the conversation about the exclusion of Shaun from the October 2011 Will was said to have occurred in a solicitor's office in the presence of the solicitor. However, the solicitor involved was not called to give evidence of the conversation and his Will file was not produced in evidence.
The deceased gave instructions to an officer of the Defendant in about December 2011 to prepare a draft Will, a copy of which draft is Ex. D in the proceedings. That draft relevantly provided for a devise of the deceased's real estate to Donna, if she survived, and gave to her the deceased's dog, "Lucky". The rest and residue of the deceased's estate was to be used to pay "estate liabilities" as defined and the rest of the deceased's property was given to "my step-granddaughter REYNER [sic] PHILLIPS and any future children my son [sic] Shaun Stafford may have after making this Will who survive me".
The copy of the Will Information Form, dated 12 December 2011, which was Ex. E, under the heading "Will Instructions", stated: "All real estate to 1 Donna then to 2 Clint. Rest and residue to be divided equally to any issue born to my son 2 Shaun Stafford and Pamela Grover and to also include step-grand daughter Reyner [sic] Phillips (not biological). I give my 'German Shepherd' Lucky to 1 Donna"
In this document, reference was made to the Act and the "persons who can make a claim, if not adequately provided for under the Will", were identified. One such category of eligible person was "f. Grandchildren, wholly or partly dependent on you at any particular time". Next to the question "Is there anyone in the above (a-h) who has not been adequately provided for in the Will?" the box bearing the word, "No", was ticked.
Under "General Comments" in Ex. E, the following appears: "Donna Marea Costigan was present and attempted to influence client re: names of beneficiaries, re disposal directions relating to realty. Requested to sign on behalf [of] client, repeatedly stressing her appointment as Guardian and Power of [Attorney]."
It seems that a copy of the draft Will was sent to the deceased because Donna subsequently attended at the Wollongong Branch of the Defendant on 17 January 2012 and provided some instructions, in writing, part of which she had written, identifying errors in the draft Will. The copy of the document she provided, part of which was in Ex. C, was in the following terms: "* Shaun is GRANDSON (4.1) * should be "Reyner Phillips and any biological children Shaun Grover has had prior to this will being made. (4.1) Should be. * Rest of property 50% equally to Donna and children 50% (4.1) 42296511 2pm-8pm Visiting hours * Reyner Phillips and any other children are Roberts great grandchildren (4.1)" (Other words and numbers in Ex. C were not on the document when it was provided to the officer of the Defendant.)
Donna gave evidence that what had been written in Ex. C and communicated to the officer of the Defendant were the instructions that she had received from the deceased. It was not put to her in cross-examination that they were not his instructions. It was put to her, however, that she had sought to influence the deceased, an allegation that she denied.
A copy of a Diary Note of Olivera Dornazet, the officer of the Defendant who spoke with Donna on 17 January 2012 is Ex. F and it provides: "On the 17th January 2011, Donna Mare [sic] Costigan attended NSW Trustee & Guardian Wollongong with draft copy of Robert John Real's Will. Mrs Costigan advised that the Will was all wrong and the new changes were written on the back of the draft copy. Handwriting appeared not to be that of Mr Real. Mrs Costigan then advised that Mr Real was in Lawrence Hargrave Hospital in Thirroul and said that visiting hours were only between 4pm and 8pm and 'that was the only time I was able to see the client'. I contacted the hospital and spoke to Louis, Mr Real's nurse who advised that visiting hours were between 2pm and 8pm. I asked whether myself and a colleague would be able to see Mr Real preferably in the morning. He was happy with that and said that no visitors would be present at that time and that if there should be someone there we would be able to use a private room. An appointment was schedule [sic] for 10.00am. on the 18th January 2011."
(It was agreed that the year 2011, where it appears in Ex. F, should be a reference to 2012 and that there had been a typographical error made on that document.)
I have earlier referred to the last Will of the deceased. It is clear from the copy Will Information Form, which is Ex. 1, to which I have earlier referred, that the instructions for this Will were obtained from the deceased and that Donna was not present when those instructions were given. Under the heading "General Comments", the following appears: "Saw Mr Real at hospital alone. He was very clear about his wishes and was able to provide great grandchildren's names which escaped him last interview. He advised that he was happy with Donna Costigan as his POA jointly with neighbour, Mr Saunders."

[7]

Paul

Paul suffered catastrophic injuries in a motorcycle accident in August 1982 (when Shaun was aged 2 years). He suffered a severe head injury which left him wheelchair bound, with incomplete quadriplegia and minimal speech.
In 1984, Paul's action for damages for personal injuries was settled in an amount of $1.9 million, which fund was held by the then Protective Commissioner of NSW, who had been appointed the financial manager of Paul.
Following Paul's motor vehicle accident, he and Pamela separated, and Paul returned to live with the deceased and Shirley. When the deceased purchased the property at Albion Park, Paul moved to Albion Park to live with him.
The Albion Park property was purchased for $90,000, by the deceased and Shirley, in March 1987. Subsequently, improvements were done to the property. It appears that the Protective Commissioner, in October 1988, sought a mortgage over the property to secure the amount of $118,545, which amount was repayable on demand and which bore no interest until a demand for interest was made. However, it was agreed that the mortgage would not be registered but that it, with the title deeds for the Albion Park property, would be retained by the Office of the Protective Commissioner.
In or about 1988, Paul, the deceased, Pamela and Shaun went to the United States for a holiday. It appears that at least some of the expenses of the holiday were paid by Paul.
By February 1992, Paul was being paid $3,000 every four weeks to cover his expenses.
In May 1992, the Office of the Protective Commissioner commenced the payment of maintenance for Shaun out of funds held on Paul's behalf. It paid $100 per fortnight to a bank account in Shaun's name.
For a period of about 6 to 8 months, in 1995 or 1996, Shaun went to live with Paul and the deceased in the Albion Park property to assist in the looking after of Paul. Shaun gave evidence that during the period that he lived there, he received a carer's pension and allowance, together totalling between $770 and $780 per fortnight. Whilst he used some of this income for his own needs, he did not use any part of it to pay board to the deceased.
Shaun's evidence, at T36.05-T36.15, is: "A. I wasn't there very long. That's when I ended up moving down with pop and dad, and taking care of dad. Pop was finding it a bit hard to deal with dad, as he was getting older, and the carers, it was just costing him too much money, and dad's money was going so quick. So I then decided to go down there and, yeah, hang out. Q. That was the, let's call it approximately six months, whether it was a bit longer or a bit shorter, but the whole purpose of that move to Albion Park was to support your father, was it? A. Yeah, well, support my dad and my grandfather. As I said, pop was having a really hard time lifting dad and that, you know. He was getting elderly."
Other than for this relatively short period, the principal burden, for most of Paul's life following the accident, was borne by his parents, and following Shirley's death, by the deceased, although Paul did have a number of carers who attended 6 hours per day, 7 days per week.
In about 2002, the deceased wrote to the Protective Commissioner as he was concerned about Paul's future wellbeing, having "no support from any family members". The deceased also reported to the Illawara Area Health Service that "they have no relatives remaining who would be able to care for Paul".
In 2009, the deceased reported to Northcott Disability Services "that there are no other family members who are able to care for Paul. Paul does have a son but there has been no contact for at least 3 years, his current whereabouts is [sic] unknown". The deceased also said that he did not consider that Shaun "would be a suitable person to look after [Paul]".
In April 2009, the deceased is said to have reported to the Guardianship Tribunal that he was "Paul's only family" and that "his grandson does not have contact with his father".
Paul left a Will that he made on 21 June 2006. The Public Trustee (now the NSW Trustee & Guardian) was the executor named in that Will. The NSW Trustee & Guardian filed an election to administer Paul's estate by Election Letter dated 16 November 2011, a copy of which letter and Will is Ex. 5.
By that Will, Paul left the whole of his estate, after payment of estate liabilities (as defined), to the deceased, but if that gift did not take effect, then to Shaun.
By letter dated 29 November 2011, the NSW Trustee & Guardian informed the deceased that the estimated value of Paul's estate was likely to be about $76,000, with a capital commission charge of $3,500, and any other out of pocket expenses, such as legal advertising, Probate Court fees and agents commission, to be deducted.
In an affidavit of Administrator, sworn on 16 June 2015, read in these proceedings, Ms Brouwer stated that "[u]pon finalisation of the estate of… Paul… on 24 February 2014, [the Defendant] received into its trust account in the estate of [the deceased] the sum of $58,511".
The amount received by the estate following Paul's death, as well as the amount paid out of Paul's funds for improvements carried out to the Albion Park property have increased the value of the deceased's estate.
Following Paul's death, Shaun received a death benefit of $5,984. This is the only amount that he received out of Paul's estate.

[8]

The Plaintiff

Shaun attended high school but did not advance beyond Year 8. He commenced a moulder apprenticeship but only completed about 12 to 18 months of the four year course. He then worked in different jobs for varying periods. Since late 2010, he has been unemployed.
He lives with Angela Phillips and their children, and her child, in rented accommodation in a public housing estate in North Gosford. One of their children, Jackson, has been diagnosed with Asperger's Syndrome.
Shaun made reference to having been imprisoned in 2010 in his affidavit, but did not provide details of his criminal conduct. However, some documents produced on subpoena (a copy of which, with a copy of the subpoena was Ex. 3) revealed that his first contact with the Probation and Parole Service was "by way of a supervised Section 9 Bond in 2003. [He had] failed to report to the service and following breach action, the Order was revoked and a further six month Section 9 Bond was imposed". In 2008, he was subject to a further Section 9 Bond for a period of 18 months, with which he complied "on a superficial level with the offender expressing intent to change his criminal behaviour and drug usage without taking any significant action". He breached the order "by means of re-offence and was sentenced to a further 12 months Section 9 Bond".
The following passage then appears in a Pre-Sentence Report, dated 20 December 2010, addressed to Gosford Local Court: "Mr Grover was sentenced to two Community Service Orders in November 2009 in relation to the offences, Larceny and Enter Dwelling with Intent to Steal. As of the date of this report he has completed 86 hours 15 minutes of his assigned 100 hour Orders. It is noted that his compliance with the Orders has been deemed 'unsatisfactory' with numerous inexcused [sic] absences and time off for medical reasons and family responsibilities. Despite this an extension has been granted by the court to allow Mr Grover more time to complete his Community Service Order. SUMMARY AND COMMUNITY BASED SENTENCING OPTIONS Mr Grover is thirty years of age and at present is on remand at the Parramatta Correctional Centre. The offender reports that prior to his incarceration he was residing with his de-facto partner and their 5 children aged between… 12 months [and] 8 years at Wyoming. Mr Grover has been unemployed for a number of years and is [in] receipt of Centrelink benefits. During [the] interview the offender acknowledged that at or about the time of committing the subject offences his mis-use of prescription drugs was 'out of control'. The offender advised that he was addicted to Xanax and Oxycontin which he acquired from an unknown source. Mr Grover further advised that he was using illicit drugs (cannabis) on a regular basis prior to going into custody. He stated that this dependency had been the primary motivating factor for his offending behaviour as he committed the offences in order to support his own addiction. Mr Grover reports that since going into custody he has ceased his use of Oxycontin and Xanax and has been prescribed an anti-depressant which has provided him with 'stability'. The offender maintains that he is personally motivated to address his addictions to drugs upon his release and states that he is willing to engage with the appropriate service provider to assist his resolve. It would appear that Mr Grover's prospects for rehabilitation very much depend on his attendance at counselling and or programs designed at addressing his drug use. Mr Grover suffers from a pre-existing back condition (bulging disc) and as a result has been prescribed methadone as a pain treatment. The offender advised that he has been receiving treatment for his condition since his incarceration; however he continues to experience discomfort."
Other documents, forming part of Ex. 3, reveal that in 2010, Shaun was charged with several counts of larceny, several counts of maliciously destroy or damage property, and one count of enter enclosed land not prescribed premises without lawful excuse. The larceny value was less than $2,000. He was sentenced in October 2010, to a total sentence period of 1 year and 9 months, but served 1 year only.
During his incarceration, "case notes indicated good custodial conduct with nil issues". He gave evidence that he completed a drug programme whilst in jail and when he was released he was no longer addicted to the drugs that he had been taking. (There was also information regarding cannabis use. He was not asked any questions about whether he continued to use cannabis.)
There was no evidence given of any subsequent criminal conduct by the Plaintiff since 2011.
Whilst Shaun was incarcerated, in about August 2011, he wrote a letter to the deceased in the following terms: "To Pop, Hello Pop it's me Shaun I hope your good im sorry that I hav'nt written to you before but ive allway worried that you would be disappointed with me for being here in jail and you and dad have always been the only two males in my life im so sorry that I couldnt be there with you and dad when he was sick I will never forgive myself for that I find it hard to be able to say how I feel sometimes but I can say that you and dad done every thing you could do for me when I was growing up you always treated me good and gave me every thing I wanted when I lived with you and somtimes I feel like I let you and dad down but ive always been a bit confused growing up it was hard for me a lot of the time not knowing were I belonged or where I was going to end up and now dad's gone and I never spent enogh time with him and the kids didn't get to see him and you as much as I would have liked and I will never forgive myself for that I wish I could of made you and dad proud of me but I get out in ten weeks and I would really like to come visit you with the kids hope to speak with you soon always thinking about you Pop love you ill ring you soon as I get the chance bey Pop."
The importance of this letter is that it is one addressed to the deceased. There is no evidence that Shaun had written a letter, at any earlier time, in similar terms, or at all, to Paul, his father (who had recently died).
The deceased responded to this letter in the following terms: "Dear Shaun, I was pleased to hear from you and hope you are well. You know you are always welcome here. We all do silly things when young, so I hope you have learnt a lesson now. You have a young family to look after now so I hope you make them proud of you. I will look forward to seeing you and your family down here when you are released. Your fond Pop Bob"
Donna gave some evidence about the deceased's comments to her at the time he received the letter from Shaun. She admitted that the deceased was angry with Shaun at the time, but she went on to concede that what he said to her was inconsistent with what he had written to Shaun: T79.13-T79.16.
It is not necessary to determine whether I should accept Donna's evidence on this topic. It is clear that, by the time the deceased wrote the letter to Shaun, any anger held by him towards Shaun appears to have subsided. The contents of the letter clearly reveal affection for, and an interest in, Shaun. The invitation that Shaun should visit, and the expressed anticipation of any such visit, with his family, is evident in the letter.
Following his release from jail, Shaun wrote to the deceased again, this time in the following terms: "Dear Pop ive been meaning to get in contact with you for a while now but life with all the kids, is a bit chaotic im sorry it's taken so long for me to make contact. i have also been a bit hesitant to call you i don't know why but i feel like mabey im intruding when i visit i really wanted to help you and try to get you well again i thought that you might like me to come and stay with you after you came home from hospital but i got the feeling that you didn't need my help and i know that your carer takes good care of you very well and that's great it gives me peace of mind knowing your looked after but i would also like to help you get back on your feet and to spend time with you. i would love for you to meet your grandson Robert who i named after you i have so many fond memories of being with you and dad and i would love to spend more time with you Pop and the kids ask me all the time when can we go and see Popie bob we all look forward to hearing from you if you need anything or just want some company i would really like to come and see you again. you are always in our thought's"
Angela gave evidence, which I accept, that she realized that Shaun had not included their telephone number in the letter he had written to the deceased, and she enclosed the following note with the letter: "Hi Bob, It's Angela Shaun's girlfriend. He forgot to put our phone number in his letter … xxx xxx xxx. Please don't hesitate to call us…. anytime xoxo Hope to hear from you soon Angela"
Shaun visited the deceased and stayed with him for three days in November 2011.

[9]

Donna

The deceased met Donna in June or July 2010. Thereafter, they appear to have become friends. Over time, Donna played a greater role in the deceased's life, to the point where, after about 8 months or so, she was visiting him at his home daily, some times for just a few minutes, and at other times, for a longer period. She started to drive him when he needed and she helped him with his shopping and to attend doctor's appointments. On occasions, she would do his washing and do some housework.
Following the deceased's hospitalisation in July 2011, Donna, at his request, moved into his home, where she stayed for about one month (until early September 2011).
The deceased appointed Donna and his neighbour, Alan Saunders, as his joint Attorneys under an Enduring Power of Attorney dated 11 October 2011. However, the appointment was not to become effective "unless I become mentally and/or physically incapable as determined by a Certificate under the hand of a Medical Practitioner". (I have earlier referred to the deceased's confirmation of their appointment as his Attorneys in his conversation with an officer of the Defendant in January 2012.)
By Appointment of Enduring Guardian dated 11 October 2011, Donna was appointed to be the deceased's guardian.
I shall not set out all of the conversations that Donna says that she had with the deceased. Even if all of the conversations took place, so far as they related to the deceased's reasons for making his last Will and excluding Shaun, those reasons cannot supplant the court's enquiry into whether the applicant has been adequately provided for.
While a 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.

[10]

Challenger Life Annuity

There were Federal Court proceedings, heard on 17 November 2014 and determined by Jacobson J, on 5 December 2014. His Honour's reasons for judgment and the orders made (which were not the subject of appeal), are now published and bear the medium neutral citation Challenger Life Company Ltd v Estate of the late Robert John Real [2014] FCA 1325.
In those proceedings which were commenced in September 2014, Challenger sought a direction under s 215 of the Life Insurance Act 1995 (Cth) that it pay the proceeds of a Guaranteed Annuity Policy into Court to be dealt with in accordance with the orders of the Court. In particular, Challenger sought a declaration that, by doing so, it has discharged its liability under the policy.
In the Federal Court proceedings, Donna was named as the second Defendant, and Jessica, Hayley, Jackson, Robert, Hamish and Raina, by their tutor, Pamela, were named as the third Defendants. (As stated, Pamela is the mother of the Plaintiff. She was a witness, who was cross-examined, in the current proceedings.)
The deceased took out the Policy in September 2011, having previously nominated Donna as a beneficiary for 50% of the proceeds of the Policy. The nomination form left blank the identification of any other beneficiary. At the hearing, Donna contended that the effect of the nomination form was to nominate her as a beneficiary in respect of 50% of the proceeds, with the balance payable to the deceased's estate. Pamela, as the tutor for the deceased's great grandchildren, contended that the nomination form was invalid upon the basis that the effect of the contract under which the Policy was issued was that it is not possible for the deceased to nominate a beneficiary for less than 100% of the value of the Policy.
The dispute put Challenger in the position that it could not obtain a sufficient discharge of its liability under the Policy otherwise than by invoking the jurisdiction of the Court under s 215.
I shall not set out the matters dealt with by his Honour in his reasons for judgment, but the orders his Honour made were: "(1) Upon the payment into Court by Challenger of the whole of the monies payable by it under Guaranteed Annuity Policy Number 500737931, Challenger is discharged from any further liability in relation to those monies. (2) The monies paid into Court in accordance with Order 1 are to be dealt with as follows: (a) 50% of the monies are to be payable to, or to the order of, Ms Donna Costigan; (b) the remaining 50% of the monies are to be payable to the Estate of the late Robert John Real. (3) Challenger's costs of this application are, on a trustee basis, payable out of the proceeds of the Policy. (4) The great grandchildren should bear Ms Costigan's costs of the application. (5) The Estate's costs should be payable out of the funds comprising the Estate."
(Because it was relied upon as conduct by Donna, I should mention that she gave evidence that a Nomination Form dated 2 November 2011, bearing the deceased's signature, and nominating her as a beneficiary of 50 per cent, which was sent to Challenger Life Limited, is in Donna's handwriting. On 14 November 2011, Challenger received a further unsigned nomination form, in the handwriting of the deceased, purporting to change the earlier nomination so that Donna would be entitled to 75 per cent and the estate would be entitled to 25 per cent. The form was returned to the deceased and Challenger was not contacted again with a completed signed form.)
Donna's Bill of Costs and Disbursements, dated 1 June 2015, has been filed for taxation in the Federal Costs. Those costs have been estimated to be $25,746.
I have earlier identified the amount received by the Defendant from Challenger Life Company Limited. Donna gave evidence that her share was $459,333, and that part of the amount was retained by her solicitors on account of her costs and disbursements (about $70,000). She is likely to receive some part of the retained amount in due course.

[11]

Extension of Time

The evidence explaining the delay in commencing the proceedings was given in an affidavit sworn on 13 July 2015, by Shaun's solicitor, Mr Brazel. In that affidavit, he stated: (a) He had obtained instructions from Shaun on 10 October 2012; (b) At the time, his instructions were that the deceased died on 16 July 2012. (c) On 12 October 2012, he wrote to the Defendant, advising that the Plaintiff disputed the validity of the Will dated 21 February 2012, that a caveat would be lodged in the Probate Registry of the court, and that, in the alternative, the Plaintiff would make a claim for a family provision order out of the deceased's estate as he was "dependant upon the deceased for a number of years". (d) There were some discussions subsequently, to resolve the proceedings but the matter was unable to be resolved. (e) On 11 July 2013, he swore an affidavit seeking leave to file the Summons without having to comply with Practice Note SC Eq. 7, in which affidavit he referred to the incorrect date of death. (f) On 15 July 2013, he filed the Summons and affidavit. He believed that it had been filed within the time prescribed by the Act but "I am now aware that my belief was mistaken". (g) He had only become aware of the error, when it was pointed out by counsel reviewing the material in preparation of the hearing.
Mr Brazel was not cross-examined.
There is no evidence of any prejudice suffered by the Defendant (or by the beneficiaries) if time were to be extended. In fact, it was accepted that there was no prejudice.
It is also clear that there is no evidence of any conduct, on the part of the Plaintiff, which could be regarded as "unconscionable". The error appears to have been that of the Plaintiff's solicitor, although that was based on the mistaken instructions given as to the date of the deceased's death.
It is also to be remembered that the nature and value of the deceased's estate was not established until the conclusion of the Federal Court proceedings in early December 2014. It would have been difficult to conclude the hearing of this case until such time as the nature and value of the deceased's estate was established.

[12]

The Statutory Scheme - The Act

I shall next discuss the statutory scheme and the principles that are relevant to the facts of the present case. Although I have set out much of what is written hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in the application.
The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008 (NSW). 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 person'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 a deceased person's disposition to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary.
In cases such as the present, it is to determine (not necessarily in the order set out below) whether: (i) The time for the making of the Plaintiff's application should be extended. (ii) The Plaintiff is an eligible person within the meaning of that term in s 57(1) of the Act; (iii) In the case, relevantly, of a s 57(1)(e) Plaintiff, the court is satisfied that there are factors which warrant the making of the application within s 59(1)(b) of the Act; and, if sufficient cause is shown for extending the time for the making of his application, eligibility and factors warranting are established, (iv) The Plaintiff has been left with inadequate provision for his, or her, proper maintenance, education and advancement in life; and, if so, what, if any, provision (or further provision) ought to be made out of the estate for those purposes.

[13]

Extension of time for the making of the Application

As stated, s 58(2) of the Act provides that an application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the court otherwise orders on sufficient cause being shown.
Clearly, permitting the Court to "otherwise order" was included in the legislation to avoid the section becoming an instrument of injustice. Yet, "[t]he time constraint imposed by s 58(2) on the making of a family provision application is not a mere formality": Verzar v Verzar [2012] NSWSC 1380, per Lindsay J, at [98]. It is "a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules": Re Salmon, Deceased [1981] Ch 167, at 175.
In Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146, Pembroke J, at [23]-[24], put it more strongly: "… Section 58(2) reveals a clear legislative intention to limit applications for family provision orders to those made within a defined, and strictly confined, period. An application is made by filing an originating process commencing proceedings in the registry of the court: Section 58(3). The short time period imposed by Section 58(2) reflects the judgment of parliament that the welfare of society in connection with the administration of deceased estates is best served by imposing a strictly limited time for making applications. This is not unreasonable. In most cases the putative claimant will be well aware of the testator's death and the (allegedly) insufficient provision made for him or her. There will only occasionally be a good excuse for not making a claim within time. In fact, experience indicates that the deceased's relatives usually pay uncommonly close attention to such matters. That is not to say that cases will not arise where, for legitimate reasons, a claimant is quite unaware of the death, or of his or her legal right to make a claim, and is unable to comply with the 12 month time limitation. In those circumstances, the statutory exception requiring 'sufficient cause' may well apply."
It follows from these, and other, authorities, that the making of an "otherwise order" is not automatic and it involves the exercise of discretion.
In Moore v Randall [2012] NSWSC 184, White J, at [39], said that the expression "sufficient cause" means "sufficient explanation or sufficient justification or excuse for the application not having been made within the prescribed period". In Verzar v Verzar [2014] NSWCA 45, in the Court of Appeal, Meagher JA wrote, at [24], that "[t]he sufficient cause or reason to which s 58(2) is directed is that for allowing an application to be made out of time".
In another context, the High Court wrote in Sophron v The Nominal Defendant [1957] HCA 27; (1957) 96 CLR 469, at 475: "... it is a mistake to attempt to reduce the expression 'sufficient cause' to a closer or more rigid definition than the legislature has chosen to provide. The words no doubt are concerned with the justice of the case. There must be some positive reason for concluding that as between the parties it would be just to extend the period for giving notice. Fault on the part of the claimant in failing to give notice... must be an element affecting the justice of extending the time and so on the other side must be the prejudice which the nominal defendant has or may have suffered because of that failure."
To refuse to make an order extending the time for the making of an application an extension of time in relation to an application for a family provision order that is devoid of merit would not visit an injustice on the applicant. As Meagher JA noted in Verzar v Verzar, at [33]-[35]: "There are at least two respects in which the strength of the application sought to be made out of time may be relevant to whether there is 'sufficient cause' to extend the time for making it. The first is whether the application as made has sufficient prospects of success to justify an extension. That assessment should be of the application viewed at the time it is or is likely to be heard because of the provisions of s 59(1)(c) and (2)… The second respect in which the strength of the application may be relevant is if allowing the out of time application to proceed would or may have the effect of improving the applicant's position from that which would have obtained had the application been made in a timely manner. That is the consideration referred to by Tobias JA in Durham v Durham at [24], [37] when confirming the correctness of the approach adopted by the judge in that case and by Bryson J in Davison v Staley (unreported, Supreme Court of NSW, 21 August 1996)… Because the assessment of adequacy of provision for proper maintenance, education and advancement in life is to be made at the time the Court is hearing the application (ss 59(1)(c) and (2)), when addressing this question it is necessary first to consider when the application would have been likely to have been heard if made in a timely manner and then to compare the position in that event with the position in fact, namely that the application has been made out of time. Ordinarily, this analysis would assume, as is usually the case and as happened in this proceeding, that the application for an extension of time and the application for substantive relief are made in one proceeding and dealt with in a single hearing. (That was not the case with applications for extensions of time made under the Testator's Family Maintenance and Guardianship of Infants Act 1916: see De Winter v Johnstone [1995] NSWCA 120 at p 17 per Powell JA)."
In Zannetides v Spence [2013] NSWSC 2032, Young AJA wrote, at [15]: "The subsection that I have set out says that the Court may 'otherwise order', but only if sufficient cause is shown. One cannot confine a statutory discretion, but the cases which have been decided on section 58(2) or its predecessors show that the courts have focused on a number of factors, namely: (a)The excuse for not filing the claim in time. (b)The knowledge of the plaintiffs of their rights. (c)The strength of the plaintiffs' case. (d)Negligence of the solicitor involved. (e)Prejudice to the defendant. (f)Any unconscionable conduct."
Delay caused by mistake or oversight and delay resulting from a change of mind are to be distinguished. Absent prejudice to the Defendant, or the beneficiaries, and provided prompt action is taken once the mistake or oversight is discovered, the court tends to extend time to bring proceedings, particularly if the applicant's case is a strong one. The court is generally less receptive where there has merely been a change of mind.
As well as taking into account the reasonableness of the conduct of the applicant, it will also be necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant, or refusal, of the application for extension of time, the size and nature of the estate, the position of the individual applicant, the rightful expectations of those already interested under the Will, and, to some extent at least, the importance that there be some finality and certainty in the administration of a deceased person's estate: Harrison v Harrison [2011] VSC 459, at [292].
I dealt with the applicable principles in Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572, at [84]-[90]. I shall not repeat what I wrote in that case. A judicial discretion must be exercised and all the relevant circumstances must be taken into account in order to assess the justice of the particular case under consideration. No one factor is necessarily determinative.
Also, as I said in Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748, at [117]: "Ultimately, justice is the paramount consideration in determining whether to extend the time for making an application…"

[14]

Eligibility

The key provision is s 59 of the Act. The court must be satisfied, first, that the applicant is an eligible person. 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. Relevantly, one category is "a person who was, at any particular time, wholly or partly dependent on the deceased person, and who is a grandchild of the deceased person, or who was a member of the household of which the deceased person was a member" (s 57(1)(e) of the Act).
In the present case, Shaun relies upon the fact that he "is a grandchild of the deceased" (rather than "a member of the household of which the deceased was a member"). That language is expressive of his status, as well as his relationship to the deceased. There is no age limit placed on a grandchild making an application. There is no dispute that Shaun is a grandchild of the deceased. However, to be an eligible person within this category, there is also a condition of whole, or partial, dependency.
The Act contains no definition of the words "dependent on". In general, the word "dependent" connotes a person who relies upon support of another, financial and/or emotional. Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support.
In Amaca Pty Ltd v Novek [2009] NSWCA 50, Campbell JA, with whom other members of the Court of Appeal agreed, said (in the context of a claim under s 15B of the Civil Liability Act 2002 (NSW)), at [45]: "In my view, the law remains accurately stated by the joint judgment of Sugerman P, Jacobs and Mason JJA in Middleton v Kiama District Hospital [1970] 3 NSWR 136. Their Honours said, at 138: 'Dependency is, moreover, a complex question of fact, which may involve the consideration of many elements, including both past events and future probabilities. It is not necessarily correlative with a legal duty to maintain. A person may in fact be dependent upon another who is under no legal duty to maintain him; and may be so dependent even though there is also in existence one who has legal duty to maintain, eg a husband [and] his wife. On the other hand there may be no dependency in fact upon a person who is under a legal duty to maintain. The existence of the legal duty is, however, one of the many elements to be taken into account in deciding upon a question of dependency in fact. Dependency and actual support are not necessarily correlative. There may be dependency although for the time being there is no actual support. And it seems to us to be possible to figure cases in which there may have been a provision of support, or of some measure of support, at least for a short time or for some special purpose, which did not amount to dependency. The definition of "dependants" does not merely refer to one who was in fact supported by the deceased worker at the time of his death; a "dependant" is a member of the workers' family who was "wholly or partly dependent for support upon the worker at the time of his death". Dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased. As to all the above matters see Hodges v Scotts' Provision (Wholesale) Pty Ltd [1963] WCR 161 and cases there cited.'"
In Skinner v Frappell [2008] NSWCA 296, Young CJ in Eq, (with whom Campbell JA agreed) sitting in the Court of Appeal, wrote, at [85]: "The matter as to what is required for dependency was fully dealt with by this Court in Petrohilos v Hunter (1991) 25 NSWLR 343. Although dependency is not limited to financial dependency, it does involve one person being beholden to another person for some material or physical help or succour, emotional dependency is not enough."
In Petrohilos v Hunter (1991) 25 NSWLR 343, at 346-347, it had been said by Hope AJA: "I would respectfully disagree with the Master in both respects. The word 'dependent' is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language. This accords with what Samuels JA said in Ball v Newey (1988) 13 NSWLR 489 at 491, that '"Dependent" in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed'. If the correct view were that the context of the statute requires a limitation of the word to 'financial or material' matters as McLelland J said in Re Fulop Deceased or to 'other forms of dependence analogous to but distinct from financial dependence' as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense, they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father, as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother, when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period."
In Simons v Permanent Trustee Co Ltd: Estate D. Hakim [2005] NSWSC 223, Palmer J, at [42], said: "Dependence for the purposes of s.6(1)(d), so far as the cases have discussed, is seen as the giving of financial or other material assistance by the deceased over a significant period of time in order to meet a need of the eligible person, with the result that the recipient has come ordinarily to rely upon that assistance."
In Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, at [109], Meagher JA wrote that dependency "in this context means actual reliance on someone else for the total or partial satisfaction of some need. It is not limited to purely financial or material matters", and at [110], that it "may exist, irrespective of whether the dependent person is financially or physically able to support himself or herself".
In McKenzie v Baddeley [1991] NSWCA 197, Priestley JA (with whom Hope AJA agreed) held that the word "partly" in the phrase "partly dependent", whilst a word of "some elasticity", does not mean "substantially", but means "more than minimally", or perhaps, "significantly". Meagher JA commented that "[c]ommon sense requires that certain trivial activities should be disregarded".
A similar view was taken by the Court of Appeal, more recently, in Alexander v Jansson [2010] NSWCA 176 at [13].
In Morrison v Carruthers [2010] NSWSC 430, a case involving a claim by a grandchild in which only financial dependency was relied upon, Bergin CJ in Eq, after referring to McKenzie v Baddeley, wrote, at [12]: "It may be difficult to identify any real difference between the meaning of the words 'substantially' ('of real importance or value') and 'significantly' ('of real import') in this context: The Concise Oxford Dictionary, however I am of the view that financially 'partly dependent' in this context means that the applicant relied on the deceased to provide financial support without which the applicant would not have been able to meet the reasonable costs of living. The assessment of dependency in respect of a child will be different from the assessment of dependency in respect of an adult. When an adult grandchild claims financial dependency there will be matters that need consideration that would not be relevant in the case of a child. It is important in this regard to draw the distinction between expectation and dependence. If an adult receives payment on a regular basis from the deceased and chooses not to obtain money from another available source because of the expectation of regular payment from the deceased, that does not amount to dependence within the meaning of that term in the Act. Financial dependency in the case of a healthy adult who is able to work means a necessity to rely on the deceased because there is no other source of finance available."
As Macready AsJ noted in Dunn v McCarthy [2010] NSWSC 675, at [29], "[w]ith young children dependency becomes complex, as is illustrated in the cases of grandchildren".
A person may be dependent upon another whether or not there is a co-existing legal duty: Middleton v Kiama District Hospital [1970] 3 NSWR 136 at 138; Bayssari v Bazouni [2014] NSWSC 910, per Ball J at [37].
The question of dependency, whether whole or partial, is a complex question of fact: Aafjes v Kearney [1976] HCA 5, (1976) 180 CLR 199. It is not to be determined upon theoretical considerations. It is "the actual fact of dependence or reliance on the earnings of another for support that is the test": per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v Reeman [1973] HCA 8; (1973) 128 CLR 177, at 189.
There is a dispute, in this case, that Shaun is an eligible person within the meaning of that term in s 57(1)(e) of the Act. It is put that "[d]ependency is squarely put in issue in this case by the Defendant".

[15]

Factors warranting the making of the Application

In the case of an applicant who falls within s 57(1)(d), (e) or (f) of the Act, the court must next consider, and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application (s 59(1)(b)).
The Act does not specify the "factors which warrant the making of the application". As Pembroke J noted, in Wilcox v Wilcox [2012] NSWSC 1138, at [16], "[n]o legislative assistance is given as to the intended scope or meaning of this enigmatic requirement".
In considering the meaning of what he described as "this poorly conceived and clumsily expressed subsection" in the former Act (which did not form part of the Draft Bill produced by the Law Reform Commission), M McLelland J said, in Re Fulop, Deceased (1987) 8 NSWLR 679 at 681 (approved in substance by the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241) that the factors are factors which, when added to facts which render the applicant an eligible person, give him, or her, the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased.
I have dealt with the meaning of the phrase in other cases, the most recent of which is Doshen v Pedisich [2013] NSWSC 1507. (I note that Slattery J, in Justyn Marcus Ng v Neville Mark Morgan; Selena Natanie Ng v Morgan; Commonwealth Bank of Australia v Neville Mark Morgan in his capacity as Administrator of the estate of the late Dell Smith [2014] NSWSC 536, at [174], agreed with the views that I had expressed in that, and other, cases about the meaning of that phrase.) I shall not repeat what I wrote in that case.
In Sassoon v Rose [2013] NSWCA 220, an application for leave to appeal, Meagher JA (with whom Gleeson JA agreed), at [15], noted: "In addressing the question whether there were factors warranting the making of her application, Macready AsJ correctly identified the relevant principles as those stated by McClelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681, approved by this Court in Churton v Christian (1988) 13 NSWLR 241 at 252 and applied in cases such as Diver v Neal [2009] NSWCA 54 at [8]. Those 'factors' are ones which, when added to the facts which render the applicant an 'eligible person' (in Ms Sassoon's case the fact that she is the former wife of the deceased), give her the status of a person who would generally be regarded, according to community standards and expectations, as a natural object of testamentary recognition."
In Chapple v Wilcox [2014] NSWCA 392; (2014) NSWLR 646, at [4]-[6], Basten JA wrote: "The primary category of eligible people are spouses, including those in a de facto relationship with the deceased at the time of death and a child of the deceased. Other eligible persons (a category including the claimant) are required to satisfy the court that 'having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application': s 59(1)(b). The claimant must also satisfy the court that at the time when the court is considering the application, adequate provision for his proper maintenance, education or advancement in life has not been made by the will of the deceased: s 59(1)(c). Subsection (1)(c) assumes that some provision should have been made for the claimant by the will of the deceased; subs (1)(b) treats the primary category of eligible persons as naturally satisfying that assumption, whereas the secondary category (into which the present claimant falls) need to justify the assumption: see, in relation to relevantly identical provisions in s 9 of the Family Provision Act 1982 (NSW), Re Fulop Deceased; Fulop v Public Trustee (1987) 8 NSWLR 679 at 681 (McLelland J). That approach obtains support from the provisions of Ch 4 of the Succession Act dealing with intestacy. Those primarily entitled to a distribution from the estate of an intestate are a surviving spouse (ss 110-113) and the deceased's children (s 127). A grandchild has an entitlement, but only a presumptive share of a child of the intestate who predeceased his or her parent: s 127(4)."

[16]

Inadequacy of Provision

It is only if eligibility and, as is necessary in this case, factors warranting the making of the application are found, and if sufficient cause is shown for an order extending the time for the making of the Plaintiff's application, that 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, (the operation of the intestacy rules being irrelevant) (s 59(1)(c)). It is this mandatory legislative imperative that drives the ultimate result and, 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)). Only then may "the Court… make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made".
Relevantly, other than by reference to the provision made by the Will in relation to the estate of the deceased, s 59(1)(c) leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for an applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the court to the provision actually made by the Will, 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 and advancement in life of the applicant.
Importantly, in s 59(1)(c) of the Act, there no longer appears to be any sanction to consider the provision made by the deceased during his, or her, lifetime for the applicant (see s 9(2) of the former Act).
In Grey v Harrison [1997] 2 VR 359, at 366-367, Callaway JA observed: "There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."
Basten JA, in Foley v Ellis [2008] NSWCA 288, at [3], commented 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". Stevenson J has described it as "an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific": Szypica v O'Beirne [2013] NSWSC 297, at [40].
Under s 59(1)(c), the time at which the court gives its consideration to the question of inadequacy of provision is the time when the court is considering the application.
"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89, 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".
Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act.
In Jacobs' Law of Trusts in Australia by J D Heydon and M J Leeming, (7th ed, 2006, LexisNexis Butterworths), at 542, the learned authors comment upon the difference between the concepts of maintenance and advancement: "The essential difference between 'maintenance' and 'advancement' is that 'maintenance' denotes a periodical payment or a payment which could validly be made periodically, whereas 'advancement' denotes a definite unique outlay for a specific purpose. Recipients of maintenance must, practically speaking, be infants, but adults may be recipients of an advancement. An advancement can never be made of a sum of money which the person to whom it is made can immediately pocket, but it must be made with a view to the establishment of that person in a business or profession, or otherwise in some definite way for that person's benefit, the whole essence of an advancement being the immediate payment of a tolerably large sum for an immediate benefit to one beneficiary."
In Re Dennis (Deceased) [1981] 2 All ER 140, Browne-Wilkinson J, at 145-146, wrote: "The court has, up until now, declined to define the exact meaning of the word 'maintenance' and I am certainly not going to depart from that approach. But in my judgment the word 'maintenance' connotes only payments which, directly or indirectly, enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him. The provision that is to be made is to meet recurring expenses, being expenses of living of an income nature. This does not mean that the provision need be by way of income payments. The provision can be by way of lump sum, for example, to buy a house in which the applicant can be housed, thereby relieving him pro tanto of income expenditure. Nor am I suggesting that there may not be cases in which payment of existing debts may not be appropriate as a maintenance payment; for example, to pay the debts of an applicant in order to enable him to continue to carry on a profit-making business or profession may well be for his maintenance."
In 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 early period of life in the members of the family: Blore v Lang, per Dixon CJ at p. 128." [Footnotes omitted]
In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Murphy J wrote, at 505: "Provision for advancement may, for example, extend to retraining or the gaining of a qualification which could advance and perhaps enable an applicant to maintain himself or herself."
In Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, at 541, discussed 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 the 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."
In 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 a 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."
In 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)."
In McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566, Dixon CJ and Williams J stated, at 575: "The presence of the words 'advancement in life' in the... Act in addition to the words 'maintenance and education' is not unimportant... 'Advancement' is a word of wide import."
The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton in "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5 Australian Journal of Legal History 5, at 10, as reached upon "a purely economic and objective basis", whereas "proper" prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127, per Buss JA, at [72] and [77], which seems to invite more subjective criteria.
These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 476: "The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."
Their Lordships went on to state, at 478: "The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the Court were concerned merely with adequacy. But the Court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration."
Dixon CJ and Williams J, in McCosker v McCosker, 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 all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."
In Goodman v Windeyer, Gibbs J wrote, 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."
In Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, at [114], Callinan and Heydon JJ said: "[T]he use of the word 'proper'… implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here… The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what 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."
Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), that "adequate" and "proper" are independent concepts. He wrote, 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…"
In Palagiano 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.
His Honour added, in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253, at [123]: "The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case including 'the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty': Singer v Berghouse (1994) 181 CLR 201 at 210."
Until 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, for the applicant. If it is not so satisfied, then the court is precluded from making a family provision order. At this stage, the court has regard to, among other things, the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased and the circumstances and needs of the other beneficiaries or potential beneficiaries: see McCosker v McCosker, at 571-572; Singer v Berghouse, at 209-210; Vigolo v Bostin, at [16], [75], [112]; Tobin v Ezekiel, at [70]; Verzar v Verzar [2014], at [39].
Whether an applicant has a "need" or "needs" is also a relevant factor at the first stage of the enquiry: see s 60(2)(d) of the Act. It is an elusive and an elastic concept to define, yet, it is an element in determining whether "adequate" provision has been made for the "proper" maintenance, education and advancement in life of the applicant in all of the circumstances. The concept involves economic considerations.
In Collins v McGain [2003] NSWCA 190, Tobias JA, with whom Beazley and Hodgson JJA agreed, 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."
In 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]."
"Need", of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]. It is different from "want" and does not simply mean "demand" or "desire". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808, at [54]: "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'."
In Boettcher v Driscoll [2014] SASC 86; (2014) 119 SASR 523, David J, at [41], added: "'Need' is not so synonymous with 'want' such that the two are interchangeable."
As Callinan and Heydon JJ emphasised in Vigolo v Bostin, at [122], 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 upon 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.
Yet, in referring to the concept of "need", it should also be noted that the statutory formula makes no reference to "need", but rather to "adequate provision for the proper maintenance, education or advancement in life". No doubt, this has prompted White J to write, in Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473, at [147], that "the need a claimant must demonstrate is a need for 'proper' maintenance, education and advancement in life", but that does not mean that "adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others". Respectfully, I agree. Consideration of "needs" must be in the context of the statutory formulation.
In the event that the court is satisfied that the power to make an order is enlivened (having been satisfied that the Plaintiff is an eligible person, there are factors warranting the making of the application, that the time for the making of the application should be extended and that adequate provision for his proper maintenance, education or advancement in life has not been made), then, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made.
The second stage of the process arises under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.
I have dealt with the question that has been raised in other cases whether the two-stage approach identified in Singer v Berghouse continues to apply to the provisions of the Act, the most recent of which is Aubrey v Kain [2014] NSWSC 15. I remain of the view that the two-stage approach should continue to apply. I shall not repeat what I have said, which is not affected by the recent decisions of the Court of Appeal in Phillips v James [2014] NSWCA 4; (2014) 85 NSWLR 619, Verzar v Verzar [2014], or Salmon v Osmond [2015] NSWCA 42.
(Since I delivered my reasons in Aubrey v Kain, Robb J has also considered the topic in Gardiner v Gardiner [2014] NSWSC 435. I respectfully adopt his Honour's reasoning, set out at [117]-[120], and [124], as to the persuasiveness of the reasoning of Barrett JA in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656. I also refer to what Bergin CJ in Eq has written in In the Estate of the late Anthony Marras [2014] NSWSC 915, at [15].)
In Burke v Burke [2015] NSWCA 195, the Court of Appeal, constituted by Meagher, Ward and Emmett JJA considered briefly the question. Ward JA, who wrote the leading judgment said, at [17]-[21], and [23]: "Prior to the operation of the Succession Act, the correct approach to an application for a family provision order under the corresponding provisions in the Family Provision Act 1982 (NSW), as made clear by the High Court in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 and confirmed by the High Court in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, was for there to be a two stage enquiry. First, as to whether the provision (if any) made for the applicant was inadequate for his or her proper maintenance, education and advancement in life. Second, which arose only if the determination of the first was in favour of the applicant, as to what provision ought to be made out of the deceased's estate for the applicant. The first stage of the enquiry has been described as the 'jurisdictional question'. Though not strictly speaking a discretionary decision, it is a decision based on an evaluative assessment of the relevant matters (Foley v Ellis [2008] NSWCA 288 at [3]; Andrew v Andrew [2012] NSWCA 308). It was recognised in Singer v Berghouse (at p 210) that the determination of the second stage of the enquiry, should it arise, involved similar considerations to that under the first. The plurality (Mason CJ, Deane and McHugh JJ) there said: 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. Since the Succession Act came into operation in 2006, there have been differing views in this Court as to whether the two stage Singer v Berghouse approach remains the correct approach. In Keep v Bourke [2012] NSWCA 64, the Court proceeded on the basis that under the Succession Act the two stage approach continued to operate. However, the issue was not there the subject of argument before the Court; the case being there run on the assumption that there was still a two stage enquiry to be made. In Andrew, the question was the subject of argument and there were differing views in this Court as to how it was to be answered. Basten JA considered (at [27]) that the intention of a two stage process was no longer apparent in the structure of either s 59 or s 60 of the Succession Act (though his Honour subsequently made clear in Poletti v Jones [2015] NSWCA 107 at [19] that, by this, he meant only that the legislation no longer dictated such an approach, not that there might not be circumstances in which the approach was the preferable way to proceed). Barrett JA, dissenting in the result in Andrew, was of the opinion that the approach taken under s 7 of the superseded Family Provision Act remained relevant and applicable; and should be followed (at [94]). Allsop P, as his Honour then was, described the issue as 'an analytical question of little consequence' (at [6]). … It is not necessary to come to a concluded view on whether the two stage approach should still be followed since, even if his Honour erred in formulating the approach as he did, it is clear that his Honour concluded that in the circumstances there had not been inadequate provision made for Terry in the will and that no order for such provision should be made. Therefore, whichever approach was adopted, his Honour would have reached the same conclusion. For the reasons set out below, no error has been demonstrated in the evaluative judgment his Honour reached such as would warrant appellate intervention."
Even if there remains some uncertainty as to whether the Act requires a two-stage approach, "it is settled that the determination under the legislation on either approach, involves an evaluative judgment": Salmon v Osmond, per Beazley P (with whom McColl and Gleeson JJA agreed), at [54]. From the terms of s 59 the court must ask itself whether it is satisfied that "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", and if so satisfied, it must consider whether to make an order and the terms of that order. In undertaking each of those steps, it may have regard to the matters set out in s 60 of the Act.
Section 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."
It 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 [2012], at [121] and [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.
White J wrote in Slack v Rogan; Palffy v Rogan, at [121], that s 60 "lists a wide range of matters" that the court "may have regard to", but these do not provide any tangible assistance in answering the question in any particular case whether the provision made in a will was less than adequate for an eligible applicant's "proper" maintenance, education or advancement in life.
In West v Mann [2013] NSWSC 1852, Kunc J, at [12], wrote: "(10) Section 60(2) provides a helpful checklist but it is no more than that. The Court is not obliged to take those matters into account. The extent to which it does (if at all) will depend upon the facts of each particular case. (11) Section 60(2)(p) confirms the breadth of matters the Court can take into account. Once enlivened, the Discretion is expressly fettered only by the requirement in s 59(2) that if an order is made, it must be such order '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'".
As 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. 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."
Beazley P, in Phillips v James, at [51], described s 60(2) as involving: "[A] statutory iteration of matters that had always been considered relevant in the determination of claims for provision by persons claiming an entitlement under a testator's will. However, as Basten JA observed in Andrew v Andrew, the factors identified in s 60(2) provide a more focused direction to the Court as to relevant matters to which regard may be had. His Honour was of the view that the statutory list invites consideration of a broader range of factors than was previously the case. Whether or not that is so, the important matter is that the court is required to have regard to the circumstances, including those specified in s 60(2), that it considers relevant in determining whether to make an order for family provision and the nature of any such order."
In Chapple v Wilcox, Basten JA, at [7], wrote: "Section 60 of the Succession Act spells out the matters which the Court may have regard to in determining whether the claimant 'is an eligible person' and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the 'nature of any such order', which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b)."
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.
The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering 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.
A reference to 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 any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).
Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently.
Section 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.
The order for provision 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).
Any family provision order under the Act takes effect, unless the court otherwise orders, in the case if the deceased made a will, in a codicil to the will (s 72(1) of the Act).
Section 66 of the Act sets out the consequential and ancillary orders that may be made.
Section 99(1) of the Act provides that the court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the court thinks fit.

[17]

Other Applicable Legal Principles - Substantive Application

Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst some of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act.
Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve "an overall 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 to correct 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 and advancement in life of an applicant.
The court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90, at [63].
In 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."
Of the freedom, in Grey v Harrison, Callaway JA said, at 366: "... [I]t is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent."
In Vigolo v Bostin, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained: "It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification".
In Goodsell v Wellington [2011] NSWSC 1232, I also noted, at [108], that: "Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated."
As Pembroke J said, in Wilcox v Wilcox, at [23]: "The court does not simply ride roughshod over the testator's intentions… The court's power to make an award is limited. The purpose of the discretionary power under Section 59(1) is to redress circumstances where 'adequate provision' has not been made for the 'proper maintenance, education or advancement in life' of the claimant. The adjectives 'adequate' and 'proper' are words of circumspection."
White J referred to these principles in Slack v Rogan; Palffy v Rogan, at [127]: "In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and (2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will."
Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and 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 (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.
As 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."
How those community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew, at [36] (Basten JA). His Honour added, in Phillips v James, at [113]: "As discussed by Allsop P in Andrew v Andrew [2012] NSWCA 308; 81 NSWLR 656 at [16], one can say little more as to the standards and values to be applied than that the court should be guided by its perception of 'prevailing community standards of what is right and appropriate'. Views will undoubtedly vary within the community as to the weight to be given to a testator's wishes as expressed in the will: Andrew v Andrew at [35]."
Thus, "there are difficulties for the courts in making their own unaided assessment of current community attitudes in a complex and changing social environment": Williams v Aucutt [2000] 2 NZLR 479, at [44]. As Emmett JA wrote in Burke v Burke, at [124]: "While community expectations and the feelings and judgment of the fair and reasonable man in the community are to be adopted as criteria, it is never self-evident what the community would expect or what its standards are or values would be. The expectations of individual members of the community may well vary widely… Indeed, it may be that individual members of the community would take the view that, apart perhaps from spouses, minors or disabled children, there should be no restraint on testamentary freedom. The Succession Act itself, in s 60(2), lays down criteria in very broad terms, leaving a very wide discretion for the Court."
In Chapple v Wilcox, at [13]-[14], Basten JA, after referring to what Allsop P had said in Andrew v Andrew, added: "One way of considering the present matter is to inquire what social, domestic or moral obligation the deceased had to provide for the claimant whilst still alive… There may be circumstances in which widely held community standards might expect a grandfather to make some provision for his grandchildren, for example where they had maintained a strong relationship and where there was reason to doubt the willingness or the ability of the parents to make adequate provision for their children. However, such considerations will always be influenced by the fact that the grandchildren are themselves mature adults. In the present case, relevant community values will be affected by the nature of the estate. Quite particular values might operate with respect to farming properties which are subject to fluctuations in relation to debt and revenue depending on natural events and particularly drought. They may also be affected by the financial viability of an estate and its capacity to support those owning or managing it, if broken up and part disposed of."
Barrett JA, at [64], wrote: "What Allsop P called 'the feeling and judgment of fair and reasonable members of the community' falls to be ascertained according to the circumstances of the particular case. Matters to be taken into account in making the relevant assessment are the applicant's financial position, the size and nature of the deceased's estate, the relationships between the applicant and the deceased and other persons who have legitimate claims upon his or her bounty and the circumstances and needs of those other persons: see Verzar v Verzar [2014] NSWCA 45 at [39]; Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 757 at [70]; McCosker v McCosker [1957] HCA 82; 97 CLR 566 at 571-572; Singer v Berghouse (above) at 210; Vigolo v Bostin (above) at [16], [75], [112]."
In all cases under the Act, what is adequate and proper provision is necessarily fact specific.
The Act is not a "Destitute Persons Act" and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice; Allardice v Allardice (1910) 29 NZLR 959, at 966. The use of the word 'proper' requires consideration to be given to more than satisfying the basic needs of an applicant. The standard of living of an applicant during the lifetime of the deceased is relevant, but the fact that an applicant has lived frugally, or that he, or she, has become accustomed to a life of relative penury, does not mean that the deceased's obligation under the Act is satisfied so long as the applicant can continue in that state: Pogorelic v Banovich [2007] WASC 45, at [62]; Butcher v Craig [2009] WASC 164, at [21].
Where the court is satisfied that provision ought to be made, then it is no answer to a claim for provision under the Act that to make an order would be to defeat the intentions of the deceased identified in the Will. The Act requires, in such circumstances, that the deceased's intention in the Will be displaced: Kembrey v Cuskelly [2008] NSWSC 262, per White J, at [45].
All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singer v Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12, at [56]. Nor does it follow that, if the court decides it is inappropriate to make a specific provision in respect of one identified head of claim, that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams, at [89].
Because it has been raised as a basis for part of Shaun's claim, I point out that if an 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] HCA 2; (1979) 143 CLR 134, at 148; Goodman v Windeyer, at 498 and 505. Thus, the actual and potential burdens on the financial resources of an applicant existing at the date of hearing, including those for which there is only a moral, and not a legal, responsibility, may also be material circumstances in considering an applicant's claim. Yet, the Act does not permit orders to be made to provide for the support of third persons 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), at 537; Mayfield v Lloyd-Williams, at [86].
What was said in Edgar v Public Trustee for the Northern Territory [2011] NTSC 5, by Kelly J, at [46], should be remembered: "There is no onus on the... residuary beneficiary under the will to show that she is entitled to be treated as such - or to prove what may be necessary for her proper maintenance and support. Rather the onus is on the plaintiff to show that proper provision is not available for him under the terms of the will. In determining whether this is the case the Court must have regard to all relevant circumstances including the size of the estate and the nature of the competing claim by the [residuary beneficiary]. In performing this task the Court must have due regard to the will of the testator and should interfere only to the minimum extent necessary to make adequate provision for the proper maintenance, education and advancement in life of an applicant who has passed the first jurisdictional hurdle. As Dixon CJ said in the passage from Scales quoted above, due regard must be had to 'what the testator regarded as superior claims or preferable dispositions' as demonstrated by his will." (Footnotes omitted)
In Foley v Ellis, Sackville AJA, at [88] noted that Singer v Berghouse "strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act".
In relation to a claim by a grandchild, in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275, at [113], I wrote: (a) As a general rule, a grandparent does not have a responsibility to make provision for a grandchild; that obligation rests on the parent of the grandchild. Nor is a grandchild, normally, regarded as a natural object of the deceased's testamentary recognition. (b) Where a grandchild has lost his, or her, parents at an early age, or when he, or she, has been taken in by the grandparent in circumstances where the grandparent becomes in loco parentis, these factors would, prima facie, give rise to a claim by a grandchild to be provided for out of the estate of the deceased grandparent. The fact that the grandchild resided with one, or more, of his, or her, grandparents is a significant factor. Even then, it should be demonstrated that the deceased had come to assume, for some significant time in the grandchild's life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild's support and welfare, or else that the deceased has undertaken a continuing and substantial responsibility to support the applicant grandchild financially or emotionally. (c) The mere fact of a family relationship between grandparent and grandchild does not, of itself, establish any obligation to provide for the grandchild upon the death of the grandparent. A moral obligation may be created in a particular case by reason, for example, of the care and affection provided by a grandchild to his, or her, grandparent. (d) Generosity by the grandparent to the grandchild, including contribution to the education of the child, does not convert the grandparental relationship into one of obligation to provide for the grandchild upon the death of the grandparent. It has been said that a pattern of significant generosity by a grandparent, including contributions to education, does not convert the grandparental relationship into one of obligation to the recipients, as distinct from one of voluntary support, generosity and indulgence. (e) The fact that the deceased occasionally, or even frequently, made gifts to, or for, the benefit of the grandchild does not, in itself, make the grandchild wholly, or partially, dependent on the deceased for the purposes of the Act. (f) It is relevant to consider what inheritance, or financial support, a grandchild might fairly expect from his, or her, parents.
The principles were referred to as "both apposite and helpful", in Simonetto v Dick [2014] NTCA 4, at [48].
The principles were also referred to, in more detail, more recently, by the Court of Appeal in New South Wales in Chapple v Wilcox, in which Basten JA added at [19]-[21]: "… the real provenance of the 'principles' is that they constitute a reflection of community values, being a factual matter, but one as to which reasoned findings of judges with experience in these matters may well provide valuable guidance. The second qualification is that the discussion in Bowditch follows the proposition that 'what is adequate and proper provision is necessarily fact specific': at [110]. It appears that the 'principles' then set out (including at [113]) are intended to operate with respect to s 59(1)(c) of the Succession Act. As suggested above, that provision appears to assume a pre-existing finding (or assumption), at least in the case of the second category of eligible person, that there are factors which warrant the making of the application. It seems clear that the matters set out by Hallen AsJ go as much to that question as to the question of what is adequate and proper provision. With those two minor qualifications, I would accept the guidance provided in Bowditch at [113]."
Barrett JA added, at [67]: "Hallen J was, of course, correct to emphasise that preconceptions are dangerous in this area. In Bladwell v Davis [2004] NSWCA 170, this Court disapproved the notion accepted in several earlier first instance decisions that a widow's claim was, of its nature, paramount or deserving of precedence over competing claims. As Bryson JA there said, referring to the equivalent process of evaluation under former legislation, '[p]reconceptions and predispositions are likely to be the source of inadequate consideration of the process required by the Family Provision Act 1982'. More recently, in Phillips v James (above), Basten JA (at [113]) cautioned against too ready acceptance of any assumption that children should be treated broadly equally. While the facts of every case are obviously unique, Hallen J's guidelines do, in my respectful opinion, provide a useful touchstone that may be applied with circumspection by judges called upon to ascertain and apply 'the feeling and judgment of fair and reasonable members of the community' in cases of the present kind."
In Griffiths v Craigie [2014] NSWSC 1339, after referring to the principles set out in Bowditch at 138, I added: "The grandchild's dependence, whether whole or partial, on the grandparent must be direct and immediate; it is not sufficient that the grandchild's dependence is the indirect result of the deceased providing support and maintenance for his, or her, own adult child, and thereby, incidentally, benefiting the deceased's grandchildren who are directly dependent on that child. …Yet, the obligation of a parent to provide for his, or her child does not, necessarily, negate, in an appropriate case, the moral obligation of a grandparent to make provision for the maintenance, education or advancement in life of a grandchild out of her, or his, estate. The fact that the parents, or either of them, of a grandchild have, or has, predeceased the grandparent may be a relevant factor in support of the claim made by a grandchild. A relative want of resources in the parent of the grandchild may create an obligation of the deceased towards a grandchild. For example, where the deceased is of ample means, she or he, reflective of prevailing community standards, might well recognise, in certain circumstances, a duty to make provision out of her, or his, estate for the grandchild who has needs. If the estate or notional estate could satisfy the grandchild's claim without significant adverse impact on the chosen beneficiaries, a duty to provide for the education, maintenance and advancement in life may arise."
(As will be read later, what I have identified, go as much to factors warranting the making of the application and what is adequate and proper provision.)
I repeated in both cases that I did not intend, and by what is written in this case, I do not intend, what I describe as "applicable legal principles" or other "general principles", to be elevated into rules of law, or intend the discretion of the court, to be constrained by statements of principle found in dicta in decisions on similar facts. I identify them merely as providing useful assistance in considering the statutory provisions the terms of which must remain firmly in mind. As stated, they are "a useful touchstone that may be applied with circumspection": Chapple v Wilcox, per Barrett JA, at [67], which "may give assistance, and provide guidance, but are not to be elevated to rules of law": Burke v Burke, per Ward JA, at [84]. The warnings are salutary and confirm that the principles should not be applied mechanically.
As Lindsay J said in Verzar v Verzar [2012], 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]."
Also, I respectfully agree with the statement of White J in Slack v Rogan; Palffy v Rogan, at [126]: "The question of whether the provision, if any, made for an eligible applicant is adequate for his or her proper maintenance, education or advancement in life is to be assessed having regard to the facts and circumstances of each individual case. The assessment involves a broad evaluative judgment which is not to be constrained by preconceptions and predispositions (Bladwell v Davis). This really means that there are no definite criteria for the exercise of the 'evaluative judgment'."

[18]

Facts identified by reference to s 60(2) of the Act

Next, I set out further facts that I am also satisfied are either not in dispute, or that have been established to my satisfaction by the evidence. I do so by reference to the matters in s 60(2) of the Act to which I may have regard. I have taken this course, 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 [2012], at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered. (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship
The following comment was made by Campbell JA in regard to the court's consideration of the totality of the relationship between the applicant and the deceased in Hampson v Hampson [2010] NSWCA 359, at [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."
The word "family" is not defined in the Act. However, there is no dispute that Shaun is a grandchild of the deceased and, thus, part of his "family". Shaun knew the deceased for the whole of his life. That he maintained a close and loving relationship with him, at least until 1995 or 1996, when he moved into the Albion Park property, is clear. He says, and I accept, that as a young child, he would spend some weekends, and many school holidays, with Paul and the deceased. He says that they would watch football and cricket together. He also says that the deceased "tried to do the things for me that my father could no longer do". The deceased "spoiled [him] with gifts such as new TVs, stereo equipment and holidays". He adds that the deceased would give him money whenever he visited and, when he was not staying with Pamela, the deceased told him that he would give Pamela money to be passed on to Shaun. The amounts given to Shaun varied between $200 and $300.
I have considered whether, properly seen, Shaun spending holidays with the deceased, and Paul, was no more than the deceased offering hospitality, rather than undertaking a responsibility towards Shaun's maintenance and support akin to that of parental responsibility. However, it was not put to Pamela, who was cross-examined, that during these periods, the deceased did not support Shaun. In this respect, the cross-examination was limited to the following, at T59.30-T59.40: "Q. Throughout this whole period from him leaving school and [him] making his own way in the world with his apprenticeship and‑‑ A. Yeah. Q. ‑‑caring for his father and going on, and now meeting Angela and so forth, he could always count on you to give him support? A. My word, yeah. Q. In fact, he always looked to you, given the situation with his father, didn't he, as the parent? A. Yes."
Nor was it put to Pamela that she had made some arrangement, with the deceased, to contribute to Shaun's board and lodging during these holidays, by, for example, using the maintenance that was provided by Paul after 1992. Nor was it suggested to Pamela that Shaun's evidence about the deceased giving money to her, for him, at other times, was wrong
There is a dispute, primarily between the evidence of Shaun and that of Donna, going to the relationship between the deceased and Shaun after 1995 or 1996. Shaun deposes to having had "a very close relationship with… the deceased". (Of course, as earlier written, Donna did not meet the deceased until 2010.)
Initially, Shaun said that the deceased paid for two holidays for Shaun. In cross-examination, however, he acknowledged that these funds may have come from Paul's compensation payout, rather than from the deceased's funds. Otherwise, the deceased would pay for various things for Shaun and his family, and would also buy gifts for his family. By way of example, he refers to gifts of clothing for him, Angela, and the children. If they went shopping together, the deceased would go to the cash register first and pay for things that had been purchased.
The deceased invited Shaun and his family to live with him in the Albion Park home after Paul moved to a nursing home. However, they did not accept the invitation. He told Shaun "this is all for you and the kids." (Angela confirmed that, over the years, the deceased had made similar statements to her.)
Although Shaun wrote in an affidavit that when he was incarcerated in 2011, he "spoke regularly on the telephone" with the deceased and they would often write letters to each other, this has been proved to be somewhat of an exaggeration. I have earlier set out the evidence of the correspondence passing between them, and there is only evidence of one telephone call from Shaun to the deceased whilst he was imprisoned.
In the months leading up to the deceased's death, Shaun would telephone the deceased every 3 or 4 weeks. Shaun saw the deceased for the last time about two months before his death.
Angela gives evidence of keeping in contact with the deceased after she met Shaun in 2002. She says that she visited the Albion Park property "on several occasions", the first time being in 2002, shortly after she and Shaun commenced their relationship. She says that on the occasions she went to Albion Park with Shaun and the children, they would stay for a few days.
The fact that Raina, Angela's daughter, is referred to as a beneficiary, in my view, supports Angela's evidence that the children, particularly Raina and Hailey, had visited Paul and the deceased "a number of times".
Donna gave evidence that the deceased said to her that "Shaun has been in contact with me more times since Paul passed away than he has during his life which is when Paul and I needed him".
Shaun's son, Robert, was, apparently, named after the deceased, a matter which the deceased "appeared incredibly pleased and proud" about. He described it as "a really nice gesture" to Angela. (Other evidence, from Donna, suggests that the deceased regarded it otherwise, but I do not think anything turns on this dispute.)
Donna also gave evidence that the deceased would speak to her about the lack of contact between Shaun and the deceased, as well as the deceased's disappointment in Shaun. There does appear to be some support for the lack of contact between Shaun and Paul. I have previously referred to the deceased's statements to others, at various times, that Shaun did not have much to do with Paul, from which statements I infer that Shaun did not come to the Albion Park property to see Paul very often.
Otherwise, there is little evidence about Shaun's relationship with the deceased in the period between 1996 and 2011. Whilst I am of the view that there was some face to face contact during the early parts of this period, particularly after Shaun met Angela, I do not accept that Shaun saw very much of the deceased during this period.
Shaun did face some personal difficulties to which I have referred. In addition, he was living at the Central Coast, and at least after 2002, had a young family to look after and raise. No doubt because of the tyranny of distance, and his own busy life, he visited the deceased less often than either would have liked. This he belatedly acknowledged in his letters to the deceased.
I tend to the view that, after 1996, the contact was not as significant as Shaun suggested. I am satisfied that there were some visits, with Angela, and perhaps, some of the children to visit Paul and the deceased but there was no contact it seems, between about 2006 and 2010. I have also referred to Shaun visiting the deceased for 3 days in November 2011.
I have carefully considered Donna's evidence about her conversations with the deceased about Shaun. Senior counsel for Shaun was unable to cross-examine her about these conversations and I cannot conclude that they did not occur. In this regard, in considering some of her evidence, although not objected to, it is clear that it cannot be based on her own knowledge or observation.
It is not surprising that the deceased was angry and, perhaps, disappointed, that he was not seeing as much of Shaun as he had previously when Shaun would visit. No doubt, he was also upset and disappointed when he found out that Shaun was in prison. In one sense, his expressed disappointment confirms the closeness of their relationship, at least before 1996. Yet, the letter from the deceased to Shaun, in 2011, also demonstrates the nature of their relationship and the emotional support he was prepared to provide to Shaun.
Overall, I am satisfied that Shaun's relationship with the deceased, at least until 1996, was a reasonably strong and close one. Thereafter, whilst there was not as much contact between them, I am satisfied that they were not estranged, and that the deceased continued to hold strong feelings of affection for Shaun. The content of the correspondence between them demonstrates the feelings and concern each one had for the other. (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
There 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 social, domestic, legal or moral obligations or responsibilities. The sub-section requires the consideration of obligations or responsibilities as between different applicants, and as between applicants and any beneficiaries, of the deceased's estate.
I have set out the nature of the obligations and responsibilities of a grandparent earlier. In this case, I must also remember the circumstances of Paul and his ability, as Shaun's father, to look after and to provide for him.
A representation or promise to make a provision can be material in giving rise to an obligation to make provision. (I shall later refer to the evidence about the deceased's conversations in which he told Shaun and Angela, at different times, of his intention to provide for Shaun and his family.)
I am satisfied that, in the circumstances of the present case, the deceased did have an obligation, or responsibility, arising under the Act as a result of his familial relationship as the grandparent of Shaun. However, the deceased did not have any legal, or financial, obligation to Shaun imposed upon him by statute or common law.
In relation to the obligation or responsibility to his great-grandchildren, I am unable to see that the deceased had any particular obligation or responsibility to any of them. There is no evidence that he had a special relationship with any of them; in fact, he may not have even seen some of them. The deceased did not have any legal, or financial, obligation to any great-grandchild imposed upon him by statute or common law.
In relation to Donna, I am of the view that the deceased had some obligation to her. For about the last two years of the deceased's life, she assisted him. Clearly, by appointing her as his guardian and as a joint Attorney, he reposed trust and confidence in her. She seems to have been available to assist him at a time in his life when he required such assistance. Shaun acknowledged that the deceased told him that "I've got somebody to care for me now. I've had to get somebody in to help me do some chores and things. She just cooks and does a bit of cleaning for me and runs me down to the shops if I need to go…"
Yet, the deceased did not have any legal, or financial, obligation to Donna imposed upon him by statute or common law. (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
I have dealt with this earlier in this judgment. In calculating the value of the net estate, the liabilities or charges to which the estate is subject, including the costs of the proceedings, have been accounted for. On any view, the deceased's estate, at the date of hearing, is of reasonable value. (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
This sub-paragraph, if considered, calls for a comparison of the financial resources (including earning capacity) and financial needs, both present and future, of applicants and the beneficiaries of the deceased's estate.
Basten JA in Neale v Neale, at [22], described the sub-section as involving "an essentially evaluative exercise. The past and present can be established by evidence, although the level of detail must bear a reasonable relationship to the amount at stake. Prognostication is not, in this context, a science. It will inevitably involve some assessment of what an individual has done in the past as a basis for speculation as to the future."
Shaun is unemployed and has been for a number of years. As at 16 June 2015, he received the Newstart Allowance from Centrelink of $468 per fortnight and has a fortnightly expenditure of $250. It is unlikely that this expenditure takes into account all of his family's expenditure. His assets are of a negligible value, mostly made up of furniture, jointly owned, valued at $2,000.
As at 16 September 2013, Shaun estimated his monthly expenditure for himself and his family as being $2,700. At that point, Angela received $1,380 per fortnight from Centrelink. It is unclear whether Angela is still in receipt of this sum although it was not suggested that she has continued to receive at least that amount.
At the hearing, counsel for Shaun submitted that provision, by way of a lump sum of between $250,000 - $300,000 would be adequate and proper in all the circumstances. This appears to be less than what had been identified in Shaun's affidavit, in which he had sought a sum to enable him to: "a. …purchase… a 5 bedroom house for myself and my family; b. …purchase… some new furniture for the home including bedroom suites, beds and other household furniture. c. …purchase… a motor car being a people mover capable of carrying at least 8 people; d. …assist in being able to provide for the needs of my son, Jackson; e. …assist in the education of my children; and f. …assist me to live and provide for me and my family."
As stated, the court may also consider the financial resources, including earning capacity, and the financial needs, both present and future, of the beneficiaries of the deceased's estate. Donna's assets, in June 2015, include real estate (a property registered in the name of her husband, Clint) ($340,000), cash in a bank account ($206,972), superannuation ($5,000) and three motor vehicles ($56,000). Clint has superannuation ($25,000) and a Harley Davidson motor cycle ($35,000). Donna and Clint have two joint bank accounts ($3,521). Donna's only liability is their joint mortgage ($123,840). Donna's fortnightly income is $1,783 and her fortnightly expenditure is $1,780. Of course, based on the concession made by senior counsel for the Plaintiff, she will also receive at least the devise of the Albion Park property ($635,000).
(I accept Donna's evidence about the error in her affidavit which appears to duplicate the amount she received from Challenger Life.)
There is no evidence about the financial and material circumstances of each of the great-grandchildren, or Raina. However, each is a minor and it is highly unlikely that she, or he, has any financial resources. (e) if the applicant is cohabiting with another person - the financial circumstances of the other person
Shaun presently lives with Angela and their six children and her child. I have referred to the income that Angela also received as at September 2013. (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
Shaun has suffered from depression since childhood and was referred to a psychiatrist in his late twenties. He was prescribed Lexapro by his General Practitioner, Dr Owain Roberts, in about October or November 2012, which he took for about one month. He considers that he is still suffering from depression, although he has not visited Dr Roberts for any further treatment.
I have earlier referred to the period during which Shaun appears to have been addicted to prescription drugs, but, gladly, he appears to have overcome his addiction to them. I have also referred to problems with his back.
Donna had two incidents in about 2008 and 2009 which resulted in permanent nerve damage down the right side of her leg which is, as a consequence, permanently numb. The results of a CT scan show a "huge right-sided L5-S1 disc extrusion with compression of the right S1 nerve root and possible impingement of the right S2 nerve root." If she were to injure her back again, she would require more surgery, months of rehabilitation, and equipment to accommodate her impairments.
I have earlier referred to one of Shaun's children being diagnosed with Asperger's Syndrome. (g) the age of the applicant when the application is being considered
Shaun is now 35 years old, having been born in July 1980. (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
Shaun did not make any financial contribution to the acquisition, conservation and improvement of the estate of the deceased. (Whilst he may have assisted in doing some work around the Albion Park property when he lived there for 6 to 8 months, I do not regard this as a relevant contribution.)
Shaun may have made some contribution to the welfare of the deceased and to Paul prior to 1996, but that contribution lessened thereafter. (In relation to Paul, I remember also that Shaun received a carer's pension.) Despite the evidence of Donna, I accept that when he visited the deceased, with Angela and his children, he did make some contribution to the welfare of the deceased. He probably also provided some welfare contribution in communications with the deceased after 2011, although, I accept, this would not have been very substantial. (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
I have set out the provision made by the deceased for Shaun during his lifetime. As also stated, Shaun received no provision under the last Will of the deceased. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,
I have earlier referred to the terms of the deceased's prior Wills.
Shaun gave evidence of conversations that he had with the deceased relating to the deceased's testamentary intentions. He gave evidence, as did Angela, that the deceased would often say to him words to the effect of "this is all for you and the kids".
In 2011, while Shaun was in prison, Shaun had the following conversation with the deceased: "Deceased - 'My brother has died and left me a hell of a lot of money. I am giving it all to you and the kids mate, because I know youse got nothing'. Me - 'You don't have to do that pop. You're not obligated to do that'. Deceased - 'You're mine and your father's only living relative. Who else would I give it to, the bloody government?'" (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
I have set out the periods during which Shaun was being maintained by the deceased. It is clear that the deceased did not maintain him for a number of years before the deceased's death. (l) whether any other person is liable to support the applicant
Apart, perhaps, from the Commonwealth government's obligation to continue to provide Shaun with a pension, there is no other person liable to support him. (m) the character and conduct of the applicant before and after the date of the death of the deceased person
An evaluation of "character and conduct" may be necessary, not for the sake of criticism, but to enable consideration of what is "adequate and proper" in all the circumstances. The Act does not limit the consideration of "conduct" to conduct towards the deceased. Nor is it limited to character or conduct of the applicant such as to disentitle him, or her, to the benefit of any provision. In referring to character and conduct of an applicant, the Act also contemplates good conduct as it would constitute an injustice if such a factor were not taken into account.
I have dealt with Shaun's conduct previously. It seems that he has turned his life around in that there is no suggestion of any criminal conduct since 2010. (n) the conduct of any other person before and after the date of the death of the deceased person
I am satisfied that as far as the deceased was concerned, Donna did assist him as required. This was acknowledged by the deceased. However, the period of that assistance was about 2 years.
Although much was made about Donna's conduct in relation to the draft 2011 Will of the deceased, he subsequently chose her as a beneficiary and devised to her the Albion Park property and a one half share of residue.
There is no conduct of the other beneficiaries which should be taken into account. (o) any relevant Aboriginal or Torres Strait Islander customary law
This 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
This sub-section provides a wide discretion to look beyond the specific matters set out in the immediately preceding sub-paragraphs.
I have also referred to the amount received by Shaun following the death of Paul. I have also referred to the distribution that has been made to Donna by the payment to her of one half of the proceeds of the annuity with Challenger Life.
Finally, I have referred to the inheritance by the deceased of Paul's entire estate (albeit that it was not very large). The genesis of the assets in the deceased's estate is relevant. Sub-section (h) above is limited to the applicant's contributions, (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased or to the welfare of the deceased or his or her family.

[19]

Determination

As stated, Shaun's proceedings were not brought within the time prescribed by the Act. They were a few days out of time. (Therefore, it is unnecessary to consider when the application would have been likely to have been heard if made within time, and then to compare the position in that event with the position in fact, namely that the application has been made out of time.)
I am satisfied that the reason for the delay has been given. Whilst one cannot condone the mistake as to the date of the deceased's death, that is clearly what it was, a mistake, and had the correct date been known, the proceedings would have been commenced within time. In addition, the Defendant was given notice of the intention to make a claim for a family provision order, and the Defendant, fairly, concedes no prejudice would be suffered if the time for the making of the application were extended.
There is also no suggestion of lulling the beneficiaries into a false sense of security so that they order their affairs on the basis that their legacies would not be disturbed, or that allowing Shaun's application to proceed would have the effect of improving his position from that which would have existed if it had been made in a timely way.
Because of these matters, and also because I am satisfied that a family provision order ought to be made in Shaun's favour, the overall justice of the case requires the court to make an "otherwise order" and to extend the time for the making of Shaun's application to the date of the filing of the Summons. To do otherwise would permit the section to be used as an instrument of injustice.
Being 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. As stated, there is some dispute that Shaun is an eligible person. This dispute is limited to whether he was wholly, or partly, dependent upon the deceased, since there was not any dispute that he is a grandchild of the deceased.
It is enough for Shaun to establish that he was wholly, or partly, dependent upon the deceased at "any particular time". In this case, only partial dependency, both financial and emotional, is relied upon.
Whilst the evidence about financial dependency is not very strong, overall, I am satisfied that there was partial dependency, to a limited extent financially, but, more importantly, emotionally, upon the deceased. This is hardly surprising bearing in mind Paul's condition which he suffered when Shaun was 2 years old. In my view, after 1982, until about 1996, the deceased played a significant role in Shaun's life. In addition, for a period of about 6 months, the deceased provided Shaun with accommodation and board, without cost. True it is that Shaun was there, principally to assist Paul, and indirectly to assist the deceased, but, at that time, he was only 15 or 16 years of age. During this period, Shaun's dependence upon the deceased was direct and immediate, albeit limited, although it would have been a very important period in Shaun's life.
That it was the deceased to whom Shaun wrote (albeit after the death of Paul) is also an important matter as it sets out Shaun's view of the deceased at a time well before any proceedings had been commenced.
In my view, the letter written by the deceased to Shaun clearly demonstrates more than the mere fact of a family relationship between grandparent and grandchild.
Taken with all of the other evidence, including that when he spoke to the officer of the Defendant, in giving instructions for the last Will, the deceased did not expressly deny that Shaun had been dependent upon him, I am satisfied that Shaun was partly dependent upon the deceased. As a partly dependent grandchild of the deceased, he is an eligible person within the meaning of s 57(1)(e) of the Act.
I am also satisfied that there are factors that warrant the making of Shaun's application. These include the personal relationship and emotional bond between Shaun and the deceased, particularly until 1996, and to a lesser extent thereafter; that Shaun was the deceased's closest blood relative at the date of his death; that, as a result of a payment out of Paul's compensation, the Albion Park property appears to have been improved, albeit that the improvements were made for Paul's benefit, with the result that Paul's property was reduced; that Shaun's father, Paul, predeceased the deceased; that the whole of Paul's estate passed to the deceased, rather than to Shaun, his only child; that there is no evidence that Shaun would expect to inherit anything substantial from Pamela's estate; and finally, that in prior wills of the deceased, Shaun was identified as a beneficiary or substitute beneficiary.
Then, the question for determination is whether, at the time the court is considering the application, adequate provision for the proper maintenance or advancement in life of Shaun has not been made by the Will of the deceased.
Of course, there is no provision made for Shaun in the Will of the deceased. In considering the answer to the question posed, judged by quantum and looked at through the prism of his, financial and material circumstances, adequate provision for his proper maintenance or advancement in life was not made by the Will of the deceased.
As discussed above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence. Whilst Shaun and Angela are mature adults, they have seven children to support and to provide for. As I have earlier stated, where the applicant has a child who is, or children who are, dependent on him for support and education, that circumstance may be taken into account when considering what is necessary and adequate for the applicant's proper maintenance. Of course, I have not forgotten that separate provision was made for his children by the deceased's Will.
Shaun has no assets of his own. Most importantly, he has no fund available for exigencies of life. His circumstances are parlous. Furthermore, whilst I consider that Shaun has some earning capacity, he has been unemployed for about 5 years and he does have a prison record. The prospects of obtaining work are likely to be more difficult for him. In addition, he does suffer from depression (albeit that he does not seek treatment) and also has had problems with his back. Clearly, he is afflicted with some limitations that affect his ability to provide for himself and for his large family.
Also, there is no evidence that he can expect any significant family provision except from the deceased's estate. Whilst Pamela is clearly supportive, Shaun has lost the immediate and continuing support of Paul, who might normally be expected to provide some assistance for Shaun's advancement in life.
Whilst a lump sum, for maintenance or advancement in life would be appropriate, that is not all that I am required to consider at the first stage. The totality of the relationship of the applicant and the deceased, the age and capacities of the other beneficiaries, and their claim on the bounty of the deceased, are very relevant factors in determining the answer at the first stage.
I bear in mind that Donna and that Shaun's children and Raina are competing claimants upon the bounty of the deceased. However, Donna, in succession terms, is a "stranger" (not related by marriage or blood to the deceased), and the deceased's great-grandchildren and step-great-grandchild do not appear to have had any special bond with the deceased. Of course, they are the chosen object of testamentary bounty.
According to prevailing community standards, I am satisfied, for the purposes of s 59(1)(c) of the Act, that adequate provision for the proper maintenance, education or advancement in life has not been made for Shaun. I am of the view that the deceased's disappointment, as a wise and just testator, should not have blinded him to the needs of his only grandson for maintenance or advancement in life.
Turning then to s 59(2), namely the question what provision "ought to be made for the maintenance, education or advancement in life" of Shaun having regard to the facts known to the court, the more difficult question is what would constitute adequate and proper provision. There is no formula that can be used to determine the amount of that provision.
I am satisfied that there is a clear need for provision for Shaun out of the estate of the deceased for his immediate, and long-term, financial security and for future contingencies. Whilst only some of his "needs" may be able to be quantified with certainty, that does not prevent the court exercising its discretion in awarding additional provision to him to cover those that cannot.
Contrary to the submissions made on behalf of the Defendant, cases under the Act are decided on the basis of broad principles, not fiscal micrology: Re Hilton [1997] 2 NZLR 734, at 738. The court should not focus only on Shaun's particular, or specific, known needs, but rather upon his needs in the 'relevant sense', namely, in the sense of what is necessary for his proper maintenance or advancement in life. As stated earlier, proper provision does not merely mean an amount required for an applicant's subsistence. As Gleeson CJ said in Vigolo v Bostin, at [12]: "The legislation was not merely, or even primarily, concerned with relieving the state of the financial burden of supporting indigent widows and children. The courts were not empowered merely to make such provision for an applicant as would rescue the applicant from destitution."
But this does not mean that the submission made on behalf of Shaun that he should receive a lump sum that would enable him to purchase a 5 bedroom home for himself and his family should be accepted. Even though the estate is of reasonable value, it is not so large as to enable such provision to be made for him. In any event, to do so would, in my view, be more than adequate and proper provision in all the circumstances of this case.
Yet, the size of the deceased's estate is sufficiently large to provide more than $55,000 to $65,000, which lump sum the Defendant submitted should be the order of the court if the court were satisfied of all matters necessary to enable an order to be made. Apart from that, even the higher amount would not provide very much to Shaun by way of a lump sum for exigencies of life bearing in mind the matters to which I have referred. The word "proper" in the relevant section of the Act is important as stated previously.
Having considered all of the matters I am required to consider, taking into account all of the circumstances of the case, including the nature and value of the estate, the nature of the relationship of Shaun and the deceased, both before and after 1996, his financial resources (including earning capacity), both present and future, as well as the competing claims of the residuary beneficiaries as the chosen objects of the deceased's bounty, doing the best I can, I consider the amount of the lump sum that Shaun should receive by way of family provision order should be $225,000.
After the payment of what might be regarded as his needs as may be quantified, the balance should provide him with a fund for exigencies, contingencies, and for a financial start in life as an adult. Income, if any, that is paid on the balance of the amount not used for his immediate needs may be used also to meet expenses that he is unable to meet.
It is next necessary to determine how the burden of provision for Shaun ought to be met. I must balance Donna's circumstances, as the primary beneficiary, against the circumstances, needs and claims of Shaun and the other beneficiaries.
In this regard, I am of the view that the burden of the provision made for Shaun should be borne out of the share of the residue passing to Donna. In this regard, although she is one of the chosen objects of testamentary bounty, as I have written, she is not related by blood or marriage to the deceased and, more importantly, she only knew him for about 2 years.
She has already received $375,000 as a result of the death of the deceased, she has received the cars, and she will be entitled to the Albion Park property ($635,000) absolutely. There is no doubt that the value of the provision for her, even if she bears the whole of the burden, will exceed $1.0 million. It is quite possible, on the estimates provided earlier, if they prove accurate, and even if her share of residue bears the whole of the provision for Shaun, that she will still receive a part of the residuary estate. In the circumstances, she is well provided for and, overall, her financial and material circumstances are, and will remain, far superior to those of Shaun.
To order the great-grandchildren of the deceased to bear the burden of provision would reduce, significantly, the share each will receive. Each is unlikely to benefit from her, or his, parents to any significant degree, and the provision out of the estate of the deceased will, at least, provide her, and for him, with a start in life. Whilst they are minors, it may also assist in providing some maintenance.
There was a brief argument about Donna's costs of the proceedings whilst she was a party. In my view, she was joined as a party and, accordingly, she should receive her costs, calculated on the ordinary basis, out of the estate of the deceased. In this regard, such an order will still mean that her share of residue will be bearing a part of her costs.
The orders of the court are that: (i) Sufficient cause having been shown, the time for the making of the Plaintiff's application be extended to 15 July 2013, the date of the filing of the Summons. (ii) Having found that the Plaintiff is an eligible person; that there are factors which warrant the making of his application; and that the provision made for him in the Will of the deceased is inadequate for his proper maintenance or advancement in life, he is to receive a lump sum of $225,000 out of the estate of the deceased. (iii) The burden of the provision made for the Plaintiff, should be borne out of the share of the residuary estate of the deceased passing to Donna Marea Costigan; and to the extent that it is insufficient, by the balance of the residuary estate. (iv) No interest is to be paid on the lump sum payable to the Plaintiff, if that lump sum is paid within 14 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898 (NSW), on unpaid legacies, is to be paid from that date until the date of payment. (v) Unless an application to vary this costs order is made within 7 days of the date of handing down these reasons for judgment, the costs of the Plaintiff, calculated on the ordinary basis; the costs of Donna Marea Costigan, for the period that she was a party between 21 February 2014 and 5 December 2014, calculated on the ordinary basis; and the costs of the Defendant, calculated on the indemnity basis, shall be paid out of the residuary estate of the deceased. (vi) Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW).

Grover v NSW Trustee & Guardian

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Cases Cited (96)

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