Hamilton v Moir

Supreme Court of NSW|2013-08-08|Before: Hallen J

Introduction 1HIS HONOUR: These reasons relate to proceedings, in which Vera Caroline Hamilton makes a claim for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act"), out of the estate of Marietta Moir ("the deceased"). The deceased and her husband cared for the Plaintiff, as a foster child, for about 18 months. 2The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 ("the former Act"), which was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008, effective from 1 March 2009 (s 2(1) Succession Amendment (Family Provision) Act 2008 and Government Gazette No. 38 of 20 February 2009, page 1036). A family provision order is an order made by the Court 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. In addition, the Plaintiff seeks the designation of property as notional estate and her costs of the proceedings. 3The Summons was filed on 20 August 2012, that is, within the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased). The Defendants named in the Summons are Graham James Moir and Paul Ashley Moir, each of whom is a biological child of the deceased and together they are the executors named in the deceased's Will. 4There were numerous affidavits read, documents tendered and oral evidence heard, during the trial. I have also received written, and heard oral, submissions from counsel. I shall not lengthen these reasons with all the evidence, or all of the submissions, although I have had regard to it all. 5Throughout these reasons, I shall refer to the parties and other family members, where necessary, after introduction, by his, or her, first name. This is for convenience and I hope that it will not be thought discourteous.

Background Facts - Formal Matters 6The following facts are uncontroversial and provide a useful background. 7The deceased died on 6 September 2011, aged 95 years. She was born in May 1916. 8The deceased was married to Victor Eugene Thomas Moir. He predeceased the deceased, having died in about 1988. There were two children of their marriage, being Graham, who was born in October 1945, and who is currently 67 years of age and Paul, who was born in December 1947 and who is currently 65 years of age. 9At the date of his death, Victor was the registered proprietor of a property at Strathfield, which was the matrimonial home. He had been the registered proprietor from November 1950. By the terms of Victor's Will, which was also made on 5 March 1981, and following the registration of a Transmission application dated 5 September 1988, the deceased became the sole registered proprietor of the Strathfield property on 14 September 1988. 10(Vera was named as a beneficiary in Victor's Will also. Clause 4, in which she was named, was in the same terms as the Clause in the deceased's Will to which I shall refer.) 11The deceased left a formally executed Will that she made on 5 March 1981. Probate, in common form, of that Will was granted by this Court to Graham and Paul on 26 October 2011. 12The Will, in the events that happened (the death of Victor, the sole beneficiary, before the deceased), after a bequest of her jewellery and personal belongings equally to those of her granddaughters who survived her, provided a bequest of one third of the proceeds of her bank accounts, building society accounts and cash in hand, to Vera, and then gave the whole of the residue of the estate not otherwise disposed of, to Graham and Paul in equal shares. 13The deceased did not describe Vera, other than by name, in her Will. 14In the Inventory of Property placed inside, and attached to, the Probate document, the property owned solely by the deceased was disclosed as consisting of the property at Strathfield, ($880,000), furniture watches and jewellery ($250), cash in bank ($4,434) and shares in companies ($594). The estimated, or known, value of the deceased's estate, at the date of death, was $885,278. (I have omitted, and shall continue to omit any reference to cents, which explains what may appear to be mathematical errors.) 15The deceased had no disclosed liabilities at the date of death. There were, of course, funeral expenses to which I shall refer. 16The Defendants have distributed the whole of the deceased's estate. In an affidavit sworn on 8 July 2013, the Defendants stated that the Strathfield property was sold, and that the net proceeds of sale were $901,373. They then said that, out of the deceased's estate, each received $450,943 (including $37,875 being one half of the deposit and $257 being one half of the proceeds of sale of the parcel of shares). (Of the amount distributed to them, their current solicitors retained $276,236 out of the share of the estate passing to Graham. It remains in an interest bearing deposit.) On 18 January 2012, the jewellery was distributed to the grandchildren. 17On 18 November 2011, a cheque, for $5,684, being the whole of the amount then, in the deceased's bank account, was paid to Vera. (Under the Will, she was only entitled to receive one-third of that amount, but the Defendants say that they paid her the whole amount "as a gesture of goodwill".) 18Vera gave evidence that she did not then, and has not since then, deposited the cheque that she was given. This had not been disclosed in any of her affidavits. Her reason for not doing so was "Because I started proceedings. Because... I don't know". (The principal relevance of the failure to present the cheque relates to her financial resources, to which reference will be made later in these reasons.) 19At the date of hearing, the amount of $283,535 (including interest of $7,299) remains held in the interest bearing account by the Defendants' solicitors. 20Strictly speaking, there is no actual estate available for distribution. Vera seeks to have property that was distributed to Graham and Paul, sufficient to satisfy any provision made for her, as well as her costs of the proceedings, designated as notional estate. However, at the hearing, it was agreed that the Defendants would satisfy the family provision order, if any, made in favour of Vera and her costs of the proceedings. It is, therefore, unnecessary to discuss the notional estate provisions of the Act. They also agreed that they will bear the burden of such provision, and will satisfy any costs orders, equally. 21For the purposes of the hearing, the parties agreed that the current gross value of the distributed property is about $914,870. However, from this amount should be deducted $7,083, including GST, for professional costs and disbursements relating to obtaining Probate and dealing with the estate and $9,593, including GST, which has been paid, being the funeral expenses, as well as outgoings on the Strathfield property. It follows that the current net value of the estate, or notional estate, excluding the costs of the proceedings) is $898,194. 22In calculating the current net value of the deceased's estate, or notional estate, the costs of the proceedings should be considered, since the Plaintiff, if successful, normally, will be entitled to an order that her costs, calculated on the ordinary basis, be paid out of the estate, whilst the Defendants, as executors, irrespective of the outcome of the proceedings, normally, will be entitled to an order that their costs, calculated on the indemnity basis, be paid out of the estate. 23Her solicitor, Mr A Munro, estimated Vera's costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis, to be about $115,162 (inclusive of GST and upon the basis of a two day hearing). (There is an "uplift factor" included in the calculation of costs and disbursements estimated to be $12,919.) He has provided "factors that he says have led to the level of costs above what would ordinarily be required in this matter". He was not cross-examined on his affidavit. 24At the hearing, the Court was informed, from the bar Table, without objection, that Vera's costs, calculated on the ordinary basis were estimated to be $77,728. 25Their solicitor, Mr D C Ford, has estimated Graham's and Paul's costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis, to be about $106,243, inclusive of GST and upon the basis of a two-day hearing. Of this amount, about $71,196 has been paid, leaving a balance of $35,047 to be paid. 26Mr Ford's evidence of the reason why the estimated costs are "higher than what was originally anticipated" is limited to simply stating "the extent of the plaintiff's evidence and the plaintiff's solicitor's conduct of the matter". He, too, was not cross-examined on his affidavit. 27That over $220,000 (calculated on the indemnity basis) or $183,971 (calculated on the more usual basis) has been estimated as having been incurred in proceedings involving an estate of less than $900,000 (after payment of debts, funeral and testamentary expenses and costs of obtaining Probate) seems excessive and disproportionate. In Fiorentini v O'Neill [1998] NSWCA 79, Mason P, Handley JA and Fitzgerald AJA said: "The Court should set its face against litigation in which an estate is unnecessarily consumed in costs". 28However, since neither of the solicitors was cross-examined on his explanation of why the costs and disbursements were so high, it would not be proper to say any more. Of course, depending upon the result of Vera's claim, and any order made as to costs, the costs and disbursements, if payable out of the estate, will be able to be formally assessed, unless otherwise agreed by the parties. It follows that the amounts referred to are estimates only. Each party wishes to be heard on the question of how costs should be borne and the quantum of costs, following these reasons being published. 29It follows, also, depending upon the costs orders that are made, from the value of the estate the total amount of about $183,971, may be payable for the parties' costs, leaving the net value of the estate, to be about $714,223. 30There are a number of persons who have been described as eligible persons, within the meaning of the Act. They include the parties and two persons, Lynette Humphries and Lynette Green, each of whom is described as a "foster child" of the deceased. Neither has brought a claim under the Act, or otherwise appeared in these proceedings as a witness, but that is because the Defendants admit that neither has been given the prescribed notice, "as we do not have their contact details and have not been able to find them". 31The Defendants give evidence that "they have searched for them through Internet search engines and in the White Pages". They also say that they last saw them "when they left the deceased's care in the early 1960's and returned to the care of what is now called the Department of Family and Community Services ("the Department"). That was their last known whereabouts". 32The Act (as will be seen) provides that in determining an application for a family provision order, the Court may disregard the interests of any other person by, or in respect of whom an application for a family provision order may be made (other than a beneficiary of the deceased person's estate), but who has not made an application only if: (a) notice of the application, and of the Court's power to disregard the interests, is served on the person concerned, in the manner and form prescribed by the regulations or rules of court, or (b) the Court determines that service of any such notice is unnecessary, unreasonable or impracticable in the circumstances of the case. 33In this case, the Court must determine whether service of any notice is "unnecessary, unreasonable or impracticable" in all of the circumstances. 34Whilst I do not think that service of a notice is "unreasonable", I do think that it is "unnecessary" and "impracticable" in the circumstances of this case. It is important to note that whilst Vera is named as a beneficiary in the deceased's Will, neither Lynette is so named. Since there is no suggestion that either had any continued contact with the deceased after the period of time during which she was a foster child, in the early 1960's, the likelihood of either succeeding in a claim under the Act is remote. Therefore, it seems to me to be "unnecessary" to give each notice of Vera's claim. 35"Impracticable" is not defined in the Act. Something is said to be "impracticable" when it is incapable, as a practical matter, to do it, or when it is extremely inconvenient, or difficult, to do it, because, for example, of the associated costs. The word is not synonymous with the word "impossible". It directs attention to considerations of a practical, rather than a theoretical, nature arising out of the particular circumstances: Thornley v Heffernan (NSWSC, 12 September 1995, unreported), per McClelland J. 36Since nothing more is known of either Lynette, including her current surname, I am also satisfied that it is "impracticable", to serve a notice upon each.

The Statutory Scheme - Family Provision Proceedings

Introduction 37First, I shall discuss the statutory scheme that is relevant to the facts of these proceedings. Although I have set out some of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. 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 their application. 38The wording of the Act is similar to the wording of the former Act. However, it is necessary to remember the warning of Kirby P in Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100, at 76,304: "Purposive construction of the Act There is always a danger where a reformed Act borrows heavily upon ideas which previously existed in the common law or in an earlier statute, that lawyers will approach the construction of the Act affected by the previous law. Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 2 NSWLR 475, 478. That danger is but an illustration, in the specialised activity of law, of a universal phenomenon of psychology long established in relation to human perception generally. We tend to perceive what we expect. We expect that with which we are familiar. There is a particular danger in the case of the Family Provision Act in construing its terms by reference to the law which developed around the Testators' Family Maintenance and Guardianship of Infants Act 1916. That Act was passed in earlier times to govern the entitlements of a testator's family, as narrowly defined. The definition by s 3(1) of that Act confined applications to those made by "the widow, husband or children of such persons". There was no mention in it of former spouses. Doubtless this was because, for the early part of this century, divorce was relatively infrequent and then based upon concepts of matrimonial fault which would make interference in the testamentary disposition of the deceased unlikely. When enacted, the statute was a radical interference in the power of testamentary disposition. That was a significant power over private property, the disturbance of which was regarded as highly exceptional." 39Whilst the relevant amendments made by the Act are not as significant to those made by the former Act, it remains necessary to bear his Honour's warning in mind in construing the statutory framework. In doing so, a construction that promotes the purpose, or object, of the Act is to be preferred to a construction that would not promote that purpose or object. In my view, the principles applied by the Courts to the former Act continue to apply, except to the extent that the Act otherwise requires. 40As stated, the former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008. A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. 41Importantly, this should not be taken to mean that the Act confers upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, Will. The Court is given a statutory power that may be exercised only for the purpose for which it was granted. Thus, it is only if the statutory conditions are satisfied, that the Court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate, to produce a result that is consistent with the purpose of the Act. Even then, the Court's power to do so is discretionary.

Eligibility 42The key provision is s 59 of the Act. The Court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). The Court has no power to make an order in favour of an applicant who is not 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. 43I take "foster care" to mean substitute residential care and control of a child provided by a person, or persons, other than a parent of the child, when her, or his, own parents cannot care for her, or him, and which is promoted or furthered by a governmental instrumentality or voluntary agency. It may be for a temporary or extended period. A foster child does not legally become the child of her, or his, foster parents no matter how long the foster relationship lasts. 44Accordingly, the only category of eligibility that Vera could fall, and the one upon which she relied, is that she is "a person who was, at any particular time, wholly or partly dependent on the deceased person, and who was, at that particular time, or at any other time, a member of the household of which the deceased person was a member" (s 57(1)(e) of the Act). Neither element has a definition provided in the Act. Clearly, however, the language is reflective of the person's status, as well as his, or her, relationship to the deceased. There is no age limit placed on such a person making an application. 45The Defendants accept that Vera, for a period of 18 months, was a member of the household of which the deceased was a member and that she was dependant upon the deceased during this period. (The period referred to may be the subject of dispute by Vera.) Therefore, it is not necessary to deal with the meaning of the sub-section, with which I have recently dealt in Russell v NSW Trustee and Guardian [2013] NSWSC 370, at [27] - [51].

Factors Warranting the Making of the Application 46In the case of a person who is, relevantly, an eligible person by reason only of paragraph (e) of the definition of "eligible person" in section 57, 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)). 47The Act does not specify the "factors which warrant the making of the application". As Pembroke J in Wilcox v Wilcox [2012] NSWSC 1138, noted at [16], "[N]o legislative assistance is given as to the intended scope or meaning of this enigmatic requirement". 48However, 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 68 (approved in substance by the Court of Appeal in Churton v Christian [1988] NSWCA 23; (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. 49In Re Fulop, M McLelland J also said, at 683: "In the case of Mr Fulop the main factor is that from an early age (about 4 years) he became a child of the family unit comprising the deceased and his father and remained so until he left home at 18 years of age in the normal course and thereafter the family relationship thus established was recognized on all sides as continuing as if Mr Fulop were a child of the deceased as well as his father." 50In Graziani v Graziani (NSWSC, 20 February 1987, unreported), Cohen J, in dealing with an application by stepchildren, said, at 8-11: "There is nothing in the section to indicate what is meant by "factors", or how far the Court has to take the matter in order to warrant the making of the application .... ... In order to look at the factors which warrant an application in the case of a plaintiff who establishes that he or she is an eligible person under par (d) of the definition, it is necessary to look not only at the nature of the relationship, but the quality of it. The Court should consider the circumstances in which it arose and to some extent it must also look at the weight of the application which might lead to the finding that the plaintiff has been left without adequate provision for his or her proper maintenance, education or advancement in life. The circumstances must vary in every case and it would be foolish to seek to limit them in any way. Where, however, the plaintiff has established a position as a stepchild or perhaps a foster-child then there would be a number of relevant matters in my opinion which the Court should consider in deciding whether factors exist. These include the closeness of the relationship, that is whether it was one which might be properly described as parent and child, whether the plaintiff was brought up as a permanent member of the family, what was the age of the plaintiff when he or she became a member of that family, and the extent to which the plaintiff was supported by the deceased, whether it be financially, educationally or emotionally. If a consideration of these matters leads the Court to the opinion that the plaintiff was brought up and treated as a child of the testator and if all of the other circumstances show that there may have been a moral duty on the part of that testator to provide for the plaintiff then there are factors which would warrant the making of the application. The presence of only some of these factors, or of others which have not been listed, might also justify the Court's coming to the same opinion. The potential for inclusion in that part of the definition of 'eligible person' as is contained in par (d) is enormous. The range of persons who may be admitted is very great and it includes not only stepchildren but also parents, brothers and sisters, temporary foster children and many others who may have formed part of the household and for a period have been partly dependent upon the deceased. Accordingly it seems to me that those who were raised as part of the family as stepchildren would have less difficulty in establishing factors which warrant their application than would those at the other end of the spectrum who may have been members of the family for only a brief period and with only limited dependence." 51Kirby P, in Tsivinsky v Tsivinsky [1991] NSWCA 269, in dealing with the section of the former Act, said, at 13: "Insofar as s 9(1) gives any guidance concerning the factors 'which warrant the making of the application', it is Delphic. The language used is extremely broad in its generality ('all the circumstances', 'whether past or present', 'factors ... warrant making the application', 'satisfies'). The only real clue as to what is meant is to be derived from the apparent policy of confining this additional, preliminary procedure to the particular categories of 'eligible person' contained in the definition paras (c) and (d) in s 6(1) of the Act." 52In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard and Fitzgerald AJJA, there was the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test than that which the Court of Appeal approved in Churton v Christian. 53In Penfold v Perpetual Trustee [2002] NSWSC 648, Windeyer J did not follow Brown v Faggoter. Bryson AJ also commented in Porthouse v Bridge [2007] NSWSC 686: "[7] This provision gives no clear indication of the nature of the factors which should be regarded as warranting the making of the application. Decision whether there are factors which warrant the making of the application is committed to the Court in extremely general language; the Court is to have regard to all the circumstances of the case (whether past or present). The effect is that a very broad power is given to the judge who hears the case to recognize and assess the significance of the circumstances of the case and what regard should be paid to them, what the factors are and what they warrant. There may be very cogent factors which demonstrate that the making of the application is warranted, but it is unlikely that this will often be the case, and the section commits to the Court a power of determination which is difficult to distinguish from a discretion of the broadest kind. [9] ... The recognition of factors and their weight is left to the determination and opinion of the Judge. In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors ("there are factors") is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination." 54In Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89, Basten JA, with whom Allsop P and Ipp JA agreed, said of s 9(1) of the former Act: "[8] As noted above, compliance with this requirement was not the first issue addressed by the primary judge, although s 9(1) envisages that it is to be determined before the Court decides whether to "proceed with the determination of the application". In practice, the factors relevant to the issue raised as a preliminary matter are, to a significant extent, co-extensive with those which must be addressed in determining whether the testator made adequate provision for the applicant: see Churton v Christian (1988) 13 NSWLR 241 at 242-243 (Hope JA) and 248-249 (Priestley JA). Nevertheless, the express distinction between two classes of eligible person must be recognised. It appears to have been drawn on the basis that persons falling within the first category (comprised of those identified in pars (a) and (b)) are "regarded as natural objects of testamentary recognition", whereas those falling within the second category (identified in pars (c) and (d)) are potentially appropriate objects of testamentary recognition, depending upon their circumstances: see Churton at 252 (Priestley JA) applying the analysis of McLelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681." 55More recently, in Evans v Levy [2011] NSWCA 125, Young JA, with whom Campbell JA and Sackville AJA agreed, said: "[62] It would seem that what the drafter of the legislation of 1982 did was to endeavour to avoid some of the complications that had been found to exist with cases under the 1916 Act as to just who was an eligible person by broadening the category to a very extensive degree. However, to provide some sort of filter, s 9(1) was enacted so that, without the estate having to get into a great expense, the question of whether the application could possibly succeed would be determined early. Unfortunately, experience has shown that that was a vain hope. [63] However, the intended result of the wide nature of para (d) of the definition of "eligible person" and s 9(1) is to seek to restrict people whose claims should proceed to a hearing to those who are in very similar categories to those who are within paras (a) and (b) of the definition. [64] On s 9, the decision of M McLelland J in Re Fulop (dec'd) (1987) 8 NSWLR 679 has stood the test of time." 56In 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." 57It can be seen that the trend of authorities does not favour the view suggested in Brown v Faggoter, although the Court of Appeal has not said it is wrong. Even so, as Slattery J has noted in Lumsden v Sumner [2012] NSWSC 1440, at [89], "[t]he authorities do not suggest that the applicant's prospects of success cannot be taken into account as a factors warranting". 58With great respect, I also regard the views expressed in the authorities referred to by Windeyer J, Bryson AJ, Basten JA, Young JA and Meagher JA as correct and propose, in the circumstances, to follow their decisions. I have done so in other cases: see, for example, Fede v Dell'Arte [2010] NSWSC 1113; Curran v Harvey [2012] NSWSC 276; Sammut v Kleemann; Russell v NSW Trustee and Guardian. Other judges have done so as well: Barlevy v Nadolski [2011] NSWSC 129, per Slattery J, at [196]; Fry v Lukas; Brown v Fry; Estate of Honey; Application of Fry [2011] NSWSC 1329, per White J, at [82]; Wilcox v Wilcox, at [16]; Lumsden v Sumner, at [88]; Frisoli v Kourea; Frisoli v Kourea [2013] NSWSC 1166, per Slattery J, at [145].

Inadequacy of Provision 59It is only if eligibility and, as is necessary in this case, factors warranting the making of the application are found, 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, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (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". 60Allsop P in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, commented, at [6]: "... the expression of the task in s 59 is subtly different from the previous legislation. A prohibition against making an order unless satisfied of circumstances of an evaluative character, is different in emphasis from a permission to make an order if satisfied of circumstances of an evaluative character... The exercise of power to make the order is conditioned on the Court being satisfied of certain things in s 59(1). The order that may be made is described in s 59(2). The two elements are described in s 60(1)(b) as "whether to make [an] ... order and the nature of any ... order." Section 60(2) provides a detailed body of considerations for the task in s 59." 61Basten JA, at [26], put the differences this way: "As appears from the language of the relevant provisions set out at [66]-[67] below, the Succession Act differs from the Family Provision Act in three significant respects. First, although both conferred similar powers on the Court, the conditions of their exercise differ. The Family Provision Act required that the Court "shall not make an order ... unless it is satisfied that" the provision made by the testator is "inadequate": s 9(2). The Succession Act provides that the Court "may ... make a family provision order ... if the Court is satisfied that" the testator has not made "adequate provision" for the applicant: s 59(1). The changes in language may have been intended to remove double negatives, but there is a resultant change in emphasis. The apparent effect is to widen the discretion vested in the court. That which could satisfy a court that the provision made is "not adequate", for the purposes of the Succession Act, might not have been sufficient to remove the prohibition under the Family Provision Act, which operated in the absence of affirmative satisfaction that the provision was "inadequate". There may well be no bright line boundary between adequacy and inadequacy." 62Barrett JA, at [82] -[86] said: "The court's task under the new legislation is in substance the same as that under the old. Three differences relevant to the kind of case under discussion may, however, be noted (I leave to one side as irrelevant to such cases the extension of the s 60(2) criteria to the question of "eligible person" status); and two postulated differences may be rejected. First, the Succession Act provisions direct attention, upon the initial inquiry into adequacy, to provision made by the deceased's will and the intestacy laws. The former legislation referred merely to provision "out of the estate" but it was clear that the operation of the intestacy laws was to be taken into account in deciding what provision was available "out of the estate": see, for example, Smilek v Public Trustee [2008] NSWCA 190. Second, the Succession Act provisions confine attention, upon that initial inquiry, to provision made by the will and the intestacy laws. There is no reference to provision made during the deceased's lifetime. In this respect, there is a departure from the Family Provision Act approach under which provision made in favour of the eligible person "either during the person's lifetime or out of the person's estate" was to be examined upon the initial inquiry into adequacy. Attention may, however, still be given to provision made in favour of the applicant during the deceased's lifetime. That is now one of the factors to which regard may be had under s 60(1)(b) when the court is deciding whether to make a family provision order and the nature of the order: see s 60(2)(i). Under the Succession Act, therefore, provision made by the deceased while living thus has a continuing relevance with altered emphasis. Such provision is no longer something to be taken into account in deciding whether adequate provision has been made; but it may be taken into account in deciding whether an order should be made and the nature of the order. The third difference to be noted is the Succession Act's more comprehensive catalogue of matters that may be taken into account in formulating an order for provision. Section 9(3) of the Family Provision Act empowered the court to "take into consideration" matters there stated in "determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person". Section 60(1)(b) of the Succession Act allows the court to "have regard to" the matters set out in s 60(2) "for the purpose of determining ... whether to make a family provision order and the nature of any such order". The Succession Act lists a greater number of such matters than did the Family Provision Act." 63Other than by reference to the provision made in the Will of the deceased, or, if relevant, by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for the applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision actually made in the deceased's Will, or on intestacy, or both, on the one hand, and to the requirement for maintenance, education and advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant. 64In 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." 65It was said in the Court of Appeal (by Basten JA) in Foley v Ellis [2008] NSWCA 288, at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J recently 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]. 66Under s 59(1)(c) of the Act, 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. 67"Provision" is not defined by the Act, but it was noted in Diver v Neal, at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime". 68Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement": "'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education." 69In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), at [18], stated: "'Proper maintenance' is not limited to the bare sustenance of a claimant [cf Gorton v Parkes (sic) [1989] 17 NSWLR 1], but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility." 70In J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, 7th ed, 2006), 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." 71In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77 King CJ said: "The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang (1960) 104 CLR 124, per Dixon CJ at 128." 72Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16: "Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541) In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274... In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said: 'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.' The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that: 'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'" 73In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J, at [114] noted: "In the context of the Act the expression 'advancement in life' is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase 'advancement in life' has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the 'maintenance and support' of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support." 74In 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)." 75The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, whereas "proper" prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127, per Buss JA, at [72], [77]. 76These 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." 77Dixon CJ and Williams J, in McCosker v McCosker [1957] HCA 82; 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that: "It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent." 78In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Gibbs J said at 502: "[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards." 79In Vigolo v Bostin, at 228, Callinan and Heydon JJ said: "[T]he use of the word 'proper' ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future." 80Santow J pointed out in Gardiner v Gardiner (NSWSC, 28 May 1998, unreported), that "adequate" and "proper" are independent concepts. He said, at 12: "'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied ..." 81In Palaganio v Mankarios [2011] NSWSC 61, at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life involve value judgments on which minds can legitimately differ, and there are no definite criteria by which the question can be answered. 82His Honour added in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522, 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)." 83Until recently, it was unanimously thought that there are two stages of the determination. The first stage, provided for by s 59(1)(c), has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. The Court does this by determining whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased and/or by operation of the intestacy rules, for the applicant. If it is not so satisfied, then the Court is precluded from making a family provision order. 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 [2012] NSWCA 285, at [70]. 84Whether an applicant has a 'need' or 'needs' is also a relevant factor at the first stage of the enquiry. It is an elusive 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: Collins v McGain [2003] NSWCA 190 (Tobias JA, with whom Beazley and Hodgson JJA agreed). 85In Collins v McGain, Tobias JA said: "42. Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies. ... 47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is "proper maintenance etc" of the eligible person. It is because of that context that, in the present case, the "proper maintenance etc" of the appellant required consideration of a need to guard against the contingency to which I have referred." 86In 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]." 87"Need", of course, is a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]. 88As Callinan and Heydon JJ emphasised in Vigolo v Bostin, the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum" or "by looking simply to the question whether the applicant has enough on which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined. 89In the event that the Court is satisfied that the power to make an order is enlivened (i.e. in this case it is satisfied that the applicant is an eligible person, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), then, the Court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the Court at the time the order is made. 90The 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. 91However, Basten JA, in Andrew v Andrew, said of the two stage process referred to: "29 The combination of changes requires that the court address the nature of the exercise being undertaken. Three potential consequences may be identified. First, there is a simplification of the structure of the process. There is no longer a two-stage process required. A degree of artificiality has thus been removed. The court should now ask what, taking all relevant factors into account, would have been adequate provision for the applicant. There is no first stage of determining whether the actual provision was "inadequate", followed by a discretionary exercise of determining what would be adequate and what should in fact be done. ... 41 As noted above, the language of the Succession Act is not consistent with the two-stage inquiry which was a common feature of earlier legislation: cf Singer v Berghouse at 208-209. In Keep v Bourke [2012] NSWCA 64 the Court appears to have assumed that the two-stage process continued to operate under the Succession Act: at [24]-[29]. However, the issue not having been directly addressed, there is no constraint on this Court now adopting a different approach. Nor does earlier High Court authority construing an earlier statutory scheme govern the approach to be adopted to materially different legislative provisions." 92In Andrew v Andrew, Allsop P, at [6], said: "Whether the process engaged in by the Court in s 59 can still be described as "two-staged" in the sense discussed in Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 208-211 may be an analytical question of little consequence. The task involves an evaluative assessment and a choice as to consequence therefrom, appeal from which is governed by the principles concerning discretionary judgments: Singer v Berghouse at 211 and DAO v R [2011] NSWCCA 63; 278 ALR 765 at [93]." 93Barrett JA disagreed with Basten JA, in Andrew v Andrew, saying: "65 This is the second occasion on which this Court has been called upon to deal with a claim under s 59 of the Succession Act. In the earlier case, Keep v Bourke [2012] NSWCA 64, the Court proceeded on the basis that approaches taken under s 7 of the now superseded Family Provision Act 1982 remained relevant and applicable. That matter was explored in greater detail in the course of argument in the present case. For reasons I am about to state, I am of the opinion that the earlier approaches should continue to be followed in cases such as the present case and Keep v Bourke, that is, cases in which the applicant is a child of the deceased and no previous order for provision out of the estate has been made in favour of that applicant. ... 79 First, it is necessary, having regard to s 59(1)(c), for the court to be satisfied that, at the time when it is considering the application, "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person". Whereas the former s 9(2) provided that an order was not to be made unless the court was "satisfied" in the specified way, the present legislation permits the court to make an order if "satisfied" in the specified way and, by necessary implication, precludes the making of an order if the court is not so "satisfied". 80 Second (and if the court is "satisfied" in the specified way), the "family provision order" that the court is empowered to make is, under s 59(2), "such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made"; and the court may, pursuant to s 60(1)(b), have regard to the matters specified in s 60(2) in deciding whether to make an order and the nature of the order. 81 Under s 59 and s 60, therefore, the task of the court, in a case of the kind under discussion, is: (a) to determine the extent of the provision made for the maintenance, education and advancement in life of the applicant by the deceased's will or the intestacy laws; (b) to form an opinion of the adequacy of that provision; (c) if the opinion is one of inadequacy, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased person for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the court at the time the order is made; and (d) in making that evaluative judgment, to take into account, as discretionary factors, the matters in s 60(2). ... 94 As stated in Keep v Bourke (above), the structure and effect of the Succession Act provisions warrant continuing adherence to the two-stage approach indicated by the decisions of the High Court in Singer v Berghouse and Vigolo v Bostin." 94In Franks v Franks [2013] NSWCA 60, Young AJA (with whom McColl JA and Sackville AJA agreed), at [17], referred to the primary Judge (Macready AsJ) having "cited the High Court's decision in Singer v Berghouse [supra] and adopted the two stage process required by that decision". 95His Honour noted also, at [29], that the appellant (in one of the two appeals) "accepted that it was appropriate for the primary judge to follow the course laid down in Singer v Berghouse and that [the respondent] had surmounted the first hurdle of the two stage process referred to therein. Accordingly, he identified the key question as whether the primary Judge had erred in determining the quantum of the provision made for ... in lieu of that made under the deceased's will". 96At [35], his Honour wrote: "On an appeal against a decision concerning the application of the second limb of Singer v Berghouse, the Court is dealing with a discretionary judgment (see Singer v Berghouse (at 211) and Durham v Durham [2011] NSWCA 62 at [82]; 80 NSWLR 335 (at 352)). It follows that his Honour's decision is reviewable by this Court only in accordance with the principles established in House v The King [1936] HCA 40; 55 CLR 499." 97Although the appeal was allowed, that was because the Court found, at [42], that: "... in formulating the quantum of the provision he made for Brad, the primary judge did not take into account the disparity in the financial circumstances between Gregory and Brad. Accordingly, the primary Judge's decision as to quantum must be set aside." 98Nothing in the Court of Appeal's judgment in Franks v Franks suggests that the approach followed by the trial Judge, in adopting the two-stage process required by Singer v Berghouse, was wrong. 99At first instance, there are a number of decisions to which reference should be made. In Verzar v Verzar [2012] NSWSC 1380, Lindsay J said: "92 I refrain from characterisation of these elements of the case as "stages" because that is terminology associated with the Family Provision Act 1982 (NSW) and Singer v Berghouse (1994) 181 CLR 201 at 208-211. Since Andrew v Andrew [2012] NSWCA 308 (14 June 2012) per Allsop P at [5]-[6] and Basten JA at [27], [29] and [41] a single judge of the Court is bound, in my assessment, to regard the two-stage decision-making process identified in Singer v Berghouse, and confirmed by Vigolo v Bostin (2005) 221 CLR 191, as superseded by enactment of ss 59-60 of the Succession Act. 93 Although the provisions of ss 59(1)(c) and 59(2) might formerly have been treated, respectively, as re-embodiments of the first and second of the two-stages of decision-making identified in Singer v Berghouse, the test to be applied in Family Provision cases must be taken by me to have been modified." 100Ball J, in Oldereid v Chan [2013] NSWSC 434, after referring to Andrew v Andrew, noted the different approaches being adopted by trial Judges. His Honour said: "52 More recent decisions at first instance have differed on whether the decision in Andrew v Andrew requires the court to apply a two stage process or not. Lindsay J in Verzar v Verzar [2012] NSWSC 1380 thought that a single judge of the court is bound "to regard the two-stage decision-making process identified in Singer v Berghouse ... as superseded by enactment of ss 59-60 of the Succession Act" (at [92]). Hallen J, on the other hand, has continued to apply the two stage test: see Goldsmith v Goldsmith [2012] NSWSC 1486 at [67]; Nowak v Beska [2013] NSWSC 166 at [113]. A third approach, adopted by Macready AsJ in Morgan v Bohm [2013] NSWSC 145 at [110], is to consider the case on both bases. There are, however, difficulties with that approach. If the two approaches involve real differences, then presumably there are cases where they will produce different results. What, then, is to be done applying both approaches? On the other hand, if the two approaches are bound to produce the same result, the dispute about which test should be applied has no significance. 53 In my opinion, there is clearly a tension between the decisions of the Court of Appeal in Keep v Bourke [2012] NSWCA 64 and Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 which only the Court of Appeal or High Court can resolve. In the meantime, the duty of a trial judge is to follow the later decision: see Ratcliffe v Watters (1969) 89 WN (NSW) Part 1 497 at 505 per Street J. In Andrew v Andrew, both Allsop P and Basten JA regarded the reformulation of the test in s 59 of the Succession Act as changing, perhaps only subtly, the threshold that must be satisfied before an order can be made. Basten JA regarded that change as also changing the way in which the court should approach the question. Allsop P regarded it as an analytical question of little consequence. However it is analysed, though, it is clear from the terms of s 59 that the court must ask itself the question 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". If it is so satisfied, it must consider whether to make an order and, if so, the terms of that order. In undertaking each of those steps, it may have regard to the matters set out in s 60. Whether those steps should be seen as separate stages that must be followed or as convenient steps in undertaking what is required by the legislation does not matter for present purposes." 101It appears that Ball J was not referred to Franks v Franks. 102It seems to me, with great respect to those who disagree, that the amendments introduced by the Act do not require, or justify, a different approach. That approach, adopted in the myriad of cases determined under the Act, including Keep v Bourke [2012] NSWCA 64 (in which Macfarlan JA (except as to amount of provision) and Tobias AJA agreed with Barrett JA), and now Franks v Franks (a unanimous decision of the Court of Appeal), requires a trial Judge to continue to follow the two stage approach in determining cases under the Act, until any uncertainty is resolved. Furthermore, as Ball J repeats, the questions remain the same, namely, whether the Court can make an order for provision (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"), and if so, whether it should (whether to make an order and, if so, the terms of that order). As Allsop P said in Andrew v Andrew, at [6], "it may be an analytical question of little consequence". 103More recently, Ball J in Peters v Salmon [2013] NSWSC 953, at [80], has referred to these decisions and to my own decision in Harrisson v Skinner [2013] NSWSC 736, at [62]-[79] where I stated what is said in the last paragraph, and commented: "There is much to be said for that conclusion. However, whatever the position, as I pointed out in my judgment in Oldereid v Chan [2013] NSWSC 434 at [53] it seems clear from the terms of s 59 that the court must ask itself the question 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". If it is so satisfied, it must consider whether to make an order and, if so, the terms of that order. In undertaking each of those steps, it may have regard to the matters set out in s 60." 104Perhaps, the way to approach the matter is to simply to refer to the Act containing "twin tasks": Goodman v Windeyer, per Gibbs J, at 502, being the jurisdictional question and the discretionary question, with one task overlapping, to some extent, with the other. 105Section 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." 106It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew, at [37] as "a multifactorial list", and by Lindsay J in Verzar v Verzar, at [123], as "a valuable prompt" to which the court may have regard, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order. 107It has recently been said by White J 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". 108The 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. 109It 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. For example, when considering eligibility under s 60(1)(a), many of the matters in s 60(2) will be largely, if not wholly, irrelevant. 110There is no definition in the Act of "financial resources" (which term is referred to in s 60(2)(d)). However, there is a definition of that term in s 3 of the Property (Relationships) Act 1984, which I consider helpful: "'financial resources' ... includes: (a) a prospective claim or entitlement in respect of a scheme, fund or arrangement under which superannuation, retirement or similar benefits are provided, (b) property which, pursuant to the provisions of a discretionary trust, may become vested in or used or applied in or towards the purposes of the parties ..., (c) property, the alienation or disposition of which is wholly or partly under the control of the parties to the relationship or either of them and which is lawfully capable of being used or applied by or on behalf of the parties to the relationship or either of them in or towards their or his or her own purposes, and (d) any other valuable benefit." 111In Neale v Neale [2013] NSWSC 983, in relation to the meaning of that term, I referred to White and Tulloch v White (1995) 19 Fam LR 696 and the statement made in that case that the "term [connotes] some degree of entitlement to, control over, or relative certainty of receipt of property". 112Of course, s 60(2)(d) refers also to "earning capacity", which means no more than the capacity to find employment to earn or derive income. 113A 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). 114Leaving 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. 115This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the first stage. Happily, I am not alone in reaching this conclusion which is supported by the following comments made in Singer v Berghouse, at 209-210: "... The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant." 116And by the comments of Callinan and Heydon JJ in Vigolo v Bostin, at 230-231: "We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors." 117As 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." 118Section 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. 119The 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). 120Any family provision order under the Act takes effect, unless the Court otherwise orders, as if the provision was made in a codicil to the Will of the deceased, or in the case of intestacy, as in a will of the deceased (s 72(1) of the Act). (Intestacy is irrelevant in these proceedings.) 121Section 66 of the Act sets out the consequential and ancillary orders that may be made. 122Section 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.

Other Applicable Legal Principles - Substantive Application 123Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. 124Bryson 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. 125In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the Court to be vigilant in guarding "against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant". Freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the court": Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 19. 126In 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." 127Also, in Vigolo v Bostin, Gleeson CJ pointed out that the legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour stated, at [10], that it "preserved freedom of testamentary disposition, but subjected that freedom to a new qualification". Thus, testamentary freedom is not absolute. 128White 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." 129Gleeson CJ observed in Vigolo v Bostin, at 199, that the justification for interference with freedom of testation is to be found in the failure of a deceased to meet the obligations, which the community would expect in terms of maintenance, for those persons within the class of eligible persons. The process requires the Court to "connect the general but value-laden language of the statute to the community standards". 130Yet, 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 (NSWSC, 17 May 1996, unreported); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. 131As 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." 132How those community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew, at [36]. 133In all cases under the Act, what is adequate and proper provision is necessarily fact specific. 134The 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. 135Where 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, the deceased's intention in the Will to be displaced: Kembrey v Cuskelly [2008] NSWSC 262, per White J, at [45]. 136All 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]. 137The size of the estate is a significant consideration in determining an application for provision. In a small estate, it is important to remember what Salmond J said in In re Allen (Dec'd); Allen v Manchester [1922] NZLR 218, at 221: "Applications under the Family Protection Act for further provision of maintenance are divisible into two classes. The first and by far the most numerous class consists of those cases in which, owing to the smallness of the estate and to the nature of the testamentary dispositions, the applicant is competing with other persons who have also a moral claim upon the testator. Any provision made by the Court in favour of the applicant must in this class of case be made at the expense of some other person or persons to whom the testator owed a moral duty of support. The estate is insufficient to meet in full the entirety of the moral claims upon it, in the sense that if the testator possessed more he would have been bound to do more for the welfare of his dependants. In such a case all that the Court can do is to see that the available means of the testator are justly divided between the persons who have moral claims upon him in due proportion to the relative urgency of those claims." 138In relation to a claim by a foster child, the following principles may also be relevant: (a) Making a conscious decision to bring a child into the world brings with it responsibilities. Taking a child into care, without adoption, does not involve the same commitment. If foster carers are asked if they are able to have a child placed with them, there is not an obligation to accept the child. They may, for any reason, decline to accept a child into their care. If they take a child into their care, and if it does not work out, the foster parents can have the child retaken from their care, and the State will resume care of the child as a ward of the State. However, experience teaches that the relationship of foster parent and child can change over the years as, hopefully, they grow together in their relationship: Carney v Jones [2012] NSWSC 352 per Macready AsJ, at [50]. (b) Whether there is a major difference in the obligation owed to a natural child compared to that owed to a foster child depends upon the facts of each individual case: Carney v Jones, at [51] - [52]. (c) A foster child brought up as a member of a family, in a secure and loving environment, may have a greater claim on his, or her, foster parent's testamentary bounty than a foster child who was not integrated into the family: Slack v Rogan; Palffy v Rogan, at [69]. (d) Some of the matters that may be considered relevant include the duration of the foster care relationship; the age of the child when she, or he, became a foster child to the deceased; whether the child was brought up as a permanent member of the family; the closeness of their relationship during foster care and subsequently; whether the foster child and foster parent maintained the relationship thereafter, and if so, for how long; and the extent to which the applicant was supported by the deceased, whether it be financially, educationally or emotionally. 139I make clear that I do not intend what I have described as "principles" to be elevated into rules of law. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion at the second stage to be constrained, by statements of principle found in dicta in other decisions. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind. 140In addition, in each case, a close consideration of the facts is necessary in order to determine whether the bases for a family provision order have been established. As Lindsay J said in Verzar v Verzar, at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]." 141I respectfully agree, also, with the statement of White J in Slack 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"."

Credit of the Witnesses 142It should be remembered that some of the facts alleged by Vera, as to her relationship with the deceased, are difficult to test particularly when the party in respect of whom they are made is deceased. I must bear in mind the need for careful scrutiny to which evidence in such a case should be subjected in such circumstances (Plunkett v Bull [1915] HCA 14; (1915) 19 CLR 544, per Isaacs J at 548-9), and whilst there is no absolute legal requirement for it, I should look for some corroboration (Re Hodgson (1886) 31 Ch D 177; Day v Couch [2000] NSWSC 230; Weeks v Hrubala [2008] NSWSC 162, [20] (Young CJ in Eq)). 143In this case, there was little corroboration of Vera's version of many of the events, at least some of which were denied by Graham and Paul. The person most able to corroborate the events that would explain the nature of her relationship with the deceased, after the age of 15 years, was Vera's husband, Dennis. He was present in Court during the whole of the hearing but he had not sworn any affidavit and was not called to give evidence. There was no explanation by Vera's legal representative of the reason(s) why he was not called. 144Although there is evidence of family members of the Defendants, who were said to be able to give evidence (notice having been given that the Defendant's solicitors were "considering preparing affidavits from a wide range of people associated with the Moir family"), and comment is made by Vera's counsel as to the failure to call them, it seems to me that the failure to call Dennis is more significant in the circumstances of this case. It is Vera who has to establish the matters under the Act. 145However, it is better to decide this case upon the basis of the evidence that the Court has rather than upon inferences drawn from evidence that the Court does not have. 146I also remember what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123: "48 ... When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2)." 147I have also found what Lord Pearce, in his dissenting speech in Onassis v Vergottis [1968] 2 Lloyd's Rep. 403, at 431, useful: "Credibility involves wider problems than mere "demeanour" which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. and lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part." 148I should say that none of the parties gave evidence that I find to be intentionally false. Each witness struck me, overall, as a person who was attempting to give evidence honestly about events as she and he saw them. I remember, of course, that, inevitably, where a witness is having to recall events long ago, which events, often, are unimportant in themselves, and where there is little by way of contemporary documents or other evidence to revitalise the memory, or identify the occasion, recollection can be unreliable. 149However, in the case of Vera, I did think, on occasions during her evidence that the fixity of her views brought into play the tendency of the human mind to believe what is necessary to believe in relation to the particular situation. 150By way of example, Vera maintained that she returned to live with the deceased and her family and attended St Anne's school (for the second time). Contemporaneous school records confirmed that the date of her admission to the school was 1 April 1959 and the date of leaving the school was 25 September 1960. No other admission was noted. 151In her affidavit, she stated that after she was restored to her biological parents, and between about 1961 and 1963, between the ages of 7 and 9, "I stayed overnight with Mona and pa every weekend and school holiday nights". In her oral evidence, she maintained that statement was correct. When it was suggested that she did not, she said "Every weekend that I remember ... I did stay there every weekend and school holidays. If I missed a few I don't remember". 152Later, she gave this evidence: "Q. Between the ages of seven and nine. I am suggesting between the ages of seven and nine you only spent some weekends at Strathfield? A. I spent all weekends and holidays." 153Graham denied having picked up Vera after she returned to live with her own family. However, Vera continued to maintain that he did and denied that her recollection on this topic might be faulty. Bearing in mind their respective ages and the type of event, I tend to the view that I should accept Graham's evidence in this regard. 154Vera maintained that she called the deceased "Mum" until the age of 11. Each of Graham and Paul say that he never ever heard her refer to the deceased in that way. After the age of 11, she says that she referred to the deceased as "Mrs Moir". The letters written to Vera in 1987 and 1988, by the deceased are not signed "Mum", but rather "Mona M" and "Mona Moir". Both reveal a formal, rather than informal, way of concluding the letter. 155I have earlier referred to the fact that Vera is not described other than by name in the deceased's Will. 156Vera admits that after she returned to the home of her natural parents, the deceased and Victor were not allowed to know where she was living. But she says that she still maintained weekend and holiday contact with them. 157Vera asserts that, thereafter, until she was aged about 11 years (or 13 years), she lived with the deceased and Victor "on a semi-permanent basis". Whilst she says that she stayed with them regularly, this is disputed by each of Graham and Paul, who state that whilst she stayed at his home with his parents, this was irregular. Graham describes Vera's stays as "the exception rather than the rule". 158I accept that there may have been occasions when Vera returned to stay with the deceased, but I am satisfied that these were irregular and any stays were short. By way of example, I note that in January 1961, in a contemporaneous document produced by the Department of Family and Community Services, there is a reference to Vera enjoying "a short holiday" at the house of her former foster parents. I tend to the view that, perhaps, initially, visits occurred, but as time passed, I think, if they occurred, the visits were less frequent than Vera testified. 159It appears that Vera had some troubles in 1967 when she was described as "an uncontrollable child" and placed in "Minda", and then shortly afterwards, in the "Ormond" School. In a report to the Court dated 21 April 1967, it is noted that Vera "states that she is very attached to her mother and father and wants very much to return to their care". 160She asserted in her oral evidence (but not in any of her affidavits) that the deceased and Victor attended the Court in 1967, but there is no corroborating evidence in any of the Department's contemporaneous documents that they did so. 161When Vera was discharged from the "Ormond" School in January 1968, she returned to live with her parents at Granville who appear, from the records, to have been writing to her and visiting her regularly. The Department's record, dated 15 January 1968, indicates that "The Smiths visit Vera regularly and are anxious for her to be discharged to their care". When she was discharged, it was to the home of her parents. 162There is no reference to the deceased or Victor in the Department's records after about 1961. They are not identified as relevant persons in relation to Vera and all correspondence is addressed to Vera's mother. Nor does Vera refer to either of them in any recorded interview. 163Furthermore, whilst there is a reference to Vera not being very happy at home, and having "run away on many occasions", there is no suggestion that she ran away to the home of the deceased and Victor. She did not give evidence that she did. That she did not, is inconsistent with the type of relationship with the deceased at that time, about which she gave evidence. 164I found Graham to be a particularly good witness. He provided careful and detailed evidence in a straightforward manner. He was cross-examined and responded to the questions in a manner that gives me confidence he has a reasonably good memory, considering that many of the important events in this case occurred over 50 years ago. Of course, he is the oldest of the parties in the proceedings and, therefore, was older than Vera and Paul when the events occurred. I felt that reliance could be placed on his evidence. 165He could not remember ever hearing Vera call the deceased "Mum" and said that Victor referring to her as "our little girl", "did not spring to mind". He admitted that they "treated her well" but could not say whether "they loved her". He admitted that his parents looked after her, provided her with her own bedroom, fed her and clothed her whilst she was their foster child. 166Generally, I found Paul to be a good witness also. Counsel for Vera cross-examined him about his financial resources, but I am satisfied that he disclosed these and that he endeavoured to provide a full and accurate description of his and his wife's resources. That his financial situation was as he described is confirmed by the fact that no part of the share of the estate distributed to him was retained by his and Graham's solicitors. 167However, I found him to be a little jaundiced in his view about the relationship between the deceased and Vera and he maintained the position that there was really no emotional bond at all between them, that their relationship was "one sided", and that the deceased was doing no more than "tolerating" or "putting up with" Vera.

Further Additional Facts 168I shall now set out additional facts that I am satisfied are either not in dispute, or that, in my view, have been established by the evidence which I have accepted. Where necessary, I shall express the conclusions to which I have come on disputed evidence. I do so by reference to s 60(2) of the Act. 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, 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 169The word "family" is not defined in the Act. Its popular meaning is not fixed and, undoubtedly, over time, has changed. It is not a technical term with a specific meaning. It is a word in ordinary usage, with a flexible meaning. Generally, it is a word that may be used in a number of different senses, some wider, some narrower. 170In this sub-section, I consider that the word is used in the narrower sense, because of the use of the word "other" before the word "relationship". The language of the sub-section plainly indicates a distinction. It follows that in this sub-section, "family ... relationship" depicts a legal relationship (of blood or by legal ceremony of marriage, or by legal adoption) or a de facto relationship. It may also include persons where the link is "step-", or where the link is "in-law" or by marriage. 171In relation to the terms of the sub-section, there is something to be said for the view expressed by Russell LJ, in Ross v Collins [1964] 1 All ER 861; [1964] 1 WLR 425, at 432, with whose speech Lord Diplock in Carega Properties SA (formerly Joram Developments Ltd) v Sharratt [1979] 2 All ER 1084; [1979] 1 WLR 928 at 931 agreed, said: "Granted that "family" is not limited to cases of a strict legal familial nexus ... . It still requires, it seems to me, at least a broadly recognisable de facto familial nexus. This may be capable of being found and recognised as such by the ordinary man-where the link would be strictly familial had there been a marriage or where the link is through adoption of a minor, de jure or de facto, or where the link is "step-", or where the link is "in-law" or by marriage. But two strangers cannot, it seems to me, ever establish artificially for the purposes of this section a familial nexus by acting as brothers or as sisters, even if they call each other such and consider their relationship to be tantamount to that. Nor, in my view, can an adult man and woman who establish a platonic relationship establish a familial nexus by acting as a devoted brother and sister or father and daughter would act, even if they address each other as such, and even if they refer to each other as such and regard their association as tantamount to such. Nor, in my view, would they indeed be recognised as familial links by the ordinary man." 172Also, in my view, the word "family" does not have the same meaning as the term "member of the household". 173Accordingly, the relationship of Vera and the deceased does not fall within "family ... relationship". However, there is no doubt that she had an "other relationship" with the deceased. 174Vera was the second youngest of six children born to Cecil Edwin Smith and Georgina Margaret Smith. On 5 March 1959, in the Children's Court at Sydney, she was committed to the care of the Minister to be dealt with as a ward admitted to State control following a charge that on 9 February 1959 she was a neglected child within the meaning of the Child Welfare Act 1939 in that she had no fixed place of abode. It would appear that at the time she was made a ward of the State, her four siblings, Ruth, born in January 1955, Stephen born in January 1952, Susan, born in April 1949 and Larry, born in January 1951, were also made wards of the State. 175Vera described her relationship with her biological family as "chaotic". 176It was as a result of these facts that Vera came to know the deceased. Their relationship was one of affinity, not blood. She was placed with the deceased and Victor on 23 March 1959 and was removed from their care on 23 September 1960. She lived with the deceased and Victor, on a full time basis, for about 18 months. She was, during this period, a foster child of the deceased. In the events that happened, it was a short-term foster placement. 177During this time, Vera attended St Anne's school at South Strathfield. The departmental records disclose that the deceased was assisted in clothing her for school, with the provision of a blazer and a cardigan. The deceased was also refunded 4 pounds 17 shillings and 6 pence for the cost of a school uniform (which she made), a hat, a suitcase and sand shoes. Vera was clearly a member of the deceased's household during this period and was partially dependent upon the deceased. 178In March 1960, Vera's mother applied for restoration of her children and on 29 April 1960, it was reported that Vera's parents had obtained accommodation in a 3-bedroom brick home in Wentworthville. It was recommended that Vera and her siblings be discharged to her parents "on leave" for a period. On 16 September 1960, the Minister approved the restoration of Vera and her siblings, Ruth and Stephen, to their biological parents' care. When told of the restoration to her parents, Vera " took the news well and was soon outside playing". The deceased was reported to have accompanied Vera, against the escort's wishes, in order to ensure that "the little child would be well looked after where she was to be placed". 179I do not accept that the relationship of foster child and foster parents continued after 23 September 1960. Nor do I accept that the relationship between Vera and the deceased was that of de facto daughter and mother after this time. It may have been whilst Vera was in foster care but it is clear from the documents that I have read, and the evidence generally, that the relationship changed after Vera returned to live with her family. 180Nor do I consider that this is case where Vera remained an integrated part of the family of the deceased as a "daughter". Interestingly, the deceased whilst making some provision in her Will, does not describe Vera as "my daughter" (as the deceased did in Re Fulop (at 684) in her Will). The correspondence from the deceased to Vera in 1987 and 1988 is signed with the deceased's first name or both names (although there are four kisses ("xxxx") added). 181Yet, it is clear that there was a continuing relationship between Vera and the deceased after she left the deceased's household and after the need for foster care ended. There may have been occasions when Vera returned to see the deceased and, perhaps, even stayed with her and Victor, but these were very relatively short periods. There also may have been occasions when Vera joined the deceased and her family in visiting other family members (the deceased's sister), but I do not think that these were regular, or that were treated by the deceased, as to include Vera as a family member. 182The deceased and Victor encouraged Vera, as a child, in sports and academic pursuits. 183Vera married at the age of 15 years, in December 1969. She did not tell the deceased, or Victor, that she was getting married and they did not attend the ceremony. Vera says that they were unhappy when she told them she was pregnant in 1969. However, on occasions, the deceased and others did assist Vera looking after one of her children. 184As an adult, the deceased gave Vera a piano and encouraged her to learn to play. She suggested that Vera and Dennis should take up lawn bowls. 185Although Vera gives evidence of regular visits that she and Dennis had to the home of the deceased, after 1997, Graham and Paul state that the deceased did not tell them of very many regular visits. However, Graham does admit that the deceased told him, of Vera taking her shopping "half a dozen times ... in the last 10 years of her life". 186It is not disputed that the deceased and Vera took several trips together. For example, in August 1991, whilst Vera and Dennis were living in Perth, the deceased visited them and they went to Geraldton, Western Australia, together. (The deceased and Victor had visited them there in 1987.) On another occasion, in 1996, they went to Adelaide and Kangaroo Island. 187There is evidence on one of the DVD's that was tendered, of one of the children referring to the deceased as "Grandma". However, I accept Graham's evidence that this word was used, "generally", by young children in referring to the deceased. 188The fact, also revealed on the DVD, that the deceased sponsored Vera's daughter's confirmation is relevant also. It does not support the assertion that Vera was "tolerated" or "put up with". However, I do not think that it demonstrates that the deceased regarded Vera as her daughter. 189Vera's relationship with the deceased continued from her birth until the deceased's death, although for most of the time, they did not have constant contact. They did maintain contact by reasonably regular visits, telephone calls and letters. 190I am satisfied that whilst she lived in the deceased's household, she was provided with care and support. During this period, she was probably treated as a natural child would be, but this is hardly surprising. 191I am also satisfied that a relationship, albeit of a different kind, between them continued into Vera's adulthood and until the deceased's death. Considering all of the evidence that I have read and heard, I am not satisfied that the deceased regarded Vera in quite the same way as Vera may have regarded the deceased. 192It is not surprising, in my view, that Vera's perception of her relationship with the deceased was as it was. After all, for 18 months, at a formative age, she found herself in a stable, loving, environment, which was very different to the family environment that she had known. That she loved the deceased, also, is not surprising. 193Vera may have perceived herself a member of the deceased's family but I do not think that the deceased perceived her in quite the same way. The facts demonstrating the continuing relationship, whilst important, and evidence of the "other relationship between the applicant and the deceased" does not, in my view, establish, to my satisfaction, that there was a "family" relationship maintained between them. The evidence, overall, does not lead me to the view, that the deceased treated Vera as a daughter, or that the deceased regarded her as "very much a part of her family". 194Nor do I conclude, however, that the deceased simply "tolerated" or "put up with" Vera. The duration of their relationship, even if it was not quite as described by Vera, satisfies me of this. (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 195There is no definition of the words "obligations" or "responsibilities" to which the sub-section refers in the Act. Importantly, the Act does not expressly refer to, or identify, any "moral duty". Yet, one might conclude, however, that what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities. 196This factor may require a balancing of potentially competing obligations as between different applicants, or as here, as between an applicant and the principal beneficiaries. 197Leaving aside any obligation, or responsibility, arising as a result of their relationship as foster parent and foster child, whilst Vera was living with the deceased and Victor, they did not have any legal obligation to her, or to either of Graham and Paul, as adults, imposed upon them by statute or common law. 198Yet, an obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child. In Flathaug v Weaver [2003] NZFLR 730, at 737, the origin of the obligation which underpins the Act's recognition of the duty owed by a parent to a child was put in this way: "The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives." 199As stated, previously, whether any obligation or responsibility is owed to Vera as a foster child, will depend upon all of the facts of the case. 200The fact that an applicant or a beneficiary was financially independent, for many years, before the deceased's death, is a relevant consideration in determining the extent of any obligation or responsibility owed. 201In this case, by her Will, the deceased appears to have accepted that she had a responsibility to provide for her two children. She also seems to have accepted a responsibility to make less provision for Vera. (I do not accept the submission made on behalf of Vera that the deceased divided the estate equally between Vera, Graham and Paul, because she did not own the real estate at Strathfield at the time she made the Will.) What the deceased did was divide what was in her bank accounts between Vera, Graham and Paul equally, but she left the balance of her estate (other than jewellery) to her two children. (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 202I have dealt with these matters earlier in these reasons. The net value of the deceased's notional estate is not large. (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 203A consideration of this matter calls for a comparison of the financial resources of the applicant and the beneficiaries. 204Vera has not worked since 2008, having been terminated from her employment at Wyong hospital on 10 October 2008. 205She and Dennis own their own home, which is said to have a value of about $300,000 and which is unencumbered; they have a little under $5,000 on bank deposit, a late model car, and little in the way of furniture, personal effects. She has superannuation (not exceeding about $5,000). They have joint or several liabilities totalling about $552. 206Vera is in receipt of a pension and workers compensation payments and her total gross fortnightly income is $1,064, from which she pays $14 in tax (per fortnight). Dennis is in receipt of a disability pension and an allocated pension payment and his total gross fortnightly income is $730 on which he does not pay tax. Accordingly, their combined fortnightly income is $1,794. She says their fortnightly expenditure exceeds their joint income by about $100 per fortnight. 207Dennis has moneys on deposit, most of which he inherited, totalling about $219,047. 208Vera seeks provision from the estate to be able to pay her debts, make repairs to her home and to provide some security (a buffer) for her to afford future medical bills & any other contingencies that may arise. Her counsel submitted that she should receive a lump sum of between $200,000 and $250,000. 209It should be noted that not included in the above, is the amount that Vera will receive out of the deceased's estate. It will be no less than $5,684. 210I should also mention that over the last few years, Vera and Dennis have had several holidays. The evidence reveals that the total costs of these holidays amount to no less than about $45,000. In addition, they have given each of their two children $5,000. 211Graham's financial resources may be summarised as follows: He has assets in his own name of $347,243 comprising cash (currently held by his solicitors on trust for him) ($283,535), a car ($25,000) and superannuation/shares ($38,708). He has sole liabilities of $1,875 being a credit card debt. 212Graham also has joint assets with his wife Margaret of $1,167,217 comprising cash in bank ($126,771), a house ($290,000), two investment properties ($280,000 and $350,000 respectively), and superannuation/shares ($120,446). They have liabilities of $319,826 comprising two home loans ($168,331 and $151,224 respectively) and outstanding utility bills ($271). 213Their total monthly income is $1,383 and their total monthly expenditure is $3,954. In cross-examination, Graham states that the shortfall is made up from his savings. 214Paul's financial resources may be summarised as follows: He has a car ($5,500) and shares in his company, Quotefast Software Pty Ltd ($0). 215Paul also has joint assets with his wife Pam of $701,627 comprising a home ($700,000) and cash in bank ($1,627). Their only liability is a mortgage ($461,440). 216Their net annual income is $93,390 and their total annual expenditure is slightly more. (e) if the applicant is cohabiting with another person - the financial circumstances of the other person 217This sub-section permits account to be taken of the financial circumstances relating to the cohabitation. 218Vera is cohabiting with her husband, Dennis. I have set out his financial circumstances above. (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated 219Vera gives evidence about some disabilities. She has had a "a frozen right shoulder, regional pain syndrome right arm, and secondary depression; she has a pituitary adenoma and has been assessed as having a 16% whole person impairment on the basis of her disabilities". She remains unfit to work by virtue of a work related injury and is unlikely to work ever again. She describes her health as 'gradually deteriorating with age', and the shoulder, back and other difficulties about which she gives evidence are largely degenerative in nature. 220She has, in the past, been in receipt of psychological counselling assistance and found this beneficial in management of her pain symptoms. As at May 2010, she was not in receipt of formal treatment, but occasionally sought physiotherapy treatment for the management of pain and injury symptoms. 221Graham gives evidence of his medical condition, which may be summarised as follows: In 2010, he underwent surgery to have a double hernia removed and was hospitalised for two weeks. As a result of the surgery, he developed a hyperechoic non-vascular lesion in his upper right arm. He subsequently underwent two operations in 2011 to remove the lesion. 222He states that has a single large gallstone which may need to be surgically removed. He also states that he has a heart problem (although the precise nature was not disclosed), which needs to be checked regularly. 223Graham describes Margaret's health as poor. She has suffered from chronic epilepsy since she was about 4 years old. In 1997, she underwent a major operation which stopped the tonic-clonic and tonic seizures from which she used to suffer. She will be required to take medication for the rest of her life and also have annual medical checks. 224Paul gives evidence of his medical condition, which may be summarised as follows: Paul states that he suffers from a hiatus hernia and an enlarged prostate, both of which require him to take daily prescription medication. He also has a ruptured disc in his lower spine, which requires him to take semi-regular pain medication. 225Paul describes Pam's health as poor. She has suffered from and is still receiving treatment for breast cancer, high blood pressure, type 2 diabetes, high cholesterol, low vitamin D and low potassium. As a result of the breast cancer, she requires ongoing chemotherapy treatment, physiotherapy, regular monitoring and biopsies and pain medication. She may also require a total knee replacement in the future. (g) the age of the applicant when the application is being considered 226Vera was born in January 1954 and is currently 59 years of age. (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 227There is no evidence that Vera made any direct contributions to the acquisition, conservation and improvement of the estate of the deceased. The Strathfield property itself, or the proceeds of its sale, comprised virtually the whole of the deceased's estate and that was owned by Victor from late 1950. 228Dennis would, on occasions, help Victor do odd jobs around the Strathfield property. Usually, he was paid for the work that he did. 229Vera made some contribution to the welfare of the deceased. For example, when Victor died, she returned from Perth to attend his funeral and stayed with the deceased for a few weeks. Subsequently, the deceased reimbursed Vera for her airfare. 230When her own father died, also in 1988, and her mother died in 1993, Vera again returned to Sydney for the funerals and she stayed with the deceased. 231I have referred to Vera having taken the deceased shopping on occasions. 232It is clear that each of Graham and Paul provided significant care and assistance to the deceased in her ill health (including extending his home to accommodate the deceased) in order to avoid her having to go into a nursing home. I am satisfied that each of them made a much greater contribution to the deceased than did Vera. (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 233The deceased appears to have made some provision for Vera during her lifetime. In 1969, after Vera and Dennis moved into a home unit together, the deceased and Victor assisted them in buying household items, such as blankets, sheets and kitchen utensils. They contributed $100 towards the bond for the unit and when her first child was born, the deceased and Victor bought a pram and other things for the baby. 234The deceased and Victor gave Vera a freezer for her 21st birthday. They also paid for a holiday in Tasmania, which they enjoyed together with Paul, his wife, Pam, and Pam's mother. 235In addition, Vera gives evidence that in 1981, the deceased provided a deposit of $2,000 to Vera and Dennis to assist in the purchase of their first home in St Mary's. (The deceased had not disclosed this to either of her children.) 236When Vera and Dennis moved back to Sydney, in about 1997, they stayed with the deceased. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person 237There is no evidence of the testamentary intentions of the deceased other than in the Will to which I have referred. (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 238The deceased did not maintain Vera, before her death other than during the period when she was in her care. (l) whether any other person is liable to support the applicant 239There is no person with a liability to support Vera, other than, perhaps, the worker's compensation insurer during the period payments are to be made, and Dennis, as her spouse. (m) the character and conduct of the applicant before and after the date of the death of the deceased person 240An 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. Importantly, the Act does not limit the consideration of "conduct" to conduct towards the deceased. 241I have dealt with the relationship of Vera and the deceased. There was little relevant conduct relied upon otherwise. 242There is no suggestion that there is any adverse conduct by Vera that should be taken into account. Graham and Paul assert, and I have found, that the relationship was not quite as described by Vera. (n) the conduct of any other person before and after the date of the death of the deceased person 243I am satisfied that each of Graham and Paul was a loving son of the deceased who did, and has done, all that he could do in relation to the deceased. Each of them is, of course, the principal chosen object of the deceased's bounty. (o) any relevant Aboriginal or Torres Strait Islander customary law 244This 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 245There is no other matter that I consider relevant. (Neither of the parties relied upon any matter under this ground that was not otherwise considered under the other grounds.)

Determination 246Being an "eligible person" is a necessary precondition to the Court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. In this case, there is no dispute that Vera, is an eligible person within the meaning of s 57(1)(e) of the Act. 247There is also no dispute that Vera commenced the proceedings within the time prescribed by the Act. 248In relation to factors warranting the making of her application, although it was submitted that there were none, it is significant that the deceased acknowledged that Vera was a proper object of her testamentary bounty in her Will, which she made in 1981 and did not change her Will at any time before her death. 249In Lumsden v Sumner, at [95], Slattery J considered that "by making the Will in [the applicant's] favour as she did, [the deceased] recognised that the relationship of niece and nephew with [the applicant] was one of natural testamentary bounty". 250I should mention that counsel for the Defendants submitted that "significantly, in the case of the claim by Mr Fulop, the stepson, McLelland J did not refer to the fact that he received a legacy under the testator's will as one of the factors which established factors warranting the making of the application". 251I do not accept that this is so. At 683, following the reference to "factors warranting the making of the application", his Honour wrote: "It is significant that in her will dated 8 June 1964 the deceased referred to Mr Fulop as "my son" and in her last will dated 14 December 1981 as "my stepson". This change in the description is consistent with the distancing between Mr Fulop and the deceased which occurred in the latter years of her life, but nevertheless shows that in the eyes of the deceased Mr Fulop was still regarded as a member of her family." 252In relation to the other Plaintiff in that case, Mrs Bide, his Honour, at 684, said: "She is referred to in the deceased's last will as "my daughter" and her children are referred to in that will as "my grandchildren" and by cognate expressions." 253Furthermore, Vera kept in touch, and had a long, and continuing, association, with the deceased, which appears was one reciprocated by the deceased, after the foster period, although as I have found, her contact with the deceased may not have been as often as she maintained. 254Furthermore, it was the type of relationship which enabled the deceased to look past some of the aspects of Vera's life of which she disapproved, for example, her marrying and having a child at such a young age, her smoking, and her going to clubs and playing the poker machines. It would have been relatively easy, one would imagine, for the deceased to terminate the relationship with Vera if the deceased had wished to do so. But she did not. 255I am satisfied that there are factors warranting the making of the application. 256Having established eligibility and factors warranting the making of the application, the first question for determination is whether, at the time the Court is considering the application, adequate provision for Vera's proper maintenance or advancement in life has not been made by the Will of the deceased. 257Having considered the matters I am required to consider, I am also so satisfied. The provision that was made for her in the deceased's Will, is small and the balance of the estate whilst not large, is not tiny. 258It is also clear that Vera has some "needs". As stated above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence. 259Age and state of health are other factors to which, under the Act, the Court may have regard. At the date of hearing, Vera is not an "able-bodied adult", in the sense that the expression is usually used in connection with family provision litigation, of someone who is, or will be, well able to earn enough by her, or his, own exertions to provide for her, or his needs: Belfield v Belfield [2012] NSWSC 416, per Campbell JA, at [82]. 260As I have stated, Vera submits that inadequate provision has been made for her and that the Court should make an order that she receive a lump sum. She submits that the deceased owed her an obligation based upon their relationship throughout her life and says that she should be treated as a daughter would be. 261In addressing whether adequate provision was made for Vera, another consideration appears to be the assessment of the relative financial position and competing claims of Graham and Paul. When one considers the competing claim of each and financial and material circumstances, the estate is sufficiently large to enable the provision of a capital sum for Vera for exigencies of life. 262For these reasons, I am satisfied that the Will of the deceased (the rules of intestacy are irrelevant) does not make adequate provision for the proper maintenance or advancement in life of Vera. 263Then, I next consider the nature and amount of any provision, if any, that should be made. I reject the submission that Vera should receive a lump sum of between $200,000 and $250,000. That is more than adequate and not proper, considering the competing claims of Graham and Paul. 264Any obligation owed by the deceased to Vera on death could not be greater than the obligation the deceased had to each of her biological children, with whom she had a close and loving relationship and each of whom was a dutiful son. Furthermore, the deceased did not owe Vera a duty to make provision by formally assuming the obligation of parent to a child, when she had no such obligation to Vera during her lifetime. 265Furthermore, unlike the facts in Carney v Jones (at [55]), Vera's contact and the relationship arising from it was not such that she adopted a position of major responsibility for the deceased in the last years of the deceased's life. That responsibility remained with Graham and Paul. 266However, Vera should receive a lump sum that will provide her with an additional fund for exigencies of life and to protect her, in the future. 267In determining the nature and quantum of the provision, I take into account, also, the circumstances surrounding Vera's relationship with the deceased. In my view, in addition to the amount she will receive out of the estate of the deceased, Vera should receive a lump sum of $80,000. Leaving aside the amount for costs, the burden of that provision will be $40,000 by each of Graham and Paul. 268There is a fund available to pay the amount of the lump sum, so it should be paid within 28 days of the making of the costs argument. 269The orders I make are as follows: (i) Having found that the Plaintiff, Vera Caroline Hamilton, is an eligible person; that there are factors warranting the making of the application; that the proceedings were commenced within time; and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, she should receive, in addition to the amount the Defendants agreed to pay to her out of the estate of the deceased, a lump sum of $80,000. (ii) The provision made for the Plaintiff should be borne by the Defendants equally. (iii) No interest is to be paid on the lump sum, if it is paid within 28 days of the determination of the costs argument, or if there is no costs argument, of today. (iv) Unless either party wishes to argue the question of costs, the Plaintiff's costs, calculated on the ordinary basis, and the Defendants' costs calculated on the indemnity basis, shall be paid out of the estate of the deceased. (v) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005. (vi) Consideration be reserved in respect of making consequential and ancillary orders for the purpose of giving effect to the family provision order.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 September 2013

Family Provision Act 1982(NSW)

(1995) 19 Fam LR 696

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Cases Cited (82)