Hancock, Shaun v Parker; Hancock, Lisa v Parker

Supreme Court of NSW|2017-03-23|Before: Hallen J

Evidence on extension of time - Lisa

In her affidavit sworn 23 March 2017, Lisa states that she first spoke to a solicitor "on an informal basis" in June 2015. However, the solicitor asked her to attend her office for "formal legal advice". Subsequently, the solicitor sought advice from a barrister in experienced family provision matters, "about making a claim to seek further provision".
On 8 July 2015, Lisa met with the solicitor and counsel. She wrote that she explained "my own circumstances and that of my family in some detail".
Lisa then stated: "[The barrister] then said to me words to the effect: "You are already sitting on 33%, in this case you can stay on as an executor and do your job. This is only about Shaun having a claim. It's not you but it's Shaun who has the claim." [The barrister] did not seek any further instructions as to whether I may wish to bring my own claim and did not mention anything about my own claim."
Lisa did not mention any written advice provided by the solicitor or by the barrister. Nor did she state, explicitly, that she had not been told that any proceedings needed to be commenced within 12 months of the date of death. Rather, on this topic, she asserted that she had not been informed that she did, or even might, have a claim. To the contrary, she stated that she was told that she did not have a claim.
Lisa then stated: "On or around 6 April 2016 I attended the offices of Hancock Alldis & Roskov to see James Roskov for advice about a letter I received from Macedone Legal, the solicitors instructed to act on behalf of the Estate of My Mother. I attended several conferences to see James Roskov. At one particular conference I instructed James Roskov to attend the mediation concerning the matter of Shaun Anthony Hancock's (Shaun) claim against My Mother's estate. On 7 June 2016 I attended the mediation with James Roskov and Mr Darien Nagle of Counsel on my behalf. Following the mediation I became concerned about my position in the matter and I wanted further advice. On the afternoon following the mediation James Roskov and Mr Nagle advised me that I should become a claimant. I was surprised to receive this advice given the earlier advice I had received from [the barrister]. On 22 July 2016 A summons was filed on my behalf."
There is evidence that it was not until a letter dated 27 April 2016, addressed to Lisa's solicitors, was sent, that the notice of claim was served upon her. Of course, that was 3 months outside the time prescribed by the Act for the commencement of the proceedings, and four months after Shaun's proceedings were commenced.
Lisa was not asked any questions in cross-examination about these matters.
There is no reason for the Court to not believe her evidence about what she was told, or more importantly, what she was not told, about bringing her own claim for a family provision order.

Factors warranting the making of the application - Shaun

Shaun submitted that the following factors warranted the making of the application: 1. The nature of his relationship with the deceased was more akin to a surrogate son than a grandchild. 2. He had lived with the deceased from 1982-1996 (about 14 years), in 1996 for a period, and then again, between 2001 and 2015; they had remained in close contact when they did not live together. 3. He had been dependent upon the deceased since his birth. She had provided him with significant emotional support especially in light of his vulnerabilities. 4. His significant mental disabilities, and his needs, were known to the deceased. 5. He was an alternate, specifically identified, beneficiary named in the Will made by the deceased on 5 July 1996. In that Will, there was a specific legacy of $30,000 given to Lisa, but if she predeceased the deceased, it was to be for Shaun.
Each of the matters asserted, are, as will be read, supported by the evidence in this case.
Counsel for Cheryl and Gary submitted, in writing, that "[t]here is an issue that there are factors which warrant the making of his application". In support of this submission, counsel wrote: "13. The deceased clearly decided she had provided Shaun with enough during her lifetime. On Australia Day 2014, she said to Cheryl: "When I die, Lisa can have her third and they can learn to stand on their own two feet. I am sick of holding the party." 14. In all the circumstances, including the competing interests of the named beneficiaries, the 3 children of the deceased, there are insufficient factors warranting the making of his application and his Summons should be dismissed."
During submissions, however, counsel for the Defendants said "…Shaun could be regarded as someone who would, in different circumstances, namely a very large estate, be regarded as a natural object of some form of testamentary disposition in a large estate": T166.31 - T166.33.

The Statutory Scheme

There was really no issue about the legal principles that apply, but as there are different elements to be established by each of Shaun and Lisa to enable a family provision order to be made, it is necessary for me to repeat the principles in relation to those elements. (Although I have set out most of what I write hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is equally important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in the application.)
Usually, in cases such as the present, the Court must determine (not necessarily in the order set out below), if necessary, whether: 1. The Plaintiff (each of Shaun and Lisa) is an eligible person within the meaning of that term in s 57(1) of the Act; 2. In the case of a Plaintiff (Shaun) who is an eligible person by reason only of paragraph (e) of the definition of "eligible person" in s 57, having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application: s 59(1)(b) of the Act; 3. The time for the making of the Plaintiff's (Lisa's) application should be extended: s 58(2) of the Act; 4. Each Plaintiff (Shaun and Lisa) has been left with inadequate provision for his, or her, proper maintenance, education and advancement in life; and, if so, what, if any, provision (or further provision) ought to be made out of the estate for those purposes.
These matters are not entirely distinct, but are related and overlap. For example, the strength of the substantive claim for provision is relevant to the exercise of discretion to make an order extending the time for the making of the application.
I shall deal with each of these matters in turn.

Eligibility

The 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): s 59(1). It is only an "eligible person" who may apply to the Court for a family provision order.
As stated, there is no dispute that each of Shaun, and Lisa, respectively, is an eligible person within the meaning of s 57(1)(e) and s 57(1)(c).

Factors warranting the making of the Application - Shaun

Section 59(1)(b) of the Act requires, in the case of certain eligible persons, the Court to 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. However, the Act does not identify the factors that warrant the making of the application.
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 Dec'd (1987) 8 NSWLR 679 at 681 (approved in substance by the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241) that the factors are factors which, when added to facts which render the applicant an eligible person, give him, or her, the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased.
Kirby P in Tsivinsky v Tsivinsky [1991] NSWCA 269 at 5, in dealing with the section of the former Act, which was in similar terms, said: "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 paragraphs (c) and (d) in s 6(1) of the Act."
In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard AJA and Fitzgerald AJA, 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.
In 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 at [9]: "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."
In Diver v Neal [2009] NSWCA 54, Basten JA, with whom Allsop P and Ipp JA agreed, said of s 9(1) of the former Act, at [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."
In Evans v Levy [2011] NSWCA 125, Young JA, with whom Campbell JA and Sackville AJA agreed, wrote, at [62] - [64]: "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. 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. On s 9, the decision of M McLelland J in Re Fulop (dec'd) (1987) 8 NSWLR 679 has stood the test of time."
In Sassoon v Rose [2013] NSWCA 220 at [15], the Court of Appeal referred to the fact that the trial Judge (Macready AsJ) had: "correctly identified the relevant principles as those stated by McClelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681, approved by this Court in Churton v Christian (1988) 13 NSWLR 241 at 252 and applied in cases such as Diver v Neal [2009] NSWCA 54 at [8]. Those "factors" are ones which, when added to the facts which render the applicant an "eligible person" (in Ms Sassoon's case the fact that she is the former wife of the deceased), give her the status of a person who would generally be regarded, according to community standards and expectations, as a natural object of testamentary recognition."
In Chapple v Wilcox [2014] NSWCA 392; (2014) NSWLR 646 at [4]-[6], Basten JA wrote: "The primary category of eligible people are spouses, including those in a de facto relationship with the deceased at the time of death and a child of the deceased. Other eligible persons (a category including the claimant) are required to satisfy the court that 'having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application': s 59(1)(b). The claimant must also satisfy the court that at the time when the court is considering the application, adequate provision for his proper maintenance, education or advancement in life has not been made by the will of the deceased: s 59(1)(c). Subsection (1)(c) assumes that some provision should have been made for the claimant by the will of the deceased; subs (1)(b) treats the primary category of eligible persons as naturally satisfying that assumption, whereas the secondary category (into which the present claimant falls) need to justify the assumption: see, in relation to relevantly identical provisions in s 9 of the Family Provision Act 1982 (NSW), Re Fulop Deceased; Fulop v Public Trustee (1987) 8 NSWLR 679 at 681 (McLelland J). That approach obtains support from the provisions of Ch 4 of the Succession Act dealing with intestacy. Those primarily entitled to a distribution from the estate of an intestate are a surviving spouse (ss 110-113) and the deceased's children (s 127). A grandchild has an entitlement, but only a presumptive share of a child of the intestate who predeceased his or her parent: s 127(4)."
It can be seen that the trend of authorities does not favour the view suggested in Brown v Faggoter. With great respect, I also regard the views expressed in the authorities referred to by Windeyer J, Bryson AJ, Basten JA, Campbell JA, and Young JA, as correct, and propose, in the circumstances, to follow their decisions. I have done so in other cases: see, for example, Glynne v NSW Trustee and Guardian; Lindsay v NSW Trustee and Guardian [2011] NSWSC 535; Tramantana v Harborne; Clarke v Harborne; Midson v Harborne [2011] NSWSC 1129; Page v Page [2016] NSWSC 1218, and propose to do so in this case.

Extension of Time - Lisa

Section 58(2) of the Act provides that an application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless, on sufficient cause being shown, the Court otherwise orders. If sufficient cause is shown, then the Court, having regard to all the circumstances of the case, may extend the time for making an application.
In Moore v Randall [2012] NSWSC 184 at [39], White J (as his Honour then was) said that the expression "sufficient cause" means "sufficient explanation or sufficient justification or excuse for the application not having been made within the prescribed period."
In Verzar v Verzar [2014] NSWCA 45 at [24], in the Court of Appeal, Meagher JA wrote that "[t]he sufficient cause or reason to which s 58(2) is directed is that for allowing an application to be made out of time".
Clearly, permitting the Court to "otherwise order" was included in the Act to avoid the section becoming an instrument of injustice. Yet, "[t]he time constraint imposed by s 58(2) on the making of a family provision application is not a mere formality": Verzar v Verzar [2012] NSWSC 1380 at [98].
The equivalent section in similar UK legislation has been described as "a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules": Re Salmon, Deceased [1981] Ch 167 at 175.
In Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146 at [23]-[24], Pembroke J put it more strongly: "… Section 58(2) reveals a clear legislative intention to limit applications for family provision orders to those made within a defined, and strictly confined, period. An application is made by filing an originating process commencing proceedings in the registry of the court: Section 58(3). The short time period imposed by Section 58(2) reflects the judgment of parliament that the welfare of society in connection with the administration of deceased estates is best served by imposing a strictly limited time for making applications. This is not unreasonable. In most cases the putative claimant will be well aware of the testator's death and the (allegedly) insufficient provision made for him or her. There will only occasionally be a good excuse for not making a claim within time. In fact, experience indicates that the deceased's relatives usually pay uncommonly close attention to such matters. That is not to say that cases will not arise where, for legitimate reasons, a claimant is quite unaware of the death, or of his or her legal right to make a claim, and is unable to comply with the 12 month time limitation. In those circumstances, the statutory exception requiring 'sufficient cause' may well apply."
In Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 at [84]-[90], I set out the applicable legal principles relating to an application to extend the time, as follows: "The decision of the court to extend time is a discretionary decision. Other than "sufficient cause being shown", there are no statutory criteria that must be taken into account. There are no rigid rules in regard to the exercise of the discretion. The principles governing that exercise of discretion under the Act are clear. Apart from the reason(s) for the lateness of the claim, the factors to which the court must look, include whether beneficiaries under the Will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by either side; and, finally what is the strength of the claim made by the party seeking an extension of time: see, for example, John v John; John v John [2010] NSWSC 937 at [37]- [51] per Ward J; Campbell v Chabert-McKay [2010] NSWSC 859 at [45]- [47] per White J; Durham v Durham [2010] NSWSC 389 at [15] per Ball J; Taylor v Farrugia [2009] NSWSC 801 at [14] per Brereton J; Burton v Moss [2010] NSWSC 163 at [31] ff, per Macready As J, in which the relevant earlier cases are referred to. The onus lies on the applicant to establish sufficient cause. It will be for the court to determine the strength of the applicant's claim. The prejudice to which the section looks is any prejudice occasioned by the delay in lodging the claim rather than any disappointment that might occur consequent upon readjustment of the interests under the will in order to make provision for the applicant: Cetojevic v Cetojevic [2006] NSWSC 431; McCann v Ward & Anor [2010] VSC 452 at [11]. Where there has been a long period since the deceased died, the lapse of time, itself, might create prejudice in any fact-finding exercise: Vasconelos v Bonetig [2011] NSWSC 1029 at [21]. In De Winter v Johnstone (NSWCA, 23 August 1995, unreported), Sheller JA held that the concept of "unconscionable conduct" referred to above was "directed towards a deliberate holding off [in bringing proceedings] designed to lull the beneficiaries into a false sense of security". Cole JA, whilst not expressing a concluded view, said that it must be doubted whether a change of mind (because of some change in the financial and material circumstances of the Plaintiff which has occurred after the expiry of the limitation period) constitutes unconscionable conduct. As to the strength of the claim, in De Winter v Johnstone, Powell JA considered that as an application for extension of time was invariably dealt with at the time of the application for substantive relief, no extension of time ought to be granted unless it was established that the applicant seeking an extension of time would, in the event of the extension being granted, be entitled to an order for substantive relief. By contrast, Sheller JA considered that it was only necessary for the applicant to show that the application was not bound to fail. Where the delay is not unduly long and the estate remains undistributed, ignorance during the period within which proceedings are to be commenced, of the right to claim, followed by a prompt application to extend the time once the right to claim becomes known, will usually be a sufficient explanation: Clark v Burns [2011] VSC 394 at [6]."
To refuse to make an order extending the time for the making of an application that is devoid of merit, or otherwise cannot succeed, would not visit an injustice on the applicant. As Keane JA wrote in Hills v Chalk [2008] QCA 159; [2009] 1 Qd R 409 at [31]: "The appellants' submission was that the probability that an application for provision out of the estate will ultimately succeed is a necessary, though not sufficient, condition of the grant of an extension of time. There is support for that view. In Re Terlier, deceased, Townley J said: 'If it is improbable that the substantive application will succeed it seems idle to grant the extension.' This statement was approved by Lush J in Re Walker, Deceased where his Honour went on to add that the improbability of success 'may stem either from the condition of the estate ... or from the facts relevant to the [claimant's] claim, or from both ....'." Also see, Andre v Perpetual Trustees WA Ltd (as Executor of the Will of Barbara Helen Owen Stewart) [2009] WASCA 14 at [42].
Meagher JA noted in Verzar v Verzar [2014] at [33]-[35]: "There are at least two respects in which the strength of the application sought to be made out of time may be relevant to whether there is 'sufficient cause' to extend the time for making it. The first is whether the application as made has sufficient prospects of success to justify an extension. That assessment should be of the application viewed at the time it is or is likely to be heard because of the provisions of s 59(1)(c) and (2)… The second respect in which the strength of the application may be relevant is if allowing the out of time application to proceed would or may have the effect of improving the applicant's position from that which would have obtained had the application been made in a timely manner. That is the consideration referred to by Tobias JA in Durham v Durham at [24], [37] when confirming the correctness of the approach adopted by the judge in that case and by Bryson J in Davison v Staley (unreported, Supreme Court of NSW, 21 August 1996)… Because the assessment of adequacy of provision for proper maintenance, education and advancement in life is to be made at the time the Court is hearing the application (ss 59(1)(c) and (2)), when addressing this question it is necessary first to consider when the application would have been likely to have been heard if made in a timely manner and then to compare the position in that event with the position in fact, namely that the application has been made out of time. Ordinarily, this analysis would assume, as is usually the case and as happened in this proceeding, that the application for an extension of time and the application for substantive relief are made in one proceeding and dealt with in a single hearing. (That was not the case with applications for extensions of time made under the Testator's Family Maintenance and Guardianship of Infants Act 1916: see De Winter v Johnstone [1995] NSWCA 120 at p 17 per Powell JA)."
As well as taking into account the reasonableness of the conduct of the applicant, it will also be necessary to have regard to the history of the proceedings, the conduct of the other parties, the nature of the litigation, and the consequences for the parties of the grant, or refusal, of the application for extension of time, "the size and nature of the estate, the position of the individual applicants, the rightful expectations of those already interested under the will, and, to some extent at least, the importance that there be some finality and certainty in the administration of a deceased person's estate": Harrison v Harrison [2011] VSC 459 at [292].
As I wrote in Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748 at [117]: "Ultimately, justice is the paramount consideration in determining whether to extend the time for making an application…"

Submissions on extension of time

Counsel for Cheryl and Gary submitted that Lisa "was aware of all the relevant circumstances, and as an executor, her son's claim for provision. She has provided no adequate reason for the delay. Her claim seems to have been brought as a defensive action, to support Shaun's claim."
The factual basis for that submission was not identified, although counsel for Lisa, during submissions, did say "It was, in part, a defensive claim": T172.48, although earlier he had submitted that "there should be more for Lisa": T13.14 - T13. 23 and that she sought an order that would provide her with 60 per cent of the deceased's estate: T13.50 - T14.1; T14.28. (It may be that it was submitted on the basis that the submission that she should receive greater provision was "taking into account that no provision is made for Shaun": T14.12 - T14.13, although on the second day of the hearing, that submission changed: T48.40 - T48.50.
Lisa, however, during cross-examination, had stated "I really strongly believe I deserved more": T113.16 - T113.19.)
There was no evidence of any prejudice suffered by Cheryl and Gary if the time for making Lisa's claim was extended until the date of the filing of the Summons by her. At the time, Shaun's proceedings remained on foot and had not been heard. It was not suggested that Cheryl and Gary had been unable to settle that claim because Lisa's claim would still need to be determined.
The deceased's estate had not been distributed, but, in part, this is because Lisa and Shaun remained in occupation of the Lugarno property. I do not give this circumstance much weight on the topic.
Nor was it submitted that there had been any unconscionable conduct by Lisa. Indeed, it was accepted that there had been no unconscionable conduct by her: T187.38 - T187.41.

Whether either applicant has been left with inadequate provision for his, and her, proper maintenance, education and advancement in life respectively

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".
The parties were largely agreed as to the principles to be applied on this topic so it is not necessary to re-state them in detail. I have dealt with them in many cases, one of which is Hinderry v Hinderry [2016] NSWSC 780.
Whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, education or advancement in life of the Plaintiff 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: Hunter v Hunter (1987) 8 NSWLR 573 at 575.
Although the existence, or absence, of "needs" which the applicant cannot meet from her, or his, 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 her or his proper maintenance, education and advancement in life: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 227.
"Need", of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45]. It is different from "want" and does not simply mean "demand" or "desire". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 at [54]: "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'."
In Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86 at [41], David J at added: "'Need' is not so synonymous with 'want' such that the two are interchangeable."
As Callinan and Heydon JJ emphasised in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [122], the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined.
If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made.
The questions posed arise 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 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.
Section 60 of the Act provides: "(1) The court may have regard to the matters set out in subsection (2) For the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the 'applicant') is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person-the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [37], as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order.
The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of such of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.
The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.
A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).
Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at time of the deceased's death, or subsequently.
Section 65(1) of the Act requires the family provision order to specify: 1. the person or persons for whom provision is to be made, and 2. the amount and nature of the provision, and 3. 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 4. any conditions, restrictions or limitations imposed by the Court.
The order for provision may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the Court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).
Unless the Court orders otherwise, any family provision order under the Act takes effect as if it were a codicil to the will (s 72(1) of the Act).
Section 66 of the Act sets out the consequential and ancillary orders that may be made.
Section 99(1) of the Act provides that the Court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the Court thinks fit.
There are some other general principles that should be identified for the benefit of the parties, although I have repeated them in many cases.
The Court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19; McKenzie v Topp [2004] VSC 90 at [63].
In Stott v Cook (1960) 33 ALJR 447 at 453-4, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged."
Of the freedom of testamentary disposition, in Grey v Harrison [1997] 2 VR 359, Callaway JA said, at 366: "... [I]t is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent."
In Vigolo v Bostin at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained: "It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification".
In Goodsell v Wellington [2011] NSWSC 1232 at [108], I also noted that: "Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated."
As Pembroke J said, in Wilcox v Wilcox [2012] NSWSC 1138 at [23]: "The court does not simply ride roughshod over the testator's intentions… The court's power to make an award is limited. The purpose of the discretionary power under Section 59(1) is to redress circumstances where 'adequate provision' has not been made for the 'proper maintenance, education or advancement in life' of the claimant. The adjectives 'adequate' and 'proper' are words of circumspection."
White J referred to these principles in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253 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."
In Ilott v The Blue Cross [2017] 2 WLR 979; [2017] UKSC 17, at [47], the UK Supreme Court wrote: "It is not the case that once there is a qualified claimant and a demonstrated need for maintenance, the testator's wishes cease to be of any weight. They may of course be overridden, but they are part of the circumstances of the case and fall to be assessed in the round together with all other relevant factors."
In considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.
In Henry v Hancock [2016] NSWSC 71 at [69], Brereton J wrote: "Formerly, the yardstick which was applied was that of the wise and just testator. Nowadays, it is fashionable to couch it in terms of "community standards", although I am not at all sure that this is any different from the moral obligation of a wise and just testator and, as has not infrequently been pointed out, there is no ascertainable external community standard to guide the decision, which involves a broad evaluative judgment unconstrained by preconceptions and predispositions, and affording due respect to the judgment of a capable testator who appears to have duly considered the claims on his or her testamentary bounty - subject to the qualification that the court's determination is made having regard to the circumstances at the time of the hearing, rather than at the time of the testator's will or death."
In all cases under the Act, what is adequate and proper provision is necessarily fact specific.
All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singer v Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12 at [56]. Nor does it follow that, if the Court decides it is inappropriate to make a specific provision in respect of one identified head of claim, that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams [2004] NSWSC 419 at [89].
In relation to Lisa's claim, being a claim for provision by an adult child, the following principles, which I have referred to previously in other cases, are useful to remember: 1. The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. 2. It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, "ordinarily, the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, child up in a position where she or he can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation": Taylor v Farrugia [2009] NSWSC 801 at [57]; McGrath v Eves [2005] NSWSC 1006 at [71]; Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond [2015] NSWCA 42 at [109]. 3. Generally, also, "the community does not expect a parent to look after his or her children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute": Taylor v Farrugia at [58]. 4. If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland, Deceased [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co of Australasia Ltd, at 148; Goodman v Windeyer [1980] HCA 31; 144 CLR 490 at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons: Re Buckland, Deceased [1966] VR 404 at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams at [86]. 5. There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker [1957] HCA 82, (1957) 97 CLR 566; Kleinig v Neal (No 2) at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37 at 45; Taylor v Farrugia at [58]. 6. The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]-[182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17]. 7. The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd at 149.
In relation to a claim by a grandchild, the following general principles are, in my view, relevant and should be remembered: 1. As a general rule, a grandparent does not have a responsibility to make provision for a grandchild; that obligation rests on the parent of the grandchild. Nor is a grandchild, normally, regarded as a natural object of the deceased's testamentary recognition. 2. Where a grandchild has lost his, or her, parents at an early age, or when he, or she, has been taken in by the grandparent in circumstances where the grandparent becomes in loco parentis, these factors would, prima facie, give rise to a claim by a grandchild to be provided for out of the estate of the deceased grandparent. The fact that the grandchild resided with one, or more, of his, or her, grandparents is a significant factor. Even then, it should be demonstrated that the deceased had come to assume, for some significant time in the grandchild's life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild's support and welfare, or else that the deceased has undertaken a continuing and substantial responsibility to support the applicant grandchild financially or emotionally. 3. The mere fact of a family relationship between grandparent and grandchild does not, of itself, establish any obligation to provide for the grandchild upon the death of the grandparent. A moral obligation may be created in a particular case by reason, for example, of the care and affection provided by a grandchild to his, or her, grandparent. 4. A pattern of significant generosity by a grandparent, including contributions to education, does not convert the grandparental relationship into one of obligation to the recipients, as distinct from one of voluntary support, generosity and indulgence. 5. The fact that the deceased occasionally, or even frequently, made gifts to, or for, the benefit of the grandchild does not, in itself, make the grandchild wholly, or partially, dependent on the deceased for the purposes of the Act. 6. It is relevant to consider what inheritance, or financial support, a grandchild might fairly expect from his, or her, parents.
I set out a very similar statement of the principles in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [111], in relation to a claim by a child, and then, at [113], in relation to a claim by a grandchild. The principles referred to in relation to a grandchild were cited with approval in Chapple v Wilcox at [21], and at [65]-[67]; and also in Simonetto v Dick [2014] NTCA 4 at [40] - [41]. In relation to the principles in relation to a child, the principles were referred to, with no apparent disapproval (although in that appeal there was no challenge to the correctness of those principles), in Smith v Johnson [2015] NSWCA 297 at [62].
In Foley v Ellis [2008] NSWCA 288 at [88], Sackville AJA noted that Singer v Berghouse "strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty". The only other claimants on the bounty of the deceased in the present case are the Defendants.
Neither Cheryl nor Gary is an applicant for provision. She and he, respectively, does not have to prove an entitlement to the provision made for them in the deceased's Will, or otherwise justify such provision. As a beneficiary, the Court is not entitled to disregard their interests.

Qualifications on "Principles"

As long ago as 1980, in White v Barron (1980) 144 CLR 431; [1980] HCA 14, at 440, Stephen J wrote: "[T]his jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application."
As I have stated in a number of cases (see, for example, Bowditch v NSW Trustee and Guardian), I do not intend what I have described as "principles" or "general principles" to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered.
It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In 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. Every case is different and must be decided on its own facts. As Lindsay J said in Verzar v Verzar [2012] at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."
The importance of the qualifications to which I have referred in the last two paragraphs have been stressed in Chapple v Wilcox at [18]-[20] and at [66]-[67]; and in Burke v Burke [2015] NSWCA 195 at [84] - [85]. They must be remembered.

Factual Matters

I now turn to additional facts that are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar [2012] at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered.

(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship

As previously stated, the relationship between the deceased and Shaun is that of grandmother and grandchild. Shaun lived with the deceased for most of his life since his birth. The deceased provided support and care to Shaun throughout his childhood, and into his adulthood, and their relationship was submitted by his counsel to have "the strong flavour of a shared parental relationship."
Shaun deposed that the deceased often cared for him, up until when he went to school, whilst Lisa was at work. During his childhood, the deceased is said to have often prepared Shaun's meals, played with him, and read him his bedtime story. Once he started school, the deceased would get Shaun ready, and accompany him to, and from, school. She would make sure that he did his homework each day, and she would provide snacks when he arrived home from school. The deceased would attend his soccer training sessions and is said to have attended every game he played.
Whilst they lived together, the deceased, Shaun and Lisa, usually, would eat their meals together. School holidays, and some weekends, were often spent with the deceased (and Shaun's grandfather when he was still alive) and Lisa, at the family caravan on the NSW South Coast.
Shaun stated that the deceased was a source of significant emotional support to him throughout much of his life, saying "[The deceased] was always there to listen to me and give me advice" and "I loved [the deceased] very much and was close to her."
He deposed that he would often perform chores and odd jobs around the house for the deceased, including cleaning the pool, lawn mowing, car washing, and house cleaning. This is disputed by Cheryl, however, who claims that she never observed Shaun completing such tasks, and that to her knowledge, the deceased paid others to complete many of these jobs.
In 1996, when Shaun was aged 14 years old, he and Lisa moved out of the deceased's home when Lisa entered into a new relationship, and they went to live with her new partner, Paul Byers. During this time, Shaun states that he continued to have regular contact with the deceased, either speaking to her, or visiting her, 4-5 times per week. Later that year, conflict between Shaun and Lisa, in part it seems due to his use of cannabis and alcohol, led to Lisa taking out an Apprehended Violence Order against him. Shaun then moved back in with the deceased.
Shaun began drinking alcohol and using cannabis from the age of 14 years. He also began using ecstasy at the age of 16 years, and then heroin and rohypnol by the age of 17 years. At the age of 18 years, he began abusing prescription medications.
Shaun concedes that the deceased often expressed concern to him about his drug use, and encouraged him to give up using drugs, which encouragement continued up until her death. For example, just prior to her death, the deceased said to Shaun "promise me that you will stop taking those pills."
On one occasion when the deceased discovered that Shaun was continuing to use cannabis, she called upon Gary to assist in removing Shaun from the Lugarno property. Shaun then moved back in with Lisa and Paul. He states that, despite this disagreement between them, he continued to see the deceased regularly and that their relationship remained close.
When Shaun left school at age 16 years and began working, he claims that he began regularly give the deceased $50 a week to help out with bills and groceries.
When Lisa separated from Paul in November 2000, and the house they had been living in was sold, Shaun and Lisa moved into a rented property in Padstow. However, in November 2001, after they received a notice to vacate, Shaun and Lisa moved back in with the deceased. Thereafter, Shaun stated that "...my mum, [the deceased] and I did everything together looking after the house, cooking, cleaning, gardening, maintenance and splitting all household bills and expenditure 3 ways". Shaun also claims that in addition he continued to give the deceased an extra $50 per week.
Shaun described how the deceased and he often shared a coffee and cigarette in the morning, and they ate their evening meals together. The deceased did his laundry for him and reminded him to take his medications. The deceased would give him $20 or $50 when he went out with friends.
As Shaun never held a driver's licence, he and the deceased relied upon Lisa to drive them to appointments and to carry out errands, and they usually did their shopping and other errands, such as going to the chemist and the bank, together.
The deceased continued to provide Shaun with significant emotional support into his adulthood. He wrote that "…we would talk everyday about almost everything. I was [the deceased's] companion. We would talk every day for hours". They would also share activities, such as watching the Friday night football on television, going for walks on the beach on the weekend and trips to the shops.
Shaun moved out of the deceased's home on one more occasion in 2008, when he moved in with his then girlfriend. He was then aged 26 years. However, the relationship was short lived, and Shaun moved back in with the deceased some 6 weeks later.
In about 2013, Shaun described the deceased as requiring more physical assistance which he says that he provided. He stated: "I was always there for [the deceased] whenever she needed me".
By 2014, Shaun states he was providing increased support and supervision to the deceased after she began accidentally burning the bed linen with her cigarettes.
Following the deceased's hospitalisation in late 2014, Shaun and Lisa began to make preparations to provide increased care and support to the deceased upon her return home. However, the deceased did not return to the Lugarno property, as she died in hospital some four days later.
Shaun describes becoming extremely depressed following the death of the deceased and attempted suicide by taking an overdose of sleeping tablets, which led to him being hospitalised for 9 days.
It was submitted by Shaun's counsel that Shaun's psychological conditions, to which more will be written later, impacted significantly upon his capacity to care for himself. It was submitted that the care that the deceased provided to Shaun must be "distinguished from a case of an ordinary adult grandchild who has capacity or an ability to care for him or herself, but elects not to do so and instead relies upon another for such care."
A different version of the relationship was provided by Cheryl and Gary. There is evidence that the deceased complained on one occasion of waking up and finding Shaun going through her bedroom drawer looking for tablets. She also is said to have accused him of stealing from her purse. She also is said to have complained about having to clean up after him.
I am also satisfied that this relationship was for all of his life. Even though there may have been matters that angered the deceased about Shaun's conduct, this is hardly surprising bearing in mind that they shared a home and because he had some psychological issues. I consider that his drug taking is likely to have caused her some disappointment.
In this regard, it cannot be forgotten that she allowed him to return to live in the Lugarno property on two different occasions.
Considering the evidence overall, I am satisfied that Shaun had a close relationship with the deceased. Even Cheryl accepted that they "had a close bond": T146.05 - T146.14.
As stated, Lisa is a child of the deceased.
She had applied for social housing for herself, and Shaun, in about 1989. She was offered social housing twice, at around this time, but declined these offers, as at the time of the first offer, her father was terminally ill and at the time of the second, her father had died. She stated that she anticipated that the deceased would require her ongoing support and assistance as a result.
Cheryl and Gary give evidence that the deceased criticised some of Lisa's conduct, such as her alcohol consumption. However, like Shaun, Lisa lived a large part of her life with the deceased.
Cheryl claimed that the deceased made statements to her such as - "They are getting me down. My own home is not my own. This one [Lisa] is running the place and taking everything over" and "[Shaun's] been up in the night and the first thing I had to do is wash up all his stuff and cooking in the night." There is no reason to disbelieve that the conversation with Cheryl occurred, or that it was likely that the deceased, on occasions, expressed such sentiments.
Cheryl also gave evidence that the animals owned by Lisa and Shaun caused damage to the Lugarno property, and that this caused some distress to the deceased. Cheryl states that on one occasion the deceased said to her - "The birds are taking over my back verandah, bringing around mice. The noise drives me mad. You can't hear yourself think." Gary gave evidence of similar conversations with the deceased, who he states he spoke to weekly on the phone, during which she was said to have regularly made statements to him to the effect of - "I don't want you to come in because I'm ashamed of the place. There are dogs and cats pissing and shitting everywhere. The house is an embarrassment."
Cheryl also states that once she moved to Port Macquarie in 2004, she often encouraged the deceased to come and visit her and Brian, but that the deceased was reluctant to do so, saying to her "I'm frightened to leave the house. I don't know what they will do to it."
Gary also stated that the deceased had said to him "Shaun is always taking my cigarettes, stealing my money and abusing and swearing at me". During cross-examination, he described the relationships between the deceased and Shaun and Lisa as "maybe a love/hate relationship" (T150.14).

(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

As I have previously referred to, the deceased provided Shaun with significant practical, financial, and emotional, support, throughout his childhood and adulthood. Shaun was reliant upon the deceased for housing, particularly at times when he was not living with Lisa.
I have earlier referred to the extent of the obligations or responsibilities of a deceased parent or grandparent to her adult child and adult grandchild.
Of course, the deceased also owed the obligations and responsibilities of a parent to Cheryl and Gary.

(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered

I have earlier dealt with these matters. The net value of the estate is not very 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

Shaun is unemployed and has been in receipt of the Disability Support Pension since 2003. His last period of employment was in 2000, when at the age of 18 years, he worked for an engineering company for 4 or 5 months. In 2000, Shaun commenced, but did not complete, a Bar and Hospitality course at TAFE. Having left school before completing Year Nine, he did not complete his High School Certificate.
Shaun's gross fortnightly income is currently $837. With Lisa, he conducts a weekly market stall (to which reference will be made) at various venues, and he may derive some additional income. If he does, it is not very much.
He does not have any liabilities. His income meets his expenditure. Lisa "looks after" his money. She provides him with money when he requires. He takes $50 per week that he puts into a separate account held in his name and Lisa's name, which he described as a "savings account" (T86.10). There is no dispute that the funds in this account belong to Shaun as Lisa makes no contribution from her own funds into it. Lisa, however, is a joint signatory on the account: T76.24 - T77.46. The money in this account is "there for a rainy day": T 85.20.
Lisa corroborated Shaun's evidence about the way in which they operated the savings account.
He and Lisa share household expenses, although there is no regular contribution by each into a pool of funds from which those expenses are met.
Shaun also holds a joint bank account with Lisa, which has a balance of about $992. Shaun's assets total $879, and comprise household furniture ($300) and electrical goods ($575). He has $4.00 in a bank account.
At the hearing, Shaun stated that his psychiatrist had encouraged him to consider undertaking a course, and some further training, as part of his rehabilitation. He expressed an interest in undertaking a DJ course, which he estimated would cost in the order of $1,500 (T90.20 - T91.27).
Shaun acknowledged that his mental health was improving, and he has maintained abstinence from drugs for the last two years, and alcohol for the last 12 months. He aims to return to work, or study, at some point in the future, although he has no immediate plans to do so (T92.1 - T92.12). He appears to be quite motivated. This does not mean that the mental issues have entirely resolved.
Although Lisa also gave evidence at the hearing that Shaun's mental health is "the best he's been in his life" (T109.9), it is likely that Shaun will continue, at least in the foreseeable future, to remain upon the Disability Support Pension. Although Shaun has some earning capacity, I do not think that he is likely to work in the immediate future, or if he does, that any employment will improve his material circumstances significantly.
Counsel for Shaun submitted that he has need of accommodation, and that he desires to remain in the St George area in order to remain close to his treating health care professionals (I will return to Shaun's medical conditions later in these reasons). He also desires accommodation with a backyard so that he can continue to care for their animals (he and Lisa have a dog and 7-8 birds). For the foreseeable future, Shaun intends to continue to reside with his mother, Lisa.
Shaun gave evidence that houses or townhouses in the St George area ranged from $570,000 - $649,000; that a house or townhouse in the Canterbury and Bankstown ranges from $490,000 to $585,000; and that units and apartments in the Canterbury and Bankstown area range from $335,000 to $460,000.
Lisa gave evidence that she had contact, in 2016, perhaps July, with Housing NSW, and that it was considering putting Shaun on a priority list. She had shown a representative of Housing NSW a copy of the deceased's Will, and explained that the likelihood was that the Lugarno property would have to be sold, and that Shaun would then be without accommodation. She had not, however, made any contact subsequently.
On the third day of the hearing, counsel for Shaun indicated that Shaun and Lisa had received confirmation from Housing NSW, the day before, that Shaun had received approval to be placed on the priority list for public housing (T139.23 - T139.27). Shaun's counsel tendered a copy of a letter, dated 12 April 2017, addressed to Shaun, from the NSW Family & Community Services, which relevantly stated: "This letter is to advise that you have been approved for priority housing. Your name has been added the NSW Housing Register from 30 August 2016 for a property that suits your household in CS9 St George allocation zone. When it is your turn to receive an offer of housing, we will review your circumstances to make sure you are still eligible for housing assistance at that time. If you are, we will make you an offer of a suitable property for your household. You must let us know if there are any changes to your situation while you are waiting for an offer of housing. This includes a change in the health condition of a household member that affects your housing need, or if there is a change in household income, for example, if you receive any wages from a job."
In the circumstances, it is likely, once the Lugarno property is sold, that there may be an added impetus to Housing NSW to find some accommodation for Shaun into which he, and Lisa, as his carer, can move.
Whether or not he immediately obtains alternative accommodation from Housing NSW, the size of the estate, and the competing claims of the three named beneficiaries, is such that I would not find that the deceased had an obligation or responsibility to provide her grandchild, Shaun, with accommodation for the rest of his life.
Shaun also deposed that he needed a sleep apnoea machine ($2,000) as well as a fund to provide for exigencies of life and/or for future medical expenses (such as clinical psychologist sessions in addition to the 10 sessions a year subsidised by Medicare). His counsel submitted that he required a fund "to allow him to receive health care services "outside that which is covered by Medicare": T160.39 - T160.40. However, on this topic, the medical evidence is that "at times" he may require more than 10 sessions in a calendar year": T 161.00 - T161.03.
Shaun said that he would like to complete a course that has been suggested by his psychiatrist. He has not chosen a specific course, although in his evidence he mentioned "something to do with rehabilitation…I could be a role model to others" or some "DJ courses": T91.5 - T91.28.
There can be no dispute that Shaun is heavily reliant on social services. However, he appears to have been so for at least the last 15 years.
Lisa disclosed assets of $22,350 and liabilities of $1,025 (a credit card debt). As previously stated, she shares a joint account with Shaun totalling $992.
Lisa's income of $2,003 per month derives from the Carer's Pension ($1,754) and a Carer's Allowance ($249). Her income is sufficient to meet her expenses which total $1,828 per month.
At the hearing, Lisa acknowledged that although she has not worked for many years, she has previous work experience, of some 16 or 17 years, in retail, including managing a franchise business (T106.23 - T106.28).
Lisa and Shaun have held a market stall, as a means of clearing out the large amount of 'bric-a-brac' stored in the garage of the Lugarno property, as well as selling items they obtain from other garage sales (T107.33 - T107.50). Lisa gave evidence however, that after the payment of rent for the stall, they would only usually make about $30 in profit, which they then use to fund cigarettes, food and petrol (T108.31 - T108.40). Lisa stated that the markets also present a social opportunity for Shaun, and that this is another reason for their involvement (T108.42 - T108.46). Lisa may derive some additional income from conducting these market stalls. If she does, it is not very much.
Counsel for the Defendants pointed out that even on the carer's pension, Lisa would be able to engage in paid employment of up to 24 hours a month, without her pension being affected (T106.39 - T106.41).
Lisa conceded that she would be capable of returning to work as Shaun's need for care decreased: T110.3 - T110.18. I am satisfied that Lisa has an earning capacity.
Lisa, too, seems to have a need for accommodation. However, it seems that her accommodation need will be met if Housing NSW provides Shaun with accommodation, as she is his carer. In any event, the size of the estate, and the competing claims of each of Cheryl, Gary and Shaun, is such that I would not find that the deceased had an obligation, or responsibility, to provide Lisa with accommodation for the rest of her life.
Lisa described her additional needs as a new car, an amount to pay her credit card debt, and an amount to cover her funeral expenses.
As stated earlier, neither Cheryl nor Gary is an applicant for provision. However, each raises her, and his, financial and material circumstances, respectively.
Cheryl lives with her husband, Brian, and their son, Jason, who is 44 years old. Jason also suffers from a significant mental health disability. He has never left home, is in receipt of the Disability Support Pension, and has not worked for the last 20 years. There is some evidence (Ex. D2) that he suffers from schizophrenia and Cheryl gave evidence that he has "other depressive disorders: T141.34 - T141.35.
Jason is partially dependent on his parents, and although he contributes to expenses for food, he is unable to live alone and relies upon his parents for security of accommodation and other needs.
Cheryl's and Brian's assets total $1,201,500, including their home in Port Macquarie ($580,000), cash at bank ($147,500), a car ($15,000) and their superannuation ($279,000).
Cheryl and Brian are both retired. They receive a pension of about $1,960 per month and they draw down $1,160 per month from Brian's superannuation. Their monthly expenses are estimated to be $4,190. However, those expenses include $500 per month, described as "Miscellaneous entertainment and the like". As their expenses exceed their income, they draw down on their superannuation to pay the shortfall each month.
Cheryl described her financial needs as including requiring new carpet ($6,471), a new kitchen ($17,548), new whitegoods ($5,983) new furniture ($7,897) a new bed ($3,298), a washing machine and dryer ($1,845), a computer and printer ($1,699 and $118 respectively), a new mobile phone ($1,560) a new television ($895), an inclinator/stairlift for their home ($20,000) and solar panels and battery ($15,000). In addition, she states that the home needs painting, inside and out ($10,700) and needs repairs to the front ($4,500). She states that she has never been out of Australia and would like to take a holiday to the USA ($9,250). The total of the expenses is $107,305. (Of course as a joint owner, one might expect her husband, Brian to contribute towards the repairs, renovations and other requirements relating to their home.) Finally, she stated that she would like to have a "contingency fund" ($200,000).
Gary is employed as a gardener, and with his wife, Helen, rents a house that is owned by his employer. Their son, Chadd, lives with them. His wife is also employed. Their combined annual net income is $103,820. He states their monthly expenditure is between $8,000 and $8,500 (which equates to between $96,000 and $102,000 per annum). It appears their annual income is just sufficient to pay their expenses.
Gary and his wife provide Chadd with some financial support. Although it varied, at times it was $1,500 to $2,000 per month. If "he is short of money, we, as parents, help him out":T152.08 - T152.10. Chadd, however, works as a real estate agent.
Gary and his wife's assets total $486,247, which includes cash ($39,204) two cars ($10,000), and their combined superannuation ($437,043).
Gary gave evidence that he expected to retire at the age of 65 years, at which time he will be required to vacate the house owned by his employer. He and Helen have always rented, and they expect they will need to leave Sydney if they were to seek to purchase their own home.
He described his financial needs as accommodation ($570,000 to $650,000), a car ($29,783), a holiday ($4,918), a washing machine ($1,299), a fridge ($1,599), a superannuation/ contingency fund ($50,000 to $100,000) and health care needs ($18,000).

(e) if the applicant is cohabiting with another person-the financial circumstances of the other person

Shaun and Lisa live together but neither cohabits with any 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

At the age of 18 years, Shaun was diagnosed with schizophrenia, obsessive compulsive disorder, and substance use (opioid) dependence (the latter is now in remission). He has liver disease due to Hepatitis C and heart disease since 2009. He is under the care of a psychiatrist, clinical psychologist, St George Liver Clinic and cardiologists to manage these chronic conditions. (He is said to have cleared Hepatitis C in about November 2016.)
As a result of his schizophrenia, he had previously experienced both visual and auditory hallucinations. However, these symptoms are well managed with medication. Shaun has also attended a relapse prevention group at St George Hospital Drug and Alcohol Services for over 8 years. He attends counselling sessions every 3-4 weeks. Shaun is also said to suffer from sleep apnoea.
He has been, and continues to be, treated by Dr G Norris, a Clinical Psychologist, since 2009. He sees Dr Norris once per month at a net cost of about $40 per visit (for 10 visits); for the two other visits, he pays $165 per visit.
Dr Norris, in a report dated 25 March 2016, refers to Shaun as "experiencing negative symptoms of Schizophrenia and tends to lack motivation to engage in activities, particularly socialising, exercise, home duties etc. He has very limited interpersonal connections aside from his relationship with his mother and his participation in a Drug And Alcohol Support Group."
Dr Norris concludes his report by stating: "I believe that Mr. Hancock's psychological/psychiatric conditions impact significantly on his capacity to care for himself, including cooking, cleaning, engaging with transport and health care services, etc. I believe it is unlikely that Mr. Hancock will ever be able to engage successfully in paid employment."
In a subsequent report, dated 8 February 2017, Dr Norris repeats the paragraph quoted above, but adds: "I am hopeful that Mr Hancock's disability will recede to a significant degree with focussed psychological assistance and appropriate community based support."
Other evidence, including evidence from Shaun himself, suggests that he is making good progress and that his mental condition is stable. He stated that he had had "hopes and dreams" for the future: T97.35 - T97.41.
Shaun has regular 6 monthly check-ups for his heart condition and cardiomyopathy.
In a report, dated 10 March 2016, Dr M Nallaratnam, a Cardiologist and Cardiovascular Interventionalist, states: "Mr Hancock is routinely seen in our cardiology clinic to monitor for possible cardiomyopathy, in view of a family history of cardiomyopathy and psychotropic drugs, needed to treat his psychiatric condition. … From a cardiac point of view, there is no limitation on Mr Hancock's ability to look after himself, do household chores or work outside the home, however I cannot comment from a psychiatric point of view."
Shaun sees a Clinical Nurse Consultant at St George Community Mental Health once a month and sees a Psychiatrist at St George Hospital every 3 months.
Lisa does not suffer from any physical, intellectual or mental disability.

(g) the age of the applicant when the application is being considered

As previously stated, Shaun is 34 years of age and Lisa is 53 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

Shaun states that he contributed to the Lugarno property by assisting in its maintenance throughout much of the time he resided there, such as gardening and lawn mowing (until about 2010), assisting with the installation of a new toilet system and the removal of palm trees.
This was disputed by Cheryl, who claimed that the deceased had always paid to have the lawns mowed, and that when she had enquired of the deceased "Why can't Shaun do the lawns", the deceased had replied "He is useless, you can't get him to do anything."
I tend to the view that whilst Shaun may have provided some assistance, much of the work to maintain the Lugarno property was paid for by the deceased to third parties.
As referred to earlier, Shaun and Lisa did assist the deceased when her health began to deteriorate in about 2013. The fact that they were there, may very well have enabled her to remain living in the Lugarno property, until she was hospitalised in 2014.
Lisa was in receipt of the carer's pension for the deceased.
Lisa gave evidence that after her father died, she was jointly responsible, with the deceased, for the maintenance, repair, renovation and improvements of the Lugarno property. She stated that she contributed to a number of expenses, such as new fencing, carpeting, landscaping, replacing kitchen appliances. Not unnaturally, due to the passage of time, there was no corroborating evidence supporting her claims.

(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

The deceased made no provision for Shaun in her Will. By her Will, the deceased left one third of her estate, being a third interest in the Lugarno property, to Lisa.
However, by remaining in occupation of the Lugarno property for as long as they did, both before, and after the death of the deceased, I am satisfied that the deceased made some provision for both during her lifetime. Lisa acknowledged that the deceased had been "very generous" to her during her lifetime: T110.25 - T110.26.
Lisa and Shaun have remained in the Lugarno property for a substantial period longer than the period permitted by the terms of the Will.
In relation to the dispute regarding whether the deceased did not want Shaun and Lisa to return to live in the Lugarno property, I tend to think that whilst she may have had reservations, it was really Gary, and perhaps to a lesser extent, Cheryl, who did not want them to return.

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

Under the terms of her 1996 Will, the deceased left the entire Lugarno property to Gary, and $30,000 legacy each to Cheryl and Lisa. Gary gave evidence that at the time that the 1996 Will was made, the deceased said to him: "I am very concerned about your future when I eventually pass away. Lisa and Cheryl are in their homes. Helen and you are the ones in need and I want to leave the family home to you. They are set up."
In about 2002, in answer to a question from Shaun about the terms of her Will, the deceased is said to have responded "Fight over it when I'm gone. You'll be right Shauney, you'll be right."
Lisa gave similar evidence, and stated that when she had spoken to the deceased about what would happen to the family home after the deceased passed away, she had said to her "You can all fight it out once I'm dead."
However, in 2005, when the deceased made her final Will, Gary states that she said to him "Here is a copy of my new will. I've changed my will. It's all going to be shared equally."
Lisa and Cheryl were in attendance at the solicitors' office when instructions were given for the deceased's last Will. Cheryl gave evidence that during the visit to the solicitor, it was suggested that "You should make some provision in your will for Lisa if she is living with you. The usual period is about 12 months after death." Cheryl states she and Lisa had both conceded that the proposal was fair. Cheryl also stated that later that day, the deceased said to her "I am leaving the house three ways. That's it, then; there can be no arguments".
Cheryl also gives evidence that many years later, in early 2014, during a visit to Port Macquarie, the deceased said to her: "When I die, Lisa will have her third, and they can learn to stand on their own two feet. I am sick of holding the party."
This conversation suggests that the deceased recognised the benefits that she had provided to the Plaintiffs during her lifetime.

(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

As outlined earlier, Shaun was, at least partially, dependent upon the deceased since his birth. Lisa acknowledged that for most of her life she was dependent upon the deceased's generosity and that without this, she would have been unable to support herself and Shaun.

(l) whether any other person is liable to support the applicant

Apart from the Commonwealth government's responsibility to continue to provide each with a pension, the only other person with a liability to support Shaun is Lisa, as his mother.
There is no other person with a legal obligation to support Lisa.

(m) the character and conduct of the applicant before and after the date of the death of the deceased person

Both Defendants deposed that after Lisa and Shaun were required to vacate the house they were renting in Padstow, the deceased had been reluctant to allow them to return to live in the Lugarno property, but that she had agreed on the basis that Lisa had told her it would only be temporary until she found alternative accommodation.
Cheryl states the deceased had told her at the time "What can I do as it's only for a short time? I'll just have to put up with them, I don't want them back." Lisa disputes this claim, stating that the deceased had told her "Of course you two are always welcome….your rooms are ready for you."
Nonetheless, on cross-examination Cheryl accepted that the deceased had taken no steps to remove either Lisa, or Shaun, from the Lugarno property at any time, other than when Shaun was asked to leave in 1996 (T144.32 - T144.40).
Lisa deposed that she always had a close relationship to the deceased and that she had always tried her best to provide her with emotional and practical support throughout the deceased's life.
At the hearing, counsel for the Defendants tendered evidence to show that in the days prior to the death of the deceased, Lisa had made enquiries of hospital staff as to the process of gaining Power of Attorney for the deceased (T136.28 - T136.31). A copy of Progress/Clinical Notes from NSW Health (Ex. D3) supported this version of events.
Lisa conceded that this was on the basis that she expected that the deceased would be returning home, and that this would be necessary as the deceased would likely be bed-ridden (T136.32 - T136.38). She denied that she had been more concerned about obtaining a power of attorney and ensuring that she had an entitlement to the carer's pension than the deceased's welfare: T138.

(n) the conduct of any other person before and after the date of the death of the deceased person

There is no conduct on the part of Cheryl or Gary that is relevant. I am satisfied that each was a loving child to the deceased and that her, and his, conduct, respectively, towards the deceased demonstrated that relationship.
For example, although Cheryl left home at the age of 18 years, she did not move to Port Macquarie until she was 54 years of age. In the intervening 36 years, she lived close to the deceased and she saw the deceased each weekend. She would, on occasion, assist the deceased in looking after Shaun during school holidays "to give Mum a break from him" because at times "it was difficult for Mum…as…he was quite a handful or hard work": T 141.00 - T141.06.
Gary left home at the age of 17 and until he was married, at the age of 27, lived, for the most part away from home. Throughout the period that Shaun and Lisa lived with the deceased, he would keep in touch with the deceased. In the last few years of the deceased's life, this was usually by telephone.

(o) any relevant Aboriginal or Torres Strait Islander customary law

This is not relevant to these proceedings.

(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

There is no other matter that I consider relevant.

Determination

During the hearing, although it was put by all counsel that the financial relationships of Shaun and Lisa were so interconnected that, for example, the total of the amounts by way of family provision orders would be "the one amount sufficient for Shaun and Lisa to purchase a property" (T8.00 - T 8.04), or "that Shaun's portion, in effect, go to Lisa…"(T8.43 - T8.44), or that "if Shaun succeeds, and prima facie he should, … any burden should be borne between Cheryl, Gary and Lisa to the extent that Lisa will also benefit from any provision for Shaun" (T10.39 - T10.42), that is not the way in which the proceedings can be decided. Of course, there is some inter-connection between the two cases, since Shaun and Lisa live together and, so far as can be predicted, intend to continue to do so: T10.46 - T10.47. Also, they are competing claimants upon the bounty of the deceased. There are two separate proceedings brought and each must be decided on its own merits.

Shaun's Proceedings

Being an "eligible person" is a necessary pre-condition to the Court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. As stated, Shaun is an eligible person within the meaning of that term in s 57(1)(e) of the Act.
There is no dispute that the proceedings were commenced by him within the time prescribed by the Act.
As an eligible person by reason only of paragraph (e) of the definition of "eligible person" in section 57, it is next necessary for the Court to be satisfied that, having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application. There was a dispute between the parties whether the Court should be so satisfied.
Having regard to all the circumstances of the case (both past and present), I am satisfied that that there are factors that warrant the making of Shaun's application, namely those identified by his counsel and which have been set out above. Most significantly, in my view, is that the deceased regarded Shaun as such, in her 1996 Will. Whilst he was not identified, specifically, in her 2005 Will, as Lisa's only child, he would have been entitled to her share of residue if she had predeceased the deceased.
Then, it is necessary for the Court to determine whether, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the Will of the deceased.
As I wrote in Morier v Liem [2016] NSWSC 582, the fact that the Plaintiff does not receive any provision under the Will of the deceased, of itself, does not bespeak inadequacy. One must also consider the Plaintiff's overall financial position, the totality of his relationship with the deceased, and the size and nature of the deceased's estate.
Basten JA wrote in Chan v Chan at [22], that the Court must remember: "A significant set of factors in many cases is that identified as "the financial resources (including earning capacity) and financial needs, both present and future, of the applicant…". However, it is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. The background to any consideration of the appellant's needs required determination of the size of the estate and the claims of others on the beneficence of the testator."
Thus, in determining what is adequate for the proper maintenance or advancement in life of an applicant, the Court also considers the nature, extent and character of the estate and the other demands upon it, and also what the deceased regarded as superior claims or preferable dispositions.
When the Court considers Shaun's financial and material resources, one cannot but reach the conclusion that no provision having been made for him in the Will of the deceased bespeaks inadequacy for his proper maintenance and advancement in life. He obviously suffers from medical and psychological conditions, which, whilst appearing to be improving, have prevented, and do prevent, him working. He has very little by way of property.
According to prevailing community standards, I am satisfied, for the purposes of s 59(1)(c) of the Act, that adequate provision for Shaun's proper maintenance or advancement in life has not been made for him. In my view, the Court has jurisdiction to make an order for provision for Shaun.
Turning then to s 59(2), namely the question what provision "ought to be made for the maintenance, education or advancement in life" of Shaun, having regard to the facts known to the court, the more difficult question is what would constitute adequate and proper provision for him. There is no formula that can be used to determine the amount of that provision. In any event, an order for provision should be no more than is necessary to make adequate provision for the applicant's proper maintenance and advancement in life.
The Court should not focus only on Shaun's particular, or specific, known needs, but rather upon his needs in the "relevant sense", namely, in the sense of what is adequate for his proper maintenance or advancement in life.
As Gleeson CJ wrote in Vigolo v Bostin, at [12]: "The legislation was not merely, or even primarily, concerned with relieving the state of the financial burden of supporting indigent widows and children. The courts were not empowered merely to make such provision for an applicant as would rescue the applicant from destitution."
I am satisfied that there is a clear need for provision for Shaun out of the estate of the deceased for his immediate, and long-term, financial security, and for future contingencies. In coming to this view, I am of the view that he requires a capital sum for exigencies of life.
Yet, I am not satisfied that he should receive a lump sum that would enable him to purchase alternative accommodation when the Lugarno property is sold. Leaving aside any issue of "need" for such accommodation, to make such additional provision would, in my view, be more than adequate and proper provision in all the circumstances of this case, bearing in mind the size of the estate and the competing financial needs of each of Cheryl and Gary.
Excluding costs, the gross value of the estate at the date of hearing was estimated to be $865,000. Using that as a guide, and remembering that the parties requested the Court to determine the matters upon the basis of a lump sum that equates to a percentage, I am of the view that Shaun should receive an amount that equates to 7 per cent of the net proceeds of sale. On present estimates, that equates to about $60,000. This amount would enable him to pay for any educational course that he wishes to undertake, buy a sleep apnoea machine, as well as providing a fund for exigencies of life. He needs such a fund bearing in mind his current circumstances.
In coming to this provision, I have borne in mind the significant provision made for Shaun during the deceased's lifetime and the fact that he has remained living in the Lugarno property since her death.
Next, there was a significant issue about how the burden of the provision made for Shaun should be borne. The Court is required, by s 65(1)(c) of the Act to specify 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.
I am satisfied that the provision for Shaun should be made from the net proceeds of sale of the Lugarno property and that the burden of the provision should be borne out of the share of the net proceeds passing to Cheryl and Gary. The financial and material circumstances of each are in the case of Cheryl, much better, and in the case of Gary, better, than those of Lisa.
There was a suggestion that counsel for the Defendants "did not wish to differentiate" between them: T67.09 - T67.26. However, as the case proceeded to hearing, the Court must determine the issue.
Cheryl should bear an amount from her share of the estate that equates to 4.5 per cent (on present estimates $38,925) and Gary should bear an amount from his share of the estate that equates to 2.5 per cent (on present estimates $21,625) making the total of 7 per cent to which Shaun will be entitled.
I do not think that Lisa should bear any of the burden of the provision for Shaun.
The net proceeds of sale of the Lugarno property should be determined by deducting from the gross proceeds of sale, after adjustments for water rates and council rates, the debt secured by the mortgage registered on the title to the Lugarno property, the costs and expenses of obtaining Probate of about $5,000, the costs and expenses of sale of the Lugarno property, and, if so ordered, any costs of the proceedings.
Regrettably, I am unable to deal with the issue of Shaun's costs. If the parties are unable to agree, I shall list the matter for further evidence upon which the parties intend to rely, and for any argument, at an appropriate time after these reasons are delivered. Having said that, the parties should endeavour to reach agreement and avoid any further costs being incurred.

Lisa's Proceedings

As stated, is no dispute that Lisa is an eligible person within the meaning of that term in s 57(1)(c) of the Act.
I shall turn next to the question which is whether, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the Will of the deceased. (I am following this course because if I conclude that adequate and proper provision has been made for her, then there is no need to determine the extension of time issue.)
Counsel for the Plaintiff's written submissions did not descend into what provision ought to be provided. His submissions concluded: "The Plaintiff has been unable to work for any length of time or undergo training for work or education leading to a qualification due to her carer's responsibilities. She has no other means of supporting herself and her son apart from the Centrelink benefit. It is submitted that the Plaintiff discharges the first requirement under s 59(1) (c) of the Succession Act 2006 and asks that the Court determine what order for provision should be made for her."
I am not satisfied that Lisa should receive a lump sum that would enable her to purchase alternative accommodation when the Lugarno property is sold. Leaving aside any issue of "need" for such accommodation, to make such additional provision would, in my view, be more than adequate and proper provision in all the circumstances of this case, bearing in mind the size of the estate and the competing financial needs of each of Cheryl and Gary.
In any event, Lisa is likely to live with Shaun, as his carer, in the accommodation provided to him by Housing NSW. It is unlikely that she will require her own accommodation, and even if she did, the estate is simply not large enough to enable such provision to be made for her when one considers all of the other circumstances, including the competing claimants on the bounty of the deceased. In any event, the capital sum to which she is entitled under the Will would provide enough to enable her to rent accommodation.
In circumstances where I have determined that Shaun should receive provision out of the deceased's estate, and where I have determined that the burden of that provision should be borne, in unequal shares, by only Cheryl and Gary, the share of one third of the deceased's estate for Lisa will remain untouched (subject to an order for costs). Using the calculations mentioned previously, and ignoring costs, the result will mean that Lisa will be entitled to about $288,000.
A consideration of the deceased's Will would not suggest inadequate provision was made for Lisa. The deceased divided her estate equally between her only three children. Furthermore, with the exception of a fund required to enable her to purchase accommodation, and bearing in mind that Shaun will have available a capital fund, and, therefore, the need to financially assist him (even assuming that there were to be such a need) will be lessened, her "needs" are modest.
In coming to this conclusion, I have borne in mind the significant provision made for Lisa during the deceased's lifetime and her continued occupation of the Lugarno property since the death of the deceased.
Consistent with prevailing community standards, having considered, amongst other things, Lisa's financial and material resources, her, albeit limited, earning capacity, her close relationship with the deceased, taken with the fact that each of Cheryl and Gary has asserted a competing financial claim upon the bounty of the deceased, I am not satisfied, for the purposes of s 59(1)(c) of the Act, that at the time when I am considering the application, adequate provision for the proper maintenance or advancement in life of Lisa has not been made by the Will of the deceased. In the circumstances, her Summons must be dismissed.
It is, therefore, unnecessary to determine whether the time for the making of her application should be extended as there would be no utility in doing so.
I should mention however, that had it been necessary to determine whether time should be extended, I would have concluded that it ought to be. It appears that Lisa was not given the prescribed form of notice until late April 2016; she did explain the reason for not commencing proceedings within time, namely that the advice she received did not appear to have considered, independently of Shaun, her right, as an eligible person, to bring a claim, or whether, by bringing a claim, she would, thereby, be able to preserve her share of the estate from bearing the burden of the provision, if any, made for Shaun.
It seems to me, despite the way in which her case was presented at trial, a significant issue in the proceedings related to whether Lisa should bear any part of the provision to be made for Shaun. As I understood the position advanced by Cheryl and Gary, they maintained the position that she should bear part of the burden made for him. If that understanding is correct, it is most regrettable, that they did not consider the costs that would be incurred in adopting that approach, or if they did, by ignoring that consideration.
Finally, I should note, since it was referred to more than once, that Shaun and Lisa, together, would be likely to pool their resources, which means that they will receive about 40 per cent of the net distributable estate. In total, without any deduction for costs, this amounts to about $348,800. Cheryl will receive about 28.8 per cent, or $249,400, whilst Gary will receive 30.8 per cent (or $266,800.
In the circumstances, and subject to the parties raising any matters about the form of the orders, the orders which may be made are:

Shaun's Proceedings 1. Orders that the two proceedings be heard consecutively, with the evidence in one being evidence in the other. 2. Orders pursuant to UCPR rule 7.8 that Cheryl Christine Parker and Gary Neville Hancock be appointed as representatives of the deceased's estate for the purpose of the proceedings and to conduct the proceedings on behalf of the estate. 3. Orders, having found that the Plaintiff is an eligible person; that there are factors warranting the making of his application; that the proceedings were commenced within time; and that the provision made for him in the Will of the deceased is inadequate for his proper maintenance or advancement in life, that he receive a lump sum that equates to 7 per cent of the net proceeds of sale of the Lugarno property. 4. Orders that the burden of the provision made for Shaun should be borne as follows: Cheryl should bear an amount from her share of the estate that equates to 4.5 per cent ($38,925) and Gary should bear an amount from his share of the estate that equates to 2.5 per cent ($21,625) making the total of 7 per cent to which Shaun will be entitled. 5. Orders that no part of the provision made for Shaun should be borne from Lisa's share of the estate. 6. The net proceeds of sale of the Lugarno property should be determined by deducting from the gross proceeds of sale, after adjustments for water rates and council rates, the debt secured by the mortgage, registered on the title to the Lugarno property, the costs and expenses of obtaining Probate of about $5,000, the costs and expenses of sale of the Lugarno property, and, if so ordered, any costs of the proceedings. 7. Orders that the lump sum be paid within 7 days of completion of the sale of the Lugarno property. 8. Orders that provided the lump sum is paid within 7 days of completion of the sale of the Lugarno property, no interest is payable; otherwise, interest at the rate prescribed under s 84A(3) of the Probate and Administration Act 1898 (NSW) is payable from that date until the date of payment.

Lisa's Proceedings 1. Orders that the two proceedings be heard consecutively, with the evidence in one being evidence in the other. 2. Orders pursuant to UCPR rule 7.8 that Cheryl Christine Parker and Gary Neville Hancock be appointed as representatives of the deceased's estate for the purpose of the proceedings and to conduct the proceedings on behalf of the estate. 3. Orders that the burden of the provision made for Shaun should not be borne, as to any part, by Lisa. 4. Orders that, otherwise, these proceedings be dismissed.

I have not dealt, separately, with the occupation of Shaun and Lisa, remaining in occupation of the Lugarno property after the 12 month period allowed for by the deceased's Will. However, I have taken it into account in determining the provision, if any, that should be made for each. It is thus, unnecessary, in my view, to make any specific order, by way of additional provision, permitting each to have remained in occupation after the 12 month period. In addition, it is noted that each, in the other orders made, has agreed to vacate possession of the Lugarno property, to enable its sale.
In relation to costs, I shall allow the parties to consider the form of orders and have discussions regarding how the costs of the proceedings should be met. If agreement cannot be reached regarding costs, I shall hear the costs argument, including whether costs of any or all parties should be capped, and if so, at what amount.
The parties, in each matter, within 14 days, are to consider whether any amendments to the proposed orders are required. The matter is stood over to a convenient date for any argument as to the nature and form of the orders proposed and in relation to costs. Otherwise, any agreed amendments to the proposed orders may be forwarded to the Court, for consideration, in Chambers, or if no amendments are sought, the Court is to be informed and the orders proposed will be entered and the adjourned date vacated. The matter will be adjourned to a mutually convenient date thereafter to determine whether a costs hearing is required.

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: 20 June 2017

Family Provision Act 1982(NSW)

Diver v Neal [2009] NSWCA 54 Evans v Levy [2011] NSWCA 125 Foley v Ellis [2008] NSWCA 288 Forsyth v Sinclair (No 2) (2010) 28 VR 635 Glynne v NSW Trustee and Guardian; Lindsay v NSW Trustee and Guardian [2011] NSWSC 535 Goodman v Windeyer [1980] HCA 31; 144 CLR 490 at 498 Goodsell v Wellington [2011] NSWSC 1232 Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison [1997] 2 VR 359 Harkness v Harkness (No 2) [2012] NSWSC 35 Harrison v Harrison [2011] VSC 459 Hawkins v Prestage (1989) 1 WAR 37 Henry v Hancock [2016] NSWSC 71 Hills v Chalk [2008] QCA 159; [2009] 1 Qd R 409 Hinderry v Hinderry [2016] NSWSC 780 Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 Hunter v Hunter (1987) 8 NSWLR 573 Hyland v Burbidge [2000] NSWSC 12 Ilott v The Blue Cross [2017] 2 WLR 979; [2017] UKSC 17 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 MacGregor v MacGregor [2003] WASC 169 Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146 Marks v Marks [2003] WASCA 297 Mayfield v Lloyd-Williams [2004] NSWSC 419 McCosker v McCosker [1957] HCA 82, (1957) 97 CLR 566 McKenzie v Topp [2004] VSC 90 Moore v Randall [2012] NSWSC 184 Page v Page [2016] NSWSC 1218 Penfold v Perpetual Trustee [2002] NSWSC 648 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Porthouse v Bridge [2007] NSWSC 686 R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 Re Buckland, Deceased [1966] VR 404 Re Fulop Dec'd (1987) 8 NSWLR 679 at 681 Re Salmon, Deceased [1981] Ch 167 Sassoon v Rose [2013] NSWCA 220 Simonetto v Dick [2014] NTCA 4 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253 Smith v Johnson [2015] NSWCA 297 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Taylor v Farrugia [2009] NSWSC 801 Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 Thompson v Sgro [2016] NSWSC 1869 Tramantana v Harborne; Clarke v Harborne; Midson v Harborne [2011] NSWSC 1129 Tsivinsky v Tsivinsky [1991] NSWCA 269 Verzar v Verzar [2012] NSWSC 1380 Verzar v Verzar [2014] NSWCA 45 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) White v Barron (1980) 144 CLR 431; [1980] HCA 14 Wilcox v Wilcox [2012] NSWSC 1138 Yee v Yee [2016] NSWSC 360 Category: Principal judgment Parties: Mr Shaun Anthony Hancock (Plaintiff) Ms Lisa Maree Hancock (Plaintiff) Ms Cheryl Christine Parker (first Defendant) Mr Gary Neville Hancock (third Defendant) Representation: Counsel: Mr A F Stevens (Plaintiff, Shaun Hancock) Mr K P Tang (Plaintiff, Lisa Hancock) Mr K Morrissey (Defendants)

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