Hedman v Frazer; Egan v Frazer

The Claims 1HIS HONOUR: These reasons relate to two different proceedings, in each of which a family provision order pursuant to the Succession Act 2006 ("the Act"), and costs, are sought out of the estate of Russell Milton Robinson ("the deceased"). A family provision order is an order made by the Court in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person. (There was a third proceeding, listed for hearing also, in which similar relief was sought in respect of the same estate, but it was resolved by orders made at the commencement of the hearing.) 2With the agreement of the parties, I made an order that the matters be heard together, with the evidence in one being the evidence in the other. This was clearly necessary, and appropriate, as some of the evidence to be read was relevant to one, or more, of the proceedings. I shall refer, in the course of these reasons, to some of the evidence and to the orders that have been made in the settled proceeding. 3The proceeding, first in time, was commenced by Nikita Khoury, a daughter of the deceased, by Summons filed on 13 September 2011. An amended Summons was filed on 4 October 2011, and a further amended Summons was filed on 2 December 2011. I refer to these proceedings as "Nikita's proceeding". This proceeding was settled and orders were made. Each of the Plaintiffs in the other two proceedings consented to the orders being made. I shall return to the nature of the orders later in these reasons. 4The proceeding, second in time, was commenced by Lucie Elisabet Hedman, the widow of the deceased, by Summons filed on 15 December 2011. I shall refer to these proceedings as "Lucie's proceeding". 5The proceeding, third in time, was commenced by Summons filed on 20 December 2011 by Elisabeth Mary Egan, as tutor for Georgia Robinson Egan. Elisabeth is the mother of Georgia and was a witness in the proceedings. As Georgia is now 19 years of age and is, therefore, no longer a person under a legal incapacity, an order was made that Elizabeth be removed as her tutor. I shall refer to these proceedings as "Georgia's proceeding". 6The Defendant named in each of the three proceedings is Andrew John Frazer, a Chartered Accountant, who is one of the two executors (with Lucie) appointed in the Will of the deceased. 7Without intending to convey undue familiarity, with no disrespect intended, and for convenience, I shall refer, hereafter, to the family members, and witnesses, after introduction, by her, or his, given name. I shall refer to the Defendant as "the Defendant". 8The matters proceeded with the reading of the evidence filed in the three proceedings; then, the objections to a few parts of the affidavits were made and ruled upon; the cross-examination of each of the parties and one other witness, Sandra Jane Fynmore, then occurred; and, finally, submissions were made by senior counsel for each of Lucie, Georgia and the Defendant. 9A number of witnesses were not cross-examined which reduced the duration of the hearing. The estimated duration of the hearing was three days, but the proceedings were concluded within two days.

Formal Matters 10The following facts are uncontroversial. 11The deceased died on 22 December 2010. He was then aged 58 years, having been born in January 1952. 12The deceased was married to Wendy Stonestreet in November 1970. There were two children of their relationship, namely Nikita, and her sister, Melissa Robinson, who was born in 1971. Nikita was born in 1972. The deceased and Wendy separated in about 1973 and a divorce order was made in about November 1975. (Wendy married again in about 1977.) 13The deceased was next in a relationship with Elisabeth, which relationship commenced in 1985 and continued until the birth of their daughter, Georgia, in 1994. They had met some years earlier when each was relatively young. Despite their separation, Elisabeth and the deceased remained close friends until his death. 14Lucie was married in 1971 and divorced in 1976. There was one daughter of the marriage who was born in March 1971. Lucie was married again, between 1981 and 1983, although no details of this marriage are disclosed in her evidence. 15Prior to her relationship with the deceased, Lucie lived in a de facto relationship with John Lane, a friend of the deceased. Their relationship ended in 1996. They reconciled, in 2000, for about 12 months. It was following the final termination of their relationship that Lucie and the deceased commenced their relationship. 16The deceased married Lucie one week before his death. They had, however, been living in a de facto relationship from August 2002. Accordingly, their relationship was of 8.33 years duration. They became acquainted in 1983, although their relationship before the commencement of their de facto relationship was that of friends. (She and the deceased did not have any contact between 1984 and 1988. They had some contact after that time, but the contact was sporadic.) 17The deceased left a Will that he made on 15 December 2010, Probate in common form of which was granted to the Defendant and Lucie on 21 February 2011, by this Court. By that Will, after the revocation of all former wills and other testamentary dispositions, the deceased, in summary, provided for: (a) A legacy to Melissa "with whom I have had no contact since 1987", of $15,000: Clause 4. (b) A legacy to Nikita (who was formerly known as Donna Marie Deeb) "with whom I had very limited contact during her childhood and with whom I had a dispute in 1997 and with whom I have had no contact since that time" of $15,000: Clause 5. (c) A gift to Sandra Jane Fynmore of a portion of his shareholding in Kordus Pty Ltd ("Kordus"), "so that the aggregate of the shares held by her at my death and the shares provided by this bequest, represents 20% of the issued capital of Kordus Pty Limited at that time": Clause 6. (d) A gift to his uncle, Allen Robinson, of his Jaguar vehicle: Clause 7. (e) A gift to Georgia of his Peugeot vehicle: Clause 8. (f) A legacy to his cousin, Julie Flynn Robinson, of $10,000: Clause 9. (g) A direction to the trustees to set aside a sum of $80,000 to be invested, with the income to be used to pay the outgoings incurred by Elisabeth in respect of any home occupied by her during the period of 20 years following the deceased's death: Clause 13. (h) The balance of the Will contained powers given to the Trustees of the estate in addition to the powers given to them by law: Clause 18; a charging clause: Clause 19; as well as directions regarding the allocation and burden of taxes: Clause 20. 18I set out, verbatim, the provision made for Lucie in the Will: "10. I DECLARE that my wife LUCIE ELISABET ROBINSON shall have the right to occupy my residence at ... Putney or any substituted residence for a period of 20 years from my death. In the event that during the period of my wife's right to occupy the home she chooses to relocate within Australia, I DIRECT my Trustees to purchase on behalf of my estate, for her occupation, a dwelling appropriate for her personal circumstances. The outgoings in respect of the residence or any substituted residence including rates, taxes, insurance, and maintenance and repairs shall be paid from my estate. 11. I DIRECT my Trustees to appropriate the sum of $150,000 as a fund to meet from the income derived from the investment of the fund the expenses referred to in clause 10 and the costs of administering the fund and; (a) the powers of investment given to my Trustees under this will shall apply to the appropriated fund; (b) the rest of my estate shall be exonerated from any liability to meet the expenses in clause 10; (c) if the income from the appropriated fund is insufficient to meet the expenses my Trustees shall resort to the capital of the fund; (d) any excess income from the appropriated fund shall be reinvested as part of the fund; and (e) when the liability to pay expenses under clause 10 ceases the appropriated fund shall fall into and become part of my Residuary Estate. 12. IF my residence at ... Putney or any other substituted residence is sold and if any proceeds of sale remain after the purchase of a substituted residence in accordance with clause 10, I DIRECT that: (a) one half of the proceeds shall become part of my Residuary Estate; and (b) the remaining half shall be invested by my Trustees and the income paid to LUCIE ELISABET ROBINSON for her life and after her death the remaining half shall fall into and become part of my Residuary Estate." 19I set out the provision made for Georgia in the Will verbatim: "14. I GIVE my Residuary Estate to my Trustees to hold the same upon trust from my daughter GEORGIA MARY BRIDGET ISABELLA LAURA LOUISE MARJORIE NICOLA ROBINSON EGAN (Georgia Robinson Egan): (a) as to the sum of $10,000 upon her attaining the age of 21 years; and (b) as to the balance of my Residuary Estate upon her attaining the age of 30 years. 15. I DIRECT that my Trustees shall pay the reasonable fees and expenses associated directly with her education at government and equivalent colleges and universities. 16. Upon my daughter GEORGIA EGAN ROBINSON attaining the age of 25 years, my Trustees in their absolute discretion may at any time purchase in the name of the Trustees, a house, home unit, town house or other conventional form of home for her occupation." 20It is also necessary to refer to Clause 18(b) and 18(f) of the deceased's Will which provides for a power to the trustees: "18. My trustees have the following powers as well as those given by law: ... (b) subject to the specific provisions in relation to the trusts created in my will, to apply the whole or any part of the income or capital of any share in my estate to which any beneficiary is presumptively or contingently entitled for ...her maintenance, education, benefit or advancement in life until such time as ... she obtains a vested interest... ... (f) to allow LUCIE ELISABET ROBINSON and ELIZABETH EGAN or either of them to be employed in the childcare centre businesses owned by Kordus Pty Ltd on terms no less favourable than as at my death." 21According to the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the property owned solely by the deceased at the date of his death, was disclosed as having an estimated (or known) gross value of $6,820,825. No liabilities were disclosed. The estate was said to consist of real estate at Putney ("the Putney property") ($3,150,000); real estate in Victoria ("the Carrum Downs property") ($1,450,000); shares in public companies ($5,583); shares in private companies being Kordus (2 fully paid ordinary shares) ($1,470,000); North Ryde Community Finance Ltd (71,000 fully paid ordinary shares) ($68,160); Reachcord Pty Limited (2 ordinary shares) (unknown value); Russrobin Pty Limited ("Russrobin") (2 ordinary shares) ($2); Russan Pty Limited ("Russan") (80 ordinary shares) ($80) (total value of shares is $1,538,242); a car (the Peugeot) ($2,000) (in fact registered in the name of Kordus); the proceeds of a superannuation fund ($100,000); personal effects ($25,000) and debts due to the estate from the Robinson Family Trust ($250,000 and $300,000). (I have omitted any reference to the cents and shall continue to do so. This may appear to result in minor mathematical miscalculations in the figures set out below.) 22At the time of his death, the deceased held monies ($7,561) in a joint account in the Bendigo Bank with Lucie. The amount held in this account was transmitted to her following the death of the deceased. 23In his affidavit sworn 25 October 2013, the Defendant stated that the estate then had a gross value of $6,043,636 and that it comprised the deceased's interest in the Putney property ($2,950,000), the deceased's interest in the Carrum Downs property (net value $532,746), shares in Kordus ($1,955,152), a loan to Russrobin ($524,860), North Ryde Community Bank Shares ($47,460), listed shares ($8,418) and personal effects ($25,000). 24As mentioned, there were no liabilities of the deceased at the date of death disclosed in the Inventory of Property. There were, however, funeral expenses ($14,430). In addition, at the date of his death, there was a loan from the Bendigo Bank (the amount of which, as at 16 October 2013, was estimated to be $1,227,800) secured on the Putney property and from Russan (the amount of which, as at 16 October 2013, was estimated to be $940,500). There was also the deceased's liability for one half of the debt secured by mortgage on the Carrum Downs property (the total debt being about $1.62 million), which is now owed jointly by the estate and by Lucie (which debt has been taken into account in estimating the net value of the deceased's interest in the Carrum Downs property). 25The Defendant has stated he will not seek commission from the estate, as he is entitled to charge his professional rate for work done in administering the estate. 26The parties agreed that, at the date of hearing, the gross value of the estate, after the deduction of the mortgage debt and the Russan debt, was $3,875,336. They also agreed that, from the estate, there should be distributed or set aside: (a) $500,000 to Nikita (being the balance of the agreed amount ($550,000) by way of provision that she is to receive out of the estate pursuant to the orders made) and her costs calculated on the ordinary basis (agreed to be $82,500); (b) A legacy of $10,000 to Julie; (c) An amount, pursuant to Clause 11 of the deceased's Will ($150,000); (d) An amount, pursuant to Clause 13 of the deceased's Will ($80,000) from which the amount of $7,249 will be payable to Elisabeth; (e) An amount of $934, to Georgia, for education expenses; (f) An amount of $29,127, to the Defendant, for additional professional fees in administering the estate; and (g) The shares to which Sandra is entitled. 27In the event that the Putney property is sold, and alternative accommodation is to be purchased by, or for, Lucie, the stamp duty payable, depending upon the purchase price, will range between $62,490 (if the purchase price is $1.4 million) and $78,990 (if the purchase price were $1.7 million). 28At the date of his death, the deceased was an insured member in HESTA, the industry superannuation fund for health and community services. In September 2012, it held an account balance, in favour of the deceased, of approximately $142,338. At that time, the trustee wrote to Lucie and the Defendant, by their lawyers, advising that an application could be made for the payment of the deceased's death benefit. 29Since then the account balance increased to about $224,000. The Trustee of HESTA determined that the death benefit payable should be divided equally between Lucie and Georgia. Each has recently received about $112,000, which amount forms part of her current assets. (The distribution of one half of the death benefit to each of Lucie and Georgia followed a review of the Trustee's previous decision. Notification was provided to each of them and to the Defendant by letter dated 19 September 2013.) 30In calculating the value of the estate finally available for distribution, the costs of the present proceedings should also be considered, since each of Lucie and Georgia, if successful, normally, will be entitled to an order that her costs be paid out of the estate of the deceased, whilst the Defendant, as the executor representing the estate in the proceedings, irrespective of the outcome of the proceedings, normally, will be entitled to an order that his costs be paid out of the estate. 31Lucie's solicitor estimated Lucie's costs and disbursements of the proceedings, including senior counsel's fees, calculated on the ordinary basis, to be about $96,900 (inclusive of GST and upon the basis of a three day hearing). (In view of the fact that the matter was concluded in two days, the costs may be reduced, although the Court was not informed of the revised costs estimate.) 32Lucie has paid $21,625 on account of her costs and disbursements. If a costs order in her favour is made, she may recover some, or all, of this amount. I shall bear this in mind in dealing with her financial resources. 33Georgia's solicitor estimated Georgia's costs and disbursements of the proceedings, including senior counsel's fees, calculated on the ordinary basis, to be about $99,009 (inclusive of GST and upon the basis of a three day hearing). (In view of the fact that the matter was concluded in two days, the actual costs may be reduced, although the Court was not informed of the revised costs estimate.) 34Nikita's solicitor and the legal representative of each of the other parties, agreed that Nikita's costs of the proceedings, calculated on the ordinary basis, were $82,500. By consent of all, an order was made that this amount should be paid out of the estate. 35The Defendant's solicitor has estimated the Defendant's costs and disbursements of all three proceedings, including senior and junior counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a three day hearing), to be $175,443. Other associated costs and disbursements (in total, $28,063) bring the total amount of estimated costs and disbursements to $203,506, of which $95,443 has been paid out of the estate, leaving a balance of about $108,063 yet to be paid. (In view of the fact that the matter was concluded in two days, the actual costs may be reduced, although the Court was not informed of the revised costs estimate.) 36That almost $500,000 has been incurred in legal costs and disbursements of the three proceedings is eye watering, but, perhaps, it demonstrates the level of the intensity of feeling within family members, particularly between Lucie and Georgia, and those associated with Georgia. This level of feeling, in my view, has clouded the ability of each to see a practical, rather than a legal, solution to their proceedings (as I think will be demonstrated later in these reasons). 37The parties also agreed that the only eligible persons are Lucie, Georgia, Elisabeth, Melissa, Nikita, and Wendy. Only Elisabeth and Wendy have not commenced proceedings under the Act. I am satisfied that Elisabeth is aware of all of the proceedings as her affidavit was read (and until recently, she was Georgia's tutor). 38I am also satisfied that Wendy has acknowledged receipt of the prescribed notice, as there is evidence that she contacted the solicitor with conduct of the proceedings on behalf of the Defendant in February 2013, indicating that she would like to make a claim against the estate for unpaid child care payments. However, the evidence also reveals that nothing further has been heard from her, or on her behalf, since then.

Other Agreed Matters 39Melissa commenced proceedings by Summons filed 20 December 2011, seeking a family provision order, which proceedings were resolved at mediation on 11 March 2013. She received a lump sum of $100,000, inclusive of her costs, which was paid to her on 16 August 2013. 40The amount paid to Melissa was funded from a franked dividend that Kordus declared. 41The Defendant proposes, subject to the agreement of Lucie, as co-executor, that the balance of the amount payable to Nikita ($500,000) will be funded by declaring a dividend for one half of that amount, with the rest to be paid over 6 months, in instalments, by drawing down on the debt owed by Russrobin. 42The deceased had owned the Putney property since 1997. He purchased it for about $1.3 million. Lucie moved into the Putney property at the commencement of their relationship in August 2002. 43Georgia moved into the Putney property with the deceased and Lucie at the beginning of 2006. Prior to that time, she would usually spend alternative weekends with them. She left the Putney property, and returned to live with Elisabeth, shortly before the deceased died. 44Lucie agreed that she and Georgia "never formed a close relationship". Georgia echoed this view. 45In February 2008, the deceased and Lucie purchased the Carrum Downs property, as tenants in common in equal shares, for $2.6 million. Erected on the land is a single level, purpose-built, long day childcare centre. There is a lease of the Carrum Downs property, which commenced in February 2008, to Russrobin, for a term of 10 years with an option for another 10 years. Rental reviews are to be conducted annually with increases at 3% to 4% per annum. Outgoings, other than land tax, are the responsibility of the lessee, as is the payment of GST (on the provision of a valid tax invoice). 46Lucie is entitled to receive an amount from the rental obtained on the Carrum Downs property. As at June 2013, the amount payable to her was approximately $45,000, but with the accrual of rent for the five months thereafter, to November, her entitlement has increased to approximately $100,000. (She would be liable to pay income tax on that amount calculated at the rate of 46%.) The Defendant said that there was "no bar to that being paid out". 47The deceased's shareholding in Kordus is 66.67% (2 of 3) of the issued shares. Kordus owns and operates two different childcare centres in Camberwell and Glen Iris, Victoria. The estimated revenue generated from these two childcare centres is approximately $269,000 per month. Lucie is a director and the secretary of Kordus. On 18 March 2013, the Defendant was appointed as a director also. 48Russrobin is also the trustee of the RMR Discretionary Trust, which was established by Deed dated 2 July 2007. The deceased was the appointor of the Trust. Lucie was appointed a director and the secretary of Russrobin on 21 December 2010. (Subsequently, in March 2013, the Defendant was appointed a director also, although there may be a dispute about the validity of this appointment.) 49Russrobin owns and operates a different childcare centre conducted on the Carrum Downs property. It owns the assets and goodwill of that childcare business. As well, it holds 80% of the units of the Bentleigh Child Care Centre Unit Trust ("the Bentleigh Unit Trust"). The estimated revenue generated from this childcare centre is approximately $206,400 per month. It also holds some shares in North Ryde Community Finance, which operates a branch of the Bendigo Bank. 50Following the death of the deceased, the principal discretionary objects (identified in the Deed as "the Nominated Beneficiaries") of the Trust are Lucie, Georgia and Elizabeth. There are various other discretionary objects associated with the Nominated Beneficiaries who are identified as "General Beneficiaries". Both classes fall within the definition of "Beneficiaries" in the Deed and it is amongst the "Beneficiaries" that the income and capital of the Trust Fund may be distributed. (Melissa and Nikita were excluded as beneficiaries.) 51There is power given to the Trustee of the RMR Discretionary Trust, at any time, or times, before the Vesting Day, out of the capital or income, to pay, set aside, or lend (with or without security), an amount "to any Beneficiary for his, her, their or its own benefit or apply same to, or for the benefit of, any Beneficiary in any manner that the Trustee shall think fit". 52As at 30 June 2013, the estimated value of the net realisable assets held in the Trust was approximately $1,286,588. 53The distributions allocated to the loan account for each of the three principal discretionary objects from the Trust have been substantial. To Lucie, in the financial years ending 2010, 2011, 2012 and 2013, the allocated distributions total $472,379; to Georgia, in the financial years ending 2011, 2012 and 2013, the allocated distributions total $792,631; and to Elizabeth, in the financial years ending 2010, 2011, 2012 and 2013, the allocated distributions total $472,649. 54However, after the payment of income tax on the respective distributions, already paid and to be paid, and after relevant expenses are set off against her respective loan account, the amount Lucie is entitled to receive is estimated to be about $165,000, whilst the amount Georgia is entitled to receive is about $250,000. 55Russan is the trustee of the Bentleigh Unit Trust. Lucie is a director, with Sandra, of this Unit Trust. She was appointed in December 2010. (Subsequently, in March 2013, the Defendant was appointed a director also, although there may be a dispute about the validity of his appointment.) 56The Bentleigh Unit Trust was established by Deed dated 26 May 2010. It comprises 100 units, 80 of which are owned by Russrobin as trustee for the RMR Discretionary Trust. Sanfyn Pty Limited, a company associated with Sandra, own the remaining 20 units. 57Russan, as trustee, owns and operates another childcare centre in Bentleigh, Victoria. It owns the assets and goodwill of the business. The estimated revenue generated from this childcare centre is approximately $208,820 per month. (The net assets of the Bentleigh Unit Trust are reflected in the net asset position of the RMR Discretionary Trust.) 58The Putney property has a site area of 828.3 square metres. The improvements on it comprise a three level, painted, part timber weatherboard, and part compressed fibre cement clad, residence, with a terracotta tiled roof, a painted timber weatherboard boatshed with a metal roof, a small lap pool, timber decks and a double car port. The residence has 4 bedrooms, one with an en suite bathroom, a separate bathroom, a combined lounge/dining, a kitchen, a laundry, and low height basement storage. There is a small boat ramp from the boatshed. The grounds have been landscaped. The property enjoys expansive water views. 59Outgoings for the Putney property, which have been paid, total $64,306. 60The value of the 20-year interest in the Putney property given to Lucie in the deceased's Will, as at the date of death, was $645,000. 61The parties agreed that if the Putney property were sold, the costs and expenses of sale would be about $75,000, comprising agent's commission ($64,900) and conveyancing costs ($10,000). They also agreed that about $20,000 to $30,000 would be required to be spent on the Putney property to get it ready for sale. 62The deceased appointed Lucie and the Defendant as his attorneys under a General Power of Attorney dated 31 August 2007. At the same time, he appointed Lucie as his guardian "if because of disability I am partially or totally incapable of managing my person". 63The gift of the Jaguar vehicle to Allen, in Clause 7 of the Will, adeemed because the deceased made an inter vivos gift of it to Allen prior to his death. 64The value of the Peugeot motorcar, which was to be transferred to Georgia under Clause 8 of the Will, had no real value. It was transferred to the mechanic who had been looking after it in order to satisfy outstanding accounts for which the deceased was liable and which, otherwise, would have been payable out of the estate. 65Sandra is employed as the operational director of the four childcare centres conducted in Victoria. She is the sole director, secretary and shareholder of Sanfyn Pty Limited, which owns the balance of the units in the Bentleigh Unit Trust. (It owns these units as trustee for the Fynmore Family Trust.) 66Sandra is the person who runs the child care centres with the assistance of staff. She receives a gross salary of about $200,000 per annum. She gives evidence of the contribution made by Lucie (to which evidence I shall return), but considers that Lucie does not have a good understanding or knowledge of the business. When Sandra receives her entitlement to shares in Kordus Pty Limited under the Will of the deceased, she is likely to reconsider Lucie's continuing employment, including terminating that employment. (Elisabeth, who is another shareholder in Kordus has expressed a similar view to Sandra. Together, they will own over 50% of the shares in Kordus.) 67If Lucie's employment is terminated, the Defendant has seen accounts of Kordus that suggest she might have accrued entitlements to long service leave, holiday pay and sick pay, of about $10,000. 68Sandra has known Georgia since Georgia was born. She regards her as a bright adult with a "a very colourful personality". She is aware of Georgia's desire to be involved in the childcare business and is prepared to assist Georgia in learning the financial side of the business. She considers that, with time, Georgia could become her second in command of the childcare businesses. 69Georgia produced an academic transcript of her results in the Diploma of Marketing course for the academic year 2013. These results included one credit, two distinctions and four high distinctions.

Other Unassociated Proceedings 70Prior to the current proceedings being heard, the estate came to be liable for legal costs incurred in substantial, and protracted, litigation in this Court and in the Federal Court, with Leonardus Geradus Smits (who was the deceased's former lawyer and with whom he had business dealings) and an associated company controlled by Mr Smits, namely Cyonara Snowfox Pty Limited. Ultimately those proceedings were settled in December 2012 and $350,000 was paid out of the estate. The terms of settlement also addressed the Supreme Court proceedings, which were dismissed as part of the agreement reached between the parties. 71The legal costs involved in prosecuting the proceeding in the Supreme Court were $118,299. The costs of the proceeding in the Federal Court (including certain bankruptcy proceedings) were $358,990. Those costs have also been paid. In addition, the Defendant's professional fees for time spent conducting forensic accounting in the defence of the bankruptcy proceedings were $125,616. His professional fees for taxation services were $7,700. Those fees have also been paid.

The Statutory Scheme - The Act 72Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out most of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is 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. 73The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008. A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, Will. It is only if the statutory conditions are satisfied that the Court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate, to produce a result that is consistent with the purpose of the Act. Even then, the Court's power to do so is discretionary. 74The key provision is s 59 of the Act. The Court must be satisfied, first, that an applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, there is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made. 75Relevantly, in this case, Lucie relies upon the category of eligibility referred to in s 57(1)(a) of the Act. There is no dispute that she was the wife of the deceased at the date of his death, albeit that their marriage occurred about one week before. As stated, they were living in a de facto relationship for about 8.33 years before that. 76Relevantly, in this case, Georgia relies upon the category of eligibility referred to in s 57(1)(c) of the Act. There is no dispute that she is a child of the deceased. 77In each case, the language of the relevant section is expressive of the person's status, as well as her, relationship to the deceased. There is no age limit placed on an eligible person making an application. 78It is only if eligibility is found, that the Court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is this mandatory legislative imperative that drives the ultimate result and it is only if the Court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). Only then may "the Court ... make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made". 79Allsop P in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, commented, at 658 [6]: "... the expression of the task in s 59 is subtly different from the previous legislation. A prohibition against making an order unless satisfied of circumstances of an evaluative character, is different in emphasis from a permission to make an order if satisfied of circumstances of an evaluative character... The exercise of power to make the order is conditioned on the Court being satisfied of certain things in s 59(1). The order that may be made is described in s 59(2). The two elements are described in s 60(1)(b) as 'whether to make [an] ... order and the nature of any ... order.' Section 60(2) provides a detailed body of considerations for the task in s 59." 80Basten JA, at 662-3 [26], put the differences this way: "As appears from the language of the relevant provisions set out at [66]-[67] below, the Succession Act differs from the Family Provision Act in three significant respects. First, although both conferred similar powers on the court, the conditions of their exercise differ. The Family Provision Act required that the court 'shall not make an order ... unless it is satisfied that' the provision made by the testator is 'inadequate': s 9(2). The Succession Act provides that the court 'may ... make a family provision order ... if the court is satisfied that' the testator has not made "adequate provision" for the applicant: s 59(1). The changes in language may have been intended to remove double negatives, but there is a resultant change in emphasis. The apparent effect is to widen the discretion vested in the court. That which could satisfy a court that the provision made is 'not adequate', for the purposes of the Succession Act, might not have been sufficient to remove the prohibition under the Family Provision Act, which operated in the absence of affirmative satisfaction that the provision was 'inadequate'. There may well be no bright line boundary between adequacy and inadequacy." 81Barrett JA, at 677-8 [82] - [86], said: "The court's task under the new legislation is in substance the same as that under the old. Three differences relevant to the kind of case under discussion may, however, be noted (I leave to one side as irrelevant to such cases the extension of the s 60(2) criteria to the question of 'eligible person' status); and two postulated differences may be rejected. First, the Succession Act provisions direct attention, upon the initial inquiry into adequacy, to provision made by the deceased's will and the intestacy laws. The former legislation referred merely to provision 'out of the estate' but it was clear that the operation of the intestacy laws was to be taken into account in deciding what provision was available 'out of the estate': see, for example, Smilek v Public Trustee [2008] NSWCA 190. Second, the Succession Act confines attention, upon that initial inquiry, to provision made by the will and the intestacy laws. There is no reference to provision made during the deceased's lifetime. In this respect, there is a departure from the Family Provision Act approach under which provision made in favour of the eligible person "either during the person's lifetime or out of the person's estate" was to be examined upon the initial inquiry into adequacy. Attention may, however, still be given to provision made in favour of the applicant during the deceased's lifetime. That is now one of the factors to which regard may be had under s 60(1)(b) when the court is deciding whether to make a family provision order and the nature of the order: see s 60(2)(i). Under the Succession Act, therefore, provision made by the deceased while living thus has a continuing relevance with altered emphasis. Such provision is no longer something to be taken into account in deciding whether adequate provision has been made; but it may be taken into account in deciding whether an order should be made and the nature of the order. The third difference to be noted is the Succession Act's more comprehensive catalogue of matters that may be taken into account in formulating an order for provision. Section 9(3) of the Family Provision Act empowered the court to 'take into consideration' matters there stated in 'determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person'. Section 60(1)(b) of the Succession Act allows the court to 'have regard to' the matters set out in s 60(2) 'for the purpose of determining ... whether to make a family provision order and the nature of any such order'. The Succession Act lists a greater number of such matters than did the Family Provision Act." 82Other than by reference to the provision made in the Will of the deceased, or, if relevant, by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for the applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision actually made in the deceased's Will, or on intestacy, or both, on the one hand, and to the requirement for maintenance, education and advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant. 83In Grey v Harrison [1997] 2 VR 359, at 366-367, Callaway JA observed: "There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight." 84It was said in the Court of Appeal (by Basten JA) in Foley v Ellis [2008] NSWCA 288, at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J recently described it as "an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific": Szypica v O'Beirne [2013] NSWSC 297, at [40] (citing Manuel v Lane [2013] NSWCA 61 at [9] per Emmett JA, speaking in relation to s 20 of the Property (Relationships) Act 1984). 85Under s 59(1)(c) of the Act, the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the Court is considering the application. 86"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89, at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime". 87Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act. 88The term "maintenance" usually refers to a provision for the supply of the necessaries of life. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement": "'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education." 89In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), at [18], stated: "'Proper maintenance' is not limited to the bare sustenance of a claimant [cf Gorton v Parkes (sic) [1989] 17 NSWLR 1], but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility." 90In J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, 7th ed, 2006), at 542, the learned authors comment upon the difference between the concepts of maintenance and advancement: "The essential difference between 'maintenance' and 'advancement' is that 'maintenance' denotes a periodical payment or a payment which could validly be made periodically, whereas 'advancement' denotes a definite unique outlay for a specific purpose. Recipients of maintenance must, practically speaking, be infants, but adults may be recipients of an advancement. An advancement can never be made of a sum of money which the person to whom it is made can immediately pocket, but it must be made with a view to the establishment of that person in a business or profession, or otherwise in some definite way for that person's benefit, the whole essence of an advancement being the immediate payment of a tolerably large sum for an immediate benefit to one beneficiary." 91In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Murphy J noted, at 505: "Provision for advancement may, for example, extend to retraining or the gaining of a qualification which could advance and perhaps enable an applicant to maintain himself or herself." 92In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77 King CJ said: "The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang [(1960) 104 CLR 124] per Dixon C.J. at p. 128." 93Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16: "Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541) In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274... In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said: 'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.' The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that: 'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'" 94In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J, at [114] noted: "In the context of the Act the expression 'advancement in life' is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase 'advancement in life' has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the 'maintenance and support' of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support." 95In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)." 96In McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 Dixon CJ and Williams J stated, at 575: "(t)he presence of the words 'advancement in life' in the ... Act in addition to the words 'maintenance and education' is not unimportant. ... 'Advancement' is a word of wide import." 97The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, whereas "proper" prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127, per Buss JA, at 145 [72], [77]. 98These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 476: "The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances." 99Dixon CJ and Williams J, in McCosker v McCosker, at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that: "It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent." 100In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Gibbs J said, at 502: "[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards." 101In Vigolo v Bostin, at 228, Callinan and Heydon JJ said: "[T]he use of the word 'proper' ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of the kind which was made here...The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future." 102Santow J pointed out in Gardiner v Gardiner (NSWSC, 28 May 1998, unreported), that "adequate" and "proper" are independent concepts. He said, at 12: "'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied ..." 103In Palaganio v Mankarios [2011] NSWSC 61, at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life involve value judgments on which minds can legitimately differ, and there are no definite criteria by which the question can be answered. 104His Honour further observed in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522, at [123]: "The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case 'including the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty' (Singer v Berghouse (1994) 181 CLR 201 at 210)." 105Until recently, it was unanimously thought that there are two stages of the determination. The first stage, provided for by s 59(1)(c), has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the Court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. The Court does this by determining whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased and/or by operation of the intestacy rules, for the applicant. If it is not so satisfied, then the Court is precluded from making a family provision order. At this stage, the Court has regard to, among other things, the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased and the circumstances and needs of the other beneficiaries or potential beneficiaries: see McCosker v McCosker at 571-572; Singer v Berghouse at 209-210; Vigolo v Bostin, at [16], [75], [112]; Tobin v Ezekiel [2012] NSWCA 285, at [70]. 106Whether an applicant has a 'need' or 'needs' is also a relevant factor at the first stage of the enquiry. It is an elusive concept to define, yet, it is an element in determining whether "adequate" provision has been made for the "proper" maintenance, education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 (Tobias JA, with whom Beazley and Hodgson JJA agreed). 107In Collins v McGain, Tobias JA said: "42. Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies. ... 47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is 'proper maintenance etc' of the eligible person. It is because of that context that, in the present case, the 'proper maintenance etc' of the appellant required consideration of a need to guard against the contingency to which I have referred." 108In Devereaux-Warnes v Hall (No 3), at [81] - [84], Buss JA said, in respect of the first stage of the process: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources: see Singer (at 227) per Gaudron J. 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc: see Gorton v Parks (1989) 17 NSWLR 1 (at 10-11) per Bryson J. The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other: see Hunter (at 575) per Kirby P. Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc: see Singer (at 227) per Gaudron J. Compare Gorton (at 6-11) per Bryson J; Collicoat v McMillan [1999] 3 VR 803 at [38], [47] per Ormiston J." 109"Need", of course, is a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]. 110As Callinan and Heydon JJ emphasised in Vigolo v Bostin, the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably": at 231 [122]. The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined. 111In the event that the Court is satisfied that the power to make an order is enlivened (i.e. in this case it is satisfied that the applicant is an eligible person, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), then the Court determines whether it should make an order and, if so, the nature of any such order, having regard to the facts known to the Court at the time the order is made. 112The second stage of the process arises under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the Court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour. 113However, Basten JA, in Andrew v Andrew, said of the two stage process referred to: "29 The combination of changes [to the legislation] requires that the court address the nature of the exercise being undertaken. Three potential consequences may be identified. First, there is a simplification of the structure of the process. There is no longer a two-stage process required. A degree of artificiality has thus been removed. The court should now ask what, taking all relevant factors into account, would have been adequate provision for the applicant. There is no first stage of determining whether the actual provision was "inadequate", followed by a discretionary exercise of determining what would be adequate and what should in fact be done. ... 41 As noted above, the language of the Succession Act is not consistent with the two-stage inquiry which was a common feature of earlier legislation: cf Singer v Berghouse at 208-209. In Keep v Bourke [2012] NSWCA 64 the Court appears to have assumed that the two-stage process continued to operate under the Succession Act: at [24]-[29]. However, the issue not having been directly addressed, there is no constraint on this Court now adopting a different approach. Nor does earlier High Court authority construing an earlier statutory scheme govern the approach to be adopted to materially different legislative provisions." 114In Andrew v Andrew, Allsop P, at [6], said: "Whether the process engaged in by the court in s 59 can still be described as 'two-staged' in the sense discussed in Singer v Berghouse (1994) 181 CLR 201 at 208-211 may be an analytical question of little consequence. The task involves an evaluative assessment and a choice as to consequence therefrom, appeal from which is governed by the principles concerning discretionary judgments: Singer v Berghouse at 211 and DAO v R [2011] NSWCCA 63; (2011) 81 NSWLR 568 at [93]." 115Barrett JA disagreed with Basten JA, in Andrew v Andrew, saying: "65 This is the second occasion on which this Court has been called upon to deal with a claim under s 59 of the Succession Act. In the earlier case, Keep v Bourke [2012] NSWCA 64, the Court proceeded on the basis that approaches taken under s 7 of the now superseded Family Provision Act 1982 remained relevant and applicable. That matter was explored in greater detail in the course of argument in the present case. For reasons I am about to state, I am of the opinion that the earlier approaches should continue to be followed in cases such as the present case and Keep v Bourke, that is, cases in which the applicant is a child of the deceased and no previous order for provision out of the estate has been made in favour of that applicant. ... 79 First, it is necessary, having regard to s 59(1)(c), for the court to be satisfied that, at the time when it is considering the application, 'adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person'. Whereas the former s 9(2) provided that an order was not to be made unless the court was "satisfied" in the specified way, the present legislation permits the court to make an order if 'satisfied' in the specified way and, by necessary implication, precludes the making of an order if the court is not so 'satisfied'. 80 Second (and if the court is 'satisfied' in the specified way), the 'family provision order' that the court is empowered to make is, under s 59(2), 'such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made'; and the court may, pursuant to s 60(1)(b), have regard to the matters specified in s 60(2) in deciding whether to make an order and the nature of the order. 81 Under s 59 and s 60, therefore, the task of the court, in a case of the kind under discussion, is: (a) to determine the extent of the provision made for the maintenance, education and advancement in life of the applicant by the deceased's will or the intestacy laws; (b) to form an opinion of the adequacy of that provision; (c) if the opinion is one of inadequacy, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased person for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the court at the time the order is made; and (d) in making that evaluative judgment, to take into account, as discretionary factors, the matters in s 60(2). ... 94 As stated in Keep v Bourke, the structure and effect of the Succession Act provisions warrant continuing adherence to the two-stage approach indicated by the decisions of the High Court in Singer v Berghouse and Vigolo v Bostin." 116In Franks v Franks [2013] NSWCA 60, Young AJA (with whom McColl JA and Sackville AJA agreed), at [17], referred to the primary Judge (Macready AsJ) having "cited the High Court's decision in Singer v Berghouse [supra] and adopted the two stage process required by that decision". 117His Honour noted also, at [29], that the appellant (in one of the two appeals) "accepted that it was appropriate for the primary judge to follow the course laid down in Singer v Berghouse and that [the respondent] had surmounted the first hurdle of the two stage process referred to therein. Accordingly, he identified the key question as whether the primary Judge had erred in determining the quantum of the provision made for [the respondent] in lieu of that made under the deceased's will". 118At [35], his Honour wrote: "On an appeal against a decision concerning the application of the second limb of Singer v Berghouse, the Court is dealing with a discretionary judgment (see Singer v Berghouse (at 211) and Durham v Durham [2011] NSWCA 62 at [82]; 80 NSWLR 335 (at 352)). It follows that his Honour's decision is reviewable by this Court only in accordance with the principles established in House v The King [1936] HCA 40; 55 CLR 499." 119Although the appeal was allowed, that was because the Court found, at [42], that: "... in formulating the quantum of the provision he made for Brad, the primary judge did not take into account the disparity in the financial circumstances between Gregory and Brad. Accordingly, the primary Judge's decision as to quantum must be set aside." 120Nothing in the judgment of the Court of Appeal in Franks v Franks suggests that the approach followed by the trial Judge, in adopting the two-stage process required by Singer v Berghouse, was wrong. 121At first instance, there are a number of decisions to which reference should be made. In Verzar v Verzar [2012] NSWSC 1380, Lindsay J said: "92 I refrain from characterisation of these elements of the case as 'stages' because that is terminology associated with the Family Provision Act 1982 (NSW) and Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-211. Since Andrew v Andrew [2012] NSWCA 308 (14 June 2012) per Allsop P at [5]-[6] and Basten JA at [27], [29] and [41] a single judge of the Court is bound, in my assessment, to regard the two-stage decision-making process identified in Singer v Berghouse, and confirmed by Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, as superseded by enactment of ss 59-60 of the Succession Act. 93 Although the provisions of ss 59(1)(c) and 59(2) might formerly have been treated, respectively, as re-embodiments of the first and second of the two-stages of decision-making identified in Singer v Berghouse, the test to be applied in Family Provision cases must be taken by me to have been modified." 122(An appeal in Verzar v Verzar was heard in the Court of Appeal on 22 November 2013.) 123Ball J, in Oldereid v Chan [2013] NSWSC 434, after referring to Andrew v Andrew, noted the different approaches being adopted by trial Judges. His Honour said: "52 More recent decisions at first instance have differed on whether the decision in Andrew v Andrew requires the court to apply a two stage process or not. Lindsay J in Verzar v Verzar [2012] NSWSC 1380 thought that a single judge of the court is bound 'to regard the two-stage decision-making process identified in Singer v Berghouse ... as superseded by enactment of ss 59-60 of the Succession Act' (at [92]). Hallen J, on the other hand, has continued to apply the two stage test: see Goldsmith v Goldsmith [2012] NSWSC 1486 at [67]; Nowak v Beska [2013] NSWSC 166 at [113]. A third approach, adopted by Macready AsJ in Morgan v Bohm [2013] NSWSC 145 at [110], is to consider the case on both bases. There are, however, difficulties with that approach. If the two approaches involve real differences, then presumably there are cases where they will produce different results. What, then, is to be done applying both approaches? On the other hand, if the two approaches are bound to produce the same result, the dispute about which test should be applied has no significance. 53 In my opinion, there is clearly a tension between the decisions of the Court of Appeal in Keep v Bourke [2012] NSWCA 64 and Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 which only the Court of Appeal or High Court can resolve. In the meantime, the duty of a trial judge is to follow the later decision: see Ratcliffe v Watters (1969) 89 WN (NSW) Part 1 497 at 505 per Street J. In Andrew v Andrew, both Allsop P and Basten JA regarded the reformulation of the test in s 59 of the Succession Act as changing, perhaps only subtly, the threshold that must be satisfied before an order can be made. Basten JA regarded that change as also changing the way in which the court should approach the question. Allsop P regarded it as an analytical question of little consequence. However it is analysed, though, it is clear from the terms of s 59 that the court must ask itself the question whether it is satisfied that "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made". If it is so satisfied, it must consider whether to make an order and, if so, the terms of that order. In undertaking each of those steps, it may have regard to the matters set out in s 60. Whether those steps should be seen as separate stages that must be followed or as convenient steps in undertaking what is required by the legislation does not matter for present purposes." 124It appears that Ball J was not referred to Franks v Franks. 125More recently, Ball J in Peters v Salmon [2013] NSWSC 953, at [80], has referred to these decisions and to my own decision in Harrisson v Skinner [2013] NSWSC 736, at [62]-[79], and commented: "There is much to be said for that conclusion [that the two-stage test should continue to be applied]. However, whatever the position, as I pointed out in my judgment in Oldereid v Chan [2013] NSWSC 434 at [53] it seems clear from the terms of s 59 that the court must ask itself the question whether it is satisfied that "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made". If it is so satisfied, it must consider whether to make an order and, if so, the terms of that order. In undertaking each of those steps, it may have regard to the matters set out in s 60." 126In Frisoli v Kourea [2013] NSWSC 1166, Slattery J at [139] said: "Whether the two-step test operates with the same full vigour in the current legislation as it did in the Family Provision Act 1982 has been recently discussed in the Court of Appeal: Evans v Levy [2011] NSWCA 125. Indeed in Andrew v Andrew [2012] NSWCA 308, especially at [26]-[29], and [41], the Court of Appeal has stated that the new language of the Succession Act is not consistent with the two stage inquiry which was a common feature of the earlier legislation. But such considerations are not determinative in this case, which is a clear one on the question of whether or not adequate provision has been made. It has not, for the reasons explained below. And even though the process may no longer be a two stage one, it still involves a similar range of relevant considerations." 127In Ploder v Garcea (as executrix of the estate of the late Fiona Rita Garcea) [2013] NSWSC 1360, Sackar J, at [96], referred to a number of the decisions set out above, and said that he agreed with Allsop P (as his Honour then was), that "whether or not there had been a subtle change in approach is an analytical question of probably little consequence". 128In Theoctistou v Theoctistou [2013] NSWSC 1487, Lindsay J wrote, at [62] - [63]: "In approaching the tasks required by the text of the Succession Act, I am mindful that, in their submissions, both parties have drawn attention to the two-stage process discussed in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 209-210, as well as the observations about that process in Andrew v Andrew. By analogy, the first stage corresponds with s 59 (1)(c) of the Succession Act, and the second with ss 59 (2) and 60 (1)(b): Charmock v Handley [2011] NSWSC 1408 at [46]-[50]." 129In West v Mann [2013] NSWSC 1852,Kunc J wrote, at [11]: "In this case the parties invited me to apply the terms of the Act. They did not suggest any different result would follow depending on whether a two stage or other approach was applied. What is clear is that experienced first instance judges have been unable to agree upon the effect of current appellate authority. For my own part, and with the greatest of respect, I will do no more than observe that there is a risk that the description or characterisation of the process can become an unnecessary distraction. To adapt what the Court of Appeal has observed in another context, whether the process is correctly described as "two stage", "one stage", "twin tasks" or otherwise is "not a substitute for applying the wording of the statute, construed as a whole and purposively, to the particular fact situation that arises for decision in a particular case": Sahab Holdings Pty Ltd v Registrar-General [2011] NSWCA 395 at [185] per Campbell JA and Tobias AJA; McColl JA agreeing." 130Ultimately, as Allsop P said in Andrew v Andrew, at [6], "it may be an analytical question of little consequence" since the questions remain the same, namely, whether the Court can make an order for provision (whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made), and if so, whether it should (whether to make an order and, if so, the terms of that order). 131Section 60 of the Act, at least in part, is new. It provides: "(1) The court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the 'applicant') is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person-the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered." 132It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew, at [37] as "a multifactorial list", and by Lindsay J in Verzar v Verzar, at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order. 133It has recently been said by White J in Slack v Rogan; Palffy v Rogan, at [121], that s 60 "lists a wide range of matters that the Court 'may have regard to', but these do not provide any tangible assistance in answering the question in any particular case whether the provision made in a will was less than adequate for an eligible applicant's 'proper' maintenance, education or advancement in life". 134In West v Mann, Kunc J at [12], wrote: "Section 60(2) provides a helpful checklist but it is no more than that. The Court is not obliged to take those matters into account. The extent to which it does (if at all) will depend upon the facts of each particular case. Section 60(2)(p) confirms the breadth of matters the Court can take into account. Once enlivened, the Discretion is expressly fettered only by the requirement in s 59(2) that if an order is made, it must be such order "as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made". 135The 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. 136The Act does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. For example, when considering eligibility under s 60(1)(a), many of the matters in s 60(2) will be largely, if not wholly, irrelevant. 137A 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). 138Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently. 139This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the first stage. Happily, I am not alone in reaching this conclusion which is supported by the following comments made in Singer v Berghouse, at 209-210: "... The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant." 140It is also supported by the comments of Callinan and Heydon JJ in Vigolo v Bostin, at 230-231: "We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors." 141As was also pointed out by Barrett JA, in Andrew v Andrew, at [88] - [89]: "... leaving aside its relevance to the "eligible person" inquiry, the s 60(2) catalogue is directed to the question of what, if any, order for provision should be made and is not, in terms, applied to the initial question of the adequacy of the provision made by the will or the intestacy laws. It can be said at once that the s 60(1)(b) directive corresponds with that in the former s 9(3) to the extent that it relates to the decision regarding provision to be made. There is no express legislative intention, under either piece of legislation, that the enumerated factors are to be taken into account in deciding the initial question of adequacy of provision. There is accordingly no reason to think that those factors are to be afforded any special relevance in approaching the adequacy question. But they will, at that point, be given, independently of s 60(1)(b), such weight as they deserve in their own right as indicators of the "adequacy" question. As the primary judge recognised at [57], this is consistent with what was said by the High Court in Singer v Berghouse in relation to the former Act." 142Section 65(1) of the Act requires the family provision order to specify: (a) the person or persons for whom provision is to be made, and (b) the amount and nature of the provision, and (c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and (d) any conditions, restrictions or limitations imposed by the Court. 143The 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). 144Any family provision order under the Act takes effect, unless the Court otherwise orders, as if the provision was made in a codicil to the Will of the deceased or (in the case of intestacy), as in a Will of the deceased (s 72(1) of the Act). (Intestacy is irrelevant in these proceedings.) 145Section 66 of the Act sets out the consequential and ancillary orders that may be made. 146Section 99(1) of the Act provides that the Court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the Court thinks fit.

Other Applicable Legal Principles - Substantive Application 147Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. 148Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve "an overall fair" disposition of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants. The Court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act to correct the hurt feelings, or sense of wrong, felt by an applicant. Rather, the Court's role is of a specific type and goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance, education and advancement in life of an applicant. 149The 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, per Dixon CJ at 19; McKenzie v Topp [2004] VSC 90 at [63]. 150In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the Court to be "vigilant in guarding against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant". Freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the court": Cooper v Dungan, at 543 per Murphy J (citing Pontifical Society for the Propagation of the Faith v Scales, at 19). 151The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator: Pontifical Society for the Propagation of the Faith v Scales, at 19. 152In Stott v Cook (1960) 33 ALJR 447, Taylor J, although dissenting in his determination of the case, observed, at 453-4, that the Court did not have a mandate to rework a Will according to its own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged." 153Also, in Vigolo v Bostin, Gleeson CJ pointed out that the legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour stated, at [10], that it "preserved freedom of testamentary disposition, but subjected that freedom to a new qualification". Thus, testamentary freedom is not absolute. 154White J referred to these principles in Slack v Rogan; Palffy v Rogan, at [127]: "In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and (2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will." 155Gleeson CJ observed in Vigolo v Bostin, at 199, that the justification for interference with freedom of testation is to be found in the failure of a deceased to meet the obligations, which the community would expect in terms of maintenance, for those persons within the class of eligible persons. The process requires the Court to "connect the general but value-laden language of the statute to the community standards which give it practical meaning" (at 204). 156Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (NSWSC, 17 May 1996, unreported); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. 157As Allsop P said in Andrew v Andrew, at [16]: "If I may respectfully paraphrase Sheller JA [in Permanent Trustee Co Limited v Fraser (1995) 36 NSWLR 24 at 46F-47B], the court in assessing the matter at s 59(1) and the order that should be made under s 59(1) and s 59(2), should be guided and assisted by considering what provision, in accordance with perceived prevailing community standards of what is right and appropriate, ought to be made. This, Sheller JA said ... involved speaking for the feeling and judgment of fair and reasonable members of the community. It is to be emphasised that s 59(1)(c) and s 59(2) refer to the time when the court is considering [an application for a family provision order] and the facts then known to the court. The evaluative assessment is to be undertaken assuming full knowledge and appreciation of all the circumstances of the case. This ... makes the notion of compliance by the testator with a moral duty (on what he or she knew) apt to distract from the statutory task of the court." 158How those community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew, at [36]. 159In all cases under the Act, what is adequate and proper provision is necessarily fact specific. 160The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice; Allardice v Allardice (1910) 29 NZLR 959 at 966. 161Where the Court is satisfied that provision ought to be made, then it is no answer to a claim for provision under the Act that to make an order would be to defeat the intentions of the deceased identified in the Will. The Act requires, in such circumstances, the deceased's intention in the Will to be displaced: Kembrey v Cuskelly [2008] NSWSC 262, per White J, at [45]. 162All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singer v Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12, at [56]. Nor does it follow that if the Court decides it is inappropriate to make a specific provision in respect of one identified head of claim that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams, at [89]. 163The size of the estate is a significant consideration in determining an application for provision.

Lucie's Substantive Claim - Principles 164In Luciano v Rosenblum (1985) 2 NSWLR 65 at 69-70 Powell J (as his Honour then was), wrote: "It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of the testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies." 165The Court of Appeal, in O'Loughlin v O'Loughlin [2003] NSWCA 99, approved the "broad general rule". It has also been held that the principle is applicable to the position of a person who occupies the position of a de facto wife: Re Marcuola-Bel Estate; Marcuola-Bel v Thi Ly Tran [2005] NSWSC 1182, at [31]. However, the principle is not one of immutable application: Marshall v Carruthers [2002] NSWCA 47; Clifford v Mayr [2010] NSWCA 6, at [142]-[144]. 166The three elements identified by Powell J are not necessarily mutually independent. The Court is not to approach the assessment of what is proper for an applicant by attempting precisely to replicate the way of life that the deceased and his, or her, spouse planned to have had he, or she, survived. 167In Magill v Magill [2006] HCA 51; (2006) 226 CLR 551, Gleeson CJ, at 564 [24], said: "The structure of marriage and the family is intended to sustain responsibility and obligation." 168In Bladwell v Davis [2004] NSWCA 170, Bryson JA, who had reviewed the authorities stated, at [19]: "In the application of the test in s 7, and of the exposition thereof in Singer v Berghouse by Mason CJ, Deane and McHugh JJ at 409-411 it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse, in full and with reference to the instant facts. Defeat of the opponents' claims does not necessarily follow from a demonstration, which the claimant can make, that all her needs with respect to income, home renovation, and provision for contingencies cannot be met if any provision is made for the opponents; indeed she could well demonstrate that even if the provisions of the will took effect without any modification, the provision for her is not adequate. That is not a demonstration that no claim by an eligible person can succeed; the claims and circumstances of the opponents also have to be weighed, and they too have their needs and merits." 169Ipp JA added, at [2]: "I would add, however, that where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others." 170Greater weight may be given to the claims of parties who have entered "a formal and binding commitment to mutual support": Marshall v Carruthers; Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308, at [63]; Sellers v Scrivenger [2010] VSC 320, at [68]. 171Ward J (as her Honour then was) referred to many of the authorities in Cross v Wasson [2009] NSWSC 378; (2009) 2 ASTLR 201, at 221 [97]. At 221 [98], her Honour added: "Of course, the position of surviving spouse no longer attracts any primacy or paramountcy in the face of other competing claims. In Bladwell v Davis [2004] NSWCA 170 at [18] Bryson JA noted an inconsistency between according paramountcy to the claims of surviving spouses (in the context of competing claims) and the application to the facts and circumstances of each case of s 7 of the Family Provision Act and the approach established by Singer v Berghouse. His Honour said: 'Preconceptions and predispositions are likely to be the source of inadequate consideration of the process required by the Family Provision Act 1982'. His Honour considered it would be an error generally to accord to widows (or, by analogy here, widowers) primacy over all other applicants regardless of the circumstances and "regardless of performance of the stages of consideration described in Singer v Berghouse in full and with reference to the instant facts" (para 19). 172Where, after competing factors have been taken into account, it is possible to do so, a spouse ought to be put in a position where she is the mistress of her own life, and in which, for the remainder of her life, she is not beholden to beneficiaries: Langtry v Campbell (NSWSC, 7 March 1991, unreported). 173Usually, but not always, a mere right of residence will be an unsatisfactory method of providing for a spouse's accommodation. This is because the spouse may be compelled, by sickness, age, urgent supervening necessity, or otherwise, with good reason, to leave the residence. The spouse will then be left without the kind of protection which is normally expected should be provided by a deceased who is both wise and just: Moore v Moore (NSWCA, 16 May 1984, unreported) p 2 per Hutley JA; Golosky v Golosky [1993] NSWCA 111. 174Concern as to the capacity of the applicant to maintain herself, independently and autonomously, may also bear upon the notion of what is proper provision: Richard v AXA Trustees Ltd [2000] VSC 341; Anslow v Journeaux [2009] VSC 250, at [43]. 175The important consideration is whether, in all the circumstances, the community expectation of the deceased would be for greater benefaction to have been made for the adequate provision of the person seeking provision. 176Senior counsel for Lucie accepted, in my view correctly, in the circumstances of this case, that the principles referred to in Luciano v Rosenblum might not apply to Lucie because the marriage relationship was of only one week. However, in considering the obligation owed to her, one cannot forget the fact that she and the deceased lived in a de facto relationship for about 8.33 years previously.

Georgia's Substantive Claim - The Principles 177In relation to Georgia's claim, being a claim by an adult child, the following principles are useful to remember: (a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe in terms of universal application, the 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 children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801. (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute: Taylor v Farrugia, at [58]. (d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland Deceased [1966] VR 404, at 411; Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, at 148; Goodman v Windeyer, at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons: Re Buckland Deceased, at 411; Kleinig v Neal [No 2] [1981] 2 NSWLR 532, at 537; Mayfield v Lloyd-Williams, at [86]. (e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal [No 2], at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37, per Nicholson J, at 45. (f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: Macgregor v Macgregor [2003] WASC 169 (28 August 2003), at [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, is relevant: Marks v Marks [2003] WASCA 297, at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164, at [17]. (g) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd, at 149. (h) Although some may hold the view that equality between children requires that "adequate provision" not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the Court's determination of an applicant's case. 178I make clear that I do not intend what I have described as "principles" to be elevated into rules of law. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion at the second stage to be constrained, by statements of principle found in dicta in other decisions. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind. 179In 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, 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]."

Objects of a Discretionary Trust 180As stated earlier, each of Lucie and Georgia is an object of the RMR Discretionary Trust, which is a discretionary trust. As such, other than in respect of distributions already made, each has no enforceable rights to either the property or income of the Trust and is reliant, for any future benefit, upon the exercise of discretion of the trustee in her favour. A discretionary object has no legal, or equitable, interest in the property of a discretionary trust until the trustee exercises its discretion in that beneficiary's favour. Until that point, a discretionary beneficiary's interest is merely an expectation or hope. 181In Belfield v Belfield [2012] NSWSCA 416; (2012) 83 NSWLR 189, Campbell JA wrote (at 206 [71]): "... when the FPA was enacted in 1982, it was common and well known that there were significant advantages for a person with some capital (who I will call the instigator) to arrange the setting up of a family trust, with a structure like that of the present trust deed. Common features of such trusts were that the trust was established by a settlor who was not the instigator or someone the instigator wished to benefit, the eligible beneficiaries were relatives by blood or marriage of the instigator, and there could be a discretionary allocation of income each year amongst eligible beneficiaries and ultimately a discretionary allocation of capital amongst eligible beneficiaries. Other common features were that there was power to alter the eligible beneficiaries, certainty achieved by provisions stating where income, and capital respectively would be distributed in default of a specific allocation of income or capital, and distribution of capital delayed for as long as permissible under the rule against perpetuities but with a discretionary power to advance the distribution date: see, for example, I J Hardingham and R Baxt, Discretionary Trusts, (1975) Sydney, Butterworths. Those discretions were usually conferred on the trustee of the trust. Such trusts enabled an instigator who was concerned to provide for a family, usually a parent or grandparent, to arrange for assets that they had accumulated to be made available to different members of the family as the need for money presented itself. Such trusts also had the effect of lessening the impact of death duties, while death duties remained in force in Australia, and of lessening the impact of income tax on the members of a family unit considered collectively, by enabling income to be appointed to those members of a family who had a lower marginal rate of taxation." 182In Gregory v Hudson (No. 2) (NSWSC, 18 September 1997, unreported), it was said (at pp 10-12): "Mr Broun QC puts that the authorities clearly show that a provision in a will that trustees might pay additional moneys out of the estate for the benefit of the applicant is not a proper provision. He cites Re Brown [1972] VR 36. In that case, after citing some decisions from New Zealand and Canada, together with the note of Re WTN C McLelland, CJ in Eq. (1959) noted 33 ALJ 240, Norris, AJ said at 39, 'It is true to say that in most of the cases the fact that a discretion to increase a benefit existed was not regarded as rendering adequate a provision which otherwise was inadequate. I think, nevertheless, it is consistent with the authorities to say that such a discretion is not to be excluded from consideration in determining whether or not adequate provision has been made, and that it may in an appropriate case render adequate a provision otherwise inadequate.' He then cites Re Allen [1922] NZLR 218. Dickey in Family Provision after Death (LBC Sydney 1992) says at p 121, 'There is some authority for the proposition that where a person is in need of provision but the quantum of provision made for him or her from a deceased's estate is wholly dependent upon the discretion of trustees, this provision is not adequate. In all probability, however, this is not an inflexible rule. In all probability the question of whether provision of this kind is adequate depends upon the particular facts and circumstances of the case. ... I consider, with respect, that Professor Dickey's comment is close to the mark. Ordinarily, a benefit provided under a discretionary trust is a fairly illusory benefit because it can be terminated without reason and there is little likelihood of a discretionary beneficiary being able to force the trustee to pay her a benefit. Hartigan's case shows that even if there is a memorandum of wishes, there is no obligation on the trustee to take that into account. Furthermore, even though the trustees say that they intend to follow the wishes, they are not bound to do so, and indeed, circumstances may change in such a way that they feel it is not proper to continue to follow the memoranda of wishes and carry out the spirit of what the deceased intended. ... It seems to me that where a wealthy man, with an estate of at least 11 million dollars, leaves the bulk of the benefits to his widow under a discretionary trust over which she has no control, he has not made proper provision for his widow. The community would expect that the widow of such a man would at least have a home in her own name and some capital to which she could resort whenever she felt like it." 183This decision was followed by Master McLaughlin (as his Honour then was) in Gill v Permanent Trustee Company Limited (1999) NSWSC 394); in McCullum v Permanent Trustee [1999] NSWSC 1219; Novak-Niemala v Perpetual Trustee Co Ltd [2002] NSWSC 251; and Stansfield v National Australia Trustees Ltd [2004] NSWSC 1107 and by Macready AsJ in Tucker v Tucker [2012] NSWSC 1302. 184In Taylor v Farrugia, Brereton J wrote, at [62]: "Provision for eligible persons may be inadequate or improper in form as well as, or as distinct from, in quantum. Thus, provision which is dependent upon the exercise of a discretion by the trustee of a discretionary trust will often, though not invariably, be inadequate or improper [Re WTN (NSWSC Unreported, 3/7/59, McLelland CJ in Eq; referred to in [1959] 33 ALJ 240 Gregory v Hudson (No 2) (New South Wales Supreme Court, Young J, 18 September 1997, unreported." 185None of these decisions mean that the Court should act in total disregard of the potential availability of wealth to an applicant for a family provision order from sources owned, or administered, by others. 186Furthermore, the Act specifically refers to "financial resources" (which term is referred to in s 60(2)(d)). Whilst there is no definition of that term in the Act, there is a definition of that term in s 3 of the Property (Relationships) Act 1984, which is helpful: "'financial resources' ... includes: (a) a prospective claim or entitlement in respect of a scheme, fund or arrangement under which superannuation, retirement or similar benefits are provided, (b) property which, pursuant to the provisions of a discretionary trust, may become vested in or used or applied in or towards the purposes of the parties ..., (c) property, the alienation or disposition of which is wholly or partly under the control of the parties to the relationship or either of them and which is lawfully capable of being used or applied by or on behalf of the parties to the relationship or either of them in or towards their or his or her own purposes, and (d) any other valuable benefit." 187In Re Brown Deceased [1972] VR 36, Norris AJ considered a will which made provision for the testatrix's husband by way of an annuity for life and further empowered her trustees "to pay or apply such additional weekly or other periodic sums as they in their discretion may think fit towards the maintenance support and comfort of my said husband". On an application by the husband for further provision out of the estate, the Court wrote: "...in Mills v New Zealand Insurance Co [1958] NZLR 356, Barraclough, CJ, examined the extent to which the existence of such a discretionary power should influence a decision as to whether adequate provision had been made. His Honour stated that counsel had been able to refer him to only two cases which were really relevant, Re Allen [1922] NZLR 218, and Re Thomas [1954] NZLR 302. Further authorities to which reference may be made are Re Lawther [1947] 2 DLR 510; Re W.T.N. an unreported decision of McLelland, CJ in Eq., in 1959, noted at 33 ALJ 240; and another unreported case, Re Dudley decided by Hutchinson, J, of which a fairly full note appears in [1962] NZLJ 123. I do not think that these authorities go as far as Mr. Little contended. It is true to say that in most of the cases the fact that a discretion to increase a benefit existed was not regarded as rendering adequate a provision which otherwise was inadequate. I think, nevertheless, it is consistent with the authorities to say that such a discretion is not to be excluded from consideration in determining whether or not adequate provision has been made, and that it may in an appropriate case render adequate a provision otherwise inadequate. Salmond, J, in Re Allen [1922] NZLR 218, considered the case of a discretionary power to increase the (inadequate) income of a 17-year-old daughter prior to her coming into the capital at 25, which power ceased on an older brother reaching the same age two years before she did. He said: "This supplementary provision, however, is not one to which she is entitled as of right, and, moreover, it will come to an end as soon as her elder brother attains the age of twenty-five - that is to say in six years. The daughter will then be twenty-three years of age, and from then onwards until she is 25 she will have nothing except the income of her company shares. I think therefore the provision made for her prior to her attainment of the age of twenty-five is inadequate. In Re Lawther [1947] 2 DLR 510, Williams, CJ, in the Manitoba Court of Kings Bench, was concerned with the embarrassment to which a trustee widow and her co-trustee might be subjected in deciding whether or not, in the exercise of an absolute discretion to apply amounts out of capital for her care and maintenance over and above the annual income given to her by the will, as the remaindermen included children of the co-trustee. In the light of this potential embarrassment he did not insist on adjourning the matter until the widow had applied to the trustees for the exercise of their discretion before deciding that the income given was an inadequate provision. In the case of Re Dudley [1962] NZLJ 123, the gifts to the widow included an annuity subject to the proviso that should the trustee consider the annuity inadequate for her proper maintenance and support and benefit he should pay her such sum or sums as he thought fit for those purposes. There were other annuities to children and certain small bequests and a trust to accumulate surplus income. The residue and accumulation were given to charity. Hutchinson, J, said: "I have no hesitation in holding that the annuity should be increased. ....I do not think the provision under which the Public Trustee may increase her annuity meets the position. I have no doubt that the Public Trustee would deal sympathetically with a request under that provision by the plaintiff for additional money, but it might be distasteful and embarrassing to her to have to make any such application. Further the Public Trustee might very well consider that when an application was made he ought to obtain the concurrence of others concerned in the estate, in particular the residuary legatee, and there might, with all goodwill, still be an irksome delay in her obtaining what she wanted in the way of extra money." There was in that case no opposition to the application, and the assets were ample. Re W.T.N. supra, was the case of an application on behalf of an insane child. The trustees were given a fund in their discretion to apply the capital or income for the benefit of the child during his life with a gift over of what remained at his death - a form to be found in various books of precedents. According to the note in the Australian Law Journal, "McLelland, CJ in Eq., held that by reason of the discretionary nature of the trusts, they did not constitute adequate provision for the proper maintenance of the applicant". The note further suggests that his Honour's decision might have been based upon two reasons - one, that the child would not have a right to any particular sum and, the other, that the trustees might take a narrow view of what he should have. In all these cases, the discretionary power was considered, but found not to turn an otherwise inadequate provision into one which was adequate. The reasons given varied: in some cases it was because the applicant had no right to the additional amount, in some cases it was because of embarrassment to the applicant or to the trustees, once it was perhaps because of the possible parsimony of the trustees. There is also the case of Re Thomas supra, where the trustee's discretion was to resort to capital for such sums as he should from time to time think fit for the adequate maintenance and support of the widow. Archer, J, held that the widow being clearly entitled to further provision as the sole asset in the estate was the matrimonial home, the only practical method of making further provision was to transfer the home to her. On the other hand, in Mills v New Zealand Insurance Co Ltd supra, the widow received in the result what Barraclough, CJ, regarded as adequate furniture for her needs, 950 pounds in cash and the free use, occupation and enjoyment of and the whole of the income arising from the residue during her lifetime with a gift over to children surviving the testator and attaining 21. There was only one child, a daughter aged seven. The residue comprised a house and investments producing a net income of 485 pounds per annum. The will contained a provision entitling the trustee in its sole discretion if it at any time considered the income of the residue was insufficient for the proper maintenance of the wife to have recourse to the capital to make the income up to such a sum as should in the opinion of the trustee be sufficient for the purpose. The importance of the case for present purposes arises from the applicant's request for an order that she should be paid a lump sum of 500 pounds to meet, inter alia, unusual expenditure to arise some seven years later when the daughter entered a secondary school as a boarder. His Honour held that the life interest given by the testator was not obviously inadequate and that at least it made reasonable provision for the widow so long as exceptional circumstances did not arise. He went on to say: "The testator has left it to the good sense and discretion of his trustees to evaluate each disaster, misfortune or unexpected circumstance, if and when it arises, and to make such provision therefor as may appear to be just having regard to the other competing claims of mother and daughter. I am not justified in assuming that the discretion will not be wisely exercised by the trustee when and if the occasion for exercising it should arise." In conclusion he said: "In my opinion I am bound, in considering the adequacy of the provision made for his widow by this testator out of the estate of which he was possessed, to take some account of the discretionary trust which he created in CL5 of his will. It confirms my conclusion that, save in the one respect already mentioned, the will makes adequate provision for the applicant." I, therefore, do not disregard the discretion here reposed in the trustee in considering the adequacy of the provision made by the plaintiff. " 188In Flathaug v Weaver [2003] NZFLR 730, at 737-738, Hansen J discussed the relevance of a discretionary trust in which one of the objects was an applicant for provision. He wrote: "We see no reason why, in a proper case, an entitlement to benefit under a trust, even of a fully discretionary nature, should not be taken into account in assessing a testator's duty to make provision. In this case, the only beneficiaries of the Trust are John and Nils and their children. It would be wholly unrealistic not to have regard to their exclusive rights to benefit from the Trust. By leaving his entire estate to the Trust, the testator plainly saw it as the means by which he would provide for his children and grandchildren. In our view, for the purpose of assessing their competing claims, that may be regarded as equivalent to direct testamentary provision." 189In Kelly and Kelly (No.2) (1981) 7 Fam LR 762 at 769, it was said that "financial resource" includes "contingent interests or benefits which a party actually received or was likely to receive, whether legally entitled thereto or not". It would also include "a source of financial support which a party can reasonably expect would be available to him or her to supply a financial need or deficiency": Mee and Ferguson [1986] FamCA 3; (1986) 84 FLR 179, at 183 [40]. 190In Neale v Neale [2013] NSWSC 983, in relation to the meaning of that term, I referred to White and Tulloch v White (1995) 19 Fam LR 696 and the statement made in that case that the "term [connotes] some degree of entitlement to, control over, or relative certainty of receipt of property". 191In RK v RK (Financial Resources: Trust Assets) [2011] EWHC 3910 (Fam); [2013] 1 FLR 329, in which English trustees had actively participated by giving evidence both written and orally at a hearing, Moylan J wrote (at [60] - 62]): "... Resources held within a bona fide discretionary trust are a party's resources to the extent which, on the balance of probabilities, they are likely to be made available to that party either now or within the foreseeable future. This would encompass provision for that party's own needs as well as provision to enable that party to meet an award made against him or her in favour of the other party. The form in which the provision can be made available or might be made available will of course vary. It might be by way of income or capital distributions, by way of loans or by way of occupation of a trust property. In determining this issue of fact the court must assess the evidence available to it. There is a very long tradition of the courts seeking to ascertain the reality of a situation. As Merrivale L said in N v N [1928] 44 TLR 324, the ecclesiastical courts 'showed a degree of practical wisdom ...They were not misled by appearances ...they looked at realities'. In Re: The Esteem Settlement [2004] JRC 92, The Royal Court of Jersey said, at para.166: 'In our judgment, where the requests made of trustees are reasonable in the context of all the circumstances, it would be the exception rather than the rule for trustees to refuse such requests.'" 192In the present case, it is to be remembered that Lucie is one of the directors of the trustee of the RMR Discretionary Trust and, therefore, she does have some control. Furthermore, there are now only three principal objects of the Trust being Lucie, Georgia and Elisabeth. Historically, at least, these three discretionary objects, with the deceased, were the only recipients of distributions from the Trust.

Submissions 193In the written submissions, Lucie's claim was that she should "have security of tenure in the Putney, not for 20 years from the death of the deceased, which 20 years expires in 2030 when she will be 81 and in greater need for security of accommodation, but that she have such security until her death" and that if it were necessary to sell the Putney property, then she should "have comparable unencumbered premises, together with an appropriate legacy to fund her maintenance of the said premises, her lifestyle and a fund for a motor vehicle". 194At the hearing, however, senior Counsel for Lucie submitted that the "template of the provision to be made" for her should be as follows: (i) the deceased's half interest in the Carrum Downs property (subject to Lucie indemnifying the estate for the mortgage debt, subject to the estate paying the CGT, if any, payable at the time of the transfer; (ii) a lump sum of $1.5 million to be paid out of the proceeds of sale of the Putney property. (iii) the Citroen motor vehicle which is owned by Kordus Pty Limited; (iv) the furniture and chattels situated at the Putney property; (v) the amount in the loan account to which she is entitled should be paid to her. 195For her part, Lucie would be prepared to: (a) Disclaim any further interest in the trust; (b) Resign as a director of Kordus Pty Limited and any other company in which she was a director with the Defendant; (c) Resign her current employment with Kordus Pty Limited and not seek any further employment with that company; (d) Continue only as a lessor of the child care centre operation on the Carrum Downs property; (e) She would retire as a trustee of the property of the estate. 196It was submitted that the consequence of this "template" would be that her relationship with the estate, and indirectly with Georgia, would end and that the balance of the estate would be "freed up", which would significantly benefit Georgia. Lucie, thereafter, would be the mistress of her own destiny, having absolute ownership of her home, security of income (through Carrum Downs) and an absolute capital sum to provide for her future. 197Following the close of submissions, I sought clarification of Lucie's position. An e-mail sent on 4 December 2013, to senior counsel to each of the parties, stated: "At the hearing of these matters, Mr Ellison SC advanced a "template" of the provision that he submitted should be made for the Plaintiff, Lucie Hedman. Included in that template were what the Plaintiff, Ms Hedman, was prepared to, in effect, "give up". The submission did not make clear whether what was put forward (in relation to what Ms Hedman was prepared to "give up") should be included as a term or condition, of any order made in favour of Ms Hedman in lieu of the provision made for her in the Will of the deceased, or whether she was prepared to "give up" those things only if she received the provision that was sought by her, as part of the template. Mr Ellison should clarify the Plaintiff's position. If the Defendant, or the Plaintiff, Ms Egan, submits that what was prepared to be given up should be a term or condition of any provision being made in favour of the Plaintiff, Ms Hedman, in lieu of the provision in the Will, this should be stated by each. Please provide a response, in writing, as soon as possible, and in any event, by 4:00 p.m. on Wednesday, 11 December 2013. (This e-mail has been sent because of the difficulty in organising a time when all senior Counsel would be available to deal with the matter in Court.)" 198By letter dated 9 December 2013, the original of which is Ex. LH3, a copy of which was sent to senior counsel for each of the other parties, Mr Ellison SC relevantly responded: "The template about which I made oral submissions dealt with the Plaintiff, Hedman disclaiming her interest under the relevant trust and resigning from her employment with Kordus Pty Ltd. Included in the template was the receipt by her of her outstanding rent from her half share of Carrum Downs, outstanding employment benefits and accrued entitlements under the trust. It is correct that as part of the oral submissions on behalf of Hedman it was stated that if she was to receive the legacy sought and the deceased's half share of Carrum Downs, she would be prepared to disclaim her interest in the trust and resign her employment. That remains the case. If the provision sought is ordered, then it is appropriate that the receipt of that provision (which would be by way of cash transfer for the legacy and real property transfer for the realty) should be conditional upon (simultaneous) disclaimer and resignation as indicated. If the Plaintiff, Hedman does not receive the provision sought in the submissions, then it is not the case that whatever provision might be made, the disclaimer and resignation is still to take place. The Plaintiff, Hedman accepts that in the context of such provision which might be made, and subject to the nature and extent of that provision, the Court could order that the receipt of that provision be made conditional upon any other matter. It is open to the Court to determine that "any other matter" includes disclaimer and resignation or one or the other or neither. In summary, the template as proposed does include a term or condition that there be disclaimer and resignation. However, should the template be varied, the disclaimer and resignation are not accepted by the Plaintiff as part of it but it is open to the Court to modify the provision and make it subject to any term or condition as the Court thinks fit in the circumstances." 199It seems that Mr Ellison SC was referring to s 65(1) of the Act to which I have earlier referred. 200Senior counsel for the Defendant, in an email dated 10 December 2013, a copy of which is Ex.D3 responded: "The defendant has been, and remains, disinterested in the outcome of the two applications before the Court and is committed to providing the Court with whatever assistance is necessary to arrive at a proper decision. With this in mind the following suggestions are put forward. Were the plaintiff Hedman to receive the payment of a lump sum of money and, or, an absolute interest in property in lieu of her entitlements under the Will, it would be open to the Court to make those orders on, and subject to, the condition that she terminates her employment with Kordus Pty Ltd on a specified date ( with her entitlements to holiday pay, long service leave etc. being unaffected ); relinquish and disclaim her entitlements to future distributions under the R M R Discretionary Trust; and transfer her title and interest in the one ordinary share in her name in the capital of Kordus Pty Ltd; or any one or more of such. As I understand the position, these are the only species of property or entitlements that she presently enjoys extra the estate. In addition to the above, the court may also impose a condition that she resign (sic) as a director, and the secretary, of each of Kordus Pty Ltd, Russrobin Pty Ltd and Russan Pty Ltd. Assuming the plaintiff Robinson's (Ms Egan) entitlement under the Will is not varied by an Order of the Court so her entailment to the residue will only be paid to her upon her attaining the age of 30 years, or if part of that entitlement is ordered to be "released" to her immediately but leaving part to vest in possession when she turns 30, an argument might be advanced that a further condition should be imposed on the plaintiff Hedmann the she resign from any further administration of the estate insofar as it involves the management of the trusts held for the plaintiff Robinson, given the differences between them." 201Senior counsel for Georgia, in an email dated 11 December 2013, a copy of which is Ex.GE2 responded: "This email is sent in response to your email dated 4 December 2013 and in response to the letter from Mr Ellison SC dated 9 December 2013 and the email from Mr Willmott SC dated 10 December 2013. The position of the plaintiff Ms Egan is that any provision ordered by the court in favour of Ms Hedman ought be on the condition that she disclaim any interest in the trust and resign from her position with Kordus Pty Ltd and the other offices which she presently occupies , the precise details of which are set out in Mr Willmott SC's email." 202In reply, Mr Ellison SC responded: "Willmott's point 1 and 2 are not, I believe, inconsistent with my letter of 9 December. Point 3 was not the subject of any detailed argument and may well be beyond the court's (unilateral) power in family provision proceedings. Of course, the court has wide powers under ss.65 and 66 but I'm unsure whether a form of revocation of the grant is within the powers detailed in the Act. Willmott SC states 'an argument might be advanced". I do not think any party advanced the argument." 203The basis of Georgia's claim is that she would like to have her interest in the provision made for her paid to her now, rather than wait until she is 30 years of age for the bulk of that provision to be made for her. She gave evidence that she knew that the deceased did not wish her to receive everything at once, but she "asks that the timing of my inheritance be changed and that I be given greater control over my future". 204In her senior counsel's written submissions, it was accepted that "plans for the future are that she wants to learn every aspect of the deceased's child care businesses and run them as soon as she is able to. She wishes to train under Sandra Fynmore". In addition, that she "wishes to be in a position to buy a home in Sydney at the present time and not have to wait until she is 25 years of age when, pursuant to Clause 16 of his Will, the trustees of the deceased's estate may purchase in their name a house, home unit or town house for Georgia for her occupation". 205He submitted: "17. As this is a large estate a court would take a more expansive view of Georgia's needs. She has an immediate need for capital which could be available by way of the receipt of actual distributions from the child care centre trusts to assist her in the purchase of an appropriate home in the Sydney market. She also has a need for income to service any mortgage she may need to take out to fund the purchase of such a suitable property. Her present source of income totaling $650 per week is not adequate given the size of the estate and her immediate need to purchase a property in the booming Sydney real estate market. To deny Georgia any entitlement to receive capital from the estate or income generated by the child care centre unit trusts would have the result that her standard of living would be lower than that to which she is entitled having regard to the size of the estate. 18. The circumstances pertaining at the time the deceased made his will and the considerations which caused him to postpone the vesting of Georgia's interest until she turned 30 have largely disappeared and this is a reason for advancing the vesting of her interests to the present time. Georgia has gained in maturity, stability and has demonstrated a genuine desire not only to take over the running of the child care centres but to prepare properly for this by undertaking appropriate tertiary education. She has also indicated through her desire to learn under Sandra Fynmore that she is prepared to take the advice of others in preparing to assume the role of managing the child care centres. 19. In relation to the deceased's two thirds shareholding in Kordus Pty Ltd which owns and operates the Samantha Child Care Centres in Victoria, it is appropriate that Georgia's interest in these child care centres be advanced to the present time because the remaining one third interest in those child care centres is owned by her mother Elizabeth Egan with whom Georgia enjoys a close relationship. 20. To postpone the vesting of Georgia's interests in the residuary estate until she turns 30 will have the unfortunate consequence that it may well perpetuate a situation not envisaged by the deceased at the time he made his will. At the present time and since the deceased's death there has been an effective breakdown in the relationship between Georgia and Lucie Hedman. Part of the reason for this is no doubt the dispute over the home at Putney. There needs to be a clean break between Georgia and Lucie Hedman. Georgia's future prosperity and livelihood should not rest upon the exercise by Lucie Hedman of her powers and duties as trustee appointed under the deceased's will. 21. It would appear, without attributing any bad faith to him, that the exercise by Mr Fraser of his duties and obligations as trustee under the deceased's will, including the settlement of the Smits litigation and the claim by Melissa Lew has been to the detriment of Georgia. This would appear to be the case because these payments including the costs of administration have been funded in part by book distributions to Georgia in the accounts of the Victorian child care centre trusts in respect to which Georgia is liable to pay tax. She has had no say or input into any of these transactions and she has been placed at a significant disadvantage in relation to her liability to the Australian Taxation Office. 22. Georgia's future should not be left in the hands of the trustees where they have not demonstrated since the deceased's death that they have acted in her best interests. 23. There is no persuasive reason other than the terms of the deceased's will itself, not to advance the vesting of Georgia's interest in the residuary estate to the present time." 206Senior counsel for Georgia relied upon the proposition that "society says that people become adult when they turn 18 and should be entitled to their inheritance as a matter of fairness" at the first moment of legal capacity" (see Pryke v Perpetual Trustee Co Ltd (NSWSC, 16 December 1987, unreported), at p 8). Reliance was placed on what was said to be then "current view" expressed by Macready M (as his Honour then was) in Shcherbakova v Stapleton [2001] NSWSC 213 at [111]. 207Senior counsel relied upon Dziubinsky v Malcolm (NSWSC, 21 October 1991, unreported), in which his Honour wrote: "The 'need' of any person is not an absolute term. It must depend upon the person's upbringing, position in life and financial responsibility. In a large estate the need of a plaintiff may be placed at a much higher level than in an estate where there is little to be distributed. It may well be the position that a person who has a limited income has a greater need for capital which can produce a better income than a person who was already making a comfortable living. In addition to income need may be linked to having control over the means of producing that income, or at least having flexibility and how capital which produces income should be disposed of." 208Senior counsel did not refer to an earlier passage of Cohen J's reasons, in which his Honour expressly referred to the general propositions, quoted earlier in these reasons, that the Court, in an application for a family provision order, has no power to alter the deceased's Will merely because it is thought to produce unfairness, or because it could have been more conveniently expressed, or because the Court, in similar circumstances, would have made a different Will.

Further Additional Facts 209I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar, at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered. (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship 210In this case, Lucie is the widow of the deceased and Georgia is the child of the deceased. There is undoubtedly a "family" relationship between each and the deceased. 211There is evidence from several witnesses, none of whom was cross-examined, about the closeness of their relationship and the way in which the deceased regarded Lucie. For example, Graham John McMaster gives evidence of a conversation with the deceased in October 2010, in which the deceased said: "I love Lucie very deeply and I am most appreciative of her love for me and in particular the care that she has given to me for such a long time. I am concerned that I should have married her much earlier in our relationship. Marrying Lucie will be my final wish and my last achievement before I die." 212I have also read evidence from Elisabeth and Allen about her, and his, observations about the relationship of the deceased and Lucie. Neither was cross-examined. Whilst each may have observed some disharmony, it did not result in the deceased asking Lucie to leave his home. Nor did it prevent him marrying her at the end of his life. 213I am satisfied that the relationship between Lucie and the deceased was an exclusive one and that they were committed to each other throughout their relationship. I am also satisfied that, overall, their relationship was a close, loving and generally happy one. However, the duration of their relationship cannot be regarded as very long. As stated, it was for about 8.33 years. They entered the relationship after each had had several other marriages, or relationships, and at a time when, the significant part of the deceased's estate had been established by him. 214Georgia lived with the deceased for about 4 years before his death although clearly, before and after that time, they remained close. She was 17 years old at the date of the deceased's death. Prior to that time, she would spend at least every alternate weekend with the deceased. 215There were, naturally, some teenage problems, but I am satisfied that these were what might be regarded, for the most part, as normal. Even then, the deceased and Georgia had a close and loving 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 216There is no definition of the words "obligations" or "responsibilities" to which the sub-section refers in the Act. Importantly, the Act does not expressly refer to, or identify, any "moral duty". Yet, one might conclude that what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities. 217This factor requires a balancing of potentially competing obligations as between different applicants. 218Leaving aside any obligation, or responsibility, arising as a result of their relationship as spouses, the deceased did not have any legal, or financial, obligation to Lucie imposed upon him by statute or common law. They were not separated at the date of death and there were no court orders in force relating to the provision of maintenance. 219However, an obligation, or responsibility, to make adequate provision for her proper maintenance and advancement in life is recognised in the case of a spouse. 220Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to any of his children, as adults, imposed upon him by statute or common law. 221Yet, an obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child. In Flathaug v Weaver, at 737, the origin of the obligation which underpins the Act's recognition of the duty owed by a parent to a child was put in this way: "The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives." (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered 222I have dealt with the nature of the estate. The actual estate is reasonably large. There is no property that any party sought to have designated as notional estate. I have earlier also referred to the liabilities of the estate and the charges to which the estate is subject. (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 223A consideration of this matter calls for a comparison of the financial resources of the applicants and the beneficiaries. 224Because there was no submission that the family provision order made in favour of either Melissa or Nikita, or that the interests of the other beneficiaries named in the Will of the deceased, should bear the burden of any provision made for either Lucie or Georgia, it is not necessary to encumber these reasons by setting out the financial position of each of those persons. Ultimately, it is only necessary to consider the competing claims of Lucie and Georgia. 225Lucie sets out her assets and liabilities (and estimates value) as follows: Asset Value xx Rosedale Avenue, Fairlight $ 450,000 13,500 shares in NXS North Ryde Community Finance Limited $ 14,300 1,200 Telstra shares $ 6,140 Her interest in the Carrum Downs property $ 1,300,000 Bendigo Bank account: $ 341,000 NIB shares - 800 $ 2,000 Chattels (bed - clothes) $ 4,000 Jewellery $ 12,500 Superannuation - HESTA $ 368,000 Superannuation - Mit Liv $ 150,000 TOTAL $ 2,498,090

Liabilities Mortgage Bendigo Bank (50% liability): $ 812,500

226(The amount of her share of the mortgage debt may be about $831,000.) 227I have earlier referred to the amount of about $165,000 to which Lucie is entitled from the RMR Trust and the amount of $100,000 (subject to the payment of income tax) being rent received on Carrum Downs, to which she is entitled, that has not been paid. I estimate that these amounts, together, will be no less than $200,000, which amount should be added as an asset. 228If she resigns from her employment she has holiday pay, long service leave and sick pay, totalling about $10,000. 229I have earlier referred to an amount that she has paid on account of her costs, some, or all, of which she will be reimbursed upon the making of a costs order in her favour. 230Lucie gave evidence that, as at November 2013, her income is from Kordus ($1,941 net per week) and $255 net from renting the Fairlight property. In addition she receives her share of the rent from the Carrum Downs property (after the payment of the mortgage instalments), which is about $74,500 per annum. She did not disclose any income received from her from her other investments. 231She estimates her monthly expenditure, including an amount of $3,750 for her share of the mortgage debt repayment on the Carrum Downs property at $8,137. (The expenses include various outgoings ($318) on the Fairlight property, which expenses have, presumably, been taken into account in calculating the net income from that property.) The expenses also include $1,050 per month for holidays. 232Omitting the amount of $318 (Fairlight expenditure) and the amount representing the mortgage debt repayment, her monthly expenses are about $4,069. I shall take this to be about $50,000 per annum. 233Lucie states that she has been looking at 3 bedroom properties in the areas of Fairlight and Seaforth, in Sydney, as well as in the surrounding suburbs. The asking price of the properties she has seen, she says, varies between about $1.45 million and $2.0 million, or more. She identifies specific properties at which she has looked in these areas. Some of these were to be sold by auction. 234There is no evidence about the result of any auction and, therefore, the Court does not know the actual sale price of any of the properties inspected by her. 235Lucie's reason for picking these geographical areas is so that she will be close to her daughter, son-in-law and grandchildren. 236Georgia sets out her assets and liabilities as follows: Assets Motor vehicle $15,000 Bendigo Bank savings account $ 1,500 Bendigo Bank term deposit $ 1,800 Jewellery $ 2,500 Boat $ 1,500 Personal effects $ 2,000 $24,300

Liabilities Amounts owed to Liz Egan - various $10,000 Amounts owed to Liz Egan - legal costs $17,471 $27,471

237Her affidavit did not refer to the amount of $112,000, which Georgia received after its preparation. Nor does it refer to the amount of about $250,000 to which she is entitled in distributions from the RMR Discretionary Trust. 238Georgia is employed on a part time basis as a swimming instructor, working 13 to 16 hours per week, for which she is paid $250 per week. She receives an allowance of $400 per week from as a distribution from the RMR Discretionary Trust. 239Georgia estimates her expenses to be $640 per week. 240In the case of both Lucie and Georgia, I also consider that, pursuant to the provisions of the RMR Discretionary Trust, it is probable that each will continue to receive distributions. Accordingly, I consider the interest of each as a discretionary object to be a financial resource. (e) if the applicant is cohabiting with another person - the financial circumstances of the other person 241This sub-section permits account to be taken of the financial circumstances relating to the cohabitation. 242Lucie is not cohabiting with any other person. She currently lives in the Putney property alone. 243Georgia is cohabiting with Tim, a licensed plumber. He earns about $1,000 per week. His only assets are said to be a car ($2,500) and money on term deposit ($23,000). He does not have any significant debts. (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 244 Lucie describes her state of health as "generally good". She has high cholesterol, for which she takes medication. She also suffers a carpal tunnel injury of her right wrist. 245Georgia had no health problems until she was diagnosed with cervical cancer at the start of 2012. She needed minor surgery to remove cancerous cells. She did not need chemotherapy or radiotherapy but will require more regular checkups. (g) the age of the applicant when the application is being considered 246Lucie is currently 64 years of age. 247Georgia is currently 19 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 248The contribution made by an applicant to the estate of the deceased has long been regarded as a significant factor. In Goodman v Windeyer, Gibbs J wrote, at 497 - 498: "One of the circumstances that must be considered in deciding upon the deserts of a claimant to a testator's estate, and in determining whether proper maintenance has been provided, is the manner in which that claimant has conducted himself or herself in relation to the testator. If the claimant has contributed to building up the testator's estate, or has helped him in other ways, that may give the claimant a special claim on the testator's bounty. This was recognized by Dixon C.J. in Coates v National Trustees Executors & Agency Co. Ltd when he said that the natural claims of a son upon his mother's testamentary bounty were 'much strengthened by his cooperation and support in the conduct of her business and of her affairs'. Perhaps the most recent example in this Court of a case in which a son's claims have been strengthened for this reason is Hughes v National Trustees Executors & Agency Co. (Australasia) Ltd. There is, however, no reason in principle why a son should stand in a special position in this regard, and the authorities here consistently treated the fact that a claimant has rendered services to the testator as relevant in cases of this kind - whether the claimant be a daughter (Blore v Lang), a widow (E v E, discussed in In re Worms; Worms v Campbell) or a widower (In re McElroy). The claimant's conduct does not cease to be relevant if it has not been of financial benefit to the testator - if, for example, the labour has been in vain. If the claimant has made sacrifices on the testator's behalf, that is a circumstance to be considered even if no monetary saving or benefit for the testator resulted. Indeed, the very fact that a claimant has been a dutiful and devoted spouse or child is one of the relevant circumstances of the case to be considered together with all the other circumstances in deciding whether proper maintenance has been provided." (Footnotes omitted.) 249From the commencement of their relationship, Lucie performed some work for, and on behalf of, the deceased. However, initially, Kordus paid her $50,000 per annum. 250In January 2007, Lucie became more involved in the childcare business. She went down to Melbourne in February 2007 and commenced work as a director of Kordus. Kordus paid part of her rent whilst she was there as well as paying her a salary. She returned to Sydney in about August 2007 but went back until about June 2008. 251When she was not in Melbourne, Lucie also carried out what she described as "normal domestic duties", such as cooking, some cleaning, shopping, laundry, liaising with tradesmen at the Putney property, organizing medical appointments, assisting in the deceased's business interests and "social networking". (She would also perform some of the domestic duties when she returned to Sydney on weekends.) 252Helen Patricia Perrin, another witness who was not cross-examined, gives evidence of the care and support that Lucie provided to the deceased as his illnesses became more pronounced between 2008 and 2010. She says that Lucie "was there for him consistently and constantly and especially so in the palliative care phase of his illnesses". There is no reason to doubt this evidence. 253Georgia was about 8 years old when the relationship of Lucie and the deceased commenced. Lucie, as part of the domestic duties that she undertook, would cook, clean, shop and do laundry for Georgia. When Georgia moved into the Putney property full time, in about February 2006, the assistance provided by Lucie increased. 254During the years when Georgia lived with them, to which reference has been made, I accept that Lucie did what she could to assist the deceased to deal with the problems that he faced with a difficult teenage daughter. 255I accept Lucie's evidence that she would assist in looking after Georgia, to the extent that this was required. I also accept Lucie's evidence about the domestic tasks she undertook. 256Georgia admits that she did not do very much around the house whilst she lived in the Putney property. She says that this was because there was not much to do, the deceased having employed cleaners, gardeners and pool cleaners. However, this may simply be the view of a then teenager, who did not really observe all of the work of adults in a household. 257As Georgia grew older, the deceased included her in the business, not in any meaningful way, but to provide her with some understanding of the nature of the childcare business. 258Whilst Georgia did not make any contribution financially, or otherwise, to the acquisition, conservation and improvement of the businesses of the deceased, I am satisfied that, as the child with whom he had the closest relationship, she made a significant contribution to the welfare of the deceased. (Of course, there were periods when the relationship between parent and teenage child was strained.) (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 259Lucie gives evidence of receiving the following provision, and the estimates value thereof, from the deceased during his lifetime: Date Amount Description 2002-2010 $6,000 Health Insurance Gap between medical and dental expenses 2005 $3,500 Gold bracelet 2005 $4,000 Laser surgery to eyes 2006 Qantas Frequent Flyer points Return economy airfares to Finland 2006 $5,500 Shares in North Ryde Community Finance 2009 $300 Female's Gucci watch 2009 $5,000 Men's Cartier Tank watch 1 August 2010 $10,000 Engagement ring 15 December 2010 $2,500 Wedding ring 18 December 2010 $62,431 Repayment of mortgage secured over Fairlight property 18 December 2010 $5,137 Repayment of mortgage secured over Fairlight property 19 December 2010 $150,000 Repayment of mortgage secured over Fairlight property 20 December 2010 140,000 Qantas Frequent Flyer Points 25% of points transferred 20 December 2010 Returned money from Hawaii flights and $900 cash Refund for airfares to Hawaii. $8,000 received in February 2011

260I note that the Defendant says that Lucie also received a further payment of $50,000.00 in reduction of the loan secured over the Fairlight property, on 10 August 2010. 261Lucie acknowledges having received a distribution from Russrobin of $150,000 in August 2013. She also acknowledged receipt of the amount of about $112,000, being part of the death benefit paid by HESTA. 262Georgia says that she has not received any benefits from the estate of the deceased. She has, however, received distributions from the RMR Discretionary Trust. I have earlier referred to the amount of about $250,000 which is payable to her. 263I have also referred to the amount of $112,000, which she has recently received as part of the death benefit paid by HESTA. 264Finally, I should mention the income that Lucie received from Kordus, for some accounting duties, is said by Sandra to be far greater than the income which she should have received for the work that she performed. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person 265There is no specific evidence of the testamentary intentions of the deceased other than in his last Will to which I have referred. However, the choice of Lucie, Georgia and Elisabeth, as principal discretionary objects, does suggest that the deceased wished to provide for each. (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 266Lucie and Georgia was each being maintained, either directly or indirectly, by the deceased. I have referred to the actual distributions from the RMR Discretionary Trust and to the amount to which each is entitled (after deductions for payments made on behalf of each) since the date of death of the deceased. (l) whether any other person is liable to support the applicant 267There is, currently, no person with a liability to support Lucie. 268There is, currently, no person with a liability to support Georgia. (m) the character and conduct of the applicant before and after the date of the death of the deceased person 269An evaluation of "character and conduct" may be necessary, not for the sake of criticism, but to enable consideration of what is "adequate" and "proper" in all the circumstances. Importantly, the Act does not limit the consideration of "conduct" to conduct towards the deceased. However, good conduct is not to be rewarded by a generous, but second-hand, legacy at the hands of the court: Blore v Lang (1960) 104 CLR 125, at 134. 270I have dealt with the relationship of each of Lucie and Georgia and the deceased and the conduct of each towards the deceased earlier in these reasons. 271There is no suggestion that there is any adverse conduct that should be taken into account. (I do not consider that any isolated, or occasional, disputes between the deceased and either Lucie, or Georgia, had the effect of disrupting the generally close relationship that each had with him, or that such disputes had the effect of constituting conduct which would disentitle, or reduce, the benefit of any order to which she might otherwise be entitled.) 272The very fact that an applicant has been a dutiful and devoted spouse, or partner, or child, is one of the relevant circumstances of the case to be considered together with all the other circumstances in deciding whether proper maintenance has been provided: Hughes v National Trustees, Executors and Agency Company of Australasia Limited [1979] HCA 2; (1979) 143 CLR 134, at 497-498. (n) the conduct of any other person before and after the date of the death of the deceased person 273There is no other person whose conduct before or after the date of death of the deceased is relevant. (Had there been an issue regarding the entitlement of other beneficiaries to the provision made for her or him, I would have dealt with the conduct of Elisabeth, Sandra and Allen. I would also have referred to the conduct of Nikita and Melissa.) (o) any relevant Aboriginal or Torres Strait Islander customary law 274This is not relevant in the present case. (p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered 275There is no other matter that I consider relevant. (None of the parties relied upon any matter under this ground that was not otherwise considered under the other grounds.)

Determination 276Being an "eligible person" is a necessary precondition to the Court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. In this case, there is no dispute that Lucie, as the widow of the deceased, and Georgia, as a child of the deceased, is each an eligible person within the meaning of s 57(1)(a) and s 57(1)(c) of the Act. 277There is also no dispute that each commenced her proceedings within the time prescribed by the Act. 278Having established eligibility and that the proceedings were commenced within time, the first question for determination, respectively, is whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life, of Lucie, and adequate provision for the proper maintenance, education, or advancement in life, of Georgia, has not been made by the Will of the deceased. 279I find that Lucie's claim on the bounty of the deceased is a reasonably strong one. I say "reasonably strong", and not "very strong", because her claim cannot be as strong as that of a widow who has been married to, or in a relationship with, a testator for longer than 8 years, or one whose efforts have made a significant contribution to the building up of the assets of the estate. 280Here, Lucie's relationship with the deceased was about 8.33 years and a significant part of his estate had been built up prior to the commencement of their relationship. Even so, I accept that the fact of marriage carries a commitment, which must count. 281It is then necessary to consider the provision made for Lucie in the Will of the deceased. The effect of Clause 10 is to provide a right of occupation in the Putney property, or "any substituted residence [to which] ... she chooses to relocate within Australia" for a period of 20 years from the death of the deceased. The substituted residence purchased is to be "a dwelling appropriate for [Lucie's] personal circumstances". 282This means, of course, that Lucie can remain living in the Putney property if she wishes to, or should she choose a substituted residence, it will be necessary for the estate (which requires her and the Defendant) to purchase, on behalf of the estate, that substituted residence for her, in which residence she could then live for the remainder of the term of 20 years from the death of the deceased. 283Furthermore, there is a fund available, of $150,000 from which the Putney property or the substituted residence is to be maintained. In this regard, the income from the fund, and then the capital, is to be used for rates, taxes, insurance, and maintenance and repairs. 284It follows that this is not a case in which the provision made for a widow is a mere right of residence. To the contrary, the deceased appears to have considered "sickness, age, urgent supervening necessity or otherwise, with good reason", for Lucie to leave the Putney property. (He did not express it this way, but rather allowed her simply to choose a substituted residence.) 285The parties seemed to agree that in order to purchase such substituted residence, it would be necessary to sell the Putney property and repay the mortgage debt secured on it. Assuming a sale price of about $2,950,000, the payment of expenses of sale, of about $100,000, the net proceeds of sale would be about $2.85 million. From this the mortgage debt of $1,277 million would be deducted, leaving net proceeds of sale of $1,573,000. Assuming stamp duty of about $73,000 (just for ease of calculation) is payable on the purchase of a substituted residence, the amount remaining would be about $1.5 million. That amount is within the range of purchase prices asked for properties that Lucie has inspected. 286In addition, the adequacy of the provision made for Lucie must be considered in the context of all the circumstances, including the financial benefits conferred on her by the deceased during his lifetime, or otherwise arising out of their relationship. I have referred to the benefits she has received, or which she is entitled to receive, earlier. 287The inadequacy of the provision that has been made for her in the Will, so it is submitted, lies in the fact that the provision of accommodation is limited to 20 years from the death of the deceased. Wherever she lives, she will then have to move. At the age of 81 years, it was submitted that this would impose too large a burden on her and one that should not be imposed upon a widow. 288However, it should be remembered that if Lucie remains in the Putney property until then, it, or the substituted residence she has earlier chosen, will then be sold and one half of the proceeds of sale, is to be invested with the income paid to Lucie for her life. 289By way of example, using current values, and assuming $1.5 million were spent to purchase that substituted residence, the income would be calculated on an amount of about $750,000. Even calculated at the rate of 4 per cent per annum, this would provide a gross income of $30,000 per annum. Since she is entitled to the income for the remainder of her life, there may be nothing to prevent the use of the one half of the proceeds of sale of the Putney property, or of the substituted residence, for the purpose of providing another substituted residence, provided any purchase of such alternative accommodation is in the name of the estate. 290Thus, the deceased did not confine the provision made for Lucie to 20 years. He appears to have appreciated that the obligation to maintain her continued for the whole of her life. He moulded the provision to be made for her to take account of what might occur at a later time. 291Of course, if the amount of income then received was insufficient, presumably she would have her other assets available to her that could be also used either to provide capital or for additional income. By the age of 81 years, assuming she survives to that age, Lucie, in any event, may have a need for alternative accommodation. 292I have given Lucie's claim careful consideration. I have come to the view that the provision made for Lucie in the deceased's Will is not inadequate. However, the provision made for her is not "proper" in the circumstances, which include her relationship with Georgia, Sandra, Wendy, and to a lesser extent, the Defendant, and the inconveniences that would be caused by leaving such persons financially intertwined (save, perhaps, as lessors of the Carrum Downs property). 293Turning then to s 59(2), namely the question what provision "ought to be made for the maintenance, education or advancement in life" of Lucie, having regard to the facts known to the Court, the real area of concern is how to deal with her claim, whilst bearing in mind the competing claim of Georgia (to which I shall turn). Any order should be no more than is necessary to make provision for her proper maintenance and advancement in life. Furthermore, I must take into account the right of the deceased to dispose of his property as he did in his Will, as well as the position of the other chosen objects of the testamentary bounty of the deceased. 294The capacity of the widow, herself, to provide for her own needs must also be considered. In Re Crewe [1956] NZLR 315, at 323 (citing In re Allen; Allen v Manchester [1922] NZLR 218 at 222 per Salmond J), it was said: "It may probably be said with truth that the proper maintenance which a testator owes to his widow in cases where there are no claims of other dependants is such maintenance as will enable her, taken in conjunction with her own means, to live with comfort and without pecuniary anxiety in such state of life as she was accustomed to in her husband's lifetime, or would have been so accustomed to if her husband had then done his duty to her." 295I also remember that in Marinis v Jeweller [2000] NSWCA 282, the Court (comprising Mason P, Giles JA and Rolfe AJA), wrote, at [26]: "... We would reject the appellant's submission that adequate provision by a deceased person requires the deceased to ensure that an eligible person must be provided for to such a level as would ensure that his or her available assets are not reduced in consequence of the death and that the eligible person should not be obliged to re-arrange or re-organise his or her available assets." 296In reaching my conclusion on the propriety of the provision and on the quantum of provision to be made for Lucie, I bear in mind also what has been submitted, albeit in the context of the template advanced, in relation to her being prepared to disclaim any further interest in the RMR Discretionary Trust; that she is prepared to resign from the directorships of each of the companies in which the deceased held shares; and to resign from her employment with Kordus. (These are referred to in detail in Mr Willmott's supplementary submission.) 297It is upon certain conditions to which I shall shortly refer, that Lucie should receive, in lieu of the provision made for her in the Will of the deceased, other than the provision that she has already received out of the deceased's estate, a lump sum of $1,200,000. In addition, the Defendant should do what he can (with Lucie pending her resignation as a director) to ensure that she is also paid the amount of the unpaid distributions and unpaid rent to each of which she is entitled (which I have estimated to be no less than $200,000). 298The payments to which I have referred, in total, will result in her having available, absolutely, at least, $1.4 million. Taken with her own assets, she should have sufficient to purchase a substituted residence as she chooses. Even assuming that, with stamp duty, the cost of the substituted residence is $1.7 million, which requires a contribution from her own property of $300,000, she will have sufficient capital left otherwise, not only to provide for the exigencies of life, but also to provide a supplement to her income from the Carrum Downs property and the Fairlight property. Of course, she would own the property purchased absolutely. 299In addition, Lucie should receive the Citroen motor vehicle that is owned by Kordus Pty Limited and any of the furniture and whitegoods situated at the Putney property that she wishes to retain. 300Appropriate book entries disclosing the payment of the distribution out of the proceeds of sale of the Putney property, and the transfer of the car to Lucie, by Kordus should be made. 301I note Clause 18(f) of the deceased's Will which gives power to the executors "to allow Lucie ... and Elisabeth ... or either of them to be employed in the childcare centre business owned by Kordus Pty Limited on terms no less favourable than as at my death". In my view, this Clause does not mean that the executors are under any duty to employ either on terms no less favourable than as at the deceased's death. The deceased, by giving them power to do so, must have considered that they might not do so. 302In coming to the provision to be made for Lucie, I have borne in mind the duration of the whole of her relationship with the deceased, the provision made for her by the deceased during his lifetime, and the provision she has already received as a result of his death. In my view, that provision has been substantial. I have also considered her current financial circumstances (which, of course, she reached, at least partially, because of the provision to which I have referred). 303I have also borne in mind the value of the 20 year interest in the Putney property (albeit that the deceased died almost 3 years ago) and the fact that she will receive a capital sum absolutely. (I have also noted the Defendant's submission that the value of Lucie's interest in one half of the proceeds of sale for the balance of her life, following the termination of the 20 year interest is about $212,000.) 304The further advantage will be that Lucie's desire for an order that will result in, once and for all, for her being able to get on with her own life, without needing to have continued dealings with the estate (other than as the co-owner of the Carrum Downs property) is achieved. She will be able to live in any property that she purchases without having to move in 17 years, if that is what she wishes to do. 305As to the other claim for provision by devising the Carrum Downs property to her, I do not think that she should receive it. The income that Lucie receives from rent (of Carrum Downs and Fairlight), alone, seems to be more than is necessary to meet her current outgoings. She has not calculated, or included in that total income, the income from her other reasonably large investments. In addition, she also has a large amount of capital available to her. 306The effect of the provision for a lump sum, which Lucie will receive absolutely, will be to sever the financial interdependence of Lucie with the Defendant and others. To so do, I will place some conditions upon the receipt of the lump sum payment. If the conditions are complied with, it will also mean that the balance of the estate, after the payments to which reference has been made, will be held, principally, for the benefit of Georgia and her mother. It may be that Georgia could be appointed as substituted trustee to administer the deceased's estate. 307Upon condition that Lucie: (i) resigns from, or otherwise agrees to terminate, her employment with Kordus Pty Ltd, on a specified date to be agreed, or if not agreed as further ordered by the Court, (with her entitlements to holiday pay, long service leave etc. being paid to her simultaneously with her resignation or termination); (ii) by that date, relinquishes and disclaims her entitlements to future distributions under the R M R Discretionary Trust; (iii) by that date, transfers her right, title and interest in the one ordinary share in her name in the capital of Kordus Pty Ltd to the estate; (iv) by that date, resigns as a director, and the secretary, of each of Kordus Pty Ltd, Russrobin Pty Ltd and Russan Pty Ltd; (v) by that date, or such other date as the parties agree, or if not agreed, is ordered by the Court, retires as a trustee of the estate of the deceased, Lucie should receive a lump sum of $1.2 million in lieu of the provision made for her in the Will of the deceased. She should also be paid the amount due to her as unpaid rent, any distributions from the RMR Trust to which she is entitled and her holiday pay and any other employment benefits to which she is entitled as an employee of Kordus. 308In working out these conditions, I have borne in mind Lucie's desire to finalise, once and for all, her relationship with the estate and others associated with the estate. I have also considered Mr Ellison's point that no submissions were made on whether she should retire as a trustee of the deceased's estate. However, it seems to me that to allow her to continue as a trustee might simply result in further disputes between her and others in relation to the further administration of the estate.) 309In the case of Georgia, as stated, she does not seek greater provision but wishes to reduce the period before which she gains control of the provision that has been made for her. In other words, she seeks to have the Court remove the contingency of her reaching the age of 30 years in relation to residue, and 25 years (in relation to the purchase of a home) and to make an order that she receive the capital now, or, in the alternative, at the age of 21 years. 310I am satisfied that the provision made for her by the Will is adequate and proper. It seems to me that what is being sought by Georgia is simply a provision, or an outcome, which is thought to be more convenient for Georgia and one that she would prefer. 311In my view, there is no ground for the Court to alter the nature of the provision, or when capital out of the estate is received, merely because it would be preferable for Georgia not to have to wait until she is 30 years of age. That was the age chosen by the deceased as the date on which she was to have control of the residue of the estate. The Court is in no better position to determine that the age of 19, 21, or another age less than 30, years, would be preferable for her to take control of the assets. 312In relation to Georgia's desire to have accommodation purchased for her in the next few years, rather than at the age of 25, I note that, in any event, the Will enables this to be done if the Trustees are able to do so. I have earlier referred to Clause 18(b) of the deceased's Will. 313Otherwise, Georgia is entitled to receive her education expenses and is likely to continue to receive distributions from the RMR Discretionary Trust. (It was accepted that she receives $400 per week from distributions that is used for rent.) 314In addition, if the Putney property is sold and the mortgage debt is repaid, no longer will there be a need for mortgage repayments to be made, so that will further lessen the liabilities of the deceased which are being borne by the estate. 315There is no reason why Georgia, if she wishes to, could not purchase alternative accommodation using the amount that she has received by way of death benefits from HESTA ($112,000) and to which she is entitled from the RMR Discretionary Trust (about $250,000), or some part of it, as a deposit on a home. She stated that she did not wish to purchase a home immediately. 316The balance of the proceeds of sale of the Putney property, if any, may enable the amount to which she is entitled by way of distributions, or at least some of it, to be paid to her now. Appropriate book entries disclosing the payment of the distribution out of the proceeds of sale of the Putney property by Kordus, should be made. 317My conclusion is strengthened if Lucie is no longer a beneficiary and/or a discretionary object of the RMR Discretionary Trust. Then, for example, the only principal discretionary objects will be Georgia and her mother, Elisabeth. Presumably, then, even larger distributions to each will be able to be made out of the Trust. 318If Lucie does abide the conditions imposed, then, perhaps, Georgia could be appointed a trustee with the Defendant, and also as a director of each of the companies, in Lucie's place. In this way, Georgia could be involved, not only in the administration of the deceased's estate, with the Defendant, but also in the administration of the RMR Trust and the other childcare businesses. She would be able to learn more about the companies and the Trust in this way. Furthermore, the directors of Kordus could consider whether Georgia could be employed whilst she learns about the conduct of the childcare businesses, whilst at the same time earning a supplementary income. That, of course, will be the decision of Kordus. 319In my view, the Will of the deceased makes adequate and proper provision for Georgia. It follows that Georgia's Summons should be dismissed. 320I stand over the proceedings to a convenient date to the parties and to the Court for the making of orders in each matter. Unless any party wishes to argue to the contrary, I am of the view, presently, that Lucie's costs, and, even though her claim is to be dismissed, Georgia's costs, each calculated on the ordinary basis, and the costs of the Defendant in each matter, calculated on the indemnity basis, should be paid out of the estate of the deceased.

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