Hinderry v Hinderry - [2016] NSWSC 780 - NSWSC 2016 case summary — Zoe

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Hinderry v Hinderry

[2016] NSWSC 780

Supreme Court of NSW|2016-05-25|Before: Hallen J, Santow J, Hodgson J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2016-05-25

Before

Hallen J, Santow J, Hodgson J

Catchwords

(2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54
(1962) 107 CLR 9 R v Turner [1975] QB 834 R (on the application of M) v Slough Borough Council [2008] UKHL 52
William Wardy v Gordon Salier
Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 Singer v Berghouse [1994] HCA 40

Source

Original judgment source is linked above.

Catchwords

(2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54(1962) 107 CLR 9 R v Turner [1975] QB 834 R (on the application of M) v Slough Borough Council [2008] UKHL 52William Wardy v Gordon SalierHassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 Singer v Berghouse [1994] HCA 40(1994) 181 CLR 201 Slack v RoganPalffy v Rogan [2013] NSWSC 522(2013) 85 NSWLR 253 Smith v Johnson [2015] NSWCA 297 Stern v Sekers

Judgment (21 paragraphs)

[1]

In Re the Will of F B Gilbert deceased (1946) 46 SR NSW 318 Kay v Archbold [2008] NSWSC 254 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 Liu v The Age Company Limited [2016] NSWCA 115 MacGregor v MacGregor [2003] WASC 169 Magjarraj v Asteron Life Ltd [2009] NSWSC 1433 Magjarraj v Asteron Life Ltd [2010] NSWCA 207 Manuel v Lane [2013] NSWCA 61 Marks v Marks [2003] WASCA 297 Matthews v Wear [2011] NSWSC 1145 Mayfield v Lloyd-Williams [2004] NSWSC 419 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 McLean v Public Trustee [2001] NSWSC 970 Michael Bienke v Brian Bienke; Estate of the late Harold Bienke [2002] NSWSC 804 Palagiano v Mankarios [2011] NSWSC 61 Pang v Fong [2014] NSWSC 1425 Phillips v James [2014] NSWCA 4 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 R v Turner [1975] QB 834 R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 Rappard v Williams [2013] NSWSC 1279 Re Buckland, Deceased [1966] VR 404 Re Smith (Deceased) (1991) 8 FRNZ 459 Russell Caldar v Public Trustee of NSW (Supreme Court, 27 October 2004, Master McLaughlin, unrep) Salmon v Osmond [2015] NSWCA 42 Sammut v Kleemann [2012] NSWSC 1030 Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253 Smith v Johnson [2015] NSWCA 297 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Szypica v O'Beirne [2013] NSWSC 297 Taylor v Farrugia [2009] NSWSC 801 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) West v France [2010] NSWSC 845 Wheatley v Wheatley [2006] NSWCA 262 Wilcox v Wilcox [2012] NSWSC 1138 Williams v Aucutt [2000] 2 NZLR 479 Texts Cited: Rosalind Atherton, "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5 Australian Journal of Legal History 5 Katheryn Katz, "Elder Abuse" (1980) 18 Journal of Family Law Category: Principal judgment Parties: Michael George Hinderry (Plaintiff) Tony Hinderry (first Defendant) Charlie Semaan (second Defendant) Simon Semaan (third Defendant) Representation: Counsel: Mr L Ellison SC (Plaintiff) Mr J Brown (Plaintiff) (3rd day) Mr M Meek SC (first Defendant) Mr G Barter (second and third Defendants)

[4]

Dramatis Personae

Without intending to convey undue familiarity, with no disrespect intended, and for convenience and clarity, I shall refer, hereafter, to the parties and other family members, after introduction, by his, or her, given name.
Michael is the adopted son of the deceased and her husband, Wahib Hinderry, who predeceased her, having died on 28 June 2012, aged 89 years. They had no biological children together.
The first Defendant, Anthony Hinderry, who was called "Tony" in the proceedings, is a biological nephew of the deceased. His father was John Hinderry, the brother of Wahib. He died in about 2004. His mother is Wadad Hinderry. She is still alive and is in her mid 80s.
Tony, who was born in April 1969, has 4 siblings, being Mary Elias, who was born in July 1959; Joseph Hinderry, who was born in September 1965; Bernadette Andari, who was born in September 1965; and Rita Awad, who was born in May 1967.
Of his siblings, only Joseph filed an affidavit that was read in the proceedings. He was not cross-examined.
Mr Akele Elias is Mary's husband. He swore one affidavit that was read in the proceeding. He was not cross-examined.
The second Defendant, Charbel Semaan, who was called "Charlie" in the proceeding, is also a biological nephew of the deceased and the son of the third Defendant, Semaan Bakhos Semaan, who was called "Simon" in the proceeding. Simon is the brother of the deceased. Neither was cross-examined.
Mr James Kelly is a solicitor. Pursuant to an order made by Lindsay J on 13 October 2014, he was appointed as the interim administrator of the deceased's estate. He swore an affidavit that was read in the proceeding. He was not cross-examined.
Ms Lily Arthur is the Co-ordinator at Origins Supporting People Separated by Adoption Incorporated. She swore one affidavit read in the proceeding. She was not cross-examined.
Dr C J McCosker is a qualified general practitioner who came to treat the deceased in March 2012. He swore an affidavit that was read in the proceeding. He was not cross-examined.
Mr Neil Hayman was a friend of the deceased. He swore an affidavit that was read in the proceeding. He was not cross-examined.
Mr Matteo Russoniello is the solicitor currently acting for Tony. However, as will be read, in 2003, in respect of a criminal matter that was heard in the Local Court at Wollongong, he acted for Michael. He swore a number of affidavits. I shall refer to his evidence later in these reasons, as he was cross-examined.
The solicitors for the Plaintiff are Kazi Portolesi. Mr Bassam Kazi is the solicitor with the conduct of the matter for Michael. He has sworn a number of affidavits going to the Plaintiff's costs in these, and other, proceedings to which I shall refer.
Mr David Rod is the principal of the firm of solicitors acting for Simon and Charlie in the proceedings. He swore an affidavit of costs to which I shall refer.

[5]

The Claims involving the Estate

Michael commenced this proceeding by Summons filed on 13 August 2014, initially naming no Defendant, as, at that time, there was an associated contested Probate proceeding to determine which was the last valid Will of the deceased (to which I shall refer as "the Probate proceeding").
In the Probate proceeding, the Plaintiff was Tony, the first Defendant was Michael, and the second and third Defendants were Charlie and Simon. The principal protagonists, however, in the Probate proceeding, were Tony and Michael. Tony propounded, in the alternative, two Wills made by the deceased. The last in time was a Will dated 9 August 2011 ("the 2011 Will"). The first in time was a Will dated 26 October 2004 ("the 2004 Will"). Michael disputed the validity of both Wills, and, in a Cross-Claim asserted that the deceased had died intestate and that administration of her estate should be granted to him.
The Probate proceeding was resolved without a contested hearing in September 2015, when, following a consideration of those parts of the contents of the Court file to which reference was made, and a form of order was provided and consented to by all of the parties, I made the following orders: "a. Subject to compliance with the Rules of Court, Probate in solemn form of the Will made on 9 August 2011 of the deceased, Samera Hinderry, be granted to the Plaintiff and to the second and third Defendants, the executors named in Clause 3 of the Will. b. The matter be referred to the Senior Deputy Registrar in Probate to complete the grant. c. The Statement of Claim and the Cross-Claim otherwise be dismissed. d. The costs of the proceedings of each of the parties, calculated on the indemnity basis, be paid out of the estate of the deceased."
Regrettably, for reasons that are unnecessary to repeat as there was some dispute about them, the Probate document had not been issued by the Court because requisitions, raised by the Probate Registry, had not been completely satisfied. Tony attributed the blame for the failure to answer some, or all, of the requisitions to Charlie and Simon, and they denied any fault.
On the second day of the hearing, the Court was informed that the executors' affidavit had been signed by each of Charlie and Simon and a copy of it was provided to Tony's legal representative. On the third day of the hearing, the Court was informed that certain amendments would be required to the executors' affidavit, but it was anticipated that it would be sworn and filed in the Probate Registry, without undue delay. When filed, the Probate requisitions may be satisfied, with the result that the Probate document will be able to be issued.
In the written Submissions dated 11 May 2016, relied on by Charlie and Simon, their counsel wrote that "[t]he Second and Third Defendants express concern as to whether the [2011 Will and the 2004 Will] respectively are valid". This statement is surprising bearing in mind the resolution of the Probate proceeding to which all parties had agreed. Senior counsel for Tony submits that it provides an example of the ambivalent role Charlie and Simon have played in the family provision proceeding. Bearing in mind that they are executors of the 2011 Will with Tony, another example is the written submission that "[t]he Second and Third Defendants are prepared to abide any decision of the court save as to costs."

[6]

The Hearing

It is necessary, next, to explain what occurred at the hearing of Michael's claim for a family provision order.
The hearing was listed in the Family Provision Running List commencing on 18 May 2016, with an estimated duration of 2 days. The matter did not finish within that time and it was re-listed, for submissions, on Wednesday, 25 May 2016.
The flow of the hearing of Michael's claim was punctuated, firstly, by an application for a permanent stay of the proceedings, which application was made by senior counsel for Tony immediately after Michael gave the following evidence during his cross-examination (at T35.35 - T36.03): "Q. In your mind, why are we here today? A. Why we are here today? Q. Yes. A. Because I feel my family has got a bad example to lead by with the younger nephews and nieces and all that agreeing to someone signing the elderly's signature when they're sick. I don't like that example in my family. I want it dealt with please. Q. That's why we're here today? A. That's why we're here today. It's causing a lot of arguments. Q. To be clear about that, you wish to use these proceedings as a reason to dispute your mother's Will? A. Yes, that's right. Q. You wish to use these proceedings as a reason to dispute your father's Will? A. Yes, that's right. MEEK: I ask that the proceedings be permanently stayed as an abuse of process."
Michael had also given evidence that he "believe[d] [the deceased] wanted me to have the entire estate and was coerced by my cousin, put under pressure. I believe that because of witnessing my father's Will in 2011 after he passed away and noticing his signature to be very much different to what I recognised as his signature. So being my Mum's Will is the same as my father's Will and her mood and her tantrums, if you might want to say, led me to believe like, she didn't agree to what was said in the Will. So I find that inadequate for me to accept it."
Senior counsel for Tony relied upon s 67 of the Civil Procedure Act 2005 (NSW) which, relevantly, provides that, subject to rules of Court, the Court may, at any time, by order, stay any proceedings before it, either permanently or until a specified day.
Senior counsel submitted that the answers given by the Plaintiff, in circumstances where the Probate proceedings had been determined and orders had been made resolving the issue of the validity of the 2011 Will; that to raise the spectre of the validity of his father's Will, Probate of which had been granted and had not been the subject of any application to have Probate revoked; and to deal with the conduct of members of his family in relation to "someone signing the elderly's signature when they're sick", amply demonstrated that Michael was using the Court's process (seeking a family provision order) for ulterior and illegitimate motives.
Needless to say, senior counsel for Michael opposed the oral application for the permanent stay of the proceeding. He made an application to adjourn the proceeding until the following morning to enable the appointment of a tutor for the Plaintiff. He submitted that Michael's answers demonstrated that Michael had failed to appreciate the nature of a family provision claim and for that reason was a person under a legal incapacity in the conduct of the legal proceedings: T40.41 - T40.43.
After hearing the application for the adjournment made on behalf of Michael, I refused it, principally, because I was not satisfied that there was sufficient evidence, then, before the Court to demonstrate that Michael was a person under a legal incapacity. Indeed, the medical evidence which had been tendered in Michael's case earlier that morning (Ex. MGH 2), being a report of Psychiatrist, Dr Olav Nielssen, of 12 May 2016, suggested that Michael was not such a person. In that report, it was noted that Michael "had confirmed that he was contesting the Will of his late mother" and he had identified a number of clauses in the Will about which he was concerned.
In addition, there had been no suggestion, at any time, prior to, or during, the hearing, by his legal representatives, that Michael had been unable to provide instructions to them, or that he had not understood the advice that he had been given or advice in regard to settlement of the proceeding: Rappard v Williams [2013] NSWSC 1279.
(At no time, thereafter, has any application been made for the appointment of a tutor for Michael. Nor has it been suggested that, whatever the result of the proceeding, any application will be made for a financial manager to be appointed to manage Michael's affairs. However, it appears that Michael has sufficient insight to appreciate that he will require assistance in managing his inheritance.)
Finally, I was not persuaded that Michael's answers, as set out above, necessarily meant that, because of incapacity, he had failed to appreciate the nature of a family provision claim. I pointed out that the answers which indicated that he wished to agitate other issues may be a relevant consideration under s 60(2)(p) of the Act (to which I shall refer later) and also on the question of the costs of the proceedings.
Then, in answer to the application for a permanent stay, senior counsel submitted that Michael had a statutory right to seek a family provision order under the Act as an eligible person; that he had made his application within time, and that the Court was obliged to determine it. He submitted that there was nothing wrong with having other motives in bringing such an application and that the answers relied upon did not mean that he was not seeking greater provision out of the estate of the deceased.
On the application for a permanent stay, counsel for Charlie and Simon submitted that the answers Michael had given were "not inconsistent with the primary purpose of him ventilating his grievance that he has been inadequately provided for". He submitted that the answers revealed Michael's view of the reasons why the deceased had made the provision in the Will, asserting his belief that members of his family had convinced her to do so.
After hearing the submissions of the parties, I refused the oral application for a permanent stay made on behalf of Tony. I indicated that there were a number of other reasons for doing so, the first being that it would stultify the administration of the estate and prevent distribution of property to the beneficiaries; the second was that it had not been submitted that Michael's evidence was irrelevant to the determination of this proceeding, or that the Court could not take them into account in determining the adequacy, or otherwise, of the provision made for him in the 2011 Will or on the question of costs; and the third was that a very large amount in costs had already been incurred in the proceedings, the burden of which would not be determined if Michael's claim for a family provision order was not finally dealt with.
In stating these matters, I had in mind the principle that unless the interests of justice demand it, a Court should exercise, rather than refrain from exercising, its jurisdiction, and that a permanent stay should be ordered only in an extreme case. I also considered the Civil Procedure Act and the overriding purpose enshrined in s 56, to facilitate the just, quick and cheap resolution of the real issues in the proceedings and the Court's duty to give effect to the overriding purpose when it exercised any power given to it by the Civil Procedure Act, the objects of case management (s 57); the requirement for the Court to follow the dictates of justice (s 58); the stated object for the practice and procedure of the Court in any proceeding to be the elimination of delay (s 59); and the object of the practice and procedure of the Court in any proceeding to be implemented "in such a way that the cost to the parties is proportionate to the importance and complexity of the subject matter in dispute".
(I note, since the hearing, although in a different context, Beazley P, in Liu v The Age Company Limited [2016] NSWCA 115 at [12], has expressed the view that although "it is unnecessary to determine whether the statutory principles stated in the Civil Procedure Act 2005 (NSW), s 56 as to the just, quick and cheap resolution of the real issues in proceedings apply to an application for a stay …I consider that the better view is that they do". In that case, McColl JA noted, at [159] that: "Section 67 of the CPA confers a more general power on the court "to stay any proceedings before it, either permanently or until a specified day". It is found in Part 6 of the CPA, which deals with "Case management and interlocutory matters". The provision "does not identify any particular criteria as relevant to the exercise of the power but, at least in the Supreme Court … may be understood to cover a variety of circumstances in which the Court's inherent jurisdiction to prevent abuse of its process may be invoked: State of New South Wales v Plaintiff A [2012] NSWCA 248 (at [15]) per Basten JA (Beazley and Hoeben JJA agreeing).")
The matter then continued with Michael being cross-examined until shortly before 4:00 p.m., when I adjourned the proceedings until the next day.
On the second day of the hearing, Michael did not appear in Court. I was informed, from the bar table, without objection, by his senior counsel, that he had arrived in the precincts of the Court but that he had then left. It was not known, then, whether he would return and, if so, when.
No explanation for his conduct was offered and no application was made, on his behalf, to adjourn the proceedings. It was not suggested that his legal representatives were without instructions.
With the consent of all parties, and in order to avoid delay in concluding the hearing, the case proceeded without Michael being present and with the other witnesses to be cross-examined being interposed.
The cross-examination of Mr Kazi, Michael's solicitor, by senior counsel for Tony commenced, but it did not continue when the parties were able to agree that the estimate of the costs given by him (and, for that matter, by each of the other solicitors) in respect of the Probate proceeding and in respect of the family provision proceeding would be treated as an estimate only, and that the use of the estimate, for the purpose of determining the available distributable estate, would not prevent any party requiring the formal assessment of those costs after the case was concluded.
Tony was then cross-examined.
At 2:00 p.m. on the second day, it was clear that Michael would not return to permit the cross-examination to continue. Senior counsel for Michael informed the Court that: "The plaintiff was in the precincts of the court at lunchtime and without waiving privilege I formed the opinion that he wasn't going to be here at 2 o'clock and he wasn't [here] at 2 o'clock and isn't here now."
Even then, there was no evidence called explaining Michael's failure to attend the hearing on the second day. Nor was there any rational cause, or credible, or any, explanation, offered by his senior counsel for Michael's absence. In particular, there was no evidence that he was then incapacitated by some medical condition, or illness, from attending. No application to cease to act was made by Michael's legal representatives.
Neither senior counsel for Tony, nor counsel for Charlie and Simon, submitted that the Court should dismiss Michael's claim, either pursuant to UCPR rule 29.7(4) (dismissal of proceedings where a plaintiff does not appear) or by reference to the inherent jurisdiction of the Court to control proceedings: Magjarraj v Asteron Life Ltd [2009] NSWSC 1433, per Barrett J (as his Honour then was). (An application for leave to appeal from his Honour's dismissal of the proceedings was dismissed with costs by the Court of Appeal: Magjarraj v Asteron Life Ltd [2010] NSWCA 207.)
Nor did either senior counsel for Tony, or counsel for Charlie and Simon, submit that the proceeding should be dismissed because Michael had, effectively, refused to permit himself to be cross-examined further by counsel for the Defendants, or that his affidavits should be treated as not read: Russell Caldar v Public Trustee of NSW (Supreme Court, 27 October 2004, Master McLaughlin, unrep).
In that case, Master McLaughlin dismissed an application for a family provision order after the plaintiff, Mr Caldar, refused, for no valid reason, to enter the witness box to be cross-examined on his affidavit by counsel for the defendant. The learned Master decided that Mr Caldar's affidavits had been read upon the assumption that he would be available to be cross-examined on them, and that once that assumption was incorrect, it was appropriate to review the correctness of having permitted the affidavits to be read. On the review, his Honour decided that, in the circumstances of the case before him, the affidavits should be treated as not having been read. Hence, the case failed for lack of evidence. (A holding summons was filed in the Court of Appeal on 4 November 2004, but the holding appeal lapsed.)
Very fairly, if I may say, senior counsel for Tony submitted that Michael's two affidavits had already been read, and the evidence in response had also been read; that many of the issues to be determined could be determined without further cross-examination of Michael; and that documents had been, and would be, tendered, which would enable the determination of many of the remaining issues.
It was not in dispute that to permit the matter to proceed would still leave it open to the Defendants to make such submissions as they considered necessary about the weight that should be accorded to the Plaintiff's evidence in light of his refusal, by non-attendance, to be further cross-examined: Cairns v Cairns [2006] NSWSC 364 at [17] (J C Campbell J).
In Fulton v Fulton [2014] NSWSC 619 at [111], I wrote: "…affidavit evidence, however good, which, for whatever reason, is not subject to cross-examination when cross-examination is required, will always be discounted, as appropriate, if the affidavit is used with leave without cross-examination. The degree to which it will be discounted may depend on various factors, including the circumstances that lead to cross-examination being dispensed with, the nature of the evidence and its centrality and degree of significance to the case. The degree of discount appropriate will be judged according to all the circumstances of the case: Re O'Neil, Deceased [1972] VicRp 35; [1972] VR 327, per Anderson J, at 333 - 334; Citibank Ltd v Liu; ABN Amro Bank Ltd v Liu [2002] NSWSC 886, per Hamilton J, at [5]."
Of course, UCPR rule 29.7(2) provides that if any party is absent, the Court may proceed with the trial generally, or so far as concerns any claim for relief in the proceedings.
I formed the view, also, that many of the fundamental facts about the family relationships and the financial and domestic circumstances of the deceased, and the financial resources of Michael, were not, or were not substantially, in dispute. Whilst there were some matters about the family traversed in the affidavits, they were not at the heart of the case and were not essential to the determination of the principal question which is whether, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of Michael has not been made by the Will of the deceased.
I also had the opportunity to hear Michael acknowledge that what he had set out in his affidavits in relation to a number of claims on the estate "was a wish list at the time": T27 - T28. (In this regard, I should note that Michael's claim for provision in his first affidavit included a claim for purchase of a two bedroom property in Newtown/Surry Hills area costing in the order of $800,000 to $1 million. In his supplementary affidavit the claim for provision escalates and includes a claim for a three to four bedroom house in Newtown, Woolloomooloo and Darlinghurst in the order of $1.5 to $2 million.)
During his submissions, senior counsel for Michael modified Michael's claim for a family provision order to "a modest legacy of cash out of that fund" for exigencies of life, by this stage it having been acknowledged by the Defendants that, subject to any costs order, he was entitled to the two units devised to him, on conditions, in the deceased's Will, absolutely: T141 - T142.)
In the circumstances, without objection, the matter continued with submissions being made by senior counsel for Michael. He concluded his submissions and then the matter was adjourned until 25 May 2016 to enable the remaining submissions by other counsel to be made.
On the third day of the hearing, without any advance notice having been given to the other parties until shortly before the hearing recommenced, Michael appeared in Court. Mr J Brown, counsel who then appeared for him, stated (at T155.27 - T155.29): "I can indicate that the plaintiff is in Court and he is available for cross‑examination. I understand that my case is closed but the application is that if anyone wants him for cross‑examination, he is available."
I took this statement to mean that an oral application was being made to re-open the case so that Michael could be further cross-examined.
The Defendants did not oppose that course. Senior counsel for Tony confirmed that he would only be a further few minutes cross-examining, and counsel for Charlie and Simon said that he did not propose to cross-examine at all, but he had no submissions to make on whether leave to re-open should be granted. In the circumstances, I granted the application to re-open Michael's case so that he could be cross-examined further.
Michael was then called. His counsel made no attempt to have Michael give evidence about the reasons for his failure to return to Court on the second day of the hearing.
Michael was cross-examined again by senior counsel for Tony.
After senior counsel for Tony had finished cross-examining Michael, counsel for the second and third Defendants sought to cross-examine. His first question, which related to the reasons for Michael's failure to return to Court on the second day of the hearing, was objected to by senior counsel for Tony, and the question was rejected: T161.30 - T162.21. Counsel did not seek to ask any further questions.

[7]

Some Background Facts

It is helpful, at this point, to provide some further facts, which, to the extent that they are controversial, should be regarded as the findings of the Court.
The deceased was born in 1939 and died on 1 September 2013. She arrived in Australia, from Lebanon, in about 1958. She and Wahib married, in Lebanon, on a date not precisely disclosed in the evidence but inferred to have been in about 1958 (since they had been married for 54 years at the date of his death in 2012).
Samera spoke, and could read and write, English. Tony described her as extremely capable, intelligent, generous, and a kind and loving person. He also said that "she was always a very strong and assertive woman who spoke her mind".
(Some of Tony's evidence on this topic is corroborated by Dr McCosker who treated the deceased between May and December 2012. He stated that in his dealings with the deceased "I was never concerned that she lacked the ability to reason or understand or make informed decisions".)
Michael was born in November 1970. (It can be seen therefore, that, of his cousins, he was closest in age to Tony.)
The deceased and Wahib adopted Michael by Adoption Order, made by this Court, in September 1971.
Michael acknowledged that his father's, and his uncle's, families were extremely close. His father and his uncle, John, had operated a business together called "JW Hinderry", which business involved door to door sales and sale of clothing and manchester. Each possessed a hawker's licence.
The block of 9 units in Miller Street, Coniston, had been built by Wahib and the deceased, and by John and Wahad, together, in the late 1960s or early 1970s. From Michael's childhood, the families lived next door to one another (respectively at Unit 4 Miller Street and Unit 1 Miller Street). The deceased and Wahib owned 4 units, John and Wahad owned 4 units, and they owned one unit in equal shares, in the block.
In about 1977, they built the units at Gladstone Avenue, and again, both families moved to that unit block, living next door to each other, with Michael and his parents living in Unit 2 and his uncle's family living in Unit 1. Again, each owned the unit in which they lived.
Aside from any commercial relationship, the families were extremely close. They shared meals with each other, went out on picnics together, visited relatives together, went to parties together and celebrated special functions together.
In relation to the relationship with Tony, both the deceased and Wahib appointed him as her, and his, Attorney, respectively, under a Power of Attorney, in August 2004. I am satisfied that the deceased trusted Tony and looked to him to provide her with advice and guidance, particularly as Michael was unable to do so. (I shall refer to my findings on the relationship of Michael and Tony later in these reasons.)
Pursuant to the terms of the 2011 Will, the deceased specifically devised certain identified real estate (all of which is in the Wollongong area), as follows: 1. One home unit (No. 2) at Miller Street to Joseph (Clause 4); 2. Two home units (No. 5 and 9) and a one half share of another unit (No. 8) at Miller Street to Tony (Clauses 5, 6 and 7); and 3. The other half share of one unit (No. 8) at Miller Street to Mary (Clause 7).
The deceased also made provision for the Plaintiff in the following terms: "8. MY EXECUTORS shall hold the property known as [Unit 6] Miller Street, Coniston on trust for my son MICHAEL GEORGE HINDERRY who survives me and attain [sic] the age of sixty (60) years. 9. I GIVE the following direction to my executors that MY SON MICHAEL GEORGE HINDERRY may live in the property at [Unit 2] Gladstone Avenue, Coniston for as long as he wishes provided that he pay all rates and taxes on the property, any insurance premiums taken out by the Executors on the property, keeps the property in repair to the Executors [sic] satisfaction and does not disturb the peace and enjoyment of the neighbours. This property is to be held in trust for MICHAEL GEORGE HINDERRY and I FURTHER direct he can only sell the property if all three (3) trustees consent to the sale of the property."
There was no residue clause in the 2011 Will.
Clause 11 of the 2011 Will provided: "I have not provided specifically for my son …in this Will as over the years he has had a number of drug problems and has caused myself and my wife a great deal of angst that has resulted in us having Apprehended Violences (sic) Orders taken out for our protection."
Tony's senior counsel in written submissions submitted: "In clause 11 of the Will the Deceased makes particular comment regarding provision for Michael."
There are, obviously, a number of difficulties with Clause 11. Firstly, it seems to suggest that no specific provision is made for Michael in the Will, when that is clearly in error. Secondly, it refers to "my wife" rather than "my husband".
After some debate during oral submissions, the parties accepted that the objective facts asserted in Clause 11, namely that Michael, over the years, had experienced drug problems; that he had caused a great deal of angst to the deceased and Wahib; and that apprehended violence orders had been taken out by them against Michael, had been established by other evidence in the case.
Thus, there is no need to specifically identify Clause 11, as a matter to be taken into account, on its own, in determining Michael's case for provision. However, those objective facts may cast light on the relationship between the deceased and Michael, at least from the deceased's perspective.
(The 2004 Will is in essentially the same terms as the 2011 Will, other than in one respect. In Clause 7 of the 2004 Will, the devise of unit 8/Miller Street, is to Bernadette and Mary rather than Tony and Mary.)
The dispositions in Clauses 8 and 9 could give rise to some difficulties in their interpretation. However, at the commencement of the hearing, the parties agreed that, subject to the determination of how costs of this, and the Probate, proceeding are to be borne, the two units referred to could be provided to Michael absolutely, without the imposition of any trust. Indeed, senior counsel for the first Defendant acknowledged that "irrespective of whether there are conditions on those gifts [it] is entirely open to Michael to disclaim and take the properties outright… He can take it on intestacy without the need of any proceedings": T4.12 - T5.07.
Senior counsel for Michael, in his submissions, noted, however, that to disclaim the devises made for him in the Will and cause the two properties to fall into residue which would pass to Michael on intestacy, would result in the burden of all costs of the probate proceeding and the family provision proceeding being borne by Michael unless the Court made an order that the burden of costs otherwise be borne.
In their written submissions, counsel for Michael wrote: "In circumstances where part of the estate realty will have to be sold to pay the liabilities of the estate, the complete failure of the relationship between Michael and his cousins means that it would be inappropriate for Michael to have an ongoing relationship with his cousins. The plaintiff, Michael, should have a significant legacy or a substantial portion of the estate realty for him to purchase alternative accommodation, funds to purchase household goods, a car and funds to assist him in the contingencies of life."
The deceased, at the date of her death, resided in a unit at Gladstone Avenue, Coniston (Unit 2). She owned four units at Miller Street, Coniston (Units 2, 5, 6 and 8) and she held a one half-interest in a fifth unit (Unit 9) at Miller Street. She also had some monies on deposit in a St George Bank account and had personal effects and household goods. The furniture and household effects have been distributed to Michael.
At the hearing, the parties agreed that the estate assets, charged liabilities and their values, and the beneficiary entitled, are as follows: Assets Value Liability Entitlement No. 2 Miller Street $392,500 $130,153 (half share of mortgage) Joseph No. 5 Miller Street $327,000 $130,153 (half share of mortgage) Tony No. 6 Miller Street $344,500 Michael No. 8 Miller Street $344,500 Tony and Mary No. 9 Miller Street (half interest) $163,500 Tony No. 2 Gladstone Avenue $445,000 Michael Cash at bank $7,892 Total $2,024,892 - $260,307 = $1,764,585

[8]

(The estimate of the value of each parcel of real estate is the midpoint of market appraisals provided by Mr Kazi to Mr Russoniello in March 2016.)
It appears that the rental income from Units 2, 5, 6 and 8 Miller Street, is $1,858 per week total, whilst the rental income from Unit 2, Gladstone Ave is about $280 per week.
Subject to how the burden of costs of this proceeding and of the Probate proceeding are to be met, it was agreed that the net distributable value of the estate, after deduction of the debt secured on No. 8 Miller Street, and the amount said to be left to be paid to Mr Kelly, is about $1,764,500.
Without any reduction for costs, and bearing in mind that Units 2 and 8 are subject to a mortgage of approximately $260,000, the respective entitlements of the beneficiaries (subject to some comments regarding the form of clauses 8 and 9 of the Will) is Joseph (Unit 2/8), with a net value $262,500; Tony (Unit 5, half share Unit 8 and Unit 9), with a total net value of $532,750; Mary (half share of Unit 8) with a net value of $172,250; and Michael (Unit 2 Gladstone Ave and Unit 6 Miller Street) $789,500, plus the value of residue (if any).
It follows that Michael's entitlement, under the 2011 Will is about 44 per cent of the net value of the estate (before the payment of the legal costs of the proceedings and the amount left to be paid to Mr Kelly).
So far as can be gleaned, there are no other significant outstanding liabilities of the estate. There was a suggestion that upon sale of one, or other, of the properties, there may be a "post death" CGT liability (T8.12 - T8.14), but there was no evidence produced confirming whether there was any such liability, and if there was, its quantum. It is also likely that there would be costs and expenses of sale of one, or other, of the properties to meet costs, but again, there was no estimate of those costs and expenses.
In an affidavit sworn on 11 May 2016, by Mr Kelly, it is said that he has been "collecting rents from the estate properties and dealing with the management of those properties via the real estate agent, dealing with the insurance company to make a claim following a fire at one of the properties, and consenting to payment for repair work to the damaged properties, dealing with the deceased's bank, and attending to loan repayments, dealing with the various legal representatives of the parties to these proceedings and arranging payment of weekly payments to [Michael]" and that "[s]ince October 2015, the administration has only involved receiving moneys and making payments".
On the third day of the hearing, the Court was informed that enquiries made from Mr Kelly's office revealed that there was approximately $1,000 yet to be paid to Mr Kelly for his work as interim administrator of the estate. (I note that $20,195 has already been paid out of the estate to Mr Kelly for acting as the interim administrator.)
Mr Kelly's affidavit also revealed that until 7 April 2016, various amounts, totalling $53,250, have been paid to Michael. Since then, the parties agreed that a weekly amount of $350 has also been paid to him ($2,450 to the date of hearing). In addition, Mr Kelly has repaid the mortgage debt at the rate of $1,250 per month.
There was no dispute that the amounts paid to Michael had been paid to him pursuant to an order made by Lindsay J, on 13 October 2014, after a contested hearing for interim provision.
His Honour's orders, on that occasion, included: "6. ORDER, subject to further order, that the administrator (James Kelly) make the following provision for the plaintiff (Michael Hinderry) out of the estate of the deceased, by way of an interim distribution of estate property to the plaintiff: (a) ORDER (with the express consent of Tony Hinderry) that the plaintiff be entitled to all of the furniture, household contents and chattels of the deceased formerly located in the residence of the deceased known as 2/98 Gladstone Avenue, Coniston in the State of NSW. (b) ORDER that the plaintiff be entitled to a lump sum payment of $7,000.(c) ORDER that the plaintiff be entitled to a periodic payment of $350.00 per week, the first of which payments is to be paid on (or calculated by reference to) 15 October 2014, with subsequent payments to be made in advance on Wednesday of each week. 7. RESERVE for further consideration: (a) whether the plaintiff should be allowed further provision, by way of an interim distribution or an award of interim provision under s 61 of the Succession Act 2006 NSW, from the estate of the deceased.(b) whether Tony Hinderry should be required to provide an accounting for his dealings in assets of the estate of the deceased beyond the accounting informally provided by him in the affidavit of Matteo Russoniello affirmed 13 October 2014. (c) whether the administrator (James Kelly), Tony Hinderry and/or some other person should be appointed as a defendant to serve as a contradictor for the plaintiff's claims for relief under chapter 3 of the Succession Act 2006. (d) whether the plaintiff's claims for family provision relief should be heard before, after, or together with questions in dispute between the plaintiff and Tony Hinderry concerning a grant of probate or administration in respect of the estate of the deceased."
Depending whether a more detailed accounting is required, no claim is made by the Defendants for Michael to repay the amount paid to him.
Usually, in calculating the value of the deceased's estate finally available for distribution, the costs of the proceedings for a family provision order should be considered with circumspection, since the Plaintiff, if successful, normally will be entitled to an order that his costs, calculated on the ordinary basis, should be paid out of the estate of the deceased, whilst the administrators of the estate, irrespective of the outcome of the proceedings, normally will be entitled to an order that their costs, calculated on the indemnity basis, should be paid out of the estate.
On the second day of the hearing, the Court was informed, without objection, from the bar table, that Michael's costs of the Probate proceeding were $122,000; that Tony's costs of the Probate proceeding were $50,248; and that Charlie's and Simon's costs of the Probate proceeding were estimated to be $13,200. (In an affidavit sworn by Mr Rod, and filed, with leave, on the third day of the hearing, Charlie's and Simon's costs were reduced to $12,400, inclusive of GST.) It follows that the estimated costs of the parties, of the Probate proceeding, are approximately $184,650.
The Court was also informed that Michael's costs of the family provision proceeding were $140,000 (and $180,000 on the indemnity basis); that Tony's costs, calculated on the indemnity basis, of the family provision proceeding were $92,733 (of which $5,599 had been paid out of the estate, leaving a balance of $87,134); and that Charlie's and Simon's costs of the family provision proceeding, presumably calculated on the indemnity basis, were estimated to be $70,475. (In the affidavit sworn by Mr Rod, Charlie's and Simon's costs were reduced to $64,061, inclusive of GST.) It follows that the estimated unpaid costs of the parties, of the family provision proceeding, are approximately $295,000.
It is clear from all that has been written so far, that all of the parties have engaged in adversarial litigation. Very little quarter appears to have been asked for, or given, including as between the Defendants.
The issue of costs and how they are to be borne is quite complicated for a number of other reasons. Firstly, as stated previously, the parties in the Probate proceeding agreed that the costs, calculated on the indemnity basis, of each, would be paid out of the estate. The parties are not agreed on the quantum of each party's costs or what part, or parts, of the deceased's estate will bear the burden of those costs.
Secondly, there is a dispute whether only one set of costs, for all of the Defendants, should be ordered. Tony's counsel, several times during the hearing, raised this issue. I have identified one basis of Tony's complaint earlier.
Thirdly, there is likely to be a significant debate about the reasonableness and proportionality of the estimate of the costs of all parties. (I should mention that Mr Kazi swore an affidavit dated 18 May 2016 that was read in which he endeavoured to set out the work that he had been required to do in order to prepare Michael's case for hearing. It may be necessary to deal with that evidence if the parties are unable to agree upon how costs should be borne.)
Fourthly, the estimates of the parties' costs of the proceedings are of such a magnitude as to invite consideration of whether (and, if so, what) effective orders can be made for costs to be capped.
Fifthly, as there is insufficient residue to pay the testamentary expenses (which will include the costs of the Probate proceeding), there may be a need to be a pro-rata liability attached to each of the specific gifts, pursuant to Schedule 3 of the Probate Administration Act 1898 (NSW).
Finally, senior counsel for Tony indicated there is a document, or documents, that may be relevant on the issue of how the Plaintiff's costs are to be borne depending upon the result of the proceeding.
In the circumstances, the Court was requested not to deal with costs until after the reasons for judgment are delivered. At that time, unless the parties are able to reach agreement, it may be necessary to set down for hearing the argument about costs. It is likely that if that occurs, further evidence on costs will be required.
The parties were told that the Court had a real concern that the argument about the costs of the proceedings was looming large in the case, perhaps even overtaking the claim for greater provision being sought by Michael. They were also referred to the concern as to the quantum of costs. I shall deliver these reasons and, if the parties are unable to agree upon that issue, I shall stand the determination of costs over to a mutually convenient date for hearing. When the costs argument is heard, my concerns may be assuaged, but if they are not, I shall deal with those concerns at that time.
There is no issue about the identity of eligible persons. The parties agreed that Michael is the only eligible person.
Mr Russoniello gave evidence of having served each of Joseph, Mary and Bernadette with "notice of these proceedings". The notice of claim appears to be in the usual form. (However, as stated, the Court cannot disregard the interest of Tony, Joseph and Mary as beneficiaries named in the 2011 Will).
In relation to the other beneficiaries, only Joseph has sworn an affidavit read in the proceedings, in which his financial resources are identified. Thus, the Court may assume that each of Tony and Mary does not wish his, and her, financial resources (including earning capacity) and financial needs, both present and future, respectively, to be taken into account: Matthews v Wear [2011] NSWSC 1145, at [45] (Macready AsJ).
On this topic, in Sammut v Kleemann [2012] NSWSC 1030 at [137] - [140], I wrote: "The question, then, is what flows from a beneficiary's silence? The answer is, in those circumstances, that the court is entitled to infer that the beneficiary has adequate resources upon which to live and that he, or she, does not wish to advance a competing financial claim upon the bounty of the deceased… However, the claims of a beneficiary, as the chosen object of the deceased's testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, and also as a person whose interest in the estate may bear the burden of the order made in favour of the applicant, are to be borne in mind. (It is to be remembered that the Court must specify, amongst other things, the manner in which the provision is to be provided and the part, or parts, of the estate out of which it is to be provided: s 65(1)(c) of the Act.) Where there is no evidence from the beneficiary, it is those claims (i.e. as the chosen object of the deceased's testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, or as a person whose interest in the estate may bear the burden of the order made in favour of the applicant), rather than any financial claim upon the bounty of the deceased, that should be considered. Put another way, and using the oft-quoted words of Salmond J in Re Allen (deceased); Allen v Manchester [1922] NZLR 218, at 220, the Court is not able to have regard to "the means" of the beneficiary, but the Court may still consider "the deserts of the several claimants" and the "relative urgency" of the various moral claims upon [the deceased's] bounty". The Court will, thereby, give due regard to "what the testator regarded as superior claims or preferable dispositions" as demonstrated by his, or her, will: Pontifical Society for the Propagation of the Faith v Scales at 19, per Dixon CJ. In this way, too, the Court gives weight to the principle of freedom of testation referred to earlier."
Although probably of little relevance to Michael if his claim is successful, his senior counsel submitted that "some of the provision that might be ordered in favour of [Michael] should be borne by Joseph as well as Tony and Mary": T 143.15 - T143.16.

[9]

The relationship of Michael and the deceased

A significant focus of the evidence, both in the affidavits and at the hearing, related to the relationship of Michael and the deceased.
The Act refers to "the character and conduct of the applicant before, and after, the date of the death of the deceased person". Relevantly, it does not refer to "disentitling conduct" but simply "conduct".
(In this regard, I should refer to In Re the Will of F B Gilbert deceased (1946) 46 SR NSW 318, relied upon by senior counsel for Michael (in the context of the application for a permanent stay). In that case, Jordan CJ, at 321, considered (by reference to the applicable legislation) that disentitling conduct (or "character or conduct such as to disentitle him to the benefit of such an order") meant "character or conduct relevant to the purposes which the Act is intended to serve, for example, misconduct towards the testator, or character or conduct which shows that any need which an applicant may have for maintenance is due to his or her own default".)
Under the Act, an evaluation of "character and conduct" may be necessary, not for the sake of criticism, but to enable consideration of what is "adequate and proper" in all the circumstances. Importantly, the Act does not limit the consideration of "conduct" to conduct towards the deceased although, it seems that his, or her, conduct towards the deceased might be more relevant than his, or her, conduct towards others.
In Collicoat v McMillan [1999] 3 VR 803 at [40], Ormiston J wrote, in relation to the manner in which an applicant's behaviour towards the deceased is to be considered: "Ordinarily each of the persons who have a statutory right to make [an] application are entitled to have their position considered by a testator but their behaviour (right or wrong) towards the testator may only provide a basis for measuring appropriately the testator's obligation to make provision for each of those applicants. Their sins are irrelevant except in so far as a testator might properly take exception to their behaviour."
Campbell JA in Hampson v Hampson [2010] NSWCA 359 at [80], in regard to the Court's consideration of the totality of the relationship between the applicant and the deceased, wrote: "The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge."
I start this topic by confirming that where there is any conflict between Michael's and Tony's evidence, I prefer the evidence of Tony. I formed the view that Tony was a careful witness who made every effort to answer, truthfully, the questions asked of him. I did not find him to be embellishing his evidence regarding his relationship with Michael or trying to exaggerate the seriousness of the events that he had observed involving the deceased.
I note a passage of Tony's evidence in cross-examination by counsel for Charlie and Simon (which I quote omitting irrelevant words that appear in the transcript) that I found particularly relevant (at T128.35 - T129.00): "I … just … reiterate Michael and I … were very close. We used to play together, we used to go to the park together. He used to ask me for money [and I was] more than happy to provide him with money. We went to Surfers Paradise together, Melbourne. We were very close and I treated Michael the same way that I treated all my brothers and sisters. Q. Up until about the age of 14 or 15 or beyond that? A. My relationship with Michael we always had a close relationship. He only became estranged from me when he started to get addicted to alcohol and drugs. So I believe as soon as he got to the age of 14 or 15 from memory, that's when he started to go downhill with the abuse of alcohol to drugs associating with people older than him. But even … after that I still communicated with him. We were still very close. I would always talk to him. I never had an issue."
His oral evidence was consistent with how he had described his relationship in an affidavit sworn in September 2015, part of which was denied by Michael.
And in a similar vein, in answer to questions by senior counsel for Michael, Tony said, at T131.33 - T131.40: "Q. Sir, you were asked questions by Mr Barter about the relationship between yourself and Michael especially the younger days of both of you? A. Hm. Q. You said it was a close affectionate relationship where you and you say that Michael's version of friction and bullying and name calling was not correct? A. Absolutely I never bullied Michael."
I am of the view that Michael's evidence is not wholly reliable. I approach his evidence with caution but I do so for mixed reasons. It is clear that some of his evidence was coloured by his strong emotion. There was a strongly felt sense of grievance at the way the deceased, for whatever reason, failed to tell him that he was adopted until he was in his late 20s.
In this regard, I remember what was said by the English Court of Appeal in R v Turner [1975] QB 834 at 841: "A man's personality and mental make-up do have a bearing upon his conduct. A quick-tempered man will react more aggressively to an unpleasing situation than a placid one. Anyone having a florid imagination or a tendency to exaggerate is less likely to be a reliable witness than one who is precise and careful. These are matters of ordinary human experience. Opinions from knowledgeable persons about a man's personality and mental make-up play a part in many human judgments."
In addition, it is tolerably plain that Michael feels that he no longer has any relationship with Tony and with the other beneficiaries (although there is some evidence that he keeps in contact with some of them). As he repeated several times, he feels that in some way, Tony's family is responsible for his present predicament and that the members of that family caused the deceased to make the 2011 Will in the terms that she did.
By way of further examples, Dr Nielssen records Michael's responses while being interviewed as including the statement by Michael that "my cousins can do whatever they want…I haven't been left anything."
Ms Arthur, in her affidavit, records a conversation that she had with the deceased in 2012, in which she told the deceased: "Michael feels like he is not fitting in and he is having problems with the issues going on with the family. He feels like your family is pushing him out and having more priority than him in your life."
Although Ms Arthur does not set out the deceased's response, she states that she was able to try to "explain to Michael that he had parents that loved him and looked after him".
Mr Hayman states that the deceased said to him that she loved Michael and always would as he was her son. She also said that she was worried about him and who was going to look after him.
Charlie gave evidence that he had heard the deceased complain to his father about Michael's behaviour, including regular complaints "that he stayed away from home for days at a time and that he behaved badly towards her and Wahib". He said that he convinced the deceased to change the locks to the Unit in which she lived, and that she did so but that shortly after the locks were changed, Michael would have a key to the new lock.
To the extent that Michael, in his affidavit, or in cross-examination denied violent conduct towards the deceased (and towards his father and his uncle to the extent that it is relevant), I do not accept his denials. In this regard, I prefer the contents of the contemporaneous court records which reveal various assaults, both verbal and physical, upon the deceased. He was simply not telling the truth.
To the extent that Michael asserts it was the deceased's conduct that provoked violence towards her, and others, I do not accept that evidence either. There is simply no evidence to corroborate that assertion, which, I note, appears to be inconsistent with the deceased's desire to look after Michael, as revealed in a number of contemporaneous documents, and with her statements to Ms Arthur that she loved Michael, that he was her son, and that she could not understand why he was angry with her.
Even Michael's first affidavit contains the following paragraphs: "During my childhood, my late Father and my late Mother showed me a lot of affection, love and care". "I was very close to my late Mother. [We] spent a lot of time listening to the radio and watching television together…." "…In primary school, my late Mother took me to guitar lessons."
He acknowledged that "she just wanted the best for me": T54.48.
In addition, the following passage is to be found at T163.47 - T164.11: Q. Mr Hinderry, can you help me with one thing. You were adopted pretty much a year after you were born and you have told me that you didn't know about the adoption until I think you said you were 29. That's what you told me previously? A. Yes. Q. I think you told Mr Meek that your mother in particular treated you with love and affection? A. Yes. Q. Is that so? A. Yes, that's right. Q. I take it, she did not treat you other than as her child; is that so? A. Yes, that's right."
There were parts of his evidence that demonstrated that, on some aspects, he was endeavouring to tell the truth. For example, his evidence on his alcohol and drug dependency and its connection with finding out about his adoption is against his own interest (T47.14 - T47.26, with spelling corrections): "Q. And a part of what you claim in this case is that when you found out that you were adopted, you started drinking alcohol and heavily into taking drugs, is that right? A. I always drank and indulged a little bit in drugs, but I felt probably I was doing it more. I felt a bit more isolated and felt like I was not being as social as I normally would. So I sort of, you know, indulged in alcohol and drugs maybe a little bit more. Q. You started taking or drinking alcohol from the age of 14? A. Yes, I had my first drink around 14. Q. And you started taking drugs around 16? A. I think I smoked marijuana. I started smoking around that age."
He added, later (at T57.20 - T57.22): "A lot of times I talked about my adoption to these mental health people and they were telling me I don't think adoption is your issue. Drug and alcohol is your issue".
Michael's conduct towards the deceased, and otherwise, to which I shall refer cannot be said to be seriously in dispute, and if it is, I am satisfied that it has been established, taking into account s 140 of the Evidence Act 1995 (NSW), which requires the Court to consider, amongst other things, the gravity of the matters alleged.
Michael has a long and unhappy history of criminal conduct. There were a number of apprehended violence orders obtained in the period 1998 to 2012, in which the "protected person" was the deceased, and "the defendant" was Michael: Ex. 1D1. In these, a mandatory order was made that Michael "must not assault, molest, harass, threaten or otherwise interfere with, the deceased or engage in any other conduct that intimidates her, and must not stalk her". In addition, there was an order that he "must not approach her, or any premises in which she resided, within 12 hours of consuming intoxicating liquor or illicit drugs". Other documents reveal that he breached a number of these orders.
It is not necessary to encumber these reasons with all of the sordid details of events that occurred on each occasion, but the incident or incidents referred to reveal complaints, by the deceased, of continual abuse and harassment, on occasions, physical violence, swearing and calling her names such as "slut" and "whore" and even threats being made by Michael to kill her. The deceased was noted, on at least one occasion, as having said "I am very scared of Michael. I do not feel safe from him", and that she did not want him to be able to come to her home. On another occasion, she described the problems caused by Michael, and said "I think it is drugs and drinking".
There were many incidents, involving contravention of the apprehended domestic violence orders, malicious or reckless destruction, or damage, to the deceased's property, assault occasioning actual bodily harm, common assault and larceny, for which Michael was convicted: Ex. 1D1 and Ex. 1D2. (There are convictions recorded on about 26 occasions, commencing in March 1988 and ending in January 2014 (confirmed in the District Court in April 2014.))
Senior counsel for Tony refers to specific incidents, by way of example, which occurred on 17 December 1998 (Ex. 1D2/2), 18 February 1999 (Ex. 1D2/4), 28 May 1999 (Ex. 1D2/6-7), 2 June 2003 (Ex. 1D2/29-30), 10 April 2008 (Ex. 1D2/32), 13 and 15 February 2012 (Ex. 1D2/19-20), and April and May 2013 (Ex. 1D2/27-28).
Tony gave evidence that on one occasion, when Michael was about 20 years old, he observed Michael kick the deceased in the face. He was not cross-examined on this incident, although Michael did deny the incident in his affidavit in reply.
Tony gave evidence of the deceased complaining to him about Michael's conduct, including Michael's regular demands for money and that she would give him money as "[t]he only way I could get some peace". (Indeed, there is evidence that the deceased spoke critically about Michael to a number of people.)
It is necessary to set out one aspect of the evidence, tendered as part of Michael's case, which is to be found in Ex. MGH3, being part of a file of Tony's current solicitor, Mr M Russoniello, who, on one occasion in 2003, had acted for Michael in certain criminal proceedings.
I should mention that Mr Russoniello was cross-examined on the contents of his file. I accept his evidence.
Part of the tender included a letter dated 20 March 2015, to Michael's solicitors, in which the following statement, on which Mr Russoniello was not cross-examined, appears: "I enclose the original 2003 file that relates to your client. I have not kept a copy and I have not disclosed the contents to my client nor to Counsel."
The criminal proceedings at which Mr Russoniello acted for Michael related to proceedings for breach/fail to comply with domestic violence order. What follows is taken from contemporaneous documents found in his file.
The hearing was to take place on 23 July 2003 in the Wollongong Local Court but it did not proceed because the deceased did not appear. Michael, who did appear, was said to have appeared to "have some mental problems".
At some point in July 2003, it is likely that Mr Russoniello met with, and spoke to, the deceased. His notes reveal a conversation in which the deceased said to him: "Does not want son to come home while he is sick. Better son stay in gaol. Not now to come home. When he gets better."
The hearing proceeded on 25 August 2003. No psychiatric assessment was available on the date of the hearing as Michael had refused consent.
It appears that the deceased attended the hearing and was cross-examined by Mr Russoniello. It follows that this was not a case where a close family member who suffered abuse was unprepared to notify authorities and give evidence in order to try to prevent the conduct from continuing. Nor did the deceased "react with denial, resignation, psychological acquiescence, and passive acceptance": Katheryn Katz, "Elder Abuse" (1980) 18 Journal of Family Law 695, 711. She attended the hearing and underwent cross-examination in order to prevent Michael's conduct towards her from continuing.
Mr Russoniello's contemporaneous notes include the following passage: "No psychiatric assessment was available as Mr Hinderry had refused consent. I spoke to Mr Hinderry again and it appeared again and it appeared to me that he was capable of giving evidence in his own case. I informed Mr O'Connor of this and the case proceeded. Mr Hinderry gave evidence."
Michael was found guilty. In a letter dated 26 August 2003 to Legal Aid NSW, Mr Russoniello wrote: "While this particular offence did not involve actual violence, Mr O'Connor counted 8 previous incidents of assault/breach AVO mainly involving his parents."
In addition to these matters, Michael has engaged in other criminal conduct. By way of example, as recently as 2013, he was convicted and sentenced to a term of imprisonment for 18 months for breaking and entering the deceased's home, stealing property with a value of less than $60,000 and contravening the prohibition and restriction in an apprehended domestic violence order. Upon release, the conditions of his parole were that he participate in alcohol and drug addiction counselling as directed and undergo psychiatric/psychological counselling and treatment: Ex. 1D3.
It was Michael's case, however, that much of the anger that is evident in his conduct, particularly towards his parents, stemmed from the fact that he did not find out until his late 20s that he was adopted, sometimes referred to in the evidence as "the unresolved adoption issue".
In this regard, I accept Tony's evidence, in cross-examination by counsel for Charlie and Simon, at T127.28 - T137.38, and at T138.35 - T138.40: "Q. You have said in your affidavit that you did not believe that Michael was unaware of his adoption prior to 1988? A. I say Michael was fully aware of that particular issue. His adoption. If he was fully aware of that issue because I recall when we were around the age of 10 to 15 Michael told me, he knew he was adopted because everyone was telling him including the Semaans including everyone else he was adopted. He asked me whether if I knew he was adopted, I said yes you are, so what if you are. We only spoke of that adoption briefly at that point and never was there an issue after that. He knew he was adopted from a very young age. And for the record I would let the court know Michael and I were very close when we were growing up. There was never any issue…"
Yet, this does not mean that what Michael said about this topic was intentionally false. I tend to the view that Michael had probably been told about being adopted by persons within the family, other than by the deceased directly, and that it was when he was in his late 20s, that she, for the first time, expressly confirmed to him what he had been told by others. I also accept that this came as a shock to him, bearing in mind the deceased's earlier denials that he was adopted.
There is some evidence supporting this view provided by Ms Arthur, to whose evidence I have earlier referred. In addition to the statement made by the deceased earlier referred to, she stated that the deceased had said to her: "I didn't tell [Michael] because I felt it was the best thing to do."
I also note, so far as is disclosed in the exhibits, that the first criminal conduct involving Michael and his parents, occurred in 1998, when he was in his late 20s. Junior counsel for Michael, in his submissions in reply, drew attention to, what he submitted was, the temporal link between the time when the deceased confirmed that Michael was adopted and when his anger manifest towards her and Wahib, as revealed in the exhibits to which reference has been made.
There was, however, no expert evidence that showed any causal link between when the deceased confirmed that Michael was adopted and the manifestation of his anger towards her and Wahib. Indeed, there is medical evidence which reveals what is likely to have been the real basis of Michael's conduct.
It is also necessary, as part of the evidence given of the relationship, to refer to Michael's evidence of his contribution to the conservation and improvement of the estate, and to the welfare of the deceased, about which he was not cross-examined.
Michael said that he helped his parents by cleaning the house, washing clothes, and buying them groceries. He also assisted them, because of their limited understanding of English, to complete school forms, Medicare application forms, and private health fund applications. He translated news, school documents, letters and TV shows. He says that he would take the deceased to doctor's appointments and to church.
He says that he made some contribution to the welfare of both his parents. In this regard, he specifically mentions having given up a job, as a sales assistant, in 1989, at the request of the deceased, and having returned from Queensland in 1994, because the deceased told him she needed to have an operation. He also gives evidence that when Wahib was diagnosed with dementia, he helped him and the deceased by taking Wahib to doctor's appointments and translated conversations with the doctor, and hospital staff, as well as buying his medication, changing his nappies and performing other domestic duties.
Tony denies having observed Michael providing any assistance to either of his parents. On this aspect, I tend to the view that each is giving evidence of different times, Michael speaking of the time before his late teens and, perhaps, when he was not affected by drugs or alcohol, and Tony speaking about other times.
Charbel refers to a conversation with the deceased in which she said that Michael, "when he is being a good boy", helped her look after Wahib, but that at other times, he would not be around and then did not help. Similar evidence is given by Simon.
I should also mention something about Michael's schooling and his work history.
Between 1976 and 1982, he attended St Francis Xavier Primary School in Wollongong and then between 1983 and 1986, in Years 7 to 9, he attended Edmund Rice College in Wollongong, each of which, I infer, is a private school. He then attended Wollongong High School where he completed Year 10. He obtained his School Certificate.
Thereafter, Michael enrolled in a number of TAFE courses, which he says he did not complete by reason of his lack of interest. There is evidence (Ex. MGH1), that in July 1995, he attained a Statement of Attainment certified by the Australian Hospitality Review Panel; that in 1996, he received a Certificate of Participation from the Tourism Training Centre; in January 1998, he received a Statement of Attainment in the Responsible Service of Alcohol Program, in April 2001; in 2003, he received a Certificate in entertainment from Wollongong City Employment Training Inc.; in 2003, he attended Hunter Institute TAFE and received a certificate regarding OH & S Induction for Construction Work; in 2005, he received a Statement of Attainment being Certificate II in retail operations; in 2005, he received a Statement of Attainment in Responsible Conduct of Gambling from TAFE as well as a Statement of Attainment in Senior First Aid; in 2006, he received a Statement of Attainment in 3650HA Word Processing Operations; in 2006, he received a Statement of Attainment in operating a Forklift. These matters demonstrate that he is not without ability.
He also had various jobs, including as a sales assistant (in 1989) and as a kitchen hand/bartender (in 1993) in Queensland, as a bartender (in 1995 to 1997), in a nightclub (in 1998), as a waiter (in 2000) and then as a labourer (between 2001 and 2007).

[10]

The deceased's Statements about her testamentary intentions

I have earlier referred to the 2004 Will.
Tony gave evidence, upon which he was not cross-examined, about a conversation that he had with the deceased following the death of Tony's father, John, in 2004: Samera: "I am concerned that my financial affairs are not in order. I want to have a will prepared in the event of anything happening to me. I would like you to look after both my and your uncle's financial affairs and we must do a will. Can you make an appointment to see a solicitor". Me: "Of course. I can understand that". Samera: "I want all property to remain in the Hinderry family. The properties are the hard work of your father John, your uncle, your mother and me. I cannot leave Michael out of the will. I am fully aware that Michael will waste any money given to him and he will use money to buy drugs and alcohol and gamble. If I don't leave him anything he will challenge the will and cause trouble for the Hinderry family after I die. If I leave him something this will probably keep him quiet and he will not cause any trouble for you or your family. I am not happy with how he has treated me over the years but he is my son and I have to forgive him. I don't want Michael to sell anything. I don't want him to live in any properties while he is on drugs and alcohol and still causing trouble. I want you to look after my property but I want Simon my brother to be there to help you in the event that Michael causes trouble. Simon will be able to talk to Michael and make sure he does not cause trouble for you and your family. Me: "This is up to you. It's your decisions. I can arrange for you and Uncle Wahib to see a solicitor and you can obtain legal advice". Samera: "I want you to make the appointment and take my husband and me to see a solicitor and I want you to be with us when we see him. Please do that for us".
Shortly before she made the 2011 Will, she had another conversation with Tony: Samera: "I want to change my will to remove Bernadette as a beneficiary and to give her share in Unit 8 to you and I want to include my nephew Charbel (Charlie Semaan) as another executor. I want everything else to be the same as the present will but I do want to make these changes. Can you make and appointment to see a solicitor so that we can make the changes. I am not happy with the way Bernadette and her husband are treating me and your uncle with respect to the property transaction in Lebanon. Joseph (Bernadette's husband) and his brother George who is in Lebanon have sold my block of land for less than the market price to George and Joseph arranged it."
In response to some evidence from Simon, Tony gave evidence of another conversation with the deceased: "I recall my aunt saying to me on many occasions words to the effect "I am concerned that Michael will try and contest the will. I want someone other than a Hinderry to be in a position to provide evidence of Michael's treatment of us. Someone that knows how he behaved towards us. Charbel and Simon can talk to Michael and make sure he is not a problem for you and your family when it comes to the will". I also recall my aunt saying to me words to the effect "Charbel has said to me many times, why don't you get rid of Michael. He abuses you. Why are you keeping him. You should cease all ties with him."
Charlie gave evidence of a conversation with the deceased in which she said to him: "I am worried about Michael. He can't control money. If he was my flesh and blood I might have thrown him out by now, but I can't take someone else's child and do that. I don't want to give him money to buy drugs. He is out of control. But I don't want him on the streets. I want to make sure that he has a roof over his head for the rest of his life and to make sure all his bills are paid regularly after I am gone".
Each of these conversations demonstrate the thought and the logic behind the 2011 Will and the due consideration that she gave to the persons, she believed, who had a claim on her bounty.

[11]

Michael's Medical Condition

Michael's current mental condition is addressed in Ex. MGH2 to which reference has earlier been made. In summary, Dr Nielssen concluded: "MENTAL STATE EXAMINATION Mr Hinderry presented as a slim man of middle eastern heritage, dressed in jeans and a collared shirt, with his hair tied back in a pony tail. He smelled strongly of tobacco and alcohol. He spoke in a voice that was louder than necessary and he was demonstrative in his manner and expressed his irritation at a number of restrictions placed on him. His underlying mood seemed moderately depressed. His answers were fairly spontaneous but wandered from the point and if not interrupting he spoke at length in a way that became increasingly irrelevant. He reported previous symptoms of psychosis, but did not report any recent symptoms, despite not having treatment. No delusional beliefs were elicited, including any apparently delusional explanation for his previous symptoms. He was approximately oriented and had some knowledge of recent events. His concentration seemed to be affected by a mild degree of intoxication. His registration of information was thought to be largely unimpaired, although he often had to be interrupted to be reminded of questions. His retrieval of information also seemed to be largely unimpaired, from the personal history he was able to provide. His intelligence was estimated to be about average, from his reported educational performance and musical skill."
He added that: "the main reason for Mr Hinderry's criminal conduct was probably the effect of his substance use disorder… his time in custody …does not appear to have helped him manage his substance use disorder or helped his long term adjustment… he denied having recent symptoms of psychosis and there was little in the way of objective signs of mental illness. His mood and cognitive function was difficult to assess as he was affected by alcohol… Substance use disorders are now recognized to be chronic condition requiring long term care… [He] has the cognitive ability to manage his affairs. However, I am unable to confirm that he would be able to manage his affairs in a rational way free from decision making that was clouded by intoxication and the compulsions of addiction, or the exploitation often found in a substance using milieu… his cognitive function is not so impaired that he would be incapable of expressing his preference about, for example, where he would like to live and how he would prefer his money to be spent".
Senior counsel for Michael, on the second day of the hearing, tendered a number of, but not all, documents that had been copied from documents produced on subpoena: Ex. MGH4.
I was not taken, in detail, to any parts of the documents by senior counsel. However, I highlight some of the matters which were revealed by an inspection of the documents in the Exhibit: 1. In a Community Offender Services Probation and Parole Service Pre-Sentence Report dated 23 September 2005, there is a reference to Michael's dealings with the Service and him having "presented with ongoing problems of substance abuse and psychiatric/psychological issues which have persisted despite efforts at intervention…He also continued to display little insight into his drug and alcohol abuse and mental health diagnoses." A history of "problematic gambling is also noted". In March 2005, he had reported "auditory hallucination, both directly addressing him and in a third person, usually of a derogatory content". Another report referred to had "confirmed a prior history of 'psychosis' as 'well as high risk of violence and impulsivity". He had been given psychotic medication. 2. A report dated 10 June 2005, of Professor D M Greenberg, Psychiatrist, stated that "there are no reasonable grounds to believe that Mr Hinderry is suffering from a mental illness or mental disorder within the meaning of Chapter III of the NSW Mental Health Act 1990. There are no reasonable grounds to believe that [he] suffers from a developmental disability." He "does suffer from a mental illness for which treatment is available in hospital but is not a mentally ill person within the meaning of the NSW Mental Health Act". He "currently has symptoms of mental illness including paranoid delusional beliefs and beliefs about thought control. He requires psychiatric medication to address his psychotic symptoms." 3. A report dated 18 August 2009, of Dr Gordon Elliott, a Staff Specialist Psychiatrist, stated that it had been a "difficult assessment". He described Michael as "extremely suspicious and was, at times, outright menacing…There were obvious features of ongoing paranoia… He believes that he should continue to have access to his parents and that the family as a whole should be compelled to undergo psychological counselling". His diagnosis was that "there was a strong suggestion…that [Michael] suffers from a chronic psychotic illness… I am reasonably confident that [he] suffers from Chronic Paranoid Schizophrenia…his illness has been complicated by substance abuse and non-compliance with antipsychotic treatment." 4. In a letter dated 6 January 2014, from Preece Lin Lawyers, to the Registrar, Wollongong Local Court, in relation to two offences ("contravene prohibition/restriction in an AVO and break enter etc and steal") for which Michael was charged, there is a reference to another report dated 18 May 2012, from Professor Greenberg. That report concludes that "there are no reasonable grounds to believe that [Michael] suffers from a mental illness or mental disorder as defined within the meaning of Chapter III of the NSW Mental Health Act 1990" or "that [he] suffers from a developmental disability". However, Professor Greenberg's diagnoses of Michael's condition includes "Psychotic Illness, namely a chronic Schizophrenic Disorder Polysubstance Dependence [and] Manic Depressive Symptoms, Personality Disorder with Antisocial Features".
Senior counsel for Tony noted that "The antecedents do not record any instance in which the Plaintiff was dealt with under the provisions of s.32 of the Mental Health (Forensic Provisions) Act 1990". That section is engaged, relevantly for present purposes, if it appears to the Court that the defendant is "suffering from mental illness ... but is not a mentally ill person": s 32(1)(a)(ii). It was referred to in the letter from Preece Lin Lawyers but there is no evidence that the Magistrate who dealt with the matter concluded that "it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law": s 32(1)(b).
Whilst his mental state, at times, may have affected his conduct towards the deceased, it does not explain, entirely, Michael's treatment of her, particularly in the last years of her life, especially when one considers that he accepted he had received her love and support throughout his life.
I do not accept the direct correlation, which seems to be asserted, between it being confirmed by the deceased that Michael was adopted and his conduct towards the deceased. I set out the passage in Dr Nielssen's report relating to "The effect of adoption on Mr Hinderry and his relationship with his family". "Mr Hinderry reported that discovering he was adopted by chance in his late twenties was a shock, and contributed to an exacerbation of his substance use and to the adverse course of his criminal history. However, it was also clear from the history he provided that he had conduct problems, a substance use disorder and contact with mental health and criminal justice systems prior to that discovery."
(I should mention that Dr Nielssen was not provided with the complete record of the Plaintiff's mental health or criminal justice material.)

[12]

Michael's Current Financial Position

Michael currently lives in a boarding house. He is unemployed. He does not have any significant property. He owns a guitar purchased for $190 and an amplifier purchased for $180. He owns some clothing, 2 lounges, a dining set and kitchenware that were previously owned by his parents and are currently in storage at his parents' home. He has debts of about $1,433 (and he says a debt to St George Bank of $5,000 in 1996, "but I have no letters or statements about this").
Michael's monthly income is $2,800, which is made up of a monthly Centrelink disability support pension (approximately $1,400) and an interim provision from the estate ($1,400).
Michael wrote, in his first affidavit, without disclosure of those expenses, that his "monthly expenditure equals my monthly income". However, in his affidavit of 5 April 2016, he wrote that his expenditure "at the moment" totals $1,730 per month.
Whilst there was no dispute about Michael's current financial resources, senior counsel for Tony submitted: "Whilst the Plaintiff's financial circumstances are relatively meagre, his failure to accumulate assets and lack of income have at least to a certain extent been self-inflicted by reason of his criminal history and abuse of drugs."
There is no suggestion that Michael is currently cohabiting with any person whose financial circumstances are relevant.
He is aged 45 years. Whilst his age would not, necessarily, reflect his limited earning capacity, it is likely that his medical condition will. He accepts that he has never made any money out of following a musical career, ever recorded any music, or made any money recording and selling recordings. He said, however, that he wants to work in retail and work towards a managerial position.
Michael admitted that he is "not confident in looking after a lot of money and assets" and that he "would like to have assistance in managing my finances. I would like a financial advisor and an accountant".
He also stated that he "does not want to be associated with Tony… any longer and I do not want him to be my trustee". He said that he would prefer to live in his own house and that it does not matter where it is: T27.35 - T27.46.
There was also evidence from Michael that he had lived in Wollongong and its environs over many years.

[14]

The Statutory Scheme

There was really no issue about the principles that apply. I have dealt with them in many cases and I set out what follows for the benefit of the parties.
Under s 59 and s 60 of the Act, the task of the Court, in this case is: 1. 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 by the operation of the laws of intestacy; 2. to form an opinion of the adequacy of that provision; 3. if the opinion is that the provision is inadequate, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased 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 4. in making that evaluative judgment, to have regard to, as discretionary factors, such of the matters in s 60(2) as it considers relevant. (The Court is not obliged to do so, the section stating "may have regard to".)
The mandatory legislative imperative that drives the ultimate result is only the Court's satisfaction of the inadequacy of provision. 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".
In other words, it is the union of inadequacy of provision, relevantly to this case, made by the Will of the deceased, and the Court's determination that an order for provision out of the estate of the deceased ought to be made, that gives rise to an applicant's success.
Other than by reference to the provision made by the Will in relation to the estate of the deceased, s 59(1)(c) leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision actually made by the Will, on the one hand, and to the requirement for maintenance, education or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant.
Importantly, in s 59(1)(c) of the Act, there no longer appears to be any sanction to consider the provision made by the deceased during his, or her, lifetime for the applicant (see s 9(2) of the former Act).
In Grey v Harrison [1997] 2 VR 359 at 366-367, Callaway JA observed: "There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."
Basten JA, in Foley v Ellis [2008] NSWCA 288 at [3], commented that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254 at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J has described it as "an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific": Szypica v O'Beirne [2013] NSWSC 297 at [40], citing Manuel v Lane [2013] NSWCA 61 at [9].
Under s 59(1)(c), the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the Court is considering the application.
"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89, at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".
In In the Estate of Puckridge, Deceased (1978) 20 SASR 72 at 77, King CJ said: "The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an early period of life in the members of the family: Blore v Lang, per Dixon CJ at p. 128." [Footnotes omitted]
In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 at 505, Murphy J wrote: "Provision for advancement may, for example, extend to retraining or the gaining of a qualification which could advance and perhaps enable an applicant to maintain himself or herself."
In Mayfield v Lloyd-Williams [2004] NSWSC 419 at [114], White J noted: "In the context of the Act the expression 'advancement in life' is not confined to an advancement of an applicant in his or her younger years. It is a phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase 'advancement in life' has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the 'maintenance and support' of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support."
In Bartlett v Coomber [2008] NSWCA 100 at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)."
In McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 575, Dixon CJ and Williams J stated: "The presence of the words 'advancement in life' in the... Act in addition to the words 'maintenance and education' is not unimportant... 'Advancement' is a word of wide import."
The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton in "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5 Australian Journal of Legal History 5 at 10, as reached upon "a purely economic and objective basis", whereas "proper" prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 at [72] and [77] (Buss JA), which seems to invite more subjective criteria.
These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 476: "The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."
Their Lordships went on to state, at 478: "The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the Court were concerned merely with adequacy. But the Court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration."
Dixon CJ and Williams J, in McCosker v McCosker at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that: "It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."
In Goodman v Windeyer, Gibbs J wrote, at 502: "[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."
In Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at [114], Callinan and Heydon JJ wrote: "[T]he use of the word 'proper'… implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here… The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."
Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), that "adequate" and "proper" are independent concepts. He wrote, at [12]: "'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied."
In Palagiano v Mankarios [2011] NSWSC 61 at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life involve value judgments on which minds can legitimately differ", and "[t]here are no definite criteria by which the question can be answered."
His Honour added, in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253, at [123]: "The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case including 'the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty': Singer v Berghouse (1994) 181 CLR 201 at 210."
Whether an applicant has a "need" or "needs" is also a relevant factor at the first stage of the enquiry: see s 60(2)(d) of the Act. It is an elusive and an elastic concept to define, but it is an element in determining whether "adequate" provision has been made for the "proper" maintenance, education and advancement in life of the applicant in all of the circumstances. The concept involves economic considerations.
In Collins v McGain [2003] NSWCA 190, at [42] and [47], Tobias JA, with whom Beazley and Hodgson JJA agreed, said: "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. ... As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is 'proper maintenance etc' of the eligible person. It is because of that context that, in the present case, the 'proper maintenance etc' of the appellant required consideration of a need to guard against the contingency to which I have referred."
In Devereaux-Warnes v Hall (No 3) at [81], Buss JA wrote: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227. … Although the existence or absence of "needs" which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6 - 11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]. Often "need", in the sense of the claimant's inability to satisfy his or her financial requirements from his or her own resources, and a "moral claim", in the sense of a claim arising from the totality of the relationship between the claimant and the deceased (for example, sacrifices made or services given by the claimant to or for the benefit of the deceased or contributions by the claimant to building up the deceased's estate) and contemporary accepted community standards, will co-exist. Sometimes there may be a strong "moral claim" but no "need". Sometimes the "moral claim" may be slight but the "need" dire. Whether the court should intervene or not will depend on all the circumstances of the case; in particular, whether the value judgment made upon an examination of those circumstances is that the claimant has been left without "adequate" provision for his or her "proper" maintenance etc. See Re Sinnott [1948] VicLawRp 48; [1948] VLR 279 per Fullagar J at 281."
"Need", of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45] (Dodds-Streeton J). It is different from "want" and does not simply mean "demand" or "desire". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 at [54]: "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'."
In Boettcher v Driscoll [2014] SASC 86; (2014) 119 SASR 523 at [41], David J at added: "'Need' is not so synonymous with 'want' such that the two are interchangeable."
As Callinan and Heydon JJ emphasised in Vigolo v Bostin, at [122], the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined.
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 v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 227 (Gaudron J). Compare Gorton v Parks (1989) 17 NSWLR 1 at 6-11 (Bryson J); Collicoat v McMillan at 816 [38], 820 [47] (Ormiston J).
Yet, in referring to the concept of "need", it should also be noted that the statutory formula makes no reference to "need", but rather to "adequate provision for the proper maintenance, education or advancement in life". No doubt, this has prompted White J to write, in Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 at [147], that "the need a claimant must demonstrate is a need for 'proper' maintenance, education and advancement in life", but that does not mean that "adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others". Respectfully, I agree. Consideration of "needs" must be in the context of the statutory formulation.
In the event that the Court is satisfied that the power to make an order is enlivened, 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.
This part of the determination 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 this 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.
Section 60 of the Act, at least in part, is new. It provides: "(1)The court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the 'applicant') is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person-the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 at [37], as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order. The inclusion of the last sub-section extends to any fact or circumstance which, in the opinion of the court, is considered relevant. Like some of the other sub-sections, a matter to which regard may be had, may have occurred before, or after, the death of the deceased.
The sub-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. As stated earlier, there is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.
The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.
A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).
Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently.
Section 65(1) of the Act requires the family provision order to specify: 1. the person or persons for whom provision is to be made, and 2. the amount and nature of the provision, and 3. the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and 4. any conditions, restrictions or limitations imposed by the Court.
The order for provision may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the Court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).
Unless the Court orders otherwise, any family provision order under the Act takes effect as if it were a codicil to the will (s 72(1) of the Act).
Section 66 of the Act sets out the consequential and ancillary orders that may be made.
Section 99(1) of the Act provides that the Court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the Court thinks fit. The section, whilst providing a general power as to costs, does not apply to costs as between party and party, as opposed to costs to be paid out of the estate: Chapple v Wilcox [2014] NSWCA 392 at [25]-[26].

[15]

Other Applicable Legal Principles - Substantive Application

Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst some of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act.
Bryson J noted in Gorton v Parks at 6, that it is not appropriate to endeavour to achieve "an overall fair" disposition of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants. The Court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act to correct the hurt feelings, or sense of wrong, felt by an applicant. Rather, the Court's role is of a specific type and goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance, education and advancement in life of an applicant.
The Court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63].
In Stott v Cook (1960) 33 ALJR 447 at 453-4, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged."
Of the freedom, in Grey v Harrison, Callaway JA said, at 366: "... [I]t is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent."
In Vigolo v Bostin, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained: "It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification".
In Goodsell v Wellington [2011] NSWSC 1232 at [108], I also noted that: "Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated."
As Pembroke J said, in Wilcox v Wilcox [2012] NSWSC 1138 at [23]: "The court does not simply ride roughshod over the testator's intentions… The court's power to make an award is limited. The purpose of the discretionary power under Section 59(1) is to redress circumstances where 'adequate provision' has not been made for the 'proper maintenance, education or advancement in life' of the claimant. The adjectives 'adequate' and 'proper' are words of circumspection."
White J referred to these principles in Slack v Rogan; Palffy v Rogan, at [127]: "In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and (2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will."
Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.
As Allsop P said in Andrew v Andrew, at [16]: "If I may respectfully paraphrase Sheller JA [in Permanent Trustee Co Limited v Fraser (1995) 36 NSWLR 24 at 46F-47B], the Court in assessing the matter at s 59(1) and the order that should be made under s 59(1) and (2), should be guided and assisted by considering what provision, in accordance with prevailing community standards of what is right and appropriate, ought to be made. This, Sheller JA said ... involved speaking for the feeling and judgment of fair and reasonable members of the community. It is to be emphasised that s 59(1)(c) and s 59(2) refer to the time when the Court is considering [an application for a family provision order] and the facts then known to the Court. The evaluative assessment is to be undertaken assuming full knowledge and appreciation of all the circumstances of the case. This ... makes the notion of compliance by the testator with a moral duty (on what he or she knew) apt to distract from the statutory task of the Court."
How those community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew, at [36] (Basten JA). His Honour added, in Phillips v James [2014] NSWCA 4 at [113]: "As discussed by Allsop P in Andrew v Andrew [2012] NSWCA 308; 81 NSWLR 656 at [16], one can say little more as to the standards and values to be applied than that the court should be guided by its perception of 'prevailing community standards of what is right and appropriate'. Views will undoubtedly vary within the community as to the weight to be given to a testator's wishes as expressed in the will: Andrew v Andrew at [35]."
Thus, "there are difficulties for the courts in making their own unaided assessment of current community attitudes in a complex and changing social environment": Williams v Aucutt [2000] 2 NZLR 479 at [44]. As Emmett JA wrote in Burke v Burke [2015] NSWCA 195 at [124]: "While community expectations and the feelings and judgment of the fair and reasonable man in the community are to be adopted as criteria, it is never self-evident what the community would expect or what its standards are or values would be. The expectations of individual members of the community may well vary widely… Indeed, it may be that individual members of the community would take the view that, apart perhaps from spouses, minors or disabled children, there should be no restraint on testamentary freedom. The Succession Act itself, in s 60(2), lays down criteria in very broad terms, leaving a very wide discretion for the Court."
In Chapple v Wilcox, at [13]-[14], Basten JA, after referring to what Allsop P had said in Andrew v Andrew, added: "One way of considering the present matter is to inquire what social, domestic or moral obligation the deceased had to provide for the claimant whilst still alive… There may be circumstances in which widely held community standards might expect a grandfather to make some provision for his grandchildren, for example where they had maintained a strong relationship and where there was reason to doubt the willingness or the ability of the parents to make adequate provision for their children. However, such considerations will always be influenced by the fact that the grandchildren are themselves mature adults. In the present case, relevant community values will be affected by the nature of the estate. Quite particular values might operate with respect to farming properties which are subject to fluctuations in relation to debt and revenue depending on natural events and particularly drought. They may also be affected by the financial viability of an estate and its capacity to support those owning or managing it, if broken up and part disposed of."
Barrett JA, at [64], wrote: "What Allsop P called 'the feeling and judgment of fair and reasonable members of the community' falls to be ascertained according to the circumstances of the particular case. Matters to be taken into account in making the relevant assessment are the applicant's financial position, the size and nature of the deceased's estate, the relationships between the applicant and the deceased and other persons who have legitimate claims upon his or her bounty and the circumstances and needs of those other persons: see Verzar v Verzar [2014] NSWCA 45 at [39]; Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 757 at [70]; McCosker v McCosker [1957] HCA 82; 97 CLR 566 at 571-572; Singer v Berghouse (above) at 210; Vigolo v Bostin (above) at [16], [75], [112]."
In Henry v Hancock [2016] NSWSC 71 at [69], Brereton J wrote, summarising these authorities: "Formerly, the yardstick which was applied was that of the wise and just testator. Nowadays, it is fashionable to couch it in terms of "community standards", although I am not at all sure that this is any different from the moral obligation of a wise and just testator and, as has not infrequently been pointed out, there is no ascertainable external community standard to guide the decision, which involves a broad evaluative judgment unconstrained by preconceptions and predispositions, and affording due respect to the judgment of a capable testator who appears to have duly considered the claims on his or her testamentary bounty - subject to the qualification that the court's determination is made having regard to the circumstances at the time of the hearing, rather than at the time of the testator's will or death."
In all cases under the Act, what is adequate and proper provision is necessarily fact specific.
All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singer v Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12 at [56]. Nor does it follow that, if the Court decides it is inappropriate to make a specific provision in respect of one identified head of claim, that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams at [89].
What was said in Edgar v Public Trustee for the Northern Territory [2011] NTSC 5 at [46], by Kelly J should also be remembered: "There is no onus on the... residuary beneficiary under the will to show that she is entitled to be treated as such - or to prove what may be necessary for her proper maintenance and support. Rather the onus is on the plaintiff to show that proper provision is not available for him under the terms of the will. In determining whether this is the case the Court must have regard to all relevant circumstances including the size of the estate and the nature of the competing claim by the [residuary beneficiary]. In performing this task the Court must have due regard to the will of the testator and should interfere only to the minimum extent necessary to make adequate provision for the proper maintenance, education and advancement in life of an applicant who has passed the first jurisdictional hurdle. As Dixon CJ said in the passage from Scales quoted above, due regard must be had to 'what the testator regarded as superior claims or preferable dispositions' as demonstrated by his will." (Footnotes omitted)
In Foley v Ellis, Sackville AJA, at [88] noted that Singer v Berghouse "strongly suggests that the Court cannot consider the adequacy (or inadequacy) and propriety of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act".
In relation to Michael's claim, being a claim by an adult child, the following principles are useful to remember: 1. The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support as the bonds of childhood are relaxed. 2. It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his or her child up in a position where she or he can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801 at [57]; Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond [2015] NSWCA 42 at [109]. 3. Generally, also, the community does not expect a parent to look after his or her 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]. 4. If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland, Deceased [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co of Australasia Ltd [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]. 5. 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; Hawkins v Prestage (1989) 1 WAR 37 at 45 (Nicholson J). 6. The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]-[182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17]. 7. The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd at 149.
A very similar statement of the principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275, at [111], was cited, with approval, in Chapple v Wilcox at [21] (Basten JA); at [65]-[67] (Barrett JA), and was referred to, with no apparent disapproval (although in that appeal there was no challenge the correctness of those principles), in Smith v Johnson [2015] NSWCA 297 at [62].

[16]

Qualifications on "Principles"

As I have stated in a number of cases (see, for example, Bowditch v NSW Trustee and Guardian), I do not intend what I have described as "principles" to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I identify them merely as providing useful guidance, which may be applied, with circumspection, in considering the statutory provisions, the terms of which must remain firmly in mind.
It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the bases for a family provision order have been established. Every case is different and must be decided on its own facts. As Lindsay J said in Verzar v Verzar [2012] at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."
The importance of the qualifications to which I have referred in the last two paragraphs have been stressed in Chapple v Wilcox by Basten JA, at [18]-[20], and by Barrett JA, at [66]-[67]. They must be remembered.

[17]

Pension Entitlement

Michael currently receives, and it appears, has received for some years when not incarcerated, a disability support pension. No submissions were made by senior counsel for the Plaintiff on the relevance of Michael receiving the pension and what effect, if any, that would have on the Court's determination.
(During submissions, junior counsel for Michael handed up, without objection, as an aide memoire, a document which outlined how that pension might be affected by an order for additional provision. It appears from this document that the value of any real estate, apart from the pensioner's principal home, is included in the assets test; that the asset test limit for a single person with a home, is $202,000; and that for a single homeowner, the total amount of assets must be less than $788,250. Based upon these estimates, it is possible that Michael's pension may be reduced but not extinguished: T 176.)
Regrettably, there was no evidence by the Plaintiff on this topic.
I dealt with the matter of a plaintiff's entitlement to a pension, in Kohari v Snow at [124] - [127]: "In Taylor v Farrugia Brereton J said, at [59]: "The Court's attitude to the eligibility for means tested pension benefits of eligible persons and beneficiaries varies depending on the circumstances of the case. Ordinarily, a testator makes a will and provides for those who have a claim on the testator without regard to the claimant's eligibility for a pension. However, in a small estate where there are competing claims, a testator, and this Court on an application under the Act, may take into account the eligibility of a claimant for a pension as a means of deciding how such limited benefits as are available from the estate should be shared between claimants, and how those benefits might be structured. But this qualification to the principle that the burden of support should be borne in the first instance by an estate rather than by social security arises mainly, if not exclusively in smaller estates [Parker v Public Trustee (1988) NSWSC, Young J, 31 May 1998; Whitmont v Lloyd (New South Wales Supreme Court, 31 July 1995, Bryson J, unreported); King v Foster (Court of Appeal, 7 December 1995, unreported) King v White [1992] 2 VR 417, 424; Shah v Perpetual Trustee Company [1981] 7 Fam LR 97 100; Gunawardena v Kanagaratnam Sri Kantha [2007] NSWSC 151; Chan v Tsui [2005] NSWSC 82]." An earlier authority, with which I respectfully also agree, is Thom v The Public Trustee (NSWSC, 2 April 1992, unreported), in which Master McLaughlin (as his Honour then was) said, at 10-11: "It seems to me that it would be totally unrealistic for the Court to approach the moral obligation of the deceased to make provision for the applicant by disregarding the fact that for a period of 20 years before the deceased's death, the applicant was in receipt of a pension from the State, and the fact that, to the extent of that pension, the deceased was relieved of the necessity to support the applicant from his own funds. That being so, I do not see how, upon the death of the deceased, the moral obligation upon the deceased to make provision for the applicant by will, could be approached without recognising the fact that the applicant would be entitled to continue to receive such a pension." Thus, the availability of a pension provided to an applicant ought not be regarded as a substitute for the obligation on the deceased to make adequate provision for him or her. Yet, it is not necessary to make an order that would operate primarily in relief of the taxpayer. In this case, it has been submitted that the availability of the pension, and associated social benefits, is a circumstance to which the Court should have regard particularly in circumstances where the Plaintiff may require care and treatment in the future. As was stated in Evans v Levy, at [55] by Young JA: "… there are, for most pensioners, side benefits of considerable value in merely having a part pension, such as the right which becomes more and more valuable as one gets older to have medical services provided at considerable concessional rates."
I referred to the principles again in Baird v Harris [2015] NSWSC 803 at [161], noting at [162], that they had also been followed by Robb J in Pang v Fong [2014] NSWSC 1425 at [150].
In this case, there are distinct advantages in Michael retaining the disability pension, including access to medical services at a subsidised cost.

[18]

Relevance of Michael's Criminal Conduct

In Hampson v Hampson at [95], Campbell JA also noted that "[h]aving engaged in illegal conduct is not a bar to a claim under the Act". In that case, the Plaintiff had been found to have a history of using and cultivating marijuana.
However, his Honour went on to say: "... However, illegal conduct by an applicant can sometimes bring consequences that are relevant circumstances, or be a part of a bigger picture that is a relevant circumstance. One example is Hastings v Hastings [2008] NSWSC 1310, where the applicant, a son of the relevant deceased, had been involved in serious crimes involving the importation and distribution of marijuana in America. His arrest on drug running charges received newspaper publicity in Australia, that reached the deceased's community. The fact that the deceased "felt she was shunned and was embarrassed by the publicity" ([38]) was an element of the relationship between the applicant and the deceased that could legitimately be taken into account. His conviction on another occasion resulted in not only a prison term, but also forfeiture of his assets. While the applicant had poor financial circumstances, that was largely due to his property having been forfeited. That was another relevant matter to take into account in deciding what was adequate provision for his proper maintenance and advancement in life. Another aspect of marijuana use that could in some circumstances be relevant to the jurisdictional question is the tendency of regular users to spend significant amounts of money in feeding their habit. A tendency on the part of an applicant to waste money on items that are either of no use or are positively damaging to himself can enter into what is adequate provision for proper maintenance of that applicant. To the extent to which it is still of use to refer in Family Provision Act legislation to the provision that a wise and just husband or father fully aware of all the relevant circumstances would have made … in my view marijuana use is a matter that the wise and just parent would be likely to take into account in deciding to make provision for a child, or in fixing on the type and amount of provision to make for a child. Thus, it can be taken into account by the court in deciding whether provision made for a child is inadequate for proper maintenance, education and advancement in life, and also in deciding what would be adequate for proper maintenance, education and advancement in life."
In West v France [2010] NSWSC 845 at 84, I said: "Neither does the fact of the Plaintiff's criminal history disentitle him to provision. As White J noted in Hastings v Hastings, at 40, "a criminal record is not as such a bar to a claim under the Act. A good example is Hoadley v Hoadley (Supreme Court of New South Wales, Young J, 17 February 1987, unreported). There, Young J (as his Honour then was) made an order for provision in favour of an adult child who had spent 20 years in prison, where his Honour considered there would be good prospects of rehabilitation which an order for provision would promote".
In Green v Perpetual Trustee Co Ltd (Supreme Court of New South Wales, Hodgson J, 10 July 1985, unrep), an order was made in favour of a Plaintiff who was a heroin user. The order was one that involved a protective trust to make sure that the plaintiff was benefited, yet did not spend his money on heroin. In McLean v Public Trustee [2001] NSWSC 970, a claim was made by a daughter with a gambling problem. An order was made for a legacy upon conditions as to its use. In Michael Bienke v Brian Bienke; Estate of the late Harold Bienke [2002] NSWSC 804, an order was made in favour of a grandson who had a chronic history of drug and alcohol abuse and a gambling problem.
In Wheatley v Wheatley [2006] NSWCA 262 at [21], Bryson JA wrote: "The interaction of Mr Wheatley's disabilities and personality with those of his late mother produced an outcome which none could applaud: yet, as family ties do, the relationship continued in a manner, as is shown by the continuing telephone contact: not quite as frequent as Mr Wheatley claimed at some points in his evidence, but it continued nonetheless. Conduct such as that of Mr Wheatley towards a parent could put an end to any hope of substantial provision in a small estate. However the estate of the testatrix is not small, Mr Wheatley's claim does not threaten the well-being of any other person, and the jurisdiction exists by reference to these (and other) matters in s 9(3), to infuse objectivity into succession decisions and to redress unduly great influences of antipathies where this is necessary to make the provision that ought to be made for maintenance or advancement of Mr Wheatley. With his medical history, style of life and anxiety disorder Mr Wheatley was not in a position to make a good discharge of filial duty: in their own way, his shortcomings enhance his claim."

[20]

Determination

As there is no dispute about eligibility and that the Summons was filed within the time prescribed by the Act, when the Court is considering the application, I must consider whether the provision that the deceased made for Michael is adequate provision for his proper maintenance, education or advancement in life. That involves not only an evaluation that takes the Court to the provision actually made in the deceased's Will on the one hand, and to the requirement for maintenance and advancement in life of the applicant on the other, but also to the totality of his relationship with the deceased, the age and capacities of the other beneficiaries, and the claim of each on the bounty of the deceased.
As the passage in the judgment of Callinan and Heydon JJ in Vigolo v Bostin, which I have quoted emphasises, the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum" or "by looking simply to the question whether the applicant has enough on which to survive or live comfortably". The inquiry is not confined only to the financial circumstances of the applicant. The whole of the context must be examined.
Even though the 2011 Will was made a few years before the death of the deceased, there is no reason to suggest that the deceased's testamentary intentions changed in those two years.
This is not a case where the deceased made no, or nominal, provision for Michael in her Will. She made substantial provision for him, being about 44 per cent of the distributable value of the estate (before costs) at the date of hearing. In describing the provision in this way, I have not forgotten that Michael was the deceased's only child, that there are no other eligible persons, and that the only beneficiary who has disclosed his financial and material circumstances, is Joseph. Whilst it is correct to say that he does not have an immediate need for accommodation, since he lives with Wahab, he has no property, of any significant value, of his own (at this time).
In any event, Michael must establish his claim upon its own merits. The competing claims of the three beneficiaries cannot have the effect of enhancing his claim. As stated, the Act provides that the Court cannot disregard each as a beneficiary and as a chosen object of the deceased's testamentary bounty.
I must also remember Michael's conduct towards the deceased, taking into account any medical condition from which he suffered and the strong sense of grievance that he held towards the deceased regarding her not telling him of his adoption. His conduct, whilst not disentitling him to provision, as the deceased, herself, recognised, certainly permitted her to form the view that it restrained its amplitude. She had, on occasions, perceived his conduct as conveying a real threat to her wellbeing and that it was sufficiently serious to seek apprehended violence orders. This type of conduct is not condoned by society, and cannot be condoned by the Court.
His other criminal conduct, even if not directly affecting the deceased, created what might be regarded as "normal disappointment and anguish of a mother at her son's wrongdoing" (Re Smith (Deceased) (1991) 8 FRNZ 459 at 463), or, as it was described in the 2011 Will, "angst".
Furthermore, Michael's denials in the proceedings that he had behaved badly towards the deceased, and his repeated assertions, both before and after her death, about her instability, when there is no other evidence to support such assertions, do him no credit.
I should not proceed upon the assumption that "the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in [her] will have only a prima facie effect, the real dispositive power being vested in the Court": Pontifical Society for the Propagation of the Faith v Scales, at 19. I am satisfied that the deceased gave careful, and thoughtful, consideration to the provision that Michael required, principally being a need for secure accommodation, and a capital amount that would provide an additional income. Without this proceeding having been commenced, those "needs" could have been satisfied by the provision made in the 2011 Will.
Subject to any costs order (about which I shall say nothing more at this time), since Michael is entitled to receive the two units absolutely, there are several alternatives that, with appropriate advice, will be available to him in relation to the future. Objectively, one such alternative would provide security of accommodation (one of the units in which he may return to live) and a capital sum (the value of the unit in which he does not live) that will provide an income to supplement his disability pension, which, on current information, would not be, or would not substantially be, reduced. His "needs", when one takes into account these matters, diminish significantly.
Accordingly, Michael fails at the jurisdictional stage. That finding concludes the matter and must lead to the dismissal of his claim for a family provision order.
However, even if I were wrong in coming to that conclusion, I would not exercise my discretion to make an order in his, favour. Whatever was meant by Clause 11 of the deceased's Will, the objective facts stated in that Clause could not be seriously in dispute. Accordingly, the family relationship between Michael and the deceased is a key factor in the assessment of his claim (s 60(2)(a) of the Act), as are the obligations or responsibilities owed by her to him: s 60(2)(b). I have dealt with each of these particular matters in some detail earlier.
Whilst there may have been occasions when Michael provided some assistance to her, that assistance seems to have been intermittent, at best, once he reached adulthood. His negative conduct towards the deceased far outweighed his positive conduct towards her. Even if this conduct may be attributed to a substance disorder, that cannot be a justification of, let alone an excuse for, such conduct, which conduct consists of actual wrongdoing, involving both verbal and physical assaults, upon the deceased. The violence and anti-social behaviour spanned many years and the last event was not long before the deceased's death and after the 2011 Will was made.
This is not to say that an order should be withheld as punishment for bad conduct by the applicant towards the deceased. However, the conduct is relevant to whether an order for even greater provision than that made in the 2011 Will "ought" to be made. There is little room for the view that community standards and community expectations would require the making of additional provision for Michael out of the estate of the deceased.
Although there is evidence from Michael, that he had heard his parents say to him that he would inherit their entire estate, it is clear that over time, the view of the deceased changed. Her clearly stated intention, held from the time of the execution of the 2004 Will, was to benefit not only Michael, but also others who she specifically identified and who she regarded as legitimate claimants on her bounty. Her testamentary intentions and the freedom of testation cannot, and should not, be forgotten.
As stated, the deceased did consider her duty, as a parent towards her only child, to provide for his needs on her death, and by making the provision that she did, she did not allow the disharmony and disappointment that existed to blind her to the recognition of the continuation of that duty.
In any event, the role of the Court is "not to address wounded feelings or salve the pain of disappointed expectations": Heyward v Fisher (NSW Court of Appeal, 26 April 1985, unrep. per Kirby P), that Michael might feel.
I also note the provision made for Michael during the lifetime of the deceased. I have referred to his schooling. He, himself, gives evidence of his parents having bought him two cars by the age of 20. He admits that he would sometimes ask the deceased for money for petrol, food, clothes, and to pay for recreational activities, like movies, nightclubs and outings with friends. He does not suggest that she did not assist him financially when he asked.
I have tested my conclusions another way. Had no provision at all been made for Michael in the 2011 Will, bearing in mind all of the circumstances of the case, would he have been likely to receive provision out of the estate greater than that in the 2011 Will? In my view, the answer to this question is in the negative.
In all the circumstances, the Summons should be dismissed.
At this time, it is not possible to anticipate the economic consequences for the parties of the Probate proceeding and the family provision proceeding, other than to note that the quantum of the estate will be diminished as a result of the cost order made in the Probate proceeding and the quantum of the entitlement of one, or more, of the beneficiaries is likely to also be reduced whatever costs order is made.
In view of the request of all parties that the question of costs of the family provision proceedings be determined following these reasons being published, I order that any argument as to costs of the proceedings and how those costs are to be borne, be listed on a date to be arranged when these reasons are published.

Hinderry v Hinderry

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Cases Cited (83)