Jagoe v Maguire

The Claim 1HIS HONOUR: The Plaintiff, John Bernard Jagoe, who is the widower of Barbara Jagoe ("the deceased"), applies for a family provision order under Chapter 3 of the NSW Succession Act 2006 ("the Act"). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the court, under Chapter 3, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person. 2The Plaintiff commenced the proceedings by Summons filed on 29 February 2012, that is, within the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased). The Defendants named in the Summons are Warwick Jeffrey Maguire and Rory MacGregor Maguire, the executors appointed in the deceased's Will, to whom Probate was granted. They are two of the four children of the deceased. 3There is no question, in the present case, of any provision being sought out of notional estate of the deceased. 4Throughout the balance of these reasons, I shall refer to the parties and other family members, where necessary, after introduction, by his, or her, first name, or if otherwise necessary, as a party. This is for convenience and I hope that it will not be thought discourteous.

Background Facts 5I shall begin by setting out some background facts that are uncontroversial. 6The deceased died on 2 March 2011. She was then aged 73 years, having been born in December 1937. 7The deceased married her first husband, Ronald Jeffrey Maguire, in about 1959. He predeceased her, having died in April 1986. There were four children of their marriage, being Rory, who was born in November 1961, Catherine Mary Maguire who was born in June 1963, Warwick, who was born in June 1966, and Charmaine Ann Maguire, who was born in July 1976. 8John was previously married, also, to Margaret Anne Jagoe. That marriage ended with their separation in 1978, and their subsequent divorce in January 1980. There were three children of this marriage, each of whom is an adult, and none of whom is financially dependent upon him. (He also has a daughter by another relationship but he has had no contact with her for some years.) 9The deceased and John had known each other for about two years, prior to forming a relationship. They commenced to reside together in about May 1986, when John moved into the property known as "Rosedale", Kurrajong Hills, in New South Wales. They married in September 1987. Therefore, at the date of the deceased's death, they were married for almost 24 years and had been in a relationship for about 25 years. 10The deceased left a duly executed Will that she made on 20 May 2005, Probate, in common form, of which was granted by the Supreme Court of New South Wales, on 26 October 2011, to the Defendants. (The Will appears to have been prepared by a solicitor at Windsor.) 11The deceased's Will, relevantly, provided for a gift of the whole of the deceased's estate to "such of my children as shall survive me". John was not mentioned in the Will. No explanation was given, in the Will, or otherwise in writing, for the fact that no provision had been made for him. 12In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased's actual estate, at the date of death, was disclosed as having an estimated, or known, gross value of $1,320,864. The estate was said to consist of the property, "Rosedale" ($1,100,000), shares ($23,495), investments ($15,000), moneys on deposit in funds management ($107,341), moneys on deposit ($40,027) and household contents ($25,000). (I have omitted, and shall continue to omit any reference to cents, which explains what may appear to be mathematical errors.) 13Also disclosed as actual estate, although there was, until the hearing, a dispute about it, was a Datsun car ($10,000), which although unregistered at the date of death, was last registered, in January 2007 in the names of the deceased and John. 14Despite its modest value, the Defendants, until the second day of the hearing, maintained that the car formed part of the estate of the deceased and did not pass to John by survivorship. However, at the commencement of the second day, the Defendants accepted that the Plaintiff should receive the Datsun vehicle. (The Plaintiff estimated its value at between $10,000 and $16,000, although it has not been in his possession for some time, and other evidence is to the effect that it has suffered some damage during storage. On this aspect, I consider that the Defendants' estimate of current value should be accepted because it has been in their possession and because they would be aware of its current condition.) 15The Inventory of Property also referred as "property owned by deceased as joint tenant with another or others", money in a bank account in the names of the deceased and John ($9,753). However, by the date of hearing, it appears that John had received all of the proceeds of this joint bank account. 16The Defendants, at the date of the hearing, estimated the gross value of the deceased's actual estate, available for distribution, at the date of hearing, as $1,390,687. The estate was said to consist of "Rosedale" ($1,200,000), moneys held in the trust account of the Defendants' solicitors ($5,582), investment funds ($113,687), moneys in a bank account ($923), shares ($23,495), an amount invested in Halifax Investment Services ($15,000), household contents ($25,000) and the car ($6,000 - $8,000). However, as the car was to pass to John, the total value was reduced to $1,383,687. 17In an affidavit sworn on 31 July 2013, Rory also disclosed that various items of furniture had been distributed to one, or other, of the deceased's children. He described the items distributed to be of "nominal value". There is no issue about the distribution. 18Rory also gave evidence that $23,822 had been paid out of the deceased's estate in relation to these proceedings and that "various other estate expenses...including a town planner, a surveyor for the subdivision and Hawkesbury City council rates, amounting to $20,451" had also been paid. 19At the commencement of the hearing, there was a real dispute about the current value of "Rosedale". Evidence read by John, revealed that Hawkesbury City Council had approved a Development Application, made by the Defendants, for the subdivision of "Rosedale" into three lots. Lot 1 was to contain the current improvements, being a single level three bedroom dwelling with kitchen, family room, dining room, rumpus room, one bathroom, and walk-in-robe to main bedroom. The estimated area of Lot 1 was 3.52 hectares. Each of Lots 2 and 3, which was estimated to be 4 hectares in area, was disclosed to be vacant land. (The total area of "Rosedale" is shown as 11.52 hectares.) 20According to a valuation, obtained by John's solicitors, and served on the Defendants' solicitors, the value of "Rosedale" had been considerably enhanced by the proposed subdivision. That valuation, dated 14 February 2013, by Lloyd's Property Valuations Pty Ltd, estimated the gross sale value of the three Lots, on completion of the subdivision, would be $1,824,000. There were some costs and disbursements identified including legal and selling costs ($88,700), survey and DA costs ($100,000) holding costs ($8,806), and "profit and risk" ($226,343). 21There were other costs identified (purchase costs, interest, stamp duty and legal costs), that totalled $161,079, which, it was accepted, should not be deducted from the gross estimate of value. It followed that the net proceeds of sale, if the subdivision proceeded, would be about $1,403,000. 22Without subdivision approval, the value of "Rosedale" was estimated to be $1,215,000. 23On the second day of the hearing, the Defendants, without objection, tendered an "External Abridged Valuation Report" dated 30 July 2013, which referred to the subdivision approval and stated: "We have considered the end sale value of these Lots and then deducted the relevant costs which include selling costs, legal costs, profit and risk factor, survey costs, holding costs and all other relevant costs". On this basis we have determined a residual value of the property of $1,200,000." 24As there will be a difficulty in calculating the precise value of the estate because of the uncertainty that exists in relation to the value of "Rosedale", and because the costs of these proceedings have only been estimated, and no order for costs has yet been made, the parties agreed that in the event that John succeeds, rather than ordering the provision to be made by payment of a lump sum, the Court should make an order calculated as a percentage of the estate, after the deduction of the costs and disbursements of sale of "Rosedale" and the payment of legal costs and disbursements of the proceedings ordered to be paid. That seems to be an appropriate course to follow in all the circumstances of the case. 25This agreement was reached because it became clear, during the course of the hearing, that there was insufficient in the estate to enable the costs and expenses of proceeding with the subdivision, and that "Rosedale" will be placed on the market for sale immediately, with subdivision approval having been granted. 26Counsel also informed the Court that the children of the deceased had agreed that the burden of the provision, if any, made for John, would be borne by them equally. (Of course, whilst that agreement does not bind the Court, it should be borne in mind.) 27There were no liabilities disclosed in the Inventory of Property. John paid the funeral expenses ($4,076) in March 2011 out of the joint bank account that he held with the deceased. However, the parties agreed that the costs and expenses of sale of "Rosedale" should be estimated to be $50,000. 28In calculating the value of the estate, finally available for distribution, the costs of the present proceedings should also be considered, since the Plaintiff, if successful, normally, will be entitled to an order that his costs, calculated on the ordinary basis, be paid out of the estate of the deceased, whilst the Defendants, irrespective of the outcome of the proceedings, normally, will be entitled to an order that their costs, calculated on the indemnity basis, be paid out of the estate. 29The Plaintiff's costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis, have been estimated to be in the order of $84,171 (inclusive of GST and upon the basis of a two day hearing). Those costs and disbursements, calculated on the ordinary basis, are said to be $64,747. 30The Plaintiff's solicitor, Mr K W Fegebank, also disclosed in the costs affidavit, that $12,980 has been paid by the Plaintiff on account of disbursements. Should an order be made that the Plaintiff's costs are to be paid out of the estate, that amount, or at least some of it, may be recovered. 31The Defendants' costs and disbursements of the present proceedings, including counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a two day hearing), have been estimated to be $58,400. The Defendants' solicitor, Mr C G Bryett, also disclosed in the costs affidavit (filed on the morning of the second day of the hearing), that $23,124 has been paid, on account of disbursements, out of the estate of the deceased. The balance payable out of the estate if a costs order is made that the Defendants' costs be paid out of the estate, is $35,275. 32Of course, depending upon the result of John's claim, and any order made as to costs, the costs and disbursements, if payable out of the estate, will be able to be formally assessed, unless otherwise agreed by the parties. It follows that the amounts referred to are estimates only. 33(During submissions, I was requested by the parties to reserve, for further argument, the question of the costs of the proceedings. I was informed that there may be matters, not presently disclosed to the Court, that would impact upon both the issue of the burden, and the quantum, of costs. In the circumstances, I propose to determine costs after the parties have had an opportunity to consider these reasons, raise any additional relevant factual matters and make some submissions.) 34Although the Defendants had asserted that they would claim executors' commission, or percentage, for their pains and trouble, there was no evidence of what the amount of commission, or the percentage, that could be regarded as just and reasonable, if the Court allowed it. Again, on the second day of the hearing, the Defendants' counsel indicated that no claim for commission, or percentage, would be made. 35The parties accepted that for the purposes of the hearing, I should determine John's application upon the basis that the actual net distributable estate, after the payment of such costs as are ordered to be paid out of the estate, will be between $1,233,664 (if the sale price of "Rosedale" was $1,200,000) and $1,433,664, (if the sale price of "Rosedale" was $1,400,000). (In the calculations to reach these estimates, costs were deducted.) 36The Defendants did not file any Cross-Claim seeking possession of "Rosedale". There seemed to have been some suggestion, in the evidence by Rory, that Charmaine had been requested to vacate possession of "Rosedale" but that she had not done so and was not prepared to do so. 37However, Charmaine appeared again on the second day of the hearing and in answer to questions from the Bench stated that she did not wish to prevent, or hinder, the sale of "Rosedale", but that for financial reasons, she was unable to vacate. 38Ultimately, after some further discussion, the parties agreed that, in the event that $5,000 is made available to Charmaine, within 30 days, as an advance on her entitlement under the Will of the deceased, she will vacate possession of "Rosedale" by 31 December 2013. The Defendants appeared prepared to accept the assurance given by Charmaine that she would do so. 39The parties, and Charmaine, accepted that the agreement referred to in the last paragraph would not prevent the Defendants from immediately taking steps to have "Rosedale" listed for sale. 40The persons described as eligible persons, within the meaning of the Act, are the parties, Catherine and Charmaine. It is also possible that the four minor children of Charmaine are eligible as grandchildren of the deceased who were partly dependent upon the deceased. However, the Defendants deny that each is an eligible person. In any event, there is no specific evidence of the dependency, either whole or partial, by any grandchild upon the deceased. Accordingly, I am unable to conclude that the grandchildren are eligible persons. 41Only the Plaintiff has commenced proceedings under the Act. The Act (as will be seen) provides that in determining an application for a family provision order, the Court may disregard the interests of any other person by, or in respect of whom an application for a family provision order may be made (other than a beneficiary of the deceased person's estate), but who has not made an application. 42In this case, each of the other eligible persons is a beneficiary and has given evidence in the proceedings about his, and her, competing claim, financial and otherwise upon the bounty of the deceased. 43Finally, I should mention that John made a Will on 20 May 2005 (the same date as the deceased made her Will and with the same solicitor), in which he appointed his daughter, Peta Marie Kingham, and his son-in-law Ian Kingham, as executors. He provided for the executors to invest the whole of his estate on trust to pay all just debts, funeral and testamentary expenses and then to pay the income therefrom, for the deceased for her life, and upon her death, to be divided equally between his three named children. 44There is no evidence that John's Will was revoked at any time before the deceased's death. The terms of this Will, in making provision for the deceased, seems inconsistent with the agreement alleged by the Defendants, that the whole of John's estate was to be left to his children.

Some other background facts 45At the commencement of the marriage, the deceased did not own "Rosedale". It was held in a family trust (The Maguire Family Settlement). However, in about 1991, in circumstances that are not disclosed in evidence, it was distributed to the deceased and, from that time, was registered in her sole name absolutely. 46At the commencement of the marriage, John owned several parcels of land in Cranebrook, New South Wales. During the marriage, he sold these parcels of land and purchased, in about 1992, two parcels of land situated at Gates Avenue, Katoomba, each of which was, initially, registered in his, and the deceased's, names, as joint tenants, but subsequently, in April 2005, came to be held by them as tenants in common in equal shares. 47There is no suggestion that the deceased made any financial contribution to the properties purchased in their joint names. (It appears to be acknowledged that the proceeds of sale of John's land at Cranebrook were used to purchase the Katoomba land.) I shall return to the transfer of the Katoomba properties and the distribution of the proceeds of sale later in these reasons. 48To enable the Cranebrook land to be subdivided prior to its sale, the deceased lent John an amount of either $30,000 or $50,000 (depending upon the evidence that I accept). John gave the deceased a mortgage, dated 29 May 1990, securing the amount of $50,000. The mortgage was registered on title to the Cranebrook property. 49John acknowledged that he did not repay the amount borrowed to the deceased and she, apparently, did not seek its repayment.

Introduction 50First, I shall discuss the statutory scheme that is relevant to the facts of these proceedings. Although I have set out some of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in their application. 51The wording of the Act is similar to the wording of the former Act. However, it is necessary to remember the warning of Kirby P in Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100, at 76,304: "Purposive construction of the Act There is always a danger where a reformed Act borrows heavily upon ideas which previously existed in the common law or in an earlier statute, that lawyers will approach the construction of the Act affected by the previous law. Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 2 NSWLR 475, 478. That danger is but an illustration, in the specialised activity of law, of a universal phenomenon of psychology long established in relation to human perception generally. We tend to perceive what we expect. We expect that with which we are familiar. There is a particular danger in the case of the Family Provision Act in construing its terms by reference to the law which developed around the Testators' Family Maintenance and Guardianship of Infants Act 1916. That Act was passed in earlier times to govern the entitlements of a testator's family, as narrowly defined. The definition by s 3(1) of that Act confined applications to those made by "the widow, husband or children of such persons". There was no mention in it of former spouses. Doubtless this was because, for the early part of this century, divorce was relatively infrequent and then based upon concepts of matrimonial fault which would make interference in the testamentary disposition of the deceased unlikely. When enacted, the statute was a radical interference in the power of testamentary disposition. That was a significant power over private property, the disturbance of which was regarded as highly exceptional." 52Whilst the relevant amendments made by the Act are not as significant to those made by the former Act, it remains necessary to bear his Honour's warning in mind in construing the statutory framework. In doing so, a construction that promotes the purpose, or object, of the Act is to be preferred to a construction that would not promote that purpose or object. In my view, the principles applied by the Courts to the former Act continue to apply, except to the extent that the Act otherwise requires. 53As stated, the former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008. A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. 54Importantly, this should not be taken to mean that the Act confers upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, Will. The Court is given a statutory power that may be exercised only for the purpose for which it was granted. Thus, it is only if the statutory conditions are satisfied, that the Court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate, to produce a result that is consistent with the purpose of the Act. Even then, the Court's power to do so is discretionary.

Eligibility 55The key provision is s 59 of the Act. The Court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). The Court has no power to make an order in favour of an applicant who is not an eligible person. In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made. One category is "(a) a person who was the ... husband of the deceased person at the time of the deceased person's death": s 57(1)(a). 56There is no dispute in this case that John is an eligible person.

Inadequacy of Provision 57Relevantly, in this case, if eligibility is found, the Court then determines whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is this mandatory legislative imperative that drives the ultimate result and it is only if the Court is satisfied of the inadequacy of provision made, that consideration is given to whether to make a family provision order (s 59(2)). Only then may "the Court ... make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made". 58Allsop P in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, commented, at [6]: "... the expression of the task in s 59 is subtly different from the previous legislation. A prohibition against making an order unless satisfied of circumstances of an evaluative character, is different in emphasis from a permission to make an order if satisfied of circumstances of an evaluative character... The exercise of power to make the order is conditioned on the Court being satisfied of certain things in s 59(1). The order that may be made is described in s 59(2). The two elements are described in s 60(1)(b) as "whether to make [an] ... order and the nature of any ... order." Section 60(2) provides a detailed body of considerations for the task in s 59." 59Basten JA, at [26], put the differences this way: "As appears from the language of the relevant provisions set out at [66]-[67] below, the Succession Act differs from the Family Provision Act in three significant respects. First, although both conferred similar powers on the Court, the conditions of their exercise differ. The Family Provision Act required that the Court "shall not make an order ... unless it is satisfied that" the provision made by the testator is "inadequate": s 9(2). The Succession Act provides that the Court "may ... make a family provision order ... if the Court is satisfied that" the testator has not made "adequate provision" for the applicant: s 59(1). The changes in language may have been intended to remove double negatives, but there is a resultant change in emphasis. The apparent effect is to widen the discretion vested in the court. That which could satisfy a court that the provision made is "not adequate", for the purposes of the Succession Act, might not have been sufficient to remove the prohibition under the Family Provision Act, which operated in the absence of affirmative satisfaction that the provision was "inadequate". There may well be no bright line boundary between adequacy and inadequacy." 60Barrett JA, at [82] -[86] said: "The court's task under the new legislation is in substance the same as that under the old. Three differences relevant to the kind of case under discussion may, however, be noted (I leave to one side as irrelevant to such cases the extension of the s 60(2) criteria to the question of "eligible person" status); and two postulated differences may be rejected. First, the Succession Act provisions direct attention, upon the initial inquiry into adequacy, to provision made by the deceased's will and the intestacy laws. The former legislation referred merely to provision "out of the estate" but it was clear that the operation of the intestacy laws was to be taken into account in deciding what provision was available "out of the estate": see, for example, Smilek v Public Trustee [2008] NSWCA 190. Second, the Succession Act provisions confine attention, upon that initial inquiry, to provision made by the will and the intestacy laws. There is no reference to provision made during the deceased's lifetime. In this respect, there is a departure from the Family Provision Act approach under which provision made in favour of the eligible person "either during the person's lifetime or out of the person's estate" was to be examined upon the initial inquiry into adequacy. Attention may, however, still be given to provision made in favour of the applicant during the deceased's lifetime. That is now one of the factors to which regard may be had under s 60(1)(b) when the court is deciding whether to make a family provision order and the nature of the order: see s 60(2)(i). Under the Succession Act, therefore, provision made by the deceased while living thus has a continuing relevance with altered emphasis. Such provision is no longer something to be taken into account in deciding whether adequate provision has been made; but it may be taken into account in deciding whether an order should be made and the nature of the order. The third difference to be noted is the Succession Act's more comprehensive catalogue of matters that may be taken into account in formulating an order for provision. Section 9(3) of the Family Provision Act empowered the court to "take into consideration" matters there stated in "determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person". Section 60(1)(b) of the Succession Act allows the court to "have regard to" the matters set out in s 60(2) "for the purpose of determining ... whether to make a family provision order and the nature of any such order". The Succession Act lists a greater number of such matters than did the Family Provision Act." 61Other than by reference to the provision made in the Will of the deceased, or, if relevant, by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for the applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision actually made in the deceased's Will, or on intestacy, or both, on the one hand, and to the requirement for maintenance, education 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 or advancement in life of the applicant. 62In 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." 63Basten JA in Foley v Ellis [2008] NSWCA 288, at [3], wrote that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J commented that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J, in Szypica v O'Beirne [2013] NSWSC 297, at [40], 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". 64Under s 59(1)(c) of the Act, the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the Court is considering the application. 65"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 82, 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". 66Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement": "'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education." 67In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), at [18], stated: "'Proper maintenance' is not limited to the bare sustenance of a claimant [cf Gorton v Parkes (sic) [1989] 17 NSWLR 1], but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility." 68In J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, 7th ed, 2006), at 542, the learned authors comment upon the difference between the concepts of maintenance and advancement: "The essential difference between 'maintenance' and 'advancement' is that 'maintenance' denotes a periodical payment or a payment which could validly be made periodically, whereas 'advancement' denotes a definite unique outlay for a specific purpose. Recipients of maintenance must, practically speaking, be infants, but adults may be recipients of an advancement. An advancement can never be made of a sum of money which the person to whom it is made can immediately pocket, but it must be made with a view to the establishment of that person in a business or profession, or otherwise in some definite way for that person's benefit, the whole essence of an advancement being the immediate payment of a tolerably large sum for an immediate benefit to one beneficiary." 69In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77 King CJ said: "The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang (1960) 104 CLR 124, per Dixon CJ at 128." 70Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16: "Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541) In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274... In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said: 'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.' The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that: 'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'" 71In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J at [114] noted: "In the context of the Act the expression 'advancement in life' is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase 'advancement in life' has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the 'maintenance and support' of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support." 72In 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)." 73The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, whereas "proper" prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127, per Buss JA, at [72], [77]. 74These 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." 75Dixon CJ and Williams J, in McCosker v McCosker [1957] HCA 82; 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that: "It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent." 76In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Gibbs J said at 502: "[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards." 77In Vigolo v Bostin, at 228, Callinan and Heydon JJ said: "[T]he use of the word 'proper' ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future." 78Santow J pointed out in Gardiner v Gardiner (NSWSC, 28 May 1998, unreported), that "adequate" and "proper" are independent concepts. He said, at 12: "'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied ..." 79In Palaganio v Mankarios [2011] NSWSC 61, at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life involve value judgments on which minds can legitimately differ, and there are no definite criteria by which the question can be answered. 80His Honour added in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522, at [123]: "The question of what level of maintenance or advancement in life is "proper" depends on all of the circumstances of the case "including the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty" (Singer v Berghouse (1994) 181 CLR 201 at 210)." 81Until recently, it was unanimously thought that there are two stages of the determination. The first stage, provided for by s 59(1)(c), has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. The Court does this by determining whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased and/or by operation of the intestacy rules, for the applicant. If it is not so satisfied, then the Court is precluded from making a family provision order. At this stage, the Court has regard to, among other things, the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased and the circumstances and needs of the other beneficiaries or potential beneficiaries: see McCosker v McCosker at 571-572; Singer v Berghouse at 209-210; Vigolo v Bostin at [16], [75], [112]; Tobin v Ezekiel [2012] NSWCA 285, at [70]. 82Whether an applicant has a 'need' or 'needs' is also a relevant factor at the first stage of the enquiry. It is an elusive concept to define, yet, it is an element in determining whether "adequate" provision has been made for the "proper" maintenance, education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 (Tobias JA, with whom Beazley and Hodgson JJA agreed). 83In Collins v McGain, Tobias JA said: "42. Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies. ... 47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is "proper maintenance etc" of the eligible person. It is because of that context that, in the present case, the "proper maintenance etc" of the appellant required consideration of a need to guard against the contingency to which I have referred." 84In Devereaux-Warnes v Hall (No 3) at [81] - [84], Buss JA said, in respect of the first stage of the process: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227. 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11. The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575. Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]." 85"Need", of course, is a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]. 86As Callinan and Heydon JJ emphasised in Vigolo v Bostin, the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum" or "by looking simply to the question whether the applicant has enough on which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined. 87In the event that the Court is satisfied that the power to make an order is enlivened (i.e. in this case it is satisfied that the applicant is an eligible person, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), then, the Court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the Court at the time the order is made. 88The next stage of the process arises under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at 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. 89However, Basten JA, in Andrew v Andrew, said of the two stage process referred to: "29 The combination of changes requires that the court address the nature of the exercise being undertaken. Three potential consequences may be identified. First, there is a simplification of the structure of the process. There is no longer a two-stage process required. A degree of artificiality has thus been removed. The court should now ask what, taking all relevant factors into account, would have been adequate provision for the applicant. There is no first stage of determining whether the actual provision was "inadequate", followed by a discretionary exercise of determining what would be adequate and what should in fact be done. ... 41 As noted above, the language of the Succession Act is not consistent with the two-stage inquiry which was a common feature of earlier legislation: cf Singer v Berghouse at 208-209. In Keep v Bourke [2012] NSWCA 64 the Court appears to have assumed that the two-stage process continued to operate under the Succession Act: at [24]-[29]. However, the issue not having been directly addressed, there is no constraint on this Court now adopting a different approach. Nor does earlier High Court authority construing an earlier statutory scheme govern the approach to be adopted to materially different legislative provisions." 90In Andrew v Andrew, Allsop P, at [6], said: "Whether the process engaged in by the Court in s 59 can still be described as "two-staged" in the sense discussed in Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 208-211 may be an analytical question of little consequence. The task involves an evaluative assessment and a choice as to consequence therefrom, appeal from which is governed by the principles concerning discretionary judgments: Singer v Berghouse at 211 and DAO v R [2011] NSWCCA 63; 278 ALR 765 at [93]." 91Barrett JA disagreed with Basten JA, in Andrew v Andrew, saying: "65 This is the second occasion on which this Court has been called upon to deal with a claim under s 59 of the Succession Act. In the earlier case, Keep v Bourke [2012] NSWCA 64, the Court proceeded on the basis that approaches taken under s 7 of the now superseded Family Provision Act 1982 remained relevant and applicable. That matter was explored in greater detail in the course of argument in the present case. For reasons I am about to state, I am of the opinion that the earlier approaches should continue to be followed in cases such as the present case and Keep v Bourke, that is, cases in which the applicant is a child of the deceased and no previous order for provision out of the estate has been made in favour of that applicant. ... 79 First, it is necessary, having regard to s 59(1)(c), for the court to be satisfied that, at the time when it is considering the application, "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person". Whereas the former s 9(2) provided that an order was not to be made unless the court was "satisfied" in the specified way, the present legislation permits the court to make an order if "satisfied" in the specified way and, by necessary implication, precludes the making of an order if the court is not so "satisfied". 80 Second (and if the court is "satisfied" in the specified way), the "family provision order" that the court is empowered to make is, under s 59(2), "such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made"; and the court may, pursuant to s 60(1)(b), have regard to the matters specified in s 60(2) in deciding whether to make an order and the nature of the order. 81 Under s 59 and s 60, therefore, the task of the court, in a case of the kind under discussion, is: (a) to determine the extent of the provision made for the maintenance, education and advancement in life of the applicant by the deceased's will or the intestacy laws; (b) to form an opinion of the adequacy of that provision; (c) if the opinion is one of inadequacy, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased person for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the court at the time the order is made; and (d) in making that evaluative judgment, to take into account, as discretionary factors, the matters in s 60(2). ... 94 As stated in Keep v Bourke (above), the structure and effect of the Succession Act provisions warrant continuing adherence to the two-stage approach indicated by the decisions of the High Court in Singer v Berghouse and Vigolo v Bostin." 92In Franks v Franks [2013] NSWCA 60, Young AJA (with whom McColl JA and Sackville AJA agreed), at [17], referred to the primary Judge (Macready AsJ) having "cited the High Court's decision in Singer v Berghouse [supra] and adopted the two stage process required by that decision". 93His Honour noted also, at [29], that the appellant (in one of the two appeals) "accepted that it was appropriate for the primary judge to follow the course laid down in Singer v Berghouse and that [the respondent] had surmounted the first hurdle of the two stage process referred to therein. Accordingly, he identified the key question as whether the primary Judge had erred in determining the quantum of the provision made for ... in lieu of that made under the deceased's will". 94At [35], his Honour wrote: "On an appeal against a decision concerning the application of the second limb of Singer v Berghouse, the Court is dealing with a discretionary judgment (see Singer v Berghouse (at 211) and Durham v Durham [2011] NSWCA 62 at [82]; 80 NSWLR 335 (at 352)). It follows that his Honour's decision is reviewable by this Court only in accordance with the principles established in House v The King [1936] HCA 40; 55 CLR 499." 95Although the appeal was allowed, that was because the Court found, at [42], that: "... in formulating the quantum of the provision he made for Brad, the primary judge did not take into account the disparity in the financial circumstances between Gregory and Brad. Accordingly, the primary Judge's decision as to quantum must be set aside." 96Nothing in the Court of Appeal's judgment in Franks v Franks suggests that the approach followed by the trial Judge, in adopting the two-stage process required by Singer v Berghouse, was wrong. 97At first instance, there are a number of decisions to which reference should be made. In Verzar v Verzar [2012] NSWSC 1380, Lindsay J said: "92 I refrain from characterisation of these elements of the case as "stages" because that is terminology associated with the Family Provision Act 1982 (NSW) and Singer v Berghouse (1994) 181 CLR 201 at 208-211. Since Andrew v Andrew [2012] NSWCA 308 (14 June 2012) per Allsop P at [5]-[6] and Basten JA at [27], [29] and [41] a single judge of the Court is bound, in my assessment, to regard the two-stage decision-making process identified in Singer v Berghouse, and confirmed by Vigolo v Bostin (2005) 221 CLR 191, as superseded by enactment of ss 59-60 of the Succession Act. 93 Although the provisions of ss 59(1)(c) and 59(2) might formerly have been treated, respectively, as re-embodiments of the first and second of the two-stages of decision-making identified in Singer v Berghouse, the test to be applied in Family Provision cases must be taken by me to have been modified." 98Ball J, in Oldereid v Chan [2013] NSWSC 434, after referring to Andrew v Andrew, noted the different approaches being adopted by trial Judges. His Honour said: "52 More recent decisions at first instance have differed on whether the decision in Andrew v Andrew requires the court to apply a two stage process or not. Lindsay J in Verzar v Verzar [2012] NSWSC 1380 thought that a single judge of the court is bound "to regard the two-stage decision-making process identified in Singer v Berghouse ... as superseded by enactment of ss 59-60 of the Succession Act" (at [92]). Hallen J, on the other hand, has continued to apply the two stage test: see Goldsmith v Goldsmith [2012] NSWSC 1486 at [67]; Nowak v Beska [2013] NSWSC 166 at [113]. A third approach, adopted by Macready AsJ in Morgan v Bohm [2013] NSWSC 145 at [110], is to consider the case on both bases. There are, however, difficulties with that approach. If the two approaches involve real differences, then presumably there are cases where they will produce different results. What, then, is to be done applying both approaches? On the other hand, if the two approaches are bound to produce the same result, the dispute about which test should be applied has no significance. 53 In my opinion, there is clearly a tension between the decisions of the Court of Appeal in Keep v Bourke [2012] NSWCA 64 and Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 which only the Court of Appeal or High Court can resolve. In the meantime, the duty of a trial judge is to follow the later decision: see Ratcliffe v Watters (1969) 89 WN (NSW) Part 1 497 at 505 per Street J. In Andrew v Andrew, both Allsop P and Basten JA regarded the reformulation of the test in s 59 of the Succession Act as changing, perhaps only subtly, the threshold that must be satisfied before an order can be made. Basten JA regarded that change as also changing the way in which the court should approach the question. Allsop P regarded it as an analytical question of little consequence. However it is analysed, though, it is clear from the terms of s 59 that the court must ask itself the question whether it is satisfied that "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made". If it is so satisfied, it must consider whether to make an order and, if so, the terms of that order. In undertaking each of those steps, it may have regard to the matters set out in s 60. Whether those steps should be seen as separate stages that must be followed or as convenient steps in undertaking what is required by the legislation does not matter for present purposes." 99It appears that Ball J was not referred to Franks v Franks. 100It seems to me, with great respect to those who disagree, that the amendments introduced by the Act do not require, or justify, a different approach. That approach, adopted in the myriad of cases determined under the Act, including Keep v Bourke [2012] NSWCA 64 (in which Macfarlan JA (except as to amount of provision) and Tobias AJA agreed with Barrett JA), and now Franks v Franks (a unanimous decision of the Court of Appeal), requires a trial Judge to continue to follow the two stage approach in determining cases under the Act, until any uncertainty is resolved. Furthermore, as Ball J repeats, the questions remain the same, namely, whether the Court can make an order for provision (whether it is satisfied that "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made"), and if so, whether it should (whether to make an order and, if so, the terms of that order). As Allsop P said in Andrew v Andrew, at [6], "it may be an analytical question of little consequence". 101More recently, Ball J in Peters v Salmon [2013] NSWSC 953, at [80], has referred to these decisions and to my own decision in Harrisson v Skinner [2013] NSWSC 736 at [62]-[79] where I stated what is said in the last paragraph, and commented: "There is much to be said for that conclusion. However, whatever the position, as I pointed out in my judgment in Oldereid v Chan [2013] NSWSC 434 at [53] it seems clear from the terms of s 59 that the court must ask itself the question whether it is satisfied that "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made". If it is so satisfied, it must consider whether to make an order and, if so, the terms of that order. In undertaking each of those steps, it may have regard to the matters set out in s 60." 102Perhaps, the way to approach the matter is to simply refer to the Act containing "twin tasks": Goodman v Windeyer, per Gibbs J, at 502, being the jurisdictional question and the discretionary question, with one task overlapping, to some extent, with the other. 103Section 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." 104It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew at [37] as "a multifactorial list", and by Lindsay J in Verzar v Verzar at [123], as "a valuable prompt" to which the court may have regard, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order. 105White J in Slack v Rogan; Palffy v Rogan, at [121], commented that s 60 "lists a wide range of matters that the Court "may have regard to", but these do not provide any tangible assistance in answering the question in any particular case whether the provision made in a will was less than adequate for an eligible applicant's "proper" maintenance, education or advancement in life". 106The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of such of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender. 107It does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. For example, when considering eligibility under s 60(1)(a), many of the matters in s 60(2) will be largely, if not wholly, irrelevant. 108There is no definition in the Act of "financial resources" (which term is referred to in s 60(2)(d)). However, there is a definition of that term in s 3 of the Property (Relationships) Act 1984, which I consider helpful: "'financial resources' ... includes: (a) a prospective claim or entitlement in respect of a scheme, fund or arrangement under which superannuation, retirement or similar benefits are provided, (b) property which, pursuant to the provisions of a discretionary trust, may become vested in or used or applied in or towards the purposes of the parties ..., (c) property, the alienation or disposition of which is wholly or partly under the control of the parties to the relationship or either of them and which is lawfully capable of being used or applied by or on behalf of the parties to the relationship or either of them in or towards their or his or her own purposes, and (d) any other valuable benefit." 109In Neale v Neale [2013] NSWSC 983, in relation to the meaning of that term, I referred to White and Tulloch v White (1995) 19 Fam LR 696 and the statement made in that case that the "term [connotes] some degree of entitlement to, control over, or relative certainty of receipt of property". 110Of course, s 60(2)(d) refers also to "earning capacity", which means no more than the capacity to find employment to earn or derive income. 111A 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). 112Leaving 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. 113This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the first stage. Happily, I am not alone in reaching this conclusion which is supported by the following comments made in Singer v Berghouse, at 209-210: "... The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant." 114And by the comments of Callinan and Heydon JJ in Vigolo v Bostin, at 230-231: "We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors." 115As was also pointed out by Barrett JA, in Andrew v Andrew, at [88] - [89]: "... leaving aside its relevance to the "eligible person" inquiry, the s 60(2) catalogue is directed to the question of what, if any, order for provision should be made and is not, in terms, applied to the initial question of the adequacy of the provision made by the will or the intestacy laws. It can be said at once that the s 60(1)(b) directive corresponds with that in the former s 9(3) to the extent that it relates to the decision regarding provision to be made. There is no express legislative intention, under either piece of legislation, that the enumerated factors are to be taken into account in deciding the initial question of adequacy of provision. There is accordingly no reason to think that those factors are to be afforded any special relevance in approaching the adequacy question. But they will, at that point, be given, independently of s 60(1)(b), such weight as they deserve in their own right as indicators of the "adequacy" question. As the primary judge recognised at [57], this is consistent with what was said by the High Court in Singer v Berghouse in relation to the former Act." 116Section 65(1) of the Act requires the family provision order to specify: (a) the person or persons for whom provision is to be made, and (b) the amount and nature of the provision, and (c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and (d) any conditions, restrictions or limitations imposed by the Court. 117The order for provision may 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). 118Any family provision order under the Act will take effect, unless the Court otherwise orders, as if the provision was made in a codicil to the Will of the deceased, or in the case of intestacy, as in a Will of the deceased (s 72(1) of the Act). (As I have written, intestacy is irrelevant in these proceedings.) 119Section 66 of the Act sets out the consequential and ancillary orders that may be made. Sub-section (2) provides that the Court may make such additional orders as it considers necessary to adjust the interests of any person affected by a family provision order and to be just and equitable to all persons affected by the order. 120Section 99(1) of the Act provides that the Court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the Court thinks fit.

Other Applicable Legal Principles - Substantive Application 121Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. 122Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve "an overall fair" disposition of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants. The Court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act to correct the hurt feelings, or sense of wrong, felt by an applicant. Rather, the Court's role is of a specific type and goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance, education and advancement in life of an applicant. 123In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the Court to be vigilant in guarding "against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant". Freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the court": Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 19. 124In Stott v Cook (1960) 33 ALJR 447, Taylor J, although dissenting in his determination of the case, observed, at 453-4, that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged." 125Also, in Vigolo v Bostin, Gleeson CJ pointed out that the legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour stated, at [10], that it "preserved freedom of testamentary disposition, but subjected that freedom to a new qualification". Thus, testamentary freedom is not absolute. 126White 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." 127Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales, at 19; Walker v Walker (NSWSC, 17 May 1996, unreported); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. 128Gleeson CJ observed in Vigolo v Bostin, at 199, that the justification for interference with freedom of testation is to be found in the failure of a deceased to meet the obligations, which the community would expect in terms of maintenance, for those persons within the class of eligible persons. The process requires the Court to "connect the general but value-laden language of the statute to the community standards". 129How those community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew at [36]. 130As 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." 131In all cases under the Act, what is adequate and proper provision is necessarily fact specific. 132The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1910) 29 NZLR 959 at 966. 133Where the Court is satisfied that provision ought to be made, then it is no answer to a claim for provision under the Act that to make an order would be to defeat the intentions of the deceased identified in the Will. The Act requires, in such circumstances, the deceased's intention in the Will to be displaced: Kembrey v Cuskelly [2008] NSWSC 262, per White J, at [45]. 134All 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]. 135The size of the estate is a significant consideration in determining an application for provision. 136The following principles are relevant to the claim of the spouse of the deceased. Of course, some of these have been stated in the context of the applicant being a widow, rather than in a case of the widower, making the claim for a family provision order. Even so, I am satisfied that they should be taken into account in the case of a widower. As there should be no place for discrimination between spouses and their respective roles during the marriage, generally, subject to the existence of demonstrated inequalities between spouses (e.g. based upon what might, in the past, have been regarded as "traditional" roles, the age of the surviving spouse, or otherwise), there should be no discrimination in the obligation and responsibility owed to the surviving spouse on the death of the deceased. 137In Samsley v Barnes, Kirby P noted, at 15, that there was no different approach to widowers than to widows. In M A Bourke (dec'd) and the TFM Act [1968] 2 NSWLR 453, at 455, Street J considered that there was a high moral duty owed to a surviving husband. (a) As a broad general rule, and in the absence of special circumstances, the general duty of the deceased to his, or her, spouse, to the extent to which his, or her, assets permit him, or her to do so, is to ensure that she, or he, is secure in the matrimonial home, to ensure that she, or he, has an income sufficient to permit her, or him, to live in the style to which she, or he, is accustomed, and to provide her or him with a fund to enable her, or him, to meet any unforeseen contingencies. Generally speaking, the amount should be sufficient to free the spouse's mind from any reasonable fear of any insufficiency as she, or he, grows older and her, or his, health and strength fail (see: Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24). Concern as to the capacity of the spouse to maintain herself, or himself, independently, and autonomously, may also bear upon the notion of what is proper provision. However, what is have said above is not of immutable application: Marshall v Carruthers [2002] NSWCA 47; Clifford v Mayr [2010] NSWCA 6 at [142] - [144]. In Marshall v Carruthers, at [65], Hodgson JA stated that it was not clear that the statement made by Powell J would apply to applications by widowers, noting that the "difference in attitude that the Court may take to applications by widowers is due in part, I think, to economic disadvantages which women still face". (b) The three elements identified above are not necessarily mutually independent. The Court is not to approach the assessment of what is proper by attempting precisely to replicate the way of life that the deceased and her spouse planned to have had he, or she, survived. (c) There remains binding authority which gives greater weight to the claims of a party who has entered "a formal and binding commitment to mutual support": Marshall v Carruthers; Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308; Sellers v Scrivenger [2010] VSC 320 at [68]. In Magill v Magill [2006] HCA 51; (2006) 226 CLR 551, Gleeson CJ, at [24], said: "The structure of marriage and the family is intended to sustain responsibility and obligation." However, in Bladwell v Davis [2004] NSWCA 170, Bryson JA stated: "[19] In the application of the test in s 7, and of the exposition thereof in Singer v Berghouse by Mason CJ, Deane and McHugh JJ at 409 -411 it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse, in full and with reference to the instant facts. Defeat of the opponents' claims does not necessarily follow from a demonstration, which the claimant can make, that all her needs with respect to income, home renovation, and provision for contingencies cannot be met if any provision is made for the opponents; indeed she could well demonstrate that even if the provisions of the will took effect without any modification, the provision for her is not adequate. That is not a demonstration that no claim by an eligible person can succeed; the claims and circumstances of the opponents also have to be weighed, and they too have their needs and merits." Ipp JA added: "[2] I would add, however, that where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others." Bladwell v Davis was referred to, with approval, by the Court of Appeal in Milillo v Konnecke [2009] NSWCA 109; (2009) 2 ASTLR 235, at [80] - [82]. Ward J (as her Honour then was) referred to many of these authorities in Cross v Wasson [2009] NSWSC 378; (2009) 2 ASTLR 201, at [97]. At [98], her Honour added: "Of course, the position of surviving spouse no longer attracts any primacy or paramountcy in the face of other competing claims. In Bladwell v Davis [2004] NSWCA 170 Bryson JA (at [18]) noted an inconsistency between according paramountcy to the claims of surviving spouses (in the context of competing claims) and the application to the facts and circumstances of each case of s 7 of the Family Provision Act and the approach established by Singer v Berghouse. His Honour said: "Preconceptions and predispositions are likely to be the source of inadequate consideration of the process required by the Family Provision Act 1982". His Honour considered it would be an error generally to accord to widows (or, by analogy here, widowers) primacy over all other applicants regardless of the circumstances and "regardless of performance of the stages of consideration described in Singer v Berghouse in full and with reference to the instant facts" (para 19)." (d) Where, after competing factors have been taken into account, it is possible to do so, a spouse ought to be put in a position where she, or he, is the master of her, or his, own life, and in which, for the remainder of her, or his, life, she, or he, is not beholden to beneficiaries: Langtry v Campbell (NSWSC, 7 March 1991, unreported). (e) Usually, a mere right of residence will be an unsatisfactory method of providing for a spouse's accommodation. This is because the spouse may be compelled, by sickness, age, urgent supervening necessity, or otherwise, with good reason, to leave the residence. The spouse will then be left without the kind of protection which is normally expected should be provided by a deceased who is both wise and just: Moore v Moore (NSWCA, 16 May 1984, unreported), per Hutley JA, p 2; Golosky v Golosky [1993] NSWCA 111. (f) The observations of Lord Nicholls of Birkenhead (admittedly in a different context) in Miller v Miller [2006] UKHL 24; [2006] 2 AC 618, at [22], underline the importance to the spouse of the matrimonial home: "The parties' matrimonial home, even if this was brought into the marriage at the outset by one of the parties, usually has a central place in any marriage. " 138Concern as to the capacity of the applicant to maintain herself, or himself, independently and autonomously may also bear upon the notion of what is a proper provision (Richard v AXA Trustees Ltd [2000] VSC 341). In King v White [1992] 2 VR 417, at 425, Hedigan J quoted with approval the following passage from Re Crewe [1956] NZLR 315 at 323: "It may probably be said with truth that the proper maintenance which a testator owes to his widow in cases where there are no claims of other dependants is such maintenance as will enable her, taken in conjunction with her own means, to live with comfort and without pecuniary anxiety in such state of life as she was accustomed to in her husband's lifetime, or would have been so accustomed to if her husband had then done his duty to her." 139I make clear that I do not intend what I have described as "applicable principles" or "general principles" to be elevated into rules of law or to suggest that the Court's duty to make the value judgment can be abrogated by generalisations. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion at the second stage to be constrained, by statements of principle found in dicta in other decisions. I identify them in the hope that a reference to them will diminish the risks of inconsistency and capricious and arbitrary adjudication, but remembering that the terms of the statutory provisions must remain firmly in mind. 140As Lindsay J said in Verzar v Verzar, at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."

Further Additional Facts 141I shall now set out additional facts that I am satisfied are either not in dispute, or that, in my view, have been established by the evidence which I have accepted. Where necessary, I shall express the conclusions to which I have come on disputed evidence. I do so by reference to s 60(2) of the Act. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar, at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered. (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship 142There is no dispute that John is the widower of the deceased. There is also no dispute that he and the deceased enjoyed a long, happy and harmonious marriage. Even if there were some occasions of disharmony, this is hardly surprising in a marriage that spanned almost 24 years, which should be considered to be a long marriage. Their relationship commenced about one year before their marriage. 143The nature of the relationship of John and the deceased, and also, John's relationship with Charmaine was described by her in cross-examination: "Q. In your affidavit, at paragraph 17, you referred to the fact that Mr Jagoe and you had a father daughter relationship when you were quite young? A. Yes. Q. And it's true to say you were very close Mr Jagoe? A. Yes. Q. And you remained close to Mr Jagoe after your mother's death, is that true? A. It was very strained for tension between the family. That made is very difficult for me to be able to stand up and independently say that I respect this man. He was a good father, a good stepfather and he filled the shoes of my father well. So yes, I remained close until the time that he left, yes. And we were estranged for some time, yes. Q. Did he ever give you any indication as to why he felt he had to leave? A. It has always been in my awareness that my step dad really, really in his heart of hearts really wanted to live up in the Blue Mountains close to his money (sic) (running) mates. But he loved my mother, and he accepted that she wanted to be taken out of there and in a pine box in off her property, and she didn't quite get that wish. I don't know if I quite answered your question there, but if you could help me to get me back on track. Q. Well, can I put it to you this way. Would it be fair to say that Mr Jagoe felt he was being, or did he ever express to you that he felt he was being treated harshly after your mother's death? A. I absolutely and firmly believe that all of us, I mean, my siblings and I in our grief of the loss of a very strong mother, we were all grieving, and I believe that none of us or all of us could have handled or treated our mother's widowed husband much better, much kinder, and all of that kindness could have been and is free to give. And I feel that looking back in hindsight, I really feel that our actions as beneficiaries were deplorable. And that is just through not supporting the man that loved and honoured our mother for 25 years, and he filled the shoes of fatherhood better than the two fathers that who fathered my children. My gosh. I was very lucky, a very lucky step daughter." 144I found Charmaine to be a compelling and reliable witness. Neither of the Defendants, nor Catherine, each of whom gave evidence after Charmaine, suggested by his, or her, evidence, that what Charmaine had said did not accurately describe John's relationship with the deceased and as a stepfather to each of them. I accept Charmaine's evidence on this topic without hesitation. 145Rory acknowledged having loved John as a step-parent, although he also admitted that their relationship had soured after the death of the deceased and when the issues relating to the distribution of her estate arose. (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 146There is no definition of the words "obligations" or "responsibilities" to which the sub-section refers in the Act. Importantly, the Act does not expressly refer to, or identify, any "moral duty". Yet, one might conclude that what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities. 147This factor may require a balancing of potentially competing obligations as between different applicants, or as here, as between an applicant and the beneficiaries. 148There is no dispute that an obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a spouse. One would ordinarily expect the deceased to make provision for the needs of his, or her, spouse, having regard to any competing claims on bounty. 149An obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child. In Flathaug v Weaver [2003] NZFLR 730, at 737, the origin of the obligation which underpins the Act's recognition of the duty owed by a parent to a child was put in this way: "The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives." 150The fact that an applicant or a beneficiary was financially independent, for many years, before the deceased's death, is a relevant consideration in determining the extent of any obligation or responsibility owed. 151In this case, by her Will, the deceased appears to have accepted that she had an obligation, or responsibility, to provide for her four children. She does not appear to have considered that she owed any obligation, or responsibility, to her spouse of almost 24 years. (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 152I have dealt with these matters earlier in these reasons. The net value of the deceased's estate, whether considered to be about $1.2 million or about $1.4 million, is reasonably large. (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate 153A consideration of this matter calls for a comparison of the financial resources of the applicant and each of the beneficiaries. Regrettably, the Defendants' advisors did not take the trouble to provide the Court with an affidavit setting out the current financial resources of Warwick, Rory, Catherine and her husband, Justus Angwin, or of Charmaine. Some oral evidence was given (without objection) about the current financial position of each (other than Charmaine). There is an element of uncertainty about some of the oral evidence that was given. 154John's financial resources are: (a) He owns two parcels of real estate, one at Lithgow ($240,000) and another at Hazelbrook ($340,000). The Hazelbrook property is subject to a debt ($135,561) secured by registered mortgage. (b) He has a share in a medical centre in Cairns ($115,000); (c) He has money on deposit in Funds Management ($80,000); (d) He has moneys in a current bank account ($4,807); (e) Two cars ($4,500) and ($7,000); and (f) The repayment of the whole, or part, of $12,980, which has been paid on account of his costs, if a costs order in his favour is made. 155John's current monthly income (excluding $1,200 received as rent from the Hazelbrook property which is used to make mortgage repayments and pay other expenses on the Hazlebrook property) is $3,570, made up as an allocated pension ($812), rent from the Lithgow property ($1,325), income from the medical centre in Cairns ($1,100) and income from the Managed investment fund ($333). 156He estimates his current monthly expenditure at about $1,657 (excluding the expenses for the Hazelbrook property) (which suggests a surplus of income of $1,913 per month). Part of his expenditure is the board paid to his daughter, Felicia, of $400 per month. If he purchases alternative accommodation, he will not have this expense, although he may have other expenses that he presently does not have. 157Somewhat surprisingly, nowhere in John's affidavit evidence is there anything said about the size of the Hazelbrook property, the number of bedrooms that it has, about the use he may make of it, or if it is unsuitable, the reasons why it is unsuitable. However, in his oral evidence, the following exchange took place between the Plaintiff and the Bench: "Q. And am I right in thinking that Hazelbrook is in the lower Blue Mountains? A. It's half way between Penrith and Katoomba. Q. And is there any reason why you couldn't live in that property? A. It's a long way from where I want to be. Q. Is it? A. Yeah. Q. Tell me why that is? A. Well I certainly don't like the climb up there to start with. It's pretty cold in the winter and I would really like to live near my daughter and all my social contacts is in the Glenbrook area. Q. How far is Hazelbrook from Glenbrook? A. It's about 40 minutes by car. Q. Now as I understand it your evidence is that Hazelbrook at the moment doesn't provide you with any income because all of the income that is from rent is used to pay either the mortgage A. Yes. Q. repayments A. Yes. Q. or the outgoings on the Hazelbrook property? A. Yes. Q. In the event that you want to buy property near Glenbrook is there any reason why you couldn't sell Hazelbrook and use the net proceeds of sale as part of the purchase price of any property that you purchased at Glenbrook? A. Well the reason I want to keep that is I am hoping that one day, hopefully one day I will have it fully paid for and that will provide me with an income so I don't have to go on the pension. Q. But realistically at the moment? A. Oh, it could, yes. Q. It could provide, could it not, at least part of the purchase price of any property that you purchased at Glenbrook? A. Yeah. Q. And I think you said that the value of Hazelbrook is about $350,000? A. $340 350. Q. And the mortgage debt is about $135 or so? A. It's about that, yes. Q. So you could receive in the order of $200,000? A. Mm. Q. As the net equity, have I understood that correctly? A. Yes that's right, I could, but I would hate to sell that really. I am just hoping I don't have to go on the pension. I am trying to juggle my affairs so I don't have to go on the pension. Q. At the moment it's not providing you with an income? A. No. Q. And unless you paid off capital it would take some years, would it not, to A. Yes. Q. for the mortgage to be paid off, wouldn't it? A. Yes." 158Whilst it is laudable that John does not wish to go on the pension, I do not think that he would have to do so if he sold the Hazelbrook property and used the net proceeds of sale to assist in the purchase of accommodation. 159At the age of almost 72 years, having been out of the work force for over 15 years, I am satisfied that he has no earning capacity. 160It is submitted that his "needs are simple". He "wishes, given his age, to live near his daughter, Felicia, and within the approximate area that he has spent most of his life. Accordingly, he seeks a house in the Glenbrook area in the lower Blue Mountains" (which could be purchased for between $550,000 and $650,000). "Allowing for stamp duty and other expenses, it is submitted that a figure of $750,000 would be appropriate provision from the estate of the deceased to whom the plaintiff was married for almost 25 (sic) years and for whom he provided comfort and income throughout." 161He also says that he would have to refurbish a new home with furniture and whitegoods (the costs of which he appears to have included in the amount that he seeks). 162During submissions, Mr R Weaver, counsel for John, submitted that the evidence revealed that the range of prices for suitable accommodation in the Glenbrook area ranged between about $510,000 and $530,000. He submitted that John should not have to sell any of his assets and that the amount of about $600,000 should be available out of the deceased's estate. Percentage wise, this submission meant that he should receive between 50 per cent (if the value of "Rosedale" was $1.2 million) and about 43 per cent (if the value of "Rosedale" was $1.4 million). 163Rory is married and has one dependent child. 164The evidence about his financial resources is to be found in an affidavit of 31 May 2012. He lives in a home worth $750,000 with a mortgage of $380,000. He works as a plumber with a stated net income of approximately $4,800 per month. His wife earns approximately $3,600 per month. They claim living expenses of $8,470 per month (which are not particularised, other than mortgage repayments of $2,100 per month). 165In oral evidence, he stated that whilst he had changed jobs since his previous affidavit, his income was only "marginally" better. He thought his wife's income, which was now variable, was less than previously stated, although he did not know how much it was. Despite these matters, he thought that their combined net income was in the order of $8,000 per month. 166He said that he continued to have a tax debt of about $15,000; credit card debts of $14,000 and was in arrears in paying the rates and taxes on the home. 167Warwick, too, only swore one affidavit in late May or early June 2012, which set out his then financial position. Then, he was in occupation as a postman. He was looking after his two children for half the time. His home was then said to be worth $420,000, with a debt of $317,000 that is secured by mortgage. 168However, when he gave oral evidence, he disclosed that his job had been terminated in October 2012 and that he was presently unemployed and was receiving Centrelink benefits ($465 per fortnight). He said only one of his children spent time with him. He gave evidence that the debt secured by mortgage had increased to $333,000. He earned a very small amount of additional income as a freelance journalist. 169Catherine and her husband, Justus, each gave evidence. She gave evidence, in her affidavit, that she is married with three children, two of whom are adults. She stated that she had "Human Services income" of $2,800 per month, but that her outgoings were $2,700 a month including mortgage repayments, insurance, groceries and other household expenses. She claimed a half-share in a property at Kurrajong Heights with a total value of $400,000. She stated that "the mortgage" is $360,000, but it was unclear if this is half the mortgage debt or the whole mortgage debt over the property. (In fact, that was the value of the entire mortgage debt.) 170Her husband had also filed an affidavit affirmed in June 2012 but that affidavit did not make reference to his income or expenditure. He gave oral evidence of that income which he estimates to be between $62,000 to $64,000. 171I must say that I was unimpressed with her, and his, evidence. It was clear during Catherine's cross-examination, and when she was asked questions by me, that the information contained in her affidavit was certainly inaccurate and, perhaps, even (unintentionally) misleading. 172For example, she had disclosed that her net income was $2,800 per month. When I asked her whether that was the correct amount bearing in mind what she had estimated her gross annual income to be, she accepted that it was not. She thought that she had mistakenly stated what was her fortnightly income rather than her net monthly income, but she was not sure. She said that the only deduction from her gross income, so far as she was aware, was income tax. She was unable to state what her current net monthly income was. She said: "Q. You see where you say, "I have the following monthly income, human services income 2,800 net per month"? A. Yes, yeah. Q. See that? A. Yes. Q. I just did a quick calculation, and that comes to $33,600 a year? A. Really. Q. That's what it seems to? A. Okay. Q. If I multiply 2,800 by 12? A. As the net figure. Q. Yes. That seems rather low considering your gross figure is $74,000? A. Well, it has it has increased since the affidavit was put in, but that must be an error then in the calculation, I guess. Perhaps it was would fortnightly work out to be more consistent." 173She admitted that only one of her adult children lived at home with her and her husband, and, I gather, from her oral evidence that the adult child looks after her own financial and other needs. 174She also accepted that the mortgage debt was the whole amount secured by the mortgage. Whilst she thought that she had a fair idea of the value of the matrimonial home no real attempt had been made to ascertain its current value. (It had been purchased 9 years ago for $460,000, which was said to be $60,000 more than its current value.) 175Her husband, Justus, was unable to state the precise amount of his fortnightly income, although he suggested that his gross annual income was about $62,000. He, also, did not know the current value of their matrimonial home. 176They did, however, each give evidence, that Catherine's wage was used to pay the mortgage and that her husband's wage was used to pay for other living expenses. There is no reason to not accept that this is so. 177Charmaine has four children aged 17, 15, 9 and 7. One child (the second oldest), Eddie, suffers from cerebral palsy. She has been subject to home detention sentence but appears to have rehabilitated herself. She receives government assistance of approximately $720 per week and supplements that with income from horse work (approximately $120 per week). She owns 5 horses worth approximately $5,000. 178Charmaine has lived at Rosedale for 8 years. She has not paid any rent or occupation fee to the estate since the death of the deceased. She has no assets of any value apart from a horse float and trailer. She needs re-training. 179I am satisfied that she also gave truthful evidence about her financial and material circumstances. 180No doubt, she has a great challenge looking after her four children, but to her credit, she did not complain, in her affidavit, or in her oral evidence, about that challenge. 181Of course, subject to any family provision order that is made, each of the deceased's children receives 25 per cent of the deceased's estate. (e) if the applicant is cohabiting with another person - the financial circumstances of the other person 182This sub-section permits account to be taken of the financial circumstances relating to the cohabitation. 183John is cohabiting with his daughter, Felicia and her partner, Andrew. Felicia has given evidence by affidavit that detailed her relationship with the deceased, but did not say anything about her, Andrew's, or their, financial circumstances. It is clear, however, that John's intention is to vacate their home as soon as possible, and to purchase a property in the Glenbrook area in which he could live. (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 184John gives some evidence about his health. He says that he is independent, generally fit and well although he has a history of lower back pain. He was recently diagnosed with a right L4/5 herniated disc. He had previously had a right L4/5 microdiscectomy (microdecompression spine surgery) in 2004. His symptoms have improved and conservative treatment has been recommended. There is no evidence going to the extent to which his activities are limited by this condition. 185He agreed that he had recently "walked and run" in the City to Surf and had achieved one of the best times for persons in his age group. 186Warwick gave no evidence of any health issues in his affidavit. However, in his oral evidence, he gave evidence of suffering "mental illness ... psychosis" in about June 2013. He attributed the cause of this condition to the stress caused by the proceedings and the inter-family conflict and the "siblings arguing". 187Rory asserts that he has "health challenges which threaten my livelihood" and believes that, in the near future, he "will require both a hip replacement and a double knee reconstruction/replacement". He says he experiences ongoing pain in relation to his hip and knee. There was, however, no medical evidence relating to his current state of health. 188Each of Catherine and Charmaine does not give any evidence of any physical, intellectual or mental disability. (g) the age of the applicant when the application is being considered 189John was born in November 1941 and is almost 72 years of age. (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant 190There is no evidence that John made any direct contributions to the acquisition of "Rosedale". The deceased came to own "Rosedale" during the marriage and it was onto that property that he moved and where he lived from the commencement of their marriage (and before). He moved out in about November 2011. 191However, John says that following their marriage, "as a result of our respective financial circumstances, all rates, house maintenance, improvements and all other domestic outgoings were made by me either through my income or personal labour". He continued to make payments in respect of "Rosedale" until he moved out. 192He also gives evidence that after he retired, he and the deceased used the income from his investments to pay their living expenses. However, he acknowledges that in about 1998, the deceased sold off a portion of "Rosedale" for $129,000 and that the net proceeds of the sale were used in making improvements to the property, including the conversion of a large shed to make it habitable for Catherine and her family, installation of an "envirocycle" system in connection with, and solar panels on, that shed, the improvement of the driveway on "Rosedale", the installation of water tanks, landscaping and other home improvements. 193Finally, in relation to financial contributions, he says that, following a conversation with the deceased, to which I shall refer later in these reasons, "I sold the property that I owned at ... Katoomba. I then transferred to Barbara the net proceeds of sale totalling $202,000 in January 2008." (The property referred to was one of the Gates Avenue properties. In fact, both were sold in late 2007 or early 2008.) 194John also gives evidence of providing financial and non-financial support to Charmaine and general support to the deceased's other children. 195Although there was much made of whether the deceased, following the death of her first husband, had available funds to maintain herself, and whether she had received the proceeds of life insurance policies on his death, there is no contemporaneous evidence that enables me to come to a concluded view. In any event, I do not think much turns on it, bearing in mind the nature and duration of the marriage. I tend to think that John probably made the greater financial contribution to their living expenses since he was working until about 1997 and until the sale of the Cranebrook property, was probably receiving some income from it. After its sale and the purchase of the Katoomba properties, rental income was received by both of them. 196In relation to non-financial contributions, John states: "... 19. Throughout our marriage, I provided care and assistance to Barbara as she suffered from numerous health issues. Barbara carried spinal injuries from two serious horse falls. Barbara also developed breast cancer, which required her to undergo two mastectomies with associated chemotherapy and radiotherapy treatment. When Barbara was recovering from her injuries from the second horse fall she was fitted with a full upper body brace for approximately three months and I attended her every need on a twenty four hour basis. She had suffered from four fractured discs in her neck and two fractured ribs. Not long after in 2009 Barbara was diagnosed with breast cancer culminating in one breast being removed in that year and the other breast was removed in 2010. I took full responsibility during this difficult period in relation to the many visits required to hospitals and doctors at least once a week with Barbara and nursed her on a twenty four hour basis." 197He also states that he carried out maintenance on "Rosedale". 198None of the deceased's children, when giving his and her evidence, sought to diminish the significance of John's contribution to the deceased over the nearly 24 years of married life. In a marriage of that duration, it is reasonable to conclude, that each brought the other comfort and happiness and each devoted some of his, and her, time and energy to caring for the other. (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 199The deceased appears to have made some provision for John during her lifetime. As stated, he lived with her on "Rosedale" throughout their marriage. 200John admits that the deceased assisted him in paying off an amount of about $30,000, which was less than the amount secured under a mortgage on the Cranebrook property. He admits that the amount provided by the deceased was a loan that was never repaid. He explained why the mortgage referred to a larger amount than that, in fact, lent to him. I have no reason to disbelieve this evidence. 201I have earlier referred to the belated acknowledgement that John should receive the Datsun car and that he received some moneys held in a joint bank account with the deceased. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person 202There is no written evidence of the testamentary intentions of the deceased other than in the Will to which I have referred. No reasons appear to have been provided by her, in writing, explaining why she made no provision at all for John. 203John gives evidence of the following conversation with the deceased in about December 2007: "Barbara: I hate to raise it, but I am worried that if something happened to you, I'd be left with nothing to live on. I've got the house but nothing else. Me: I suppose I could sell my place in Katoomba and let you invest the money in a secure account. We could use the interest to live off and, if I went first, you would have something to get by on until things were sorted out. Barbara: That would really ease my mind. Of course, as I've told you before, you know that if I go first, you can stay on here at Rosedale for as long as you want, until you die if that suits you." 204He says that the conversation, so far as it relates to him continuing to live at "Rosedale" occurred on several occasions, both before and after the conversation referred to above. 205Warwick acknowledges that he knew that the deceased had "always said that [John] could stay on "Rosedale" as long as he wanted to". However, he, and some of the other children of the deceased, point to the fact that John made his Will in which he provided for his own children, as the deceased had done for them, as demonstrating an agreement that each would do this. (I have earlier referred to John's Will, which seems inconsistent with the alleged agreement.) 206Whilst the only promise of bounty made to John was as set out above, and even if their relationship proceeded on the basis, clearly understood by John, that the deceased would leave her estate to be divided between her children, that is of little consequence in a claim under the Act, and particularly in a claim by a spouse of such a long marriage. What is always in issue in cases in which a family provision order is sought is the adequacy and propriety of the provision, if any, made in the deceased's Will, or on intestacy, for the applicant. 207Furthermore, s 31 of the former Act, and s 95 of the Act, each enables an eligible person in the lifetime of the person who becomes the deceased, to enter into a binding release of his, or her, rights under the former Act or the Act. No release of rights was sought by either the deceased or John, or approved by the Court, and as stated above, John appears to have made some provision for the deceased out of his property, during her lifetime. (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so 208The deceased and John lived on "Rosedale" at the time of the deceased's death and John has continued to live there since her death until November 2011. (l) whether any other person is liable to support the applicant 209There is no person with a liability to support John. (m) the character and conduct of the applicant before and after the date of the death of the deceased person 210An 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. 211I have dealt with the relationship of John and the deceased. Even though there was some evidence about ill-feeling, or complaint, made by the deceased about John, I am satisfied that any complaints were not serious and did not cause any fissure in their relationship. In any event, in any marriage, particularly of the duration of this one, there are likely to be isolated periods of disharmony. 212Certainly, I do not regard the suggested selfishness, and alleged indifference, that is alleged to have given rise to the ill-feeling, or complaint, as sufficiently serious to disentitle John to an order for provision out of the estate, or even reduce the entitlement to the provision that is found to be adequate and proper. (I note, also, that the complaint about selfishness appears to be contrary to the evidence set out above given by Charmaine.) 213Overall, I regard the character and conduct of the plaintiff both before, and after, the death of the deceased to not be in question. (n) the conduct of any other person before and after the date of the death of the deceased person 214I am satisfied that each of the children of the deceased was a loving child who did, and has done, all that he and she could do in relation to the deceased. They have each given evidence of the contribution that each made to the welfare of the deceased and otherwise. It is unnecessary, in the circumstances of this case, to lengthen these reasons by identifying all of the contributions said to have been made. 215Each of the deceased's four children is, of course, a chosen object of the deceased's bounty. 216There is evidence of relatively recent incompatibility between Rory and John (including at Court when Rory abused John), but that is not relevant to the claim by John for a family provision order. Rory acknowledged the inappropriateness of his conduct and said that he regretted it. Emotions during the case were, understandably, raw and painful. Hopefully, the termination of the proceedings by judgment, will settle the hostility that has rocked the family since the death of the deceased. (o) any relevant Aboriginal or Torres Strait Islander customary law 217This is not relevant in the present case. (p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered 218There is no other matter that I consider relevant. (Neither of the parties relied upon any matter under this ground that was not otherwise considered under the other grounds.)

Determination 219Being an "eligible person" is a necessary precondition to the Court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. In this case, there is no dispute that John, is an eligible person within the meaning of s 57(1)(a) of the Act. 220There is also no dispute that John commenced the proceedings within the time prescribed by the Act. 221Having established eligibility and that the proceedings were commenced within time, the first question for determination is whether, at the time the Court is considering the application, adequate provision for John's proper maintenance or advancement in life has not been made by the Will of the deceased. 222Having considered the matters I am required to consider, I am satisfied, for the purposes of s 59(1)(c) of the Act, that adequate provision for the proper maintenance or advancement in life has not been made for John. No provision was made for him in the deceased's Will. The estate is sufficiently large to enable provision to have been made for John, even taking into account the legitimate claims upon the bounty of the deceased of each of her children and the obligation and responsibility to provide for each of them. 223The marriage of John and the deceased was a long one. Whatever resentment, or complaint, the deceased raised with any of her children about John, it was not significant enough to end their marriage, and the marriage continued as a generally loving and harmonious one. (In the circumstances of this case, bearing in mind the length of the marriage, I think the fact that it was a second marriage for each of John and the deceased, and that they had no children together, is irrelevant.) I also remember his contribution to the welfare of the deceased and to members of her family. 224It is also clear that John has some "needs". As stated above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence. Nor is it limited to whether the applicant has, at the date of hearing, an immediate need for financial assistance with respect to his maintenance. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. 225Furthermore, I cannot decide the question of the adequacy, or inadequacy, of the provision made, if any, in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive, or live comfortably. The word 'proper' in the collocation of words in the section of the Act to which I have referred is of considerable importance. 226Age and state of health are factors to which, under the Act, the Court may have regard. At the date of hearing, John is not an "able-bodied adult", in the sense that the expression is usually used in connection with family provision litigation, of someone who is, or will be, well able to earn enough by her, or his, own exertions to provide for her, or his needs: Belfield v Belfield [2012] NSWSC 416; (2012) 16 BPR 31,177, per Campbell JA, at [82]. He is almost 72 years of age, and he has not worked for over 15 years. He is in good health, and is active and fit. He may live for many years. It is only proper that, at his age, and stage of life, he should be able to enjoy the remaining years without pressing financial concerns or worries. 227In addressing whether adequate provision was made for John, another consideration appears to be the assessment of the relative financial position and competing claim of each of the deceased's children. Warwick and Charmaine are in the worst financial position. Rory and Catherine, whilst not wealthy, are in employment, and each has a spouse, who is also employed. Also, each of Warwick, Rory and Catherine own their own home, albeit subject to mortgage. 228I find myself quite unable to accept the submission, made on behalf of the Defendants, that there should be no provision made for John and that his Summons should be dismissed. The submission is wholly unrealistic, and does not focus upon the terms of the Act. 229I also reject the Defendants' submission, in the alternative, that a lump sum sufficient to pay off the debt secured by mortgage over the Hazelbrook property, would, in all the circumstances, be adequate and proper provision. It was submitted that John could live in the Hazelbrook property, which would then be unencumbered. This submission, also, is unrealistic. He has provided powerful reasons for not wishing to live there, and in all the circumstances of this case, he should not be required to. Furthermore, it is to be noted, that for the duration of the marriage, John lived, with the deceased, in reasonably large comfortable surroundings on a large tract of land. 230Turning then to s 59(2), namely the question what provision "ought to be made for the maintenance, education or advancement in life" of the applicant having regard to the facts known to the Court, the real area of concern is how to deal with John's claim, whilst bearing in mind the competing claim of each of the beneficiaries. It is unnecessary to repeat the matters that need to be taken into account. 231I reject the written submission made by his counsel that John should receive a lump sum of $750,000, or orally, that he should receive $600,000, principally on the basis that each submission is equally unrealistic and ignores freedom of testation and the competing claims of the deceased's children. I also bear in mind that "Rosedale", the principal asset of the estate came to the deceased out of a Trust, which, it seems, was set up by her first husband, the father of the children. 232In Marinis v Jeweller [2000] NSWCA 282, the Court (comprising Mason P, Giles JA and Rolfe AJA), wrote: "[26] ... We would reject the appellant's submission that adequate provision by a deceased person requires the deceased to ensure that an eligible person must be provided for to such a level as would ensure that his or her available assets are not reduced in consequence of the death and that the eligible person should not be obliged to re-arrange or re-organise his or her available assets." 233Nevertheless, the principal concern of the Court, on the facts of this case, is to ensure that John has security of accommodation and enough to furnish any accommodation that he purchases. On his evidence, he does not need more income or a significant additional fund for exigencies of life. 234There is no reason why John should retain the Hazelbrook property since, at the date of hearing, this asset provides him with no income. Unless he discharges the debt secured by the mortgage by payments of capital, it is likely to be some years before that property will provide him with any income. If it were sold now, and he discharged the mortgage debt, the net equity, after payment of associated costs and expenses of sale, would be in the order of about $190,000. Those net proceeds could be used to fund part of the purchase price of alternative accommodation in the geographical area in which he wishes to live. Alternatively, and if necessary, the net proceeds could provide him with income and capital to rent accommodation until such time as the order for provision is satisfied. 235In my view, John should receive a lump sum calculated as 33 per cent of the estate, such percentage to be calculated after the payment of the costs and expenses associated with the sale of "Rosedale" and such costs of the proceedings as are ordered to be paid. The amount yielded will depend upon the sale price of "Rosedale", but using the estimates referred to earlier, would provide between about $406,000 and about $472,000. When added to the net proceeds of sale of Hazelbrook, he should have sufficient funds to enable the purchase of suitable accommodation (say $520,000) and to furnish it (say $10,000), and, if less than all of it is spent in purchasing that accommodation, an amount will be available for exigencies of life and perhaps, a small income to supplement what he currently receives. In this way, as stated by the Defendants in their written submissions, "[T]he Applicant as the widower in a long marriage [will be] entitled to be housed and protected from the vagaries of life". 236The effect of that order will mean that each of the beneficiaries, in accordance with the agreement reached between themselves, will have his, and her, share of the net value of the estate, calculated after the payment of the costs and expenses associated with the sale of "Rosedale" and such costs of the proceedings as are ordered to be paid reduced by 8.25 per cent or, using the estimates previously referred to, between about $100,000 and $120,000. 237I note that the Defendants accepted that the amount of $30,000, which John acknowledged was a loan made to him by the deceased, should not have to be repaid to the estate. In coming to my conclusion, I have taken into consideration that the deceased contributed an amount to the building up of John's assets. 238In the circumstances, the orders that I make are: (i) Having found that the Plaintiff, John Bernard Jagoe, is an eligible person; that the proceedings were commenced within time; and that the provision made for him in the Will of the deceased is inadequate for his proper maintenance or advancement in life, he should receive, by way of provision out of the estate of the deceased, a lump sum calculated as 33 per cent of the estate of the deceased, such amount to be calculated after the payment of the costs and expenses associated with the sale of "Rosedale" and such costs of the proceedings as are ordered to be paid. (ii) The provision made for the Plaintiff should be borne by the beneficiaries of the deceased's estate equally. (iii) Orders that until the family provision order, and, if ordered to be paid out of the estate, the costs of the Plaintiff, are satisfied, there be a charge in favour of the Plaintiff given by the Defendants, secured on the title to "Rosedale" to secure the family provision order and those costs. (iv) No interest is to be paid on the lump sum, if it is paid within 28 days of the completion of the sale of "Rosedale"; otherwise, interest calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment of the lump sum. (v) Unless either party wishes to argue the question of costs, the Plaintiff's costs, calculated on the ordinary basis, and the Defendants' costs, calculated on the indemnity basis, shall be paid out of the estate of the deceased. (vi) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005. (vii) Consideration be reserved in respect of making consequential and ancillary orders for the purpose of giving effect to the family provision order and any costs order that is made.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 September 2013