Jodell v Woods

Supreme Court of NSW|2017-02-14|Before: Hallen J

The Relationship of the Plaintiff with the Deceased

Because a considerable amount of time was spent on this issue, and because the principal submission made on behalf of the Defendant was that the relationship of the Plaintiff and the deceased was such that she should be regarded as having been "estranged" from the deceased and, as a result, should not receive any provision out of the deceased's estate, I shall deal with this issue next.
The relationship of each of the parties with the deceased is, of course, an important consideration. As will be read, the Act specifically provides for consideration of "the character and conduct of the applicant" and "the conduct of any other person". (Although the reference to conduct does not expressly refer to the conduct of the deceased, "that must be a relevant factor in assessing the relationship of the deceased and any other person": Poletti v Jones, per Basten JA, at [25]).
An evaluation of "character and conduct" may be necessary, not for the sake of criticism, but to enable consideration of what is "adequate and proper" in all the circumstances.
In Collicoat v McMillan [1999] 3 VR 803 at [40], Ormiston J wrote, in relation to the manner in which an applicant's behaviour towards the deceased is to be considered: "Ordinarily each of the persons who have a statutory right to make [an] application are entitled to have their position considered by a testator but their behaviour (right or wrong) towards the testator may only provide a basis for measuring appropriately the testator's obligation to make provision for each of those applicants. Their sins are irrelevant except in so far as a testator might properly take exception to their behaviour."
The parties accepted that the nature of the relationship and what is described as "estrangement" complicates the assessment of the obligation owed by a deceased parent to an adult child.
More often than not, in claims for a family provision order in which an "estrangement" is alleged, the reason, or reasons, for the breakdown in the relationship between the deceased and the applicant for provision is, or are, far more complex than the evidence reveals. This is one such case.
In considering the evidence, I take into account that the deceased is not able to give her own version of events and I shall be cautious in accepting the evidence of the Plaintiff.
The Plaintiff accepted that she had never really had a close relationship with the deceased. She wrote that, even as a child, the deceased did not treat her as a loving mother would, and that their relationship always was a difficult one. She also wrote that she never had "love, support or encouragement from the deceased"; that she had been physically abused ("the deceased would beat me regularly"); that her parents did not attend her nurse's graduation, or her first wedding, even though they had been invited to do so; and she stated that "my Mother was very disapproving of my divorce".
The Plaintiff accepted that the deceased might have found her to be "at times a difficult and rebellious child and since then…acted in ways she did not agree with".
It is clear, reading all of the evidence, that there had been some difficulties in their relationship prior to the death of the Plaintiff's father, because as the Plaintiff wrote, she "always hoped there would be some sort of reconciliation with my mother and that if he did not leave his assets to Mum there would be little chance of that happening". (There would be no need for reconciliation if there had not been difficulties in their relationship.) It is impossible, so many years later, to determine the precise cause or causes of the difficulties.
It appears that the relationship of the Plaintiff and the deceased did not improve, but, in fact, worsened, at about the time of the death of the Plaintiff's father. From the Plaintiff's perspective, the deceased was not keeping her informed about the condition of her father immediately prior to his death. From the deceased's perspective, the Plaintiff was not showing any sympathy towards her, bearing in mind that her husband of many years was dying.
The terms of his Will, and what occurred in respect of the distribution of some chattels, appear to have caused further problems between the Plaintiff and the deceased. When the deceased made a request to the Public Trustee "regarding taking a transfer of the motor vehicle and trailer" from her husband's estate, the Public Trustee responded in writing, in a letter dated 18 December 1996, apparently following the instructions of the Plaintiff, that she "will give favourable consideration to the transfer of the motor vehicle and trailer if she may receive the following…", and then set out various identified personal effects that the Plaintiff required the deceased to give to her.
The exchange of correspondence prompted the deceased to describe the request made on the Plaintiff's behalf, on the bottom of a copy of the letter sent by the Public Trustee, as "this outrageous, hurtful demand" and write to the Plaintiff regarding "your proposition". (I should mention that the deceased indicated that the Plaintiff could have such items sought that the deceased could locate.)
There is a copy of a Will made by the deceased in December 1996 (that is, about one month after the death of her husband), in which she left a legacy of $100,000 to the Plaintiff. The rest and residue of the estate was left to the Defendant. However, this Will appears to have been revoked by a Will dated 11 February 1997, in which the legacy to the Plaintiff was removed and $100,000 was divided between the Plaintiff's three children, Matthew Georg Jodell, Annalisa Jodell and Katrina Jodell. Of course, that Will was revoked by the deceased's last Will, to which reference has been made.
The Plaintiff wrote that on the day after her father's death, she visited the deceased and the Defendant and that after a few minutes, the deceased said words to the effect "You can go now and I never want to see you again".
The Plaintiff was cross-examined about the conversation. She accepted that part of her affidavit evidence was inaccurate about the date of the conversation and the length of two conversations that occurred after the death of her father. She also accepted that she had not referred to the statement said to have been made by the deceased in a letter sent to the deceased and others a few weeks after the death of her father. Nonetheless, the Plaintiff strenuously maintained that the statement was made by the deceased.
The letter that the Plaintiff had written in December 1996 (a few weeks after the events in November 1996), included the following: "Now to retrace recent events a little. At the end of October, after my Father's operation for amputation I stayed in Sydney a further 48 hours. It was with great sadness we said goodbye on Thursday, 31st October. It was past midday and I was so upset I could only drive as far as Cooma. I arrived home in Omeo on Friday at 2p.m. That evening at 7p.m. Mum phoned to say Dad's heart stopped at 5.30p.m., that he had been revived and was now on a heart/lung machine. I was devastated. I made a number of calls to the hospital on Saturday and Sunday. My Mother phoned me on Sunday night to say Dad was off the machine, he had no brain damage and that hospital staff were pleased with him. She also said Helen had arrived from Brisbane and had hired a car. I was pleased for Mum. However, she did ask me rather curtly if I believed in euthanasia - I gave a longish explanation of my beliefs and feelings on that subject. I heard nothing further until Thursday, 7th November at 7.30a.m.. Mum phoned to say my Father was very ill, in a coma, and had not been expected to live for the last several days. She told me she had been called in twice on the Tuesday as he had not been expected to survive. Mum said Helen had sat with Dad all Wednesday night and that she (my Mother), was worried about Helen needing to sleep. When I asked (twice) why she had not phoned me, she hung up. I threw some things in a bag, phoned the hospital, scolded the Doctor, and said I was leaving for Sydney immediately. By some miracle Dad was still alive at 8p.m. when I arrived at Hornsby Hospital. I sat with him all night holding his hand and kissing his forehead. I told him he had been a good Dad and that it was O.K. to go now. In the morning at about 10a.m. I said I simply had to go and have something to eat. I had only had cups of tea and hospital biscuits for 24 hrs. He died while I was away.… As you may be aware, I have for many years now wished to reconcile things with my Mother. However, as some time has elapsed since my Father's death, it is quite clear my Mother at no stage welcomed my presence. The fact that it took Mum three and a half days to tell me Dad was in heart failure and not expected to live, remains impossible for me to comprehend. He finally had to ask staff to leave him to die. Mum really seemed to regard my presence at my Father's death as a provocation despite my efforts. Equally surprising was that after a long afternoon of conversations with Mum and Helen (the day after Dad died), no mention was made of notifying my Father's only sister, Kathleen (Canada), of her brother's death. I suppose this omission was due to Kathleen being out of favour with my Mother. Just as their mother, my Grandmother, was out of favour with my Mother. After my Father's death, Helen returned to Brisbane on the Sunday. I visited my Mother again on the Monday. My visit was brief, poor Mum did not wish to discuss the will and was rather angry that I should have known some of the contents. She offered me a cup of tea which I drank in Dad's vegie garden. His garden shed was in a state of great untidyness (sic) and his store of a few hundred dollars which he showed me on each visit for many years, hidden under a box on a shelf was gone. He used to say "that's a contribution to expenses when I go - should be five or six hundred in there". When I went back into the house Mum was standing and asked me to leave. I found this distressing. I said twice to my Mother that I was very sad that she should feel this way. For the second time I was devastated. So I suppose my Father's will is in a way confirmation for me that love and support have not been expressed in an even-handed way in my parents' family. I do not entirely agree with what Dad has done but I suppose it was his way of making up for some absence or lack of assistance when I was younger. While it does appear I am being favoured, perhaps it was a corrective step by my Father to redress matters past when Helen has been helped by my Mother. The house in Turramurra and a small superannuation payment is what Dad has provided for Mum. She must also have money of her own, recently she and Helen bought an apartment in Brisbane, in Helen's name. I will be pleasantly surprised if I am remembered in my Mother's will. I wish also to say to you that at no time did my Father complain about, criticise or accuse my Mother of anything. He was loyal in that way to his last breath. My Dad's complicity with, and friendliness towards all the hospital staff seem to me, now, so very sad. I am sure Dad would have liked to have died at home. There was never an opportunity for me to offer, or even discuss these matters with my parents. My Father knew my Mother did not want to have to care for him."… As I mentioned earlier in this rather long letter, I have for years now made efforts to reconcile my relationship with Mum. While I have always wanted this there were occasions of long retreats, which I felt necessary due mostly to my lack of skills and maturity. I cannot ever remember my Mum being encouraging, my parents did not attend my wedding, my Mother was very disapproving of my divorce. When I visited relations years later, their disapproval was also obvious. And I have wanted to mend the relationship, despite the fact that years ago an Aunt told me she and her sister were concerned about Mum and me when I was quite small. On a more practical level I have made phone calls, sent books that might interest Mum, sent photographs of myself, children, and business to remind her of my life and activities. I have sent music tapes I have enjoyed and wished to share, because it was Mum who first opened my ears to Classical music. Mum played the piano and organ so beautifully. More recently I visited Sydney a little before Mum's eightieth birthday. I took her to lunch - knowing it was not Dad's scene - we had a lovely time, a good lunch and Mum appeared to enjoy reminiscing. So, in recent years I have visited Sydney twice a year - and my children may have felt neglected - in order to visit my parents. I have dear friends in Sydney, but I visited mostly in order to see my parents, this year three times. All this in spite of the fact that Helen was usually the topic of conversation when I phoned or came to visit. It has been apparent where my Mother's interests lay, but I tried to ignore this in my efforts to heal my relationship with Mum. It is time now, of course, for Mum to summon up her Christian virtues and walk towards forgiving me. I know that at times I was a difficult and rebellious child and since then I have acted in ways she did not agree with that, however, is life. Most parents are able to love their children despite the differences."
Ultimately, nothing really turns on the inconsistency in the part of the Plaintiff's evidence on this topic set out above. Whether the deceased did, or did not, say that she never wanted to see the Plaintiff again, is somewhat beside the point, since it is accepted that the Plaintiff did not, in fact, see the deceased from that time (three days after the death of the Plaintiff's father) until shortly before the deceased's death. It is also accepted that the deceased, in the period following her husband's death, did not attempt to see the Plaintiff.
It is then necessary to set out what occurred subsequently, about which there can really be no dispute. At least for part of the time (April 1997 to February 2008), the Plaintiff was living overseas. At other times, she was living in Castlemaine, Victoria.
The Plaintiff wrote a letter dated 10 January 2003, to the deceased, informing her that she would be "passing through Sydney" in March and saying that "it would be lovely if we could meet". The Plaintiff did, in fact, make that trip to Sydney, but she did not stop in to see the deceased, because the deceased did not respond to her letter.
There is a copy of a document dated March 2003, in the hand of the deceased, which was sent to the Defendant, which document includes the following passages: "It is painful to write this; to have painful memories stirred up. Win's letter 10.1.03, "It would be lovely if we could meet", Why not call. Does she think we might meet in a coffee shop! How could we not talk about John's time in hospital and her unbelievable comments in her letter circulated to the family in 1996, or refer to the letter from the Public Trustee in which I was advised she would consider "a deal" regarding John's personal possessions, or about my grandchildren - - I cannot have any more of the years of hurt. There is a lack of trust now. Forgiveness is not the issue nor do I wish to punish her. I just wish to be left alone. Nor am I jealous of her adopting the Pollards as her family but I have wondered about what she has told them. Such a tale to say she came to Sydney to visit her parents. Maybe there was an effort to include us after her Dad told her he had left her his money. On the Monday after John died and he had not yet been cremated, Win called and demanded to see a copy of his Will. I said I was not sure that the copy in the house, fifteen years old, was current and did not give it to her. Her request was inappropriate. - She then wanted to go the vegie garden to have her cup of tea and also to go to the garden shed, requiring my key. I could not imagine why. When she came into the house again I was indeed standing and beginning to shiver. The events of the past week were almost beyond endurance and I asked her to leave. No sympathy for me at this time. It seemed that after 56 years of marriage and some of those years were very hard, I had no rights."
The terms of this letter support the earlier statement about the way in which the deceased perceived the Plaintiff's conduct.
The Plaintiff wrote, again, to the deceased in July 2004, having returned to Spain, where she was then living with her husband. This letter commenced: "It is most certainly time I wrote to you again to say hello & to bring you up to date with my moves & changes, I do hope you are well & that the Sydney winter is not too harsh. A significant Birthday occurs for you next year I think & you should be very pleased with yourself for maintaining your independence at home. I wonder if I will be as fortunate."
It ended: "So that is my news in brief. We are both well, showing some signs of age but nothing too serious. Bruno and I send our best wishes to you & I do wonder if you still write letters because I would, of course, like to hear from you one day."
The Plaintiff wrote, again, in December 2005, to the deceased from Cadiz, Spain. On this occasion, she wrote that she did not have "any immediate plans to visit Australia. I would like to come in autumn 2007. It will be good to see my family and friends again".
It ended with: "Well, my dear Mum, Bruno and I will raise a glass to you on this special birthday 28th December [which would have been the occasion of her 90th birthday]. Congratulations and best wishes for another year of good health, happiness and independence".
In October 2012, the Plaintiff wrote to the deceased, and Defendant, this time from Castlemaine, Victoria, "enclosing a couple of photos I thought might be of interest".
To none of the Plaintiff's correspondence, did the deceased reply.

The Plaintiff's Financial and Material Circumstances

The Plaintiff deposed that, as at 11 February 2016, her financial position was as follows. She owns her home, in Castlemaine, Victoria ($600,000), has a car ($9,000), household chattels ($5,000), some shares ($3,645) and a negligible amount in a UK Bank account. In addition, she has $15,833 in a bank account (but this is part of the fund that she has borrowed but has not yet spent). She has some liabilities, being a reverse mortgage debt secured on her home ($154,780) which had increased since her earlier affidavit because she has had to carry out repairs to her home, and a credit card debt of $1,283.
She says her income is made up of the age pension ($22,172) and dividends from her shares ($31) per annum or about $425 per week with her expenditure totalling $22,562 or $431 per week. She, therefore, has a shortfall of about $300 per annum or about $6 per week.
I am satisfied that the Plaintiff does not have an earning capacity.
The Plaintiff states that she wishes to relocate to Melbourne and that after sale of her Castlemaine property she will require additional funds to funds to acquire similar residential accommodation in Melbourne ($300,000) and to purchase a new car ($43,590). She also identifies urgent dental expenses of $700. She says she needs additional income totalling $8,289 per annum (for garden maintenance ($3,000), private health insurance ($2,674) and pilates and water aerobics ($2,615).
It was submitted: "…these additional costs and expenses cannot satisfactorily be met from an age pension, particularly in the absence of any superannuation entitlements. Presently the Plaintiff has to meet these expenses by accessing further funds in the reverse mortgage, which is clearly burdensome and onerous at her stage in life."
It was also submitted: "…that … the Plaintiff's claim for provision is not weakened or affected by an estrangement that is not caused by the Plaintiff. Burke v Burke at [82]-[96]."
The Defendant, in written submissions, wrote that the Plaintiff's claim should simply be dismissed as her shortfall of income was negligible (about $1.00 per day) and could be avoided if she did not travel overseas as frequently as she did. He added: "In all of the circumstances of this matter… the deceased's decision to make no provision for the plaintiff was within the range of views on which community standards may legitimately differ."

The Statutory Scheme

Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. As the Plaintiff's eligibility and the commencement of the proceedings within time is not in issue, the only questions for the Court to determine are whether the Plaintiff has been left with inadequate provision for her proper maintenance, education and advancement in life and, if so, what, if any, further provision ought to be made out of the estate of the deceased for those purposes.
It is this mandatory legislative imperative that drives the ultimate result, and it is only if the Court is satisfied of the inadequacy of provision that consideration is given to whether to make a family provision order (s 59(2)). Only then may "the Court… make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made".
The parties were largely agreed as to the principles to be applied on this topic so it is not necessary to re-state them in detail. I have dealt with them in many cases, one of which is Hinderry v Hinderry [2016] NSWSC 780.
Whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, education or advancement in life of the Plaintiff will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's "needs" that cannot be met from his, or her, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573 at 575 (Kirby P).
Although the existence, or absence, of "needs" which the applicant cannot meet from her, or his, own resources will always be highly relevant and often decisive, the statutory formulation, and, therefore, the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for her or his proper maintenance, education and advancement in life: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 227 (Gaudron J). Compare Gorton v Parks (1989) 17 NSWLR 6-11 (Bryson J); Collicoat v McMillan, at 816 [38], 820 [47] (Ormiston J).
"Need", of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45] (Dodds-Streeton J). It is different from "want" and does not simply mean "demand" or "desire". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 at [54]: "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'."
In Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86 at [41], David J at added: "'Need' is not so synonymous with 'want' such that the two are interchangeable."
As Callinan and Heydon JJ emphasised in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [122], the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined.
If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made.
The questions posed arise under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made involves an exercise of discretion in the accepted sense. The fact that the Court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.
Section 60 of the Act provides: "(1)The court may have regard to the matters set out in subsection (2) For the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the 'applicant') is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person-the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [37], as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380, at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order.
In Chapple v Wilcox [2014] NSWCA 392; 87 NSWLR 646 at [7], Basten JA wrote: "Section 60 of the Succession Act spells out the matters which the Court may have regard to in determining whether the claimant 'is an eligible person' and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the 'nature of any such order', which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b)."
The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of such of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.
The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.
A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).
Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently.
Section 65(1) of the Act requires the family provision order to specify: 1. the person or persons for whom provision is to be made, and 2. the amount and nature of the provision, and 3. the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and 4. any conditions, restrictions or limitations imposed by the Court.
The order for provision may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the Court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).
Unless the Court orders otherwise, any family provision order under the Act takes effect as if it were a codicil to the will (s 72(1) of the Act).
Section 66 of the Act sets out the consequential and ancillary orders that may be made.
Section 99(1) of the Act provides that the Court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the Court thinks fit.
There are some other general principles that should be identified for the benefit of the parties, although I have repeated them in many cases.
The Court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63].
In Stott v Cook (1960) 33 ALJR 447 at 453-4, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged."
Of the freedom, in Grey v Harrison [1997] 2 VR 359, Callaway JA said, at 366: "... [I]t is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent."
In Vigolo v Bostin, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained: "It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification".
In Goodsell v Wellington [2011] NSWSC 1232 at [108], I also noted that: "Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated."
As Pembroke J said, in Wilcox v Wilcox [2012] NSWSC 1138 at [23]: "The court does not simply ride roughshod over the testator's intentions… The court's power to make an award is limited. The purpose of the discretionary power under Section 59(1) is to redress circumstances where 'adequate provision' has not been made for the 'proper maintenance, education or advancement in life' of the claimant. The adjectives 'adequate' and 'proper' are words of circumspection."
White J referred to these principles in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253, at [127]: "In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and (2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will."
In relation to the statement made by the deceased, in Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 at 138; [1979] HCA 2, at [7], Barwick CJ wrote: "…When attempting to decide what a particular testator or testatrix ought as a just and wise father or mother to have done, those reasons which that testator or testatrix actually entertained for his or her decision cannot, it seems to me, justly be ignored. Of course, if the evidence in the matter does not support such reasons, they cannot be acted upon simply because the deceased asserted or entertained them."
Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.
In Henry v Hancock [2016] NSWSC 71, at [69], Brereton J wrote: "Formerly, the yardstick which was applied was that of the wise and just testator. Nowadays, it is fashionable to couch it in terms of "community standards", although I am not at all sure that this is any different from the moral obligation of a wise and just testator and, as has not infrequently been pointed out, there is no ascertainable external community standard to guide the decision, which involves a broad evaluative judgment unconstrained by preconceptions and predispositions, and affording due respect to the judgment of a capable testator who appears to have duly considered the claims on his or her testamentary bounty - subject to the qualification that the court's determination is made having regard to the circumstances at the time of the hearing, rather than at the time of the testator's will or death."
In all cases under the Act, what is adequate and proper provision is necessarily fact specific.
All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singer v Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12 at [56]. Nor does it follow that, if the Court decides it is inappropriate to make a specific provision in respect of one identified head of claim, that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams [2004] NSWSC 419 at [89].
In relation to the Plaintiff's claim, being a claim for provision by an adult child, the following principles are also useful to remember: 1. The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. 2. It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, "ordinarily, the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, child up in a position where she or he can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation": Taylor v Farrugia, at [57]; McGrath v Eves [2005] NSWSC 1006; Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond [2015] NSWCA 42 at [109]. 3. Generally, also, "the community does not expect a parent to look after his or her children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute": Taylor v Farrugia at [58]. 4. If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland, Deceased [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co of Australasia Ltd, at 148; Goodman v Windeyer [1980] HCA 31; 144 CLR 490 at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons: Re Buckland, Deceased at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams at [86]. 5. There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker [1957] HCA 82, (1957) 97 CLR 566; Kleinig v Neal (No 2) at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37 at 45 (Nicholson J); Taylor v Farrugia, at 58. 6. The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]-[182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17]. 7. The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd at 149.
A very similar statement of these principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275, at [111], was cited with approval in Chapple v Wilcox at [21] (Basten JA); and at [65]-[67] (Barrett JA); and was referred to, with no apparent disapproval (although in that appeal there was no challenge the correctness of those principles), in Smith v Johnson [2015] NSWCA 297, at [62].
In Foley v Ellis [2008] NSWCA 288 at [88], Sackville AJA noted that Singer v Berghouse "strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty". The only other claimant on the bounty of the deceased in the present case is the Defendant.
The Defendant, of course, is not an applicant for provision. She does not have to prove an entitlement to the provision made for her in the deceased's Will, or otherwise justify such provision. As a beneficiary, the Court is not entitled to disregard her interest.

Estrangement

Acrimony or estrangement between an applicant and the deceased is a consideration that has been at the forefront of the Defendant's case in opposition to the claim by the Plaintiff.
I have discussed the topic of estrangement in a number of cases. Most recently, in Underwood v Gaudron [2014] NSWSC 1055, at [231], I set out the general principles which I repeat. (Although my judgment was the subject of an appeal, which was dismissed, the Court of Appeal did not indicate any disapproval of what I had written on this topic: Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269.) 1. The word "estrangement" does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties to the relationship. Whether the claim of the applicant on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case: Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Deceased) v Lathwell [2008] WASCA 256, at [33]. 2. The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361, at [88] - [94]; Foley v Ellis. In Palmer v Dolman, Ipp JA, after a review of the cases, observed, at [110], that: "... the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act." 1. There is no rule that, irrespective of a Plaintiff's need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to "ample" provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases. 2. The Court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one "who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility": Ford v Simes [2009] NSWCA 351, at [71], per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed. 3. As was recognized by the New South Wales Court of Appeal in Hunter v Hunter, at 574 - 575, per Kirby P (with whom Hope and Priestley JJA agreed): "If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator's will." 1. Even if an applicant bears no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the Court's discretion under s 59(2) of the Act to make a family provision order where the jurisdictional requirements of s 59(1) are met. That the applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them the love, companionship and support present in normal parent/child relationships, during those years, is a relevant consideration: Keep v Bourke [2012] NSWCA 64, per Macfarlan JA, at [3]. 2. The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, may operate to restrain amplitude in the provision to be made: Keep v Bourke, per Barrett JA, at [50]. 3. Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. In addition, s 60(2)(m) permits the Court to consider the character and conduct of the applicant at the second stage of the process. Care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time: Foley v Ellis, at [102].
In Andrew v Andrew, Basten JA at [40] endorsed what I had said about estrangement, much of which is set out above, as follows: "As explained by the primary judge, the term 'estrangement', which was aptly applied, does not describe conduct, but the condition which results from the attitudes or conduct of one or both parties: at 74. It is a term sometimes applied to the 'natural' process of separation of child from parent, which often peaks in adolescence, but may well continue into adult life, sometimes without resolution of the underlying tension. At least when kept within reasonable bounds, the negative consequences of such a process should arguably be ignored or at least not given disproportionate significance when assessing the expectation that a parent will provide for a child whose condition in life is financially disadvantageous, when compared with other claimants on the testator's conscience."
His Honour added at [49]: "The cases referred to above support the proposition that in the case of estrangement between an applicant and a testator, attention may need to be paid, so far as the evidence permits, to the apparent causes of the estrangement. Thus, if the immediate cause is overt hostility on one side, it may be necessary to apportion blame (or at least responsibility) for that situation. … Without rejecting the analysis as inappropriate, there are at least limits on how far a court should go in seeking justification for the absence of 'love and support' from a child for his or her parent. It goes without saying that some children feel greater love and affection for their parents than do others and that some children provide higher levels of support for their parents in their aging than do others. These are all considerations relevant to an assessment of the adequacy of the provision made by the testator for the proper maintenance, education and advancement of a child. However, whether in a particular case it would warrant the exclusion, or virtual exclusion, of the child from benefit under the mother's will, is another question. The appellant did not seek, in her evidence, to blame her mother for the breakdown in their relationship. Although the causes thus remained obscure, reticence, which may limit damage to her relationships with her siblings, is not to be discouraged. Although estrangement was no doubt painful to the mother, such conduct was surely less reprehensible than open hostility. … Although the mother's reaction was entirely understandable and might have been shared by many parents, I am not persuaded that it justified the reduction of the daughter's share in the estate from that which might otherwise have been expected to a largely nominal sum. In these circumstances, the appeal should be allowed, and provision made for the appellant."
Also see the analysis of Ward JA in Burke v Burke [2015] NSWCA 195 at [89] - [95].

Qualifications on "Principles"

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

DETERMINATION

Being an "eligible person" is a necessary pre-condition to the Court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. As stated, the Plaintiff, as a child of the deceased, is an eligible person within the meaning of that term in s 57(1)(c) of the Act.
There is no dispute that the proceedings were commenced by her within the time prescribed by the Act.
In considering the answer to the first question posed by the Act, namely whether, at the time of the hearing, adequate provision for the proper maintenance or advancement in life of the Plaintiff has not been made by the Will of the deceased. Judged by quantum and looked at through the prism of her financial and material circumstances, adequate provision for her proper maintenance or advancement in life was not made for the Plaintiff by the Will of the deceased.
But, as I wrote in Morier v Liem [2016] NSWSC 582, the fact that the Plaintiff does not receive any provision under the Will of the deceased, of itself, does not bespeak inadequacy. One must also consider the Plaintiff's overall financial position, the totality of her relationship with the deceased, and the size and nature of the deceased's estate.
Basten JA wrote in Chan v Chan at [22], that the Court must remember: "A significant set of factors in many cases is that identified as "the financial resources (including earning capacity) and financial needs, both present and future, of the applicant…". However, it is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. The background to any consideration of the appellant's needs required determination of the size of the estate and the claims of others on the beneficence of the testator."
Thus, in determining what is adequate for the proper maintenance or advancement in life of an applicant, the Court also considers the nature, extent and character of the estate and the other demands upon it, and also what the deceased regarded as superior claims or preferable dispositions.
This is a case in which, firstly, the Plaintiff has a need to meet her obligations, all of which, now and into the future, cannot be met from her own resources. She has a reverse mortgage debt which she is unable to reduce and a modest income provided by a pension and some interest/dividends. She has no fund available for exigencies of life. She has no earning capacity. She has no person to provide immediate, or continuing, financial support. The value of the deceased's estate provides the means to alleviate these needs. Having regard to the competing claim upon the deceased's bounty, which does not include any competing financial claim by the Defendant, a proportion of the estate can be used without, necessarily, impacting in any significant way, upon the financial needs of the Defendant.
Also, whilst further provision for the Plaintiff, in circumstances of her relationship with the deceased, might not be expected to equal the totality of the insufficiency in her resources, when one considers that there is no competing financial claimant upon the deceased's bounty, and also the size of the deceased's estate, there is certainly a capacity for provision to be made for her.
When the Court considers the Plaintiff's financial and material resources, one cannot but reach the conclusion that the provision made for her in the Will of the deceased is inadequate for her proper maintenance and advancement in life. Her plight might have been ameliorated by an inheritance under the will of her father but that was a long time ago (almost 20 years ago).
According to prevailing community standards, I am satisfied, for the purposes of s 59(1)(c) of the Act, that adequate provision for the proper maintenance, education or advancement in life has not been made for the Plaintiff. I am of the view that the deceased's disappointment, as a wise and just testatrix, should not have blinded her to the needs of one of her two children, for maintenance or advancement in life.
Turning then to s 59(2), namely the question what provision "ought to be made for the maintenance, education or advancement in life" of the Plaintiff having regard to the facts known to the court, the more difficult question is what would constitute adequate and proper provision for her. There is no formula that can be used to determine the amount of that provision. In any event, an order for provision should be no more than is necessary to make adequate provision for the Plaintiff's proper maintenance and advancement in life.
Contrary to the submissions made on behalf of the Defendant, cases under the Act are decided on the basis of broad principles, not fiscal micrology: Re Hilton [1997] 2 NZLR 734, at 738. The court should not focus only on the Plaintiff's particular, or specific, known needs, but rather upon her needs in the 'relevant sense', namely, in the sense of what is adequate for her proper maintenance or advancement in life.
As Gleeson CJ wrote in Vigolo v Bostin, at [12]: "The legislation was not merely, or even primarily, concerned with relieving the state of the financial burden of supporting indigent widows and children. The courts were not empowered merely to make such provision for an applicant as would rescue the applicant from destitution."
I am satisfied that there is a clear need for provision for the Plaintiff out of the estate of the deceased for her immediate, and long-term, financial security and for future contingencies. Whilst only some of her "needs" may be able to be quantified with reasonable certainty, that does not prevent the court exercising its discretion in awarding additional provision to her to cover those that cannot.
Even though, in Hyland v Burbidge at [56], Windeyer J wrote "where the funds are readily available there is no reason why adequate provision should not require the provision of a sufficient fund to enable this plaintiff to have secure accommodation for herself of a reasonable standard in a reasonably attractive suburb", in this case, I am satisfied that a contribution to the cost of alternative accommodation in Melbourne ($300,000) is not a need at all, or if it is, a need that ought not to be met out of the deceased's estate.
In relation to the issue whether it is a current need, I point to the Plaintiff's evidence: "Q. When you go to Melbourne do you drive? A. No, I usually get the train. Q. That takes about an hour and 50 minutes on the Bendigo line? A. An hour and 30 or 40. Q. An hour and 30 or 40 minutes. Your friends and relatives in Melbourne, do they ever visit you in Castlemaine? A. I visit them much more often than they visit me. Q. These are very close friends and relatives, you say? A. They are, friends. Q. Friends? A. Not relatives. Q. They are friends, all right. If you, at some hopefully distant point in the future, became too unwell to be able to catch the train to Melbourne to visit them, they would perhaps visit you in Castlemaine, would they not? A. Well, they're the same age as me or older so it's unlikely. Q. Now, if you were to relocate to Melbourne at some point wouldn't you face the same problem in relation to your close friends in the community in Castlemaine? A. My friends in Castlemaine, possibly. I do have a lot of younger friends in Castlemaine. … Q. Could you just help me with a couple of things? You have given evidence that you are happy living in Castlemaine and you were involved with a lot of activities there and you have a lot of friends there? A. Community activities, yes. Q. In the evidence that you've given elsewhere there's a suggestion that you need $300,000 to purchase alternative accommodation to move to Melbourne? A. To buy into a retirement-- Q. Yes. To enable you to move to Melbourne? A. That's right. Q. What steps, if any, have you taken to locate the type of accommodation that you would need in the event that you chose to move to Melbourne? A. I've - I've visited - I can't remember the name of it, a retirement complex in Carlton. … Q. Is that residences at Rathdowne Place? A. That's right. Q. Do you have any immediate intention to seek such accommodation or are you happy-- A. I don't need to - I don't need to at the moment. Q. It's just in the future in the event that you become incapable of looking after yourself? A. If I'm not able to drive or if I have repeated fractures or some sort of health crisis."
In all the circumstances of the case, I am not satisfied that the Plaintiff should receive a lump sum that would enable her to purchase alternative accommodation in Melbourne. Leaving aside any issue of "need" for such accommodation, to make such additional provision would, in my view, be more than adequate and proper provision in all the circumstances of this case.
In regard to the relationship of the Plaintiff and the deceased, much has been made of the duration of any real or substantial contact between the Plaintiff and the deceased from shortly after the death of the Plaintiff's father. But, in this regard, it is to be remembered that the Plaintiff lived overseas between about April 1997 and February 2008. Whilst it is not suggested that the geographical distance precluded contact between them, it is a matter that is to be remembered.
Furthermore, there were several attempts made by the Plaintiff to reach out to the deceased in order, if not resolve the dispute that existed between them, to not dwell on them, and to maintain a relationship with the deceased. Whilst it is true that she never apologised to the deceased, a matter which the Defendant considered that the deceased had wanted the Plaintiff to do, the Plaintiff wrote attempting to maintain a relationship.
For her own reasons, the deceased did not exhibit any similar desire. The Defendant gave evidence that the deceased regarded the correspondence sent as revealing that the Plaintiff was acting as if there was nothing to resolve between them and had maintained that so long as the Plaintiff did not apologise, she did not wish to communicate with the Plaintiff. I accept the Defendant's evidence that her conversations with the deceased reflected that view. As stated, the wounds thought by the deceased to have been inflicted by the Plaintiff, following the death of the deceased's husband were so deep, and were so damaging, that the deceased could not recover from them.
In my view, the events surrounding the death of the deceased's husband, including events shortly before his death, the terms of his Will (the Plaintiff having no control over how he chose to leave his estate) and the requests made for personal items in response to the deceased's request to receive the car and trailer (over which the Plaintiff did have control) played a part, indeed a significant part, in the deceased not wishing to have any further contact with the Plaintiff. However, it is clear that each of them believed that she was justified in her conduct. Neither appears to have been able to express, to the other, her feelings, or explain the reasons for her conduct, perhaps by reason of their relationship history, and/or because of her perception of the other's treatment of her.
Perhaps, with the exception of the events surrounding the transfer to the deceased of the car and the trailer, the Plaintiff's conduct does not appear to have been callous or unfeeling towards the deceased. Nor did it demonstrate hostility. Of course, it is true that it was the deceased's husband of many years who was dying, but he was also the Plaintiff's father. Each was entitled to expect the support of the other at that time. Each appears to have felt that the other did not provide that support. The difference between them was that, subsequently, the Plaintiff did not wish to end, completely, their relationship, whilst the deceased, so long as the Plaintiff did not apologise to her, was prepared to do so.
I regard the Plaintiff's attempts to retain, or rekindle, the relationship with the deceased as important. When the request made by her to visit the deceased was ignored, the Plaintiff did not sever all ties between them, but, on occasions, informed the deceased of what was happening in the Plaintiff's life. She attempted to make amends, before, and at the end of, the deceased's life by attempting to keep in contact and then, by visiting the deceased not long before her death. When she did so, the evidence from Ms Jann Zintgraff (a friend of the Plaintiff who had sworn an affidavit but who was not cross-examined), reveals that the deceased "was smiling" and "seemed genuinely happy to see both of us. [The Plaintiff] sat by her bed and held her hand. We stayed for about 45 minutes."
Regrettably, the deceased, as a wise and just testatrix, prior to this time did not extend the hand of forgiveness to the Plaintiff.
Of course, in reaching this conclusion, I have taken into account that the deceased is not able to give her own version of events. Furthermore, I am not at liberty to ignore the deceased's freedom of testation to which reference has been made previously.
I am satisfied that this is not a case where, after 1996, the Plaintiff treated the deceased with complete indifference. That she did not do more may be explained, in part, by the lack of any response to her entreaties. Nor did she demonstrate ill-temper, or violence, towards the deceased. Yet, it cannot be forgotten that her attempts were limited to several letters, the time between the last two of which was several years.
I do not regard the circumstances of the Plaintiff's relationship with the deceased to be such as to relieve the deceased of her obligation to make adequate provision for the proper maintenance and advancement in life of the Plaintiff. However, the nature of the relationship between the Plaintiff and the deceased, and the fact that the Plaintiff received, effectively, the whole of her father's estate, does warrant a slight moderation of the amplitude of the provision that, otherwise, would be no more than adequate for her proper maintenance and advancement in life.
In Grey v Harrison 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."
The determination of quantum is not a scientific, or arithmetic, exercise: Baird v Harris [2015] NSWSC 803, at [237].
Having considered all of the matters I am required to consider, taking into account all of the circumstances of the case, including the nature and value of the estate, the nature of the relationship of the Plaintiff and the deceased, both before and after 1996, her financial resources (including earning capacity), both present and future, as well as the competing claims of the Defendant as the chosen object of the deceased's bounty, doing the best I can, I consider the amount of the lump sum that the Plaintiff should receive is $425,000. If she wishes to, she can use part of that lump sum to repay all of her mortgage debt and credit card debt. She will then have about $270,000 to provide a buffer for exigencies of life, and which, until spent, will also provide a modest additional income to meet her current shortfall and provide a little more.
Such a legacy will still leave the Defendant with about $1.375 million in recognition of her moral claim on the deceased's testamentary bounty.
Accordingly, taking into account that I cannot determine the issue of costs, the Court: 1. Having found that the Plaintiff is an eligible person; that the proceedings were commenced within time; and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, orders that she receive a lump sum of $425,000. 2. Orders that provided the lump sum is paid within 28 days of the making of this order, no interest is payable; otherwise, interest at the rate prescribed under s 84A(3) of the Probate and Administration Act 1898 (NSW) is payable from that date until the date of payment. 3. Grants liberty to any party to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to, and implementing, the family provision order made in favour of the Plaintiff, including, but not limited to, an order for the sale of the Turramurra property. 4. Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10) and Practice Note No SC Gen 18. 5. Orders that how the costs of the proceedings are to be borne will be determined at the time of the delivery of these reasons or such other time as the Court then directs.

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: 01 March 2017

Family Provision Act 1982(NSW)

] NSWSC 71 Hinderry v Hinderry [2016] NSWSC 780 Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2 Hunter v Hunter (1987) 8 NSWLR 573 Hyland v Burbidge [2000] NSWSC 12 Keep v Bourke [2012] NSWCA 64 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 MacGregor v MacGregor [2003] WASC 169 Marks v Marks [2003] WASCA 297 Mayfield v Lloyd-Williams [2004] NSWSC 419 McCosker v McCosker [1957] HCA 82, (1957) 97 CLR 566 McKenzie v Topp [2004] VSC 90 McGrath v Eves [2005] NSWSC 1006 Morier v Liem [2016] NSWSC 582 Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 Re Buckland, Deceased [1966] VR 404 Re Hilton [1997] 2 NZLR 734 Salmon v Osmond [2015] NSWCA 42 Sammut v Kleemann [2012] NSWSC 1030 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253 Smith v Johnson [2015] NSWCA 297 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Taylor v Farrugia [2009] NSWSC 801 Thompson v Sgro [2016] NSWSC 1869 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Underwood v Gaudron [2014] NSWSC 1055 Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) White v Barron (1980) 144 CLR 431; [1980] HCA 14 Wilcox v Wilcox [2012] NSWSC 1138 Category: Principal judgment Parties: Winifred Ann Jodell (Plaintiff) Helen Jean Woods (Defendant) Representation: Counsel: Mr M Gunning (Plaintiff) Mr D Liebhold (Defendant)

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