John v John; John v John

Civil Procedure Act 2005 (NSW) LEGISLATION CITED : Conveyancing Act 1919 (NSW) Family Provision Act 1982 (NSW) Uniform Civil Procedure Rules (2005) (NSW)

Abrego v Simpson [2008] NSWSC 215 Attenborough v Solomon [1913] AC 76 Barbara Mayfield v Suzy Carolyn Lloyd-Williams [2004] NSWSC 419 Barna v Barna [2008] NSWSC 1402 Borough of Drummoyne v Hogarth (1906) 23 WN (NSW) 243 Campbell v Chabert-McKay [2010] NSWSC 859 Cetojevic v Cetojevic [2006] NSWSC 431 Charles Dewar v Francis Raymond Dewar in the Estate of Mary Love Dewar (unreported, NSWSC, 31 October 2001) Collings v Vakas [2006] NSWSC 393 Commissioner of Stamp Duties for Queensland v Livingston (1964) 112 CLR 12; [1965] AC 694; [1965] ALR 803; [1964] 3 All ER 692 Cooper v Dungan (1975) 9 ALR 93 Crisp v Burns Philp Trustee Co Ltd (unreported, NSWSC, 18 December 1979) Cropley v Cropley [2002] NSWSC 349 Cross v Wasson [2007] NSWSC 378 D'Albora v D'Albora [1999] NSWSC 468 De Winter v Johnstone (unreported, NSW Court of Appeal, 23 August 1995) Doyle v Smith (unreported, NSWSC, 21 September 1994) Ebert v Ebert [2008] NSWSC 1206 Exception Holdings Pty Ltd (in liq) v Albarran & Ors [2005] NSWSC 677 Fiorentini v O'Neil VC [1998] NSWCA 79 Foley v Ellis [2008] NSWCA 288 Foster v Lisle [2003] NSWSC 1243 Hewitt v Gardiner [2009] NSWSC 705 Johnson v Trotter; Estate of Trotter [2006] NSWSC 67 CASES CITED : Kalmar v Kalmar [2006] NSWSC 437 Latch v Latch (1875) LR 10 Ch 464 Lewis v Lewis [2001] NSWSC 321 Mae v Newton (1887) 34 ChD 347 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Massie v Laundy (unreported, NSWSC, 7 February 1986,Young J) Maxwell v Public Trustee [2001] NSWSC 764 McGrath v Eves [2005] NSWSC 1006 Morton v Little; Prince v Little [2005] NSWSC 36 O'Brien v McCormick [2005] NSWSC 619 Ogden v Green [2003] NSWCA 352 O'Loughlin v Low [2002] NSWSC 222 Pengilley v Public Trustee (unreported, NSWSC, 9 October 1985) Petschelt v Petschelt [2002] NSWSC 706 Re Buckland, deceased [1966] VR 404 Re Gardiner; Jones v Gardiner [1887] WN (Eng) 59 Re Gilbert (1946) 46 SR (NSW) 318 Scurry v Morse (1724) 9 Mod 89; 88 ER 333 Singer v Berghouse (No 2) (1994) 181 CLR 201 Szabo v Balogh [2007] VSC 232 Templeton v Leviathan Pty Ltd [1921] HCA 55; (1921) 30 CLR 34 Union Bank of Australia v Harrison Jones & Deverell Ltd [1910] HCA 44; (1910) 11 CLR 492 Vigolo v Bostin (2005) 221 CLR 191 Warren v McKnight (1996) 40 NSWLR 390 Wentworth v Wentworth [1992] NSWCA 268 Zirkler v McKinnon [2002] NSWSC 285

Certoma, The Law of Succession in New South Wales, 3rd ed, LBC Information Services, 1997 TEXTS CITED : De Groot and Nickel, Family Provision in Australia 3rd ed, LexisNexis Butterworths, 2007 Sundberg R., 'Powers of personal representatives' (1985) 59 ALJ 649 Ritchie's Uniform Civil Procedure Rules, Looseleaf ed, Butterworths

2008/281624 Christopher Thomas John (Plaintiff) Rees David John (by his tutor Keith Gregory Sneddon) (First Defendant) PARTIES : Sheila Ann Galvin (Second Defendant) 2008/282303 Rees David John (by his tutor Keith Gregory Sneddon) (Plaintiff) Christopher Thomas John (First Defendant) David John Galvin (Second Defendant)

2008/281624 M R Elliott (Plaintiff) COUNSEL : D Liebhold (First Defendant) 2008/282303 D Liebhold (Plaintiff) M R Elliott (First Defendant)

2008/281624 Wilson & Co Lawyers (Plaintiff) Sneddon & Partners (First Defendant) SOLICITORS : Laycock Shotter Law (Second Defendant) 2008/282303 Sneddon & Partners (Plaintiff) Wilson & Co Lawyers (First Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2008/00281624 CHRISTOPHER THOMAS JOHN V REES DAVID JOHN BY HIS TUTOR KEITH GREGORY SNEDDON 2008/00282303 REES DAVID JOHN BY HIS TUTOR KEITH GREGORY SNEDDON V CHRISTOPHER THOMAS JOHN JUDGMENT 1 HER HONOUR: Before me for hearing on 26 July 2010 were two sets of proceedings relating to a residential property in Woodberry which had been owned by the late Jessie John, who died on 26 August 2006.

2 The first proceedings (2008/00281624) (the s66G proceedings) were commenced on 18 November 2008 by Christopher John, the eldest of the deceased's three children, seeking orders under s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for sale of the Woodberry property. The registered proprietors of the Woodberry property are Chris and his two siblings, Rees John (who is currently occupying the home) and Sheila Galvin. (Without any disrespect I will refer to the family members by their first names.) The three siblings inherited the Woodberry property as tenants in common in equal shares under the terms of their late mother's will (a gift in favour of Rees giving a lifetime right of occupation of a property previously owned by the deceased having adeemed). 3 The second set of proceedings, brought by Rees against the co-executors of the deceased's estate (namely, Chris and David Galvin, Sheila's son), involves a claim by Rees under s 7 of the Family Provision Act 1982 (NSW) for provision to be made for him out of his late mother's estate. Those proceedings were commenced (shortly after the s 66G proceedings) by summons on 22 December 2008, some nine months outside the time within which any such claim was to be brought under the Act. Accordingly, leave is required under s 16 of the Family Provision Act for the bringing of Rees' claim. 4 After the commencement of the proceedings, an application was made on behalf of Rees for the appointment of a tutor to conduct the proceedings in his name on the basis that he is a person under a legal incapacity as defined in s 3 of the Civil Procedure Act 2005 (NSW). Windeyer AJ made a declaration on 28 September 2009 that Rees was incapable of conducting the litigation in question or of instructing his legal representatives and ordered that Rees' solicitor, Keith Gregory Sneddon, be appointed the tutor for Rees for the purposes of the proceedings. An Amended Summons, to reflect the fact that Rees sued in the Family Provision Act proceedings by a tutor, was filed in due course. I mention this because Rees' legal incapacity is of some relevance when considering any special needs he may have and the explanation for the late commencement by him of the Family Provision Act proceedings. 5 At the outset of the hearing, an issue was raised as to the fact that Chris' co-executor (David) had not been served in the Family Provision Act proceedings (in which he is named as a defendant) and thus the claim brought by Rees against the estate is made in circumstances where only one of the co-executors has appeared in or taken any action in the proceedings. I understand that the solicitors acting for both sides have been unable to make contact with David (even though contact had clearly been made at some point by those acting for Chris with David's mother, Sheila). Sheila, as a beneficiary under the will, has sworn an affidavit as to her financial circumstances which was served by Chris in the context of his duties as co-executor. Sheila was not separately represented in the proceedings and did not attend in court. In relation to the constitution of the proceedings, I indicated that I would proceed to hear the matter and provide my reasons deal as part of the overall determination of the claims.

Issues 6 The issues for determination are as follows:

(i) what order, if any, should be made to address the fact that only one of the co-executors was properly served and joined as a party to the Family Provision Act proceedings;

(ii) whether leave should be granted under s 16 of the Family Provision Act for an extension of time for the bringing by Rees of a claim under s 7 of the Family Provision Act ;

(iii) if leave is granted under s 16, whether, as a matter of fact, the provision made for Rees under the deceased's will was inadequate;

(iv) if the answer to (iii) is "yes", should any property be designated as notional estate and, as a matter of discretion, what orders, if any, should be made for the proper provision for Rees? Background 7 The late Jessie John died on 26 August 2006 leaving three adult children, Chris, Sheila and Rees. Her husband had predeceased her (in May 1993). Each of Chris and Sheila is married with a family of his or her own and neither had lived with the deceased for some time prior to her death. Rees is 55 years old and unmarried. He has lived the whole of his life, up to their respective deaths, with his parents. He is presently unemployed, having worked for close to twenty years from (1975 to 1993) as a tradesman's assistant for BHP in Newcastle, mainly working with boilermakers on ships. Thereafter, his employment has been sporadic. He is presently in receipt of Centrelink unemployment benefits. For the last year or so of his mother's life, when she was unwell and Rees was not working, Rees' siblings paid him a carer's allowance. 8 For some years up to 2004, Rees and his mother had lived in a home she owned at Edgeworth (referred to in some of the cross-examination as the Huntley Close home). In 2004, that home was sold and the deceased acquired the home in Woodberry in which she was living at the time of her death. Rees accepts that the reason for the move from Edgeworth to Woodberry (at a time when the deceased's doctor had advised against such a move) was due to difficulties with their neighbours at the Edgeworth property. (Reliance is placed by Counsel appearing for Chris, Mr Elliott, on Rees' conduct in this regard as being disentitling conduct for the purposes of considering the Family Provision Act claim, since it is said that it was his aggressive conduct to the neighbours that resulted in the need for their mother to move house at a time when she was unwell and contrary to her doctor's advice and her own wishes. Although Rees placed the blame for the disputes with the Edgeworth neighbours on their shoulders, he seems to have accepted that he was involved in some altercations with them which led to apprehended violence orders being taken out against him and which necessitated him living with Chris and his family for a short time on one occasion.) 9 The deceased left a will made on 26 November 2002 under which she gave Rees a lifetime right of occupation of her home at Edgeworth (provided and for so long as Rees was "unmarried and living alone"). On the happening of Rees' death, his marriage or he ceasing to occupy the house alone, then such right of residence was to come to an end and the home was to form part of the residual estate. (This is consistent with a recognition by the deceased that Rees had a need for assistance, in terms of security of accommodation, but with that need being balanced against the claims of her other children on her testamentary bounty.) There is some evidence that Rees was upset by the condition which had been placed by his mother on this right of occupation but nothing seems to me to turn on any such reaction by Rees. 10 Relevantly, for the purposes of the current proceedings, the result of the deceased's acquisition of the Woodberry home (in circumstances where there was no subsequent amendment made to the terms of her will) was that the right of residence given to Rees under the will failed (since clause 4 of the will was specific in its terms and was limited to a right in relation to the Edgeworth property). 11 Rees deposed, in his affidavit sworn on 12 May 2009, to conversations with his mother on a number of occasions over the years in which he said that his mother had made promises to him that he would always be able to stay in the house if he wanted to and that she had put that in her will. There is some doubt as to whether those conversations continued to take place after the move to Woodberry (I refer later to the thrust of Rees' evidence in cross-examination on that issue) but it seems that at least in the immediate aftermath of their mothers' death, the siblings all accepted that it had been their mother's intention that Rees should have a right of occupation of what might generally be refer referred to as the family home after her death, as indicated in a letter sent from the estate's lawyers to Rees after her death. (It was accepted by Chris, after some demur, in cross-examination that this letter reflected the instructions communicated to the estate's lawyers at that time.) In that letter, dated 25 October 2006, (Exhibit 1), the solicitor for the executors wrote to Rees stating:

I note that you all [presumably the siblings] believe that it was the late Mrs John's intention that a right of residence be allowed to you [Rees] with respect to the home in which she was living at the date of her death but pointed out that the gift had failed and that it would be a matter for agreement between the siblings whether Rees would be able to continue to reside in the house. 12 Rees concedes that he had a 'quick read of' that letter (T 59 - 60) but it is not clear to me that he fully appreciated the import of that advice (even though he agreed in cross-examination with the proposition that he had realised when he received the letter that the will had not made provision for him; that he could be asked to leave Woodberry at any time and that his right to remain was dependent on agreement between his brother and sister - T 61 - it seemed to me possible that Rees was there to be understood simply as accepting that this was what the letter had said and he had read it at the time). I say this because there was evidence from an expert psychologist that Rees is a man of low average intelligence has difficulty with abstract reasoning and for whom anything out of the ordinary or a bit more complicated is likely to present a problem. Dr Warren gave evidence that he had observed Rees to have been slow at reading and absorbing the test questionnaires given to him (to which I refer later), which makes it unlikely that on a quick read of the letter (without more) Rees would have grasped the implications for his tenure in the property. Furthermore, insofar as it was subsequently found by Windeyer AJ, in effect, that Rees was not capable of giving instructions to his solicitors for the conduct of these proceedings, this suggests a difficulty of some kind in his comprehension or communication of matters having a legal consequence. If there is some doubt as to whether Rees would have properly understood his position even if explained to him by solicitors at the time (suggested by the need for appointment of a tutor to make such decisions in relation to legal matters on his behalf), I can be even less confident that in the absence of any independent legal advice as to his position in October 2006, Rees did fully appreciate on receipt of this letter that there was a real risk that he might be unable to continue to reside in the property and that it might be prudent to obtain legal advice. Counsel for Rees (Mr Liebhold) submitted that it could be inferred that, even if on notice of that risk (on receipt of Exhibit 1), Rees believed that he would be able to stay in the property. I am not convinced that I can draw an inference as to what Rees believed in this regard but I consider it unlikely that he fully grasped the risk that he could be required to vacate (since when that risk became apparent by the commencement of legal proceedings he did take advice as to his position). In any event, whatever Rees' belief at the time as to the prospect of his siblings deciding to sell the property and refusing to allow him to remain in it, there is certainly nothing to suggest that he understood he might be entitled to make a claim which might result in him being able to remain in that home and had elected not to make such a claim. 13 At some stage after their mother's death, Rees expressed the view to Chris that he would like to return to live in Edgeworth or to move to Armidale. Rees accepted that at one stage he had agreed with Chris for the sale of the Woodberry property (T 56) though did not remember agreeing to appoint a real estate agent for the sale. Rees' explanation for that not proceedings, in the witness box, was that he did not have the money (by which I understood him to mean that he had realised he would not have enough money if the property was sold to acquire somewhere else to live). 14 By reason of the ademption of the gift contained in clause 4 of the 2002 will, the residuary estate (comprised mostly of the home at Woodberry) was divided in equal shares between the three children. The estate has been distributed in full. At some time in 2007 there was a three way division of the cash held in the estate (there being some doubt as to whether the amount so distributed was $27,000 in total (as Chris recalled) or about $48,000 (as Rees asserts) but there is no dispute that an equal amount of cash was distributed to each of the siblings shortly after their mother's death). The Woodberry property was transferred into the three siblings' names as tenants in common in equal shares. It seems not to be disputed that this occurred within 18 months of the death of the deceased (and hence the property falls within the definition of distributed estate for the purposes of the Act). 15 The time within which a claim for provision under the Family Provision Act was to be brought expired on 26 February 2008. As noted above, in November 2008 the s 66G proceedings were commenced. Shortly thereafter, on 7 December 2008, Rees sought legal advice in relation to the estate for the first time and his proceedings were commenced later that month. It is conceded that, but for Rees' Family Provision Act claim, there is no objection taken to the claim by Chris for orders under s 66G (T 3.26). Therefore, the real dispute is as to whether the provision for Rees under the will of a one-third interest in the property (that interest valued at approximately $85,000) and in the balance of the residuary estate (a cash payment of somewhere in the order of $9-16,000) was inadequate for his proper maintenance and, if so, what and how any further provision should be made for him. Summary 16 For the reasons set out below I am of the view that:

(i) It is not necessary for both executors to be party to, or to defend on behalf of the estate, proceedings in which a Family Provision Act claim is made for provision out of a deceased estate. If there had been doubt about whether the proceedings were properly constituted in the absence of the joinder of David, as co-executor, then I would have been satisfied that it was appropriate to make an order pursuant to Rule 7.10(2)(a) of the Uniform Civil Procedure Rules (2005) (NSW) that the proceedings be heard in his absence. As it is, I do not consider this to be necessary.

(ii) It is appropriate that leave be granted pursuant to s 16(3) of the Family Provision Act for an extension of time for the bringing by Rees of his claim for provision under s 7 of that Family Provision Act .

(iii) As a matter of fact, the provision made for Rees under the deceased's will was inadequate.

(iv) The proper provision for Rees, taking into account all the circumstances, is that in lieu of the residuary bequest under the will, Rees should receive a legacy equal in amount to five-sixths of the net proceeds of sale of the Woodberry property after there has been deducted from the sale proceeds not only the vendor's costs but the amount of the costs of the Family Provision Act proceedings incurred by Chris as executor on an indemnity basis and of the s 66G proceedings on a party and party basis. In lieu of the residuary bequests made in their favour, Sheila should receive no share of the proceeds of the sale but a one-third share (on Rees' death) of any real property acquired with those proceeds (or any subsequently acquired real property if he were to sell the property so acquired) (in effect, a remainder interest of the kind contemplated by a Crisp order) and Chris should receive a legacy in the amount of the remaining one-sixth of the proceeds of sale and a one-sixth remainder interest. As the estate (and, in particular, the Woodberry property) has been wholly distributed, in order to enable provision of that kind to be made it is necessary to designate property as notional estate. I therefore designate as notional estate so much of the net proceeds of sale of the Woodberry property as is necessary to meet the legacy to be provided for Rees (and the costs to be met before calculating the final amount of that legacy). 17 I will hear Counsel as to the precise formulation of those orders and any remaining issues in relation to the respective proceedings. In particular, I will hear submissions as to whether it is necessary formally to appoint a trustee in order to administer the Crisp orders or whether this can be done more cost-efficiently within the family. In light of the findings on the Family Provision Act claim, the relief sought in the s 66G proceedings becomes otiose and those proceedings should be dismissed. I consider that Chris' costs of those proceedings, which I would not anticipate to be more than minor (the bulk of the legal costs surely having been referable to the Family Provision Act proceedings) should be borne on a party party basis out of the sale proceeds of the Woodberry property before calculating the amount to be distributed to Chris and Rees (on the basis that had Rees made his claim in time those s 66G proceedings would not have needed to be commenced). Reasons

(i) Position of executor 18 As noted above, an issue was raised at the outset of the hearing as to whether the estate would be bound in the absence of joinder of both executors to the proceedings (attempts to serve, or even to contact, David having been unsuccessful). 19 In The Law of Succession in New South Wales, 3rd ed, LBC Information Services, 1997, Professor Certoma notes that:

The office of executor or administrator is regarded as being individual or unitary and thus where several executors or administrators are appointed their authority is joint and several so that any one or them represents the deceased and may bind all of the others [citing Jacomb v Harwood (1751) 2 Ves Sen 265; 28 ER 172; Union Bank of Australia v Harrison (1910) 11 CLR 492]. 20 However, Professor Certoma notes that there are two exceptions to this general proposition: first, that all of the legal representatives, unless the leave of the court is obtained, must join in the sale, lease or mortgage of real estate; and, secondly, that all of the legal representatives should generally be joined in bringing or defending actions (citing Latch v Latch (1875) LR 10 Ch 464; Scurry v Morse (1724) 9 Mod 89; 88 ER 333). (A distinction was drawn in this regard by Professor Certoma with the position of trustees, who it was noted must always act jointly, referring to Attenborough v Solomon [1913] AC 76.) 21 In both Scurry v Morse and Latch v Latch, the proceedings in question (to which it was necessary for each of the legal representatives to be joined) were proceedings in which an account was sought from those representatives. Not surprisingly, it was held that a representative against whom an account was sought should be made a party to the proceedings. Those cases do not seem to stand for any broader position in relation to the joinder of co-executors in litigation where other relief is sought (not against the representatives personally) such as the present. 22 In Scurry v Morse, it was held that a bill in equity for an account could not be brought only against one co-executor. There, the plaintiffs (being one of three co-executors under the will and the widow of the testator) had together claimed an account of the expenses the defendant co-executor had incurred on behalf of the estate in unsuccessfully prosecuting certain actions. The suit was dismissed for want of proper parties. 23 In Latch v Latch the court was similarly concerned not to order an account of an executor who had not been joined as party to proceedings, James LJ there stating "I cannot see my way to making a decree for an account against an accounting party in his absence". 24 In Attenborough v Solomon (to which reference was made by Professor Certoma in distinguishing between the capacity in which legal representatives of the deceased were to be involved in the proceedings) determination of the question whether title to property in the estate was held by a representative as executor or as trustee under the will was critical to a determination as to whether the representative was able to bind the estate in relation to a property transaction. It was held there that one representative of an estate could not devise property of the estate without the assent of other representatives, because in that case the title to the property was vested in the representatives as trustees, and so it was necessary for all the trustees to consent to the transfer of property for the transfer to be affected. In contrast, one of several co-executors may dispose of property forming part of the deceased person's estate without the assent of other co-executors, where the executors were not otherwise trustees of the estate property. Thus, in Attenborough, where the administration of the estate had been completed and any remaining property was held in the representatives' capacity as trustees, the consent of all trustees was required in order for title to estate property to pass. 25 Whether all of the executors must be joined in the present proceedings is a question thus to be determined by reference to the nature of the relief which is sought and the capacity in which the executors against whom that relief is sought are acting. By way of example, in Szabo v Balogh [2007] VSC 232, the issue came before Habersberger J in the following way - one of two co-executors had refused to sign (after previously cancelling an agent's authority to sell) the necessary document to transfer land pursuant to a contract of sale. Despite Counsel's advice that a transfer signed by one of the co-executors was sufficient to constitute a valid transfer of the property the purchaser insisted upon both executors signing the documents and the plaintiff executor sought an order from the court to that effect, which was granted. At [12] - [13], Habersberger J referred to the decision of the House of Lords in Attenborough v Solomon, the decision of the Privy Council in Commissioner of Stamp Duties for Queensland v Livingston (1964) 112 CLR 12; [1965] AC 694; [1965] ALR 803; [1964] 3 All ER 692 and the decision of the High Court in Union Bank of Australia v Harrison Jones & Deverell Ltd [1910] HCA 44; (1910) 11 CLR 492 and accepted that those authorities stood for the proposition that a co-executor could act jointly or severally in administering the estate.

26 In Union Bank of Australia, the High Court considered the issue whether all co-executors must sign a transfer in order validly to transfer property, in the context of which Griffith CJ addressed the question whether it was necessary that all co-executors be joined as a party to an action in which this issue was raised. His Honour came to the conclusion that this was an issue of procedure as opposed to the validity of proceedings and as to whether it was necessary for all executors to be joined his Honour stated:

At common law co-executors were regarded as one person, and each of them could bind the others by disposition of the assets, by assent to legacies, and in other ways. In an action by or against executors all the executors ought in strictness to be joined, but it was settled law that the objection of non-joinder of one or more could only be taken by plea in abatement, and that if that plea was not pleaded the plaintiff could obtain a valid judgment notwithstanding the non-joinder …

… It was held so long ago as the time of Queen Elizabeth that a judgment recovered against one of several administrators could be pleaded in bar to a later action against all: Further v. Further . The principle of this decision must have been that the plaintiff was entitled under his judgment recovered in the action against one to have recourse to the assets in the hands of all. Otherwise he must ex debito justitiæ have been allowed to obtain such recourse in a second action against the other.

Rules and forms of procedure are not ends in themselves, but means to an end, which is the attainment of justice. Rules as to parties are means to secure that all persons interested in asserting or resisting a claim shall be heard before judgment is given. In simple cases the obvious means of securing this end is to require that all persons having an interest, however small, shall be present. In the Court of Chancery at one time this rule was pressed to its extremest limits, but even then the Court relaxed the rule if the circumstances were such that if all the persons interested were individually made parties the suit could not effectually proceed. The principle was expounded by Lord Eldon L.C. in the case of Cockburn v. Thompson . In that case a plea had been put in to a bill alleging that several persons were not parties. The Lord Chancellor said: - "The strict rule is, that all persons, materially interested in the subject of the suit, however numerous, ought to be parties: that there may be a complete decree between all parties, having material interests: but that, being a general rule, established for the convenient administration of justice, must not be adhered to in cases, to which consistently with practical convenience it is incapable of application. … The principle being founded in convenience, a departure from it has been said to be justifiable, where necessary; and in all these cases the Court has not hesitated to depart from it, with the view by original and subsequent arrangement to do all, that can be done for the purposes of justice; rather than hold, that no justice shall subsist among persons, who may have entered into these contracts." This judgment was cited and relied upon by Lord Macnaghten in Duke of Bedford v. Ellis and by myself in Barnes v. Sharpe . See also Williams v. Salmond . The old rule has since been frequently relaxed by Statute in particular cases.

These considerations show that the rule relied upon by the respondents is not a rule of abstract justice which cannot be relaxed, but a rule of practical convenience adopted as a means to an end, which may be relaxed if substantial justice can be better attained by doing so. No doubt an order directed to a man personally cannot be obtained in a proceeding to which he is not a party, but the Trustees Acts afford familiar instances of cases in which substantial relief can be obtained without the presence of the person in whom a legal estate is vested.

In substance the interests of the estate and of the beneficiaries are equally represented by one of several executors whether the creditor seeks recourse to chattels alone, or to land alone, or both. 27 Similarly, Barton J stated:

"Co-executors are regarded in law as an individual person; and, by consequence, the acts of every one of them, in respect to the administration of the effects, are to be deemed to be the acts of all; for they have a joint and entire authority over the whole property. Hence a release of a debt by one of several executors is valid, and shall bind the rest. So a grant or a surrender of a term by one executor shall be equally available:" Toller, Executors , p 359….. In Further v. Further it was held, and it is still law, that a recovery against one administrator shall bind all; and a joint administrator stands on the same footing as a co-executor: Jacomb v. Harwood . The judgment must be satisfied, though recovered against one executor only out of several. This seems to proceed on the principle, stated by Toller , at p. 133, that an executor "is not entitled in his own right, but in autre droit, the right of the deceased. He is entrusted merely with the custody and distribution of the effects." The inclusion of the other executor or executors in the action would give the estate no greater protection. 28 The distinction between acting as a co-executor or as a trustee and the consequence this has for a representative's ability to transfer estate property (as opposed to the issue here before me as to whether all executors need to be joined as parties in order for the suit to be properly constituted or for the estate to be bound) was discussed by Dr Ross A Sundberg QC (as his Honour then was) in his article 'Powers of personal representatives' (1985) 59 ALJ 649. After reviewing the relevant authorities, Dr Sundberg came to the conclusion that a disposition by one of several personal representatives binds the estate (whether or not that personal representative is purporting to act alone on behalf of the estate) but that if, at the date of disposition or contract, the personal representative has become a trustee in relation to the property, the estate will not be bound. 29 In Johnson v Trotter; Estate of Trotter [2006] NSWSC 67, White J observed (at [20]) that it was well settled that one of several personal representatives could act separately from the others, and could bind them and the estate in so doing, referring to what was said by Isaacs J said in Union Bank of Australia (at 516, 520): When it is said that co-executors are to be regarded as an individual person, it is not meant that all must unite in the performance of each act, but that their official personality is not divisible or distinguishable, and that they have individually and collectively all the rights and duties of the office they undertake.

... the law makes the distinction that each has, by virtue of his office, and therefore so long as that office continues, and by reason of his personal representation of the testator, such an interest authority, and power, as enables him to deal with the whole estate, for the purpose of the administration. noting that in this respect executors differed from trustees who must act unanimously (unless permitted to act by majority pursuant to s 49 of the Trustee Act (NSW) ), citing Exception Holdings Pty Ltd (in liq) v Albarran & Ors [2005] NSWSC 677). 30 In Exception Holdings, in a case considering the appointment of a receiver, Young CJ in Eq (as his Honour then was) had said [at 26]:

When one reads all the cases one can see that at law the proposition still remains good that one executor binds the estate. The question I am dealing with here is the efficacy at law of the appointment of the receiver and the cases support the view that it was validly executed if the parties were executors rather than trustees. 31 Campbell J (as his Honour then was) in O'Brien v McCormick [2005] NSWSC 619 considered the position in relation to a more analogous situation, where a dispute had arisen as to the recovery of costs incurred by an executor who had incurred costs in defending Family Provision Act proceedings to which not all executors had been made party. His Honour said (at [28]):

The defence of Family Provision Act 1982 proceedings is one of the tasks an executor performs in administering the estate: Re Woodman, deceased; ex parte The Trustee (1940) 11 ABC 159 at 175; Re Linning [1995] 1 QdR 274 at 276; Re Lowe [2000] NSWSC 1180 at [5]. Even if usually when executors are party to litigation they ought in strictness all be party to that litigation ( Union Bank of Australia v Harrison, Jones & Devlin Ltd [1910] HCA 44; (1910) 11 CLR 492 at 499), that situation does not apply when a rule of court like Part 77 rule 60 Supreme Court Rules 1970 and the practice described in Collison v Collison (Master McLaughlin, 28 March 1995, unreported) permit the estate to be represented in litigation by fewer than all the executors. In defending the Family Provision Act 1982 proceedings the Plaintiff is engaging in one of the types of action where a single executor's action can bind the estate, without any need for assent or approval by any co-executor: cf Union Bank of Australia v Harrison, Jones & Devlin Ltd [1910] HCA 44; (1910) 11 CLR 492. As part of what is involved in defending the proceedings she has the power to pay the estate's money in payment of the fees of the solicitor acting in the defence of the proceedings, in a way which is valid as between the solicitor and those interested in the estate. (my emphasis)

32 Accordingly, it is not necessary, in order for the Family Provision Act proceedings now before me to be properly constituted, or for the estate to be bound by any orders made in these proceedings, that David be joined in his capacity as co-executor. 33 Nor is it necessary for me to consider how any difficulty posed by his absence as a party could be overcome. However, insofar as Mr Liebhold suggested that any difficulty could be overcome by reliance on the provisions contained in Rule 7.6 of the Uniform Civil Procedure Rules (which permit the court to make orders appointing a member of a class of persons interested in or affected by proceedings concerning, inter alia, the administration of a deceased estate to represent one of more of that class of persons), I am not persuaded that this would be applicable. I accept that the purpose of that rule is to allow, in the classes of proceedings to which it applies, a representative to be appointed whenever it is expedient (see commentary in Ritchie's Uniform Civil Procedure Rules, Looseleaf ed, Butterworths, citing Mae v Newton (1887) 34 ChD 347, at 350; Re Gardiner; Jones v Gardiner [1887] WN (Eng) 59; Templeton v Leviathan Pty Ltd [1921] HCA 55; (1921) 30 CLR 34). However, here, David has no interest, as such, in the administration of the deceased's estate, as he is not a beneficiary (as opposed to a duty owed to the estate). In his capacity as executor he has a duty to uphold the terms of the will (and, depending on the orders made, it may fall upon him to administer any property ultimately designated as notional estate in these proceedings). Therefore he is clearly a proper person to be joined to the proceedings. However, I am not convinced that this is a situation in which the power under Rule 7.6 would have been enlivened. 34 It was also suggested that reliance could be placed on the substituted service provisions under the Uniform Civil Procedure Rules. However, in circumstances where it seems I could not be confident that any order would come to the attention of David, I would not have been persuaded that it was appropriate to make an order of that kind. 35 I did have regard to Rule 7.10 of the Uniform Civil Procedure Rules which permits orders to be made for proceedings to continue in the absence of a representative of the estate or to appoint a representative of the estate for the purposes of the proceedings, among other circumstances in any proceedings in which it appears to the court that a deceased person's estate has an interest in the proceedings but is not represented. Any order made under that rule and any judgment or order subsequently made in the proceedings binds the estate to the same extent as it would have been bound had a personal representative of the deceased been a party to the proceedings. The circumstances in which it may be appropriate to proceed in the absence of a representative include where there are other parties to the proceedings who have the same interest as the estate (Borough of Drummoyne v Hogarth (1906) 23 WN (NSW) 243). In Hewitt v Gardiner [2009] NSWSC 705, I considered it appropriate to make orders for the proceedings to continue in the absence of a representative of the estate in Family Provision Act proceedings where the estate was small and the main beneficiaries were already represented in the proceedings (subject only to formal notification to the remaining person with an interest in the outcome of the proceedings). 36 In the present case, there is a contradictor in the Family Provision Act proceedings (Chris), who is one of the executors and is seeking to uphold the terms of the will; the estate is small; and any delay in attempting to serve David at the time the proceedings had been listed for hearing would only have added to the overall cost and thus been likely to reduce the amount available to meet any order for provision. Therefore, had it been necessary, in order for the proceedings to be properly constituted or to bind the estate to any orders which might be made, for all executors to be joined to the proceedings, I would have considered it appropriate to make an order pursuant to Rule 7.10(2)(a) of the kind I adverted to during the course of the hearing, that the proceedings be heard in the absence of one of the co-executors of the estate. As it is, no such order is necessary.

(ii) Leave to extend time for making of application by Rees 37 In the absence of consent, an extension of time can only be made if sufficient cause is shown by Rees for his application not being made in time. The existence of a sufficient explanation for the late application is critical, as was explained by Hodgson J (as his Honour then was) in Lewis v Lewis [2001] NSWSC 321 at [82]:

In general terms, it seems clear that matters relevant to the exercise of discretion to extend time under s 16 include the existence and strength of a case for relief under the Act, the explanation given for failure to commence proceedings in time, any prejudice caused by the late commencement of proceedings, and any unconscionable conduct by either side. The second factor, the explanation, is specifically dealt with in s 16 of the Act which, in the absence of consent, precludes an extension being granted unless "sufficient cause is shown for the application not having been made within" the prescribed period . (My emphasis) 38 His Honour in Lewis noted that "sufficient" must mean something like "sufficient in all the circumstances to justify the granting of the extension of time". 39 Accordingly, for leave to be granted under s 16(3) I must first be satisfied that sufficient cause has been shown for the application not having been made within the requisite period. The explanation proffered in the present case, as I apprehend it, is that Rees (though on notice of the failure of the gift providing him with a right of residence in a home owned by the deceased under the will and of the need for his siblings' agreement for him to be able to remain in occupation of the Woodberry property) nevertheless was not aware until after the relevant time period had elapsed of his right to make a claim for any further provision under his late mother's will. 40 The first occasion on which Rees sought legal advice was after the service on him of the summons in the s 66G proceedings and the proceedings were commenced almost immediately. Mr Liebhold submitted, in effect, that it could be inferred that Rees' Family Provision Act claim was thus commenced in the context of, and in response to, the s 66G summons brought by Chris (in his capacity not as executor but as co-owner) seeking the appointment of trustees for sale of the residence in which Rees had lived both before and after his mother's death (from which I understand Mr Liebhold to mean that I could infer that Rees had not considered it necessary, or understood it was open to him, to take such a step until the question of him vacating the property had been brought to a head). 41 It seems to me that this is not a case, as was the position in Maxwell v Public Trustee [2001] NSWSC 764, where the applicant had been given notice of Family Provision Act proceedings, or was aware of such proceedings, and was aware or had been made aware of his or her rights in that context. In Maxwell in those circumstances, in the absence of an explanation for the lateness of the application, Macready M (as the Associate Justice then was) considered that the only conclusion to which the court could come was that the party there seeking leave for an extension of time was aware of their rights but had decided not to bring his or her own application (at [16]). 42 In the present case, the fact that Rees had not been provided with legal advice as to his position prior to the expiration of the period within which he could bring a Family Provision Act claim has added significance when one takes into consideration the evidence as to Rees' limited ability to understand the legal import of matters such as the need for his siblings to agree to him remaining in the property. The psychologist who examined Rees (Dr Warren) gave evidence that the initial consultation he had with Rees had taken longer than usual, in part because Rees was slow in reading and responding to questions. Whether or not the evidence establishes that Rees suffered from a psychological disorder amounting to an "impairment" for the purposes of the World Health Organisation definition (a matter as to which there was no little dispute, having regard to the speculative or hypothetical nature of the conclusion reached in the expert report tendered for Rees, and which I will consider in due course), there seems no dispute that Rees is someone of low average intelligence, whose employment history and qualifications are in the area of manual labour, and who may well not have understood or appreciated the need to seek advice as to his position (having regard to the fact that the will did not, as I accept he had believed it would, make provision for him to remain in the deceased's then home after her death). 43 Rees' responses to questions put to him in cross-examination seemed to me to indicate that he is a person with a tendency to focus on his personal perception of events to the exclusion of others or the effect of those events on others (so, for example, when questioned as to whether he accepted that the move from Edgeworth to Woodberry was against doctors' advice or not in his mother's interest, Rees' answers were not responsive and were focused on his own views in relation to the move; similarly, his perception of the disputes with his former neighbours in Edgeworth was that this was all their fault, though it would seem that Rees may have played a part in this - at least in circumstances where the dispute escalated to the extent that an apprehended violence order was made against him). To the extent that there was also evidence that Rees had shredded some correspondence sent to him by the expert psychologist who had been asked to assess Rees, it is possible that correspondence from the estate's lawyers may have been treated as dismissively (at most, Rees conceded he had had a quick read of that correspondence). 44 Therefore, I cannot draw from the fact that Rees was late in making a claim of the present kind that he had done so with an understanding or appreciation of his right to make such a claim - and certainly could not infer that he had made any decision not to pursue such a claim. I would conclude that the reason for the lateness of the claim was that Rees (rightly or wrongly) believed he would be able to continue living in his late mother's house and did not realize that to be assured of a right to do so he would need to make a claim of the present kind. I think, given Rees' circumstances and the absence of legal advice at the time, a sufficient explanation has been given for the lateness of the application in order to satisfy the threshold requirement of s 16 of the Family Provision Act.

45 I turn then to the principles governing the exercise of discretion on applications to extend time under the Family Provision Act. These were considered in Massie v Laundy (unreported, NSWSC, 7 February 1986,Young J) and applied in Maxwell (from [8]). (They were summarized by Macready M in Morton v Little; Prince v Little [2005] NSWSC 36, at [14] and noted in Ebert v Ebert [2008] NSWSC 1206, at [38].) Apart from the reason for the lateness of the claim, the factors to which one must look include whether beneficiaries under the will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by either side; and, as noted in Warren v McKnight (1996) 40 NSWLR 390, at 394, per Hodgson J, as his Honour then was, the strength of the claim made by the party seeking an extension of time. 46 As to the question of prejudice, as explained in Cetojevic v Cetojevic [2006] NSWSC 431, the prejudice to which s 16(3) looks is any prejudice occasioned by the delay in lodging the claim.

47 This is not a situation where it is suggested that Rees' siblings have taken any particular course, or done anything to alter their position, on an assumption that no Family Provision Act claim was being made by Rees, other than (perhaps) the steps taken by Chris of instituting proceedings under s 66G for an order in respect of the sale of the property. From a practical perspective, the siblings have not had the benefit of ownership of the property since the estate was distributed (that property having been occupied at all times by Rees). No rent has been paid by Rees, although it seems he has paid the rates and taxes or other expenses referable to the property over that period. It was not suggested that the estate had been diminished by the occupation of the property by Rees in the time prior to its distribution. 48 Mr Elliott referred to the fact that the estate has been wholly distributed and hence the executor has incurred legal fees for which there are no assets in the estate from which to seek recoupment. (It might also be said that it is unlikely that the s 66G proceedings would have been commenced as they were if the Family Provision Act claim had been brought within time). Chris is therefore at risk of having to meet personally the expenses incurred by him in representing the estate and defending the will. That prejudice is, of course, an incident of his position as executor, not beneficiary (though he is also a beneficiary under the will) and the test as usually framed refers to prejudice to beneficiaries (who would presumably only be prejudiced if Chris, as executor, were able to seek recoupment directly from them notwithstanding the distribution of the estate). Nevertheless, to the extent that this is a relevant prejudice to take into account (namely personal liability of the executor), it is in any event a prejudice that can be addressed by the making of appropriate orders as to the provision to be made out of the notional estate. Therefore, I consider that there is no unacceptable prejudice occasioned by the delay in commencement of the proceedings. 49 As to the second factor, there has been no suggestion of unconscionable conduct on either side. While there was a suggestion that Rees had resiled from an earlier agreement to sell the property (and he seemed to accept in cross-examination that he had agreed at one stage that the house should be sold though he did not recall having agreed to appoint real estate agents to market the property), reliance was not placed on this as a factor speaking against the grant of leave and in the circumstances I would not have regarded this as sufficient to refuse leave. 50 As to the strength of the claim, in De Winter v Johnstone (unreported, NSW Court of Appeal, 23 August 1995), Powell J considered that as an application for extension of time was invariably dealt with at the time of the application for substantive relief, no extension of time ought to be granted unless it was established that the applicant seeking an extension of time would, in the event of the extension being granted, be entitled to an order for substantive relief. By contrast, in that case Sheller J considered that it was only necessary for the applicant to show that the application was not bound to fail. I do not consider that the present application is bound to fail and, indeed, I am of the view that Rees has established an entitlement to relief. Therefore, on either formulation, this factor would point towards the grant of leave. 51 Accordingly, I grant leave pursuant to s 16(3) of the Family Provision Act to extend the time for the making of Rees' application under s 7 of the Family Provision Act.

(iii) & (iv) Issues raised on Family Provision Act claim

52 Turning to Rees' claim for provision, the test required to be applied (as outlined in Singer v Berghouse (No 2) (1994) 181 CLR 201 and as applied in countless cases since then) is a two stage test. 53 The first stage is a question of fact, namely whether the provision (if any) made for the applicant is inadequate for his or her proper maintenance, education and advancement in life. An assessment of whether the provision, if any, made was "inadequate"; involves an assessment as to what level of maintenance was appropriate having regard to the applicant's financial position, the size and nature of the estate, the relationship between the applicant and the deceased and the relationship between the deceased and other persons who have legitimate (and in this sense competing) claims upon the deceased's bounty. 54 The second stage, which involves the exercise of discretion, is for the court to assess the proper level of maintenance and adequate provision which should be made. The factors to be taken in account in making such a determination are contributions to the property and welfare of the deceased; the character and conduct of the applicant in relation to the deceased; and the circumstances before and after the death of the deceased (including the extent of the claims of other persons on the estate of the deceased). (iii) Adequacy of provision by deceased 55 The factors to be taken into account on this issue are summarised above. The provision made for Rees under the will (given the failure of the right of occupation in relation to the Edgeworth home) was effectively worth somewhere in the order of $90,000 - $100,000 (being a one-third share in the Woodberry property, worth about $82,000 and a third of the cash in the estate, somewhere between $9,000 and $16,000). Equal provision was made for each of Rees' siblings.

Applicant's financial circumstances 56 I have earlier outlined briefly Rees' personal circumstances. Rees is now 55 years old. He has been unemployed (other than in sporadic employment) since 1993. The type of work for which he is qualified (including by reason of the certificates he has obtained through the TAFE and other courses he has undertaken over the years) is unlikely to be highly paid. His assets are limited to his interest in the Woodberry property (which would be worth approximately $82,000 accepting that the property has a $255,000 value), a motor vehicle worth $5,000 and some cash. Rees' second affidavit sworn 21 July 2010, listed amongst his assets cash totalling $43,924.18 (in two separate accounts). The bulk of that cash (not disclosed in his first affidavit) represents funds Rees received from his mother's estate as well as fund from Rees' superannuation account. Rees says that he has been drawing on his superannuation benefits in order to make payments for the house, which he seemed upset at having to do so (stressing that it was his money and that he did not want to use it but had to when his mother's money was used up - T58.9; T 58.19; T 58.23; T 58.49; T 59.6). From that it would seem that he regarded the distribution from his mother's estate as his mother's money and thus that this amount has now been largely if not wholly disbursed on his living expenses. 57 Rees is in receipt of a Centrelink Newstart allowance of some $449.30 per fortnight (and Mr Liebhold submits that it is unlikely that Rees will rejoin the workforce in the future, hence it might be assumed that his income will be limited to such an allowance). In Foster v Lisle [2003] NSWSC 1243 (at [56]-[58]), Young J, as his Honour then was, observed that it is no answer to a claim of this kind that a party is entitled to a pension, but that a wise and just testator would take into account the receipt of such income. It was not suggested that I should take into account the receipt of employment benefits by Rees in reducing any provision for him (and I note that there was no evidence as to the impact of any provision for Rees on the social security entitlements which might otherwise be available to him). 58 Rees' affidavit disclosed liabilities of $28,000 (most of which, as Mr Elliott noted, relate to the upkeep and rates/taxes in respect of the house). As Mr Elliott points out Rees would not have to meet these if he were to be in rented accommodation (though in those circumstances he would not have a capital asset). His personal financial needs appear to be modest. 59 I should note that, insofar as weight was placed on the fact that Rees did not disclose until his later affidavit the amount of money obtained by him as part of his superannuation entitlements, this is not a case, such as in Collings v Vakas [2006] NSWSC 393, where Campbell J (as his Honour then was) dismissed an application for family provision in circumstances where a crucial element of the plaintiff's financial situation (her income and expenditure) had not been satisfactorily proved. There, his Honour was satisfied about two elements of the plaintiff's financial situation - that she owned no real estate and had ongoing family responsibilities, but not as to the plaintiff's income and expenditure. His Honour said (at [67]):

…before a court can be satisfied that a plaintiff was left without adequate provision, the court needs to be persuaded that it has been presented, at least in broad outline, with the whole picture concerning the plaintiff's financial situation. 60 Here, however, the information has been provided, albeit late. The lateness would at most go to credit and it seems to me that Rees' explanation (that it was his money and by inference did not need to be taken into account) is likely to be a product of his lack of understanding as to what was required rather than any intention to mislead. I draw no adverse inference from this. 61 It was submitted by Mr Elliott that, instead of obtaining work, Rees has elected to lead a relatively leisurely life with the benefit of rent free accommodation in the property and that there is no reason why the court should infer that he could not obtain paid employment if he had an incentive to do so. Certainly, Rees has obtained a number of qualifications since he left the BHP which might enable him to obtain remunerative employment (such as welding; land care; forklift driving qualifications, and the like) and he has had some paid employment, such as cleaning work and, more recently, work packing eggs at the local egg farm. However, I do not think I can assume that secure ongoing employment (for someone of Rees' age and with his abilities and employment history) would be readily available. The fact that Rees appears to have been diligent in attending work related courses (and has worked with a case manager to prepare his curriculum vitae) does not suggest that he has been indolent in that regard. 62 Although Chris deposed in his affidavit to a conversation with Rees around 1993 when he says Rees told him he was not interested in working, Rees says that that was in the context of the particular job which Chris had said he could line up for him. I do not think I can draw from one conversation which took place some time ago (whichever version be accepted) the conclusion that Rees is now simply seeking to avoid the need to look for or take on any work (as was suggested by Mr Elliott). 63 I also take into account that (despite the fact that he has a number of personal references, including one from someone he knew at the BHP) the difficulties working with others which seem to have led to his departure from the BHP in the first place (and the difficulties which seem to have beset his dealings with the neighbours at Edgeworth) may be indicative of a personality which would make long term work at this stage of his life less easy to obtain. (I note that although Rees' affidavit suggested that he had left work at the BHP to help his mother care for his father (para 5), Rees seems to have accepted that there were also issues at work at that time.) 64 That said, it seems that Rees is capable of obtaining work from time to time to supplement his government income benefits and I see no reason why that should not be able to continue in the future. This is relevant when considering the amount for which provision, if any, should be made out of what is a very small estate. 65 As to the question of need from a social point of view (and in particular the need Rees is said to have for continuity of occupation of the home), reliance was placed by Mr Liebhold on a report obtained from an expert psychologist, Dr Warren, for the proposition that Rees has a need for security of accommodation and that it would be stressful for Rees to be required to move from the Woodberry property. (I note Mr Liebhold did not rely upon the fact that a tutor had been appointed to conduct these proceedings for the conclusion that Rees suffered from a psychological disorder amounting to impairment of any kind - T 7.) Mr Liebhold asked that the court take judicial note of the fact that it was not an easy thing for an expert to form an objective opinion where the person the subject of the assessment wished to appear to be better than in fact he was. In that regard, it seems to me that to make any such assumption would rather seem rather to beg the very question at issue, which is whether Rees had any special need arising from his psychological state, and I have not done so.) 66 I admitted much of Dr Warren's report subject to relevance and to weight over the objection of Mr Elliott that the report did not meet the test outlined in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305. Mr Elliott noted that the information on which Dr Warren had formed his opinion was not specified in the report nor was his reasoning clearly stated (it was not clear for example how it was said that Rees was 'faking good' or why that would be an indication of psychological difficulty nor was there any information as to why that information would suggest psychological impairment within one of the two stated domains - or any explanation of those two stated domains - Asperger's syndrome or schizoid personality disorder). 67 Dr Warren had observed Rees on two occasions for two and a half hours and one hour respectively. He had been asked to address the question whether Rees had any psychiatric or other disorder (and, from his answers in cross-examination, it seems his attention might have been directed in that regard to Asperger's syndrome). After taking into account the history obtained from Rees; his instructions from Rees' solicitors; his assessment of Rees during the two interviews and the result of psychometric assessments he carried out, Dr Warren was unable to draw an unequivocal conclusion as to whether Rees suffers from a psychiatric or other disorder. 68 Dr Warren was apparently asked to consider whether Rees suffered from Asperger's syndrome (which he referred to as the "diagnosis put to me", presumably by Rees' lawyers - T 36.12) or whether Asperger's might be a relevant diagnosis (T 36). Without further information, and in particular without family history of Rees' behaviour during childhood, Dr Warren said that he was unable to reach a concluded view on that diagnosis. He says that he "tried to broaden it out beyond that" (T 36) and he speculated (by way of an alternative diagnosis) that Rees might suffer from some schizoid personality disorder, but again was unable to reach a concluded view on that. His report nevertheless proceeded on the basis that he had a degree of psychological difficulty that he considered amounted to an impairment, from which he made various observations as to how a person with such an impairment would respond to the circumstance of having to leave his or her rent-free accommodation. 69 The difficulty I have with Dr Warren's report (and which I raised during debate with Counsel over the objections to its admission into evidence) was that Dr Warren did not in the report make clear the information on which he based his ultimate conclusion (despite earlier having said he was unable to form an unequivocal view as to the diagnosis) that Rees suffered from a psychological impairment or as to what that impairment consisted of, beyond reference to the terminology of the World Health Organisation definition of impairment. 70 I gave leave for evidence to be adduced in chief from Dr Warren as to the information on which he had based his conclusion that it was more likely than not that Rees suffered a degree of psychological difficulty constituting an impairment (either Asperger's disorder or schizoid personality disorder). In essence, Dr Warren identified that information as being his experience of Rees in his two interviews with him, the information provided by Rees' solicitor and the outcome of the formal psychological assessments (T 19.47); which he expanded to include Rees' reluctance to visit Dr Warren's rooms (which meant that Dr Warren had to visit him at his home); Rees' "pleasant but distant" manner (T 20.10) and the difficulty establishing rapport with him; the history Rees had given him (which led Dr Warren to conclude that Rees had had a relatively 'narrow' life) (T 20.11) and matters such as Rees' reference to friends whom Dr Warren seems to have considered likely to be no more than work acquaintances); Rees' lack of a grief reaction when he referred to the death of one of his dogs; and certain test results (which, though showing Rees to be within normal to average clinical scales on the personality assessment heading, were said to have showed a high score for 'faking good' - which led Dr Warren to conclude that Rees was, in effect, masking a 'difference' which Rees recognised set him aside from other people). 71 Dr Warren, relevantly, seems to have expected (broadly, from his interaction with Rees) that he would see clear indicia in the answers to the tests he administered of symptoms going to psychological problems (T 20.39) and the fact that he did not (the test results showing Rees to be 'high functioning and having no problems'), led Dr Warren to the conclusion that "he had a problem but [was] not admitting to it". 72 Dr Warren's conclusion was thus that Rees had a problem "notwithstanding the lack of any clear indicia or symptoms of that problem on tests or personality profile" (T 22.7). But for the high "fake good" score, and his interviews with Rees and observations of him when he visited him, Dr Warren accepted that he might have drawn the conclusion that there was nothing wrong with Rees (T 22.23). He expanded on this at T 23.14 (there suggesting that Rees had been 'unfriendly' and indicated that he did not really want Dr Warren in his house - though earlier Dr Warren had described Rees' manner as 'pleasant but distant' - T 20.10). 73 Dr Warren expressed the opinion that it was presumably in Rees' interest to have the assessment (which supported his view that Rees had a problem since Rees had not facilitated the assessment process) - though that in itself seems to involve an assumption that the outcome of the assessment process would be that Rees did have a problem (since otherwise the outcome of the process would at most be neutral or perhaps tending against Rees' application for provision). There was therefore an assumption built into the premise on which this conclusion was reached as to what that conclusion would be. 74 Dr Warren noted that Rees had expressed a lot of anger towards his neighbours (and indeed Rees was quite emphatic in his evidence in the witness box that the disputes were his neighbours' fault - which was about the only time he appeared to be very agitated in the witness box). 75 As Mr Elliott noted, it was not possible meaningfully to test Dr Warren's observations as to the 'faking good' scores given the absence of the questionnaires to which Rees' test results responded (Dr Warren having not produced them on subpoena apparently due to a concern that they might be published and that patients might be able to Google them and adapt their profiles accordingly) or the personality scales or indices to which Dr Warren said the test results were correlated. 76 What I seemed to be left with was an (unchallenged) assessment that Rees is of low average intelligence and an assertion (difficult to challenge because of the lack of transparency of the test results and the generality of the information on which it was based) that although Rees tested within the normal range for personality assessment, he was 'faking good' because of his reluctance to be interviewed and his protestations as to his condition (plus the high scores on a 'faking good' index which apparently correlate with scales of results from those with particular profiles of those who might similarly be expected to 'fake good' but which scales or indices were also not before the court). To the extent that Dr Warren's assessment that Rees had a problem was based on his view that Rees was trying to hide that he had a problem, and was so "significantly defensive" and "adamant that there was nothing wrong" (T 35.38), it might (not unreasonably) be thought that this was a situation where an initial assumption had been made from certain observations and that when the test results did not reflect that, reliance was placed on that very inconsistency to support a conclusion that the initial assumption had been correct (rather than accepting that the test results might have pointed to an inaccurate first impression). That said, Dr Warren is an experienced psychologist and it might also be expected that he would have a reasonable sense of when some form of psychological disorder was being exhibited. The difficulty I had was as to how that could be tested in any meaningful way on the material before me. 77 I was left with considerable doubt as to what weight should be placed on the conclusions so equivocally expressed by Dr Warren in light of the conflicting personality assessment results and without a clear understanding of how the personality scales against which the 'fake good' results were measured would ordinarily apply. 78 While I was prepared to admit various portions of the report (subject to weight and relevance) insofar as they seemed to me to explain how a person affected by a personality disorder (be that Aspergers or a schizoid personality disorder) might be affected if required to move out of his or her home into rental accommodation after a number of years living rent free in the home; and on the basis that at the very least it seemed to me relevant that someone with Dr Warren's experience could not exclude the possibility of a personality disorder of some kind, in the end what I have put more weight on is the history of Rees having had difficulties in interacting with work colleagues and with his neighbours; the limited social interaction it appears that Rees currently has with others (albeit a member of the local dog training and 4-wheel drive clubs); and Rees' evidence in the witness box, which seemed to indicate a degree of self-absorption. 79 In that regard, I note that in the witness box, Rees seemed to be quite tense - he sat stiffly and he clutched tightly the copy of his affidavit which he had with him in the witness box. Of course, without knowing what Rees' out of court behaviour is like I cannot draw much from this observation but it is consistent with the views expressed by Dr Warren. 80 Rees answered the questions put to him quite readily and seemed to have no difficulty in responding though I note that he had a tendency to focus on his own situation even where the questions related to that of, say, his late mother's position (particularly in relation to the move). As noted above, he became agitated when talking about the disputes with the neighbours "They wanted to tell us what to do in our own back yard and they kept pushing all the time pushing and pushing and pushing. They wouldn't stop" (T 54.20) though he was not similarly agitated when asked about the apprehended violence order or his arrest in relation to an altercation with his neighbours. 81 It appeared to me that at times he had some difficulty in focussing on the questions put to him (rather than what seemed to be important to him about the questions). This was particularly so when he was cross-examined as to the conversations to which he had disposed with his mother about him being allowed to stay in the house after her death. I formed the view that this may have produced some confusion in Rees' answer to the question (at T56.3) whether all conversations about being allowed to stay in the property were when he had been living at Edgeworth (a proposition to which he acceded). At the time, Rees seemed to be focussing on the fact that he had not wanted to move, rather than what he was being asked as to whether the conversations had taken place only at Edgeworth or after he had left. For that reason, when Mr Liebhold sought to clarify with Rees during re-examination what he had meant, and Mr Elliott objected to the re-examination, I attempted in fairness to the witness to put to him in a neutral fashion what I considered had been the thrust of the question to which he had earlier responded in a manner inconsistent with what was said in his affidavit (T 63.5-21). I did so in that manner (rather than, in the face of Mr Elliott's objection to such a course, permitting Mr Liebhold simply to take the witness to his affidavit and ask if what he had earlier said was correct) because it did not seem to me that I would be in a position to place any real weight in an answer led from the witness by reference back to his affidavit in that fashion. 82 In the end, I doubt that much weight can be placed on Rees' answers in relation to this issue (since he seemed to be solely focussed on telling the court that he did not want to leave Edgeworth) and I am by no means confident that he was paying close attention to, or fully comprehended, the question which he was being asked - as to whether the relevant conversations with his mother about staying in the house continued after they moved to Woodberry. By the same token, I cannot be confident in light of his evidence in the witness box that his affidavit evidence as to when and where the conversations took place was not equally the product of some misunderstanding on Rees' part or him simply accepting propositions put to him as to that issue. On balance I think it is unsafe to assume that the deceased had continued to make promises to Rees after they moved to Woodberry but ultimately I think little turns on this for the reasons I set out later. 83 I am prepared to accept that Rees is likely to find it difficult to interact in a work or social context as many others would be able to do and that he may suffer from a degree of psychological difficulty in that regard. However, I cannot conclude that he has any particular psychological disorder which would amount to a recognised impairment as such. I would accept that he is likely to suffer a degree of stress if required to move out of his present home, though I cannot say whether this would be more or less than the stress anyone may experience when moving out of familiar surroundings and the security of one's home (and being required to pay rent after a number of years occupying a home rent free). In that regard, I note that Dr Warren seems to have assumed (or been instructed to assume) that the Woodberry home has been Rees' refuge for some years, which does not necessarily take into account that Rees moved there only in 2004 after having spent a longer period in the Edgeworth home. I also note that Rees seems to have been able to adjust to living in his new home, even though he did not like it at first, and there seems no reason why a similar adjustment could not be made in the future. The reality seems to be that unless his siblings are prepared to bear the cost of the current proceedings themselves then whether or not Rees might otherwise have been able to remain in the Woodberry home it will need to be sold. (Mr Liebhold's fallback submissions as to the relief sought granted if Rees' claim for provision is made out recognise this to be the case.) 84 No evidence was adduced as to what would be the likely cost of a suitable property for Rees if a sale of the property were required (as is usually put before the court on applications of this kind). Nor was there any evidence of the relevant rental market. Mr Liebhold submitted that it could be assumed accommodation in Woodberry would be likely to be more than $180,000. It was also suggested at some stage (albeit in the course of argument on the objections raised to the expert psychological evidence which was before me) that it would be acceptable to have regard to Internet evidence of property sales and to take judicial note of information of that kind. In that regard, it would seem from a cursory review of the domain.com website that homes in the Woodberry area include a two bedroom home at Beresfield listed for sale at $169,950, a one bedroom mobile home in Heatherbrae listed for sale at $114,000 (although site fees are $103 per week, I note that it is possible Rees might qualify for rental or other assistance of some kind while he is unemployed), a two bedroom house in a residential community in Tarro which is listed for sale at $166,000 and two bedroom unit in Beresfield listed for sale at $137,000 but that other homes in or around the Woodberry area are in the range above $180,000 (with many being above $200,000) and that rental properties are in the order of around $255 - $290 per week for a two bedroom home in the Woodberry area. 85 I accept that Rees' financial circumstances are such that the current provision under the will is unlikely to enable him to acquire accommodation of the same kind as he presently occupies and that, in the absence of full time employment or much in the way of assets, he will struggle in making provision for himself in later years if limited to the provision left to him under the will. Size and nature of the estate 86 As noted already, the estate was modest in size. The principal asset was the Woodberry property (said to be now worth about $255,000), with the balance of the estate assets comprised of some cash and personal assets. The estate was overall worth less than $300,000. Relationship between deceased and applicant/others with claim on the estate

87 There seems no reason to doubt that Rees had a close relationship with his mother. Rees had lived in the family home with her up until her death. After his father's death, and particularly when his mother became ill, Rees assisted her and provided companionship for her. Significantly, at least as at 2002 the deceased felt that Rees needed support, insofar as she had made provision at that stage for him to live in the Edgeworth house after her death, notwithstanding that she seems also to have been conscious of the moral claims her other children might have on her testamentary bounty.

88 Mr Elliott submitted that Rees was guilty of disentitling conduct in that he had behaved (not towards his mother but towards others) in a manner which had caused his mother distress and that this had forced her to have to relocate at a time when she was unwell. Rees accepted that his mother's doctor had advised against the move but was more focussed in his answers he gave on that topic on the fact that he had not wanted to move. The impression I am left with, from the circumstances in which the deceased moved house late in her life and at a time when she was unwell, is that she remained caring of her son throughout the whole of his life (and was presumably conscious of the difficulty he had had in his interactions with at least some people such as work mates at the BHP and the neighbours) and that she made the decision to move in what she considered to be his best interests. (The comments attributed to the deceased by Chris (to the effect that she had told Rees it was not his house) do not seem to me to be suggestive of a falling out between them of any significant degree.) 89 I do not consider there to be disentitling conduct on Rees' part within the sense in which that term is used. In De Groot and Nickel, Family Provision in Australia 3rd ed, LexisNexis Butterworths, 2007, it is that:

Examples of conduct that has been held to amount to 'conduct disentitling' include failure to communicate with the deceased over a long period, not assisting in meeting the needs of the deceased (for example during the deceased's ill health) and threats of violence to the person or property of the deceased. 90 In Re Gilbert (1946) 46 SR (NSW) 318 (at 321), which was followed by Young J (as his Honour then was) in Pengilley v Public Trustee (unreported, NSWSC, 9 October 1985), it was said of disentitling conduct:

"This means character or conduct relevant to the purposes which the Act is intended to serve, for example, misconduct towards the testator, or character or conduct which shows that any need which an applicant may have for maintenance is due to his or her own fault ." (my emphasis) 91 It was suggested by Mr Elliott that Rees' conduct in relation to the need to relocate to Woodberry provided explanation of the fact that there was no change to the will. However, it seems to me that there is inadequate evidence to enable me confidently to draw that inference as opposed to the competing inference which is also available. The fact that the deceased did not amend her will after the move to Woodberry could have been due equally to an omission or failure to appreciate the effect of the move in light of the will which had been drafted two years before as it could have been due to a deliberate decision not to make such provision. On the one hand, Mr Elliott submits that one cannot assume there was an oversight and that a deliberate decision to exclude the right of occupation would be consistent with there being no conversation with Rees as to the right to reside in property after the move to Woodberry. On the other hand, Mr Liebhold submits that it cannot be inferred that this reflected any change of intention (and relies upon the fact that provision was initially made for Rees as showing recognition of a moral claim by him on the estate). (Insofar as Mr Liebhold submits that one can readily infer that the deceased was unaware that the gift would fail by reasons of the promises that she made to Rees that she could stay in the home even after they moved to Woodberry (to which Rees deposed in para 10 his affidavit), Rees' evidence as to when the conversations occurred was inconsistent.) 92 There is nothing to suggest that one inference is more likely than the other (and in this regard I think the statements to which Chris deposed by his mother after the move to Woodberry are consistent with either explanation). Therefore, I am inclined to think that little weight can be placed on fact that will not changed. However, what is relevant is that at least as at 2002 the deceased considered that Rees had a need for accommodation to be provided (and nothing seems to have happened since then to suggest he had otherwise than such a need). 93 As to the relationship between the deceased and those with competing claims on the estate, there seems no suggestion that there was any estrangement in the relationship between the deceased and her other children. 94 In particular, it seems that the deceased called upon Chris for assistance in relation to problems relating to Rees and that he readily provided that assistance. Sheila, in her affidavit, deposed to having had regular contact over the phone or by visiting at least once a week with her own family and that such contact increased once her father died, and included driving the deceased on errands such as shopping and to medical appointments, taking the deceased on holidays. Sheila also deposed to cooking meals and delivering to the deceased, assisting in the upkeep of the deceased's property at Edgeworth, her husband making small improvements to the Edgeworth property before its sale, assisting with the move to Woodberry and she deposed to a period of time when the deceased stayed with her for 7 weeks in early 2004, and "being on call" to assist "24 hours a day" from the time when the deceased moved into her Woodberry home. 95 I would therefore accept that each of the children contributed to the welfare of their mother.

Conclusion as to first issue 96 It is said by Mr Elliott that there was adequate provision made for Rees in that if the house is sold he will have a capital sum, he has qualifications which would enable him to obtain work (if he had the incentive to do so) and his personal needs are modest. 97 In response, it is said by Mr Liebhold that Rees has little in the way of assets, is on unemployment benefits, has no superannuation entitlements and little hope of securing fulltime employment; and is in a position of special need in that he has a degree of psychological difficulty which will make it particularly stressful for him if he is required to vacate the home he has lived in rent-free since before his mother's death. 98 Although the estate is small, it seems to me as a matter of fact that the provision made for Rees, insofar as it does not permit him to remain in the family home and will leave him with an amount likely to be insufficient to enable him to purchase his own home, at a time when he is unemployed and it cannot be assumed that he will readily find work of a particularly remunerative kind, even taking into account his modest personal needs, is inadequate for his proper provision and maintenance in life. I reach that conclusion irrespective of whether Rees has a psychological or personality disorder of the kind postulated by Dr Warren. 99 I therefore find the first stage of the Singer v Berghouse test satisfied. (iv) Proper provision for Rees? 100 Having found, as a matter of fact, that there was inadequate provision for Rees under the will, the second stage of the test in Singer v Berghouse requires the making of what has been described as an holistic and multi-faceted judgment of an evaluative kind as to the proper provision to be made for him (Kalmar v Kalmar [2006] NSWSC 437, at [67] per White J; Foley v Ellis [2008] NSWCA 288, at [3] per Basten JA). I have summarized earlier the factors to be taken into account in that regard and I deal with them in turn. In this case, however, it is also necessary to determine whether the estate is to be notionally expanded to include any property which has been distributed (since the estate has been wholly distributed and there is otherwise nothing out of which any provision can be made). 101 I note that what Mr Liebhold seeks is an order of the kind referred to as a Crisp order (referring to the order made by Holland J in Crisp v Burns Philp Trustee Co Ltd (unreported, NSWSC, 18 December 1979), to permit Rees to remain in the Woodberry home for his life with a remainder interest in favour of his siblings. Such an order was made by Windeyer J in Abrego v Simpson [2008] NSWSC 215 (and by me in Cross v Wasson [2007] NSWSC 378). 102 It is said that this would properly recognize both Rees' need for accommodation and the claim of Chris and Sheila on the estate. Against this, it is conceded that the cost of appointing a trustee in relation to the estate may be disproportionate and that, since the estate has been wholly distributed, this would not be feasible if Chris' costs as executor ($42,500) were to be paid out of the estate. 103 It was submitted by Mr Liebhold that the cash distributed out of the estate after the deceased's death to each of Chris and Sheila could be designated as notional estate (which would permit a payment of up to say $18,000 or $32,000, depending on what the actual distribution was) and allocated to payment of the executor's costs with the balance as a charge on the estate. I was referred to Charles Dewar v Francis Raymond Dewar in the Estate of Mary Love Dewar (unreported, NSWSC, 31 October 2001) in which McLaughlin M (as the Associate Justice then was) (having noted that normally a defendant executor, whatever the outcome of the proceedings was entitled to an order for costs paid out of the estate on an indemnity basis - because the executor has a duty to uphold the will) nevertheless refused to make a costs order which his Honour considered would have the effect of totally defeating the intention of the court to make an order permitting the applicant to remain in the property there in question for life. 104 Reference was also made to Fiorentini v O'Neil VC [1998] NSWCA 79, at [20]. In that case, the court (Mason P, Handley JA and Fitzgerald AJA), after referring the discretion conferred by s 33(1) to award costs as the court thinks fit, stated:

In the ordinary case, a successful plaintiff will be awarded costs out of the estate and the defendant will be awarded costs on an indemnity basis out of the estate. However, the size of the estate and the conduct of a party may justify a departure. The discretion conferred under s33 is broad. Either party, including the defendant legal personal representative, may be deprived of all or part of his or her costs if the circumstances justify it ( Re Kennedy (Deceased) [1920] VLR 513; Re Klease [1972] QWN 44; Re S J Hall (1958) 59 SR (NSW) 219 at 228; Heuston v Barber (1990) 19 NSWLR 354 at 363).

Leaving aside the impact of unaccepted settlement offers, the usual costs order may be modified if the Court is of the view that the litigation has been prolonged unnecessarily. The Court should set its face against litigation in which an estate is unnecessarily consumed in costs. Neither party should assume that the usual order will follow as of course. Both plaintiffs and defendants should be encouraged to make open offers as early as practicable in the litigation. The plaintiff who fails to do so promptly may find that none or only part of his or her costs will be ordered to be paid out of the estate. Of course a defendant is also well placed to make open offers and should do so in cases (like the present) where only the quantum of the plaintiffs claim is seriously in issue.

If the defendant is entitled to the residue of the estate, the litigation is really inter partes, if only for the practical reason that any order for costs out of the estate is effectively an order that the defendant pay them. This may be relevant to the exercise of the costs discretion. The possibility of extravagant or wasteful conduct by a plaintiff in such a situation is the very reason why s33(3) stipulates that success does not guarantee an order for costs. Conversely, the defendant's conduct in such litigation may preclude the defendant from seeking to reduce an otherwise proper order in favour of the plaintiff because the estate is depleted by costs. 105 It was submitted by Mr Liebhold that any costs awarded against the estate be secured as a charge and realized only after the sale of the property on Rees' death. That would, however, leave the burden of those costs, in a practical sense, to fall on Chris as executor at the same time as Rees seeks orders which will deny him the practical benefit of his inheritance. 106 Alternatively, it is said by Mr Liebhold that if I were not minded to make such a Crisp order, then Rees should receive all or most of the net proceeds of sale after the payment of costs of the proceedings. (As Rees is the recipient of legal aid, I understand the only costs to be funded out of any sale proceeds will be those of the executor). Notional Estate

107 This is not a case where the application for property to be designated as notional estate arises by reference to there being a prescribed transaction. Rather, the application derives from the fact that the estate was distributed within the requisite period. Assets forming part of the deceased's estate which were distributed within the 18 months after her death form part of the distributed estate and any designation of those assets as notional estate comes within the power conferred by s 24 of the Family Provision Act. 108 Pursuant to s 24 of the Family Provision Act, if the court is satisfied that an order for provision ought to be made on an application for provision under the Family Provision Act, and there has been a distribution of the estate within the relevant period, then there is power (subject to ss 27 and 29) to make an order designating as notional estate of the deceased such property as the court may specify, whether or not that property was the subject of the distribution. 109 As noted above, I am satisfied that there has been inadequate provision made under the will for Rees as a matter of fact and that an order for provision should be made for him. 110 For present purposes, however, not only must I be satisfied that an order should be made for provision, I must also be satisfied first that there are special circumstances for the making of such an order and that I have properly taken into account the importance of not interfering with reasonable expectations in relation to property. 111 The former requirement derives from s 28(5)(d) of the Family Provision Act which provides that if an order designating property as notional estate is sought in circumstances where the claim is brought out of time, the court must be satisfied that there are special circumstances that would justify the order. The latter, from s 27 of the Act.

Special circumstances 112 Section 28(5) of the Family Provision Act provides:

(5) On an application in relation to a deceased person, being an application: (a) made pursuant to an order under section 16 allowing the application to be made, or (b) for an order under section 8 for additional provision, the Court shall not make an order designating property as notional estate of the deceased person by reason of a prescribed transaction or a distribution unless it is satisfied: (c) that: (i) the property was the subject of the prescribed transaction or distribution, (ii) the person by whom it is held holds the property as a result of the prescribed transaction or distribution as trustee only, and (iii) the property is not vested in interest in any beneficiary under the trust, or (d) that there are other special circumstances (including, in the case of an application made as referred to in paragraph (a), the incapacity, during any relevant period, of the person by or on whose behalf the application is made) which justify the making of an order so designating the property. 113 White J, in Campbell v Chabert-McKay [2010] NSWSC 859, said [84] - [93];

The question of special circumstances was also raised by the defendant in connection with s 28(5). As the application is to be made by virtue of the order to be made under s 16, and as the property distributed to the defendant pursuant to the prescribed transaction and the distribution of the estate is not held on a trust for which no beneficiary has a vested interest, the plaintiff must establish pursuant to s 28(5)(d) that there are " other special circumstances ... which justify the making of an order so designating the property ". Mr Willmott submitted that the "other" special circumstances that must be demonstrated are circumstances other than those which justified the making of the order extending time under s 16 for the making of the application.

In Cetojevic v Cetojevic [2006] NSWSC 431 Campbell J (as his Honour then was) assumed without deciding (at [79]) that more is required to establish "other special circumstances" under s 28(5)(d) than is required to obtain an extension of time under s 16. 86

I accept that more is required to establish "other special circumstances" under s 28(5)(d) than would be required to obtain an extension of time. But I do not agree that to establish such other special circumstances the court is to exclude circumstances considered under s 16. Mr Willmott stressed that the plaintiff needed to establish not just special circumstances, but other special circumstances to justify the making of an order designating property as notional estate.

In my view "other special circumstances" are not special circumstances other than those considered under s 16 or s 8. Section 16 requires the court to have regard to all the circumstances of the case in deciding whether to extend time. This must include any special circumstances. Similarly, if an application is made for additional provision under s 8, the court is required by s 9(3)(d) to consider any circumstance it considers relevant.

The scheme of s 28(5) is that the circumstance described in s 28(5)(c) is to be regarded as a special circumstance. When s 28(5)(d) refers to "other special circumstances" it is referring to special circumstances other than that referred to in s 28(5)(c). Thus, in s 28(5)(d), the incapacity of an applicant is described as a special circumstance. But incapacity would have to be relevant to the exercise of discretion under s 16 whether to grant an extension of time.

For these reasons, I do not accept that matters relevant to the decision to extend time under s 16 are excluded from consideration under s 28(5)(d).

What then are "special circumstances" within the meaning of s 28(5)(d)? This question was considered by Campbell J in Cetojevic v Cetojevic . His Honour cited relevant authorities including Baker v R [2004] HCA 45; (2004) 223 CLR 513, where Gleeson CJ said (at [13]): "[13] There is nothing unusual about legislation that requires courts to find 'special reasons' or 'special circumstances' as a condition of the exercise of a power. This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors." (footnotes omitted)

In other words, a circumstance may be special by reason of degree as well as of kind.

Circumstances need not be unique to be special, but they will be unusual (see cases cited in Cetojevic v Cetojevic at [77]).

I consider the deceased's abandonment of the plaintiff when she was a child, his neglect of her during his lifetime, the size of the distributed estate and of the property the subject of the prescribed transaction, and the fact that there has been no relevant dealing by the defendant with such property save for the completion of the subdivision of Lot 3, constitute special circumstances which justify the making of an order designating property held by the defendant as notional estate. It is not hard to identify from the many published decisions under the Family Provision Act similar combinations of circumstances (e.g. Lloyd-Williams v Mayfield [2005] NSWCA 189; (2005) 63 NSWLR 1). Nonetheless, such a combination of circumstances is not usual. I consider that the circumstances are special within the meaning of s 28(5)(d). Accordingly I consider that property held by the defendant may be designated as notional estate.

93 Pursuant to s 28(2) no more property should be designated as notional estate than is necessary to allow the making of appropriate provision. 114 In Zirkler v McKinnon [2002] NSWSC 285, Macready M (as the Associate Justice then was) had said [56]:

In relation to this case the relevant section is s 28(5)(d). Apart from stating incapacity as a special circumstance the sub-section gives no other indication of what constitutes such special circumstance. However it is clear that s 27 applies when a claim is made both before and after the time limited by s 16. Section 28(5), in a case where an extension is to be allowed, may thus be thought to impose either a further requirement over and above the matters, which a court will consider under s 27 or merely a requirement that a circumstance be "special". In s 28(5)(d) the word "other" is used in describing "special circumstances". That I think is grammatically a reference to the matter appearing in s 28(5)(c). It may be that the matter in s 28(5)(c), namely a discretionary trust, was thought to be a special circumstance. 115 I was not specifically addressed on the question whether there are in this case special circumstances which would justify the designation of property as notional estate where the claim had been brought out of time.

116 I consider that the fact that Rees had been dependent on the security of accommodation provided by his parents for most of his life, he and his siblings were aware that his mother's intention had been to allow him to remain living in the Edgeworth home (and thus recognised a need in this regard), that Rees did not have the benefit of legal advice until after the expiry of the time within which a claim could be brought; that this is the only real asset out of which further provision for Rees would be made; and that there is a basis on which to infer that he was not necessarily aware of the impact of his mother's will, plus the fact that the only dealing with the property has been to transfer title to the three siblings as tenants in common in equal shares constitutes special circumstances which would justify the making of an order designating the Woodberry property as notional estate. Reasonable expectations re property 117 Section 27(1)(a) of the Family Provision Act requires the court, before making an order in relation to notional estate, to consider (among other things) the importance of not interfering with reasonable expectations in relation to property. 118 What amounts to "reasonable expectations in relation to property" was considered in Petschelt v Petschelt [2002] NSWSC 706, at [68], by McLaughlin M (as the Associate Justice then was), who said:

That phrase does not, however, indicate the person by whom those reasonable expectations are held. Clearly the Court must consider the reasonable expectations of the First Defendant in relation to property. By the same token, however, the Court should also consider the reasonable expectations of the Deceased herself in relation to property, and also, possibly, the reasonable expectations of the Plaintiff. (my emphasis) 119 In D'Albora v D'Albora [1999] NSWSC 468, at [53], Macready M (as the Associate Justice then was) gave examples of the circumstances which might give rise to reasonable expectations for the purposes of this section:

Under s 27(1)(a) the Court has to consider the importance of not interfering with the reasonable expectations in relation to the property. Such reasonable expectations may well occur in a number of circumstances. For example, a beneficiary who receives a property may have spent money on the property or worked on the property. … Another common area where one often sees in this matter is where there is a promise in relation to the property and the acting by an intended beneficiary on the fact of that promise. 120 Similarly, in Wentworth v Wentworth [1992] NSWCA 268, Priestley JA, with whom Samuels AP and Handley JA agreed, referring to the "more general precautionary provisions" in ss 26 and 27 of the Family Provision Act, said:

S27(1) for example, says the court shall not make an order designating property as notional estate unless it has considered, amongst other things, the importance of not interfering with reasonable expectations in relation to property. If someone is in possession of property, otherwise than by gift, after having given up something of equivalent value in order to obtain that property, it would be entirely reasonable for that person to expect to remain in possession of it. (my emphasis) 121 In this case, there was no suggestion that any steps have been taken by Sheila or Chris in relation to any distributed estate in the reasonable expectation that there would be no claim against the estate of their mother, although it may well be that the cash so distributed has been expended either in the ordinary course (as Rees seems to have done on living expenses) or for a particular purpose with the expectation that it was theirs to deal with (and hence I have some concern at disturbing what might be presumed to have been the recipients' expectations on receipt of a relatively small cash payment of this kind). 122 While I was encouraged, in effect, not to interfere with the reasonable expectations of Chris as to his inheritance, any such expectations could only have arisen after it was appreciated that the gift for Rees under the will had failed. It is hard to see that Chris could have had any such expectation prior to his mother's death. 123 In Doyle v Smith (unreported, NSWSC, 21 September 1994), on an application brought by two children of the deceased's first marriage against the deceased's second husband, McLaughlin M (as the Associate Justice then was) placed weight on the reasonable expectation of the elderly surviving spouse to remain in the matrimonial home and refused to make any order designating the property as notional estate. Here, it might be said that Rees had a reasonable expectation prior to the move to Woodberry that he would be able to remain living in his mother's house after her death and, whether or not similar promises were made after the move to Woodberry, that in the absence of statements to the contrary that this would be the position. However, Rees is not in the same position as an elderly surviving spouse in a property which had been purchased with joint funds, nor is he in his twilight years as was the 82 year old defendant was in Doyle. Contribution by the applicant to the property and welfare of the deceased.

124 I have noted above that Rees lived with his mother for some 50 years and provided companionship to her. I accept that he contributed in that regard (though not in a direct financial sense) to the welfare of the deceased. In her last year, Rees also acted as carer for his mother. I have considered above the contributions made by Rees' siblings to their mother's welfare.

Character and conduct of the applicant in relation to the deceased.

125 I have made reference earlier to the alleged disentitling conduct. I do not place any weight on this (particularly since it seems to me that this conduct was likely to be more a function of Rees' difficulty or awkwardness dealing with others and to have been understood by his mother as such). Further, I do not consider that the conduct in question can be said to have been the cause of the deceased making no amendment to her will after the move to Woodberry (which led to Rees having no right of occupation of his mother's home after her death). The circumstances before and after the death of the deceased (including the extent of the claims of other persons on the estate of the deceased)

126 I have considered Rees' circumstances as deposed to in his affidavits above. It is said that his net assets are now approximately $11,000 and he is likely to remain wholly or substantially dependent on a modest social security allowance for remainder of life. Mr Liebhold says I can infer that his needs were perceived by the deceased as greater than those of his siblings. 127 As to the claims of other persons on the estate, the other beneficiaries were the deceased's remaining children, Chris and Sheila. 128 Chris is a 62 year old bus driver who is married with two grown children. He and his wife have a joint annual income of $83,716 before tax. They own a home valued at $400,000 over which there is a mortgage of $120,000. They have cash and shares in the order of $31,711, own two motor vehicles of around $25,000 and have combined supernannuation payments of $303,013.56. Mr Liebhold submits that their household net assets are in the order of $614,724.50 (though, as Mr Elliott notes, that there are limited assets from which to fund his retirement). Chris is suffering from a stress condition which is impacting on his ability to perform certain duties at work, and in January 2010, he commenced back on a 38 hour week but on selected and limited duties. 129 His one-third interest in the Woodberry property is presently of no value to him due to Rees' occupation of the property. Given his current condition, it seems reasonable to assume that receipt of a third of the proceeds of sale of the Woodberry property would significantly assist Chris in reducing his liabilities at a time when he is close to retirement and may thereafter have more difficulty servicing his mortgage debt than when he was in employment (but there was no evidence as to the nature of any particular difficulty I that regard). 130 Sheila is married, in part time employment and has a combined household income of $51,569 before tax. She and her husband have assets of $552,858 and no liabilities. There is no suggestion that she is in a position of financial or other need. Community expectations. 131 In McGrath v Eves [2005] NSWSC 1006, Gzell J considered the position of claims by adult children for provision from their father's estate:

When it comes to children, as Young J observed in Shearer v The Public Trustee, NSWSC, unreported, 23 March 1998, it has never been said by any court that the community expects a mother to leave her children in a position to have a house of their own. … And in Gorton v Parks (1989) 17 NSWLR 1 at 7, Bryson J pointed out that there is no special principle that able-bodied adults earning a living have no claim, his Honour pointing out that such a proposition in relation to resources of any size was quite erroneous. 132 Nevertheless, as noted by White J there does not seem to be any rule to the effect that proper provision for an adult and presently able-bodied child did not extend to providing him or her with a house or money to buy one (Barbara Mayfield v Suzy Carolyn Lloyd-Williams [2004] NSWSC 419, at [109]-[110] per White J, his Honour there referring to Re Buckland, deceased [1966] VR 404 and Ogden v Green [2003] NSWCA 352 where such provision had been made). 133 Mr Liebhold relies on the intention he submits is evident from the 2002 will (and, if the evidence be accepted, of the deceased's promises that Rees would be able to occupy her home and that this was in her will) as indicating the existence or recognition of Rees' moral claim on the estate (citing Vigolo v Bostin (2005) 221 CLR 191 in this regard). Mr Liebhold also referred to the judgment of Brereton J in Barna v Barna [2008] NSWSC 1402 (at [28]) where weight was given to the intention of the testator to make provision for the applicant in circumstances where the gift was adeemed. 134 Apart from relying on the deceased's apparent intention under her will to give Rees security of accommodation, as to the moral claim of Rees, Mr Liebhold relies on the following factors: that he was a son of the deceased; that his emotional or psychological disorder constituted an impairment (which was unlikely to remit or improve and will adversely affect him; may face life crisis if forced to leave home); that he lived with the deceased the whole of his life up to her death and was dependent on her; and that he made substantial contributions to the welfare of the deceased and her husband as outlined in para 7 of his affidavit. As noted above, I am not satisfied that the evidence establishes that Rees suffers from a particular recognised psychological disorder but I accept that he is in a position of need and that this need is comparatively greater than that of both Sheila and Chris. 135 There is a clear issue as to Rees' ability to earn a living for himself and provide for his old age. At least in 2002, the deceased recognized that there was a greater moral claim by Rees on her testamentary bounty than on her other children and nothing of relevance seems to have happened since then other than the move to Woodberry (which the deceased was apparently prepared to entertain in the interests of family harmony). 136 In Cropley v Cropley [2002] NSWSC 349, Barrett J adopted (at [55]) the approach to an application of this kind (albeit by a widow) that was suggested by Young CJ in Eq in O'Loughlin v Low [2002] NSWSC 222:

Putting it all together, what provision should the testator have made for this lady? What, in other words, is the provision that the community would think a person in the position of the testator should have made for his widow? 137 Adapting that test to the present circumstances, what is the provision that the community would think a person in the position of the deceased should have made for Rees? It seems to me that it would be consistent with community expectations for the deceased to have made such provision as she was able (having regard to any particular needs of her two other children, and in this regard I take into account Chris' stress condition and the impact it has on his ability to continue to work) to assist Rees to remain in secure and affordable accommodation, recognizing that he may well be unemployed for part or all of the rest of his working life and that he has no other immediate family (ie apart from his siblings) to provide moral or financial support for him.

Conclusion as to second issue 138 As I have noted in other matters, the court should be careful not to interfere with freedom of testation except in circumstances where the legislation requires this to be done. In Vigolo v Bostin, Gleeson CJ observed that the justification for interference with freedom of testation is to be found in the failure of a testator to meet the obligations which the community would expect in terms of maintenance for those persons within the class of eligible persons. 139 The court should not interfere with a testator's dispositions beyond that which is necessary. In this regard, caution was expressed in Cooper v Dungan (1975) 9 ALR 93 by Stephen J against a natural tendency to reform the testator's will according to what the court regards as a proper total distribution of the estate (rather than restricting itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant) and more recently in Cropley, where Barrett J said (at [53]):

It must also be borne in mind that, if the threshold is resolved in favour of intervention by the court, that intervention should only be to the minimum extent necessary to make adequate provision for the proper maintenance, education and advancement in life of an applicant. (Citing Permanent Trustee Co Limited v Fraser (1995) 36 NSWLR 24; King v Foster (unreported, NSWCA, 7 December 1995).) 140 I am of the view that the proper provision for Rees, taking into account the competing claims of the beneficiaries is for him to receive five-sixths of the net sale proceeds of the Woodberry property after deduction of sale costs and the executor's costs of the proceedings, on an indemnity basis. If the house were to sell for $255,000, this would leave around $210,000 for distribution (after taking into account legal costs). A five-sixths share of that amount (or slightly less taking into account sale costs) would provide Rees with a fund sufficient to buy a number of the properties presently listed for sale in the area, albeit perhaps of a lesser size than the Woodberry property. (In that regard, there seems to me no reason to suppose that Rees could not be adequately accommodated in a house or unit of a smaller size as the present property and though a move will be stressful, his move to Woodberry was also stressful but he was able top adapt to such a move.) I accept that there may be little left for a contingency fund but I note that Rees is in receipt of regular unemployment benefits and seems to have modest needs. Leaving Chris one-sixth of the sale proceeds will address in part his needs and enable him to pay down part of the mortgage. Unfortunately, this will have the result that Sheila obtains no legacy from the estate. However, balancing the competing claims on the deceased's testamentary bounty I consider that this is necessary to ensure proper provision for Rees. 141 In order to give effect to Chris and Sheila's expectations as to their ultimate inheritance, I consider that a Crisp order of some kind should be made so that any real property acquired by Rees with the proceeds of sale be subject to a charge such that on Rees' death Chris and Sheila (or their respective heirs) should receive out of his estate a share of the proceeds of sale of that property equivalent to the proportion foregone by them of the residuary bequest in their favour (one-sixth and one-third respectively). 142 The determination of Rees' claim in this fashion means that there is no basis for orders to be made of the kind sought in the s 66G proceedings for the sale of the property by trustees appointed by the court and a distribution as between the present registered proprietors. Conclusion 143 I grant leave to extend the time for the making of an application by Rees for provision out of the deceased's estate. 144 I find as a matter of fact that there has been inadequate provision under the deceased's will for Rees. 145 I find that the proper provision for Rees is as set out in paragraph 140 above. 146 I consider that so much of the distributed estate as consists of the Woodberry property which is necessary to enable the provision to be made for Rees (after payment of the sale costs and costs of the proceedings as referred to in the following paragraphs) should be designated as notional estate. 147 I propose to order that the costs of Chris, as executor, of the Family Provision Act proceedings be borne on an indemnity basis out of the proceeds of sale of the Woodberry property. 148 I will dismiss the s 66G proceedings and propose to order that the costs of Chris as the plaintiff in those proceedings be met on a party and party basis out of the notional estate. 149 I will list the matter for a convenient time in which to deal with any matters arising out of the above and, in particular, as to how the sale of the property and the implementation of the orders in relation to the remainder interest for each of Chris and Sheila is to be effected in the most cost-efficient way. I direct the parties to bring in short minutes of order to reflect these reasons.

20/09/2010 - In paragraph 145, the number "140" has been inserted after the word "paragraph". - Paragraph(s) 145

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