Khreich v NSW Trustee & Guardian

Supreme Court of NSW|2012-10-22|Before: Steytler J, Powell J

Kay v Archbold [2008] NSWSC 254 Keep v Bourke [2012] NSWCA 64 Kembrey v Cuskelly [2008] NSWSC 262 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Langtry v Campbell (NSWSC, 7 March 1991, Powell J, unreported) Lathwell v Lathwell [2008] WASCA 256 Lumb v McMillan [2007] NSWSC 386 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 McKenzie v Lucas [2011] NSWSC 1012 MacGregor v MacGregor [2003] WASC 169 (28 August 2003) Magill v Magill [2006] HCA 51; (2006) 226 CLR 551 Marks v Marks [2003] WASCA 297 Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47 Mayfield v Lloyd-Williams [2004] NSWSC 419 McCann v Ward & Burgess [2012] VSC 63 Milillo v Konnecke [2009] NSWCA 109 Miller v Miller [2006] UKHL 24; [2006] 2 AC 618 Moore v Moore (NSWCA, 16 May 1984, unreported) Neil v Jacovou [2011] NSWSC 87 O'Loughlin v O'Loughlin [2003] NSWCA 99 Palaganio v Mankarios [2011] NSWSC 61 Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Pogorelic v Banovich [2007] WASC 45 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Salmon v Blackford [1997] NSWCA 274 Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100 Savic v Kim [2010] NSWSC 1401 Sellers v Scrivenger [2010] VSC 320 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack-Smith v Slack-Smith [2010] NSWSC 625 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (NSWSC, 16 December 1996, unreported) Stott v Cook (1960) 33 ALJR 447 Taylor v Farrugia [2009] NSWSC 801 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, Young J, 17 May 1996, unreported) Welsh v Mulcock [1924] NZLR 673 Worladge v Doddridge (1957) 97 CLR 1 Category: Principal judgment Parties: Lily Khreich (first Plaintiff) Youssef Khreich (second Plaintiff) Marwan Khreich (third Plaintiff) NSW Trustee & Guardian (Defendant) Representation: Counsel: Ms J Needham SC; Mr S Chapple (Plaintiffs) Mr R Jefferis (Defendant) Solicitors: Sommerville Legal (Plaintiffs) NSW Trustee & Guardian (Defendant) File Number(s): 2011/277600

The Claim 1HIS HONOUR: These are proceedings commenced, initially, by five Plaintiffs, in which each applies for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act") out of the estate of Emile Khreich ("the deceased"). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the Court, under Chapter 3, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person. 2The Plaintiffs commenced the proceedings by Summons filed on 29 August 2011, that is, within the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased). The Plaintiffs named in the Summons, as filed, are the deceased's wife, Leila Khreich (also known as "Lily"), his three sons, Youssef (also known as "Joe"), Marwan, and Adel, and his daughter, Samia. 3The Defendant named in the Summons is the NSW Trustee & Guardian, the executor appointed in the Will of the deceased to whom Probate was granted. (In the Will, the Defendant is referred to as the Public Trustee. Paragraph 3(1)(d) of Schedule 1 to the NSW Trustee and Guardian Act 2009, which commenced on 1 July 2009, provides that a reference to the Public Trustee is to be read as a reference to the NSW Trustee and Guardian. By Paragraph 11 of Schedule 1, the NSW Trustee & Guardian is to be taken, for all purposes, to be a continuation of the Public Trustee. The NSW Trustee and Guardian, is constituted as a corporation by section 5 of the NSW Trustee and Guardian Act.) 4At the hearing, only three Plaintiffs wished to proceed. With the consent of the Defendant (being an active party), Adel and Samia each filed in Court a copy of a notice of discontinuance dated, in each case, 12 October 2012, signed by the solicitor for each of the parties. In the circumstances, each discontinued his, and her, proceedings as to all claims for relief against the Defendant. 5Without any undue familiarity, or disrespect intended, and for convenience, I shall refer, hereafter, only to the Defendant by its role in these proceedings, and to the Plaintiffs and other family members, or witnesses, after introduction, by her, or his, anglicised given name (since each was often referred to during the hearing in this way).

Formal Matters 6The following facts are uncontroversial. 7The deceased died on 1 September 2010. He was then aged 77 years, having been born in July 1933. 8The deceased and Lily married in about 1958, when she was aged 17 years. There were four children of their marriage, being Joe, Marwan, Adel and Samia. Adel was born in October 1964 and Samia was born in May 1966. 9The deceased came to Australia, from Lebanon, in about 1969 and remained living here for the remainder of his life. Joe came to Australia in about 1974 and the other family members followed in about 1976. 10The deceased left a Will that he made on 25 June 1996, Probate of which was granted, to the Defendant, on 25 August 2011, by this Court. That Will, relevantly, provided: "1.00I give all of my property, after payment of my estate liabilities to the Public Trustee and direct him to divide it into enough parts to pay those of the following gifts which take effect. All parts are of equal value. (No parts are to be set aside for any gifts which do not take effect). 1.10I give 4 parts to my grandson EMILE KHREICHE if he survives me by 1 calendar month. 1.20I give 3 parts to be shared among my other grandsons I may have after making this Will who survive me by 1 calendar month. This does not include my grandson, Emile. 1.30I give 1 part to the Public Trustee to be placed in Trust to be used for the education of any granddaughters I may have after making this Will who survive me by 1 calendar month up until the time they reach 25 years of age. At the end of the Trust, any surplus money remaining to be shared equally among any grandsons I may have including Emile. 2.00The term "estate liabilities" includes:

my funeral expenses
all debts I owe when I die
all expenses my Trustee incurs in administering the estate
all charges my Trustee makes for doing the work." 11There are 10 grandchildren of the deceased, who survived him. Three grandchildren, Emile, Jessica, and Mary, are the children of Joe; two grandchildren, Aidan and Matthew, are the children of Marwan; two grandchildren, Daniel and Justin, are the children of Adel; and three grandchildren, Jon, Alana, and Nathan, are the children of Samia. Each of the grandchildren, other than Emile, is presently a minor. 12It can be seen that Emile receives 50 per cent of the residuary estate; Aidan, Matthew, Daniel, Justin, Jon and Nathan share 37.5 per cent of the residuary estate, and 12.5 per cent is held on trust for the education of Jessica, Mary and Alana, until the time they reach 25 years of age. 13No provision was made for any of the Plaintiffs, and none of them were referred to, otherwise, in the deceased's Will. 14In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the property owned solely by the deceased at the date of death, was disclosed as follows: Assets (a) Parramatta property (est) $ 540,000 (b) Granville property (est) $ 395,000 (c) Money in Bank accounts $ 64,872 (d) Shares in public companies $1,186,986 (e) Taxi plate $ 400,000

(I have omitted any reference to the cents and shall continue to do so. This may appear to result in minor mathematical miscalculations in the figures set out below.) 15No liabilities were disclosed in the Inventory of Property. 16In an affidavit sworn on 17 October 2012, by Sandra Malouf, a legal officer of the Defendant, she disclosed that the current value of the shares in the estate is $1,495,244; that the current value of the real property at Parramatta is $595,000 and the real property at Granville is $425,000; the taxi plate remains currently valued at $400,000; and the estate account balance, as at 16 October 2012, is $236,026. (Some assets have been realised.) 17The parties agreed that the gross value of deceased's estate, at the date of hearing, is $3,151,271. This does not include an amount ($225,000), which may be due to the estate, secured by registered mortgage, over another property, at Granville, owned by Marwan. There is a dispute about whether the principal and interest due was repaid to the deceased. 18Ms Malouf also stated in the same affidavit that there are certain liabilities of the estate, namely trustee's commission ($41,264) and the legal costs and disbursements of the proceedings. 19In calculating the value of the estate, finally available for distribution, the costs of the present proceedings should also be considered, since the Plaintiffs, if successful, normally, will be entitled to an order that her and his costs be paid out of the estate of the deceased, whilst the Defendant, as executor, irrespective of the outcome of the proceedings, normally, will be entitled to an order that its costs be paid out of the estate. 20The Plaintiffs' costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis, were estimated to be about $97,809 (inclusive of GST and upon the basis of a two day hearing). Their costs and disbursements, calculated on the ordinary basis, are estimated to be $78,247. (There is no differentiation between all of the Plaintiffs' costs and disbursements and the costs and disbursements of the Plaintiffs who have filed a notice of discontinuance. The Defendant did not take issue with these costs, since at least some of the affidavits of Adel and Samia were read in the proceedings.) 21The Defendant's costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis, were estimated to be about $43,150 (inclusive of GST and upon the basis of a two day hearing). No part of these costs and disbursements has been paid out of the estate. 22The parties, thus, accepted, for the purposes of the hearing, that I should determine the Plaintiffs' application upon the basis that the estimated value of the net distributable estate, after the payment of such anticipated expenses, and if a costs order is made in relation to each of the parties, will be about $2,988,610. (In fact, as the case was completed in one day, they agreed, subsequently, that the net value of the distributable estate should be taken to be $3,000,000.) 23The parties also agreed, in light of the terms of the deceased's Will, that the burden of the provision made for each of the remaining Plaintiffs should be borne out of the share of the estate passing to the grandsons of the deceased and not the share to be held in trust to be used for the education of any granddaughters of the deceased. This was a sensible and practical agreement bearing in mind the terms of the deceased's Will. 24It follows that the value of the deceased's residuary estate available to meet the provision to be made for each of the remaining Plaintiffs will be about $2,625,000, after the payment of costs and other expenses. 25How the costs and disbursements of the parties, which will be the subject of submissions in due course, will be borne was not the subject of the agreement. Of course, depending upon the result of each remaining Plaintiff's claim, and any order made as to costs, the costs and disbursements, if payable out of the estate, will be able to be formally assessed, unless otherwise agreed by the parties. It follows that the amounts referred to are estimates only. 26The persons who are, or who may be, eligible persons, within the meaning of the Act, are the original Plaintiffs. It is accepted that none of the grandchildren is an eligible person as each was never wholly, or partly, dependent upon the deceased. 27Only three of the original Plaintiffs continued proceedings under the Act. Clearly Adel and Samia, as original parties, were aware of the proceedings and at least one affidavit from each was read. 28The deceased's grandson, Emile, was served with a prescribed notice of claim and has sworn an affidavit that has been read in the proceedings. 29The other beneficiaries are all minors and the Defendant has represented his, and her, interests, as beneficiaries, named in the deceased's Will. (There is no evidence of service of a notice upon each.) In any event, the Court is not permitted to disregard his and her interests as a beneficiary. To the contrary, as Master McLaughlin (as his Honour then was) said in Bennett v Public Trustee [1999] NSWSC 724, at [57], "[T]he Court should be absolutely scrupulous in protecting the rights of those who, because of their age, are not in a position to protect their own rights". 30On the morning of the hearing, a number of affidavits were filed by the Defendant going to the "needs" of each of the grandchildren. Relevantly, the Plaintiff, in each case, swore the affidavit going to such needs of his or her child or children. (The affidavit was, apparently, prepared by the solicitor of the Defendant and sent to the Plaintiffs' solicitor for swearing.) Each affidavit, read in the proceedings, advances a case that the grandchild referred to is a competing claimant, at least financially upon the bounty of the deceased.

Evidence regarding Certain Properties 31The deceased's real estate at Parramatta is in a residential area amid similar freestanding brick and tile roof dwellings built in the mid-1950's. The home is situated on a major local connecting road carrying large volumes of traffic. The location is within easy walking distance of Parramatta Town Centre. 32The home consists of three bedrooms, an enclosed front verandah, a lounge room, one bathroom, an L-shaped dining room/family room and kitchen. There is no laundry. The kitchen and bathroom are dated and due for upgrading. Internal and external painting is required. The carpet needs cleaning. The carport and garage are dilapidated. Roof tiles require replacing. (There is no expert evidence about the costs of carrying out the repairs, although Lily estimates the costs to be about $70,000. The basis of her estimate is unknown.) 33The deceased's property at Granville contains two flats, the front flat consisting of a front verandah to entrance front door, a hallway, two bedrooms, bathroom, lounge room and new kitchen. The front flat has recently been updated with fresh paint, floor coverings, and a tiled kitchen floor. 34The rear flat, with a side door entrance, leads to a combined lounge/dining/kitchen, one bedroom and one bathroom. There are two separate laundry buildings. 35Overall, the building on the Granville property is said to be old, with a rusted corrugated iron roof that appears to be leaking. The side fence is dilapidated and falling down. 36The deceased purchased a property at Granville in June 1978 for $34,000. He sold that property to Marwan, in about May 1995, for $225,000. On the same date, the deceased and Marwan entered into a mortgage for the same amount. The Deed of Conveyance and the Memorandum of Mortgage were registered. I shall refer to the mortgage debt later in these reasons. 37As at July 2012, the Granville property transferred to Marwan was rented for $360 per week. 38The Granville property transferred to Marwan requires some repairs, including the removal and replacement of roof tiles, reinstatement of some walls, kitchen and bathroom renovations, repainting internally, supplying and installing carpets, removing deteriorating electrical wiring and installing new power board and RCD (in effect, circuit-breaker) protection, and excavating and removing the existing driveway and reinstalling a new driveway. With GST, insurances, builder's supervision, rubbish removal, overheads and the builder's margin, the estimated costs are $104,170. 39Marwan and Joe are registered proprietors of a property at Seven Hills, which was purchased in 1988 for $105,000. (In fact, as will be seen later, Joe accepts that he has no interest in this property.) 40The property at Seven Hills requires some repairs, including the removal and replacement of roof tiles, reinstatement of some walls, bathroom renovations, repainting internally, and supplying and installing carpets. With GST, insurances, builder's supervision, rubbish removal, overheads and the builder's margin, the estimated costs are $48,290. 41There is evidence that the current weekly rental is estimated to be $370 to $380 per week (although it was rented for $350 per week).

The Witnesses 42Generally, the evidence in the case, apart from a few aspects that related to the financial and material circumstances of Joe and Marwan were not the subject of dispute. In fact, only Joe and Marwan were cross-examined. I accept the submission that each endeavoured to tell the truth to the best of his ability. 43On the areas of disputes, I find as follows: (a) Despite the fact that Joe and Marwan are shown as registered proprietors in equal shares on the title to a property situated at Seven Hills, Joe acknowledged that he owned his share on trust for Marwan. He stated that he had "not contributed a single cent toward buying it or anything of that nature" and that he had never received any of the income from that property, all of which was paid to Marwan. Marwan is entitled to a declaration and, if necessary, the transfer of Joe's interest of the Seven Hills property to him. (In the circumstances, there was no reason for Joe to have disclosed as part of his financial and material circumstances, his interest in the Seven Hills property. I reject any criticism of Joe's evidence of his financial circumstances on the basis that he omitted any reference to his interest in this property.) (b) Marwan, from 1994 until 2000, repaid $1,300 per month from his salary to the deceased in respect of the debt, secured by mortgage on a property in Granville registered in Marwan's sole name. Upon his redundancy, he repaid a further $40,000 to the deceased. In addition, the deceased retained all of the rent from that property and did not account to Marwan for that rent. (c) Since the death of the deceased, Marwan has received the rent from the Granville property. (d) The parties agreed that it was not possible to calculate, with any precision, the amount that had been repaid to the deceased or the amounts to which Marwan was entitled, but which the deceased retained (including tax refunds which had not been paid to Marwan by the deceased). They agreed, therefore, that in order to avoid the costs of determining precisely what was payable, if any, one to the other, that as part of any provision made for Marwan, and upon him releasing the estate from any claims that he might have for amount of tax refunds that the deceased should have paid to him, Marwan should receive a discharge of the mortgage over the Granville property. (This agreement did not alter the estimate of the net value of the estate, because the amount of the alleged debt ($225,000) had not been included as part of the deceased's estate in the estimates set out above.) 44There was one aspect upon which Joe's evidence was particularly vague and upon which it is difficult to express a firm finding. There was no dispute that Joe had received a property, which he still owns, at Parramatta, a substantial part of the purchase price of which the deceased paid. The deceased, apparently, borrowed the balance of the purchase price (estimated to be about $125,000) from a relative overseas, but he required Joe to repay the amount borrowed. 45Joe's evidence was that he was repaying interest only. His taxation return referred to $16,000, being interest on a loan. However, Joe could produce no documents to substantiate the loan, or to substantiate the repayments that he had made. In addition, in his evidence, he did not identify the lender, other than as "a relative overseas" and did not provide any details at all about the terms of the loan, including when the principal was to be repaid. 46In addition, there was no reference to any debt owed to a relative overseas in any affidavit sworn by Joe. Whilst there was also no reference to the ownership of this property in any of his affidavits, senior counsel for sought, and was granted, leave to adduce that evidence in chief. Yet, Joe gave no evidence, as part of that evidence in chief, of any debt owed to any relative overseas in respect of that property.

The Statutory Scheme - The Act 47Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out some of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in their application. 48The wording of the Act is similar to the wording of the former Act. However, it is necessary to remember the warning of Kirby P in Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100, at 76,304: "Purposive construction of the Act There is always a danger where a reformed Act borrows heavily upon ideas which previously existed in the common law or in an earlier statute, that lawyers will approach the construction of the Act affected by the previous law. Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 2 NSWLR 475, 478. That danger is but an illustration, in the specialised activity of law, of a universal phenomenon of psychology long established in relation to human perception generally. We tend to perceive what we expect. We expect that with which we are familiar. There is a particular danger in the case of the Family Provision Act in construing its terms by reference to the law which developed around the Testators' Family Maintenance and Guardianship of Infants Act 1916. That Act was passed in earlier times to govern the entitlements of a testator's family, as narrowly defined. The definition by s 3(1) of that Act confined applications to those made by "the widow, husband or children of such persons". There was no mention in it of former spouses. Doubtless this was because, for the early part of this century, divorce was relatively infrequent and then based upon concepts of matrimonial fault which would make interference in the testamentary disposition of the deceased unlikely. When enacted, the statute was a radical interference in the power of testamentary disposition. That was a significant power over private property, the disturbance of which was regarded as highly exceptional." 49Whilst the relevant amendments made by the Act are not as significant as those made by the former Act, it remains necessary to bear his Honour's warning in mind in construing the statutory framework. In doing so, a construction that promotes the purpose, or object, of the Act is to be preferred to a construction that would not promote that purpose or object. In my view, the principles applied by the courts to the former Act continue to apply, except to the extent that the Act otherwise requires. 50The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008. A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, will. It is only if the statutory conditions are satisfied, that the court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate, to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary. 51The key provision is s 59 of the Act. The court must be satisfied, first, that an applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made. 52Relevantly, in this case, Lily is the wife of the deceased person at the time of the deceased person's death (s 57(1)(a) of the Act), whilst Joe and Marwan is each a child of the deceased (s 57(1)(c) of the Act). Clearly, the language in s 57(1)(c) is expressive of the person's status, as well as his or her relationship to the deceased. There is no age limit placed on a child making an application.

Inadequacy of Provision 53Then, if eligibility is found, the court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is only if the court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). In this way, it has been said that the court carries out a two-stage process. 54Allsop P in Andrew v Andrew [2012] NSWCA 308, has recently commented, at [6]: "...the expression of the task in s 59 is subtly different from the previous legislation. A prohibition against making an order unless satisfied of circumstances of an evaluative character, is different in emphasis from a permission to make an order if satisfied of circumstances of an evaluative character... The exercise of power to make the order is conditioned on the Court being satisfied of certain things in s 59(1). The order that may be made is described in s 59(2). The two elements are described in s 60(1)(b) as "whether to make [an] ... order and the nature of any ... order." Section 60(2) provides a detailed body of considerations for the task in s 59." 55Basten JA in Andrew v Andrew, at [26], put the differences this way: "As appears from the language of the relevant provisions set out at [66]-[67] below, the Succession Act differs from the Family Provision Act in three significant respects. First, although both conferred similar powers on the Court, the conditions of their exercise differ. The Family Provision Act required that the Court "shall not make an order ... unless it is satisfied that" the provision made by the testator is "inadequate": s 9(2). The Succession Act provides that the Court "may ... make a family provision order ... if the Court is satisfied that" the testator has not made "adequate provision" for the applicant: s 59(1). The changes in language may have been intended to remove double negatives, but there is a resultant change in emphasis. The apparent effect is to widen the discretion vested in the court. That which could satisfy a court that the provision made is "not adequate", for the purposes of the Succession Act, might not have been sufficient to remove the prohibition under the Family Provision Act, which operated in the absence of affirmative satisfaction that the provision was "inadequate". There may well be no bright line boundary between adequacy and inadequacy." 56Other than by reference to the provision made in the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) leaves undefined the norm by which the Court must determine whether the provision, if any, made is inadequate for the applicant's proper maintenance, education or advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision actually made in the deceased's Will, or on intestacy, or both, on the one hand, and to the requirement for maintenance, education or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education or advancement in life of the applicant. 57It was said in the Court of Appeal (per Basten JA) in Foley v Ellis [2008] NSWCA 288 at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment". 58Under s 59(1)(c) of the Act, the time at which the Court gives its consideration to the question is the time when the Court is considering the application. Under s 59(2), the Court has regard to the facts known to the court at the time the order is made. 59"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89 at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime". 60Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement": "'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education." 61In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), at [18] stated: "'Proper maintenance' is not limited to the bare sustenance of a claimant [cf Gorton v Parkes (sic) [1989] 17 NSWLR 1], but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility." 62In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77 King CJ said: "The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang (1960) 104 CLR 124, per Dixon CJ at 128." 63Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16: "Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541) In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274... In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said: 'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.' The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that: 'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'" 64In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J at [114] noted: "In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support." 65In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)." 66The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, whereas "proper" prescribes the standard, of the maintenance, education or advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 at [72] and at [77], per Buss JA. 67Each of the words was considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 476: "The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances." 68Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that: "It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent." 69In Goodman v Windeyer (1980) 144 CLR 490, Gibbs J said at 502: "[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards." 70In Vigolo v Bostin, at 228, Callinan and Heydon JJ said: "[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future." 71Santow J pointed out in Gardiner v Gardiner (NSWSC, 28 May 1998, unreported), that "adequate" and "proper" are independent concepts. He said at 12: "'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied ..." 72In Palaganio v Mankarios [2011] NSWSC 61, at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life involve value judgments on which minds can legitimately differ, and there are no definite criteria by which the question can be answered. 73Until recently, it was unanimously thought that there are two stages of the determination. The first stage, provided for by s 59(1)(c), has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the Court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. The Court does this by determining whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased and/or by operation of the intestacy rules, for the applicant. If it is not so satisfied, then the Court is precluded from making a family provision order. 74It is an element in determining whether "adequate" provision has been made for the "proper" maintenance, education or advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 (Tobias JA, with whom Beazley and Hodgson JJA agreed). Whether the applicant has a "need" or "needs" is a relevant factor at the first stage of the enquiry. 75In Collins v McGain, Tobias JA said: "42.Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies. ... 47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is "proper maintenance etc" of the eligible person. It is because of that context that, in the present case, the "proper maintenance etc" of the appellant required consideration of a need to guard against the contingency to which I have referred." 76In Devereaux-Warnes v Hall (No 3) at [81] - [84], Buss JA said, in respect of the first stage of the process: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227. 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11. The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575. Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]." 77As Callinan and Heydon JJ emphasised in Vigolo v Bostin, the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum" or "by looking simply to the question whether the applicant has enough on which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined. 78In the event that the Court is satisfied that the power to make an order is enlivened (i.e. it is satisfied that the applicant is an eligible person, and, where necessary, that factors warranting have been satisfied, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made by the will of the deceased and/or by operation of the intestacy rules), then, the Court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the Court at the time the order is made: s 59(2) and s 60(1)(b). 79Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the Court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour. 80Basten JA, in Andrew v Andrew, said of the two stage process referred to: "29The combination of changes requires that the court address the nature of the exercise being undertaken. Three potential consequences may be identified. First, there is a simplification of the structure of the process. There is no longer a two-stage process required. A degree of artificiality has thus been removed. The court should now ask what, taking all relevant factors into account, would have been adequate provision for the applicant. There is no first stage of determining whether the actual provision was "inadequate", followed by a discretionary exercise of determining what would be adequate and what should in fact be done. ... 41As noted above, the language of the Succession Act is not consistent with the two-stage inquiry which was a common feature of earlier legislation: cf Singer v Berghouse at 208-209. In Keep v Bourke [2012] NSWCA 64 the Court appears to have assumed that the two-stage process continued to operate under the Succession Act: at [24]-[29]. However, the issue not having been directly addressed, there is no constraint on this Court now adopting a different approach. Nor does earlier High Court authority construing an earlier statutory scheme govern the approach to be adopted to materially different legislative provisions." 81In Andrew v Andrew, Allsop P, at [6], said: "Whether the process engaged in by the Court in s 59 can still be described as "two-staged" in the sense discussed in Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 208-211 may be an analytical question of little consequence. The task involves an evaluative assessment and a choice as to consequence therefrom, appeal from which is governed by the principles concerning discretionary judgments: Singer v Berghouse at 211 and DAO v The Queen [2011] NSWCCA 63; 278 ALR 765 at [93]." 82Barrett JA disagreed with Basten JA, in Andrew v Andrew, saying: "65This is the second occasion on which this Court has been called upon to deal with a claim under s 59 of the Succession Act. In the earlier case, Keep v Bourke [2012] NSWCA 64, the Court proceeded on the basis that approaches taken under s 7 of the now superseded Family Provision Act 1982 remained relevant and applicable. That matter was explored in greater detail in the course of argument in the present case. For reasons I am about to state, I am of the opinion that the earlier approaches should continue to be followed in cases such as the present case and Keep v Bourke, that is, cases in which the applicant is a child of the deceased and no previous order for provision out of the estate has been made in favour of that applicant. ... 79First, it is necessary, having regard to s 59(1)(c), for the court to be satisfied that, at the time when it is considering the application, "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person". Whereas the former s 9(2) provided that an order was not to be made unless the court was "satisfied" in the specified way, the present legislation permits the court to make an order if "satisfied" in the specified way and, by necessary implication, precludes the making of an order if the court is not so "satisfied". 80Second (and if the court is "satisfied" in the specified way), the "family provision order" that the court is empowered to make is, under s 59(2), "such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made"; and the court may, pursuant to s 60(1)(b), have regard to the matters specified in s 60(2) in deciding whether to make an order and the nature of the order. 81Under s 59 and s 60, therefore, the task of the court, in a case of the kind under discussion, is: (a)to determine the extent of the provision made for the maintenance, education and advancement in life of the applicant by the deceased's will or the intestacy laws; (b)to form an opinion of the adequacy of that provision; (c)if the opinion is one of inadequacy, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased person for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the court at the time the order is made; and (d)in making that evaluative judgment, to take into account, as discretionary factors, the matters in s 60(2). ... 94As stated in Keep v Bourke (above), the structure and effect of the Succession Act provisions warrant continuing adherence to the two-stage approach indicated by the decisions of the High Court in Singer v Berghouse and Vigolo v Bostin." 83It seems to me that the two stage approach adopted in the myriad of cases determined under the former Act and under the Act, including Keep v Bourke [2012] NSWCA 64, enables me, despite what has been said by Basten JA, and until any uncertainty is resolved, to continue to follow that approach in determining cases under the Act. As Allsop P said, "it may be an analytical question of little consequence" since what has to be decided by the Court is whether to make a family provision order and the nature of any order. 84Section 60 of the Act, at least in part, is new. It provides: "(1) The court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the "applicant") is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the Court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person - the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered." 85It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew, at [37], as "a multifactorial list", to which the Court may have regard, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order. The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of such of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender. There is no limit to the matters to which, in any particular case, the Court may have regard other than relevance. 86Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. For example, when considering eligibility under s 60(1)(a), many of the matters in s 60(2) will be largely, if not wholly, irrelevant. 87There is no definition in the Act of "financial resources" (which term is only referred to in s 60(2)(d)). However, there is a definition of that term in s 3 of the Property (Relationships) Act 1984, which I consider helpful: "'financial resources' ... includes: (a) a prospective claim or entitlement in respect of a scheme, fund or arrangement under which superannuation, retirement or similar benefits are provided, (b) property which, pursuant to the provisions of a discretionary trust, may become vested in or used or applied in or towards the purposes of the parties ..., (c) property, the alienation or disposition of which is wholly or partly under the control of the parties to the relationship or either of them and which is lawfully capable of being used or applied by or on behalf of the parties to the relationship or either of them in or towards their or his or her own purposes, and (d) any other valuable benefit." 88Of course, s 60(2)(d) refers also to "earning capacity", which means no more than the capacity to find employment to earn or derive income. 89Furthermore, consideration of some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and of other eligible persons as well as of the beneficiaries, whilst others do not. Importantly, also, many of the matters in sub-s (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1). 90Leaving aside the question of eligibility, the Court may have regard to the matters referred to in s 60(2) on "the discretionary question", namely whether to make an order and the nature of any such order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently. 91This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the first stage. I am comforted in reaching this conclusion by the following comments made in Singer v Berghouse (at 209-210): "... The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant." 92And by the comments of Callinan and Heydon JJ in Vigolo v Bostin (at 230-231): "We do not therefore think that the questions which the Court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors." 93As was also pointed out by Barrett JA, in Andrew v Andrew, at [88] - [89]: "... leaving aside its relevance to the "eligible person" inquiry, the s 60(2) catalogue is directed to the question of what, if any, order for provision should be made and is not, in terms, applied to the initial question of the adequacy of the provision made by the will or the intestacy laws. 89It can be said at once that the s 60(1)(b) directive corresponds with that in the former s 9(3) to the extent that it relates to the decision regarding provision to be made. There is no express legislative intention, under either piece of legislation, that the enumerated factors are to be taken into account in deciding the initial question of adequacy of provision. There is accordingly no reason to think that those factors are to be afforded any special relevance in approaching the adequacy question. But they will, at that point, be given, independently of s 60(1)(b), such weight as they deserve in their own right as indicators of the "adequacy" question. As the primary judge recognised at [57], this is consistent with what was said by the High Court in Singer v Berghouse in relation to the former Act." 94Section 61 of the Act permits the Court to disregard the interests of any other person by, or in respect of whom, an application for a family provision order may be made (other than a beneficiary of the deceased person's estate), but who has not made an application. However, the Court may disregard any such interests only if: (a) notice of the application, and of the Court's power to disregard the interests, is served on the person concerned, in the manner and form prescribed by the regulations or rules of court, or (b) the Court determines that service of any such notice is unnecessary, unreasonable or impracticable in the circumstances of the case. 95Section 65(1) of the Act requires the family provision order to specify: (a) the person or persons for whom provision is to be made, and (b) the amount and nature of the provision, and (c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and (d) any conditions, restrictions or limitations imposed by the Court. 96The order for provision out of the estate of a deceased person may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the Court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act). 97The order may be made, relevantly, in this case, in relation to the estate of the deceased. As the deceased died leaving a Will, his estate includes all property that would, on a grant of probate of the Will, vest in the executor of the Will (s 63 of the Act). 98Section 66 of the Act sets out the consequential and ancillary orders that may be made. 99Any family provision order under the Act will take effect in this case, unless the Court otherwise orders, as if the provision was made in a codicil to the Will of the deceased (s 72(1) of the Act). 100Section 99 of the Act provides that the Court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit.

Other Applicable Legal Principles - Substantive Application 101Accepting that no two cases will be exactly alike, there are some other principles that may be identified. Whilst most of these principles were stated in the context of the previous legislation, they are equally apt in a claim such as this one. 102Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate, to endeavour to achieve a 'fair' disposition of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants. The Court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act the correction of the hurt feelings, or sense of wrong, felt by an applicant. Rather, the Court's role is of a specific type and goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance, education or advancement in life of an applicant. 103In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the Court to be vigilant in guarding "against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant". Freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the court": Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 19. 104In Stott v Cook (1960) 33 ALJR 447, Taylor J, although dissenting in his determination of the case, observed, at 453-4, that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged." 105Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education or advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (NSWSC, Young J, 17 May 1996, unreported); Vigolo v Bostin at 199 and 204; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. 106In all cases under the Act, what is adequate and proper provision is necessarily fact specific. An inflexible approach cannot be taken in assessing the questions to be answered. 107The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1909) 29 NZLR 959 at 966. 108Where the Court is satisfied that provision ought to be made, then it is no answer to a claim for provision under the Act that to make an order would be to defeat the intentions of the deceased identified in the Will. The Act requires, in such circumstances, for the deceased's intention in the Will to be displaced: Kembrey v Cuskelly [2008] NSWSC 262 at [45]. 109The important consideration is whether, in all the circumstances, the community expectation of the deceased would be for greater benefaction to have been made for the proper or adequate provision of the person seeking provision. Gleeson CJ observed in Vigolo, at 199 that the justification for interference with freedom of testation is to be found in the failure of a deceased to meet the obligations, which the community would expect in terms of maintenance, for those persons within the class of eligible persons. 110A claim under the Act does not encompass reparations, or compensation, to an applicant for the deceased having failed in his, or her, legal, or moral, duty to be a good and responsible parent of the child: Re Bull; Bentley v Brennan [2006] VSC 113, per Byrne J, at [30]. 111As I said in Savic v Kim [2010] NSWSC 1401, at [82]: "It is not the purpose of the Act to punish, or redress, past bad, or unfeeling parental behaviour, where that behaviour does not still impinge on the applicant's present financial situation." 112The following principles are particularly relevant to a claim by a widow of the deceased. (a) A wife, particularly of many years, has a primary right to be considered by her husband, but the extent that he should provide for her is to be governed by her needs, both at present, and in the foreseeable future. It is also governed by the claims and circumstances of the competing claimants, whose positions also have to be weighed with their needs and merits: Bladwell v Davis [2004] NSWCA 170, per Bryson JA, with whom Ipp JA concurred. (b) As a broad general rule, and in the absence of special circumstances, the general duty of the deceased to his widow, to the extent to which his assets permit him to do so, is to ensure that she is secure in the matrimonial home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies. Generally speaking, the amount should be sufficient to free her mind from any reasonable fear of any insufficiency as she grows older and her health and strength fail (see: Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24). Concern as to the capacity of the widow to maintain herself independently and autonomously may also bear upon the notion of what is proper provision. The Court of Appeal approved the "broad general rule" in O'Loughlin v O'Loughlin [2003] NSWCA 99. However, the principle is not one of immutable application: Marshall v Carruthers [2002] NSWCA 47; Clifford v Mayr [2010] NSWCA 6 at [142] - [144]. (c) The three elements identified in (b) above are not necessarily mutually independent. While an applicant's standard of living during the lifetime of a deceased may be a useful yardstick, it is not necessarily decisive as to what would be an appropriate provision for them in the future: see Grainger v The Public Trustee (WASC, Steytler J, 6 December 1995, unreported) at 18; Welsh v Mulcock [1924] NZLR 673, per Salmond J at 687; Pogorelic v Banovich [2007] WASC 45. The Court is not to approach the assessment of what is proper by attempting precisely to replicate the way of life that the deceased and the applicant widow planned to have had he survived: Neil v Jacovou [2011] NSWSC 87 at [163]. (d) There remains binding authority which gives greater weight to the claims of parties who have entered "a formal and binding commitment to mutual support": Marshall v Carruthers; Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308; Sellers v Scrivenger [2010] VSC 320 at [68]. In Magill v Magill [2006] HCA 51; (2006) 226 CLR 551, Gleeson CJ, at [24], said: "The structure of marriage and the family is intended to sustain responsibility and obligation." However, in Bladwell v Davis, Bryson JA stated: "[19]In the application of the test in s 7, and of the exposition thereof in Singer v Berghouse by Mason CJ, Deane and McHugh JJ at 409 -411 it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse, in full and with reference to the instant facts. Defeat of the opponents' claims does not necessarily follow from a demonstration, which the claimant can make, that all her needs with respect to income, home renovation, and provision for contingencies cannot be met if any provision is made for the opponents; indeed she could well demonstrate that even if the provisions of the will took effect without any modification, the provision for her is not adequate. That is not a demonstration that no claim by an eligible person can succeed; the claims and circumstances of the opponents also have to be weighed, and they too have their needs and merits." Ipp JA added: "[2]I would add, however, that where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others." Bladwell v Davis was referred to, with approval, by the Court of Appeal in Milillo v Konnecke [2009] NSWCA 109 at [80] - [82]. (e) Where, after competing factors have been taken into account, it is possible to do so, a widow ought to be put in a position where she is mistress of her own life, and in which, for the remainder of her life, she is not beholden to executors, or trustees and, still less, to remaindermen: Langtry v Campbell (NSWSC, 7 March 1991, Powell J, unreported). (f) The capacity of the widow, herself, to provide for her own needs must also be considered. In Re Crewe [1956] NZLR 315, at 323, it was said, quoting Allen (Deceased), In re, Allen v Manchester [1922] NZLR 281 AT 222, per Salmond J: "It may probably be said with truth that the proper maintenance which a testator owes to his widow in cases where there are no claims of other dependants is such maintenance as will enable her, taken in conjunction with her own means, to live with comfort and without pecuniary anxiety in such state of life as she was accustomed to in her husband's lifetime, or would have been so accustomed to if her husband had then done his duty to her." (g) Usually, a mere right of residence will be an unsatisfactory method of providing for a widow's accommodation. This is because a widow may be compelled, by sickness, age, urgent supervening necessity, or otherwise, with good reason, to leave the residence. The widow will then be left without the kind of protection which is normally expected should be provided by a deceased who is both wise and just: Moore v Moore (NSWCA, 16 May 1984, unreported), per Hutley JA, p 2; Golosky v Golosky [1993] NSWCA 111. The observations of Lord Nicholls of Birkenhead (admittedly in a different context) in Miller v Miller [2006] UKHL 24; [2006] 2 AC 618, at [22], underline the importance to the spouse of the matrimonial home: "The parties' matrimonial home, even if this was brought into the marriage at the outset by one of the parties, usually has a central place in any marriage. " (h) That provision of a capital asset to an applicant may, incidentally, enable her, or him, in due course, to pass that asset to others contrary to the wishes of the deceased, is not determinative of the propriety of such provision: Worladge v Doddridge (1957) 97 CLR 1 at 19; Salmon v Blackford [1997] NSWCA 274 at 6. (i) In relation to a spouse from whom the deceased has separated, it is necessary to consider the fact of separation, also whether there has been any formal, or informal, division of matrimonial property at any time before the death of the deceased, and, if so, the fairness, or otherwise, of that division, and whether, despite separation, the marital relationship is to all intents and purposes at an end: McKenzie v Lucas [2011] NSWSC 1012. 113In relation to a claim by an adult child, the following principles are useful to remember: (a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his or her children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801. (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia. (d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant (Re Buckland Deceased [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co. of Australasia Ltd (1979) 143 CLR 134 at 148; Goodman v Windeyer at 498, 505). But the Act does not permit orders to be made to provide for the support of third persons to whom the applicant, however reasonably, wishes to support, where there is no obligation to support such persons (Re Buckland Deceased at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams, at [86]). (e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45. (f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003) at [181] and [182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17]. (g) The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd at 149. (h) Although some may hold the view that equality between children requires that "adequate provision" not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the Court's determination of an applicant's case. (i) There is no obligation upon the deceased to have treated all of his, or her, children equally. In Carey v Robson; Nicholls v Robson [2009] NSWSC 1142, Palmer J commented: "57The strongest ground for relief urged by Rosemary and Marion, though put somewhat obliquely, is that the provision made for them by the testator is vastly disproportionate to the provision made for Alan. One can understand the sense of grievance which one child may have at being treated by a parent differently from another child. Some may be tempted to think that great disproportionality of testamentary treatment in itself indicates some essential error in the testamentary process which requires amelioration under the Family Provision Act so as to achieve approximate equality between a testator's children. 58 That is not, of course, a position from which one can begin in this, or in any other case under the family provision legislation." 114In Blore v Lang (1960) 104 CLR 124, Fullagar and Menzies JJ said (at 135): "The ... legislation [is] for remedying, within such limits as a wide discretion would set, breaches of a testator's moral duty to make adequate provision for the proper maintenance of his family - not for the making of ... a fair distribution of ... [the] estate ... Equality is not something to be achieved by the application of the Act, although in some cases equality may set a limit to the order to be made - for instances, where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same." 115This is a reasonably large estate. Some other statements in earlier cases are relevant. In Re Buckland, Adam J, at 415, said: "I consider the proper conclusion to be drawn from the authorities is that the court's jurisdiction, whatever the size of the estate, is limited by the claimant's need for maintenance and support; but that the maintenance and support to which he or she may for this purpose be treated as needing is that appropriate to his or her station or condition in life. ... The greater the estate the more may contingencies, even remote contingencies which may arise in the future, be provided for in the assessment of such maintenance." 116An appeal from the judgment of Adam J was dismissed by the High Court in May 1966. The High Court found no significant error of fact or of law in the reasons for judgment of the trial judge, and could not conclude that the amount of the provision ordered in the circumstances of the case, stemmed from some misconception of fact or from some error or misapplication of principle: Buckland v Trustees Executors and Agency Co Limited (1966) 40 ALJR 164. 117In Anasson v Phillips (NSWSC, 4 March, 1988, unreported), Young J (as his Honour then was) said at 20-21: "With a very large estate ... there is great temptation on a Court to be overgenerous with other people's money. This is especially so when the Court can see that Plaintiffs have been very hardly done by at the hands of a domineering testatrix. However, the case should not be approached in this way, as the application has to be determined in accordance with the legal principles. These principles include the fact that in Australia there is freedom of a person to leave her property in whatever way she wishes, to love whom she wishes, to hate whom she wishes, and it is only when there has been a failure to comply with a moral duty to those who in the community's eyes she should have made proper provision for, that anyone can legally complain about another person's will. Even then, the Court has no power to rewrite the will, but can only adjust things, in substitution for the testatrix, in such a way as to fulfil her moral duty. If the estate is a large one, the Court has a slightly different approach. The basic principles are the same, that is, the will can only be affected to the extent that it is necessary to discharge the moral duty by making adequate provision for the Plaintiffs, but where there is a large estate, competition between claimant and claimant, and claimant and beneficiary under the will is much reduced or eliminated. Further, there may be a more liberal assessment of the moral duty owed, to be reflected in what is proper provision for the Plaintiffs. In particular, the lifestyle that has been enjoyed by the Plaintiffs, because they have been associated with a wealthy testatrix, is a relevant factor." 118In McCann v Ward & Burgess [2012] VSC 63, Hargrave J, at [32], said: "...where the size of the estate permits and there will be no serious prejudice to the rights of other beneficiaries, the court may order further provision beyond the immediate and likely future needs of the applicant', providing a 'nest egg' to guard against unforseen events". 119Yet, it must also be remembered, as McLaughlin AsJ stated in Lumb v McMillan [2007] NSWSC 386, at [26]: "The ample size of the estate does not justify the Court in being profligate in disposing of the assets of the Deceased and in awarding to each Plaintiff an amount which is more than that to which that Plaintiff would be entitled. The Court should do no more than remedy the failure on the part of the Deceased to make adequate provision for the proper maintenance of each Plaintiff." 120The final aspect to which I should refer relates to the fact that Marwan is a general beneficiary in a discretionary trust controlled by his brother, Adel. As will later be seen, Marwan has received substantial distributions of income paid to him as a result of the exercise of the discretion of the trustee of that discretionary trust. 121Young J (as his Honour then was), in Gregory v Hudson (No 2) (NSWSC, 18 September 1997, unreported), when dealing with a testamentary provision in the nature of a discretionary trust, although the deceased had provided a number of memoranda of wishes setting out his wishes and desires concerning the benefits to be given by his trustee to various beneficiaries, said: "Mr Broun QC puts that the authorities clearly show that a provision in a will that trustees might pay additional moneys out of the estate for the benefit of the applicant is not a proper provision. He cites Re Brown [1972] VR 36. In that case, after citing some decision from New Zealand and Canada, together with a note of Re WTN McLelland CJ in Eq (1959) noted 33 ALJ 240 Norris AJ said at 39, "It is true to say that in most of the cases the fact that a discretion to increase a benefit existed was not regarded as rendering adequate a provision which otherwise was inadequate. I think, nevertheless, it is consistent with the authorities to say that such a discretion is not to be excluded from consideration in determining whether or not adequate provision has been made, and it may in an appropriate case render adequate a provision otherwise inadequate. " He then cites Re Allen [1922] NSWLR 218. Dickey on Family Provision after Death (LBC Sydney 1992) says at p121, "There is some authority for the proposition that where a person is in need of provision but the quantum of provision made for him or her from a deceased's estate is wholly dependent upon the discretion of trustees, this provision is not adequate. In all probability, however, this is not an inflexible rule. In all probability the question of whether provision of this kind is adequate depends upon the particular facts and circumstances of the case." ... I consider, with respect, that Professor Dickey's comment is close to the mark. Ordinarily, a benefit provided under a discretionary trust is a fairly illusory benefit because it can be terminated without reason and there is little likelihood of the discretionary beneficiary being able to force the trustee to pay her a benefit. Hartigan's case shows that even if there is a memorandum of wishes, there is no obligation on the trustee to take that into account. ... The trustees may change, the investments of the trustees might fail, there may be serious problems with one of the other beneficiaries, or new trustees may be appointed who take a set against the widow and reduce her benefits."

Estrangement 122On the topic of the relationship between an applicant and the deceased, Campbell JA (with whom Giles JA and Handley AJA agreed) recently noted, in Hampson v Hampson [2010] NSWCA 359: "[80] The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge." 123Because, in this case, there are matters raised that bear on the quality of the relationship, being that the Plaintiff and the deceased were said to be estranged for many years before his death, it is necessary to set out some other general principles which should be remembered: (a) The word 'estrangement' does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties. Whether the claim of the Plaintiff on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case: Lathwell v Lathwell [2008] WASCA 256 at [33]. As Basten JA recently stated in Andrew v Andrew at [40]: "It [estrangement] is a term sometimes applied to the "natural" process of separation of child from parent, which often peaks in adolescence, but may well continue into adult life, sometimes without resolution of the underlying tension. At least when kept within reasonable bounds, the negative consequences of such a process should arguably be ignored or at least not given disproportionate significance when assessing the expectation that a parent will provide for a child whose condition in life is financially disadvantageous, when compared with other claimants on the testator's conscience." (b) The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 at [88]-[94]; Foley v Ellis. (c) There is no rule that irrespective of a Plaintiff's need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to "ample" provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases. (d) The Court should accept that the deceased, in certain circumstances, is entitled to make no provision for an applicant, particularly in the case of a child "who treats their parents callously, by withholding without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility": Ford v Simes [2009] NSWCA 351 at [71] per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed. (e) As was recognised by the Court of Appeal in Hunter v Hunter (1987) 8 NSWLR 573 at 574 - 575 per Kirby P (with whom Hope and Priestley JJA agreed): "If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator's will." (f) Even if the applicant bears no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the Court's discretion under s 59(2) of the Act to make a family provision order where the jurisdictional requirements of s 59(1) are met. That the applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them continued companionship and support, is a relevant consideration: Keep v Bourke, per Macfarlan JA, at [3]. (g) The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, will operate to restrain amplitude in the provision to be made: Keep v Bourke, per Barrett JA, at [50]. As Basten JA said in Andrew v Andrew, at [57], referring to a period of estrangement: "Although the mother's reaction was entirely understandable and might have been shared by many parents, I am not persuaded that it justified the reduction of the daughter's share in the estate from that which might otherwise have been expected to a largely nominal sum." (h) Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. In addition, s 60(2)(m) permits the Court to consider the character and conduct of the applicant at both stages of the process. Care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time: Foley v Ellis at [102]. 124I make it clear that I do not intend what I have described as "applicable legal principles" or "statements in other cases" to be elevated into rules of law. Nor should the discretion, at the second stage, be constrained by statements of principle found in dicta in decisions on similar facts. I identify them merely as providing useful assistance in considering the statutory provisions the terms of which must remain firmly in mind.

Statements made by the Deceased 125In this case, the deceased left a number of written statements that referred, relevantly, to his views about Joe and Marwan. In the statement, which was prepared at, or about, the time of his Will, he stated about Joe: "This is my will dated 25/6/1996 I, Emile Khreiche From [sic] Ein Ebel, Lebanon born on 18/7/1933 in Lebanon. This my will concern my son Youssef. With my complete or mostly complete satisfaction with my son Youssef I say that he is like his siblings money does not mean a thing to him. He gets and spends it without care and if I give him from my inheritance he will spend it and waste it and this is something that makes me sad until death. The money that I fatigued to get and It [sic] took me more than 25 years of continuous work at least fifteen hours a day 7 days a week, I do not want to give it to people who do not know its value. Therefore I give it to his children and I ask them to careful with it as I have been careful with it myself. And if they are not careful with it at least I have a hope that they will be careful with it. Joseph my son, do not be angry. I do not want to deprive you from my inheritance and I am certain that what you take from me you will give to your children but I saw to give them myself maybe they ask why he did do this my grandfather comes who has a conscience and tells them that because he worries about you because he believes that your father is not careful with money." 126About Marwan, he was far less complimentary: "This is the Will of Emile Khreiche dated 25/6/1996 related to the called Marwan Khreiche I find no words to say to you except God damn you for ever you ill-mannered and ill-bringing up, good for nothing and you do not understand anything. I see that writing about you is something you do not deserve. The curses I received from you and the looks of deception and hatred, how I wish that someone who has a little bit of humanity explains to me the reasons for these insults. Do you curse me because I want you to have a future? Do you want me to pack my bag and leave the house for you, your mother and for your sister and your brothers and you lead the house? If you are fit to be a leader and educator why do you not have a family for yourself? When you are outside the house and mix with people in the street, do you look at them the way you look at me? Do you put yourself that high above others when you talk to them as you did with me? I am writing about you and feel like spitting on the ground, you are without honour and have been ill-brought up. God has ordered the respect of the father. Did you find me to be a rascal so you despise me? Have you done a thing for yourself and for others like I did? What do you have against me? If you cannot have one virtue, so why do you curse someone like me who devoted his life for the better? You do not deserve from me except cursing. And if you have children, they will take their share from my inheritance as it is stated in my Will but you do not deserve from me except the curse." 127(I shall later in these reasons refer to an earlier Will of the deceased.) 128Section 100 of the Act provides, in subsection (2) that in any proceedings under Chapter 3, evidence of a statement made by a deceased person is, subject to this section, admissible as evidence of any fact stated in it of which direct oral evidence by the deceased person would, if the person were able to give that evidence, be admissible. 129 Section 100(5) and s 100 (6) provide: "(5) Where a statement made by a deceased person during the person's lifetime was contained in a document, the statement may be proved by the production of the document or, whether or not the document is still in existence, by leave of the Court, by the production of a copy of the document, or of the material part of the document, authenticated in such manner as the Court may approve. (6) Where, under this section, a person proposes to tender, or tenders, evidence of a statement contained in a document, the Court may require that any other document relating to the statement be produced and, in default, may reject the evidence or, if it has been received, exclude it." 130Also, Gibbs J said in Hughes v National Trustees Executors & Agency Company of Australasia Ltd, at [18]: "Nevertheless in Australia for many years the courts have admitted evidence of statements made by a testatrix explaining why she made her will as she did. In taking this course the courts have no doubt been influenced by a desire to be informed of the reasons which actuated the testatrix to make the dispositions she had made, and by the consideration that in cases of this kind a claim is made against the estate of a person who is deceased and can no longer give evidence in support of what she has done. It is doubtful whether, in most cases, such evidence is relevant, but usage justifies its reception. The question is for what purpose it may be used, once admitted. The balance of authority clearly favours the view that it is admissible only to provide some evidence of the reason why the testatrix has disposed of her estate in a particular way, and that it is not admissible to prove that what the testatrix said or believed was true: Re Jones (1921) 21 SR (NSW) 693, at p 695; In re Smith (1928) SASR 30, at p 34; In the Will of Joliffe (1929) St R Qd 189, at p 193; Re G. Hall, deceased (1930) 30 SR (NSW) 165, at p 166; In re Green, deceased; Zukerman v Public Trustee (1951) NZLR 135, at pp 140-141 (a case decided before the amending legislation was enacted in New Zealand). This view was accepted as correct by Taylor J. in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR, at p 24; Taylor J. dissented in the result in that case but there is nothing to suggest that his opinion on this point differed from that of the majority of the Court." 131While the Court will consider any explanations given by the deceased in the will, or elsewhere, for excluding a particular person as a beneficiary, such explanations do not relieve the Court from engaging in the enquiry required by the Act: Slack-Smith v Slack-Smith [2010] NSWSC 625 at [27]. What an explanation may do is cast light on the relationship between the deceased and that person, at least from the deceased's perspective.

Further Additional Facts 132I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come. (a) any family, or other, relationship between the applicant and the deceased person, including the nature and duration of the relationship 133Lily was the deceased's wife at the date of his death. They were married for a period of 52 years and cohabited together for a period of 38 years. 134It is clear that the marriage was not always an harmonious one. However, that appears to have been as a result of the deceased's conduct rather than the conduct of Lily. She gives evidence that the deceased was frequently aggressive towards her and their children and that he had a difficult and strained relationship with all of his immediate family. 135The deceased was violent towards members of his family, and on one occasion, in about August 1996, he was the subject of an Apprehended Violence Order ("the AVO") sought by Lily. The complaint refers to a threat made by the deceased to kill Lily if she did not do as he said. This incident provoked Lily into finally leaving the matrimonial home. She separated, finally, from the deceased in 1996 after the events that gave rise to the AVO. 136Lily also gives evidence of a number of earlier separations between herself and the deceased, and of the AVO. 137Lily then went to live with Joe until 2003, when she moved in with Adel, and later into a property owned by him. She never paid rent or outgoings to her sons. However, she continued to clean the house in which the deceased lived, to tidy up after the deceased, including doing the dishes; and to cook his meals. The deceased continued to prepare her tax returns. 138Joe is a son of the deceased. He had a difficult upbringing. He was educated in Lebanon, rather than in Australia, and came to Australia when he was about 15. He did not go to school after arriving in Australia. He says that the deceased was "exceptionally strict" and was violent towards him, beating him for the smallest infraction. 139He worked on the family's properties and in particular was responsible for working at the property in Granville. He continued to do so even after he moved out of home in 1978, although he returned at the request of Lily. He finally left in 1987, when he married. His work included general maintenance and repairs. 140His siblings assisted in the maintenance of the Parramatta property. 141Marwan is a son of the deceased. He came to Australia with Lily when he was aged 14. He had the same unhappy childhood as his siblings. He attended school until he was in year 11, in 1980. When he was 16, the deceased threw him out of the house. He lived with Joe for a short while, but returned to live with his parents, when Lily asked him to do so. He moved out of the house permanently in 1981. He lived with Adel, and then again, with Joe. The deceased did not speak to, or have anything more to do with, him ever again since that time. Marwan attempted to resurrect the relationship but was rebuffed by the deceased. 142The last occasion when he attempted to speak to the deceased may have been in 1998, at the funeral of one of Joe's children, but he could not remember this with certainty. 143The last occasion when Marwan saw the deceased was when he "took his kids to see their grandfather" in 2010. However, there is no evidence that he spoke with the deceased on this occasion, or that he even attempted to. (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate 144There is no definition of the "obligations" or "responsibilities" to which the subsection refers in the Act. There is nothing in the sub-section that limits the basis of the obligation solely to that which was legally binding upon the deceased. Furthermore, one might conclude, because of the word "any", before "obligations or responsibilities" that what may be considered is the nature and extent of any legal, financial or moral, obligations or responsibilities owed to the applicant by the deceased. 145An obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life is recognised in the case of a child. 146There is also no dispute that an obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life is recognised in the case of a spouse. 147There is, generally, no obligation or responsibility to make adequate provision for the proper maintenance, education or advancement in life of a grandchild. (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered 148I have dealt with the nature and extent of the estate. It is a reasonably large estate. (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate 149Lily worked at RailCorp, as a shift worker, on a fulltime basis, between January 1977 and November 2001. She has been retired since then and at her age, she no longer has any earning capacity. 150At first, she earned $400 per fortnight, but at the end of her employment, that amount had increased to $900 per fortnight. She was required to, and did, give all of her salary to the deceased. 151Lily owns two taxi plates worth about $400,000 each. She says that the deceased purchased them without her knowledge. He would simply request her to sign documents, which she did, without demur. The income from the taxi plates, about which she was not informed, was paid into the deceased's bank account. He prepared her taxation returns and did not advise her of her financial position. Since his death, she has been receiving the income from these taxi plates. 152She has a 50% interest in another property in Parramatta (next door to the deceased's property at Parramatta), which is worth (in total) about $450,000, although that asset has always been treated as Joe's property. She did not ever receive any income from this property. She has consented to Joe receiving all of the income from the Parramatta property of which she is a co-owner. 153She also owns some shares, the total value of which is about $16,656. 154She has a bank account with $40,439 and an allocated pension fund from her employment at RailCorp of about $66,000. 155In her most recent income tax return, Lily discloses an income of $68,875 from the taxi plates and a total income of $78,255. It seems that her modest needs (estimated to be about $1,276 per month) are met by her income, although were she to have the Parramatta property owned by the deceased transferred to her, she would have some expenses to maintain it. 156Lily expresses the desire to return to live in the Parramatta property owned by the deceased and to renovate and furnish it so that she can spend the rest of her life there (and to have the means to move to appropriate accommodation if need be). She also seeks a fund for contingencies, for her medical care, and to be able to visit relatives overseas before they die. 157In submissions, senior counsel submitted that she should receive the Parramatta property owned by the deceased in specie ($595,000), a capital sum for repairs and renovations ($70,000) and to enable her to purchase furniture ($50,000) and an additional capital sum for exigencies (between $300,000 and $500,000). She submitted that the total value of the provision for Lily should be $1,135,000. 158Joe discloses that he has net assets of $1,085,886 and gross assets of $1,405,886 (including superannuation). He owns his home at Merrylands ($550,000), which is subject to a mortgage (securing a debt of $320,000). He has an investment property at Parramatta ($420,000), as well as the half-interest in the property next door to the Parramatta property ($225,000) (although he receives all of the income of that property with the consent of Lily). It appears that there is the unregistered loan over the Parramatta property. (He contributed equally to the purchase price of the Parramatta property.) His superannuation entitlement is valued at $210,686.) He has a small amount ($200) in the bank, and his wife has 9,000 Telstra shares ($29,430). 159His income, in 2011, was $93,259 (reduced from $95,653 in 2010) and his wife's income was $24,772 (also reduced slightly from the previous year). He and his family have outgoings of $7,410 per month, which equates to about their combined net income. 160Joe has three children, aged 18, 15 and 10, who have tutoring and who attend private schools. He needs a new car and would like to pay off his mortgage, as well as visit Lebanon with his family. He receives the whole of the income from the Parramatta property due to his management of the property, but Lily is an equal co-owner of that property with him. 161Joe has worked with RailCorp since January 1977. He has held the position of train guard since 1985. 162He submits: "33While [Joe] has assets, he also has debts, and his income is not sufficient to do more than he is doing at the moment to reduce those debts. He has only $210,686 in superannuation and requires assistance with debts, provision of a contingency fund and funds for his retirement." 163He also refers to the likely costs of educating his children. 164In submissions, senior counsel submitted that Joe should receive an amount to enable him to pay off his mortgage ($320,000), an amount to enable him to buy a new car ($30,000), an amount to enable him to carry out renovations on his home ($100,000) and an additional capital sum for exigencies of life ($150,000). She submitted that the total value of the provision for Joe should be $600,000. 165Marwan owns two properties worth $850,000 in total ($400,000 and $450,000 respectively); he has some savings ($17,000), shares ($3,260) and superannuation ($53,623). His wife has no separate assets. He holds $6,000 on trust for his two children. 166His taxable income, in 2010, was around $47,230, and, in 2011, was $78,343 ($55,870 of which is attributable to distributions from Adel's family trust). He has no liabilities. He has outgoings of around $4,356 per month. 167He is one of the "general beneficiaries" of the AMK Family Trust, a discretionary trust established for the principal benefit of Adel and his family. He has received distributions from the family trust. 168There is evidence from Adel that he "cannot continue to provide for Marwan indefinitely and I anticipate that the distributions from the AMK Trust will cease in the foreseeable future". 169Marwan and his family live in a property owned by Adel's wife. There is also evidence from Adel, that his wife "wishes to use the house for other purposes and will require Marwan and his family to vacate the premises at some stage in the foreseeable future". 170Marwan is no longer able to work as a boilermaker because of an asthmatic condition. He says he is not trained for any other job and will not be able to work again. (There is no medical, or other expert evidence, to suggest that he is unable to work because of any medical condition.) 171Adel gives some evidence of attempts by him to secure stable employment for Marwan, all of which attempts were unsuccessful. 172Marwan currently looks after Lily. 173Marwan's wife does not work. She takes anti-psychotic medication. They have two young children, one of whom has a significant medical problem of allergies. 174Whilst Marwan has assets of reasonable value, his real estate is in poor condition and his income, without reference to the distributions from the AMK trust, is insufficient for his family. He does not currently pay rent to Adel's wife. 175Marwan would like to purchase a property of his own (he currently lives in one of Adel's properties, near Lily) and to buy a car. Failing provision of a sum of money for a property, he would accept the transfer of the deceased's property at Granville and a sum of money with which to renovate that property to be suitable to his needs. He wishes to travel to Lebanon and to take his children, as well as educate his children and to provide for his son's medical needs. He has only $53,623 in superannuation and requires a fund for contingencies and for his old age. 176In submissions, senior counsel submitted that Marwan should receive the deceased's property at Granville absolutely ($425,000), the taxi plate absolutely ($400,000), and an amount to enable him to carry out renovations on the Granville property ($125,000). She submitted that the total value of the provision for Marwan should be $950,000. 177As stated earlier, each of the Plaintiffs, who is a child of the deceased, swore an affidavit, read in the Defendant's case, about the financial resources and needs of his and her children. 178 In relation to Joe's three children, Joe's evidence is: (i) His school fees for his three children are approximately $5,519 each per year. (ii) Emile is expected to attend university in 2013 at a cost of approximately $15,000 per year. Jessica is expected to attend university, from 2015, at a cost of approximately $16,000 per year. Mary is expected to attend university, from 2020, at a cost of approximately $20,000 per year. He states that his children could be at university for 4-5 years to complete his and her degree. (iii) He plans to send his children to Lebanon in late 2012 to visit their relatives and estimates the cost of the trip to be approximately $20,000. (iv) His daughters currently sleep in the same bedroom and he states that it is too small for both of them. He would like to renovate the house by adding another bedroom, the cost of which he states to be approximately $100,000. 179In relation to Marwan's two children, Marwan's evidence is: (i) Marwan's older son, Aidan, suffers from severe allergies, in particular he suffers from allergic reactions to nuts, milk and eggs and other dairy products, which can require hospitalisation and are potentially life-threatening. (ii) Aidan is under the care of a medical specialist for his allergies and needs to take Claratyne frequently. He is required to undergo regular testing for his condition. He requires an Epipen machine to be present at his home and school. (iii) Marwan is unable to estimate the costs of Aidan's allergy, due to the varying regularity and severity of his allergic reactions. Aidan requires frequent medical attention by a specialist at a cost of $270 per consultation. The future costs involved in Aidan's allergies and the care he requires cannot be estimated. (iv) Marwan's younger son, Matthew, is in good health. (v) Marwan estimates the cost of schooling, for the next 12 years (including this year) for Matthew to be $4,500 per year; and for Aidan to be $4,500 per year for 11 years. Marwan pays approximately $5,340 per year for private tutoring for his children. The costs of schooling are expected to increase. 180In relation to Samia's three children, Samia's evidence is: (i) Her daughter, Alana, started high school this year, and her youngest son, Nathan, will start high school in 2014. Samia's oldest son, Jon, is in year 10. (ii) Jon's school fees for 2012 are $27,198. Alana's school fees for 2012 are $9,597. Nathan's school fees are $3,264, together with an amount of $4,000 (to be admitted to Barker). The total amount in school fees for 2012 is approximately $44,041. (iii) Samia anticipates that their school fees will be of a similar amount in 2013. (iv) In 2014 the school fees for Samia's children's school fees will be approximately $54,000. (v) Between 2015 to 2018 Samia estimates her children's school fees will be approximately $37,000 per year, when Jon completes his HSC, reducing to $25,000 per year in 2019 and 2020 when Alana completes her HSC. (vi) The cost of providing books, uniforms and stationery for the three children from 2012 is estimated to be approximately $1,500. From 2012, the extracurricular activities of the children are estimated to be approximately $2,500 per year, and tutoring costs are $8,320 per year. (vii) The total cost of extracurricular activities and tutoring for Samia's children for the remainder of their secondary school attendance will be approximately $40,290. (viii) Samia states that it is likely that each of her children will attend university, she states that the cost of university is approximately $15,000 - $20,000 per year for 4 years. (ix) Samia plans to take her children to Lebanon in 2012 for the purpose of them meeting their extended family and experiencing their cultural heritage, at a cost of approximately $30,000. (x) Samia states that each of her children have bank accounts in their name, in the following amounts: (a) Jon Westpac Bank (approx) $4,183 (b) Alana Westpac Bank (approx) $5,266 (c) Nathan Westpac Bank (approx) $4,787

Samia states her children have no other assets. 181In relation to Adel's two children, Adel's evidence is: (i) His two children, Daniel and Justin, are discretionary objects of the AMK Trust, the assets of which are valued at approximately $978,320. The AMK Trust is a discretionary trust, the trustee is AMK Securities Pty Limited. (ii) His children will have the following needs: a. Payment of school fees in the sum of $13,000 per year for 12 years for Daniel, and $19,000 per year for 4 years for pre-school/day care and then $13,000 per year for 13 years for Justin, the total of which is $401,000. b. Contribution towards tertiary education costs for Daniel and Justin in the sum of $112,000. (iii) His children will also require private tutoring at a cost of approximately $8,000 per year over twelve years whilst in primary and high school. (e) if the applicant is cohabiting with another person - the financial circumstances of the other person 182As stated, Lily lives in the home of Adel and his family. However, she remains a widow and single. 183Joe lives with his wife and his three children. 184Marwan lives with his wife and his two children. (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated 185Lily suffers from a number of health conditions including a recently broken hip, and the hip and bone conditions. She also has a heart defect and some circulation/cholesterol issues. 186Joe says that he suffers from a number of health issues, including high blood pressure, a left ventricle enlargement and diabetes. He has no apparent disabilities. However, he takes a number of medications. 187Marwan is said to suffer from an unspecified mental disorder about which his brother, Adel, makes some observations. Adel says that Marwan's mental health is "fragile" and has been throughout his life. 188Adel also says that his brother received more abuse than the other family members. He has a lack of self-esteem and self-confidence, and a fear of social groups. He also suffers from asthma. 189Marwan has two sons aged about 7 and 5. One of them has severe allergies. Marwan is unable to leave them with their mother due to her mental health problems. (g) the age of the applicant when the application is being considered 190Lily is currently aged 71 years, having been born in October 1941. 191Joe is currently aged 53 years having been born in September 1959. 192Marwan is currently aged 50 years having been born in 1962. (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant 193Lily contributed directly, by provision of her salary to her husband for some 20 years, and by working on the various properties that he owned. She made a significant contribution to the deceased's welfare throughout their marriage and, it would appear, even when they were separated. She bore the burden of looking after their four children when they were young. 194In addition, the deceased required Lily to cook and clean the home and to assist her children in its maintenance. 195In relation to Joe, the Defendant concedes: "6.3... it is clear that he was of continually assisting his father with his business affairs, and that his father could not have managed without him." 196I have earlier referred to some of his contribution to the maintenance of the deceased's properties. He also assisted with the management of taxi leases, particularly after the death of the deceased. 197Marwan also assisted the deceased with maintenance of properties and management of taxi leases. (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate 198I have earlier noted that no provision is made for any of the remaining Plaintiffs in the deceased's Will. 199However, Lily did receive provision of the two taxi plates and a half-share in a property at Parramatta (albeit without her knowledge or any direct benefit accruing to her from those assets during his lifetime). However, it is likely that her earnings contributed to the purchase price of the taxi plates and also her interest in the Parramatta property. 200The deceased also told the Defendant's officer who prepared the Will that he had borrowed to buy the taxi plates in Lily's name, and that there were also shares in her name, the purchase price of which he had borrowed. 201The deceased gave Joe a house situated in Parramatta as a wedding gift but that gift, it is said, came with the burden of paying off the loan to a relative. Otherwise, Joe says that he never received any financial assistance from the deceased before or after he left home. 202Marwan says that no provision was ever made for him by the deceased. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person 203While this subsection permits the Court to accept evidence of the reasons for the provision, or lack of provision, it does not compel the Court to attribute any particular weight to that evidence, or to accept the deceased's statement as establishing the truth of what is asserted. 204A copy of the Will made on 19 September 1994 by the deceased provides: "I Emile Khreiche and this is my will and I ask for it to be executed to the letter. All what I possess to my son Youssef Emile Khreiche and after him to his male sons. His wife, if she left him is not entitled to anything in my inheritance in case of a divorce between her and my son Youssef. My son Marwan, my son Joseph from the net income of my inheritance 30 per cent after deducting the taxes. And if he gets married and is in need Marwan gets from the income of my inheritance after deducting the taxes the ratio of 50% only for the education of his children. My son Adel is not entitled to anything of my inheritance also my daughter Samia. My wife Laila if she is in need takes from the income of my inheritance according to her need until she dies. My son Youssef Hanna Khreiche is given from the income of my inheritance the sum of 4000 dollars per year until he dies." 205I have earlier referred to other statements made by the deceased about his relationship with Joe as being "satisfactory or mostly completely satisfactory". However, he then went on to categorise Joe as a wastrel. No evidence to justify such an assessment was put forward by the Defendant. (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so 206There is no evidence that any of the Plaintiffs were being maintained, either wholly or partly, by the deceased prior to his death. Each of Joe and Marwan accept that the deceased maintained them during their childhood. (l) whether any other person is liable to support the applicant 207There is no other person with a liability to support any of the Plaintiffs. (I have referred to the fact of the assistance provided by Adel to Lily.) 208Adel and his wife (and to some extent Joe) support Marwan voluntarily and temporarily. (m) the character and conduct of the applicant before and after the date of the death of the deceased person 209The Defendant does not assert any specific conduct of any Plaintiff that would disentitle her or him to provision out of the deceased's estate. To the contrary, in the submissions filed on behalf of the Defendant, it is written: "4.1 ...There is no explanation or reason the Defendant can point to, which would explain the failure of the deceased to make any provision for Mrs Kreich and the two children of the deceased who seek provision. 4.2Having regard to what might reasonably have been expected of the testator, and taking into account the circumstances of each of the applicants, and the factors described in section 60, the Defendant cannot argue that adequate provision has been made. In fact there has been no provision made at all for the wife and children of the deceased, and that is not in accord with current community standards as referred to in Andrew v Andrew. 4.4Each plaintiff needs to be looked at separately, Before doing so; it is observed that on all of the evidence the deceased, for whatever reason was not an easy man to deal, and that was the case with each of the applicants and their relationship with him." (n) the conduct of any other person before and after the date of the death of the deceased person 210I have earlier referred to the conduct of the deceased. All of the Plaintiffs gave evidence of that conduct and each is consistent. There is also the contemporaneous AVO complaint in regard to his conduct towards Lily. 211It appears that of the grandchildren, only Emile was born when the deceased's Will was drafted. 212There is not a great deal of evidence about the relationship of any of the grandchildren with the deceased. However, each is a chosen object of the deceased's bounty. 213Emile states that he is in "full support of the claims made out of the estate by the Plaintiffs". 214Emile says nothing about his relationship with the deceased in his affidavit. (o) any relevant Aboriginal or Torres Strait Islander customary law 215This is not relevant in the present case. 216However, Joe refers to his "culture" in which "the eldest child has the responsibility to care for their (sic) parents". (p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered 217There is no other matter that I consider relevant in the present case.

Determination 218Being an "eligible person" is a necessary precondition to the Court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. There is no dispute that each of the remaining Plaintiffs is an eligible person. 219Having established eligibility, there is also no dispute that the proceedings were commenced within the time prescribed by the Act. 220Then, the question for determination is whether, the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of each Plaintiff, has not been made, relevantly in this case, by the Will of the deceased. (The operation of the intestacy rules is irrelevant.) 221The deceased made no provision out of his estate for any of the remaining Plaintiffs. Counsel for the Defendant fairly conceded in relation to Lily: "5.1The Defendant does not put forward any contention that the deceased's wife ought not to have further provision made for her, given the circumstances described in detail in her evidence, and reinforced by the affidavits of her children. 5.2The Defendant does not take any issue with the material that has been put forward by on her account. Any further comment is unnecessary, save to recognise her age and her present circumstances. The Defendant acknowledges that that whilst she was "separated" from the deceased, it was certainly not could be described as usual in Australia. In particular the fact that she continued to carry on as a " housekeeper" is one the Court can accept would be a unique situation, and in her favour. 5.3In terms of the factors outlined under s.60, there is no doubt in the circumstances the deceased had an obligation to provide for his wife. There are no matters to the knowledge of the defendant that would weigh against further provision. It is accepted that provision should on the facts of this case be at the higher end of the available range." 222In relation to Joe, he submitted: "6.1In respect of this applicant, the first issue that arises is a factual issue. It concerns the property at ... Seven Hills. This property is owned with Marwan as a tenant in common; at least that is what appears on the title. However, there is no mention of it in [Joe's] evidence, nor do his tax returns disclose that he has, or is, receiving an income from it. 6.2In that event, the financial circumstances of [Joe] are on the face of it some $225,000 greater than he has stated. 6.3Having regard to the relevant factors for provision, it is clear that he was of continually assisting his father with his business affairs, and that his father could not have managed without him. Some further provision may be made for [Joe], however the extent of it is it is submitted linked to the position with the [Seven Hills] property." 223In respect of Marwan, he submitted: "7.1The Defendant ... accepts that given the position of Marwan, where he is not working and has family issues that further provision could be made for him. The difficulty that presents itself is in respect of the mortgage on the [Granville] property, and the extent to which the Court can take account of the claims that he has been denied rightful payments of rental for this property, because of the actions of the deceased. 7.2However, leaving those issues to one side in terms of the obligation to make further provision, and ought to have been provided for to a greater degree than any of his siblings. The Court would be entitled in the particular circumstances of this case to have particular regard to section 60 (2)(m). The Defendant also sets accepts that it is a significant factor in undertaking any assessment that Marwan is unemployed, and seemingly that is not a situation that will alter." 224In my view, in all the circumstances of the case, the jurisdictional threshold has been satisfied in relation to each of the remaining Plaintiffs. I accept that the deceased had a domineering, aggressive and abusive character which led to the difficulties with each of the members of his family. 225It is clear that each of the remaining Plaintiffs has "needs". As stated above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence. By way of example, Lily has no capital sum to provide for the exigencies of life. She is 71 years of age with no earning capacity. Joe has three children who require financial and other assistance with their educational needs. Marwan is unemployed and has three family members to support. Important, also, is the size of the deceased's estate and the fact that none of the beneficiaries is an eligible person. 226Thus, I am satisfied that adequate provision for the proper maintenance or advancement in life of each of the remaining Plaintiffs has not been made by the Will of the deceased. 227Then, I next consider the nature and amount of any provision that should be made. In calculating the provision that each should receive, I should bear in mind the matters referred to in s 60(2) of the Act. 228Having regard to all of the matters that I may consider, including amongst other things, the size and nature of the deceased's estate, the lack of provision made for each remaining Plaintiff during the lifetime of the deceased, the relationship between each and the deceased, as well as the relationship between the deceased and his grandchildren, who are the chosen objects of testamentary bounty, I am satisfied that some provision should be made for each Plaintiff out of the estate of the deceased. 229I also note that in respect of each of Joe and Marwan, the Defendant acknowledges that any provision made will benefit his children. 230In the case of Lily, I am of the view that she should be provided with security of accommodation and a capital sum for exigencies of life. In my view, she should receive the Parramatta property owned by the deceased ($600,000) and a lump sum, out of the estate of the deceased of $220,000. After payment of renovation costs and the purchase of furniture, she will have assets with a value in excess of $1.1 million to provide both income and capital for her remaining years. If she requires additional income, she can seek one half of the income from their property that presently goes to Joe. 231In the case of Joe, I am of the view that he should receive a capital sum of $400,000. This amount will enable him to repay, if he chooses to, the whole of the secured debt on his family home, and provide a capital sum for exigencies of life. In reaching this amount, I also bear in mind, if Emile considers that Joe needs additional financial assistance, he can provide such assistance from the balance of the share of the deceased's estate to which he (Emile) is entitled. He is now an adult and can make such additional provision for his father, as he considers appropriate. 232In the case of Marwan, I am of the view that he, too, should receive a capital sum, but in the amount of $500,000. This amount will enable him to carry out and pay for the renovations to his property at Granville in which he wants to live, as well as providing him with a capital sum for exigencies of life. 233In coming to this amount, I bear in mind that he and the deceased did not have any form of relationship for the many years prior to the death of the deceased. Whilst I find that their lack of relationship was caused, principally, by the deceased's character and conduct, the fact that there was a complete lack of relationship for so many years prior to death, does restrain amplitude in the provision that ought to be made for him. However, his earning capacity is more limited than Joe's and if he moves into one of the properties which currently provides him with an income, his overall income will be reduced. 234If he wishes to receive the taxi plate ($400,000) in specie, which will provide him with an income in the future, then he should receive it as part of the provision. (This would have the added advantage of enabling the Defendant not to have to sell the taxi plate or, if it is retained, to continue to administer the asset as part of the deceased's estate.) In that event, he should receive a capital sum of $100,000. 235In addition, Marwan should be provided with a discharge of mortgage, in registrable form, which mortgage remains registered on the Granville property. I have earlier referred to the parties' agreement upon this aspect. 236In reaching my conclusions, I have borne in mind the competing claims of the grandsons of the deceased. I remember that none is an eligible person, but importantly, that each is the chosen object of the deceased's testamentary bounty. 237No interest is to be paid on each of the lump sums, if it is paid within 42 days of the making of the orders or such other time as the parties agree; otherwise, interest calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898, on unpaid legacies, is to be paid from that, or the agreed, date until the date of payment of the lump sum. 238Unless the parties wish some other order to be made, the short minutes should include an order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the costs of the proceedings and one that the Court Book should be returned. 239In view of the matters referred to above, and so as to enable the parties to reach agreement on the question of the costs of the proceedings, I direct that they bring in short minutes of orders which reflect the provision made for each of the remaining Plaintiffs and, which, if possible, deal with the issue of costs. 240I shall stand the matter over to a date suitable to the parties and to the Court.

Amendments 19 November 2012 - address of property altered Amended paragraphs: 43(a) 19 November 2012 - last sentence deleted Amended paragraphs: 145 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 November 2012

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