Kusumo v Kusumo

Supreme Court of NSW|2014-11-17|Before: Hallen J, Santow J

we v Lowe [2014] NSWSC 371 MacGregor v MacGregor [2003] WASC 169 Marks v Marks [2003] WASCA 297 Marras, In the Estate of the late Anthony [2014] NSWSC 915 Matthews v Wear [2011] NSWSC 1145 Mayfield v Lloyd-Williams [2004] NSWSC 419 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Palaganio v Mankarios [2013] NSWSC 61 Phillips v James [2014] NSWCA 4 Pogorelic v Banovich [2007] WASC 45 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Poole v Barrow [2014] VSC 576 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 Sammut v Kleemann [2012] NSWSC 1030 Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Szypica v O'Beirne [2013] NSWSC 297 Taylor v Farrugia [2009] NSWSC 801 Tobin v Ezekiel [2012] NSWCA 285 Verzar v Verzar [2012] NSWSC 1380 Verzar v Verzar [2014] NSWCA 45 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (Supreme Court (NSW), 17 May 1996, Young J, unrep) West v Mann [2013] NSWSC 1852 Wilcox v Wilcox [2012] NSWSC 1138 Williams v Aucutt [2000] 2 NZLR 479 Texts Cited: Rosalind Atherton, 'The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?' (1999) 5 Australian Journal of Legal History 5 J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths) Category: Principal judgment Parties: Iskandar Kusumo (first Plaintiff) Nadia Kusumo (second Plaintiff) Ishak Kusumo (Defendant) Representation: Counsel: Mr M Meek SC (Plaintiffs) Mr M Sneddon (Defendant) Solicitors: Carroll & O'Dea Lawyers (Plaintiffs) Frankie Chan & Co Solicitors (Defendant) File Number(s): 2014/102439

The Claim 1HIS HONOUR: These reasons relate to a claim in which, initially, there were two Plaintiffs, namely Iskandar Kusumo and Nadia Kusumo, who are, respectively, a child and a grandchild of the late Ani Kristomuljo ("the deceased"). Each sought a family provision order, pursuant to the Succession Act 2006 (NSW) ("the Act"), and costs out of the estate, and notional estate, of the deceased. A family provision order is an order made by the court in relation to the estate, or notional estate, of a deceased person, to provide from that estate, or notional estate, for the maintenance, education, or advancement in life of an eligible person. 2(In this case, despite the relief claimed in the Summons, there is no suggestion of any property to be designated as notional estate of the deceased. Accordingly, the claim is one for provision only out of the estate of the deceased.) 3Without intending to convey undue familiarity, with no disrespect intended, and for convenience and clarity, I shall refer, hereafter, to the parties, and other family members, after introduction, by his, or her, given name. 4In the submissions filed on behalf of the Defendant, a few days before the hearing, the court was informed that Nadia's claim had been settled. At the commencement of the hearing, the court was informed of the principal order giving effect to the settlement. I shall refer, later in these reasons, to the provision to be made for Nadia, noting that Iskandar consents to the provision being made in her favour. 5It is now only necessary to deal, in these reasons, with the claim by Iskandar, although it will be necessary to state the effect, on the estate, of the orders made in Nadia's claim. Final orders disposing of her claim will be made at the same time as the orders to be made in Iskandar's claim. To that end, the Short Minutes of Order should include orders dealing with Nadia's claim as well as orders to be made in respect of Iskandar's claim. 6Iskandar and Nadia commenced the proceedings by one Summons filed on 4 April 2014. There is no dispute that they filed the Summons within the time prescribed by the Act (within 12 months of the date of the death of the deceased). 7The Defendant named in the Summons is Ishak Kusumo, who is also child of the deceased and a sibling of Iskandar.

Background Facts 8The following background facts are uncontroversial. 9The deceased died on 24 April 2013. She was then aged 82 years, having been born in January 1931. 10The deceased was married to Musa Kusumo. He predeceased the deceased, having died in December 2002. There were four surviving children of their marriage, namely, Wina, who was born in February 1956 and who currently resides in Indonesia; the Plaintiff, Iskandar, who was born in April 1959; Yusuf, who was born in March 1961 and who also currently resides in Indonesia; and the Defendant, Ishak, who was born in May 1963. Another child of the marriage, Ibrahim, predeceased the deceased, having died in 2001. 11Nadia, who is one of two children of Iskandar, was born in October 1986 and is now 28 years of age. She has one child, Paul, aged 10 years. Paul currently lives with Iskandar, Iskandar's wife, Narty, and their son, Eldadh. 12Jessica Kusumo, who is a child of Ishak, was born in April 1991 and is aged 23 years of age. (There is virtually no other evidence about her.) 13The deceased left a duly executed Will that she made on 7 August 2008. This court granted Probate in common form of that Will to Ishak on 18 July 2013. 14By the Will, after the revocation of all former wills and other testamentary dispositions, the deceased provided for the payment of debts, funeral and testamentary expenses. She then gave a legacy of $400,000 to "my granddaughter, Jessica Kusumo, because her father, Ishak Kusumo, has contributed an approximate sum of $400,000.00 when my residence at ... Kensington was rebuilt". The residue of her estate was then given, as to 15/100ths to Wina, 15/100ths to Iskandar, 35/100ths to Yusuf, and 35/100ths to Jessica. 15The Will also provided: "6. If my granddaughter Jessica Kusumo has already died or dies before me without leaving children, then my son Ishak Kusumo shall take the gifts which my deceased granddaughter would otherwise have taken. 7. My Trustees shall have the following powers in addition to those conferred upon him by law: ... 7.2 To retain any asset which I may own at the date of my death for as long as my Trustees may in their absolute discretion determine." 16Ishak gave the following unchallenged evidence about the terms of the deceased's Will: "10. I believe that only the persons named in clause 4.1 and clause 4.2 of the deceased's Will are beneficially entitled to the distributable estate subject to the following:- a.Jessica Kusumo, who is the beneficiary named in clause 4.1 and clause 4.2.4 of the Will, is my daughter ('Jessica'). b.The gift under clause 4.1 to Jessica is meant to be a repayment to me personally of a loan of $400,000.00 which I made to the deceased for rebuilding the Kensington home after the hailstorm damage in April 1999. c.The gift under clause 4.2.4 to Jessica is meant to be for me personally as one of the children of the deceased but I specifically asked the deceased to make such gift to Jessica because I was concerned about the possible breakdown of my relationship with my partner at that time and the potential claim which might be made against me by my then partner." 17According to 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 her death was disclosed as having an estimated, or known, gross value of $1,503,609. At the date of death, her estate was said to consist of the Kensington property ($1,500,000), cash in bank ($50) and the proceeds of a life insurance policy ($3,559). No jointly held, or other, property, in which the deceased held an interest at the date of her death, was disclosed. There were also no liabilities disclosed. (I have omitted, and shall continue to omit, any reference to cents in the amounts to which I shall refer, which will explain any minor mathematical errors.) 18In an affidavit sworn on 6 June 2014, Ishak stated that there were some liabilities of the estate, namely funeral and associated expenses ($10,967), the legal costs of administration of the estate ($3,000) and outstanding council rates payable on the Kensington property ($2,112). Ishak has personally paid these liabilities. He does not seek reimbursement of the council rates as he has been living in the Kensington property since the death of the deceased. He does, however, seek to be reimbursed for the other expenses. 19(There was some criticism of Ishak, as executor, for continuing to live, rent and occupation fee free, in the Kensington property. However, any complaint in that regard was not the subject of any claim in the Summons, brought effectively on behalf of the estate, for any rent or occupation fee. I also note that Nadia has lived, and continues to live, in the Kensington property, rent and occupation fee free, and without paying any outgoings on that property. I bear in mind, also, the terms of Clause 7.2 of the Will of the deceased referred to above.) 20The parties agreed that, at the date of hearing, the value of the Kensington property is $1,875,000. When it is sold, as all agreed it must be, the selling, marketing and legal costs of sale, together with the real estate agents' commission, are estimated to total $51,063. 21In calculating the estimated net value of the estate finally available for distribution, the costs of the present proceedings should also be considered, since Iskandar, as the Plaintiff, if successful, normally, will be entitled to an order that his costs and disbursements, calculated on the ordinary basis, be paid, whilst Ishak, as the person representing the estate in the proceedings, irrespective of the outcome of the proceedings, normally, will be entitled to an order that his costs, calculated on the indemnity basis, be paid out of the estate of the deceased. 22Iskandar's current solicitor, Ms H Indari, in an affidavit sworn on 3 November 2014, estimated the Plaintiffs' costs and disbursements of the proceedings, including senior counsel's fees, calculated on the ordinary basis, to be $49,500 (inclusive of GST and upon the basis of a one day hearing). The estimated amount is said to include "an allowance for the work done by the previous lawyers for the Plaintiffs". (The amount referable to those lawyers is not identified.) 23Ms Indari also states that the Plaintiffs "have not paid any amount towards costs and disbursements". 24The costs and expenses have been calculated for both Iskandar and Nadia. However, the amount for which Nadia resolved her proceedings, was a lump sum "inclusive of costs", which may mean that the estimated costs and expenses, as stated by Ms Indari, will be reduced if a costs order in favour of Iskandar is made. (However, counsel for Ishak did not submit that a different amount should be used as a guide in calculating the estimated value of the distributable estate.) 25Ishak's solicitor, Mr F Chan, in an affidavit sworn 4 November 2014, estimated Ishak's costs and disbursements, including counsel's fees, calculated on the indemnity basis, to be $65,000 (inclusive of GST and upon the basis of a one day hearing). (No doubt, the level of Ishak's costs and disbursements was increased by defending Nadia's part of the claim.) He stated that Ishak had personally paid $3,000, in May 2014, on account of administration costs and disbursements and $5,000 "from the estate account" in relation to the conduct of these proceedings, on 15 October 2014. It follows that the amount yet to be paid on account of the Defendant's costs and disbursements is $60,000. 26The parties requested that the court not make any order for costs until after judgment is delivered. However, the parties agreed that the usual costs order would be appropriate unless further submissions on the issue of costs become necessary following the reasons for judgment being delivered. 27If the usual costs orders are made, and if the parties are unable to reach agreement on the quantum of costs to be paid, it will be for an assessor to determine the appropriate quantum of costs for both parties. Hopefully, this will not be necessary and the parties will be able to reach agreement without the need for additional costs to be incurred. 28At the hearing, senior counsel for Iskandar accepted that the amount of the legacy to Jessica should be paid out of the estate upon the basis that no claim by Ishak is made for repayment of the loan to which reference was made in the Will. Ishak's counsel seemed to accept that this would be appropriate in all the circumstances. Accordingly, in determining the amount available for distribution, the amount of $400,000, payable to Jessica, should be taken into account. 29It follows, if orders for costs are made, if the costs estimates prove accurate (in total, $109,500), if Ishak is reimbursed for the expenses he has paid ($13,967), if the legacy to Nadia ($50,000) is paid, if the legacy to Jessica ($400,000) is paid, and if the costs and expenses of sale ($51,063) are also paid, out of the gross proceeds of sale of the Kensington property ($1,875,000), that the net value of the estate, available for distribution, will be about $1,250,470. 30Under the terms of the deceased's Will, using the estimates set out above, Iskandar would receive out of the estate, absent any order for additional provision, a lump sum of $187,570. 31The parties both submitted, in the event additional provision is to be made for Iskandar, that it should have the effect of increasing the percentage of the net proceeds of sale that Iskandar should receive, rather than provision by way of a lump sum. I shall return to the appropriateness of the type of order suggested later in these reasons. 32At the hearing, the parties agreed that the only eligible persons are the four surviving children of the deceased and Nadia. Only Ishak and Nadia commenced proceedings under the Act and Nadia's claim has been resolved. 33There is evidence from Ishak's solicitor, Mr Chan, that he sent a copy of the Summons and the first affidavit of Iskandar, and of Nadia, to each of Wina, Yusuf and Jessica, by post, on 6 June 2014. The letter also included a copy of the Probate, Will and Inventory of Property. The letter stated, amongst other things, that "we have instructions from Ishak to defend the last Will of your late mother". 34Mr Chan, in a later affidavit, stated that he sent a copy of the other affidavits in letters dated, respectively, 13 June 2014, 14 July 2014, 24 October 2014 and 4 November 2014. He went on to say that he spoke to Wina and to Yusuf, separately, by telephone, on 10 November 2014, and to Jessica, on 11 November 2014, and each acknowledged receipt of the letter and attached documents. 35In yet another affidavit, sworn 13 November 2014, Mr Chan stated that he served a copy of the notice of claim, under cover of a letter dated 13 November 2014, upon Wina and Yusuf, by post, sent on that date. He also stated, in this affidavit, that he handed a copy of the notice to Ishak. He did not mention having served a notice upon Jessica (but she was present in court during the hearing). 36With the leave of the court, and without objection, Ishak gave the following evidence: "Q. First, so far as Wina, is she aware of these proceedings? A. Yes. Q. Is she aware of this court case? A. Yes. ... Q. Is Wina happy with the will? A. Yes. Q. Or does she want to challenge the will? A. No, she always like to stand on my mother's wish that, in her will. Q. Does she wish to put on evidence before the court in relation to her financial circumstances? A. No. Q. And your brother Yus[u]f? A. Mm. Q. Does he want to challenge your mother's will or is he okay with the will? A. He is, both my brother and my sister would stand firm on the will that my mother signed. Q. And does your brother wish to put on evidence before the court in relation to his financial position? A. No. ... Q. Jessica is your daughter? A. Yes. Q. Do you know or not know whether she wants to put on evidence as to her financial position in life? A. No. HIS HONOUR Q. Does that mean no you don't know or no she does not wish to? A. She doesn't wish to, because I sometimes spoke to her and she says she doesn't want to... increase or decrease, she just want to stand on her [grand]mother's wish on her will and when we asked the other day, sometimes we asking about financial problem, about things like that, I just ask her and she said no." 37Whilst this evidence is not particularly satisfactory, it is clear that each of the beneficiaries is aware of the claim by Iskandar. 38There is also evidence that Wina and her husband came to Australia to participate in a family conference, in which the claim, or potential claim, by Iskandar for further provision, was discussed. I shall return to the document that was created following this meeting later in these reasons. 39(In the Plaintiffs' notice of eligible persons, Jessica, also, was identified as an eligible person. There is no evidence that she was wholly, or partly, dependent upon the deceased at any particular time. The Defendant accepted, at the hearing, that she is not an eligible person within the meaning of that term in s 57(1) of the Act.) 40Each of the other children of the deceased, namely Wina and Yusuf, is an eligible person and, with Jessica, is each a beneficiary named in the Will of the deceased. None has raised her, and his, respective competing financial claim on the bounty of the deceased. Only Ishak has raised his competing moral claim on the bounty of the deceased, although this is only peripherally relevant to the position of Jessica. After all, he is not a beneficiary named in the Will of the deceased. 41In these circumstances, whilst the competing claim of each, as a chosen object of testamentary bounty, should not be disregarded, the court may assume that each does not wish his, or her, respective financial resources (including earning capacity) and financial needs, both present and future, to be taken into account: Matthews v Wear [2011] NSWSC 1145, at [45], per Macready AsJ. 42In Sammut v Kleemann [2012] NSWSC 1030, I wrote, at [137] - [140]: "The question, then, is what flows from a beneficiary's silence? The answer is, in those circumstances, that the court is entitled to infer that the beneficiary has adequate resources upon which to live and that he, or she, does not wish to advance a competing financial claim upon the bounty of the deceased: Anderson v Teboneras [1990] VicRp 47; [1990] VR 527, at 535, per Ormiston J; Frey v Frey (as personal representatives of the estate of H E Frey, dec'd) [2009] QSC 43, at [148], per A Lyons J; Edgar v Public Trustee for the Northern Territory, at [54], per Kelly J; Neil v Jacovou [2011] NSWSC 87, at [248], per Slattery J; Haklany v Gittany [2011] NSWSC 1549, at [49]-[51] per Slattery J; Hyatt v Covalea [2011] VSC 334, at [128], per Zammitt AsJ; Davis v Davis [2012] NSWSC 201, at [80], per Slattery J; Paola v State Trustees Ltd [2012] VSC 158, at [46], per Zammitt AsJ; and Collins v Mutton [2012] NSWSC 548. However, the claims of a beneficiary, as the chosen object of the deceased's testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, and also as a person whose interest in the estate may bear the burden of the order made in favour of the applicant, are to be borne in mind. (It is to be remembered that the court must specify, amongst other things, the manner in which the provision is to be provided and the part, or parts, of the estate out of which it is to be provided: s 65(1)(c) of the Act.) Where there is no evidence from the beneficiary, it is those claims (i.e. as the chosen object of the deceased's testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, or as a person whose interest in the estate may bear the burden of the order made in favour of the applicant), rather than any financial claim upon the bounty of the deceased, that should be considered. Put another way, and using the oft-quoted words of Salmond J in Re Allen (dec'd); Allen v Manchester [1922] NZLR 218, at 220, the court is not able to have regard to 'the means' of the beneficiary, but the court may still consider 'the deserts of the several claimants' and the 'relative urgency' of the various moral claims upon [the deceased's] bounty. The court will, thereby, give due regard to 'what the testator regarded as superior claims or preferable dispositions' as demonstrated by his, or her, will: Pontifical Society for the Propagation of the Faith v Scales at 19, per Dixon CJ. In this way, too, the court gives weight to the principle of freedom of testation...". 43To the authorities referred to, one should add Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, at [95], and Borebor v Keane [2013] VSC 35, at [65].

Other Background Facts 44In respect of Clause 4.1 of the Will, the deceased executed a loan agreement on 18 December 2001, by which: (a) Ishak was defined as "the Lender"; (b) The deceased was defined as "the Borrower"; (c) Ibrahim was defined as "the deceased"; (d) The Kensington property was defined as "the Property"; (e) Recital D acknowledged and provided that "The [deceased] and [Ibrahim] requested that [Ishak] lend the sum of Four Hundred Thousand Dollars ("the Principal Sum") to assist [the deceased] and [Ibrahim] to build a new dwelling on the Property"; (f) Recital E acknowledged and provided that "[Ishak] agreed to lend and has in fact lent the Principal Sum to [the deceased] and [Ibrahim] for the purposes of building a new dwelling on the Property"; (g) "Since the new dwelling has been built, [Ibrahim] passed away and [the deceased] now becomes the sole owner of the Property": Recital F; (h) The deceased, by Clause 1.1.1, acknowledged the prior receipt of the $400,000 from Ishak; and (i) By reason of Clause 2.1.1, $400,000 was required to be repaid to Ishak on "the date on which [the deceased] dies": cf Clause 2.2. 45In view of what has been written above regarding the agreement of the parties to pay the legacy of $400,000 to Jessica, the terms of the agreement are of less significance. However, the Loan Agreement does support Ishak's evidence as to his contribution to the building up of the assets of the estate. 46It emerged during the cross-examination of Iskandar that he had inherited, from Narty's father, some property in Indonesia. It appears that, in about 2000 or 2001, he inherited a house and an interest, with the siblings of his wife, in a small commercial factory. He stated that the house had been sold and all of the proceeds of sale used to pay the debts secured on it. It was not possible to glean from his evidence whether he continued to retain any interest in the small commercial factory. (It may be, from the tenor of the questions asked by counsel for Ishak, that it was accepted that the small commercial factory had been sold as well. However, this is only speculation and there were no submissions on the lack of evidence from Iskandar about this.)

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 most 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 equally 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 the application. 48The wording of the Act is similar to the wording of the Family Provision Act 1982 (NSW) ("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." 49The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008 (NSW). 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 (or the disposition on intestacy) to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary. 50The key provision is s 59 of the Act. The court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). 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. 51Relevantly, in this case, Iskandar relies upon the category of eligibility referred to in s 57(1)(c) of the Act. There is no dispute that he is a child of the deceased. 52The language of the relevant sub-section is expressive of the person's status, as well as his, or her, relationship to the deceased. There is no age limit placed on an eligible person making an application. 53It is only if eligibility is found, that the court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made, relevantly, by the Will of the deceased (s 59(1)(c)). It is this mandatory legislative imperative that drives the ultimate result and, it is only if the court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). Only then may "the Court ... make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made". 54Other than by reference to the provision made by the Will in relation to the estate of the deceased, the operation of the rules of intestacy being irrelevant in the present case, s 59(1)(c) of the Act leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for an applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the court to the provision actually made by the Will, on the one hand, and to the requirement for maintenance, education or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant. 55Importantly, in s 59(1)(c) of the Act, there no longer appears to be any sanction to consider the provision made by the deceased during his, or her, lifetime for the applicant (see s 9(2) of the former Act). 56In Grey v Harrison [1997] 2 VR 359, at 366-367, Callaway JA observed: "There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight." 57It was said, in the Court of Appeal (by 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". Stevenson J has described it as "an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific": Szypica v O'Beirne [2013] NSWSC 297, at [40]. 58Under s 59(1)(c) of the Act, the time at which the court gives its consideration to the question of inadequacy of provision is the time when the court is considering the application. 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. 61In J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths), at 542, the learned authors comment upon the difference between the concepts of maintenance and advancement: "The essential difference between 'maintenance' and 'advancement' is that 'maintenance' denotes a periodical payment or a payment which could validly be made periodically, whereas 'advancement' denotes a definite unique outlay for a specific purpose. Recipients of maintenance must, practically speaking, be infants, but adults may be recipients of an advancement. An advancement can never be made of a sum of money which the person to whom it is made can immediately pocket, but it must be made with a view to the establishment of that person in a business or profession, or otherwise in some definite way for that person's benefit, the whole essence of an advancement being the immediate payment of a tolerably large sum for an immediate benefit to one beneficiary." 62In Re Dennis (Deceased) [1981] 2 All ER 140, Browne-Wilkinson J, at 145, wrote: "The court has, up to now, declined to define the exact meaning of the word 'maintenance' and I am certainly not going to depart from that approach. But in my judgment the word 'maintenance' connotes only payments which, directly or indirectly, enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him. The provision that is to be made is to meet recurring expenses, being expenses of living of an income nature. This does not mean that the provision need be by way of income payments. The provision can be by way of lump sum, for example, to buy a house in which the applicant can be housed, thereby relieving him pro tanto of income expenditure. Nor am I suggesting that there may not be cases in which payment of existing debts may not be as appropriate as a maintenance payment; for example, to pay the debts of an applicant in order to enable him to continue to carry on a profit-making business or profession may well be for his maintenance." 63In 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." 64In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Murphy J wrote, at 505: "Provision for advancement may, for example, extend to retraining or the gaining of a qualification which could advance and perhaps enable an applicant to maintain himself or herself." 65In 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." 66In 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)." 67In McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566, Dixon CJ and Williams J had stated, at 575: "The presence of the words 'advancement in life' in the... Act in addition to the words 'maintenance and education' is not unimportant... 'Advancement' is a word of wide import." 68The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton in 'The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?' (1999) 5 Australian Journal of Legal History 5, at 10, as "an objective, economic test", whereas "proper" prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127, per Buss JA, at [72] and [77]. The word "proper" seems to invite more subjective criteria. 69These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 476: "The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances." 70Their Lordships went on to state (at 478): "The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the Court were concerned merely with adequacy. But the Court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration." 71Dixon CJ and Williams J, in McCosker v McCosker, at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that: "It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent." 72In Goodman v Windeyer, Gibbs J wrote, at 502: "[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards." 73In Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, at 228, Callinan and Heydon JJ said: "[T]he use of the word 'proper' ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future." 74Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), 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 ...". 75In 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. 76His Honour added, in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522, at [123]: "The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case 'including the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty' (Singer v Berghouse (1994) 181 CLR 201 at 210)." 77Until 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, for the applicant. If it is not so satisfied, then the court is precluded from making a family provision order. At this stage, the court has regard to, among other things, the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased and the circumstances and needs of the other beneficiaries or potential beneficiaries: see McCosker v McCosker, at 571-572; Singer v Berghouse, at 209-210; Vigolo v Bostin, at [16], [75], [112]; and Tobin v Ezekiel, at [70]. 78Whether an applicant has a 'need' or 'needs' is also a relevant factor at the first stage of the enquiry. It is an elusive concept to define, yet, it is an element in determining whether "adequate" provision has been made for the "proper" maintenance, education and advancement in life of the applicant in all of the circumstances. In Collins v McGain [2003] NSWCA 190, Tobias JA, with whom Beazley and Hodgson JJA agreed, 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." 79In 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]." 80"Need", of course, is a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]. It is different from "want". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808, at [54]: "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'." 81In Boettcher v Driscoll [2014] SASC 86, David J, at [41], added: "'Need' is not so synonymous with 'want' such that the two are interchangeable." 82As 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. 83Yet, in referring to the concept of "need", it should also be noted that the statutory formula makes no reference to "need", but rather to "adequate provision for the proper maintenance, education or advancement in life". No doubt, this has prompted White J to write, in Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473, at [147], that "the need a claimant must demonstrate is a need for 'proper' maintenance, education and advancement in life", but that does not mean that "adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others". I respectfully agree. 84In the event that the court is satisfied that the power to make an order is enlivened (i.e. in this case, it is satisfied that Iskandar is an eligible person, and that adequate provision for his proper maintenance, education or advancement in life has not been made), then, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made. 85The second stage of the process arises under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at 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. 86I have dealt with the question that has been raised in other cases whether the two-stage approach identified in Singer v Berghouse continues to apply to the provisions of the Act in other cases, the most recent of which is Aubrey v Kain [2014] NSWSC 15. I remain of the view that the two-stage approach should continue to apply. I shall not repeat what I said in that case, which is not affected by the recent decision of the Court of Appeal in Phillips v James [2014] NSWCA 4, or its decision of Verzar v Verzar [2014] NSWCA 45. 87(Since I delivered my reasons in Aubrey v Kain, Robb J has also considered the topic in Janette Susan Gardiner v Raymond James Gardiner as Administrator of the Estate of the Late Dulcie Eva Gardiner [2014] NSWSC 435. I respectfully adopt his Honour's reasoning, set out at [117] - [120], and [124], as to the persuasiveness of the reasoning of Barrett JA in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656. I also refer to what Bergin CJ in Eq has written in In the Estate of the late Anthony Marras [2014] NSWSC 915, at [15].) 88Ultimately, as Allsop P said in Andrew v Andrew, at [6], "it may be an analytical question of little consequence" since the questions remain the same, namely, whether the court can make an order for provision (whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made) and, if so, whether it should (whether to make an order and, if so, the terms of that order). 89Section 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." 90It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew, at [37], as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380, at [123], as "a valuable prompt" to which the court may have regard, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order. 91White J in Slack v Rogan; Palffy v Rogan, at [121], wrote that s 60 "lists a wide range of matters" that the court "may have regard to", but these do not provide any tangible assistance in answering the question in any particular case whether the provision made in a will was less than adequate for an eligible applicant's "proper" maintenance, education or advancement in life. 92In West v Mann [2013] NSWSC 1852, Kunc J, at [12], wrote: "Section 60(2) provides a helpful checklist but it is no more than that. The Court is not obliged to take those matters into account. The extent to which it does (if at all) will depend upon the facts of each particular case. Section 60(2)(p) confirms the breadth of matters the Court can take into account. Once enlivened, the Discretion is expressly fettered only by the requirement in s 59(2) that if an order is made, it must be such order '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'". 93Beazley P, in Phillips v James, at [51], described s 60(2) as involving: "... a statutory iteration of matters that had always been considered relevant in the determination of claims for provision by persons claiming an entitlement under a testator's will. However, as Basten JA observed in Andrew v Andrew, the factors identified in s 60(2) provide a more focussed direction to the Court as to relevant matters to which regard may be had. His Honour was of the view that the statutory list invites consideration of a broader range of factors than was previously the case. Whether or not that is so, the important matter is that the Court is required to have regard to the circumstances, including those specified in s 60(2), that it considers relevant in determining whether to make an order for family provision and the nature of any such order." 94In Chapple v Wilcox [2014] NSWCA 392, Basten JA, at [7], wrote: "Section 60 of the Succession Act spells out the matters which the Court may have regard to in determining whether the claimant 'is an eligible person' and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the 'nature of any such order', which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b)." 95The 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. 96It does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result and, whilst there is likely to be a substantial overlap in the matters that the court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. 97A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1). 98Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently. 99Section 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. 100The order for provision may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act). 101Any family provision order under the Act takes effect, unless the court otherwise orders, in the case if the deceased made a will, in a codicil to the will (s 72(1) of the Act). 102Section 66 of the Act sets out the consequential and ancillary orders that may be made. 103Section 99(1) of the Act provides that the court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the court thinks fit.

Other Applicable Legal Principles - Substantive Application 104Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges, and I, have repeated them in many cases under the Act. 105Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve "an overall fair" disposition of the deceased's estate. It is not part of the court's function to achieve some kind of equity between the various claimants. The court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act to correct the hurt feelings, or sense of wrong, felt by an applicant. Rather, the court's role is of a specific type and goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance, education and advancement in life of an applicant. 106The court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90, at [63]. 107Of that freedom, in Grey v Harrison, at 386, Callaway JA said: "... It is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take properties from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the widest terms found in s 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent." 108In Vigolo v Bostin, Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained: "It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification." 109In Goodsell v Wellington [2011] NSWSC 1232, I noted, at [108], that: "Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated." 110As Pembroke J said in Wilcox v Wilcox [2012] NSWSC 1138, at [23]: "The court does not simply ride roughshod over the testator's intentions. The court's power to make an award is limited. The purpose of the discretionary power under Section 59(1) is to redress circumstances where 'adequate provision' has not been made for the 'proper maintenance, education or advancement in life' of the claimant. The adjectives 'adequate' and 'proper' are words of circumspection." 111Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales, at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. 112As Allsop P said in Andrew v Andrew, at [16]: "If I may respectfully paraphrase Sheller JA [in Permanent Trustee Co Limited v Fraser (1995) 36 NSWLR 24 at 46F-47B], the Court in assessing the matter at s 59(1) and the order that should be made under s 59(1) and (2), should be guided and assisted by considering what provision, in accordance with prevailing community standards of what is right and appropriate, ought to be made. This, Sheller JA said ... involved speaking for the feeling and judgment of fair and reasonable members of the community. It is to be emphasised that s 59(1)(c) and s 59(2) refer to the time when the Court is considering [an application for a family provision order] and the facts then known to the Court. The evaluative assessment is to be undertaken assuming full knowledge and appreciation of all the circumstances of the case. This ... makes the notion of compliance by the testator with a moral duty (on what he or she knew) apt to distract from the statutory task of the Court." 113Barrett JA, in Andrew v Andrew, at [95], wrote: "Because, in this case, Lynne, as plaintiff, failed at the first stage (by reason of a finding that the testatrix, in giving a legacy of $10,000, did not fail to make adequate provision for her), it is appropriate to say something more about the judicial function at that first stage. It has been recognised by this Court that 'community expectations' play a role in the decision whether provision made by a testator is adequate in the relevant sense. Reference may be made to Hertzberg v Hertzberg [2003] NSWCA 311 at [34], McCarthy v McCarthy [2010] NSWCA 103 at [20] and Evans v Levy [2011] NSWCA 125 at [51]. In the McCarthy case, Young JA said (with the concurrence of Tobias and Macfarlan JJA): So long as he complies with community expectations and what is sometimes called 'moral duty', the deceased is able to leave his property as he wishes." 114The central role played by "community standards" or "community expectations" in any decision to take the significant step of overriding the expressed wishes of the deceased has been emphasised in Chapple v Wilcox, by Basten JA, at [12], and by Barrett JA, at [63] - [64]. I shall not repeat what has been written there. 115How the community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew, at [36], per Basten JA. His Honour added, in Phillips v James, at [113]: "As discussed by Allsop P in Andrew v Andrew [2012] NSWCA 308; 81 NSWLR 656 at [16], one can say little more as to the standards and values to be applied than that the court should be guided by its perception of 'prevailing community standards of what is right and appropriate'. Views will undoubtedly vary within the community as to the weight to be given to a testator's wishes as expressed in the will: Andrew v Andrew at [35]." 116Thus, "there are difficulties for the courts in making their own unaided assessment of current community attitudes in a complex and changing social environment": Williams v Aucutt [2000] 2 NZLR 479, at [44]. As was written by White J in Slack v Rogan; Palffy v Rogan, at [125]: "I know of no way of determining what the community would expect, or what its standards are, or values would be. I do not know, but suspect, that the expectations of individual members of the community would vary widely. It may be that the Act itself, at least in so far as it goes beyond allowing provision to be made in favour of spouses and minor or disabled children, runs counter to community expectations about freedom of testamentary disposition. As Basten JA said in Andrew v Andrew, the only guiding light, consistent with the rule of law, for the identification of community standards are those reflected in current legislation. No legislation other than the Succession Act itself is relevant to the present case. Attempts to identify particular community standards, for example, that a testator need not make provision for an able bodied son, or that a widow's claim is paramount, have been rejected. To say that the court itself is the spokesman for the fair and reasonable man or woman in the community is to acknowledge that in truth there is no ascertainable external community standard to guide the decision." 117In all cases under the Act, what is adequate and proper provision is necessarily fact specific. 118The Act is not a "Destitute Persons Act" and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice; Allardice v Allardice (1910) 29 NZLR 959, at 966. The use of the word 'proper' requires consideration to be given to more than satisfying the basic needs of an applicant. The standard of living of an applicant during the lifetime of the deceased is relevant, but the fact that an applicant has lived frugally, or that he, or she, has become accustomed to a life of relative penury, does not mean that the deceased's obligation under the Act is satisfied so long as the applicant can continue in that state: Pogorelic v Banovich [2007] WASC 45, at [62]; Butcher v Craig [2009] WASC 164, at [21]. 119All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singer v Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12, at [56]. Nor does it follow that, if the court decides it is inappropriate to make a specific provision in respect of one identified head of claim, that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams, at [89]. 120The size of the estate is a significant consideration in determining an application for provision. It is important to remember what Salmond J said in In re Allen (Deceased); Allen v Manchester [1922] NZLR 218, at 221: "Applications under the Family Protection Act for further provision of maintenance are divisible into two classes. The first and by far the most numerous class consists of those cases in which, owing to the smallness of the estate and to the nature of the testamentary dispositions, the applicant is competing with other persons who have also a moral claim upon the testator. Any provision made by the Court in favour of the applicant must in this class of case be made at the expense of some other person or persons to whom the testator owed a moral duty of support. The estate is insufficient to meet in full the entirety of the moral claims upon it, in the sense that if the testator possessed more he would have been bound to do more for the welfare of his dependants. In such a case all that the Court can do is to see that the available means of the testator are justly divided between the persons who have moral claims upon him in due proportion to the relative urgency of those claims." 121In relation to Iskandar's claim, being 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, what is the community expectation of a parent in respect of an adult child. It can be said, however, 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; and, where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, child up in a position where she, or he, can acquire a house unencumbered although, in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801. (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 the parent's 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 retirement, something to assist in retirement where, otherwise, they would be left destitute might be proper: Taylor v Farrugia, at [58]. (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 appropriate provision for the maintenance of the applicant: Re Buckland, Deceased [1966] VR 404, at 411; Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, at 148; Goodman v Windeyer, at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons: Re Buckland, Deceased, at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532, at 537; Mayfield v Lloyd-Williams, at [86]. (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, at [179]-[182]; Crossman v Riedel [2004] ACTSC 127, at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, 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, 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 does not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not entirely 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 the applicant's case. In Barna v Barna [2008] NSWSC 1402, Brereton J noted, at [27]: "The obligation to make provision for persons for whom the community would expect a testator to make provision does not import an obligation to deal with children equally. A testator is entitled to deal differently with his or her children, and the quality of the relationship that the testator has with each of the claimants on the estate is a relevant consideration." 122In Foley v Ellis, Sackville AJA, at [88], noted that Singer v Berghouse "... strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim".

Protection of the Applicant for Provision 123Cross-examination revealed that Iskandar has spent significant amounts of money on gambling and, also, on alcohol. He had not revealed such expenditure in his affidavit (although he had included an amount for "entertainment" of $450 per week). 124Iskandar sought to explain his conduct by reference to the death of the deceased. By way of example, he stated, in answer to some questions from the Bench: "Q. In the exhibit that was shown to you? A. Yep. Q. There are a number of references to the Star City Hotel? A. Yes. Q. And withdrawals from the Star City Hotel. I take it the withdrawals from the Star City Hotel are withdrawals for the casino? A. Yes. Q. And the amounts that were withdrawn were used for gambling at the casino? A. For gambling and some for playing. When my brother in law in here, come together and play together, some time they ask money and I lend him and then he pay me back. Q. When was he here? A. Oh some rough time during my Mum pass away regarding to, we solve the problem of the Will. Q. And are you able to tell me on how many occasions you gave him money for gambling? A. Just one of the times. ... Q. It appears that the withdrawals from the Star City Casino-- A. Yeah. Q. --appear to be broadly speaking amounts of $1,000 at a time, do you agree? A. Yes, I do. Q. Bearing in mind what you say your financial circumstances are, that's a substantial amount-- A. Yeah. Q. --each time to withdraw for gambling, is it not? A. Yeah, I admitted that. As I've told you before, I told the court that I was depressed because my mother pass away so I have admitted that. So must have been at same time and then I just go for gambling and that, yeah." 125The exhibit to which reference was made is Ex. D1 in the proceedings. It consisted, not only of Iskandar's bank statements, but also those of his wife and son. Each of the statements referable to Narty and Eldadh disclosed amounts, albeit less than those disclosed in Iskandar's bank statements, spent on gambling. In relation to these payments, Iskandar gave the following evidence in answer to some questions from the Bench: "Q. It appears in relation to your wife there are a number of withdrawals of cash at South Sydney Juniors? A. Yes. Q. What are those amounts used for? A. Some time we have dinner there and then some time we expending time with my wife, like we took pokies or something. Q. The poker machines? A. Yes. Q. And finally in your son's accounts that have been tendered there are also withdrawals of, for example, a thousand dollars at Star City Casino? A. Yeah. Q. Are they also for gambling? A. Yeah, because we go together just to, like the first time my son want to see how the casino looked like because after the depression times he want to see something like, he just want to forget about, the olden days or something and I think that might be convenient for him to just forget the whole deal or something." 126In Lowe v Lowe [2014] NSWSC 371, I made some statements regarding the court's consideration of circumstances such as the present. I wrote, at [144] - [149]: "Protection of an Applicant by order - The Principles In Bondy v Vavros (Supreme Court (NSW), Young J, 29 August 1988, unrep), at 10, Young J (as his Honour then was) contemplated that: '... if one can see that a plaintiff is a spendthrift and the testator has arranged his will in such a way as to limit the funds flowing to the plaintiff, then one may very well come to the conclusion that the plaintiff has failed to establish that there has been any breach of moral duty.' In Howarth v Reed (Supreme Court (NSW), Powell J, 15 April 1991, unrep), Powell J referred to the possibility of a provision not being applied by the person for the purposes intended by the Court. At 43 and 44, his Honour added: 'While, as will be apparent from what I have earlier written, I am deeply concerned at what I regard as the totally unrealistic approach to the management of their affairs adopted by Mr and Mrs Howarth, which approach, if persisted in, will almost inevitably lead to the benefit of any Order which might be made in Mrs Howarth's favour being dissipated in short order, it seems to me that, while that is a matter which may bear on the form of Order to be made, it is not a matter which ought, without more, to be regarded as disqualifying Mrs Howarth from receiving the benefit of any Order to which she might otherwise be entitled. Nor is this a novel view, for a similar approach is reflected in the following passage in the judgment of Young J in Bondy v Vavros'. In Hampson v Hampson [2010] NSWCA 359, Campbell JA, with whom Giles JA and Handley AJA agreed, after quoting the passage in Bondy v Vavros set out above, stated, at [99] - [102]: 'In such a situation, if a plaintiff had been left periodical income, then even if another plaintiff who was similarly situated but not at serious risk of frittering away capital could have obtained a capital sum in lieu of the income stream, it might be concluded that for that particular plaintiff the income stream was adequate and proper provision. I should here mention that the passage I have quoted from Bondy v Vavros was preceded by the following statement: 'If a person is entitled to an order, what they do with the money that they receive is their business and it is none of my affair if I very much fear that the money may be wasted on wine, women and song in a short period of time'. That statement has sometimes been treated as though the court should disregard the likely use that an applicant will make of an award (eg Michael Bienke v Brian Bienke; Estate of the Late Harold Bienke [2002] NSWSC 804 at [24]), or disregard it at the jurisdictional stage though possibly taking it into account in the form of the order (Howarth v Reed, Supreme Court of New South Wales, Powell J, 15 April 1991 unreported at 42). In my view that involves a misreading of the statement in its context. The statement is part of the same paragraph that I have quoted at [98] above, and precedes the passage I have quoted at [98]. The sentence I have quoted at [98] commences with the words 'On the other hand, when one is considering what a wise and just testator would have done, ...'. The sense of the whole of the paragraph is, if a person is entitled to an order (ie, to receive what is adequate for proper maintenance, education and advancement in life, or what the wise and just testator would have given him) it is no further concern of the court that there is a prospect that the applicant might waste the money. However, to the extent to which the wise and just testator would take it into account, the prospect of the applicant wasting the money is a legitimate matter to take into account in deciding whether the applicant has been left without adequate provision for proper maintenance, education and advancement in life. There is ample precedent, and justification in principle, for a tendency of an applicant to spend excessive amounts of money unwisely (whether through an addiction to alcohol, drugs or gambling, or simply through habitual spendthrift characteristics) to enter into consideration for the purposes of the second stage of the process identified in Singer v Berghouse (No 2), namely, once jurisdiction is established, formulation of an order under the Family Provision Act.' His Honour went on to discuss some examples from the case law, which he then set out in the appendix to the judgment. I shall not repeat that discussion. In The Application of Ferdinando Scali [2010] NSWSC 1254, Brereton J, at [15] noted: '...from the evidence put before the Court on this application, it appears that the testator had his reasons for structuring his will as he did. The sufficiency of those reasons, as to the structure of the provision made for his widow, will no doubt be examined in the Family Provision proceedings; but it is clear on the material put before me that the testator structured his will as he did by way of protective trusts in order to ensure that not all the benefit of his estate could be speedily expended by some about whose ability in financial management he entertained some concerns.' In Young v Outtrim [2011] NSWSC 391, at [132], I concluded, in relation to one of the Plaintiffs, at [132]: '... the court is also entitled to take into account the history of Suzanne's expenditure of money not only on gambling. A wise and just parent would be likely to take that sort of expenditure into account in fixing the amount of provision, but also in deciding whether it should be protected in some way (cf Bondy v Vavros)...'." 127To these authorities should be added Poole v Barrow [2014] VSC 576.

Qualifications 128As I stated in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275, I do not intend what I have described as "principles" to be elevated into rules of law, propositions of universal application, or formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion at the second stage should be constrained, by statements of principle found in dicta in other decisions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I identify them merely as providing useful guidance, which may be applied, with circumspection, in considering the statutory provisions, the terms of which must remain firmly in mind. 129It is necessary for the court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the myriad of facts is necessary in order to determine whether the bases for a family provision order have been established. Every case is different and must be decided on its own facts. As Lindsay J said in Verzar v Verzar [2012], at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]." 130The importance of these qualifications have been recently emphasised in Chapple v Wilcox, by Basten JA, at [18] - [20], and by Barrett JA, at [66] - [67].

Further Additional Facts 131I now set out the additional facts I am satisfied are either not in dispute, or that, in my view, the evidence establishes. I do so by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar [2012], at [124]), but in order to complete the recitation of facts that will assist the court to determine the questions that must be answered. (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship 132In this case, there is undoubtedly a "family" relationship between Iskandar and the deceased. He is one of the four surviving children of the deceased. His relationship with the deceased was life-long. 133Iskandar arrived in Sydney, from Indonesia, in September 1985. His wife followed him here in 1986. For a period of time, he, and then they, lived with the deceased at the Kensington property. He returned to Indonesia, with his family, in 1995, and stayed there until about 2003. 134In about early 2004, an apprehended violence order was obtained against Iskandar, following which he was not permitted to attend the Kensington property, with the result that he did not see the deceased for about 18 months or so. He explains the events giving rise to the obtaining of the apprehended violence order as being caused by his problems with alcohol consumption. He states that he has, now, overcome those problems. 135The following exchange took place during Iskandar's cross-examination: "Q. ... When you say the words after about the AVO, 'Thankfully I have now overcome my problems with alcohol', were you trying to tell the court that you don't drink alcohol anymore? A. No. Q. What are you trying to convey by the words 'Thankfully I have now overcome my problems with alcohol'? What were you trying to say? A. I overcome the alcohol but I don't drink and then I don't do violence. Q. So you mean that you overcome the violence which comes with alcohol? A. Yeah, because I drink alcohol, but I don't do violence anymore, I stay home." 136Iskandar says that, when he next saw the deceased after the incident giving rise to the apprehended violence order, he apologised for his conduct and she accepted his apology. He says that, thereafter, his relationship was as it had been, although he accepts that he did not see her as often as previously. 137In about 2009, Iskandar says that the deceased and Ishak attended at his home and, at this time, they apologised for their conduct, an apology that he accepted. (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 138There is no definition of the words "obligations" or "responsibilities" to which the sub-section refers in the Act. Importantly, the Act does not expressly refer to, or identify, any "moral duty". Yet, one might conclude that what is to be considered is the nature and extent of any legal, social, domestic, or moral, obligations or responsibilities: Chapple v Wilcox, per Basten JA, at [13]. 139This matter, by virtue of the reference to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the estate, requires a balancing of potentially competing obligations as between any applicant and each of the beneficiaries. 140Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to each of his children, as an adult, imposed upon him by statute or common law. 141Yet, an obligation, or responsibility, to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child. In Flathaug v Weaver [2003] NZFLR 730, at 737, the origin of the obligation which underpins the Act's recognition of the duty owed by a parent to a child was put in this way: "The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives." 142The fact that the applicant was financially independent of the deceased, for many years, before the deceased's death, is a relevant consideration in determining the extent of any obligation or responsibility owed. The size of the deceased's estate is also relevant to the extent of the obligation or responsibility. 143In Phillips v James, Basten JA, at [113] - [114], in considering the concept of prevailing community standards, wrote: "...there is probably a reasonable level of acceptance for the view that, other things being equal, siblings should be treated broadly equally. Unfortunately, other things rarely are equal. One sibling may have shown devotion and care to the testator over a long period; another may have had minimal contact of any kind during his or her adult life. One sibling may have acted responsibly in relation to his or her own family, another as a wastrel. The latter example highlights a particular difficulty: the responsible sibling (who may have been favoured by the testator) may be better off than the other and less in need than the other who has made nothing of whatever opportunities were available. One approach in the latter case is to say that the wastrel should not expect more, despite being in greater need, than a proportionate share of the estate. In relation to the former case, involving the inattentive or distant sibling, a less than equal share may be thought appropriate." 144In this case, significant provision has been made for Jessica, a grandchild of the deceased. As a general rule, a grandparent does not have an obligation, or responsibility, to make provision for a grandchild; that obligation rests on the parent of the grandchild. Nor is a grandchild, normally, regarded as a natural object of the deceased's testamentary recognition. 145In Chapple v Wilcox, Basten JA, at [21], wrote that "community values would support (and in some circumstances arguably require) that grandparents accept the responsibility of parents for their own children and would not seek to skip a generation". 146In this case, however, the gift to Jessica is said to have been based upon the deceased's obligation to Ishak, and to repay the amount that he had advanced to the deceased. In any event, there is no evidence of a particularly close relationship between Jessica and the deceased. (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 147I have earlier dealt with these matters. The estate is of a reasonable size. (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 148Iskandar's circumstances are set out in his affidavit dated 13 March 2014. It is said that those circumstances have not changed, significantly, since then. He is a full time carer for his wife, Narty. They live in Housing Commission accommodation in Kensington. He has a motor car (of minimal value) and, as at the date of the affidavit, his account at his bank was overdrawn. His wife has approximately $815 in her bank account. They owe about $25,000 on a credit card. 149Iskandar's wife suffers from tetraplegia. She has constant aches, stiffness in the back and spinal cord and arthritis in her arms. She takes medication to assist her with this. 150Their son, Eldadh, is 18. He suffers from major depression, social anxiety disorder and avoidant personality disorder. He has regular therapy sessions and has been prescribed anti-depressants. He has never been employed and relies on his father to drive him to activities including studying English and Maths as part of a foundation study certificate at TAFE. 151I am satisfied that Iskandar does have a continuing earning capacity but, bearing in mind other circumstances, it is unlikely that he will be able to work. 152Iskandar receives a carer's allowance ($799 per fortnight); Narty receives (and has received since 2007) a disability support pension ($620 per fortnight) and Eldadh receives unemployment benefits ($268 per fortnight). The family's total income is, therefore, about $1,687 per fortnight, or $43,862 per annum. 153The expenses of the family are said to total approximately $62,000 per annum. However, as earlier referred to, this amount includes an amount for "entertainment" of $450 per week. It is said that omitting this amount entirely would mean that their expenses would total $38,769. This, in turn, would result in a surplus of about $4,913 per annum, or about $95 per week. 154Iskandar submits that the Housing Commission flat in which they live (a two bedroom unit) is too small and that they need a larger place to live. In particular, he has a desire to accommodate Nadia and Paul as well. (Paul is presently living with Iskandar, but Nadia is not.) Iskandar has provided information regarding pricing for three bedroom properties. 155Iskandar also states that he and Nadia have agreed "to pool our assets and purchase ... a property". 156As stated, the court knows nothing about the financial and material circumstances of any of the other beneficiaries. (e) if the applicant is cohabiting with another person-the financial circumstances of the other person 157I have set out the financial circumstances of the persons with whom Iskandar cohabits earlier. 158Iskandar did not disclose that Eldadh, in 2013, had received an amount of about $58,225 by way of damages, in relation to a claim for bullying at his High School. He stated, in cross-examination, that part of the amount received had been used to repay credit card debts (although his evidence about this was somewhat vague). (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 159There is no evidence advanced about any physical, intellectual or mental disability suffered by Iskandar. 160There is, similarly, no evidence of any physical, intellectual or mental disability suffered by any of the other beneficiaries. (g) the age of the applicant when the application is being considered 161Iskandar was born in April 1959 and is currently 55 years of age. (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant 162Iskandar says that, in about 1988, he contributed $3,000 towards the construction of a granny flat at the Kensington property. In addition, he says that he assisted the deceased as much as he could, at least prior to the events surrounding the granting of the apprehended violence order. It is possible that, at those times, Iskandar did make some contribution towards the welfare of the deceased. There is no suggestion that he received adequate consideration (not including any pension or other benefit) for what he did. I also note that he is a beneficiary named in the Will. (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 163There is no suggestion that the deceased made any provision for Iskandar during her lifetime. I have referred to the provision that she made for him in the Will. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person 164The terms of the deceased's Will provide evidence of her testamentary intentions. Those terms have been considered earlier in these reasons. I have referred to the deceased's stated intentions, and the repayment to Ishak, by way of the legacy to Jessica. 165Iskandar gives evidence that, following the death of his father and his brother, the deceased said to him, on several occasions after 2003, that she had only had four children and she wished to divide her estate equally between them. He was not challenged on this evidence. Of course, the conversation may have taken place prior to the events of early 2004. 166Otherwise, there is no evidence of the testamentary intentions of the deceased. (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 167There is no suggestion that Iskandar was being maintained, either wholly or partly, by the deceased before her death. (l) whether any other person is liable to support the applicant 168There is no person, other than, perhaps, the Commonwealth government, with a liability to support Iskandar. (m) the character and conduct of the applicant before and after the date of the death of the deceased person 169An evaluation of "character and conduct" may be necessary, not for the sake of criticism, but to enable consideration of what is "adequate and proper" in all the circumstances. Importantly, the Act does not limit the consideration of "conduct" to conduct towards the deceased. 170In Collicoat v McMillan [1999] 3 VR 803, at 817, Ormiston J wrote, in relation to the manner in which an applicant's behaviour towards the deceased is to be considered: "...Ordinarily each of the persons who have a statutory right to make application are entitled to have their position considered by a testator but their behaviour (right or wrong) towards the testator may only provide a basis for measuring appropriately the testator's obligation to make provision for each of those applicants. Their sins are irrelevant except insofar as a testator might properly take exception to their behaviour." 171Iskandar contends that his relationship with, and conduct toward, the deceased was a good one. I am not satisfied that it was as good as he suggested, but it was not submitted, on behalf of the Defendant, that his conduct was such as to reduce any entitlement to what is adequate and proper provision out of the estate of the deceased. 172Iskandar's conduct, after the death of the deceased, is not relevant except as set out below. During his cross-examination, Iskandar did give one piece of evidence that I consider reveals his attitude to the claim being made. It seems to be a claim based on entitlement to a greater share of the deceased's estate in a way not necessarily consistent with the terms of the Act. 173When being questioned on the properties put forward as suitable accommodation options, Iskandar said the following (at T47.04 - 47.17): "Q. Why are they more suitable than the other types of properties on the sold list if they were not for sale? Sorry, if they were for sale? Why are your properties more suitable than those ones? A. Probably they're more expensive. Q. So your ones are more suitable because they're more expensive; is that right? A. Yes. The more expensive, the more good. Money can talk. Q. Sir, it's not a matter of more expensive, the more good, it's a question of what you need, if anything, to accommodate you and your family while your children, or whatever, live with you. What do you need? Not the best is what you can get. Do you understand? A. What I need is the best." 174(I should note that there was a transcript error in the last answer. In the court transcript, the answer was recorded as "Rockdale is the best". Following the conclusion of the hearing, counsel was unable to provide a recollection confirming that what I have recorded above is correct, but I am satisfied that my recollection is an accurate one. Counsel for each party did not wish to put any submissions to the contrary, although an opportunity to do so was given to each.) 175I have earlier referred to Iskandar's spending on gambling following the death of the deceased. That expenditure has clearly been improvident. He has dissipated money that he could have spent otherwise, or used that money to reduce his debts. In this regard, it appears that he has been quite irresponsible. To his credit, he appears to be aware, and not in denial, that the conduct was irresponsible. (n) the conduct of any other person before and after the date of the death of the deceased person 176Other than Ishak's conduct, there is no evidence of the conduct of any of the other beneficiaries. 177Iskandar acknowledges that, over the years, Ishak has lent him amounts of money totalling $50,000 (Ishak says that it was $55,000). In addition, he says that, on his 50th birthday, Ishak gave him a gift of $10,000 and said "You do not need to repay the $50,000 I have loaned you before". (o) any relevant Aboriginal or Torres Strait Islander customary law 178This factor is not applicable. (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 179In about May 2014, there was a family meeting held, at which all of the children of the deceased attended. A document headed "Joint Declaration" was signed, which identifies the four signatories, and is in the following terms: "The First Party receives 20% (twenty percent) The Second Party receives 20% (twenty percent) The Third Party receives 30% (thirty percent) The Fourth Party receives 30% (thirty percent) of the proceeds of the sale of the house at ... Kensington 2033 Sydney after deducting AUD 400,000 (four hundred thousand Australian dollars) which will be given to Ishak Kusumo from the proceeds of the sale of the house after other expenses are deducted." 180The "First Party" and the "Second Party" were Wina and Iskandar respectively. Ishak was the "Fourth Party". The "Third Party" is referred to as "Jusup" in the English translation of the document, although Ishak says, and it was not disputed, that the "Third Party" is Yusuf. 181Iskandar says that, at the time he signed this document, he believed that the deceased's life insurance policies had a value of about $1 million, which is substantially more than their current value. He says, also, that he did not, then, know of his rights to make a claim under the Act. 182Ishak submits that the document is relevant because it is "[P]erhaps informative of [Iskandar's] perceived needs [and that] one infers [what is] a just distribution [that] ought be made from the deceased's estate".

The Submissions 183Senior counsel submitted that Iskandar should be provided with a lump sum to enable him to purchase three bedroom accommodation. It was suggested that a percentage of the net proceeds of sale of the Kensington property that would yield about $620,000 would be adequate and proper in all the circumstances. (On the estimates earlier referred to, this would equate to about 50 per cent of the net proceeds of sale of the Kensington property.) 184In the alternative, and if the court did not accept his principal submission (which I do not), senior Counsel submitted that a percentage of the estate that would yield about $400,000 would be adequate and proper in all the circumstances and that this would provide Iskandar with a capital sum for exigencies of life in circumstances where he was not working, where he had at least two, and possibly three, dependants who looked to him for support, in whole or in part, where he had no superannuation or likely entitlement to any, and no prospects of building any financial future. 185Counsel for Ishak faintly submitted that, after an order in favour of Nadia is made, the balance of the Summons should be dismissed. In the alternative, and in the event that the court did not accept his principal submission (which I do not), counsel submitted that a percentage of the estate that would yield about $250,000 for Iskandar would be adequate and proper in all the circumstances, and that such a lump sum would provide him with a fund for exigencies of life.

Determination 186Being an "eligible person" is a necessary precondition to the court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. In this case, there is no dispute that Iskandar, as a child of the deceased, is an eligible person within the meaning of s 57(1)(c) of the Act. 187There is also no dispute that the proceedings were commenced within the time prescribed by the Act. 188Thus, the court must first consider, whether, at the present time, adequate provision for the proper maintenance, education, or advancement in life, of Iskandar, has not been made by the deceased's Will. 189The court is required to consider all of the circumstances. Whether inadequate provision was made requires an assessment of his financial position, the size and nature of the deceased's estate, the relationship between him and the deceased and other persons who have legitimate claims upon the deceased's bounty and the circumstances and needs of those other persons: see Tobin v Ezekiel, at [70]; McCosker v McCosker, at 571-572; Singer v Berghouse, at 210; Vigolo v Bostin, at [16], [75], [112]; and Verzar v Verzar [2014] at [39]. 190Taking into account all of the matters that I am required to consider at the first stage, including the size and nature of the estate, the relationship between Iskandar and the deceased, the relationship between the deceased and the other persons who have a legitimate (and, in this sense, competing) claim upon her bounty as the chosen objects of testamentary bounty (the other residuary beneficiaries), together with the fact that I have no information about the financial circumstances of any of the other residuary beneficiaries and what may be inferred from the lack of that evidence (although, I bear in mind that there is no statutory mandate requiring a beneficiary to assert that she, or he, is a competing financial claimant upon the bounty of the deceased: Sammut v Kleemann [2012], at [134]), I consider that Iskandar has satisfied the jurisdictional threshold and that adequate provision for his proper maintenance or advancement in life was not made for him by the Will of the deceased. 191It is clear, in my view, that Iskandar has some immediate "needs". As stated above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence. Nor is it limited to whether the applicant has, at the date of hearing, an immediate need for financial assistance with respect to his maintenance. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The term is also used in the in the sense of what is necessary for the applicant's "proper maintenance, education and advancement in life": Akkerman v Ewins [2003] NSWCA 190, per Tobias JA, with whom Beazley and Hodgson JJA agreed. 192However, nor are the needs determined, in this case, by what is "the best". 193The fact that Iskandar may have an issue with gambling and, perhaps to a lesser extent, with alcohol, in my view, does not relieve the deceased from her obligation to make provision for him. Yet, in Hampson v Hampson [2010] NSWCA 359, Campbell JA considered that "a wise and just parent would be likely to take" the marijuana use by the plaintiff, in that case, "into account in deciding the adequacy of provision for a child or in fixing on the type and amount of provision to make for a child". 194Perhaps, with the conclusion of the case, Iskandar will be able to move forward and gambling will play a lesser role in his life. He appears to realise that the amount he has spent gambling, bearing in mind his financial and material circumstances, is most improvident. He may take steps to address his gambling problem. 195I turn now to the second stage, namely the nature of the order that should be made in favour of Iskandar. The more difficult question then arises, namely what provision "ought to be made for the maintenance, education or advancement in life" of Iskandar, having regard to the facts known to the court. This involves "an instinctive synthesis that takes into account all the relevant factors and gives them due weight": Grey v Harrison. It is not a scientific, or arithmetic, exercise. 196As stated, I do not accept Iskandar's principal submission that he should receive a capital sum that will enable him to purchase alternative accommodation. I consider it highly unlikely, despite her evidence, that Nadia and Paul, as well as Eldadh, will remain living with Iskandar and Narty for any significant period of time. Even if they were to do so, I do not consider that the deceased had any obligation to provide for Iskandar in order that he could provide accommodation for his children and grandchild (her grandchildren and great-grandchild respectively). 197Furthermore, Nadia has resolved her proceedings. The court should not provide for Iskandar to enable him to provide, in this indirect way, for a great-grandchild of the deceased, the responsibility for whom rests on Nadia, as one of Paul's parents. (I know nothing about Paul's father, other than that he is in a new relationship and that he has two children from that relationship. In particular, I know nothing about his financial and material circumstances and whether he is providing any child support for Paul.) 198In any event, I am not satisfied that the community expectation would be that the deceased should, in the circumstances of this case, provide Iskandar with sufficient funds to enable him to purchase a three bedroom home unit when he has, for some years, lived in government housing. Importantly, other than in respect of the number of persons currently residing there, it was not suggested that his current housing would be inappropriate for Iskandar and Narty and even Eldadh if he chooses to remain living with them. As it is a two-bedroom unit, Eldadh would have his own bedroom, which it is said, he currently does not have because Paul is living there. 199Furthermore, I do not consider that Nadia provided any sufficient explanation for Paul living with Iskandar and not with her. Any suggestion that she is working and, therefore, unable to look after him, is met by the evidence about her hours of work and the availability of his grandparents to mind him after school until she can collect him. 200This is a classic case, in my view, of an applicant confusing "need" and "want". As stated earlier, the words do not mean the same thing. 201I am satisfied, however, that Iskandar should receive some additional provision, which would provide him with a greater capital sum for exigencies of life. He may, if he wishes, use the amount he receives as part of the purchase price of alternative accommodation if he and Nadia decide to pool their resources. Alternatively, he can pay off his debts and retain the balance as a lump sum for his exigencies of life and, pending it being spent, to provide an additional income. 202I have considered whether I should make some protective order. Having considered all of the circumstances of this case, I do not think it is necessary for me to do so. If Iskandar chooses to spend the lump sum that he receives in an irresponsible manner, then, in his later years, he will find himself without any capital to provide for exigencies of life. That will be his own doing. (In any event, neither counsel suggested that I should do so, although the power of the court to do so was the subject of discussion between Bench and bar.) 203In my opinion, the lump sum to be made in favour of Iskandar should be calculated as 24 per cent of the net proceeds of sale of the Kensington property. (Using the estimated net value of these amounts referred to earlier, this would yield a lump sum of about $300,000.) (In other words, he would receive additional provision out of the estate of 9 per cent.) 204In coming to this conclusion as to the method of calculating the family provision order to be made, I have remembered that McDougall J in Bouttell v Rapisarda [2014] NSWSC 1192, at [96], has raised the concern that "to make provision by way of a share, the value of which can only be ascertained until after realisation of all the estate's assets, runs the very real risk of under-providing (or over-providing) for [the applicant's] needs". Whilst this is undoubtedly true, in some cases, for example, where the estate has a value that cannot be precisely determined, it seems to me that to make a lump sum order will not be the most appropriate way of determining what is "proper" in all the circumstances of the case. It cannot be forgotten that the actual value of the estate is a relevant consideration in determining the adequacy and propriety of the provision. 205Furthermore, the Act, in s 65(2), specifies the ways in which provision may be made and adds "in any other manner the Court thinks fit". 206Finally, in this case, the way proposed is precisely how the deceased divided the remainder of her estate (after payment of the lump sum of $400,000 to Jessica) in her Will. Furthermore, the parties, themselves, consider that it is the way in which provision should be made. 207It seems to me that the burden of the additional provision to be made for Iskandar should be borne by the other residuary beneficiaries in the same proportion as their entitlements to residue, unless they otherwise reach agreement on how the burden of the additional provision should be met. Doing the best I can, this will mean that Wina will receive 14 per cent and each of Jessica and Yusuf will receive 31 per cent. 208I direct the parties to deliver to my Associate, within 14 days, agreed Short Minutes of Order giving effect to these reasons. The Short Minutes of Order in respect of Iskandar's claim, unless further submissions on the issue of costs become necessary following the delivery of these reasons for judgment, should include the usual orders as to the costs of each of the parties. They should also reflect the parties' agreement on the categories of expenses referred to, to be paid out of the gross proceeds of sale of the Kensington property and specifically identify how the "net proceeds of sale" are to be calculated. 209The Kensington property should be placed on the market for sale as soon as reasonably possible, but no later than 3 months from the date of making orders, or such other time as the parties are able to agree in writing. Provided the amount to which Iskandar is entitled is paid, within 7 days of completion of the sale of the Kensington property, no interest is payable on the amount to be paid. Otherwise, interest at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW) is payable from that date. 210To the extent necessary, the orders should deal with the time by which Nadia and Ishak should vacate the Kensington property. 211I am also prepared to make an order granting leave to any party to approach the court to make consequential and ancillary orders for the purpose of giving effect to the family provision order to be made. 212Finally, there should be an order included in the Short Minutes of Order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10) and Practice Note No SC Gen 18 (Para 26). 213In the event that the parties are able to reach agreement on the terms of the Short Minutes of Order, I shall deal with the matter in Chambers without the need for a further appearance. 214The matter, however, will be listed before me on a mutually convenient date in case agreement cannot be reached on the form of the Short Minutes of Order. On that date, if necessary, I will also deal with any outstanding argument on costs. If I am able to deal with the matter in Chambers, the date to which the matter is adjourned will be vacated.

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: 03 December 2014

Family Provision Act 1982(NSW)

Succession Amendment (Family Provision) Act 2008(NSW)

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