Lajcarova & Anor v Todorov

Supreme Court of NSW|2011-05-31

rks v Marks [2003] WASCA 297 Mayfield v Lloyd-Williams [2004] NSWSC 419 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19 Puckridge (dec'd), In the Estate of (1978) 20 SASR 72 Singer v Berghouse (No 2) [1994] HCA 40 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Taylor v Farrugia [2009] NSWSC 801 Vigolo v Bostin [2005] HCA 11 Vukic v Grbin & Ors; Estate of Grbin [2006] NSWSC 41 Walker v Walker (NSWSC, 17 May 1996, unreported) Worladge v Doddridge (1957) 97 CLR 1 Texts Cited: Government Gazette No. 38, 20 February 2009, page 1036 Category: Principal judgment Parties: Cvetanka Lajcarova (first Plaintiff) Marika Velkovska (second Plaintiff) George Todorov (Defendant) Representation: Counsel: Mr S Galitsky (Plaintiffs) Mr P Jeffriess (Defendant) Solicitors: D Stanefska & Associates (Plaintiffs) Hansons Lawyers (Defendant) File Number(s): 2010/60546

Background Facts 27The following facts are either not the subject of any real dispute, or I find them to be established by the evidence:

Cvetanka (a) She was born in December 1951 in Bitola, Macedonia. (b) She left school at the end of 1970 and worked as a sales assistant for 35 years. (c) In Bitola, she moved out of the family home in 1974 to marry Tomislav Lajcarov, to whom she remains married. They moved in to an old house with her husband's parents. When she married she received a small gift from her father and the deceased (a small bedroom suite). (d) At this time, she had a good relationship with both her parents. Her father was in Australia and the deceased was living in Macedonia. (e) In June 1975, her son, Pece, was born. In January 1978, her son, Jove, was born. Very soon after the birth of each child, she had to return to work. (f) In about 1976, the deceased migrated to Australia to be with her husband. (g) In 1984, Cvetanka's husband started building a home for the family on land owned by his family. They still live in that house with her married son, his wife and their children, and also her unmarried son. (h) During the years of building the house, her husband worked two jobs, as well as building as an owner builder. She was employed as a sales assistant. Every weekend she assisted her husband to build the house. They experienced delays in building their house through a lack of finances. (i) Between 1975 and her father's death in May 2004, her parents came to Macedonia from Australia for a holiday, usually every second year. They, with Cvetanka, would go to the mountains, for picnics, to lakes and to visit relatives together. They visited her and her family every day. When they returned to Australia, Cvetanka would telephone them approximately every 10 to 12 days. Otherwise, her parents would telephone or write. (j) In 2000, both her father and the deceased came to Bitola for their grandson's marriage. They gave Cvetanka $2,500 to assist with the costs of the wedding party. (k) Over the years, Cvetanka received regular financial assistance from her parents. Money would either be sent in cards by post, telegraphic transfer, or through relatives or friends who went to Macedonia. The total amount given to her is not clear. She would, in addition, receive between $100 and $200 each year at Christmas. (l) Her parents purchased the real estate at Wollongong, which was included in the deceased's estate, for approximately $90,000. (m) Cvetanka describes her relationship with the deceased as one of mutual love and respect. 28At the present time, neither Cvetanka, nor her husband, works. She says that their economic situation is very difficult. She says that she relied upon her parents for financial support. That financial support included permission, given by her father, to share, with Marika, the monthly pension to which he was entitled in Macedonia. That assistance ceased when he died in 2004. She and her husband do not go on holiday, as they have no money. She asserts that she does not have sufficient income to cover their living expenses. 29She continues to be treated for high blood pressure, diabetes, kidney disease and varicose veins. She does not have private health insurance. She says that to be medically treated, one is placed on a waiting list. If one has money, one can pay for treatment and, therefore, be treated faster. 30Her and her husband's current financial position is as follows: (a) Money in savings accounts: $ nil (b) Home at Bitola, Macedonia: $50,000 (c) Furniture (estimated): $100 (d) Husband's motor vehicle (22 year old Yugo): $200 Liabilities (a) Mortgage on house: $ nil (b) Loans: $ nil Income (a) Combined current monthly income: $4,500 (about $375 per month) Estimated Joint annual Expenditure (a) Motor vehicle expenses: $400 (b) Provisions for holidays: $ nil (c) Purchase of clothing: $ nil (d) Medical expenses: 3000 (e) Food and toiletries: $6,000 (f) Household bills, electricity, wood: $1,800 (g) Gifts: (h) Entertainment $ nil (i) Insurance: $ nil (j) Mortgage payments: $ nil

31I have excluded from her disclosed expenses the costs of her son's wedding ($5,000), which was described as a "one-off" expense. 32Occasionally, her husband, who is retired, would drive a taxi for some extra income. To make ends meet, her older son would also drive a taxi in the evenings. They do not do this any more. 33Cvetanka admitted that her disclosed expenses ($11,200 per annum or $933 per month) were greater than her and her husband's monthly income. She said that her sons assist her financially by contributing to the household expenses. 34She is concerned that she does not have sufficient funds for her retirement and she seeks a provision from the estate's assets for the purpose of providing more financial security for her future. She would apply any provision received from the deceased's estate for her future medical needs. 35Photographs of the house in which she and her family live depict that it is quite large. It is divided into three separate floors in which three different families live. She has indicated that she would be surprised if they could find a buyer for the whole house for 55,000. She accepts that this is its current value. 36She denies that she owns any business, children's shop or taxi s (as asserted by George). She says that her son owns and runs two shops and that her other son conducts a delicatessen from rented premises. However, neither pays rent, nor an occupation fee, for sharing the house in which they all live.

Marika (a) She, too, was born in Bitola, in February 1950. (b) Their father, Nikola Todorov, migrated to Australia in 1964. The deceased, Cvetanka and George grew up in Macedonia because her father sent money to them for food, clothing and for their education. (c) In 1969, she moved from the family home into rental accommodation when she married Nikola Velkovski. When she married, she received a small gift from her parents. (d) She and both of her parents had a good relationship. (e) In 1971, her son, Saso, was born. (f) She received from her parents, in 1973, approximately 500, which she used towards the purchase of a small house in which she currently lives. (g) In 1990, she and her husband, with the financial assistance of her parents, renovated the house. (h) In 1974, her daughter, Mirjana, was born. (i) She obtained employment, in 1974, in a textile factory. (j) She says her health deteriorated following the birth of her second child and, in the years 1978 to 1980, she went to Croatia for treatment. In the years 1984 to 1986 she went to Bulgaria for treatment. Her parents sent her the money to pay for the treatment. (k) In 1986/1987, she and her husband visited her parents in Australia. (l) In 1996, she had a heart attack. She was retired from the workforce on health grounds. Her parents continued to send her money. (m) In 2000, both her children were married. She was able to pay for the wedding expenses with money sent to her by her parents. (n) In 2005, she was admitted into hospital. The deceased sent her $1,000 to help with hospital expenses. (o) A medical report states that she suffers from hypertension, bronchial asthma, ischaemic heart disease following a myocardial infarction, varicose veins (bilateral) following a thrombosis, and a prolapsed uterus. She requires regular medical supervision and occasional hospital check-ups. 37She continues to be treated for her heart and the thrombosis. She does not have private health insurance. Like Cvetanka, she states that to be treated, one is placed on a waiting list. If one has money, she can be treated faster. Her husband's health is better than hers. She denies that the health system provides free medical treatment, although she admits that some of her prescriptions are on the "government's list", whilst others are not. 38Neither she, nor her husband, works. Their economic situation is also described, by her, as difficult. The house in which they live is modest. They share it with their married son, his wife and their child. Neither she, nor her husband, goes on holiday, as they have no money. She does not have sufficient income to pay all of their living expenses. 39She and her husband's financial position is as follows: Assets (a) Money in savings accounts: $ nil (b) Home at Bitola, Macedonia: $20,000 (c) Furniture (estimated): $100 (d) Husband's motor vehicle 1979 model: $200 (e) Land and structure on which grapes are grown: $5,000 Liabilities (a) Mortgage on house: $ nil (b) Loans: $ nil Income (a) Combined current annual income: $5,400 (or $450 per month) Estimated Joint annual Expenditure (a) Motor vehicle expenses: $400 (b) Provisions for holidays: $ nil (c) Purchase of clothing: $ nil (d) Medical expenses: $3,000 (e) Food and toiletries: $3,600 (f) Household bills, electricity, wood: $1,800 (g) Gifts: $ nil (h) Insurance: $ nil (i) Mortgage payments: $ nil

40To supplement their income, each spring, her husband collects and sells snails. He earns about $100 doing this work. 41Marika admitted that her disclosed expenses ($8,800) per annum or $733 per month) were greater than her and her husband's monthly income. She said that her son assists her financially by contributing to the household expenses. (Her daughter, who is a nurse, is unable to assist her financially because she is presently unemployed.) 42She is concerned that she does not have sufficient funds for her retirement and she seeks a provision from the estate for the purpose of providing more financial security for her future. She states that she would apply any provision from the deceased's estate for her future medical needs. 43In Foley v Ellis [2008] NSWCA 288, Sackville AJA at [88] noted that Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 "... 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 under the Family Provision Act ". 44It is, therefore, necessary to consider the circumstances of George, including his financial and material circumstances. I am satisfied that the following facts are not in dispute or have been established by the evidence.

George (a) He was born in May 1954. (b) He obtained a Trade Certificate as a Motor Mechanic in 1973. (c) In 1977, he migrated to Australia. For about 6 months, he lived with his father and the deceased. (d) He commenced employment as a labourer with BHP Steel Works in Port Kembla in October 1977. He has remained with that company (now called BlueScope Steel) ever since. He is currently employed as a Gas Operator. (e) He owns his home at Wollongong. He is married with no children. (f) He received no gifts, or other benefits, from the deceased. (g) On various occasions, he sent each of the Plaintiffs money. In all, he estimates he sent them $29,300. He says that these were loans. No amount has been repaid. 45He summarises his assets and liabilities as follows: Assets (a) Kenny Street, Wollongong (est): $465,000 (b) Corrimal Street, Wollongong (Defendant's half share): $205,000 (c) Bligh Street, Wollongong (Defendant's half share): $232,500 (d) Auburn Street, Wollongong (Defendant's half share): $195,000 (e) Toyota Hi-Lux: $5,000 (f) Ford Telstar: $2,000 (g) Trail bike: $500 (h) Colonial First State Cash Management: $4,044.65 (i) Commonwealth Bank Streamline Account: $14,788.69 (k) IMB Everyday Account: $73,193.31 (l) IMB Everyday Account: $2,028.64 (m) Shares in BlueScope Steel (794 shares) (Defendant's half share): $830 (n) Shares in BHP (Defendant's half share): $23,103.50 (o) AMP Personal Super Plan (Defendant's half Share): $23,686.44 (p) Superannuation (Defendant's half share): $285,823.34 Total Assets: $1,532,498.57 Liabilities (a) Mortgage to IMB: $165,096.00

Income (a) Wages (nett (per annum)): $50,145.00 (b) Rent for Auburn Street and Blight Street: $44,117.76 Total income: $94,262.76 Expenditure (per annum) (a) Land Rates: $7,129.94 (b) Water: $5,296.80 (c) Insurance: $4,000.00 (d) Land Tax: $9,200.00 (e) Registration for cars and motor bikes: $855.00 (f) Car expenses: $7,500.00 (g) Car insurance: $500.00 (h) Mobile phone: $300.00 (i) Land line: $740.00 (j) Electricity: $1,400.00 (k) Gas: $880.00 (l) Cigarettes: $10,950.00 (m) Food: $15,600.00 (n) Allowance to wife: $10,000.00 (o) Clothes: $7,800.00 (p) Entertainment: $7,800.00 (q) Personal, Medical, Medication: $7,800.00 (r) Property maintenance: $7,500.00 (s) NIB Health Insurance: $2,940.00 Total Expenditure: $108,191.74

46His wife has no assets of value, as she has not been gainfully employed. He owns the house in which they live and the bank accounts, furniture and motor vehicle. 47George has referred to having a half share in a number of properties. Between about 1989 and 2000, he lived in a domestic relationship with Jillian Van Der Kooi. Although this relationship ceased, their friendship has continued. During their relationship they accumulated properties, which are in his name only. He admits that she has a legitimate claim on these properties due to their relationship and the fact that she contributed to them. 48He also asserts that she has an interest in his superannuation. I am satisfied that she may do, at least so far as it relates to the contributions made by him during the period of their relationship. However, he does not assert that she made any actual contributions to his superannuation. 49Ms Van Der Kooi, who swore an affidavit and who was not cross-examined states that she and the deceased bought the properties, which were registered in George's name, but which "we both acknowledge that I have a one half share interest". She also says that she plans to retire in two years or so and has informed George that the properties then will need to be divided equally. 50There is no doubt that, with overtime, George's income is reasonably large. In the year ending 30 June 2010, he was able to salary sacrifice about $45,000 to superannuation. 51George asserts that he contributed to the acquisition and improvement of the deceased's real estate at Wollongong as follows: (i) By contribution of $5,000 on purchase in 1983. (ii) By performing renovation work in 1990. In addition, he: (a) Carried out a general clean up of rubbish and dumping (36 trailer loads); (b) Painted the house inside and outside; (c) Purchased and installed new curtains, security doors, front and back, fly screens, two wall cupboards in kitchen, a hot water system; (d) Unblocked the kitchen sewer. 52Between 2005 and 2008, George was the sole carer of the deceased. As the deceased's health declined and she was in need of more support, it was left to him to provide that support. This included: (i) Seeing to her everyday needs; (ii) Providing her with support workers (personal and medical care); (iii) Organising her daily meals; (iv) Organising cleaning of her home; (v) Buying all her supplies; (vi) Arranging and taking her to medical appointments; (vii) Organising and taking her on outings; (viii) At times, he was required to change her incontinence pads. 53Although there was no cross-examination of George on the care he provided to the deceased, I note that his evidence, in any event, is corroborated by a letter from a general medical practitioner, Dr Ian McCorkindale, who certifies that he "was involved heavily in the care of his mother ... at home through her long demise post-cerebrovascular accident in 2003 until her death in 2009". 54To enable her to continue to live in the house, George says that he performed the following work between 2005 and 2009: (i) Re-wired the entire house; (ii) Re-plastered the entire house; (iii) Re-roofed the house; (iv) Demolished and rebuilt the exterior walls; (v) Painted the entire house, both interior and exterior; (vi) Constructed a ramp; (vii) Re-tiled and rebuilt the bathroom and toilet to accommodate the deceased's disability; (viii) Re-tiled and rebuilt the kitchen; (ix) Put in a path. 55In March 2008, the deceased had her third stroke. She went to hospital and never returned to live at her own home. She was in a coma and in intensive care for eight weeks. She was not expected to come out of the coma. She did, and he went everyday, and sometimes twice a day, for the next nine months. 56There is no dispute that he had an excellent relationship with the deceased. 57In relation to the statutory declaration of the deceased, leaving aside any parts that may be the subject of dispute, it records the support, care and assistance provided to her by George. There is, and can be, no argument that is an accurate reflection of the deceased's regard for him. 58George suffers from the following heath problems: (i) Stress, anxiety and depression; (ii) Back and joint pain; (iii) Chest pain. On his family doctor's advice, he is now under the care of a psychologist. The prognosis appears to be reasonably good. 59I have also read two reports of Dr Irwin Pakula, a consultant psychiatrist who saw George in December 2010 and then in March 2011. He describes, George, in my view, correctly, having seen him in the witness box, as "a very expressive and very emotional man", who "has unresolved bereavement issues related to the death of his mother and great distress about his sisters contesting his mother's will" and who "suffers from a Major Depressive Disorder". 60George says that whilst he is a good employee, he cannot say for how long he will be employed. However, there is no evidence that his employment is threatened. 61Whilst there was no dispute that the Plaintiffs each received money from their father, there was an issue about whether the deceased was aware that he was giving them money. This issue, at least in part, resulted from a statement in the statutory declaration by the deceased, that the gifts of money were made without her knowledge. 62Ms Van Der Kooi also refers to statements of the deceased that confirmed the contents of the Will that she had made. She also gives evidence about statements by the deceased to the effect that the Plaintiffs "have had enough". 63To the extent that the issue is relevant, I think it likely that the deceased knew that moneys were being sent to each of the Plaintiffs, although she may not have known how regularly or in what amount. Whether she knew or not, I am satisfied that this was provision made, at least indirectly, by the deceased, during her lifetime, even though it was from her husband's wages that the moneys came.

The Statutory Scheme 64In an application under the Act, the Court must determine whether the applicant is an eligible person; if so, whether she, or he, has been left with adequate provision for her, or his, proper maintenance, education and advancement in life; and, finally, if not left with that provision, what, if any, provision (or further provision) ought to be made out of the estate for those purposes. 65The power of the Court to make an order under the Act is enlivened by the formation of an opinion that the disposition of the deceased's estate effected by her Will, or as a result of intestacy, is not such as to make adequate provision from her estate for the proper maintenance, education or advancement in life of the applicant. 66No criteria are prescribed in the statute as to the circumstances that do, or do not, constitute "inadequate provision for the proper maintenance, education and advancement in life". 67The question is answered by an evaluation that necessarily takes the court to the provision actually made in the deceased's Will, or as a result of intestacy, on the one hand, and to the needs for maintenance and advancement in life of the applicant on the other. It has conventionally been said that this involves a consideration of the relationship between the deceased, the applicant and other relevant persons having similar claims for adequate provision to be made for them: see Goodman v Windeyer (1980) 144 CLR 490 at 496). 68"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 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". 69Neither are the words 'maintenance' and 'advancement in life' defined. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at [115], said, of the words 'maintenance', 'support' and 'advancement': "'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education." 70In 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." 71In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J 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." 72The word 'adequate' connotes something different from the word 'proper'. 'Adequate' is concerned with the quantum, whereas 'proper' prescribes the standard, of the maintenance education and advancement in life: Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 at [72] and at [77] per Buss JA. 73Each of the 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." 74Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571, 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." 75In Goodman v Windeyer (1980) 144 CLR 490, Gibbs J said at 502: "[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards." 76Santow J pointed out in Gardiner v Gardiner ( NSWSC, 28 May 1998, unreported), "adequate" and "proper" are independent concepts: "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..." 77In Vigolo v Bostin at [114], 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." 78Thus, "proper maintenance" is not limited to the bare sustenance of an applicant, but requires consideration of the totality of her, or his, position in life including age, status, relationship with the deceased, financial circumstances, the environs to which she, or he, is accustomed, and mobility: Alexander v Jansson [2010] NSWCA 176 at [18]. 79Unless the court comes to the conclusion that inadequate provision has been made, it is not empowered to make an award. This is commonly referred to as "the jurisdictional question". At this stage, the court will consider whether it can make an order for provision for the maintenance, education and advancement in life of a particular applicant. 80Whether the applicant has a 'need' is a relevant factor at the first stage of the enquiry. It is an element in determining whether 'adequate' provision has been made for the 'proper' maintenance education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 [42] (Tobias JA, with whom Beazley and Hodgson JJA agreed). 81Tobias JA said: "42. 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 focused. 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 the cause of that context that, in the present case, the "proper maintenance etc" of the appellant required consideration to guard against the contingency to which I have referred." 82In Devereaux-Warnes v Hall [No 3] at [81]-[85], 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]." 83If the court answers the jurisdictional question favourably to the applicant, the nature and quantum of the order that the court is then empowered to make is stipulated by s 7 as being an order that: "... in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person." 84At the second stage, 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. 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. 85Section 9(3) of the Act should not be forgotten because the matters referred to therein are relevant, not only in determining whether an order ought to be made, but also in determining the nature of the order which should be made. Section 9(3) provides: "In determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person, the Court may take into consideration: (a) Any contribution made by the eligible person whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to: (i) the acquisition, conservation or improvement of property of the deceased person; or (ii) the welfare of the deceased person, including a contribution as a homemaker; (b) The character and conduct of the eligible person before and after the death of the deceased person; (c) Circumstances existing before and after the death of the deceased person; and (d) Any other matter which it considers necessary in the circumstances." 86In Singer v Berghouse (No2) , the High Court described the two-stage approach that a court should take. At 209, it was said: "The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Ltd . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors." 87In Vigolo v Bostin , Gleeson CJ and Gummow and Hayne JJ at [5], [74] and [82] - [83] approved the two-stage test set out in Singer v Berghouse . 88It has recently been repeated by Campbell JA in Durham v Durham [2011] NSWCA 62: "81 Under both the Family Provision Act and the Succession Act whether the jurisdictional question is satisfied is a matter of whether an evaluative standard has been met, rather than truly a matter of discretion. ... 82 A judge's decision as to the amount and type of an award to be made is a true discretionary decision, whether that decision is made under the Family Provision Act or under the Succession Act ." 89The provision to be made may be made in a variety of ways, including a lump sum, periodic sum or "in any other manner which the Court thinks fit": s 11 of the Act. The court, if it makes an order for provision, "may specify the beneficial entitlements in that estate which shall bear the burden of the provision and, in relation to each entitlement, the part of the burden it is to bear": s 13 of the Act. The court is empowered, at its discretion, to order that such provision as the court thinks fit is made out of the estate of the deceased for that purpose. An order takes effect as a codicil to the will, or where the deceased died intestate, in a will of the deceased person: s 14 of the Act.

General Principles 90In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the court to be vigilant in guarding "against a natural tendency to reform the deceased's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant". 91The 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; (1961) 107 CLR 9, per Dixon CJ at 19); McKenzie v Topp [2004] VSC 90 at [63]. Freedom of testamentary disposition remains a prominent feature of the Australian legal system. 92Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life, 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: The Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (NSWSC, 17 May 1996, unreported); Vigolo v Bostin at [11]; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. 93As Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1 at 6, it is not appropriate to endeavour to achieve a "fair" disposition of the deceased's estate. It is not part of the court's role to achieve some kind of equity between the various claimants. The court's role goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance etc of an eligible applicant. 94The Act is not a "destitute persons Act", and it is not necessary, therefore, that an applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1909) 29 NZLR 959 at 966. 95In considering the question of provision, the nature and content of what is adequate for the proper maintenance, education and advancement in life, 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: The Pontifical Society for the Propagation of the Faith v Scales , at 19; Walker v Walker ; Vigolo v Bostin at [11]; Stern v Sekers; Sekers v Sekers . 96Promises made and expectations raised by a deceased have always been regarded as relevant to the ascertainment of what is proper provision for a claimant ( Re Anderson (deceased) (1975) 11 SASR 276, 284; Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134, 148). This is particularly so where an applicant has relied to his, or her, detriment on any such promise or expectation: Vukic v Grbin & Ors; Estate of Zvonko Grbin [2006] NSWSC 41). 97All of the financial needs of the applicant have to be taken into account and considered by reference to the other factors referred to in section 9(3) of 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 . 98The lack of reserves to meet demands, particularly of ill health, which become more likely with the advancing years is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003) at [178] and [179]; Crossman and Anor v Riedel and Ors [2004] ACTSC 127 at [49]. Likewise, financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297 at [43]. 99The resources and needs of other claimants on the deceased's bounty are to be taken into account in determining a claim under the Act: Vigolo v Bostin at [122]; Foley v Ellis at [88] and [89]; Carey v Robson [2010] NSWCA 212 at [15]. 100Where the Court is satisfied that provision ought to be made, then it is no answer to a claim for provision under the Act that to make an order would be to defeat the intentions of the deceased. The Act requires, in such circumstances, for the deceased's intention to be displaced: Kembrey v Cuskelly [2008] NSWSC 262 at [45]. 101In relation to a claim under the Act by an adult child of the deceased, the following matters should also be noted: (a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where he, or she, 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 a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia . (d) There is no obligation upon the deceased to have treated all of his, or her, children equally. In Carey v Robson; Nicholls v Robson [2009] NSWSC 1142, Palmer J commented: "57 The strongest ground for relief urged by Rosemary and Marion, though put somewhat obliquely, is that the provision made for them by the testator is vastly disproportionate to the provision made for Alan. One can understand the sense of grievance which one child may have at being treated by a parent differently from another child. Some may be tempted to think that great disproportionality of testamentary treatment in itself indicates some essential error in the testamentary process which requires amelioration under the Family Provision Act so as to achieve approximate equality between a testator's children. 58 That is not, of course, a position from which one can begin in this, or in any other case under the family provision legislation." (e) There is no the need for an adult child to show some special need or some special claim: McCosker v McCosker ; Kleinig v Neal (No 2) [1981] 2 NSWLR 532; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45. 102Menzies and Fullager JJ in Blore v Lang [1960] HCA 73; (1960) 104 CLR 124 at 134-5, commented in respect of "a married woman with a healthy husband in satisfactory employment who supports her in reasonable comfort" that, "[H]er need is not for the bread and butter of life, but for a little of the cheese or jam that a wise and just parent would appreciate should be provided if circumstances permit". 103Even more vividly, but to similar effect, is the approach in Worladge v Doddridge (1957) 97 CLR 1 at 12, in which Williams and Fullagar JJ approved the following statement, in Re Harris (1936) 5 SASR 497 at 501: "Proper maintenance is (if circumstances permit) something more than a provision to keep the wolf from the door - it should at least be sufficient to keep the wolf from pattering around the house or lurking in some outhouse in the backyard - it should be sufficient to free the mind from any reasonable fear of any insufficiency as age increases and health and strength gradually fail." 104Of course, in the present case, the husband of each Plaintiff is not working.

Determination 105Claims for a family provision order present particular difficulties where the estate is relatively small. Any provision made by the Court in favour of the applicant must, in this class of case, be made at the expense of the beneficiary who has had to defend the claims. 106In this case, there is no dispute that each Plaintiff, as a daughter of the deceased, is an eligible person within the meaning of s 6(1)(b) of the Act. There is also no dispute that the proceedings were commenced within the time prescribed by the Act. 107Thus, I must first consider, whether, at the present time, adequate provision for the proper maintenance, education, or advancement in life, of each has not been made, during the lifetime of the deceased or by her Will. 108Certainly, there was no provision in the deceased's Will made in Australia and dealing with Australian property, for either of the Plaintiffs. However, this does not, automatically, mean that she will have established the jurisdictional threshold. There was no dispute that provision had been made for each of the Plaintiffs during the deceased's lifetime, if not directly, by her, then indirectly, since moneys sent by her husband to the Plaintiffs may very well have formed part of the moneys that had been saved by them and which passed to her following his death. Section 9(2)(a) of the Act requires me to consider such provision. 109In view of the evidence given by Marika about the money held in the bank accounts in Macedonia, to the proceeds of which the Plaintiffs are entitled to share under the deceased's Will made in Macedonia dealing with Macedonian assets, it can be said that each will receive between $6,000 and $6,500. 110I am not satisfied that the Defendant has established that the financial position of each Plaintiff is better than she has stated it to be. In particular, based upon the evidence he has advanced, I am not satisfied that Cvetanka owns, or has an interest in, a delicatessen, a taxi business, and two shops selling children's clothes. To find the contrary, I would need to be satisfied that, Cvetanka intentionally misled the Court as to her financial and material circumstances. I am not comfortably satisfied, on this issue, that she has done so. 111It is true that Marika did not disclose ownership of a parcel of land on which she grows grapes in her evidence in chief. However, she did disclose it as an asset in her second affidavit. This omission does not lead me to conclude that her financial and material circumstances are better than she has asserted. 112I also accept that each Plaintiff's household expenses are shared between the adult members of the household and that such financial assistance had not been disclosed in the affidavits. Again, I am not satisfied that this was done with the intention of misleading George or the Court. Rather, I think it had to do with the manner in which their case was prepared and the lack of detailed instructions that should have been obtained from them by their legal representatives. 113I am comforted in my conclusion about each of the Plaintiffs by the Defendant's statement to the effect that compared with Australian standards, she is not well off. As was put in the written submissions of the Defendant: "That the Plaintiffs are, in Australian terms, poor, is clear. However, the cost of living in Macedonia is significantly lower than in Australia." 114Taking into account all of the matters that I am required to consider in the first stage, including the financial position of each, the size and nature of the estate, the relationship between each and the deceased, and the relationship between the deceased and the only other person who has a legitimate (and in this sense competing) claim upon her bounty (George), I am satisfied that each of the Plaintiffs has satisfied the jurisdictional threshold. 115In the case of each Plaintiff, I am satisfied that her financial position is such that she does not have any amount as a buffer for exigencies of life. Each lacks any reserves to meet demands, particularly of ill health, as she grows older. It is only with assistance that they are able to meet their outgoings which, by Australian standards, are modest. 'Need' in the context of the Act is not determined by reference only to minimum standards of subsistence. 116Furthermore, because each of the Plaintiffs is unable to earn, or, in the case of Cvetanka, who has a limited means of earning an income, this gives rise, in my view, to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17]. 117I reject the submission, made on behalf of George, that the amount in the bank accounts in Macedonia provides adequate and proper provision for each of the Plaintiffs. However, I shall take into account the additional $6,000 to $6,500 that each will receive from those accounts at the second stage. 118It is, then, necessary to consider whether to make a family provision order and the nature of any such order. In this regard, I do not forget s 9(3). I have earlier dealt with s 9(3)(a) of the Act. So far as s 9(3)(b) is concerned, there is nothing in the character, or conduct, of either Plaintiff, before, or after, the deceased's death, adverse to her claim. Although it was put, faintly, against the Plaintiffs, I am satisfied that not coming to Australia to care for the deceased, is not such as to disentitle either of them to the benefit of an order. It is not surprising that each was unable to provide the Defendant with assistance to care for the deceased bearing in mind the geographical distance between them. 119Subsections 9(3)(c) and (d) are general and I have dealt with factual matters that may be relevant under one, or other, of these sub-sections. 120I also bear in mind the deceased's statutory declaration and that it provides very sound reasons for the court to be slow to depart from her testamentary wishes: Kay v Archbold [2008] NSWSC 254 at [124]. 121It is true, as has been submitted by counsel for the Defendant, that the precise level of need has not been quantified. However, where what is being claimed is a fund for contingencies, or as a buffer, this would be difficult to do other than very generally. In any event, the determination of the quantum of proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge at [56]). Importantly, each Plaintiff is no longer employed, and has no real prospect of further employment. Other than a pension, each has no stream of income and little property. In the case of Marika (although to a lesser extent Cvetanka) she suffers from ill health, as a result of which she may incur increased medical expenses in the future. 122I also cannot ignore the Defendant's overall financial position (whether or not it includes more than he has attributed to his share of the superannuation). It was conceded by counsel for George, in my view properly, that he is not a competing financial claimant on the bounty of the deceased. 123In all the circumstances I am of the view that provision for each Plaintiff should be made. 124In determining the nature and quantum of the provision, I have had regard to the matters referred to above. Also, I do not forget the provision directly, or indirectly, made for each Plaintiff by the deceased (and by George), or the very clear obligation owed by her to George as accurately reflected in the statutory declaration that she signed. Nor do I forget his contribution, financially and otherwise, to the maintenance and repair of the principal estate property. However, I am not constrained by the practical considerations of the size and nature of the deceased's estate, and any competing financial claim upon the deceased's bounty. 125In the case of Cvetanka, I am of the opinion that a lump sum of $79,000 should be provided to her absolutely out of the deceased's estate in New South Wales. This will not only provide a capital sum, but if properly invested, an income to supplement the pension amount that each receives. It should provide over and above a mere sufficiency of means upon which to live. 126In the case of Marika, I am of the opinion that a lump sum of $93,000 should be provided to her absolutely out of the deceased's estate in New South Wales. For her too, that amount will not only provide a capital sum, but if properly invested, an income to supplement the pension amount that she receives. It should provide over and above a mere sufficiency of means upon which to live. 127I have also considered the argument that each amount, whilst it may not seem very large by Australian standards, will provide a better standard of living for each Plaintiff in Macedonia. In this regard, although it was put in terms of "an award of a modest sum in Australian dollars would be of significantly greater value to the Plaintiffs in Macedonia", I consider that the better way of looking at this is by reference to the "station in life" of each of the Plaintiffs and how each might reasonably be expected to live in the future. 128In reaching my conclusions as to the provision that should be made, the total amount of the provision is $172,000. I am satisfied that the size of the actual estate in New South Wales permits, and justifies, the provision that ought to be made. It will still leave property with a value of approximately $328,000 for George (even after the payment of costs as estimated). 129The lump sum, in each case, should be paid within 28 days of the making of orders, or within such other time as the parties agree, failing which, interest on any amount not so paid, should be paid, such interest to be calculated at the rate prescribed on unpaid legacies by the Probate & Administration Act 1898, from that date until the date of payment. 130The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules. 131Subject to any argument about costs, I would propose to make the usual order for costs.

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