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[2026] NSWSC 36
General information, not legal advice.
Supreme Court of NSW
2026-02-06
Meek J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Little v Little [2026] NSWSC 36
Hearing dates: 30 October 2025, 18 and 28 November 2025 (Court), 2 February 2026 (further agreed evidentiary detail provided to chambers)
Date of orders: 6 February 2026
Decision date: 06 February 2026
Jurisdiction: Equity – Probate and Family Provision List – Family Provision
Before: Meek J
Decision: Orders made for allocation of burden of an order for provision and consequential orders
Catchwords: SUCCESSION — Family provision — Nature of orders — Apportionment of burden of provision — Settlement of family provision claim in which there was agreement between parties and consent from residuary beneficiaries regarding a lump sum provision for the plaintiff but dispute regarding the incidence of burden of the provision from residuary estate — Beneficiaries of one half share of the deceased’s residuary estate (4 niblings of the deceased, now D2-D5) contended that the deceased’s brother (now D6) the sole beneficiary of the other half share of the deceased’s residuary estate should bear the entire amount of the burden of the plaintiff’s provision (or alternatively the majority of the burden) — Held submission that the deceased’s brother bear the entire burden rejected —Deceased’s brother (D6) ordered to bear 70% of the provision burden with the remaining residuary beneficiaries the balance in specified percentages (D2 9%, D3 9%, D4 7% and D5 5%)
SUCCESSION — Family provision — Parties — Principles regarding joinder of parties discussed — Whether beneficiaries should be joined to address apportionment of burden of provision (on facts – Yes)
SUCCESSION — Family provision — Historical development of incidence and apportionment of burden principles outlined — Burden principles under s 65(1)(c) Succession Act discussed
SUCCESSION — Family provision — Apportionment of burden of provision — Burden allocation is an evaluative decision to be determined on the relevant material facts including s 60(2) Succession Act factors unique to each case — Features of burden allocation discussed — The burden jurisdiction is not to be exercised to produce, in light of the order for provision, a per stirpes distribution to attempt put the respective generational families in a position where each family unit receives overall an equal part or division of the deceased’s estate
WORDS AND PHRASES — Distribution per stirpes, distribution per capita, ‘Carriage order’, ‘just and equitable’
Legislation Cited: Family Provision Act 1982 (NSW)
Guardianship of Infants Act 1916 (NSW)
Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Supreme Court Rules 1970 (NSW)
Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) (repealed)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Alexiou v Alexiou [2025] NSWCA 164
Angius v Angius [2025] NSWCA 113
Armstrong v Children’s Hospital at Westmead [2008] NSWSC 1315
Baldwin v Favre (No 2) [2025] NSWSC 540
Baldwin v Favre [2025] NSWSC 345
Bardi v Giannaros (No 2) [2025] NSWSC 917
Bogan v Estate of Peter John Smedley (Dec'd) [2025] HCA 7; (2025) 422 ALR 94
Cantrell v Williams [2004] NSWSC 579
Casper v Casper and Ors [2007] NSWSC 796
Clayton v Clayton [2023] NSWSC 399
Egberts v Evans & Anor [2018] NSWSC 1974
Federal Commissioner of Taxation v Whiting (1943) 68 CLR 19
Foley v Ellis [2008] NSWCA 288
Gorton v Parks (1989) 17 NSWLR 1
Haertsch v Whiteway (No 2) [2020] NSWCA 287
Hoobin v Hoobin [2004] NSWSC 705
Howitt v Bosschieter [2025] NSWCA 179
In re Horwitz (1917) 34 WN (NSW) 73
In re O’Neill (1917) 34 WN (NSW) 72
Jurak v Latham [2023] NSWSC 1318
Kleinig v Neal (No.2) [1981] 2 NSWLR 532
Kleinig v Neal [1981] 1 NSWLR 462
Lester v Lester; In the Estate of Dulcie Brown [2020] NSWSC 958
Pargeter v Pargeter [2024] NSWSC 675
Pillinger v Lees [2024] NSWSC 1067
Re Foord [2019] VSC 444
Re Seery (1969) 90 WN (Pt 1) (NSW) 400
Sackelariou v O’Donnell [2018] NSWSC 1651
Schaefer v Schuhmann [1972] AC 572; (1971) 46 ALJR 82.
Scott v Scott (No 2) [2022] NSWSC 914
Sgro v Thompson [2017] NSWCA 326
Shymko v Lach [2022] NSWSC 1096
Smith v Dayman [1994] NSWCA 286
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114
Strang v Steiner [2019] NSWCA 143; (2019) 19 ASTLR 330
Vasiljev v Public Trustee [1974] 2 NSWLR 497
Verzar v Verzar [2012] NSWSC 1380
Webster v Strang; Steiner v Strang [No 2] [2018] NSWSC 1411
Texts Cited: Certoma, GL, The Law of Succession in New South Wales (4th ed, 2010, Thomson Reuters)
Dal Pont, G E, Law of Succession (3rd ed, 2021, LexisNexis)
Wright, RJ Davern Testator’s Family Maintenance in Australia and New Zealand (3rd ed, 1974, The Law Book Company Limited)
de Groot, John and Nickel, Bruce, Family Provision in Australia (6th ed, 2021, LexisNexis)
Dickey, Anthony, Family Provision After Death (1992, The Law Book Company)
Encyclopaedic Australian Legal Dictionary (LexisNexis)
National Committee for Uniform Succession Laws, Family Provision: Supplementary Report to the Standing Committee of Attorneys General (Queensland Law Reform Commission, Report 58, 2004)
New South Wales Law Reform Commission Report 110 - Uniform Succession Laws: Family Provision (May 2005)
New South Wales Law Reform Commission Report 28 (1977) – Testator’s Family Maintenance and Guardianship of Infants Act, 1916 (June 1977)
Practice Note SC EQ 07 - Probate and Family Provision List
Category: Principal judgment
Parties: Amy Little (Plaintiff)
Kylie Little (First Defendant)
Brendan Damien Findlay (now Second Defendant)
Sarah Eileen Findlay, Aaron Lucas Findlay, Joshua James Findlay and (Third, Fourth and Fifth Defendants)
Geoffrey Ernst Douglas Little (Sixth Defendant)
Representation: Counsel:
J Brown (Plaintiff)
D Stewart (Defendant)
K Jubb (solicitor) (Brendan Damien Findlay)
G Taylor (Sarah Eileen Findlay, Aaron Lucas Findlay, Joshua James Findlay)
Solicitors:
Armstrong Legal (Plaintiff)
Matthews Dooley & Gibson (Defendant)
John Davies & Co (Brendan Damien Findlay)
Kennedy Spanner Lawyers (Sarah Eileen Findlay, Aaron Lucas Findlay and Joshua James Findlay)
File Number(s): 2025/00163885
HIS HONOUR: From “the cradle to the grave” the late Marion Ruth Little (deceased) spent her life living in Toowoomba and Blacktown, two thriving and diverse locales, though States apart. In a role reversal not infrequently encountered in an ageing population, she compassionately and willingly took on the sacrificial burden of caring for her parents who had nurtured her in her early life.
In relevant counterpoint, the application before the Court addresses a different sort of burden, namely the disputed question of who amongst the residuary beneficiaries of the deceased estate should bear the burden of an order for provision that has been made in favour of Amy Rachel Little (Amy/plaintiff), a niece of the deceased.
The deceased, who died on 4 May 2024 aged 67, worked as a Credit Card Fraud Officer [1] . She never married and had no children. She cared for her parents who both predeceased her in November 2015. She was survived by her brother Geoffrey Ernest Douglas Little (Geoffrey), her only other sibling, her sister Karen having predeceased her on 6 September 2021.
Geoffrey (age 73) has been married to his wife Wendy (aged approximately 71) for over 50 years and is the father of Amy (born in September 1976 and aged 49) and Kylie (Kylie/defendant). Karen, who lived in Queensland had a husband, James Findlay (James) who predeceased her. She left 4 children being three sons, two of three triplets, Aaron Lucas Findlay (Aaron) and Brendan Damien Findlay (Brenda****n) aged 45 (with Sean Nathan Findlay (Sean) the third triplet having tragically died within days after birth); Joshua James Findlay (Joshua) aged 42 and a daughter, Sarah Eileen Findlay (Sarah) aged 41.
Ultimately, I have determined that the (agreed) order for provision for the plaintiff in a sum of $394,000 ought to be borne out of the entitlements of the residuary beneficiaries of the deceased’s estate in the following percentages - by Geoffrey as to 70%, Brendan as to 9%, Sarah as to 9%, Aaron as to 7% and Joshua as to 5%.
The initial legislative model under the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) (TFM Act) mandated the incidence of a family provision order to be borne rateably as between the persons beneficially entitled to the whole of the deceased’s estate, subject to a power to “order otherwise”. That model operated by allowing burden to be fixed by default in the absence of a positive order.
Contrary to that model, under the Succession Act 2006 (NSW) (Succession Act), allocation of burden is required to be expressly addressed and specified by order. It is an evaluative decision to be determined on the relevant material facts including s 60(2) Succession Act factors unique to each case. Features of allocation of burden include the following:
By definition under s 65(1) Succession Act allocation of burden is an aspect of the broader decision of whether a family provision order should be made, and the nature of any such order, albeit with a different focus.
In considering s 60(2) factors and any other relevant matter, the Court does not start from a position of presumed prioritisation of some considerations such as ‘financial needs’ over others. Rather, the weight allocated to any consideration, will necessarily depend upon and be sensitive to the facts of the particular case.
In making the evaluative determination regarding the incidence of burden, it is implicit that the Court will act in a manner that is “just and equitable”.
The approach to allocation of burden does not proceed on the basis of the Court attempting to put respective generational families associated with the deceased in a position where each family unit receives overall an equal part or division of the deceased’s estate.
It is not essential that burden allocation be determined contemporaneously with the amount of the order for provision. However, if it is not coterminous, ideally it should be determined relatively soon after or proximate to the determination of the order for provision.
Justin Brown of counsel appeared for the plaintiff. David Stewart of counsel appeared for the defendant instructed by Mark Ford (Mr Ford). Geoffrey is unrepresented. There is separate representation for Karen’s children. Sarah, Joshua and Aaron who are represented by Amanda Schmidt of Kennedy Spanner Lawyers and have appeared by Ms G Taylor, counsel based in Brisbane. Brendan is represented by Kim Jubb of John Davies & Co Solicitors.
Noting the separate representation, it is convenient to refer to Sarah, Joshua, Aaron and Brendan as collectively the ‘Findlay beneficiaries’ [2] .
The deceased left a Will dated 7 December 2022 (Will), probate of which was granted on 19 May 2025 to Kylie, being the substituted executrix in circumstances which the plaintiff, the instituted executrix (and the defendant’s sister) renounced probate, likely because she was about to seek family provision relief pursuant to the provisions of s59 Succession Act, which she did by Summons filed on 29 April 2025.
The deceased left an estate which according to the Inventory of Property comprised various assets but relevantly:
| Asset | Value | | monies in 10 bank accounts | $608,164.44 | | shares in 4 banks/financial institutions | $69,375.07 | | superannuation with Mercer | $180,737.51 | | superannuation with Colonial First Estate | $721,808.36 | | personal property | $1,201.00 | | total | $1,518,286.38 |
The surrounding circumstances of the making of the Will include the context noted above in which the deceased’s closest immediate family were her brother Geoffrey, and her nieces and nephews [3] .
To the extent that a testamentary scheme of the deceased can be detected, it was that apart from a few specific gifts of personalty, her estate was to be disposed per stripes, being a one half share to Geoffrey, and the other half to Karen’s children.
The deceased by her Will gifted the following personal items to her nieces:
to Sarah - her emerald with shoulder diamonds dress ring;
to Kylie - the framed portrait of the deceased’s mother Margaret as a child; and
to Amy, Kylie and Sarah - to divide amongst themselves as they see fit her clothing jewellery and articles of personal use or adornment.
In the events which occurred, the superannuation benefits were paid into the estate and formed part of the residuary estate. The deceased, after directing payment of her just debts, funeral and testamentary expenses divided the balance of her residuary estate as to a one-half share to Geoffrey [4] with the other half share to Karen’s children namely Aaron, Brendan, Sarah and Joshua [5] (with the consequence that they each received 1/8th of the estate).
Details of the administration of the deceased estate are set out by the defendant in her administrator’s affidavit. The details (as at 26 June 2025) disclosed debts and administration expenses being:
(a) AGL account and credit card debt $1,410.79;
(b) costs of administration approx. $15,000; and
(c) legal costs seemingly associated with the obtaining of the grant of probate.
The defendant indicated that she intended to convert the deceased’s assets into cash and gave an estimate of the net distributable estate excluding the costs of the proceedings as being approximately $1.565 million.
Mr Ford, the defendant’s solicitor estimated the defendant’s costs up to and including mediation calculated on the indemnity basis to be $38,500 inclusive of GST [6] .
The current position regarding the administration of the estate is summarised in Mr Ford’s affidavit sworn 17 November 2025.
Mr Ford has engaged accountants to prepare income tax returns for the deceased. However, he is still gathering information for that. He estimates that the value of the net distributable estate is $1,430,974.15, being the value of the gross distributable estate (GDE) of $1,626,774.15 and the following estimated or provisioned liabilities totalling $195,200:
| Expense | Cost | | income tax | $125,000.00 | | accountant’s fees | $7,700.00 | | administration costs | $21,500.00 | | application costs for commission | $11,000.00 | | executrix’s commission | $30,000.00 | | total | $195,200.00 |
It is not entirely clear to me whether the amount of $1,430,974.15 specified for the net distributable estate has taken into account the defendant’s legal costs of the proceedings at all or post 17 November 2025. Clearly there will be some additional legal costs for the defendant for work post 17 November 2025.
There are slight differences between Mr Stewart and Ms Taylor as to the net estate [7] . In summary, the position appears to be:
Both Mr Stewart and Ms Taylor in their calculations based on Mr Ford’s evidence, deducted from the GDE ($1,626,774.15) amounts for income tax ($125,000), accountant’s fees ($7,000) and administration costs ($21,500).
Mr Stewart also deducted from the GDE ($1,626,774.15) amounts for application costs for commission ($11,000) and executors commission ($30,000). Ms Taylor has excluded those amounts.
Ms Taylor on the other hand included a component for litigation costs of $40,000 (est.), and Mr Stewart has not seemingly allowed for any specific amount at least for ongoing legal costs.
Ms Taylor in ascertaining the net value of the ‘residuary estate’ has deducted the value of the specific gift items of $1,201.
Nonetheless, in assessing the entitlement of the residuary beneficiaries, Mr Stewart and Ms Taylor have arrived at fairly similar estimates of entitlement of the residuary beneficiaries prior to allocating the provision amount for Amy. Thus (rounding to the nearest $1) the position is as follows [8]
| | Distribution without provision | Distribution following provision with equal burden | Distribution following provision with Geoffrey bearing burden | | Person | Stewart | Taylor | Stewart | Taylor | Stewart | Taylor | | Amy | Nil | $394,000 | $394,000 | | Geoffrey | $715,487 | $715,387 | $518,487 | $518,387 | $321,487 | $321,387 | | Findlay beneficiaries (each) | $178,872 | $178,847 | $129,621 | $129,597 | $178,872 | $178,847 |
On 8 September 2025, the proceedings were the subject of the mediation before Senior Deputy Registrar Bellach. Amy’s claim was resolved in principle with the parties needing to finalise terms. Subsequently, on 25 September 2025 there was a listing before Registrar Gerritsen.
On 30 October 2025, there was a further listing before Registrar Gerritsen with the matter then being referred to myself as Family Provision List Judge. On that occasion Mr Stewart alerted me to the fact that Amy’s claim had resolved in part. There were proposed Short Minutes of Order and an amount of provision of $394,000 agreed as between the plaintiff and the defendant and the residuary beneficiaries (noting that the orders had been co-signed by Sarah, Joshua and Aaron but Geoffrey and Brendan had not at that stage given signed consents). There was no agreement as to allocation of burden.
I referred the matter to chambers and in chambers (to crystallise issues regarding the extent to which the proposed provision amount for Amy was disputed and the burden issue and progress their resolution) I made the following orders:
- Directs the residuary beneficiaries to provide to the defendant executrix on or before 4 PM on 12 November 2025:
a. an indication as to whether the proposed settlement amount for the plaintiff and the sum of $394,000 is disputed; and
b. any evidence or further evidence which they seek to have placed before the Court in relation to the question of which part or parts of the deceased's residuary estate is to bear the burden of the proposed settlement amount.
- Directs the defendant executrix to serve on the plaintiff and provide by email to the associate to Meek J on or before 4 PM on 14 November 2025:
a. an indication as to whether the proposed settlement amount for the plaintiff and the sum of $394,000 is disputed; and
b. any evidence or further evidence which any of the beneficiaries seek to have taken into account in relation to the question of which part or parts of the deceased's residuary estate is to bear the burden of the proposed settlement amount.
- Directs the defendant executrix and the plaintiff to serve on each other and provide by email to the Associate to Meek J a short outline of submissions of no more than 5 pages addressing the burden issue, on or before 4 PM on 17 November 2025.
- Lists the matter for further mention before Meek J at 9 AM on 18 November 2025.
On 18 November 2025 there was a further listing before me. I made a number of observations with a view to attempting to see if there could be some pragmatic resolution of the matter [9] .
I indicated that I would stand the matter over for a period of time to enable the parties to see whether such a consensual resolution could be reached.
On 18 November 2025, my Associate at my request circulated to the parties, a draft of the proposed orders and notations that I was prepared to make in the matter. On 19 November 2025, the various legal representatives for the parties responded and, other than in very minor respects, the legal representatives were agreeable for me to formalise orders for provision for Amy leaving the question of burden to be further addressed.
On 20 November 2025, I made orders formalising the provision for Amy. The orders were as follows:
THE COURT IN CHAMBERS AND BY CONSENT:
[1. Notations - not reproduced for the purposes of this judgment]
[2. Affidavits read - not reproduced for the purposes of this judgment]
- Orders pursuant to section 59 of the Succession Act 2006 (NSW), that the plaintiff, Amy is to receive by way of further provision from the deceased's estate the sum of $394,000.00 (lump sum).
- Order that interest as for a legacy under the Probate and Administration Act 1898 (NSW) be payable on so much of the lump sum in Order 3 herein, as remains unpaid more than 7 days after the making of these orders.
- Orders, subject to further order, that in the first instance the lump sum is payable out of the whole of the deceased estate.
- Notes that at present there is dispute regarding who as between the beneficiaries will bear the ultimate burden of the lump sum.
- Orders that there be no order as to the plaintiff's costs with the intent she is to bear her own costs.
- Orders the defendant's costs, to date, be paid from the estate of the deceased on the indemnity basis.
- Stands the matter over to before Meek J at 9am on Friday, 28 November 2025 for further mention to give the parties an opportunity for:
a. a pragmatic approach to resolving the dispute between the beneficiaries regarding bearing the burden of the order for provision and resolving the matter prior to incurring the costs of filing Notices of Motion; and
b. avoiding a further contest in the matter which at least in the case of the beneficiaries will be at their own risk as to costs.
- Notes the Court gives strong encouragement to a pragmatic outcome or other and that if an agreement is reached interested parties regarding the bearing of the burden of the order for provision the parties are at liberty to inform the Associate to Meek J of that outcome and if appropriate the date will be vacated without further costs incurred for the appearance at that time.
On one view, it might be thought that technically, the orders I made on 20 November 2025 for the amount of provision in favour of Amy involved a separate determination of the provision issue. None of the legal practitioners sought orders for me to formalise that. Nonetheless, if any party wishes me to make (nunc pro tunc) orders for separate determination, I will, subject to giving the parties further opportunity be heard, be amenable to doing so.
On 28 November 2025 there was a further listing. The burden issue still being unresolved, I made the following orders:
THE COURT:
- Directs that any beneficiary who wishes to be joined to the proceedings to seek specific relief in relation to the bearing of the burden of the order for provision for the plaintiff file and serve a Notice of Motion by 4pm on Thursday, 4 December 2025.
- Notes that the parties and beneficiaries have provided to the Court the evidence on which they wish to rely in respect of the “burden relief”.
- Directs the defendant to prepare an indexed list of all the evidence and submissions of the parties and the beneficiaries in respect of the burden relief, such list to be provided by 4pm on Tuesday, 9 December 2025.
- Notes that in the first instance the matter will be referred to chambers to consider the burden relief issues reserving the right to relist the matter if need be for oral argument in the new year.
On 4 December 2025, Ms Schmidt on behalf of Sarah, Joshua and Aaron and Mr Jubb on behalf of Brendan served and e-filed separate notices of motion seeking substantially identical relief, which may be summarised as follows:
an order pursuant to r 6.27 UCPR [10] (alternatively r 6.24 UCPR) that the [Findlay beneficiaries] be granted leave to join the proceedings as defendants as to the question of the manner in which the provision is to be provided, and the part(s) of the estate out of which it is to be provided pursuant to s 65(1)(c) Succession Act;
an order pursuant to s 65(1)(c) Succession Act that Geoffrey bear the entirety of the burden of the order for provision for the plaintiff or alternatively a proportion in excess of 50% of his residual entitlement; and
costs.
Mr Stewart, pursuant to a direction made by me listed evidence relied upon in respect of the burden issue. There are affidavits sworn or affirmed from each of:
Brendan (3 September 2025);
Aaron (5 September 2025);
Joshua (5 September 2025);
Sarah (5 September 2025 and 14 November 2025);
Geoffrey (11 November 2025); and
Mark Ford (17 November 2025).
The specific listing of materials in relation to the burden of the relief has been set out in a schedule by Mr Stewart.
However, as is evident from the orders I made on 20 November 2025, apart from reading the beneficiaries’ affidavits, I had, for the purposes of being satisfied that it was appropriate to make the order for provision for Amy, read other affidavits listed in those orders, in particular Amy’s affidavit in support of her family provision claim [11] and the defendant’s two affidavits [12] .
Amy’s affidavit in support of her family provision claim sets out some background details that I took into account for the earlier orders, recording some of the basic historical background (not in serious dispute) as to the circumstances in which Amy came to live with the deceased during the period from approximately 2011 until the deceased’s death.
The defendant’s two affidavits set out some basic matters regarding the estates of the deceased, Margaret and Karen supported by probate documentation about which seemingly there is no real dispute.
The general position in respect of family provision claims is the applicant must only join as a defendant any administrator, unless the plaintiff is the sole administrator of the estate [17] and that other persons are not joined as defendants unless there is “sufficient reason for doing so” [18] . Historically, this served the purpose of discouraging any person other than the executor from making themselves responsible for defending the deceased Will [19] .
That general position reflects both commonsense and efficient and cost-effective litigation. Nonetheless, there are some circumstances in which there is “sufficient reason” for joinder of other defendants including beneficiaries. This includes joinder in circumstances where:
a person holds property which an applicant seeks to have designated as notional estate [20] ;
an affected beneficiary is entitled to the majority of the estate or very substantial benefits under the Will or on intestacy, and case-specific factors favour permitting the beneficiary to specifically defend his, her or its entitlement [21] ;
the parties to proceedings have provisionally agreed on an outcome but one or more affected beneficiaries seek to be heard on the issue of whether orders should be made in accordance with the proposed agreement [22] ; and
(relevantly here) an issue arises regarding which part(s) of an estate and affected or potentially affected beneficiaries ought to bear the burden of a proposed order for provision. [23]
Ordinarily, sensible procedural arrangements are worked out to ensure that the estate is not inflicted with many sets of costs. That includes what is sometimes described as a ‘Carriage order’, where the joinder permits the beneficiary to have the conduct of the defence of the proceedings [24] and with the intent that the administrator plays a limited submitting or observational role [25] , with costs of the joinder reserved or otherwise determined subject to further or other order.
In cases where beneficiaries are joined in addition to the administrator, depending upon the circumstances in which the joinder has been made, either of or both the administrator and the beneficiary may be at some risk as to costs [26] .
Ms Taylor submitted that Sarah, Joshua and Aaron should be joined pursuant to r 6.27 UCPR or alternatively pursuant to r 6.24 UCPR by the Court of its own motion citing Webster v Strang; Steiner v Strang (No 2) [2018] NSWSC 1411 (Webster No 2) [27] . In Webster No 2, the Court did not join the relevant beneficiaries of its own motion but rather consequent upon an application by them [28] . Nonetheless, there are various sources of power for joinder including as I have mentioned, Sch J – SA subcl 1(b) and those referred to by Ms Taylor.
The deceased lived in Blacktown in a property owned by her parents Norman and Margaret for many years. By at least 2011, notwithstanding that the deceased was working full-time, the deceased was caring for her parents who by that stage were very elderly [32] .
Amy left school after completing year 12 but had no further education or vocational training. In around October 2011, she moved into the deceased’s home as she was unemployed after leaving her job at Woolworths [33] . Amy remained living with the deceased until her death, a period of approximately 12.5 years.
On 16 April 2013, the deceased made a Will which appointed Geoffrey and Karen as joint executors, gave Karen the dress ring (with a gift over to Sarah) and divided the residue of her estate equally between Geoffrey and Karen [34] .
Over the course of 2015, the deceased’s parents suffered from multiple medical issues and in November 2015, both of the deceased’s parents passed away within two days of one another [35] . Margaret survived Norman and ownership of the Blacktown property passed to Margaret [36] .
Probate of Margaret’s Will dated 23 December 2010 was given to the deceased on 16 February 2016, she being the named executrix pursuant to the Will. Margaret left her estate, which comprised the Blacktown property (est. $500,000) and proceeds of a Westpac bank account (approx. $48,000) equally to the deceased, Geoffrey and Karen [37] .
In 2016, it appears that Geoffrey and Karen decided that they would allow the deceased to remain living in the Blacktown property [38] .
In any event, in 2016, subsequent to the death of the deceased parents, renovations were undertaken on the house [39] . Quite what arrangements existed as between the deceased, Geoffrey and Karen in respect of such renovations is not disclosed by the evidence.
From 2022, according to Amy, Karen’s children pressed to receive their inheritance from their mother’s estate, which included the Blacktown property [40] .
On 8 June 2022, probate of Karen's will dated 10 August 2021 was granted to the deceased by the Supreme Court of Queensland [41] (with a reseal being obtained by the deceased in New South Wales (NSW) on 2 March 2023 [42] ). Karen’s Queensland estate was comprised of a property at Lockyer ($400,000) and a small amount of funds in a Heritage bank account (approx. $3,750). Karen’s NSW estate was comprised of the one-third share in the Blacktown property ($266,667) and an interest in a cemetery plot of Sean at Rookwood (ascribed nil value) [43] .
Pursuant to Karen’s Will, she gifted [44] :
$35,000 to Madison Jane Findlay (Madison), William Oliver Lucas Findlay (William) and Eli Alexander Findlay () as tenants in common in equal shares upon them attaining the age of 30 years;
Amy’s claim was premised upon eligibility as being a dependent member of a household of which the deceased was a member [53] . I was satisfied that there were factors warranting the making of her claim [54] .
The material which I read for the purposes of making Amy’s provision orders set out Amy’s financial circumstances which may be briefly summarised as follows. Amy works as a cleaner and is currently renting in Blacktown. Amy outlined her financial circumstances in an affidavit in support of her family provision claim. Her assets being: (a) bank account $25,000; (b) REST superannuation (est.) $94,000; (c) Australian Superannuation (est.) $33,000; and (d) Hyundai Accent car $15,000. Her income was net $43,628 per annum. She had a personal loan with a balance of approximately $16,000. She suffers from a slipped disc in her back, consequent upon working on the renovations at the Blacktown property.
Each of Aaron, Joshua and Sarah in their affidavits took issue with some aspects of Amy’s evidence and responded to paragraphs of Amy’s affidavit in chief. I read those affidavits as part of the materials in making orders in respect of Amy’s claim. Nonetheless, they consented to the amount of the proposed provision for Amy [55] . Self-evidently there was no formal in-court hearing of Amy’s claim. Nor so far as I am aware did the legal representatives suggest that there ought to have any particular determination respect of the issues in which Aaron, Joshua and Sarah dispute or takes issue with Amy’s evidence.
Ms Taylor submitted that Amy filed a Notice of Claim on 23 June 2025 with the consequence that her claim was made out of time and that Ms Taylor’s clients (Sarah, Joshua and Aaron) were not consulted as to the claim being brought out of time [56] . The submission is anomalous and I assume she has inadvertently confused the commencement of the proceedings by Amy’s Summons filed on 29 April 2025 (within the 12 month period permitted for her to make a claim) with the preparation and service of a Notice of Claim dated 23 June 2025 (required to be served upon certain persons including Ms Taylor’s clients is residuary beneficiaries [57] ).
In 2022, Geoffrey was diagnosed as suffering with Parkinson’s disease which he is informed by his treating doctors, has no cure and is degenerative. His symptoms are being managed by medication. That is his only significant ongoing medical condition. However, in the last 3 years he has had two operations on his prostate and an operation for a hernia.
Wendy has not been in employment since 1989. Geoffrey is self employed as a handyman working part-time approximately 2-3 days per week. Since his diagnosis of Parkinson’s, he has progressively reduced the number of hours he works per week and has become selective in relation to the type of work he takes on. He is unable to undertake any work which requires the use of the ladder or heavy work such as mowing. He only takes on small jobs involving light work such as replacing fly screens, changing locks, and replacing toilet seats, showerheads and taps. He estimates that he will not be able to work for longer than another 2 or 3 years.
They have collective assets totalling approximately $1,114,895, being (house $300,000, superannuation $287,391, RAV 4 $63,000, furniture $10,000, bank accounts $427,245 and shares $27,259). They have no liabilities. Their income totals approximately $882 per week and their expenses total $730 per week.
Brendan is married to Rebecca. They, their 3 children and his stepson (ages not specified) live in an unencumbered property solely owned by him.
Brendan and Rebecca have assets totalling approximately $1,015,574 (house $767,000, 2008 Ford car $1,500, 2018 Holden car $8,000, household chattels $6,000, Brendan’s bank account $4,500, Rebecca’s bank account $3, Brendan’s superannuation $220,000, and Rebecca’s superannuation $8,571).
Brendan identifies impending expenses totalling approximately $97,522 - the most pressing of which appears to be an estimate for roof replacement to the house due to storm damage in the sum of $70,587.
Brendan is unemployed and says he will be unable to obtain employment in the future due to his medical conditions (which have not been identified). Nonetheless, Brendan has income protection insurance due to a disability which appears to provide regular income. Their total income is approximately $66,986 (Brendan $27,816 and Rebecca $39,170) per annum.
Brendan and Rebecca have recurring ‘liabilities’ (expenses) totalling approximately $68,679 per annum.
Aaron has three children aged 19, 14 and 12 years. He is separated from his children’s mother and currently going through a property settlement and is not currently partnered.
Aaron’s current assets total approximately $505,517 (being relevantly a property at Goomeri $151,000, property at North Toowoomba $206,500, caravan/cabin site $81,500, shed contents $25,000, 2008 Ford vehicle $1,500, 2019 Great Wall vehicle $10,017, furniture and household goods and equipment $20,000, and bank account funds $10,000). In addition, he has superannuation approximately $217,306. He owes a personal loan of approximately $30,000 to National Australia Bank.
Aaron indicates that the Goomeri property is in fact a light storage shed and he is unable to generate income from it.
He has no tertiary or trade qualifications but is currently employed as a pest control technician on a full-time basis. His current weekly income is approximately $1,680 gross. His current weekly expenses are approximately $1,830 (including tax). He manages the (approximate) weekly income deficit of $150 by juggling his expenditure to meet his requirements.
One of his listed expenses is a rental payment for the couch to sleep on in the Brisbane area. When he is not required to stay in Brisbane for work, he stays in the cabin at the caravan park.
He indicates that he would like to be able to live in a home so he can spend time with his children. Aaron had intended to move into the Toowoomba property (which he says he purchased with the inheritance he received from his mother including he says a portion of her inheritance from his grandmother’s estate) but it requires a lot of maintenance and repair and is currently “unliveable”.
Aaron has a number of health issues. He has been diagnosed with adjustment disorder, ectopic heartbeats, fatty liver disease and obesity. He has been told that he is a haemochromatosis carrier. He asserts the pest control poison that he uses causes symptoms that can affect his thyroid. He suffers from a shoulder and neck injury. He undergoes counselling through Open Arms though he indicates that the service is limited and does not provide enough counselling visits to meet his needs.
Aaron’s daughter Madison is autistic and has been diagnosed with Hemihypertrophy and Nystagmus. His son Eli is autistic and has been diagnosed with ADHD.
Aaron expects his financial circumstances to be negatively impacted due to his property settlement. He says that his asset position is largely as a result of receiving an inheritance of $184,000 from his mother’s estate. He indicates that he would benefit from physiotherapy. He has false teeth which require replacement. He cannot afford private health insurance and indicates that he would benefit from that. He has no financial resources to provide for the exigencies of life.
Joshua is engaged to Renee (age 40) and they have 3 children together currently aged 5, 4 and 3 years old.
Joshua’s assets total approximately $649,000 (property at Helidon $600,000, Isuzu vehicle $30,000, caravan $15,000, trailer $4,000, furniture and household goods and funds in bank accounts (nominal value). In addition, Joshua has superannuation of approximately $130,000 although his fiancée has no superannuation. Joshua has a mortgage of approximately $145,000.
Each of Joshua and Renee are deaf. His deafness was due to meningitis when he was a baby. He has a right Cochlear implant. Renee’s deafness is due to a brain tumour which Joshua indicates will apparently return at some time although she is being monitored through the public health system.
Joshua says he has been diagnosed with ADHD and suffers from hepatic steatosis, hydrocephalus, haemochromatosis, gastro-oesophageal reflux disease (GERD) and peptic ulcer.
He is prescribed a Ventolin inhaler which he uses as required. He takes daily medications for the peptic ulcer and GERD. Nonetheless, his medical conditions cause him to vomit daily and [to use the toilet excessively.
Joshua has previously suffered a shoulder injury and broken back bone and leg bone, causing him ongoing pain.
Renee does not work and cannot drive. Joshua and she have a total weekly income of approximately $1,680. Their estimated weekly expenses total approximately $2,403. They manage the (approximate) weekly income deficit of $723 by juggling their household expenditure to meet their requirements.
Joshua indicates that it took him 5 years to save a deposit to purchase the property and while saving for the deposit he did not go on holidays and lived more frugally than he does now. When he received his inheritance from his mother’s estate (approx. $184,000), he applied $100,000 to reduce his mortgage. He also purchased solar panels for his house, added 4 water tanks and used some funds to purchase his current motor vehicle and pay bills and expenses for his family.
He indicates he has no financial resources to provide for the exigencies of life and cannot afford to travel to New Zealand (Renee’s homeland). Having regard to the above ailments, he is concerned about his capacity to continue to work. They cannot afford private health insurance although he indicates they would benefit from it given their health issues.
Joshua indicates that the deceased was like a “second mother” to him and spoilt him and his siblings at each Easter and Christmas. He provided some assistance to the deceased when his grandparents passed away in the removal of carpet at the Blacktown property, cleaning up the shed and disposing of certain unused items. Further, before his children were born, he assisted in cutting down trees and mulching gardens before the property was renovated.
Sarah is in a relationship with Rodney (age 46) and they have two children aged 7 years and nearly 2 years.
Their assets total approximately $1,059,730 (house $810,000, 2016 Hyundai i30 $7,000, 2013 Mazda BT50 $5,000, furniture and household goods $10,000 funds in bank accounts $43,000, and an Offset account (Sarah’s inheritance) $184,730). In addition, each of Sarah and Rod have superannuation, respectively $183,493 and $248,995.
They have some liabilities, being a mortgage ($167,787) and ZIP ($500).
Sarah has health issues including Hashimoto’s disease and haemochromatosis. She takes medication daily to function. She has had a long-standing shoulder injury, suffers from chronic fatigue and is overweight due to chronic disease. She indicates that she will need surgery on her wrists (due to carpal tunnel syndrome), her shoulder and for weight loss. She suffers from anxiety and depression which she says is from trauma in her childhood and over the last 7 years after having children and losing her parents. She has had to seek ongoing therapy.
Rod is a severe asthmatic requiring medication. Since having his gallbladder removed, he suffers ongoing stomach acid reflux and heartburn for which he takes medication daily.
Their daughter Poppy is an asthmatic and is dairy intolerant requiring constant medication and expensive food choices. Their daughter Daisy suffers from lung related issues, has had a number of hospitalisations and requires an immediate oxygen and asthma care plan. Daisy also has some ongoing fluid buildup in her ears and speech issues for which it appears they are seeking assistance from an ENT specialist and speech therapist.
Sarah is employed as a retail store manager and Rod is employed as a retail store supervisor (earning respectively about $1,406 and $2,308 gross per week, totalling $3,714). Their average weekly expenses total approximately $3,337.
Sarah indicates that she and Rob would like to have another child and is acutely aware that they may need to use IVF. Their vehicles need to be replaced as the costs of maintaining and repairing them is starting to become too costly.
Sarah also deposes that the deceased was like a “second mother” and provided emotional support to her. The deceased stayed with her on several occasions, including for a couple of weeks after the birth of her first daughter and after Karen passed away.
Questions regarding the bearing of the burden of an order for provision are an essential part of orders for provision and have been discussed in caselaw under each of the respective family provision regimes that have been applied in NSW under the T**FM Act (backdated to commence from 7 October 1915) [58] , the Family Provision Act 1982 (NSW) (FP A****ct), commencing in September 1983 and the Succession Act commencing in March 2009.
Self-evidently, in every family provision case since legislation was introduced in 1916, where provision has been ordered, a correlative determination has been made or outcome effected (whether by positive decision of the Court or in accordance with the default position under general law or legislation) regarding what parts of the estate and beneficiaries’ entitlements bear the burden of that provision.
Nonetheless, historically, there have been relatively few cases in which the question regarding the bearing of burden of provision becomes a strongly contested issue with the consequence that each of Street J [59] in 1969 and Holland J [60] in 1981 commented upon the paucity of authority addressing the issue of how the Court should exercise its powers regarding the allocation of burden.
The development of law regarding the allocation of burden of family provision orders has evolved through the respective family provision regimes as follows.
Each of Mr. Davern Wright and Messrs de Groot & Nickel [61] referencing New Zealand caselaw observe that the historical position initially in family provision cases was that an order of provision is in the same position as any other charge lawfully imposed on an estate and if there is residue, any provision must be borne by residue.
Legislative response to the New Zealand caselaw wrought changes such that in New Zealand and relevantly when the TFM Act was enacted in NSW, the effect of the TFM Act was that unless the Court otherwise ordered, the incidence of the provision was to be borne rateably as between the persons beneficially entitled to the whole of the deceased’s estate (i.e. in proportion to the values of their respective interests in such estate) rather than initially or principally on residue [62] . Mr. Davern Wright observed that this meant that the payment would fall rateably on the whole of the estate of the testator [63] .
Under the TFM Act s 6 provided:
(1) Every order making any provision under this Act shall inter alia—
(a) specify the amount and nature of such provision;
(b) specify the part or parts of the estate out of which such provision shall be raised or paid, and prescribe the manner of raising and paying such provision—
(c) state the conditions, restrictions, or limitations imposed by the court.
(2) Unless the court otherwise orders, the burden of any such provision shall as between the persons beneficially entitled to the estate of the deceased person be borne by those persons in proportion to the values of their respective interests in such estate: Provided that the estates and interests of persons successively entitled to any property which is settled by such will shall not for the purposes of this subsection be separately valued, but the proportion of the provision made under this Act to be borne by such property shall be raised or charged against the corpus of such property.
In one of the first reported cases, Simpson CJ in Eq exercised the power under s 6(2) TFM Act to order ‘otherwise’ by departing from the prima facie position that a provision order be borne by the beneficiaries rateably. His Honour acceded to a proposal offered by one of the beneficiaries to bear 7/8ths of the burden of an order for provision if another beneficiary bore the 1/8th balance [64] .
However, as noted, in the first 50 years after the TFM Act was introduced there were few, if any, cases in which the principles on which the Court would act to allocate the burden of an order for provision were discussed in detail [65] .
Seemingly the first case in which the principles were identified, or at least the subject of any detailed consideration, was the decision of Street J in Re Seery [66] .
His Honour indicated that a party seeking such an order bore the onus of demonstrating that the case was an appropriate one for the exercise by the Court of its discretion to displace the statutory rule in s 6(2) TFM Act [67] . The discretion is to be exercised “according to the rules of reason and justice” [68] with due regard to the whole circumstances of the case. The considerations informing the exercise of the discretion included giving weight to what a hypothetical, wise and just testator would have done and to what the instant testator would have wished; though neither being an exclusive consideration [69] .
Subsequently, Holland J in Kleinig v Neal [70] , endorsed the approach taken by Street J in Re Seery.
Section 19 of the Bill provides-
(1) The burden of an appointment under this Act that provision be made for an eligible person out of any property in the estate of a deceased person or out of any property subject to the statutory trust shall, subject to this Act, be borne by such of the persons entitled to an interest in the estate or notional estate of the deceased person, and in such proportions, as the Court thinks fit.
(2) For the purposes of subsection (1), the Court may appoint that such contribution or adjustment as the Court thinks fit shall be made by or between the persons entitled as mentioned in that subsection.
(3) Where persons are successively entitled to interests in any property in the estate of a deceased person or in any property subject to the statutory trust, those interests shall not, unless the Court otherwise orders, be valued separately but the proportion of any provision to be borne by those persons out of those interests shall be raised or charged against the corpus of the property.
[(4)-(7) not reproduced for the purposes of this judgment - but addressed provisions regarding the giving of prescribed notice to a person affected by a proposed order for provision and an opportunity to be heard]
With modifications which flow from our recommendations relating to notional estate,1 section 19 of the. bill states the substance of section 6 (2) of the Act. The latter provision is still in the form in which it was enacted in 1916 a…. we see no reason for proposing any major change. In most cases, an appointment for provision will specify that the burden of the provision is to be borne rateably in proportion to the value of the beneficiaries’ interests. But the power to apportion the burden of the provision other than rateably is a necessary power if, in special cases, the Court is to avoid causing unnecessary loss to a person [73]
That comment does not appear to be entirely accurate. The position under the TFM Act involved a default position such that the burden would be borne rateably as between the persons beneficially entitled to the whole of the deceased’s estate. What was proposed under the draft Bill was not a statutory default position but rather a power for the Court to make a decision as it thought fit with mechanical provisions to enable notice to be given and affected persons an opportunity be heard.
As to the exercise of the Court’s discretion, the Commission stated [74]
Section 19 does not indicate how the Court’s discretion is to be exercised. We do not think that the omission detracts from the efficiency of the section. Section 6 of the Act shares a like deficiency, but the Court applies the section without apparent difficulty. The words of Street C.J. in Eq. are pertinent3-
Apart from discarding considerations entirely extraneous I do not consider that the Court’s discretion under section 6 (2) is to be confined by attempting precise definition. Weight may undoubtedly be given to what a hypothetical wise and just testator would have done; weight may also be given to what the instant testator would have wished; neither is exclusive of the other. The discretion is to be exercised “according to the rules of reason and justice” (Sharp v. Wakefield, [1891] A.C. 173; [1886-90] All E.R. Rep. 992, per Lord Halsbury at page 179), with due regard to the whole of the surrounding circumstances.
A party seeking a departure from the statutory rule in section 6 (2) bears the onus of demonstrating that the case is one appropriate for the exercise by the Court of its discretion.
It is evident from a comparison of the (draft) Bill commented upon by the Commission in 1977 and the ultimate form of the FP A**ct that s 13 in substance reflects the draft Bill.
Under the FP A**ct, s13 provided:
Where the Court makes an order for provision out of the estate of a deceased person it may specify the beneficial entitlements in that estate which shall bear the burden of that provision and, in relation to each of those entitlements, the part of the burden which it shall bear.
Mr Dickey writing in 1992, in addressing the position, made various observations [75] (omitting footnotes) including:
whilst often the Court exercises the discretion by taking into account the likely wishes of the deceased as to incidence of burden there is no requirement that the Court consider this or any other matter the Court’s discretion being at large;
it is not uncommon for the Court to decide that the burden of the order should fall upon beneficiaries to whom the deceased owed no moral duty of provision and in particular strangers to the deceased such as charities;
alternatively the Court may decide that the burden should fall upon the residuary estate, or upon beneficiaries to whom the deceased had been particularly generous in his or her Will; and
it is reasonable to say that the Court should not ordinarily allow the burden of a provision order to result in a gift to a beneficiary if he or she is an eligible applicant for family provision being reduced below the level which makes adequate provision for his or her proper maintenance and support.
In Cantrell v Williams [2004] NSWSC 579, Young CJ in Eq (citing Re Seery and Kleinig v Neal) indicated that s 13 FP Act conferred on the Court a very wide discretion to be exercised according to the rules of reason and justice, with due regard to the whole of the surrounding circumstances, and that the most appropriate way of looking at the case is to ask what the testator would more likely to have done had he been faced with the situation that emerges after the decision of the Court [76] .
In Hoobin v Hoobin [2004] NSWSC 705 (Hoobin), White J noted that the discretion is a wide one and is to be exercised having regard to “rules of reason and justice” with due regard to the whole of the surrounding circumstances [77] .
His Honour, whilst noting that in an appropriate case weight may be given to what the particular testator or deceased person would have wished [78] , observed that [79]
Where, as here, the Court is not satisfied that the deceased’s likely preference would be informed by those rules, his likely actual preference carries little weight. Postulating a hypothetical wise and just testator does not provide particular guidance as to how the discretion should be exercised.
Hoobin involved 3 proceedings between the deceased’s second wife and his children from his first marriage for whom he made no provision [80] . On the facts, White J made the assessment of allocation of burden of orders for provision “principally, but not solely, by reference to the proper claims on the deceased’s bounty” of the second wife and the two children who did not press family provision claims, which His Honour observed included the consideration of their financial circumstances [81] .
In Foley v Ellis [2008] NSWCA 288, the Court of Appeal, in allowing an appeal against dismissal of a family provision application and making an order for provision determined pursuant to s13 FP Act that the burden of the provision should be borne in equal shares by the beneficial entitlements of the applicant’s siblings [82] , but without any detailed discussion of principles informing allocation of burden.
The Commission in its Report 110 (2005) – Uniform Succession Laws: Family Provision (May 2005) (LRC Report 110) addressed the issue of the nature and burden of family provision orders.
The draft clause of the Bill considered by the Commission was relevantly [83]
16 (1) A family provision order must 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.
Clause 16(1) sets out the matters that the Court must specify in making a family provision order. The paragraphs are based chiefly on Administration and Probate Act 1958 (Vic) s 97(1) [85] .
(1) A family provision order must specify-
..
(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
Under the Succession Act, a family provision order takes effect, unless the Court otherwise orders, as if the provision was made in a codicil to the deceased’s Will (if the deceased person made a Will), or in a Will of the deceased, if the deceased died intestate [86] . Possibly, there may be provisions of a deceased’s Will which address payment of charges on the estate including (if sufficiently worded), burden of orders for provision. However (absent that), generally and contrary to the position under the TFM Act, there is no prima facie or default position in family provision claims under the Succession Act as to how a provision order is to be borne. Instead, the Court is tasked with addressing the question of burden without prima facie presumptions and must specify the incidence of burden in the ‘family provision order’ [87] .
The purpose of s 65(1)(c) is obvious as beneficiaries will be impacted if their share of the estate is burdened and clarity is required for the due administration of the estate [88] . Whilst many family provision orders are specified as being payment of a “lump sum” of money [89] , the type or nature of orders that may be made is varied and are potentially numerous [90] . Lack of clarity about burden of provision can lead to disputed issues of construction. Whilst, specifying in the s 65 order that the further provision is to be a “legacy” without also specifying the part of the estate bearing the “legacy” might, to some minds be sufficient to indicate that it will come out of residue [91] , but that notion may only carry one so far. That is because there may be some provisions of the Will which bear upon the issue, and definitionally payment of debts, liabilities and relevantly other devises or legacies are discharged from the assets of an estate prior to ascertaining residue [92] . In any event, there are different types of legacies with different implications for how the legacy is to be paid or effected out of the estate [93] .
The statutory regime for discharge of “funeral, testamentary and administrative expenses debts and liabilities” in the case of solvent [94] estates payable in the order mentioned in s 46C and Part 2 of the Third Schedule of the Probate and Administration Act 1898 (NSW) (PA A****ct) [95] , does not in express terms deal with subjecting estate property to obligations to pay legacies. As noted by Bryson AJ, a rather complex body of law has developed in the interpretation and application of these PA A**ct provisions [96] . The prospect that these PA A**ct provisions apply to application of assets in payment of legacies (as well as payment of liabilities) was discussed by Bryson AJ at length [97] and is by no means straightforward.
It is unnecessary to address the matter more deeply. It suffices to observe that all of the above matters confirm the sensibility of the Court being specifically required to address the question of allocation of burden of provision orders rather than leaving burden outcomes to the vagaries of the general law (noted above) or the problematic application of other general statutory provisions.
the Court of Appeal’s decision in Strang v Steiner requires the Court to consider, and give great weight to, evidence of the respective and relative financial needs of beneficiaries whose provision under the Will could potentially bear the burden of any order [109] .
Obviously “respective and relative financial needs of beneficiaries” is a consideration. The Court of Appeal in Strang v Steiner [110] did not mandate great weighting of financial needs, and the Court does not start from such a predisposition of prioritising of financial needs [111] . Nonetheless, it can be accepted that there are many cases in which financial (or material) needs are a highly material and significant consideration. To some degree that is evident in Strang v Steiner, and contextualised (in light of the ultimate burden decision in Lester) likely what was intended by the remarks extracted above. Thus, weighting or prioritising ‘financial needs’ is not a statutory mandate or legal axiom. Rather, its materiality might arise (by dint of the unique facts in any given case) in a judge making the overall evaluative decision regarding burden . In similar vein, current commentary in de Groot & Nickel regarding decisions on burden should be seen as examples of burden allocation, rather than presumptive indications as to how burden allocation is to be made [112] .
Fourthly, the question of allocation of burden whilst in many (and perhaps most cases) is addressed on the hearing and determination of the s 59 application for a family provision order, it does not necessarily have to be addressed at that time. Indeed, in the classic case of Kleinig v Neal, the hearing of the question regarding allocation of burden of provision was heard 10 months [113] after the initial hearing of the TFM Act application was determined [114] . The burden decision in Strang v Steiner, was delayed for just under 5 months after the decision on an order for provision. Nonetheless, generally speaking, if the determination of burden is not contemporaneous with determination of the order for provision, it is obviously ideal that the question of the burden should be determined relatively soon after or proximate to the determination of the order for provision. In such situations, where the question of allocation of burden is addressed separately from and after determination of the amount of provision, it would be appropriate for the Court to consider making orders for separate determination of those issues pursuant to r 28.2 UCPR, including, if necessary, orders nunc pro tunc.
Fifthly, in the event that the question of allocation of burden is heard subsequent to the s 59 determination of a provision order, one might think that it is unlikely that the burden determination could be made on the basis that it is in fundamental conflict with the basis on which the Court reached the state of satisfaction for the purposes of the s 59 determinations, or that evidence could be admitted for the purposes of contradicting the basis on which the Court decided the s 59 questions [115] . However, I express no concluded view regarding that as it was not the subject of any submissions.
Mr Stewart also indicated that the defendant is ‘neutral’ with respect to the burden issue but nonetheless in circumstances in which 4 of the 5 residuary beneficiaries seek to have the other residuary beneficiary (Geoffrey) bear the whole burden of the order for provision (noting that Geoffrey is unrepresented), Mr Stewart (helpfully) has provided submissions on behalf of the executrix to assist the Court in setting out a contradictory case [134] .
Mr Stewart submitted that:
unlike Pargeter the terms of the deceased’s Will did not reveal an elaborate testamentary scheme and that apart from a number of specific gifts of personalty, a distribution of residue was simply through sibling family lines with Karen’s children sharing equally one half of residue [135] ; and
the deceased’s testamentary choice in the context of the surrounding circumstances of the Will (the deceased’s knowledge of her family) is a compelling reason as to why each beneficiary should bear their proportion of the burden in accordance with the scheme of the Will [136] ;
Mr Stewart further submitted
21. Around 19.68% of the residue of the deceased's estate was derived from the [xx] Avenue sale proceeds. The relevance of this is twofold: (a) Geoffrey and the Findlay's have already received amounts as an 'inheritance' from an asset that was their parents/grandparents; and (b) the bulk of the deceased's estate was derived from her working full time for most of her adult life. Given this, it is not understood how Aaron, Joshua and Sarah posit that they each have greater claims on the deceased' s bounty compared to Geoffrey. Their claims are in effect the same - Geoffrey because he was a sibling of the deceased and Aaron, Joshua and Sarah because the deceased's other sibling (their mother) passed away before the deceased.
22. It may be that Aaron, Joshua and Sarah will say the Little side of the family is better off if Amy receives provision and presumably Geoffrey will leave his estate to Amy and Kylie. Leaving aside the unpredictability of life, such a proposition is, with respect, somewhat misconceived because if Karen was still alive then it is difficult to see how she and Geoffrey as residuary beneficiaries would not bear the burden of any provision equally in that case. This position is supported by consideration of the deceased's prior will dated 16 April 2023, annexed to Sarah's affidavit dated 14 November 2025.
Mr Stewart analysed the evidence of the residuary beneficiaries as regards to the competing needs and submitted (in summary) that each of Brendan, Sarah and Geoffrey “has no real competing need”, but accepted that that Aaron “would properly be said to have real competing needs as would Joshua [137] .
Nonetheless ultimately, he submitted that where no residuary beneficiary is particularly ‘well off’, the respective financial positions do not support the making of an order that Geoffrey bear the entirety of the burden of the provision [138] and that the effect of the orders proposed by Aaron, Joshua and Sarah “offends both reason and justice” [139] .
Ms Taylor submitted that the burden of the amount of the provision order should be apportioned wholly or majorly to Geoffrey [141] . She referenced some case law that I have referred to above including Webster No 2, Hoobin*, Pargeter* and Strang v Steiner [142] and outlined the circumstances of her clients and Geoffrey [143] .
Specifically, Ms Taylor submitted that:
Geoffrey’s financial position shows that he has little need weighed against that of her clients [144] ;
her clients’ parents have both passed away, any inheritance they have received is accounted for in their own financial positions and they are not expected to receive any other inheritance save for the estate of the deceased [145] ;
her clients, whilst not impecunious, each require ongoing healthcare for serious health conditions, live nominally and within their means without extravagancies, have children who are dependants, are earning an income less than, equal to or just in excess of their weekly expenses and have no parental support [146] ;
her clients have need in excess of that of Geoffrey [147] ;
her clients each depose to a close relationship with the deceased, yet Geoffrey has not provided evidence of that kind [148] ;
the deceased did not include Geoffrey’s children as direct beneficiaries, save for personal effects [149] , yet they stand to benefit from Geoffrey’s estate which will grow sizeably from the distribution from the deceased’s estate [150] ; and
the deceased intended her estate to be divided in one part to Geoffrey and his family and the other part to Karen and her family [151] .
Mr Jubb submits that the provision for Amy should be paid from Geoffrey’s share [152] .
Mr Jubb concurred with the evidence of Sarah, Joshua and Aaron and the submissions made by Ms Taylor “as they relate to Brendan” [153] . He outlined Brendan’s circumstances [154] and in addition says that Geoffrey had little need compared with that of Brendan, as Brendan will not receive inheritance from his parents other than the gift provided in the deceased estate and asserts that the payment to Amy (solely) from Geoffrey share is appropriate because she is Geoffrey’s daughter and such allocation of burden is consistent with the implied intention of the deceased to split her bounty between each of Geoffrey’s and Karen’s families [155] .
The Findlay beneficiaries appear to have assumed that the default position is that Geoffrey should bear 50% share of the burden of the order for provision, unless the Court specifically orders otherwise. I reject the submissions of Ms Taylor and Mr Jubb that Geoffrey’s share of residue should bear the entirety of the burden of the order for provision for Amy. Nonetheless, I consider that Geoffrey’s share of the residuary estate should bear a greater than 50% share of the burden of the provision order. Principally, my reasons are as follows.
First, to the extent that the submissions on behalf of the Findlay beneficiaries assert or emphasise that significant weight should be placed upon the deceased’s so-called testamentary scheme that the respective families of Geoffrey and Karen should each receive one part of her estate, ignores the reality that the deceased’s Will did not adequately provide for Amy and the (agreed and ordered) provision for Amy represents a significant departure from the deceased’s so-called scheme.
Whilst undoubtably the testamentary scheme of the testator is a consideration the Court may have regard to in allocation of burden, the burden jurisdiction is not to be exercised to produce, in light of the order for provision, a per stirpes distribution to attempt to put respective generational families (in this case families of Geoffrey and Karen) in a position where each family unit receives overall an equal part or division of the deceased’s estate.
Secondly, and relatedly, the fact that the deceased did not include Geoffrey’s children as direct beneficiaries, save for personal effects, is per se, in light of the provision order for Amy and what I have observed above, not compelling. Further, whatever Ms Taylor or the Findlay beneficiaries may assume about the relationship between Geoffrey on the one hand and Amy and Kylie on the other, there is no strict evidence that they actually stand to benefit from Geoffrey’s estate, either during Geoffrey’s lifetime or upon his death, let alone any evidence of the extent of such benefit.
Thirdly, whilst the Findlay beneficiaries’ parents have both passed away, and any inheritance they have received is accounted for in their own financial positions, it would not be correct to assume that they have no expectation of any inheritance other than from their parents. There is simply no evidence on the matter and indeed no evidence that Geoffrey has any expectation of any other inheritance. Leaving aside the benefits under the deceased’s Will, without any clear evidence, it is well-nigh impossible to forecast what other financial benefits might be received by any of the residuary beneficiaries in the next few years, let alone the remainder of their life. Overall, I do not regard future prospects of inheritance or benefits as being a compelling factor, and I have assessed the matter on what (existing) evidence there is about the respective financial positions and material needs of the residuary beneficiaries.
Where an ‘otherwise order’ is made, the normal costs order seems to apply; that is, in most cases, the costs of all parties are ordered to be paid out of the estate.104 In practical terms, this means that the costs are payable out of the residue. Occasionally, the beneficiary or beneficiaries bearing the burden of the order also have to bear the costs. This occurred in *Cook v Webb,*105 Re Wright106 and *Clarke v Clark,*107 but in all three instances the beneficiaries concerned were major beneficiaries of the estate. Even so, such an order must be regarded as somewhat exceptional. For another exceptional order, where the burden of the order fell on minor beneficiaries’ shares, on notional estate (effectively moneys held by the other beneficiaries) and on the residue that was created by capping the costs of the plaintiff, see *Moon v Abrahams.*108
In *Dillon v Public Trustee NZ,*109 the Privy Council ordered that the costs of the successful appellant (the widow) ‘here and below’ were to be paid by the other respondents (a son and two daughters). Under the will, the son and daughters received assets worth £3875 and the widow received assets worth £1416. Again, the son and daughters, who were the beneficiaries bearing the burden of the order, also bore the costs, including costs of the appeal.
In summary it would appear that the court is likely to consider a costs order against a beneficiary only where: ▪the beneficiary is a stranger and receives a major share of the estate; or ▪one or two members of the family only are the major beneficiaries of the estate.
In summary I have concluded that:
the residuary beneficiaries should be joined to the proceedings;
the burden of the order for provision should be as I have intimated above;
the legal costs for the determination of the allocation of burden issue (calculated on the basis I have indicated) should be paid as a testamentary expense out of the estate.
The orders of the Court are, the Court:
Orders pursuant to Sch J – SA subcl 1(b) and 2 (a) that each of Brendan, Sarah, Aaron, Joshua and Geoffrey be joined to the proceedings respectively as the second, third, fourth, fifth and sixth defendants.
Orders that Kylie be designated as the first defendant;
Orders that the allocation of the burden of the order for provision for Amy of the lump sum of $394,000 and any interest thereon (pursuant to Orders 3 and 4 of the Orders of Meek J dated 20 November 2025) is to be borne out of the entitlements of the residuary beneficiaries in the following percentages:
(a) Geoffrey as to 70%;
(b) Brendan as to 9%;
(c) Sarah as to 9%;
(d) Aaron as to 7%; and
(e) Joshua as to 5%.
**********
See Probate cover sheet.
Notwithstanding that Ms Taylor confined that expression only to Aaron, Joshua and Sarah.
David Stewart’s Submissions (DSS) [13].
Clause 7(b)(i) of the Will.
Clause 7(b)(ii) of the Will.
Mark Ford’s costs affidavit.
DSS [29], Georgia Taylor’s Submissions (GTS) [16].
DSS [29], GTS [16]-[18].
Transcript (T) (18 November 2025) pages 2-3.
Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
Sworn 29 May 2025 (Amy's affidavit).
Both sworn on 26 June 2025 which I will distinguish by describing the Practice Note [18] affidavit as the ‘Administrator's affidavit’ and the other affidavit as Kylie's affidavit.
Justin Brown’s Submissions (JBS).
DSS.
GTS.
Kim Jubb’s Submissions (KJS).
Supreme Court Rules 1970 (NSW) Pt 12 r 1A, Sch J Pt1 (Succession Act 2006) (Sch J – SA) subcl 1(a).
Ibid subcl 1(b).
Vasiljev v Public Trustee [1974] 2 NSWLR 497 (Vasiljev) at 503B per Hutley JA, Hardie and Reynolds JJA agreeing at 498G.
See e.g. Smith v Dayman [1994] NSWCA 286 at 4 per Handley JA; Jurak v Latham [2023] NSWSC 1318 (Jurak) at [33].
Vasiljev at 503D-E.
Egberts v Evans & Anor [2018] NSWSC 1974 (Egberts) at [5] per Rein J; Sackelariou v O’Donnell [2018] NSWSC 1651 per Hallen J at [76]-[84].
See e.g. Kleinig v Neal [1981] 1 NSWLR 462 (Kleinig) at 463G.
For example pursuant to Sch J – SA subcl 2(a) or UCPR r 7.8.
Such as by filing and serving prescribed affidavits but otherwise having a ‘watching brief’.
Vasiljev at 503E-F.
GTS [20]-[22], [24].
Webster No 2 at [28].
GTS [23].
See e.g. Webster No 2 at [31]-[35].
T (28 November 2025) 4.31-5.15.
Kylie's affidavit [13].
Amy's affidavit [47].
Sarah's 14 November 2025 affidavit annexure ‘A’.
Amy's affidavit [56]-[57]; Kylie's affidavit [17].
Kylie's affidavit [6].
Kylie's affidavit [7]-[8] & annexure ‘A’; Amy's affidavit [67].
Kylie's affidavit [9].
Amy's affidavit [59].
Amy's affidavit [67].
Kylie's affidavit annexure ‘B’.
Ibid.
Ibid.
Ibid.
Amy's affidavit [69]-[71].
Amy's affidavit [72].
Amy's affidavit [73]-[74].
Amy's affidavit [75].
DSS [20] [Note that he does not appear to give any evidentiary reference to this and it is not particularly clear from the evidentiary materials that I have seen].
Kylie's affidavit annexure ‘B’.
Aaron's affidavit [35], Joshua's affidavit [41], Sarah's affidavit [10].
Amy's affidavit [67]-[69], [95]-[98].
DSS [2] see Succession Act s 57(1)(e).
Succession Act s 59(1)(b).
DSS [4].
GTS [6].
Sch J - SA subcl 4(2) and (3); Jurak at [26]-[29], [36]-[37], [48]-[50], [116]-[132]; see also Practice Note SC EQ 07 - Probate and Family Provision List at [18.10].
Atherton, Rosalind F, “The Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW): Husband’s Power v Widow’s Right” (1990) 6 Australian Journal of Law and Society 97 at 97-98.
Re Seery (1969) 90 WN (Pt 1) (NSW) 400 (Re Seery) at 408.
Kleinig at 464F-G.
Davern Wright, RJ Testator’s Family Maintenance in Australia and New Zealand (3rd ed, 1974, The Law Book Company Limited) (Davern Wright) at 153 citing Plimmer v Plimmer (1906) 9 NZGLR 10 (Plimmer) and Parker v Carr (1905) 24 NZLR 895 (Parker); de Groot, John and Nickel, Bruce, Family Provision in Australia (6th ed, 2021, LexisNexis) (de Groot & Nickel) at 411 [8.14] also citing Parker and Plimmer.
Ibid.
Davern Wright at 153.
In re Horwitz (1917) 34 WN (NSW) 73 (Re Horwitz) at 73.
Re Seery at 408. Davern Wright at 157-158 highlights some cases addressing burden. In re O’Neill (1917) 34 WN (NSW) 72 at 73 (prima facie position of beneficiaries bearing the burden of the order for provision rateably applied); In re Horwitz ibid. Davern Wright also referenced Re F Donnelly (1927) 28 SR (NSW) 34, In Re Newell (1932) 49 WN (NSW) 181, and In re McNamara (1938) 55 WN (NSW) 180 (the Full Court of the NSW Supreme Court in addressing an appeal of a family provision order allowed an appeal and directed that a lump sum be paid out of the general residuary estate with an annuity to be paid out of the share of the residuary estate given to the sons of the applicant: at 183 per Jordan CJ and Nicholas and Owen JJ - though review of those cases does not reveal any significant statements of principle regarding burden.
At 408 Street J observing that there appeared to be no guidance lay down in the authorities upon the manner of exercise of the discretion conferred by s 6(2) or the considerations relevant to the exercise of such discretion. [The discussion regarding burden being unaffected by the reversal in the Privy Council in Schaefer v Schuhmann; [1972] AC 572; (1971) 46 ALJR 82].
At 409.
Citing Sharp v Wakefield [1891] AC 173 at 179 per Lord Halsbury.
At 408-409.
At 464-5 and 467.
LRC Report 28 [2.19.1]
Ibid.
Ibid citing Re Horwitz; Re Gray (1958) 76 WN (NSW) 415; and Re Mayo [1968] 2 NSWR 709.
Ibid at [2.19.3].
Anthony Dickey, Family Provision After Death (1992, The Law Book Company) at 162-163.
At [8]-[9].
At [139]. On the facts, White J made the assessment principally, but not solely, by reference to the proper claims on the deceased’s bounty of the plaintiff and two of the deceased’s children, which he noted in turn included a consideration of their financial circumstances.
At [139] citing Re Seery at 408-409, Kleinig v Neal at 464-5 and Cantrell v Williams at [7]-[8].
At [139].
At [1], [5].
At [139].
Per Sackville AJA at [114(6)], Beazley JA agreeing at [1], Basten JA at [15].
LRC Report 110 at [2.73].
Ibid.
Ibid with the Report footnote (103) stating " Although paragraph (a) has no precursor and a basis for paragraph (c) may also be found in Family Provision Act 1982 (NSW) s 11(1)(c) and s 13”.
Succession Act s 72(1).
Succession Act s 65(1)(c).
Scott v Scott (No 2) [2022] NSWSC 914 (Scott) per Parker J at [91].
Succession Act s 65(2)(a).
Succession Act s 65(2), especially s 65(2)(f).
Casper v Casper and Ors [2007] NSWSC 796 per McLaughlin AsJ at [73], Scott at [93].
See e.g. Federal Commissioner of Taxation v Whiting (1943) 68 CLR 199 per Latham CJ and Williams J at 216; Armstrong v Children’s Hospital at Westmead [2008] NSWSC 1315 (Armstrong) at [16] per Bryson AJ; Re Foord [2019] VSC 444 per McMillan J at [15]; see also G E Dal Pont, Law of Succession (3rd ed, 2021, LexisNexis) at [7.10].
See e.g. GL Certoma, The Law of Succession in New South Wales (4th ed, 2010, Thomson Reuters) (Certoma) at 149-154.
‘Solvent’ means sufficient for the payment in full of the debts and liabilities of the deceased: PA Act s 46C(3).
PA Act s 46C(2).
Armstrong at [26].
Ibid at [27]-[42].
See e.g. Haertsch v Whiteway (No 2) [2020] NSWCA 287 (Haertsch) per Macfarlan, Meagher and Leeming JJA at [6]; Angius v Angius [2025] NSWCA 113 Mitchelmore JA at [81], [90] (Bell CJ at [1] and Ball JA at [92] agreeing); Alexiou v Alexiou [2025] NSWCA 164 Free JA at [21], [55]-[56], [64], [70], [72] (Payne JA at [1] Stern JA at [2] agreeing); see also Howitt v Bosschieter [2025] NSWCA 179 (Howitt) per Free JA at [80] (Ward P at [1] Kirk JA at [2] agreeing).
Howitt per Free JA at [80]-[83] (Ward P at [1] Kirk JA at [2] agreeing).
Defined as meaning “an order made by the Court under Chapter 3 in relation to the estate or notional estate of a deceased person to provide from that estate for the maintenance, education or advancement in life of an eligible person”: Succession Act s 3.
Succession Act s 65(1)(b) and (c).
See my comments in Bardi v Giannaros (No 2) [2025] NSWSC 917 at [177]-[181].
Clayton v Clayton [2023] NSWSC 399 at [108].
Scott at [92].
Webster No 2 per Kunc J at [105], [108] – comments unaffected by the reversal of aspects of orders of Kunc J on appeal in Strang v Steiner supra. See also Pargeter v Pargeter [2024] NSWSC 675 (Pargeter) per Hmelnitsky J at [21], Pillinger v Lees [2024] NSWSC 1067 per Hmelnitsky J at [106].
See e.g. Lester v Lester; In the Estate of Dulcie Brown [2020] NSWSC 958 (Lester) per Kunc J at [228].
See e.g. Shymko v Lach [2022] NSWSC 1096 at [759]-[763].
Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 (Steinmetz) per White JA at [62].
Lester at [237].
Strang v Steiner [2019] NSWCA 143; (2019) 19 ASTLR 330 (Strang v Steiner).
See e.g. Verzar v Verzar [2012] NSWSC 1380 per Lindsay J at [131]; Sgro v Thompson [2017] NSWCA 326 per White JA at [86] White JA (McColl JA at [1] and Payne JA at [2] agreeing).
de Groot & Nickel at 412-413 [8.16].
5,6 April 1981 see [1981] 1 NSWLR 462.
13 June 1980 see Kleinig v Neal (No.2) [1981] 2 NSWLR 532 (note the oddity that the initial hearing is reported as being judgment No.2, and the subsequent burden hearing nominated in terms suggested that it is the first judgment).
See comments of McHugh JA in considering this question but in relation to a s 66(2) Succession Act issue: Baldwin v Favre (No 2) [2025] NSWSC 540 at [140].
Strang v Steiner [2019] NSWCA 143; (2019) 19 ASTLR 330 (Strang v Steiner) per Macfarlan JA at [107] (White JA at [181] and McCallum JA at [193] seemingly agreeing with this observation).
See e.g. Baldwin v Favre [2025] NSWSC 345 at [237]-[238]; Baldwin v Favre (No 2) at [120], [130]-[140].
The phrase “just and equitable” appeared in the FPA Act, but not in relation to allocation of burden of an order for provision, but rather in relation to the Court’s power in respect of a limitation on the power to award costs in respect of what was known as a category s 6(1)(c) and (d) applicant who had been unsuccessful in a family provision claim. FPA Act s 33(2)(b) (no costs were to be paid out of the estate unless “there are special circumstances which make it just and equitable for the Court to do so”).
National Committee for Uniform Succession Laws, Family Provision: Supplementary Report to the Standing Committee of Attorneys General (Queensland Law Reform Commission, Report 58, 2004) appendix 2.
FLA s 79(2) provides “The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”.
Bogan v Estate of Peter John Smedley (Dec'd) [2025] HCA 7; (2025) 422 ALR 94 (Bogan) per Gageler CJ, Gordon, Gleeson, Jagot and Beech-Jones JJ at [63]-[65].
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52 (Stanford) per French CJ, Hayne, Kiefel and Bell JJ at [35].
Bogan at [67]-[78].
Steinmetz per White JA at [59]-[63] and Simpson AJA at [190]-[193] cf Brereton JA at [148]-[149].
Succession Act s 60(2)(j).
Encyclopaedic Australian Legal Dictionary (LexisNexis) ‘per stirpes’.
See e.g. Succession Act s 127, 129(3).
Encyclopaedic Australian Legal Dictionary (LexisNexis) ‘per capita’.
Steinmetz v Shannon per White JA at [59].
See analogously Gorton v Parks (1989) 17 NSWLR 1 at 6B.
Which did not occur in this case.
JBS [7], [16].
JBS [16].
DSS [6].
DSS [14]-[15].
DSS [16] (read with [13]).
DSS [24-[26].
DSS [28].
DSS [30].
DSS [11].
GTS [17].
GTS [25], [33].
GTS [26]-[33].
GTS [27].
GTS [28].
GTS [32].
GTS [33], [41(b)].
GTS [37], [41(c)].
GTS [38].
GTS [40].
GTS [34]-[36], [39], [41(a)].
KJS [4].
KJS [2].
KJS [3].
KJS [2],[4].
T (28 November 2025) 3.40-4.8.
de Groot & Nickel at 413-414 [8.16].
Table of cases on cover sheet amended to include: Bogan v Estate of Peter John Smedley (Dec'd) [2025] HCA 7; (2025) 422 ALR 94
Little
Little [2026] NSWSC 36
(2025) 422 ALR 94
(1943) 68 CLR 19
(1989) 17 NSWLR 1
(1971) 46 ALJR 82
(2012) 247 CLR 108
(2019) 99 NSWLR 687
(1943) 68 CLR 199
Ms Taylor submitted that joinder is appropriate so that her clients could be heard independently, there being no prejudice to the parties by joinder which cannot be dealt with by costs orders, and that it was proper for the defendant to allow the beneficiaries to advocate for themselves in relation to the burden issue as a matter of fairness [29] .
In the circumstances of this case, I consider that joinder of the Findlay beneficiaries is appropriate pursuant to Sch J – SA subcl 1(b) and 2(a) on the basis that there is “sufficient reason” to do so. Neither the plaintiff nor the defendant expressly opposed joinder. The question which has arisen is a discrete one. Nonetheless, it directly affects each of the residuary beneficiaries. It will reduce the risk of the executrix being placed in an invidious position in representing the interests of the estate and of non-party beneficiaries in an even-handed way, and facilitate rights of appeal of any beneficiary who is aggrieved by the decision [30] .
Further, whilst there is no application for Geoffrey to be joined, given that the order I propose to make will impact him, I consider that he too should be joined as a defendant. On 28 November 2025, I alerted Mr Stewart to the prospect that I might order that Geoffrey be joined to the proceedings [31] and the fact that that prospect has eventuated can hardly be a surprise to him.
Whilst the matters that I have mentioned might well be common to a number of cases where the incidence of burden is in issue, my decision regarding joinder should not be seen as creating a principle that joinder should occur in every case of burden disputes, but rather one which in the circumstances of this case is appropriate.
her interest in the grave plot of Sean to Aaron; and
the residue of her estate to her 4 children.
In about July 2022, the deceased was diagnosed with ovarian cancer for which she had some surgery in December 2022 [45] .
By July 2023, the deceased, according to Amy indicated that she had to sell her home to give the Findlay children their inheritance [46] . In September 2023, Amy commenced looking for a rental property in which she and the deceased could live and eventually located a residence. From 7 October 2023, she packed up the home and assisted the deceased, moving out of the Blacktown property [47] (and evidently moving into the new rental property).
In December 2023, the Blacktown property was sold with a sale being settled on 15 January 2024 [48] . Mr Stewart indicated that the Blacktown property was sold for $875,000 and that each of the deceased, Geoffrey, and Karen’s estate had received $278,978 net from the sale [49] . It is unclear to me where that figure is sourced in the evidence. However, it is a figure that is not radically different from evidence in the deceased’s affidavit sworn 7 December 2022 (for the purposes of obtaining a reseal of the grant of probate of Karen’s will) where Karen’s one-third share of the Blacktown property was valued (in specie) as being $266,667 [50] .
The gift of $35,000.00 to Madison, William and Eli plus accrued interest is held in an account with Heritage Bank styled “Estate of K L Findlay DECD”. The account was apparently opened by the deceased who was noted by the bank in its records to be the “executor”. The bank has advised that it has amended its records to show that the defendant is the “executor”.
Each of Aaron, Joshua and Sarah depose that they received approximately $184,000 from their mother’s estate (both Queensland and NSW) [51] . I infer that Brendan received a similar amount. Those amounts suggest that ultimately, the total value of Karen’s estate was slightly higher than the figures I have recounted above from the inventories of property attached to the Queensland probate and the NSW reseal.
There is some suggestion by Amy that the deceased was upset by anxiousness on the part of Karen’s children to sell the Blacktown home, in which her and the deceased lived [52] . Aaron, Joshua and Sarah have responded to various matters including issues regarding sale of the Blacktown home. Having regard to what is now in issue in the proceedings, I consider that it is quite unnecessary for me to make any finding in respect of whether the deceased was upset by any conduct. In any event, even if I had considered it necessary to make a finding, the absence of any cross-examination in respect of the issues would in any case make findings problematic.
Aaron identifies certain work that he provided to the deceased and maintenance to her residence indicating that the deceased would “pay” him for his assistance by providing some money towards his fuel and buying him food on outings. He says that the deceased was “like a second mother” to him with whom he spoke regularly.
Over time, and particularly in cases under the Succession Act, leaving aside preliminary jurisdictional questions, the Court of Appeal has come to articulate the formation by a Court of the requisite state of satisfaction under s 59(1)(c) and the determination under s 59(2) of whether or not to make an order for family provision in terms of a broad discretion and evaluative decision-making [98] .
More specifically, whilst noting differences between the questions or tests under ss 57, 58 and 59 Succession Act, the Court of Appeal has acknowledged the statutory scheme involves some degree of overlap as between jurisdictional preconditions, and evaluative and discretionary exercises in which factors relevant to one aspect may well be relevant to another [99] .
The making of a ‘family provision order’ [100] expressly involves specifying not merely the “amount and nature of the provision”, but also “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” [101] .
This is hardly surprising. Clarity for administration purposes (as noted) is one reason. However, importantly (leaving aside large estate cases, where financial needs and competition for their satisfaction out of the estate are often absent [102] ) an order for provision is likely to have adverse effects on other beneficiaries. Thus, generally speaking, in the Court’s overall evaluative assessment of whether a family provision order should be made, and the nature of any such order, it is necessary for the Court to be enabled to properly understand the impact that a shifting of property resources away from a beneficiary in favour of an applicant will have on each of those respective parties [103] .
The Court has a power pursuant to s 72(2) Succession Act to address burden issues where at the time of distribution of an estate, it is insufficient to give effect to a family provision order and may “make such orders concerning the abatement or adjustment of distributions from the estate as between the person in whose favour the family provision order is made and the other beneficiaries of the estate as it considers to be just and equitable among the persons affected”.
However, as observed by Parker J, recourse to s 72(2) will be rare because any such issue would normally be considered in fixing the amount of the provision in the first place. In any event s 72(2) does not provide a mechanism independent of s 65 for determining the source of the provision, rather, it points up the need for the family provision order to specify that source [104] .
In light of the above, the following may be noted regarding the principles informing allocation of burden and considerations bearing upon it.
First, it is obvious from the statutory scheme that the determination of which assets and beneficiaries are to bear the burden of an order for provision is properly described as involving a broad discretion and evaluative decision-making. The evaluative nature of the decision has been recognised by Kunc J in Webster (No 2*)* as one that involves the consideration of all material facts and circumstances both as they relate to the applicants for additional provision and the estate’s other beneficiaries [105] . By definition under s 65(1) Succession Act allocation of burden is an aspect of the broader decision of whether a family provision order should be made, and the nature of any such order, albeit with a different focus.
Secondly, by force of the statutory scheme and terminology, the Court in determining the issue of which assets and beneficiaries are to bear the burden of a ‘family provision order’ is entitled to consider a broad range of matters and may have regard to [106] the 16 “multifactorial” matters set out in s 60(2) Succession Act including “any other matter the Court considers relevant” [107] .
Thirdly, it is self-evident that in making an evaluative determination about allocation of the burden of an order for provision, the Court in considering s 60(2) factors and any other relevant matter, does not start from a position of presumed prioritisation of some considerations over others. Rather, the weight allocated to any consideration, will necessarily depend upon and be sensitive to the facts of the particular case [108] .
It has been stated that in allocating burden of provision
Sixthly, it has been said to be implicit in s 65(1)(c) that the Court, in making an evaluative determination regarding the incidence of burden of an order for provision will act in a manner that is “just and equitable” when exercising its discretion [116] . Similar considerations apply when the Court considers in any given case, whether to make orders pursuant to s 66(2) Succession Act in addition to a family provision order to adjust the interests of any person affected by a family provision order [117] .
The expression “just and equitable” in s 66 Succession Act is not readily explained by the law reform process leading to the enactment of Chapter 3 of the Succession Act [118] . It does not appear in Report 110 nor the draft “Family Provision Bill [119] ” referenced in the Report.
Nonetheless, the expression is commonly found in various legislation, for example the Family Law Act 1975 (Cth) (FLA) [120] . Statutory construction depends upon the purpose, text, context, coherence and legislative history of the relevant provision [121] . Broadly speaking, in relation to adjustment of property interests, the expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition [122] . However, expressions from one statutory context cannot be readily equated or appropriated to another even if broadly speaking, the general topic from each statutory context is similar [123] . Indeed, it has been said that learning and application of what is “just and equitable” in one statutory context (such as under the FLA) cannot be readily or unreservedly applied to another statutory context, relevantly (in this case) under Chapter 3 Succession Act [124] . What can be said is that for the purposes of considering what is “just and equitable” in the s 65(1)(c) determination, the “range of potentially competing considerations” are principally those which I have identified above, including s 60(2) factors.
Seventhly, the concept, themed through the caselaw under the TFM Act and FP Act, that the Court’s discretion regarding burden should be exercised “according to the rules of reason and justice” is not language that appears in the Succession Act. There is no need to resort to it for the purpose of allocating burden under s 65(1)(c) Succession Act*.* It suffices to note as the Court of Appeal has indicated that burden allocation under s 65(1)(c) will be determined in a manner that is “just and equitable”.
Eighthly, one of the s 60(2) factors the Court may consider involves any evidence of the testamentary intentions of the deceased [125] . Relevantly in this case, disposition of the residuary estate involved a type of per stirpes allotment.
Distribution per stirpes is a method of distribution of an estate based on family stocks or branches of descent [126] . In NSW, in cases of intestacy there is a statutory preference for distribution per stirpes [127] . It is usually contrasted with a distribution per capita which is a distribution in which each beneficiary receives an equal share of property in his or her own right, based on a beneficiary as a unit, not as a generational member of a family [128] .
Whilst the concept of the Court acting in a “just and equitable” manner might be said to be synonymous [129] or at least consistent with “fairness”, such that the Court does not act in an arbitrary manner, that does not mean that the burden jurisdiction is to be exercised to produce, in light of the order for provision, a per stirpes distribution to attempt to put respective generational families in a position where each family unit receives overall, an equal part or division of the deceased’s estate [130] .
Lastly, in the context of a contested hearing, there is at least some opportunity for the Court to make that determination where the evidence is tested such as by cross-examination [131] . In circumstances where there is no contested hearing regarding the order for provision and the question of burden is separated from and dealt with subsequently to an order for provision yet again without benefit of cross-examination, the Court is simply left to assess the position without seeing and hearing from the affected beneficiaries, and consequently without any contextual enlightenment, clarity or nuances that testing of the affidavit evidence by cross examination of such beneficiaries might bring forward. For the avoidance of doubt, that is simply an observation, it is not a criticism of the parties in this case.
Fourthly, whilst it is true that at least Sarah, Joshua and Aaron have briefly deposed to a close relationship with the deceased, and Geoffrey has not provided evidence of that kind, I would not readily assume that Geoffrey had a poor relationship with the deceased.
Fifthly, non-exhaustively I have set out some of the background to the making of the Will by the deceased. That background includes the circumstances in which the deceased came to inherit a share the Blacktown property forming part of her estate. It is evident from that that both Geoffrey and Karen agreed to allow the deceased to benefit from their share of the Blacktown property inherited from their mother. Specifically for a period of approximately 6-7 years, each of Geoffrey and Karen permitted the deceased to remain living in the Blacktown property, rather than seek to access their entitlements. Relevantly, on Geoffrey’s part it is unlikely that that would have occurred had he been in a poor relationship with the deceased and in any event, it represented a not insubstantial benefit from Geoffrey to the deceased enabling her to remain living in the Blacktown property.
Sixthly, whilst Ms Taylor and Mr Jubb emphasised the health issues of their clients, which I have taken into account, Geoffrey also has health issues. His Parkinson’s disease is degenerative and impacts his life and his capacity for work.
Seventhly, the financial circumstances and needs of each of the beneficiaries are different. Very broadly speaking, Geoffrey, Brendan and Sarah appear to be in stronger net asset positions than Aaron and Joshua. Each of Geoffrey and Sarah currently are not in average weekly income deficit, as distinct from Brendan, Aaron and Joshua.
I acknowledge that there is no particular indication that Geoffrey’s daughters are dependent on him.
Brendan lives with his wife and 3 children and his stepson. However, he has not provided much detail about their dependency or indeed their health circumstances other than what may be inferred from the listed travel expense associated with appointments at Brisbane’s Children’s Hospital for Bailey and the fact that there are expenses for gymnastics for Molly and keyboard lessons for Kody.
Aaron has not provided great detail regarding the dependency of his children. The detail indicates that there are three children aged 19, 14 and 12 years. It is unclear whether the 19-year-old is still dependent on Aaron or not. He pays child support of $250 weekly and it is unclear to what extent his children live with him or their mother. I have detailed what Aaron has listed regarding Madison and Eli having autism and their other diagnosis. However, the extent to which Aaron cares for them or is burdened financially in respect of them beyond what is disclosed in terms of child support payments is also unclear. Nonetheless, I note that under Karen’s Will, a sum of $35,000 is set aside for Madison, William and Eli as tenants in common in equal shares upon them attaining the age of 30 years.
Sarah has two dependent children aged 7 and nearly 2 years. She has outlined some detail regarding their health issues. I infer from what she has indicated regarding Poppy requiring constant medication and expensive food choices and hospitalisations and an asthma care plan for Daisy, that she has some significant care responsibility for them. Nonetheless, although clearly certain of her expenses are referable to the children, such as those relating to private school fees, after school care, daycare and pocket money for them, she and Rod are not prima facie in net income deficit by dint of those expenses.
Joshua has three very young children aged 5, 4 and 3 years. He indicates that they are generally healthy and clearly some of the household expenses are referable to the care and education of the children.
Broadly speaking I accept that there is some difference in degree as between the relative strength of Geoffrey’s financial position and his needs on the one hand and those of the Findlay beneficiaries. However, overall having regard to the totality of the considerations I have mentioned, and ,the submissions advanced on behalf of the Findlay beneficiaries, I do not consider that the entirety of the burden of the order of provision for Amy should be burdened on Geoffery’s entitlement under the deceased’s Will.
Overall, I consider that an appropriate allocation of burden of the order for provision is that Geoffrey bear 70%, Brendan and Sarah each bear 9%, Aaron 7% and Joshua 5%.
I am cognisant that I have differentiated between the burden amounts that Ms Taylor’s clients will bear rather than ordering that they bear an equal percentage of the burden. However, during the listing on 28 November 2025, I alerted her to the prospect that her clients should not assume that just because they have joint representation that there would be no difference in the percentage of the burden (if any) that they would each bear [156] .