Lowe v Lowe

Supreme Court of NSW|2014-03-19|Before: Hallen J, Young J, Santow J, Powell J

rs and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 Hyland v Burbidge [2000] NSWSC 12 Kay v Archbold [2008] NSWSC 254 Kelly and Kelly (No 2) (1981) 7 Fam LR 762 Kembrey v Cuskelly [2008] NSWSC 262 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 Luciano v Rosenblum (1985) 2 NSWLR 65 MacGregor v MacGregor [2003] WASC 169 Magill v Magill [2006] HCA 51; (2006) 226 CLR 551 Manuel v Lane [2013] NSWCA 61 Marks v Marks [2003] WASCA 297 Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47 Mayfield v Lloyd-Williams [2004] NSWSC 419 McCosker v McCosker (1957) 97 CLR 566 McCullum v Permanent Trustee [1999] NSWSC 1219 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Mee and Ferguson [1986] FamCA 3; (1986) 84 FLR 179 Neale v Neale [2013] NSWSC 983 Novak-Niemala v Perpetual Trustee Co Ltd [2002] NSWSC 251 O'Loughlin v O'Loughlin [2003] NSWCA 99 Palaganio v Mankarios [2011] NSWSC 61 Phillips v James [2014] NSWCA 4 Pogorelic v Banovich [2007] WASC 45 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 RK v RK (Financial Resources: Trust Assets) [2011] EWHC 3910 (Fam); [2013] 1 FLR 329 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522 Stansfield v National Australia Trustees Ltd [2004] NSWSC 1107 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (Supreme Court (NSW), Macready M, 16 December 1996, unrep) Stott v Cook (1960) 33 ALJR 447 Szypica v O'Beirne [2013] NSWSC 297 Taylor v Farrugia [2009] NSWSC 801 Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 Tucker v Tucker [2012] NSWSC 1302 Verzar v Verzar [2012] NSWSC 1380 Verzar v Verzar [2014] NSWCA 45 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) West v Mann [2013] NSWSC 1852 White and Tulloch v White (1995) 19 Fam LR 696 Young v Outtrim [2011] NSWSC 391 Texts Cited: J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths) Category: Principal judgment Parties: John Walter Lowe (Plaintiff) Peter Thomas Lowe (first Defendant) Margaret Gertrude Lowe (second Defendant) The Trust Company Limited (third Defendant) Elizabeth Christine King (fourth Defendant) Representation: Counsel: Mr R Colquhoun (Plaintiff) Mr P Walsh (Defendants) Solicitors: Doyle Wilson Solicitors (Plaintiff) Church & Grace (Defendants) File Number(s): 2013/29864

The Claim 1HIS HONOUR: These reasons relate to proceedings in which a family provision order pursuant to the Succession Act 2006 (NSW) ("the Act") is sought by the Plaintiff, John Walter Lowe, out of the estate of his father, Ronald Thomas Lowe ("the deceased"). A family provision order is an order made by the Court in relation to the estate, or notional estate, of a deceased person, to provide from that estate and/or notional estate, for the maintenance, education, or advancement in life, of an eligible person. 2The proceedings were commenced by Summons filed on 31 January 2013, within the time prescribed by the Act (within 12 months of the deceased's death). Shortly after the institution of the proceedings, a tutor, Deborah Lola Lowe, the Plaintiff's wife, was appointed for the Plaintiff (without an order of the Court). Presumably, consideration was given to Uniform Civil Procedure Rules ("the UCPR") rule 7.14(1), which provides "a person under legal incapacity may not ... carry on proceedings except by his ... tutor". 3Subsequently, on 31 July 2013, the tutor filed a document headed Notice of Withdrawal of Tutor which included the following: "1. The Plaintiff's Tutor Deborah LOWE withdraws her Consent to Act as a Tutor filed in these proceedings on 8 February 2013. 2. The Plaintiff is capable of managing his financial affairs and will continue to conduct these proceedings without a tutor." 4I shall return to the circumstances surrounding the appointment and removal of the tutor later in these reasons. 5There are four Defendants named in the proceedings. The first and second Defendants, Peter Thomas Lowe and Elizabeth Christine King, is each a child of the deceased, a sibling of the Plaintiff, and an executor named in the deceased's Will. The third Defendant, The Trust Company Limited, (incorrectly named as The Trustee Company Limited in the Summons) is a trustee company and also an executor named in the Will. The fourth Defendant is Margaret Gertrude Lowe, the wife of the deceased and the mother of the Plaintiff and the first and second Defendants. (She has played no part in the proceedings, although her affidavit was read.) 6The Defendants took no objection to the Plaintiff continuing the proceedings without a tutor. However, their counsel, Mr P Walsh, indicated that he might wish to make submissions about the fact that the condition of the Plaintiff was such that a tutor was required during the period between February and July 2013. 7The matter proceeded with the reading of the evidence filed in the proceedings. There were only a few objections to parts of the affidavits that needed to be ruled upon. The cross-examination of each of the family members, other than Margaret, then occurred. A number of other witnesses were not cross-examined. Finally, counsel made oral submissions in support of the written submissions, which are retained in the court file. The estimated duration of the hearing was three days, but the proceedings were concluded within two. 8Without intending to convey undue familiarity, with no disrespect intended, and for convenience, I shall refer, hereafter, to the parties, family members, and witnesses, after introduction, by his, or her, given name. I shall refer to the third Defendant simply as "Trust".

Formal Matters 9The following facts are uncontroversial. 10The deceased died on 31 August 2012. He was then aged 91 years, having been born in September 1920. 11The deceased and Margaret were married in April 1948. Accordingly, at the date of death, they had been married for over 60 years. Margaret was born in December 1920. 12There were three children of the deceased's marriage to Margaret, namely, John, Peter and Elizabeth. Peter was born in March 1949 and Elizabeth was born in December 1960. 13The deceased left a Will that he made on 28 August 2012, Probate in common form of which was granted, by this Court, to Peter, Elizabeth and Trust, on 18 January 2013. By that Will, after the revocation of all former wills and other testamentary dispositions, the deceased provided: (a) a bequest of "all my shares in or in relation to any company, held by me at the date of my death and of which I am the sole shareholder" equally between Peter, Elizabeth and John, but in respect of the one third for John, to be held on trust described as the "JOHN WALTER LOWE SPECIAL DISABILITY TRUST" ("the Disability Trust"). (b) In the event that the Disability Trust failed, that there be a discretionary trust in respect of the capital of the Fund [passing under the Disability Trust] "to pay or apply all or part of the income and all or part of the capital... for the benefit of John... and his children without any obligation to make payments to all or any of such beneficiaries or to ensure equality of payment". (I shall refer to this as "the Discretionary Trust".) (c) a gift of the rest and residue for Margaret absolutely. 14The terms of the Disability Trust to which the Will referred was set out, in detail, in Schedule 1 of the deceased's Will. It provided that the "Principal Beneficiary" was to be John and that the Trustee was to "hold the Trust Fund and the income arising there from upon trust during the lifetime of [John] solely for the benefit of [John] and with and subject to the powers and obligations contained in the remainder of these terms of trust". The Trustee was to hold the income and all or any part of the capital "for the primary purpose and for other purposes primarily for the benefit of [John]", which "primary purpose" was identified as "the reasonable care and accommodation of [John] as determined by the Trustee from time to time" but not including "daily living costs and expenses... that do not relate to reasonable care and accommodation needs" or "expenditure which is primarily for the direct or indirect benefit of any other person". In the event that the Trust Fund was not expended at the date of John's death, the Trustee was to "calculate the percentage of each Donor's Contributions to the overall Contributions to the Trust Fund" and distribute that contribution as directed by the Donor. 15There were other powers given to, and prohibitions imposed upon, the Trustee of the Disability Trust that are not necessary to further identify in these reasons. 16The terms of the Discretionary Trust to which the Will referred were identified, in detail, in Schedule 2 of the deceased's Will. The Discretionary Trust was to terminate on the distribution of all of the Fund or the last to occur of the death of John or Deborah (if certain events occurred). There were other powers given to, and prohibitions imposed upon, the Trustee of the Discretionary Trust that are not necessary to further identify in these reasons. 17The Inventory of Property disclosed to the court under s 81A of the Probate and Administration Act 1898 (NSW), a copy of which Inventory was attached to the Letters of Administration, stated that the property owned solely by the deceased at the date of his death, had an estimated (or known) gross value of $874,301. The deceased's actual estate was said to consist of the deceased's one half interest as tenant in common in real estate in Chatswood, Sydney ("the Chatswood property")($205,000), the deceased's one half interest as tenant in common in real estate in North Ryde, Sydney ("the North Ryde property")($155,000), monies in bank ($12,453), shares in various public companies ($479,167), an AMP Life Policy benefit ($19,680) and a car ($3,000). (I have omitted any reference to cents and shall continue to do so. This may appear to result in minor mathematical miscalculations in the figures set out below.) 18The Inventory of Property also disclosed property owned by the deceased, with Margaret, as joint tenants, at the date of death. That property included the deceased's and Margaret's interest (38%) in real estate at Kogarah, Sydney ($136,800) ("the Kogarah property"), real estate at North Turramurra ($796,000), investments ($145,862), monies in jointly held bank accounts ($346,762) and jointly held shares in public companies ($980,109). The total value of the jointly held property, at the date of death, was said to be $2,405,534. It follows that the total value of the deceased's interest in the jointly held property at the date of death would be about $1.2 million. 19It is, presumably, for this reason that Margaret was joined as a Defendant, although no submissions, by either party, were made on the notional estate provisions of the Act (a matter to which I shall return). 20Although no liabilities were disclosed in the Inventory of Property, testamentary and other expenses paid out of the estate total $9,127. In addition, it was acknowledged, by Peter, that the car referred to in the Inventory of Property had been transferred to Margaret. 21At the commencement of the hearing, the parties agreed that the value of the actual estate of the deceased, at the date of the hearing, was $1,006,628. Of this amount, the value of the shares in, or in relation to any company, held by the deceased at the date of his death and of which he was the sole shareholder, was agreed to be $644,024. (One third of that amount equates to $214,666.) 22The parties also agreed that the current value of the deceased's interest in the jointly held property that could be designated as notional estate was $1,161,654. (However, that estimate of value may be slightly inflated because it included the total value of the 38% interest in the Kogarah property rather than only 19% thereof. Accordingly, it should be reduced by $68,400, making the value $1,093,254. In the result, nothing turns on this apparent error of calculation.) 23During the course of the hearing, it was accepted that there was sufficient in the actual estate to satisfy any order for provision and any costs order made in favour of John. The parties asked that when the provision, if any, to be made for John was determined by the court, they should be given an opportunity to consider how the family provision order should be given effect to, taking into account the nature and value of the deceased's actual estate and property that may be designated as notional estate. I am prepared to abide that request. 24In calculating the value of the estate, actual and notional, finally available, the costs of the present proceedings should also be considered, since John, if successful, normally, will be entitled to an order that his costs and disbursements, calculated on the ordinary basis, be paid, whilst the first, second and third Defendants, as the executors representing the estate in the proceedings, irrespective of the outcome of the proceedings, normally, will be entitled to an order that their costs, calculated on the indemnity basis, be paid out of the estate and/or notional estate, of the deceased. 25John's solicitor, Mr I Kazagrandi, in an affidavit sworn prior to the hearing, estimated John's costs and disbursements of the proceedings, including counsel's fees, calculated on the ordinary basis, to be about $187,956 (inclusive of GST and upon the basis of a three day hearing). Even more remarkably, John's costs, calculated on the indemnity basis, were estimated to be $221,125. (He confirmed in the affidavit of costs that "[t]here is no agreement in the retainer as to an uplift factor regarding costs". 26On the second day of the hearing, the court was informed, without objection, that, because the matter was likely to conclude within two days, the Plaintiff's estimated costs and disbursements, calculated on the ordinary basis, were $179,956 (a reduction of $8,000). 27The Defendants' solicitor, Mr G L Pignone, in an affidavit sworn prior to the hearing, estimated the costs and disbursements of all Defendants of the proceedings, including counsel's fees, calculated on the indemnity basis, to be $101,563 (inclusive of GST). Of the amount claimed for costs, $63,078 has been paid out of the estate. (There had been no order made for the costs to be paid out of the estate and what proportion of costs and disbursements relates to Margaret's defence of the proceedings was not identified.) 28On the second day of the hearing, Mr Pignone provided another affidavit in which he stated that the Defendants' revised estimated costs and disbursements, calculated on the indemnity basis, were $140,323 (inclusive of GST). He stated that the estimated costs and disbursements made in his earlier affidavit had been calculated up to the date he had sworn his earlier affidavit (12 February 2014). The balance of the Defendants' costs and disbursements, therefore, remaining to be paid is $77,245. 29It follows that, if orders for costs are made, and if the revised costs estimates prove accurate ($257,201 taking into account the amount already paid)), the net value of the deceased's actual estate will be about $749,427. 30The parties accepted that, if John was successful, the usual order for the costs of each of the parties, as set out above, should be made. That over $320,000 has been spent in what is a fairly straightforward claim for a family provision order, in a reasonable sized, but not large, estate, is to be regarded as staggering. In making that comment, I have taken into account John's medical difficulties, to which reference will be made later in these reasons, which may have lengthened the taking of instructions and associated matters. Perhaps the level of costs demonstrates the intensity of feeling that exists between the family members. 31 If the parties are unable to reach agreement on the quantum of costs to be paid out of the estate, it will be for an assessor to determine the appropriate quantum of costs. 32The parties agreed that the only eligible person who has commenced proceedings under the Act is John. Of course, Margaret, as the wife of the deceased at the date of his death, and each of Peter and Elizabeth, as a child of the deceased, is also an eligible person. However, as beneficiaries named in the Will, the Court will not disregard her and his interests. 33Later in these reasons, I shall refer to each competing claim as a beneficiary. However, I should note at the outset that counsel for the Defendant conceded that each of Peter, Elizabeth, and Margaret, was not a competing beneficiary, financially, with John. By this, I understood him to mean that none of them was advancing his, or her, financial resources, as being relevant to reduce the provision that the court finds should be made for John.

Other Agreed Facts 34A special disability trust is one under Pt 3.18A of the Social Security Act 1991 (Cth) included under the heading "Private Financial Provision for Certain People with Disabilities". The section permits the creation of "special disability trusts" to assist families and carers to make private financial provision for the current and future care and accommodation of family members who are disabled upon the basis that any trust income or assets up to the value of $500,000 will not affect the affected individual's social security payments. 35The explanatory Memorandum which introduced the amendments permitting special disability trusts stated: "The measure allows... family members to establish a special disability trust for the current and future accommodation and care of the severely disabled person. All trust income and trust assets up to the value of $500,000 will not affect the family member's social security payments... In addition... gifts to the trust (to a total of $500,000) from... family members will not affect the donor's social security payment ..." 36There are certain statutory stipulations (subject to the proviso that Secretary may waive one or more of these in certain circumstances) which must be met, namely the beneficiary requirements (s 1209M); the trust purpose requirements (s 1209N); the trust deed requirements (s 1209P); the trustee requirements (s 1209Q); the trust property requirements (s 1209R); the trust expenditure requirements, if any (s 1209RA); the reporting requirements (s 1209S); and the audit requirements (s 1209T). 37There is some evidence, in this case, that the requirements of the Social Security Act have not been met and that, on 8 October 2012, Centrelink advised that John did not qualify as a beneficiary of such a trust. The Defendants do not accept that it has been adequately established that the requirements of the Social Security Act have not been met. Specifically, counsel for the Defendants submitted: "... there is a letter from Centrelink that, in fact, says: application declined, but we do not know what the application was [and] we do not know what information was supplied". However, no attempt by, or on behalf of, the Defendants has been made to ascertain whether the statutory stipulations in the present case can be met. 38In relation to other Centrelink requirements, relating to the receipt of the pension, the parties provided a written Memorandum (Ex. P1), forwarded after the conclusion of the hearing but with leave granted to do so, that: "(a) To maintain a full pension (disability or otherwise) a couple is entitled to have a residence in which they live of any value. (b) A couple is entitled to liquid assets (cash and like) of $279,000 without the pensions being affected. (c) The full pension, for the time that the liquid assets exceed $279,000, is affected moderately by being reduced by $1.50 per fortnight for every $1000 of liquid assets that exceeds $279,000. (d) To avoid administrative difficulties with Centrelink, it is desirable for money that is being used for the purchase of a residence that those on the pension buying the residence do not bank that particular money into their own account but that such money on settlement of a purchase of a residence be paid directly from a trust account such as a solicitor's trust account (which could be the plaintiff's solicitors) or from an estate trust account, to the vendor." 39I have earlier noted that, in the event that the Disability Trust does not take effect, there is a Discretionary Trust. In each case, Trust is one of the trustees, with Peter and Elizabeth. 40Timothy Bestelink, the Team Leader, Client Relations for Estates and Trusts at Trust swore an affidavit that was read in the proceedings, upon which he was not cross-examined, in which he identified the "practices and procedures dealing with applications made by beneficiaries under trusts of which [Trust] is Trustee". He stated that these ensure that applications by beneficiaries "are dealt with reasonably and efficiently". 41I shall not set out, in detail, the procedures to which Mr Bestelink refers. I have little doubt that they have been developed, and utilised, over many years. However, what is evident from that affidavit is that John, as the beneficiary, usually, would have to contact Trust, in "writing, setting out the reasons for the Application" and support his application "by appropriate documentation". An officer will then discuss the application with the co-trustees, following which discussions he, or she, will prepare a Memorandum to be considered by a Committee of Trust. There are different authority levels of Trust's officers, depending upon the amount sought by the object of the trust. Regular payments, for example, for educational expenses, are usually made on the basis of approval for one year, after which time the payments are reviewed. 42(As I propose to make an order in favour of John that provides him with a lump sum absolutely, in lieu of the provision made for him in the Will of the deceased, it is unnecessary to determine whether the Disability Trust is effective and the precise method by which the trustees' discretion would be exercised under that trust or under the Discretionary Trust.) 43In about 1990, John and the mother of a woman with whom he was then in a relationship purchased the Kogarah property. When the relationship broke down, it became impractical for the joint ownership to continue. In about November 1991, the deceased and Margaret purchased the interest of the mother in order to avoid the Kogarah property being sold. The purchase price and associated costs and disbursements paid by the deceased and Margaret was $52,678. (Of this amount, they borrowed $50,000.) Subsequently, they paid about $2,583, on account of levies, for the Kogarah property. 44John was married to Cheryl in January 1977. There were two children of their marriage, namely Katherine, who is currently 33 years old and Jennifer, who is 30 years old. He maintains a good relationship with his children. 45John and Cheryl separated in 1987 and a divorce order was made in 1988. 46John and Deborah met in August 2000. They married in October 2007. There are no children of their marriage. Deborah was born in February 1963. 47At the time they met, each of John and Deborah had an alcohol dependency. They have abstained from alcohol since 2008. She says "[i]t is a thing of the past in our lives now. It has been like this for quite a few years now." 48Margaret currently lives in an aged care hostel at North Richmond. It is a high care facility. She has her mental faculties but is aged.

The Statutory Scheme - The Act 49Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out most of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is equally important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in the application. 50The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008 (NSW). A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, Will. It is only if the statutory conditions are satisfied that the Court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate, to produce a result that is consistent with the purpose of the Act. Even then, the Court's power to do so is discretionary. 51The key provision is s 59 of the Act. The Court must be satisfied, first, that an applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, there is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made. 52Relevantly, in this case, John relies upon the category of eligibility referred to in s 57(1)(c) of the Act. There is no dispute that he is a child of the deceased and an eligible person within the meaning of that term in the Act. 53The language of the relevant section is expressive of the person's status, as well as his relationship to the deceased. There is no age limit placed on a child making an application. 54It is only if eligibility is found, that the Court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is this mandatory legislative imperative that drives the ultimate result and it is only if the Court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). Only then may "the Court ... make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made". 55Allsop P in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, commented, at 658 [6]: "... the expression of the task in s 59 is subtly different from the previous legislation. A prohibition against making an order unless satisfied of circumstances of an evaluative character, is different in emphasis from a permission to make an order if satisfied of circumstances of an evaluative character... The exercise of power to make the order is conditioned on the Court being satisfied of certain things in s 59(1). The order that may be made is described in s 59(2). The two elements are described in s 60(1)(b) as 'whether to make [an] ... order and the nature of any ... order.' Section 60(2) provides a detailed body of considerations for the task in s 59." 56Basten JA, at 662-3 [26], put the differences this way: "As appears from the language of the relevant provisions set out at [66]-[67] below, the Succession Act differs from the Family Provision Act in three significant respects. First, although both conferred similar powers on the court, the conditions of their exercise differ. The Family Provision Act required that the court 'shall not make an order ... unless it is satisfied that' the provision made by the testator is 'inadequate': s 9(2). The Succession Act provides that the court 'may ... make a family provision order ... if the court is satisfied that' the testator has not made 'adequate provision' for the applicant: s 59(1). The changes in language may have been intended to remove double negatives, but there is a resultant change in emphasis. The apparent effect is to widen the discretion vested in the court. That which could satisfy a court that the provision made is 'not adequate', for the purposes of the Succession Act, might not have been sufficient to remove the prohibition under the Family Provision Act, which operated in the absence of affirmative satisfaction that the provision was 'inadequate'. There may well be no bright line boundary between adequacy and inadequacy." 57Barrett JA, at 677-8 [82] - [86], said: "The court's task under the new legislation is in substance the same as that under the old. Three differences relevant to the kind of case under discussion may, however, be noted (I leave to one side as irrelevant to such cases the extension of the s 60(2) criteria to the question of 'eligible person' status); and two postulated differences may be rejected. First, the Succession Act provisions direct attention, upon the initial inquiry into adequacy, to provision made by the deceased's will and the intestacy laws. The former legislation referred merely to provision 'out of the estate' but it was clear that the operation of the intestacy laws was to be taken into account in deciding what provision was available 'out of the estate': see, for example, Smilek v Public Trustee [2008] NSWCA 190. Second, the Succession Act confines attention, upon that initial inquiry, to provision made by the will and the intestacy laws. There is no reference to provision made during the deceased's lifetime. In this respect, there is a departure from the Family Provision Act approach under which provision made in favour of the eligible person "either during the person's lifetime or out of the person's estate" was to be examined upon the initial inquiry into adequacy. Attention may, however, still be given to provision made in favour of the applicant during the deceased's lifetime. That is now one of the factors to which regard may be had under s 60(1)(b) when the court is deciding whether to make a family provision order and the nature of the order: see s 60(2)(i). Under the Succession Act, therefore, provision made by the deceased while living thus has a continuing relevance with altered emphasis. Such provision is no longer something to be taken into account in deciding whether adequate provision has been made; but it may be taken into account in deciding whether an order should be made and the nature of the order. The third difference to be noted is the Succession Act's more comprehensive catalogue of matters that may be taken into account in formulating an order for provision. Section 9(3) of the Family Provision Act empowered the court to 'take into consideration' matters there stated in 'determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person'. Section 60(1)(b) of the Succession Act allows the court to 'have regard to' the matters set out in s 60(2) 'for the purpose of determining ... whether to make a family provision order and the nature of any such order'. The Succession Act lists a greater number of such matters than did the Family Provision Act." 58Other than by reference to the provision made in the Will of the deceased, or, if relevant, by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for the applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision actually made in the deceased's Will, or on intestacy, or both, on the one hand, and to the requirement for maintenance, education and advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant. 59In Grey v Harrison [1997] 2 VR 359, at 366-367, Callaway JA observed: "There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight." 60It was said in the Court of Appeal (by Basten JA) in Foley v Ellis [2008] NSWCA 288, at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J recently described it as "an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific": Szypica v O'Beirne [2013] NSWSC 297, at [40] (citing Manuel v Lane [2013] NSWCA 61 at [9] per Emmett JA, speaking in relation to s 20 of the Property (Relationships) Act 1984 (NSW)). 61Under s 59(1)(c) of the Act, the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the Court is considering the application. 62"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54, at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime". 63Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act. 64The term "maintenance" usually refers to a provision for the supply of the necessaries of life. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement": "'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education." 65In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), at [18], stated: "'Proper maintenance' is not limited to the bare sustenance of a claimant [cf Gorton v Parkes (sic) [1989] 17 NSWLR 1], but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility." 66In J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths), at 542, the learned authors comment upon the difference between the concepts of maintenance and advancement: "The essential difference between 'maintenance' and 'advancement' is that 'maintenance' denotes a periodical payment or a payment which could validly be made periodically, whereas 'advancement' denotes a definite unique outlay for a specific purpose. Recipients of maintenance must, practically speaking, be infants, but adults may be recipients of an advancement. An advancement can never be made of a sum of money which the person to whom it is made can immediately pocket, but it must be made with a view to the establishment of that person in a business or profession, or otherwise in some definite way for that person's benefit, the whole essence of an advancement being the immediate payment of a tolerably large sum for an immediate benefit to one beneficiary." 67In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Murphy J noted, at 505: "Provision for advancement may, for example, extend to retraining or the gaining of a qualification which could advance and perhaps enable an applicant to maintain himself or herself." 68In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77, King CJ said: "The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang [(1960) 104 CLR 124] per Dixon C.J. at p. 128." 69Master Macready (as his Honour then was) in Stiles v Joseph (Supreme Court (NSW), Macready M, 16 December 1996, unrep) said, at 14-16: "Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541) In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274... In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said: 'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.' The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995)... notes... that: 'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'" 70In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J, at [114] noted: "In the context of the Act the expression 'advancement in life' is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase 'advancement in life' has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the 'maintenance and support' of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support." 71In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)." 72In McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 Dixon CJ and Williams J stated, at 575: "The presence of the words 'advancement in life' in the... Act in addition to the words 'maintenance and education' is not unimportant... 'Advancement' is a word of wide import." 73The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, whereas "proper" prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127, per Buss JA, at 145 [72], [77]. 74These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 476: "The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances." 75Dixon CJ and Williams J, in McCosker v McCosker, at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that: "It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent." 76In Goodman v Windeyer, Gibbs J said, at 502: "[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards." 77In Vigolo v Bostin, at 228, Callinan and Heydon JJ said: "[T]he use of the word 'proper' ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of the kind which was made here...The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future." 78Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), 28 May 1998, unrep), that "adequate" and "proper" are independent concepts. His Honour said, at 12: "'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied ..." 79In Palaganio v Mankarios [2011] NSWSC 61, at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life involve value judgments on which minds can legitimately differ, and there are no definite criteria by which the question can be answered. 80His Honour further observed in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522, at [123]: "The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case 'including the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty' (Singer v Berghouse (1994) 181 CLR 201 at 210)." 81Until recently, it was unanimously thought that there are two stages of the determination. The first stage, provided for by s 59(1)(c), has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the Court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. The Court does this by determining whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased and/or by operation of the intestacy rules, for the applicant. If it is not so satisfied, then the Court is precluded from making a family provision order. At this stage, the Court has regard to, among other things, the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased and the circumstances and needs of the other beneficiaries or potential beneficiaries: see McCosker v McCosker, at 571-572; Singer v Berghouse, at 209-210; Vigolo v Bostin, at [16], [75], [112]; Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, at [70]; Verzar v Verzar [2014] NSWCA 45, at [39]. 82Whether an applicant has a 'need' or 'needs' is also a relevant factor at the first stage of the enquiry. It is an elusive concept to define, yet, it is an element in determining whether "adequate" provision has been made for the "proper" maintenance, education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 (Tobias JA, with whom Beazley and Hodgson JJA agreed). 83In Collins v McGain, Tobias JA said at [42] and then at [47]: "Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies. ... As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is 'proper maintenance etc' of the eligible person. It is because of that context that, in the present case, the 'proper maintenance etc' of the appellant required consideration of a need to guard against the contingency to which I have referred." 84In Devereaux-Warnes v Hall (No 3), at [81] - [84], Buss JA said, in respect of the first stage of the process: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources: see Singer (at 227) per Gaudron J. 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc: see Gorton v Parks (1989) 17 NSWLR 1 (at 10-11) per Bryson J. The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other: see Hunter (at 575) per Kirby P. Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc: see Singer (at 227) per Gaudron J. Compare Gorton (at 6-11) per Bryson J; Collicoat v McMillan [1999] 3 VR 803 at [38], [47] per Ormiston J." 85"Need", of course, is a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]. 86As Callinan and Heydon JJ emphasised in Vigolo v Bostin, the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably": at 231 [122]. The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined. 87In the event that the Court is satisfied that the power to make an order is enlivened (i.e. in this case it is satisfied that the applicant is an eligible person, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), then the Court determines whether it should make an order and, if so, the nature of any such order, having regard to the facts known to the Court at the time the order is made. 88The second stage of the process arises under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the Court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour. 89However, Basten JA, in Andrew v Andrew, said of the two stage process referred to: "29 The combination of changes [to the legislation] requires that the court address the nature of the exercise being undertaken. Three potential consequences may be identified. First, there is a simplification of the structure of the process. There is no longer a two-stage process required. A degree of artificiality has thus been removed. The court should now ask what, taking all relevant factors into account, would have been adequate provision for the applicant. There is no first stage of determining whether the actual provision was 'inadequate', followed by a discretionary exercise of determining what would be adequate and what should in fact be done. ... 41 As noted above, the language of the Succession Act is not consistent with the two-stage inquiry which was a common feature of earlier legislation: cf Singer v Berghouse at 208-209. In Keep v Bourke [2012] NSWCA 64 the Court appears to have assumed that the two-stage process continued to operate under the Succession Act: at [24]-[29]. However, the issue not having been directly addressed, there is no constraint on this Court now adopting a different approach. Nor does earlier High Court authority construing an earlier statutory scheme govern the approach to be adopted to materially different legislative provisions." 90In Andrew v Andrew, Allsop P, at [6], said: "Whether the process engaged in by the court in s 59 can still be described as 'two-staged' in the sense discussed in Singer v Berghouse (1994) 181 CLR 201 at 208-211 may be an analytical question of little consequence. The task involves an evaluative assessment and a choice as to consequence therefrom, appeal from which is governed by the principles concerning discretionary judgments: Singer v Berghouse at 211 and DAO v R [2011] NSWCCA 63; (2011) 81 NSWLR 568 at [93]." 91Barrett JA disagreed with Basten JA, in Andrew v Andrew, saying at [65], [79] - [81], and then at [94]: "This is the second occasion on which this Court has been called upon to deal with a claim under s 59 of the Succession Act. In the earlier case, Keep v Bourke [2012] NSWCA 64, the Court proceeded on the basis that approaches taken under s 7 of the now superseded Family Provision Act 1982 remained relevant and applicable. That matter was explored in greater detail in the course of argument in the present case. For reasons I am about to state, I am of the opinion that the earlier approaches should continue to be followed in cases such as the present case and Keep v Bourke, that is, cases in which the applicant is a child of the deceased and no previous order for provision out of the estate has been made in favour of that applicant. ... First, it is necessary, having regard to s 59(1)(c), for the court to be satisfied that, at the time when it is considering the application, 'adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person'. Whereas the former s 9(2) provided that an order was not to be made unless the court was 'satisfied' in the specified way, the present legislation permits the court to make an order if 'satisfied' in the specified way and, by necessary implication, precludes the making of an order if the court is not so 'satisfied'. Second (and if the court is 'satisfied' in the specified way), the 'family provision order' that the court is empowered to make is, under s 59(2), 'such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made'; and the court may, pursuant to s 60(1)(b), have regard to the matters specified in s 60(2) in deciding whether to make an order and the nature of the order. Under s 59 and s 60, therefore, the task of the court, in a case of the kind under discussion, is: (a) to determine the extent of the provision made for the maintenance, education and advancement in life of the applicant by the deceased's will or the intestacy laws; (b) to form an opinion of the adequacy of that provision; (c) if the opinion is one of inadequacy, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased person for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the court at the time the order is made; and (d) in making that evaluative judgment, to take into account, as discretionary factors, the matters in s 60(2). ... As stated in Keep v Bourke, the structure and effect of the Succession Act provisions warrant continuing adherence to the two-stage approach indicated by the decisions of the High Court in Singer v Berghouse and Vigolo v Bostin." 92I have dealt with the question that has been raised in other cases whether the two-stage approach identified in Singer v Berghouse continues to apply to the provisions of the Act in other cases, the most recent of which is Aubrey v Kain [2014] NSWSC 15. I remain of the view that the two-stage approach should continue to apply. I shall not repeat what I said in that case, which is not affected by the recent decision of the Court of Appeal in Phillips v James [2014] NSWCA 4, or its decision of Verzar v Verzar. 93Ultimately, as Allsop P said in Andrew v Andrew, at [6], "it may be an analytical question of little consequence" since the questions remain the same, namely, whether the Court can make an order for provision (whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made), and if so, whether it should (whether to make an order and, if so, the terms of that order). 94Section 60 of the Act, at least in part, is new. It provides: "(1) The court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the 'applicant') is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person-the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered." 95It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew, at [37] as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380, at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order. 96It was said by White J in Slack v Rogan; Palffy v Rogan, at [121], that s 60 "lists a wide range of matters that the Court 'may have regard to', but these do not provide any tangible assistance in answering the question in any particular case whether the provision made in a will was less than adequate for an eligible applicant's 'proper' maintenance, education or advancement in life". 97In West v Mann [2013] NSWSC 1852, Kunc J at [12], wrote: "Section 60(2) provides a helpful checklist but it is no more than that. The Court is not obliged to take those matters into account. The extent to which it does (if at all) will depend upon the facts of each particular case. Section 60(2)(p) confirms the breadth of matters the Court can take into account. Once enlivened, the Discretion is expressly fettered only by the requirement in s 59(2) that if an order is made, it must be such order 'as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made'". 98The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of such of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender. 99The Act does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. For example, when considering eligibility under s 60(1)(a), many of the matters in s 60(2) will be largely, if not wholly, irrelevant. 100There is no definition in the Act of "financial resources" (which term is referred to in s 60(2)(d)). However, there is a definition of that term in s 3 of the Property (Relationships) Act, which I consider helpful: "'financial resources' ... includes: (a) a prospective claim or entitlement in respect of a scheme, fund or arrangement under which superannuation, retirement or similar benefits are provided, (b) property which, pursuant to the provisions of a discretionary trust, may become vested in or used or applied in or towards the purposes of the parties ..., (c) property, the alienation or disposition of which is wholly or partly under the control of the parties to the relationship or either of them and which is lawfully capable of being used or applied by or on behalf of the parties to the relationship or either of them in or towards their or his or her own purposes, and (d) any other valuable benefit." 101In Neale v Neale [2013] NSWSC 983, in relation to the meaning of that term, I referred to White and Tulloch v White (1995) 19 Fam LR 696 and the statement made in that case that the "term [connotes] some degree of entitlement to, control over, or relative certainty of receipt of property". 102In Neale v Neale, at [13] - [14], in relation to a potential inheritance of an applicant for provision, I stated: "In a case such as this one, that an applicant is, or may be, a beneficiary named in the Will, or on intestacy, of a person who has not died is, in my view, irrelevant otherwise. The potential inheritance of an applicant is too speculative to be considered as a financial resource, given that a testator can, ordinarily, change his, or her, Will, and because a Will has no legal effect until the death of the testator. Testamentary intentions may change. At the date of death, which may be some time away, the applicant may no longer be a beneficiary named in the Will, or the person may not have died intestate. At the date of the hearing of the claims, assuming the testator or intestate is alive, the applicant for a family provision order would have no entitlement to, control over, or relative certainty of receipt of, property of the testator or intestate. Although stated in a completely different context, I respectfully, agree with the general principle stated by the Full Court of the Family Court in White and Tulloch v White (1995) 19 Fam LR 696. In that case, a subpoena was served upon the mother of a party to proceedings under s 79 of the Family Law Act 1975 (Cth), to produce documents including the mother's Will, prior Wills and evidence of her financial circumstances. The mother objected to production and what was said by the Full Court of the Family Court applies equally to a case in which a family provision order is sought: '... in our view, such an expectancy could not be said to be a financial resource, that term connoting some degree of entitlement to, control over, or relative certainty of receipt of property. In this context we refer to the submissions of Mr Rose which pointed out that a will is a mere expression of intention at the time it is made and may be freely revoked or altered (see Vynior's Case (1610) 77 ER 597 Westminster's Deed of Appointment; Re Kerr v Westminster [1959] 2 WLR 299 at 302 Halsbury's Laws of England, 4th ed, vol 50, paras 201, 202, 216), and that it has no legal effect until the death of the testator. ... As a matter of principle and day to day management of trials, it would not ordinarily be appropriate to perform that exercise largely by detailed reference to the property of a third party or to require a third party to make a detailed disclosure of his or her testamentary intentions and financial circumstances. It would be highly undesirable that in a property proceeding between husband and wife significant amounts of time should be devoted to a detailed examination of such matters. ... It is ultimately a question of fact and degree. During the course of argument a number of obvious examples at each end of the spectrum were referred to. In a case where the testator had already made a will favourable to the party but no longer had testamentary capacity and there was evidence of his or her likely impending death in circumstances where there may be a significant estate, and where there was a connection to s. 75(2) factors, it would be shutting one's eyes to realities to treat that as irrelevant. On the other hand, the bald assertion that one of the parties has an elderly relative who has property and is or is likely to benefit that party is so speculative that it would be inappropriate to contemplate it as relevant in a s. 79 determination, it being too remote to affect the justice and equity of the case in any worthwhile way.'" 103It is also to be remembered that John is a discretionary object of the trust. 104In Re Brown Deceased [1972] VR 36, Norris AJ considered a will which made provision for the testatrix's husband by way of an annuity for life and further empowered her trustees "to pay or apply such additional weekly or other periodic sums as they in their discretion may think fit towards the maintenance support and comfort of my said husband". On an application by the husband for further provision out of the estate, the Court wrote: "...in Mills v New Zealand Insurance Co [1958] NZLR 356, Barraclough, CJ, examined the extent to which the existence of such a discretionary power should influence a decision as to whether adequate provision had been made. His Honour stated that counsel had been able to refer him to only two cases which were really relevant, Re Allen [1922] NZLR 218, and Re Thomas [1954] NZLR 302. Further authorities to which reference may be made are Re Lawther [1947] 2 DLR 510; Re W.T.N. an unreported decision of McLelland, CJ in Eq., in 1959, noted at 33 ALJ 240; and another unreported case, Re Dudley decided by Hutchinson, J, of which a fairly full note appears in [1962] NZLJ 123. I do not think that these authorities go as far as Mr. Little contended. It is true to say that in most of the cases the fact that a discretion to increase a benefit existed was not regarded as rendering adequate a provision which otherwise was inadequate. I think, nevertheless, it is consistent with the authorities to say that such a discretion is not to be excluded from consideration in determining whether or not adequate provision has been made, and that it may in an appropriate case render adequate a provision otherwise inadequate. Salmond, J, in Re Allen [1922] NZLR 218, considered the case of a discretionary power to increase the (inadequate) income of a 17-year-old daughter prior to her coming into the capital at 25, which power ceased on an older brother reaching the same age two years before she did. He said: 'This supplementary provision, however, is not one to which she is entitled as of right, and, moreover, it will come to an end as soon as her elder brother attains the age of twenty-five - that is to say in six years. The daughter will then be twenty-three years of age, and from then onwards until she is 25 she will have nothing except the income of her company shares. I think therefore the provision made for her prior to her attainment of the age of twenty-five is inadequate'. In Re Lawther [1947] 2 DLR 510, Williams, CJ, in the Manitoba Court of Kings Bench, was concerned with the embarrassment to which a trustee widow and her co-trustee might be subjected in deciding whether or not, in the exercise of an absolute discretion to apply amounts out of capital for her care and maintenance over and above the annual income given to her by the will, as the remaindermen included children of the co-trustee. In the light of this potential embarrassment he did not insist on adjourning the matter until the widow had applied to the trustees for the exercise of their discretion before deciding that the income given was an inadequate provision. In the case of Re Dudley [1962] NZLJ 123, the gifts to the widow included an annuity subject to the proviso that should the trustee consider the annuity inadequate for her proper maintenance and support and benefit he should pay her such sum or sums as he thought fit for those purposes. There were other annuities to children and certain small bequests and a trust to accumulate surplus income. The residue and accumulation were given to charity. Hutchinson, J, said: 'I have no hesitation in holding that the annuity should be increased... I do not think the provision under which the Public Trustee may increase her annuity meets the position. I have no doubt that the Public Trustee would deal sympathetically with a request under that provision by the plaintiff for additional money, but it might be distasteful and embarrassing to her to have to make any such application. Further the Public Trustee might very well consider that when an application was made he ought to obtain the concurrence of others concerned in the estate, in particular the residuary legatee, and there might, with all goodwill, still be an irksome delay in her obtaining what she wanted in the way of extra money.' There was in that case no opposition to the application, and the assets were ample. Re W.T.N. supra, was the case of an application on behalf of an insane child. The trustees were given a fund in their discretion to apply the capital or income for the benefit of the child during his life with a gift over of what remained at his death - a form to be found in various books of precedents. According to the note in the Australian Law Journal, 'McLelland, CJ in Eq., held that by reason of the discretionary nature of the trusts, they did not constitute adequate provision for the proper maintenance of the applicant'. The note further suggests that his Honour's decision might have been based upon two reasons - one, that the child would not have a right to any particular sum and, the other, that the trustees might take a narrow view of what he should have. In all these cases, the discretionary power was considered, but found not to turn an otherwise inadequate provision into one which was adequate. The reasons given varied: in some cases it was because the applicant had no right to the additional amount, in some cases it was because of embarrassment to the applicant or to the trustees, once it was perhaps because of the possible parsimony of the trustees. There is also the case of Re Thomas supra, where the trustee's discretion was to resort to capital for such sums as he should from time to time think fit for the adequate maintenance and support of the widow. Archer, J, held that the widow being clearly entitled to further provision as the sole asset in the estate was the matrimonial home, the only practical method of making further provision was to transfer the home to her. On the other hand, in Mills v New Zealand Insurance Co Ltd supra, the widow received in the result what Barraclough, CJ, regarded as adequate furniture for her needs, 950 pounds in cash and the free use, occupation and enjoyment of and the whole of the income arising from the residue during her lifetime with a gift over to children surviving the testator and attaining 21. There was only one child, a daughter aged seven. The residue comprised a house and investments producing a net income of 485 pounds per annum. The will contained a provision entitling the trustee in its sole discretion if it at any time considered the income of the residue was insufficient for the proper maintenance of the wife to have recourse to the capital to make the income up to such a sum as should in the opinion of the trustee be sufficient for the purpose. The importance of the case for present purposes arises from the applicant's request for an order that she should be paid a lump sum of 500 pounds to meet, inter alia, unusual expenditure to arise some seven years later when the daughter entered a secondary school as a boarder. His Honour held that the life interest given by the testator was not obviously inadequate and that at least it made reasonable provision for the widow so long as exceptional circumstances did not arise. He went on to say: 'The testator has left it to the good sense and discretion of his trustees to evaluate each disaster, misfortune or unexpected circumstance, if and when it arises, and to make such provision therefore as may appear to be just having regard to the other competing claims of mother and daughter. I am not justified in assuming that the discretion will not be wisely exercised by the trustee when and if the occasion for exercising it should arise.' In conclusion he said: 'In my opinion I am bound, in considering the adequacy of the provision made for his widow by this testator out of the estate of which he was possessed, to take some account of the discretionary trust which he created in CL5 of his will. It confirms my conclusion that, save in the one respect already mentioned, the will makes adequate provision for the applicant.' I, therefore, do not disregard the discretion here reposed in the trustee in considering the adequacy of the provision made by the plaintiff." 105In Flathaug v Weaver [2003] NZFLR 730, at 737-738, Hansen J discussed the relevance of a discretionary trust in which one of the objects was an applicant for provision. He wrote: "We see no reason why, in a proper case, an entitlement to benefit under a trust, even of a fully discretionary nature, should not be taken into account in assessing a testator's duty to make provision. In this case, the only beneficiaries of the Trust are John and Nils and their children. It would be wholly unrealistic not to have regard to their exclusive rights to benefit from the Trust. By leaving his entire estate to the Trust, the testator plainly saw it as the means by which he would provide for his children and grandchildren. In our view, for the purpose of assessing their competing claims, that may be regarded as equivalent to direct testamentary provision." 106In Kelly and Kelly (No 2) (1981) 7 Fam LR 762 at 769, it was said that "financial resource" includes "contingent interests or benefits which a party actually received or was likely to receive, whether legally entitled thereto or not". It would also include "a source of financial support which a party can reasonably expect would be available to him or her to supply a financial need or deficiency": Mee and Ferguson [1986] FamCA 3; (1986) 84 FLR 179, at 183 [40]. 107In RK v RK (Financial Resources: Trust Assets) [2011] EWHC 3910 (Fam); [2013] 1 FLR 329, in which English trustees had actively participated by giving evidence both written and orally at a hearing, Moylan J wrote (at [60] - 62]): "... Resources held within a bona fide discretionary trust are a party's resources to the extent which, on the balance of probabilities, they are likely to be made available to that party either now or within the foreseeable future. This would encompass provision for that party's own needs as well as provision to enable that party to meet an award made against him or her in favour of the other party. The form in which the provision can be made available or might be made available will of course vary. It might be by way of income or capital distributions, by way of loans or by way of occupation of a trust property. In determining this issue of fact the court must assess the evidence available to it. There is a very long tradition of the courts seeking to ascertain the reality of a situation. As Merrivale L said in N v N [1928] 44 TLR 324, the ecclesiastical courts 'showed a degree of practical wisdom... They were not misled by appearances... they looked at realities'. In Re: The Esteem Settlement [2004] JRC 92, The Royal Court of Jersey said, at para.166: 'In our judgment, where the requests made of trustees are reasonable in the context of all the circumstances, it would be the exception rather than the rule for trustees to refuse such requests.'" 108In relation to the Disability Trust, I simply note that John is the sole beneficiary during his lifetime. 109Of course, s 60(2)(d) refers also to "earning capacity", which means no more than the capacity to find employment to earn or derive income. 110A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1). 111Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently. 112This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the first stage. Happily, I am not alone in reaching this conclusion which is supported by the following comments made in Singer v Berghouse, at 209 - 210: "... The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant." 113It is also supported by the comments of Callinan and Heydon JJ in Vigolo v Bostin, at 230 - 231: "We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors." 114As was also pointed out by Barrett JA, in Andrew v Andrew, at [88] - [89]: "... leaving aside its relevance to the 'eligible person' inquiry, the s 60(2) catalogue is directed to the question of what, if any, order for provision should be made and is not, in terms, applied to the initial question of the adequacy of the provision made by the will or the intestacy laws. It can be said at once that the s 60(1)(b) directive corresponds with that in the former s 9(3) to the extent that it relates to the decision regarding provision to be made. There is no express legislative intention, under either piece of legislation, that the enumerated factors are to be taken into account in deciding the initial question of adequacy of provision. There is accordingly no reason to think that those factors are to be afforded any special relevance in approaching the adequacy question. But they will, at that point, be given, independently of s 60(1)(b), such weight as they deserve in their own right as indicators of the 'adequacy' question. As the primary judge recognised at [57], this is consistent with what was said by the High Court in Singer v Berghouse in relation to the former Act." 115Section 65(1) of the Act requires the family provision order to specify: (a) the person or persons for whom provision is to be made, and (b) the amount and nature of the provision, and (c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and (d) any conditions, restrictions or limitations imposed by the Court. 116The order for provision may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act). 117Any family provision order under the Act takes effect, unless the Court otherwise orders, as if the provision was made in a codicil to the Will of the deceased or (in the case of intestacy), as in a Will of the deceased (s 72(1) of the Act). (Intestacy is irrelevant in these proceedings.) 118Section 66 of the Act sets out the consequential and ancillary orders that may be made. 119Section 99(1) of the Act provides that the Court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the Court thinks fit.

Other Applicable Legal Principles - Substantive Application 120Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. 121Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve "an overall fair" disposition of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants. The Court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act to correct the hurt feelings, or sense of wrong, felt by an applicant. Rather, the Court's role is of a specific type and goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance, education and advancement in life of an applicant. 122The Court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90, at [63]. 123In Cooper v Dungan (1976) 9 ALR 93; (1976) 50 ALJR 539, Stephen J, at 542, reminded the Court to be "vigilant in guarding against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant". Freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the court": Cooper v Dungan, at 543 (Murphy J) (citing Pontifical Society for the Propagation of the Faith v Scales, at 19). 124The Court is given not only a discretion as to the nature and amount of the provision it directs but, even more importantly, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator: Pontifical Society for the Propagation of the Faith v Scales, at 19. 125In Stott v Cook (1960) 33 ALJR 447, Taylor J, although dissenting in his determination of the case, observed, at 453 - 454, that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged." 126Also, in Vigolo v Bostin, Gleeson CJ pointed out that the legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour stated, at [10], that it "preserved freedom of testamentary disposition, but subjected that freedom to a new qualification". Thus, testamentary freedom is not absolute. 127White J referred to these principles in Slack v Rogan; Palffy v Rogan, at [127]: "In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and (2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will." 128Gleeson CJ observed in Vigolo v Bostin, at 199, that the justification for interference with freedom of testation is to be found in the failure of a deceased to meet the obligations, which the community would expect in terms of maintenance, for those persons within the class of eligible persons. The process requires the Court to "connect the general but value-laden language of the statute to the community standards which give it practical meaning" (at 204). 129Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. 130As Allsop P said in Andrew v Andrew, at [16]: "If I may respectfully paraphrase Sheller JA [in Permanent Trustee Co Limited v Fraser (1995) 36 NSWLR 24 at 46F-47B], the court in assessing the matter at s 59(1) and the order that should be made under s 59(1) and s 59(2), should be guided and assisted by considering what provision, in accordance with perceived prevailing community standards of what is right and appropriate, ought to be made. This, Sheller JA said ... involved speaking for the feeling and judgment of fair and reasonable members of the community. It is to be emphasised that s 59(1)(c) and s 59(2) refer to the time when the court is considering [an application for a family provision order] and the facts then known to the court. The evaluative assessment is to be undertaken assuming full knowledge and appreciation of all the circumstances of the case. This ... makes the notion of compliance by the testator with a moral duty (on what he or she knew) apt to distract from the statutory task of the court." 131How those community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew, at [36] (Basten JA). 132In all cases under the Act, what is adequate and proper provision is necessarily fact specific. 133The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice; Allardice v Allardice (1910) 29 NZLR 959 at 966. The use of the word 'proper' requires consideration to be given to more than satisfying the basic needs of an applicant. The standard of living of an applicant during the lifetime of the deceased is relevant, but the fact that an applicant has lived frugally, or that he or she, has become accustomed to a life of relative penury, does not mean that the deceased's obligation under the Act is satisfied so long as the applicant can continue in that state: Pogorelic v Banovich [2007] WASC 45, [62]; Butcher v Craig [2009] WASC 164, at [21]. 134Where the Court is satisfied that provision ought to be made, then it is no answer to a claim for provision under the Act that to make an order would be to defeat the intentions of the deceased identified in the Will. The Act requires, in such circumstances, the deceased's intention in the Will to be displaced: Kembrey v Cuskelly [2008] NSWSC 262, at [45] (White J). 135All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singer v Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12, at [56]. Nor does it follow that if the Court decides it is inappropriate to make a specific provision in respect of one identified head of claim that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams, at [89]. 136The size of the estate is a significant consideration in determining an application for provision.

John's Substantive Claim - The Principles 137In relation to John's claim, being a claim by an adult child, the following principles are useful to remember: (a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his or her children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801. (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute: Taylor v Farrugia, at [58]. (d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland Deceased [1966] VR 404, at 411; Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, at 148; Goodman v Windeyer, at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons: Re Buckland Deceased, at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532, at 537; Mayfield v Lloyd-Williams, at [86]. (e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2), at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37, at 45 (Nicholson J). (f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: Macgregor v Macgregor [2003] WASC 169 (28 August 2003), at [179] - [182]; Crossman v Riedel [2004] ACTSC 127, at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297, at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig, at [17]. (g) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd, at 149. (h) There is no obligation upon the deceased to have treated all of his, or her, children equally in making provision in the Will. The Act does not permit a principle of equality between children that does not differentiate between children according to gender, character, conduct or circumstances. To the contrary, it specifically provides that conduct, circumstances, and financial resources, including earning capacity, may play a part in the Court's determination of the applicant's case. 138In Foley v Ellis, Sackville AJA, at [88] noted that Singer v Berghouse "... strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act". 139Generally, the duty of the deceased to his widow, to the extent to which his assets permit him to do so, is to ensure that she is secure in the matrimonial home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies: see, for example, Luciano v Rosenblum (1985) 2 NSWLR 65, at 69. The Court of Appeal, in O'Loughlin v O'Loughlin [2003] NSWCA 99, approved that "broad general rule". 140Of course, Margaret is not an applicant for provision, so principles that apply where the widow is one are not entirely apposite. Even so, she does not have to prove an entitlement to the provision made on intestacy or otherwise justify such provision. In determining the case, the Court must have regard to all relevant circumstances including the size of the estate and the nature of the competing claim by the widow: Edgar v Public Trustee for the Northern Territory [2011] NTSC 05, at [46]. 141In Magill v Magill [2006] HCA 51; (2006) 226 CLR 551, at [132], Gleeson CJ, at [24], said: "The structure of marriage and the family is intended to sustain responsibility and obligation." 142This accords too, with what Hodgson JA said in Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47, at [63]: "In my opinion, a formal and binding commitment to mutual support through good times and bad, other factors being equal, adds strength to a legitimate claim." 143Concern as to the capacity of Margaret to maintain herself, independently and autonomously, also bear upon the notion of what provision ought to be made for her. Her age and earning capacity are also relevant.

Protection of an Applicant by order - The Principles 144In Bondy v Vavros (Supreme Court (NSW), Young J, 29 August 1988, unrep), at 10, Young J (as his Honour then was) contemplated that: "... if one can see that a plaintiff is a spendthrift and the testator has arranged his will in such a way as to limit the funds flowing to the plaintiff, then one may very well come to the conclusion that the plaintiff has failed to establish that there has been any breach of moral duty." 145In Howarth v Reed (Supreme Court (NSW), Powell J, 15 April 1991, unrep), Powell J referred to the possibility of a provision not being applied by the person for the purposes intended by the Court. At 43 and 44, his Honour added: "While, as will be apparent from what I have earlier written, I am deeply concerned at what I regard as the totally unrealistic approach to the management of their affairs adopted by Mr and Mrs Howarth, which approach, if persisted in, will almost inevitably lead to the benefit of any Order which might be made in Mrs Howarth's favour being dissipated in short order, it seems to me that, while that is a matter which may bear on the form of Order to be made, it is not a matter which ought, without more, to be regarded as disqualifying Mrs Howarth from receiving the benefit of any Order to which she might otherwise be entitled. Nor is this a novel view, for a similar approach is reflected in the following passage in the judgment of Young J in Bondy v Vavros". 146In Hampson v Hampson [2010] NSWCA 359, Campbell JA, with whom Giles JA and Handley AJA agreed, after quoting the passage in Bondy v Vavros set out above, stated, at [99] - [102]: "In such a situation, if a plaintiff had been left periodical income, then even if another plaintiff who was similarly situated but not at serious risk of frittering away capital could have obtained a capital sum in lieu of the income stream, it might be concluded that for that particular plaintiff the income stream was adequate and proper provision. I should here mention that the passage I have quoted from Bondy v Vavros was preceded by the following statement: 'If a person is entitled to an order, what they do with the money that they receive is their business and it is none of my affair if I very much fear that the money may be wasted on wine, women and song in a short period of time'. That statement has sometimes been treated as though the court should disregard the likely use that an applicant will make of an award (eg Michael Bienke v Brian Bienke; Estate of the Late Harold Bienke [2002] NSWSC 804 at [24]), or disregard it at the jurisdictional stage though possibly taking it into account in the form of the order (Howarth v Reed, Supreme Court of New South Wales, Powell J, 15 April 1991 unreported at 42). In my view that involves a misreading of the statement in its context. The statement is part of the same paragraph that I have quoted at [98] above, and precedes the passage I have quoted at [98]. The sentence I have quoted at [98] commences with the words 'On the other hand, when one is considering what a wise and just testator would have done, ...'. The sense of the whole of the paragraph is, if a person is entitled to an order (ie, to receive what is adequate for proper maintenance, education and advancement in life, or what the wise and just testator would have given him) it is no further concern of the court that there is a prospect that the applicant might waste the money. However, to the extent to which the wise and just testator would take it into account, the prospect of the applicant wasting the money is a legitimate matter to take into account in deciding whether the applicant has been left without adequate provision for proper maintenance, education and advancement in life. There is ample precedent, and justification in principle, for a tendency of an applicant to spend excessive amounts of money unwisely (whether through an addiction to alcohol, drugs or gambling, or simply through habitual spendthrift characteristics) to enter into consideration for the purposes of the second stage of the process identified in Singer v Berghouse (No 2), namely, once jurisdiction is established, formulation of an order under the Family Provision Act." 147His Honour went on to discuss some examples from the case law, which he then set out in the appendix to the judgment. I shall not repeat that discussion. 148In The Application of Ferdinando Scali [2010] NSWSC 1254, Brereton J, at [15] noted: "...from the evidence put before the Court on this application, it appears that the testator had his reasons for structuring his will as he did. The sufficiency of those reasons, as to the structure of the provision made for his widow, will no doubt be examined in the Family Provision proceedings; but it is clear on the material put before me that the testator structured his will as he did by way of protective trusts in order to ensure that not all the benefit of his estate could be speedily expended by some about whose ability in financial management he entertained some concerns." 149In Young v Outtrim [2011] NSWSC 391, at [132], I concluded, in relation to one of the Plaintiffs, at [132]: "... the court is also entitled to take into account the history of Suzanne's expenditure of money not only on gambling. A wise and just parent would be likely to take that sort of expenditure into account in fixing the amount of provision, but also in deciding whether it should be protected in some way (cf Bondy v Vavros)...."

Applicant an Object of a Discretionary Trust 150As stated earlier, it may be that John is an object of the Discretionary Trust. As such, he has no enforceable rights to either the property or income of the Discretionary Trust and is reliant, for any future benefit, upon the exercise of discretion of the trustees in his favour. A discretionary object has no legal, or equitable, interest in the property of a discretionary trust until the trustee exercises its discretion in that beneficiary's favour. Until that point, a discretionary beneficiary's interest is merely an expectation or hope. 151In Belfield v Belfield [2012] NSWSCA 416; (2012) 83 NSWLR 189, Campbell JA wrote (at 206 [71]): "... when the FPA was enacted in 1982, it was common and well known that there were significant advantages for a person with some capital (who I will call the instigator) to arrange the setting up of a family trust, with a structure like that of the present trust deed. Common features of such trusts were that the trust was established by a settlor who was not the instigator or someone the instigator wished to benefit, the eligible beneficiaries were relatives by blood or marriage of the instigator, and there could be a discretionary allocation of income each year amongst eligible beneficiaries and ultimately a discretionary allocation of capital amongst eligible beneficiaries. Other common features were that there was power to alter the eligible beneficiaries, certainty achieved by provisions stating where income, and capital respectively would be distributed in default of a specific allocation of income or capital, and distribution of capital delayed for as long as permissible under the rule against perpetuities but with a discretionary power to advance the distribution date: see, for example, I J Hardingham and R Baxt, Discretionary Trusts, (1975) Sydney, Butterworths. Those discretions were usually conferred on the trustee of the trust. Such trusts enabled an instigator who was concerned to provide for a family, usually a parent or grandparent, to arrange for assets that they had accumulated to be made available to different members of the family as the need for money presented itself. Such trusts also had the effect of lessening the impact of death duties, while death duties remained in force in Australia, and of lessening the impact of income tax on the members of a family unit considered collectively, by enabling income to be appointed to those members of a family who had a lower marginal rate of taxation." 152In Gregory v Hudson (No 2) (Supreme Court (NSW), Young J, 18 September 1997, unrep), it was said (at pp 10-12): "Mr Broun QC puts that the authorities clearly show that a provision in a will that trustees might pay additional moneys out of the estate for the benefit of the applicant is not a proper provision. He cites Re Brown [1972] VR 36. In that case, after citing some decisions from New Zealand and Canada, together with the note of Re WTN C McLelland, CJ in Eq. (1959) noted 33 ALJ 240, Norris, AJ said at 39, 'It is true to say that in most of the cases the fact that a discretion to increase a benefit existed was not regarded as rendering adequate a provision which otherwise was inadequate. I think, nevertheless, it is consistent with the authorities to say that such a discretion is not to be excluded from consideration in determining whether or not adequate provision has been made, and that it may in an appropriate case render adequate a provision otherwise inadequate.' He then cites Re Allen [1922] NZLR 218. Dickey in Family Provision after Death (LBC Sydney 1992) says at p 121, 'There is some authority for the proposition that where a person is in need of provision but the quantum of provision made for him or her from a deceased's estate is wholly dependent upon the discretion of trustees, this provision is not adequate. In all probability, however, this is not an inflexible rule. In all probability the question of whether provision of this kind is adequate depends upon the particular facts and circumstances of the case. ... I consider, with respect, that Professor Dickey's comment is close to the mark. Ordinarily, a benefit provided under a discretionary trust is a fairly illusory benefit because it can be terminated without reason and there is little likelihood of a discretionary beneficiary being able to force the trustee to pay her a benefit. Hartigan's case shows that even if there is a memorandum of wishes, there is no obligation on the trustee to take that into account. Furthermore, even though the trustees say that they intend to follow the wishes, they are not bound to do so, and indeed, circumstances may change in such a way that they feel it is not proper to continue to follow the memoranda of wishes and carry out the spirit of what the deceased intended. ... It seems to me that where a wealthy man, with an estate of at least 11 million dollars, leaves the bulk of the benefits to his widow under a discretionary trust over which she has no control, he has not made proper provision for his widow. The community would expect that the widow of such a man would at least have a home in her own name and some capital to which she could resort whenever she felt like it." 153This decision was followed by Master McLaughlin (as his Honour then was) in Gill v Permanent Trustee Company Ltd [1999] NSWSC 394; in McCullum v Permanent Trustee [1999] NSWSC 1219; in Novak-Niemala v Perpetual Trustee Co Ltd [2002] NSWSC 251; and in Stansfield v National Australia Trustees Ltd [2004] NSWSC 1107 and by Macready AsJ in Tucker v Tucker [2012] NSWSC 1302. 154In Taylor v Farrugia, Brereton J wrote, at [62]: "Provision for eligible persons may be inadequate or improper in form as well as, or as distinct from, in quantum. Thus, provision which is dependent upon the exercise of a discretion by the trustee of a discretionary trust will often, though not invariably, be inadequate or improper: Re WTN (NSWSC Unreported, 3/7/59, McLelland CJ in Eq); referred to in [1959] 33 ALJ 240 Gregory v Hudson (No 2) (New South Wales Supreme Court, Young J, 18 September 1997, unreported)." 155None of these decisions mean that the Court should act in total disregard of the potential availability of wealth to an applicant for a family provision order from sources owned, or administered, by others.

Pension Entitlement 156John currently receives a disability pension. That is a relevant matter that the Court should consider. I set out the relevant principles in Kohari v Snow [2013] NSWSC 452, at [123] - [128]: "Because the Plaintiff is, and has been, receiving a pension for many years, it is necessary to consider its relevance in a claim for a family provision order. In Taylor v Farrugia Brereton J said, at [59]: 'The Court's attitude to the eligibility for means tested pension benefits of eligible persons and beneficiaries varies, depending on the circumstances of the case. Ordinarily, a testator makes a will and provides for those who have a claim on the testator without regard to the claimant's eligibility for a pension. However, in a small estate where there are competing claims, a testator, and this Court on an application under the Act, may take into account the eligibility of a claimant for a pension as a means of deciding how such limited benefits as are available from the estate should be shared between claimants, and how those benefits might be structured. But this qualification to the principle that the burden of support should be borne in the first instance by an estate rather than by social security arises mainly, if not exclusively in smaller estates [Parker v Public Trustee (1988) NSWSC, Young J, 31 May 1998; Whitmont v Lloyd (New South Wales Supreme Court, 31 July 1995, Bryson J, unreported); King v Foster (Court of Appeal, 7 December 1995, unreported) King v White [1992] 2 VR 417, 424; Shah v Perpetual Trustee Company [1981] 7 Fam LR 97 100; Gunawardena v Kanagaratnam Sri Kantha [2007] NSWSC 151; Chan v Tsui [2005] NSWSC 82].' An earlier authority, with which I respectfully also agree, is Thom v The Public Trustee (NSWSC, 2 April 1992, unreported), in which Master McLaughlin (as his Honour then was) said, at 10-11: 'It seems to me that it would be totally unrealistic for the Court to approach the moral obligation of the deceased to make provision for the applicant by disregarding the fact that for a period of 20 years before the deceased's death, the applicant was in receipt of a pension from the State, and the fact that, to the extent of that pension, the deceased was relieved of the necessity to support the applicant from his own funds. That being so, I do not see how, upon the death of the deceased, the moral obligation upon the deceased to make provision for the applicant by will, could be approached without recognising the fact that the applicant would be entitled to continue to receive such a pension.' Thus, the availability of a pension provided to an applicant ought not be regarded as a substitute for the obligation on the deceased to make adequate provision for him or her. Yet, it is not necessary to make an order that would operate primarily in relief of the taxpayer. In this case, it has been submitted that the availability of the pension, and associated social benefits, is a circumstance to which the Court should have regard particularly in circumstances where the Plaintiff may require care and treatment in the future. As was stated in Evans v Levy, at [55] by Young JA: '... there are, for most pensioners, side benefits of considerable value in merely having a part pension, such as the right which becomes more and more valuable as one gets older to have medical services provided at considerable concessional rates.' I have followed these decisions in Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748; Curran v Harvey (Estate of the late Donald Leslie Julian) [2012] NSWSC 276; and in Smith v Smith [2011] NSWSC 938." 157I make clear that I do not intend what I have described as "principles" to be elevated into rules of law. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion at the second stage to be constrained, by statements of principle found in dicta in other decisions. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind. 158In addition, in each case, a close consideration of the facts is necessary in order to determine whether the bases for a family provision order have been established. Every case is different and must be decided on its own facts. As Lindsay J said in Verzar v Verzar, at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."

Further Additional Facts 159I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar, at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered. (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship 160The following comment has been made by Campbell JA in regard to the Court's consideration of the totality of the relationship between the applicant and the deceased in Hampson v Hampson, at [80]: "The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge." 161As stated, John is one of three children of the deceased. He is now an adult. He gives evidence that he moved out of the family home when he was approximately 21 years of age. He attended Sydney Grammar School from 1965 until 1970 and then attended a teachers' college from 1971 until 1974. 162The Plaintiff worked as a high school teacher from 1975 until 1986, and then taught at a piano studio from 1983 until 1986. From 1992 until 2010 the Plaintiff was a self-employed courier. 163He and the deceased appear to have had a close relationship. (I do not propose to otherwise delve into the complexities of the interaction between family members that has been the subject of evidence by each of them.) 164To demonstrate the relationship, I set out the contents of part of a letter that John wrote, on behalf of himself and Deborah, to the Deceased and Margaret, in December 2003: "Dear Mum and Dad, On behalf of Debbie and myself I would like to say some things that we mean very sincerely. Thank you very much for preparing to organise the necessary payments that are needed. I find it very hard to talk on the phone regarding these things because I need to prepare myself to say the right thing. I have been struggling to pay bills for a while because of the situation I have been in... I have been very negative about things for a while and it has affected lots of things. To find that you are going to organise the payments for us is proof that you are the most wonderful parents I could ever have. Thank you for the... birthday presents and Christmas presents over the years and the general support over lots of things that I can't write down in a nutshell. ... If I had known what would happen after moving to Brighton and Rockdale, I would never have done this in the first place. Debbie and I will not do such a thing again without talking to you. ... Love, Debbie and John." 165Similarly, the close nature of the relationship can be inferred from part of a letter that the deceased wrote to John in May 2000, which the Defendants tendered: "Dear John You may wonder why we have prepared our Wills so that your one-third of our Estate is not bequeathed to you in a lump sum as it is to Peter and Elizabeth. We are endeavouring to ensure that there will always be some funds for your benefit during your lifetime. We know that you are kind-hearted and generous and we think that possibly you may be persuaded to give some of your inheritance away... Basically, we have the interests of you and your children at heart... We know that you will understand that in making these arrangements we have been thinking solely of your welfare and that of your children. With all our love, Mum and Dad" (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate 166There is no definition of the words "obligations" or "responsibilities" to which the sub-section refers in the Act. Importantly, the Act does not expressly refer to, or identify, any "moral duty". Yet, one might conclude that what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities. 167This factor requires a balancing of potentially competing obligations as between an applicant and a beneficiary. 168Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to John, as an adult, imposed upon him by statute or common law. 169Yet, an obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child. In Flathaug v Weaver, at 737, the origin of the obligation which underpins the Act's recognition of the duty owed by a parent to a child was put in this way: "The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives." 170The fact that an applicant was financially independent, for some years, before the deceased's death, is also a relevant consideration in determining the extent of any obligation or responsibility owed. 171Margaret, as the widow of the deceased of a marriage that spanned more than 60 years, must also be considered. I have referred to the deceased's obligation and responsibility to her earlier in these reasons. (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered 172 I have dealt with the nature and extent of the actual estate. The value of that estate is not large, although when one considers the value of jointly held property, it may be said to be of moderate size. (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate 173There was no dispute about the financial resources of John and Deborah. Each receives Centrelink benefits, in the form of a Disability Support Pension. Their combined pension is approximately $620 per week. Their current living expenses are approximately $1,232 per week. These expenses include strata levies ($50), council and water rates ($26), electricity and telephone charges ($91), food ($385), health insurance ($138), various medical expenses, including rehabilitation expenses ($155), transportation costs ($50) and vehicle registration and maintenance, including petrol ($137). John says that he believes these expenses will "likely increase" in the future. 174John is presently unemployed. It was accepted by the Defendants that, although he wishes to return to work as a courier driver, this wish is unlikely to come to fruition at the present time, and, consequently, that he does not currently have any earning capacity. 175As well, John seeks provision from the deceased's estate to meet the shortfall of expenses over income. He also wishes to purchase alternative accommodation in "a better locality" and requires provision in order to so and to cover "relocation costs". Finally, he seeks "a fund for contingencies". 176Here, John has been named as a beneficiary in the Will of Margaret who has sworn an affidavit that was read in the proceedings, upon which affidavit she was not cross-examined. In that affidavit, she describes the Will that she made on 28 August 2012 as a Will "in mirror terms to the Will executed by my husband". However, she states that they "decided to establish a Trust for John because we came jointly to the conclusion that John needed guidance in managing his financial affairs ... [which conclusion] was reached due to the financial problems that John had had over some time". She also states "this conclusion was reached by myself independently". 177It is clear from the contents of Margaret's affidavit that she holds strong views about John controlling his own financial circumstances (as did the deceased). Her Will, as did the deceased's Will did, treats the children equally as to quantum (but not as to absolute entitlement). 178Having read the affidavit and noting that Margaret does not state that she does not intend to change the Will, I am prepared to accept, as submitted by counsel for the Defendants, that "it would be shutting one's eyes to realities to treat the terms of her Will as irrelevant". But I am unable to conclude, as was also submitted, that the provision made for John in Margaret's Will, is something to which he will, ultimately, become entitled. It may be, for example, that Margaret will change her Will following the determination of these proceedings. 179(During the course of the hearing, I raised the prospect of the family becoming embroiled, once again, in family provision litigation after the death of Margaret, which, in my view, cannot readily be excluded from consideration. However, neither side seemed particularly interested in my concern.) 180Peter sets out his financial position as follows: Assets One half share in family home: $330,000 - $335,000 Commonwealth Superannuation Scheme pension: $2,906 per fortnight Allocated pensions: $2,026 per month Life insurance policies: Westpac joint savings account: $3,954 AMP shares (455) NRMA shares (1946) 2010 Mitsubishi Pajero (jointly owned) 2008 Mazda 6 (jointly owned) 2008 Regent caravan Onsite van and annexe (jointly owned): $20,000 (est) APS funeral fund: $4,562

Liabilities CBA Visa card $4,000 per month (ave)

181When asked by me about the capital value of the allocated pensions, which he admitted he could convert to a capital sum, he stated that it was $600,000. When asked about additional assets that were in the name of his wife, he admitted that she had "a bit short of $170,000 [in a bank account], and that's the extent of our life savings". 182Elizabeth's evidence about her financial and material circumstances was: One half joint tenant interest in family home located at 104 Bathurst Street, Pitt Town, NSW, 2756 $475,000 Superannuation as at 26 June 2012 $129,094 Westpac Home Cheque Account (jointly owned) $11,070 Westpac Savings Account $4,387 Fairline Motor Boat (jointly owned) About $50,000 MLC and BT Life Insurance Policy Elizabeth submitted that she did not know the value of the policies, that she pays yearly premiums on them, and that she believes that they can only be cashed in on death.

183Elizabeth maintained that her husband, Paul, held no assets beyond what had been disclosed as the other half of the jointly held assets. When questioned about the value of the company which operates the bearing business that she and her husband operate, together with Paul's nephew, the shares in which are held equally by her husband and his nephew, Elizabeth maintained that the company is "having difficulties" and that she and her husband "are in the process of possibly selling the business ... at cost [price]". 184Elizabeth set out their liabilities as follows: Westpac Home Loan $334,822 Westpac Credit Card $5,393

185Elizabeth gave oral evidence that she and her husband each earn a gross income of $76,000 and a net income of about $53,000 each. She set out her expenditure, part of which includes family expenses, as $2,115 per month, which appears to be far less than their joint net income. 186In an affidavit affirmed 7 February 2014, Margaret set out her assets as follows: 2001 Mirage Sedan $4,200 Westpac Personal Cheque Account $74,700 Westpac Reward Saver Account $149 Westpac Account previously jointly owned, now in Margaret's sole name $120,700 Accommodation Bond $330,000 BT Investments $165,693 North Turramurra Property (in the process of sale) Estimated $700,000 net (after sale costs, make good costs and departure fee) Chatswood Property Estimated $480,000 - $500,000 gross Macquarie Park Property Estimated $380,000 gross BT Westpac Pension $1,143 per fortnight Shares solely owned by Margaret Approximately $492,900 at 31 January 2014 Shares jointly owned by Margaret Approximately $1,182,000 at 31 January 2014

187Margaret listed her liabilities as follows: Aged Care Fees for Ron Middleton VC Gardens, North Richmond Approximately $3,600 per month Debt to the Australian Taxation Office $10,119 (due 21 March 2014) Mastercard Account Approximately $600 per month

188As I have stated, none of the Defendant family members advances his, or her, financial circumstances as relevant to the court's consideration as a competing claimant. (e) if the applicant is cohabiting with another person - the financial circumstances of the other person 189John lives with Deborah. I have referred to her financial circumstances above. She does not have any assets of her own. (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated 190There is evidence of certain medical conditions from which John suffers. Evidence of John's medical condition was provided by Dr Michael J Atherton, a Psychiatrist and Addiction Specialist. Two reports prepared by Dr Atherton, one dated 2 May 2013 and the other dated 26 February 2014, were tendered without objection. I permitted Dr Atherton to be cross-examined at the hearing even though he had not sworn an affidavit. 191In the first medical report, Dr Atherton opined that John suffered from a "drug-related Parkinson's type movement disorder" as well as "depression and anxiety". Specifically, he stated that, at that time, John "appears to have a severely depressed mood, consistent with Major Depression, and somatic symptoms associated with this, of pain and dizziness". He noted, also, that John presented with "an alcohol dependence syndrome which is ... in long term remission". 192In relation to a then recent psychotic episode suffered by John, details of which were outlined in the first report, Dr Atherton concluded that it was likely to have been induced by his treatment for Parkinson's Disease and "may also have been a result of a worsening of [John's] depression". (This was at, or about, the time of the appointment of Deborah as John's tutor.) 193Dr Atherton concluded that evidence that John suffered "an underlying bipolar or schizophrenic illness" remained "unclear". 194In relation to John's mental faculties, Dr Atherton stated in the first report: "I have seen no evidence that Mr Lowe is incapable of managing his own affairs or that he has any significant cognitive impairment which would preclude him from managing his finances properly. Basic neuro-psychological testing is within the normal range". 195In the first report, Dr Atherton concluded that John displayed "signs of improvement". 196In the second report, Dr Atherton concluded that John's drug-induced Parkinson's syndrome had "improved steadily throughout the last 9 months". The physical upshot of this was "less dribbling, less truncal tremor, reduced limb tremor and improvements in the associated pain". Whilst there were periods of both "dramatic improvement" and periods where the "symptoms returned", Dr Atherton concluded that "[John's] Parkinson's syndrome remains well under control and despite moderate symptoms, both his neurologist [Dr Stephen Tisch] and myself are hopeful that he will continue to improve...". 197In relation to John's depression, Dr Atherton acknowledged that John's "mood was certainly low on a number of occasions throughout 2013" and that "in early February 2014 [John's] mood again deteriorated" such that he "became exceedingly distressed and began to experience a number of psychotic symptoms, including hearing voices and noises". After admission to St Vincent's Hospital, referral to The Sydney Clinic and a change in treatment and medication, however, Dr Atherton observed that John's "mild auditory hallucinations... certainly lessened". 198Significantly, in the second report, Dr Atherton submitted: "[i]n terms of his psychotic symptoms, I now believe it is likely that [John] has a diagnosis of schizophrenia given the length of time which he has experienced psychotic symptoms even a low level". 199Dr Atherton also opined that John's "cognition remains intact". To this end, he made reference to John scoring "30 out of 30 on a Mini Mental State examination" and observed that John's "insight is such that he understands that he has a number of medical conditions... is aware of his need to take treatment and engages in this in an extremely mature way". Furthermore, it was Dr Atherton's opinion that John "has always displayed excellent judgment in terms of his decisions about his treatment... [and that] [h]e manages his finances well... [and has] a good grasp of his day to day routine". 200During the course of his cross-examination by counsel for the Defendants, Dr Atherton said that: (i) He had treated John since about February 2013 and that since then he has seen him "[f]airly regularly, possibly, I suppose, on average once every couple of weeks". (ii) John has major depression, which is a condition that can recur. For a number of reasons, one of which is stress, his mood has fluctuated. (iii) He had not observed that John was more impressionable or susceptible to the views of others at times when he is severely depressed. (iv) There was a possibility that John would need continuing care for his depression and schizophrenia into the future, but the hope was that following the conclusion of the proceedings, that his conditions could improve. The medical practitioners treating John were both hopeful, but because the conditions were lifelong conditions, there was the possibility of relapse. In this regard, John was said to be affected by the proceedings. There were significant issues within his family dynamics, which, for him, were a significant stressor. Once the court proceeding processes are over, there is a potential for reduction in the level of stress, and a hope that some improvements in his mood would be seen. (v) John did not have a deteriorating condition and there was no medical evidence of cognitive decline. Dr Atherton's understanding of a drug induced Parkinson's disease was that it does not cause long term cognitive impairment. (vi) John had, in about February 2014, had himself admitted to Hospital, which "demonstrates what we call insight, that someone is aware that they are not well at the current time and that they need a higher level of support than... they're currently getting". 201It is necessary to quote verbatim the following passage from Dr Atherton's evidence in answer to some questions from me: "Q. Is there any medical condition of which you are aware from which John currently suffers which would prevent him from looking after accommodation? A. Well, I mean, if he has schizophrenia then there are levels of schizophrenia, there are people who lose capacity to do those sorts of thing. Q. I'm talking about this plaintiff? A. I mean, not in the current situation, no. Q. And what about him providing care for himself? A. My understanding is that he does care for himself currently. When he has been a patient on the ward there is no evidence that he needs assistance with those kind of things, showering, washing, eating, those kind of things, so I don't see there's evidence at the moment that he needs, that he can't care for himself. Q. And finally in answer to my question earlier regarding the stressors do you understand, or, I'm sorry, I withdraw that, is the position as you understand it that the family dynamics involve who... A. My understanding is that John had issues with his father, who is now deceased, in terms of feeling that he was, what's the best way of putting it, that he felt very controlled by his father, I suppose, and I understand that he also has that sort of relationship with his siblings, and, you know, that, but he also has a lot of affection and a sense of sort of family duty and other things which I think, you know, comes from his background and he's kind of caught in that sort of ambivalence of feeling, you know, on the one hand being controlled but on the other hand feeling that he should just allow things to be as they were, and that causes him significant distress. Q. Are you aware that under the terms of his father's will a trust has been, is proposed to be set up to in effect look after provision that is made for him? A. Yep. Q. Over which he would have no control? A. Yep. Q. And from a medical point of view do you consider the imposition of a third party to control a fund of money in the order of $200,000 is necessary or unnecessary? A. I don't see any reason why that would be necessary. Q. I'm talking about from a medical point of view? A. Yeah, I don't have any reason to see why that would be necessary. Q. And if the imposition of a trust were, for example, set aside, which is what he wants, can you see any benefit from a medical point of view on his condition? A. I mean, there's a, there's a possibility that will be a less stressful situation because it removes some of the sense of what I speak, John feels as injustice, but overall, I mean, the treatment that he will receive et cetera will continue regardless so, but I think that there will be a significant removal of that sense of injustice and I suppose validation of him which is something that he for a long time has struggled to feel from his family. Q. On the occasions that he suffers from the major symptom of depression how long does that last? A. Well, I think, you know, that can be quite variable. They're, the most recent episode has probably lasted about a month although my sense is that he seems a little bit better than he did last week so I'm sort of assuming that that seems like it's coming towards the end, so I think, but, I mean, they can last for months, you know, but, or they can be relatively brief. I mean, in terms of last year, you know, they probably last on an average six to eight weeks. Q. And does he take medication during these periods? A. So John is on an antidepressant and he has also received last year two courses of ECT. Q. Which is? A. Electroconvulsive therapy, so short shock treatment, but the reason for the shock treatment was as much for the Parkinson's as for the depression. Depression alone we may not have gone for ECT but because of the potential benefits to his Parkinson's, well, and that was borne out by the treatment, so there were definite improvements from the ECT so a decision was made by myself and Dr Tish to use ECT as the treatment. Q. And I asked you about changing the position from the present terms of the will; what about if the terms of the will were not changed, would that have any impact on his condition? A. Well, my understanding from, yeah, John is that he has a number of things that he would wish to do, you know, with that, have freedom to do with the money, he's spoken of moving house to somewhere different and I think he's, and, you know, presumably there are, and so I think there is a potential that, you know, that in doing some of those things which he feels are, you know, goals for his future that that, I don't think that's available, I mean, my understanding is that that's not available under the trust, for him to do something like that, to have, make decisions about what he would want to spend the money on and I suppose that's, you know, in terms of making goals for oneself, making plans, achieving goals is all part of one's self esteem, and that is something that is impeded by the current setup, my understanding of the current setup for the proposed trust, that it would be simply for certain conditions and he would require kind of approval for those and my understanding, again, is that I think there may be two options, one is that it will be a family member who will be the decider of that or the other is that there will be an independent party but both of those would, you know, require an overseer which again is just something that would undermine, I suppose, the ability that I suppose any normal, any other person would see as, you know, as their right, I suppose. Q. Autonomy? A. Yeah, absolutely." 202I permitted counsel for the Defendant to ask Dr Atherton another question arising from the answers that I have quoted. The following passage of Dr Atherton's evidence was then recorded: "Q. Dr Atherton, if the trust structure were such that Mr Lowe could make without much difficulty requests for payments for certain things, and assuming those were meant with goodwill and the like and reasonable, do you think that might be a prudent thing to do to protect Mr Lowe's position, if there was a trust that respected his wishes, and you have to assume that for the sake of the question, and treated his requests with dignity, would you think that that would be beneficial for him on balance? A. Well, if I felt that, I mean, it's a question of, I suppose, ethics and autonomy, I mean, if I was concerned that John made poor decisions then I would think that would be, you know, a good thing and, you know, we make applications for trustee and guardianship all the time for patients, but I don't have any sense that John does make poor decisions and so I suppose, you know, one of our rights is autonomy to decide what we spend money on and some of that may not be particularly, you know, great judgment but that is our right to do it and, you know, the, so, I don't see anything as I said in the, that it would be, there's any great reason to put those kind of barriers on somebody who doesn't, you know, fulfil the criteria to lack capacity or something." 203I have no reason to reject the evidence of Dr Atherton. There was no contrary medical evidence called by the Defendants. (g) the age of the applicant when the application is being considered 204John was born in January 1953. He is currently 61 years of age. (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant 205There were no contributions by John to the building up of the estate of the deceased. There may have been contribution towards the deceased's welfare as one of his children. (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate 206The deceased and Margaret provided financial assistance to John. In about 2003, they paid approximately $35,000 to discharge his income tax liabilities. During the time he worked as a courier, the deceased bought the vehicles that John used in the business. The deceased paid about $14,000, in about 2006, for repairs to the Kogarah property. Other financial contributions made, at different times, total $90,000. In 2011 John received a gift of $50,000 and in 2012 he received a further gift of $20,000 from the deceased. (Similar provision was made for each of Peter and Elizabeth as well.) 207In 1991, they purchased a 38% share in the Kogarah property and made some contributions to levies on that property (in total $55,264). (Whilst this assisted John, the deceased and Margaret were recorded as registered proprietors and the whole of that share of the Kogarah property has now passed to Margaret by survivorship). (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person 208I shall not repeat all of the conversations of which evidence has been given by one, or other, of the family members, as all of those conversations have a consistent theme that is reflected in the deceased's testamentary intentions. It is clear that the deceased believed that John was not capable of looking after his own affairs, including an inability to look after his own finances; that he did not wish John to squander any inheritance that he might receive and that someone was required to act in his best interests long term; that he needed to be protected financially and would be incapable of wisely managing a large sum of money; and finally, that John's pension and medical benefits should be protected if he received a large inheritance. 209I have also read the affidavit of Mr J B Aubusson, a solicitor and partner at the Defendants' solicitors. He first received instructions from the deceased in May 2000 and between that date and the date of the deceased's death, he prepared a number of Wills for the deceased (and for Margaret). It is fair to say that in each of the Wills prepared for the deceased, the provision made for John was not an absolute interest. (Margaret's Will, in each case, was in similar terms in respect of the provision made for John.) 210Mr Aubusson gave the deceased detailed advice about the Special Disability Trust in a letter dated 31 July 2012. In the letter, there was also a reference to the concept of a discretionary trust. (A letter in the same terms was also sent to Margaret.) 211There is a copy of a diary note, dated 10 August 2012, the author of which is Ms Carolyn Middleton, a solicitor at the firm. Instructive is the notation referring to the interest in the Kogarah property and the instructions that the "clients wish to retain a stake in that property either on their own account in their lifetime or through the trustees of the various trusts under their Wills ... as a means of safeguarding ... John doing anything rash and jeopardising his accommodation." (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so 212The deceased did maintain John partly, at different times, before his death. I have earlier referred to the provision made for him during the deceased's lifetime. I have combined some of the regular payments made to him. (l) whether any other person is liable to support the applicant 213There is no other person liable to support John. (m) the character and conduct of the applicant before and after the date of the death of the deceased person 214In Delacour v Waddington [1953] HCA 64; (1953) 89 CLR 117, at 127, it was observed, in relation to a similar section in earlier legislation, that "the 'character or conduct' must be taken to refer to character or conduct of such a nature as to entitle the court to say that the applicant has forfeited or abandoned his or her moral claims on the testator". 215An evaluation of "character and conduct" may be necessary, not for the sake of criticism, but to enable consideration of what is "adequate" and "proper" in all the circumstances. In Collicoat v McMillan [1999] 3 VR 803, Ormiston J, at 817, expressed his view as to the proper relevance of the applicant's conduct: "Their behaviour (right or wrong) towards the testator may only provide a basis for measuring appropriately the testator's obligation to make provision for each of those applicants. Their sins are irrelevant except in so far as a testator might properly take exception to their behaviour. ... It is only when that behaviour has affected, or (arguably) is perceived to have affected, the testator that he or she is in good conscience entitled to make lesser or greater provision for an applicant than that to which the applicant would have been entitled having regard only to the bare bones of his or her financial needs and circumstances." 216Importantly, the Act does not limit the consideration of "conduct" to conduct towards the deceased. 217There is no such conduct in the present case. (n) the conduct of any other person before and after the date of the death of the deceased person 218There is no relevant conduct of any other person in the present case. (o) any relevant Aboriginal or Torres Strait Islander customary law 219This is not relevant. (p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered 220There are no other matters that I consider relevant.

Determination 221Being an "eligible person" is a necessary precondition to the Court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. In this case, there is no dispute that John, as a child of the deceased, is an eligible person within the meaning of s 57(1)(c) of the Act. 222There is also no dispute that John commenced his proceedings within the time prescribed by the Act. 223Having established eligibility and that the proceedings were commenced within time, the first question for determination is whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life, of John has not been made in the Will of the deceased. 224The key question is whether the provision for John of the sum in the region of $214,000, by way of the Disability Trust or the Discretionary Trust, is not adequate provision for him. 225The answer to this question depends, at least in part, on whether the concerns that the deceased expressed about John were well founded. I have given careful consideration to the statements made by the deceased and to the evidence concerning John's ability to manage his own affairs and, whilst it is clear that, on a number of occasions, he needed the financial assistance of his parents, there is simply no evidence that this came about because of such an inability. 226I note that John has owned his share of the Kogarah property for over 23 years. There is no suggestion that he has placed his ownership of this property at risk by, for example, using it as security for an inappropriate investment. It is not suggested that he has not maintained it, or that he has allowed it to otherwise deteriorate. The complaints that he has made about the Kogarah property do not relate to its condition, but rather to its lack of amenities (a laundry and a garage) and its geographical location (far from his treating doctors and the hospital). 227Furthermore, each of Peter and Elizabeth did not suggest that he, or she, had been called upon to assist John in looking after the Kogarah property or, for that matter, to look after John, at any time. In the case of Elizabeth, I note that she has not even seen John for about 18 months. 228Having observed John in the witness box, I formed a favourable view about his cognitive ability. He certainly had no difficulty understanding questions asked of him and he responded to the questions appropriately. 229I accept John's evidence: "...that despite my existing health issues, I am physically fit to look after myself in all aspects of everyday life. I am nowhere near to be considered as a person who would become a beneficiary for a Special Disability Trust." 230I was also extremely impressed by Deborah. She appears to be a stable influence in John's life and, since she has been with him, the financial difficulties that he had earlier appear to have lessened. I found her to be straightforward and direct and I accept her evidence about her observations concerning John without hesitation: "... 19. I am aware that my husband still experiences symptoms of Parkinson's disease to some extent. Such symptoms, however, have now become much less severe. My husband and I now enjoy a more active social life. We are visiting every now and then my sister Donna and her husband Nicholas. 20. I also observed that my husband's daughters give him a great deal of support. My father is also supporting my husband and I emotionally and financially. As far as I can feel and judge, my husband's health has significantly improved. ... 22. I have been helping my husband with his work and generally looking after him, as well as around our family home since 2000. We have an excellent relationship of mutual trust and affection. I regularly speak to my husband's doctors, family members and other people on behalf of my husband, when necessary, keeping my husband's best interests at heart. ... 24. My husband and I have been capable managers of our Kogarah property, paying all outgoings as they fall due and conducting repairs and renovations in respect of the property, as appropriate. We are also on the strata committee and through that position we have recently been able to save approximately $30,000 on behalf of the owners of the units in our strata scheme. This involved appointment of a new strata manager." 231Having considered all of the matters I am required to consider, I am satisfied that the deceased did not make adequate provision for the proper maintenance and advancement in life of John under the terms of his Will. 232There is no need for any provision made for him to be subject of control by any third party and provision to be made for him should be in the form of an absolute entitlement. 233In coming to this conclusion, I also have taken into account Margaret's, Peter's and Elizabeth's legitimate claims upon the bounty of the deceased, as his wife, and children, and the obligation and responsibility that the deceased felt to provide for each of them. However, none is a competing financial claimant on the bounty of the deceased. 234It is also clear that John has some "needs". As stated above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence. Nor is it limited to whether the applicant has, at the date of hearing, an immediate need for financial assistance with respect to his maintenance. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. 235Turning then to s 59(2), namely the question of what provision "ought to be made for the maintenance, education or advancement in life" of John, having regard to the facts known to the Court. The order for provision should be no more than is necessary to make adequate provision for John's proper maintenance and advancement in life. I must take into account, and give weight to, the obligation owed to the other beneficiaries as well. 236Counsel for John submitted that he should receive the whole of the estate after the payment of the costs, in lieu of the provision made in the Will of the deceased. I do not accept this submission. He has not been able to demonstrate a need for about $750,000 (considering his ownership of a significant share of the Kogarah property). 237In my view, John should be placed in a position where the Kogarah property may be sold and another property, in a suburb closer to doctors and hospitals of his choice, should be purchased. Although there is evidence that he requires about $650,000 to purchase a property, there was no evidence that he had inspected, or located, such a property. In my view, an amount of $575,000 should be sufficient to enable him to purchase such a property. There may be associated costs and disbursements, including stamp duty, legal costs, moving charges, and associated expenses, which I shall estimate to be about $25,000. 238In addition, he should receive a lump sum for exigencies of life and to provide him with an additional income whilst it is not spent. An amount of $150,000 is, in my view, adequate and proper in this regard. 239However, in determining what provision he should receive out of the estate of the deceased, I do not forget that he owns 62% of the Kogarah property. Assuming a gross sale price of about $350,000, and costs and expenses of sale of about $10,000, his share of the net sale proceeds should be about $205,000. I shall take this amount into account in determining the lump sum to be paid to him out of the deceased's estate (in lieu of the provision made for him in the Will of the deceased). 240In my view, the Plaintiff should receive a lump sum of $545,000 (in lieu of the provision made for him in the Will of the deceased). Because I have accepted John's evidence regarding the need to purchase alternative accommodation, I shall make it a condition of the provision that he is to utilise at least $475,000 of the provision made to purchase the accommodation. It follows that this amount should be retained (perhaps by the Plaintiff's solicitors) until the purchase of that accommodation and, thereafter, be paid to the vendor directly. 241The lump sum should be paid within 35 days of the making of orders or such other time as the parties are able to agree. If not so paid, interest at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW), calculated from 28 days from the date of the making of orders until the date of payment, should be paid. 242In relation to costs, neither party submitted that a costs order in John's favour should not be made, although the quantum of those costs, unsurprisingly, will be the subject of dispute. I shall leave it to the parties to agree or, failing agreement, to be assessed in the usual way. The only order to be made is that John's costs, calculated on the ordinary basis, and the Defendants' costs, calculated on the indemnity basis, are to be paid out of the estate. 243In order to give the parties an opportunity to consider these reasons, and to enable the parties to decide the manner in which the order for provision and costs will be satisfied, I direct the parties, within 14 days, to provide Short Minutes of Order, reflecting these reasons. If I receive an agreed document, I shall make the orders in Chambers. I stand the matter over to a date 21 days from the date of delivering these reasons.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 April 2014

Succession Amendment (Family Provision) Act 2008(NSW)

(1995) 19 Fam LR 696

At a glance

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Judgment (19 paragraphs)

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Legislation Cited (7)

Cases Cited (92)