M Raiola and I Raiola In Andreatta v M Raiola

Judgment 1The First Plaintiff (to whom I will refer, without any disrespect, by his first name as "Massimo") is a son and the Second Plaintiff (to whom I will refer, also without disrespect, by her first name as "Imma") is the daughter of the late Giovanni Raiola ("the deceased") who died on 28 December 2011. By his last will and testament made on 7 June 2010, the deceased appointed the defendant, his youngest son, Maurizio Raiola (to whom I will refer, without any disrespect, by his first name as "Maurizio") as his sole executor and sole beneficiary of his estate. Massimo and Imma seek family provision orders out of the estate or notional estate of the deceased. Matters relevant to the making of a family provision order 2The proceedings were commenced, on 6 December 2012, within the 12 month period prescribed by s 58(2) of the Succession Act 2006 (NSW). 3Section 59 of the Succession Act relevantly provides: "(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and (b) ... (c) at the time when the Court 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 ... (2) The Court may 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." Massimo and Imma are each eligible persons within the meaning of s 59(1)(a) of the Succession Act. The real question in issue in the proceedings is whether they satisfy the other requirements of s 59 of the Succession Act. 4Earlier case law in respect of ss 7 and 9(2) of the Family Provision Act 1982 (NSW), the predecessors to s 59 of the Succession Act, required the Court to adopt a two stage process by which the Court would first determine whether the provision made for an applicant was inadequate for his or her proper maintenance, education and advancement in life and, if that question were answered favourably to the applicant, would then determine what provision ought to be made, addressing all of the circumstances relevant to determining what provision would be "proper" for his or her maintenance, education and advancement in life. In Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, Mason CJ, Deane and McHugh JJ observed (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 applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant." 5There are some differences between s 59 of the Succession Act and its predecessors and the application of the two stage process identified in Singer v Berghouse above to the provision in the Succession Act was doubted by Basten JA in Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 at [29], [41]-[42], although Barrett JA (at [95]) considered that approach should still be applied and Allsop P noted (at [6]) that the difference in approach may be of little consequence. Subsequent decisions at first instance have taken differing approaches to whether the Court should continue to adopt a two stage process following Andrew v Andrew, although several decisions have noted that the question will often be of little practical consequence since similar considerations would be applied on either approach: Frisoli v Kourea [2013] NSWSC 1166 at [139] per Slattery J; Ploder v Garcea (as executrix of the estate of the late Garcea) [2013] NSWSC 1360 at [96] per Sackar J; West v Mann [2013] NSWSC 1852 at [11] per Kunc J. I do not consider it necessary to address that difference in approach in this case, where it would make no difference to the result. 6The test established by s 59 of the Succession Act has regard not only to what is "adequate" by reference to the applicant's needs but also to what is "proper" in all the circumstances of the case, including the deceased's wealth, the applicant's means, competing claims on the bounty of the deceased and the applicant's conduct in relation to the deceased. In Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at 122, Callinan and Heydon JJ observed that: "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 ... 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." 7In Wheat v Wisbey [2013] NSWSC 537 at [64]-[65], Hallen J noted that s 59(1)(c) of the Succession Act does not define the norm by which the Court must determine whether the provision, if any, is inadequate for each applicant's proper maintenance, education and advancement in life and that: "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. It 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]." 8In Aubrey v Kain [2014] NSWSC 15 at [48], Hallen J similarly observed that: "Other 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." The content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant is flexible, and reflects what is considered to be right and proper according to contemporary accepted community standards. The question of the inadequacy of provision is determined at the time the Court is considering the application under s 59(1)(c) of the Succession Act. 9It is not part of the Court's function in determining a family provision application to achieve equity between various claimants or distribute the deceased's estate according to notions of fairness or equity, or to correct a sense of wrong felt by an applicant who may believe that he or she has been treated unfairly, and the Court's role 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: Stott v Cook (1960) 33 ALJR 447 at 453-454; Vigolo v Bostin above at [10]; Wheat v Wisbey above at [119]-[121]. 10Section 60 of the Succession Act in turn sets out a range of matters that the Court may consider in determining whether to make a family provision order. Those matters were characterised as "a multifactorial list" by Basten JA in Andrew v Andrew above at [37]. In Verzar v Verzar [2012] NSWSC 1380, Lindsay J noted (at [123]) that those factors were "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. In West v Mann above, Kunc J noted (at [12]) that: "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"." The parties structured their submissions by reference to these factors and it will be convenient to address several of them in turn in this judgment, although I recognise that they should be considered as whole. I will first address matters that are common to both Imma's and Massimo's claim, namely, the extent of the estate and the competing claim of Maurizio to provision from the estate, and then address several matters as to which Imma and Massimo are in different positions. 11Imma, Massimo and Maurizio are all adult children of the deceased. In Young & Grainger v Outtrim [2011] NSWSC 391 at [108], in a passage approved by Ball J in Ogburn v Ogburn [2012] NSWSC 79 at [90], Hallen AsJ (as his Honour then was) point to several matters that may be relevant in dealing with family provision applications by adult children, as follows: "(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. However, where a child is adult and able-bodied, different views exist on whether such an applicant is someone for whom provision "ought" be made from the estate for his or her "maintenance, education or advancement in life" and whether there is any generally held social view as to the existence of a moral, or natural, obligation to an adult able-bodied child, sufficient to deprive a parent of the unfettered right of testamentary disposition: Hastings v Hastings [2010] NSWCA 197 at [7] and at [20]. (b) Thus, it is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where he, or she, can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation (McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801). (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia." 12Maurizio also draws attention to one other preliminary matter relevant to the proceedings, namely, that an attempt was made, without success, to give notice of the proceedings to the deceased's second wife, from whom he is divorced. By his affidavit dated 3 June 2014, Maurizio's solicitor sets out the steps which he sought to undertake to locate the deceased's former wife, including conducting an electoral roll search and sending a letter to her at her at her last known address, which was returned to sender. A property settlement had occurred between the deceased and his former wife following their divorce and Maurizio contends, and I accept, that the Court should proceed in dealing with this application on the basis that her circumstances are not relevant. The nature and extent of the estate 13A relevant factor (s 60(2)(c) of the Succession Act) is the nature and extent of the deceased'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 when the application is being considered. The deceased's estate, as disclosed in the inventory of property, consisted of a property in Bexley ("Bexley property"), two motor vehicles and cash on deposit with a bank. The Bexley property was and is subject to a mortgage in favour of the ANZ Banking Group. 14The Bexley property is a two storey residential dwelling house built in the late nineteenth century and constructed of stone brick blocks, brick and timber at ground level and with a roof of slate tile, comprising four bedrooms on the street level. A valuation tendered by the plaintiffs (Ex P5) indicates that the property is in poor condition and that numerous repairs are needed; that the roof is leaking into the property and damaging ceilings and floors and may need major repairs or replacement; and that the ceilings in the property are water damaged and need replacement or repair. That valuation report indicates that the current market value of the Bexley property in its present state is $855,000 and the current market value of that property, if the roof and ceiling of the property were replaced in a proper and workman-like manner, would be $950,000. An estimate of the cost of repairs to the roof at the Bexley property is also in evidence, in the amount of $58,950 plus GST (Aslanidis 15.6.2014 [3], [7]). Maurizio ultimately adopted the plaintiffs' valuation of that property in closing submissions. The estate also contains a motor vehicle and trailer with a value of $700 (Maurizio 2.6.2014 [4]) with the result that the assets of the estate would have a value of $855,700. 15The Plaintiffs identify the liabilities of the estate as $395,951 made up, relevantly, as follows (omitting items with nil balances): ANZ Banking Group - Registered Mortgage over Bexley Property - E $218,141 Rockdale City Council - Council Rates for Bexley Property - $13,110 Telstra - Telephone - $3,719 Westpac Banking Corporation - Credit Card as at 24 April 2012 - $2,980 Plaintiffs' Costs on the ordinary basis - $70,000 (Papanicolaou 13.6.2014 [7]) (subsequently updated to $77,000) Defendant's Costs - $88,000 (Whitfield 13.6.2014) Maurizio draws attention to maintenance costs incurred in respect of the Bexley property in the order of $22,000 and to an unsecured loan due by the deceased to Maurizio in an amount of approximately $71,187, although that loan would be of limited practical relevance so far as Maurizio is the sole beneficiary of the estate, if no order for provision is made. The total value of the estate, excluding the liability to Maurizio and maintenance costs and including the updated estimates of costs, is therefore in the order of $452,750, and that value reduces to approximately $359,500 if those amounts are included. Maurizio's position 16Maurizio need not establish that he would be entitled to a family provision order if the deceased had not provided for him, since his rights arise from the will and the application of principles of survivorship to property held as joint tenant with his father. However, as Ball J noted Ogburn v Ogburn above at [68], the size and nature of the deceased's estate and the extent to which the beneficiary under the will (namely, Maurizio) might be thought to have a legitimate claim on the estate (including any property that might be the subject of a notional estate order) is part of the context in which the Court must determine whether the deceased has made adequate provision for the proper maintenance, education or advancement in life of the eligible persons (namely, Imma and Massimo) who did not benefit under the will. 17Maurizio is 53 years old and arrived with his family in Australia from Italy in 1971 (Maurizio 28.3.2013 [1], [5]). He worked at a fast food restaurant during high school (Maurizio 28.3.2013 [6]). The deceased arranged for him to be enrolled in the University of Naples to study medicine in 1981 but he did not pursue that option (Maurizio 28.3.2013 [9]). He was also offered places at the Riverina College and Cumberland College of Advanced Science but did not attend because they were too far away (Maurizio 28.3.2013 [10]). Between 1982 and 1984, he was employed as an assistant store manager at a fast food chain and he was employed as a general paediatric nurse at a hospital in 1984. He enrolled at the University of New England but did not complete the course after his mother died (Maurizio 28.3.2013 [12]-[13], [16]). Maurizio lived with his father at various addresses and received a carer's allowance in relation to his father for several years (Maurizio 28.3.2013 [23]-[30]). He worked in an antique business opened by his father, Massimo and him from 1988 to about 1998. In 2000, Maurizio and the deceased purchased a property in Nundle, sharing the costs, to which I will refer below. In November 2004, Maurizio purchased a property in Ashfield for $500,000, partly with funds advanced by Massimo, and sold that property within a year at a profit, for $692,000, because of difficulty in meeting the mortgage repayments. He then repaid the loan to Massimo and deposited about $70,000 into the deceased's mortgage. 18Maurizio completed a short security course in 2009 and has since worked in the security industry, other than for a period when he worked in a company in which Massimo had an interest (Maurizio 28.3.2013 [31], [35]). He had been offered that job when he was in difficult financial circumstances, and his evidence is that the wage he earned was applied to his and the deceased's living expenses (Maurizio 28.3.2013 [35]). Maurizio now works as a security guard and earns about $4,100 per month and receives a total of $1,517 in rent from his partner, Ms Fricot, and another tenant in the Bexley property. He lives with Ms Fricot but they keep their finances separate and she has no assets of any substance. His total monthly income is about $5,617 and he estimates his monthly outgoings as of a similar order, about $5,697 (Maurizio 2.6.2014 [19]). 19Maurizio's evidence is that the deceased paid for the purchase of the Bexley property but that Maurizio assisted with the repairs to the property (Maurizio 28.3.2013 [22]). Maurizio's evidence, consistent with that of the plaintiffs' valuer to which I referred above, is that the Bexley property was in a poor state of repair when he moved into it after the deceased's death and he refers to repairs that have already been done and to the need to replace the roof at a quoted cost of nearly $59,000 plus GST. As I noted above, the property is subject to a loan, secured by a mortgage, of approximately $218,000 of which $15,000 represents arrears and Maurizio is paying $1,000 per month to cover the interest on the loan. His evidence is that rent paid by Ms Fricot and the other tenant in the Bexley property covers the interest on the loan and an amount towards rates and insurance (Maurizio 2.6.2014 [13]). 20Maurizio's other assets (excluding his entitlements under the deceased's will) have a value of approximately $517,187, comprising primarily a rural property at Nundle that he owned as joint tenant with the deceased, a unit in Naples, Italy (as to which the deceased transferred a 7/9th or 8/9th interest to Maurizio in October 2011 in a transaction that I will address below), several older motor vehicles and a sail boat of little value (Maurizio 2.6.2014 [19]). As I noted above, Maurizio claims repayment by the estate of a loan of $78,187 made to the deceased in January 2008 out of the proceeds of sale of the Ashfield property (Maurizio 2.6.2014 [19]). He has debts of $27,229 and had a superannuation balance of approximately $13,595 as at 31 December 2013. 21There were some difficulties with Maurizio's evidence in cross-examination. The Plaintiffs submit, and I accept, that Maurizio was reluctant to acknowledge any assistance by Massimo in cross-examination, including that Massimo had flown to Italy prior to the deceased's death and paid for the costs of that trip and a subsequent trip by both him and Maurizio and for the expenses of the deceased's funeral. Maurizio denied that his father spoke adversely of his children, although there was uncontested evidence of that occurring from time to time. He resisted the suggestion that, if he sold some of his properties (namely, the Bexley property, the rural property at Nundle and the Naples unit), he could arrange his affairs in a way where he and his partner could afford smaller accommodation, although this is not a matter that goes to his credit so much as a to his lack of recognition of competing claims on the estate. The Plaintiffs also submit that Maurizio has not taken advantage of opportunities available to him. I do not consider it necessary to reach findings as to that submission, where Maurizio is not an applicant for provision from the estate but the beneficiary under the deceased's will. Imma's claim for provision 22Imma presently resides in a separate apartment in the house owned by her husband, from who she is separated but not divorced (and to whom I will refer, without disrespect, as "Gino") in Mira, Italy. Imma initially claimed provision in an amount of $270,000 being an amount that would put her in a position to purchase a unit in Mira and to attend to dental and medical needs and includes approximately $50,000 for other exigencies. Imma's evidence in cross examination (T57, T63) was that she did not in fact wish to purchase a unit in Mira and wishes to renovate an existing property that she owns in Mira, adjacent to the property owned by her husband. The significant change in Imma's evidence as to where she wished to live, if provision was made, is one of several matters that raise concern as to the reliability of aspects of her affidavit evidence. Imma's evidence in (to which I will refer further below) was that the amount required to renovate the Mira property to a habitable state was initially EUR 150,000, which was reduced to EUR 100,000 after allowing for work that had already been done. Imma also refers to a need for dental work and provided a quote for $5,210 (Ex P1). Her evidence is that she is not an Australian resident or Australian citizen and will not be eligible for any Medicare benefits should that work be undertaken in Australia nor is there any such benefit available to her in Italy. As I noted above, Imma also seeks an amount of $50,000 for living expenses, bringing her claim, as revised to take account of the costs of renovation of the existing Mira property in place of the purchase of a unit in Mira, to $200,000. 23Mr Blank, who appears for Imma, submits that she gave evidence in an honest way. He submits, and I accept, that there were times when her cross-examination was affected by misunderstandings or language barriers. He also submits that Imma's evidence should be accepted in most of its substantive parts. On the other hand, there were several inconsistencies between Imma's affidavit and her oral evidence in cross-examination, and within her evidence in cross-examination. For example, Imma's evidence in cross-examination was that she did not have a copy of the deceased's will when she swore her first affidavit in the proceedings, although that will had been annexed to that affidavit (T17). Imma did not in her first affidavit take issue with the statement in the deceased's will that she had not been in contact with the deceased for 21 years. In cross-examination, Imma's position as to contact with the deceased varied between an initial position that the deceased was lying when he said in his will he had no contact with her from about 1989 (T20) to a proposition that the lack of contact was because he did not want to come and visit her rather than reflecting her attitude (T20). Imma also accepted in cross-examination that, after the deceased returned to Sydney from a visit to Italy in 1988, he never wanted to contact her, although she qualified that acceptance by saying he "kept saying that he was going to come back, and he was going to help me, but it was them that never contacted me" (T24), and she then denied that there had been no contact for 21 years (T27) but later accepted that that was the case (T66). There was little objective evidence to either support or contradict substantial parts of Imma's evidence. I am left in a position that I am not persuaded by substantial parts of Imma's evidence, by reason of its generality, its internal contradictions and the lack of objective evidence to support it. Relevant factors - the nature and extent of obligations owed by the deceased to Imma 24Section 60(2)(b) of the Succession Act draws attention to the nature and extent of any obligations or responsibilities owed by the deceased to the applicant and 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's estate. I should first refer to Imma's present position and to the history of her dealings with the deceased. Imma is now 61 years old (Imma 18.9.2012 [7]). She completed high school to the equivalent of Year 8 and her evidence is that she can only speak and write Italian and has limited ability to speak and understand English (Imma 18.9.2012 [9]). She arrived in Australia from Italy with her parents in 1971, worked for a time in a factory, at Arnott's Biscuits and then at a hospital in Australia. She married her husband, Gino, in 1981 (from whom she is now separated, but not divorced, as I noted above) and went with him to live in Italy. She subsequently had a son, returned to Australia for his birth and lived with Gino and the deceased at a property in Haberfield (Imma 18.9.2012 [12]-[16]). She returned to Italy in 1983 and has lived in Mira, Italy since about that time (Imma 18.9.2012 [17]-[21]). She has worked in part-time jobs in sales in Italy and has no formal qualifications. 25As I noted above, Imma and the deceased had little contact for an extended period, which she ultimately accepted was from 1988 until shortly before his death in Italy. Imma seeks to explain that matter by evidence that, from approximately the age of ten, the deceased whipped her with a buffalo whip and verbally abused her, calling her, amongst other things, a "prostitute" and a "piece of shit" (Imma 18.9.2012 [31]-[33]) and that was the reason she left Australia and was estranged from the deceased. On the other hand, Maurizio's evidence is that Imma "eloped" with Gino to Italy in 1981 (Maurizio 28.3.2012 [47]). Maurizio denies seeing the deceased being violent towards Imma or that Imma ever complained to Maurizio about mistreatment by the deceased (Maurizio 28.3.2012 [51]). He also denies that he ever saw his father with a buffalo whip or saw him hit Imma. The allegation of physical abuse made by Imma against the deceased is, of course, a serious one, made in circumstances where the deceased can no longer contradict it. In submissions, Maurizio contrasts Imma's evidence that the deceased abused her with her acknowledgement that she had not made any complaint before the proceedings were instituted (T71). I give little weight to the lack of such a complaint since I accept that such conduct is not always reported, and the obstacles to reporting may well have been greater in Imma's young adulthood in the 1970s than they are today. However, Gino, who Imma says witnessed one occasion of physical abuse and with whom she still is on friendly terms, did not give evidence that might have corroborated the allegation of abuse made against the deceased, and I must infer that his evidence would not have assisted Imma in that regard. I do not think I can properly make a finding that an allegation of that serious character is established on the limited evidence before me, particularly where other aspects of Imma's evidence altered under cross-examination. I do accept that it is likely that Imma was at least verbally criticised by the deceased, most likely in strong terms, since there is uncontested evidence of his criticising his childrens' character to third parties. 26Maurizio gives evidence pointing to the lack of contact between Imma and the deceased and, in particular, refers to a visit to Italy with the deceased in 1988 and says that Imma initially did not let the deceased and Maurizio stay with her, but then allowed them to do so for two days (Maurizio 28.3.2012 [49]). Imma denied Maurizio's evidence that she had refused accommodation to the deceased and Maurizio in 1988 (T23). It is not necessary to resolve that dispute for the purposes of these proceedings, particularly where Imma now accepts the lack of contact over the 21 years since 1988 to which the deceased referred in his will. 27Imma's evidence is that, when the deceased visited her on one occasion, he provided her with a handwritten note (Ex P2) which reads, on one side, as follows: "Dear [word crossed out and illegible], Imma Raiola finish [sic] I'll be sending to you a photo and a document. Sorry if it's late but I've been very busy and haven't had time. I still keep my promise and as soon as I get back I'll fix your paper and your problem. But you have to do the right thing like before. When I get back we'll have our last talk. I still remember you, I still love you. I'll advise you when I'll be coming back. Regards, John R." A handwritten notation "de fachtor" then appears, possibly in a different handwriting, and the opening words of that document "Imma Raiola" may also be in a different handwriting to the other parts of the note. On the back of the page, there is another note, which all parties accepted was also in a different handwriting as follows: "I still remember you. I'll never forget you - you are always in my THOUGHTS I LOVE you seri [sic] much." Imma's evidence was initially that she was given the document at Ex P2 in 1997 or 1998 by her father at her house (T12), although he did not write the note in front of her (T13). She subsequently qualified her evidence to say that she did not remember the date, but it was on a second visit of the deceased to her after a first visit in 1988. 28Imma submits that that note at least indicates that the deceased tried to assist her and made it clear that he still had love and affection for her. Imma did not annex that note to her initial affidavit in the proceedings and it first emerged in evidence on the first day of the hearing. I do not draw any adverse inference from that matter, since Imma's solicitor gives evidence, which I accept, that Imma had made it available to him a considerable time previously. Maurizio also points to a difference between Imma's evidence and her solicitor's evidence as to when she gave him that document. It seems to me that nothing turns on that difference where, on either version, the document was provided by her to her solicitor at least twelve months ago. However, Imma's evidence as to when the deceased gave this document to her was confusing and difficult to reconcile with the evidence of the periods in which she had contact with the deceased. The fact that the initial addressee of the note is crossed out and the words "de fachter" seem to be added makes it more difficult to determine who wrote the note and in what contexts and to whom it is directed, and its significance largely depends on Imma's evidence about it. I find myself unable to place any significant weight on this document, given the alteration to the addressee of the note on the first page, the apparent changes of handwriting both on the first page and between the first page and the back of the document, and the somewhat cryptic content of the document. 29Imma's evidence is that, despite her estrangement, she attended her father when he fell ill in late 2011 and provided comfort to him. Again, the extent of evidence in this regard is somewhat limited, being no more than Imma's generalised evidence to this effect, not expanded by evidence of the frequency or nature of such attendances, and supported by a single photograph of Imma at the deceased's bedside while he was in hospital in Italy (Ex P6). Imma also gave evidence that, in November 2011, the deceased said to her "I'm sorry. I want to change the will" and telephoned Maurizio telling him of that matter. Maurizio denies such a conversation. Imma also gives evidence that she heard the deceased call his solicitor, Ms De Gregorio, although she did not know what he told the solicitor. Ms De Gregorio's evidence is that she does not recall such a conversation and I am not satisfied that such a conversation occurred. 30In submissions, Imma conceded that there was a period of estrangement from the deceased after when she left home but submits this should not be held against her given the circumstances under which the estrangement occurred - namely, on her account, because of the physical and verbal abuse to which I referred above - and her father maintained some love and respect for her (as to which she relied on the note at Ex P2) and she for him, evidenced by the fact that she attended to him in the period prior to his death. On the other hand, Maurizio submits that the deceased had no obligation to make provision for Imma (and Massimo) and that, having regard to the poor relationship that existed between the deceased and Imma and the lengthy period of estrangement, there was no obligation to make provision for her. Conversely, Maurizio submits that he had a close relationship with the deceased having lived with him for lengthy periods of time and cared for the deceased, at least to some extent, for about 10 years prior to the deceased's death. Maurizio contends that there was a strong obligation to make provision for him having regard to the fact that he had cared for the deceased, lent him money and is in poor financial circumstances. I will address these matters further below. Imma's financial resources and needs 31Other relevant matters in an application of this kind include the financial resources (including earning capacity) and financial needs, both present and future, 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 (s 60(2)(d) of the Succession Act); where the applicant is cohabiting with another person, the financial circumstances of that other person (s 60(2)(e) of the Succession Act); and whether any other person is liable to support the applicant (s 60(2)(l) of the Succession Act). 32Imma's evidence is that she separated from Gino in 1992 but they have not been divorced, and she is on friendly terms with Gino and lives in a separate apartment in his house in Mira. Her evidence was that as part of an informal property settlement with Gino, he gave her a "derelict home" at 434 Via Nazionali, Mira in Italy ("Mira property") and allowed her to continue living at his adjoining property at 435 Via Nazionali (Imma 18.9.2012 [21]). Her evidence in cross-examination was that parties to a marriage in Italy are only entitled to that which they had at the commencement of the marriage. It is not possible to assess the accuracy of that understanding and there is no evidence as to the extent of her or Gino's contributions to the acquisition of the larger property at 435 Via Nazionali in which they now separately reside. 33The evidence as to the state of the Mira property was incomplete and contradictory in several important respects. A public record maintained by the Ministry of Finance in Italy indicates that Imma owns a property at 26 Via Riscossa, Mira (Maurizio 2.6.2014 Ex MR 68). Imma's evidence was initially that 26 Via Riscossa was not her address but the street appears to intersect with Via Nazionali and she agreed that the floor plan shown for that property was the same as the floor plan for the Mira property. She ultimately accepted in cross-examination that the reference to the property at 26 Via Riscossa may refer to the address of the Mira property many years ago and probably referred to her property (T37). That record in turn indicated that that property was built in 1967 for warehouse use, with one floor and an entrance shared with a different residential unit (presumably her husband's house at 435 Via Nazionali) and was made up of four rooms plus facilities, with floors, plasterwork, doors and windows unfinished, and a separate property for garage use. Imma denied, in cross-examination, that the information contained in that record as to when the property was built was correct, claiming that the Mira property was a very old house rather than a warehouse built in 1967. That property was in turn valued by the Ministry of Finance at EUR 50,000 as at 29 March 2013. That record broadly supports Imma's evidence as to the condition of the property but is inconsistent with her evidence as to its function, in suggesting that it is a warehouse and garage facility rather than a property that could readily be occupied as an alternative to sharing the adjoining residential property with her husband. 34Imma's affidavit annexed photographic evidence showing that the Mira property lacked a roof but she acknowledged in cross-examination that a roof had been installed by Gino in August 2012 and there is other evidence showing that roof in place, although not necessarily entirely complete. Imma was initially prepared to concede in cross-examination only that the roof was "fixed up a little bit", although she ultimately accepted that the roof had been installed although there was still "a little bit of work to be done" (T41). At one point in cross-examination, Imma suggested that she paid for the work on the adjoining property from the money that the deceased had given her on the sale of her interest in the Naples unit to him (T42). However, she subsequently qualified her evidence as to her contribution to the cost of repairing the roof to say that she had given her husband EUR 3,000 or 4,000 toward that cost (T43) that was paid in cash and as to which there was no other record (T44). 35Imma initially estimated the value of the Mira property was EUR 25,000 - 30,000 and the amount needed to repair the property was EUR 150,000 (Imma 18.9.2012 [45]-[46]). The valuation of the Mira property at EUR 50,000 by the Ministry of Finance is significantly inconsistent with Imma's estimate of its value; her evidence in cross-examination was that she estimated that value because she did not remember the valuation by the Ministry of Finance, although she also noted that properties in Italy have depreciated in value (T51). Conversely, Maurizio relied on a valuation of the Mira property at EUR 173,000 that was undertaken by a person who does not appear to have inspected the property and without regard to its condition. Imma contends, and I accept, that little weight can be given to that valuation. 36Imma's evidence was that she had a quotation supporting her original estimate for repair works in the Mira property of EUR 150,000 that she had given to her solicitors (T43); however, that document was not produced when a call was made for it. Imma then reduced that estimate to EUR 100,000, by reason of the repairs that had already been done to that property, but accepted in cross-examination that she had not obtained a quotation to support the estimate of EUR 100,000 which she had "roughly" estimated (T43). The change in this estimate raises a question as to the weight to be given to Imma's evidence in this regard. I recognise that Practice Note SC Eq 7 permits a claimant to give evidence of his or her best estimate of costs of renovation of property. Nonetheless, the weight that can be given to Imma's estimate as to those costs is limited by the shifts in her evidence as to the present condition of that property and as to that estimate. 37Imma acquired an interest in a unit in Naples upon her mother's death in 1989. In about October 2011, the deceased paid Imma EUR 23,000 as consideration for the transfer of that interest in that unit to him. Imma's affidavit evidence was that she spent the amount of EUR 23,000 received from the deceased on the sale of an interest in a Naples unit to which I will refer below on day-to-day living expenses and meeting bills (Imma 18.9.2012 [59]). Her evidence in cross-examination as to how that money was spent was in somewhat general terms, that she spent this money in part to pay down some debts, in part to travel to Naples to see her father and for associated expenses and in part for living expenses. 38There is also a collateral dispute between the parties in respect of a modular kitchen that had been installed in the Naples unit and other furniture in that unit. Maurizio contends that he had left the key of that property with Imma and that she and her son and husband took antique furniture, the kitchen and the fridge from that property. Maurizio annexes a statement given by Mr Pisani, a friend of the deceased, who refers to having ascertained that Imma came to Naples "for the purpose of packing and taking away the furniture and household goods that were stored in the rooms of the apartment" and that: "After a couple of days a truck arrived on which furniture, writing desks, chairs, parcels, a refrigerator, a modular kitchen and other things were loaded and taken away." The last sentence of that statement does not identify who was involved in taking away those items, although the inference that it was Imma and her family members is plainly intended to be drawn from the reference to her in the previous paragraph. Mr Pisani did not give evidence in the proceedings. Maurizio subsequently obtained a default judgment on 1 April 2014 in an Italian Court against Imma in respect of the property removed from the Naples unit. That judgment was tendered without objection and refers to evidence given by Mr Pisani that Imma had told him that she had come to Naples to collect the furniture with Massimo's agreement and that Imma's son removed the modular kitchen cupboards, the refrigerator and other furniture. The judgment ordered compensation for the removal of the relevant property and costs. Imma denied removing items from the Naples unit and her evidence is that she did not have the money to travel to Naples to defend the proceedings which Maurizio had brought against her in respect of the removal of furniture from the Naples unit (T64). It is ultimately not necessary to determine the dispute as to this matter to determine this application. 39Imma's evidence is that she has sought employment in Italy by applications made to various businesses and says she is unable to find work by reason of her age and the state of the Italian economy; that she would not become eligible for a pension until she attained the age of 65 years - that is, in 3 years time - and that the present age pension in Italy is approximately EUR 250 a month (Imma 18.9.2012 [50]-[51]). Imma submits there is no other person liable to support her although she does rely on gratuitous help from her brother Massimo, her husband Gino, her friend Stefano, and her son Morris from time to time. Imma's affidavit evidence was that Gino meets all the household expenses and she accepted in cross-examination, consistent with documents that were put to her, that money paid for rent in respect of part of his property at 435 Via Nazionali is paid into her bank account from time to time, although her evidence was that that money belonged to Gino. Mr Blank submitted that the amounts involved and the exact nature of these transactions are unlikely to have any effect on Imma's overall financial circumstances. However, that matter highlights a significant degree of incompleteness and uncertainty in the evidence as to Imma's financial position. 40Imma's affidavit evidence was also that she had a "boyfriend" (in the term used in that affidavit), Stefano, who was aged 51, and that all she knew about his financial affairs was that he sold a bread shop business in about 2008 and she did not know for what amount he sold the business or his present income. Imma subsequently did not accept in cross-examination that Stefano was her boyfriend, although it was unclear whether that was a change in her evidence, an error in her original affidavit arising from translation difficulties or a change in the underlying factual position. Imma's evidence was that Stefano provides her financial assistance to her from time to time in exchange for cleaning services she provides. Her evidence is that Massimo and her son also provide financial assistance from time to time. Physical disabilities 41It is also relevant to have regard (s 60(2)(f) of the Succession Act) to 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. Imma's evidence is that she has rheumatism and dental problems and Maurizio's evidence is that he has back and knee problems. Contributions to the acquisition etc of the estate 42Another relevant fact (s 60(2)(h) of the Succession Act) is 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. Imma's evidence is that, while she worked in a factory and then at Arnott's Biscuits, she gave all her wages to the deceased and received a minimal allowance (Imma 18.9.2012 [11]). Imma later worked at a hospital as a kitchen assistant and then as a nurses' aid for approximately five or six years and her evidence is that she continued to give her earnings to her father in that period (Imma 18.9.2012 [12]). Maurizio disputes that Imma contributed her wages to the deceased but contends it was not in any event a significant contribution. He denies that the deceased and his mother asked Imma for money and claims that Imma put her money away and bought things for herself (Maurizio 28.3.2013 [45]). I accept that it is possible that these contributions were made, but the dispute as to this matter and the difficulties with other aspects of Imma's evidence are such that I am not satisfied of this matter on the balance of probabilities. The amounts involved are not likely to be substantial contributions to the estate given the passage of time and intervening purchases and sales of properties since any contributions were made. The deceased's testamentary intentions 43Section 60(2)(j) of the Succession Act draws attention to the relevance of evidence of the testamentary intentions of the deceased, including evidence of statements made by the deceased. The deceased gave reasons for excluding Imma in cl 11 of his will as follows: "11. (i) I have not heard from her in 21 years; (ii) She does not know if I am still alive; (iii) She has lost all contact with me; and (iv) She has not for many years respected me as her father." Imma submits that these statements were incorrect, at least at the time of the deceased's death, when she had attended him in hospital, and that the question of whether she respected her father is intertwined with the way her father treated her. I must, however, give weight to these statements as indicating the depth of the estrangement between Imma and the deceased, at least at the time the will was executed, while accepting that there is evidence that she did visit him in hospital prior to his death in Italy. 44The solicitor who acted for the deceased in preparing the will also gave clear evidence of the deceased having explained to her why he wished to leave his estate to Maurizio rather than to Imma, including that he had not seen Imma for many years. The deceased also told her that Maurizio had looked after him for ten years, did everything for him and took care of him when he was sick (Di Gregorio 4.4.2013 [8]). I will refer further to her cross-examination below but I accept the substance of that evidence. It seems to me that significant weight needs to be given to the deceased's intentions in this regard. Outcome in respect of Imma 45Imma submits that she is clearly in need of financial resources and has very limited earning capacity, since she is not formally trained, given her age, and since the Mira property is, she contends, uninhabitable. Imma accepts that she is resident with her husband and accepts there is no direct evidence of his financial circumstances. Maurizio submits that Imma's evidence should be rejected because, although her evidence is that she and Gino are separated and live separately in the same house, he pays her household expenses and gives her cash (T49) and their financial affairs are intertwined, so far as payments of rent for her husband's house are paid into Imma's bank account; she receives financial assistance from her son and friend Stefano; she said in her first affidavit that the renovations would cost EUR 150,000, reduced that amount to EUR 100,000 in her second affidavit and claimed to have a written quotation for EUR 150,000 which was not produced in response to a call (T48-49). Maurizio submits that the inference should be drawn that Imma does not intend to carry out the renovations to the Mira property on which she relies in support of the claim for provision. 46Maurizio also submits that no order for provision should be made in Imma's favour because she has not made a full and frank disclosure of her circumstances and the Court cannot be satisfied as to her true position, and an order for provision would force him to sell the Bexley property where he has no other accommodation in Australia. Maurizio also submits that, having regard to the small size of the estate, Imma's poor relationship with the deceased and his strong competing claim, it is inappropriate to make an order that would deprive him of accommodation, where no appreciable advantage would be conferred on Imma. Had I otherwise held that an order for provision was justified, I would not have accepted that submission, where it would be open to Maurizio to sell either the Nundle land or the Naples unit to fund provision for Imma or, possibly, to increase the mortgage on the Bexley property. It would also be open to Maurizio to sell that property and acquire a smaller property, and the fact that he keeps animals or is used to living in a larger property, to which he referred in cross-examination, do not provide convincing reasons why that course should not be taken if he was not prepared to or cannot sell the Nundle land or the Naples unit. 47I give weight to the fact that Imma and the deceased were estranged for a significant period and I think it possible that Imma exaggerated, possibly substantially, the extent of their rapprochement with him in the period prior to his death. I am satisfied that Imma is presently unemployed and will have difficulty in finding employment given her age and the economic environment in Italy and that she depends on sharing a property with her husband, from whom she is separated and not divorced. At the same time, it does not seem to me that there was any suggestion in this case that Imma is not secure in present accommodation in that property, in which she has now lived for a considerable period, although her evidence is that she would prefer to reside in separate accommodation. 48I am also conscious that there are significant gaps and inconsistencies in Imma's evidence, to which I have referred above. The importance of adequate evidence as to a claimant's position in an application of this kind was emphasised in Collings v Vakas [2006] NSWSC 393, a case decided under the former Family Provision Act, where Campbell J (as his Honour then was) noted (at [66]-[67]): "Before the Court can make an order in the plaintiff's favour, it needs to be satisfied that she was left, at the testator's death, without adequate provision for her maintenance, education or advancement in life. It is clear that she owns no real estate (unlike her brothers), and that she has ongoing family responsibilities. However, before a court can be satisfied that a plaintiff has been left without adequate provision, the court needs to be persuaded that it has been presented, at least in broad outline, with the whole picture concerning the plaintiff's financial situation. In the present case, even though there are two elements of the plaintiff's financial situation about which I am satisfied (that she owns no real estate, and has family responsibilities), when another crucial element of the plaintiff's financial situation (namely, her income and expenditure) is not satisfactorily proved, it is not possible to conclude that she has been left without adequate provision." 49In Foye v Foye [2008] NSWSC 1305 at [14]-[15], McLaughlin AsJ also noted that: "It cannot be emphasised too strongly that it is incumbent upon an applicant for provision to disclose to the Court as fully and as frankly as possible all details of that applicant's financial and material circumstances. Where an applicant is living with a spouse or partner, that obligation extends also to the circumstances of such spouse or partner. It is quite inappropriate for an applicant to fail (as Edward has failed in the instant case) to set forth the financial and material circumstances of his wife, and then to say that he was not asked to provide any information concerning her finances. Whether or not he is expressly requested to provide such information, an applicant has an obligation to place that information before the Court. Neither the Court nor the Defendant should be required to embark upon a search for information which Edward himself had an obligation to provide frankly and voluntarily in support of his claim. If he chooses not to inform the Court of the details of the finances of the wife with whom he is living, then the Court is entitled to draw appropriate inferences from that omission." These statements were quoted with apparent approval by Hallen J in Aubrey v Kain above at [196]-[197], although his Honour there accepted the sufficiency of the evidence as to the claimant's financial and material circumstances. I accept that this approach may have lesser weight where an applicant and his or her spouse are separated and not on good terms, but Imma here accepts that she is on good terms with Gino and, as I noted above, her evidence indicates that her finances are intermixed with his so far as she has received rent payments in respect of 435 Via Nazionali. 50In the present case, there is no satisfactory evidence as to the financial position of Gino. That omission is more significant where, on Imma's evidence, her and Gino's financial affairs are intermingled in respect of the receipt of the rent payments which she has received in respect of 435 Via Nazionali. The evidence as to the condition and value of the Mira property is incomplete in significant respects, and I am left uncertain as to whether Imma does intend to move into that property, or to remain in the house that she has now occupied with Gino for many years. The evidence as to the expenditure of funds received by Imma from the deceased on the sale of the Naples unit is limited. 51Ultimately, I am not satisfied that Imma has established a claim to provision, given the deceased's expressed intentions, the length of the estrangement between her and the deceased, the change in her position from her affidavit evidence referring to the purchase of a unit to that expressed in cross-examination that she wished to live in the Mira property, the inadequacies in the evidence as to the present state of the Mira property and as to her and Gino's present financial position and the other matters to which I referred above. Massimo's claim 52Massimo seeks provision to the extent of the value of a one-ninth interest in the Naples unit, being $33,410, based on a total value of the unit of EUR 209,470 or approximately $303,731.50 (Imma 18.9.2012 [64]). He also submits that he should be entitled to an amount by way of legacy of $19,474, being the amount of expenditures for his travel to Italy at the deceased's request or to assist the deceased and the amount he paid for the deceased's funeral expenses. The total provision he seeks for the estate is therefore $52,884. Maurizio responds that Massimo's claim must fail because, so far as the claim is based on his interest in the Naples unit, Massimo cannot use these proceedings as a vehicle to enforce the recovery of the value of his interest in that unit under the guise of an order for provision, and an order for recovery is not for the adequate and proper maintenance of Massimo; a family provision claim also cannot be used to reimburse Massimo for expenses that he incurred; and the claim for exigencies must fail because Massimo has no need for such a fund. The nature and extent of obligations owed by the deceased to Massimo 53I referred above to relevant factors including the obligations and responsibilities owed by the deceased to the applicants and others and addressed the position in relation to Maurizio and Imma above. Massimo, like Imma and Maurizio, is an adult child of the deceased. Massimo submits that he had a relationship with the deceased that from time to time deteriorated but that he continued to invite the deceased to family functions and continued to take part in his health and welfare as evidenced by his travelling to Italy when the deceased was ill. Massimo also submits that there was an obligation or responsibility upon the deceased to ensure that his interest in the Naples unit was maintained, where that inheritance formed part of the basis for the deceased's decision not to include Massimo in the will. 54I should say something further as to Massimo's position and his relationship with the deceased. Massimo is presently 54 years old. He commenced work in a fast food restaurant at age 15, was promoted to store manager in 1984 and subsequently worked as a store manager or assistant manager at other fast food restaurants and as a manager between 1987 and 1988 at a supermarket. He also completed a Bachelor of Business degree through part time study and a CPA qualification in 1995. Massimo opened his own accountancy practice in 1990 and presently operates that accounting practice (Massimo 26.11.2012 [8]) and also has substantial business interests. Massimo's evidence is that part of his earnings from his part-time jobs were given to the deceased until he was married. 55Massimo's evidence is that his relationship with the deceased began to deteriorate shortly after he married in 1986, since the deceased did not accept that his wife was not from an Italian background (Massimo 26.11.2012 [11]). His evidence is also that he and his wife were verbally abused by the deceased in the period where they were resident with the deceased and Maurizio at Haberfield (Massimo 26.11.2012 [21]). I accept that Massimo subsequently attempted to strengthen his relationship with the deceased in 1991 when his wife and son travelled to Italy with the deceased, although that attempt failed when his wife raised a reasonably based objection to the manner in which the deceased spoke of his children, the deceased was abusive to his wife and she returned to Australia. Massimo's evidence is also that, notwithstanding the difficulties in his relationship with the deceased, he continued to invite the deceased to family functions, Baptisms, Holy Communion, Christmas and Easter events (Massimo 26.11.2012 [30]). In 2007, following a failed investment, Massimo approached the deceased for financial assistance. Massimo's evidence is that the deceased said he would assist; that assistance was not necessary as Massimo resolved the difficulties; however, his relationship with the deceased further deteriorated thereafter (Massimo 26.11.2012 [32]-[38]). 56Massimo's evidence (Massimo 26.11.2012 [45]) is that, in October 2011, he travelled to Italy at the request of the deceased, who said words to the effect that: "I am not well. I am by myself. I am all alone. There is no-one to look after me. I will pay your expenses. Please come over and look after me." Massimo paid for his trip and incidental expenses (Ex P4). Massimo made a second trip to Italy on 15 December 2011, again to visit the deceased who was then ill and incurred further expenses including airfares and incidental expenses (Massimo 26.11.2012 Annexure C). Towards the end of December 2011, when the deceased's health had deteriorated, Massimo and Maurizio again travelled to Italy, although the deceased died before they arrived. Massimo paid for both airfares and has not been reimbursed by the estate or Maurizio. Massimo's financial resources and needs 57As I noted above, other relevant matters in an application of this kind include the financial resources (including earning capacity) and financial needs, both present and future, 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 (s 60(2)(d) of the Succession Act); where the applicant is cohabiting with another person, the financial circumstances of that other person (s 60(2)(e) of the Succession Act); and whether any other person is liable to support the applicant (s 60(2)(l) of the Succession Act). 58Massimo accepts that he has property holdings and an income, but submits that he is self-employed and his earnings fluctuate. He also submits that he has large expenses and services significant debt arising from his property holdings. Massimo's wife has an interest in several joint assets and she also has a significant income. Massimo gave evidence as to his assets, liabilities, income and expenditure. Maurizio submits, and I accept, that Massimo's evidence as to his liabilities proceeded on an incorrect premise, namely, that the claimed negative equity in companies in which he is a shareholder should be treated as a personal liability, calculated by reference to his percentage of shareholding in each company. As Maurizio points out, that approach ignores the separate legal personality of each company. Maurizio also points out, and I accept, that Massimo's valuation of his assets also did not take into account that at least one asset of one of those companies had been valued at historical cost rather than current market value (T97). Massimo ultimately did not press, in closing submissions, the approach to valuing his and his companies' liabilities adopted in his affidavit evidence. 59In submissions, Massimo accepted that his financial circumstances were accurately represented in a finance application dated 23 December 2013 (Ex D14) which was more favourable that his affidavit evidence. I think it preferable, where Massimo is actively engaged in business, not to set out the detail of that position in this judgment. It is sufficient to note that that finance application disclosed very substantial assets and a very substantial excess of assets over liabilities and a substantial combined income of Massimo and his wife. Massimo conceded in cross examination that he had uncommitted income of $19,000 each month, although the expenditure listed in his affidavit sworn 26 November 2012 were in excess of those shown in the finance application. Massimo submits that the affidavit is more detailed and realistic. I do not find it necessary to determine that matter, since either position would be sufficient to maintain a comfortable lifestyle for Massimo and his family. Contributions to the acquisition etc of the estate 60As I noted above, another relevant factor (s 60(2)(h) of the Succession Act) is any contribution (whether financial or otherwise) by Massimo to the acquisition, conservation and improvement of the estate of the deceased or to the welfare of the deceased or the deceased's family whether made before or after his death for which adequate consideration (not including any pension or other benefit) was not received, by Massimo. Massimo submits that he made substantial and significant contributions, both financially and otherwise. 61Massimo's evidence is that he gave the deceased 50% of his wages from the age of 21 (about 1980) until he married in 1986. Maurizio disputes that Massimo contributed their wages to the household or the deceased but contends it was not in any event a significant contribution. Massimo made other contributions that are, in any event, more substantial. Massimo's evidence is that he worked in the antique shop opened in 1988 together with the deceased and Maurizio, which was operated for several years until Maurizio and the deceased closed it in the mid-1990s. His evidence was that it was his idea to open the shop (Massimo 26.11.2012 [13]) and, given his success in other business fields, I think it likely that his evidence is accurate and would prefer his evidence to Maurizio's evidence in that regard. Massimo contributed to that business by providing bookkeeping services and placing his name on the lease. Massimo's evidence is that he was not paid any monies for his share in that antique business. 62Massimo points out that he also provided a loan to Maurizio to assist him to acquire the property in Ashfield that was ultimately sold for a profit, which was then applied to reduce the deceased's mortgage, and I accept that this was a significant contribution to the deceased's welfare. Massimo also points out, and I accept, that Maurizio's assistance to the deceased was facilitated when Massimo provided a job to him at a time when he was in difficult financial circumstances. Massimo also points out, and I accept, that he paid for his own trips to Italy and for a trip to Italy with Maurizio in late 2011 and attended to the funeral arrangements for the deceased. Massimo's evidence was that he had incurred costs of nearly $20,000 in respect of these trips, paying rates in respect of the Naples unit and the Australian properties, and paying the funeral expenses of nearly $4,000. The deceased's testamentary intentions 63As I noted above, s 60(2)(j) of the Succession Act draws attention to the relevance of evidence of the testamentary intentions of the deceased, including evidence of statements made by the deceased. Clause 10 of the deceased's will provides that: "I HAVE SPECIFICALLY AND INTENTIONALLY MADE NO PROVISION IN THIS MY LAST WILL FOR MY SON MASSIMO RAIOLA for the following reasons: (i) He does not respect me as his father; (ii) He has not for many years come to my home to visit me or telephone me for my birthday; (iii) He does not telephone me or contact me to see how I am feeling despite my health problems. If we speak by telephone it is only me that phones him on occasion; (iv) He has an interest in a property in Italy which was attained after the death of my first wife. I have kept up the maintenance and paid the costs of such maintenance and taxes. Massimo has refused to reimburse me for all those expenses and has only paid a portion of those expenses; (v) Massimo has done very well financially in his lifetime and does not need my assistance; (vi) On father's day in 2006 I was in hospital due to poor health. Massimo came to visit me and he brought me only a can of coke as a gift; (vii) I needed an operation in 2006 and I asked my son Massimo if he could pay for the operation, the sum of $1,500 and he decline and said 'do not call me for money'; (viii) My first wife Massimo's mother died 20 years ago and I have been informed by the Italian authorities that her coffin will need replacing. I asked Massimo to help me with the cost of replacing her coffin. The cost of EUR 2,000.00. He said 'I will not pay for that'; (ix) I have asked Massimo for financial assistance to help me but he has refused. I have been left, at times with no electricity or telephone as I could [not] afford to upkeep these expenses; and (x) On 5 December 2008 I had an argument with Massimo as he wanted me to use my home as security for him to purchase a commercial property. I did not agree and he became very abusive towards me and said 'fuck you'. He also then sent me a text message on 9 December 2008 in which he repeated the same 'fuck you'." 64Maurizio's evidence is also that, when his father was to be operated on in respect of a heart condition in September 2008, he told Maurizio not to let Massimo know of the operation and that the deceased did not want Massimo at the funeral and did not want Massimo "to grow fat with my money" after the deceased's death (Maurizio 28.3.2013 [33]). Maurizio also gives evidence as to discussions with Massimo in respect of a replacement heart valve for the deceased and of the circumstances in which Massimo arranged for Maurizio to be employed by a company in which he had an interest in 2009. There are disputes as to aspects of these matters which it is not necessary to resolve for the purposes of this application. 65The solicitor who acted for the deceased in preparing the deceased's will also gave clear evidence of the deceased having explained to her why he wished to leave his estate to Maurizio rather than to Massimo, including that Massimo had rejected a previous request by him to borrow money in strong terms. The deceased also told her that Maurizio had looked after him for 10 years, did everything for him and took care of him when he was sick (Di Gregorio 4.4.2013 [8]). Although the solicitor was cross-examined as to the detail of her recollection, including as to a difference between a reference in the deceased's will and in her evidence to the deceased's position in respect of the can of Coca Cola that was either brought or not brought by Massimo to the deceased in hospital, I accept the substance of her evidence. Other relevant matters 66The Court may also have regard (s 60(2)(p) of the Succession Act) to any other matter that it considers relevant including matters in existence at the time of the deceased person's death or at the time the application is being considered. Massimo submits that the Court should take account of his efforts in attending to the deceased's funeral arrangements and paying the associated expenses including the airfare and burial costs. He points out that no provision was made in the liabilities of the estate for any reimbursement of these amounts. I interpolate that the estate belatedly acknowledged its liability for funeral expenses in closing submissions. 67Another potentially relevant matter is the deceased's dealings with Massimo in respect of the Naples unit. Massimo's evidence is that, after his mother's death, her share in the Naples property was divided equally between her spouse and her children under Italian law, so that the deceased owned 67.5% of that property and Maurizio, Imma and himself each owned 12.5% of the property. That evidence is broadly supported by a property search in respect of the Naples unit that shows each of Imma and Massimo as owing approximately 11% of the property. Massimo's evidence is that the deceased transferred his share of the property to Maurizio, using a power of attorney that Massimo had given to him when he was young and had not revoked, and that he first he became aware of that transaction in about October 2011 and he had not consented or received any payment for that transfer (Massimo 26.11.2013 [50]-[53]). Imma found a cheque dated 27 October 2011 for EUR 23,000 drawn by the deceased in favour of Massimo in the deceased's personal papers after his death (Imma 18.9.2012 [61], Ex P3) but that there was less than EUR 500 in the relevant account as at 30 November 2011 (Imma 18.9.2012 [61]-[62]), and it appears to be common ground that the account on which that cheque was drawn therefore did not have funds available to meet it. 68Several transactions in respect of the Naples unit are documented in a Deed of Gift and Deed of Sale and Acquisition dated 27 October 2011, which is governed by Italian law (Maurizio 28.3.2013 Ex MR 28). The steps involved in that transaction start with the position after the deceased's first wife died in June 1989, when her half interest in the property was allocated between the deceased and the three children. On the date of the Deed, the deceased conveyed to Massimo (who, I accept, was not aware of the transaction) and Imma a two-thirds beneficial interest in the property (to be divided between them) and subject to his life interest in the property. Massimo and Imma then purportedly sold their interests to Maurizio for EUR 23,000 each, and Imma was paid that amount by the deceased but Massimo was not paid the amount due to him. The effect of the Deed of Gift and Deed of Sale and Acquisition was that the deceased's interest of 62.5% in the Naples Unit, being his own 50% interest and a 12.5% interest which he acquired on the death of his wife in 1980, was divided between his three children giving approximately a third interest to each child. The third interest held by Imma was then transferred to Maurizio in exchange for the amount paid by the deceased and the third interest held by Massimo was transferred to Maurizio for no consideration. The document records that, by that transfer, Maurizio became the owner of the whole interest in the Naples unit. Outcome in respect of Massimo 69Maurizio points out that, as Windeyer J observed in Blore v Lang [1960] HCA 73; (1960) 104 CLR 124 at 137, the jurisdiction under the Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW) (to which the Succession Act is the successor) is to provide for deserving persons according to their requirements, rather than to reward past services. Maurizio submits, and I accept, that the statute cannot be used as a basis of recovery for other debts or claims for compensation if the statutory requirements for an order for provision are not satisfied. The first stage of the two stage process identified in Singer v Berghouse above at 208 emphasised the importance of the question whether the claimant had been left without adequate provision for his or her proper maintenance and advancement in life and, in Vigolo v Bostin above at [124], Callinan and Heydon JJ also observed that no order for provision should be made where there was no suggestion that a claimant would be unable to meet, from his or her resources, the cost of properly maintaining, supporting, educating or advancing himself or herself in life. 70Massimo has plainly had substantial success in his professional and business affairs and has accumulated substantial assets for his family. He fairly accepted in cross-examination that he had no need for provision (T129) although he claims, with real force, to have a claim for reimbursement for the expenses incurred in travelling to Italy in late 2011 that would fairly be acknowledged by Maurizio or the estate. I accept that the deceased's conduct in transferring Massimo's share of the Naples to Maurizio without his authority was reprehensible and that Massimo had at least a moral claim to reimbursement of his travelling expenses to Italy which many members of the community would consider ought to have been acknowledged by the estate or by Maurizio. However, the question whether the deceased made proper provision for Massimo has to be determined by reference to the size of the estate and competing needs of Imma and Maurizio, who have been less successful than Massimo and are in a substantially weaker financial position. In my opinion, the size of the available estate and the competing demands on it means that the deceased did not fail to make adequate provision for Massimo. The proceedings brought by him should be dismissed for that reason. 71I should note, however, that the uncontested evidence raises at least the possibility that Massimo's interest in the Naples unit was transferred away from him by the deceased in fraud on a power of attorney and without consideration and that Maurizio received that interest as a volunteer. The question whether that transaction is open to challenge in other proceedings in Australia was not fully explored in the proceedings and it is not necessary or appropriate that I express any view in that regard. Any such claim by Massimo would have to be brought in separate proceedings, exposing both Massimo and Maurizio to further costs. I raised that risk with Maurizio's counsel in the course of submissions, but no resolution was reached between the parties that might have addressed it. Notional estate 72Given the findings that I have reached above, it is not strictly necessary to address two assets that may fall within the meaning of notional estate under the Succession Act. Section 63(5) of the Succession Act provides that: "A family provision order may be made in relation to property that is not part of the estate of a deceased person, or that has been distributed, if it is designated as notional estate of the deceased person by an order under Part 3.3. " The "notional estate" of a deceased person is defined in s 3 of the Succession Act to mean property designated by a notional estate order as notional estate of the deceased person. The term "notional estate order" means an order made by the Court under Ch 3 designating property specified in the order as notional estate of a deceased person. 73Section 78 of the Succession Act in turn permits the Court to make an order designating property as notional estate, but only for the purposes of a family provision order to be made under Pt 3.2 or, if a family provision order is made in favour of the applicant, for the purposes of a costs order. Section 80 of the Succession Act in turn provides: "(1) The Court may, on application by an applicant for a family provision order or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person if the Court is satisfied that the deceased person entered into a relevant property transaction before his or her death and that the transaction is a transaction to which this section applies. (2) This section applies to the following relevant property transactions: (a) a transaction that took effect within 3 years before the date of the death of the deceased person and was entered into with the intention, wholly or partly, of denying or limiting provision being made out of the estate of the deceased person for the maintenance, education or advancement in life of any person who is entitled to apply for a family provision order, (b) a transaction that took effect within one year before the date of the death of the deceased person and was entered into when the deceased person had a moral obligation to make adequate provision, by will or otherwise, for the proper maintenance, education or advancement in life of any person who is entitled to apply for a family provision order which was substantially greater than any moral obligation of the deceased person to enter into the transaction, (c) a transaction that took effect or is to take effect on or after the deceased person's death." The expression "relevant property transaction" is defined in ss 75 and 76 of the Succession Act. 74Section 87 of the Succession Act then provides that: "The Court must not make a notional estate order unless it has considered the following: (a) the importance of not interfering with reasonable expectations in relation to property, (b) the substantial justice and merits involved in making or refusing to make the order, (c) any other matter it considers relevant in the circumstances." Sections 88-89 of the Succession Act in turn provide that the Court must not make an order unless it is satisfied that "the deceased's person's estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made" and may only do so to the extent necessary to satisfy the orders it makes. The Court can therefore only make a notional estate order if and to the extent the order is necessary to satisfy a family provision order. 75Two properties potentially fall within the notional estate. As I noted above, the deceased and Maurizio were joint tenants in a property at Nundle in New South Wales acquired in about March 2001. Maurizio acquired this property by survivorship and paid no consideration for this interest. The property is presently valued at approximately $205,000. In supplementary submissions, Maurizio accepted that the deceased's failure to sever the joint tenancy in circumstances where full valuable consideration was not given for this property constitutes a relevant property transaction for the purposes of ss 76(1) and 76(2)(b) of the Succession Act, which took effect on death under s 80(2)(c) and disadvantaged the estate for the purposes of s 83(1)(c) of the Succession Act. Mr Armfield, who appeared for Maurizio, acknowledged in closing submissions that there was no controversy that the Nundle property should therefore be treated as notional estate, if the estate was insufficient or there were special circumstances warranting an order as to the notional estate. 76Maurizio submits that, if the Court reached the point of considering whether or not to designate the deceased's notional half share in the Nundle property, it would need to consider the matters set out in s 87 of the Succession Act, and would not make a designating order unless the estate was insufficient or there were special circumstances under s 88 of the Succession Act. Maurizio also submits that he has spent, in respect of the Nundle property (Maurizio 2.6.2013 [17]), amounts of $42,138, made up of payments to various parties, and has accordingly spent $21,069 on account of the deceased's notional half interest in that property valued at $100,000, excluding the cost of any sale and that a maximum of about $80,000 could be designated as notional estate. It is not necessary or appropriate to make an order designating the Nundle property as notional estate where no order as to provision has been made. 77The second relevant transaction relates to the Naples unit. I have addressed the transactions in respect of that unit above. There is a preliminary question as to whether the Court has power to designate the Naples unit under s 80 of the Succession Act. Section 64 of the Succession Act relevantly provides that a family provision order may be made in respect of property situated outside New South Wales when, or at any time after, the order is made, whether or not the deceased person was domiciled in New South Wales. In Hitchcock v Pratt [2010] NSWSC 1508; (2010) 79 NSWLR 687, Brereton J followed Balajan v Nikitin (1994) 35 NSWLR 51 in holding that s 64 of the Succession Act is invalid to the extent that it purports to authorise the making of a family provision order in respect of property situated outside New South Wales of a testator who, at the time of death, was domiciled outside New South Wales; but that the section is not in excess of the State's legislative power so far as it extends the reach of the Succession Act to immovable property outside New South Wales of a testator who, at the time of death, was domiciled in New South Wales. Mr Armfield accepted in closing submissions that the deceased was domiciled in New South Wales although he died in Italy, and also acknowledged that the presence of the executor within the jurisdiction might be another basis for the making of such an order. In these circumstances, it seems to me that the section is capable of applying to the Naples unit, at least so far as the deceased was domiciled in New South Wales although he died in Italy. However, for reasons that emerge below, the property should not be treated as notional estate in any event. 78Maurizio submits that s 80(2)(a) of the Succession Act is not relevant to the transaction in respect of the Naples unit because there is no suggestion of a transaction with the intention of defeating a claim and s 80(2)(c) is not relevant because the transaction did not take effect on or after death. I do not accept the former submission. The Plaintiffs submit, and I accept, that the totality of the transaction in respect of the Naples property did have the effect of defeating a claim by Massimo by putting the Naples unit beyond his reach, and that any characterisation of the transaction as involving a gift to Massimo should be rejected, where the property subject of the purported gift to Massimo was immediately transferred on, without his authority, to Maurizio. 79Maurizio also submits that no order designating the Naples unit as notional estate can be made under s 80(2)(b) of the Succession Act and refers to the observations of Hallen AsJ in Kastrounis v Foundouradakis [2012] NSWSC 264 at [113] - [115], where his Honour noted that: "Section 80(2)(b), requires a comparison of "the moral obligation to make adequate provision, by will, for any eligible person ("a person who is entitled to apply for a family provision order") with "the moral obligation of the deceased to enter into the relevant property transaction", without full valuable consideration having been given. The latter expression focus upon moral obligation surrounding the particular transaction in question. The expression "moral obligation" is no more than a simple and convenient way of referring to the obligation resting upon a deceased to make a wise and just assessment of the interests of any person who is able to ask to be taken into account in determining what adequate provision for proper maintenance, education and advancement in life, should have been made for him or her: Collicoat v McMillan [1999] 3 VR 803. With this in mind, it is difficult to read the words "the moral obligation of the deceased to enter into the property transaction" literally. In determining whether this element is satisfied, the moral obligation of the deceased owed to any eligible person must be compared with the moral obligation to enter the transaction for the benefit of the party, or parties, to whom the property of the deceased is disposed by the relevant property transaction, and who does, or who do, not give full valuable consideration. If there was, then, a substantially greater moral obligation for the deceased to preserve the estate for the benefit of any eligible person to whom the deceased had a moral obligation to make adequate provision for his, or her, proper maintenance, education or advancement in life, than to arrange his, or her, affairs with the result that the property would be disposed of out of his, or her, estate, the sub-section would be satisfied." 80Maurizio submits that s 80(2)(b) of the Succession Act does not apply since the transaction in respect of the Naples unit benefited all children equally and was expressly made in anticipation of inheritance, and that it cannot be contended that the deceased had a greater moral obligation to make provision for the plaintiffs than to enter into the transaction. I do not accept that submission, which seems to me to depend on isolating the first step of that transaction from the subsequent steps in it and ignoring that the result of the whole of the transaction was only for Maurizio's benefit and not, at least, for Massimo's benefit. 81There is also a dispute, which it is also not necessary to resolve, as to the valuation of the Naples unit as at October 2011. There is evidence of a valuation of that unit at approximately EUR 209,500 (Imma 18.9.2012 [64], Annexure I). On the other hand, Maurizio submits that the unit has a total value of EUR 170,000 but requires EUR 30,000 to bring it back to its original condition and, on that basis, it has a net value of EUR 140,000 or $205,000. An 8/9th interest in the Naples property on Maurizio's valuation of that property has a value of $182,222 and a 7/9th interest has a value of $159,444. Maurizio also claims he has spent $3,500 on strata levies, rates, electricity, water and gas in respect of this property and a further $1,000 for the 2013 year is unpaid (Maurizio 2.6.2014 [6]). 82Alternatively, Maurizio submits that if (as I would have held, had it been necessary to do so) the transaction in respect of the Naples unit satisfied ss 80(2)(b), 83 and 87 of the Succession Act, its effect was to give Maurizio two-ninths of the unit (that is, Imma's and Massimo's interest in the unit) and the maximum that could be designated would be two-ninths of the unit's value of $205,000, namely $45,555, from which $777 being two-ninths of the $3,500 of strata levies and other expenses would be deducted, for a total of $44,777. It also does not seem to me that that is correct, where the deceased's interest in the Naples unit also passed to Maurizio without consideration. In any event, it is not necessary or appropriate to make an order designating the Naples unit as noted above where no order for provision has been made. Orders and costs 83For these reasons, the applications for provision by Imma and Massimo both fail. Maurizio also submitted that any order for provision should be made on terms that the successful applicant release the defendant both personally and as executor from any of the claims in respect of the Naples unit or the monies claimed to be reimbursable, and referred to Taylor v Farrugia [2009] NSWSC 801 as an example of such terms being imposed. No basis for such terms is established, where no order for provision has been made in favour of Imma and Massimo. Maurizio also submits that any order should be for a lump sum out of the estate or notional estate with leave reserved for orders designating notional estate or enforcing the order if not paid within a period, to allow him an opportunity to fund any provision. That question does not arise given the result that I have reached above. 84I indicated in the course of submissions that I would allow the parties an opportunity to address as to costs after delivery of my judgment and I will adopt that course. The parties should bring in short minutes of order to give effect to this judgment, and as to costs, within 14 days and, if no agreement can be reached between them, their respective draft short minutes of order and short submission as to the differences between them.