Mallitt v Gow

McKenzie v Topp [2004] VSC 90 North v Daniel [2021] NSWSC 828 Palagiano v Mankarios [2011] NSWSC 61 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 R v Cook; Ex parte C (1985) 156 CLR 249; [1985] HCA 47 Rakovich v Marszalek [2020] NSWSC 589 Re Allen (deceased) [1922] NZLR 218 Re Dennis (Deceased) [1981] 2 All ER 140 Re Fulop (1987) 8 NSWLR 679 Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 Sassoon v Rose [2013] NSWCA 220 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Spata v Tumino [2018] NSWCA 17 Szypica v O'Beirne [2013] NSWSC 297 Tsivinsky v Tsivinsky [1991] NSWCA 269 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Wilcox v Wilcox [2012] NSWSC 1138 Yee v Yee [2017] NSWCA 305 Texts Cited: Rosalind Atherton, "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5 Aust J Leg Hist 5 The Macquarie Dictionary (4th Ed., 2005) Category: Principal judgment Parties: Wayne Anthony Mallitt (Plaintiff) Colin James Gow (Defendant) Representation: Counsel: M Tibbey (Plaintiff) P Glissan (Defendant)

Solicitors: Brazel Moore Lawyers (Plaintiff) McNamara & Associates (Defendant) File Number(s): 2022/36897 Publication restriction: Nil

Introduction

1. These are the Court's reasons in proceedings for a family provision order, under Ch 3 of the Succession Act 2006 (NSW) (the Act), in respect of the estate of Elsie May Mallitt (the deceased).
2. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the court in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person.
3. The deceased was born in August 1935 and died on 27 October 2020 aged 85 years. She was survived by Wayne Anthony Mallitt, the Plaintiff, who is said to be her step-child, and her three, now adult, children, one of whom is Colin James Gow, the Defendant.
4. I shall refer to the parties as "the Plaintiff" or "the Defendant" respectively, but where necessary, after introduction, I shall refer to other family members by his, or her, given name. I do so for clarity, and convenience, and without intending to convey undue familiarity or disrespect.
5. (Although the Plaintiff was said to be the step-child of the deceased, and was referred to as such in her previous Will, and otherwise by the parties, I do not think that he is. There is no evidence that his biological father and the deceased were ever married. That they were not seemed to be agreed by the parties at the commencement of the hearing: Tcpt, 12 July 2022, p 26(7-19). I shall return to this topic, briefly, later in these reasons, although, in the circumstances of this case, identifying him as such does not matter.)
6. The hearing was listed for one day, commencing on 12 July 2022, and was completed within that time. Ms M Tibbey of counsel appeared for the Plaintiff, and Mr P R Glissan of counsel, appeared for the Defendant.

Some formal uncontested matters

1. The Plaintiff commenced the proceedings by Summons filed on 8 February 2022. In addition to the family provision order, he sought an order for his costs out of the estate of the deceased. Because the proceedings were not commenced within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased: s 58(2) of the Act), he also sought an order extending the time for the making of his application.
2. On 27 January 2021, this Court granted Probate of the deceased's last Will, dated 1 May 2017, to the Defendant, who is the instituted executor named in that Will.
3. Section 57(1) of the Act provides that "eligible persons" may apply to the Court for a family provision order in respect of the estate of a deceased person. The Plaintiff says that he is an eligible person within the meaning of that term in s 57(1)(e) of the Act, as a person (i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who was, at that particular time or at any other time, a member of the household of which the deceased person was a member. The Defendant does not dispute that the Plaintiff is an eligible person.
4. Section 59 of the Act provides that the Court may make a family provision order in relation to the estate of a deceased person, if the Court is satisfied in the case of a person who is an eligible person by reason only, relevantly, of sub-paragraph (e) of the definition of "eligible person" in s 57, where, having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application. As will be read, that turns on whether he would be generally regarded as a natural object of the deceased's testamentary recognition. Throughout the proceedings, despite some obvious uncontested facts, the Defendant disputed that there are any such factors. For reasons to which I shall come, I am satisfied that there are such factors.
5. As stated, the Plaintiff did not commence the proceedings within the time prescribed by the Act. Section 58(2) of the Act provides that in such a case, the Court may otherwise order an extension of time, on sufficient cause being shown, or if the parties to the proceedings consent to the application being made out of time.
6. The Plaintiff, in seeking the extension of time, relied upon an affidavit sworn on 8 February 2022, of his solicitor, Geoffrey Ronald Brazel, who provided the reasons for the delay in commencing the proceedings. He was not cross-examined and there is no reason, otherwise, to not accept the evidence given by him.

The deceased's testamentary documents

1. The deceased's last Will was one duly executed. In that Will, the deceased revoked all wills and testamentary documents previously made and declared that Will to be her last Will (Clause 1). She appointed the Defendant as the sole executor (Clause 2). She devised her home, located at Culburra Beach, a town located in the South Coast region of New South Wales, about 18 kilometres east-southeast of Nowra ("the Culburra Beach property"), to the Defendant and Jacqui, "in equal shares as joint tenants" (Clause 3) (emphasis in original). She left the rest of her estate upon trust to pay funeral and testamentary expenses and debts, and all death, probate, estate, succession and like duties payable in respect of her estate upon trust for her three sons equally as tenants in common (Clause 4).
2. (In view of the nature of the deceased's estate, it is unlikely that there will be any residuary estate to be distributed to the residuary beneficiaries.)
3. The deceased made no provision for the Plaintiff in her last Will.
4. The Plaintiff produced a copy of an earlier duly executed Will, dated 17 October 2014, made by the deceased. Relevantly, in that Will, the deceased appointed her de facto husband, Alwyn Neil Mallitt, who is the father of the Plaintiff, as the sole executor, and left the whole of her estate to him (Clause 2). In the event that he did not survive her by 30 days, the deceased appointed the Plaintiff and the Defendant as the executors and trustees of the Will and her estate (Clause 3(a)); she left a pecuniary bequest of $1,000 to each of Carl and Neil (Clause 3(b)), and left the rest of her estate, upon trust, to pay funeral and testamentary expenses and debts, and all death, probate, estate, succession and like duties payable in respect of her estate, and then to the Plaintiff and the Defendant, equally, as tenants in common (Clause 3(c)).
5. There was evidence given that the deceased's 2014 Will was one that largely mirrored the Will of Alwyn, which was also executed on 17 October 2014. A copy of that Will was in evidence, and it supports that contention.
6. It is clear, as reflected in these Wills, that, for at least some time, it had been the intention, on the part of the deceased and of Alwyn, that broadly speaking, the Plaintiff would benefit from the survivor of her, or his, estate.

The nature and value of the deceased's estate

1. On 20 June 2022, the Court directed the parties to provide, in hard and soft copy, an agreed schedule which contained: 1. the assets and liabilities of the estate at the date of death; 2. the assets and liabilities of the estate at the date of hearing; 3. the estimated costs and expenses of any property that is to be sold or that has been sold; 4. the estimated costs of each party calculated on the ordinary, and on the indemnity, basis, inclusive of GST; and 5. any costs of any party that have been paid, and in relation to the Defendant, whether those costs have been paid out of the estate of the deceased.
2. In accordance with the direction, the parties provided a Schedule, a copy of which, at the commencement of the hearing, was marked as Ex JS1. I have taken what follows from the Schedule, Ex JS1, and from discussions with counsel during the course of the hearing. (I shall omit, and shall continue to omit, any reference to cents. This will explain any apparent arithmetical miscalculation.)
3. At the date of death, the deceased's actual estate was estimated to have a gross value of $536,199. It was said to consist of the Culburra Beach property ($505,000), and monies in various bank accounts (the total of which was $31,199).
4. The only liability of the estate, at the date of death, was said to be $1,913 to Uniting Care (presumably for home care support). However, it was not in dispute that this liability had been repaid out of the deceased's estate, as were the funeral costs ($6,555) and the Probate costs ($5,862): Tcpt, 12 July 2022, p 6(30)-7(10).
5. At the date of the hearing, Ex JS1 disclosed the deceased's estate was estimated to have a gross value of $733,770. It was said to consist of the Culburra Beach property ($725,000), and cash held in the solicitors' trust account ($8,770). (The Defendant provided a copy of the trust account statement of his solicitors showing the income received by, and the payments out of, the deceased's cash monies. There was no dispute about the entries in that trust account statement and no suggestion that any withdrawals were inappropriately made.)
6. Despite Ex JS1 being headed "Agreed Schedule", at the commencement of the hearing, counsel for the Plaintiff stated that there was evidence that the Culburra Beach property might have a significantly greater value. Reliance was placed on what were said to be market appraisals, received from three different local real estate agents, which provided a range of estimates of between $518,000 and $921,000, between $700,000 and $750,000, and between $850,000 and $900,000, respectively. A copy of each of the appraisals, to which no objection was taken, was annexed to the affidavit, sworn on 20 May 2022, by the Plaintiff's solicitor.

Costs of the Proceedings

1. Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3 of the Act, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.
2. Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that his, or her, costs and disbursements, calculated on the ordinary basis, be paid out of the estate of the deceased, while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that his, or her, costs, calculated on the indemnity basis, be paid out of the estate. The value of the deceased's estate, and the conduct of a party, may justify a departure from what is said to be the usual orders.
3. The Plaintiff's costs, calculated on the indemnity basis, were estimated to be $64,016, and, if calculated on the ordinary basis, to be $49,256 (in each case, inclusive of GST, and based upon a hearing of one day duration). The Plaintiff has not paid any of these costs.
4. The Defendants' costs, calculated on the indemnity basis, were estimated to be $21,312 (inclusive of GST and based upon a hearing of one day duration). Some disbursements, being an amount on account of counsel's fees ($5,635) and an amount on account of solicitors' costs ($2,354) have been paid out of the estate, leaving about $13,323 left to be paid.
5. The Court asked whether the question of how costs should be borne could be determined as part of these proceedings. Counsel confirmed that there were no documents that would be relevant to how the costs of the proceedings should be borne.
6. Then, I indicated that what might be regarded as the usual rule is as set out above if the Plaintiff were successful, and on the basis that the Plaintiff would bear the Defendant's costs, calculated on the ordinary basis, if he were unsuccessful.

Percentage of proceeds of sale rather than specific lump sum

1. As stated, counsel for the Plaintiff submitted that if the Plaintiff were successful, the Court should make an order that he receive, absolutely, a lump sum, calculated as a percentage of the net proceeds of sale of the Culburra Beach property. Counsel for the Defendant did not submit that such an order should not be made: Tcpt, 12 July 2022, p 25(49)-26(1).
2. Counsel seemed to agree that in this way, both parties would benefit if the Culburra Beach property were sold for a price greater than had been estimated for the purposes of the hearing, and each would be detrimentally affected if it sold for less than that estimate. There would also, then, be certainty of price, costs, and expenses, upon which calculations could be made.
3. McDougall J in Bouttell v Rapisarda [2014] NSWSC 1192 at [96], raised the concern that "to make provision by way of a share, the value of which can only be ascertained until after realisation of all the estate's assets, runs the very real risk of under-providing (or over-providing) for [the applicant's] needs".
4. Whilst this is undoubtedly true, it seems to me that, in some cases, and at certain times, including when the real estate market is as volatile as it sometimes is, to make an order for a specified lump sum, will not, necessarily, be the most appropriate way of determining what is "proper" in all the circumstances of the case.
5. Furthermore, the Act, in s 65(2), specifies the ways in which provision may be made, and includes, "in any other manner the Court thinks fit", thereby leaving unconstrained the Court's power as to the nature of the order for provision that may be made.
6. I have made orders for provision based on a percentage in several cases, including Koellner v Spicer [2019] NSWSC 1571 and Rakovich v Marszalek [2020] NSWSC 589. Rein J has also made a similar order in Askew v Askew [2015] NSWSC 192.
7. Because the value of the Culburra Beach property is only estimated, and, as has already been noted, the range of the estimated value varies considerably, I propose to do so in the present case, specifying, first, the lump sum of money that the Plaintiff ought to receive by way of provision, in order to allow the Defendant and Jacqui a further opportunity to see whether an amount can be raised to satisfy the order for provision and costs. I shall allow a period of time to enable them to arrange finance if they are able to (even though it was said that they will not be able to), and if they cannot, I shall specify the percentage of the net proceeds of sale of the Culburra Beach property that the Plaintiff should receive by way of provision. In this way, neither the Plaintiff, nor the Defendant and Jacqui, should be prejudiced.

Background Facts

1. It is next convenient to set out some background facts that are not the subject of any dispute between the parties. To the extent that any are in dispute, what follows should be regarded as the findings of the Court. These facts are necessary for the decision that was reached.
2. The Plaintiff is the child of Veronica Joan Mallitt and Alwyn Neil Mallitt. He was born in June 1959 and is now 63 years old. There was another child, Mark, but he has played no part in these proceedings.
3. The Plaintiff's parents were friends, for many years, with the deceased and her husband, Harold Gow.
4. The Plaintiff's parents separated in about November 1971. The deceased and Harold separated on a date not disclosed in evidence. Veronica commenced a relationship with Harold, and in 1972, Alwyn commenced a relationship with the deceased.
5. The Plaintiff lived at the former matrimonial home of his parents at St. Mary's, and then, from about the age of 12.5 years, on a part-time basis, with Alwyn and the deceased, at the deceased's home, at Penrith.
6. At the age of about 14 years, the Plaintiff commenced living, on a full-time basis with Alwyn, the deceased, and her three children. He, until the age of about 25, continued to live in the household of the deceased and Alwyn.
7. In about August 1984, the deceased and Alwyn moved to another property at Mulgoa Road, Penrith, which they purchased as joint tenants. On the Transfer, the deceased's occupation was described as "Hospital Assistant" and Alwyn's occupation was "Plant Operator".
8. In about 1985, or perhaps, a little earlier, he moved out, to live with friends. Thereafter, he was self-supporting. (It is more probable than not that he moved out in about 1984 before the deceased and Alwyn moved to the Mulgoa Road property. Nothing turns on this.) He said that he maintained contact with Alwyn and the deceased, telephoning them about every 6 weeks or so, and visiting about every two months.
9. In June 1992, the deceased and Alwyn moved to the Culburra Beach property, where they remained living together until the death of Alwyn. The deceased remained living there until shortly before her own death. They had purchased that property also, as joint tenants, after the sale of the Mulgoa Road property.

The Witnesses

1. The only witnesses who gave evidence, and who were cross-examined, were the parties and Mr Nigel Kay. I shall now deal with the credibility of each of them.
2. (Mr Brazel, the Plaintiff's solicitor, who had provided evidence going to the extension of time, the costs of the Plaintiff, and the market appraisals, was not cross-examined. Mr N K Hartley, the Defendant's solicitor, whose costs affidavit affirmed 8 July 2022, was read, was also not cross-examined.)

The Plaintiff

1. The Plaintiff filed four affidavits in these proceedings, the first sworn 9 March 2022, comprised 148 paragraphs, spanning 15 pages; the second sworn 29 June 2022, comprised 8 paragraphs, spanning 3 pages; the third sworn 8 July 2022, comprised 3 paragraphs, spanning 2 pages; and an affidavit in reply, sworn 20 April 2022, comprised 29 paragraphs, spanning 6 pages.
2. Initially, in his evidence in chief, without objection, he corrected some factual matters, of a relatively minor nature. During his cross-examination, when asked about some other matters, he accepted that those parts of his evidence were also inaccurate.
3. Overall, I was of the view that the Plaintiff was giving his evidence truthfully although I tend to the view that he did exaggerate his communications with the deceased and his evidence about why he was unable to visit the deceased and Alwyn from about 1994 was somewhat unconvincing.
4. On one very important matter, I consider that the Plaintiff gave evidence which I do not accept as truthful. In this regard, I have much more confidence in the veracity of Mr Kay, a witness called in the Plaintiff's case.
5. The Plaintiff gave evidence along the following lines, which, for the most part, was not really the subject of serious dispute: 1. He would refer to the deceased as "mum" and she would refer to him as her son. (Of course, in the 2014 Will, as I have stated, she referred to him as her step-son.) 2. During his teenage years, he was dependent on the deceased for accommodation, food, and clothing. (It is probable that he depended on Alwyn as well.) She provided care and support for him, as a mother would. The Plaintiff referred, by way of example, to several birthday parties which the deceased and his father had arranged for him and said that they gave him some expensive gifts, including a jade ring. Additionally, he wrote that the deceased would give him a cheque for $40, each year, on his birthday. 3. Importantly, the deceased demonstrated acceptance, and provided support, when, at the age of 17, the Plaintiff told her, and Alwyn, that he was homosexual. Whilst Alwyn, initially, displayed some hostility, it was the deceased who provided a non-judgmental response and emotionally supported him. 4. After the Plaintiff moved to the Central Coast, and when the deceased and Alwyn were living in the Culburra Beach property, the Plaintiff did not visit them very frequently. When he visited, he would generally stay only for a couple of days. 5. He accepted, that he had "never attended family get-togethers with the rest of the family": Tcpt, 12 June 2022, p 31(45-50). In partial explanation, he gave evidence that he could not visit them during the Christmas and Easter holiday periods, which was very busy in the hospitality industry, as he found it difficult to obtain time off work. 6. On infrequent occasions, the deceased and Alwyn would visit him on the Central Coast. He referred, specifically to his 50th birthday, in 2009, and when he underwent a radical prostatectomy in April 2010. 7. The Plaintiff said that he maintained contact with the deceased by telephone, ringing approximately once each month. He denied that he only called to maintain contact with Alwyn but maintained that if he were talking with his father, he would speak to the deceased as well: Tcpt, 12 July 2022, p 30(26-34). 8. The Plaintiff recalled that he visited the deceased and Alwyn between 6 and 10 times in 2017, as Alwyn was being treated for lung cancer. During one of these visits the Plaintiff claims that his father said to him and the Defendants: "I want you to promise me that your mother is to be taken care of? When she passes then everything will go to you 2 boys": Affidavit, Wayne Anthony Mallitt, 9 March 2022 at par 103. 9. In response to a question from the Bench, the Plaintiff said that the last time, prior to 2017, when he had visited Alwyn and the deceased, was in 2007, that is to say, about 13 years prior to the deceased's death. (I have referred to his explanation that, following prostate surgery in 2010, he found it painful, and difficult, to travel long distances. The drive took between 4.0 and 4.5 hours, each way, from the Central Coast to the Culburra Beach property. He did not explain why he was unable to break up the journey.) 10. The Plaintiff did not visit the deceased, at any time, after Alwyn's death: Tcpt, 12 July 2022, p 32(36-40). 11. After Alwyn's death, he said that he continued to telephone the deceased regularly. However, he admitted it was less frequently than before, because it was difficult to speak to her as she did not remember who he was, due to her dementia. In his reply affidavit, the Plaintiff clarified that he would always ring on the deceased's birthday, Christmas, and on Mother's Day. Indeed, he said that his last telephone conversation with the deceased occurred on Mother's Day in May 2020. 12. Importantly, the Plaintiff acknowledged that the Defendant had told him that he was going to resign from his employment and move to Culburra Beach to care for the deceased. The Plaintiff said words to the following effect: "That's a big call for you to give up your job and move from Penrith to Culburra, taking your son out of school. There are other options. Mum could live with you. She could come and live with me. She gets on well with Nigel. She could also go into a home between Penrith and my place and there are also government-paid carers available. There are choices available." 1. The Plaintiff said that he was not asked by the Defendant to assist in the care of the deceased. He added that had he been asked, he would have made arrangements to assist in caring for the deceased. He also said that the Defendant "chose to take everything on without asking for help": Affidavit, Wayne Anthony Mallitt, 29 June 2022 at par 11. Whether this is entirely true, it was not disputed that the Defendant and Jacqui had borne the responsibility of caring for the deceased in the last years of her life. 2. During cross-examination, the Plaintiff maintained that he was serious when he said he suggested that the deceased could come and live with him and Nigel. He claimed that the deceased got on very well with Nigel, and that Nigel was "just that kind of guy" who would have been happy for the deceased to stay in their spare room: Tcpt, 12 July 2022, p 41(35-46). (However, the Plaintiff did not give evidence of any conversation with Nigel about this matter. Nor did Nigel, in his affidavit say that he would permit the deceased to come to live in his home in the Central Coast, had he been asked by the Plaintiff.) 3. The Plaintiff admitted, however, that he was not sure whether the deceased would have come had she been asked: Tcpt, 12 June 2022, p 41(34-46). Bearing in mind that the deceased had lived in the Culburra Beach property for over 20 years, I am of the view that the Plaintiff knew that she would not. 4. The Plaintiff accepted that he did not attend the deceased's funeral as he was feeling unwell, and COVID-19 restrictions were then still in place. He asserted that, although the Defendant had promised to provide him with a livestream link, he was not provided with one and consequently did not view the funeral. I do not draw any adverse inference from the fact that he did not attend the funeral.

Nigel's evidence

1. Nigel swore one affidavit in these proceedings, on 29 June 2022, comprising 23 paragraphs and spanning 4 pages. I found him to be a transparently truthful witness. Importantly, the affidavit was made after the Plaintiff's affidavit in reply in which the Plaintiff asserted, for the first time described Nigel as his "former partner".
2. Nigel was also born in 1959 and is 62 years of age. He stated that he was the partner of the Plaintiff and gave evidence that they had been living together since 2002. There are no other persons living with them.
3. In cross-examination, Nigel confirmed that he was the Plaintiff's partner, and that "partner" was the correct description of their relationship. He also confirmed that they had been partners for 20 years. He agreed that financial pressures arising from his loss of employment and the COVID-19 lockdowns, had caused a rift in the relationship and that whilst the rift was still "partially" there (Tcpt, 12 July 2022, p 49(21-23)) they still lived together, cooked for each other, and watched TV together. Only sometimes did they eat meals at different times.
4. Currently, he and the Plaintiff live together at his property in Glenning Valley, which he had purchased in 1998 before his relationship with the Plaintiff began. The property is unencumbered. He did not contemplate asking the Plaintiff to move out of his property but added "that is up to him": Tcpt, 12 July 2022, p 51(50)-52(2).
5. He confirmed that the Plaintiff pays him $400 for rent each week, and that they share, equally, the household bills.
6. During cross-examination Nigel explained that the beneficiary of his superannuation fund was his brother. He indicated that he had discussed this with the Plaintiff, and that the Plaintiff had said that "he wants nothing to do with it": Tcpt, 12 July 2022, p 51(28-34). He attested that he believed that the Plaintiff had nominated "somebody Gow" as the beneficiary of his superannuation.
7. I am satisfied that the Plaintiff and Nigel, more probably than not, are living in a de facto relationship, although there has been a rift in the relationship. Of course, this conclusion is based on the limited evidence in these proceedings.

The Defendant

1. The Defendant swore four affidavits in these proceedings, the first sworn 1 April 2022, comprised 8 paragraphs, spanning 3 pages; the second sworn 8 July 2022, comprised 5 paragraphs, spanning 3 pages; the third sworn 1 March 2022, comprised 4 paragraphs, spanning 3 pages; and the fourth sworn 1 April 2022, comprised 40 paragraphs, spanning 9 pages.
2. I found him to be a truthful, and sincere, witness who immediately made concessions about the Plaintiff when he considered it correct to do so. I accept his evidence where it conflicts with that of the Plaintiff.
3. The Defendant gave evidence that he moved out of the Penrith property, which was described as a "Housing Commission house", when he was 21. When the deceased and Alwyn bought their property in Mulgoa Road, him and his wife, Jacqui, moved back into the Penrith property, and commenced paying the rent for that property. He said that after the Plaintiff moved out, he did not live with the deceased and Alwyn again, in either the Penrith, or the Mulgoa Road, property.
4. The Defendant corroborated the evidence that the Plaintiff rarely attended family gatherings but accepted that this had been because the Plaintiff was required to work holidays and weekends. The only family event, he recalled at which the Plaintiff was present, was the deceased's 50th birthday in 1985.
5. When the deceased and Alwyn moved to Culburra Beach, the Defendant stated he would visit them approximately every fortnight, generally on the weekend, and in school holidays. Between 1992 and 2017, his visits never coincided with those of the Plaintiff. Nor did the deceased mention to him that the Plaintiff had visited.
6. Shortly before Alwyn's death, Jacqui had taken all of her accrued employment leave, to care for Alwyn and the deceased.
7. In about June 2017, the Defendant and Jacqui took the deceased to live with them in the Penrith property for several weeks. However, the deceased said to them that she did not want to remain living there but wanted to go back to her home. The Defendant said that he then took leave from work to settle the deceased in the Culburra Beach property and arranged ACAT assessments for the deceased.
8. Subsequently, in the period between late 2017 and early 2018, the Defendant and Jacqui decided to relocate to the Culburra Beach property to look after the deceased. He resigned his employment so that he could become a full-time carer for the deceased.

The Plaintiff's Situation in Life

1. The Plaintiff is employed as a Supervisor at the Avoca Beach Bowling Club, where he has worked since 1997.
2. He was affected by the COVID-19 lockdowns, and his monthly income in 2020 consisted, primarily, of JobKeeper payments ($5,384), and in 2021, was primarily by way of a federal wage subsidy ($3,000). The Plaintiff returned to full time work in October 2021.
3. The Plaintiff's gross monthly income is $4,750, made up of income from his employment with Wyong Rugby Leagues Club ($4,400), and a pension from his superannuation fund ($350).
4. The Plaintiff has limited assets, the most substantial of which is superannuation ($181,199). His other assets include a car ($7,000), furniture ($5,000) and money in the bank ($5,784). (He disclosed the amount of $504, which I have included in the money at Bank at the hearing: Tcpt, 12 July 2022, p 16(27-40).)
5. The Plaintiff lives with Nigel in the Glenning Valley property which is owned by Nigel. Whilst there are no formal leasing arrangements between them, he pays rent ($400) each week and they share the household bills equally. He has been paying the rent since 2012. The rent is paid in cash, or by purchasing groceries. No receipts are ever given.
6. The Plaintiff stated that he was not financially dependent on Nigel. Copies of bank statements for the Plaintiff and Nigel, which were tendered, do not reveal any money transfers between them for rent or bills.
7. The Plaintiff's disclosed monthly expenditure totals about $3,415. The expenses claimed, were not the subject of cross-examination. Bearing in mind his income ($4,750), it would appear that he has a surplus of about $1,335 per month.
8. The Plaintiff stated he has no liabilities.
9. The Plaintiff has a number of medical conditions including ongoing prostate issues as a result of his cancer, depression, anxiety, for which he takes medication, tinnitus and hypertension. His doctor has informed him that his future medical treatment may require hormone injections and chemotherapy, the costs of which are not currently known. There was no evidence about the costs of the medication said to be required.
10. As a person with whom the Plaintiff is cohabiting, the Court may have regard to Nigel's financial circumstances: s 60(2)(e) of the Act.

The situation in life of the Defendant and Jacqui

1. The Defendant and Jacquie married in 1984 and remain married. They have four children, all but one of whom is an adult. Cameron, the youngest is 16 years old and suffers with mental health issues, including ADHD and autism, which require professional mental health support. Most of the costs for professional support are currently reimbursed to them by way of the NDIS. They currently live in the Culburra Beach property.
2. As the Defendant and Jacqui are the devisees of the Culburra Beach property, I next set out their financial resources (including earning capacity) and financial needs. I do so, bearing in mind it was not the subject of any real dispute (other than in respect of the Defendant's earning capacity.)
3. The Defendant previously worked as a factory hand and labourer. He resigned from his job with Valvoline in 2017 to care, on a full-time basis, for the deceased.
4. Currently, the Defendant is not employed. He is about 63 years of age and will qualify for the aged pension in four years.
5. In cross-examination he admitted that he had not been looking for employment, because he understood that as he had taken out a lump sum from his superannuation, he was not allowed to work more than 10 hours each week. He clarified that it was not because he had signed any form to say he was retired, but "it was like semi-retirement": Tcpt, 12 July 2022, p 66(26-44). He claimed that he had based his understanding on information received from the superannuation company.
6. The Defendant admitted that he has not sought work for 10, or less, hours each week either when the deceased was alive, or afterwards. He agreed that while he cared for the deceased, he had received a carer's allowance.
7. Bearing in mind his age, and because he has been out of the work force for about 5 years, I consider that his earning capacity is limited.
8. Jacqui is currently employed as a receptionist for NSW Health, and earns a gross fortnightly income of $1,800.
9. The Defendant and his wife have monthly expenditure that totals $2,933. He was not asked any questions to suggest that their expenditure was unreasonably incurred or extravagant.
10. The Defendant accepted that the Culburra Beach property will probably need to be sold, depending upon the result of the proceedings. They do not have any alternative accommodation. (I have already referred to the fact that they gave up the Housing Commission house at Penrith to look after the deceased.)

The Plaintiff's Submissions

1. Counsel for the Plaintiff submitted that as eligibility was admitted, the next question to be answered related to whether, having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application. In her submissions, counsel wrote: "The plaintiff is a step-son. There are "factors warranting" his application. The full dependency of the plaintiff on his father and the deceased from the age of 12 and a half and continuing close relationship with each of them means that there are "factors warranting" this application, as discussed in Re Fulop (1987) 8 NSWLR 679 at 681; Churton v Christian (1988) 13 NSWLR 241 at 242, 244; Diver v Neal [2009] NSWCA 54."
2. In oral submissions, counsel referred to the fact that the Culburra Beach property was purchased by the deceased and Alwyn as joint tenants and became part of the deceased's estate as a result of her surviving him. She also reminded the Court that the Plaintiff had been a chosen object of the deceased's bounty in the 2014 Will, and, indeed, had been named as a co-executor with the Defendant.
3. Counsel submitted that the Plaintiff sought provision that would allow him to purchase his own 2-bedroom relocatable home in which to live if his relationship with Nigel broke down, and he estimated the cost would be between $300,000 and $350,000. He also sought a sum to cover the costs of future medical treatment, a capital sum for his retirement, and a sum to purchase a new motor vehicle.
4. Counsel submitted that although the relationship between the Plaintiff and the deceased was not as close following the death of the Plaintiff's father, "there was never any rift between them or any diminution in the warmth and love that they showed to each other" until the dementia of the deceased meant she had difficulties recognising him.
5. Counsel for the Plaintiff drew attention to the following matters in support of making an order for further provision: 1. The substantial provision made by the deceased, during her lifetime, for the Defendant and his family particularly the provision of rent-free accommodation in the Housing Commission house at Penrith, and then the Culburra Beach property, contending that the deceased had a similar obligation to make provision for the Plaintiff. 2. The fact that the assets of the estate have been derived significantly from the endeavours of the Plaintiff's father: Re Fulop (1987) 8 NSWLR 679 at 683; McKenzie v Topp [2004] VSC 90. (There was no actual evidence about this although it is likely that he contributed to the purchase price of each property.) 3. The Plaintiff understood that it was the common intention of Alwyn and the deceased, that Alwyn's estate was to pass to the deceased if she survived, and that she would then share her estate equally between the Plaintiff and the Defendant. This had been reflected in the terms of the deceased's Will made in 2014. 4. The needs of the Plaintiff are not insignificant, given that the Plaintiff is no longer Nigel's partner, and so no longer has access to Nigel's financial resources, including potentially ongoing accommodation. Additionally, compared to the Defendant and his wife, the Plaintiff has significant medical conditions, which will require ongoing treatment. 5. The needs of the Defendant, relatively, are less than those of the Plaintiff because Jacqui is still earning an income and, according to the Plaintiff, there is no reason that the Defendant could not be working. Conversely, the Plaintiff needs a new car, a sum to increase his superannuation, and a sum to purchase his own accommodation.

The Defendant's submissions

1. Counsel for the Defendant submitted that the Court could not be satisfied that there are factors warranting the making of the Plaintiff's application. He highlighted the little contact between the deceased and the Plaintiff after he moved to the Central Coast in 1994, and the lack of evidence that the Plaintiff "did anything for the deceased". In support of their argument, counsel, also, referred to the comments of McLelland J in Re Fulop Deceased (1987) 8 NSWLR 679.
2. In oral submissions, he submitted that although the Defendant did not dispute the Plaintiff was previously an object of testamentary bounty under the 2014 Will, and the estate of Alwyn had passed entirely to the deceased, these factors could not be considered alone, but must be weighed against all the circumstances of the case, including the facts referred to above.
3. He went on to submit that if there were factors warranting the making of the application, the Court should ultimately not be satisfied that, in all the circumstances, adequate provision for the Plaintiff's proper maintenance, education and advancement in life had not been made by the Will, citing the principles discussed in Bassett v Bassett [2021] NSWCA 320 at [87]-[88]. He referred to the modest size of the estate, the respect that should be given to a capable testator's judgment, the care that was provided by the Defendant and his wife, the minimal contact between the Plaintiff and the deceased, and the relatively secure position of the Plaintiff and Nigel.
4. Counsel for the Defendant submitted that while the Plaintiff had asserted several needs in his affidavit, no evidence was provided to support the existence of these needs or to indicate how they were quantified. In oral submissions, he reminded the Court that the Plaintiff presently had security of accommodation, already had some superannuation, and suggested that Medicare would continue to cover a substantial proportion of the costs of any necessary medical treatment.
5. Counsel highlighted that in the event provision is made for the Plaintiff, the Culburra Beach property will probably need to be sold, which will require the Defendant and his family to find alternative accommodation.
6. Counsel for the Defendant made the primary submission that no family provision order should be made for the Plaintiff. When pressed on what provision should be made in the event that it was found that adequate and proper provision had not been made for the Plaintiff, counsel for the Defendant indicated that it would be no more than the cost of a new car: Tcpt, 12 June 2022, p 98(25-34).

The Law

1. As the application made by the Plaintiff is based on statute, it is next necessary to deal with the law that applies. This type of legislation has been described as having been "enacted in order to subject freedom of testamentary disposition to discretionary curial intervention in certain classes of case, where moral rights and obligations of support were disregarded": Barns v Barns (2003) 214 CLR 169; [2003] HCA 9 at [2] (Gleeson CJ).

Extension of time

1. In the written submissions, counsel for the Defendant agreed that the Plaintiff's delay in commencing proceedings had not prejudiced the beneficiaries. At the commencement of the hearing, he confirmed that, in the event that an order for provision was made, the Defendant consented to an extension of time: Tcpt, 12 July 2022, p 3(1)-4(9).
2. As there is consent to the extension of time if an order for provision is made, it is not necessary to set out the principles that apply. Although, strictly, unnecessary to do so, had consent not been given, I would have found sufficient cause for the making of the Plaintiff's application.
3. I am satisfied that the Plaintiff has provided evidence of the reason for the lateness of the claim, it is conceded that the beneficiaries under the Will would not be unacceptably prejudiced if time were to be extended, there has not been any unconscionable conduct by either side, and, finally, the Plaintiff's claim is to succeed.
4. As I wrote in Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748 at [117]: "Ultimately, justice is the paramount consideration in determining whether to extend the time for making an application..."

Meaning of stepchild

1. The Act does not include a stepchild as an eligible person by virtue of the relationship alone. Indeed, there is no definition of "stepchild" in the Act. Whilst a child of the deceased person is specifically included as an eligible person, a stepchild does not fall within the ordinary meaning of the term "child".
2. The dictionary meaning of "step" is a prefix indicating connection between members of a family by the remarriage of a parent: The Macquarie Dictionary (4th Ed., 2005).
3. In R v Cook; Ex parte C (1985) 156 CLR 249 at 262; [1985] HCA 47, Deane J, in dissent, explained: "…If, however, the natural parent of … [a] child marries someone other than the child's other natural parent and the child is an infant who ordinarily resides in their matrimonial home, the child has a close and direct connection with that marriage. It is not only that he or she lives in the matrimonial home as a child of one party to the marriage. It is that, as a matter of well-established social custom in this and other countries of the common law world, the child acquires a special familial relationship with the other party to the marriage by reason of the marriage itself. That special relationship is acknowledged, as a matter of ordinary language, by the terms 'stepfather' or 'stepmother' and 'stepson' or 'stepdaughter'. The relationship between step-parent and stepchild is one of affinity as distinct from consanguinity. The basis of the relationship is the marriage of the step-parent with the natural parent".
4. His Honour added at 263: "The nature of the relationship between step-parent and stepchild has been considered in numerous cases in common law jurisdictions. The relationship has been correctly described as a 'quasi parental' one ... It arises regardless of whether the child was an ex-nuptial child or was the child of a previous marriage… The direct connexion between the relationship of step-parent and stepchild and the marriage from which it arises has often been stressed. … If the marriage remains undissolved at the time of death of the natural parent, the relationship of affinity between step-parent and stepchild will continue. … It has been said that the word 'stepchild' should, in a particular statutory context, be interpreted as 'referring to the acquisition of a new relationship by a child when its parent remarries' and 'that the child acquires this new relationship towards the person the parent remarries'."

Eligibility

1. In relation to the Plaintiff, it was accepted that he is an eligible person within the meaning of that term in s 57(1)(e) of the Act. It can be seen, from the sub-section, that there are two limbs. Relevantly, the first is a relationship of dependence, whether wholly or partial, upon the deceased; the second is being "a member of the household of which the deceased person was a member". (The difference between this sub-section and the former Act, which referred to "a member of a household of which the deceased was a member", is not relevant in the present case.)
2. The concession was appropriately made, as from the age of 14, until he was about 18 years old, the Plaintiff was a member of the household of Alwyn and the deceased. The Act does not state any requisite period of time during which an applicant must be a member of the household.
3. There is also no dispute that during part of the time that he was a member of the household of which the deceased was a member, the Plaintiff was at least partly dependent upon the deceased.

Factors warranting the making of the application

1. Where an applicant falls within the definition of eligible person within s 57(1)(e) of the Act, the Court must next consider and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application (s 59(1)(b)). Because there remained a dispute about this, it is necessary to deal with the topic.
2. In requiring a person who falls within, relevantly, s 57(1)(e) to satisfy the Court that there are such factors, the Act distinguishes between two classes of eligible person. As was written by McColl JA (Gleeson and Simpson JJA agreeing) in Yee v Yee [2017] NSWCA 305 at [111]-[112]: "Within the first category (s 57(1)(a)-(c)) are persons generally 'regarded as natural objects of testamentary recognition', such as lawful and de facto spouses and children. This class is so regarded because it consists of those to whom it has been said a testator owes a moral duty of support. Those falling within the second category (s 57(1)(d)-(f)) are not generally regarded as natural objects of testamentary recognition by a deceased. Rather, they are 'potentially appropriate objects of testamentary recognition, depending upon their circumstances'. In order to qualify as such objects in fact, they must establish there are factors warranting their application. That is a jurisdictional question." (footnotes omitted)
3. The Act does not specify the "factors which warrant the making of the application". As Pembroke J noted, in Wilcox v Wilcox [2012] NSWSC 1138 at [16]: "[n]o legislative assistance is given as to the intended scope or meaning of this enigmatic requirement".
4. In Re Fulop at 683, McLelland J wrote: "In the case of Mr Fulop the main factor is that from an early age (about 4 years) he became a child of the family unit comprising the deceased and his father and remained so until he left home at 18 years of age in the normal course and thereafter the family relationship thus established was recognized on all sides as continuing as if Mr Fulop were a child of the deceased as well as his father."
5. In Graziani v Graziani (NSWSC, 20 February 1987, unrep), Cohen J, in dealing with an application by stepchildren, said, at 8-10: "There is nothing in the section to indicate what is meant by "factors", or how far the Court has to take the matter in order to warrant the making of the application .... ... In order to look at the factors which warrant an application in the case of a plaintiff who establishes that he or she is an eligible person under par (d) of the definition, it is necessary to look not only at the nature of the relationship, but the quality of it. The Court should consider the circumstances in which it arose and to some extent it must also look at the weight of the application which might lead to the finding that the plaintiff has been left without adequate provision for his or her proper maintenance, education or advancement in life. The circumstances must vary in every case and it would be foolish to seek to limit them in any way. Where, however, the plaintiff has established a position as a stepchild or perhaps a foster-child then there would be a number of relevant matters in my opinion which the Court should consider in deciding whether factors exist. These include the closeness of the relationship, that is whether it was one which might be properly described as parent and child, whether the plaintiff was brought up as a permanent member of the family, what was the age of the plaintiff when he or she became a member of that family, and the extent to which the plaintiff was supported by the deceased, whether it be financially, educationally or emotionally. If a consideration of these matters leads the Court to the opinion that the plaintiff was brought up and treated as a child of the testator and if all of the other circumstances show that there may have been a moral duty on the part of that testator to provide for the plaintiff then there are factors which would warrant the making of the application. The presence of only some of these factors, or of others which have not been listed, might also justify the Court's coming to the same opinion. The potential for inclusion in that part of the definition of 'eligible person' as is contained in par (d) is enormous. The range of persons who may be admitted is very great and it includes not only stepchildren but also parents, brothers and sisters, temporary foster children and many others who may have formed part of the household and for a period have been partly dependent upon the deceased. Accordingly it seems to me that those who were raised as part of the family as stepchildren would have less difficulty in establishing factors which warrant their application than would those at the other end of the spectrum who may have been members of the family for only a brief period and with only limited dependence."

Whether an order for provision ought to be made

1. Since eligibility and, as is necessary in this case, factors warranting the making of the application have been found, as previously stated, the Court must then determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the deceased's Will, in relation to the estate of the deceased, or both: s 59(1)(c). Only then, may "the Court … make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made": s 59(2).
2. The Act stipulates no automatic entitlement to provision and the deceased's Will applies unless a specific application is made to, and acceded to, by the Court. Accordingly, it is clear that the Court has a discretion whether to make an order and as to the amount of any order that is made. Then, the Court is empowered to order such provision from the deceased's estate as the Court thinks fit, but the Court is not empowered to award more than what is "adequate" provision for the applicant's "proper" maintenance, education or advancement in life. These propositions are clear and are derived from the statutory text which confines the Court's power.
3. Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant's proper maintenance, education and advancement in life. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of any applicant.
4. In Grey v Harrison [1997] 2 VR 359 at 366-367, Callaway JA observed: "There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight." (Emphasis in the original.)

Further Additional Facts

1. I set out additional facts, not dealt with previously, that I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come.

(a) any family, or other, relationship between the applicant and the deceased person, including the nature and duration of the relationship

1. There is no definition of "family" in the Act.
2. I have already referred to the relationship between the Plaintiff and the deceased. It is clear that whilst the relationship continued, that it did not continue with the same degree of contact after the Plaintiff left the home of Alwyn and the deceased. It lessened, after the death of Alwyn, to the point of no face-to-face contact, and the occasional telephone call, or birthday or Christmas card.

(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate

1. There is no definition of the "obligations" or "responsibilities" to which the sub-section refers in the Act. One might conclude, however, that what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities owed to the applicant by the deceased.
2. Merely being an eligible person does not, necessarily, give rise to an obligation or responsibility, to make adequate provision for the applicant's proper maintenance or advancement in life. However, as I have written, in the 2014 Will, the deceased acknowledged an obligation to make provision for the Plaintiff.
3. There is little doubt that the Plaintiff was financially independent of the deceased for many years before her death. This, in my view, is a relevant consideration in determining the extent of any obligation or responsibility owed to him by her.
4. An obligation or responsibility, to make adequate provision for the proper maintenance, education or advancement in life is recognised in the case of a child. In this case, the Defendant, who is the principal object of the deceased's bounty, is her child. The other principal object is her daughter in law, Jacqui, who, on the evidence played a significant role in the deceased's life, particularly after the death of Alwyn.

(g) the age of the applicant when the application is being considered

1. As mentioned, the Plaintiff is currently 63 years of age.

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant

1. The Plaintiff does not suggest that he made any direct financial contribution to the acquisition of the estate of the deceased. He suggests, perhaps indirectly, that his father, Alwyn, did so, and therefore, because he did not make a claim for a family provision order following Alwyn's death, he contributed to the acquisition of the deceased's estate. This matter does not provide, however, a formula that should result in the value of Alwyn's contributions (about which there was really no direct evidence) being returned to his child, in this case, the Plaintiff, upon the death of the deceased.

(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate

1. The deceased did not make provision for the Plaintiff during her lifetime, or out of her estate, although, on occasions, she did give him modest amounts of cash by way of a present or otherwise.

(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so

1. There is no evidence that the Plaintiff was being maintained, either wholly or partly, by the deceased after he moved out of home in 1984.

(l) whether any other person is liable to support the applicant

1. There is no other person with a liability to support the Plaintiff at this time. However, I shall have regard to the relationship of the Plaintiff and Nigel

(m) the character and conduct of the applicant before and after the date of the death of the deceased person

1. There is nothing in the Plaintiff's conduct not already referred to, before, or after, the death of the deceased that is relevant.

(n) the conduct of any other person before and after the date of the death of the deceased person

1. I am satisfied that the Defendant and Jacqui each had a close and loving relationship with the deceased and that each is a chosen object of the deceased's bounty. They looked after the deceased, particularly after Alwyn's death and ensured that she was able to remain at home, until just before her death. They participated in the maintenance and upkeep of the Culburra Beach property as well as actively contributing to the deceased's welfare and happiness through their companionship and care.

Determination

1. Having satisfied the Court that he is an eligible person and that there are factors that warrant the making of his application, I turn to the question whether an order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance or advancement in life of the Plaintiff. There are no hard and fast rules as to the approach to be taken to the making of provision.
2. In all the circumstances of the case, I am satisfied that the jurisdictional threshold has been satisfied. It is clear that the Plaintiff has "needs". As stated above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence. By way of example, other than his superannuation, he has no capital sum to provide for the exigencies of life. I am satisfied that adequate provision for the proper maintenance or advancement in life of the Plaintiff has not been made by the Will of the deceased.
3. Then, I next consider the nature and amount of any provision that should be made.
4. I have borne in mind that even though the Plaintiff has demonstrated some "need", it does not, automatically, follow that the lack of provision is inadequate for his proper maintenance and advancement in life. Such a conclusion would elevate his financial needs over what the deceased regarded as her obligation and responsibility to her son and daughter-in-law.
5. However, having regard to all of the matters that I may consider, including amongst other things, the size and nature of the deceased's estate, the relationship between the Plaintiff and the deceased, as well as the relationship between the deceased with the Defendant and Jacqui, both of whom have a significant legitimate claim upon the deceased's bounty, that the Plaintiff is nearing retirement age, and notwithstanding that the relationship of the Plaintiff and the deceased was not particularly close for some years before her death, I am satisfied that some provision should be made for the Plaintiff out of the estate of the deceased. The deceased acting as a wise and just testatrix, in weighing the competing claims of the Plaintiff and the Defendant and Jacqui on her estate, should have made some provision for the Plaintiff.
6. In my view, the Plaintiff should receive, by way of provision a lump sum of $80,000, out of the estate of the deceased. This amount will provide a capital sum which he may use as a buffer against the vicissitudes of life.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 July 2022