Mallitt v Gow

Supreme Court of NSW|2022-07-12|Before: Hallen J, Santow J

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

Introduction

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).
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 The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009.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.
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.
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.
(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.)
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

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.
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.
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.
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.
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.
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.
By letter dated 7 October 2021, a copy of which was annexed to Mr Brazel's affidavit, the solicitor for the Defendant acknowledged that "Your clients rights will not be waived by not filing a Summons before 27 October 2021" and that the Defendant "will support your clients Application if no resolution is reached".
The Defendant accepted the accuracy of the explanation of the delay in commencing the proceedings, which was that the parties had spent time endeavouring to settle what were, then, the threatened proceedings, and that the Defendant had stated that he would not oppose the extension of time if settlement was not reached. The Defendant also accepted that the estate of the deceased has not been distributed, and that the delay in commencing the proceedings has not occasioned any prejudice to him, or to the other beneficiaries.
In this case, in the event that an order for provision is made, each of the parties consents to the application being made out of time. As an order for provision is to be made, an order extending the time for the making of the application will also be made.
As the deceased left a Will that dealt with all of her property, there is no scope for the operation of the intestacy rules, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.
A family provision order may be made in relation to property that is not part of the deceased's estate but is designated as "notional estate" of the deceased by an order under Pt 3.3 of the Act: s 63(5). "Notional estate" of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. A person's rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act. In this case, there is no property that is sought to be designated as notional estate of the deceased.
The only eligible persons in respect of the deceased are the Plaintiff, the Defendant, and the two other, now adult, children, of the deceased, namely Neil Leslie Gow and Carl Herbert Gow.
Only the Plaintiff has made a claim for a family provision order. Each of the other two children of the deceased knew of the proceedings. There was some evidence that each had been served with a notice of the application, and of the Court's power to disregard his interests. Neither filed any evidence of his financial and material circumstances, or otherwise participated in the proceedings.
There was also some evidence that the Defendant's wife, Jacqueline Gow (referred to in the evidence as Jacqui), has been served with a notice of the application, and of the Court's power to disregard her interests. She was in Court throughout the hearing.
The Defendant and Jacqui are the major beneficiaries named in the deceased's Will. Only the Defendant gave evidence of their financial circumstances. I assume that Jacqui was the source of some of this information. No hearsay, or other, objection, was taken to the evidence of her financial and material circumstances being given in this way and there was no submission made that the disclosure, through the Defendant, was inadequate or incomplete. I shall refer to their situation in life, later in these reasons.
Even though neither of the principal beneficiaries, has commenced proceedings for a family provision order, the Act specifically provides that the interests of a beneficiary cannot be disregarded, even though he, or she, has not made a claim: s 61(1) of the Act. A beneficiary is entitled to rely upon the terms of the deceased's Will and his, or her, competing claim, respectively, as a chosen object of the deceased's testamentary bounty. It will be necessary to refer to the significant contribution, financial and otherwise, by the Defendant and Jacqui, made to the conservation and improvement of the estate of the deceased and to her welfare.
The Defendant does not seek any commission, or percentage, for his pains and trouble as is just and reasonable, out of the estate of the deceased pursuant to s 86 of the Probate and Administration Act 1898 (NSW).

The deceased's testamentary documents

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).
(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.)
The deceased made no provision for the Plaintiff in her last Will.
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)).
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.
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

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.
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.)
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).
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).
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.)
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.
This led to the Plaintiff's submission that a lump sum, calculated as a percentage of the net proceeds of sale of the Culburra Beach property could be made. I shall return to the submission later in these reasons.
The only liabilities of the estate that may have to be paid out of the deceased's estate are the costs of these proceedings, to which I shall refer shortly. As stated, other liabilities disclosed in Ex. JS1 have been paid.
There was no evidence of the costs of sale of the Culburra property in the event that it is required to be sold. The Court raised this matter with counsel at the commencement of the hearing. Later, sensibly if I may say, the solicitors for the parties discussed the costs of sale and agreed that the estimate thereof should be taken to be $27,250: Tcpt, 12 July 2022, p 12(27-29). I shall use this estimate in calculating the value of the net distributable estate out of which any order for provision could be made.

Costs of the Proceedings

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.
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.
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.
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.
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.
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.
Counsel for the Defendant said that the Court could deal with the matter in this way, but counsel for the Plaintiff responded that she would wish to make submissions seeking the same order if the Plaintiff were unsuccessful.
In this regard, the Court reminded counsel of what has been written in many cases, by other judges, and by me, in the context of a claim for a family provision order, that parties should not assume, in all cases, that this type of litigation can be pursued safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18]; North v Daniel [2021] NSWSC 828 at [82].
Counsel for the Plaintiff maintained her primary position but said that her "fallback position" was that there should be no order as to the Plaintiff's costs and that the usual order for the Defendant's costs should be made. As a family provision order will be made, it is unnecessary to consider this aspect further and what might be regarded as the usual order in relation to a successful plaintiff will be made.
Following the initial debate on costs, again, sensibly, the parties agreed that in the event that the Plaintiff were successful, he should receive a specified gross sum instead of assessed costs, of $49,256 (inclusive of GST) and that the Defendant should receive a specified gross sum instead of assessed costs, of $15,000, out of the estate of the deceased: s 98(4)(c) of the Civil Procedure Act 2006 (NSW).
Using the estimates as a guide, and as costs will be ordered to be paid out of the deceased's estate, the amounts that would be payable from the gross value of the estate ($733,770) would be the costs and expenses of sale ($27,250), the Plaintiff's costs of the proceedings ($49,356) and the Defendant's costs ($15,000), which totals $91,606.
It follows that the value of the deceased's estate out of which provision could be made for the Plaintiff is $642,164. It is a modest estate.

Percentage of proceeds of sale rather than specific lump sum

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).
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.
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".
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.
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.
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.
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.
I should mention that counsel for the Defendant accepted that a lump sum equating to a percentage of the estate would be an appropriate way of making a family provision order: Tcpt 12 July 2022, p 25(49)-26(05).

Background Facts

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.
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.
The Plaintiff's parents were friends, for many years, with the deceased and her husband, Harold Gow.
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.
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.
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.
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".
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.
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.
In 1994, the Plaintiff moved to the Central Coast. He said that he continued to maintain contact, by telephone, every 2 moths or so, but visiting became less frequent, perhaps doing so every 18 months or two years.
The Plaintiff's mother died in 2005. She had lived with Harold, until her death.
In March 2017, Alwyn died. As stated, pursuant to the terms of his 2014 Will, his estate passed entirely to the deceased.
The Defendant gave evidence that on 14 February 2021, the Plaintiff called him and asked about the deceased's Will, and the following conversation took place: Defendant: "Its being dealt with by the solicitors" Plaintiff: "Well, I've missed out on one inheritance, I'm not missing out on another."
In cross-examination, the Plaintiff agreed that he had said words to that effect, because he was "very angry". He agreed he had formed the opinion that the deceased's new Will was extremely unfair to him and that he was bringing these proceedings because of his sense of injustice and unfairness: Tcpt, 12 July 2022, p 37(37-49).

The Witnesses

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.
(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

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.
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.
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.
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.
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.
I shall now return to the Plaintiff's evidence that I do not accept as truthful.
In his initial affidavit, the Plaintiff, several times, described Nigel as his "partner", and included details of Nigel's financial and material situation.
In his affidavit in reply, filed and served shortly before the hearing, the Plaintiff stated that his relationship with his "former partner Nigel" had changed: Affidavit, Wayne Anthony Mallitt, 29 June 2022 at par 21-23. He asserted: "We are no longer a couple, though we remain friends. We do not go out together as a couple. At Christmas time he went to have a Christmas celebration with his brother and I was not asked to attend. We live separately under one roof. We eat separately, except for an occasional dinner when we happen to both be at home. (…) When I look back, the rift in our relationship first began in 2013 and we have drifted apart since that time."
He stated, however, that since his prostate operation in 2010, they were unable to engage in sexual intercourse. He maintained that at about that time the relationship had broken down and that Nigel, prior to 2010, had been his partner. He asserted that he "would agree that if we were still in an intimate relationship past 2010, I would say yes, he is my partner": Tcpt, 12 July 2022, p 34(47-49).
The Plaintiff also attested that the financial pressure from COVID-19 lockdowns and the loss of employment has caused rifts in his relationship with Nigel. He expressed a concern that "if our relationship deteriorates, or he commences a relationship with someone else" that he would have to find accommodation elsewhere.
The following evidence leads me to conclude that I should not accept that the Plaintiff and Nigel are no longer a couple, or as stated, "partners":

Nigel gave evidence, which I accept as truthful, that was inconsistent with the Plaintiff's evidence. I shall refer to his evidence, later in these reasons.
The Plaintiff annexed to his affidavit, a copy of the "Member Profile Report" for his two superannuation fund accounts which he holds with Australian Super. In each of these reports, dated 24, and 28, June 2022, respectively, Nigel is listed as the sole beneficiary. He is described in the report for the "Retirement income account" as the Plaintiff's partner, but in the report for the "Accumulation Account" he is described as having a relationship of "other".

In cross-examination the Plaintiff clarified that his intimate relationship with Nigel ceased in 2010, after he had his radical prostatectomy. He then continued: "I don't consider myself a partner because he sleeps at the front end of the house and I sleep down the back in the sunroom and it has been that way since 2010, which is over 12 years because it is past that now, since April. (…) We have never been intimate once in that 12 years, not slept together. We eat occasionally together, but he does his thing and I basically do my thing. He sits at home a lot and I go out with my friends. We have never been out for a coffee or anything in all those years, where we used to go out all the time previous to 2010. (…) Nigel is my best friend. (…) Don't get me wrong, I love Nigel, I always have but I am not in love with him and that's the big difference there."
In response to a question from the Bench going to why his evidence regarding his relationship with Nigel was inconsistent with the contents of his affidavit in chief, the Plaintiff stated (Tcpt, 12 July 2022, p 46(27-35)): "That is actually not me because that's my solicitor who wrote that in there, not me. (…) I probably overlooked those, I am sorry, your Honour."
The Plaintiff's solicitor was not called to give evidence that he had referred to Nigel as the Plaintiff's "partner", mistakenly, in the Plaintiff's affidavits.

Nigel's evidence

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".
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.
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.
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).
He confirmed that the Plaintiff pays him $400 for rent each week, and that they share, equally, the household bills.
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.
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

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.
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.
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.
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.
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.
Shortly before Alwyn's death, Jacqui had taken all of her accrued employment leave, to care for Alwyn and the deceased.
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.
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.
At this time, the Defendant withdrew just over $100,000 of his superannuation, and used that sum to pay for expenses whilst caring for the deceased. Jacqui also had to obtain new employment in the South Coast region. The whole of that amount has been spent.
The Defendant admitted in cross-examination that the deceased did not charge them rent while they were living there. He also admitted that he received a carer's allowance whilst looking after the deceased.
In cross-examination, the Defendant also agreed that he did have a discussion with the Plaintiff about other alternatives to provide care for the deceased, including placing the deceased in some kind of home, or having her staying with the Plaintiff and the Defendant on a rotating basis. However, he stated that the deceased indicated she did not want to do that. He denied that the Plaintiff had suggested that the deceased live in a home halfway between him and the Plaintiff, or to "get an increase in government carers": Tcpt, 12 July 2022, p 65(37)-66(20).
The Defendant disputed that the deceased did not know who the Plaintiff was when he would telephone. The Defendant gave evidence that when he would talk about the Plaintiff with the deceased, she would always know about whom they were speaking. In cross-examination he agreed that the Plaintiff did contact the deceased by telephone, on occasions like Mother's Day and her birthday.
In September 2020, the deceased was required to go into professional care, due to a further ACAT assessment. She was first admitted into Berry Hospital, and, subsequently, was moved to Osborne House, where she remained until her death in October 2020. During this period, the Defendant claimed that either he or his wife, or both of them, visited the deceased every single day. The Defendant said that the Plaintiff did not come to visit her during that time. Indeed, he confirmed that the Plaintiff had never visited the deceased following Alwyn's death in 2017, until her death in 2020.
During cross-examination, the Defendant said that Jacqui did provide the Plaintiff with a link to the livestream of the funeral, either by telephone, or by text message, but that due to bad reception "a lot of people said they couldn't watch it": Tcpt, 12 July 2022, p 68(47)-69(6). This may explain the Plaintiff not attending, even remotely. Nothing turns on his inability to do so.

The Plaintiff's Situation in Life

The Plaintiff is employed as a Supervisor at the Avoca Beach Bowling Club, where he has worked since 1997.
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.
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).
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).)
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.
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.
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.
The Plaintiff stated he has no liabilities.
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.
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.
Nigel worked for Wyong Council as a cleaner until April 2010. Subsequently, he has worked as a cleaner for a Cleaning Service at the Wyong Golf Club on a casual basis. He was retrenched from that role in October 2021. During most of 2021, his income was about $1,500 per month from Centrelink.
He has now commenced casual employment delivering eggs for an entity at Erina. He earns a monthly income of $600 from this work. On occasion, he works additional casual shifts on Friday and Sunday, for which he receives between $120-$253. He receives the rental payments of $1,600 per month from the Plaintiff. His monthly expenditure totals $1,824.
Nigel's major assets are the Glenning Valley property, in which he and the Plaintiff live ($750,000) and superannuation ($334,594). His other assets include a car ($5,000), some shares ($3,061), furniture ($5,000) and some monies in banks accounts ($5,280).His assets total approximately $1,105,935.
Nigel does not have any liabilities.
Although the Plaintiff stated to Nigel that he did not want anything from him, it is likely, after a relationship spanning almost 20 years, that he could make a claim under Part VIIIAB, Division 2 of the Family Law Act 1975 (Cth), for a property adjustment order if the relationship has broken down. Such a claim might be regarded as a financial resource, although it cannot be determined, on the current evidence, whether it would be. It is also not appropriate to speculate on the outcome of any such application if it were made.

The situation in life of the Defendant and Jacqui

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.
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.)
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.
Currently, the Defendant is not employed. He is about 63 years of age and will qualify for the aged pension in four years.
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.
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.
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.
Jacqui is currently employed as a receptionist for NSW Health, and earns a gross fortnightly income of $1,800.
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.
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 Defendant and Jacqui have limited assets, the total value of which is estimated to be $192,157. The most valuable asset is Jacqui's superannuation ($160,000), her car ($17,000), her camper trailer ($2,000) and her boat ($3,000). They have $356 in their bank accounts.
There was no dispute that the Defendant and Jacqui made a significant contribution, financial and otherwise, to the conservation of the estate of the deceased, and to her welfare and also to the welfare of Alwyn. Whilst the Defendant did receive the carer's pension, in my view, he and Jacqui did not receive adequate consideration (not including any pension or other benefit), for the significant contribution that they made.

The Plaintiff's Submissions

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."
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.
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.
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.
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.
In her oral submissions, counsel for the Plaintiff suggested that the increasing dementia suffered by the deceased, and any impairment on her judgment in the 2017 Will, should be a factor which could be taken into account pursuant to s 60(2)(p) of the Act.
I indicated, when the submission was made, that I would not accept that submission, and thereby allow the Plaintiff to, effectively challenge, the testamentary capacity of the deceased and the validity of the 2017 Will by means of a family provision claim. I have, however, borne in mind, the contents of the ACAT reports, a copy of which were in evidence.
Counsel for the Plaintiff conceded that the competing moral claims of the Defendant and his wife were very significant. In arguendo, during submissions, it was pointed out that some of the matters raised were unlikely to be accepted, and, then, if what the Plaintiff had sought by way of provision, were provided to him out of the estate of the deceased, and if the value of the estate were as set out in Ex JS1, the Plaintiff would receive most of the deceased's estate, whilst the Defendant, and Jacqui, the chosen objects of the deceased's bounty, would receive much less.
The so-called "needs" that the Plaintiff was said to have, when placed in the context of the available estate, and the competing moral claim of each of the Defendant and Jacqui reveals that a more realistic order for provision ought to have been sought.
Then, counsel for the Plaintiff seemed to accept that, after the cross-examination of the Plaintiff, there was little prospect of achieving what had previously been submitted, and then said that a lump sum equating to about 20 per cent of the net proceeds of sale of the Culburra Beach property would be adequate and proper in all the circumstances: Tcpt, 12 July 2022, p 98(9). On present estimates that would amount to about $128,500.

The Defendant's submissions

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.
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.
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.
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.
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.
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).
Perhaps, in all the circumstances, a more realistic assessment on what order for provision ought to be made, should have been the subject of the Defendant's submission.

The Law

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

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).
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.
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.
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

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".
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).
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".
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'."
In this case, there is no evidence that Alwyn, the Plaintiff's biological father, and the deceased, were ever married. The Plaintiff is not, therefore, a stepchild of the deceased, although it may be that he was treated, as such, by her, from when he was about 14 years of age. I have noted that the deceased described him in that way in her 2014 Will. That is a relevant matter even if, as a matter of definition, it is inaccurate.

Eligibility

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.)
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.
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

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.
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)
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".
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."
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."
Kirby P, in Tsivinsky v Tsivinsky [1991] NSWCA 269 at 13, in dealing with the section of the former Act, said: "Insofar as s 9(1) gives any guidance concerning the factors 'which warrant the making of the application', it is Delphic. The language used is extremely broad in its generality ('all the circumstances', 'whether past or present', 'factors ... warrant making the application', 'satisfies'). The only real clue as to what is meant is to be derived from the apparent policy of confining this additional, preliminary procedure to the particular categories of 'eligible person' contained in the definition paras (c) and (d) in s 6(1) of the Act."
In Lodin v Lodin (2017) 16 ASTLR 576 at 603-604; [2017] NSWCA 327 at [126]-[129], Sackville AJA (Basten and White JJA agreeing), (although in the context of a claim by a former spouse) set out a number of propositions which I paraphrase: 1. Care must be taken not to impose rigid constraints on the circumstances that might constitute factors which warrant the deceased making an application for family provision from the estate. 2. The factors must demonstrate that the deceased had a social, domestic, or moral, obligation to make testamentary provision for the applicant. 3. The position is unlikely to be different even if the estate is relatively large. Something more is ordinarily needed for the claimant to show that he, or she, was a natural object of testamentary recognition. 4. What more a claimant must show cannot be defined with precision since all the circumstances have to be taken into account. Some cases may be comparatively straightforward. 5. A significant matter is likely to be the nature of the relationship between the claimant and the deceased. In particular, it may be very important to determine whether there were (or are) features of that relationship that can be said to create a moral obligation on the deceased to make testamentary provision for the claimant.
An application for special leave to the High Court to appeal the decision of the Court of Appeal was dismissed as it would not enjoy sufficient prospects of success to warrant a grant of special leave to appeal: Lodin v Lodin [2018] HCASL 84.
However, as stated in Spata v Tumino [2018] NSWCA 17 at [72] by Payne JA: "[a] finding of being 'wholly or partly dependent' does not itself give rise to a statutory obligation to make provision from the deceased person's estate for the proper maintenance, education or advancement in life of the dependent; it is merely the first step".
Sackville AJA, in Spata v Tumino at [139], also affirmed that: "A claimant who establishes that he or she is an eligible person by reason of dependency on the deceased (and membership of the same household) may or may not be a person to whom the deceased owed an obligation to make provision by way of testamentary disposition. The concept of dependency in s 57(1)(e)(i) of the Succession Act is not to be limited by incorporating criteria that are only to be considered once the claimant establishes that he or she is entitled to apply for a family provision order."
In Page v Page (2017) 16 ASTLR 331 at 340; [2017] NSWCA 141 at [38], Leeming JA noted that: "An order for provision may only be made if (a) as a former member of the same household, the appellant establishes that he was 'at any particular time, wholly or partly dependent upon the deceased' and (b) that 'having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application': s 57(1)(e)(i) and s 59(1)(b). These are both 'jurisdictional' questions, in the sense that the application must be dismissed unless both questions are answered favourably to the claimant. However, they are different from one another. They are also different from the further question which arises under s 59(1)(c), which must also be answered favourably before an order for family provision is made."
Despite the submissions of counsel for the Defendant, I am satisfied that the Plaintiff is someone who the deceased regarded as a natural object of her testamentary bounty. The following facts support this conclusion: 1. The Plaintiff had a relationship with the deceased from at least 1972, when his biological parents were friends with the deceased and her husband, until his death in 2017, and to a lesser extent, until her death in 2020. For a period of time, after he moved into the home of Alwyn and the deceased, she appeared to accept, and discharge, the quasi-parental obligations which are implicit in the relationship of affinity that arose as a result of the relationship of Alwyn and the deceased. Even if they did not see each other between about 2007 and 2017, they had some contact, particularly in 2017 (although not after Alwyn's death on 30 March 2017). The relationship, such as it was, spanned a significant period of the Plaintiff's life. 2. The deceased played an understanding, and supportive, role in the Plaintiff's life, particularly, when he told the deceased and Alwyn that he was homosexual. 3. The deceased referred to the Plaintiff as her "step-son", in writing, in the 2014 Will and nominated him as a co-executor, with the Defendant. In my view, as a beneficiary named in that Will, the deceased expressly acknowledged that the Plaintiff was an object of testamentary bounty. 4. There was likely to have been at least some understanding between Alwyn and the deceased, at the time the 2014 Wills were made, that the survivor of them would inherit the estate of the other, and the real property held jointly, and then that his child, and at least one of her children, would inherit the estate and the property equally. 5. Whilst the deceased received the Culburra Beach property by survivorship, she inherited Alwyn's estate, whatever it was, pursuant to the mirror wills that Alwyn and the deceased had made in 2014. Whilst those wills were not mutual wills, that would give rise to an enforceable equitable obligation on the deceased, the 2014 Will is capable of giving rise to an obligation, or responsibility, for the purposes of the Act: Graham v Vukic [2020] NSWSC 1801 at [113] (Parker J). 6. The Plaintiff did not make a claim under the Act in relation to the estate, or notional estate, of his father, with the result that the deceased received the whole of his estate and notional estate. Even though the Plaintiff's prospects of success, in relation to such proceedings, had they been brought, might have been weak, he was an eligible person who had a claim on the bounty of his father.
There are clearly factors warranting the making of the Plaintiff's application.

Whether an order for provision ought to be made

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).
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.
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.
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.)
Basten JA, in Foley v Ellis [2008] NSWCA 288 at [3], commented that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254 at [126], White J wrote that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J has described it as "'an evaluative determination of a discretionary nature, not susceptible of complete exposition' and one which is 'inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific'": Szypica v O'Beirne [2013] NSWSC 297 at [40], citing Manuel v Lane [2013] NSWCA 61 at [9] (Emmett JA with Meagher and Ward JJA agreeing).
Under s 59(1)(c), the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the Court is considering the application.
It has been said that the provision which the Court may properly make is that which a just and wise testator would have thought it his, or her, moral duty to make had he, or she, been fully aware of all the relevant circumstances: Re Allen (deceased) [1922] NZLR 218 at 220-221 (Salmond J).
"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34] (Basten JA, with whom Allsop P and Ipp JA agreed), that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".
Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act.
In In Re Dennis (Deceased) [1981] 2 All ER 140 at 145-146, Browne-Wilkinson J wrote: "The court has, up until now, declined to define the exact meaning of the word 'maintenance' and I am certainly not going to depart from that approach. But in my judgment the word 'maintenance' connotes only payments which, directly or indirectly, enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him. The provision that is to be made is to meet recurring expenses, being expenses of living of an income nature. This does not mean that the provision need be by way of income payments. The provision can be by way of lump sum, for example, to buy a house in which the applicant can be housed, thereby relieving him pro tanto of income expenditure. Nor am I suggesting that there may not be cases in which payment of existing debts may not be as appropriate as a maintenance payment; for example, to pay the debts of an applicant in order to enable him to continue to carry on a profit-making business or profession may well be for his maintenance."
In Vigolo v Bostin (2005) 221 CLR 191 at 228-229; [2005] HCA 11, Callinan and Heydon JJ said of the words, "maintenance", "support" and "advancement": "'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education."
In Alexander v Jansson [2010] NSWCA 176 at [18], Brereton J (with whom Basten JA and Handley AJA agreed), said: "'Proper maintenance' is not limited to the bare sustenance of a claimant…but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility."
More recently, in Lewis v Warner [2016] 3 WLR 1545; [2016] EWHC 1787 at [26], Newey J wrote: "…The word 'maintenance' suggests the provision of assistance to enable a person to meet the requirements of his daily life. Someone of ample financial means will not normally need any such help. In principle, however, "maintenance" does not seem to me to be necessarily confined to support with a person's 'cost of … daily living' (to quote from the Dennis case). It is capable, in my view, of referring to other forms of assistance with the requirements of daily life. If, therefore, a person is in want of a particular thing to sustain a reasonable quality of life, the provision of it could possibly represent 'maintenance' regardless of his financial means. In other words, a person can potentially (albeit only very rarely) be in need of 'financial provision' for his 'maintenance' without being in any way short of money: his money may not be able to secure him what he requires. As a result, there appears to me to be no absolute bar on the provision of something for full consideration representing 'financial provision' for a person's 'maintenance'."
Although discussed in the context of legislation in the United Kingdom that has a few similarities (and omitting parts of the reasons that, clearly, would not apply to the Act) in Ilott v The Blue Cross [2017] 2 WLR 979; [2017] UKSC 17 at [14]-[15], the following passage in the judgment of Lord Hughes (with whom Lord Neuberger, Lady Hale, Lord Kerr, Lord Clarke, Lord Wilson and Lord Sumption agreed) appears: "The concept of maintenance is no doubt broad… It must import provision to meet the everyday expenses of living… The level at which maintenance may be provided for is clearly flexible and falls to be assessed on the facts of each case. It is not limited to subsistence level. Nor, although maintenance is by definition the provision of income rather than capital, need it necessarily be provided for by way of periodical payments, for example under a trust. It will very often be more appropriate, as well as cheaper and more convenient for other beneficiaries and for executors, if income is provided by way of a lump sum from which both income and capital can be drawn over the years… Lump sum orders are expressly provided for... There may be other cases appropriate for lump sums; the provision of a vehicle to enable the claimant to get to work might be one example and, as will be seen, the present case affords another. As Browne-Wilkinson J envisaged (obiter) in In re Dennis … there is no reason why the provision of housing should not be maintenance in some cases…"
The concept of "advancement in life" extends to a person's adult years: Mayfield v Lloyd-Williams [2004] NSWSC 419 at [114] (White J).
In McCosker v McCosker (1957) 97 CLR 566 at 575; [1957] HCA 82, Dixon CJ and Williams J wrote: "The presence of the words 'advancement in life' in the... Act in addition to the words 'maintenance and education' is not unimportant... 'Advancement' is a word of wide import."
In In the Estate of Puckridge, Deceased (1978) 20 SASR 72 at 77, King CJ wrote: "The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an early period of life in the members of the family: Blore v Lang, per Dixon CJ at p. 128." [Footnotes omitted]
In Goodman v Windeyer (1980) 144 CLR 490 at 505; [1980] HCA 31, Murphy J wrote: "Provision for advancement may, for example, extend to retraining or the gaining of a qualification which could advance and perhaps enable an applicant to maintain himself or herself."
In Bartlett v Coomber [2008] NSWCA 100 at [50], Mason P said (Hodgson JA agreeing): "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker … at 575; Stiles v Joseph (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams…)."
In my view, advancement in life may be seen as provision that will improve, and enhance, the material situation of the applicant.
The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton in "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5 Aust J Leg Hist 5 at 10, as reached upon "a purely economic and objective basis", whereas "proper" prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127 at 145-146; [2007] WASCA 235 at [72] and [77] (Buss JA), which seems to invite more subjective criteria.
The words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 476: "The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."
Their Lordships went on to state, at 478: "The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the court were concerned merely with adequacy. But the court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration."
Dixon CJ and Williams J, in McCosker v McCosker at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that: "It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."
In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19; [1962] HCA 19, Dixon CJ, pointed out that the words "adequate" and "proper" are always relative and that what the testator regarded as "superior claims or preferable dispositions" is a relevant consideration: "The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning."
In Goodman v Windeyer at 502, Gibbs J wrote: "…the words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards"
In Vigolo v Bostin at [114], Callinan and Heydon JJ wrote: "…the use of the word 'proper'… implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here… The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."
Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep) at 12, that "adequate" and "proper" are independent concepts. He wrote: "'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied." [Citations omitted.]
In Palagiano v Mankarios [2011] NSWSC 61 at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life "involve value judgments on which minds can legitimately differ", and "[t]here are no definite criteria by which the question can be answered."
His Honour added, in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [123]: "The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case including 'the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty': Singer v Berghouse (1994) 181 CLR 201 at 210."
In Devereaux-Warnes v Hall (No 3) at [81]-[84], Buss JA wrote: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer (at 227) per Gaudron J. 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 at 10-11 per Bryson J. The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter (at 575) per Kirby P. Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer (at 227) per Gaudron J. Compare Gorton (at 6-11) per Bryson J; Collicoat v McMillan [1999] 3 VR 803 at [38], [47] per Ormiston J."
However, as set out below, s 60 of the Act invites the Court to have regard to various matters, including, but not limited to, "financial needs": s 60(2)(d). If the Court does so, as also will be read, one of the purposes for which that is done is for determining "the nature of any [family provision] order": s 60(1)(b) of the Act.
White J wrote, in 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 at [147], that "the need a claimant must demonstrate is a need for 'proper' maintenance, education and advancement in life", but that does not mean that "adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others". I respectfully agree.
In considering the financial resources and needs of the applicant for provision the observations of Basten JA (made with the concurrence of Simpson and Payne JJA) in Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222 at [22], should be borne in mind: "A significant set of factors in many cases is that identified as "the financial resources (including earning capacity) and financial needs, both present and future, of the applicant...". However, it is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. The background to any consideration of the appellant's needs require[s] determination of the size of the estate and the claims of others on the beneficence of the testator" (footnote omitted).
Of course, "need" is a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45] (Dodds-Streeton J). It is different from "want" and does not simply mean "demand" or "desire". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (the former President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 at [54]: "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'."
In Boettcher v Driscoll (2014) 119 SASR 523 at 530; [2014] SASC 86 at [41], David J added: "'Need' is not so synonymous with 'want' such that the two are interchangeable."
As Callinan and Heydon JJ emphasised in Vigolo v Bostin at [122], the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined.
If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made.
The questions posed arise under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse (1994) CLR 201 at 211; [1994] HCA 40, affirmed that the decision made involves an exercise of discretion in the accepted sense. The fact that the Court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.
Section 60 of the Act provides: "(1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person - the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
It can be seen that s 60(2) enumerates 16 specific matters, described by Basten JA in Andrew v Andrew [2012] NSWCA 308 at [37], as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the court considers relevant", for the purpose of determining whether the applicant is an "eligible person", whether a family provision order should be made, and if so, the nature of any such order.
In Chapple v Wilcox (2014) 87 NSWLR 646 at 649; [2014] NSWCA 392 at [7], Basten JA wrote (Gleeson JA agreeing): "Section 60 of the Succession Act spells out the matters which the court may have regard to in determining whether the claimant 'is an eligible person' and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the 'nature of any such order', which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b)."
The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed are, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.
The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.
A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).
Because of its relevance to the case, I mention that there is no definition in the Act of "financial resources" (which term is only referred to in s 60(2)(d)). However, there was a definition of that term in s 3 of the Property (Relationships) Act 1984 (NSW), which I consider helpful: "'financial resources' ... includes: (a) a prospective claim or entitlement in respect of a scheme, fund or arrangement under which superannuation, retirement or similar benefits are provided, (b) property which, pursuant to the provisions of a discretionary trust, may become vested in or used or applied in or towards the purposes of the parties ... (c) property, the alienation or disposition of which is wholly or partly under the control of the parties to the relationship or either of them and which is lawfully capable of being used or applied by or on behalf of the parties to the relationship or either of them in or towards their or his or her own purposes, and (d) any other valuable benefit."
Under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently.
Section 65(1) of the Act requires the family provision order to specify: the person or persons for whom provision is to be made, and the amount and nature of the provision, and the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and any conditions, restrictions or limitations imposed by the Court.
I have earlier referred to s 65(2)(f) of the Act. If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest: s 65(3) of the Act.
Section 66 of the Act sets out the consequential and ancillary orders that may be made.
Because of the evidence of the Plaintiff to which I have referred, it is also necessary to refer to some other general principles.
Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1 at 6, that it is not appropriate to endeavour to achieve a 'fair' disposition of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants. The Court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act the correction of the hurt feelings, or sense of wrong, felt by an applicant. Rather, the Court's role is of a specific type and goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance, education or advancement in life of an applicant.
In Cooper v Dungan (1976) 50 ALJR 539 at 542, Stephen J, reminded the Court to be vigilant in guarding "against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant". Freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the Court": Pontifical Society for the Propagation of the Faith v Scales at 19.
In McCosker v McCosker at 580, Kitto J (in dissent but in a passage referred to with apparent approval by Gleeson CJ in Vigolo v Bostin at [24]), referred to the necessity of restraint where he could not be satisfied that he understood "… the whole situation so well that I could deal with the estate more justly than the testator dealt with it …"

Further Additional Facts

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

There is no definition of "family" in the Act.
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

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.
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.
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.
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

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

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

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

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

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

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

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

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.
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.
Then, I next consider the nature and amount of any provision that should be made.
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.
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.
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.
As earlier stated, I have specified a lump sum in the hope that the Defendant and Jacqui will be able to find a way to satisfy the order of the Court without the need to sell the Culburra Beach property. Apart from anything else, the costs and expenses of its sale would be saved.
If, however, they are unable to do so, within 2 months of the date of the making of the orders and notations, then the Culburra Beach property should be sold by the Defendant, and the Plaintiff should receive, by way of provision, a lump sum calculated as 12.5 per cent of the net proceeds of sale of the Culburra Beach property. I have stated this percentage because it broadly equates to the percentage of the net distributable estate set out above ($80,000 divided by $642,000).
In the circumstances, the Court: 1. Orders, the parties to the proceedings having consented, that the time for the making of the Plaintiff's application be extended until 8 February 2022, the date of the filing of the Summons herein. 2. Orders, having found the Plaintiff is an eligible person, that there are factors warranting the making of his application, and that the provision made for him in the Will dated 1 May 2017 of the deceased is inadequate for his proper maintenance and advancement in life, that the Plaintiff receive, by way of provision a lump sum of $80,000 out of the estate of the deceased. 3. Orders that in the event the Defendant is unable to pay the lump sum within 2 months of the date of the making of these orders and notations, the Culburra Beach property is to be sold, and the Plaintiff should receive a lump sum calculated as 12.5 per cent of the net proceeds of sale (calculated as the gross sale price less the costs and expenses of sale and the costs of these proceedings). 4. Orders that the provision made for the Plaintiff be provided out of the devise of the Culburra Beach property. 5. Orders that no interest be paid on the lump sum, if it is paid within 2 months of the date of the making of these orders and notations; otherwise, interest calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW), on unpaid legacies, is to be paid from that date until the date of payment of the lump sum. 6. Orders that the Plaintiff's costs and disbursements of the proceedings, being a specified gross sum instead of assessed costs, agreed in sum of $49,256 (including GST), be paid out of the estate of the deceased. 7. Orders that the Defendant's costs and disbursements of the proceedings, being a specified gross sum instead of assessed costs, agreed in sum of $15,000 (including GST), be paid out of the estate of the deceased. 8. Grants liberty to any party to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to, and implementing, the family provision order made in favour of the Plaintiff. 9. Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW).

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

Civil Procedure Act 2006(NSW)s 98(4)(c)

Family Provision Act 1982(NSW)

Succession Act 2006(NSW)ss 3, 55, 57-59, 60-63, 65-66, 72

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