Malone v Runge

Supreme Court of NSW|2012-08-20

98, unreported) Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Hampson v Hampson [2010] NSWCA 359 Harris, In Re (1936) 5 SASR 497 Hawkins v Prestage (1989) 1 WAR 37 Hughes v National Trustees Executors and Agency Co. of Australasia Ltd (1979) 143 CLR 134 Hunter v Hunter (1987) 8 NSWLR 573 Hyland v Burbidge [2000] NSWSC 12 Kay v Archbold [2008] NSWSC 254 Keep v Bourke [2012] NSWCA 64 Kembrey v Cuskelly [2008] NSWSC 262 Kirby v Sims [2011] NZHC 935 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Lathwell v Lathwell [2008] WASCA 256 McCosker v McCosker (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 MacGregor v MacGregor [2003] WASC 169 Marks v Marks [2003] WASCA 297 Mayfield v Lloyd-Williams [2004] NSWSC 419 Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Savic v Kim [2010] NSWSC 1401 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (NSWSC, 16 December 1996, unreported) Stott v Cook (1960) 33 ALJR 447 Taylor v Farrugia [2009] NSWSC 801 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, Young J, 17 May 1996, unreported) Worladge v Doddridge (1957) 97 CLR 1 Worsley v Solomon [2008] NSWSC 444 Williams v Aucutt [2000] 2 NZLR 479 Zuckerman v Public Trustee, In re Green, deceased [1951] NZLR 135 Category: Principal judgment Parties: Rhonda Jean Malone (first Plaintiff) Patricia Barbara Kane (second Plaintiff) Michelle Anne Runge (Defendant) Representation: Counsel: Mr G A Rich (Plaintiffs) Mr M Bradford; Ms A Poljak (Defendant) Solicitors: Grassi Legal Pty Limited (Plaintiffs) Michael Siderowitz & Co (Defendant) File Number(s): 2012/16677

The Applications 1HIS HONOUR: These reasons relate to proceedings, in which two separate claims for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act") are made. 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 The Act replaces the Family Provision Act 1982 ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the court, under Chapter 3, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person. 2The deceased, whose estate is the subject of the claims, is Patricia Isabelle Jacka ("the deceased"). (There is no notional estate the subject of the claims.) 3The Plaintiffs, Rhonda Jean Malone, and Patricia Barbara Kane, made their claims in one Summons filed on 17 January 2012, that is, within the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased). Each Plaintiff is a child of the deceased. 4The Defendant named in the Summons is Michelle Anne Runge, the executrix named in the Will of the deceased to whom Probate was granted, and she is a grandchild of the deceased. 5Without any undue familiarity, or disrespect intended, and for convenience, hereafter, I shall refer to each of the Plaintiffs and the Defendant, and any family members, after introduction, by her, or his, name. I note that the parties, during the hearing, referred to Patricia Barbara Kane as "Barbara" and their older sister, Evelyn Veronica Runge, as "Lyn" and to avoid confusion, I shall do the same.

Formal Matters 6The following facts are uncontroversial and provide a useful background. (a) The deceased died on 18 January 2011. She was then aged 82 years, having been born in March 1928. (b) The deceased married Edward Kane in 1947. He predeceased her, having died in June 1975. Lyn, Barbara and Rhonda is each a child of the deceased and Edward. (c) In early 1977, the deceased commenced a de facto relationship with Don Jacka. They married in October 1978. They separated in December 1981. He died in 1996. There were no children of their relationship or marriage. (d) The deceased commenced a relationship with Les Sealy in 1982. There is some question whether it was a de facto relationship. There were no children of their relationship. (e) The deceased left a Will that she made on 17 May 2006, Probate of which was granted, on 28 March 2011, by this Court, to Michelle. (f) The deceased's Will, relevantly, provided for: (i) a bequest of jewellery, items of personal use and household contents, to Lyn; (ii) a pecuniary legacy of $10,000 to Rhonda; (iii) a pecuniary legacy of $10,000 to Barbara; (iv) a pecuniary legacy of $10,000 to each of the deceased's seven grandchildren, namely Suzanne Louise Runge, Michelle, David John Runge, Darren Edward McLeod, Wayne John McLeod, Martin Edward Malone, Christopher Malone; and (v) the rest and residue of the estate to Lyn. (g) Suzanne, David and Michelle are the children of Lyn. Darren and Wayne are the children of Barbara. Martin and Christopher are the children of Rhonda. The deceased had a close and loving relationship with all of her grandchildren. (The parties agreed that the legacies to be paid to the grandchildren should not bear the burden of any provision made for either Plaintiff.) (h) On the same day that she executed her Will, the deceased signed a Statutory Declaration, which was in the following terms: "... 1.In my Will executed by me today, I refer to provision for the residue of my estate to my daughter EVELYN VERONICA RUNGE and $10,000.00 to each of my daughters PATRICIA BARBARA McLEOD and RHONDA JEAN MALONE. 2.I have [made] the above provisions having regard to the estrangement of PATRICIA BARBARA McLEOD and RHONDA JEAN MALONE from me during the last 5 years or so following separate incidents with each of PATRICIA BARBARA McLEOD and RHONDA JEAN MALONE. 3.I am mindful [of] the past and ongoing morale and support that my daughter EVELYN VERONICA RUNGE and her family have given me, and I have made the bequest to EVELYN in recognition of her support." (i) In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased's actual estate, at the date of death, was disclosed as having an estimated, or known, gross value of $813,030. The property owned solely by the deceased was real estate at Leichhardt ("the Leichhardt property") ($760,000), cash in bank ($49,030), furniture and contents ($3,000) and jewellery and personal effects ($1,000). (I have omitted, and shall continue to omit, any reference to cents in amounts referred to, but, if necessary, the cents may be included in totals.) (j) No liabilities were disclosed in the Inventory of Property. Michelle paid the funeral expenses ($8,115), withdrawing that amount from the deceased's bank account. (k) None of the estate of the deceased has been distributed (other than to pay part of Michelle's costs and disbursements to which I shall later refer). (l) The Leichhardt property was sold, by public auction, in April 2011 for $701,000. The parties agreed that the value of the estate, at the date of hearing, was $711,659. That estate is made up of cash in bank. (There may have been some interest accrued since the hearing but it is not likely to be significant.) (m) In calculating the value of the estate of the deceased, finally available for distribution, the costs of the present proceedings should also be considered, since the Plaintiffs, if successful, normally, will be entitled to an order that their costs, calculated on the ordinary basis, be paid out of that estate, whilst the Defendant, as executrix of the estate, irrespective of the outcome of the proceedings, normally, will be entitled to an order that her costs, calculated on the indemnity basis, be paid out of the estate. (n) The Plaintiffs' costs and disbursements are estimated to be $68,000, if calculated on the ordinary basis, and $74,310, if calculated on the indemnity basis. The estimate, in each case, is inclusive of GST and is based on a two-day hearing. As the matter did not finish in the allotted time, an estimate of $5,000 is to be added to complete the matter (to enable written submissions to be filed and served). (o) Michelle's costs and disbursements are estimated to be $67,649, as calculated on the indemnity basis. The estimate is inclusive of GST and is based on a two-day hearing. Of this amount, $42,649 has been paid out of the deceased's estate. The balance to be paid out of the estate is $25,000. As the matter did not finish in the allotted time, an estimate of $5,000 is to be added to complete the matter (to enable written submissions to be filed and served). (p) It can be seen, therefore, that the estimated value of the net distributable estate, after the payment of the legacies to the seven grandchildren ($70,000 in total) and the payment of the Plaintiffs' estimated costs calculated on the ordinary basis and the balance of Michelle's estimated costs ($103,000 in total), is estimated to be in the order of $538,659. (q) Of course, depending upon the result of the Plaintiffs' claims and any orders made as to costs, the costs and disbursements, if payable out of the estate will be able to be formally assessed, unless otherwise agreed by the parties. (r) Michelle indicated, in her affidavit evidence, that she intended to seek commission for her "time and trouble in both dealing with the estate and responding to the Plaintiffs' claims herein". However, at the commencement of the hearing, her counsel informed me, without objection, that the claim for commission would not, in fact, be pursued. (s) The persons described as eligible persons, within the meaning of the Act, are the Plaintiffs, and Lyn. None of the grandchildren of the deceased has been identified as a person who is, or who may be, eligible. This is not surprising as there is no evidence about the dependency, whole, or partial, of any of the grandchildren upon the deceased. (t) Only the two Plaintiffs have commenced proceedings. Michelle has served a prescribed notice on Lyn, who has sworn two affidavits in which she has given evidence about her financial and material circumstances and advanced a case that she is a competing claimant, financially and otherwise, upon the bounty of the deceased. These affidavits were read in the proceedings and Lyn was cross-examined. (u) There is no evidence of service of the prescribed notice on any of the grandchildren. However, this does not cause any difficulty in the present case since the parties do not seek to interfere with the legacy payable to each of them. (v) There has not been service upon Les. However, the parties submitted that he is not an eligible person within the meaning of that term in the Act. In the circumstances, there having been little evidence about the nature of the relationship, I am prepared to accept that this is so.

Additional Background Facts 7The following facts are also not the subject of any dispute between the parties. (a) Lyn was born in October 1948 and is 63 years old. (b) In about 1956, Edward purchased a property in Carlisle Street, Leichhardt ("the Carlisle Street property"), which became the family home. (c) Edward died intestate. In about June 1980, the deceased obtained a grant of letters of administration of Edward's estate, following which, in about September 1980 she became the registered proprietor, as administrator of Edward's estate, of the Carlisle Street property. (d) At the time, the intestacy laws provided that where the intestate left a spouse and also issue surviving him or her, the spouse was entitled to one-third, whilst the issue were entitled to share, equally, two-thirds of the property of the intestate. (e) In November 1980, the deceased sold the Carlisle Street property for $49,000. (f) The three children did not receive any of Edward's estate, although entitled to share equally two-thirds thereof. The deceased used all of the net proceeds of sale of the Carlisle Street property to purchase the Leichhardt property (where she lived until her death). This was done with the consent of each of Lyn, Barbara and Rhonda. (g) On the same day as she executed her Will, the deceased also executed a General Power of Attorney, in which she appointed Lyn and Michelle as her attorneys. (h) Lyn was married to Hans Udo Runge, but he predeceased her, having died in October 2010. (i) Barbara was first married to Kerry John McLeod, but they divorced in 1975. Subsequently, she was in a de facto relationship with William John White, but he predeceased her, having died in August 2002. (j) Rhonda married Mark Malone in December 1978 and remains married to him. Mark is aged 55 years.

The Statutory Scheme - The Act 8Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out some of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and their submissions. 9The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008. A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, will. It is only if the statutory conditions are satisfied, that the court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate, to produce a result that is consistent with the purpose of the Act. Even then, the Court's power to do so is discretionary. 10The key provision is s 59 of the Act. The Court must be satisfied, first, that each applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made. Relevantly, one category is "a child of the deceased" (s 57(1)(c) of the Act). Clearly, that language is expressive of the person's status, as well as his, or her, relationship to the deceased. There is no age limit placed on a child making an application. 11The Court, if satisfied of each applicant's eligibility, must, in this case, then determine whether adequate provision for the proper maintenance, education or advancement in life of that applicant has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is only if the Court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). In this way, the Court carries out a two-stage process. It may take into consideration, the matters referred to in s 60(2) of the Act at both stages. (The operation of intestacy rules is irrelevant to this case.) 12Other than by reference to the provision made in the will of the deceased, or, if relevant, by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) of the Act leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for each applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the court to the provision actually made in the deceased's will, or on intestacy, or both, on the one hand, and to the requirement for maintenance, education and advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant. 13It was said in the Court of Appeal (per Basten JA) in Foley v Ellis [2008] NSWCA 288 at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment". 14Under s 59(1)(c) of the Act, the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the court is considering the application. Under s 59(2), the Court has regard to the facts known to the court at the time the order is made. 15"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime". 16Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement": "'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education." 17In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), at [18], stated: "Proper maintenance is not limited to the bare sustenance of a claimant [cf Gorton v Parkes (sic) [1989] 17 NSWLR 1], but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility." 18In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77 King CJ said: "The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang (1960) 104 CLR 124, per Dixon CJ at 128." 19Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16: "Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that . . . [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541) In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274... In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said: 'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.' The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that: 'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'" 20In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J at [114] noted: "In the context of the Act the expression advancement in life is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support." 21In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)." 22The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, whereas "proper" prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 per Buss JA, at [72], [77]. 23These 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." 24Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper": "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 if life must be considered in the light of 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." 25In Goodman v Windeyer (1980) 144 CLR 490, Gibbs J said at 502: "[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards." 26In Vigolo v Bostin, at 228, Callinan and Heydon JJ said: "[T]he use of the word 'proper'...implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of 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 use 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." 27Santow J pointed out in Gardiner v Gardiner (NSWSC, 28 May 1998, unreported), that "adequate" and "proper" are independent concepts. He said at 12: "'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied ..." 28The first stage of the process provided for by s 59(1)(c) has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the Court will consider whether it can make an order for provision for the maintenance, education and advancement in life of a particular applicant. 29Whether the applicant has a "need" or "needs" is a relevant factor at the first stage of the enquiry. It is an elusive concept to define, yet, it is an element in determining whether "adequate" provision has been made for the "proper maintenance, education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 (Tobias JA, with whom Beazley and Hodgson JJA agreed). 30Tobias JA said "42. Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focused. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies. ... 47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is 'proper maintenance etc' of the eligible person. It is because of that context that, in the present case, the 'proper maintenance etc' of the appellant required consideration of a need to guard against the contingency to which I have referred." 31In Devereaux-Warnes v Hall [No 3] at [81] - [84], Buss JA said, in respect of the first stage of the process: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227. '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 per Bryson J at 10-11. 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 per Kirby P at 575. 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 per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]." 32In the event that the Court is satisfied that the power to make an order is enlivened (ie it is satisfied that the applicant is an eligible person, and, where necessary, that factors warranting have been satisfied, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), then, the Court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the Court at the time the order is made. 33The second stage of the process arises under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the Court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour. 34Section 60 of the Act, at least in part, is new. It provides: "(1)The court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the 'applicant') is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2)The following matters may be considered by the court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person-the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered." 35It can be seen that s 60(2) enumerates 15 specific matters which the Court may take into account, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order, and, if so, the nature of any such order. 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 such of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance, and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender. 36Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. For example, when considering eligibility under sub-s (1)(a), many of the matters in sub-s (2) will be largely, if not wholly, irrelevant. 37There is no definition in the Act of "financial resources" (which term is referred to in s 60(2)(d)). However, there is a definition of that term in s 3 of the Property (Relationships) Act 1984, 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." 38Of course, sub-s (2)(d) refers also to "earning capacity", which means no more than the capacity to find employment to earn or derive income. 39Furthermore, consideration of some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of each applicant and of other eligible persons as well as of the beneficiaries, whilst others do not. Importantly, also, many of the matters in sub-s (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1). 40Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently. 41This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the first stage. I am comforted in reaching this conclusion by the following comments made in Singer v Berghouse (at 209-210): "... The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant." 42And by the comments of Callinan and Heydon JJ in Vigolo v Bostin (at 230-231): "We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors." 43Section 61 of the Act permits the court to disregard the interests of any other person by, or in respect of whom, an application for a family provision order may be made (other than a beneficiary of the deceased person's estate), but who has not made an application. However, the court may disregard any such interests only if: (a) notice of the application, and of the court's power to disregard the interests, is served on the person concerned, in the manner and form prescribed by the regulations or rules of court, or (b) the court determines that service of any such notice is unnecessary, unreasonable or impracticable in the circumstances of the case. 44Section 65(1) of the Act requires the family provision order to specify: (a) the person or persons for whom provision is to be made, and (b) the amount and nature of the provision, and (c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and (d) any conditions, restrictions or limitations imposed by the court. 45The order for provision out of the estate of a deceased person may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act). 46The order may be made, relevantly, in this case, in relation to the estate of the deceased. As the deceased died leaving a Will, her estate includes all property that would, on a grant of probate of the Will, vest in the executor of the Will (s 63 of the Act). 47Any family provision order under the Act will take effect, unless the court otherwise orders, as if the provision was made in a codicil to the will of the deceased, or in the case of intestacy, as in a will of the deceased (s 72(1) of the Act). 48Section 66 of the Act sets out the consequential and ancillary orders that may be made. 49The Court, also, may, at the time of distribution of an estate that is insufficient to give effect to a family provision order, make such orders concerning the abatement, or adjustment, of distributions from the estate, as between the person in whose favour the family provision order is made and the other beneficiaries of the estate as it considers to be just and equitable among the persons affected (s 72(2) of the Act). 50Section 99 of the Act provides that the Court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit.

Other Applicable Legal Principles - Substantive Application 51Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the previous legislation, they are equally apt in a claim brought pursuant to the Act. 52Bryson 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 to correct the hurt feelings of, or sense of wrong, felt by an applicant. Rather, the Court's role is of a specific type and goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance, education and advancement in life of an applicant. 53In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the Court to be vigilant in guarding "against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant". Freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the court": Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, at 19. 54In Stott v Cook (1960) 33 ALJR 447, Taylor J, although dissenting in his determination of the case, observed, at 453-4, that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged." 55Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (NSWSC, Young J, 17 May 1996, unreported); Vigolo v Bostin at 199 and 204; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. 56In all cases under the Act, what is adequate and proper provision is necessarily fact specific. 57The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1910) 29 NZLR 959 at 966. 58Where the Court is satisfied that provision ought to be made, then it is no answer to a claim for provision under the Act that to make an order would be to defeat the intentions of the deceased identified in the Will. The Act requires, in such circumstances, for the deceased's intention in the Will to be displaced: Kembrey v Cuskelly [2008] NSWSC 262, per White J, at [45]. 59All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singer v Berghouse. What is proper provision is not arrived at simply by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12 at [56]. Nor does it follow that, if the Court decides it is inappropriate to make a specific provision in respect of one identified head of claim, any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams. 60A claim under the Act does not encompass reparations, or compensation, to an applicant for the deceased having failed in his, or her, legal, or moral, duty to be a good and responsible parent of the child: Re Bull; Bentley v Brennan [2006] VSC 113, per Byrne J, at [30]. 61As I said in Savic and Ors v Kim [2010] NSWSC 1401 at [82]: "It is not the purpose of the Act to punish, or redress, past bad, or unfeeling parental behaviour, where that behaviour does not still impinge on the applicant's present financial situation." 62What was said in Edgar v Public Trustee for the Northern Territory [2011] NTSC 5, per Kelly J, at [46], should be remembered: "There is no onus on the ... residuary beneficiary under the will to show that she is entitled to be treated as such - or to prove what may be necessary for her proper maintenance and support. Rather the onus is on the plaintiff to show that proper provision is not available for him under the terms of the will. In determining whether this is the case the Court must have regard to all relevant circumstances including the size of the estate and the nature of the competing claim by the widow. In performing this task the Court must have due regard to the will of the testator and should interfere only to the minimum extent necessary to make adequate provision for the proper maintenance, education and advancement in life of an applicant who has passed the first jurisdictional hurdle. As Dixon CJ said in the passage from Scales quoted above, due regard must be had to 'what the testator regarded as superior claims or preferable dispositions' as demonstrated by his will." (Omitting citations) 63In relation to a claim by an adult child, the following principles are useful to remember: (a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his or her children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801. (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia. (d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland Deceased [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co. of Australasia Ltd (1979) 143 CLR 134 at 148; Goodman v Windeyer at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons to whom the applicant, however reasonably, wishes to support, where there is no obligation to support such persons: Re Buckland Deceased at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams, at [86]. (e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45. (f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003) at [181], [182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17]. (g) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd at 149. (h) Although some may hold the view that equality between children requires that "adequate provision" not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the Court's determination of an applicant's case. 64In Blore v Lang (1960) 104 CLR 124, Fullagar and Menzies JJ said, at 135: "The ... legislation [is] for remedying, within such limits as a wide discretion would set, breaches of a testator's moral duty to make adequate provision for the proper maintenance of his family - not for the making of ... a fair distribution of ... [the] estate ... Equality is not something to be achieved by the application of the Act, although in some cases equality may set a limit to the order to be made - for instances, where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same." 65Relevantly to Rhonda's claim, Menzies and Fullagar JJ in Blore v Lang, at 135, also commented, in respect of "a married woman with a healthy husband in satisfactory employment who supports her in reasonable comfort", "her need is not for the bread and butter of life, but for a little of the cheese or jam that a wise and just parent would appreciate should be provided if circumstances permit". (Of course, in Rhonda's case as will be seen, she also works and provides for herself and her family.) 66Even more vividly, but to similar effect, is the approach in Worladge v Doddridge (1957) 97 CLR 1 at 12, in which Williams and Fullagar JJ approved the following statement, from In Re Harris (1936) 5 SASR 497 at 501: "Proper maintenance is (if circumstances permit) something more than a provision to keep the wolf from the door - it should at least be sufficient to keep the wolf from pattering around the house or lurking in some outhouse in the backyard - it should be sufficient to free the mind from any reasonable fear of any insufficiency as age increases and health and strength gradually fail."

Estrangement 67On the topic of the relationship between an applicant and the deceased, Campbell JA (with whom Giles JA and Handley AJA agreed) noted, in Hampson v Hampson [2010] NSWCA 359: "[80] The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge." 68Because, in this case, there is a factor raised by the deceased (and by Michelle and Lyn) that bears on the quality of the relationship, being that Rhonda and Barbara were both said to be estranged from the deceased for several years before her death, it is necessary to set out some other general principles which should be remembered: (a) The word 'estrangement' does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties to the relationship. Whether the claim of the applicant on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case: Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Dec) v Lathwell [2008] WASCA 256 at [33]. (b) The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 at [88]-[94]; Foley v Ellis. In Palmer v Dolman Ipp JA, after a review of the cases, observed (at [110]) that: "... the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act." (c) There is no rule that irrespective of a Plaintiff's need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to "ample" provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases. (d) The Court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one "who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility": Ford v Simes [2009] NSWCA 351, at [71], per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed. (e) As was recognised by the Court of Appeal of New South Wales in Hunter v Hunter (1987) 8 NSWLR 573, at 574 - 575, per Kirby P (with whom Hope and Priestley JJA agreed): "If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator's will." (f) Even if the applicant bears no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the Court's discretion under s 59(2) of the Act to make a family provision order where the jurisdictional requirements of s 59(1) are met. That the applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them the love, companionship and support present in normal parent/child relationships, during those years, is a relevant consideration: Keep v Bourke, per Macfarlan JA, at [3]. (g) The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, may operate to restrain amplitude in the provision to be made: Keep v Bourke [2012] NSWCA 64, per Barrett JA, at [50]. (h) Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. In addition, s 60(2)(m) permits the Court to consider the character and conduct of the applicant at the second stage of the process. Care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time: Foley v Ellis at [102]. 69(I referred to most of these principles in Andrew v Andrew [2011] NSWSC 115 at [74]. The Court of Appeal heard an appeal on 14 June 2012 and has reserved its decision.) 70I make clear that I do not intend what I have described as "applicable principles" or "general principles" to be elevated into rules of law. Nor do I wish to suggest that the jurisdiction should be unduly confined or the discretion at the second stage to be constrained by statements of principle found in dicta in other decisions. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind.

Issues of Credit 71There were many issues raised in the affidavits. The resolution of this unfortunate family dispute, between siblings, involving their niece and daughter, has not been assisted by these affidavits which explored, in parts, quite irrelevantly, the minutiae of what each alleges was the conduct of herself and other family members towards each other and to the deceased (Kirby v Sims [2011] NZHC 935) as well as the deceased's drinking habits. 72I am reminded, in this case, of what Campbell J (as his Honour then was) said in Cairns v Cairns [2006] NSWSC 364: "13 In the present case, the ambit for dispute about matters which are fundamental to the plaintiff's claim does not strike me as great. The fundamental facts about the family relationships and the financial and domestic circumstances of the family members are not in dispute. There are some matters which are traversed in affidavits, but they do not seem to be at the core of the case. They provide another example of the practice, encountered far too often in both Family Provision Act 1982 cases and claims under the Property (Relationships) Act 1984, of affidavits setting out the deponents' versions of small details of the domestic virtues or shortcomings of each other. Where the truth lies concerning such matters very often does not help the Court at all in deciding whether to make an order, and if so what order. Very often, one finds that such detail is not referred to at all by counsel in written submissions or oral address. Putting that sort of detail into affidavits has no effect but to increase costs unnecessarily. For example, in the present case, I doubt that I will be assisted in reaching a conclusion by finding whether the plaintiff did, or did not, refuse to clean the bathroom and toilet." 73Numerous objections were taken to the affidavit evidence (requiring half a day to be spent dealing with the objections) and the Plaintiffs, as well as Mark, Martin, Michelle and Lyn, were cross-examined. 74It is impossible to reach clear findings on all of the issues, some of which could not tested because they involve events that occurred many years ago. The Court can never know all the circumstances. Nor can this judgment hope to identify all of the detail of the affidavits filed, or to reconcile the many contradictory expressions of fact and opinion that are revealed by those affidavits. I have so far, and shall hereafter, record my findings on what I regard as the most important issues. What I have dealt with is all that is necessary and appropriate in this particular case. 75As has also been stated, more than once, "it is a comparatively rare case where denigrating the character and motives of a family member will assist the cause of another in the eyes of a Judge" trying a claim for a family provision order: Williams v Aucutt [2000] 2 NZLR 479, per Blanchard J, at [71]; cited in Auckland City Mission v Brown [2002] 2 NZLR 651, at [15]. 76In relation to the statutory declaration by the deceased, I bear in mind, also, what was said by the Court of Appeal of New Zealand in In re Green, deceased; Zuckerman v Public Trustee [1951] NZLR 135 at 141 (which passage was approved by the majority of the High Court in Hughes v National Trustees, Executors and Agency Company of Australasia Ltd at 152): " ... the testator should not be allowed from the grave to condemn the child and to impose upon that child the positive duty of disproving the allegations as an essential preliminary to prosecuting the claim." 77I remember, as well, that the fact a statement is made by the deceased does not mean, necessarily, that the statement must unquestionably be accepted as true. Such a statement may be just as inaccurate, or as unreliable, as a statement of a living witness, whether as the result of mistake, or failure of memory, or deliberate untruth: Worsley v Solomon [2008] NSWSC 444 per McLaughlin AsJ at [35]. 78By way of example, Rhonda repeats a conversation with Rita Maloney, who told Rhonda that the deceased had tried to ring a number of times, but that Rhonda would hang up. Rhonda disputed this. I accept Rhonda's evidence in this regard. 79Michelle gives evidence of conversations with the deceased, in which the deceased said that she had telephoned Rhonda "a few times to try to smooth things over", but that Mark had refused to call Rhonda to the telephone. Mark denied this. I accept that if the deceased had telephoned to speak with Rhonda, Mark would have called Rhonda to the telephone. He gave evidence that, in 2002, he had spoken to the deceased about ending the disagreement between her and Rhonda. 80There was similar evidence about several attempts made by Michael, in telephone conversations with the deceased, to effect reconciliation, which were also unsuccessful. (Lyn admitted that she was aware of these attempts.) 81Michelle also says that the deceased had been led to believe that Rhonda had changed her home telephone number (which Rhonda denied). Interestingly, this is different to a conversation the deceased had with Rita. 82Finally, I repeat what I said in Andrew v Andrew at [25]: "While the Court will consider any explanations given by the deceased in the will, or elsewhere, for excluding a particular person as a beneficiary, such explanations do not relieve the court from engaging in the enquiry required by the Act: Slack-Smith v Slack-Smith [2010] NSWSC 625 at [27]. What an explanation may do is cast light on the relationship between the deceased and that person, at least from the deceased's perspective." 83One of the matters that occupied a significant amount of time in the case was an allegation that a family member had sexually assaulted Barbara. (It was not a case where the allegation involved the deceased having sexually abused the applicant.) 84An inordinate amount of time was spent in cross-examination on this issue (and persisted with in the Defendant's supplementary written submissions), despite me having made clear that I would not determine whether, in fact, she had been. The issue was not relevant to my determination of the claims, other than in relation to the questions whether Barbara had made an allegation to the deceased, and if so, how the deceased had responded to the allegation, thereby providing an explanation for the breakdown of Barbara's relationship with the deceased. 85Even then, the allegation was only relevant to these questions because of the strongly felt sense of grievance at the way (Barbara believed) the deceased had treated her that permeated Barbara's evidence. 86It was suggested to Barbara, in cross-examination, that her allegations were "made-up" and that they were only disclosed, for the first time, in about 2002. In this regard, I am unable to fathom any reason for Barbara making-up, but more importantly, persisting with, the allegation. I do not accept the motive attributed to Barbara, by counsel for Michelle, namely Barbara wished to drive a wedge between the deceased and Lyn. How her allegation was intended to achieve this was not explained. 87I find much more compelling Barbara's evidence that when, at the age of 15 years, she informed the deceased of the allegation, the deceased told her: "Don't say anything, don't upset your sister, don't ruin your sister's marriage." 88One understands the difficulty the deceased would have had when she was confronted by such an allegation (whether she believed it was true or not) and her conflicting loyalties to each of her children. This also explains the deceased not having raised the allegation with Rhonda or Lyn at, or about, the time it was said to have been first made. It would have been quite unnecessary to do so, if the deceased was satisfied that Barbara would accept her advice not to say anything, or, as importantly, if she did not believe the allegation to be true. 89Having observed Barbara in the witness box, I have no reason to reject her evidence that she made an allegation of having been sexually assaulted to the deceased, as she alleged, when she was 15, and on different occasions thereafter. In coming to this view, I acknowledge that her evidence that she made such an allegation was not corroborated. 90I also make clear that I am not expressing a view on the truth, or otherwise, of the allegation, but rather, concluding, firstly, that an allegation was made to the deceased at some time before 2002, and that the deceased had responded in the manner Barbara had stated. 91I do not accept the submission that the allegation was "mischievous" or that Barbara's case involves "a misguided notion that the deceased was in some way responsible for her situation". To the contrary, I find Barbara's reaction to what she believed was the deceased's response, particularly in circumstances where she asserted that a sexual assault had taken place, to be rational and reasonable. 92I have considered the deceased's reaction to the events of 2002 and Barbara's disclosure at that time. Barbara, then, for the first time repeated, and perhaps, expanded upon, the allegation to Lyn, something that the deceased had not wished her to do. It may be that Barbara felt compelled to confront the events that she believed had occurred. However, bearing in mind it was so long after the events alleged are said to have occurred, it is not surprising that the deceased reacted in the way that she did. The deceased may have thought that making the allegation to Lyn was going to affect not only family relationships, but also the relationship between her three daughters (which it, in fact, did) and the deceased. It may also have affected the dynamics in Lyn's family. 93The deceased's reaction was likely to be more extreme if she did not believe the allegations to have been true. 94I have no doubt that when Barbara, in 2002, made the allegation to Lyn, her relationship with Lyn's family and the deceased became fractured. From this time on, Barbara's relationship with the deceased, and with Lyn, changed significantly. 95Remarkably, having spent as much time as he did, counsel for the Defendant concluded part of his submissions, on the topic, by stating: "Quite apart from all of that, the issue of whether Barbara complained to the Deceased about ... at any time prior to August 2002 is distracting because, on any view of the evidence, whatever in fact transpired between them, it did not have any real bearing on their relationship prior to August 2002." 96But then he went on to submit: "The Deceased cannot be blamed for any of this. Barbara's decision to make these allegations in the way she did when she did and adhering to them over the last 10 years of her mother's life, was reprehensible in the extreme and, in the end, totally destructive of her relationship with the Deceased." 97I then turn to the evidence of the other principal witnesses. Subject to one matter in respect of Rhonda's evidence, and one matter in respect of Lyn's evidence, I found each of them endeavouring to give her, and his, oral evidence to the best of her, and his, ability. Michelle was hardly cross-examined, and apart from appearing to be hostile to both of the Plaintiffs, which she admitted, her oral evidence was not particularly helpful on the determination of the issues. 98In relation to Rhonda's evidence, a copy of a typed letter, with the typed name "Rhonda" at its end, was shown to Rhonda. Whilst Rhonda could not remember specifically having typed, or sent, the letter, she, initially, accepted that it was a letter that she had probably written and sent to the deceased. She said, in this regard: "Q. (Shown letter) it is a long letter? A. Yes, I don't remember writing it but there is a lot in here that is true. Do you know when this was written? Q. I was going to ask you the same question. I suggest you it was written not long after August 2002? A. Obviously. Q. Do you accept you wrote that letter? A. I must have. That is all I can say." 99However, the next day, upon her re-entering the witness box, and when she was again taken to the letter, her evidence changed somewhat. She gave the following evidence: "Q. I am showing you a copy of exhibit 3, Mrs Malone. (Shown) You would agree, would you not, you wrote that letter probably in about early 2003? A. No, I don't agree with that. I don't remember writing it. Q. I beg your pardon? A. I don't remember writing it. Q. You don't remember writing it? A. No. Q. I showed it to you yesterday and you read [it]? A. Not thoroughly. Q. It is your letter? A. No, it's not. No, I don't remember writing it. Q. That is not what you were asked. The first question you were asked was, if it is your letter, was it written in about early 2003? A. I don't know. Q. Are you say you didn't write it? A. No, I don't remember writing it. I don't remember writing it. Q. But having read it yesterday do you now deny having written it? A. Yes, I do deny because I don't remember. Q. All right. So yesterday when I showed you the letter you read it to yourself and you made a comment to the effect that a lot of this is true? A. Yes. Q. I understood you to indicate yesterday that having read the letter you had accepted that it was your communication? A. I said I didn't remember writing it. Q. Yesterday? A. Yes. Q. You can see at the end of the letter, if you just turn over to page 3, your name appears at the foot of it? A. Yes. Q. Correct? A. Yes. Q. And you still say you have no recollection of having written it now? A. That's right but anybody can type Rhonda on the end of a letter. Q. Are you suggesting somebody else wrote in and typed your name on it? A. It's possible." 100The contents of the letter make it clear that the author of the letter was Rhonda. Many of the matters asserted in it related to her and to her family. There was no suggestion of the person who might have written it, any reason advanced why anyone else would write the letter and conclude it with Rhonda's name, and then send it to the deceased. In addition, its tone and content seemed to have the hallmarks of what Rhonda had said about the deceased in her affidavits. 101I am satisfied that the original letter was written by Rhonda and was sent by her to the deceased. It is difficult to accept her prevarication on the questions whether she wrote and sent the letter to the deceased (even if she did not actually remember writing it. 102In relation to Lyn's evidence, the following passage of her affidavit evidence should be referred to: "32.The only way that I can make ends meet is for my daughter Michelle to pay the first mortgage instalments and for my son David to pay the second mortgage instalments and together they meet the shortfall between my income and remaining expenses. My Allowance does not entitle me to any concessions or discounts." 103Her evidence in cross-examination was as follows: "Q. In about 2009, for example, did you have a mortgage on your house? A. Yes. Q. How much was that? A. We took a mortgage out in 2006 for 50,000. I don't know whether the next one was 2009, 8 it was 85,000. Q. What did you do with that money? A. It was to help my children to get into their own homes. Q. It was money advanced to your children? A. Yes. Q. For each of the mortgages? A. Yes. Q. That is why your children are paying the mortgage set out in your affidavit? A. They are now. Q. The security was provided by your home but the loans were for them and they are responsible for the repayments of the loan? A. They are now. Q. They were from the out set, weren't they? A. No, I was paying. Q. How long were you paying them for? A. For the year I had the money and now they have taken over. Q. When you set out in your liabilities that you have a first mortgage to St George Bank for $85,000 and a second mortgage to St George Bank for $49,000 that is the money provided to your children? A. Yes. Q. In respect of which they are solely responsible for the payments? A. They are now. I did put that in there. Q. Where did you put that in? A. Isn't it on the next page? Q. You say, 'The only way I can make ends meet is for my daughter Michelle to pay the first mortgage instalments and for my son David to pay the second mortgage instalments'? A. I was paying them prior to. Q. The only way you may ends meet is they are paying for the mortgage that was obtained for their benefit? A. They are now. Q. That's not what your statement said or was intending to convey, was it? You were intended to convey they were your prime responsibility? A. They are if they default because they are on my home. Q. If they default? A. Yes. Q. You are not expecting either of them to default? A. I hope not." 104I am of the view that, whilst it is correct that each of the mortgages is registered on title to the Defendant's property, the moneys borrowed were loaned to her children and it is each of them who is bearing the burden of the repayments. I am of the view that her affidavit was somewhat misleading in this regard. 105Martin Malone was not cross-examined very much. I accept his evidence and note that he, too, tried, unsuccessfully, to resurrect the relationship between the deceased and his parents. His evidence does cause me to reflect on the veracity of the deceased's version of some of the events and particularly whether what she told other witnesses about her attempts to resurrect the relationship with Rhonda and Barbara were accurate. 106It is not necessary for me to deal with other areas of dispute, particularly one relating to the drinking habits of the deceased. This matter, too, occupied a significant part of the affidavit evidence, and in light of the agreement of the parties that the relationships of the deceased and her children were close, at least until 2000, in relation to Rhonda, and until 2002, in relation to Barbara, the issue was a sterile one. It is unfortunate that the parties, and their legal advisers, considered it to be so important.

Additional Facts 107Next, I set out below additional facts 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 the matters in s 60(2) of the Act to which I may have regard. (a) any family, or other, relationship between the applicant and the deceased person, including the nature and duration of the relationship 108Rhonda is a child of the deceased. She remained living at home with her parents for some years prior to the death of Edward. Following the death of Edward, in 1975, she moved back to live with the deceased. She continued to live with the deceased until about 1977, when the deceased formed a relationship with Don. 109Generally, her relationship with the deceased, during this period, and until about 2000, was close and loving. However, in 2000, there was a disagreement between Les and Christopher during an inconsequential game of cards, from which disagreement, it appears, the relationship between Rhonda and the deceased never recovered. Thereafter, until her death, Rhonda's contact with the deceased was limited to perhaps two telephone calls and two or three face to face meetings (at family events), at which neither said anything of any substance to the other. 110For a couple of years after 2000, Rhonda sent cards acknowledging Mother's day and the deceased's birthday, and sent some gifts on these occasions, but these overtures did not result in them rekindling their relationship. 111I have referred to the letter from Rhonda to the deceased. The letter demonstrates the emotional feelings that Rhonda then had and that she wished to explain to the deceased what was, then, causing her to be so upset. 112There seems to be some evidence that supports the truth of the statements made by the deceased in the statutory declaration. Rhonda does not dispute that for approximately the last 10 years of the deceased's life, she and the deceased had very little to do with each other. Of course, that is undeniable. 113As stated, Barbara, too, is a child of the deceased. There is some suggestion, on each side, that Barbara's relationship with the deceased was less strong than the relationship of the deceased and Rhonda. Barbara, herself, gives evidence, about having an unhappy childhood, but it appears that examples that she uses to support that refer more to the conduct of Edward than the conduct of the deceased. 114However, on one aspect Barbara does refer to the deceased. She felt that the deceased did not support her, as she should have, when Barbara, at the age of about 15 years, made the complaint to the deceased of having been sexually assaulted. As I have stated, this permeated all of her evidence. 115Barbara gives evidence of an argument in 1994/1995 when she raised this topic with the deceased. However, it was in about 2002 when the relationship with the deceased suffered a serious schism following a conversation with the deceased dealing with the visit of a cousin and the danger of possible sexual harassment of the cousin's young daughters. 116Michelle and Lyn seem to accept that the relationship of the deceased with each of her children, was, generally close and loving (at least until 2000). The Defendant's further written submissions state: "1.In the years prior to April 2000, the Deceased clearly had a close relationship with her children and grandchildren. ... 4.Nor can there be any doubt that, prior to April 2000, there were many harmonious family gatherings. Evelyn has given oral evidence (T 143/40) to the effect that she never felt like she was treated any differently by the Deceased and that they (ie the Deceased and her daughters) were "all very close" (T 143/47). Barbara said in her oral evidence (T 92/10) that they were "a close family", as did Rhonda (T57/5, "everyone knew eveiyone else's business"). Each of them lived in Blacktown as from the early to mid 1980s and their families would no doubt have spent a good deal of time together..." 117It follows, that the estrangement of Rhonda commenced in about 2000 and the estrangement of Barbara commenced in about 2002. However, before then, the relationship of each with the deceased was close and loving. 118It is difficult to fathom what occurred, if anything, between Rhonda and the deceased, after 2000, which caused the conflict to be maintained, particularly as the cause of the argument that led to the problem, was trivial in the extreme and the relationship prior to that time was as set out above. Thereafter, each appears to have taken the view that it was for the other to resurrect the relationship. 119I have earlier referred to attempts made on the part of Rhonda, or more accurately, Mark and Martin, to resurrect the familial relationship. I have referred to Mark's evidence, which I accept, that he said to the deceased, in August 2002: "Pat, don't you think this is long enough, where you and your girls, your family and your grandchildren got back together?" 120Thus, there is some basis for the criticism, made in the Defendant's submissions, about Rhonda's lack of communication with the deceased, when they were both present at various family events between 2002 and 2010. However, it is to be noted that the deceased attended these events also and she did nothing to bridge the gulf of silence between them. 121In relation to Barbara, I do think that the deceased could have taken steps to repair the relationship particularly following the death of Barbara's de facto partner of many years. Barbara, too, remained estranged from the deceased for the period from 2002 until her death. 122That Lyn could also have done something to resurrect the relationship, but felt unable, or unwilling, to do so, is reflected in the following evidence: "Q. Can I ask you next, you were just asked some questions about your mother being unhappy about the deterioration of the relationship and that she would have liked to have changed that? A. Yes, that is my opinion. Q. Did she tell you that? A. Oh, definitely, lots of times. Q. Having been told that, was there any reason that you didn't contact either of your sisters and say to them, look, mum is really sad, she would like all this over and done with? A. After the allegations that you have heard today I don't want to speak to my two sisters, I am sorry." 123I must remember that subs 60(2)(a) refers to the relationship of the applicant and the deceased, its nature and its duration. It is fair to say that for most of the deceased's life, her relationship with each of the two Plaintiffs was close and loving. It is tragic that it could not continue to be in the last years before she died. (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 124There 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. 125Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to Rhonda, Barbara, or to Lyn, imposed upon her by statute or common law. However, a moral obligation or responsibility, to make adequate provision for the proper maintenance or advancement in life is recognised in the case of a child. 126The fact that an applicant was financially independent for many years before the deceased's death is a relevant consideration in determining the extent of any obligation or responsibility owed. 127To the extent that there is any obligation, or responsibility, arising as a result of their relationship as grandparent and grandchild, the deceased did not have any legal, or financial, obligation to any of her grandchildren, imposed upon her by statute or common law. There is no suggestion that the deceased assumed any particular obligation, and responsibility, towards any of them. The grandchildren, however, are identified as beneficiaries in the deceased's Will and the parties accept that each should receive the legacy left to her, or him, in the deceased's Will. (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 128I have dealt with these matters earlier in these reasons. The estate is not large. (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 129Rhonda sets out her financial resources (assets and liabilities), and that of her husband, Mark, at the date of the hearing as follows: Assets (a) Blacktown home: $ 370,000 (b) Commercial premises: $ 590,000 (c) Superannuation (Mark Malone): $ 88,746 (d) Superannuation/Insurance (Rhonda): $ 30,181 (e) Interest in Company: $ 146,000 (f) Motor vehicle: $ 22,000 (g) Household furniture & artwork: $ 10,000 Total: $1,256,927

Liabilities (a) NAB home loan: $ 255,000 (b) NAB Commercial property loan: $ 395,000 (c) NAB Personal Guarantee: $ 543,514 Total: $1,193,514

130She was unable to state whether the amount the subject of the personal guarantee referred to above included, in whole or in part, the amount of the commercial property loan. However, Mark clarified this issue: "Q. In relation to those business loans and indeed all of the loans you provided personal guarantees? A. That's correct. Q. You and your wife provided personal guarantees? A. Yes." 131She was also unable to explain how the value of the "Interest in Company" had been calculated. She stated that she had not made the calculation but that their accountant had done so. 132The company referred to is Markrho Holdings Pty Limited. It conducts the business of funeral services. Originally, that business was conducted in a partnership with others, but Rhonda and Mark purchased the interests of the other partners in about May 2011. The business then, was valued at $77,500. However, the purchase price of the other partners' interests was $215,000, with the company taking over all the liabilities. It was necessary to borrow $280,000 to purchase the interest of the other partners and to provide some additional working capital. 133Rhonda works in the business, as does Mark. Rhonda's duties include working on reception, preparing funeral plans, doing the accounts and organising the funerals. It is a seven-day a week job. 134Mark has given evidence that the business needs an injection of capital to construct a viewing room ($25,000) and install ventilation. He has also said that there has been a downturn in the business in the last 12 months with the result that the business is not trading profitably. Rhonda states, by way of example, that she and Mark only receive a weekly wage now, and that due to the financial circumstances of the business, they have been unable to take any drawings otherwise. 135In her oral evidence, she said that she draws a weekly wage of $728 per week (after tax), whilst her husband, Michael, draws a weekly wage of $972 per week (after tax). She estimated the family's weekly expenses at $2,683, including tax ($415) and "commercial property payment", which she acknowledged was, in fact, paid by the company. She accepted that their combined income of about $1,700 per week was sufficient to meet their ongoing weekly expenses. 136As to her "needs", Rhonda says that her home requires considerable repair, particularly to the roof that leaks into the bedroom. There is cracking in the foundations of the house. She last had a holiday about 10 years ago. She would like to be able to have regular holidays and breaks, because she is generally very tired and depressed, as is her husband. Because of the nature of the business, she and her husband are always on call, seven days a week and they operate as a husband-and-wife team. She would like to be able to reduce the level of debt that they have as it is a source of considerable stress and concern. She would also like to have additional resources to provide them with security. She says that their superannuation is limited. 137Barbara's financial position is dire. Her regular fortnightly social security payment as at 16 January 2012 is as follows: (a) Disability Support Pension: $689 (b) Plus Pension Supplement: + $ 60 (c) Plus Rent Assistance: + $119 (d) Less Real Estate Agents: - $480 (e) Less Electricity: - $ 50

138Her rent was due to increase to $500 per fortnight from 21 August 2012. 139She sets out her expenditure as follows: Expense Item Weekly Monthly Household: $ 40 $174 Fuel: $ 22 $ 86 Motor vehicle registration: $ 9 $ 39 Medications: $ 11 $ 46 Phone: $ 27 $110 Entertainment: $ 16 $ 60

140Barbara goes to the Church of Christ at Seven Hills, on Friday evenings, and has a hot meal there. The Church also provides her with a bag of vegetables that lasts her for a week. It gives her a bag of food containing cereals, biscuits and rice. It also provides companionship. She rarely has meat, other than chicken, as she cannot afford it. 141Lyn's financial position is set out as follows in her affidavit: Assets (a) Blacktown property (joint tenancy): $450,000 (b) 1995/96 Ford motor vehicle: $ 1,200 (c) Household goods: $ 2,000 (d) Savings account: $ 500 Liabilities (a) First Mortgage to St George: $85,000 (b) Second Mortgage to St George: $49,000 Monthly Income (a) Widow's allowance: $1,054 (currently $1,061)

Monthly Expenses (estimate) (a) First Mortgage: $ 600 (b) Second Mortgage: $ 400 (c) Council rates: $ 90 (d) Water rates: $ 70 (e) Insurance: $ 80 (f) Electricity: $ 90 (g) Telephone: $ 60 (h) Fuel: $ 200 (i) Car registration: $ 70 (j) Food/household supplies: $ 280 (k) Medications: $ 24 (l) Entertainment: $ 180

142Her house is in need of significant repairs but due to her financial circumstances she has been unable to attend to them. She intends to obtain quotations for the undertaking of such work. Currently, as stated previously, her children make the mortgage repayments. 143There was some cross-examination of moneys spent by Lyn in gambling on poker machines. She admitted that following the death of her husband, there had been a period of time when she had spent more than she ought to on poker machines. She says that she does not spend nearly as much now as she did then. (e) if the applicant is cohabiting with another person - the financial circumstances of the other person 144I have set out the financial circumstances of Mark, Rhonda's husband. 145Christopher still lives at home, but there is nothing about his financial and material circumstances disclosed in the evidence. Rhonda states that he is not dependent upon her and Mark. 146Barbara is single and lives alone. (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 147Rhonda suffers from depression and high blood pressure, in respect of which conditions she receives treatment. She takes medication but the symptoms vary continually. She says her normal demeanour is of an extroverted, upfront, person who copes with whatever is going on. She tends to hide her real emotions and she says that she does not cope well. She says she is struggling at work, but continues because she is needed. 148Rhonda also says that the events of the last years, including the events of 2000, the early death of William, and the death of the deceased, have resulted in her feeling as if she is unable to cope generally. 149Barbara's medical condition is much more severe. She suffers from depression, high blood pressure, anxiety and panic attacks. She takes antidepressant and blood pressure mediation, and HRT medication to control panic attacks. She suffers panic attacks regularly, with minor ones occurring about 12 times a month and one or two major ones every month. When she gets these attacks she has tachycardia, severe sweating and often feels like her body is covered with ants and she has passed out. Her condition varies throughout the day. 150As a result of her condition she rarely leaves the house except to go to the shops and to Church or when necessary. She prefers not to leave the house and feels safe there. 151Lyn suffers from ulcerative colitis, a condition which, she says, is potentially life threatening. It requires specialist treatment. She also suffers from hypertension (since 1974) and stress and anxiety. (g) the age of the applicant when the application is being considered 152Rhonda was born in November 1955 and is presently aged 56 years. 153Barbara was born in February 1951 and is presently aged 61 years. (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 154The Plaintiffs assert a financial contribution to the acquisition, conservation and improvement of the estate of the deceased. They say that since the deceased retained the whole of the proceeds of sale of the Carlisle Street property on the death of Edward, to which they were each entitled to two-ninths, which proceeds of sale the deceased used to purchase the Leichhardt property, they have made a financial contribution. 155Michelle asserts that, in reality, this was not a substantial contribution, since the deceased and Edward were married for many years and that had the deceased made a claim for further provision out of his estate, in all probability, she would have received the Carlisle Street property absolutely. 156Whilst she may, or may not, have succeeded in any such application, the deceased did not have to make a claim because Rhonda and Barbara (and Lyn) each accepted that she should receive the whole of Edward's estate, which included the Carlisle Street property and each signed documents that enabled that to be achieved without any substantial expense. 157I consider that this was a real financial contribution, by each of them, to the acquisition, by the deceased, of the Leichhardt property. 158There is no dispute that before 2000, in the case of Rhonda, and 2002, in the case of Barbara, each contributed to the welfare of the deceased. There is no suggestion that either sought from, or was given by, the deceased, any consideration for that contribution. 159Thereafter, until her death, it was Lyn, and members of her family, who made the major contribution to the deceased's welfare. The deceased acknowledged this in the Statutory Declaration. (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 160There is some dispute about what provision the deceased made for each of Rhonda and Barbara during her lifetime. Lyn says that she paid for Barbara's wedding in 1969, gave each of her daughters, $300 or $400, towards the purchase price of a car, gave each some money from Edward's superannuation in 1980, gave each a diamond ring, paid for a private enquiry agent for surveillance of Barbara's husband, Kerry, and gave Barbara $500 a few days prior to John's funeral. 161Rhonda agreed that she received $300 and the diamond ring. Barbara says that her ex-husband's father gave the deceased $500 to pay for the wedding and that she received the money for the car. She also agrees that the deceased gave her $500 but says that it was at William's wake. 162Of course, under the Will, Rhonda and Barbara each receives $10,000 out of the estate of the deceased. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person 163There is some evidence of the testamentary intentions of the deceased other than as stated in her Will and in the statutory declaration to which reference has been made. 164Rhonda says that in about 1981, the deceased, when going into hospital, gave her a briefcase containing legal papers and the original of her then will, which Rhonda read. Whilst a copy is not available, Rhonda says that she remembers that it provided that all of the deceased's property should be divided equally between her three daughters. Barbara says, in one of her later affidavits, that the deceased discussed that will, on many occasions, at family gatherings. 165Lyn does not dispute that such a will existed. 166There is no evidence of any other will. The will referred to does not appear to have been revoked until the deceased made the Will the subject of the grant of Probate. (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 167The deceased did not maintain either of the Plaintiffs, wholly or partly, before her death, other than during childhood. Rhonda's evidence, which I accept, is that on two different occasions in the 1980's, when she sought financial assistance from the deceased, she refused to provide such assistance to Rhonda. (l) whether any other person is liable to support the applicant 168There is no person with a liability to support Rhonda, apart from, perhaps, Mark. 169There is no person with a liability to support Barbara, apart from the support she receives in the form of a government pension. (m) the character and conduct of the applicant before and after the date of the death of the deceased person 170An evaluation of "character and conduct" may be necessary, not for the sake of criticism, but to enable consideration of what is "adequate and proper" in all the circumstances. Importantly, the Act does not limit the consideration of "conduct" to conduct towards the deceased. 171I have dealt with the relationship of each Plaintiff and the deceased earlier in these reasons. 172No doubt, there is significant regret that what now seems to be such a trivial incident, in which the deceased, herself, was not directly involved, other than, subsequently, when she supported Les' conduct, has had such a significant impact upon the relationship of the deceased and one of her daughters. 173In relation to Barbara, I do not accept the Defendant's submission that her conduct was such as to disentitle her from any provision. In coming to this conclusion I consider the totality of the relationship. (n) the conduct of any other person before and after the date of the death of the deceased person 174It is necessary to consider Lyn's conduct. I am satisfied that she was a loving child to the deceased, and that for the last 10 years or so of the deceased's life, she was the principal person who assisted the deceased. 175It is unfortunate, but understandable, that Lyn could not bring herself to try to assist the deceased and each of the Plaintiffs to resolve their differences. 176It is not necessary to extend these reasons by discussing the conduct of any other person. (o) any relevant Aboriginal or Torres Strait Islander customary law 177This is not relevant in the present case. (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 178There is no other matter that I consider relevant.

Determination 179Claims for a family provision order present particular difficulties where the actual estate is not large and where there are several competing claims upon the bounty of the deceased. Any provision made by the Court in favour of an applicant must, in this class of case, be made at the expense of the beneficiary who has, or beneficiaries who have, had to defend the claims and who is, or are, the chosen object of the deceased's bounty. 180Being an "eligible person" is a necessary precondition to the court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. In this case, there is no dispute that Rhonda and Barbara, as each is a child of the deceased, is an eligible person within the meaning of s 57(1)(c) of the Act. 181There is also no dispute that the proceedings were commenced within the time prescribed by the Act. 182Then, the first question for determination is whether, at the time when the court is considering the application, adequate provision for the proper maintenance, education or advancement in life of each applicant has not been made by the Will of the deceased. 183Counsel for Michelle did not accept that Rhonda has "need". He submitted, even though the provision made for Rhonda and Barbara in the Will of the deceased is $10,000, that the jurisdictional threshold had not been satisfied. 184In relation to Rhonda, he submitted: "36.Rhonda's position on this issue is quite tenuous and, indeed, she does not appear to have any real financial need which cannot be met from her own resources. Their business is quite successful, it yields joint net drawings of more than $120,000 a year, the debts are being serviced by the income and there is currently about $25,000 in the bank. 37.Rhonda gives evidence in her main affidavit about what she would 'like to do' with extra money but that is hardly evidence of need." 185In relation to Barbara, counsel submitted that "Barbara could do with a buffer for contingencies but her estrangement from the deceased and the preservation of her pension militate strongly towards dismissal of her claim". Alternatively, it was orally submitted that she should receive a lump sum of $40,000, which "would seem to be a meaningful and effective advancement of her position in life". 186Subsequent written submissions included one that was: "Barbara's needs are very modest and the $10,000 legacy which the Deceased has given to her under that Will can still go some way towards meeting her immediate needs." 187As discussed above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence. In considering the answer to the question posed at the first stage, judged by quantum and looked at through the prism of her financial and material circumstances, adequate provision for the proper maintenance or advancement in life was not made by the Will of the deceased for either Plaintiff. 188Whilst a lump sum, by way of maintenance or advancement in life, would be appropriate, for each of the Plaintiffs, that is not all that I am required to consider at the first stage. The totality of the relationship of each Plaintiff and the deceased not just the relationship during the last years of the deceased's life, the age and capacities of the other beneficiaries, and the claim of each on the bounty of the deceased, are very relevant factors in determining the answer at the first stage. 189All the considerations to which I have referred, lead me to find that there was a failure, on the part of the deceased, to make adequate provision for the proper maintenance or advancement in life of each of Rhonda and Barbara. 190In family relationships, hurts are inflicted, or suffered, sometimes consciously, sometimes unconsciously: Walker v Walker, per Young J (as his Honour then was). In this case, the breakdown of the relationship was one that caused all involved considerable emotional pain and stress. The estrangement between Robyn and the deceased following the incident in 2000 can be described as a reasonably long one. The estrangement between Barbara and the deceased can also be described as a reasonably long one. During this period, each of them could have initiated contact. Neither of them did. Neither did the deceased. 191However, having regard to the whole of their history, I do not consider that either Rhonda's, or Barbara's, behaviour has disentitled her from any further provision for her maintenance and advancement out of the estate of the deceased. I do not consider, in either case, that her conduct should be regarded as having totally extinguished the obligation of the deceased. 192Nevertheless, the conduct of each of the Plaintiffs does have an effect on what amount she should receive. Having virtually had no contact with the deceased for the last decade of her life, in the case of Rhonda, and for the last 8 or 9 years, in the case of Barbara, "restrains the amplitude of provision" that should be made for each. 193Having found that Rhonda and Barbara is each an eligible person and that the provision made for her in the Will of the deceased is inadequate, I turn to the second stage and next consider the nature and quantum of any provision that should be made. 194I am of the view that in calculating the provision each Plaintiff should receive I must also bear in mind the position of Lyn as the chosen object of the testamentary bounty of the deceased. It is clear that she maintained a close relationship with the deceased throughout the deceased's life. 195In my view, having regard to all of the matters that I am required to consider, including amongst other things, the size and nature of the deceased's estate, the totality of the relationship between Rhonda and the deceased, and Barbara and the deceased, as well as the relationship between the deceased and Lyn, who has a legitimate claim upon the deceased's bounty, Rhonda should receive a lump sum of $90,000, in lieu of the provision made for her in the Will of the deceased and Barbara should receive a lump sum of $150,000, in lieu of the provision made for her. In each case, the amount will provide a capital sum for exigencies of life. It will also relieve some of her financial burdens and provide some additional resources. 196The burden of the provision will be borne by the residue of the estate. This will leave Lyn with a lump sum of slightly less than $300,000, or more than half of the net distributable estate. 197The orders I make are: (i) Having found that the Plaintiff, Rhonda Jean Malone and the Plaintiff, Patricia Barbara Kane, is each an eligible person, and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, order that the Plaintiff, Rhonda Jean Malone in lieu of the provision made for her, shall receive a lump sum of $90,000 out of the estate of the deceased and the Plaintiff, Patricia Barbara Kane, in lieu of the provision made for her, shall receive a lump sum of $150,000 out of the estate of the deceased. (ii) Order that the burden of the provision made for the Plaintiff, should be borne out of the residuary estate. (iii) Order that no interest is to be paid on each lump sum, if that lump sum is paid within 28 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment of the lump sum. (iv) Order that the costs of all parties shall be determined after further submissions, unless agreement is reached between them. (v) Order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the costs of the proceedings.

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: 10 September 2012

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (17 paragraphs)

Parties

Cases Cited (50)

Cited By (2)