McDonald v O'Connor - [2019] NSWSC 261 - NSWSC 2018 case summary — Zoe

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McDonald v O'Connor

[2019] NSWSC 261

Supreme Court of NSW|2018-12-12|Before: Hallen J, Kirby J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2018-12-12

Before

Hallen J, Kirby J

Source

Original judgment source is linked above.

Judgment (38 paragraphs)

[1]

eaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235 Diver v Neal [2009] NSWCA 54 Fiorentini v O'Neill [1998] NSWCA 79 Foley v Ellis [2008] NSWCA 288 Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 Fulton v Fulton [2014] NSWSC 619 Gardiner v Gardiner (Supreme Court (NSW), 28 May 1998, unrep) Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31 Goodsell v Wellington [2011] NSWSC 1232 Grey v Harrison [1997] 2 VR 359 Harkness v Harkness (No 2) [2012] NSWSC 35 Harris v Harris [2018] NSWCA 334 Hawkins v Prestage (1989) 1 WAR 37 Heyward v Fisher (Court of Appeal (NSW), Kirby J, 26 April 1985, unrep) Hildebrandt v Soncini [2007] NSWSC 1227 Hinderry v Hinderry [2016] NSWSC 780 Hughes v National Trustees Executors & Agency Company of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2 Hunter v Hunter (1987) 8 NSWLR 573 In re Green, deceased; Zukerman v Public Trustee [1951] NZLR 135 In re the Will of FB Gilbert (dec'd) (1946) 46 SR (NSW) 318 Kastrounis v Foundouradakis [2012] NSWSC 264 Kay v Archbold [2008] NSWSC 254 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 MacGregor v MacGregor [2003] WASC 169 Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146 Manuel v Lane [2013] NSWCA 61 Marks v Marks [2003] WASCA 297 Maynard v Maynard [2018] NSWSC 1961 McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Meres v Meres [2017] NSWSC 285 Morris v Smoel [2014] VSC 32 Nock v Austin (1918) 25 CLR 519; [1918] HCA 73 Oxley v Oxley [2018] NSWSC 91 Page v Page [2016] NSWSC 1218 Palagiano v Mankarios [2011] NSWSC 61 Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 Re Coventry (Deceased) [1979] 3 All ER 815 Rogers v Rogers [2018] NSWSC 1982 Salmon v Osmond [2015] NSWCA 42 Sammut v Kleemann [2012] NSWSC 1030 Sgro v Thompson [2017] NSWCA 326 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Slack-Smith v Slack-Smith [2010] NSWSC 625 Smith v Johnson [2015] NSWCA 297 Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297 Smith v Smith [2018] SASC 93 Steinmetz v Shannon [2018] NSWSC 1090 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Sung v Malaxos [2015] NSWSC 186 Szypica v O'Beirne [2013] NSWSC 297 Taylor v Farrugia [2009] NSWSC 801 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Toscano v Toscano [2017] NSWSC 419 Underwood v Gaudron [2015] NSWCA 269 Vidler v Ivimey [2013] NSWSC 1605 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) White v Barron (1980) 144 CLR 431; [1980] HCA 14 Worsley v Solomon [2008] NSWSC 444 Yee v Yee [2017] NSWCA 305 Texts Cited: Rosalind Atherton in "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5 Aust J Leg Hist 5, 10 Category: Principal judgment Parties: Margaret May McDonald (Plaintiff) Fiona O'Connor (Defendant) Representation: Counsel: Mr A Lakeman (Plaintiff) Mr J E F Brown (Defendant)

[3]

Introduction

HIS HONOUR: These reasons concern the estate of Mavis Valerie McDonald ("the deceased"), who died on 1 October 2016, aged 84 years. She was born in April 1932.
The deceased was survived by one child of her first marriage, Margaret May McDonald, who is the Plaintiff, and by two grandchildren, being Fiona Ann O'Connor, who is the Plaintiff's daughter and the only Defendant, and Matthew Kevin George Burton, who is the Plaintiff's son but by another marriage. The case is a rather tragic one as a parent, on one side, and her children, on the other, are opposed in relation to the estate of the mother of one, and the grandmother, of the others.
Like many family provision cases that are now being heard involving mature adult children seeking provision, or additional provision, out of the estate of a parent, the major issues principally revolve around the character and conduct of the applicant, her, or his, relationship with the deceased, the deceased's views of the relationship, and the relationship of the deceased with one, or more, of the beneficiaries named in the last Will of the deceased
Whilst an applicant's feelings of having been excluded as a beneficiary will not be a relevant consideration in the determination of a family provision claim, often, at least partially, it explains a driving motive in the cases that are not resolved other than by a contested hearing. For example, in this case, the Plaintiff stated that "I just wanted everything to be fair": Tcpt, 10 December 2018, p 86(1).
There is an additional layer in these proceedings that involves the acrimonious relationship between the Plaintiff and her two children, one of whom is the executrix to whom Probate has been granted, and both of whom are the principal beneficiaries named in the deceased's last Will. There was a palpable sense of resentment of the Plaintiff's treatment of each of them as children during the case.
Without intending to convey undue familiarity or disrespect, and for convenience and clarity, I shall refer, hereafter, to the parties, and family members, after introduction, by the name used by the family members.

[4]

The Claim

Margaret filed a Summons on 31 August 2017, in which she sought a family provision order out of the estate and notional estate of the deceased, pursuant to Chapter 3 of the Succession Act 2006 (NSW) ("the Act"), and an order for her costs. A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009.
A family provision order may be made in relation to property that is not part of the deceased's estate, but is designated as "notional estate" of the deceased by an order under Part 3.3 of the Act: s 63(5). "Notional estate" of a deceased person is defined in s 3 of the Act to mean property designated by a notional estate order as notional estate of the deceased person. "Notional estate order" means an order made by the Court under Chapter 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person's rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.
Margaret sought an order that some of the proceeds of the sale of the deceased's home, at Doyle Road, Padstow ("the Padstow property"), which was sold in December 2014, be designated as notional estate of the deceased. Fiona disputed that any of the proceeds of sale could be designated as such.
Section 57(1) of the Act provides that "eligible persons" may apply to the Court for a family provision order. It is not in dispute that, as a child of the deceased, Margaret is an eligible person within s 57(1)(c) of the Act. The language of the sub-section is expressive of the person's status, regardless of age, as well as her, or his, relationship to the deceased. It is not necessary that the child be a dependant, at the time of the deceased's death, in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an "eligible person").
However, under s 60(2) of the Act, relevantly for the purposes of the present case, the Court may consider, on the question whether to make a family provision order and the nature of any such order, "…(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". This matter will not be relevant to whether the applicant is an eligible person in the case of a child of the deceased.
It was not in dispute that Margaret commenced the proceedings within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act, and that there was no scope for the operation of the intestacy rules, with the result that it is only necessary, hereafter, to refer to the Will of the deceased: Tcpt, 10 December 2018, p 1(41) - p 2(1).
The matter was listed for two days but was not finished within that time. It was concluded almost at the end of the third day at which time I reserved my decision. Throughout the hearing, Mr A Lakeman, of counsel, appeared for Margaret, and Mr J E F Brown, of counsel, appeared for Fiona.

[5]

Background Facts

There is a conflict of evidence, principally in the affidavits, regarding the relationship of Margaret and the deceased, as well as Margaret and her children, particularly in their younger years. It is convenient to next provide a statement of some of the background, and the other formal, facts, since these provide the context in which the issues in this case arise. To the extent that any of these facts are in dispute, the facts stated should be regarded as the findings of the Court.
The deceased was born in April 1932. At the age of 20, she married Kevin McDonald, who predeceased her, aged 79 years. He died in November 2011. Margaret is the only child of their marriage. She was born in November 1953.
Margaret has been married four times. She had one child, Fiona, from her first marriage to Paul Quimby. They were married in 1972 and divorced in March 1976. In October 1976, Margaret married Ian Paul Keith Gimblet. She had one child, Matthew, from this marriage. He was born in April 1977. Margaret married her third husband, William John Brien, in August 1981. They were divorced in April 1986. She married her fourth husband, Gary Burton, in February 1988 and they were divorced in June 1998. There were no children from her third, or fourth, marriages. Matthew has taken the last name of Margaret's fourth husband.
In her first affidavit sworn 18 August 2017, Margaret referred to her current relationship with Steven Leonard Horne, stating that they had been "together 12 years, 5 years engaged". They do not live together, although they spend the weekend together if Mr Horne is not working, and sometimes, one other night per week. They do not share their finances, although Mr Horne agreed that he would assist Margaret financially "if she was struggling": Tcpt, 11 December 2018, p 139(23-24). There are no children of this relationship.
In her oral evidence, when asked whether Mr Horne was her "partner, boyfriend, or special friend" Margaret described him as "he's everything. He's all wrapped in one. He's my partner, he's my boyfriend and - and he's - you know, he's my rock": Tcpt, 10 December 2018, p 87(6-8).
Mr Horne said, in his oral evidence, that "we are currently engaged and yes, we are boyfriend and girlfriend, and we have been the - seeing - we have been with each other for over a period of 13 years": Tcpt, 11 December 2018, p 139(30). He also said that they had discussed marriage and that they may marry next year: Tcpt, 11 December 2018, p 140(37) - p 141(25). The description by Margaret's counsel, in written submissions served before the hearing, of Mr Horne as "a male friend or acquaintance" is a clearly inaccurate description of his true relationship with Margaret.
Fiona was born in June 1973 and is now 45 years old. She is married to Peter Bede O'Connor (referred to as "Bede" during the proceedings) and they have one child, Emmett James O'Connor, who is 7 years old. Margaret commenced other defended proceedings, to obtain contact with Emmett, which resulted in her incurring significant legal costs. (The precise details of those proceedings were not the subject of evidence in the present case.)
Matthew was born in April 1977 and is now 41 years old. He is married to Angela (who is aged 39). There are no children of their marriage.
For most of her married life, the deceased lived in the Padstow property with her husband, and then with Fiona, who commenced living with them, at about 6 years of age. The deceased continued to live there after Fiona left in about 1999, at the age of 26 years, and following the death of Kevin in 2011.
The Padstow property was sold, at auction, on 1 November 2014, with the subsequent Transfer to the purchasers, apparently, registered on 24 December 2014. The copy of the Transfer in evidence was undated and was signed by Fiona, as Attorney for the deceased, under a registered Power of Attorney. The consideration shown on the Transfer was $850,000, (although after adjustments, the amount of $851,742 was disclosed as payable to the deceased, on the Tax Invoice dated 16 November 2017.
There is no suggestion that the Padstow property was sold for other than full valuable consideration.
Shortly before completion of the sale of the Padstow property, the deceased became a resident of the RSL Veteran's Retirement Village, formally called the RSL LifeCare - Narrabeen, an aged care facility, at Narrabeen, a beachside suburb in northern Sydney. I shall return to how the proceeds of sale were disbursed, later in these reasons.
The deceased left a duly executed Will made on 30 June 2016. It comprises 10 pages. On 23 October 2017, this Court granted Probate of the deceased's Will to Fiona.
Relevantly, by Clause 6 of her Will, the deceased made the following bequests: 1. $25,000 to her husband's nephew, "Lesley" [sic] McDonald and his wife, Heather McDonald, in equal shares, absolutely; 2. Her coin collection to Fiona; 3. Her husband's inscribed gold band wedding ring and his silver watch with silver band, to Emmett, when he attains the age of 21 years; 4. $10,000 to Emmett, when he attains the age of 25 years; 5. To one, or more, of the care staff in the aged care facility or nursing home in which she resided at the date of her death, an amount not exceeding $5,000, the distribution of this bequest between such staff to be at the discretion of Fiona, as trustee; and 6. $200,000 to Matthew, if he survived her by 30 days.
By Clause 7(a) of the deceased's Will, the rest and residue of the deceased's estate was left to Fiona.
The pecuniary legacies total $240,000. At the commencement of the hearing, in answers to questions from the Bench, Margaret's counsel submitted that Margaret should receive the whole of the deceased's estate, as well as all of the property sought to be designated as notional estate, with the consequence that none of the pecuniary legacies would be distributed in accordance with the terms of the deceased's Will: Tcpt, 10 December 2018, p 3(3-35).
On the third day of the hearing, counsel for Margaret stated that his instructions had changed, and "that the legacy payable to Emmett is not challenged": Tcpt, 12 December 2018, p 16(25-26). However, counsel maintained that the other pecuniary legacies, and the residue of the estate, should not be paid as provided for in the deceased's Will, and that they should pass to Margaret as the family provision order that she was seeking.
The above oral submission was made in the face of, and without any reference to, Clause 10 of the deceased's Will, which stated that the deceased did not give, devise, or bequeath, any of her estate to Margaret "for reasons outlined in the Statement of Reasons executed by me, this Statement of Reasons being stored with my will".
In her Will, the deceased added: "In summary, my late husband and I have provided much financial assistance to my daughter … including cash and highly subsidized property rent in properties I owned jointly with my late husband. Margaret … has squandered the money that my late husband and I have given to her. She vacated a number of properties owned by my late husband and me even though she has had ample opportunity to remain as tenant in them with a heavily subsidized rent. This vacation of properties by Margaret resulted in my grandson, Matthew, not having a stable home as his mother just left any property in which she lived when it suited her without appearing to consider the deleterious effects such moves would have on Matthew…."
Later in these reasons, I shall return to the more detailed Statement of Reasons dated 7 September 2016, and which comprises 12 closely typed paragraphs; assess the circumstances in which it was created; and discuss Margaret's response to the assertions in that document. I shall also refer to an earlier affidavit, sworn by the deceased, in 2005, going to the reasons that she made a Will, in the terms that she did, at that time.
Because of the nature of the claim by Margaret, and what she describes as her "needs", one of which is a car (examples of which would cost between about $40,000 and $63,000: Ex. PC1), I should mention, now, that she has never held a driver licence, or owned a car, in New South Wales: Ex. PA/9-10. It was not suggested that she has done so otherwise.
In September 2014, the deceased had an aged care assessment. She was described as "cognitively alert and oriented. Has marked hearing loss which makes it difficult for client to participate in conversations…needs 24 hour care. Needs help with all aspects of ADLs and IADLs". A recommendation was made that she should receive approval for high level respite and permanent care: Ex. PA/29.
Shortly thereafter, the deceased moved into the RSL Veteran's Retirement Village, where she remained living until her death, less than 2 years later.

[6]

Eligible Persons

In Margaret's notice of eligible persons, filed on 31 August 2017, she identified herself as the only eligible person. However, in my view, the eligible persons are Margaret, Fiona, and Matthew. The latter are eligible persons within s 57(1)(e) of the Act, each being person who was, at any particular time, wholly or partly dependent on the deceased, and who is a grandchild of the deceased.
Only Margaret has made a claim for a family provision order. However, Fiona and Matthew is each a witness who has given evidence of the bases of her, and his, claim, respectively, on the bounty of the deceased. Only Matthew has raised his financial circumstances as a competing financial beneficiary. Each was cross-examined.
In an affidavit sworn on 24 October 2017, Mr J Friedman, solicitor, stated that he "had caused to be served by post", a notice of claim on each of the beneficiaries named in the deceased's Will, namely, Leslie McDonald, (incorrectly spelled "Lesley"), Heather McDonald, Emmett, Matthew, and RSL LifeCare - Narrabeen. The affidavit does not demonstrate that the notice was received by the intended recipient.
I have suggested, elsewhere, that if service of a notice required under the Act is given by post, or given by electronic communication, it may avoid any concerns regarding proper service and receipt, if there were an acknowledgement of service requested from the recipient, and there was evidence of the acknowledgement having been given: Rogers v Rogers [2018] NSWSC 1982, at [50]. Evidence of an acknowledgement will demonstrate actual receipt of the notice.
In the circumstances of this case, I am satisfied that notice of the application, and of the Court's power to disregard her, or his, interests, has been served on all of the beneficiaries.
Each of the beneficiaries is entitled to elect to remain silent about her, or his, financial resources and needs, respectively, and simply look to the Court to not disregard the deceased's freedom of testamentary disposition and her preferable disposition to her, or him, respectively, as a beneficiary regardless of her, or his, financial resources or needs. The Act specifically provides that her, or his, interests, as a beneficiary, cannot be disregarded, even though she, or he, has not made a claim: s 61. Each is entitled to rely upon the terms of the Will and her, or his, competing claim as a chosen object of the deceased's testamentary bounty.
In Sammut v Kleemann [2012] NSWSC 1030, at [137]-[140], I set out the principles in a case where a beneficiary does not disclose her, or his, financial resources. The Court of Appeal, in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285, at [94], per Meagher JA (Basten and Campbell JJA agreeing), stated the principle, far more succinctly: "The fact that an executor has not led evidence as to the financial position of any beneficiary or beneficiaries will often provide a basis for the court to infer that each has sufficient income and resources to meet his or her needs: see, for example, Anderson v Teboneras [1990] VR 527 at 535-536; Mason v Permanent Trustee Co Ltd (unreported, Macready M, 5 December 1996 at 6). The justification for that inference is an assumption that the executor has acted in accordance with his or her duty to lead such evidence, if relevant."
Also see Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107, at [23].
Even if the Court may infer that each of the beneficiaries, other than Matthew, has no financial need for provision from the estate of the deceased, and, that, on a comparative basis, each is better off than Margaret, the beneficiary's silence does not mean that her, or his, competing claim should not be evaluated. As will be read, what is "proper" requires an evaluative judgment that has regard to all relevant circumstances, not merely the financial circumstances of the parties and of the beneficiaries.
As I stated in Meres v Meres [2017] NSWSC 285, at [85], the consequences of not disclosing the beneficiary's financial resources and needs, simply means that the Court, in considering those resources and needs, may draw the inference to which I have referred above. Thus, in reaching the conclusion in regard to the family provision order sought by Margaret, the Court will not disregard the competing interest of any beneficiary as a claimant upon the bounty of the deceased and a chosen object of the deceased's bounty. In this way, the Court will give due regard to "what the testator regarded as superior claims or preferable dispositions" as demonstrated by her, or his, Will: Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, per Dixon CJ, at 19.
Finally, for completeness, I should mention that the evidence, that I accept, discloses that the deceased had a relationship with Emmett, her great-grandson. She expressed the view to Fiona that she hoped he would appreciate the emotional value of the gifts made to him.
The evidence, that I also accept, demonstrates that Leslie McDonald was a nephew of Kevin, and that he had remained in contact with the deceased for all of his life. He described the deceased and Kevin as like his own parents. Similarly, Heather McDonald had a close relationship with the deceased which was maintained until the deceased's death. Mrs McDonald would speak to the deceased about twice a week and would often take her for outings, such as for coffee, lunch, or to go shopping.
Both Mr and Mrs McDonald were cross-examined. I have no hesitation in accepting each as a witness of truth. However, it is noted that the evidence of each, about Margaret, for the most part, is in terms of conversations had with the deceased, and is consistent with the complaints made by the deceased about Margaret's conduct, to which I shall refer. It was not suggested to either that the conversations repeated with the deceased did not occur.

[7]

The nature and value of the deceased's actual estate and property that is sought to be designated as notional estate

At the commencement of the hearing, nearly one hour of Court time was spent, unsuccessfully, trying to determine the nature and value of the deceased's estate, and the property sought to be designated as notional estate, at the date of death and at the date of the hearing.
It appeared, from discussions between the Bench and counsel, that no detailed attention had been given, by the parties, or their legal representatives, to the calculations, which would enable the Court to determine, with some degree of precision, the value of the property out of which an order for provision might be made.
At the end of the case, because of the changes in figures provided by the parties' legal representatives, and the differing claims, particularly made on behalf of Margaret, as to the source from which some of the liabilities should be met, and the differing amounts the subject of the claims, the Court can be far from confident about the nature and value of the estate. However, as will be read, on any view, the deceased's estate is a relatively modest one.
The actual estate, as revealed in the Inventory of Property attached to the Probate document, was cash, comprising some of the proceeds of the Residential Bond that had been repaid to the estate ($463,338), and cash in a Credit Union Account ($264). Thus, the total gross value of the deceased's actual estate, as disclosed in that document, was $463,602. (In stating these amounts, I have omitted the reference to cents and will continue to do so. This will explain any seeming mathematical errors.)
In her first affidavit, sworn 24 October 2017, Fiona stated, at [18], that "[D]educting funeral and testamentary expenses, paid liabilities and probate costs, but omitting the costs of these proceedings, the present value of the likely distributable estate will be $456,331". She added, at [19], that "[T]here has not been any amount paid out of the deceased's estate (or otherwise) for, or on account of, my costs of defending these proceedings to date".
Fiona also described, at [20], that "the sale of the deceased's principal place of residence on 20 December 2014 for an amount of $850,000, that is, or may be, the subject of a prescribed transaction". (Clearly, not all of the proceeds of sale could be described this way, as a part thereof, albeit as a result of the repayment of the Residential Bond, made up the bulk of the actual estate to which I have referred.)
In an affidavit sworn by Fiona on 16 November 2017, she described, at [5], the assets owned solely by the deceased at the date of her death, as the proceeds of the Residential Bond ($550,387) and two amounts in the bank ($264 and $53). She then described, at [6], the "liabilities of the deceased at the time of death and funeral costs" as "Repayment of Invoices paid by Bede O'Connor ($70,843), Invoices paid by Bede O'Connor but not yet reimbursed ($102,075), Funeral and funeral catering ($14,334 and $973)".
The nature and quantum of the expenses said to have been paid by Bede personally, for which he sought reimbursement, were detailed in two spread sheets annexed to Fiona's affidavit. (In the first (Annexure A), the funeral services fee stated above is included, as is an amount of $1,032, for Fiona's solicitors' fees and disbursements.)
After providing additional information as to property distributed during the deceased's lifetime (to which reference will be made shortly), Fiona stated, at [13], that the balance remaining in the solicitor's trust account and controlled money, on 16 November 2017, after payment of invoices from estate solicitors, was $455,359. She then stated, at [14], that the value of the residuary estate, allowing for unbilled litigation and probate fees acting for the estate (then $28,508), repayment of the debt to Bede O'Connor "for expenses incurred for the care and expenses of the deceased" ($102,075) and the jewellery valuation ($650) was $84,124.
In an affidavit sworn 8 November 2018, Fiona stated, at [2], that, at that date, "the estate has a gross value of $390,896". She identified costs and interest thereon, made in associated proceedings brought by Matthew (to which I shall refer) ($21,250), for "ongoing legal costs of the proceedings" and "the issue of reimbursement to Bede O'Connor of $102,075" as liabilities. She added that Margaret asserted that "there is also $93,805 in notional estate".
Fiona stated, at [12] of her affidavit of 16 November 2017, that the jewellery (said to have a value of $1,090) had been given to her by the deceased in about June 2014, and that the coin collection (said to have a value of approximately $3,200), the wedding ring and the silver watch (said to have a value of $245), were given to her by the deceased in August 2016. Mercifully, the parties agreed that these personal items were not to bear the burden of the provision, if any, made for Margaret. It follows that it is not necessary to discuss whether these items (or their value) would form part of the estate, or notional estate, of the deceased.
During discussions between Bench and counsel, at the commencement of the hearing, it seemed that there was no dispute that, of the amount said to be payable to Bede, $32,083 was required to be repaid out of the estate: Tcpt, 10 December 2018, p 7(9-15). Counsel for Margaret submitted that the balance ($68,991) had been paid for the personal expenditure of Fiona and/or her family, and that the amount in dispute was calculated by reference to child care expenses for Emmett ($24,223), entertainment ($17,600), and car running costs ($27,168).
Following cross-examination of Fiona, and of Bede, the amount agreed to be repaid to Bede, and the source from which it was to be paid was not as clear and I shall return to that topic.
In addition, an amount of $650, being for a valuation of the jewellery forming part of the deceased's estate, was to be reimbursed to Fiona, as it had been paid, personally, by her. There was no dispute that this amount was to be repaid out of the estate.
Fiona stated that she did not intend to apply for commission.
I have referred to Matthew having commenced his own proceedings for a family provision order (2017/291098). On 23 February 2018, by agreement of the parties in those proceedings, orders were made dismissing his proceedings. In addition, an amount of $20,000, on account of Matthew's costs and disbursements, and Fiona's costs, calculated on the indemnity basis, of those proceedings, were ordered to be paid out of the estate of the deceased.
In accordance with the practice in the Family Provision List, Margaret, as a Plaintiff in proceedings involving the same estate, was expressly informed of the proposed orders that were sought to be made by agreement. By counsel, she appeared at the time the orders were made, and it was stated that there was no opposition to the making of the orders, two of which related to the costs of Matthew's proceedings being paid out of the deceased's estate.
However, at the commencement of the hearing, in discussions concerning the liabilities that would need to be paid out of the estate, counsel for Margaret submitted that no allowance should be made for Matthew's costs, as ordered in his proceedings, as those costs had been incurred "unnecessarily": Tcpt, 10 December 2018, p 7(19-41).
I am satisfied that Matthew's costs (and the interest payable thereon), as well as Fiona's costs, of those proceedings, should be paid out of the deceased's estate as those proceedings were resolved on the basis that his costs should be paid out of the estate. Margaret, by her counsel, could have opposed the making of costs orders out of the estate, but did not do so. No doubt, it was considered that to do so, might encourage Matthew to persist with his claim and that this would result in additional costs being incurred.
In my view, the orders made by agreement of the parties in Matthew's case, without opposition by Margaret, at the time the orders were made, were appropriate in all of the circumstances.
Following the time spent doing calculations, and after the long adjournment on the first day of the hearing, a jointly prepared document, marked as Ex. PB, was tendered, which revealed that the gross value of the deceased's estate, at the date of death, was $553,898.
Exhibit PB also revealed that after the payment of liabilities ($70,843, $32,083 (which should have been $33,084), $15,307, $4,145 and $650, to all of which reference has already been made), as well as the costs ordered to be paid in Matthew's proceedings and interest (in total $21,250), the amount of the distributable estate, at the date of the hearing, was estimated to be $409,620: Tcpt, 10 December 2018, p 9(16-26), p 12 (30-41). (The value of the distributable estate should have been $408,620 as the amount of $32,083 should be $33,084.)
During the course of his oral submissions, despite having agreed to what was disclosed in Ex. PB (Tcpt, 10 December 2018, p 43), counsel for Margaret submitted that, in fact, the amount of $70,843, which was the amount said to have been repayable to Bede, should be paid out of the proceeds of sale that were held by Fiona and Bede, rather than out of the actual estate, of the deceased: Tcpt, 12 December 2018, p 258(18-21). To accept this submission, would, of course, alter the calculation of the value of the actual estate and increase it by that amount, to $479,463 (before the payment of any costs of the proceedings).
The second component out of which Margaret sought provision is property that she submitted should be designated as notional estate of the deceased. The amount sought to be designated as notional estate was said to be $282,030 (Ex. PB). It was calculated as the net proceeds of sale of the Padstow property ($832,060), less the amount paid, by way of the Residential Bond, for the accommodation into which the deceased moved ($550,030). (The costs and disbursements of sale ($17,939) had been deducted from the gross proceeds of sale of the Padstow property ($850,000).
Fiona stated, in her affidavit of 16 November 2017, at [8], in relation to the proceeds of sale which were placed into her and Bede's joint account, that: "When the deceased's property at … Doyle Road, Padstow NSW was sold in 2014, she said to me that she wanted me to use the money to assist her while she lived at Peter Cosgrove House and any money that was left over when she died would be mine apart from any gift she made in her will which she asked me to give to the beneficiaries in her will. I said to the deceased that was very kind of her and that of course I would always help her financially. The deceased never said to me that she was giving me her money in order to avoid having to give any of it to the plaintiff when she died. The deceased never said to me that she believed the plaintiff would try to get money from the deceased's money when she died. In June 2016, the deceased said to me that she wanted to create a new will in order to ensure that my brother, my son and I would each receive part of her estate in thanks for the joy we provided her and for the care we gave to her, and she also said she wanted to leave gifts in her will for those who really care for her and helped her. At no time did the deceased actually discuss with me how she planned to distribute the assets in her will."
Fiona disputed that the sum asserted by Margaret could be designated as notional estate of the deceased and submitted, in any event, that this is a case in which the Court's discretion would be exercised so that a notional estate order would not be made.
It was not disputed, however, that the amount placed into the joint bank account, unless reduced by the deduction of some of the liabilities, should be regarded as having been received by Fiona (and Bede) from the deceased: Tcpt, 10 December 2018, p 12(4-5).
It will be necessary to determine whether this amount, or any part of it, should be designated as notional estate of the deceased.
Counsel for Margaret relied upon the statement said to have been made by the deceased to Fiona that "she wanted me to use the money to assist her while she lived at Peter Cosgrove House". He submitted that because the $70,843 had been incurred in respect of nursing home fees (Tcpt, 12 December 2018, p 254(15)), the amount should be deducted from the balance of the proceeds of sale of the Padstow property that had been placed into the joint account, rather than it being deducted from the money held by Fiona as actual estate of the deceased.
For the same reason, counsel for Margaret submitted that the other amount of $68,991 (being $102,075 less $33,084) should also be paid out of the balance of the proceeds of sale that had been placed into the joint account and that it should not be regarded as a liability of the estate.
In relation to the three disputed amounts referred to earlier (in total being $68,991), Fiona gave evidence in her affidavit of 16 November 2017, as follows: "6. … Whilst the deceased was alive, she told Bede O'Connor and me that she would reimburse us for any expenses paid to maintain her house, expenses associated with the death of her late husband, council rates, expenses involved in the preparation of her house in Padstow for sale, child care expenses for Emmett O'Connor so that I would have more time to spend with her during the day, all food and entertainment expenses whenever we would go out together or with my family, telephone expenses, Christmas party expenses for my family when the deceased attended, general expenses for the deceased's day to day living including new clothing, and birthday gifts for attendant staff who assisted in taking care of the deceased. In addition to these, the deceased told me that she wanted to pay for my car running costs so that I could visit her regularly."
If the amounts ($70,843 and $68,991) were deducted from the amount placed in the joint bank account ($282,030), the balance sought to be designated as notional estate would be reduced to $142,196, and that would be the amount which Fiona would be entitled to retain.
(A comparison of the above calculations with what is included in the written submissions provided to the Court prior to the hearing, will demonstrate that the amounts were different.)

[8]

Determination of whether there is any notional estate

The notional estate provisions of the Act are dealt with in Part 3.3 of the Act. As earlier stated, a notional estate order may be made where, as a result of certain property transactions, property is not included in the estate of a deceased person. Relevantly, the Court is empowered, in limited circumstances, to make an order designating property not included in the estate, as "notional estate" for the purposes of making a family provision order under the Act: s 80(1).
No written submissions were made, by either counsel, on the relevant provisions of the Act, dealing with notional estate, or the basis upon which property should, or should not, be designated as such.
Because I have come to the view that Margaret has not established what is required to enable a notional estate order to be made, I shall deal with this issue next, and will do so relatively briefly, so that I can return to the issue of the value of the estate out of which any order for provision may be made.
Counsel for Margaret did not identify the relevant property transaction upon which he based the claim for a notional estate order. It seems to have been the sale of the Padstow property in late 2014.
Section 75(1) of the Act provides that: "(1) A person enters into a relevant property transaction if the person does, directly or indirectly, or does not do, any act that (immediately or at some later time) results in property being: (a) held by another person (whether or not as trustee), or (b) subject to a trust, and full valuable consideration is not given to the person for doing or not doing the act."
Section 76 of the Act provides examples of relevant property transactions. One example is "…(f) if a person enters into a contract disposing of property out of the person's estate, whether or not the disposition is to take effect before, on, or after, the person's death or under the person's will or otherwise".
In this case, the Padstow property was sold for full valuable consideration so that would mean that the sub-section could not apply to the sale of the Padstow property.
Section 76(3) provides that nothing in the section prevents any other act or omission from constituting the basis of a relevant property transaction for the purposes of s 75.
The relevant property transaction in the present case is "when the property concerned becomes held by another person": s 75(1)(a) and s 77(1) of the Act. The property that became held by another person, or persons, was the balance of the net proceeds of sale of the Padstow property, after payment of the residential bond, which came to be held by Fiona and Bede.
It was not suggested that either, or both, of Fiona or Bede, gave full, or any, valuable consideration for the receipt of the balance of the net proceeds of sale to them. Furthermore, no application was made to join Bede as a party to the proceedings, even though he was a joint holder of the account into which the proceeds were placed: Yee v Yee [2017] NSWCA 305, at [195]-[198]; [205]-[206]. Nothing turns on this, in the present case, because of the conclusion to which I have come.
There was no dispute that if this were the relevant property transaction, it had occurred more than one year before the deceased died, but within three years of her death.
In reaching my conclusion on this issue, it is not necessary to do much more than refer to s 80 of the Act, which section limits the range of transactions that may qualify as "relevant property transactions".
The section, relevantly, provides: "(1) The Court may, on application by an applicant for a family provision order or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person if the Court is satisfied that the deceased person entered into a relevant property transaction before his or her death and that the transaction is a transaction to which this section applies. (2) This section applies to the following relevant property transactions: (a) a transaction that took effect within 3 years before the date of the death of the deceased person and was entered into with the intention, wholly or partly, of denying or limiting provision being made out of the estate of the deceased person for the maintenance, education or advancement in life of any person who is entitled to apply for a family provision order…"
The other sub-sections of s 80(2) are not relevant, and were not referred to.
It is to be noted that the power to make a notional estate order is discretionary. Even so, before the Court is able to exercise that discretion, it is necessary to establish that the relevant property transaction is one to which the section applies.
In relation to sub-section (a), in Kastrounis v Foundouradakis [2012] NSWSC 264, at [108]-[112], I wrote: "Section 80(2)(a) requires the relevant property transaction to be entered into with the intention, wholly or partly, of denying or limiting provision being made out of the estate of the deceased for the maintenance, education or advancement in life of any person who is entitled to apply for a family provision order. Interestingly, the section does not identify whose intention it is, but it must be the deceased's intention that is to be proved: Hildebrandt v Soncini [2007] NSWSC 1227 at [21] - [28]. In Hinde & Hinde and Anor [2008] FamCA 24, Carmody J, in another context, said: "The ordinary natural meaning of the word "intends" is to mean, to have in mind. Relevant definitions in the Shorter Oxford English Dictionary show that what is involved is the directing of the mind, having a purposeful design. Intention is not the same as motive or desire. A person may do something fully intending to do it without desiring it at all. Euthanasia is an example. A motive is having a reason to do or not to do something. It is a subjective state of mind which cannot be conclusively established as a fact except perhaps by truthful admission." However, more than mere contemplation by the deceased is necessary. In Cunliffe v Goodman [1950] 2 KB 237, a decision of the English Court of Appeal, Asquith L.J., again, in another context, considered, in some detail, the meaning of the term "intention". His Lordship said at 253: "An 'intention', to my mind, connotes a state of affairs which the party 'intending' - I will call him X. - does more than merely contemplate. It connotes a state of affairs which, on the contrary, he decides, so far as in him lies, to bring about, and which, in point of possibility, he has a reasonable prospect of being able to bring about, by his own act of volition. X. cannot, with any due regard to the English language, be said to 'intend' that it shall be a fine day to-morrow. At most he can hope or desire or pray that it will. Nor, short of this, can X. be said to 'intend' a particular result if its occurrence, though it may be not wholly uninfluenced by X's will, is dependent on so many other influences, accidents, and cross currents of circumstance that not merely is it likely not to be achieved at all, but, if it is achieved, X's volition will have been no more than a minor agency collaborating with, or not thwarted by, the factors which predominately determine its occurrence." Whether the deceased has the necessary intention is a question of fact to be decided upon consideration of all the circumstances. One might expect there to be some language, written or oral, used, or adopted, by the deceased, from which the court is able to find, as a fact, the necessary intention prior to, or at, the time of, the relevant property transaction. It is the intention with which the transaction was entered into, rather than the effect of that transaction, which is important. If that intention cannot be established, that the effect of the transaction is to wholly or partly, deny, or limit, provision, does not matter. It is not enough that the relevant property transaction has that particular result. In other words, what the subsection requires is not cause and effect, but intention and effect: Wilson v Wright (NSWSC, 25 February 1992, unreported), per Windeyer J."
I continue to hold these views as to the meaning of the subsection, although I have read, and borne in mind, the comprehensive analysis provided by Robb J in Toscano v Toscano [2017] NSWSC 419.
Whether the relevant intention is established is a question of fact. Importantly, for the avoidance of doubt, and to make more clear what I had previously written, I repeat what Robb J wrote, at [229], that an applicant does not have to do "anything more than to establish the existence of the intention to the ordinary civil standard of proof that requires that the court be satisfied on the balance of probabilities that the deceased had the intention" and that my reference to "clear and convincing proof" was no more than a "reference to the process of judicial reasoning, and the level of satisfaction required, before a court should find a particular fact or issue proved".
I should also add that there is no special definition of "intention" in the Act. It should be given its ordinary meaning. It is directed to an objective, a desire, or a motive, being brought about, namely, wholly or partly denying, or limiting, provision being made out of the estate of the deceased for the maintenance, education or advancement in life of any person who is entitled to apply for a family provision order.
In Hildebrandt v Soncini [2007] NSWSC 1227, at [25]-[26], Macready AsJ had noted that merely intending to benefit one eligible person does not amount to an intention to deny, or limit, provision being made for another. It is the intention with which the transaction is entered into, that is essential for the sub-section to operate.
As I have also written, it is difficult to construe the section as requiring the Court to consider the intention of the other party, or parties, to the transaction, who obtains, or obtain, the property as a result of the transaction, but who does, or do, not, own the property prior to the transaction having effect. It must be remembered in this regard, that s 80(1) requires the Court to be satisfied that the deceased entered into a relevant property transaction before her, or his, death and that it is a transaction to which the section applies.
As I have previously stated, it is always difficult to assess the intention of a person who has left no specific directions, or indications of that intention. The Court, in those circumstances, looks at such facts and circumstances as are available, in order to determine what was more likely to have been intended by the deceased. Regard may be had to all of the circumstances (whether before or after the time of the transaction) in determining whether, at the time of the transaction, the Court is satisfied that the deceased had the relevant intention.
It is for the party relying upon the section to establish that the deceased, by some act or words, demonstrated that it was her, or his, then intention to deny, or limit, the provision that might be ordered in a claim brought by an eligible person. This will involve an assessment of the foresight of the consequences of the act. What is involved is that the deceased directed her mind to the purpose or design referred to.
In Courtney v Powell [2012] NSWSC 460, Ball J wrote, at [68]: "Where property is transferred, an inevitable effect of the transfer is that, absent a notional estate order, the property will not be available to meet a claim for a family provision order. But effect, even inevitable effect, is different from intention. Intention requires that the relevant result (denying or limiting provision being made out of the deceased's estate) is one that is sought to be secured by the transaction in question, although again that intention may be inferred from the consequence."
Again, I respectfully adopt what Robb wrote in Toscano v Toscano, at [234], that "while the intention to prevent the property transferred being available to meet a claim for a family provision order does not follow from the transfer having that effect, the consequence may be one factor that may assist in the court in drawing the inference that the intention existed".
A person is ordinarily understood to intend a result by her, or his, action if she, or he, means to produce that result. Thus, evidence that the deceased understood that a particular result was an inevitable consequence may assist in proving the relevant intention.
In the present case, the deceased's intention in selling the Padstow property, and directing how the proceeds of sale should be distributed, was clear from the conversation about which Fiona gave evidence. I accept her evidence, in this regard, as truthful. She was not challenged on the terms of the conversation to which I have already referred. From the conversation, the deceased's intention was that the proceeds of sale were to be used to pay for her accommodation in the aged care facility; to assist her whilst she lived in that accommodation; and that, if any part of the proceeds of sale remained at the date of her death, Fiona was to retain it as her own.
No part of the relevant conversation with the deceased reflected an intention to deny, or limit, provision being made in the manner described by s 80(2)(a). Indeed, Margaret was not mentioned in the conversation at all. Nor was there evidence that the deceased understood that the particular result was an inevitable consequence of what she was doing. Importantly, the deceased did not ever say that she was giving Fiona the balance of the proceeds of sale to avoid having to give any to Margaret when she died. The contrary proposition was not suggested to Fiona.
Indeed, Matthew gave evidence, which I accept, that the deceased told him that she wanted him and Fiona "to be looked after" and that "I have made my will so that your mother will not get your inheritance" (Emphasis added.). Again, in this conversation, she did not refer to the payment of part of the proceeds into the joint account of Fiona and Bede, as being a method by which provision being made out of the estate of the deceased for the maintenance, education or advancement in life of Margaret, would be wholly or partly denied, or limited. It was the terms of her Will that she believed would achieve that result.
Merely to rely upon a general wish held by the deceased, that she did not wish any part of her estate to pass to Margaret, on its own, does not, in my view, establish the necessary intention required by the sub-section.
In addition, it cannot be forgotten that not the whole of the proceeds of sale were placed into Fiona's and Bede's joint bank account, or if it was, then part of it was used to pay the Residential Bond. The deceased, in making the Will in the terms that she did, must have realised that, upon her death, the proceeds of the Residential Bond would be paid into her estate, and that there would be an estate out of which a family provision order could be made. There was no other source from which the pecuniary legacies of $240,000 could have been paid.
In all the circumstances, I am not satisfied that Margaret has established the requisite intention under s 80(2)(a) of the Act. It follows that the Court is not able to designate all, or any part, of the amount of $282,030, as notional estate of the deceased. It follows that there is no notional estate out of which an order for provision may be made.
If that were not enough, I should also refer to s 88 of the Act, which provides that the Court must not make a notional estate order unless it is satisfied that: (a) the deceased left no estate; or (b) the deceased's estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made; or (c) provision should not be made wholly out of the deceased person's estate because there are other persons entitled to apply for family provision orders, or because there are special circumstances.
Counsel for Margaret made no written submissions on this topic either. In any event, in my view, none of the bases referred to are established, with the result that the Court "must not make a notional estate order".
In the circumstances, hereafter, I shall refer only to the estate of the deceased. To the extent that Margaret's claim seeks a notional estate order that part of her case fails.

[9]

What amounts are required to be paid out of the fund held in the joint bank account of Fiona and Bede?

Amounts that totalled $70,843 were accepted as being RSL LifeCare fees, which expenses had been paid by Bede: Tcpt, 12 December 2018, p 247(40-45). Clearly, Bede is entitled to be reimbursed this amount, but counsel for Margaret submitted, during his final submissions, and despite Ex. PB, that the amount should be repaid out of the funds held in the joint bank account.
There were "additional fees and expenses not yet reimbursed by the estate to Bede". These amounts totalled $102,075. Only part of this amount was the subject of dispute.
I have earlier referred to counsel for Margaret having submitted that child care for Emmett ($24,223), entertainment ($17,600) and car running costs ($27,168) totalling $68,991 should not be paid out of the estate as these expenses were personal expenses of Fiona and/or Bede, rather than expenses of the deceased.
Fiona gave evidence about these expenses at Tcpt, 11 December 2018, p 193(47) - p 194(42): "Q. That child care has been paid by you and husband for Emmett's child care. A. Yes. Q. Why do you say that figure should be paid for by the estate? A. My grandmother used to say to me, "Thank you for looking after me. If I can help out with any child care costs I am more than happy to do so". Q. But that child care wasn't provided for the benefit of your grandmother. It was really provided for your benefit. A. So I could assist my grandmother. I was her primary carer. Q. In the next paragraph, there's a claim in the third row, "Food and entertainment including regular lunch and family activities $17,600". A. Yes. Q. And you say that's a debt of the estate as well. A. Yes. Q. The reason for that is why? A. We would often take them for meals and she offered to pay. Q. There is also in the same table in the second last row, "Birthday gifts for PCH" - I take it that's Peter Cosgrove House. A. Yes. Q. "Staff $5,000". A. Yes. Q. That again was something that you paid for that you say is a debt of the estate. A. Yes. Q. Last but not least, on page 10, a single table there, "Car running costs including distance, tolls to regular visit to Mavis McDonald $27,168.86". A. Yes. Q. That was your car. A. Yes, and Bede's car as well. Q. Those cars were paid for and you're claiming that as a debt of the estate. A. Yes. Q. And you're claiming that as a debt of the estate notwithstanding that those moneys were paid for your benefit directly. A. They were paid so I could assist my grandmother when there was nobody else around to assist her."
When one remembers the evidence of the conversation that Fiona had with the deceased, all of the expenses, which, as Fiona stated, were expenses incurred in order to assist the deceased, should be paid out of the balance of the proceeds of sale that was placed in the joint bank account of Fiona and Bede, rather than out of the estate of the deceased.
Since Fiona and Bede hold the balance of the proceeds of sale, and as it is Bede who is to be repaid these expenses, strictly speaking repayment will be a matter that they can sort out between themselves. Unless required, I shall not make any orders as to repayment out of the joint account but that, in my view, should be the source of the repayment.
What does follow, however, is that instead of Fiona being entitled to receive $282,030, she will receive $142,196 out of that part of the proceeds of sale of the Padstow property. As earlier stated, the parties seemed to agree that the amount that Fiona will actually receive from those proceeds of sale, should be treated as a benefit passing to her, as a result of the death of the deceased.
Another consequence will be that the value of the actual estate is increased since those amounts will not be needed to be deducted from the estimates previously stated.

[10]

Costs and Disbursements of the Proceedings

Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Chapter 3, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.
Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased; while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased's estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.
As Basten JA put it in Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222, at [54]: "In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs."
However, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195; Harkness v Harkness (No 2) [2012] NSWSC 35.
Mr J T Chaudhry, solicitor, in an affidavit affirmed on 1 November 2018, estimated Margaret's costs and disbursements, calculated on the ordinary basis, up to, and inclusive of, the two day hearing, to be $157,745 (though not expressly stated in the affidavit, this amount was inclusive of GST). In this affidavit, he did not disclose that Margaret had entered into a conditional costs agreement with his firm.
On the first day of the hearing, Margaret sought the leave of the Court to file, in Court, a further affidavit of Mr Chaudhary. In this affidavit, affirmed on 10 December 2018, which was filed in Court without objection, the following passages appear: "4. The plaintiff's costs and disbursements, calculated on the indemnity basis, are: (a) Costs - $105,354.94 (b) Disbursements (Counsel fees) - $42,460; and (c) Disbursements (other than counsel) - $6,532.92. 5. I estimate the plaintiff's costs and disbursements, calculated on the ordinary basis, to be approximately 70% of the amount referred to in paragraph 4(a) and 4(b). 6. Included in the costs referred to in paragraph 4 are the costs ordered against the defendant on 20 June 2018. 7. The amount already paid by the plaintiff is for disbursements only and is the sum of $6,224.42. 8. Pursuant to costs agreement dated 1 June 2017, an uplift fee of 25% on our professional fees is payable, upon the successful outcome of the proceedings. This uplift fee is included in the total at paragraph 3(a) [sic] above."
The Court tried to clarify the contents of this affidavit, to determine Margaret's costs, calculated on the ordinary basis. Ultimately, without objection, the Court was informed, from the Bar table, that her costs, calculated on the ordinary basis, excluding the uplift factor, were $55,311, and that the disbursements, being counsel's fees ($42,460) and other disbursements ($6,532), were $48,992. Based on these estimates, Margaret's costs and disbursements, calculated on the ordinary basis, and without the uplift factor, were $104,354.
On the second day of the hearing, the Court was informed that in the event Margaret was successful, her solicitors would not seek to recover more than the costs and disbursements that the Court ordered to be paid out of the deceased's estate. However, the solicitors would retain the amount already paid by Margaret on account of disbursements: Tcpt, 11 December 2018, p 136(22-30).
On the third day of the hearing, her counsel stated, without objection, that Margaret's costs and disbursements, calculated on the ordinary basis, were estimated to be $91,565: Tcpt, 12 December 2018, p 221(40-45). Although there may be an order capping Margaret's costs, that is the estimate I shall use as a guide.
(Before leaving Margaret's costs, in Oxley v Oxley [2018] NSWSC 91, at [57]-[90], I referred to the need for disclosure, in each of the costs affidavits required by Practice Note SC Eq. 7, for the deponent, to refer to any conditional costs agreement entered into, which could have an effect on the costs that a party to the proceedings would have to bear. I shall not refer to what was written, but the case raises an important matter of practice and procedure with which legal practitioners, by now, should be well acquainted.)
Mr Friedman, solicitor, estimated Fiona's costs and disbursements, including counsel's fees, calculated on the indemnity basis, up to and including the two day hearing, to be $100,871, inclusive of GST. Because there was an extra day of hearing, Fiona's counsel, without objection, on the third day, stated that the costs and disbursements would be increased by $5,500, making a total of $106,371.
Mr Friedman also stated that $60,834 had been paid out of the estate on account of Fiona's costs and disbursements, leaving $45,537 left to be paid.
In the event the costs estimates prove to be accurate, and if an order is made for all of the costs of these proceedings to be paid out of the deceased's estate, the total amount of $137,102 ($91,565 and $45,537) would be deducted from the value of the actual estate.
The parties requested that the Court not resolve the issue of how the costs and disbursements of the proceedings should be borne, as there may be relevant documents that impact upon that issue.
It will be necessary to consider the question of costs for another purpose. This was a relatively straightforward case. It involved some features that may have required detailed investigation, but, in my view, the proceedings should not have taken three days. Much time was spent on matters that should have been resolved between the parties and their legal representatives well prior to the hearing, or at least considered, more comprehensively, by them. The most obvious example was the nature and value of the deceased's estate and notional estate.
The overriding purpose of the Civil Procedure Act 2005 (NSW), as contained in s 56, is "... to facilitate the just, quick and cheap resolution of the real issues in the proceedings." Furthermore, the costs of family provision proceedings should be proportionate to the value of the deceased's estate and notional estate, and the family provision order, if any, that may be made in the proceedings.
Whilst there may be some difficulty in predicting a result, particularly in a case in which there are factual disputes, and, even though there is no costs matrix, or formula, that can be applied, these uncertainties cannot provide an excuse, or justification, for almost $200,000, in costs and disbursements, having been incurred in an estate (and potential notional estate) of a modest value.
The discretion conferred under s 99 of the Act is broad. Either party, including the defendant, as legal personal representative, may be deprived of all, or part, of her costs if the circumstances justify it. The usual costs order may be modified if the Court is of the view that the litigation has been prolonged unnecessarily. The Court should set its face against litigation in which an estate is unnecessarily consumed in costs: Fiorentini v O'Neill [1998] NSWSCA 79.
Basten JA, in Harris v Harris, at [18], has suggested that "[C]onsideration should be given … to orders capping the costs of both parties at an early stage of the proceedings" in cases where a significant proportion of a modest estate may be incurred in costs. His Honour referred to s 60 of the Civil Procedure Act 2005 (NSW) and to the Uniform Civil Procedure Rules 2005 (NSW), r 42.4.
Whilst estimates provide some basis for estimating the ultimate legal costs that may have to be paid out of the deceased's estate before any distributions of that estate can take place, it is to be remembered that they are estimates only. Upon delivering these reasons, it may be necessary to hear the costs argument, if one remains, after allowing the parties to reach agreement on costs, including the quantum of costs. Further costs are likely to be incurred at that time.

[12]

The Will of the deceased made in 2005

In Amos v Hogg [2018] NSWSC 1226, at [60]-[62], I wrote: "In Steinmetz v Shannon [2018] NSWSC 1090, Pembroke J, after referring to an earlier Will of the deceased in that case, which had made much more generous provision for the applicant, stated that "the proximity of death and the clear light of perspective sometimes focus [sic] the mind; providing a final opportunity for considered reflection. The only will that matters is the deceased's last will." Whilst the last sentence quoted is, undoubtedly, correct so far as the determination of the principal questions for determination under the Act, the earlier testamentary intentions of the deceased, as disclosed in a prior Will, or Wills, are also relevant, particularly if there was a long standing testamentary intention revealed by the earlier Will or Wills, and where there has been an incident that has, or incidents that have, caused a change to those long held testamentary intentions. It may also demonstrate the recognition, by the deceased, at the time, of a degree of testamentary duty owed by her towards the Plaintiff. Also, as will be read, one of the matters to which the Court may have regard, is "any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person": s 60(2)(j) of the Act."
(I should note that an appeal in Steinmetz v Shannon has been heard by the Court of Appeal and judgment is reserved.)
The deceased made a Will on 14 April 2005 in which she appointed Kevin as sole executor and trustee, and the sole residuary beneficiary, of the whole of her estate. In the event that Kevin was not living at the expiration of 30 days immediately following her death, the deceased appointed Fiona as the executor and trustee; left a bequest of $400,000, and any car that she owned at the date of her death, to Matthew absolutely; she gave her coin collection to Fiona and Matthew; and provided for Margaret as follows: (b) I give the sum of Two Hundred and Fifty Thousand Dollars ($250,000.00) (hereinafter called "the Fund") to my Trustee to hold upon trust and to use and apply the whole or any part of the capital or income of the Fund for the maintenance, comforts, necessities and such other benefits as my Trustee in her or his absolute discretion shall deem advisable for the welfare and happiness of my daughter MARGARET MAY McDONALD during her lifetime AND FROM AND AFTER the death of the survivor of myself and my said daughter (hereinafter called "the vesting date") I direct my Trustee to pay the unexpended balance of the Fund to my granddaughter FIONA ANNE QUIMBY absolutely provided that my said granddaughter shall be living at the vesting date OR should my said granddaughter not be living at the vesting date then I direct my Trustee to pay the unexpended balance of the Fund to my grandson MATTHEW KEVIN BURTON absolutely."
In this Will, she left the rest and residue of her estate to Fiona absolutely.
The deceased made an affidavit on 14 April 2005 in which she stated, at [1], that she had made a Will of the same date and that "the only provision I have made for my daughter…is a discretionary trust fund of $250,000.00 to be administered by the executor/trustee of my Will". (In fact, this was precisely accurate as the whole of the deceased's estate was left to her husband, and the provision made for Margaret was by way of a substitutionary gift, if Kevin did not survive.)
The affidavit, at [2], went on to provide that the reason she had made that provision for Margaret "is based on her past inadequate ability to manage her affairs" and that she "had more than her fair share of the inheritance because in the past Margaret has been married four times and my husband, Kevin … and myself have paid for each wedding". The affidavit continued, at [3], to refer to three properties, purchased by the deceased and Kevin, "but with the breakdown of the marriages we had to sell them to pay out a settlement for each husband at a great deal of expense and loss to us".
The deceased referred also to the provision that had been made for Matthew, such as educational expenses and clothing; that Fiona had lived with her and Kevin for about 24 years, with them having "fully paid for our granddaughter's education, maintenance and well being"; and that she wished to provide for them, particularly Fiona, who was more like a daughter to her than a grandchild.
The deceased estimated that "the trust fund of $250,000 is more than Margaret's fair share of the inheritance" and that any bequest left directly to Margaret "will only be squandered".

[14]

The 2016 Will of the deceased

As earlier stated, the last Will of the deceased is the duly executed Will made 30 June 2016.
In relation to the 2016 Will, there is, in evidence, a document headed "Notes", made by Mr Friedman, the solicitor who took instructions for the Will and the Statement of Reasons. The "Notes" document, dated 30 June 2016 (Ex. PA/40) states: "I met with Mavis and Fiona to discuss the statement of reason and Mavis's will. I explained to Mavis that Fiona could not influence any decisions made by Mavis regarding her will and statement of reasons and that when the execution occurs Fiona would need to be absent from the room. I explained the updates in Mavis's will to her ensuring that she understood everything I said. I did this by asking her whether she understood the changes. We then closely examined clause 10 of her will to ensure that any ambiguity will [sic] was removed and that any transcription that was not factual was removed. After we reviewed the will we then reviewed her statement of reasons. We discussed each clause in the statement and made the amendments according to Mavis's instructions. Mavis said that this was just an interim statement as there was more information that she wished to add in order to make the statement of reasons more comprehensive. Mavis said [she] would review an updated statement with [sic] to ensure that all information was included. I advised Mavis that as Margaret was a disability pensioner as well as the daughter of Mavis, she would [be] like[ly] to make a claim on the estate when Mavis passed away. I advised Mavis that Margaret would have 12 months in which to make a claim. Mavis said it was not fair that her daughter could make a claim and I replied that the more supporting information we have in her statement of reasons the less likely she would be to obtain a large claim from her estate. Mavis said that she had been assaulted by her daughter at least eight times some years ago when Fiona was a young girl. There was no current AVO against Margaret or her partner Stephen, but Mavis was concerned if they were around her. Carla and I witnessed the execution of Mavis's will and statement of reasons. No one else was in the room and I asked Mavis if she was under any pressure to sign the document and she said no it was her wish to sign the document so that the estate could be divided in accordance with her wishes. I told Mavis that the fees were likely to increase due to the additional work that would be performed and Mavis said she understood. We agreed to meet again in another fortnight or so once Mavis had completed her updated statement of reasons which we would then store with her will."
When cross-examined, Mr Friedman stated that he had not acted for either Fiona or Bede before the instructions were taken to prepare the deceased's 2016 Will and that he had previously not acted for the deceased. He thought his office had been chosen because "we were local to the Northern Beaches area": Tcpt, 11 December 2018, p 155(49) - p 156(6). (Fiona gave evidence that she had chosen Mr Friedman as a result of a Google search: Tcpt, 11 December 2018, p 197(5) - 197(9).)
He also gave evidence that the deceased, with Fiona, had come into his office on three separate occasions. On the first occasion, he saw the deceased alone, in his office. She brought both of her earlier Wills with her. He could not remember to which of the two Wills the deceased's written statement had been attached, but he had received a copy of her affidavit under cover of an email dated 26 May 2016, that was sent to him by Fiona. He took instructions from the deceased and prepared the draft of the 2016 Will for the deceased: Tcpt, 11 December 2018, p 156(8) - 159(14).
Mr Friedman readily agreed that he had received communications from Fiona (a copy of a number of emails being in evidence), but that he had understood that she had "acted as the conduit between the deceased and me regarding the will": Tcpt, 11 December 2018, p 158(4-8). He maintained that his instructions regarding both the 2016 Will and the Statement of Reasons to which that Will referred, had come directly from the deceased and that he had discussed what had been written in the email correspondence directly with the deceased.
Despite the tenor of the cross-examination, and, perhaps even the suggestion that it was not the deceased's signature on the Statement of Reasons, I have no hesitation in accepting Mr Friedman's evidence that "whenever the deceased came into my office, I went through all the documents with her to ensure that she was not under any influence from anyone else, that they were her thoughts and that she had the mental capacity to make those statements and decisions": Tcpt, 11 December 2018, p 159(45-50).
There are obvious differences between the contents of the affidavit that the deceased made in 2005 and the Statement of Reasons made in 2016. Apart from anything else, and most importantly, the provision made for Margaret in 2005 was very different. By the time the deceased signed the Statement of Reasons in September 2016, she had been advised that Margaret might make a claim seeking provision and that "the more supporting information we have in her statement of reasons the less likely [Margaret] would be to obtain a large claim from [the deceased's] estate".
Mr Friedman stated that he had not asked the deceased the reasons for the changes to her 2005 Will. He stated that he believed his role "was to take instructions for her current will and statement". Of course, in her Statement of Reasons, the deceased was providing the reasons for making the Will leaving no provision for Margaret.)

[15]

The Statements of Reasons in relation to the 2016 Will

The written Statement of Reasons in 2016, which accompanied the deceased's last Will, is attached to a Statutory Declaration made on 7 September 2016. The deceased in that Statutory Declaration made "this solemn declaration conscientiously believing the same to be true".
I shall not set out the Statement of Reasons verbatim, but shall summarise the document as follows: 1. The deceased made the document to "provide the following reasons to explain why my daughter, Margaret… is not a beneficiary under my will"; 2. No person had influenced, or pressured, her to provide the content, which she had related to her solicitor who had assisted her by transcribing the document; 3. The reasons for not making provision for Margaret "is based on her past inadequate inability to manage her affairs"; she has had "more than her fair share of the inheritance"; the deceased and her husband had paid for each of her weddings which, in total exceeded $100,000; 4. Upon the breakdown of two of her marriages, in order for Matthew to have a home in which to live, Margaret had lived in two different homes which the deceased and her husband had purchased; and had paid a large financial settlement to each of her husbands; 5. The deceased and her husband had "helped out Matthew … with many of his requirements, such as educational expenses and clothing as his mother … did not pay for most of his living and educational expenses"; 6. Fiona had lived with the deceased and her husband since she was 4 years old until the age of 28, and they had "fully paid for our granddaughter's education maintenance and wellbeing without any assistance from Margaret…"; 7. The deceased and her husband had purchased many substantial household goods for Margaret and given her money for her general living expenses, in excess of $250,000. What was provided "was never provided to her as a gift but rather as an advance on any money she would receive from my estate"; 8. Any additional provision made for Margaret would be squandered by her, as "she is incapable of managing her money"; 9. She wished to provide for Fiona and Matthew. In relation to Fiona, their relationship was more like mother and daughter than grandmother and granddaughter; 10. Margaret had threatened the deceased and her husband, when Fiona was a child, with removing Fiona to Queensland unless they paid Margaret some money, which they did; 11. Margaret had been told by Kevin, that neither she, nor Steven, was welcome in their home, or in their lives. Margaret had rung the home many times, at all hours, without talking; the deceased knew it was Margaret as she pressed redial, and Margaret picked up the telephone, but hung up when the deceased said "Hello Margaret"; 12. Margaret and Steven had come over, uninvited on a number of occasions, which caused the deceased to become frightened; 13. She and Margaret had always had a "tumultuous relationship"; Margaret had been a disappointment "with her selfish ways"; the deceased and her husband were embarrassed by Margaret's conduct, which, on occasions, including stealing; 14. She and Margaret often fought over the welfare of Fiona and Matthew; and 15. Margaret had physically struck the deceased "many times over the years".
Section 100(2) of the Act provides that in any proceedings under Chapter 3, evidence of a statement made by a deceased person is, subject to the section, admissible as evidence of any fact stated in it of which direct oral evidence by the deceased person would, if the person were able to give that evidence, be admissible. A statement in the section "includes any representation of fact whether or not in writing": s 100(1).
Sub-section (5), (6), and (8) of s 100, provide: "(5) Where a statement made by a deceased person during the person's lifetime was contained in a document, the statement may be proved by the production of the document or, whether or not the document is still in existence, by leave of the Court, by the production of a copy of the document, or of the material part of the document, authenticated in such manner as the Court may approve. (6) Where, under this section, a person proposes to tender, or tenders, evidence of a statement contained in a document, the Court may require that any other document relating to the statement be produced and, in default, may reject the evidence or, if it has been received, exclude it. … (8) In estimating the weight, if any, to be attached to evidence of a statement tendered for admission or admitted under this section, regard must be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, including: (a) the recency, or otherwise, at the time when the deceased person made the statement, of any relevant matter dealt with in the statement, and (b) the presence or absence of any incentive for the deceased person to conceal or misrepresent any relevant matter in the statement."
Many years before the inclusion of the section, Gibbs J had written in Hughes v National Trustees Executors & Agency Company of Australasia Ltd (1979) 143 CLR 134, at 150; [1979] HCA 2: "… in Australia for many years the courts have admitted evidence of statements made by a testatrix explaining why she made her will as she did. In taking this course the courts have no doubt been influenced by a desire to be informed of the reasons which actuated the testatrix to make the dispositions she had made, and by the consideration that in cases of this kind a claim is made against the estate of a person who is deceased and can no longer give evidence in support of what she has done. It is doubtful whether, in most cases, such evidence is relevant, but usage justifies its reception. The question is for what purpose it may be used, once admitted. The balance of authority clearly favours the view that it is admissible only to provide some evidence of the reason why the testatrix has disposed of her estate in a particular way, and that it is not admissible to prove that what the testatrix said or believed was true: Re Jones (1921) 21 SR (NSW) 693, at p 695; In re Smith (1928) SASR 30, at p 34; In the Will of Joliffe (1929) St R Qd 189, at p 193; Re G. Hall, deceased (1930) 30 SR (NSW) 165, at p 166; In re Green, deceased; Zukerman v Public Trustee (1951) NZLR 135, at pp 140-141 (a case decided before the amending legislation was enacted in New Zealand). This view was accepted as correct by Taylor J. in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR, at p 24; Taylor J. dissented in the result in that case but there is nothing to suggest that his opinion on this point differed from that of the majority of the Court."
In her signed written statement, the deceased appears to have weighed the testamentary claims upon her, in an apparently sensible way and by considering the principal persons who may have had a claim on her bounty being her only child and her two grandchildren. It appears to be a case where she did "expose to the world the delicate, and perhaps indefinable, relations that exist within [her] family circle" or where she "felt quite justified from [her] own standpoint in limiting [her] family benefit, and for reasons which sufficiently appealed to [her], but which no one else could mentally measure or appreciate": Nock v Austin (1918) 25 CLR 519; [1918] HCA 73, per Isaacs J, at 527.
Whilst 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, per Ball J, at [27]. What an explanation by the deceased may do is cast light on the relationship between her, or him, and that person, at least from the deceased's perspective.
Where the truth of the statements made by the deceased is admitted, or where the facts asserted in the statements are corroborated by other evidence, due weight should be given to the statements. However, there are often difficulties faced by a trial judge grappling with evidence about disputed allegations that are contained in such statements.
I have borne in mind that the Court must exercise caution in determining whether to accept the statements of the deceased, and, if accepted, the Court must carefully consider the weight to be attached to them. In Benham v Benham [2004] NSWSC 416, Master McLaughlin made the point, at [81], that: "[T]he Court should not, however, overlook the fact that testators are human. A statement by a testator (which, by definition, cannot be tested under cross-examination), although admissible in evidence, need not be accepted by the Court unquestioningly or uncritically."
As I have written, in other cases, in relation to statements by the deceased, the Court should bear in mind, also, what was said by the Court of Appeal of New Zealand in In re Green, deceased; Zukerman 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): "If reasons are given by the testator reflecting on the character or conduct of that child, the court must, in considering the sufficiency or otherwise of the reasons, endeavour to decide upon the truth or otherwise of the allegations. But 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 a claim. In our opinion, the reasons given by a testator for excluding a child (or a widow) go no further than to concentrate attention on the question whether there is or has been character or conduct operating to negative the moral obligation that would otherwise have lain upon the testator."
Thus, a statement made by the deceased does not, necessarily, mean that it must be accepted, unquestionably, 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]. Ultimately, allegations by the deceased as a reason for the exclusion of a child from any provision out of her, or his, estate should not be accepted as precluding the making of a family provision order merely because the applicant fails to establish that the allegations are false.
In denying many of the assertions made in the statement, I also bear in mind that Margaret's responses are those of a person who is deeply interested in the result of the case. As this is a claim against a deceased person's estate, the Court must be convinced of the truth of the allegations before acting upon them.
In Steinmetz v Shannon [2018] NSWSC 1090, Pembroke J repeated what he had written in Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146, at [32]-[33], that: "There are sound practical reasons for not encroaching too readily on the testator's freedom of testamentary disposition and especially not in accordance with abstract concepts such as fairness or the misguided notion that there should be equality … In Pontifical Society for the Propagation of the Faith v Scales (supra) at 20 Dixon CJ articulated the unique difficulty which these cases present with the following memorable apophthegm: The difficulty is that the Court itself can never be certain that it knows all the circumstances. More often than not, one may be sure that the Court knows few of them. Experience of forensic contests should confirm the truth of the common saying that one story is good until another is told, but a testator is dead and cannot tell his. To similar effect were some observations of Taylor J in Stott v Cook (1960) 33 ALJR 447 at 453-4, who explained that the reason why a court does not have a mandate to rework a will according to its own notions of fairness, is because such an approach would serve justice no better than: …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."
In Sgro v Thompson [2017] NSWCA 326, at [83], White JA (McColl JA agreeing) adhered to the view that he had expressed in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522, at [127], namely, that: "…respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will."
His Honour added, at [86]: "To recognise that the court is not in as good a position as a capable testator to assess what maintenance or advancement in life is proper for an applicant having regard to all of a family's circumstances, including the relationships between the applicant and the deceased, and the merits and claims of other family members, is not to put a gloss on the statute. Rather, it is to acknowledge the superior position of the testator. The most important word in s 59(1)(c) is 'proper'. Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court's assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate."
The Statement of Reasons, dated 7 September 2016, did not form part of the Probate document. However, a copy was annexed to Margaret's first affidavit and addressed in her affidavit made on 29 March 2018. I shall now turn to the credibility of the parties.

[16]

The Credibility of the Parties

Generally, I was unimpressed with Margaret's evidence. I found, on a number of occasions, that she was prepared to give firm oral evidence about things that were demonstrably incorrect. Perhaps the most obvious example is the statement made in her first affidavit, that "I never, for any significant length of time, ceased communicating with Mum, and always looked to be a part of her life".
Margaret admitted that at Christmas 2005, there had been an incident at her parent's home involving both of Fiona and Matthew. She seemed to admit that after about this time, she did not see, or have contact with, the deceased for a number of years. Whilst she could not state, with any degree of precision, the time when she had last spoken with the deceased before the deceased's death, she thought it had been about 6 years prior to her death: Tcpt, 11 December 2018, p 107(38) - p 108(35).
When cross-examined about her affidavit, Margaret stated "I meant a long time, a long time. You can cease talking to someone for a couple of days or something. It means nothing". This explanation does not assist her. Nor does her statement that "if I didn't speak to mum, it was because her place was closed up and she wasn't there": Tcpt, 11 December 2018, p 109(22-24).
I am satisfied that Margaret's last conversation with the deceased was in about 2012: Tcpt, 11 December 2018, p 109(9-11), that is, about 4 years prior to her death. Whether it was 6 years or 4 years, it is a significant period of time for there to have been no contact.
Another example is the following evidence in cross-examination about when she had visited the deceased in Hospital in 2014: Tcpt, 10 December 2018, p 76(31-46): "Q. So, prior to this incident in 2014, when do you say you saw your mother prior to that? A. I tried to visit Mum at least twice a week if I could. HIS HONOUR Q. No. The question you were asked was, prior to 2014 A. Yes. Q. when was the last occasion that you saw your mother before then? A. A week before. I do remember. BROWN Q. Is that a truthful answer, Madam? A. I didn't see her, I went to see her."
In her affidavit, sworn on 29 March 2018, Margaret stated, at [43], that "Steven and I went to Bankstown Hospital. I saw mum in one of the rooms but I told Steven "I'm not going. I don't want to worry her. Would you just go in and have a look at how she is? Steven went into mum's room and I waited outside in the other waiting room." She admitted that she did not speak to the deceased whilst the deceased was a patient in the Hospital.
The oral evidence given by Margaret, although lengthy, on this topic bears repetition. She gave the following evidence in cross-examination (Tcpt, 10 December 2018, p 75(43) - p 80(28): "Q. You recall in 2014 that you and Steven went to the hospital where you had been informed your mother was staying? A. Yes. Went to see my mother at home first and she - I found out through the next door neighbour that she wasn't there, and the next door neighbour said she wasn't sure what hospital, but then she said, "I think it would be the closest", and I said, "right", so we tried the closest which is Bankstown. … Q. You must have been concerned that your mother was in hospital. A. I was. Q. But you didn't go and see her. A. I did. Q. Did you go into the room and try and speak to her? A. No. Because I'm not a well person myself, I felt quite ill by the time we got to the hospital, so I said to Steve, "I don't feel very well," and I sighted her and I said, "She's in that room there." I said, "Can you just make sure she's all right?" Q. For all you know at this point, your mother might have been on her deathbed. Do you agree with that? A. No. Mum was standing up and she had a frame around her. Q. You didn't even go and see her. A. I wouldn't say I didn't go and see her. I felt very sick and I thought I was going to be sick, so I said to Steve, "Would you go and see her and make sure she's all right?" Q. You didn't go and talk to your mother when she was in hospital, did you, madam? A. No, I didn't see her. I didn't go in - I did see her. I sighted her but I didn't speak to her. Q. Because you knew how she would react if you went into the room. Isn't that right? A. No, that's not true at all. Q. Because you had a terrible relationship with your mother. A. No, I didn't. Q. You knew that she didn't want to see you. A. That's not true at all. Q. The reality is that was an opportunity, without anybody else around, for you to go and see your mother. A. I didn't look at it like that. I went straight to the hospital because I knew that something must have been wrong. She was obviously sick or took worse or something. Q. You make all of these complaints in these proceedings that people prevented you seeing your mother. A. Yes. Q. Do you agree there? A. Yes. Q. Here you were, you could see her. Do you agree with that? A. That's true. Q. You didn't even go and try and talk to her. A. No, that's not true at all. I sighted her. I went in to see her, then I went to the ladies and I asked Steven would he go in. HIS HONOUR Q. I'm sorry, I didn't quite understand that answer. You said earlier that you sighted her but didn't go into the room. A. No, I didn't go in. Q. Now you tell me you went into the room. A. No, no. I sighted her in the room. I sighted her in the room and then I went to the ladies and I asked Steve would he go in and see her. The reason I didn't go in to speak to my mother was because Steven come out and said that, "She doesn't even recognise me," and then that's - that's why I said, "Well, there's no sense in hanging around." I said, "Is she all right?" He said, "She's all right but she's not well." … Q. I'm having some difficulty understanding that evidence, Ms McDonald. You say that Steven went in. He then came out and told you that she was okay but didn't recognise him. A. Yes, but she had people with her. … Q. According to your evidence, your mother would have known you for the whole of your life. Wouldn't you be concerned that even though she might not have recognised Steven, you should still give her the opportunity to see you and speak to you? A. No, because - I'll tell you why. That day we went in there, I came out from the ladies and he said to me that - how can I say this? I can just say it the way it is. He didn't - he said, "She doesn't recognise me," and he didn't want to upset her and I said, "Well, there's no sense in upsetting her," so we just left. Q. But, I'm sorry, why would him (as said) not recognising him cause you not to go in as her daughter. That's what I'm having some difficulty with. A. Because she was a little bit upset-- Q. You were her daughter. A. --and I said, "There's no sense in upsetting her." Q. But upset about what? A. I don't know. She just got upset. He said, "She's a little bit upset," and I said, "Well, I don't want to upset her." Q. You didn't say that before. A. Well, that's - that's how it was, sorry. … Q. Your father died in 2011, didn't he? A. Dad did, yes. Q. So the possibility exists that your mother may not have seen Steven for about three years at the time of the hospital incident. A. Maybe that's why she - I don't know if that's why she didn't recognise him. I don't know, because it was me that went over on my own most of the time. Q. It strikes me as odd, I have to say, Mrs McDonald, that even though she didn't recognise him that you didn't think that it would be of utility for you to go into the room and speak to your mother, to find out what was wrong with her, if anything. Can you explain that? A. Not really. I know what you are saying and I know what you mean but I can't explain it, I'm sorry."
Steven gave no evidence in his affidavit about what had occurred during the Hospital visit.
(The deceased told Mrs McDonald that "whilst she was at the hospital, a man had tried to come and speak to her" and that she was fearful that he "had tried to visit her unannounced and without her consent whilst she was getting her leg ulcers treated". This suggests that the deceased had not "sighted" Margaret.)
In a medical report dated 26 June 2017 from Dr M S Baig, relied upon by Margaret, it is noted that she "informed me that she was very close and affectionate with her mother…". In addition, she told Dr Baig that she had "visited her mother last time in the hospital … with Mr Steve Horne. Her mother [was] unable to recognise Mr…Horne as her mother suffered dementia". It is clear that some of these statements are far from the truth. (It was not suggested that Margaret had not made these statements.)
I do not accept Margaret's evidence in her first affidavit, at [38], that she tried to restore her relationship with the deceased, or that by 2010 "we once again were talking". Nor do I accept the evidence in her first affidavit, at [39], that she had tried to visit the deceased "as much as I could and about 2-3 times per week. Some days Mum did not recognise me but when she did we got along as if nothing had ever happened." Margaret's evidence is simply implausible, bearing in mind the other evidence in the case.
In her first affidavit, Margaret commented, at [57], that when she saw the 2016 Will and the Statutory Declaration with the Statement of Reasons, "I was shocked and cannot, to this day, understand why I am suddenly left out of the will entirely. The Declaration in particular did not sound like something mum would say. The signature did not look like mum's".
Despite the assertion made above in her first affidavit, in an affidavit sworn on 29 March 2018, Margaret stated, at [8], that "[O]n 7 September 2016, Mum signed a statutory declaration which annexed a document entitled Statement of Reasons…". She added, at [10], "[T]he September Statement was signed by mum less than 4 weeks before she died". However, she maintained that "[M]um's signatures appeared shaky and inconsistent on each of the pages of Statutory Declaration and the September Statement".
Bearing in mind the other evidence that I have read, particularly that of Mr Friedman, I do not accept, the suggestion that the signature on each of the documents was not that of the deceased. In this regard, I accept the evidence of Mr Friedman.
I also do not accept Margaret's assertion that the Statement of Reasons "was not reflective of mum's genuine intentions". To the contrary, in my view, the deceased's statements about what had been provided to Margaret by her and her husband, Kevin, appears to have been a long held view (as the Statement of Reasons is consistent with what the deceased had written in her affidavit of 2005, referred to earlier in these reasons).
In addition, Margaret had not "suddenly" been left out of the Will. The 2012 Will, made about four years before the deceased's death, had made no provision for her either.
Margaret gave evidence, however, in her affidavit of 29 March 2018, that she believed that the incident in 2005 led to a deterioration of her relationship with the deceased, until about 2010. She tended, when speaking of her relationship with the deceased, to attribute blame, generally, to Fiona, who she asserted "prevented me from having a loving relationship with mum and dad".
I do not accept Margaret's evidence in this regard. The statements made by the deceased, from 2005, lay the blame fairly and squarely upon Margaret. There is no acceptable evidence that Fiona played a part in encouraging the deceased to not see Margaret.
Much of what the deceased stated in the Statement of Reasons was disputed by Margaret. She stated that whilst she lived at the home of her parents "[O]ur relationship had its ups and downs due to mum's moods" and that "I always felt I had a close connection with mum". Later, she repeated that her relationship with the deceased remained the same and that "any mood swings by Mum were just part of her nature and were not directed specifically at me". It is hard to accept Margaret's evidence in this regard. To do so would require the rejection of most of what the deceased had written and what she had said to a number of people.
In relation to when Fiona started to live with the deceased and Kevin, Margaret asserted that that this did not occur until much later (about 1988) and then usually only during the week. This, she explains, was done so as not to disrupt Fiona's schooling. She maintained that during this period, she would telephone the deceased "every second night".
Fiona stated that she had lived with her grandparents from about the age of 6 years. She admitted that she would visit Margaret, but says that she did so "under duress on weekends" as "I hated visiting the plaintiff due to her unpredictable behaviour and violent outbursts".
Matthew gave evidence that as a young child, particularly when he lived with Margaret in a property at Padstow less than a block away from his grandparents, he would go to their home, and the home of a neighbour, and ask for food. He also recollects that there were arguments and "throwing things at each other" when he lived with Margaret and Bill Brien. He says that he can remember living with his grandparents for "a couple of months" when he was about 6 years old (in about 1983). He also did so at other times and that when he did, "they did everything for me from cooking, washing and ironing, to caring for my wellbeing".
Matthew also gave evidence, about which he was not cross-examined, that the deceased and Margaret "argued a lot and about many things, including Mum bringing new boyfriends" to the home. He also confirmed that the deceased had told him of the threats said to have been made by Margaret to take him and Fiona away and not let her see them. The deceased had said that Margaret "usually asked us for money but sometimes she wanted other things".
Margaret admitted that, on occasion, she lived in a property owned by her parents, but said that she had paid "full rent". Indeed, she asserted that "No provision has ever been provided to me by the deceased despite what is said in the Statement of Reasons in support of the 30 June 2016 will … I also provided all of my child endowment money to my parents when Fiona was in their care". (That Margaret had paid any money was a matter denied by the deceased in a statement made to Fiona).
It is difficult to accept that Margaret's evidence is entirely accurate, on this topic, particularly following the breakdown of one, or other, of her marriages, when she would have been likely to have required some financial assistance.
Margaret acknowledged that on one occasion she had committed a theft of a pay packet from the family home of Kevin's older sister, and that she "felt ashamed". She explained the incident as being that of a young person ("I was 18 years old"), and that she admitted her guilt and had apologised for her wrong-doing.
Mrs McDonald remembered being told of the specific incident involving the theft of the pay packet and being told that Margaret had returned the money taken.
However, there was other evidence, which I accept, about Margaret's stealing being on more than one occasion. Fiona gave evidence of having witnessed her grandfather, Kevin, giving a person called Jo, the amount of $50, in order to replace money that Margaret had allegedly stolen.
Fiona also stated that she had one conversation with Margaret, about which conversation she was not cross-examined, in which Margaret had stated that "I steal things because all my life other people have been able to have things that I can't have".
Margaret did give evidence of her attempts to locate the deceased after 2015. She stated that she attended the Padstow property, "a few times" but did not find the deceased living there; that she had sought the assistance of the Police, the Salvation Army, and by search of the Registry of Births Deaths and Marriages.
Margaret referred to the letter dated 24 August 2016 from her solicitors addressed to Fiona and Matthew "requesting details of the whereabouts of mum". Although a copy of the letter is annexed, the summary stated by Margaret, in my view, is not reflective of the contents of the letter overall which reveal Margaret's real motivation in looking for the deceased. The letter stated: "We take this opportunity to advise you that we have received instructions to act on behalf of your mother, Ms Margaret McDonald. It is unfortunate to be appraised of the current family situation and our client is most disappointed and disillusioned because of the fact that she has not been given access to visit her own mother, Mrs Mavis Valerie McDonald. According to our client's knowledge and information, her mother is not residing at a nursing home. In spite of having requested you to provide her with the relevant details, you have failed to provide her with the same. Our client believes that this is done intentionally on the basis that you wish to inherit all the assets without having to share it with your mother when your grandmother in fact passes away. We take this opportunity to put you on notice that we will proceed to lodge a caveat and other appropriate notices in relation to all relevant properties belonging to your grandmother so that our client's interests can otherwise be protected if she wishes to pursue the same. At this stage, all our client intends to do is visit her mother in order to meet with her and to amicably resolve all outstanding issues that each family member has had with each other. We look forward to hearing from you within seven days of the date of this letter, failing which; we have received instructions to commence proceedings in order to obtain a court order against you. Of course, we will tender a copy of this letter in court along with the previous correspondences which have been passed to you. In addition, we take this opportunity to put you on notice that we will also be tendering affidavits from our client's partner confirming and outlining all the recent visits and attempts made by the parties in order to reach out to you both and attempting to make contact with her own biological mother!" (Emphasis added.)"
Mrs McDonald also gave evidence, about which she was not cross-examined, that the deceased "would insist that her contact details, including her telephone number, not be given to anybody without her consent" and that family members should not give those details to Margaret; when she moved into the aged care facility, in 2014, the deceased asked her and her husband, "not to provide the address to anyone, including Margaret", explaining that she did not want to have any contact with Margaret. The statements made to her by the deceased, suggest that Margaret's evidence that the deceased was prevented from having contact with her should not be accepted.
Mrs McDonald gave evidence that she had never been contacted by Margaret regarding the deceased. Margaret's statement that "it did not occur to her" to find out the whereabouts of the deceased by contacting Mrs McDonald, whilst she was making enquiries of others, such as the Police and the Salvation Army, lacks credibility.
Mr McDonald gave evidence of having visited the deceased regularly from the 1980's, and he recollected there being only one occasion when he saw Margaret at the deceased's home.
Bede gave evidence, about which he was not cross-examined, that during the 11 years that he knew the deceased, she had never told him of having been contacted, or visited, by Margaret; that in all of that time, he had not seen them in the same room together, or witnessed a conversation between them. He confirmed that the deceased had repeated her complaints about Margaret to him.
Bearing in mind that Fiona and Bede commenced their relationship in about 2005, this evidence is consistent with the time line of little contact between the deceased and Margaret, after about Christmas 2005. There is no reason to not accept Bede's evidence in this regard.
Overall, I am satisfied that the relationship between Margaret and the deceased was not a close one and that the deceased did not wish to have Margaret play any part in her life. For Margaret's part, whilst it appears that she did make attempts to locate the deceased, I have the firm view, based upon the letter from her solicitors, that she was doing so, not because of any real desire to resurrect a relationship with the deceased, but for the purpose of attempting to strengthen her claim against the deceased's estate, she believing that no provision would be made for her by the deceased.
(Of course, I have been unable to reach a firm conclusion on all of the matters raised by the deceased in the Statement of Reasons and denied by Margaret. However, for reasons explained above, I must remember that the circumstances should be judged in the light of the fact that the deceased made her last Will in 2016. She, rather than the Court, must be regarded as the best judge of the significance of lifetime events leading to how the deceased's estate should be distributed. She made that judgment and the Court must give due weight to it.)
I also consider that the evidence of Fiona and Matthew in particular, taken with Mr and Mrs McDonald, and Bede, is generally consistent. Where there is any conflict between Margaret's evidence and the evidence of each of those witnesses, I prefer the evidence of each of them.
(I should mention that some time was spent cross-examining Margaret on how a debt to Centrelink, for overpayment of pension entitlements for the period 17 February 2014 and 28 June 2017, had been incurred. Ex. D4 reveals that there had been non-disclosure of an account held with Steven and a failure to disclose the receipt of the amount of $230,000. However, the documents also reveal that Margaret had advised Centrelink of the compensation payment and her periodical payments, being a letter dated 28 October 2014, but did not update her bank financials. In reaching my conclusions regarding her evidence, I have not regarded the non-disclosure as an intentional act by Margaret to gain benefits to which she was not entitled.)

[17]

The Law

To justify an order for provision under the Act, the Court must be affirmatively satisfied that the deceased has not made "adequate provision for the proper maintenance … or advancement in life of the person in whose favour the order is to be made": s 59(1)(c). If that is established, the Court is empowered to order such provision out of the estate as the court "thinks ought to be made" for the identified purposes: s 59(2).
Importantly, the question of the inadequacy of provision is to be assessed at the time when the Court is considering the application. The basis upon which the evaluative judgment is to be undertaken is unrestricted. There is no automatic entitlement to provision stipulated by the Act and the deceased's Will applies unless a specific application is made and acceded to by the Court.
The principles to be applied on this topic are well known and I have dealt with them in many cases. For the benefit of the parties, I shall repeat the relevant principles.
Other than by reference to the provision made by the Will of the deceased, 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 an applicant's proper maintenance, education and advancement in life. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of any applicant.
The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment: White v Barron (1980) 144 CLR 431, at 434-5, 443; [1980] HCA 14; Singer v Berghouse (No 2) (1994) 181 CLR 201, at 210-211; [1994] HCA 40.
Basten JA, in Foley v Ellis [2008] NSWCA 288, at [3], commented that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J (as his Honour then was) wrote that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J has described it as "'an evaluative determination of a discretionary nature, not susceptible of complete exposition'" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific'": Szypica v O'Beirne [2013] NSWSC 297, at [40], citing Manuel v Lane [2013] NSWCA 61, per Emmett JA, at [9].
As stated, under 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. This does not mean, however, that considerable weight should not be given to the assessment of a capable testator, who has given due consideration to the claims on his estate: Sgro v Thompson, per Payne JA (agreeing with White JA), at [6].
Whether the disposition of the deceased's estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the applicant, will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant's "needs" that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573, at [575]. This statement is not intended to suggest that an applicant's "needs", when compared with the provision made for her, or him, out of the deceased's estate, should be the only, or even, the dominant consideration. An applicant's financial needs and the financial needs of other persons with claims on the deceased's testamentary bounty are important, and often highly important, considerations, but as Basten JA said in Chan v Chan, at [22]: "… [I]t is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. The background to any consideration of the appellant's needs required determination of the size of the estate and the claims of others on the beneficence of the testator."
In Grey v Harrison [1997] 2 VR 359, Callaway JA, at 366-367, observed: "There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."
"Provision" is not defined by the Act, but it was noted in Diver v Neal (2009) 2 ASTLR 89; [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". Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act.
In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11, 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."
In Alexander v Jansson (2010) 6 ASTLR 432; [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), wrote, at [18]: "'Proper maintenance' is not limited to the bare sustenance of a claimant…but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility."
In McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82, Dixon CJ and Williams J wrote, at 575: "The presence of the words 'advancement in life' in the... Act in addition to the words 'maintenance and education' is not unimportant... 'Advancement' is a word of wide import."
In 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 … at 575; Stiles v Joseph (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams…)."
The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton in "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5 Aust J Leg Hist 5, 10, as reached upon "a purely economic and objective basis", whereas "proper" prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235, at [72] and [77] (Buss JA), which seems to invite more subjective criteria.
These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 476: "The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."
Their Lordships went on to state, at 478: "The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the court were concerned merely with adequacy. But the court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration."
Dixon CJ and Williams J, in McCosker v McCosker, at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that: "It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."
In Pontifical Society for the Propagation of the Faith v Scales, Dixon CJ, at 19, pointed out that the words "adequate" and "proper" are always relative and that what the testator regarded as "superior claims or preferable dispositions" is a relevant consideration: "The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning."
In Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31, Gibbs J wrote, at 502, citing Pontifical Society for the Propagation of the Faith v Scales at 19: "…the words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."
In Vigolo v Bostin, Callinan and Heydon JJ wrote at 114: "…the use of the word 'proper'… implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here… The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."
Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), 28 May 1998, unrep), that "adequate" and "proper" are independent concepts. He wrote, 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." [Citations omitted.]
In Palagiano v Mankarios [2011] NSWSC 61, at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life "involve value judgments on which minds can legitimately differ", and "[t]here are no definite criteria by which the question can be answered."
His Honour added, in Slack v Rogan; Palffy v Rogan at [123]: "The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case including 'the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty' (Singer v Berghouse (1994) 181 CLR 201 at 210)."
In Devereaux-Warnes v Hall (No 3), at [81]-[84], Buss JA wrote: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer 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]."
As will be read, s 60 of the Act invites the Court to have regard to various matters, including, but not limited to, financial need: s 60(2)(d). If the Court does so, as also will be read, one of the purposes for which that is done is for determining "the nature of any [family provision] order": s 60(1)(b) of the Act.
Of course, "need" is a relative concept: de Angelis v de Angelis [2003] VSC 432, at [45]. It is different from "want" and does not simply mean "demand" or "desire". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (the former President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52, at [54]: "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'."
In Boettcher v Driscoll (2014) 119 SASR 523, at 530; [2014] SASC 86, at [41], David J added: "'Need' is not so synonymous with 'want' such that the two are interchangeable."
Sackville AJA pointed out in Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297, at [84], that "the assessment of an applicant's needs is not a mechanical process. In Andrew v Andrew, Allsop P observed that "[a]ccepted and acceptable community values permeate or underpin many, if not most, of the individual factors in s 60(2)". That observation applies to the concept of "financial needs" embodied in s 60(2)(d) of the Succession Act. The needs of a person depend on a range of factors that will vary from case to case. Some of those factors, such as the person's age and earning capacity, are specifically mentioned in s 60(2). Other factors, such as the person's financial or non-financial responsibilities to family members, or the standard of living which the deceased encouraged the person to enjoy, are not expressly identified in s 60(2) of the Succession Act".
As Callinan and Heydon JJ emphasised in Vigolo v Bostin, at [122], the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined. In this regard, the assessment of what constitutes "adequate provision" for the "proper maintenance" of the person seeking provision is to be assessed not simply by an entirely objective assessment, in monetary terms, of alleged needs.
If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made.
(The question of the process by which the Court is required to implement s 59(1)(c) and s 59(2) of the Act, revived by the Court of Appeal in Sgro v Thompson, has been compendiously dealt with by Robb J in Maynard v Maynard [2018] NSWSC 1961 at [121]-[163].)
I shall adopt the approach that I referred to in Vidler v Ivimey [2013] NSWSC 1605, in which I considered, in some detail, the history of this controversy to that point in time at [38]-[40], and [68]-[84] and concluded at [84]: "Perhaps, the way to approach the matter is simply to refer to the Act containing "twin tasks": Goodman v Windeyer, per Gibbs J, at 502, being the jurisdictional question and the discretionary question, with one task overlapping, to some extent, with the other."
The questions posed arise under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made involves an exercise of discretion in the accepted sense. The fact that the Court has discretion means that it may refuse to make an order, even though the question regarding inadequacy of provision has been answered in the applicant's favour.
Section 60 of the Act provides: "(1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person - the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
It can be seen that s 60(2) enumerates 16 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, at [37], as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380, at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the court considers relevant", for the purpose of determining whether the applicant is an "eligible person", whether a family provision order should be made, and if so, the nature of any such order. There is no mandatory command to take into account any of the matters enumerated. In the context of the section, "may" does not mean "must".
In Chapple v Wilcox (2014) 87 NSWLR 646, at 649; [2014] NSWCA 392, at [7], Basten JA wrote: "Section 60 of the Succession Act spells out the matters which the court may have regard to in determining whether the claimant 'is an eligible person' and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the 'nature of any such order', which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b)."
The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. None of the matters listed are, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.
The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.
A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).
Leaving 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.
In In re the Will of FB Gilbert (dec'd) (1946) 46 SR (NSW) 318, at [321], Jordan CJ described "disentitling conduct", in the context of s 3(2) of the Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW), as "character or conduct relevant to the purposes which the 1916 Act is intended to serve, for example, misconduct towards the testator, or character or conduct which shows that any need which an applicant may have for maintenance is due to his or her own default".
There is no equivalent provision that refers to character or conduct such as to "disentitle" the applicant to the benefit of a family provision order. Character and conduct may be considered under s 60(2)(m) of the Act, which is in broader terms, without employing the word "disentitling". As I have written in other cases, the Act requires the Court to consider the totality of a relationship: Fulton v Fulton [2014] NSWSC 619, at [395]-[398]; Hinderry v Hinderry [2016] NSWSC 780, at [120]-[124]; Page v Page [2016] NSWSC 1218, at [112].
Section 65(1) of the Act requires the family provision order to specify: 1. the person or persons for whom provision is to be made, and 2. the amount and nature of the provision, and 3. 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 4. any conditions, restrictions or limitations imposed by the Court.
The Court's order 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).
Section 66 of the Act sets out the consequential and ancillary orders that may be made.
Unless the Court orders otherwise, any family provision order under the Act takes effect as if it were a codicil to the Will (s 72(1)(a) of the Act).
Whilst fully contested applications in small estates should be discouraged, because the costs tend to become wholly disproportionate to the end result, there is nothing in the Act that excludes the possibility that orders for further provision be made from a small estate: Morris v Smoel [2014] VSC 32, at [68]. The Court must still consider all the relevant circumstances before a decision is made: Re Coventry (Deceased) [1979] 3 All ER 815, at 820-821; Alcock v Cooper [2010] SASC 167, per Lunn M, at [39].
Yet, in small estates particularly, the court should be careful not to foster the proposition that obstinacy and unreasonableness will not result in an order for costs: Dobb v Hacket & Ors (1993) 10 WAR 532, at 540. Bearing in mind the conclusion reached regarding notional estate, this is an estate with a small value.

[18]

Some Additional Principles

Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges, and I, have repeated them in many cases under the Act.
The Court's discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales, per Dixon CJ, at 19; McKenzie v Topp [2004] VSC 90, per Nettle J, at [63].
Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve "an overall fair" division of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants.
As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186, at [5]: "Fairness and equality are not touchstones for relief under the Succession Act."
In Stott v Cook (1960) 33 ALJR 447, at 453-454, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work 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."
Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales, at 19, commented upon the consideration that was to be given to the deceased's wishes: "The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning. The Court is given not only a discretion as to the nature and amount of the provision it directs, but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court."
In Vigolo v Bostin, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained: "It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification."
In Goodsell v Wellington [2011] NSWSC 1232, at [108], I also noted that: "Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated."
Of course, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.
In all cases under the Act, what is adequate and proper provision is necessarily fact specific: Sgro v Thompson, per White JA, at [67].
The size of the estate is a consideration in determining an application for provision. However, its size does not justify the Court in re-writing the deceased's Will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327, at [41]; Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35, at [67].
In relation to the claim by Margaret, being a claim for provision by an adult child, I have set out the following principles in many other cases, which are also useful to remember: 1. The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. 2. 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… [i]t 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, child up in a position where she or he 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": Taylor v Farrugia [2009] NSWSC 801, at [57]; McGrath v Eves [2005] NSWSC 1006; Kohari v Snow [2013] NSWSC 452, at [121]; Salmon v Osmond [2015] NSWCA 42, at [109]. 3. Generally, also, "the community does not expect a parent to look after her, or his, children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute": Taylor v Farrugia, at [58]. 4. 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) [1981] 2 NSWLR 532, at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37, at 45; Taylor v Farrugia, at [58]. 5. 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, at [179]-[182]; Crossman v Riedel [2004] ACTSC 127, at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are 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]. 6. 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.
A very similar statement of these principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275, at [111], was cited with approval in Chapple v Wilcox at [21]; and at [65]-[67]; and was referred to, with no apparent disapproval (although in that appeal there was no challenge to the correctness of those principles), in Smith v Johnson at [62].
The role of the Court is not "to address wounded feelings or salve the pain of disappointed expectations" that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep).
In Foley v Ellis, at [88], Sackville AJA noted that Singer v Berghouse "strongly suggests that the Court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act".
Neither Fiona nor Matthew, who are the most significant beneficiaries, is an applicant for provision. Neither has to prove an entitlement to the provision made in the deceased's Will for her, or him, respectively, or otherwise justify such provision. Nor does either have to explain the decision by the deceased to make the provision that she did for each of them in her Will.

[19]

Qualifications on "Principles"

As long ago as 1980, in White v Barron, at 440, Stephen J wrote: "[T]his jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application."
As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian, I do not intend what I have described as "principles" or "general principles" to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.
It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. As Lindsay J wrote in Verzar v Verzar, at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."
The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox, by Basten JA, at [18]-[20], and by Barrett JA, at [66]-[67]; in Burke v Burke [2015] NSWCA 195, at [84]-[85]; and Yee v Yee, at [172]. They must be remembered.

[21]

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

As earlier stated, Margaret is a child of the deceased. She gave evidence that she lived with her parents at the Padstow property until she was 20 years old. On occasions, thereafter, she moved back to their home for short periods of time.
In my view, the deceased considered a number of aspects of Margaret's conduct to be distressing, particularly, the manner in which she had looked after Fiona and Matthew, when they were young; her theft of money; and her rejection of accommodation at a subsidised rental, which had been offered, primarily to assist her. The written statements, on oath, made by the deceased demonstrate her disappointment with such conduct and explain, from the deceased's point of view, her reasons for making no provision for Margaret.
I do not accept Margaret's description of their relationship as close and loving. Rather, I am satisfied that the relationship between them, over many years, was somewhat turbulent, and, otherwise, strained.
I accept Bede's evidence that during the 11 years he had known the deceased, she had never told him of visits by Margaret, although he had enquired on many occasions. Nor had the deceased asked him to contact Margaret, at any time, as she said she was embarrassed by Margaret's behaviour. The deceased had told him that "Margaret had a long history of thieving and, in most circumstances where this thieving occurred … she and Kevin knew the victims". She had also told him of her demands for money and the threats made to take Fiona and Matthew away.
I also note the deceased's instructions to Mrs McDonald, over the years, to not disclose her contact details, or telephone number, to Margaret because she had been harassed by Margaret in the past and because she did not want to have further contact with Margaret.
I am satisfied that there was little relationship between Margaret and the deceased after 2005, and that their contact, face to face, and otherwise, after 2005, was minimal. By way of further example, I note that Margaret was not invited to attend the deceased's 80th birthday celebration in 2014.

[24]

(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

Margaret currently lives in a two bedroom unit and pays subsidised rent to Housing NSW of $163 per week.
She is unemployed and appears to have been for some years. Initially, she gave evidence that she received a Disability Support Pension from Centrelink of about $144 per fortnight, from which a payment of $110 is deducted for a NSW Government Housing Payment. Also, instalments of $20 are deducted.
(In evidence, there is a letter dated 16 June 2017, from Centrelink, addressed to the Plaintiff, under cover of "Your Disability Support Pension". This letter states that the Plaintiff's annual income used to calculate her payment is "$43,036".) Of course, that letter is not very relevant as the financial circumstances of the applicant must be considered at the date of the hearing.
Originally, also, Margaret gave evidence that she received $1,100 each fortnight from Allianz Insurance, by way of a Workers Compensation payment. Although, in her affidavit sworn 29 March 2018, at [98], she stated that she "no longer" receives Workers Compensation payments. (During this period, her payments from Centrelink were said to have increased to about $874 per fortnight.)
However, in her most recent updating affidavit of 1 November 2018, Margaret confirmed, at [66], that she did receive $1,191 per fortnight by way of a Workers Compensation payment, which she suggested "will only be paid for a period of approximately 18 months as they will cease once I am 66.5 years old" and that her Disability Support Pension from Centrelink has been reduced to about $144 per fortnight: at [67]. Her net income, she agreed, is about $2,697 a month and that her monthly expenditure was about $2,351. She accepted that she had a surplus of income of about $346 per month: Tcpt, 11 December 2018, p 99(27).
In Margaret's affidavit sworn 18 August 2017, she gave evidence, at [64], that she had received $223,000 as a lump sum compensation payment. That amount has been depleted since it was received. In Margaret's affidavit sworn 1 November 2018, at [70]-[72], her assets currently include cash in bank, presumably being the amount remaining from the lump sum payment, (St George Maxi Saver) ($118,490) and cash in bank (Westpac account) ($483). Therefore, her net assets are approximately $118,973. (She did not disclose any interest earned on this capital sum.)
Margaret confirmed in her affidavit of 1 November 2018, at [68]-[77], that her debts include a debt owed to Centrelink ($41,654), a personal loan ($36,862), approximately $12,000 in outstanding legal fees (not including these proceedings), and a credit card debt of approximately $9,644. Her current debts are about $100,160. Therefore, her net position is about $18,813.
(She did not disclose until the hearing that she had entered into a plan to repay the Centrelink debt at the rate of $10 per week. She did not disclose how the credit card debts had been incurred.)
Margaret gave evidence, at [72] in her affidavit sworn on 1 November 2018, that her regular expenses including rent, health insurance, contents insurance, food, transport, utilities, ironing, physiotherapy and domestic assistance, after receiving government subsidies, are approximately $2,839 per month (or $34,066 per year).
In her affidavit in chief, at [77]-[82], Margaret stated her needs as follows: "I have been recommended that a new home, with better access and facilities would be more suitable to my needs and especially due to my limited mobility. This cannot be provided to me by housing commission as they do not have any properties available in my present area (Glebe), where I need to stay in order to keep within reasonable distance to my doctors and the hospital. I have therefore concluded some searches on the price of properties in the area I currently live or surrounding and note that on average a two bedroom townhouse costs between $1.1 million and $1.5 million. … My bank has advised me that I am not a good candidate for a home loan considering my current income and inability to work and may not be able to obtain a loan. I have also been advised to hire a carer for at least 1.5 hours a week, the cost of which is expected to be about $100 a week. I have also started learning how to drive so that I can get around easier. I am therefore in need of funds to purchase a vehicle … I am also unable to return to work and my insurance payment may soon be reduced due to changes to regulation. I am therefore in need of support to maintain myself generally as I get older …"
In her updating affidavit, at [74], she then stated: "My unit has too many stairs for [the] installation of a ramp, no handrail adjacent to the steps leading out to the backyard and a timber floor in which shoes can get caught. Due to this timber floor, I had a fall in early October 2018 and required [a] hip replacement. I have been advised by Housing NSW that the head landlord will not agree to installation of aids for my limited mobility."
As such, she indicated she wished to improve her living condition to a property in Glebe "better suited for my limited mobility and close to my GP, specialist, psychologist and physiotherapist".
She also has given evidence that she has "difficulty preparing meals and [has] been told to make arrangements with meal providers to assist".
Bearing in mind the nature and value of the deceased's estate, it is clear that most of these so-called "needs" could not be met out of the estate even if the Court were satisfied that the deceased had an obligation or responsibility to meet them (which, in my view, she did not have).
Margaret's "needs" are now set out in paragraphs [74]-[77] of her affidavit sworn 1 November 2018. She seeks provision for a rental subsidy of $600 per week and at paragraphs [78]-[86], her need of funds to cover medical expenses and to improve her quality of life. She states that she requires a mobility scooter at a cost of about $6,500 and wheelchair ramps (Ex. PC2). (She did not reveal that she is being assessed to purchase a mobility scooter at a discounted rate.)
In oral submissions at the hearing, counsel for Margaret submitted that she should receive, by way of provision, a lump sum of $200,000, either paid out of the estate absolutely, or paid, as to $100,000, by way of a capital sum, with a further $100,000 held on trust for Margaret's life, with the remainder going to Matthew: Tcpt, 12 December 2018, p 232(6-38).
As earlier stated, Fiona did not give evidence of her financial resources (including earning capacity) and financial needs, both present and future. Nor did either of Mr or Mrs McDonald.
Matthew did give such evidence. Matthew is aged 41 and his wife, Angela, is 39 years of age. They own a property at Bulahdelah said to be worth $435,000, subject to a mortgage of $224,000. He has a car ($6,500), superannuation ($77,856), and other assets with a modest value ($10,900). He is endeavouring to start up a farming business.
Matthew and Angela both have an earning capacity. Matthew had gross earnings of $58,882 for 2014/2015; $59,215 for 2015/2016; and $41,523 for 2016/2017. Angela is a Retail Manager earning about $53,941 per year.
Matthew set out his "needs", but, in my view, this is more a "wish list" than what might be regarded as genuine needs. Clearly, however, the provision made for him, by the deceased, in the Will, would go some way towards paying off his share of the mortgage and providing a capital sum for the exigencies of life. (It is to be remembered that he no longer seeks additional provision out of the deceased's estate.)

[26]

(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

Margaret suffered a fall in 2005 which resulted in a fractured elbow and trauma to her right shoulder. She has had a right hip replacement in the late 1990's and a left hip replacement in 2015. She has been treated with opioid analgesics since 2005.
Margaret was referred to a Psychologist in June 2016 "for treatment of her depression and anxiety in the context of family related issues". At least in part, the issues related to her desire to see Emmett, and to the litigation in that regard.
There is a copy report dated 15 June 2017 from the Psychologist, a subsequent report dated 18 January 2018, but no updating report.
Margaret gave evidence that in the near future, she will be required to undergo surgeries to both of her knees, her shoulder and her lower back. However, in her affidavit sworn 29 March 2018, at [109], she stated: "I have been told that I will need surgeries for my current medical conditions. These include: (a) right shoulder surgery … should there not be any complications; and (b) left hip replacement …"
There is also a report dated 13 May 2016 relating to work related injuries and disabilities suffered by Margaret in 2005. The report was updated by a report dated 21 April 2017 and a further report dated 4 October 2018.
In her affidavit of November 2018, Margaret says that she lives in pain every day due to her injuries. The most recent medical report from Dr Baig, confirms that Margaret has had surgical correction of her right elbow and shoulder joints. She has advanced arthritis of her left knee with persistent pain and stiffness. She has had an injury to her right knee some years ago with advanced osteoarthritis, with severe pain, stiffness and a decreased range of movements. She suffers from lumbar spondylosis, which causes secondary paid and aggravation of arthritis in the lumbosacral spine. The chronic pain and anxiety has caused anxiety and depression over the years. These disabilities are permanent and impact significantly on her functional capacity and psychosocial functioning in the domains of mobility and self-care.
I am satisfied that Margaret has no earning capacity as a result of her age and the injuries and disabilities from which she suffers.

[37]

Determination

Having established eligibility, and that the proceedings were commenced within time, relevantly, the Court must determine whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life, of Margaret, has not been made by the Will of the deceased.
What is written below should be read as a continuation of what has been written above. In addition, I have regarded the factual matters, so far as they are relevant, to the circumstances set out below.
There was no provision in the deceased's Will made for Margaret. However, this does not, automatically, mean that she will have satisfied what has been said to be the jurisdictional threshold. A person may fail to satisfy the description of being "left without adequate provision" even though no, or little, provision is made for her in the deceased's Will.
Yet, judged by quantum, and looked at through the prism of her financial and material circumstances, adequate provision for Margaret's proper maintenance or advancement in life could be seen as not having been made by the Will of the deceased. As stated above, the test established by s 59 of the Act has regard not only to what is "adequate" by reference to the applicant's needs, but also to what is "proper" in all the circumstances of the case.
The Court is required to make an assessment of Margaret's financial position, the size and nature of the deceased's estate, the relationship between Margaret and the deceased, the competing claims, particularly of Fiona and Matthew, as other persons who have a legitimate claim upon the bounty of the deceased, and the circumstances and needs, particularly, of each of them: see, for example, McCosker v McCosker, at 571-572; Singer v Berghouse, at 210; Vigolo v Bostin, at [16], [75], [112]; and Tobin v Ezekiel, at [70].
A wise and just parent will recognise that disharmony between parent and child is almost inevitable and that in family relationships, hurts are inflicted, or suffered, sometimes consciously, and sometimes unconsciously. Regrettably, this is part of family life. Yet, the deceased's statement of the reasons for making no provision for Margaret must also be remembered and given significant weight. The deceased reviewed her testamentary intentions from time to time, and the effect of her last two Wills was to decrease, to the point of extinction, the provision made for Margaret.
Taking all of the matters into account, I have come to the conclusion that adequate provision for Margaret's proper maintenance and advancement in life was not made by the Will of the deceased. Whilst her conduct over a significant period of time, and particularly in the period after 2005, will restrain the amplitude of provision, her current circumstances and the fact that she has been unable, throughout her life, to accumulate any capital, to acquire ownership of property, or to establish a fund to meet contingencies as she gets older, are such that some modest provision out of the estate of the deceased should be made out of the deceased's estate for her. (The lump sum that she has is as a result of compensation she has received.)
Furthermore, the value of the estate, whilst modest, is sufficient to make modest provision for all of the persons to whom the deceased owed some form of testamentary duty.
The more difficult question then arises, namely what provision "ought to be made for her maintenance, education or advancement in life", having regard to the facts known to the Court. This involves "an instinctive synthesis that takes into account all the relevant factors and gives them due weight": Grey v Harrison, at 367. It is not a scientific, or arithmetic, exercise and it is often difficult to articulate the factors which contribute to that "instinctive synthesis". However, similar considerations as are set out above often arise.
Having considered the matters I am required to consider, and remembering that what is "proper" requires an evaluative judgment that has regard to all relevant circumstances, not merely financial circumstances, I am satisfied that Margaret should receive a capital sum to add to the amount of capital that she has, for exigencies of life.
In coming to the conclusion on the quantum of the provision to be made for Margaret, the deceased's entitlement to testamentary freedom, and the fact that she made a detailed, and sworn, statement setting out the reasons she had for making no provision for Margaret is, of course, important and has been given significant weight in reaching my conclusions.
Nor have I forgotten that, generally, the community does not expect a parent to look after an adult child for the rest of that child's life and into retirement.
Furthermore, the amount of provision that I consider adequate and proper will not impact upon the other pecuniary beneficiaries, but will reduce the residue of the estate passing to Fiona, who has not given evidence of her financial resources and needs. However, I have weighed the very substantial contribution, as a granddaughter and her claim upon the bounty of the deceased in reaching my conclusion on the quantum of provision.
In coming to this conclusion on quantum, I have taken into account, amongst other things, the value of the estate; the competing claim of all of the beneficiaries; the fact that Margaret, at the date of hearing, has no earning capacity and has no person with responsibility to assist in maintaining her; and that whilst she does have a capital sum, which provides her with a small income to supplement her other income. She also has significant health issues.
The provision for the proper maintenance and advancement in life of Margaret that ought to be made, in my view, is by way of a lump sum of $45,000. This will enable her to pay for the mobility scooter and pay off her personal loan, without reducing, to any significant degree, the capital that she has. If she is able to pay off her personal loan, her available income should also increase.
I shall hear the parties on when the lump sum should be paid.
Fiona will, of course, receive, the balance of the residue of the estate, which, when added to the balance of the proceeds of sale held in her and Bede's joint account, will provide a reasonable lump sum to her. The family unit will also have the benefit of the repayment of funds expended during the deceased's lifetime.
I shall delay the making of final orders until the argument on the question of costs is heard and determined. The matter will be listed for that argument when these reasons are delivered. Meantime, the legal representatives should consider the form of orders to be made and provide a draft to the Court for consideration.
The Court: 1. Directs the parties to bring in Short Minutes of Order to reflect the reasons. 2. Orders that the matter be adjourned to a date mutually convenient to the Court and the parties, to enable the parties to agree upon the final form of orders, and to determine any orders for costs.

McDonald v O'Connor

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Judgment (38 paragraphs)

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