McGuire bht McGuire v New South Wales Trustee and Guardian

The nature and value of the deceased's estate

1. The evidence before the Court, by way of an updating affidavit of assets and liabilities of 8 August 2023, was as follows: 1. all assets in the estate have been realised, except for the deceased's unit at 7/4 Huntingdale Road, Lismore NSW (the Lismore Unit), which had an estimated value, based on an agent's listing price range, of $329,000 to $349,000; 2. adopting an estimate of $339,000 for the Lismore Unit, and adding that sum to the balance of $472,053.82 in the NSW Trustee and Guardian Account, produces total assets of $811,053.82; 3. all liabilities in the estate have been paid except for a number of identified liabilities estimated to be in the amount of $23,187.39; 4. none of the estate has been distributed by the Defendant, except for an amount of $598.29 advanced to Sharlene to pay for her flights to attend the hearing; 5. no legal costs have been paid to the Defendant; and 6. the amount available for distribution from the estate, using the estimate for the Lismore Unit set out above, and after payment of costs of the administration of the estate and the Defendant's commission is approximately $787,903.72 less the costs of these proceedings.
2. The Defendant estimated its total costs of the proceedings, to the conclusion of a two-day hearing, to be $98,586.00.
3. Assuming payment of the Defendant's costs on an indemnity basis, and before any consideration of the Eileen's costs, that would leave a net distributable estate of $689,317.72. Eileen's solicitor estimated her costs to be $96,800.00 on an indemnity basis, and $85,360.00 on the ordinary basis.
4. The Defendant rightly described the estate as a "very small estate". In saying that, I do not doubt that the sums involved are very significant for the individuals concerned. However, it is regrettable that the matter proceeded to a contested hearing, with the total costs incurred representing approximately a quarter of the amount available for distribution from the estate. In making this observation, I do not mean to suggest that any legal practitioner has behaved otherwise than appropriately and in their clients' interests in the course of the proceeding.

The issues for determination

1. Pursuant to s 59(1)(a) of the Act, it is necessary, in order for a family provision order to be made, for the Court to be satisfied that the person in whose favour the order is to be made is an "eligible person".
2. Section 57(1) of the Act provides an exhaustive list of the "eligible persons" who may apply to the Court for a family provision order in respect of the estate of a deceased person. The Plaintiff's primary position was that she fell within s 57(1)(b) of the Act, being "a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death".
3. The term "de facto relationship" is not defined in the Act. Section 21C(2) of the Interpretation Act 1987 (NSW) provides that, for the purposes of any Act, a person is in a "de facto relationship" with another person if: "(a) they have a relationship as a couple living together, and (b) they are not married to one another or related by family."
4. The requirement in s 21C(2)(b) was satisfied. However, the Defendant disputed that the evidence established that the Plaintiff and the deceased had "a relationship as a couple living together".
5. Section 21C(3) provides as follows: "In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case-- (a) the duration of the relationship, (b) the nature and extent of their common residence, (c) whether a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship. No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple."
6. It is plain from the closing words of s 21C(3) that the matters set out in paragraphs (a)-(i) are not prerequisites, any or all of which must be satisfied in order to establish that the persons in question have a relationship as a couple. Instead, the determination whether that relationship exists must be made having regard to "all the circumstances of the relationship", including (to the extent that they are relevant in a particular case) the circumstances specified in those subparagraphs. Those paragraphs operate to provide reminders of matters that possibly might be relevant in deciding the question whether the parties lived in a de facto relationship, but do not state the essence of such a relationship which is, as set out in subsection 21C(2), having a relationship as a couple living together: Piras v Egan [2008] NSWCA 59 at [146] (Campbell JA, with whom Giles and Tobias JJA agreed), with reference to the definition of "de facto relationship" in s 4 of the Property (Relationships) Act 1984 (NSW), which was in substantially similar terms to s 21C of the Interpretation Act 1987 (NSW).
7. In Indjic v Stojanovic [2020] NSWSC 470 at [131], Hallen J described the circumstances set out in s 21C(3) as inclusive but not exhaustive, with none of them being of decisive significance, noting that all of them, however, "suggest a continuing course of conduct and behaviour, not an event at a fixed point in time". His Honour continued (at [132]) that, ultimately, the matters in s 21C(3) should be used to assist in determining whether the parties were in "a relationship as a couple", and should not overshadow that central concept. His Honour also noted (at [145]-[146]) that the determination of the existence of a de facto relationship is "essentially impressionistic", with the Court often being required to assess multiple pieces of circumstantial evidence: "If there are sufficient pieces of evidence, when viewed cumulatively, and with common sense and proper reasoning, which satisfy the finder of fact that the relationship is a de facto relationship then the statutory test is met".
8. Eileen's counsel submitted, in the alternative, that she was an "eligible person" within the meaning of s 57(1)(e) or (f) of the Act.
9. Section 57(1)(e) of the Act provides that the following is an eligible person: "a person-- (i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member"
10. As regards s 57(1)(e)(i), it was common ground that Eileen was, for a period of at least 14 years up to the deceased's death, a member of the household of which the deceased person was a member. However, as regards s 57(e)(ii), it was disputed that Eileen "was, at any particular time, wholly or partly dependent on the deceased person". This requirement was considered in Chisak v Presot [2022] NSWCA 100 at [41]-[58] (White JA, with whom Macfarlan and Gleeson JJA agreed), where his Honour set out differing views which have been expressed in the authorities regarding its scope and application. His Honour held that it is not correct that dependency is limited to dependency on the provision of financial or other material assistance (at [46]) and doubted that it is legitimate to read the phrase "partly dependent" as requiring that the dependency be "significant" as opposed to "more than minimal" (at [57]).
11. Section 57(1)(f) of the Act provides that the following is an eligible person: "a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death."
12. Section 3(3) of the Act defines a "close personal relationship" as "a close personal relationship (other than a marriage or de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care". As the words in parentheses make clear, this form of relationship and a de facto relationship are mutually exclusive. Assuming that the relationship between Eileen and the deceased was found not to be a de facto relationship, the only issue, so far as the definition of a "close personal relationship" was concerned, was whether "one or each of" Eileen and the deceased provided "the other with domestic support and personal care" (noting it was not suggested that the exceptions in s 3(4) of the Act applied). These requirements are cumulative. That is, the persons in question must be living together at the same time as one, or each, provides to or receives from the other both domestic support and personal care: Sadiq v NSW Trustee & Guardian [2015] NSWSC 716 at [242] (Hallen J). The notion of "personal care" is not confined to matters of physicality, and may extend to emotional support: Hayes v Marquis [2008] NSWCA 10 at [87] (McColl JA, with whom Beazley JA agreed).

Evidence of the Plaintiff

1. As noted above, it was common ground that Eileen is a person under a legal incapacity, and that this had been the case since at least January 2023 when the Summons was amended, with the proceedings being continued from that point in time by her son as her tutor. Eileen had previously sworn affidavits on 27 June 2022 and 1 September 2022. The Defendant did not object to those affidavits being tendered, without Eileen being required for cross-examination (subject to specific objections, which were made and ruled upon). However, in adopting that course, the Defendant made clear its position that submissions would be made regarding the weight that could be attached to those affidavits, having regard to evidence concerning Eileen's capacity at the time those affidavits were sworn.
2. In particular, the Defendant relied on the findings set out in the report of Dr Rachael Jones, dated 27 April 2022, which was annexed to Eileen's affidavit sworn on 27 June 2022. Dr Jones is a specialist geriatrician. Eileen was referred to Dr Jones by her GP for "ongoing assessment of cognition". Dr Jones examined Eileen on the date of her report. Eileen's son, Leslie McGuire, and her granddaughter, Zoe Vassallo, also attended this meeting. Leslie McGuire reported to Dr Jones that "concerns with [Eileen's] short term memory have been evident for some years, however, in recent years, this has declined, repetitiveness in conversation has increased". He also stated that a "dip in cognition was evident amongst [Eileen's] children in 2018", when she was treated for oesophageal cancer. Her mood was reported to have "declined considerably over the past year with the death of Vic", and in this setting, "Leslie acknowledges that short term memory loss has been more pronounced". The Defendant placed particular reliance on the findings reported in the "Cognitive Assessment" section of Dr Jones' report, including that, in 2017, Eileen had "Poor STM" (short term memory) and that as at April 2022, Eileen recorded the following score: "Memory 12/26".
3. There is no material before me to indicate the significance of such a score, or whether a decline in short term memory would affect Eileen's capacity to give evidence regarding the duration and nature of her relationship with the deceased over the course of some 18 years prior to 2022.
4. I am mindful of the fact that the Defendant was not able to test the evidence, but note that the Defendant did not seek to identify any specific parts of her evidence the reliability of which might be affected as a result of an impairment of short term memory.
5. In any case, as outlined below, I have not found it necessary, in determining the eligibility issue, to rely on any part of Eileen's affidavit which was not corroborated or supported by other evidence.

Evidence concerning relationship

1. Sharlene gave evidence that Eileen and the deceased met in around 2004. According to Bradley, they "started going out together in or around 2005".
2. Although there was some dispute on the evidence about whether Eileen moved into the Lismore Unit in 2005, 2006 or 2007, it was common ground that she lived there, rent-free, from the time she moved into the unit until after the deceased's death in 2021.
3. Although the Lismore Unit was a two-bedroom unit, the deceased and Eileen shared a bedroom from the time that she began living there.
4. Eileen's grand-daughter, Zoe Vassallo, lived in Lismore throughout the time from when Eileen met the deceased until the deceased's death, other than for a brief period from 2019 to 2020, when Ms Vassallo was in Armidale as a student. She gave unchallenged evidence that she visited Eileen and the deceased, whom she called "Poppy Vic", nearly every day, and stayed with them 1-2 nights per week, and they all went to family events together. She described Eileen and the deceased as having a normal married like relationship. She observed them sharing in domestic activities and chores, and looking after each other, including the deceased showering Eileen and ensuring that she took her medication.
5. Leslie McGuire, Eileen's son, gave unchallenged evidence that Eileen and the deceased came to his home for lunches, dinners, family events and to play cards, that they attended his daughter's birthdays and graduation, as well as Christmas events, that they always came and left together, and that they were always very loving towards each other and held hands. Mr McGuire also gave unchallenged evidence that the deceased told Mr McGuire he regarded him as a son, and that Mr McGuire likewise regarded the deceased as a father.
6. Another son of Eileen, Timothy McGuire, gave unchallenged evidence that the deceased and Eileen attended family events together, such as Christmas, birthdays and Easter, and that when he spent time with them, they appeared as a happy and loving couple. Timothy and Leslie McGuire both gave evidence that Eileen did not drive, and had not done so for many years, and relied on the deceased to drive her around.
7. Sharlene gave evidence that she and her children often met her father somewhere between Lismore and her residence on the Gold Coast, and this "always involved Eileen".
8. There were a number of photographs in evidence, including some which were posted by the deceased, Bradley or Sharlene to social media sites over a number of years, which showed Eileen and the deceased sharing family outings, and embraces, with Sharlene, Bradley and their children. There were also a number of photographs in evidence which showed Eileen and the deceased embracing.
9. Sharlene also gave evidence that the deceased helped Eileen deal with family issues involving Eileen's daughter, and that Eileen and the deceased travelled together to the funeral of the deceased's brother.
10. Eileen and the deceased went on a number of cruises together, including a cruise on the Queen Mary 2 to India, Hong Kong and Dubai, a cruise to the Caribbean, a cruise to New Zealand and a cruise, with Ms Vassallo, from Sydney to Tasmania and back again. There were photographs of a number of these cruises in evidence.
11. Leslie McGuire, who acted as a financial adviser for the deceased, gave unchallenged evidence that the deceased said that he managed Eileen's finances for her, and in particular he managed financial decisions and, when they went on holidays together, managed their payments.
12. There was unchallenged evidence by Pauline Fergus, who has been a friend of Eileen since 2008, that when they first met, Eileen told her "I live with my partner Vic in Lismore". Subsequently, Ms Fergus saw Eileen and the deceased on occasions for dinner and coffee. Ms Fergus deposed that Eileen told her, sometime after 2014, that she and the deceased had become engaged, and were planning to get married. Eileen's son, Timothy McGuire, also gave unchallenged evidence to this effect. This reflected evidence that Eileen herself gave. I note that there was no evidence that the deceased told his children that he was engaged. I do not need to resolve whether any plans for marriage were in fact made. I find it likely, in light of the evidence mentioned above, that the deceased did express to Eileen an intention to marry her.
13. When Eileen was diagnosed with cancer, the deceased looked after her. Leslie McGuire recounted that Eileen told him at this time that the deceased cared for her through day and night and took her to doctor's appointments. The deceased telephoned Mr McGuire multiple times a week throughout this period to update him on Eileen's treatment, and told him that the deceased had taken on the role of cleaning and cooking, which had previously been done by Eileen. Again, this evidence was unchallenged.
14. In 2021, the deceased was found to have kidney stones and was later diagnosed with cancer. He was admitted to hospital, and remained there until his death. Eileen visited him in hospital every day, and stayed with him overnight in a bed beside his hospital bed. Sharlene gave evidence that members of Eileen's family also visited the deceased in hospital, including Leslie McGuire, his wife and children, and Belinda McGuire and her daughter, Ms Vassallo.
15. Significantly, when Sharlene and Bradley came to organise the deceased's funeral, they approved a funeral notice which included the following text: "WARREN Victor Reed Passed away peacefully at St. Vincent's Hospital Lismore. Aged 77 years. Loved partner of Eileen. Adored father of Brad and Sharlene. Cherished poppy of Ava, Luke, Claire, and Sophie."
16. The notice followed the familiar format of naming the partner of the deceased first, followed by his children and then his grandchildren.
17. When taken to this document, Bradley confirmed that he reviewed it in draft, was aware of what it said about Eileen, and corrected some points in the draft regarding the deceased's date of birth and the names of the grandchildren, but he did not change the reference to Eileen, and that he was comfortable with what was published.
18. Sharlene suggested that she and Bradley settled on the text of the announcement to "keep the peace with everyone", but did not suggest that what was said about Eileen was inaccurate. Instead, she gave the following evidence: "Q. "Loved partner of Eileen"; you see that in‑‑ A. Yes. Q. And you directed, together with Brad, that that be included, because you considered that your father was the loved partner of Eileen? A. Yes. Q. And you accept that for many years your father was the loved partner of Eileen? A. Yes. Q. And you accept that when your father passed, he was still the loved partner of Eileen? A. Yes."

Eligibility under s 57(1)(b)

1. The Defendant submitted that Eileen had not discharged her burden to establish that she was in a de facto relationship with the deceased, and in particular urged that limited weight should be given to the evidence of Eileen for the reasons previously noted.
2. However, the overwhelming weight of the evidence outlined above, including the unchallenged evidence regarding the relationship that was given by Ms Vassallo, Ms Fergus and Eileen's sons, as well as the evidence of Sharlene and Bradley, together with documentary evidence such as the various family photographs and the funeral notice, support the conclusion that they had a relationship living as a couple together.
3. In reaching that view, I have taken into account the factors in s 21C(3), insofar as there is evidence concerning such matters, in particular:

• para 21C(3)(a): the duration of the relationship - Eileen and the deceased met in 2004, started going out together in 2005, and lived together continuously from at least 2007 until his death in 2021;
• para 21C(3)(b): the nature and extent of their common residence - Eileen and the deceased lived in the Lismore Unit, which was a two-bedroom unit, and shared a bedroom for the whole of the time they lived together;
• para 21C(3)(d): the degree of financial dependence or interdependence, and any arrangements of financial support, between them - the deceased told Leslie McGuire, his financial adviser, that he managed Eileen's finances for her, and in particular he managed financial decisions and, when they went on holidays together, managed their payments;
• para 21C(3)(f): the degree of mutual commitment to a shared life - Eileen and the deceased attended all significant family events together, as well as regular catch ups with each other's families; they went on numerous outings and holidays together; the deceased likely expressed his intention to Eileen that they be married; and they were at each other's side during serious illnesses;
• para 21C(3)(g): the care and support of children - Eileen and the deceased together cared for her granddaughter, Zoe Vassallo, from a young age, and she stayed with them 1-2 nights per week during her childhood;
• para 21C(3)(h): the performance of household duties - Ms Vassallo observed Eileen and the deceased sharing household duties. Eileen depended on the deceased for her transportation needs, and the deceased showered Eileen and took care of her when she was unwell, including cooking her meals and ensuring she took her medication;
• para 21C(3)(i): the reputation and public aspects of the relationship - Eileen told her friend, Ms Fergus, that the deceased was her partner, and she was described as the deceased's loved partner in his funeral notice, with Sharlene agreeing that this was an accurate description of their relationship. They went on outings together, and held hands in public; and there were various photographs taken, and published on social media (including on accounts of the deceased, Sharlene and Bradley), showing the deceased and Eileen embracing members of his family, and each other.

1. The Defendant relied on various matters to dispute that the statutory definition was satisfied, however such matters tended to be in the main equivocal and were not of such a nature as to displace the conclusion that Eileen and the deceased had a relationship as a couple living together, which arises from the evidence summarised above.
2. For example, the fact that Eileen and the deceased had separate Medicare cards, or that Eileen maintained a postal address at another property which she owned, says little about how each regarded their relationship, and may simply be indicative of a failure to take an administrative step that was open, but not necessary, to take once they began cohabiting. This cannot change the fact that they did cohabit for some 14 or so years, and lived and presented as a couple in that time.
3. The same may be said of the fact that Eileen was in receipt of a pension at a "single" rate, and does not appear to have informed Centrelink of her relationship with the deceased. Further, it is open to infer that her failure to do so might be explained by a desire on her part to receive a pension at the single rate, and in any case, the other evidence, to which I have referred above, establishes that she continued in a de facto relationship with the deceased until his death: cf Sun v Chapman [2022] NSWCA 132 at [134].
4. Likewise, the fact that, on a financing application dated 24 October 2016 in which the deceased stood as guarantor for Bradley, the deceased ticked a box "single" rather than "de facto" is of marginal significance. This may indicate only that the deceased did not understand the legal definition of "de facto" or did not himself think the use of the term appropriate for his relationship with Eileen, or that he did not want to disclose his relationship to the financier (including, potentially, because he apprehended that it might prejudice the assessment of his ability to stand as guarantor for his son's loan). However, whether or not the deceased and Eileen were in a de facto relationship is determined not by his understanding or use of the term, but by the application of the statutory definition to the evidence before the Court.
5. The Defendant also relied on the fact that the deceased could have, but did not, make a binding nomination in Eileen's favour in respect of his superannuation as indicating that the deceased did not regard her as his de facto partner, because otherwise he would have sought to make provision for her. However, the failure to make such a nomination might be equally consistent with her being the deceased's de facto partner, but his failing to make adequate provision for her. The failure of a deceased to make provision for a person cannot be determinative of whether their relationship was such as to make that person eligible to apply for a family provision order.
6. There was some evidence from the deceased's children that the deceased regarded himself as bound to care for Eileen as her health deteriorated. For example, there was evidence from Sharlene that, in around 2020, the deceased told her that he felt Eileen had become a burden, and that he could not "get out of this situation", and that he told Bradley that he felt "trapped" because Eileen "can't look after herself in her condition". However, a relationship of patient and carer is not inconsistent with a continued relationship of de facto husband and wife: Sun v Chapman at [69] (White JA). It is not uncommon for the physical or mental decline of one spouse to result not only in the dissipation of romance, but also in the other becoming a "carer": Sun v Chapman at [191] (Brereton JA).

Eligibility under s 57(1)(e) and (f)

1. Had I not been satisfied that Eileen and the deceased were in a de facto relationship at the time of his death, I would have concluded that they were in a close personal relationship at that time, and therefore she was an eligible applicant under s 57(1)(f) of the Act. In particular, the evidence establishes that the deceased provided Eileen with domestic support and personal care, which included showering Eileen, ensuring she took her medication, taking her to appointments, and performing household chores.
2. Given the findings set out above, it is not necessary to express a view on whether Eileen was also an eligible applicant within s 59(1)(e) of the Act, or the extent and nature of dependency which must be shown in order to come within that paragraph.
3. I proceed to deal with Eileen's application below on the basis that she is an eligible person pursuant to s 57(1)(b) of the Act.

Sections 59 and 60 of the Act

1. Section 59 of the Act relevantly provides as follows: "(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and (b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of eligible person in section 57 - having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. (2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made."
2. Section 59 is a jurisdictional provision. Section 59(1) of the Act specifies the conditions which must be satisfied in order for the power to make a family provision order to be enlivened, and s 59(2) specifies the scope of the power to make such an order where those conditions are met.
3. The conditions in s 59(1) are met in this case. Having regard to the finding that Eileen is an eligible person by reason of s 57(1)(a) of the Act, the condition in s 59(1)(a) is satisfied, and the condition in s 59(1)(b) has no application.
4. As regards the condition in s 59(1)(c), the Defendant conceded that, if I were to find that Eileen is an eligible person by reason of being in a de facto relationship with the deceased at the date of his death, this condition was also satisfied, since the deceased had made no provision for Eileen by his will.
5. Accordingly, the power to make a family provision order under s 59(2) is enlivened, and the issue that arises is what provision ought to be made for the maintenance or advancement in life of Eileen, having regard to the facts known to the Court at the time the order is made.
6. In Wild v Meduri [2023] NSWSC 113 at [1004], Hallen J noted that the Act does not stipulate any automatic entitlement to provision and, accordingly, it is clear that the Court has a discretion whether to make an order and as to the amount of any order that is made: "the Court is empowered to order such provision from the deceased's estate as the Court thinks fit, but the Court is not empowered to award more than what is 'adequate' provision for the applicant's 'proper' maintenance, education or advancement in life". The parties agreed on the relevant principles concerning the meaning of "adequate provision" and "proper maintenance, education or advancement in life", referring to the observations made in the following authorities: Verzar v Verzar [2014] NSWCA 45 at [39] (Meagher JA); (2014) 12 ASTLR 523; Vella v Vella [2020] NSWSC 849 at [20] (Williams J), summarising the principles as stated in Harris v Carter [2020] NSWSC 196 at [114]-[122] and [149]-[154]; Alexander v Jansson [2010] NSWCA 176 at [18] (Brereton JA, with whom Handley and Basten JJA agreed); (2010) 6 ASTLR 432; and Page v Hull-Moody [2020] NSWSC 411 at [125]-[147]. I do not repeat those principles here. I have taken them into account in exercising the discretion under s 59(2) of the Act.
7. Section 60 of the Act relevantly provides as follows: "60 Matters to be considered by Court (cf FPA 7-9) (1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining - … (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."
8. As is clear from the text of the provision, the matters set out in s 60(2)(a)-(p) are matters to which the Court "may" have regard. None is a prerequisite to the making of an order; none is given any precedence over any other; and there is no relative weighting as between them.
9. Section 61(1) of the Act provides that the Court may disregard the interests of any other person by or in respect of whom an application for a family provision order may be, but has not been, made, "other than a beneficiary of the deceased person's estate". No person other than Eileen has made an application for provision out of the deceased's estate. As noted above, the beneficiaries of the deceased's estate are Bradley and Sharlene. Accordingly, before considering the issue of what order for provision should be made in favour of Eileen, I address below the circumstances of each of Eileen, Sharlene and Bradley.

Findings regarding circumstances of Eileen

1. Eileen was born in 1947 and is now 75 years old.
2. The report of Dr Jones dated 27 April 2022 noted that she is suffering cognitive decline; she requires, at times, assistance with dressing and showering, together with a decline in the ability to perform "instrumental activities of daily living", such as cooking; and she is suffering from depression and is prone to falls. As at September 2022, Eileen deposed that she required assistance with bathing, regular meals to be provided, and a nurse to dispense medications.
3. In around late June 2022, Eileen moved into a unit in AVEO Durack Village in Queensland. This was initially on a respite care basis, but since 30 January 2023 she has remained there as the occupant of a serviced apartment pursuant to a lease, which incurs ongoing costs.
4. Eileen's sole source of income is the aged pension, receiving $2,305.44 per month.
5. Her estimated expenses, on average, were disclosed as being $3,742.96 per month. While there was some suggestion that this figure might not take into account of all her expenses, Eileen's counsel accepted in closing submissions that, on the state of the evidence before the Court, her application should be determined on the basis of the figure that I have recorded.
6. The Defendant, in its closing submissions, queried the estimate of $300 per month for medical expenses which was included in the monthly estimate set out above. However, this estimate was provided in an affidavit of Leslie McGuire, and the Defendant, despite asking questions regarding other items of expenses, did not ask any questions of him in relation to this particular expense or the basis for it. In answer to questions which were asked about these expenses generally, Mr McGuire indicated that he had calculated the figures using, partly, information from her bank records. In those circumstances, I am not prepared to disregard that element of the expenses when considering Eileen's application.
7. Having regard to the figures set out above, Eileen's expenses exceed her income by around $1,437.52 per month.
8. Eileen's counsel noted that, on the Life Expectancy Tables, Australia, 2019-2021, she has a further life expectancy of 14.6 years. The Defendant did not dispute this figure. On that basis, it was calculated that the shortfall between her income and expenses over her expected lifetime will be $251,872.28.
9. The only assets of Eileen are her rights in respect of the deposit bond in the amount of $240,000 that has been paid to AVEO Durack, and cash in bank of $124,122.57. She has no other funds available to meet her future needs.
10. Eileen tendered a report from Dr Moran, a general practitioner, dated 22 June 2023, in which he expressed the medical opinion that a move from AVEO Durack to AVEO Newstead would have a profoundly positive effect on her depressive symptoms and general anxiety, and her overall health condition. Submissions were made about the weight that could be attached to this report, but I do not need to resolve that issue, for reasons explained below.
11. The views of Dr Moran were based on the premise that a move to AVEO Newstead would provide Eileen with significantly more opportunities for social interaction, contact with her family members and further pursuit of her hobbies and interests. However, that was not borne out by the evidence. Eileen's sons, Leslie and Timothy McGuire, both identified that Eileen particularly enjoyed shopping, and suggested that she would benefit from being able, more readily, to go shopping if she moved from AVEO Durack to AVEO Newstead. However, it emerged in cross-examination of Leslie McGuire that Eileen is unable to handle money, does not go out by herself, and needs to be accompanied in order to go to the shops; that she is provided with some assistance, at AVEO Durack, for outings including to the local shops; and that in addition her sons regularly visit her at AVEO Durack, with each of Leslie and Timothy visiting her around once or twice a week, and they take her to the shops. While the Newstead location is closer to one of Eileen's sons (Leslie), Durack is closer to two others (Timothy and David). According to a comprehensive assessment conducted by My Aged Care in relation to Eileen in June 2022, she has three sons in the Brisbane area "and someone visits every day". Further, Leslie McGuire acknowledged that the facilities, and standard of care, are similar at each AVEO facility. In those circumstances, I am not satisfied that the evidence establishes that there would, as matters presently stand, be a significant benefit to Eileen in moving from one facility to the other.

Findings regarding circumstances of Sharlene and Bradley

1. Sharlene is 47 years of age. She holds a Bachelor of Social Sciences and a Diploma of Counselling, and is employed as a Residential Youth Worker.
2. She has two daughters, aged 16 and 13, who are both at school. She has primary, but not sole, parental responsibility for them.
3. Sharlene's evidence about her financial circumstances was not challenged.
4. Her net monthly income is $4,032.12. Her monthly expenses were estimated as being $3,914.87. She resides at a town house in Coomera, Queensland, which is currently rented for $900 per fortnight, though her current lease is due to expire on 25 August 2023.
5. Sharlene has assets totalling $74,972, and has liabilities totalling $90,053.26 Those liabilities comprise a car loan (around $30,000) and a student loan (around $60,000). She deposes that her future needs include: to discharge those liabilities of some $90,000; to purchase furniture and appliances at a cost of around $60,000; to meet various other expenses, including health-related costs for her and her daughters, which totalled around $15,000 to $25,000; and to purchase a three-bedroom townhouse ($489,000) or a three-bedroom house ($699,000).
6. Bradley is 49 years of age. He has two children, aged 13 and 11, who currently reside with their mother in the United States of America. Bradley makes monthly child support payments for them.
7. Subject to one matter (regarding the balance of his superannuation), Bradley's evidence regarding his financial circumstances was not challenged.
8. Bradley reported taxable income of $259,935 in the 2021 financial year, and $164,266 in the 2022 financial year.
9. He is currently employed full time with Providence Consulting Group, and he has an investment property at Coomera Waters in Queensland. His net monthly income, including his rental income, following payment of child support payments is $9,602.64. He has estimated his monthly expenses to be $9,682.67, about two-thirds of which comprise mortgage payments for his home and his investment property.
10. Bradley estimated his total assets to be $2,567,053.10. However, it emerged that this figure should be at least $90,000 higher, this being the approximate amount by which the balance of his superannuation, as shown in the most recent available statements of account, exceeded his estimate of the balance. He has total estimated liabilities of $1,048,042.82. That is, his net asset position is in excess of $1.6 million.
11. Bradley deposed that the Federal Circuit and Family Court has ordered that he pay half of the travel expenses of his children to visit him in Australia, with his former wife to reimburse him within 14 days. He stated that he has not yet been reimbursed by his wife, and therefore has been bearing the full cost of the orders for his children's travel. He deposed of the need to fund four trips a year at a cost of $7,000 each visit, or $28,000 per year (subject to his right, under the orders, to recoup half of those costs).
12. Bradley also deposed that he had relatively old furniture and old appliances, and the cost of updating them would be approximately $12,000.

What order should be made?

1. In considering the exercise of the power under s 59(2), and in particular whether to make a family provision order in favour of Eileen and the nature of any such order, I have considered the matters set out in s 60(2) of the Act, insofar as they are relevant to her application.

Para 60(2)(a) - nature and duration of relationship with the deceased

1. I have already addressed above, the relationship between Eileen and the deceased, including the nature and duration of the relationship. In short, she was the loved partner of the deceased for a period of 14 or more years, and remained so at the time of his death.

Para 60(2)(b) - the nature and extent of any obligations or responsibilities owed to the applicant or to beneficiaries

1. I have determined that Eileen was in a de facto relationship with the deceased, and therefore I approach the question of the nature and extent of the obligations or responsibilities owed by the deceased to Eileen on the basis that she was, and had been for many years, his de facto spouse.
2. In Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [102], Brereton JA referred to the often quoted statement of Powell J in Luciano v Rosenblum (1985) 2 NSWLR 65 at 69-70 regarding the "broad general rule" in respect of the obligations owed to a widow: "It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies."
3. His Honour noted (at [104]) that this "broad general rule" was echoed by the Court of Appeal in Golosky v Golosky [1993] NSWCA 111, in which Kirby P, with whom Cripps JA agreed, said that in the absence of special circumstances, it will normally be the duty of a testator to ensure that a spouse is provided with accommodation appropriate to that which she or he has been accustomed, and to the extent that the assets available permit, a fund to meet unforeseen contingencies. However, it is in "the inescapable detail of the factual circumstances of each case" that "the answer to the proper application of the Act is to be discovered" and that "no hard and fast rules can be adopted". Brereton JA continued as follows (at [105]-[108]): "In O'Loughlin v O'Loughlin [2003] NSWCA 99, Davies AJA, with whom Mason P and Meagher JA agreed, said: 20 It is undoubtedly true to say that there is no such thing as a "standard widow" and that every case must be determined on its own particular circumstances. However, it has long been recognized that, arising out of the marriage relationship, a testator has a duty to provide support for his widow after his death if she has need of it and if his estate has funds so to provide. Courts give more attention to the needs of a widow than they do to the needs of the children, if the children are adult and well able to support themselves. This point was made clear by the remarks of Lord Romer in Bosch v Perpetual Trustee Company Ltd which I have cited above. There are many dicta to the same effect. In Worladge v Doddridge (1957) 97 CLR 1, Williams and Fullagar JJ said at 11: It is clear that the claim of a widow, where the estate is of considerable value, and there are no competing claims of children, should not be disposed of in any niggardly manner. She is entitled to such a provision for her maintenance and support as the court or judge thinks proper and "proper" is a word which, as the Privy Council pointed out in Bosch's Case lets in all the considerations there adverted to. 21 In Gregory v Hudson [1999] NSWCA 221, Handley JA, with whom Cole AJA agreed, cited with approval the remarks of Powell J in Luciano v Rosenblum which I have mentioned. In Sayer v Sayer, Sheller JA referred to the fourth principle as stated by Stout CJ in In re Allardice, Allardice v Allardice which was referred to by Lord Romer in Bosch v Perpetual Trustee Company Ltd. At paragraph 9, Sheller JA also referred to the remarks of Powell J in Luciano v Rosenblum and expressed the view that, in the case before him, the widow's claim was "paramount". These are examples of cases where judges have referred to a need on the part of a widow for maintenance and support and a moral obligation on the part of the testator to provide it. As this Court pointed out in Burke v Burke [2015] NSWCA 195, such observations are not rules of law, but guidelines that may give assistance and provide guidance that are not to be elevated to rules of law. That does not mean that they are without importance and significance, because, as Basten JA explained in Chapple v Wilcox [2014] NSWCA 392: [19] …the real provenance of the "principles" is that they constitute a reflection of community values, being a factual matter, but one as to which reasoned findings of judges with experience in these matters may well provide valuable guidance Similarly, Barrett JA explained: [67] … [they] provide a useful touchstone that may be applied with circumspection by judges called upon to ascertain and apply "the feeling and judgment of fair and reasonable members of the community" in cases of the present kind. Such guidelines also provide the additional benefit of affording a certain amount of consistency in decision-making, and indication of expectations and advice to litigants. Without such guidelines, decision-making and advising in this field becomes a morass of idiosyncratic decisions devoid of any consistency."
4. The determination of what is adequate and proper will ultimately depend on all the circumstances of the particular case. For example, if the deceased's surviving spouse has assets and income of her own, that will moderate his obligation to provide for her, particularly if there are significant competing claims: Steinmetz v Shannon at [115] per Brereton JA.
5. In Steinmetz v Shannon at [37], White JA agreed with Brereton JA's review of the authorities in relation to widows' claims, subject to some matters, "in part by way of emphasis and in part by way of qualification". The matter of emphasis was that guidelines such as those expressed by Powell J in Luciano v Rosenblum cannot be elevated to inflexible rules "and are subject always to the consideration of the particular circumstances of each case, including the size of the estate, any competing claims, the applicant's conduct and the applicant's relationship with the deceased". The matter of qualification concerned recourse to "community standards or community expectations" (at [40]), noting that these are not among the specifically identified matters in s 60(2) of the Act (at [46]).
6. In Stone v Stone [2016] NSWSC 605 at [64], Brereton J observed that, even in the context of a powerful widow's claim, obligations of the deceased to children of earlier relationships can, without affording a reason not to make what would otherwise be proper provision for his widow, affect the form or structure of that provision, "so as to avoid setting asunder the testator's intentions in other respects". His Honour continued (at [65]): "Thus, while acknowledging the primacy of the widow's claim, the Court may - at least where the assets are sufficient - shape and structure the provision for her to avoid effects such as subverting the testator's intentions beyond the extent necessary to make proper provision for the eligible person".
7. In the present case, I do not rely on any inflexible rule about the need for provision to be made for a widow, or regarding the paramountcy of a widow's claim over the claims of adult children. Instead, I have formed the view, having regard to the particular circumstances of this case, including the nature and duration of the relationship between Eileen and the deceased, her dependency on the deceased at the date of his death, her age and state of health, and her circumstances including her financial needs, that the deceased had an obligation to make provision for Eileen out of his estate. However, in determining the extent of the provision that should be made, I have taken into account the limited size of the estate, and the circumstances and needs of the deceased's children, and the nature of his relationship with them. As I outline below, I consider those matters can be addressed, and balanced, by the particular family provision order that is made.

Para 60(2)(c) - nature and extent of the deceased's estate

1. I have already addressed the nature and extent of the deceased's estate at paragraphs [10]-[13] above. As there noted, it is a relatively small estate. There was no property in respect of which a notional estate order was sought. Counsel for Eileen accepted that, in order for the estate to discharge its obligations to all competing beneficiaries, Eileen is unable to have all of her needs satisfied from the estate.

Para 60(2)(d) - financial resources and financial needs, both present and future, of the applicant or any beneficiary

1. I have addressed the financial resources and financial needs of Eileen, and of Sharlene and Bradley, at paragraphs [73]-[95] above.
2. In addition to seeking provision by reference to the shortfall between her income and expenses, Eileen sought a fund to allow her to meet any contingencies and unforeseen circumstances of a person in her position. As stated by Powell J in the passage from Luciano v Rosenblum quoted above, the "broad general rule" is that it is the duty of a testator to provide such a fund to his widow "to the extent to which his assets permit him to do so" (quoted with approval in Golosky v Golosky [1993] NSWCA 111 by Kirby P, with whom Cripps JA agreed). Counsel for Eileen indicated that an appropriate range, having regard to the authorities, would be around $80,000 to $120,000, and adopted a figure of $100,000 for the purpose of submissions about the extent of the provision that should be made for her.
3. In response, the Defendant pointed to the existing cash of around $125,000 in Eileen's bank account which could be used to meet contingencies. However, on the figures I have outlined above, that sum is likely to be exhausted in meeting the shortfall between her income and her expenses. In determining the appropriate provision, I have taken into account both that shortfall and that source of cash. The Defendant also submitted that Eileen's future needs are limited by her health. But the point of such a contingency fund is to meet unforeseen circumstances, which may include a change, and in particular, in Eileen's case, a deterioration in health. While the Defendant argued that if Eileen's health deteriorated, she would likely need to go into fulltime residential care, it is also possible that she might remain in her existing accommodation, but have increased expenses by reason of increased health needs.
4. In all the circumstances, I consider that the deceased did have an obligation to provide a contingency fund for his widow, Eileen, and I have taken this into account in determining the appropriate amount of provision. However, I have not determined provision simply by summing the amounts put forward by Eileen's counsel in respect of her needs for funds to meet her expenses as well as a contingency fund. I have also taken account of the needs of the deceased's children, and the size of the estate in determining an appropriate provision for Eileen. As Basten JA remarked in Chan v Chan [2016] NSWCA 222 at [22] (with Simpson and Payne JJA agreeing): "A significant set of factors in many cases is that identified as "the financial resources (including earning capacity) and financial needs, both present and future, of the applicant…". However, it is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. The background to any consideration of the appellant's needs required determination of the size of the estate and the claims of others on the beneficence of the testator (footnotes removed)."

Para 60(2)(f) - any physical, intellectual or mental disability of the applicant

1. It is common ground that Eileen is a person under a legal incapacity. According to the report of Dr Junes of April 2022, Eileen has clinical features of Alzheimer's disease.
2. According to a comprehensive assessment conducted by My Aged Care in June 2022, she is "completely unable" to prepare meals or undertake housework, and requires assistance for personal care and medication.

Para 60(2)(g) - the age of the applicant when the application is being considered

1. Eileen is 75 years old. As noted above, it was not disputed that, on the basis of the Life Expectancy Tables, 2019-2021, she has a further life expectancy of 14.6 years.

Para 60(2)(i) - any provision made for the applicant by the deceased, either during his lifetime or from his estate

1. The deceased made no provision for Eileen from his estate. She lived in his Lismore Unit rent-free for a period of at least 14 years up to the date of his death, but otherwise there was no evidence of any significant provision being made for her during his lifetime.

Para 60(2)(j) - any evidence of the testamentary intentions of the deceased

1. The deceased's Will, which leaves his entire estate to Sharlene and Bradley in equal shares, was made in 2003, before he met Eileen.
2. Sharlene gave evidence, which was not challenged, that some time shortly after Eileen was diagnosed with cancer (for which she was treated in 2018), the deceased told Sharlene: "I don't want anything from Eileen's estate. Our affairs are separate so it should go to her family and mine to you and Brad."
3. There was a factual dispute concerning whether the deceased indicated, in around January 2020, a different intention to Leslie McGuire, involving Eileen receiving a portion of his superannuation and a life interest in the Lismore Unit, and whether Leslie McGuire then communicated this intention to Bradley when the deceased was in hospital in 2021. However, Eileen's counsel indicated that he would not press for a finding in relation to this dispute.
4. Accordingly, I proceed on the basis that it was and remained the deceased's intention, as expressed in his Will, that his estate go to Sharlene and Bradley in equal shares. I have taken that intention into account in considering whether, and if so what, family provision order should be made in favour of Eileen. However, that intention cannot be decisive, and there is nothing in subsection 60(2) of the Act to indicate that it should be given any greater weight than any other consideration.
5. In Steinmetz v Shannon, White JA made the following observations about the significance of testamentary intention (at [54]-[57]): "The issue is how freedom of testamentary disposition is to be factored into an assessment of whether the provision made by the testator is adequate for the proper maintenance, education or advancement in life of a claimant. The determination of the adequacy of the provision is a matter for the court and it is to be determined as at the time the court is considering the application rather than as at the time the testator made a will or at his or her death. This alone may provide a reason for interference. Independently of that, the court will interfere with the freedom of disposition if it concludes that adequate provision has not been made for the applicant's proper maintenance, education or advancement in life. But in making that assessment the court has to take into account a wide range of matters that are not confined to the parties' present financial circumstances, but can range over the relationships between the deceased and his or her family where the true facts can hardly be ascertained by a court years after the events. This may constrain the making of a family provision order under s 59. To say that a Court's ability to interfere may be constrained by freedom of testamentary disposition is merely to say that such freedom is one of the matters factored into the assessment called for by s 59. It is factored in by a recognition that in appropriate cases, deference should be given to the testator's better position in making an assessment as to what provision for proper maintenance and advancement in life is adequate. No issue arises in the present case as to whether the court should interfere where the testator has given proper consideration to the claim of the applicant on his estate. For the reasons previously given, the testator did not do so."
6. Significantly, in the present case, the deceased made no provision at all for Eileen and, in my view, did not give proper consideration to her claim on his estate. As noted above, the Defendant conceded that paragraph 59(1)(c) of the Act was satisfied, that is, that "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person".

Para 60(2)(k) - whether the applicant was being wholly or partly maintained by the deceased at the date of his death

1. As noted above, Eileen was living in the deceased's Lismore Unit, rent free, for a period of at least 14 years up to the date of his death. She gave evidence that he paid all bills of the unit, and usually paid for their holidays both domestic and overseas. He also provided for her transportation needs.

Para 60(2)(l) - whether any other person is liable to support the applicant

1. While Eileen's sons have in fact been providing some financial assistance to their mother, there was no evidence that any person is liable to provide her with any support.

Paras 60(2)(m)-(n) - character and conduct of the applicant, and of any other person, up to and after the date of the death of the deceased

1. I have found that Eileen was the loved partner of the deceased, over a period of at least 14 years up until his death. I also find that each of Sharlene and Bradley had a close and loving relationship with their father. Each gave evidence to this effect, which was not challenged. There is no basis in the material before me for any negative finding about the character or conduct of any of them, either before or after the deceased's death.

Conclusion regarding making of family provision order

1. After taking account of the matters identified in s 60(2) of the Act, the evidence before the Court, including the matters summarised above, and the parties' submissions, I have concluded that a family provision order should be made out of the deceased's estate in favour of Eileen, and that, given the size of the estate, the order should take into account not only her financial resources and needs (including a fund for contingencies), but also those of Sharlene and Bradley.
2. I have found that the extent of shortfall between Eileen's income and expenses, assuming a life expectancy of 14.6 years, is in the region of $250,000. I consider that an order for provision in favour of Eileen should take into account that shortfall, and should also take into account the need for a contingency fund to meet unforeseen circumstances, noting that Eileen's counsel submitted that a contingency amount in the range of $80,000 to $120,000 was supported in this case. I do not consider that any provision should be made in respect of the costs of a potential move by Eileen to alternative accommodation at AVEO Newstead (the costs of such a move being estimated around $369,000 in closing submissions), since it appears, on the evidence before the Court, that her needs are currently being adequately met by her existing accommodation, and there is not a sufficient basis to conclude that a move to any alternative accommodation would provide any significant benefit. Eileen's counsel submitted that, in the alternative to the costs of such a move, I could have regard to the costs of additional support services for Eileen, which were estimated as being in the region of $250,000 (calculated on the basis of support services of 12 hours per week, for 7 years). The evidence does not support a conclusion that increased support at this level is required at this point in time. As I have summarised above, the position is that Eileen is currently receiving support services of 11 hours per week, as well as support from her family visiting almost every day. I accept that there may be a need in the future for additional support services, which might be above the level of any funded care package Eileen receives, but I consider that this possibility can be addressed, and catered for, by making, as Eileen's counsel has proposed, an allowance for contingencies in fashioning a family provision order.
3. Eileen has at her disposal cash of $124,122.57 to satisfy her future anticipated needs, including the shortfall between income and expenses and the need to meet any future contingencies.
4. In Chan v Chan at [54], Basten JA (with whom Simpson and Payne JJA agreed) observed that: "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". Eileen contended that, if she was successful, her costs should be paid out of the estate on the ordinary basis, and the Defendant's costs should be paid out of the estate on an indemnity basis. No submissions were made in opposition to such an order in the event that I was satisfied an order should be made in favour or Eileen. As explained below, I am satisfied that such an order should be made. Using the costs estimates set out at paragraph 12 above, the net distributable amount of the estate, after costs, would then be around $603,957.
5. In all the circumstances, the order for provision that I think ought to be made out of the deceased's estate for the maintenance of Eileen, having regard to the facts known to the Court at this time, is an order in the amount of $220,000. In arriving at this figure, I have had regard to, on the one hand, Eileen's available cash resources and, on the other, the projected future shortfall between income and expenses and the need for a fund for contingencies, and balanced that against the size of the estate (allowing for legal costs), and the circumstances and needs of the beneficiaries under the Will, Sharlene and Bradley.
6. Once account is taken both of legal costs on the basis identified above, and of the provision to Eileen that I have determined should be made in the amount of $220,000, there will remain some $383,957 for distribution to Sharlene and Bradley.
7. Eileen had proposed that the burden of the provision should be borne in different proportions as between Sharlene and Bradley, pursuant to the Court's power under s 65(1)(c) of the Act, having regard to the disparity between their respective financial circumstances. However, the Defendant submitted that the Court should not make an order that one of the beneficiaries would bear a greater burden than the other, and should instead not make any order other than equality as between them. Given that the Defendant has adopted that position, and it is not a matter in which Eileen is concerned, I will proceed on that basis.
8. Accordingly, each of Sharlene and Bradley could expect to receive just over $190,000 after allowing for costs and the provision in Eileen's favour that I have outlined above. In terms of their respective financial circumstances, resources and needs, such a sum would: 1. in the case of Sharlene, allow her to clear all her liabilities of $90,000, and to meet the health-related costs for her and her daughters which she has identified, totalling around $15,000 to $25,000, while leaving a significant sum that could be put towards replacing furniture or appliances or meeting any increased accommodation expenses, or could be used to meet other contingencies; and 2. in the case of Bradley, allow him to meet, together with his existing financial resources, the costs of updated household equipment that he has identified, as well as significant funds towards meeting his costs of the overseas trips for his daughters.
9. Having regard to those matters, and the limited size of the estate of the deceased, I consider that the order which I have determined should be made will make provision for Eileen's present and future maintenance, while also leaving a substantial sum for each of Bradley and Sharlene, which will be able to be used towards satisfying their financial requirements.

Form of Order

1. Because the deceased left a will, the family provision order will take effect as if it was made in a codicil to the will, unless the Court otherwise orders: s 72(1)(a) of the Act. It was not submitted that I should otherwise order.
2. Section 65 of the Act provides as follows: "65 Nature of orders (cf FPA 11 (1) (a) and (d)) (1) A family provision order must specify - (a) the person or persons for whom provision is to be made, and (b) the amount and nature of the provision, and (c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and (d) any conditions, restrictions or limitations imposed by the Court. (2) A family provision order may require the provision to be made in one or more of the following ways - (a) by payment of a lump sum of money, (b) by periodic payments of money, (c) by application of specified existing or future property, (d) by way of an absolute interest, or a limited interest only, in property, (e) by way of property set aside as a class fund for the benefit of 2 or more persons, (f) in any other manner the Court thinks fit. (3) If provision is to be made by payment of an amount of money, the family provision 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 the interest."
3. As for s 65(1), I have determined that provision should be made for Eileen in the sum of $220,000 and the Defendant submitted that this should be equally borne as between Sharlene's and Bradley's equal shares of the deceased's estate. As for s 65(2), I consider that provision should be made by payment of a lump sum of money. This is what was sought by Eileen, and nothing was said against any provision being made in that way. As for s 65(3), Eileen did not, in her Amended Summons or in submissions, seek any order for payment of interest on the whole or any amount of provision in her favour, and accordingly, I do not propose to make any such award.
4. In circumstances where I have determined that provision should be made by payment of a lump sum, it is necessary to have regard to s 77 of the Civil Procedure Act 2005 (NSW) (CPA), which provides as follows: "77 Payment of money recovered on behalf of person under legal incapacity (cf Act No 25 1929, section 4) (1) This section applies to money recovered in any proceedings on behalf of any of the following persons - (a) a person under legal incapacity, (b) a person who, during the course of the proceedings, becomes a person under legal incapacity, (c) a person whom the court has found, under section 76 (1) (c), to be incapable of managing his or her own affairs, pursuant to a compromise, settlement, judgment or order in any proceedings. (2) All money recovered on behalf of a person referred to in subsection (1) is to be paid into court. (3) Despite subsection (2), the court may order that the whole or any part of such money not be paid into court but be paid instead to such person as the court may direct, including - (a) if the person is a minor, to the NSW Trustee and Guardian, or (b) if the person is a protected person, to the manager of the protected person's estate. (4) Money paid into court under subsection (2) is to be paid to such person as the court may direct, including - (a) if the person is a minor, to the NSW Trustee and Guardian, or (b) if the person is a protected person, to the manager of the protected person's estate."
5. As I have noted, it is common ground that Eileen is a person under a legal incapacity. In those circumstances, I proceed on the basis that s 77(2) of the CPA applies, such that any money recovered on behalf of Eileen must be paid into Court. Eileen's counsel acknowledged that it was in her best interests that any funds by way of provision be managed for her, and foreshadowed an application, in the event an order for provision were made, regarding who would hold those funds and the terms of any trust. I will give liberty for Eileen to make any application in these proceedings pursuant to s 77(4) of the CPA within 28 days of the date of this judgment. I encourage the parties to seek to come to agreement on the terms of any proposed order, with a view to minimising any further costs. If proposed orders can be agreed by consent, I would be minded to deal with the matter in Chambers on the papers.

Costs of the Proceedings

1. Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3 of the Act, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit.
2. In Page v Hull-Moody at [63], Hallen J made the following observations about the exercise of this power: "…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 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. [However], 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."
3. Eileen submitted, in accordance with this "usual rule", that if she was successful in obtaining a family provision order, her costs should be paid out of the estate on the ordinary basis, and the Defendant's costs should be paid out of the estate on an indemnity basis. Nothing was said in opposition to that order. I am concerned that the total amount expended on costs (more than $195,000) approaches one-quarter of the value of the estate, and is close to the amount of provision that I have determined should be made in favour of Eileen ($220,000) and the likely amount that will be received from the estate by each of the deceased's children (around $190,000). However, I do not consider that there was any conduct on the part of any party which would justify a departure from the usual rule, or would provide a basis for capping the costs of either party. Accordingly, I am satisfied that an order should be made along the lines that has been sought by Eileen.

Orders

1. Accordingly, I will make the following orders: The Court: 1. Orders, pursuant to s 59 of the Succession Act 2006 (NSW), that the Plaintiff receive, by way of provision out of the deceased's estate, a lump sum of $220,000. 2. Orders that the Plaintiff's costs of the proceedings, calculated on the ordinary basis, be paid out of the estate of the deceased. 3. Orders that the Defendant's costs of the proceedings, calculated on the indemnity basis, be paid out of the estate of the deceased. 4. Orders, pursuant to s 77(2) of the Civil Procedure Act 2005 (NSW), that the lump sum referred to in order (1) above be paid into Court. 5. Grants liberty to the Plaintiff, no later than within 21 days of the date of this judgment, to make any application in these proceedings pursuant to s 77(4) of the Civil Procedure Act 2005 (NSW) in respect of the money to be paid into Court pursuant to order (4) above. 6. Orders that no later than within 28 days after these orders are recorded, the Defendant must lodge in the Registry: 1. The Probate bearing a copy of the orders; and 2. A copy of the orders.

Amendments 07 September 2023 - Removed date of birth (paragraph 73) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 September 2023