Mears v Salier

The Claims 1HIS HONOUR: These reasons relate to proceedings, in which a family provision order pursuant to the Succession Act 2006 (NSW) ("the Act"), and costs, are sought out of the estate and/or notional estate of John Carlton Mears ("the deceased"). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the court in relation to the estate, or notional estate, of a deceased person, to provide from that estate and/or notional estate, for the maintenance, education, or advancement in life, of an eligible person. 2In the proceedings, commenced by Summons filed on 4 November 2013, the Plaintiff is Brett Anthony Mears, a son of the deceased. There is no dispute that the Summons was filed within the time prescribed by the Act (within 12 months of the deceased's death), 3The deceased died intestate, no valid will having been located. 4There was no Defendant named in the Summons. Mr M Condon SC, for the Plaintiff, stated on 7 February 2014 that, despite efforts made by the Plaintiff, there was no person who was prepared to act as a contradictor. It was then suggested that, perhaps, a solicitor, with extensive experience in matters in which a family provision order is sought, might be approached and requested to act as the contradictor. If he or she consented, the appropriate order could then be made. 5On 14 March 2014, at the request of the Plaintiff and as the deceased's estate had an interest, but was not represented, in the proceedings, I made the following orders and notation: "Orders, pursuant to UCPR, rule 7.10(2)(b) that Gordon Albert Salier, solicitor, be appointed to represent the deceased's estate and notional estate for the purposes of these proceedings. Orders that any order subsequently entered, or made, in the proceedings, binds the deceased's estate to the same extent as the estate would have been bound had a personal representative of the deceased person been a party to the proceedings. Notes that the Consent signed by Gordon Albert Salier is tendered and marked Ex. A." 6In view of the size of the estate (to which I shall return), the legal representative of each of the parties then agreed to file written submissions, and requested me to deal with the matter on the papers, in Chambers, without the need for a formal hearing, it being accepted that the Defendant, Mr Salier, had nothing on which to base cross-examination of the Plaintiff. 7In the circumstances, and subject to what I shall say hereafter, I agreed to follow the course suggested. In this regard, I had in mind s 56 of the Civil Procedure Act 2005 (NSW) and the need to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (To adopt this course is permitted by s 11(2) of the Supreme Court Act 1970 (NSW) which states that the business of the Supreme Court, whether conducted in court, or otherwise, shall be taken to be conducted in court.) 8On 8 May 2014, I made final directions, including in relation to the filing and service of updating affidavits and the written submissions of each party, with which directions there has been compliance. 9I should mention that I am grateful to Mr Salier for accepting the role of the contradictor in this case and for putting all that could be put, on behalf of the estate, in his written submissions. His estimated costs and disbursements, as shall be read, are modest and, for that, the Plaintiff should be grateful. 10On 24 June 2014, as there appeared to be some dispute, on the written submissions, as to the value of the deceased's estate, the legal representatives were asked to provide an agreed statement as to the current nature and value of the deceased's estate or, if that was not possible, competing versions of what was submitted as the current nature and value of the deceased's estate. 11Mr A J Wakefield, solicitor for the Plaintiff, of Holman Webb, Lawyers, sent an updated statement of the assets and liabilities of the estate to my Associate on 9 July 2014. Accompanying that statement was a letter from Mr Salier, to Holman Webb, dated 3 July 2014, in which the following statements appeared: "I accept the update provided by your client as to the current value of the estate, moneys repayable to him by the estate and income and expenses of the estate. I certainly hold no information to the contrary. Further there is no particular matter I would wish to clarify." 12(I have marked the correspondence from Mr Wakefield and the attachments thereto as Ex. B in the proceedings.)

Preliminary Matter 13There has been no grant of administration made in the estate. 14In Ex. B, Mr Wakefield stated that the Plaintiff has "prepared and, subject to one matter, [is] in a position to file an application for a grant of letters of administration." The "one matter" referred to concerned the evidence of attempts by the Plaintiff to locate Ms Suree Phuangnui (to whom the deceased was married at the date of his death). In circumstances where consent by the Department of Immigration and Border Protection to use subpoenaed material in the proposed application "was not forthcoming", the Plaintiff now seeks an order of the court under s 91 of the Act. 15Mr Salier supported the making of such an order in these proceedings. 16In Wheat v Wisbey [2013] NSWSC 537, at [29] - [60], I discussed the need for an order for administration to be made in circumstances where the deceased died intestate and where there is property of the deceased in New South Wales. It is not necessary to repeat what I said in that case. (Also see Curnow v Curnow [2014] NSWSC 896.) 17In this case, there is real and personal estate of which the deceased person died seised, or possessed, or entitled to, in New South Wales, at the date of death. Accordingly, for reasons that I have previously explained, since an application has been made by a person for a family provision order in respect of the estate of the deceased, in relation to which administration has not been granted, I am satisfied that it would be proper to make an order under s 91 granting administration in respect of the estate of the deceased to the Plaintiff for the purposes only of permitting the application concerned to be dealt with. 18As will be read later in these reasons, because, pursuant to the family provision order I propose to make, the Plaintiff is to be entitled to the whole of the residuary estate, after the payment of debts, funeral and testamentary expenses and the Defendant's costs of these proceedings, he should be able to obtain letters of administration on intestacy by the filing of the appropriate documents in the Probate Registry.

Formal Matters 19The following facts are uncontroversial. 20The deceased died on a date between 5 November and 7 November 2012. He was then aged 62 years, having been born in 1950. 21The deceased was married, first, to Mirella Christine Snaidero, in July 1970. There was only one child of the marriage, namely the Plaintiff. The deceased and his first wife separated on a date not disclosed and, subsequently, in October 1976, a divorce order was made. 22The deceased married Suree Phuangnui in May 1999 and remained married to her at the date of his death. However, it appears that they separated a few days following the marriage. Thereafter, except for a brief period of about 6 weeks, 2 months after the marriage, the deceased and Ms Phuangnui did not live together. In fact, from that point, there was no contact at all with Ms Phuangnui. I shall refer to evidence about steps taken by the deceased, over some years, to locate Ms Phuangnui, later in these reasons. 23The deceased left a Will that he made on 22 March 1988 ("the Will"). However, the Will was revoked, by operation of law, on his marriage to Ms Phuangnui. No subsequent Will of the deceased has been located. 24Although, in the Will, the deceased left the whole of his estate to his father, Cyril Mears, it named the Plaintiff as the substitute sole beneficiary if the primary beneficiary did not survive the deceased. The deceased's father, in fact, died, in January 2002. Thus, had the Will been the last valid Will of the deceased, the Plaintiff would have been entitled to the whole of the deceased's estate. 25Although there is no formal Inventory of Property disclosed to the court under s 81A of the Probate and Administration Act 1898 (NSW), the parties agreed that the property owned solely by the deceased at the date of his death, had an estimated (or known) gross value of $362,064. The deceased's actual estate was said to then consist of real estate in Griffith ($250,000), monies in current accounts (approximately $2,000), superannuation entitlements ($102,455) and unclaimed tax credits ($7,608). (I have omitted, and shall continue to omit, any reference to cents, which explains what may appear to be mathematical errors.) 26No jointly held, or other, property, in which the deceased held an interest at the date of his death, was disclosed. 27The real estate at Griffith was said to be subject to a debt secured by mortgage of $78,852. (The liability is now $68,972, the repayments having been made since death, principally from the rent received from the Griffith property. Undoubtedly, upon its sale, the mortgage debt will be discharged from the proceeds of sale or, if it is not sold, the Plaintiff will come to an appropriate arrangement with the mortgagee. 28Ex. B reveals the agreement of the parties that the current net value of the deceased's estate (excluding the costs of the proceedings) is $184,857. The updated schedule lists property with a value of $281,144 and total liabilities of $96,287. Of the listed liabilities, $27,314 is said to be an amount outstanding to the Plaintiff for funeral costs, the repayment of debts, travel expenses and the like. (The updated schedule does not refer to any superannuation in the calculation of estate assets). 29I accept the estimates in Ex. B as there are supporting documents and schedules to support them. 30Section 113 of the Act deals with a spouse's entitlement on intestacy and is relevant where there is a spouse and any issue who are not issue of the spouse and the intestate. Pursuant to that section, Ms Phuangnui, if alive at the date of the deceased's death, is entitled to the deceased's personal effects, a statutory legacy (as defined in s 106 of the Act) (more than $350,000), and one-half of the remainder (if any) of the deceased's estate. Accordingly, she is entitled to the whole of the deceased's estate. By the operation of the intestacy rules, and because of the value of the estate, no part of the deceased's estate would pass to the Plaintiff. 31In calculating the value of the actual estate, finally available for distribution, the costs of the present proceedings should also be considered, since the Plaintiff, if successful, normally, will be entitled to an order that his costs and disbursements, calculated on the ordinary basis, be paid, whilst the Defendant, as the person representing the estate in the proceedings, irrespective of the outcome of the proceedings, normally, will be entitled to an order that his costs, calculated on the indemnity basis, be paid out of the estate, or notional estate, of the deceased. 32The Plaintiff's solicitor, Mr A J Wakefield, in an affidavit sworn on 4 November 2013, estimated the Plaintiff's costs and disbursements of the proceedings, including senior counsel's fees, calculated on the indemnity basis, up to mediation, to be about $25,031 (inclusive of GST). 33Mr Salier estimated his costs and disbursements of the proceedings, calculated on the indemnity basis, to be about $3,880 (inclusive of GST). 34It follows that, if orders for costs are made, and if the costs estimates prove accurate (in total, $28,991), the net value of the deceased's estate, available for distribution, will be about $155,866. 35In view of the quantum of the Defendant's estimated costs and disbursements, I propose to make a lump sum order that he receives those costs out of the estate. He should not be required to have them formally assessed. 36The parties agreed that the only eligible person who has commenced proceedings under the Act is the Plaintiff. Of course, Ms Snaidero, as a former spouse of the deceased, is also an eligible person. The evidence that I have read confirms that she has been served with the prescribed form of notice and has indicated, in writing, that she received the notice. I infer, since she has not commenced proceedings, that she does not wish to make any claim. I propose to disregard her interests as an eligible person. 37Of course, Ms Phuangnui, as the wife of the deceased at the date of his death, is also an eligible person, but she, too, has not commenced proceedings. (She would not need to since, as a result of the operation of the rules of intestacy, she is entitled to the whole of the deceased's estate.) As a beneficiary who may be entitled on intestacy, I cannot disregard her interests as such.

The evidence regarding Ms Phuangnui 38I am satisfied of the following facts, which are established by the evidence I have read. (a) Ms Phuangnui was born in Thailand in November 1968. (b) She arrived in Australia in November 1998 on a 3 month holiday visa. (She stated that she intended to stay for only 3 months.) (c) On her immigration entry card, she stated an intended address at which she would stay, in Epping, Victoria. (d) She and the deceased met through an organisation called "Partner Search Australia" in March 1999. She, subsequently, went with him to Griffith and it was there that they married in May 1999. (e) Several days after the wedding, she left the deceased and, so far as the Plaintiff is aware, but for a period of about 6 weeks when she returned to Griffith, the deceased did not ever see her again. (f) The deceased, in letters to various persons, a copy of some of which forms part of the evidence, wrote that "on 25 May she told me she was not happy and was leaving and that she had only married me to stay in Australia. She took the marriage certificate and the photos of the wedding with her". (g) The deceased informed the local Police, the Federal Police and his local member of Parliament, Senator Kay Patterson, of the events which had occurred and requested, at different times, an investigation into her disappearance. (h) In about November 2000, the deceased was informed "the Australian Federal Police ... and the Department of Immigration have ceased their investigations ... [and] Suree is still in Australia". However, in March 2001, Senator Patterson's office informed him that investigations were continuing. (i) In July 2001, an article appeared in the Herald Sun newspaper regarding the deceased and Ms Phuangnui. (j) In November 2003, another article appeared in The Weekend Australian suggesting that, perhaps, Ms Phuangnui, had been murdered. (k) The deceased continued his searches for Ms Phuangnui without success. (l) In March 2010, the deceased sought advice from a firm of solicitors in Griffith in relation to his separation from Ms Phuangnui. They prepared an Application for Divorce, which the deceased signed on 23 April 2010. However, the firm of solicitors received no further instructions from the deceased and the application did not proceed. (m) The Plaintiff's solicitors caused personal service of a letter, informing Ms Phuangnui of her rights on intestacy, at the address in Epping, Victoria. The process server who was instructed to serve the letter has stated that Ms Phuangnui was not able to be located at that address. (n) The Plaintiff's solicitors have also caused advertisements to be placed in the Herald Sun newspaper and also in the Thai language online newspaper, Thai Oz News, in the English and in the Thai language, from 4 February to 25 February 2014. (o) The Plaintiff's solicitors caused to be published an amended form of the notice to any surviving spouse of the deceased in the Australian newspaper on 13 February 2014 and, again, in Thai Oz News on 14 March 2014. (p) The Plaintiff's solicitors have received no responses, or even any enquiries, from any person arising out of any of the notices that have been advertised. (q) The Plaintiff's solicitors have caused other enquiries to be made which demonstrate that "there is no person named Suree Phuangnui on any of the Electoral Rolls for Australian States or Territories"; that "there is no listing on the Victorian Land Title Records for [her] among those who own land in that State"; and that "searches through popular social media and other similar search engines [have been made] without success". 39The Act (as will be seen) provides that, in determining an application for a family provision order, 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 made (other than a beneficiary of the deceased person's estate), but who has not made an application only if: (a) notice of the application, and of the court's power to disregard the interests, is served on the person concerned, in the manner and form prescribed by the regulations or rules of court, or (b) the court determines that service of any such notice is unnecessary, unreasonable or impracticable in the circumstances of the case. 40In this case, notwithstanding that Ms Phuangnui, in fact, is, or may be, a beneficiary of the deceased's estate, I still consider it apt to determine whether service of the notice on her is "unnecessary, unreasonable or impracticable" in all of the circumstances in the sense envisaged by s 61 of the Act. 41Whilst I do not think that service of a notice would be "unreasonable", I do think that it is "unnecessary" and "impracticable" in the circumstances of this case. There is no suggestion that Ms Phuangnui had any sustained contact with the deceased from a few days after their marriage, and since the deceased did not find her, and as she has not been located as a result of the searches conducted by the Plaintiff's solicitors, it seems to me to be "unnecessary" to give her notice. 42In case I am wrong, I turn to the alternative basis. "Impracticable" is not defined in the Act. Something is said to be "impracticable" when it is incapable, as a practical matter, to do it, or when it is extremely inconvenient, or difficult, to do it, because, for example, of the associated costs. The word is not synonymous with the word "impossible". It directs attention to considerations of a practical, rather than a theoretical, nature arising out of the particular circumstances: Thornley v Heffernan (Supreme Court (NSW), McClelland J, 12 September 1995, unrep). One should evaluate the practicability of service in a commonsense way. 43When one examines the circumstances of this particular case and answers the question whether, as a practical matter, service of the prescribed notice on Ms Phuangnui can be achieved, since nothing more is known of her, I am satisfied that it is "impracticable" to serve a notice upon her. (I note that Mr Salier describes the efforts of the Plaintiff's solicitors to contact her as "more than reasonable".) 44Of course, as I have written, since she is, or may be, a beneficiary entitled on intestacy, I cannot disregard her interests as such. However, as will become clear, I am satisfied that the deceased did not have any significant obligation to make provision for her. It may be that, if her statement to him was a truthful one, he had no obligation at all.

The Statutory Scheme - The Act 45Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out most of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is equally important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions in the application. 46The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008 (NSW). A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, Will. It is only if the statutory conditions are satisfied, that the court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate (or the disposition on intestacy), to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary. 47The key provision is s 59 of the Act. The court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made. 48In this case, the Plaintiff relies upon the category of eligibility referred to in s 57(1)(c) of the Act, namely that he is a child of the deceased. The language of the relevant section is expressive of the person's status, as well as his relationship to the deceased. There is no age limit placed on a child making an application. There is no dispute that he is an eligible person. He has the standing to bring the present proceedings. 49Relevantly to this case, it is only if eligibility is found, that the court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the operation of the intestacy rules in relation to the estate of the deceased (s 59(1)(c)). It is this mandatory legislative imperative that drives the ultimate result, and it is only if the court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). Only then may "the Court ... make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made". 50Other than by reference to the provision made by the operation of the intestacy rules in relation to the estate 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 the applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the court to the provision actually made on intestacy, on the one hand, and to the requirement for maintenance, education and advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant. 51In Grey v Harrison [1997] 2 VR 359, at 366-367, Callaway JA observed: "There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight." 52It was said in the Court of Appeal (by Basten JA) in Foley v Ellis [2008] NSWCA 288, at [3], that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involved "an intuitive assessment". 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]. 53Under 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. 54"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89, 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". 55Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act. 56In J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths), at 542, the learned authors comment upon the difference between the concepts of maintenance and advancement: "The essential difference between 'maintenance' and 'advancement' is that 'maintenance' denotes a periodical payment or a payment which could validly be made periodically, whereas 'advancement' denotes a definite unique outlay for a specific purpose. Recipients of maintenance must, practically speaking, be infants, but adults may be recipients of an advancement. An advancement can never be made of a sum of money which the person to whom it is made can immediately pocket, but it must be made with a view to the establishment of that person in a business or profession, or otherwise in some definite way for that person's benefit, the whole essence of an advancement being the immediate payment of a tolerably large sum for an immediate benefit to one beneficiary." 57In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77 King CJ said: "The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang (1960) 104 CLR 124, per Dixon CJ at 128." 58In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J, at [114] noted: "In the context of the Act the expression 'advancement in life' is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase 'advancement in life' has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the 'maintenance and support' of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support." 59In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)." 60In McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566, Dixon CJ and Williams J stated, 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." 61The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton, 'The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?' (1999) 5 Australian Journal of Legal History 5, at 10, as "an objective, economic test", whereas "proper" prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127, per Buss JA, at [72], [77], which seems to invite more subjective criteria. 62These 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." 63Their 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." 64Dixon 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 if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent." 65In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, Gibbs J said, at 502: "[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards." 66In Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, at 228, Callinan and Heydon JJ said: "[T]he use of the word 'proper' ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future." 67Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), that "adequate" and "proper" are independent concepts. He said, at 12: "'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied ..." 68In Palaganio 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 there are no definite criteria by which the question can be answered. 69His Honour added, in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522, at [123]: "The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case 'including the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty' (Singer v Berghouse (1994) 181 CLR 201 at 210)." 70Until recently, it was unanimously thought that there are two stages of the determination. The first stage, provided for by s 59(1)(c), has been described as "the jurisdictional question": Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education or advancement in life of a particular applicant. The court does this by determining whether it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by operation of the intestacy rules, for the applicant. If it is not so satisfied, then the court is precluded from making a family provision order. At this stage, the court has regard to, among other things, 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 circumstances and needs of the other beneficiaries or potential beneficiaries: see McCosker v McCosker, at 571-572; Singer v Berghouse, at 209-210; Vigolo v Bostin, at [16], [75], [112]; Tobin v Ezekiel [2012] NSWCA 285, at [70]. 71Whether an applicant has a 'need' or 'needs' is also a relevant factor at the first stage of the enquiry. It is an elusive concept to define, yet, it is an element in determining whether "adequate" provision has been made for the "proper" maintenance, education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 (Tobias JA, with whom Beazley and Hodgson JJA agreed). 72In Collins v McGain, Tobias JA said: "42. Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies. ... 47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is 'proper maintenance etc' of the eligible person. It is because of that context that, in the present case, the 'proper maintenance etc' of the appellant required consideration of a need to guard against the contingency to which I have referred." 73In Devereaux-Warnes v Hall (No 3), at [81] - [84], Buss JA said, in respect of the first stage of the process: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227. 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11. The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575. Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]." 74"Need", of course, is a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]. It is different from "want". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now 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] UKHL 52; [2008] 1 WLR 1808, 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'. 75White J has recently written in Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473, at [147], that "the need a claimant must demonstrate is a need for 'proper' maintenance, education and advancement in life", but that does not mean that "adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others". 76As Callinan and Heydon JJ emphasised in Vigolo v Bostin, 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 on which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined. 77In the event that the court is satisfied that the power to make an order is enlivened (i.e. in this case it is satisfied that the applicants are eligible persons, and that adequate provision for their proper maintenance, education or advancement in life has not been made), then, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made. 78The second stage of the process arises under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour. 79I have dealt with the question that has been raised in other cases whether the two-stage approach identified in Singer v Berghouse continues to apply to the provisions of the Act in other cases, the most recent of which is Aubrey v Kain [2014] NSWSC 15. I remain of the view that the two-stage approach should continue to apply. I shall not repeat what I said in that case, which is not affected by the recent decision of the Court of Appeal in Phillips v James [2014] NSWCA 4, or its decision of Verzar v Verzar [2014] NSWCA 45. 80(Since I delivered my reasons in Aubrey v Kain, Robb J has also considered the topic in Janette Susan Gardiner v Raymond James Gardiner as Administrator of the Estate of the Late Dulcie Eva Gardiner [2014] NSWSC 435. I respectfully adopt his Honour's reasoning, set out at [117] - [120], and [124], as to the persuasiveness of the reasoning of Barrett JA in Andrew v Andrew [2012] NSWSCA 308; (2012) 81 NSWLR 656. I also refer to what has been written by Bergin CJ in Eq in In the Estate of the late Anthony Marras [2014] NSWSC 915 at [15].) 81Ultimately, as Allsop P said in Andrew v Andrew, at [6], "it may be an analytical question of little consequence" since the questions remain the same, namely, whether the court can make an order for provision (whether it is satisfied 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), and if so, whether it should (whether to make an order and, if so, the terms of that order). 82Section 60 of the Act, at least in part, is new. It provides: "(1) The court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the 'applicant') is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person-the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered." 83It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew, 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 purposes of determining eligibility, whether to make a family provision order and the nature of any such order. 84It was said by White J in Slack v Rogan; Palffy v Rogan, at [121], that s 60 "lists a wide range of matters" that the court "may have regard to", but these do not provide any tangible assistance in answering the question in any particular case whether the provision made in a will was less than adequate for an eligible applicant's "proper" maintenance, education or advancement in life". 85In West v Mann [2013] NSWSC 1852, Kunc J at [12], wrote: "Section 60(2) provides a helpful checklist but it is no more than that. The Court is not obliged to take those matters into account. The extent to which it does (if at all) will depend upon the facts of each particular case. Section 60(2)(p) confirms the breadth of matters the Court can take into account. Once enlivened, the Discretion is expressly fettered only by the requirement in s 59(2) that if an order is made, it must be such order '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'". 86Beazley P, in Phillips v James, at [51], described s 60(2) as involving: "... a statutory iteration of matters that had always been considered relevant in the determination of claims for provision by persons claiming an entitlement under a testator's will. However, as Basten JA observed in Andrew v Andrew, the factors identified in s 60(2) provide a more focussed direction to the Court as to relevant matters to which regard may be had. His Honour was of the view that the statutory list invites consideration of a broader range of factors than was previously the case. Whether or not that is so, the important matter is that the Court is required to have regard to the circumstances, including those specified in s 60(2), that it considers relevant in determining whether to make an order for family provision and the nature of any such order." 87The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of such of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed is, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender. 88It 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. For example, when considering eligibility under s 60(1)(a), many of the matters in s 60(2) will be largely, if not wholly, irrelevant. 89A 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). 90Leaving 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. 91Section 65(1) of the Act requires the family provision order to specify: (a) the person or persons for whom provision is to be made, and (b) the amount and nature of the provision, and (c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and (d) any conditions, restrictions or limitations imposed by the court. 92The order for provision 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). 93Any family provision order under the Act takes effect, unless the court otherwise orders, in the case of intestacy, as in a Will of the deceased (s 72(1) of the Act). 94Section 66 of the Act sets out the consequential and ancillary orders that may be made. 95Section 99(1) of the Act provides that the court may order the costs of proceedings in relation to the estate, or notional estate, of the deceased (including costs in connection with mediation) to be paid out of the estate in such manner as the court thinks fit. 96Section 100 of the Act provides, in subsection (2) that in any proceedings under Chapter 3, evidence of a statement made by a deceased person is, subject to this 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. 97Section 100(5) of the Act provides: "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."

Other Applicable Legal Principles - Substantive Application 98Accepting 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. 99Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve "an overall fair" disposition of the deceased's estate. It is not part of the court's function to achieve some kind of equity between the various claimants. The court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act to correct the hurt feelings, or sense of wrong, felt by an applicant. Rather, the court's role is of a specific type and goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance, education and advancement in life of an applicant. 100The court's discretion 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 [1962] HCA 19; (1962) 107 CLR 9; (1962) ALR 775; (1962) 36 ALJR 1, at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90, at [63]. 101As Pembroke J said in Wilcox v Wilcox [2012] NSWSC 1138, at [23]: "The court does not simply ride roughshod over the testator's intentions. The court's power to make an award is limited. The purpose of the discretionary power under Section 59(1) is to redress circumstances where 'adequate provision' has not been made for the 'proper maintenance, education or advancement in life' of the claimant. The adjectives 'adequate' and 'proper' are words of circumspection. They imply no more than is necessary. I should ensure that 'adequate provision', rather than generous provision, is made, having regard to the burden on the defendant." 102Of course, in this case, the pre-ordained scheme for distribution of the deceased's estate is not according to the wishes of the deceased as expressed in a Will, but according to the regime established by statute. It was said in Uniform Succession Laws: Intestacy [2007] NSWLRC 116, at 1.23: "The rules of distribution on intestacy are, at the most general level, the community's view of what should be done with the estate of a person who has died intestate. The parliaments of the various Australian jurisdictions, as representatives of their communities, have established and amended the rules from time to time. One of the purposes of this Report is to determine the extent to which any proposed scheme of distribution meets the collective requirements of the Australian community [Footnotes omitted]". 103In Re Estate of Bridges (1975) 12 SASR 1, Bray CJ noted: "In the case of an intestacy, as much as in the case of a will, it seems to me that Parliament has indicated its intention that the scheme of things set up by a testator in his will, or by the law of the State in the event of intestacy, shall be interfered with so far as is necessary to make adequate provision for the proper maintenance, education and advancement of the claimants specified in the Act, but no further. It is true that when the persons entitled on intestacy are the surviving spouse and legitimate children of the deceased as opposed to collateral relations the speculation that the deceased may have intended to die intestate may have more cogency, but nevertheless I repeat that I think the correct approach is as I have said. I think that Parliament no more intended to grant an unlimited liberty to recast dispositions resulting from the law of intestacy on moral grounds than it did to give a similar liberty to recast dispositions made by will." 104In Kossert v Margaret Gerda Ruggi As Executor of the Will of Peter Korps (No 2) [2012] WASC 191, at [38], Kenneth Martin J, after referring to the passage in Re Estate of Bridges, noted: "So, in going about the task of resolving this Inheritance Act application... I must respect the effect of the intestacy laws of the day in terms of the result they would deliver..." 105I respectfully agree with what Bergin CJ in Eq wrote (omitting transcript references), in In the Estate of the late Anthony Marras, at [116] - [117] and [124] - [125]: "It was submitted that s 113 of the Act is just one of the mechanisms that the legislature has used to protect the interests of a surviving spouse... It was submitted that it was also notable that the formula in s 106 in respect of the statutory legacy provides an adjustment based on the Consumer Price Index (CPI) and also makes interest payable after one year at a rate which is 2% higher than the last relevant cash rate published by the Reserve Bank of Australia. It was submitted that the previous applicable provisions in the Probate and Administration Act 1898 contained similar protections for the surviving spouse. At the outset of his final submissions Mr Mantziaris contended that the statutory regime on intestacy provides a very definite intention to preserve the real value of what he referred to as the 'minimum irreducible portion of the estate for the surviving spouse'. It was submitted that if the Court is to make orders for provision under s 59 of the Act for any of the applicants then it should not do so by interfering with that so called 'irreducible minimum'. Mr Mantziaris submitted that the intention of s 113 of the Act is that the statutory legacy (the irreducible minimum) is protected from the Court's interference, where the value of the estate exceeds the statutory legacy. However in submissions in reply Mr Mantziaris clarified his position. He said that he did not suggest there was an 'absolute prohibition on going into the statutory legacy'. ... I am of the view that Mr Mantziaris' submissions in this regard should be rejected. The intestacy provisions of the Act may be viewed as though the deceased had made a will whereby he directed that his estate should be distributed as on intestacy. The fact that such distribution is statutory does not assume any particular importance: Re Russell [1970] QRWN 55 at 56. Just as there is no basis for cocooning any aspect of a testator's proposed distribution of the estate under a will as an irreducible minimum, if the Court reaches the view that it is necessary to interfere with the distribution to ensure adequate provision is made, there is no basis for cocooning any particular part of the distribution under the statutory provisions on intestacy. I am not satisfied that a reasonable reading of the Act leads to the conclusion that a Court may not interfere with the statutory legacy of a surviving spouse, if in all the circumstances the provision under the rules of intestacy in respect of the children of the deceased is inadequate. The Court is able to interfere with the statutory regime, including the statutory legacy, in so far as it is 'necessary to make adequate provision' to any applicant under s 59 of the Act: In the Estate of Bridges (deceased) at 5-6. Whether such interference is justified will depend upon the circumstances of the particular case." 106The court is given not only a discretion as to the nature and amount of the provision it directs but, even more importantly, a discretion as to making a provision at all. 107Yet, 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. 108As Allsop P said in Andrew v Andrew, at [16]: "If I may respectfully paraphrase Sheller JA [in Permanent Trustee Co Limited v Fraser (1995) 36 NSWLR 24 at 46F-47B], the Court in assessing the matter at s 59(1) and the order that should be made under s 59(1) and (2), should be guided and assisted by considering what provision, in accordance with prevailing community standards of what is right and appropriate, ought to be made. This, Sheller JA said ... involved speaking for the feeling and judgment of fair and reasonable members of the community. It is to be emphasised that s 59(1)(c) and s 59(2) refer to the time when the Court is considering [an application for a family provision order] and the facts then known to the Court. The evaluative assessment is to be undertaken assuming full knowledge and appreciation of all the circumstances of the case. This ... makes the notion of compliance by the testator with a moral duty (on what he or she knew) apt to distract from the statutory task of the Court." 109How those community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew, at [36] (Basten JA). His Honour added, in Phillips v James, at [113]: "As discussed by Allsop P in Andrew v Andrew [2012] NSWCA 308; 81 NSWLR 656 at [16], one can say little more as to the standards and values to be applied than that the court should be guided by its perception of 'prevailing community standards of what is right and appropriate'. Views will undoubtedly vary within the community as to the weight to be given to a testator's wishes as expressed in the will: Andrew v Andrew at [35]." 110Thus, "there are difficulties for the Courts in making their own unaided assessment of current community attitudes in a complex and changing social environment": Williams v Aucutt [2000] 2 NZLR 479, at [44]. 111In all cases under the Act, what is adequate and proper provision is necessarily fact specific. 112The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice; Allardice v Allardice (1910) 29 NZLR 959, at 966. The use of the word 'proper' requires consideration to be given to more than satisfying the basic needs of an applicant. The standard of living of an applicant during the lifetime of the deceased is relevant, but the fact that an applicant has lived frugally, or that he or she, has become accustomed to a life of relative penury, does not mean that the deceased's obligation under the Act is satisfied so long as the applicant can continue in that state: Pogorelic v Banovich [2007] WASC 45, [62]; Butcher v Craig [2009] WASC 164, at [21]. 113Nor is it the purpose of the Act to punish, or redress, past bad, or unfeeling parental behaviour, where that behaviour does not still impinge on the applicant's present financial situation. In other words, a claim under the Act does not encompass compensation, or reparations, to an applicant for the deceased as his, or her, parent, having failed in the legal, or moral, duty to be a good and responsible parent of the child: Re Bull [2006] VSC 113; Cameron v Cameron [2009] SASC 27, at [41]. 114All of the financial needs of an applicant have to be taken into account and considered by reference to the other factors referred to in the Act and in Singer v Berghouse. What is proper provision is not arrived at by adding up all of the identified financial needs: Hyland v Burbidge [2000] NSWSC 12, at [56]. Nor does it follow that if the court decides it is inappropriate to make a specific provision in respect of one identified head of claim that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment: Mayfield v Lloyd-Williams, at [89]. 115The size of the estate is a significant consideration in determining an application for provision. 116In relation to the Plaintiff's claim, being a claim by an adult child, the following principles are useful to remember: (a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, 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: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801. (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute: Taylor v Farrugia, at [58]. (d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland, Deceased [1966] VR 404, at 411; Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, at 148; Goodman v Windeyer, at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons: Re Buckland, Deceased, at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532, at 537; Mayfield v Lloyd-Williams, at [86]. (e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2), at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37, at 45 (Nicholson J). (f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: Macgregor v Macgregor [2003] WASC 169 (28 August 2003), at [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, is relevant: Marks v Marks [2003] WASCA 297, at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig, at [17]. (g) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd, at 149. 117In Foley v Ellis, Sackville AJA, at [88] 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". 118Generally, the duty of the deceased to his widow, to the extent to which his assets permit him to do so, is to ensure that she is secure in the matrimonial 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: see, for example, Luciano v Rosenblum (1985) 2 NSWLR 65, at 69. The Court of Appeal, in O'Loughlin v O'Loughlin [2003] NSWCA 99, approved that "broad general rule". 119In this case, it is clear that the principles that would otherwise apply to the competing claim of a widow, would not apply. This is not a case where the deceased died a short time after the marriage, but one where the widow, herself, appears, to have ended the marriage by leaving the deceased, never to return (apart from the 6 week period earlier referred to). 120I make clear that I do not intend what I have described as "principles" to be elevated into rules of law. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion at the second stage to be constrained, by statements of principle found in dicta in other decisions. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind. 121In addition, in each case, a close consideration of the facts is necessary in order to determine whether the bases for a family provision order have been established. Every case is different and must be decided on its own facts. As Lindsay J said in Verzar v Verzar [2012], 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]."

Further Additional Facts 122I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar [2012], at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered. (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship 123As stated, the Plaintiff is a child of the deceased. Following the breakdown of his parents' marriage, he did not see much of the deceased. In fact, between the ages of 6 and 21, they only saw each other a few times. He conceded, in his affidavit, that it was difficult to develop a father son relationship with the deceased. 124I am satisfied that the Plaintiff and the deceased had a remote relationship and, even though they do not appear to have seen a great deal of each other, the deceased sent him a message via social media stating "I do care you know. Think about you daily." 125The Plaintiff is now an adult. He invited the deceased to his wedding but, due to illness at the time, the deceased did not attend. The Plaintiff and his family subsequently visited the deceased in Griffith. Following the death of the deceased, the Plaintiff observed that the deceased had photographs of him on his wall and that he had followed the Plaintiff's career progress on the Internet. 126I have earlier referred to the Plaintiff being the substitute sole beneficiary named in the 1988 Will. It is noteworthy that he is included as the substitute beneficiary. (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 127There is no definition of the words "obligations" or "responsibilities" to which the sub-section refers in the Act. Importantly, the Act does not expressly refer to, or identify, any "moral duty". Yet, one might conclude that what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities. 128This factor requires a balancing of potentially competing obligations as between an applicant and others who have a claim on intestacy. 129Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to the Plaintiff, as an adult, imposed upon him by statute or common law. 130Yet, an obligation, or responsibility, to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child. In Flathaug v Weaver [2003] NZFLR 730, at 737, the origin of the obligation which underpins the Act's recognition of the duty owed by a parent to a child was put in this way: "The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives." 131The relationship and the marriage of the deceased and Ms Phuangnui was an extremely short one, and there is a real question, if what she is alleged to have said to the deceased was said, and was true, whether the marriage was a sham. 132I am of the view, in the circumstances of this case, that the deceased did not have any legal obligation to Ms Phuangnui, as his wife, imposed upon him by statute, common law or otherwise. (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 133I have dealt with the nature and extent of the actual estate. The value of that estate is extremely small. (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 134The Plaintiff owns the following assets: Superannuation (Military Super) $237,305 Superannuation (Colonial First State) $43,583 Investment Property (Northlakes, Queensland) (jointly owned with his wife, Bettina Mears) $400,000 2006 Holden Commodore $10,000 2014 Holden Calais $48,000 St George Everyday account (jointly owned with his wife, Bettina Mears) $17,802 St George Incentive Saver account (jointly owned with his wife, Bettina Mears) $52,065

135In written submissions, it was put by senior counsel that, although the Plaintiff and his wife own the above assets, "a significant component of their assets is comprised of superannuation ($280,888) which will not be accessible to them for many years". The submissions also said that the 2014 Holden Calais motor vehicle "will rapidly lose value". 136The Plaintiff's liabilities were said to include: Home Loan on the Northlakes Property $330,995 Defence Bank Overdraft $3,340 Mastercard Debt $3,500

137The Plaintiff holds the rank of sergeant with the Royal Australian Air Force (RAAF), working in Amberley, Queensland. He earns a gross monthly income of $8,007. 138While, in November 2013, the Plaintiff said that he was "concerned about job security in the future" and had concerns regarding "difficulties finding a job in the private sector" were he to cease employment with the RAAF, he subsequently obtained a promotion from the rank of corporal to the rank of sergeant and has received a concomitant increase in income. I am, therefore, satisfied that he has a continuing earning capacity. 139The Plaintiff says that his family's estimated monthly expenditure is $9,627. I note, however, that some expenses may not be recurrent on a monthly basis or may be excessive. For example, there are substantial costs referable to furniture ($175), gifts ($167), holidays ($938), computer maintenance ($257), entertainment ($119) and eating out/take-away ($169). Also, $370 is identified, without further explanation, to be used for "miscellaneous expenses". 140There is no evidence going to the financial resources of Ms Phuangnui. (e) if the applicant is cohabiting with another person-the financial circumstances of the other person 141The Plaintiff's wife works on a part-time basis with the Department of Defence Health and earns a net income of $1,812 per month. She also receives approximately $1,000 to $2,000 per month, non-taxable, from the RAAF military reserve depending upon the demand for work. 142I am satisfied, albeit on limited evidence, that the Plaintiff's wife also has a continuing earning capacity. 143The Plaintiff also resides with his, and his wife's, two children, currently aged 7 and 10. It is clearly unnecessary to consider the financial circumstances of the children and I accept the Plaintiff's evidence that they are supported, wholly, by him and his wife. (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 144The Plaintiff states that he suffers from extreme migraine headaches, which, as at October 2013, were "reasonably well controlled". The Plaintiff gave evidence that "he remains on preventive medication". On occasion, he has had "breakthrough headaches and some of these have required short absences from work". He, however, "remains fit for ongoing military service and operational deployment". (g) the age of the applicant when the application is being considered 145The Plaintiff was born in January 1971 and is currently 43.5 years of age. (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant 146There is no evidence about the Plaintiff's direct contribution to the welfare of the deceased, other than as set out above. 147His real contribution, which, in my view, was significant, appears to have occurred after the deceased's death in maintaining the deceased's estate. He has set out, in some detail, the steps that he has taken to assist in the organisation of the deceased's affairs, including dealing with the mortgagee and the local Council, in relation to arrears of mortgage payment and outstanding rates, respectively. (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 148There is no evidence that the deceased made any provision for the Plaintiff during the deceased's lifetime or from his estate. The Plaintiff states that the deceased did not make any provision for him at all during his lifetime, including, that he did not pay any maintenance to his mother. There is no reason to not accept this evidence. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person 149I have earlier referred to the Will. That is the only information about the testamentary intentions of the deceased. The deceased did not speak with the Plaintiff about his testamentary intentions. (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 150The Plaintiff was not being maintained, either wholly or partly, by the deceased, at the time of his death, or it would appear, at any other time. (l) whether any other person is liable to support the applicant 151There is no other person, other than, perhaps, the Plaintiff's wife, with a responsibility to continue to provide for the Plaintiff. (m) the character and conduct of the applicant before and after the date of the death of the deceased person 152An evaluation of "character and conduct" may be necessary, not for the sake of criticism, but to enable consideration of what is "adequate and proper" in all the circumstances. Importantly, the Act does not limit the consideration of "conduct" to conduct towards the deceased. 153There is no conduct of the Plaintiff that I consider relevant. (n) the conduct of any other person before and after the date of the death of the deceased person 154As I have stated, I have some concerns about the conduct of Ms Phuangnui. In any event, that she and the deceased were separated for so many years prior to his death is much more relevant. (o) any relevant Aboriginal or Torres Strait Islander customary law 155This is not relevant. (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 156There is no other matter that I consider relevant.

Determination 157Being an "eligible person" is a necessary precondition to the court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. In this case, there is no dispute that the Plaintiff, as a child of the deceased, is an eligible person within the meaning of s 57(1)(c) of the Act. 158There is also no dispute that he commenced her proceedings within the time prescribed by the Act. 159Having established eligibility and that the proceedings were commenced within time, relevantly, the first question for determination is whether, at the time the court is considering the application, adequate provision for the proper maintenance or advancement in life, of the Plaintiff, has not been made by the operation of the intestacy rules. Whether such provision has been made requires an assessment of his financial position, the size and nature of the deceased's estate, the relationships between him and the deceased and other persons who have legitimate claims upon his or her bounty and the circumstances and needs of those other persons: see Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 75, at [70] and McCosker v McCosker [1957] HCA 82; 97 CLR 566, at 571-572; Singer v Berghouse, at 210; and Vigolo v Bostin, at [16], [75], [112]. 160Having considered the matters I am required to consider, I am satisfied that the deceased did not make adequate provision for the proper maintenance and advancement in life for the Plaintiff by operation of the rules of intestacy. He does not receive any provision if Ms Phuangnui is alive. 161It is also clear that the Plaintiff has some immediate "needs". As stated above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence. Nor is it limited to whether the applicant has, at the date of hearing, an immediate need for financial assistance with respect to his maintenance. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The term is also used in the in the sense of what was necessary for the applicant's "proper maintenance, education and advancement in life": Akkerman v Ewins [2003] NSWCA 190, per Tobias JA, with whom Beazley and Hodgson JJA agreed. 162The fact that the Plaintiff and his wife are currently able to survive on their joint income is of little significance when one considers the obligation and responsibility owed to the Plaintiff by the deceased. 163The more difficult question then arises, namely what provision "ought to be made for the maintenance, education or advancement in life" of the Plaintiff, 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. It is not a scientific, or arithmetic, exercise. 164As there is no other person with a significant competing claim upon the deceased's bounty, I am of the view that the Plaintiff should receive the whole of the residue of the deceased's estate, after the payment of debts, funeral and testamentary expenses, and any liabilities of the estate, including the Defendant's costs of these proceedings. The amount will go towards paying off his share of the mortgage debt or will otherwise provide an accessible fund for exigencies of life. 165Given the short duration of the deceased's relationship and marriage to Ms Phuangnui and the fact that Ms Phuangnui made no real contribution to the estate (either financial or by way of support in building up the estate), or, it would seem, to the welfare of the deceased, I am of the view that there is no requirement for the deceased to have made any provision for her. 166It is unnecessary to make an order for the Plaintiff's costs since he is receiving the whole of the residue of the deceased 167Accordingly, I make the following orders: (a) Pursuant to s 91 of the Succession Act, that administration in respect of the estate and notional estate of the deceased, John Carlton Mears, be granted to the Plaintiff for the purposes only of permitting his application for a family provision order to be dealt with. (b) Compliance with the Court Rules in relation to Order 1 above be, and are hereby, dispensed with. (c) The Defendant's costs, calculated at $3,880, or such other sum as is agreed to by the parties, or permitted by the court, should be paid out of the estate of the deceased. (d) The Plaintiff is to receive the whole of the residue of the deceased's estate after the payment of debts, funeral and testamentary expenses, and any liabilities of the estate, including the Defendant's costs of the proceedings. (e) Makes no order as to the Plaintiff's costs, to the intent that he will bear his own costs of the proceedings. (f) The directions hearing at 9:30 a.m. on Thursday, 24 July 2014 is vacated.

Amendments 17 July 2014 - Typographical error Amended paragraphs: 167 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: 17 July 2014