Meres v Meres

Supreme Court of NSW|2017-02-28|Before: Hallen J

The Relationship of the Plaintiff with the deceased

The relationship of each of the parties with the deceased is, of course, an important consideration. As will be read, the Act specifically provides for consideration of "the character and conduct of the applicant" and "the conduct of any other person". (Although the reference to conduct does not expressly refer to the conduct of the deceased and of the beneficiaries, it must be a relevant factor in assessing the relationship of the deceased and any other person": Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107, per Basten JA, at [25]).
The Plaintiff deposed to a loving and caring relationship with both the deceased and the parties' father that had existed since his childhood. Following the deterioration in the health of both the deceased and the parties' father, the Plaintiff also asserted, and I accept, that he assumed a significant degree of caregiving responsibilities for each of them as well.
In 1980, the Plaintiff was sentenced to 5.5 years jail (with a non-parole period of 2 years and 9 months) for trying to import 10 kilograms of cannabis into Australia. His parents provided the security of their home to secure the Plaintiff's bail and they visited him whilst he was incarcerated.
It is likely that the Plaintiff's criminal conduct, even if not directly affecting the deceased, created what might be regarded as the "normal disappointment and anguish of a mother at her son's wrongdoing" (Re Smith (Deceased) (1991) 8 FRNZ 459 at 463). However, this did not prevent her making provision for him in her last Will or in earlier testamentary instruments.
After being released from jail, the Plaintiff did not live with the deceased until about 1989 or 1990. From then, he lived with them, and then with the deceased alone, at the Rockdale property.
After the deceased suffered a stroke in 1994-5, her vision, which was already compromised by macular degeneration, deteriorated further. The Plaintiff says that this resulted in her increased reliance upon him. As a result of the combined health problems of the deceased and the parties' father (who had also suffered a stroke in 1991), the Plaintiff states that "for the next 20 years I continued looking after my parents and did the vast majority of the house work and cleaning and the like".
I accept his evidence in this regard as there was no substantial challenge to it. It demonstrates that the Plaintiff is a child of the deceased who had remained exceptionally close to her, and who had supported and nurtured her in her old age. However, the Plaintiff accepts that, at least in part, he "was living off my parents' various pensions but I was working hard for the money". In 2014, the Plaintiff began receiving a carer's allowance.
Although separated, the deceased and the parties' father maintained an amicable relationship and remained in close contact. When a fall in 2014 meant that the parties' father was placed in a nursing home in Sydney, the Plaintiff took the deceased every week to the nursing home to visit.
The deceased wrote a letter, dated 8 March 2004, in which she referred to an incident when the Defendant used offensive language towards her and the Defendant's maternal grandmother. The letter ended with the statement "I do not want Rodney to get a penny from my estate".
Similarly, in a prior Will made on 3 July 2013, the deceased wrote: "I HAVE NOT made provision for my son RODNEY STANLEY MERES as we have not had a mother/son relationship for approximately 40 years and I DO NOT wish him to benefit under my Will".
In that Will, the Plaintiff received the Rockdale property in remainder following the death of the parties' father who had received it "for life or until remarriage or until he permanently vacates the home whichever event first occurs".
However, after the deceased became seriously unwell and was hospitalised in late December 2014, her stance towards the Defendant softened. The Plaintiff asserts that it was as a result of medical advice that the deceased was not expected to survive more than 6 weeks that the she changed her Will to provide for the Defendant.
(The reasons for the change are not very important since it is not asserted that the Defendant had anything to do with the deceased changing the Will.)
As her health care needs increased, the deceased was admitted to a nursing home in June 2015. Following this, the Plaintiff visited the deceased every day, often bringing the parties' father to visit the deceased as well.
There was really no dispute that the Plaintiff was a loving, caring and dutiful son to the deceased.

The Relationship between the Defendant and the deceased

Whilst the Plaintiff described his and the Defendant's relationship with their parents as "close" when they were young, he asserted that by his mid-30's, his "parent's relationship with my brother had totally fallen apart". He attributes the initial breakdown of their relationship to his parents' disapproval of the Defendant's relationship, at that time, with a woman who had two children by a previous marriage.
The Defendant's view of his relationship with his parents was that "it was strained…and my childhood and teenage years were not happy."
The Plaintiff also suggested that the estrangement between the Defendant and the deceased, at least in part, was due to the threat of physical violence from the Defendant towards the deceased. The Plaintiff asserted that the deceased told him that the Defendant had "threatened to kill me with a shotgun", and that the deceased, therefore, took out an apprehended violence order and that as a result, "from that that time on there was no contact [between the Defendant and the deceased] at all for many, many years".
The Plaintiff contended that the Defendant was estranged from the deceased, from their father, and from the Plaintiff himself, for over 20 years prior to the death of the deceased, stating that "I have had no contact with my brother, nor have my parents, to my knowledge, since my father had his major stroke in 1991. On that occasion he showed up for an hour and visited. He has not to my knowledge visited my mother or father since that time". This was really not disputed by the Defendant.
A copy of a letter, dated 8 March 2004, in the handwriting of the parties' father, stated that "My second son Rodney Stanly (sic) Meres is to receive no benefits from my will". The letter goes on to explain that this decision was based on behaviour by the Defendant which the parties' father felt indicated a lack of respect for the deceased which led to the Defendant being asked to move out of the family home.
The Plaintiff also deposed that the Defendant did not attend the funeral of either the deceased or the parties' father. The Plaintiff contends he had a conversation with the Defendant on 18 June 2016 where the Defendant said words to the effect "I had no intention of showing up to mum's funeral but I was thinking of showing up for dad's but when I found out that he left me nothing in the Will I was glad that I didn't."
Although in his affidavit sworn 22 November 2016, the Defendant admitted to the deterioration of his relationship with the deceased and his father as a consequence of their disapproval over his then relationship, he denied ever having made the threats referred to by the Plaintiff. Although he denied that there was ever an apprehended violence order in place, the Defendant did, nonetheless, admit that there had been a court order, at the time, in place, that prevented him from "going anywhere near [the Rockdale property] or having any further dealings with [his] parents".
Although the Defendant confirmed he had spoken to the Plaintiff on the 18 June 2016, he denied the contents of the conversation as stated by the Plaintiff. He asserted that he did not become aware of the death of the deceased until he read the death notices in the local newspapers about a week after the funeral had taken place. Nothing significant turns on the disputed evidence.
Far more important is the fact that there is no evidence that indicates that the Defendant took any steps to remedy any estrangement that existed between himself and the deceased (or the parties' father) that had existed for so many years. As to the reasons for the estrangement itself, the Defendant stated that "I had a strained relationship with my parents and that my childhood and teenage years were not happy". It is clear, from all of the evidence, that the Defendant had made his life entirely separately from the deceased for many years before her death.
Having gone into the relationship in some detail, and even though the relationship of the Defendant and the deceased was not a close one, it cannot be forgotten that he is a chosen object of the deceased's testamentary bounty. The deceased decided, by making the Will that she did, that she had a remaining obligation to make provision for her independent adult son despite their relationship. It follows that the Defendant does not have to explain or justify the provision made for him, or prove that he deserved the provision that the deceased chose to make for him.
The Court, in determining an application for a family provision order, 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: s 61 of the Act.
Finally, I should mention that the Defendant was not cross-examined.

Plaintiff's Financial and Material Circumstances

As stated, the Plaintiff is 66 years of age, and is a single man with no dependents. He is unemployed, having not been in full-time employment for over 20 years. I am satisfied that he does not have an earning capacity.
The Plaintiff has lived in the Rockdale area for most of his life. He gave unchallenged evidence that all of his friends and associates live in the area or in the St George municipality; his stepdaughter is close by in Marrickville; his medical general practitioner is in Arncliffe; his treating oncologist is at Hurstville; he does his shopping at Rockdale Plaza; and his solicitors are at Rockdale or Kogarah. He feels comfortable in the area and is able to get around the area readily. He frequents the local beaches and clubs.
The Plaintiff emphasised the importance of his connection with the garden at the Rockdale property, to which garden he has tended for over 20 years. In cross-examination, however, he gave the following evidence, at T30.36 - T31.05: "Q. Mr Meres, you would agree with me, wouldn't you, as a long term resident of Rockdale, that $550,000 is enough money in which to purchase a property in Rockdale? A. I would have to answer yes, that would be enough money to purchase a property at Rockdale. But it does not take into account for that sort of money, I would have to consider living in a unit, and I just that is something that is just too much for me to accept. I have maintained the gardens. I am an avid gardener. I have so many plants down there, it's the reason why I am seeking to live in that property is because that garden represents survival for me. During the time that I was looking after my mother when she was seriously ill, and when I was going through my own illnesses, that garden was the only thing that represented anything to me for my spiritual and mental well being. Q. Just stop you there, Mr Meres. You do describe your attachment to the garden and the plants in your affidavit? A. Yes. Q. …Do you accept that there are properties available in the range between $550,000 and $750,000 that have gardens? A. Yes, I have to accept that."
There was some criticism made of the Plaintiff for not having referred to his desire to remain living in the Rockdale property in his first affidavit, but rather that he would like "a nest egg of $400,000". The Plaintiff said it was an oversight and that his "wish from day one, as I have just said, is that I could stay in that property. It is my fervent wish".
As at 21 February 2017, the Plaintiff had cash in bank, being the proceeds of sale of the Durras Lake property ($351,564); other money from his father's estate ($6,881) and a 1968 Porsche 911 Coupe ($20,000). (The parties' father had certain IAG shares, but they were sold and the proceeds of sale were banked are included in the money: T37.10-T37.13.)
The Plaintiff did not disclose any liabilities, but, of course, he will have some, including perhaps, some costs of these proceedings.
At the hearing, the Plaintiff stated that he received income only by way of the aged pension of about $877 per fortnight, and that his expenditure was about $816 per fortnight, leaving a surplus of about $61 per fortnight: T33.20 - T33.27.
The Plaintiff was cross-examined about the lack of documents produced by him in answer to a Notice to Produce: Ex. 2. The cross-examination, principally, seemed to relate to documents surrounding his ownership of the 1968 Porsche 911 Coupe. Whilst it was suggested to him in cross-examination that the car had a greater value than the Plaintiff had attributed to it, really nothing much turns on this. The car was described by the Plaintiff as in the course of restoration and as "an unfinished project". It was not suggested that the Plaintiff, otherwise, had not disclosed his current financial circumstances.
The Plaintiff gave evidence of suffering from a number of health complaints: back and neck pain and restriction of movement relating to a snow skiing accident in 1989 and two car accidents (in 2014 and June 2015); diagnosis of cancer of the tongue in November 2015; a history of coronary problems (heart attacks in 2000 and 2006); and a more recent diagnosis of diverticulitis.
At the hearing, the Plaintiff acknowledged that in relation to a car accident in which he was involved in June 2015, he had started proceedings for damages for personal injury. He stated that he believed that "an application to the Medical Assessment Service of the State Regulatory Authority will be made sometime later this year".
However, the Plaintiff said that he had not been given advice on the precise quantum of damages he could expect to receive if successful in his claim, although he had "discussed with [his] lawyers who represent you in those proceedings the range of likely outcomes" and that he had been told that he might win the case. He was unsure of the likely amount of compensation because although he had seen the doctors for the insurance company and his solicitors had referred him to medicolegal specialists, he had not completed all of the medical appointments. He also accepted that his lawyers, in those proceedings, had agreed to act on a "no win no fee basis": T 25.40 - T26.15. (I infer that liability remains in dispute.)
I regard his claim for damages as a financial resource.
During the course of his oral evidence, the Plaintiff stated that he was prepared to pay all of the cash that he has to the Defendant in order to obtain the Defendant's interest under the deceased's Will in the Rockdale property. His evidence in cross-examination (at T35.15 - T38.10) was: "Q. Mr Meres, in your affidavit of 2 December last year you state that you had offered to my client a settlement under which you would receive the whole of the Bestic Street property and, in return, you would pay to my client the net proceeds of your late father's property at Durras Lakes. Is that correct? A. Yes. Q. And is that what you now say that the Court should order? A. Yes. Q. So your case is that my client should receive ($)351,000, which is what you've said is the net proceeds of the sale of the Lake Durras property? A. Yes. Q. And that Bestic Street should go to you outright? A. Could I just say there's additional costs that have come in on top of that. It's come up very close to $360,000. All of the assets, the shares and everything that were sold have all been put into the same account to make it appear that I'm prepared to give every asset that was available to me from the Durras Lakes property to my brother. Q. And that is your case today? A. Yes. Q. So you're saying not only the net proceeds of the Durras Lakes property, but also your other assets, which would be about another 7 or 8 thousand in cash? A. Could you just confirm that those two bank statements add up to that amount, please. Q. Well, your fairly recent affidavit of February the 21st or the 8th states that there was $6,881.97 in your father's bank account. A. Yes. … HIS HONOUR: All right. So there's $358,446. And as I understand Mr Meres's evidence, he's prepared to give that sum in its entirety to the defendant on the basis that he would retain the defendant's interest in the Bestic Street property. … Q. Mr Meres, in fact the whole story about needing or wanting to stay in Bestic Street, I put it to you, is nothing more than an attempt by you to make it appear to the Court that the provision made for you by your mother is inadequate when in fact it is obviously, together with what you received from your father's estate, his whole estate, quite obviously adequate and proper for you. A. Sir, you are presuming that - that I'm in it for monetary gain, and I'm not. The only thing that's on my mind is that I would dearly love to stay in that property in Bestic Street. That's it."
Following the series of questions and answers set out, I endeavoured to clarify the position (at T39.35 - T40.50): "Q. …Now, as I understood your evidence so far as Mr Liebhold's questions to you, was that to the extent that there's $358,000, being effectively the proceeds of the property you inherited from your father, you'd be prepared to give all of that to your brother effectively to purchase his interest in the Rockdale property? A. Yes ... Q. Have I understood that correctly? A. Yes ... Q. Thank you. And … you also said that you'd be prepared to sell the Porsche if that was necessary? A. Yes. Q. Could you help me then by telling me how would you be able, in that circumstance of having sold your Porsche, having effectively been prepared to give your brother all of the cash that you have available, how would you be able to pay your own legal costs of these proceedings? A. Something I haven't considered, to be honest with you ... Q. And similarly, to the extent that costs have been incurred by the defendant in defending the proceedings because you're the executor of the estate A. Yes ... Q. How would his costs be paid, in the scenario that you've advanced? A. Yes. I can't answer it ... Q. That's the difficulty of the case, is it not, Mr Meres? A. Yes. Q. That really, taking into account effectively - I think it's something in the order of $118,500, which is the sum of the two costs estimates - A. Yes. Q. $358,000 effectively becomes $240,000, and that would be if all of those costs were paid, that would be all that would be left. A. Yes. … Q. And what I'd like to know in those circumstances, realistically, is it possible to keep the Rockdale property? A. I would do everything in my power to, your Worship. Q. But you couldn't raise any more money. You've said you went to see the bank. A. Yes. Q. They said no. A. Yes. Q. There's just no way of raising any additional money, is there? A. No, your Worship. Even if I sold the Porsche, your Worship, I don't know how much I could achieve on that. You know, I would like to think that Mr Liebhold has been sprouting the prices, $200,000 or whatever, or $68,000. I'd ideally like to achieve that price, then I could. Q. Don't worry about that. On your estimate, there isn't even enough in the proceeds of sale of the Porsche to pay your legal expenses. A. Yes."
(The reference to approaching the Bank relates to evidence given by the Plaintiff that he had approached the Commonwealth Bank at Rockdale to see if he could borrow "a couple of hundred thousand dollars". The Bank had refused to provide a loan.)
The Defendant submitted that the fact that the Plaintiff has lived in the Rockdale property for so long is relevant, but to establish the provision made for the Plaintiff by the deceased during her lifetime, in providing him with free accommodation for almost all of his adult life. In addition, he has enjoyed sole use of the Rockdale property since the death of the deceased.
The issue of rent for his occupation was raised in a letter dated 2 September 2016 from the Defendant's solicitors to the Plaintiff's solicitors. The latter responded, by letter dated 8 September 2016, stating "Our client does not have the means to pay $650 per week rent and accordingly will not be doing so. Rent can obviously be adjusted notionally."
The Defendant submitted that by November 2016, the Plaintiff had enjoyed 77 weeks of rent-free accommodation in the Rockdale property since the death of the deceased. He provided some evidence (based on correspondence from a number of different real estate agents in the area, none of which was based on an inspection of the Rockdale property) that the rental value that could have been obtained (in about August 2016) was between $550 and $650 per week. The total value of the benefit obtained by the Plaintiff was estimated to have been about $50,000, calculated at the rate of $650 per week. It is about $42,350 if calculated at the rate of $550 per week. (In fact, the benefit to the Plaintiff would be half of any rent paid to the estate because of the terms of the deceased's Will.)
Of course, whatever is the correct estimate for the rent that would have been payable, it is clear that the Plaintiff has enjoyed a significant benefit by way of rent free accommodation since the death of the deceased. By the date of hearing, the Plaintiff had enjoyed another 13 weeks of rent free accommodation.
The Plaintiff is not cohabiting with another person.
The Plaintiff did not give any evidence of the costs of alternative accommodation in the Rockdale area, or otherwise. However, shortly before the hearing, the Defendant's solicitor, Mr J Kelly, swore an affidavit to which was annexed "a number of recent notices of properties for sale within the Rockdale area, together with letters from three real estate agents providing estimates of the likely sale prices of three house properties".
The covering letter dated 20 February 2017, addressed to the Plaintiff's solicitors from the Defendant's solicitors, summarised the position as follows: "Please find enclosed, by way of service, a copy of [9 identified properties] within the St George area from $550,000 to $749,000."
Mr Kelly was not cross-examined.
I have used this evidence simply to provide a guide as to what alternative accommodation might cost in the Rockdale area. (I also take into account that there would be stamp duty, legal costs of sale, and moving expenses.) It is clear that Mr Kelly's evidence was used to extract the concessions from the Plaintiff regarding the availability of alternative accommodation.

The Defendant's Financial and Material Circumstances

I have earlier noted that the Defendant has chosen not to disclose his financial and material circumstances. He put on no evidence that he was in financial need, or that he would be significantly prejudiced if provision were made in favour of the Plaintiff. The evidence that was read revealed that he had managed his life for many years without any benefit, or expectation of benefit, from the deceased.
The Defendant is married and has two children.
Of course, the Defendant is entitled to elect to remain silent about his financial resources and needs, and simply look to the Court to not disregard the deceased's freedom of testamentary disposition and the deceased's disposition to him as a part devisee, regardless of his financial position or needs.
On this topic, in Sammut v Kleemann [2012] NSWSC 1030, at [137] - [140], recently repeated in Jodell v Woods [2017] NSWSC 143, I wrote: "The question, then, is what flows from a beneficiary's silence? The answer is, in those circumstances, that the court is entitled to infer that the beneficiary has adequate resources upon which to live and that he, or she, does not wish to advance a competing financial claim upon the bounty of the deceased… However, the claims of a beneficiary, as the chosen object of the deceased's testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, and also as a person whose interest in the estate may bear the burden of the order made in favour of the applicant, are to be borne in mind. (It is to be remembered that the Court must specify, amongst other things, 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: s 65(1)(c) of the Act.) Where there is no evidence from the beneficiary, it is those claims (i.e. as the chosen object of the deceased's testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, or as a person whose interest in the estate may bear the burden of the order made in favour of the applicant), rather than any financial claim upon the bounty of the deceased, that should be considered. Put another way, and using the oft-quoted words of Salmond J in Re Allen (deceased); Allen v Manchester [1922] NZLR 218, at 220, the Court is not able to have regard to "the means" of the beneficiary, but the Court may still consider "the deserts of the several claimants" and the "relative urgency" of the various moral claims upon [the deceased's] bounty". The Court will, thereby, give due regard to "what the testator regarded as superior claims or preferable dispositions" as demonstrated by his, or her, will: Pontifical Society for the Propagation of the Faith v Scales at 19, per Dixon CJ. In this way, too, the Court gives weight to the principle of freedom of testation referred to earlier."
Also see, Anderson v Teboneras [1990] VR 527; [1990] VicRp 47 at 535, per Ormiston J; Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285, at [94]; Poletti v Jones, at [23] (Basten JA).

The Statutory Scheme

Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. The Act stipulates no automatic entitlement to provision and the deceased's Will applies unless a specific application is made to, and acceded to, by the Court.
As the Plaintiff's eligibility to make an application and the commencement of the proceedings within time is each not in issue, the only questions for the Court to determine are whether the Plaintiff has been left with inadequate provision for his proper maintenance, education and advancement in life and, if so, what, if any, further provision ought to be made out of the estate of the deceased for those purposes. 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".
The parties were largely agreed as to the principles to be applied on this topic. I have dealt with them in many cases. For the benefit of the parties, I shall repeat some of what I have written elsewhere.
Whether the disposition of the deceased's estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the Plaintiff 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: Hunter v Hunter (1987) 8 NSWLR 573 at 575 (Kirby P).
"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".
Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement": "'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education."
Although discussed in the context of legislation in the United Kingdom that has a few similarities, (and omitting parts of the reasons that, clearly, would not apply to the Act) in Ilott v The Blue Cross & Ors [2017] UKSC 17, at [14] - [15], the following passage in the judgment of Lord Hughes: (with whom Lord Neuberger, Lady Hale, Lord Kerr, Lord Clarke, Lord Wilson and Lord Sumption agreed) appears: "The concept of maintenance is no doubt broad… It must import provision to meet the everyday expenses of living… The level at which maintenance may be provided for is clearly flexible and falls to be assessed on the facts of each case. It is not limited to subsistence level. Nor, although maintenance is by definition the provision of income rather than capital, need it necessarily be provided for by way of periodical payments, for example under a trust. It will very often be more appropriate, as well as cheaper and more convenient for other beneficiaries and for executors, if income is provided by way of a lump sum from which both income and capital can be drawn over the years… Lump sum orders are expressly provided for... There may be other cases appropriate for lump sums; the provision of a vehicle to enable the claimant to get to work might be one example and, as will be seen, the present case affords another. As Browne-Wilkinson J envisaged (obiter) in In re Dennis … there is no reason why the provision of housing should not be maintenance in some cases…"
Although the existence, or absence, of "needs" which the applicant 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, education and advancement in life: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 227 (Gaudron J). Compare Gorton v Parks (1989) 17 NSWLR 6-11 (Bryson J); Collicoat v McMillan [1999] 3 VR 803, at 816 [38], 820 [47] (Ormiston J).
"Need", of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45] (Dodds-Streeton J). It is different from "want" and does not simply mean "demand" or "desire". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (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'."
In Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235, Buss JA wrote, at [81]: "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."
In Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86, at [41], David J at added: "'Need' is not so synonymous with 'want' such that the two are interchangeable."
As Callinan and Heydon JJ emphasised in Vigolo v Bostin at [122], the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined.
The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, whereas "proper" prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) per Buss JA, at [72], [77]. What is adequate must be relative, not only to the applicant's needs, but also to his, or her, own capacity and resources for meeting them: Pontifical Society for the Propagation of Faith v Scales (1962) 107 CLR 9, at 19.
The words "adequate" and "proper" 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."
Dixon CJ and Williams J, in McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that: "It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."
In Palagiano v Mankarios [2011] NSWSC 61, White J, at [72], 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.
Section 60 of the Act provides: "(1)The court may have regard to the matters set out in subsection (2) For the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the 'applicant') is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person-the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
It can be seen that s 60(2) enumerates 15 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [37], as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380, at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order and the nature of any such order. It has been suggested that the expanded list of criteria provides a "more focused direction to the court": Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4, at [51] (Beazley P, Meagher JA agreeing).
In Chapple v Wilcox [2014] NSWCA 392; 87 NSWLR 646 at [7], Basten JA wrote: "Section 60 of the Succession Act spells out the matters which the Court may have regard to in determining whether the claimant 'is an eligible person' and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the 'nature of any such order', which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b)."
The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of 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.
The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.
A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).
Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently.
There is no definition in the Act of "financial resources" (which term is referred to in s 60(2)(d)). However, there is a definition of that term in s 3 of the Property (Relationships) Act 1984, which I consider helpful: "'financial resources' ... includes: (a) a prospective claim or entitlement in respect of a scheme, fund or arrangement under which superannuation, retirement or similar benefits are provided, (b) property which, pursuant to the provisions of a discretionary trust, may become vested in or used or applied in or towards the purposes of the parties … (c) property, the alienation or disposition of which is wholly or partly under the control of the parties to the relationship or either of them and which is lawfully capable of being used or applied by or on behalf of the parties to the relationship or either of them in or towards their or his or her own purposes, and (d) any other valuable benefit."
In Kennon v Spry; Spry v Kennon (2008) 238 CLR 366; [2008] HCA 56, at [96], Gummow and Hayne JJ stated that the term "financial resources" is apt to include more than assets which answer the definition of "property". It is not property but something from which a financial benefit is, or may be, gained. It is also cannot be confined to the present legal entitlements of a party and may be regarded as a source of financial support which a party can reasonably expect will be available to him or her to supply a financial need or deficiency: Hall v Hall (2016) 332 ALR 1; [2016] HCA 23, at [54].
Contributions of the type referred to in s 60(2)(h) made by the Plaintiff have always been a relevant consideration in the determination of an applicant's claim upon bounty. For example, in Goodman v Windeyer [1980] HCA 31, 144 CLR 490, Gibbs J, at 497-498, wrote: "One of the circumstances that must be considered in deciding upon the deserts of a claimant to a testator's estate, and in determining whether proper maintenance has been provided, is the manner in which that claimant has conducted himself or herself in relation to the testator. If the claimant has contributed to building up the testator's estate, or has helped him in other ways, that may give the claimant a special claim on the testator's bounty. This was recognized by Dixon C.J. in Coates v National Trustees Executors & Agency Co. Ltd when he said that the natural claims of a son upon his mother's testamentary bounty were "much strengthened by his co-operation and support in the conduct of her business and of her affairs". Perhaps the most recent example in this Court of a case in which a son's claims have been strengthened for this reason is Hughes v National Trustees Executors & Agency Co. (Australasia) Ltd. There is, however, no reason in principle why a son should stand in a special position in this regard, and the authorities here consistently treated the fact that a claimant has rendered services to the testator as relevant in cases of this kind - whether the claimant be a daughter (Blore v Lang), a widow (E v E, discussed in In re Worms; Worms v Campbell) or a widower (In re McElroy). The claimant's conduct does not cease to be relevant if it has not been of financial benefit to the testator - if, for example, the labour has been in vain. If the claimant has made sacrifices on the testator's behalf, that is a circumstance to be considered even if no monetary saving or benefit for the testator resulted. Indeed, the very fact that a claimant has been a dutiful and devoted spouse or child is one of the relevant circumstances of the case to be considered together with all the other circumstances in deciding whether proper maintenance has been provided."
However, as Bryson J noted in Gorton v Parks, at 6, 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 for meritorious conduct, 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.
The role of the Court is "not to address wounded feelings or salve the pain of disappointed expectations": Heyward v Fisher (NSW Court of Appeal, 26 April 1985, unrep. per Kirby P), that the Plaintiff might feel.
Section 65(1) of the Act requires the family provision order to specify: 1. the person or persons for whom provision is to be made, and 2. the amount and nature of the provision, and 3. the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and 4. any conditions, restrictions or limitations imposed by the Court.
The 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).
Unless the Court orders otherwise, relevantly, any family provision order under the Act takes effect as if it were a codicil to the will of the deceased (s72(1) of the Act).
Section 66 of the Act sets out the consequential and ancillary orders that may be made.
Section 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.
There are some other general principles that should be identified for the benefit of the parties, although I have repeated them in many cases.
In Stott v Cook (1960) 33 ALJR 447 at 453-4, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to rework a will according to its own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged."
Of the freedom, in Grey v Harrison [1997] 2 VR 359, Callaway JA said, at 366: "... [I]t is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent."
In Vigolo v Bostin, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained: "It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification".
In Goodsell v Wellington & Ors [2011] NSWSC 1232 at [108], I also noted that: "Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated."
As 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."
White J referred to these principles in Slack v Rogan & Anor; Palffy v Rogan & Anor [2013] NSWSC 522; (2013) 85 NSWLR 253, at [127]: "In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and (2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will."
Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.
In Henry v Hancock [2016] NSWSC 71, at [69], Brereton J wrote: "Formerly, the yardstick which was applied was that of the wise and just testator. Nowadays, it is fashionable to couch it in terms of "community standards", although I am not at all sure that this is any different from the moral obligation of a wise and just testator and, as has not infrequently been pointed out, there is no ascertainable external community standard to guide the decision, which involves a broad evaluative judgment unconstrained by preconceptions and predispositions, and affording due respect to the judgment of a capable testator who appears to have duly considered the claims on his or her testamentary bounty - subject to the qualification that the court's determination is made having regard to the circumstances at the time of the hearing, rather than at the time of the testator's will or death."
In all cases under the Act, what is adequate and proper provision is necessarily fact specific.
All 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 [2004] NSWSC 419 at [89].
It 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 recently 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].
In relation to the Plaintiff's claim, being a claim for provision by an adult child, the following principles are also useful to remember: 1. The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. 2. It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. 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, and 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 their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation": Taylor v Farrugia, at [57]; McGrath v Eves [2005] NSWSC 1006; Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond [2015] NSWCA 42 at [109]. 3. Generally, also, "…the community does not expect a parent to look after his or her children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute": Taylor v Farrugia at [58]. 4. There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37 at 45 (Nicholson J); Taylor v Farrugia, at 58. 5. The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]-[182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17]. 6. The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2 at 149.
A very similar statement of these principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275, at [111], was cited with approval in Chapple v Wilcox at [21] (Basten JA); and at [65]-[67] (Barrett JA); and was referred to, with no apparent disapproval (although in that appeal there was no challenge to the correctness of those principles), in Smith v Johnson [2015] NSWCA 297, at [62].
In Foley v Ellis at [88], Sackville AJA noted that Singer v Berghouse "…strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty". The only other claimant on the bounty of the deceased in the present case is the Defendant.
The Defendant, of course, is not an applicant for provision. He does not have to prove an entitlement to the provision made for him in the deceased's Will, or otherwise justify such provision. As a beneficiary, the Court is not entitled to disregard his interest.
In some cases under the Act, and this is one, an applicant who is a child of the deceased, seeks provision by way of an unencumbered home as part of the provision to be made by the Court. In Fung v Ye [2007] NSWCA 115, Young CJ in Equity (as his Honour then was), sitting in the Court of Appeal (with whom Tobias JA and Bell J, as her Honour then was, agreed) said at [25]: "Returning to the present case, I must say that Gzell J's statement at [31] that " ... there is no rule to the effect that proper provision for an adult and presently able-bodied child does not extend to providing him or her with a house or money to buy one" may give rise to unreasonable expectations by future claimants. The statement is correct as far as it goes, but the statement would also be correct that in very many cases it will not be appropriate to provide a house, or money to buy one, to an able-bodied adult child. In each case one needs to consider the basic human right of freedom of testation of the deceased, the relationship between the plaintiff and the deceased, the size of the estate and the other claimants. I would venture to say that probably in the majority of cases the evaluation of that equation will not result in an able-bodied child being "entitled" to a house or money to buy one."
The Plaintiff relied upon the Court of Appeal decision in Chan v Chan in which Basten JA, at [38], concluded that: "In an otherwise careful and considered judgment, dealing with a multitude of issues, and involving three separate proceedings, it should be accepted that the judge erred in so far as he determined the adequacy of the provision made by the appellant's father by reference to the appellant's objectively assessed financial need, divorced from the size of the estate and the claims of the only competing beneficiary. According to the assessment of the value of the estate at the time of Mr Chan's death, the appellant received 12.3% of the value and his brother 87.7%. It may be accepted that the respondent should properly retain the bulk of the estate, in part because he had looked after their father in his last few years and also because he had played an important role in managing the business which gave rise to his father's wealth. That is not to say that the respondent was not remunerated for his services along the way, nor that it is possible to place any proportionate benefit on his involvement. Certainly he did not proffer evidence to that end. On the other hand, the degree of functional impairment suffered by the appellant demonstrated a real need which should properly have been met from the estate. The appellant was living in a house which was barely habitable. He was clearly not in a position to obtain the assistance he needed in managing the property, nor that required for managing his own life. In assessing those needs, the Robert Street house provided during the testator's lifetime, should not have been treated as an asset which should be sold upon the testator's death, to justify rejecting a claim against his estate."
His Honour then went on to assess the provision that ought to be made. At [59], his Honour concluded: "I would calculate appropriate provision on the following basis. Assuming that the net value of the estate is in the order of $15 million, given the appellant's needs and the competing interests of the respondent, he should receive further limited provision out of the estate. On the calculation adopted by the respondent, the value of the Robert Street property was $2.05 million. In addition, he had obtained payment of the bequest of $50,000, giving a total value under the will of $2.1 million on current values. Making allowance for the fact that the estate will bear the costs of the proceedings on both sides, including the costs of realising assets for the purposes of distribution, the appellant should receive a further amount of $700,000, giving a total payment of less than 20% of the estate, as currently valued."
Payne JA concluded at [80]: "Whilst I was initially attracted by the careful and thorough approach to the issues reflected in the reasons of the primary judge, ultimately I was persuaded that the significance of the appellant's dependence upon the testator for his accommodation, the appellant's strong desire to remain at the Robert Street house and the size of the estate made it appropriate that this Court should intervene. Consideration of each of these issues, in combination, leads me to conclude that adequate provision for the proper maintenance and advancement in life of the appellant had not been made under the testator's will."
His Honour also wrote, at [85] - [89]: "Having regard to the appellant's circumstances and expectations of life, and in particular his dependence upon the testator by reason of his intellectual and psychological limitations, the primary judge should have found that the provision in the will was not "adequate" for the "proper" maintenance of the appellant. What was adequate provision for the proper maintenance of the appellant in this case was principally informed by the scope of his dependency upon the testator reflected in the provision by him of long term accommodation at the Robert Street property and the appellant's strongly expressed desire to remain there. Whilst no doubt there will be cases where a particular property bequeathed to a beneficiary may be treated for the purposes of the Succession Act as the functional equivalent of the sum which would be realised upon the sale of that property, this was not such a case. It was an error in the circumstances of this case to focus principally upon the adequacy in the appellant's hands of the sum of money which would be obtained by selling the Robert Street property and moving to more modest accommodation. At the time of the testator's death, the appellant was approaching retirement-age. He had lived at the Robert Street property, which had been provided by the testator rent free, for over a decade. He had a very strongly held desire to remain living at the property. The "proper" maintenance of the appellant required, in this case, consideration of the totality of the appellant's position in life and, in particular, the environment to which he was accustomed. Focussing on the question in this way makes it apparent that in leaving the Robert Street property to the appellant without sufficient finds (sic) for the maintenance and repair of that property has the result that adequate provision for the proper maintenance of the appellant under the testator's will was not made. It is appropriate in those circumstances, and having regard to the size of the estate, to make the additional provision for the appellant proposed by Basten JA for the reasons his Honour gives."
However, that case is distinguishable for a number of reasons, not the least of which is that the estate was valued, at the deceased's death, at $9.36 million; the trial Judge accepted that the total value of the estate lay between $11 million and $16 million; and that the updated estimate prepared by the defendant, for the purposes of the appeal, indicated a total value of the distributed and undistributed estate at a little over $15 million. On any view, the estate was an extremely large one.
Secondly, the case is distinguishable because the plaintiff was found to have a number of psychological and intellectual difficulties, which meant that if he were required to move out of his long term accommodation, it would be stressful and difficult for him. (In this case, I have set out the Plaintiff's evidence that he "would dearly love to stay in that property in Bestic Street. That's it".)
Thirdly, as Payne JA repeated, the testator in that case, over many years, had accepted an obligation to provide accommodation for the plaintiff, no doubt due to the plaintiff's intellectual and psychological shortcomings. The testator had also accepted, at least until he fell ill towards the end of his life, that he had an obligation to pay for repairs, upkeep and outgoings for the property in which the plaintiff lived. The testator's Will, however, whilst leaving that property unencumbered to the plaintiff, failed to provide sufficient funds to the plaintiff to pay for the repairs to, the upkeep of, and the outgoings on, that property.
Despite that case being distinguishable, the Court should not ignore the scope of the Plaintiff's reliance upon the deceased for accommodation in the Rockdale property for so many years prior to her death and also the Plaintiff's expressed life-style desire to remain living in the Rockdale property.
Neither party referred to Phillips v James, in which Basten JA, at [113] - [114], in considering the concept of prevailing community standards in the context of a dispute between siblings, wrote: "...there is probably a reasonable level of acceptance for the view that, other things being equal, siblings should be treated broadly equally. Unfortunately, other things rarely are equal. One sibling may have shown devotion and care to the testator over a long period; another may have had minimal contact of any kind during his or her adult life. One sibling may have acted responsibly in relation to his or her own family, another as a wastrel. The latter example highlights a particular difficulty: the responsible sibling (who may have been favoured by the testator) may be better off than the other and less in need than the other who has made nothing of whatever opportunities were available. One approach in the latter case is to say that the wastrel should not expect more, despite being in greater need, than a proportionate share of the estate. In relation to the former case, involving the inattentive or distant sibling, a less than equal share may be thought appropriate."
Ultimately, the Court, in determining the responsibility of the deceased, should be guided by what was expressed by Lord Romer in Bosch v Perpetual Trustee Co Ltd at 478-479: "…in every case the Court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father. This no doubt is what the learned judge meant by a just, but not a loving, husband or father."
It is also necessary to say something about the fact that the Plaintiff is entitled to receive a pension. I have set out the relevant principles in Kohari v Snow at [123] - [128]: "Because the Plaintiff is, and has been, receiving a pension for many years, it is necessary to consider its relevance in a claim for a family provision order. In Taylor v Farrugia Brereton J said, at [59]: The Court's attitude to the eligibility for means tested pension benefits of eligible persons and beneficiaries varies, depending on the circumstances of the case. Ordinarily, a testator makes a will and provides for those who have a claim on the testator without regard to the claimant's eligibility for a pension. However, in a small estate where there are competing claims, a testator, and this Court on an application under the Act, may take into account the eligibility of a claimant for a pension as a means of deciding how such limited benefits as are available from the estate should be shared between claimants, and how those benefits might be structured. But this qualification to the principle that the burden of support should be borne in the first instance by an estate rather than by social security arises mainly, if not exclusively in smaller estates… An earlier authority, with which I respectfully also agree, is Thom v Public Trustee (NSWSC, 2 April 1992, unreported), in which Master McLaughlin (as his Honour then was) said, at 10-11: It seems to me that it would be totally unrealistic for the Court to approach the moral obligation of the deceased to make provision for the applicant by disregarding the fact that for a period of 20 years before the deceased's death, the applicant was in receipt of a pension from the State, and the fact that, to the extent of that pension, the deceased was relieved of the necessity to support the applicant from his own funds. That being so, I do not see how, upon the death of the deceased, the moral obligation upon the deceased to make provision for the applicant by will, could be approached without recognising the fact that the applicant would be entitled to continue to receive such a pension. Thus, the availability of a pension provided to an applicant ought not be regarded as a substitute for the obligation on the deceased to make adequate provision for him or her. Yet, it is not necessary to make an order that would operate primarily in relief of the taxpayer. In this case, it has been submitted that the availability of the pension, and associated social benefits, is a circumstance to which the court should have regard particularly in circumstances where the Plaintiff may require care and treatment in the future. As was stated in Evans v Levy, at [55] by Young JA: … there are, for most pensioners, side benefits of considerable value in merely having a part pension, such as the right which becomes more and more valuable as one gets older to have medical services provided at considerable concessional rates. I have followed these decisions in Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748; Curran v Harvey (estate of the late Donald Leslie Julian) [2012] NSWSC 276; and in Smith v Smith [2011] NSWSC 938."

Qualifications on "Principles"

As long ago as 1980, in White v Barron (1980) 144 CLR 431; [1980] HCA 14, at 440, Stephen J wrote: "[T]his jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application."
As I have stated in a number of cases (see, for example, Bowditch v NSW Trustee and Guardian), I do not intend what I have described as "principles" or "general principles" to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend a guide to be turned into a tyrant.
It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order 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]."
The importance of the qualifications to which I have referred in the last two paragraphs have been stressed in Chapple v Wilcox by Basten JA, at [18]-[20], and by Barrett JA, at [66]-[67]; Burke v Burke [2015] NSWCA 195 at [84] - [85]. They must be remembered.

The Impact of Costs of the Proceedings

I have earlier noted that the parties did not wish me to determine the issue of costs. However, as shown in the passage of the Plaintiff's evidence set out above, the impact of costs is of real significance in the present proceedings.
The Court, on many occasions, has emphasised the necessity for parties to bear in mind the proportionality of costs, the importance of making appropriate settlement offers, and that if one wishes, or both wish, to adopt an approach that may have the effect of reducing the value of the estate, then they should not proceed on the basis that their costs and disbursements will necessarily be borne by the estate: Geoghegan v Szelid [2011] NSWSC 1440 at [21]- [24].
Section 60 of the Civil Procedure Act 2005, which applies equally to a claim for a family provision order, refers to "the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute".
In Forsyth v Sinclair (No 2) at [27], it was said by the Court of Appeal (Neave and Redlich JJA and Habersberger AJA) at [27]: "We consider that it is a matter of concern that in many family provision cases the amount available for distribution amongst the competing beneficiaries is significantly reduced by legal costs. Parties should not assume that litigation can be pursued safe in the belief that costs will always be paid out of the estate. Every effort should be made to resolve the dispute before the costs get out of proportion. However, it takes two to settle a dispute and unless sensible offers of settlement are made in a form which can be referred to subsequently, it is very difficult for the Court to allocate responsibility for the dispute not settling. All that can be done is to conclude that where costs have been incurred unreasonably, as here, they must be borne personally. (Omitting citation)"

DETERMINATION

Being an "eligible person" is a necessary pre-condition to the Court being empowered to make an order for the maintenance, education or advancement in life of the eligible person. As stated, the Plaintiff, as a child of the deceased, is an eligible person within the meaning of that term in s 57(1)(c) of the Act.
There is no dispute that the proceedings were commenced by him within the time prescribed by the Act.
The next question then is whether making the provision for the Plaintiff that the deceased did bespeaks inadequacy. As previously stated, a precondition to a family provision order being made, the Court must be satisfied that the deceased has not made "adequate provision for the proper maintenance ... or advancement in life of the person in whose favour the order is to be made".
A consideration of the deceased's Will, alone, would not suggest inadequate provision was made for the Plaintiff. Excluding the legacy of $20,000 and the residue, neither of which bequests can be met, the deceased effectively divided her estate equally between her only two children.
But, one cannot consider the terms of the deceased's Will on its own. One must consider many other facts. As Basten JA wrote in Chan v Chan, at [22], the Court must remember: "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."
This is not a case of an applicant adult child who has lived quite independently of his, or her, parent, the deceased, for many years, and who is in straitened circumstances. It is a case in which the deceased supported the Plaintiff, by providing to him rent free accommodation for many years before her death.
Also apposite to the present case, is what Basten JA noted in Chan v Chan, at [21], that "[A] common issue in claims which are unresolved and come to trial is the closeness of the relationship between the testator and a particular family member who seeks provision. That factor was not in dispute in the present case." Similarly, it is not in dispute in the present case.
It is clear that if the Rockdale property were sold, the Plaintiff would have a need for accommodation. Yet, importantly, by the terms of her Will, and with her knowledge of the facts then available to her, particularly going to the Plaintiff's conduct as a loving and dutiful son, the deceased did not consider that it was her moral obligation to provide accommodation for the Plaintiff, by way of the whole of the Rockdale property being devised to him absolutely in her Will.
It is to be noted, also, that the Plaintiff has, for some time, whilst only receiving an income by way of pension, been living within his means. The capital sum that he now has available (from his father's estate), until used, could provide some income to supplement his current pension income.
Even if he used all of the provision made for him in the Will of the deceased and some of the capital sum that he has available from his father's estate for the purchase of accommodation, his pension income will continue, albeit it may be reduced depending on what capital sum remains.
The Court is entitled to take into account pension benefits as part of the resources of the Plaintiff, and to consider that they will continue to be received in whole or in part.
In addition, the Plaintiff has the financial resource, being his claim for compensation for injuries sustained in a motor vehicle accident. I do not place too much emphasis on this fact because whether he will be successful in his claim, and if so, what amount he will receive, is unknown at the date of the hearing.
It is obvious, in the present case, bearing in mind the size of the estate, and the lack of any evidence about the financial and material circumstances of the Defendant, that there is no competing financial claim of any other person that would inhibit the practicability of meeting any needs of the Plaintiff not met by the provision made for him in the deceased's Will. Yet, the Defendant does not have to justify retaining the benefits provided to him under the Will of the deceased on the basis of need.
To summarise, then, using the value of the deceased's estate at the date of hearing ($1,201,917) on sale of the Rockdale property (the costs being $25,850), each party would expect to receive about $588,000. The Plaintiff has received the whole of his father's estate, which, following the distribution of that estate to him, at the date of hearing, means that he also has $358,000 in available funds. It follows that upon sale of the Rockdale property, the Plaintiff would have about $946,000, in cash, available to purchase alternative accommodation and to provide a capital sum as a buffer against the vicissitudes of life.
Assuming, then, that the Plaintiff purchased accommodation for $749,000 (the highest of the range of costs for accommodation stated in evidence), he would have left about $197,000, from which to pay stamp duty on the purchase (which was estimated to be about $30,000), the legal costs and disbursements of the purchase, and any moving costs (which I estimate to be $4,000), with the balance left for exigencies of life. After payment of those costs, he would have about $163,000 available.
Of course, the Plaintiff may not be required to spend about $749,000 on accommodation. Indeed, he accepted that "$550,000 is enough money in which to purchase a property in Rockdale" (T 30.37 - T30.39). However, I have taken the highest estimate of the cost of purchasing alternative accommodation because he added (at T 30.40 - T30.48): "for that sort of money, I would have to consider living in a unit, and I just that is something that is just too much for me to accept. I have maintained the gardens. I am an avid gardener. I have so many plants down there, it's the reason why I am seeking to live in that property is because that garden represents survival for me. During the time that I was looking after my mother when she was seriously ill, and when I was going through my own illnesses, that garden was the only thing that represented anything to me for my spiritual and mental well being."
The Plaintiff does not have responsibility for anyone else. There is no evidence that a sum in the amount remaining available to him, when taken with the income that he currently receives by way of the pension, and any additional income he received by way of interest on the capital sum is not adequate to provide for his continued needs as he gets older.
Consistent with prevailing community standards, having considered, amongst other things, the Plaintiff's financial and material resources, his lack of earning capacity, his close and loving relationship with the deceased, and the medical conditions from which he suffers, taken with the fact that the Defendant has not asserted a competing financial claim upon the bounty of the deceased, I am not satisfied, for the purposes of s 59(1)(c) of the Act, that at the time when I am considering the application, adequate provision for the proper maintenance or advancement in life of the Plaintiff has not been made by the Will of the deceased. It follows the Plaintiff's case must be dismissed.
Of course, in the above calculations, the costs of these proceedings have not been deducted from the value of the deceased's estate. It seems to me, in the circumstances of this case, that is the way the Plaintiff's case must be determined, since no costs order has yet been made and there is the possibility of a special costs order being made based upon the service of an Offer of Compromise or a Calderbank offer. The issue of costs will have to be determined, so it seems to me, taking contextual circumstances of the litigation and the conduct of the parties into account. To do otherwise, might suggest a predetermination of how the costs of the proceedings are to be borne.
In case I am wrong in concluding that adequate provision for the proper maintenance, or advancement in life has not been made for him by the Will of the deceased, as a matter of discretion I would not make an order for provision in favour of the Plaintiff. Whilst I accept that the Plaintiff's relationship with the deceased was far closer than that between the deceased and the Defendant, that does not create an entitlement to receive a greater portion of the estate by way of a reward for the Plaintiff's conduct.
As was submitted by counsel for the Defendant, it is important to remember: "Where (a) the provision made by the testator for an applicant falls within a range within which views may legitimately differ and (b) the circumstances have not materially changed between the time of making the will and the court's considering the position, "a court should not substitute its judgment for that of the testator to determine that the provision made was inadequate": Friend v Brien [2014] NSWSC 613 at [63] per White J.
The deceased made her last Will just over 6 months before her death. There is nothing to suggest that at the time, the financial and material circumstances of the Plaintiff were different from his present financial and material circumstances. He was then, as now, not working; he was then, as now, living in the Rockdale property; whilst then, he may have been receiving a carer's pension, in addition to the pension that he was receiving, that was because he was providing the deceased and/or his father with care and assistance. It is true that he had not suffered the motor vehicle accident that he suffered in June 2015, but, as earlier stated, he has made a claim for compensation for the injuries he sustained in that accident.
There is no evidence to suggest that when the deceased made her Will, one half of the value of the Rockdale property would not have provided sufficient funds to enable the Plaintiff to purchase alternative accommodation.
But there was one significant difference between when the deceased made her last Will and the date of hearing. At the time the deceased made her last Will, the parties' father was still alive. Even if the deceased knew the contents of his Will, she did not know that the Plaintiff would come to have available an amount of $358,000 to add to the provision made for him by her Will. That he did so, at the date of hearing, is a relevant consideration.
I accept that the deceased, in her Will, provided the Plaintiff with a legacy of $20,000 and the residue of the estate. But it must have been clear to her, that she would have had less than that sum available on bank deposit, and some shares, the total value of which would not provide enough for the legacy to be paid, after her debts, funeral and testmanetary expenses were paid. In addition to all of the matters referred to above, it cannot be forgotten that the Plaintiff has had rent free accommodation in the Rockdale property since the death of the deceased in July 2015.
Taking all of the matters into account, as a matter of discretion, I would not substitute my judgment for that of the deceased, particularly when the calculations of what would be available to the Plaintiff, when one considers his own assets, resulting in the need for accommodation on sale of the Rockdale property, and a lump sum for exigencies of life, are able to be satisfied. As stated, the Plaintiff would have an unencumbered home (with a value of upto $749,000) and about $163,000 (or more if less is spent on the accommodation) to provide for exigencies of life, and until spent, a modest income to supplement his pension.
I have tested my conclusions another way. Had no provision at all been made in the Will of the deceased for the Plaintiff, bearing in mind all of the circumstances of the case, would he have been likely to receive provision out of the estate greater than that left for him in the deceased's Will (excluding the legacy of $20,000 and the residue)? In my view, the answer to this question is in the negative.
I cannot but help to remember what was said by Dixon CJ in Pontifical Society for the Propagation of the Faith v Scales, at 19: "All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court."
Whilst the Court readily appreciates that the Plaintiff may feel hurt and upset that the deceased has chosen to provide one half of the Rockdale property for the Defendant, in the circumstances of this case, an order for further provision cannot be made. The legislation does not justify orders to remedy perceived unfairness or hurt feelings.
At this time, it is not possible to anticipate the economic consequences for the parties of the dismissal of the proceedings, other than to note that the amount of the distributable estate may be diminished as a result of the costs orders that will be made. However, it seems to me that the possibility of that occurring is a risk that the Plaintiff was prepared to take. His desired outcome was to receive the Rockdale property. As he stated, at T 29.30, "…it is not about the money. It is about the investment I have done into the property, and the feeling I have that is my home. You know, like it's not about the money…".
The case is very different one in which an adult child has been excluded completely from a parent's will. Here, the Plaintiff received a substantial benefit, that as a result of his own conduct may be reduced.
The order of the Court is that the Plaintiff's Summons be dismissed.
In view of the request of the parties that the question of costs of the proceedings be determined following these reasons being published, I order that any argument as to costs of the proceedings and how those costs are to be borne, be listed on a date to be arranged when these reasons are published.

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: 28 March 2017

Family Provision Act 1982(NSW)

Kennon (2008) 238 CLR 366 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 MacGregor v MacGregor [2003] WASC 169 Marks v Marks [2003] WASCA 297 Mayfield v Lloyd-Williams [2004] NSWSC 419 McCosker v McCosker [1957] HCA 82, (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 Palagiano v Mankarios [2011] NSWSC 61 Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4 Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 Re Smith, Deceased (1991) 8 FRNZ 459 Salmon v Osmond [2015] NSWCA 42 Sammut v Kleemann [2012] NSWSC 1030 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack v Rogan & Anor; Palffy v Rogan & Anor [2013] NSWSC 522; (2013) 85 NSWLR 253 Smith v Johnson [2015] NSWCA 297 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Szypica v O'Beirne [2013] NSWSC 297 Taylor v Farrugia [2009] NSWSC 801 Thompson v Sgro [2016] NSWSC 1869 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) White v Barron (1980) 144 CLR 431; [1980] HCA 14 White and Tulloch v White (1995) 19 Fam LR 696 Wilcox v Wilcox [2012] NSWSC 1138 Category: Principal judgment Parties: Lennie Meares (Plaintiff) Rodney Stanley Meares (Defendant) Representation: Counsel: Ms L Goodchild (Plaintiff) Mr D Liebhold (Defendant)

(1995) 19 Fam LR 696

At a glance

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Cases Cited (77)