Moore v McLean

The substantive proceedings

1. It is only necessary to refer to the nature of the substantive proceedings in a summary way.
2. The proceedings were commenced by Summons filed by the Plaintiff on 8 June 2021. In that Summons, the Plaintiff sought a family provision order pursuant to Chapter 3 of the Act. However, on 17 September 2021, orders were made, without opposition, for the matter to proceed by way of pleadings as the Plaintiff wished to make other claims.
3. The Plaintiff filed a Statement of Claim on 22 September 2021 in which he seeks the following relief (in addition to the claim for a family provision order): "1. A declaration that on its proper construction, the Deed dated 24 February 2010 made by the late Trevor John Moore who died on 8 March 2016 and the late Elza Moore who died 26 October 2020, obliged each to make a will substantially in accordance with those appearing in that deed, unless and to the extent that written notification and consent by each were given to any alternate will ("the Deed"). 2. A declaration that the wills made 11 September 2011, and the codicils made 12 August 2014 were testamentary instruments made pursuant to the Deed. 3. A declaration that in consequence of such Deed and testamentary instruments, a constructive trust arose in favour of the Plaintiff and the Defendant such that those assets were to be dealt with in accordance with such testamentary instruments. 4. A further declaration that the wills made 3 August 2016 and 12 September 2020 made by Elza were in breach of such trust. 5. An order that the Defendant transfer to the Plaintiff that portion of the estate of the late Elza Moore to him to satisfy such constructive trust. 6. In the alternative, an order that the Defendant pay to the Plaintiff equitable damages and/or compensation. … 9. Costs."
4. The Defendant filed a Defence on 1 October 2021. It is not necessary, as part of the present application, to provide precise details of the defences raised, other than to note that the Defendant denies that the Plaintiff is entitled to the relief sought for a number of different reasons. Importantly, and relevantly, she asserts: "27. In answer to the statement of claim generally, the defendant says that if Peter is otherwise entitled to any equitable relief (which is denied) then such relief ought be declined on discretionary reasons in that: a. After the execution of the Deed, Peter received substantial financial assistance from Trevor and Elza, far in excess of assistance provided to Alina; and b. Peter must first account to Alina or the estate for that financial assistance and do equity, such account to be verified on affidavit, and to include all receipts and disbursements by Trevor and/or Elza to him or for his benefit from the date of the Deed onwards, including all available source documents. (…) 28. In answer to the statement of claim generally, the defendant says that if Peter is otherwise entitled to any equitable relief (which is denied) then such relief ought be declined on discretionary reasons in that: a. On or about 27 June 2000, Peter borrowed $2,000,000 from each of Trevor and Elza pursuant to a written agreement dated that day ("Peter's Loan"); b. Pursuant to the loan agreement dated 27 June 2000, Peter's Loan was repayable upon demand in writing; c. On 30 September 2021, written demand was made on Peter's Loan by the defendant, being the legal personal representative of Trevor and Elza; d. The plaintiff has failed to repay Peter's Loan; and e. Equity ought to decline any relief by way of constructive trust or other equitable remedy unless and until the defendant first repays Peter's Loan or is otherwise brought to account in respect of Peter's Loan."
5. The Plaintiff did not file or serve a Reply.
6. During the hearing, senior counsel for the Plaintiff stated that although the Plaintiff accepts the legal existence of the loans made to him, there remains some dispute surrounding the circumstances of the creation of the loans, and a dispute about the amount, if any, that is due and payable to the estate of the deceased. He asserts that despite its form, $2,000,000, being part of what is said to be a loan, in fact, was a payment to him in recognition of his contribution, comprising his pharmaceutical business, to the overall sale of the family businesses, by the deceased and her husband, to a third party. It is said that the formal transfer of the pharmaceutical business was for the nominal sum of $10.
7. Senior counsel alluded to evidence of conversations with the deceased, who allegedly said that a solicitor, one Mr Geoff Stein, had advised him and his parents that it was better for the Plaintiff to receive $2,000,000 as a loan covered by a Deed of Loan, rather than as a gift. (No evidence from Mr Stein was read on the application.)
8. Given the nature of the application for interim provision, and the nature of the uncorroborated assertion, the allegations were not specifically addressed by counsel for the Defendant during the hearing. However, it is clear from the Defendant's affidavit evidence in reply that at least some of the events asserted by the Plaintiff are disputed. In addition, a question was raised about these assertions not having been raised in family law proceedings, involving the Plaintiff and his first wife, the nature of which is the subject of evidence in the current proceedings.
9. The Defendant has not filed and served a Cross-Claim seeking the repayment of the debt said to be owed by the Plaintiff. At the hearing, her counsel stated that she wished to seek further advice, from senior counsel, on the question of whether she should do so (considering the Plaintiff's financial circumstances), and that she could indicate the position she wishes to adopt within 14 days.
10. In relation to the claim for a family provision order, there was no dispute between the parties that the Plaintiff is an eligible person within the meaning of that term in s 57(1)(c) of the Act (a child of the deceased) and that he had commenced proceedings within the time prescribed by the Act (that is, not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.
11. In the written submissions of senior counsel, the following passage appears: "The position Peter finds himself in is effectively one where his accumulated capital has been lost. He is currently aged 51. He actively seeks work but his employment prospects are ultimately difficult to assess. He may well need to work for the next two decades to achieve any level of financial security. In the exceptional factual circumstances of this matter, he would seek forgiveness of the $2,000,000 debt (if required), the payment of his current liabilities of $431,320.33, and a substantial portion of the estate to permit him to attain a reasonable level of financial security now. In Peter's submission that sum would be in excess of $40,000."
12. Needless to say, the Defendant also opposes the Plaintiff's claim for a family provision order. The basis, amongst others, for the opposition is said to be that the Court would have regard to a number of matters set out in s 60(2) of the Act, for the purpose of determining whether to make a family provision order and the nature of any such order, including, but not limited to, the provision made by loan, and otherwise, for the Plaintiff, by the deceased and the father, during the deceased's, and the father's, lifetime; the significant debts of the Plaintiff which he is unable to repay, including the debts referred to; and the testamentary intentions of the deceased, as disclosed in her last Will. It was submitted that the Court will not make an order for any provision for the Plaintiff at the conclusion of the hearing of the substantive claim.

Some background facts

1. The deceased's last Will is dated 12 September 2020. This Court granted probate of the deceased's Will to the Defendant on 7 April 2021. The Defendant is the sole beneficiary named in the Will.
2. Clause 9 of the Will provides: "9. Comments about Peter John Moore I have not made any gift to my son Peter John Moore for the following reasons: (a) my son Peter John Moore has received significant financial assistance from myself and from my late husband, Trevor John Moore during our lifetimes; (b) my daughter Alina Kathleen McLean has not received the same level of financial assistance that we have given to her brother Peter John Moore; (c) my daughter Alina Kathleen McLean has constantly assisted me with my day-to-day errands including providing me with significant assistance when I was out of hospital from an operation and I was unable to physically attend to matters whereas Peter John Moore has not provided me with any assistance at home or otherwise."
3. The Plaintiff is said to dispute the matters referred to in Clause 9. He denies that the Defendant "has not received the same level of financial assistance". He points to Clause 5 of the deceased's Will in which the Defendant is released "from all debts owing to me and interest owing on them at the date of my death".
4. As already stated, the Plaintiff did not dispute that by the Deed made on 27 June 2000 between him and his parents, they were said to have loaned him an amount of $2,000,000, which was repayable upon written demand. But he maintained that on the same date, a Deed was entered into between the Defendant and her parents in identical terms. In addition, he accepts that by Deed dated 20 November 2001, between him and his parents, they loaned to him an amount of $600,000, repayable within 5 years. But he maintained that, on or about the same date, a Deed was entered into between the Defendant and her parents in identical terms. This was not disputed by the Defendant.
5. In forgiving all debts owed by the Defendant, whilst permitting the claim for debts to be made against him after her death, that Plaintiff proposes to argue that it cannot be said that the Defendant has not received the same level of financial assistance. The Plaintiff asserts that, in fact, she has received more.
6. The personal relationship between the Plaintiff and the deceased is also said to be inaccurately reflected in the Will. He asserts that he had significant contact with the deceased, and that such contact took place during the period of her deteriorating health. He acknowledges that he did live on a different continent for much of that time.
7. It will be submitted that, although the Defendant clearly had a closer relationship with the deceased than did the Plaintiff, the sentiment expressed in the Will is unreasonable and not a true reflection of their true relationship.
8. The Plaintiff will seek, at a final hearing, to demonstrate that there was no basis, otherwise, for the deceased's statements in her Will, particularly those regarding the parity of financial assistance given to him and the Defendant during the deceased's lifetime.
9. Counsel for the Defendant stated that there was affidavit evidence, by the Defendant, and from several third parties, which supported the truth of the statements made by the deceased in the Will. Counsel specifically mentioned the evidence of Mr Robert McLaughlin, who has provided an affidavit in which he sets out several conversations in which the deceased stated that she had provided additional money to the Plaintiff.
10. I have already referred to the claims for equitable relief raised by the Plaintiff in the Statement of Claim.
11. As also stated, in addition to the circumstances surrounding the formation of the loan agreements, there was also significant disagreement at the hearing, as to the quantum of the amounts loaned to the Plaintiff.
12. There was debate at the hearing on the question whether the debt had increased to $3,300,000, and also whether that increase was as a result of the addition of interest, or whether it was as a result of additional advances made by the deceased to the Plaintiff.
13. In support of his assertions, the Plaintiff tendered a copy of a Statement of Claim, filed on 19 November 2013, in this Court, by the father and the deceased, in which he was named as the Defendant, and in which they sought to recover $2.57 million in capital, $732,156 in interest, and $2,050 in costs. The total claim was $3,304,206 (Ex. NMA).
14. The matter in this Court did not proceed because an order was made in the Family Court, restraining the father and the deceased from proceeding further with the Supreme Court proceedings pending the further order of that Court. The injunction was granted on 15 April 2014 by The Honourable Justice Judith Anne Rees, a Judge of the Family Court of Australia (as it was then known).
15. Senior counsel for the Plaintiff submitted that the Deeds which gave rise to the borrowings of $2,600,000, did not contain any obligation to pay interest. He also submitted that the Plaintiff had repaid $30,000.
16. Conversely, counsel for the Defendant maintained that the Plaintiff owed $3,300,000 and asserted that the increase was due to other amounts, including legal costs, and contributions to child support payments, which the deceased and the father had made during the family law proceedings, which he accepted would need to be investigated. He added that the amount of $3,300,000 was not necessarily the "limit" of the total advances made to the Plaintiff during the deceased's lifetime. By way of example, he referred to evidence of the Plaintiff's wedding in Paris, to his second wife, and suggested that the deceased had made substantial contributions to its cost. It was said that these matters led to a dispute about the quantum of any amount to be repaid.
17. Assuming a claim were made by Cross-Claim, neither counsel referred to s 100 of the Civil Procedure Act 2005 (NSW), which provides that in proceedings for the recovery of money (including any debt or damages or the value of any goods), the court may include interest in the amount for which judgment is given, the interest to be calculated at such rate as the court thinks fit (a) on the whole or any part of the money, and (b) for the whole or any part of the period from the time the cause of action arose until the time the judgment takes effect.
18. Irrespective, of the exact amount of the debt, it was accepted by the parties that, in reality, and currently, the Plaintiff could not repay, or go close to repaying, whatever amount was established as the debt.
19. In addition to these matters, senior counsel for the Plaintiff points to the prior Wills made by the deceased, which disclosed a long held testamentary intention (from 2010 to 2016) excluding several gifts of personal chattels, to give her estate entirely to her husband, and if he predeceased her, to divide her estate equally between her two children.
20. (However, I note that in 2014, both the deceased and her husband each executed a Codicil which provided that any debt due by the Defendant to them would be forgiven on their death. The Codicil in each case may be irrelevant as in the case of the father, the deceased survived and in the case of the deceased, she made the 2020 Will, which revoked all previous testamentary acts.)
21. There was no dispute that the Plaintiff had been engaged in bitterly contested family law proceedings. Orders were sought for a property settlement, for child support, and regarding parenting matters. These proceedings were commenced in 2012, and final orders were made in December 2016. The hearing lasted 33 days and it took place on various days throughout 2015 and 2016. An independent children's lawyer was also involved. Although the Plaintiff had been legally represented for most of those proceedings, he was unrepresented at the trial. The deceased and the father were described in the reasons for judgment as "Associated entities of the parties". Although their exact role is unclear, it is evident that the parents were involved in the proceedings and, in all probability, incurred costs in doing so.
22. The Plaintiff appealed the decision in the Family Court but the appeal was dismissed.
23. The 2016 Will altered the provision made for the Plaintiff and was made before the calamitous effect of the judgment in the family law proceedings.

The deceased's estate

1. At a directions hearing held on 1 June 2022, the Court was informed, without objection, from the Bar table, that the deceased's estate consisted of cash (about $1,962,000), a car ($5,000) and jewellery ($20,000).
2. Counsel for the Defendant, in written submissions dated 28 June 2022, confirmed that the estate "is worth an amount just shy of $2 million". He added that if one were to include a debt of the Plaintiff of say, $2.0 million to the estate, then the estate would be worth almost $4.0 million.

The estimated costs of the proceedings

1. The parties' costs, including the hearing of the current application, are said to total $208,000. It is submitted by the Plaintiff that if an amount of $80,000 to $90,000 is estimated as the parties' costs, up to the conclusion of a hearing (the estimated duration of which is 3 to 4 days), the total estimated costs of the proceedings would be in the order of $300,000.
2. Senior counsel for the Plaintiff confirmed that there is no conditional costs agreement between the Plaintiff and his legal representatives: Tcpt, 5 July 2022, p 31(14-17). (No explanation was provided as to how his costs would be able to be paid. It follows that to the extent that his costs are not recovered, in whole or in part, he may have an additional debt.)
3. Assuming that an order that the costs of the proceedings be paid out of the estate of the deceased is made, and assuming the estimate of the costs proves accurate, the distributable estate, out of which an order for provision could be made will be in the order of $1.7 million. It is said to be a reasonably large estate.

The Plaintiff's current situation in life

1. It is necessary to write something about the Plaintiff's financial circumstances. These were set out in his affidavit made on 7 July 2021 (in paragraphs 130-132, and annexures "D" and "E") and two updating affidavits of 15 March 2022 and 16 May 2022.
2. He had moved to Germany, with his second wife, Sandra, in 2016. He is a trained financial advisor, holding a Bachelor degree in business, and a Masters degree in finance. He asserts that he has been unable to find work in that industry in Germany and in the United Kingdom since 2017.
3. He has now separated from his second wife but remains living in Hannover. They have a daughter, Emily, who is now 6 years of age. Sandra has moved back to her parents' home. Her financial position is said to be modest but largely debt free. Her resources are said to now not be available to him. Presumably, because they are no longer cohabiting, he states that her financial circumstances are no longer relevant.
4. The Plaintiff has been working as a packer in a German supermarket in order to survive. He now earns €980 per month, which is less than the €1,400 rent for the apartment in which he lives, which rent is currently being paid by his wife. He does not know for how long she will continue to do this.
5. The Plaintiff gave evidence that his sole asset of value is $71,000, being superannuation that he has amassed.
6. As at July 2021, the Plaintiff has other debts which total $392,987. In addition, since moving to Germany, he has had to borrow $38,333, making a combined total of debt being $431,320.
7. Counsel for the Defendant accepted that, whilst the Plaintiff's financial and material circumstances will be tested at the final hearing, for the purposes of this application, the Court should proceed on the basis that the Plaintiff has no realisable assets and that he has substantial unpaid debts to third parties, including in relation to unpaid child support.

The Submissions

1. The parties acknowledged that there is no need to refer to the contents of all the numerous affidavits that were read on the application in these reasons. The legal representatives agreed that no objections would be taken to any part of the affidavits because "at a final hearing … whatever objections that are taken now might be cured and, secondly, there was a shared view that all the affidavit material ought be put before the Court so that an assessment could be made as to prospects, as required under section 62": Tcpt, 5 July 2022, p 1(27-33).
2. The evidence of each party, read on the notice of motion, has canvassed events, some of which took place before the deceased's death, and some of which are the subject of dispute. In addition to the dispute regarding the alleged debt said to be owed by the Plaintiff, which has already been referred to, it was made clear, at the hearing, that there were other disputes of fact, which would need to be determined at the final hearing.
3. Other areas of dispute include the nature of the relationship between the Plaintiff and the deceased. Even though there is no allegation of estrangement, the Defendant asserts that the Plaintiff and the deceased frequently disagreed and, in general, did not get on with each other. Numerous examples of disagreements are included in her affidavit in reply, many of which are said to have arisen out of requests, by the Plaintiff, for money.
4. Despite senior counsel acknowledging that the Defendant had a very close and loving relationship with the deceased, he said that there was likely to be a dispute about the obligations and responsibilities owed by the deceased to each of her children.
5. I have already referred to the dispute between the parties about the truth of the assertions made in Clause 9 of the deceased's Will.
6. Finally, although initially raised as part of the dispute surrounding the issue of the debt owed by the Plaintiff, it became apparent that the credibility and truthfulness of the Plaintiff, particularly surrounding his conduct in the family law proceedings and the disclosure of his financial circumstances would be a significant issue between the parties. (Presumably, there will also be a challenge to the Defendant's credit.)
7. The Plaintiff submitted that the Court ought to be able to reach the opinion that no less provision than $40,000 would be made in his favour. Senior counsel outlined three possible outcomes for the Plaintiff in the substantive proceedings, noting that the relief sought included claims for declaratory relief and an order for the imposition of a constructive trust.
8. The three alternatives postulated were: "a. Success on the mutual wills claim, and success in demonstrating that the payment of the debt of $2,000,000 should not be a condition of such relief; in which case Peter would receive approximately $844,500. b. Success on the mutual wills claim, but failure in demonstrating that the payment of the debt of $2,000,000 should not be a condition of such relief, in which case Peter would receive $844,500 but be obliged to pay $2,000,000 leaving a net [negative] balance of $1,155,000. c. Failure on both, in which case Peter would receive nothing and remain liable for $2,000,000."
9. (I have included the word "negative" in (b) as senior counsel accepted, when it was raised by the Court, that the word had been omitted, in error, in his written outline of submissions: Tcpt, 5 July 2022, p 22(30-50).)
10. Senior counsel for the Plaintiff submitted that whichever of the alternatives occurred at the final hearing, the Court could be of the opinion that no less provision than $40,000 would also be made by way of a family provision order.
11. He submitted that, if the Plaintiff were successful in both of his other claims, and he received $844,500, even then, after the repayment of his debts (totalling $431,320) and taking into account the balance of his superannuation ($71,000), the Plaintiff would have net assets of $484,179. It was submitted that bearing in mind the Defendant has not adduced any evidence of countervailing financial need, the Court would likely make some further, albeit modest, provision, which would exceed $40,000.
12. However, senior counsel acknowledged, perhaps, realistically, that, of all the outcomes, the outcome postulated in (a) was the least likely to occur, and that the prospects of success may be less than 50%.
13. Alternatively, if the second, or third, outcome eventuated, which was said to be more likely, then the Plaintiff would be in a position where he owed between $1,150,000 and $2,000,000 to the estate, if not more, with the result that it would be "highly likely that provision in excess of $40,000 would be made."
14. Senior counsel referred to the factors in s 60(2) of the Act, to which the Court may have regard for the purpose of determining whether to make a family provision order and the nature of any such order, including: 1. The longstanding testamentary intention of the deceased, from at least 2010 to 2016, was to divide her estate equally between the Plaintiff and the Defendant. 2. Although substantial contributions, in excess of $2,000,000, were made to the Plaintiff during the deceased's lifetime, similar amounts were also made to the Defendant. The deceased's statements in Clauses 9 and 10 of her Will, to the effect that the Plaintiff had "unfairly" received more, were put into question. 3. In oral submissions, senior counsel emphasised that the inconsistencies between the statements by the deceased in her Will, indicating that her testamentary intentions were to provide equally for her children, and the forgiveness of the Defendant's, but not the Plaintiff's, debt was a powerful discretionary reason, relevant under s 60(2)(p) of the Act, that the Court should take into consideration, and which would make an order for final provision not less than $40,000 more likely. 4. The Plaintiff made repayments to the deceased and his father, purchased them a car, worked in, and had provided financial assistance to the family business, at various stages throughout his life. 5. The relationship between the Plaintiff and the deceased involved "significant contact" despite him living overseas (although senior counsel acknowledged that the Defendant had a closer relationship with the deceased). 6. The financial needs of the Plaintiff are dire and his future prospects of employment are difficult to assess.
15. The Defendant submitted that the application for interim relief should be refused for three principal reasons: 1. The Court cannot form the opinion that a family provision order will be made in the Plaintiff's favour at the final hearing - either at all, or for "no less" provision than that proposed in his interim application. 2. Any payment would be irreversible, and the estate would be unlikely to recover any interim provision made, particularly if the Plaintiff's claims were dismissed at the substantive hearing (and inferentially if an order for costs were made against him). 3. The provision that is being sought is not to pay, in whole, or in part, the Plaintiff's many creditors, but to pay the amount to the Plaintiff, and, it would seem, intentionally, not to pay his many creditors. That alone was a powerful discretionary reason to decline to make an order.
16. In written submissions, counsel for the Defendant elaborated on the reasons why it was unlikely that a final family provision order would be made, either at all or for less provision than proposed in his interim application. This was primarily because the Plaintiff had received "an enormous amount of provision" during the lifetime of the deceased. He referred to the amount advanced, which he submitted would be increased to $3,300,000. He pointed to the assertion made that the Plaintiff, himself, had claimed that he owed his parents about that amount during the family law proceedings.
17. The Defendant alleged that the Plaintiff received further provision from the deceased, for example, towards his legal costs during the family law proceedings, although the amount of this provision is not known.
18. In oral submissions, counsel for the Defendant conceded that if the application for interim provision were granted, the Defendant would not suffer any substantial prejudice. (This, it seems to me, may be considered on whether the discretion should be exercised if the necessary opinion is formed.)
19. It was submitted that the Plaintiff's view that travelling to the United Kingdom to complete accreditation and to obtain work in the finance industry is speculative.
20. In response to the written submission made by counsel for the Defendant, senior counsel for the Plaintiff addressed the significance of the likelihood of the Plaintiff being able to repay the interim provision of $40,000 if all of his claims failed. He pointed out that the interim provision amount of $40,000 is small, taking into account the estimated value of the estate, and by comparison to other applications for interim provision determined by the Court (such as Steiner v Strang [2017] NSWSC 132) with the consequence that the Plaintiff's inability to repay should not be determinative.
21. Finally, in reply, senior counsel clarified that the refusal of the Plaintiff to apply any interim provision that is granted towards the payment of a debt owed to his former wife, is not evidence of any malfeasance, but rather, a reflection that the evidence of the Plaintiff reveals that the "euro debts" are more pressing. He submitted that a debtor is free to negotiate debts and choose the order in which creditors are paid in the absence of compulsion.

The Law

1. Section 62 of the Act relevantly provides: (1) The Court may make an interim family provision order before it has fully considered an application for a family provision order if it is of the opinion that no less provision than that proposed in the interim order would be made in favour of the eligible person concerned in the final order. (2) After making an interim family provision order, the Court must proceed to finally determine the application for a family provision order by confirming, revoking or varying the interim order.
2. The principles relating to an application for an interim family provision order were not the subject of debate. One aspect, significantly, was not raised at all. The authorities to which reference has been made do not, and the parties at the hearing did not, address the possible meanings of "opinion" in s 62.
3. By way of example, does "opinion" mean: 1. the formation of a final view on the matter; 2. the formation of a provisional view on the matter; 3. a firm view, on the evidence, at the time the opinion is formed; 4. a reasonable suspicion that a state of affairs would exist; or 5. something else? See: Musumeci v Attorney General of NSW (2003) 57 NSWLR 193; [2003] NSWCA 77 at [96] (Young CJ in Eq).
4. There is no definition of "opinion" in the Act. In its ordinary meaning, an "opinion" is "… a belief, or judgment, which seems likely to be true, but which is not based on proof …": see, Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers, referred to in Re BLBS and Minister for Foreign Affairs and Trade (2012) 129 ALD 380; [2012] AATA 464 at [105] (Deputy President S A Forgie).
5. The Oxford English Dictionary lists a number of meanings for "opinion" which include "a view held about a particular issue"; "a judgment formed, or a conclusion reached".
6. In the Act, the power to make an order for interim provision is expressed to depend on an "opinion", which has been set as one of the pre-conditions for the exercise of the Court's power to make an order. In my view, to operate, the Court must reach a subjective view, an opinion, informed by the untested evidence referred to on the application, which opinion is reasonable, and factually sustainable, and not taking into account irrelevant considerations, to support the conclusion that no less provision than that proposed in the interim order would be made in favour of the eligible person concerned in the final order. The use of the word "opinion" in this section, perhaps, connotes a less strict level of assessment by the Court and a more broad-brush approach. Whether that is so or not, of necessity, the exercise on the application, is likely to be somewhat imprecise. It will usually be impossible for the court to be able to make findings of fact on issues in dispute sufficient, for example, to deal with conduct or allegations such as those made in the present case.
7. I next extract some general principles, relying upon Young v Salkeld (1985) 4 NSWLR 375 (dealing with s 9(5) and s 9(6) of the Family Provision Act 1982 (NSW)), and the cases under s 62 of the Act, including Roberts v Moses [2015] NSWSC 1504; Steiner v Strang; Bryan v Beveridge [2021] NSWSC 1406 and Le v Angius [2022] NSWSC 240, and otherwise on my reading of the section.
8. The general principles, in my view, are: 1. The onus of proof is upon the applicant to establish that an interim order should be made. 2. For an interim order to be made, the applicant must establish that he, or she, is an eligible person, not a person who "may be" an eligible person. That is a finding of fact to be made on all the evidence in the context of the application as a whole. (Although not relevant in the present case, if eligibility were in issue, making an order for interim provision might place a Defendant, who disputes eligibility, at a considerable disadvantage at a final hearing as a finding of eligibility on the application would be based upon untested evidence.) 3. It is not enough for the applicant to show that his, or her, case, at a final hearing, is arguable. The Court must consider the evidence that has been read, even though, on the application, it cannot make findings of fact in order to form the opinion. 4. Where, as here, the applicant relies only upon s 62 of the Act, the juridical bases for an order are not diverse and the source of jurisdiction to make such an order is not uncertain. The necessary precondition to the making of an interim order is the formation of the opinion, reached on the balance of probabilities, after the untested evidence is fully considered, that no less provision than that proposed in the interim order would be made in favour of the Plaintiff at the final hearing. In other words, it is not enough that the Court is of the opinion, on the balance of probabilities, that the applicant will obtain a family provision order at the final hearing. The Court must also be of the opinion that the final family provision order will be no less than the interim family provision order. 1. In relation to a final family provision order, s 59 of the Act requires the Court to make such order for provision out of the estate of the deceased as the Court thinks ought to be made for his, or her, maintenance, education, or advancement in life, having regard to the facts known to the Court at the time the order is made. Thus, in determining the application for an interim order, the Court must assess the evidence, and form the opinion, that the Plaintiff will receive no less provision than that proposed in the interim order, notionally at the time the final order is likely to be made (which to all intents and purposes is at the final hearing). In forming its opinion, the Court must assess what the Plaintiff's, and what the estate's, circumstances, are likely to be, at that time. However, the Act does not attempt, and the Court has not attempted, to proscribe the relevant matters to be taken into account in forming the opinion. 2. Whilst there is power given to the Court to make an interim order, whether to grant that relief is discretionary. The Court must consider whether it is appropriate to exercise the discretion to make an order even if the preconditions in the section are satisfied. 3. The use of the word "may" before "make an interim order" demonstrates that the Court's power is permissive, rather than compulsive. The power may be used, or not, at the Court's discretion: s 9(1) Interpretation Act 1987 (NSW). That this is so, is not contradicted by any contrary intention appearing in the Act: s 5(2) of the Interpretation Act. 4. The statutory intention in relation to the making of a family provision order under s 59 is not that a power to do so must be exercised, even if an applicant can establish that adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased. Similarly, the existence of the state of affairs identified in s 62 enlivens the discretion but does not dictate the outcome of its exercise, other than by reference to "no less provision than that proposed in the interim order would be made in favour of the eligible person concerned in the final order". 5. The discretion given to the Court is fairly wide, but it is not unlimited: Guerreiro v Guerreiro (Supreme Court (NSW), Young J, 7 February 1990 unrep). The discretion should be exercised judicially, that is to say, fairly and reasonably, having regard to the subject matter, scope and purpose of the Act, and in the interests of justice. 6. Yet, the Court is not required to determine the precise order for provision that the Plaintiff may receive at the final hearing. That determination would, in any event, be impossible because the evidence is untested and may be incomplete. The Court need only form the opinion that the Plaintiff will receive no less provision, by way of final order, than that proposed in the interim order. Only then will it be necessary to decide whether to exercise its discretion. 7. A relevant consideration in exercising the Court's discretion is whether any lump sum paid by way of interim provision order would be able to be repaid by the Plaintiff in the event that the interim order is revoked. The basis for such a consideration is s 62(2) of the Act which includes a reference to the Court "revoking" the interim order. The answer to that question may depend upon whether the Plaintiff receives any provision in the deceased's Will or under the operation of the rules of intestacy. If he, or she does, and if the interim provision that is sought is less than the provision made, that the estate is not at risk is a factor that may warrant the exercise of discretion. 8. There may be cases where the Court will make an interim order for an impecunious applicant, even though he, or she, could not repay it if the substantive case failed: Young v Salkeld at 381, Guerreiro v Guerreiro at 1. 9. An order under s 62, whilst an order for interim provision, is an order for provision for the purposes of the Act and it takes (interim) effect as a deemed codicil to the will: s 72 of the Act.

Determination

1. Firstly, I note the Plaintiff's claims for relief include, declaratory relief, on different grounds, and a consequential order for the imposition of a constructive trust, which is said to be for one half of the value of the deceased's estate. I have identified the nature of the alternative claims described by senior counsel in his written submissions earlier in these reasons. It is not a straightforward claim for a family provision order.
2. If the Plaintiff were to be successful in the claim referred to in (a), I am unable to form the opinion that no less provision than that proposed in the interim order would be made in his favour in the final order, despite the quantum of the interim provision sought being small. It is difficult to see, in circumstances where he would not be obliged, as a condition of the relief sought on this ground, to repay what is said to be a debt owed to the estate, that he would be entitled to any relief by way of a final family provision order.
3. Again, in relation to the alternative claim (b), for the same reasons, I am unable to form the opinion that no less provision than that proposed in the interim order would be made in the Plaintiff's favour in the final order, despite the quantum of the interim provision sought being so small.
4. In relation to (c), there is currently no likelihood of the Plaintiff repaying any part of the balance of the amount owed. The Court would have to consider whether, in such circumstances, any order for provision should be made for the Plaintiff, as he has received such significant provision during the lifetime of the deceased.
5. Alternatively, if part of the family provision order that the Plaintiff seeks, namely the forgiveness of any debt payable to the estate, were made, the same issue arises. Even assuming that additional provision were made to enable the Plaintiff to pay the other debts to which he has referred, I am unable to form the opinion that he would receive a further lump sum greater than $40,000.
6. The Plaintiff's claim for a family provision order is disputed by the Defendant. There appears to be a basis, in the evidence, for that dispute. Furthermore, neither party has had a complete opportunity to investigate the evidence advanced on, or in opposition to, the application for the family provision order. That is made difficult by the fact that the Plaintiff lives overseas. The matter has not yet been listed for hearing.
7. There is, in my opinion, uncertainty, even on the Plaintiff's case, whether an order for a family provision order would be made. Because of the factual disputes, and the untested evidence going to those disputes, I am unable to form the opinion that no less provision than that proposed in the interim order would be made in his favour in the final order, despite the quantum of the interim provision sought being relatively small.
8. What is not in dispute is the relationship of the deceased with the Defendant, the chosen object of her testamentary bounty. Undoubtedly, that will be a relevant consideration, in determining whether to make an order for provision in favour of the Plaintiff.
9. Even if I were wrong, I would not, in the exercise of discretion, make an order for interim provision in favour of the Plaintiff. In a case where there are so many factual issues, and where there are other claims made by the Plaintiff, generally speaking, the interests of the parties and the Court are better served by there being one final hearing of all the claims.
10. Then, of course, there is, currently, no likelihood of the Plaintiff being able to repay any part of $40,000 (the amount sought), if, when proceeding to finally determine the application for a family provision order, the interim order were revoked.
11. Bearing in mind the nature and quantum of the Plaintiff's debts in Australia and overseas, the Court could consider, at the final hearing, whether, in such circumstances, any order for provision should be made for the Plaintiff when that provision would benefit only some of his creditors.
12. However, in this regard, I have not forgotten what was written by Basten JA in Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54 at [69], albeit in a different context: "A financial benefit in circumstances where an applicant's business interests require an injection of capital may be of great assistance in permitting advancement in life. The fact that the benefit goes to paying off creditors, thereby saving the loss of an asset or reducing ongoing liabilities does not diminish the benefit to the applicant."
13. Allsop P concurred, saying at [1] that: "One could envisage a particular predicament of an eligible person whereby it would be relevant to consider that any order in his or her favour would diminish the estate to meet the claims of others to no appreciable (financial or social) benefit to him or her in his or her debt-ridden condition. That is not to say, however, that relief from indebtedness may not be of significant benefit to an eligible person. A small bequest to someone with considerable debts may make the difference (as Mr Micawber said) between happiness and misery."
14. Here, however, if one includes what is said to be the debt owed to the estate, the total amount of the Plaintiff's debts far exceeds the current value of the estate and also the value of his assets. In that regard, Diver v Neal may be distinguished because the applicant, in that case, was not insolvent (in the sense that her assets exceeded her liabilities). Indeed, at [69], Basten JA also recognised that "[d]ifferent considerations may apply where it has been shown that the applicant is insolvent at the date of trial…". This is a matter to also be considered in the exercise of the discretion.
15. For the same reasons, this is not a case where if an order for interim provision were made, and then revoked, the Plaintiff would not have any ability to repay the estate and the Court may not have any opportunity to achieve fairness at the final hearing by means of an effective set off.
16. Being unable to form the requisite opinion, the Plaintiff's notice of motion filed in Court on 2 May 2022 should be dismissed with costs. The matter is stood over for further directions in the Succession List at 9:30 a.m. on Thursday, 4 August 2022.

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: 25 July 2022